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 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 *484 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. §§ 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. §§ 1983 and 1985, as well as the Declaratory Judgment Act, 28 U.S.C. § 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. §§ 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,
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,
[T]he Passamaquoddy Tribe and the Pe-nobscot 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, § 6206(1) (emphasis added). The Implementing Act was incorporated into the federal Settlement Act of 1980, 25 U.S.C. §§ 1721-35.
Each party benefited 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,
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 *485 Maine. See 25 U.S.C. § 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. § 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 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. § 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. § 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. § 1725(e)(1).
Although Indian tribes are not usually subject to the diversity jurisdiction of the federal courts, see
Romanella v. Hayward,
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. § 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. § 1735(b).
The Settlement Act provides at 25 U.S.C. § 1725(f):
The ... Penobscot Nation [is] hereby authorized to exercise jurisdiction, separate and distinct from the civil and criminal 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, § 6206(1) (emphasis added). The viability of both the federal law claims under § 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 § 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.,
*486 IV.
In considering Akins’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. §§ 1301-41, made applicable to the Penobscot Nation by 25 U.S.C. § 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,
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,
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, § 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. 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 *487 “Penobscot Indian Territory” and are subject to federal restraints on alienation. See 25 U.S.C. § 1724; Me.Rev.Stat. Ann. tit. 30, § 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 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,
The Nation responds to this latter argument vigorously. The Nation retorts that it is not a museum piece and may not be 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,
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, “ ‘[generalizations in this subject [of tribal authority] have become ... treacherous.’ ”
White Mountain Apache Tribe v. Bracker,
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 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 *488 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, § 6203, and the Settlement Act, § 1722, define “land and other natural resources” as meaning, inter alia, “timber and timber rights.”
7
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. § 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.,
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, § 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,
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,
*489
We look to the Committee Report of the Senate Select Committee on Indian Affairs concerning the Settlement Act.
See Garcia v. United States,
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), U.S.Code Cong. & Admin.News 1980, 3786, at 3790. 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,
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, 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 areas, courts have long presumed that Congress acts against the background of prior law.
See, e.g., Clarke v. Securities Indus. Ass’n,
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
*490
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,
Similarly, in
Merrion v. Jicarilla Apache Tribe,
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.
Montana v. United States,
Similarly, in
Strate v. A-1 Contractors,
— U.S. -, -,
The legislative history and precedent thus reinforces our conclusion that this dispute involves an “internal tribal matter” and that, accordingly, no claim is stated under § 1983 or under Maine law. 9
The judgment of the district court is affirmed. Costs to appellees.
Notes
. The Narragansett tribe in Rhode Island is also governed by a Claims Settlement Act.
See
25 U.S.C. §§ 1701-06 (1978);
Narragansett Indian Tribe v. Narragansett Elec. Co.,
. That section also provides certain immunities from suit. We do not reach the issue of immunity-
. The Settlement Act at 25 U.S.C. § 1735(a) recites that in the event of any conflict between that Act and the Maine Implementing Act, the federal statute prevails.
. 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.,
. The Penobscot Nation concedes, both in its brief and again at oral argument, that Akins's equal protection and due process claims may be brought under the Indian Civil Rights Act, and may be brought against the Nation, in the Penob-scot Nation Tribal Court.
. 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. § 1723.
. 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 of sovereignty. See Resnik, 56 U. Chi. L.Rev. at 705-09.
. Appellants’claims under § 1985(3) and the Declaratory Judgment Act, 28 U.S.C. §§ 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,