Aroostook Band of Micmacs v. Ryan

United States Court of Appeals
For the First Circuit

No. 04-1517

AROOSTOOK BAND OF MICMACS,

Plaintiff, Appellant,

v.

PATRICIA E. RYAN, EXECUTIVE DIRECTOR, MAINE HUMAN RIGHTS
COMMISSION; LINDA E. ABROMSON, WARREN C. KESSLER, KIM C. MILLICK,
AND PAUL K. VESTAL, JR., MEMBERS, MAINE HUMAN RIGHTS COMMISSION;
LISA GARDINER; TAMMY CONDON; BEVERLY AYOOB,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. Margaret J. Kravchuk, U.S. Magistrate Judge]

Before

Lipez, Circuit Judge,
and Coffin and Cyr, Senior Circuit Judges.

Douglas J. Luckerman, with whom Law Office of Douglas J.
Luckerman was on brief, and Gregory P. Dorr, with whom Farrell,
Rosenblatt & Russell was on brief, for appellant.
G. Steven Rowe, Attorney General, with whom Christopher
C. Taub, Assistant Attorney General, and Paul Stern, Deputy
Attorney General, were on brief, for appellees.

April 13, 2005
 LIPEZ, Circuit Judge. This case requires us to decide

whether a federal court has jurisdiction to hear an Indian tribe's
suit to stop a state agency from investigating tribal employees'

complaints of workplace discrimination. The Maine Human Rights

Commission has investigated complaints by three former employees of
the Aroostook Band of Micmacs, and asserts that it has the

authority to investigate any future complaints, pursuant to Maine

antidiscrimination law. The Band filed this action for injunctive

and declaratory relief against the Commission's investigations,

arguing that such investigations impermissibly encroach upon the

Band's inherent tribal sovereignty, congressionally-affirmed right

to self-governance without state interference, and sovereign

immunity from judicial or quasi-judicial proceedings. The district

court concluded that the Band's complaint did not invoke a right to

relief under federal law, but rather invoked affirmative federal

defenses to state law actions, and therefore did not satisfy the

well-pleaded complaint rule. Consequently, the court dismissed the

action for lack of subject matter jurisdiction. We reverse.
I.

The Aroostook Band of Micmacs is a federally recognized

Indian tribe. Over a four month span in 2001, the Band fired three

tribal employees: Chief Financial Officer Lisa Gardiner, Compliance
Officer Tammy Condon, and Housing Director Beverly Ayoob. Pursuant
to internal tribal procedure, Gardiner and Condon appealed the

Band's termination decisions to the Band's Tribal Council, claiming
that they were terminated in retaliation for protected activities;

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the Tribal Council affirmed their terminations. Ayoob, who had

filed a sexual harassment charge with the Tribal Council before

being terminated, did not challenge her termination.1

The three ex-employees turned to the Maine Human Rights

Commission, a state agency charged with "investigating all forms of

invidious discrimination." Me. Rev. Stat. Ann. tit. 5, § 4566.

Upon receipt of a private complaint of discrimination, the

Commission conducts a preliminary investigation to "determine

whether there are reasonable grounds to believe that unlawful

discrimination has occurred." Id. § 4612(1)(B). The target of the

investigation must cooperate:

[T]he commission . . . shall have access at
all reasonable times to premises, records,
documents, individuals and other evidence or
possible sources of evidence and may examine,
record and copy those materials and take and
record the testimony or statements of such
persons as are reasonably necessary for the
furtherance of the investigation. The
commission may issue subpoenas to compel
access to or production of those materials or
the appearance of those persons, . . . and may
serve interrogatories on a respondent to the
same extent as interrogatories served in aid
of a civil action in the Superior Court.

Id. If the Commission determines that there are "reasonable
grounds to believe that unlawful discrimination has occurred," it

first attempts to broker a conciliation. Id. § 4612(3). If

conciliation fails, the Commission may "file in the Superior Court

a civil action seeking such relief as is appropriate, including

temporary restraining orders." Id. § 4612(4). Whether or not it

1
Because of the narrow jurisdictional nature of this appeal,
the substance of the discrimination charges is not relevant.
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does so, "[t]he complaint and evidence collected during the

investigation of the complaint . . . shall become a matter of

public record at the conclusion of the investigation. . . . [and]
may be used as evidence in any subsequent proceeding, civil or

criminal." Id. § 4612(1)(B). If the Commission does not itself

file a civil action -- and it usually does not -- the complainant

may file an action herself. Id. § 4621.2
In the fall of 2001, Gardiner and Condon filed complaints

with the Commission alleging employment discrimination on the basis

of race, color, and national origin, as well as retaliation, under

the Maine Human Rights Act (MHRA), Me. Rev. Stat. Ann. tit. 5,

§§ 4551-4634, and the Maine Whistleblowers' Protection Act (MWPA),
Me. Rev. Stat. Ann. tit. 26, §§ 831-840. In the summer and fall of
2002, Ayoob filed two complaints alleging employment discrimination

and retaliation under the MHRA and MWPA. In each case, shortly
after receiving the individual's complaint, the Commission filed
charges on the complainant's behalf with the United States Equal

Employment Opportunity Commission (EEOC) under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e-5.
The Band asked the Commission to dismiss all four

complaints on the grounds that it lacked jurisdiction over the

Band. The Commission refused, concluding that it had jurisdiction

2
While the complainant can skip the Commission altogether and
proceed straight to court, Maine law provides a significant
incentive not to do so. Successful court plaintiffs can recover
attorney's fees, civil penal damages, compensatory damages, or
punitive damages only if they had exhausted their Commission
remedies before filing suit. Id. § 4622(1).

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because the Band is subject to the MHRA, the MWPA, and, for

Gardiner and Condon's complaints, Title VII. It investigated the

complaints, and on at least two occasions issued document requests
to the Band seeking a variety of tribal personnel documents. The

Band complied with those requests.

In January 2003, the Commission's investigator issued a

report suggesting that there were no reasonable grounds to believe

that the Band had discriminated or retaliated against Gardiner or

Condon. Before the full Commission could rule on the report, the

Band filed a complaint in the United States District Court for the

District of Maine against the executive director and members of the

Commission (collectively, "Maine"), and the three individual
complainants, seeking declaratory and injunctive relief directing
the Commission to (1) dismiss the complaints on the ground that the

Band is not subject to the MHRA or MWPA, and (2) stop filing
complaints against the Band with the EEOC. The complaint, as
amended, pled five claims: that the enforcement of the MHRA and

MWPA against the Band violates its inherent tribal sovereignty and
statutorily codified right to self-governance (Count I); that the
enforcement of these state laws against the Band violates its

tribal sovereign immunity (Count II);3 that the Band is exempt from

3
The complaint relies on three similarly-named but distinct
doctrines: tribal sovereignty, tribal sovereign immunity, and a
statutory right to self-governance. Although we explain the
differences between these below in detail, see infra Parts IV.B-C,
we provide thumbnail definitions here. Tribal sovereignty is a
common law doctrine recognizing tribes' inherent powers to self-
govern, including the power to determine the structure and internal
operations of the governing body itself, and exempting tribes from
state law that would otherwise infringe upon this sovereignty.
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Title VII (Count III); that the Band's exemption from Title VII

preempts state antidiscrimination law, and so, regardless of what

the MHRA and MWPA say, the Band is not subject to them (Count IV);
and that, even under the MHRA and MWPA's own terms, the Band is not

an "employer" (Count V).

Shortly after the complaint was filed, the Commission

determined that, contrary to its investigator's initial report,

there were reasonable grounds to believe that Gardiner and Condon

had been retaliated against based on protected conduct. Meanwhile,

Gardiner and Condon filed suit against the Band in Aroostook County

Superior Court.4 That court stayed the action pending the outcome

of the federal litigation.5
In federal court, the parties consented to adjudication
by a United States Magistrate Judge, and cross-moved for summary

judgment. Although both parties addressed the merits of the Band's
claims, Maine also argued that the lawsuit should be dismissed for
lack of subject matter jurisdiction.6 In February 2004, the

Tribal sovereign immunity is a common law doctrine providing that
tribes are immune from lawsuits or quasi-judicial proceedings
without their consent or Congressional waiver. Finally, the Band
claims a statutory right to self-governance deriving from Section
7(a) of the Federal Micmac Settlement Act, which provides that the
Band "may organize for its common welfare and . . . act[] in its
governmental capacity." 105 Stat. at 1148. According to the Band,
this provision reaffirms and codifies the common law doctrine of
tribal sovereignty as it applies to the Band.

4
Again, the merits are not relevant here.
5
At that point, the Commission had not yet made a
determination regarding Ayoob's complaint.

6
The record does not reveal why Maine did not argue lack of
subject matter jurisdiction earlier, by filing a motion to dismiss
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district court ruled that it lacked subject matter jurisdiction

over the complaint. See Aroostook Band of Micmacs v. Exec. Dir.

Me. Human Rights Comm'n, 307 F. Supp. 2d 95, 96 (D. Me. 2004)
("Micmacs"). Specifically, the district court concluded that

Counts I and II did not raise questions "arising under" federal law

as required by the applicable jurisdictional statutes, and that

Counts III and IV did not allege a justiciable case or

controversy.7 Consequently, the court dismissed the entire action.
See Fed. R. Civ. P. 12(h)(3) (court must dismiss action upon

determining, at any point, that it lacks subject matter

jurisdiction). The Band timely appealed.
II.

The tribal-state relationship between Maine and the
Indian tribes located within its borders is complex. The Band's

relationship with the state is particularly complex. We provide a
brief summary of the recent history of that relationship, and
include some background concerning three other Maine tribes, to set

the stage for the legal analysis that follows.

under Fed. R. Civ. P. 12(b)(1). At any rate, it was proper to
raise the issue at summary judgment. Subject matter jurisdiction
may be challenged at any stage. Fed. R. Civ. P. 12(h)(3).

7
The Band apparently concedes that Count V does not present a
federal claim. We address later the possibility (not argued by the
state) that the federal courts should abstain pending resolution of
the state law claim, which might render resolution of the federal
issues unnecessary. See infra Part VI.

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A. The 1980 Legislation

In the 1970s, two tribes -- the Penobscot Nation and the

Passamaquoddy Tribe -- filed suit claiming much of Maine as their
ancestral homelands. See generally Penobscot Nation v. Fellencer,

164 F.3d 706, 707-08 (1st Cir. 1999) (recounting history). Neither

tribe was federally recognized at that point. The Aroostook Band

of Micmacs was not represented by counsel at the time and was not

a party to the litigation.8
In 1980, with the aid of the United States, the

Penobscots and the Passamaquoddy reached a compromise with Maine.

A third tribe, the Houlton Band of Maliseet Indians, which had not

filed suit but was represented by counsel and had a potential
claim, was later included in the compromise. See S. Rep. No. 101-

291 (1990). The resulting settlement was embodied in the Maine

Implementing Act, Me. Rev. Stat. Ann. tit. 30, §§ 6201-14; see also

25 U.S.C. § 1721(a)(8) ("The State of Maine, with the agreement of
the Passamaquoddy Tribe and the Penobscot Nation, has enacted

legislation defining the relationship between the Passamaquoddy
Tribe, the Penobscot Nation, and their members, and the State of
Maine."); Houlton Band of Maliseet Indians v. Me. Human Rights

Comm'n, 960 F. Supp. 449, 451-52 (D. Me. 1997).

Under the Act -- which affected "all Indians, Indian

nations, and tribes and bands of Indians in the State," Me. Rev.

Stat. Ann. tit. 30, § 6204, not just the named tribes -- the

8
Apparently there was some confusion as to whether the
Aroostook Band of Micmacs was distinct from the larger Canadian
Band of Micmacs. See generally S. Rep. No. 101-291 (1990).

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Penobscots and the Passamaquoddy received somewhat more

advantageous terms than the Maliseets. The Penobscots and the

Passamaquoddy obtained territory and all the governmental rights
and powers of municipalities within Maine. See id. §§ 6205, 6206,

6211. By contrast, the Maliseets received only land held in trust

for them by the United States, and no municipal powers. See id.

§§ 6205-A, 6206-A.

In exchange for what the tribes received, and "partly as

a result of the Tribes' disputed status, the State of Maine, as

part of the settlement, obtained legal authority over the Tribes

exceeding the usual state authority over native American tribes."

Penobscot Nation v. Georgia-Pac. Corp., 254 F.3d 317, 320 (1st Cir.
2001) ("Penobscot Nation II"), aff'g 106 F. Supp. 2d 81, 82-83 (D.

Me. 2000) ("Penobscot Nation I"). Here, too, the tribes did not

receive equally favorable treatment. For reasons that will become
apparent later, we highlight the special status of the Maliseets.
Before the passage of the Maine Implementing Act, neither

Maine nor the United States had officially recognized the
Maliseets, and Maine was reluctant to accord them special status.
Instead, the Act subjected the Maliseets to Maine law to a greater

degree than the Penobscots or the Passamaquoddy. The Maliseets

were subject to a default clause applicable to all Indian tribes:

Except as otherwise provided in this Act, all
Indians, Indian nations, and tribes and bands
of Indians in the State . . . shall be subject
to the laws of the State and to the civil and
criminal jurisdiction of the courts of the
State to the same extent as any other person
or lands or other natural resources therein.

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Me. Rev. Stat. Ann. tit. 30, § 6204. However, the Penobscots and

Passamaquoddy benefitted from an important exception: for those two

tribes, "internal tribal matters, including . . . tribal
organization, [and] tribal government . . . shall not be subject to

regulation by the State." Id. § 6206(1). By contrast, the

Maliseets received no such privilege. Rather, the Act emphasized

that "[t]he Houlton Band of Maliseet Indians and its lands will be

wholly subject to the laws of the State." Id. § 6202.

Congress ratified the settlement through the Maine Indian

Claims Settlement Act ("MICSA"), 25 U.S.C. §§ 1721-1735. Among

MICSA's purposes were "to ratify the Maine Implementing Act" and

"to confirm that all other Indians, Indian nations and tribes and
bands of Indians now or hereafter existing or recognized in the
State of Maine are and shall be subject to all laws of the State of

Maine." Id. §§ 1721(b)(3)-(4). MICSA reiterated the distinction
between the Maliseets and the other two tribes as to applicability
of Maine law:

Except as provided in [two provisions not
relevant here], all Indians, Indian nations,
or tribes or bands of Indians in the State of
Maine, other than the Passamaquoddy Tribe, the
Penobscot Nation, and their members . . .
shall be subject to the civil and criminal
jurisdiction of the State, the laws of the
State, and the civil and criminal jurisdiction
of the courts of the State, to the same extent
as any other person or land therein.

Id. § 1725(a).9

9
We have also assumed that MICSA implicitly incorporates into
federal law the "internal tribal matters" exception of the Maine
Implementing Act as it applies to the Penobscots and the
Passamaquoddy. See Penobscot Nation II, 254 F.3d at 320-21.

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B. The Micmac Legislation

Approximately ten years later, the Band filed aboriginal

land claims against Maine. In 1989, Maine and the Band reached a
settlement that was memorialized in the Micmac Settlement Act, Me.

Rev. Stat. Ann. tit. 30, §§ 7201-7207. The Act generally accorded

the Band the same status as the Maliseets, not the greater powers

and autonomy enjoyed by the Penobscots and the Passamaquoddy. See

id. §§ 7203 (subjecting Band to state laws and court jurisdiction

without exception), 7204 (land to be held in trust by United

States), 7205 (no municipal powers for Band).

In 1991, at the behest of both Maine and the Band,

Congress enacted the Aroostook Band of Micmacs Settlement Act
("Federal Micmac Settlement Act"), Pub. L. No. 102-171, 105 Stat.
1143 (codified at 25 U.S.C. § 1721 note). The Federal Micmac

Settlement Act explained that "[t]he Band was not referred to in
[MICSA] because historical documentation of the Micmac presence in
Maine was not available at that time." Id. § 2(a)(2), 105 Stat. at

1143. Now that such documentation was available, Congress found
that "[t]he Aroostook Band of Micmacs, in both its history and its
presence in Maine, is similar to the Houlton Band of Maliseet

Indians and would have received similar treatment under [MICSA] if

the information available today had been available to Congress and

the parties at that time." Id. § 2(a)(4). Consequently, the

Federal Micmac Settlement Act aimed to "afford the Aroostook Band

of Micmacs the same settlement provided to the Houlton Band of

Maliseet Indians for the settlement of that Band's claims, to the

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extent [the Micmacs] would have benefited from inclusion in

[MICSA]." Id. § 2(a)(5). On this basis, Congress "ratif[ied] the

[state] Micmac Settlement Act, which defines the relationship
between the State of Maine and the Aroostook Band of Micmacs." Id.

§ 2(b)(4), 105 Stat. at 1144.

Three provisions of the Federal Micmac Settlement Act are

relevant here. First, the Act provides for self-governance: "The

Band may organize for its common welfare and adopt an appropriate

instrument in writing to govern the affairs of the Band when acting

in its governmental capacity." Id. § 7(a), 105 Stat. at 1148.
Second, despite Congress's stated desire to provide the

Band with "the same settlement provided to the Houlton Band of
Maliseet Indians for the settlement of that Band's claims," id.

§ 2(a)(5), 105 Stat. at 1143, the Federal Micmac Settlement Act

does not explicitly subject the Band to Maine law. Section 6(b) of
the federal act, entitled "Laws Applicable," subjects the Band to
federal law on the same terms as the other Maine tribes. 105 Stat.

at 1148. Nothing in the federal act explicitly subjects the Band
to Maine law. By contrast, the earlier MICSA explicitly stated
that all Indian tribes other than the Passamaquoddy and Penobscots

"shall be subject to the civil . . . jurisdiction of the State, the

laws of the State, and the civil . . . jurisdiction of the courts

of the State, to the same extent as any other person or land

therein." 25 U.S.C. § 1725(a); id. § 1721(b)(4).

Finally, the federal act provided that "[i]n the event of

a conflict of interpretation between the provisions of the [state]

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Maine Implementing Act [affecting the Penobscots, Passamaquoddy,

and Maliseets], the [state] Micmac Settlement Act, or the [federal]

Maine Indian Claims Settlement Act of 1980 and this Act, the
provisions of this [Federal Micmac Settlement] Act shall govern."

Federal Micmac Settlement Act § 11, 105 Stat. at 1149.
III.

Although the issues raised in the Band's complaint go to

the heart of its relationship with Maine, this appeal is narrow.

As noted, the district court did not reach the merits; rather, it

dismissed the complaint for lack of subject matter jurisdiction.

Consequently, we do not decide whether the Band's claims have

merit, but only whether the district court had subject matter
jurisdiction over those claims. In so doing, we review de novo the

district court's dismissal. Wang v. N.H. Bd. of Registration in

Med., 55 F.3d 698, 700 n.3 (1st Cir. 1995). "In reviewing the
dismissal, we construe the Complaint liberally and treat all
well-pleaded facts as true, according the plaintiff the benefit of

all reasonable inferences." Murphy v. United States, 45 F.3d 520,

522 (1st Cir. 1995).
Counts I and II against the Commission defendants were

dismissed under the well-pleaded complaint rule. Counts III and IV

were dismissed for lack of a justiciable case or controversy. We

divide our analysis accordingly.
IV.

The Band's action seeks to enjoin state officials from

enforcing the MHRA and MWPA on the grounds that enforcing those

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acts against the Band conflicts with federal law and thus violates

the Supremacy Clause of the United States Constitution.10 See

generally Ex parte Young, 209 U.S. 123, 144-45 (1908) (authorizing
such actions). We must decide whether the complaint pleads an Ex

parte Young claim in a manner that establishes federal

jurisdiction.11

The Band bases its claim of federal jurisdiction on 28

U.S.C. §§ 1331 and 1362. Section 1331 grants the district courts

jurisdiction over "all civil actions arising under the

Constitution, laws, or treaties of the United States." Section

1362 grants the district courts jurisdiction over "all civil

actions, brought by any Indian tribe or band with a governing body
duly recognized by the Secretary of the Interior, wherein the
matter in controversy arises under the Constitution, laws, or

treaties of the United States." The district court dismissed

Counts I and II on the grounds that they did not satisfy either

§§ 1331 or 1362 under the well-pleaded complaint rule.

10
"This Constitution, and the Laws of the United States which
shall be made in Pursuance thereof . . . shall be the supreme Law
of the Land; and the Judges in every State shall be bound thereby,
any Thing in the Constitution or Laws of any State to the Contrary
notwithstanding." U.S. Const., art. VI, cl. 2.

11
The complaint pleads a violation of 42 U.S.C. § 1983, but the
Band appears to have abandoned that argument as the litigation
progressed. In light of the Supreme Court's recent statement that
a "Tribe may not sue under § 1983 to vindicate the sovereign right"
of tribal sovereign immunity, Inyo County v. Paiute-Shoshone
Indians, 538 U.S. 701, 712 (2003), the Band probably would not have
a colorable § 1983 argument here. At any rate, in its appellate
brief, the Band barely mentions § 1983, and we deem any potential
§ 1983 argument to be forfeited. See United States v.
Caraballo-Cruz, 52 F.3d 390, 393 (1st Cir. 1995).
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A. The Well-Pleaded Complaint Rule and Ex parte Young

The Supreme Court has long construed § 1331 to require

"that it be apparent from the face of the plaintiff's complaint
either that a cause of action arise under federal law, or at least

(in some cases) that a traditional state-law cause of action . . .

present an important federal issue." Penobscot Nation II, 254 F.3d

at 321 (citation omitted). Under this rule, "the federal claim or

issue [must] appear on the face of 'a well [i.e., properly] pleaded

complaint,' so that federal jurisdiction is absent where the

federal issue would arise only as a defense to a state cause of

action." Id. (quoting Louisville & Nashville R.R. v. Mottley, 211
U.S. 149, 153-54 (1908)) (second alteration in original). The same
rule applies to claims filed in state court and then removed to
federal court under 28 U.S.C. § 1441. Rossello-Gonzalez v.

Calderon-Serra, 398 F.3d 1, 10 (1st Cir. 2004) ("[I]n deciding (for
removal purposes) whether a case presents a federal 'claim or
right,' a court is to ask whether the plaintiff's claim to relief

rests upon a federal right, and the court is to look only to
plaintiff's complaint to find the answer.") (quotation marks and

citation omitted).

As noted, the Supreme Court has long recognized a federal

cause of action for allegations that a state officer's enforcement

of state law would violate federal rights. See Ex parte Young, 209

U.S. at 144-45. While the Court did not identify a specific

federal cause of action in Ex parte Young itself, "'[t]he best

explanation of Ex parte Young and its progeny is that the Supremacy

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Clause creates an implied right of action for injunctive relief

against state officers who are threatening to violate the federal

Constitution or laws.'" Burgio & Campofelice, Inc. v. N.Y. State

Dep't of Labor, 107 F.3d 1000, 1006 (2d Cir. 1997) (quoting Charles

Alan Wright et al., 13B Federal Practice & Procedure: Jurisdiction

2d § 3566 (1984)); see also Local Union No. 12004 v. Massachusetts,

377 F.3d 64, 75 & n.8 (1st Cir. 2004) (no "explicit statutory cause

of action" is needed for an Ex parte Young action because "'the

rule that there is an implied right of action to enjoin state or

local regulation that is preempted by a federal statutory or

constitutional provision -- and that such an action falls within

the federal question jurisdiction -- is well-established.'"
(quoting Richard H. Fallon et al., Hart & Wechsler's The Federal

Courts & The Federal System 903 (5th ed. 2003)).

It is simply beyond dispute that a complaint which
properly pleads a claim for relief against state officers under the
Ex parte Young implied right of action will satisfy the well-

pleaded complaint rule. See Verizon Md., Inc. v. Pub. Serv.
Comm'n, 535 U.S. 635, 642 (2002) (there is "no doubt that federal
courts have jurisdiction under § 1331" over an action seeking

declaratory and injunctive relief against state officials on the

grounds that a state regulation was preempted by federal law); Shaw

v. Delta Air Lines, Inc., 463 U.S. 85, 96 n.14 (1983) (in unanimous

decision, stating that it is "beyond dispute that federal courts

have jurisdiction over suits to enjoin state officials from

interfering with federal rights"); Local Union No. 12004, 377 F.3d

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at 74 (Verizon Maryland "eliminates any doubt" that declaratory or

injunctive actions against state officials to prevent interference

with federal rights qualify for § 1331 jurisdiction);12 Playboy

Enters. v. Pub. Serv. Comm'n, 906 F.2d 25, 30-31 (1st Cir. 1990)

(reiterating, despite some uncertainty as to why Supreme Court

jurisprudence developed as it did, that federal courts have

jurisdiction over an action by "a plaintiff seeking injunctive

relief from a state enforcement action, on the ground that state

law is preempted by a federal statute").

The above propositions are well-settled and our

discussion of jurisdictional principles could end here. After all,

we have identified a federal cause of action that will qualify for
§ 1331 jurisdiction; the only remaining question is whether the
Band's complaint properly pleads such an action. However, Maine

argues that the principles established in a different line of cases
require dismissal. We explain below why Maine's arguments fail.
In doing so, we emphasize two fundamental principles. First, under

the well-pleaded complaint rule, the plaintiff's complaint is the

document in which the federal claim must appear, regardless of

12
In Local Union No. 12004, a supervisor filed a complaint
against a labor union with the Massachusetts Commission Against
Discrimination ("MCAD") based on alleged sexual harassment during
the course of a labor dispute. 377 F.3d at 69-70. MCAD rejected
the union's argument that the complaint was preempted by federal
labor law. Id. at 70-71. The union then filed a federal action
against MCAD, three commissioners, and the complainant, seeking an
injunction and a declaratory judgment that MCAD's proceedings were
preempted by federal law. Id. at 71. We held that the union's
claims against "a state administrative agency for declaratory and
injunctive relief, alleging that the agency has acted in a manner
inconsistent with federal law," asserted an Ex parte Young claim
and thus satisfied the well-pleaded complaint rule. Id. at 75.
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whether that complaint was filed in federal court pursuant to

§ 1331, or filed in state court and then removed to federal court

pursuant to § 1441. Second, by definition, an Ex parte Young

action can only be brought against state officer defendants; the

Supremacy Clause implies no right of action against private

parties, or by state officers.

By focusing on these points, we can make some sense out

of the array of cases invoked by Maine in support of its argument

that the Band's complaint runs afoul of the well-pleaded complaint

rule. The cases upon which Maine relies -- wherein federal

jurisdiction was lacking -- are, quite simply, not Ex parte Young
cases. These cases fall into three groups: cases where state
officers were not parties at all; cases where state officers were
plaintiffs, not defendants; and cases where state officers were

defendants, but there was some other serious flaw in the complaint
such that Ex parte Young was not properly pled.

1. State officers not parties

Several of the cases on which Maine relies did not even
involve state officers -- they were between private parties, or
between a tribe and a private party. See Skelly Oil Co. v.

Phillips Petroleum Co., 339 U.S. 667 (1950) (private party v.

private party); TTEA v. Ysleta Del Sur Pueblo, 181 F.3d 676 (5th

Cir. 1999) (private party v. tribe); Colonial Penn Group, Inc. v.

Colonial Deposit Co., 834 F.2d 229 (1st Cir. 1987) (private party

v. private party). In such cases, the Ex parte Young cause of

action is not available. Therefore, the private plaintiffs' only

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federal cause of action in those cases was the Declaratory Judgment

Act itself. In such cases, "[w]hatever federal claim [plaintiff]

may be able to urge would in any event be injected into the case
only in anticipation of a defense to be asserted by [defendants],"

and the Declaratory Judgment Act does not provide an independent

basis for jurisdiction. Skelly Oil, 339 U.S. at 672.

State officers were also absent from Penobscot Nation

I/II, the primary case upon which the district court relied in

finding that it lacked subject matter jurisdiction. See Micmacs,

307 F. Supp. 2d at 98-101. That was a suit by a tribe against a

private party.13 Indeed, the district court recognized in that case

that "[i]f the Tribes were seeking to enjoin state officials,
federal jurisdiction would exist, but . . . where, as here, private
parties are defendants," Ex parte Young analysis does not apply.

Penobscot Nation I, 106 F. Supp. 2d at 83 n.4.
Simply put, where state officers are not even parties --
let alone defendants -- the Ex parte Young cause of action is

unavailable. That is the context in which we stated that the well-
pleaded complaint rule "cannot be avoided by having the beneficiary
of the [federal] defense assert the defense preemptively in a claim

for declaratory or injunctive relief." Penobscot Nation II, 254

13
In Penobscot Nation I/II, paper companies threatened to sue
two tribes in Maine court to compel them to turn over certain
documents pursuant to state law. The tribes sued first in federal
court, "seeking an injunction against any state court lawsuit and
a declaratory judgment that the Maine Freedom of Access Act
violates 'their federal right to be free of such state
regulation.'" Penobscot Nation I, 106 F. Supp. 2d at 82 (citation
omitted).
-19-
F.3d at 321. Consequently, Penobscot Nation I/II -- which Maine

describes as "much like this case" -- is in fact completely unlike

this case for jurisdictional purposes.
2. State officers as plaintiffs

In the second class of cases, state officers sue a

private party in state court and the defendant removes to federal

court. See Okla. Tax Comm'n v. Graham, 489 U.S. 838 (1989) (per

curiam) (state agency v. tribe in state court);14 Franchise Tax Bd.

v. Constr. Laborers Vacation Trust, 463 U.S. 1 (1983) (state agency

v. private party in state court).15 For jurisdictional purposes,

two problems confront such defendants: first, by definition, the

action is not an Ex parte Young action, since it has been brought
by state officers, not against them; second, it is the state

plaintiff's complaint, not the defendant's answer or motion to

dismiss, that is analyzed under the well-pleaded complaint rule.
In Graham and Franchise Tax Board, the state's complaint pled only

14
In Graham, the state's cause of action derived from Oklahoma
tax law. The tribe removed to federal court and raised tribal
sovereign immunity as a defense. See 489 U.S. at 839.

15
In Franchise Tax Board, a state tax agency, seeking to
collect unpaid taxes from union members, attempted to levy the sums
from the members' accounts in the union's vacation trust. The
trust resisted, claiming that the accounts were protected from
state levies by the Employee Retirement Income Security Act of 1974
(ERISA), 29 U.S.C. § 1144(a). The agency sued the trust in state
court for the unpaid sums and a declaratory judgment that ERISA did
not preempt the state's authority to levy against the trust; the
trust removed to federal court. See 463 U.S. at 3-7. The Supreme
Court ruled that the state's claim for damages arose under state
law, and federal law arose only as a defense. See id. at 13-14.
Regarding the state's declaratory judgment claim, the Court held
that a state law claim with a federal law defense cannot be
converted to a federal claim by seeking a declaratory judgment that
the federal defense does not apply. See id. at 14-22.

-20-
state claims, and hence there was no jurisdiction under § 1331.

Such removal cases have no bearing on an Ex parte Young action.16

Indeed, for Ex parte Young purposes, this class of cases

is formally identical to the previous class: the defendant is not

a state officer. We have described it separately, however, because

of a curious asymmetry. If a private party files an action against

state officers alleging that their enforcement of state law

violates the private party's federal rights, that is an Ex parte

Young action and § 1331 jurisdiction is available. But if the

state officers file an action in state court to enforce that very

state law, and the private party seeks to remove to federal court

on the basis of the same preemption argument, that is not an Ex
parte Young action, and there is usually no federal jurisdiction
(unless there is some other basis for jurisdiction).

This asymmetry is, however, a virtually inevitable
consequence of the fact that, even though an Ex parte Young action

is in some ways the mirror image of state prosecution, § 1331

16
Franchise Tax Board itself recognized that had the trust
(defendant in the state court action) brought an Ex parte Young
action instead of removing to federal court, the outcome might well
have been different:

[Defendant] CLVT might have been able to obtain federal
jurisdiction under the doctrine applied in some cases
that a person subject to a scheme of federal regulation
may sue in federal court to enjoin application to him of
conflicting state regulations, and a declaratory judgment
action by the same person does not necessarily run afoul
of the Skelly Oil doctrine.
463 U.S. at 20-21 n.20.
-21-
jurisdiction is determined from the complaint alone.17 In the first
example -- where the private party files an Ex parte Young action

in federal court -- the federal court looks at the plaintiff's
complaint and sees a federal cause of action. In the second

example -- where the state files a state law action in state court

and the private party removes -- the federal court looks at the

plaintiff's complaint and sees only state law issues. While this

asymmetry may yield odd results or incentives to race to the

courthouse, it is a logical consequence of the well-pleaded

complaint rule itself.

3. Some other defect precludes Ex parte Young
jurisdiction
In the third class of cases, the parties are properly

aligned for an Ex parte Young action -- the defendants are state

officers -- but some other defect precludes Ex parte Young

jurisdiction. The leading example of this class is Public Service

17
As one commentator on federal jurisdiction in the Indian law
context has noted:

Graham simply exemplifies the paradox for the well-
pleaded complaint rule presented by Ex parte Young
actions. Had the Tribe proceeded in federal court to
seek injunctive relief against the state officers
imposing the disputed tax, the Tribe would have invoked
federal question jurisdiction, for its affirmative claim
for relief would have been a cognizable federal cause of
action under Ex parte Young, thereby 'arising under'
federal law. But because the Tribe instead tried to
remove the state court action, it was barred by the well-
pleaded complaint rule.

Kaighn Smith, Jr., Federal Courts, State Power, and Indian Tribes:
Confronting the Well-Pleaded Complaint Rule, 35 N.M. L. Rev. __, __
(43) (forthcoming 2005).
-22-
Commission v. Wycoff Co., 344 U.S. 237, 248 (1952).18 A widely-

cited dictum in that case stated that federal jurisdiction does not

extend to declaratory judgment actions that assert federal defenses
to state claims. See id. at 248; see also Franchise Tax Bd., 463

U.S. at 16 (quoting Wycoff). But, as the Court made clear, the

flaw in Wycoff was that, while the complaint sought to resolve a

disputed question of federal law, it did not actually assert any

federal rights or violations:

The complainant in this case does not request
an adjudication that it has a right to do, or
to have, anything in particular. It does not
ask a judgment that the Commission is without
power to enter any specific order or take any
concrete regulatory step. It seeks simply to
establish that, as presently conducted,
[plaintiff]'s carriage of goods between points
within as well as without Utah is all
interstate commerce. One naturally asks, so
what? To that ultimate question no answer is
sought.
Id. at 244. The Court held that the complaint did not state a

claim for relief under the Declaratory Judgment Act, and was unripe
in any event. Id. at 243-47. Consequently, it was "not necessary
to determine whether . . . the alleged controversy over an action

that may be begun in state court would be maintainable under the
head of federal-question jurisdiction." Id. at 248-49.

18
In Wycoff, the plaintiff (which specialized in transporting
film) filed a federal action against a state agency, seeking "(1)
a declaratory judgment that [its] carriage of motion picture film
and newsreels between points in Utah constitutes interstate
commerce; [and] (2) that the Public Service Commission of Utah and
its members be forever enjoined from interfering with such
transportation over routes authorized by the Interstate Commerce
Commission." Id. at 239.

-23-
 The oddly deficient complaint in Wycoff might be sui

generis among published appellate cases. Indeed, we have found no

case in which we applied the Wycoff dictum to a case in the posture
of Wycoff itself -- i.e., no case in which we applied Wycoff to an

Ex parte Young action and found jurisdiction lacking. At any rate,

the flaw in Wycoff is not present here.

4. Conclusion

Maine's reliance on the well-pleaded complaint rule, when

reduced to its essentials, is misguided. The Band seeks injunctive

and declaratory relief against the Commission and its officers for
purportedly violating its federal rights. Assuming that other

requirements of Ex parte Young are satisfied -- e.g., that there is
a colorable claim of a federal right -- these claims qualify for
"arising under" jurisdiction under the well-pleaded complaint rule.

It is true that the Band's arguments could arise as
defenses in a state court action. But a properly framed federal
cause of action does not fall outside § 1331 simply because it

could also arise as an affirmative federal defense in state court.

"[F]ederal jurisdiction is absent where the federal issue would
arise only as a defense to a state cause of action." Penobscot

Nation II, 254 F.3d at 321 (emphasis added). Just because a

federal issue could arise as a defense to a state law action does

not mean that the federal issue can only arise as a defense to a

state law action. In fact, the federal claims in most Ex parte

Young actions could be raised as affirmative defenses to state

court actions. But an Ex parte Young action -- "though ultimately

-24-
'defensive' in the sense that it seeks to prevent harms threatened

by state officials -- does constitute a federal question under

§ 1331." Local Union No. 12004, 377 F.3d at 74.
Relying on Penobscot Nation I/II, the district court in

this case -- which did not have the benefit of our Local Union No.

12004 decision -- decided that it "must look at the individual

defendants' MHRA and MWPA complaints as they are tendered in the

state court"; hypothesized how those complaints might "play[] out";

and imagined how, in potential state court proceedings, the Band

might "answer[] and assert[] as affirmative defenses the contents

of their three (non-Title VII) counts in this declaratory action."

Micmacs, 307 F. Supp. 2d at 101. It then concluded that the Band's
claims could be raised as affirmative defenses, and hence were not
part of a well-pleaded federal complaint.

As Verizon Maryland and Local Union 12004 make clear,

that is not the correct analysis. The question is not whether the
allegedly federal claims could be raised as affirmative defenses to

a state action, but rather whether they could only be so raised.
With an Ex parte Young action, that is clearly not the case. Such
an action rests, at bottom, on the implied federal right of action

created by the Supremacy Clause. That implied right of action,

when properly pled, supplies the basis for "arising under"

jurisdiction under § 1331. The question here is whether the

complaint properly pleads such a claim.
B. Count I (Application of MHRA and MWPA to the Band)

-25-
 To analyze Count I's basis for § 1331 jurisdiction, we

first sketch its outline; next, we determine whether the rights

that the Band alleges are colorable, federal, and potentially
preemptive of contrary state laws; and, finally, we examine the

state's argument that there is no actual or threatened state

enforcement action.19

Count I argues that the Commission's investigation of

tribal personnel affairs violates two closely related but

conceptually distinct federal rights: tribal sovereignty, as

inherent to the Band and reaffirmed by Congress when it extended

federal recognition to the Band; and a statutory right to tribal

self-governance, derived from Section 7(a) of the Federal Micmac
Settlement Act.20 It contends that the latter Act, which finally
resolves the Band's legal status and controls any prior law, does

not grant the state any jurisdiction over the personnel practices
of the Band's governing body.
Count I fundamentally asserts two rights: (1) inherent

tribal sovereignty and (2) tribal self-governance under Section 7
of the Federal Micmac Settlement Act. We examine each.

19
We reiterate that this appeal is focused narrowly on
jurisdiction. For jurisdictional purposes, "the inquiry into
whether suit lies under Ex parte Young does not include an analysis
of the merits of the claim." Verizon Md., 535 U.S. at 636-37;
Penobscot Nation II, 254 F.3d at 322 ("[A] colorable claim of a
federal cause of action will confer subject matter jurisdiction
even though the claim itself may fail as a matter of law on further
examination.").

20
Although the Band collapses the two in its reply brief, we
find it helpful to keep them analytically separate since they arise
from different sources.
-26-
 1. Tribal sovereignty

Tribal "retained sovereignty predates federal recognition

-- indeed, it predates the birth of the Republic." Rhode Island v.
Narragansett Indian Tribe, 19 F.3d 685, 694 (1st Cir. 1994).

"Because of their sovereign status, tribes . . . are insulated in

some respects by a 'historic immunity from state and local

control,' and tribes retain any aspect of their historical

sovereignty not 'inconsistent with the overriding interests of the

National Government.'" New Mexico v. Mescalero Apache Tribe, 462

U.S. 324, 332 (1983) (citations omitted).

When we speak of a tribe's sovereignty, we mean its

powers as a government. At its apex, tribal sovereignty can
include broad powers to determine the form of tribal government; to
determine membership; to "enact substantive criminal and civil

laws" that apply to tribal members within tribal territory; to
regulate domestic relations, such as marriages and divorces, and
"the descent and distribution of the property of tribal members";

to impose taxes; to operate court systems and administer justice;
and to exclude persons from tribal territory. See Felix S. Cohen,

Handbook of Federal Indian Law 246-52 (1982 ed.). Of course, not

all tribes retain the full panoply of these powers today. A tribe

retains those aspects of sovereignty that have not been "withdrawn

by treaty or statute, or by implication as a necessary result of

[the tribe's] dependent status." United States v. Wheeler, 435

U.S. 313, 323 (1978). Congress's broad powers over tribes are both

"plenary and exclusive," United States v. Lara, 124 S. Ct. 1628,

-27-
1633 (2004) (quotation marks and citation omitted), and "only

Congress can abrogate or limit an Indian tribe's sovereignty,"

Fellencer, 164 F.3d at 709.

One important aspect of tribal sovereignty is "'the power

of regulating [its] internal and social relations,'" which includes

the "right of internal self-government." Wheeler, 435 U.S. at 322

(citation omitted). A tribe's power to "maintain or establish its

own form of government . . . . is the first element of

sovereignty." Handbook of Federal Indian Law, supra, at 247. The

form of tribal government "may reflect the tribe's determination as

to what form best fits its needs based on practical, cultural,

historical, or religious considerations." Id.21
This right to self-governance may preempt contrary state
law. Conceptually, inherent tribal sovereignty is a doctrine of

federal common law. See Lara, 124 S. Ct. at 1637.22 The Supremacy

21
The phrase "tribal self-government" has been used in two
distinct ways. In a broad sense, it can mean a tribe's power to
regulate the conduct of tribal members. See, e.g., Wheeler, 435
U.S. at 322 ("Their right of internal self-government includes the
right to prescribe laws applicable to tribe members and to enforce
those laws by criminal sanctions."). We do not understand the Band
to claim that it has this power. A second, narrower sense means
the tribe's power to determine the structure and internal
operations of the governing body itself. See, e.g., Handbook of
Federal Indian Law, supra, at 247. This is the meaning we
emphasize.

22
In Lara, the Court determined the continuing viability of one
of its Indian law decisions that Congress had purported to overrule
by statute. In Duro v. Reina, 495 U.S. 676 (1990), the Court had
held that tribal sovereignty does not empower a tribe to bring a
criminal prosecution against non-member Indians. After Duro,
Congress enacted a statute "'recogniz[ing] and affirm[ing]' the
'inherent' authority of a tribe" to do just that. Lara, 124 S. Ct.
at 1631 (quoting 25 U.S.C. § 1301(2)) (alterations in original).
The Lara Court concluded that Duro and other cases limning the

-28-
Clause applies to federal common law no less than federal statutes.

See Wilburn Boat Co. v. Fireman's Fund Ins. Co., 348 U.S. 310, 314

(1955) (where the federal courts have the authority to fashion
federal common law, "[s]tates can no more override such judicial

rules validly fashioned than they can override Acts of Congress");

Sampson v. F.R.G., 250 F.3d 1145, 1153 n.4 (7th Cir. 2001) (unlike

earlier "general common law," "the federal common law of today

. . . fall[s] under the Supremacy Clause"). Consequently, tribal

sovereignty may preempt contrary state law under the Supremacy

Clause. "State jurisdiction is pre-empted by the operation of

federal law if it interferes or is incompatible with federal and

tribal interests reflected in federal law, unless the state
interests at stake are sufficient to justify the assertion of state
authority." Mescalero Apache Tribe, 462 U.S. at 334.23

In short, inherent tribal sovereignty is a federal common
law right that preempts contrary state law, and is therefore a
proper basis for an Ex parte Young action.

bounds of retained tribal sovereignty were construing federal
common law, and that Congress could "change 'judicially made'
federal Indian law" and adjust that sovereignty. 124 S. Ct. at
1637 (citation omitted).

23
Whether a particular state interest justifies the assertion
of state authority "is not dependent on mechanical or absolute
conceptions of state or tribal sovereignty, but has called for a
particularized inquiry into the nature of the state, federal, and
tribal interests at stake." White Mountain Apache Tribe v.
Bracker, 448 U.S. 136, 145 (1980). For example, the Court has held
that a state cannot require Indian vendors operating on reservation
land to collect state cigarette sales tax from Indian purchasers,
but it can require them to collect that tax from non-Indian
purchasers. See Moe v. Confederated Salish & Kootenai Tribes of
Flathead Reservation, 425 U.S. 463, 480-83 (1976).
-29-
 2. Statutory right to self-governance

In addition to inherent sovereignty, the Band also

asserts a statutory right to self-governance codified in Section
7(a) of the Federal Micmac Settlement Act.24 The Band further notes
that, while MICSA required the governing instruments of the

Penobscots, Passamaquoddy, and Maliseets to be "consistent with

the terms of [MICSA] and the Maine Implementing Act," the Federal

Micmac Settlement Act requires only that the Band's governing

instrument be consistent with the terms of the Federal Micmac

Settlement Act itself. Compare id. with 25 U.S.C. § 1726(a). And

the Federal Micmac Settlement Act -- again unlike MICSA -- does not

explicitly subject the Band to Maine law. See supra Part II.B.
Finally, the Band argues, while MICSA admittedly makes "all
Indians, Indian nations, or tribes or bands of Indians in the State

of Maine, other than the Passamaquoddy Tribe[ and] the Penobscot
Nation . . . subject to the civil and criminal jurisdiction of the
State, the laws of the State, and the civil and criminal

jurisdiction of the courts of the State, to the same extent as any
other person . . . therein," 25 U.S.C. § 1725(a), the Federal
Micmac Settlement Act explicitly states that it controls in case of

a conflict with the Maine Implementing Act, MICSA, or the State

24
"The Band may organize for its common welfare and adopt an
appropriate instrument in writing to govern the affairs of the Band
when acting in its governmental capacity." 105 Stat. at 1148.
-30-
Micmac Settlement Act. See Federal Micmac Settlement Act § 11, 105

Stat. at 1148.25
The complaint anticipates the state's response -- that
the Federal Micmac Settlement Act ratified the State Micmac

Settlement Act, which did make the Band "subject to the laws of the

State and to the civil and criminal jurisdiction of the courts of

the State to the same extent as any other person . . . therein,"

Me. Rev. Stat. Ann. tit. 30, § 7203 -- and attempts to neutralize

it in two ways.

First, the Band contends that only Congress can make a

tribe subject to state law. Congress did not do so in the Federal

Micmac Settlement Act, and in fact it specified that the federal
Act controls in the event of a conflict with the state Act. See

Federal Micmac Settlement Act § 11, 105 Stat. at 1148.

Second, the Band contends that the entire State Micmac
Settlement Act never took effect. A provision of that Act provided
that "[t]his Act shall be effective only if . . . [w]ithin 60 days

of adjournment of the Legislature, the Secretary of State receives
written certification by the Council of the Aroostook Band of
Micmacs that the band has agreed to this Act." 1989 Me. Laws 149,

§ 4(2). That did not happen -- the Band never formally certified

that it agreed to the State Micmac Settlement Act as required by

25
We express no view on whether the Federal Micmac Settlement
Act's apparent differences from MICSA or the Maine Implementing Act
actually create an inconsistency, let alone a conflict to which
Section 11 of the Federal Micmac Settlement Act would apply. We
simply note that it may be necessary to resolve this question in
determining the substantive reach of Section 7(a) of the Federal
Micmac Settlement Act.
-31-
the Act's terms.26 Thus, the Band argues, the State Micmac

Settlement Act -- which made the Band subject to the laws of Maine

-- never took effect, and is null and void. Consequently, the
federal Act, which purported to ratify the state Act, could not do

so, because Congress simply cannot ratify a non-existent state law.

However, the Band continues, the Federal Micmac

Settlement Act did implicitly repeal the earlier state and federal

legislation -- the Maine Implementing Act and MICSA -- to the

extent that they applied to the Band.27 Thus, in the Band's view,

federal common law and the Federal Micmac Settlement Act are the

only applicable law determining the scope of the Band's right to

self-governance, and neither subjects the Band to state law.
Despite the complex argument concerning the validity of
the State Micmac Settlement Act, "[w]hether a case is one arising

under [federal law], in the sense of the jurisdictional statute,
. . . must be determined from what necessarily appears in the
plaintiff's statement of his own claim . . . , unaided by anything

26
Apparently this provision was added relatively late in the
process, and the Band did not realize that certification was
required. The original bill provided that the bill would become
effective upon enactment of legislation by the United States, and
nothing in the original bill required the Band to certify its
assent. The amendment requiring certification by the Band for the
legislation to become effective was added just ten days before the
bill was passed. According to a witness that the Band provided to
testify on its behalf pursuant to Fed. R. Civ. P. 30(b)(6), the
Band did not send in the written certification only because it was
never told about the certification requirement and did not know
about it. However, after the Maine legislature passed the Act, the
Band supported its ratification before Congress, and did not
express any concern about the state Act's validity.

27
Unlike MICSA, the Federal Micmac Settlement Act contains no
express severability clause. See 25 U.S.C. § 1734 (MICSA).

-32-
alleged in anticipation of avoidance of defenses which it is

thought the defendant may interpose." Graham, 489 U.S. at 840

(quoting Taylor v. Anderson, 234 U.S. 74, 75-76 (1914)) (second and
third alterations in original). The Band alleges that it holds a

federal right, deriving from Section 7(a) of the Federal Micmac

Settlement Act, to self-governance without state interference, and

that this right preempts contrary state law. This is a proper

basis for an Ex parte Young action.

3. Imminence

Maine's principal response is that, even if a violation

of a federal right is alleged, Ex parte Young jurisdiction is not
satisfied because here there is no actual or threatened enforcement
action by state officials. See Morales v. TWA, 504 U.S. 374, 382

(1992) ("In [Ex parte Young] suits such as this one, which the

plaintiff intends as a 'first strike' to prevent a State from
initiating a suit of its own, the prospect of state suit must be

imminent, for it is the prospect of that suit which supplies the

necessary irreparable injury.") (emphasis added); Ex parte Young,
209 U.S. at 155-56 ("[I]ndividuals who, as officers of the state,
are clothed with some duty in regard to the enforcement of the laws

of the state, and who threaten and are about to commence

proceedings . . . to enforce[,] against parties affected[,] an

-33-
unconstitutional act, violating the Federal Constitution, may be

enjoined by a Federal court of equity from such action.").

We have recognized an imminence requirement in Ex parte

Young actions, though the extent to which it is jurisdictional

(rather than just a substantive element of the action or a limit on

equitable discretion) may be subject to debate. See N.H. Hemp

Council, Inc. v. Marshall, 203 F.3d 1, 4-5 (1st Cir. 2000) (in an

action to enjoin criminal prosecution, describing the imminence

requirement as "often referred to as a standing requirement" but

"probably more complex in character, involving as well concerns

about ripeness and the exercise of equitable discretion"); accord
Nat'l Audubon Soc'y, Inc. v. Davis, 307 F.3d 835, 847 (9th Cir.
2002) ("We decline to read additional 'ripeness' or 'imminence'
requirements into the Ex Parte Young exception . . . beyond those

already imposed by a general Article III and prudential ripeness
analysis."), opinion amended on other grounds on denial of reh'g,

312 F.3d 416 (9th Cir. 2002). Indeed, in Morales the lack of

"imminence" did not divest the district court of jurisdiction; it
simply meant that the court should have issued a narrower
injunction. 504 U.S. at 381-83. But we need not resolve here the

question of whether "imminence" is purely a merits question or also

required for jurisdiction, because the Band has adequately alleged

a threat of enforcement which would satisfy any jurisdictional

requirement.28

28
We express no view on whether the Band has alleged a threat
of enforcement sufficient to establish the substantive elements of
the Ex parte Young claim or for the exercise of the district

-34-
 The flaw in Maine's analysis is its assumption that only

court proceedings constitute "enforcement," ignoring the threats to

tribal sovereignty, self-governance, and sovereign immunity posed
by the investigations themselves. Twice in recent years we have

found jurisdiction over actions to enjoin state discrimination

investigations. See Local Union No. 12004, 377 F.3d at 70-71, 75

(court had jurisdiction over Ex parte Young action to enjoin

proceedings of Massachusetts Commission Against Discrimination

("MCAD") on the grounds that state law was preempted by National

Labor Relations Act); Chaulk Servs., Inc. v. Mass. Comm'n Against
Discrimination, 70 F.3d 1361, 1364, 1371 (1st Cir. 1995) (same,

where MCAD's only activity so far had been issuing
interrogatories). Similar logic applies here.29
Finally, the fact that the target of an investigation

yields to the agency's demands and "cooperates" to some degree does
not rob the investigation of its coercive power. See, e.g., Major

League Baseball v. Butterworth, 181 F. Supp. 2d 1316, 1321 n.2

(N.D. Fla. 2001) (enjoining "civil investigative demand" ("CID")

court's equitable discretion.

29
To be sure, the Massachusetts Commission differs from the
Maine Commission in that Massachusetts courts "accord final
decisions of the MCAD preclusive effect," Local Union No. 12004,
377 F.3d at 71 n.6, whereas the Maine Commission "has no authority
to issue orders, adjudicate claims, award damages, or make final
factual findings that are binding on the parties," Tortilla Flat,
Inc. v. Me. Human Rights Comm'n, No. AP-97-024, 1997 Me. Super.
LEXIS 194, at *4 (Me. Super. Ct. June 24, 1997). We do not find
these differences to be dispositive here. The Band argues that it
is not subject to Maine's laws and cannot be made to appear before
any Maine tribunal, regardless of that tribunal's particular
enforcement powers.
-35-
for answers to interrogatories and document production, and noting

that "[f]ar from part of a legal proceeding, a CID may be issued

only before a legal proceeding is filed . . . . Moreover, it seems
likely that the vast majority of CIDs result merely in compliance,

with no court proceeding ever filed by anyone, unless the

investigation leads to the filing of an enforcement action, which

may or may not occur."), aff'd on other grounds sub nom. Major

League Baseball v. Crist, 331 F.3d 1177 (11th Cir. 2003). The

target has a right to challenge the investigation itself in federal

court, and this right is not forfeited by compliance with the

investigative demands:

The recipients of the CIDs had several options
available, but only one option could yield the
desired result. The most obvious option would
have been to comply with the terms of the
CIDs. But this option was unattractive
because the CIDs were burdensome, and the
recipients believed that the federal exemption
gave them a "federal right" to be free not
only from antitrust prosecution, but also from
this investigation. Second, the recipients of
the CIDs could have filed suit in state court
. . . . This option was similarly
unattractive because [of unfavorable and
probably incorrect state law]. This left
option three: an action in federal court, the
present lawsuit.
Crist, 331 F.3d at 1180-81.

Here, the Band had essentially the same choices. By

statute, the Maine Commission has the right of "access at all

reasonable times to premises, records, documents, individuals and

other evidence or possible sources of evidence and may examine,

record and copy those materials and take and record the testimony
or statements of such persons as are reasonably necessary for the

-36-
furtherance of the investigation." Me. Rev. Stat. Ann. tit. 5,

§ 4612(1)(B). In light of this broad authority, the fact that the

Commission did not need to exercise its subpoena power "to compel
access to or production of those materials or the appearance of

those persons," id., may simply mean that the Band decided to first

comply with state law, and then challenge its applicability.

An Indian tribe that is unlawfully called to answer

before a state agency may suffer both practical harms and

intrusions upon its sovereignty. As a practical matter, the Band

asserts, "[i]nvestigations, interrogatories, and discovery divert

the Micmac government from other pressing official matters and

consume scarce resources. . . . includ[ing] the expense of legal
consultation during the Commission's investigations and discovery."
Cf. Petroleum Exploration, Inc. v. Pub. Serv. Comm'n, 304 U.S. 209,

215-16 (1938) (jurisdictional amount-in-controversy minimum was met
by the "necessary expense of producing the information demanded by
the order," which was "not collateral or incidental to the purpose

of the injunction, but a threatened expense from which relief is
sought"). 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. Cf. Bishop Paiute Tribe v. County of Inyo, 275 F.3d

893, 902 (9th Cir. 2002) (holding that execution of warrant against

tribe to obtain employee records violated tribal immunity because

"at issue is not just the Tribe's right to protect the

confidentiality of its employee records, but the more fundamental

right of the Tribe not to have its policies undermined by the
-37-
states and their political subdivisions"), vacated on other grounds

sub nom. Inyo County v. Paiute-Shoshone Indians, 538 U.S. 701

(2003); cf. Fed. Mar. Comm'n v. S.C. State Ports Auth., 535 U.S.
743, 760-761 (2002) (forcing a state to submit to adjudication

before a federal administrative agency is an "affront to a State's

dignity" because the "State is required to defend itself in an

adversarial proceeding").30 Sometimes, Congress requires a tribe

to submit to such invasions. We do not comment on whether Congress

has done so here -- only that the Band may argue its case in a

federal forum.

4. Conclusion

For § 1331 purposes, Count I adequately alleges that,
pursuant to federal common law and the Federal Micmac Settlement
Act, the Band possesses both inherent tribal sovereignty and a

statutory right to self-governance, and that the enforcement of
state law against the Band violates these rights. Consequently,

30
Maine argues that this case more closely resembles Reyes v.
Supervisor of the DEA, 834 F.2d 1093 (1st Cir. 1987), where the
plaintiff argued that an entry in a government file stating that he
was a member of a terrorist organization was incorrect and had
resulted in more stringent conditions of imprisonment. We affirmed
dismissal of his due process challenge because he alleged only harm
to his "interest in a good name or good reputation" and not any
"continuing infringement of a liberty interest, or that he
realistically expect[ed] a repetition of his previous experiences"
in prison. Id. at 1098. Reyes is hardly a useful analogue because
the Band's interest in self-governance is decidedly greater than a
prisoner's interest in correct information in a government file,
and the Band may realistically expect to repeat its previous
experiences with the Commission.
-38-
the district court erred in dismissing Count I for lack of subject

matter jurisdiction.31
C. Count II (Tribal Sovereign Immunity)

Count II alleges that, as a matter of federal law, the

Band's tribal sovereign immunity bars the enforcement of state law

against it. The difference between the rights asserted in Count

I and the tribal sovereign immunity asserted in Count II is subtle

but important. 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. By contrast, tribal

sovereign immunity means that the Band is not amenable to state

judicial or quasi-judicial proceedings to enforce those laws. See

Kaighn Smith, Jr., Federal Courts, State Power, and Indian Tribes:

Confronting the Well-Pleaded Complaint Rule, 35 N.M. L. Rev. __, __
(24-26) (forthcoming 2005) (contrasting doctrines of infringement
of tribal sovereignty versus tribal sovereign immunity). In short,

we read Count I to allege that the Band is not subject to the MHRA
and MWPA, and Count II to allege that, even if the Band is subject
to those acts, it is not subject to the power of any Maine tribunal

to investigate and enforce those laws.32

31
Because we hold that the district court had jurisdiction
under § 1331, we need not decide whether § 1362 jurisdiction would
also be available.

32
The Band's briefs are not always precise in this distinction,
but the complaint adequately separates the concepts. Count I
alleges that the Commission's application of the MHRA and the MWPA
to the Band violates its "retained inherent tribal sovereignty" and
the Federal Micmac Settlement Act. Count II, by contrast, alleges
that "[t]he Band's tribal sovereign immunity . . . bars the
-39-
 "As a matter of federal law, an Indian tribe is subject

to suit only where Congress has authorized the suit or the tribe

has waived its immunity." Kiowa Tribe v. Mfg. Techs., Inc., 523

U.S. 751, 754 (1998); Santa Clara Pueblo v. Martinez, 436 U.S. 49,

58 (1978). This immunity applies in state proceedings as well as

federal proceedings. Kiowa Tribe, 523 U.S. at 755. The Band has

filed a suit to enjoin state officials from interfering with its

alleged federal right of tribal sovereign immunity. Such an action

would appear to satisfy the requirements of Verizon Maryland and

Local Union No. 12004. See Kiowa Indian Tribe v. Hoover, 150 F.3d

1163, 1171-72 (10th Cir. 1998) (reversing district court's denial

of tribe's motion for preliminary injunction against enforcement of
state court judgments on the grounds of tribal sovereign immunity).
Maine argues, however, that tribal sovereign immunity

cannot be asserted in an Ex parte Young action. Its principal
authority for this argument is Graham, in which the Supreme Court

held that a tribe, sued in state court by the state, may not remove

to federal court on the basis of tribal sovereign immunity because
"a federal immunity to the claims asserted does not convert a suit
otherwise arising under state law into one which, in the statutory

sense, arises under federal law." 489 U.S. at 841. In Maine's

view, Graham stands for the proposition that "a tribal sovereign

immunity defense . . . cannot form the basis of 'arising under'

jurisdiction." But Maine fails to recognize that Count II pleads

a tribal sovereignty offense. As described above, there is a

enforcement of the MHRA and the MWPA against the Band."
-40-
crucial difference between removal of a state claim and an Ex parte

Young action. See supra Part IV.A.2. The well-pleaded complaint

rule applies to the plaintiff's complaint, regardless of whether it
was filed in state court or federal court. See Rossello-Gonzalez,

398 F.3d at 10 (applying rule to complaint filed in state court).

The well-pleaded complaint in Graham contained an Oklahoma law tax

claim; the well-pleaded complaint here contains a claim under a

federal cause of action asserting a federal common law right.

Graham addressed whether a defendant may remove on the basis of a

tribal sovereign immunity defense; it simply does not apply where

a plaintiff pleads an Ex parte Young action on the basis of the
federal right of tribal sovereign immunity.
Again, a key flaw in Maine's analysis is its assumption
that tribal sovereign immunity is only a defense to a lawsuit, and

since the Commission has not filed (or threatened to file) suit
against the Band, considerations of tribal sovereign immunity are
premature. But tribal sovereign immunity might apply to the

Commission's investigations themselves.33 We do not hold that
tribal sovereign immunity applies to such proceedings, nor even
that the Band actually retains tribal sovereign immunity in light

of MICSA and the Federal Micmac Settlement Act. See supra note 19.

We simply conclude that the Band's claim of tribal sovereign

immunity presents a "colorable" claim of a federal cause of action

33
As an analogy, state sovereign immunity applies to certain
federal administrative proceedings. See S.C. State Ports Auth.,
535 U.S. at 760-61.
-41-
under Ex parte Young. Consequently, the district court erred in

dismissing Count II for lack of subject-matter jurisdiction.34
V.

Counts III and IV relate to a provision in the Civil

Rights Act of 1964 stating that Indian tribes are not "employers"

under Title VII. See 42 U.S.C. § 2000e(b). Count III seeks a

declaration that the Band is not subject to Title VII, and an

injunction against the Commission from applying Title VII to the

Band and filing charges against the Band with the federal EEOC.

Count IV alleges that the Title VII exemption preempts contrary

state law, and seeks declaratory and injunctive relief that the

Commission may not apply the MHRA and MWPA against the Band. In
other words, Count III claims that the Band is exempt from Title
VII, while Count IV says that because the Band is exempt from Title

VII, it must be exempt, as a matter of federal law, from the MHRA
and MWPA too. The district court dismissed both counts on the
grounds that they did not pose justiciable cases or controversies.

See Micmacs, 307 F. Supp. 2d at 106-08. We disagree.
A. Count III (Title VII Exemption)

Until recently, Commission staff would apparently, as a

matter of course under the agencies' "dual filing" procedure,35

34
Again, we need not decide whether § 1362 would apply. See
supra note 31.

35
"Dual filing" refers to the practice by which a complainant
may file a charge with a state antidiscrimination agency alleging
violations of both state and federal law. The state agency then
files a charge with the EEOC on the complainant's behalf, but
processes the complaint itself first. See 42 U.S.C. §§ 2000e-5(b)-
(e) (describing how dual filed charges are treated for purposes of
determining whether reasonable cause exists, time for filing
-42-
automatically file EEOC complaints against the Band on behalf of

Commission complainants and let the EEOC decide whether Title VII

applied. This practice has apparently stopped, and the Commission
admitted in its answer that Title VII does not apply to the Band.

Cf. Fellencer, 164 F.3d at 712 (Title VII exemption applies to

Penobscot Nation); Boudman v. Aroostook Band of Micmac Indians, 54

F. Supp. 2d 44, 48-49 (D. Me. 1999) (same for the Band). The

Commission's current position is that it "does not file

discrimination charges against tribes with the EEOC unless the

[Commission] has some reason for believing that Title VII might

somehow apply."

Maine argues that there is no justiciable case or
controversy because there is no dispute: all parties agree that the
Band is exempt from Title VII, and hence there is nothing for a

court to resolve. The district court apparently agreed. See

Micmacs, 307 F. Supp. 2d at 107. While the district court did not
identify which branch of case or controversy doctrine supported its

ruling, we understand it to have meant the dispute was moot.
The dispute is not moot because nothing prevents the
Commission from resuming its former practice. "[V]oluntary

cessation of allegedly illegal conduct . . . does not make the case

moot." United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953).

The reason is simple: "The defendant is free to return to his old

ways." Id. Voluntary cessation will only moot a dispute when "(1)

it can be said with assurance that 'there is no reasonable

charges, and other purposes).
-43-
expectation . . .' that the alleged violation will recur, and (2)

interim relief or events have completely and irrevocably eradicated

the effects of the alleged violation." Los Angeles County v.
Davis, 440 U.S. 625, 631 (1979) (citations omitted; alteration in

original). The defendant's burden of establishing mootness "is a

heavy one," W.T. Grant, 345 U.S. at 633, and it must be "absolutely

clear that the allegedly wrongful behavior could not reasonably be

expected to recur." United States v. Concentrated Phosphate Export

Ass'n, 393 U.S. 199, 203 (1968).

The Commission has not met that burden. First, the

record indicates that the Commission referred four different

complaints to the EEOC after the United States District Court for
the District of Maine held in Boudman that the Band is exempt from
Title VII.36 Second, even the Commission's concession is qualified.

It reserves the right to file EEOC charges against the Band if it
"has some reason for believing that Title VII might somehow apply."
For these reasons, the Commission has not adequately demonstrated

that its voluntary cessation is permanent.
The district court advanced a second reason why Count III
does not present a case or controversy: Even if the Commission

were still referring charges against the Band to the EEOC, "such

act would have no possible operative effect under the law" because

the Band is, in fact, exempt under Boudman. Micmacs, 307 F. Supp.

2d at 107. We read this as finding that the complaint does not

allege an injury-in-fact for standing purposes. In other words,

36
To be fair, the Commission was not a party in Boudman.
-44-
even if the Commission erroneously files an EEOC charge against the

Band, such referral causes no cognizable injury. See generally

Steir v. Girl Scouts of the USA, 383 F.3d 7, 14-15 (1st Cir. 2004)
(summarizing Article III injury-in-fact requirement).

We disagree. As a general rule, "[w]hen the suit is one

challenging the legality of government action . . . [and] the

plaintiff is himself an object of the action . . . . there is

ordinarily little question that the action . . . has caused him

injury, and that a judgment preventing . . . the action will

redress it." Lujan v. Defenders of Wildlife, 504 U.S. 555, 561-62

(1992). The Band alleges two specific injuries from the

Commission's filing of charges with the EEOC. First, the Band
asserts dignitary harm: it is forced to defend itself to the EEOC
when, it claims, Congress has shielded the Band from such

investigations entirely. As the Band notes, if "the desire to use
or observe an animal species, even for purely esthetic purposes, is
undeniably a cognizable interest for purpose of standing," id. at

562-63, then repeated filing of arguably frivolous federal charges
against an Indian tribe that Congress has expressly exempted from
the law's reach also causes a cognizable injury. Similarly, if the

loss of the right to litigate in the forum of one's choice is

cognizable, see Int'l Primate Prot. League v. Adm'rs of Tulane

Educ. Fund, 500 U.S. 72, 77 (1991), superseded by statute on other

grounds as stated in Parker v. Della Rocco, 252 F.3d 663, 666 n.2

(2d Cir. 2001), then so too is being forced to litigate in a forum

where one is not required to appear at all.

-45-
 Second, the Band asserts economic harm: it must respond

to the charge and pay attorneys to argue that it is exempt. Even

assuming that the EEOC immediately agrees with the Band and
dismisses each case, repeatedly forcing the Band to defend

obviously futile Title VII complaints makes it incur financial

costs that qualify as a cognizable injury. Cf. P.R. Aqueduct &

Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144-45 (1993)

(holding that denial of motion to dismiss on Eleventh Amendment

grounds is immediately appealable under collateral order rule, and

explaining that "the value to the States of their Eleventh

Amendment immunity . . . is for the most part lost as litigation

proceeds past motion practice").
Because the Band had standing to raise Count III and that
claim was not rendered moot by the Commission's voluntary cessation

of its conduct, the district court erred in dismissing Count III
for lack of subject matter jurisdiction.
B. Count IV (Title VII Preemption)

Count IV alleges that Title VII preempts the MHRA and
MWPA to the extent that those laws include the Band within their
respective definitions of "employer." The district court stated

that it "consider[ed] the question settled as to the Maine tribes"

and cited Shannon v. Houlton Band of Maliseet Indians, 54 F. Supp.

2d 35, 40 (D. Me. 1999), for the proposition that the Title VII

exemption does not preempt state law as to the Maliseets. Micmacs,

307 F. Supp. 2d at 107; see also Fellencer, 164 F.3d at 711 n.3

(the idea that "the Title VII exemption operated to preempt state

-46-
law with respect to the Maliseet Indians . . . was clearly not

intended by the [MICSA]").37
However, after a brief discussion of the merits (and why
the rule of Shannon applies to the Band), the district court

ultimately concluded that "Count IV does not raise a case or

controversy." Micmacs, 307 F. Supp. 2d at 108. That analysis is

incorrect. The fact that the Band's position might be difficult to

maintain because another district court has already answered the

legal question in the state's favor does not mean that there is no

case or controversy. Plaintiffs are free to bring cases that fly

in the face of precedent. When they do so, however, those cases

should be resolved on the legal or factual merits, not dismissed
for lack of a case or controversy. "Courts should not . . .
conflate the constitutional standing inquiry with the merits

determination that comes later." United States v. One-Sixth Share,

326 F.3d 36, 41 (1st Cir. 2003).38
VI.

37
While the Band arguably stands in a different legal position
than the Maliseets in some respects, we understand the district
court to have meant that, whatever the differences between those
two tribes, the impact of the Title VII exemption would be
identical.

38
Although the Band's position on this point may be foreclosed
by Fellencer, 164 F.3d at 711 n.3, and we have the discretion to
affirm the district court's dismissal on any basis supported by the
record, Willhauck v. Halpin, 953 F.2d 689, 704 (1st Cir. 1991), we
decline to exercise that discretion here. Because of the district
court's disposition, the Band understandably devoted its arguments
on appeal to the question of justiciability. Consequently, we will
not pretermit the Band's case by deciding the merits before the
district court has done so.
-47-
 One might argue (though Maine did not) that, even if the

district court has jurisdiction over Counts I-IV, it should

nevertheless abstain from exercising that jurisdiction. Under the
doctrine of Railroad Commission of Texas v. Pullman Co., 312 U.S.

496 (1941), a federal court may abstain when a "federal

constitutional challenge turns on a state statute, the meaning of

which is unclear under state law." Harris County Comm'rs Court v.

Moore, 420 U.S. 77, 84 (1975). In such circumstances, a federal

court "should stay its hand in order to provide the state courts an

opportunity to settle the underlying state-law question and thus

avoid the possibility of unnecessarily deciding a constitutional

question." Id. at 83. Here, litigation in state court might lead
to a holding that the Band is not an "employer" under the MHRA and
MWPA, and thus eliminate the need to resolve the federal claims in

this case.
Even assuming arguendo that abstention is proper when the

only constitutional issue in the case is preemption,39 abstention

is inappropriate here. Since the principal federal issue is
whether the Band is subject to state law and required to submit to
the jurisdiction of state tribunals (whether administrative or

judicial) at all, requiring the Band to first try its hand in state

proceedings would be perverse. Cf. Miller-Davis Co. v. Ill. State

Toll Highway Auth., 567 F.2d 323, 325-27 (7th Cir. 1977) (district

39
Compare, e.g., Fireman's Fund Ins. Co. v. City of Lodi, 302
F.3d 928, 939 n.12 (9th Cir. 2002) (holding that "Pullman
abstention is not appropriate when the federal question at stake is
one of federal preemption") with Fleet Bank, N.A. v. Burke, 160
F.3d 883, 890-93 (2d Cir. 1998) (holding the opposite).
-48-
court erred in abstaining from deciding state agency's Eleventh

Amendment defense so that state court could decide whether agency

had waived immunity as a matter of state law). For the Band to
argue that it is not an "employer" under the MHRA and MWPA, it must

first submit to the jurisdiction of the state court. That is

precisely what it does not wish to do, and it has come to federal

court explicitly seeking a ruling that it need not defend itself in

state court. Since the Band has asserted a dignitary harm in being

forced to defend itself before the Commission, let alone Maine

courts, abstention would be tantamount to a decision on the merits

against the Band.
VII.

One final matter remains. Besides the Commission
defendants, the Band also sued Gardiner, Condon, and Ayoob, the

former employees who charged the Band with discrimination. The
complaint does not allege any unlawful activity by the individual
defendants, nor pray for relief against them.40 On appeal, the Band

concedes that it seeks no injunctive relief against the individual
defendants, and confines its argument to the Commission defendants.
We assume that the individual defendants were joined as persons

needed for just adjudication pursuant to Fed. R. Civ. P. 19(a)(2),

because they have an interest in the action and, arguably, their

ability to protect that interest would be impaired without their

participation. We express no view on this subject, but, given our

40
Indeed, the Ex parte Young cause of action upon which the
complaint depends would not be available against the individual
defendants. See Penobscot Nation I, 106 F. Supp. 2d at 83 n.4.
-49-
disposition of the rest of the case, vacate the dismissal of the

complaint as against the individual defendants for reconsideration

on remand.41

With the exception of Count V, which the Band apparently

concedes is purely a state law claim, the Band is entitled to make

its case, and receive a determination on the merits, in federal

court. Because it dismissed the entire action, the district court

did not consider whether to exercise supplemental jurisdiction over

Count V under 28 U.S.C. § 1367. We express no view regarding

whether, on remand, it should do so, nor whether, in making that

decision, the court should consider the possibility of certifying

the state law question to the Maine Supreme Judicial Court. See

Me. R. App. P. 25.
VIII.

As to the individual defendants, we vacate the dismissal

of all claims. As to the Commission defendants, we reverse the

dismissal of Counts I, II, III, and IV for lack of subject matter
jurisdiction, vacate the dismissal of Count V, and remand for

further proceedings consistent with this opinion.

41
If the district court determines that the individual
defendants need not (or cannot) be joined pursuant to Fed. R. Civ.
P. 19(a), and decides again to dismiss the complaint as to them,
the court should also consider any timely application by those
individuals to intervene under Fed. R. Civ. P. 24.
-50-