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