Akins v. Penobscot Indian

United States Court of Appeals
For the First Circuit

No. 97-1644

ANDREW AKINS, ET AL.,

Plaintiffs, Appellants,

v.

PENOBSCOT NATION, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Morton A. Brody, U.S. District Judge]

Before

Torruella, Chief Judge,

Lynch, Circuit Judge,
and Stearns,* District Judge.

Timothy C. Woodcock, with whom Weatherbee, Woodcock, Burlock
& Woodcock was on brief, for appellants.
Kaighn Smith for appellees.

November 17, 1997

* Of the District of Massachusetts, sitting by designation.

LYNCH, Circuit Judge. This case presents the first instance

this court has been asked to address an important question in the

allocation
of
sovereign
powers between the Penobscot Nation and the

State of Maine: the definition of "internal tribal matters." If

the dispute here involves an "internal tribal matter" then the

tribal
courts
have
exclusive jurisdiction; if not, then claims have

been stated within federal court jurisdiction and it was error to

dismiss the action. While defining what constitutes an internal

matter controlled by Indian tribes is hardly novel in Native

American law, it is novel in this context. The relations between

Maine
and
the
Penobscot
Nation are not governed by all of the usual

laws governing such relationships, but by two unique laws, one

Maine and one federal, approving a settlement. That settlement

resulted from disputed claims for vast portions of lands in Maine

brought
by
the Penobscots and others who had not historically been

formally recognized as sovereign Indians.

I.

This case involves the harvesting of timber on those lands

acquired by the Penobscot Nation as a result of the settlement

agreement.

Plaintiff
Andrew X. Akins is the former Chairman of the

Joint Tribal Negotiating Committee; he now resides in Alabama.

Akins
and
his
company,
PENAK, Inc., also a plaintiff (whom we refer

to jointly as "Akins") for several years logged portions of the

land under stumpage permits issued by the Nation. In December of

1993, the Nation's Tribal Council voted a new policy: stumpage

permits would be issued only to people who were both enrolled

2

members
of
the
Nation
and residents of Maine. Akins is an enrolled

member of the Nation, but not a Maine resident. Akins says he is

the
only
tribal
member
who will be affected by the new policy. The

policy
became
effective
on May 18, 1994 and the next day the Nation

told Akins he was not eligible for a permit.

Akins sued the Nation and its Tribal Council in the U.S.

District
Court
in
Maine,
under 42 U.S.C. SS 1983 and 1985, alleging

that
singling
him
out
through an ostensibly neutral policy violated

his rights to due process, equal protection, and to be free from

bills of attainder. He also brought state law claims and alleged

diversity
jurisdiction.

A report of a Magistrate Judge recommended

dismissal
of
the
case
for failure to state a claim for which relief

may be granted and for lack of subject matter jurisdiction. The

U.S. District Court accepted the recommendation and dismissed.

Akins appeals, arguing: that the district court erred in holding

that the stumpage policy is an "internal tribal matter;" that he

has
cognizable claims under 42 U.S.C. SS 1983 and 1985, as well as

the Declaratory Judgment Act, 28 U.S.C. S 2201-02; and that the

stumpage policy violates the Maine Administrative Procedures Act

and the Maine Constitution.

II.

The issues in this case cannot be grasped without

understanding
the
genesis of the Maine Indian Claims Settlement Act

of
1980,
25
U.S.C. SS 1721-35 (the "Settlement Act"). The history

of the Settlement Act was brought to life in the decision of the

Maine
Law
Court in Penobscot Nation v. Stilphen, 461 A.2d 478, 487

3

(Me.
1983),
and
of
this
Circuit in Passamaquoddy Tribe v. Maine, 75

F.3d 784, 787 (1st Cir. 1996). A summary of that history will do

here.

The disputes which led to the settlement involved assertions

that certain persons and groups were members of Indian tribes and

as such entitled to ancestral lands and to monetary damages. The

claimed lands amounted to nearly two-thirds of Maine's landmass.

See

Joint
Tribal Council of the Passamaquoddy Tribe v. Morton, 388

F. Supp. 649, 651-53, 667-69 (D. Me.), aff'd, 528 F.2d 370 (1st

Cir. 1975). Under federal auspices, the Penobscot Nation, other

claimants,
and Maine negotiated a settlement. That settlement was

subject to approval by both the Maine Legislature and Congress.

Maine
enacted the Implementing Act, Me. Rev. Stat. Ann. tit. 30 SS

6201-14, which provides:

[T]he Passamaquoddy Tribe and the Penobscot
Nation, within their respective Indian
territories, shall have, exercise and enjoy
all the rights, privileges, powers and
immunities,
including, but without limitation,
the power to enact ordinances and collect
taxes,
and
shall be subject to all the duties,
obligations, liabilities and limitations of a
municipality
of and subject to the laws of the
State, provided however, that internal tribal
matters, including membership in the
respective tribe or nation, the right to
reside within the respective Indian
territories, tribal organization, tribal
government, tribal elections and the use or
disposition of settlement fund income shall
not be subject to regulation by the State.

Title 30, S 6206(1) (emphasis added). The Implementing Act was

incorporated
into the federal Settlement Act of 1980, 25 U.S.C. SS

1721-35.

4

Each
party
benefitted
from the settlement. The Nation in many

respects gained the powers of a municipality under Maine law.

"[T]he
Settlement Act confirmed [the Nation's] title to designated

reservation lands, memorialized federal recognition of its tribal

status, and opened the floodgate for the influx of millions of

dollars in federal subsidies." Passamaquoddy Tribe, 75 F.3d at

787. Maine, in turn, put to rest the land claims and achieved a

certain sharing of authority with the Nation, as described below.

III.

The structure of analysis differs here from that which would

be
used
in
claims against the vast majority of other Indian tribes

in
the
country.2 This is true as to the application of both state

and federal law. As to state law, the Penobscot Nation and Maine

expressly
agreed that, with very limited exceptions, the Nation is

subject
to
the laws of Maine. See 25 U.S.C. S 1725. Congress was

explicit
that the purpose of the Settlement Act was "to ratify the

Maine
Implementing Act, which defines the relationship between the

State
of
Maine
.
.
.
and
the Penobscot Nation" and "to confirm that

all
other
Indians
.
.
.
are and shall be subject to the laws of the

State of Maine, as provided herein." 25 U.S.C. S 1721(b)(3)&(4).

The federal Settlement Act provides that:

The
.
.
.
Penobscot Nation, and [its] members,
and the land and natural resources owned by,
or
held
in
trust for the benefit of the tribe,
nation, or [its] members, shall be subject to

2. The Narragansett tribe in Rhode Island is also governed by a
Claims Settlement Act. See 25 U.S.C. SS 1701-06 (1978);
Narragansett Indian Tribe v. Narragansett Elec. Co., 89 F.3d 908
(1st Cir. 1996).

5

the jurisdiction of the State of Maine to the
extent
and
in the manner provided in the Maine
Implementing Act and that Act is hereby
approved, ratified, and confirmed.

25 U.S.C. S 1725(b)(1). In turn, the Settlement Act made federal

law
which
was then generally applicable to Indians also applicable

to the Penobscot Nation but declared special laws and regulations

inapplicable. See 25 U.S.C. S 1725(h). The State of Maine may

amend the Implementing Act to modify the jurisdictional powers of

the Nation only if the Nation agrees to the amendment. See 25

U.S.C. S 1725(e)(1).

Although Indian tribes are not usually subject to the

diversity jurisdiction of the federal courts, see Romanella v.

Hayward, 114 F.3d 15 (2d Cir. 1997), the Settlement Act subjects

the Maine tribes to diversity jurisdiction:

the
Penobscot Nation . . . may sue and be sued
in the courts of the . . . United States to
the same extent as any other entity or person
residing in the State of Maine may sue and be
sued in [that] court.3

25
U.S.C.
S
1725(d)(1). Further, those federal laws enacted after

October
10,
1980
(the
effective date of the Settlement Act) for the

benefit of Indians do not apply within Maine unless the federal

statute is made expressly applicable within Maine. 25 U.S.C. S

1735(b).

The Settlement Act provides at 25 U.S.C. S 1725(f):

The . . . Penobscot Nation [is] hereby
authorized to exercise jurisdiction, separate
and distinct from the civil and criminal

3. That section also provides certain immunities from suit. We
do not reach the issue of immunity.

6

jurisdiction of the State of Maine, to the
extent authorized by the Maine Implementing
Act, and any subsequent amendments thereto.

The Implementing Act in turn makes the Nation subject "to all the

duties,
obligations, liabilities and limitations of a municipality

. . . provided, however, that internal tribal matters . . . shall

not be subject to regulation by the State." Me. Rev. Stat. Ann.

tit. 30, S 6206(1) (emphasis added). The viability of both the

federal law claims under S 1983 and the state law claims under

diversity jurisdiction depend on whether the Implementing Act and

the Settlement Act subject the Penobscot Nation's stumpage policy

to
regulation
by
the
State. Put differently, the Nation in certain

capacities functions as a municipality of Maine and is reachable

under
state
and
federal
law in that capacity, but when it functions

as a tribe as to internal tribal matters, it is not.

This
case
turns
on
whether the issuance of stumpage permits is

an
"internal
tribal
matter." Under the Settlement Act, we consider

that to be a question of federal law, and the parties so agree.4

If this is an internal tribal matter, then Akins's S 1983 claim

fails
because
the
Nation
would not have been acting "under color of

state
law."

See

R.J.
Williams Co. v. Fort Belknap Hous. Auth., 719

F.2d 979, 982 (9th Cir. 1983); Dry Creek Lodge, Inc. v. United

States
,
515
F.2d
926,
931 (10th Cir. 1975). If this is an internal

tribal
matter, then under both Settlement Act and the Implementing

Act, Maine law does not apply and no claims arise under the Maine

4. The Settlement Act at 25 U.S.C. S 1735(a) recites that in the
event of any conflict between that Act and the Maine Implementing
Act, the federal statute prevails.

7

Constitution
or
under
the Maine Administrative Procedure Act. Thus

no claim arises under state law warranting the exercise of

diversity jurisdiction.

IV.

In
considering
Akins's
S
1983 claim, we note that Congress did

not
exempt
the Penobscot Nation from obligations not to trammel on

civil rights. At a minimum it did so in a separate general

statute, the Indian Civil Rights Act of 1968 ("ICRA"). See 25

U.S.C. SS 1301-41, made applicable to the Penobscot Nation by 25

U.S.C. S 1725(h). The ICRA imposes "restrictions upon tribal

governments similar, but not identical, to those embodied in the

Bill of Rights and the Fourteenth Amendment." Santa Clara Pueblo

v. Martinez, 436 U.S. 49, 57 (1978). Under the ICRA, "No Indian

tribe in exercising powers of self-government shall . . . deny to

any
person
within
its
jurisdiction the equal protection of its laws

or
deprive
any
person
of
liberty or property without due process of

law." 25 U.S.C. S 1302(8).

Two distinctions are pertinent. As a matter of substantive

law, generally, the ICRA and not the U.S. Constitution is the

source of the rights. See Santa Clara Pueblo, 436 U.S. at 56; J.

Resnik,
Dependent
Soverei
gns: Indian Tribes, States and the Federal

Courts, 56 U. Chi. L. Rev. 671, 694 (1989) ("Members of Indian

tribes cannot make Bill of Rights claims against their tribes.").

Secondly, such claims of violations of civil rights must be heard

in the tribal courts, not in the federal courts. With the

exception of petitions for habeas corpus relief, Congress did not

8

intend in the ICRA to create implied causes of action to redress

substantive
rights in federal court.5 See Santa Clara Pueblo, 436

U.S. at 59-66. Similarly, if this is an internal tribal matter,

then the tribal court will have authority over the essence of the

state constitutional claims. The ICRA contains its own equal

protection and due process guarantees. Akins's state

constitutional claims rest on similar guarantees. This is not a

potential instance of a right without a remedy.

V.

Is the issuance of stumpage permits an "internal tribal

matter"? The language of the statute itself is the first resort.

That language refers to:

internal tribal matters, including membership
in the respective tribe or nation, the right
to reside within the respective Indian
territories, tribal organization, tribal
government, tribal elections and the use or
disposition of settlement fund income . . . .

Me. Rev. Stat. Ann. tit. 30, S 6206(1). Because the wording used

is "including," the specific categories are exemplars and not

exclusive. The examples provide limited guidance. The stumpage

permit policy does not fit neatly within any of these categories.

5. While Akins may view a tribal court as a less desirable forum
than federal court, the Supreme Court has said that "even if a
jurisdictional holding occasionally results in denying an Indian
plaintiff a forum to which a non-Indian has access, such
disparate treatment of the Indian is justified because it is
intended to benefit the class of which he is a member by
furthering the congressional policy of Indian self-government."
Fisher v. District Ct., 424 U.S. 382, 390-91 (1976). The Court
has recognized that subjecting purely intra-tribal disputes to
state jurisdiction has the potential to undermine the authority
of tribal courts and of the tribal government. See Santa Clara
Pueblo, 436 U.S. at 59-60.

9

It might be argued it fits within "tribal government" but such an

argument rests on inherently too broad a reading of the phrase.

That a tribe attempts to govern a matter does not render it an

internal tribal matter.

A
number
of
strong
considerations point to the stumpage policy

being an internal tribal matter. First, and foremost, the policy

purports to regulate only members of the tribe, as only tribal

members may even apply for permits. The interests of non-members

are not at issue. Thus, it appears to be an "internal" tribal

matter. Second, the policy has to do with the commercial use of

lands
acquired
by
the
Nation with the federal funds it received for

this
purpose
as part of the settlement agreement. These lands are

"Penobscot
Indian Territory" and are subject to federal restraints

on
alienation. See 25 U.S.C. S 1724; Me. Rev. Stat. Ann. tit. 30,

S 6205. The policy regulates the very land that defines the

territory of the Nation, and so appears to be a "tribal" matter.

Third, the policy concerns the harvesting of a natural resource

from
that
land; and permit fees paid benefit the Penobscot Nation.

The control of the permitting process operates as a control over

the growth, health, and reaping of that resource. Fourth, the

policy, at least on its face, does not implicate or impair any

interest
of
the
state
of
Maine. Fifth, it is consistent with prior

legal
understandings
to
view the issuance of stumpage permits as an

internal tribal matter.

There are also arguments that this is not an internal tribal

matter. First, logging permits are issued by municipalities as a

10

standard part of municipal powers. But it is surely too broad a

test to ask whether a municipality engages in the same activity.

Every
activity
specifically listed in the statute as an exemplar of

an internal tribal matter is also engaged in by a municipality.

The
second
and more interesting argument advanced by Akins is

that, outside of the categorical exemplars, the focus should be

historical and tribe specific. The Penobscots, Akins says, have

offered no evidence that they have historically been loggers or

supported themselves through timber harvesting. Logging, Akins

says,
is
a
major commercial activity in Maine and historically has

been engaged in by others, and is not "uniquely Indian" nor "of

particular cultural importance" to the Nation.

Akins analogizes the expansion of the Nation into the

economics
of
commercial logging to the expansion of the tribe into

commercial gambling, an activity that the Maine Law Court has

specifically held is not an "internal tribal matter." See

Stilphen, 461 A.2d 478 (holding that an illegal bingo game run by

the
Nation
did not qualify as an internal tribal matter); see also

Passamaquoddy Tribe, 75 F.3d at 787-88 (holding that Congress did

not intend to give the Maine tribes any rights under the Indian

Gaming Regulatory Act). At the very least, Akins argues, the

dismissal
of
his
action
should be vacated and the case remanded for

a hearing on whether logging is a traditional tribal activity and

whether the stumpage policy reinforces traditional tribal values.

The Nation responds to this latter argument vigorously. The

Nation retorts that it is not a museum piece and may not be

11

relegated to historic roles. If the Nation is truly to exercise

its
residual
sovereignty, it must be free to act within the present

marketplace
and not be stereotypically restricted to ancient forms

of
economic
support. Narrow historical analysis, the Nation says,

should play almost no role. Accordingly, the Nation argues that

the Maine Law Court was wrong in Stilphen when it focused on

historic
culture or development to define internal tribal matters.

See Stilphen, 461 A.2d at 490.

Such
broad
themes do not help to define the rules of decision

in these cases. At the same time Congress was enacting the

Settlement
Act
the
Supreme Court noted that, "'[g]eneralizations in

this
subject
[of
tribal
authority] have become . . . treacherous.'"

White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 141 (1980)

(quoting Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148

(1973)).

Generalizations are no less treacherous today, almost two

decades later. We tread cautiously and write narrowly, for the

problems
and
conflicting interests presented by this case will not

be the same as the problems and interests presented by the next

case.

Context informs our approach. This is not a dispute between

Maine and the Nation over the attempted enforcement of Maine's

laws.

This
does
not
involve a direct or indirect regulation of the

Nation
by
Congress.

This is also not a dispute over application of

statutory rights Congress may have wished to apply uniformly,

regardless of whether the application involved Indian lands or

Indian government. This is not an instance of potential conflict

12

or
coincidence
of
Maine
law and federal statutory law. This is not

even a situation of substantive rights regarding stumpage permits

granted to persons by statute, state or federal. This is instead

a question of allocation of jurisdiction among different fora and

allocation of substantive law to a dispute between tribal members

where
neither the Congress nor the Maine Legislature has expressed

a particular interest. The federal courts have jurisdiction over

this case only if the stumpage permits are not internal tribal

matters.

The five considerations outlined earlier, taken together,

resolve the question in favor of this being an internal tribal

matter and do so as a matter of law. Though future cases may

require some exploration of evidence as to whether the underlying

subject is an internal tribal matter before decision of the

jurisdictional question, this case does not.

Of
great
significance
is
that this is an intra-tribal dispute.

It involves only members of the tribe, and not actions by the

Nation addressed to non-members. The tribe's treatment of its

members,
particularly
as
to commercial interests, is not of central

concern to either Maine or federal law (other than through the

ICRA). There appear to be no strong policy reasons not to view

this as an area appropriate for internal tribal regulation.

Secondly, the subject matter appears to be one which the

settlement statutes viewed as being within legitimate tribal

concern;
both
the
Implementing Act, S 6203, and the Settlement Act,

S
1722,
define
"land
and
other natural resources" as meaning, inter

13

alia, "timber and timber rights."6 The Settlement Act provides

that the natural resources within the Penobscot Indian Territory

may, at the request of the Nation, be leased, sold, or subject to

right of way, in accord with other sections of Title 25. See 25

U.S.C. S 1724(g). It has long been understood that the power to

issue
permits
is
an
indirect method of managing a natural resource.

See California Coastal Comm'n v. Granite Rock Co., 480 U.S. 572

(1987). To a large extent, the subject matter here involves the

regulation and conservation of natural resources belonging to the

tribe.

Third,
the
subject matter, involving tribal lands, appears to

have
no
impact
on
Maine's environmental or other interests. By its

own terms, the Implementing Act, S 6204, makes state laws

regulating land use or management, conservation and environmental

protection
applicable
to
tribal lands. The absence of an assertion

that
any
such
laws
are
involved here is telling. Cf. Narragansett,

89 F.3d at 922 (enjoining construction of housing until the tribe

complied with the requirements of state coastal resources

management program). Under such circumstances, arguments about

history, which may be pertinent in other contexts and for

addressing other problems,7 offer little here.

6. That language is used in part to define the meaning of Indian
lands and used to extinguish claims that much earlier transfers
of lands had not complied with the Trade and Intercourse Act of
1790, and other claims. See 25 U.S.C. S 1723.

7. Debates about the role to be played by historical and
anthropological evidence in Indian cases are not new. In the
trial court in Santa Clara, such evidence was explored, and
commentators have questioned whether it is relevant to the issue

14

We test our conclusions against a different history, the

legislative history, because the language of the Implementing and

Settlement
Acts
does
not
clearly dispose of the question. See Blum

v. Stenson, 465 U.S. 886, 896 (1984) ("Where, as here, resolution

of a question of federal law turns on a statute and the intention

of Congress, we look first to the statutory language and then to

the legislative history if the statutory language is unclear.");

Penobscot Indian Nation v. Key Bank, 112 F.3d 538, 548 (1st Cir.

1997) (inquiry into legislative history is "particularly

appropriate in the context of federal Indian law"); Massachusetts

v. FDIC, 102 F.3d 615, 620 (1st Cir. 1996). That legislative

history is only somewhat helpful because it embodies two

conflicting approaches to resolving the question of what is an

internal tribal matter. On the one hand, Congress described the

settlement
as "original" and "innovative." On the other hand, the

Congress referred to respecting the inherent self-governing

authority
of
a tribe. In so doing, it referred to a Supreme Court

opinion, Santa Clara Pueblo, 436 U.S. 49 (1978).

We
look
to
the
Committee
Report of the Senate Select Committee

on Indian Affairs concerning the Settlement Act. See Garcia v.

United
States, 469 U.S. 70, 76 (1984) (Committee Reports on a bill

are
authoritative
source
for determining legislative intent). That

report
explains that the "treatment of the Passamaquoddy Tribe and

Penobscot
Nation in the Maine Implementing Act is original. It is

an innovative blend of customary state law respecting units of

of sovereignty. See Resnik, 56 U. Chi. L. Rev. at 705-09.

15

local government coupled with a recognition of the independent

source of tribal authority, that is, the inherent authority of a

tribe to be self-governing." S. Rep. No. 96-957, at 29 (1980)

(citing Santa Clara Pueblo, 436 U.S. 49).

In
the
final
Committee
Reports on the Settlement Act, both the

House and the Senate addressed the Nation's concern that "the

settlement amounts to a 'destruction' of the sovereign rights and

jurisdiction
of the . . . Penobscot Nation." S. Rep. No. 96-957,

at 14; H.R. Rep. No. 96-1353, at 14-15 (1980). Before the

settlement,
the federal government had not formally recognized the

Penobscot
Nation
as
an
Indian tribe and the State of Maine had long

assumed that the Maine tribes had no inherent sovereignty. See

Bottomly v. Passamaquoddy Tribe, 599 F.2d 1061, 1063-65 (1st Cir.

1979). The Reports state that "While the settlement represents a

compromise in which state authority is extended over Indian

territory to the extent provided in the Maine Implementing Act, .

.
.
the
settlement
provides that henceforth the tribes will be free

from
state
interference in the exercise of their internal affairs.

Thus, rather than destroying the sovereignty of the tribes, by

recognizing
their
power
to control their internal affairs . . . the

settlement strengthens the sovereignty of the Maine Tribes." S.

Rep. No. 96-957, at 14; H.R. Rep. No. 96-1353, at 14-15.

The Committee Report also referred to the Santa Clara Pueblo

case,
which
concerned whether Title I of the ICRA authorized civil

actions in the federal courts to enforce its substantive

provisions. At issue was the definition of tribal membership,

16

which the tribe extended to children of males who married outside

the tribe but not to children of females who married outside the

tribe.

The
Supreme
Court held that the ICRA vested jurisdiction in

the
tribal
courts
and
not the federal courts. The Court recognized

both
that
Congress
had
the power to limit the powers of local self-

government
that tribes possessed and that Congress intended in the

ICRA to balance dual objectives. Under such circumstances, the

Court
would
not infer from Congressional silence a cause of action

in the federal courts.

Congress' citation to the Santa Clara Pueblo opinion in the

Senate
Report
reinforces
the tension between the dual objectives of

the Settlement Act: between an original, innovative allocation of

authority
between the State and tribes and the desire to recognize

the
tribe's
inherent
self-government authority. From Congressional

silence we are hesitant to read an intent to expand federal court

jurisdiction
where
it
appears, as it does here, that inherent self-

governing authority of a tribe is involved. We stress that we do

not read the reference by Congress to Santa Clara Pueblo in the

legislative
history of the Settlement Act as invoking all of prior

Indian law. That would be inconsistent with the unique nature of

the Maine settlement and the specific provisions of the Act

limiting
the
application
of federal Indian law. But we also do not

agree
that
reference to such law is never helpful in defining what

is an internal tribal matter. Congress was explicitly aware of

such law, and explicitly made existing general federal Indian law

applicable
to
the
Penobscot Nation in the Settlement Act. In other

17

areas, courts have long presumed that Congress acts against the

background of prior law. See, e.g., Clarke v. Securities Indus.

Ass'n
,
479
U.S.
388,
405
(1987); Kolster v. INS, 101 F.3d 785, 787-

88 (1st Cir. 1996).

General federal Indian caselaw supports our conclusion. The

cases uniformly recognize the importance of the factors we have

stressed:
that
the
issue
involves matters between tribe members and

matters of the economic use of natural resources inherent in the

tribal
lands. "When on-reservation conduct involving only Indians

is at issue, state law is generally inapplicable, for the State's

regulatory interest is likely to be minimal and the federal

interest in encouraging tribal self-government is at its

strongest." White Mountain Apache Tribe, 448 U.S. at 144. In

White
Mountain Apache, a non-Indian logging company challenged the

applicability of state taxes to its exclusively on-reservation

operations. The Court said that the tradition of Indian

sovereignty
over
their
reservations informed the determination that

the
exercise
of state authority was preempted by federal law. The

Court reviewed the "basic principles" established by its prior

decisions regarding the "boundaries between state regulatory

authority and tribal self-government." Id. at 141. The Court

emphasized the "significant geographical component to tribal

sovereignty"
and said that "though the reservation boundary is not

absolute, it remains an important factor to weigh in determining

whether
state authority has exceeded the permissible limits." Id.

at 151.

18

Similarly,
in Merrion v. Jicarilla Apache Tribe, 455 U.S. 130

(1982),
the
Court
held
that the tribe had the inherent authority to

impose
a
severance tax on on-reservation mining activities as part

of its power to be self-governing. This power derived from "the

tribe's general authority, as sovereign, to control economic

activity within its jurisdiction" and extended to transactions

"'occurring on trust lands and significantly involving a tribe or

its members . . . .'" Id. at 137 (quoting Washington v.

Confederated Tribes of Colville Indian Reservation, 447 U.S. 134,

152 (1980)).

Where, in contrast, the issue involves tribal attempts to

regulate
non-tribal
members, the Supreme Court has often found that

those
attempts
are
not
within the inherent self-governing powers of

a
tribe.

Mon
tana v. United States, 450 U.S. 544 (1981), held that

the Crow Indians did not have the power to regulate hunting and

fishing by non-Indians on reservation lands owned by non-Indians.

The Court said that the tribal "powers of self-government . . . .

involve
only
the relations among members of a tribe." Id. at 564.

Similarly,
in
Strate

v.
A
-1 Contractors, 117 S. Ct. 1404, 1409

(1997), the Court reaffirmed Montana's holding that, in general,

the inherent sovereign powers of a tribe "'do not extend to the

activities
of
nonmembers
of the tribe.'" (quoting Montana, 450 U.S.

at 565). The Court also noted that "tribes retain considerable

control over nonmember conduct on tribal land." Id. at 1413.

Here, only tribal conduct is at issue.

The legislative history and precedent thus reinforces our

19

conclusion that this dispute involves an "internal tribal matter"

and that, accordingly, no claim is stated under S 1983 or under

Maine law.8

The judgment of the district court is affirmed. Costs to

appellees.

8. Appellants' claims under S 1985(3) and the Declaratory
Judgment Act, 28 U.S.C. SS 2201-02 fail for the same reasons.
Neither statute, in itself, creates a substantive cause of
action. See Great Am. Fed. S. & L. Assn. v. Novotny, 442 U.S.
366, 372 (1979) (S 1985(3)); Colonial Penn Group, Inc. v.
Colonial Deposit Co., 834 F.2d 229, 232 (1st Cir. 1987)
(Declaratory Judgment Act). Appellants must rely on an
independent source for their claims, and there is none present
which is capable of being asserted in federal court.

20