NARRAGANSETT HOMELAND, R.I. – Bizarre moments abound in Federal Judge William Smith’s recent decision justifying the Rhode Island State Police raid on the Narragansett Indian Tribe smoke shop last July, but one of the strangest is his reliance on a Maine state law dealing with the Penobscot and Passamaquoddy Indians.
Not only is the law from a different state, arising from an entirely different set of negotiations, it is also intensively discussed in a number of current New England lawsuits as the extreme worst case of Indian concessions to state control.
The law is Maine’s Implementing Act, passed to fill in the blanks shortly after Congress passed the 1980 Settlement Act with the Penobscot and Passamaquoddy Indians to end their land claims and grant federal recognition. Legal scholars cite this state law as the epitome of a bad deal for tribal sovereignty. Penobscot Governor Barry Dana is appealing to Congress to revisit its own Maine Indian Claims Settlement Act (MICSA) to clear up the gray areas exploited by the state, and support appears to be building for hearings on Maine’s apparent violation of Congressional intent.
But Judge Smith used a federal circuit court ruling on the Maine law, the so-called Akins case, to derive a highly restrictive set of criteria to determine what could be considered “internal tribal matters” outside the reach of state law. He issued these guideposts to uphold the Rhode Island raid although nearly every other case involving the Maine Implementing Act emphasizes how unique it is.
The crucial language in the Implementing Act, which appears nowhere else in New England, subjected the Penobscot Tribal Nation and the two reservation governments of the Passamaquoddy Indians “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.” No other tribes in New England have accepted such a restricted status, not even Maine’s two other federally recognized tribes. In fact the Aroostook Band of Mic Mac Indians will be arguing in federal court in hearings scheduled for Jan. 23 that it deliberately refused to sign papers acknowledging its own state settlement act because it rejected state limits on its sovereignty.
Maine state courts have argued that if any tribal decisions impacted non-Indians they were no longer “internal matters,” a logic that Smith leaned on heavily. This argument also underlay a recent Environmental Protection Agency decision to let the Maine state Department of Environmental Protection take over Clean Water Act regulation of the rivers upstream from the Penobscot and Passamaquoddy lands. But the EPA emphasized the unique circumstances of its ruling, admitting that even the other Maine tribes fell under a different legal environment. And the Penobscot and Passamaquoddy may well challenge the EPA decision in federal court.
The uniqueness of the Maine law is also an issue in a Massachusetts state case involving the sovereign immunity of the Wampanoag Tribe of Gay Head (Aquinnah) Indians. (The legal doctrine of sovereign immunity holds that a governing body can’t be sued in court unless it expressly agrees to be; although the doctrine derives from political sovereignty and is often confused with it, it is a separate issue.) A local judge ruled that the town of Gay Head could not sue the tribe to enforce its zoning laws, even though the Wampanoag settlement act accepted their jurisdiction on tribal land.
The judge, Richard Connon, argued that only Congress could legislate a waiver of the tribe’s inherent sovereign immunity, and it had declined to do so. He pointed by contrast to the Maine Settlement Act, which held explicitly that the Penobscot and Passamaquoddy “may sue and be sued in the courts of the State of Maine and the United States to the same extent as any other entity or person residing in the State of Maine may sue or be sued in these courts.” Connon said these words showed that Congress knew how to write a waiver of sovereign immunity, and their absence in the Wampanoag settlement act showed that it decided not to.
This argument will be tested in higher courts in Massachusetts, even thought the town government decided to accept Judge Connon’s ruling. Massachusetts Attorney General Thomas F. Reilly decided at the end of December to appeal the case. Because the First Circuit of the U.S. Court of Appeals, which covers most of New England, is inclined to let suits against Indian tribes run through state courts before taking jurisdiction, the Wampanoag case is now headed to the Massachusetts Supreme Judicial Court before it reaches federal courts.
These cases alone guarantee that the controversy over Judge Smith’s Narragansett ruling will reverberate in the First Circuit, and nationally, for years to come.
