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Thumbs down New England Ruling Favors States over Tribes

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FROM: INDIAN COUNTRY TODAY NEWSPAPER

http://www.indiancountry.com/content.cfm?id=1096410050

New England Ruling Favors States Over Tribes

Posted: December 23, 2004
by: Jim Adams / Indian Country Today


BOSTON - Cases now awaiting decision in the federal 1st Circuit Court of
Appeals here could lead to an appeal to the U.S. Supreme Court for review of an
obscure procedural rule that is throwing a darkening shadow over tribal
governments in most of New England and the rest of Indian country.

Thanks to a July 2000 ruling in the federal District Court in Maine, New
England states themselves are increasingly becoming the referee of the perennial
struggle between tribes and states over the extent of sovereign
self-government. This ruling has become a major factor in most of New England, where tribal
sovereignty has already been compromised by ambiguities in land settlement
deals negotiated, some say naively, in the early 1980s. A current case between the
Aroostook Band of Micmac Indians and Maine's Human Rights Commission squarely
confronts a murky doctrine of federal court procedure, the so-called ''well
pleaded complaint'' rule, that has denied tribes access to what they consider
the less-biased forum of the federal courts.

The ruling grew out of the emotional resistance of Maine's Penobscot and
Passamaquoddy tribes four years ago to a demand by large paper companies to see
internal tribal documents. The suit, which was based on Maine's Freedom of
Access Law for municipal records, was eventually decided against the tribes by
Maine's highest court.

Along the way, federal District Judge D. Brock Hornby refused to take
jurisdiction, reading the ''well-pleaded complaint'' rule to say that the case was a
matter of state law, even though the tribes raised the issue of their inherent
sovereignty. Delegations from tribes throughout New England and as far away
as the St. Regis Mohawk Reservation in Upstate New York attended the appeals
argument before a three-judge panel of the 1st Circuit, thronging the hallway in
the brand-new glass-walled federal courthouse with a dramatic view of Boston
harbor. It was a prescient display of solidarity. Within two years, three of
those tribes, the Narragansett of Rhode Island, the Wampanoags of Gay Head
(Aquinnah) in Massachusetts and Maine's Aroostook Band of Micmac Indians, were
fighting the same rule in their own court cases.

The ''well-pleaded complaint'' rule, explained Kaighn Smith Jr., attorney for
the Penobscot and Passamaquoddy in the paper company suit, arises from the
different scopes of the lower federal courts and the state courts. The federal
courts, he said, have a limited jurisdiction specified by Congress. One of
their main functions is to judge cases ''arising from'' the Constitution,
Congressional statutes or treaties. But state courts have a much broader scope and can
decide federal issues. (Hornby observed that the Constitution only set up a
Supreme Court, not the rest of the federal system.) Murky as it is, this rule,
said Smith, helps decide who gets access to the federal court. ''You have to
have the keys to the courthouse door,'' he said.

Yet much of the current confusion and sharp criticism of the courts comes
from the way they interpret the phrase ''arising from.''

It's not enough to raise a federal issue, Smith said. Following a Supreme
Court decision by Oliver Wendell Holmes, a case arising from state law can stay
in state courts, even if one of the parties makes a defense based on federal
law. Hence a tribe's claim of sovereign immunity from suit won't automatically
give it a key to federal court, as the Aquinnah Wampanoag discovered in
Massachusetts. The issue, which is riddled with confusing exceptions, is the
difference between basing the core of the suit on federal law as opposed to using it
as a defense.

Although this rule has come up in Indian cases across the country, Hornby
complained that many federal courts ignored it, simply assuming they had
jurisdiction over tribal-state disputes. In fact, said Smith, Congress has passed a
statute seeming to make that point, adding another layer of complications.
(Smith is exploring the rule in detail in an article scheduled for the next issue
of the New Mexico Law Review.)

After Hornby's ruling, however, federal courts in New England have become
highly conscious of the ''well-pleaded complaint'' rule. In 2003, the Aroostook
Band of Micmac Indians went to federal court for an injunction against the
Maine Human Rights Commission, saying that its investigation of the firing of
tribal employees violated tribal sovereignty. U.S. Magistrate Judge Margaret
Kravchuk said ''reluctantly'' that the federal court didn't have jurisdiction,
citing Hornby. The Aroostook Band appealed, and a 1st Circuit panel heard the case
Sept. 28 in a session held in the Portland, Maine federal courthouse for the
first time in its history.

Douglas Luckerman, attorney for the Aroostook Band, was delighted with the
hearing, saying the three federal judges subjected Maine's Attorney General to
withering questioning. A decision is expected imminently. But Luckerman said
that no matter the outcome, the issue of the ''well-pleaded rule'' could be
headed to the Supreme Court. ''It's certainly on that trajectory,'' he said.
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