Micmacs Lose Critical Federal Case On Tribal Sovereignty

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Wabanaki Legal News, Winter 2009

by Paul Thibeault

The Aroostook Band of Micmacs has lost its long-standing court battle about the authority of the State of Maine to enforce its employment laws against the government of the Band.  In the case of Aroostook Band of Micmacs v. Ryan, the Federal Court of Appeals overturned a 2005 lower court decision.  The Federal Appeals Court held that the Maine Human Rights Commission has jurisdiction over complaints by former tribal employees under the Maine Human Rights Act and the Maine Whistleblowers' Protection Act. The Band appealed the decision, but in November of 2007 the U.S. Supreme Court refused to review the case.  That means the Appeals Court decision stands as law.

The central question in the case was whether or not the Maine Indian Claims Settlement Act of 1980 (MICSA) applies to the Aroostook Band. The Band contended that MICSA no longer applies to the Micmacs because in 1991 Congress enacted a completely separate settlement act concerning the Micmacs.  It is called the Aroostook Band of Micmacs Settlement Act (ABMSA).  The majority of the judges of the Federal Court of Appeals rejected the Band's argument.  They held that MICSA continues to apply to the Micmacs.  MICSA states that all tribes and tribal members in Maine, except for the Passamaquoddy Tribe and Penobscot Nation, are subject to the laws and jurisdiction of the State to the same extent as any other person.

The Band argued that when Congress approved ABMSA, it intended that this new federal law would replace the more general language contained in MICSA. The basis for this argument was that ABMSA specifically defines the legal relationship between the Micmacs and the State of Maine.  On the other hand, MICSA was enacted by Congress 11 years earlier, did not deal with the Micmacs as a federally recognized tribe, and in fact does not even mention the Aroostook Band by name.  One of the three appellate judges agreed with the Band's position. Circuit Judge Kermit Lipez stated in his dissenting opinion as follows:
In sum, every indicator points to a congressional intent to supplant MICSA for the Micmacs in all respects in which that earlier statute was not explicitly extended by ABMSA's terms. Thus, I can only conclude that, after passage of ABMSA, MICSA no longer controlled Maine's jurisdiction over the Aroostook Band of Micmacs.

However, the other two Circuit Judges disagreed. They held that the two federal settlement acts were not inconsistent and that the broad jurisdictional language of MICSA clearly makes the Micmacs subject to state jurisdiction.

By finding that the jurisdictional language in the 1980 Settlement still applies to the Micmacs, the court majority was able to avoid deciding a question that the dissenting Judge Lipez and the lower court found to be critical in their analysis of what jurisdiction the state has concerning the Micmacs. That critical issue was the status and impact of the 1989 state Micmac Settlement Act. It was originally intended to be part of the state/federal settlement between the state and the Band.  If this Act had gone into effect, it would have given the State of Maine extensive jurisdiction over the Micmacs.  Judge Lipez and the lower court pointed out that, since the Band did not ratify the state Act, it never took effect as law.  Thus, since the state Micmac Settlement Act did not go into effect and the 1980 MICSA settlement had been superseded with respect to the Micmacs by ABMSA, they concluded that no law existed which would give the State of Maine jurisdiction over the Aroostook Band. 

However, the majority of the appellate judges held that it was not necessary to decide if the state Micmac Settlement Act ever took effect.  Instead, they held that the two federal settlement acts, MICSA and ABMSA, are not in conflict and they clearly and unequivocally establish that Maine laws apply to the Aroostook Band of Micmacs.

While the immediate impact of the court decision is to make Micmac tribal employment disputes subject to state employment laws, the overall impact of the court decision goes well beyond the issue of tribal employment.  When the Band tried to convince the Supreme Court to hear the case, its attorney explained this broad and negative impact.  He argued that the Federal Appeals Court decision may mean that only the Passamaquoddy Tribe and the Penobscot Nation retain any inherent sovereignty or right of self-government to prevent regulation of their internal tribal affairs by the State of Maine. As a result of the decision in this case, it appears that little if anything is left of historical tribal sovereignty for the Aroostook Band of Micmacs because their internal tribal matters are not protected under MICSA.  It is possible that the Micmacs may still have exclusive authority over some limited aspects of their own internal government and election structures. But any historical right of self-governance that still exists appears to be very narrow. This state of affairs is painfully ironic for the Micmacs. If their 2005 victory in the lower federal court had stood up on appeal, then, as observed by Judge Lipez in his dissent, the Micmacs would have been the only tribe in Maine not subject to some level of state jurisdiction.

Despite the disastrous results in the Ryan case there is still a possibility that the Micmacs can salvage some degree of tribal sovereignty.  As outlined in the related article at page 4, the Maine Legislature approved legislation that may establish jurisdiction for the Houlton Band of Maliseet Indians that is similar to what the Passamaquoddy Tribe and Penobscot Nation possess under their 1980 settlement. The Micmacs withdrew from the legislative process this year, but it seems likely that they could obtain the same legislative changes if they decide to go that route in the future.