Micmacs’ case sent to federal court Decision’s language strongly implies tribes are not subject to state law

A three-judge panel of the 1st Circuit Court of Appeals in Boston ruled on Wednesday that the Aroostook Band of Micmacs’ lawsuit against the Maine Human Rights Commission should be heard in federal, not state, court.

While lawyers for both sides said Thursday that the ruling does not address the merits of the case and its long-term impact remains unclear, the language in the 50-page opinion strongly suggested that the tribe is not subject to state law.

“The band’s alleged rights to self-governance and tribal sovereignty mean, in essence, that it is not subject to state laws (at least those that purport to regulate the internal governance affairs of the band itself) at all,” wrote Judge Kermit Lipez for the panel. “By contrast, tribal sovereign immunity means that the band is not amenable to state judicial or quasi-judicial proceedings to enforce those laws.”

The civil suit stems from the tribe’s 2001 firing of three Aroostook County women who complained to the commission that their terminations violated the Maine Whistleblower Protection Act. The commission found in the women’s favor, but the tribe filed the lawsuit in federal court claiming that because the band is a sovereign nation, the MHRC, a state agency, does not have jurisdiction over its affairs.

The 1st Circuit’s decision reversed a ruling issued in February 2004 by U.S. District Magistrate Judge Margaret Kravchuk that dismissed the case in U.S. District Court in Bangor. She found that the case belonged in state court rather than federal court, and the tribe appealed.

Lipez, 63, of Portland, along with Senior Judges Frank Coffin, 85, of Portland and Conrad Cyr, 73, of Bangor, heard oral arguments in the appeal in October when the three judges from Maine convened together for the first time in Portland.

“It’s beautiful to have the appeals court agree with us,” Micmac Chief Bill Phillips said of the decision. “It’s something that we’ve always believed from day one.”

The central issue in the case, which still must be decided, is whether the band is subject to the MHRC and its investigations or not, according to Assistant Attorney General Christopher Taub, who represented the commission.

“We’re ready to go back to the [U.S.] District Court to discuss the merits of the case,” he said Thursday. “It’s a narrow decision that didn’t say anything about the merits. … Clearly, the issue over jurisdiction is a complicated one.”

In deciding the case, the judges considered two competing settlement acts – one with the Legislature, approved in 1989, but never certified by the tribe, and the other with the U.S. Congress, approved in 1991.

“In short, inherent tribal sovereignty is a federal common law right that preempts contrary state law,” Lipez wrote.

The judges found that the federal 1991 Micmac Settlement Act:

. Provides for tribal self-governance.

. Does not subject the band to Maine law but does subject it to federal law on the same terms as other tribes.

. Made federal law govern when conflicts arise between state and federal law.

The decision states that the Micmacs’ “interest in governing themselves is not ephemeral, it’s real,” the tribe’s attorney Douglas Luckerman of Lexington, Mass., said Thursday. “I think they set the parameters for Judge Kravchuk and how she should look at the language of the settlement act. The court went out of its way to say the 1991 act does not apply to state law.”

The appeals panel also hinted that the investigation of a tribe’s internal affairs by a state agency, such as the commission could be intrusive and harmful.

“An Indian tribe that is unlawfully called to answer before a state agency may suffer both practical harms and intrusions on its sovereignty,” Lipez wrote. “As a more symbolic matter, simply being called to appear and defend its internal employment practices before a state agency may be an insult to a tribe’s sovereignty and right to self-governance.”

The impact the ruling could have on the interaction between Indian tribes in Maine and state government agencies won’t be clear until Kravchuk rules on the merits of the case, Luckerman said. Even after that, more court cases will have to be decided before it will be clear when and how the state can get involved in tribal decisions such as whether a casino can be constructed on tribal land.