AROOSTOOK BAND OF MICMACS, Plaintiff, Appellee, v. Patricia E. RYAN, in her official capacity as Executive Director of the Human Rights Commission of the State of Maine; Warren C. Kessler, in his official capacity as member of the Human Rights Commission of the State of Maine; Paul K. Vestal, Jr., in his official capacity as member of the Human Rights Commission of the State of Maine; James Varner, in his official capacity as member of the Human Rights Commission of the State of Maine; Jadine R. O‘Brien, in her official capacity as member of the Human Rights Commission of the State of Maine; Kristen L. Aiello, in her official capacity as member of the Human Rights Commission of the State of Maine; Lisa Gardiner; Tammy Condon, Defendants, Appellants, Beverly Ayoob, Defendant.
Nos. 06-1127, 06-1358.
United States Court of Appeals, First Circuit.
Heard Nov. 9, 2006. Decided April 17, 2007.
484 F.3d 41
It is well settled that the burden of demonstrating the absolute lack of such a state proceeding is on the plaintiff. See Deniz, 285 F.3d at 146. In Puerto Rico, our own precedent has determined that such a proceeding and a remedy may very well exist under the Puerto Rico Constitution,
However, this issue arose only in the course of an interlocutory appeal, and the district court has entered no final judgment denying or granting relief and bringing the litigation to an end. It is uncertain whether the panel‘s interlocutory opinion deciding the ripeness issue will affect the ultimate outcome in this case. It may even be that some aspects of the case would remain even if prior precedent on the ripeness issue had been followed.4
If the panel majority‘s decision on the ripeness issue does prove to be relevant to any relief which may be ultimately granted, nothing prevents an en banc court from reviewing that determination on appeal after a final judgment. Irving v. United States, 162 F.3d 154, 161-62 & n.7 (1st Cir.1998) (en banc), cert. denied, 528 U.S. 812, 120 S.Ct. 47, 145 L.Ed.2d 41 (1999). Resources for en banc review are limited, and the complexities of this case and the interlocutory context in which the issue has arisen make deferral the appropriate course.
Douglas J. Luckerman, with whom Law Office of Douglas J. Luckerman, Gregory P. Dorr, Farrell, Rosenblatt & Russell, and David Kaplan were on brief, for appellee.
Michael A. Duddy and Kelly, Remmel & Zimmerman on brief for Houlton Band of Maliseet Indians, amicus curiae.
Before LYNCH, Circuit Judge, CAMPBELL, Senior Circuit Judge, and LIPEZ, Circuit Judge.
LYNCH, Circuit Judge.
This case arises from a lawsuit brought by the Aroostook Band of Micmacs (“Aroostook Band“), an Indian tribe based in northern Maine. The tribe seeks to enjoin proceedings before the Maine Human Rights Commission (“the Commission“), a state agency which acted on discrimination complaints it had received from three of the tribe‘s former employees.
The Aroostook Band claims that federal law prevents an agency of the state of Maine from enforcing state employment discrimination laws against the Aroostook Band‘s government. The state disagrees and argues that federal law specifically grants it this power. Both sides discuss a series of federal and state statutes: the state‘s 1979 Act to Implement the Maine Indian Claims Settlement (“state Settlement Act“),
The magistrate judge, presiding with the consent of the parties, see
We reverse. We hold that a provision of the 1980 MICSA,
I. BACKGROUND
We start with the history behind the enactment of the state and federal Settlement Acts, and the later state and federal Micmac Acts. We then move to the background and procedural history of the events that led to this appeal. Much of the background, statutory and otherwise, is also recounted in an earlier opinion in this case. See Aroostook Band of Micmacs v. Ryan, 404 F.3d 48, 50-55 (1st Cir.2005) (”Aroostook II“), overruled in part by Narragansett Indian Tribe v. Rhode Island, 449 F.3d 16, 24-25 (1st Cir. 2006) (en banc).
A. The Statutory Background
In the 1970s, two Maine Indian tribes—the Penobscot Nation and the Passamaquoddy Tribe—filed suit and claimed ownership over much of the land in the state of Maine. See id. at 53; Penobscot Nation v. Fellencer, 164 F.3d 706, 707 (1st Cir.1999). See generally Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 528 F.2d 370 (1st Cir.1975) (providing additional background on the litigation).
With the assistance of the federal government, the Penobscots and the Passamaquoddy ultimately reached a settlement with the state. Aroostook II, 404 F.3d at 53. The first step in this settlement was Maine‘s passage of its state Settlement Act in 1979. See 1979 Me. Laws 2393; see also Aroostook II, 404 F.3d at 53. Among other things, that act set out to define the legal relationship between Maine and its Indian tribes. One general provision states that except as otherwise provided by the act, all Indian tribes “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.”
Another part of the statute deals specifically with the two tribes that had then filed suit; it provides that the Penobscot Nation and the Passamaquoddy Tribe have the powers and limitations of Maine municipalities, and are “subject to the laws of the State,” except that the State does not have the power to regulate “internal tribal matters.”
The Aroostook Band, which had not filed suit or asserted any claim, is not mentioned anywhere in the state Settlement Act. However, another Maine tribe, the Houlton Band of Maliseet Indians (“Houlton Band“), is mentioned in several places. Although by 1979 the small Houlton Band had not filed suit against the state, it too was asserting that it had valid claims to parts of land in Maine. See
The next step was the 1980 passage of MICSA, the federal Settlement Act. See
MICSA extinguished the land claims of all Indian tribes in Maine, by express provision.
Several MICSA provisions deal with the relationship between all Maine tribes and state law. Here the statute draws distinctions. As does the state Settlement Act, MICSA treats Maine‘s relationship with the Passamaquoddy and Penobscots differently from Maine‘s relationship with all other tribes. MICSA states that
all Indian[] ... tribes or bands of Indians in the State of Maine, other than the Passamaquoddy Tribe [and] the Penobscot Nation, ... shall be subject to the civil and criminal jurisdiction of the State [and] the laws of the State ... to the same extent as any other person ... therein.
A separate subsection of the federal MICSA deals with the applicability of Maine law to the Passamaquoddy and Penobscots; that subsection expressly references the state Settlement Act and declares that “that Act is hereby approved, ratified, and confirmed.”
In the late 1980s, there was further legislative action. The Aroostook Band, after meeting with counsel, determined that it too might have had a potential land claim before the passage of the 1979 and 1980 state and federal settlement acts. See Aroostook II, 404 F.3d at 54. MICSA‘s language had, however, extinguished any potential land claim. The Aroostook Band nevertheless opened a dialogue with the state. After negotiations, the Maine legislature passed the state Micmac Act. See 1989 Me. Laws 230.
The terms of the state Micmac Act gave the Aroostook Band a status similar to that accorded the Houlton Band, and dif-
The parties now dispute whether the state Micmac Act actually took effect as a matter of state law. The Aroostook Band argues that the state Micmac Act is ineffective under state law, so the clauses of that Act, cited above, do not apply and the Aroostook Band is not subject to state law.2 For reasons we describe later, we think this dispute over state law is not material.
As of the early 1990s, all of the concerned entities apparently treated the state Micmac Act as validly enacted. Accordingly, their next step was to persuade Congress to enact ABMSA, the federal Micmac Act. Congress did so in 1991. See
ABMSA declares, in its findings section, that the Aroostook Band was not referred to in MICSA because in 1980 there had been insufficient historical evidence of the tribe‘s presence in Maine. ABMSA § 2(a)(2). That documentation had become available,
Among other provisions, ABMSA provided the Aroostook Band with a $900,000 land acquisition fund, see
ABMSA also contains a “conflicts” provision: it states that if there is “a conflict of interpretation between the provisions of the [state Settlement Act, state Micmac Act, or MICSA] and this Act, the provisions of this Act shall govern.”
B. The History of this Litigation: The Maine Law Discrimination Claims Against the Aroostook Band
During 2001 and 2002, the Aroostook Band fired three of its employees: Lisa Gardiner, Tammy Condon, and Beverly Ayoob. Gardiner was the Band‘s Chief Financial Officer, Condon was its Compliance Officer, and Ayoob was its Housing Director. Aroostook II, 404 F.3d at 50. Gardiner and Condon alleged that they had been the victims of employment discrimination on the basis of their race, color, and national origin, in violation of the Maine Human Rights Act (MHRA),
complaints with the Commission, a state agency which investigates discrimination charges, see
The Aroostook Band then filed suit in U.S. District Court against the Commission‘s members, and against Condon, Gardiner, and Ayoob. Id. at 51-52. It sought declaratory and injunctive relief, asserting five claims: 1) that ABMSA and/or the Aroostook Band‘s inherent sovereignty prohibited the Commission from enforcing the state MHRA and MWPA against it, 2) that the Aroostook Band‘s sovereign immunity4 achieved the same result, 3) that the Aroostook Band was statutorily exempt from Title VII of the Civil Rights Act of 1964,
The magistrate judge initially dismissed all claims for lack of federal jurisdiction under Rule 12(h)(3). See Aroostook Band of Micmacs v. Executive Dir. Me. Human Rights Comm‘n, 307 F.Supp.2d 95, 96 (D.Me.2004) (”Aroostook I“). A panel of this court reversed on the grounds that the first four claims were properly brought in federal court. See Aroostook II, 404 F.3d at 67, 69, 71, 73. The panel remanded all five claims, as there was possible pendent jurisdiction over the final state law claim. See id. at 73; see also
Part of the panel‘s opinion found that there was a distinction between tribal sovereign immunity and inherent tribal authority. See Aroostook II, 404 F.3d at 67-68. That part of the opinion was later overruled by this court‘s en banc opinion in Narragansett, 449 F.3d at 24-25.
On remand, the magistrate judge considered the merits of both parties’ motions for summary judgment. Judgment was entered for the Aroostook Band on its first claim: that ABMSA and/or inherent sovereignty protects the tribe‘s employment decisions from Maine law. See Aroostook Band of Micmacs v. Ryan, 403 F.Supp.2d 114, 130 (D.Me.2005) (”Aroostook III“). The magistrate judge‘s decision predated the issuance of our en banc opinion in Narragansett.
The magistrate judge‘s reasoning had two primary parts. First, the magistrate judge concluded that the state Micmac Act, with its language subjecting the Aroostook Band to state law, had never taken effect. Id. at 119-22. This failure to become effective, the judge held, was not cured by ABMSA, even though the federal act stated it was ratifying its state counterpart. Id. at 122-23.
Second, the magistrate judge concluded that while MICSA had subjected the Aroostook Band to Maine law, this aspect of MICSA was effectively and impliedly abrogated by two provisions in ABMSA: the grant of federal recognition to the Aroostook Band in § 6(a), and the authorization in § 7(a) for the Aroostook Band to organize its government. Id. at 124-30. Both provisions of ABMSA, the magistrate judge held, were in conflict with MICSA, and the conflicts were resolved in the Aroostook Band‘s favor pursuant to ABMSA‘s § 11. Id. at 124-26.
The magistrate judge permanently enjoined the Commission defendants from applying the MHRA and MWPA to the Aroostook Band, id. at 133, and also issued a declaratory judgment to similar effect against Gardiner, Condon, and Ayoob.5 The Commission defendants and defendants Gardiner and Condon all appealed. We consolidated the appeals, and we now reverse.
II. AN OVERVIEW
We review de novo the magistrate judge‘s disposition of the cross-motions for summary judgment. Jalbert Leasing, Inc. v. Mass. Port Auth., 449 F.3d 1, 2 (1st Cir.2006).
There are several major strands to the Aroostook Band‘s argument. First, the Aroostook Band argues that MICSA did not subject the tribe‘s government to state employment law. Second, even if MICSA did have this effect, the tribe contends that this aspect of MICSA was abrogated by and is in conflict with ABMSA. Throughout, the Aroostook Band interprets the relevant statutes in light of its notions of
The precise question we face is whether Maine is precluded from applying its employment statutes when these statutes permit individuals employed by the Aroostook Band‘s government to file and pursue discrimination complaints with the Commission and through any judicial review thereafter. While the parties have argued in broad terms before us, that is the narrow issue that we decide.6
Our conclusion is that this dispute is resolved in Maine‘s favor based on two federal statutes, MICSA and ABMSA, both of which were statutes designed to settle Indian claims. These settlement acts displaced any federal common law that might otherwise bear on this dispute. MICSA clearly and unequivocally establishes that Maine law applies to the Aroostook Band. And ABMSA does not either explicitly or implicitly conflict with or override MICSA on this point. It instead reinforces this aspect of MICSA.
Whether or not the state Micmac Act ever became effective under state law is not an issue we need to decide. As a federal court, we would be reluctant in any event to decide such a difficult and complex issue of state law without guidance from Maine‘s Supreme Judicial Court. Our analysis and the resolution of these issues turn entirely on federal law.
III. MICSA‘S EFFECT ON THE AROOSTOOK BAND
A. MICSA‘s Text
Maine relies on MICSA‘s language to support its argument that MICSA subjected the Aroostook Band to state employment law. Specifically, MICSA declares that
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, and any lands or natural resources owned by any such Indian, Indian nation, tribe or band of Indians and any lands or natural resources held in trust by the United States, or by any other person or entity, for any such Indian, Indian nation, tribe, or band of Indians 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.
The Aroostook Band argues that even while MICSA made it “subject to ... the laws of the State,” the statute did not go so far as to subject the internal tribal
1. Statutory Clarity and the Abrogation of Sovereignty
The Aroostook Band relies on rules of statutory construction that “obligate us to construe ‘acts diminishing the sovereign rights of Indian tribes ... strictly,’ ‘with ambiguous provisions interpreted to the [Indians‘] benefit.‘” Fellencer, 164 F.3d at 709 (ellipsis and alteration in original) (internal citations omitted) (quoting Rhode Island v. Narragansett Indian Tribe, 19 F.3d 685, 702 (1st Cir.1994); County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 247, 105 S.Ct. 1245, 84 L.Ed.2d 169 (1985)). The Aroostook Band asserts that prior to MICSA‘s enactment, it had the power to control all of its own employment matters as part of its inherent sovereignty. It contends that, judged against a backdrop of federal common law protecting Indian sovereignty, see Rhode Island, 19 F.3d at 701, MICSA was not clear enough to subjugate this aspect of the tribe‘s sovereignty to Maine law.
We disagree. Whatever powers are included within “inherent tribal authority,” Congress may abrogate those powers by statute. See United States v. Lara, 541 U.S. 193, 200, 124 S.Ct. 1628, 158 L.Ed.2d 420 (2004); Washington v. Confederated Bands & Tribes of the Yakima Indian Nation, 439 U.S. 463, 470-71, 99 S.Ct. 740, 58 L.Ed.2d 740 (1979). Although Congress must do so clearly, “there is no requirement that talismanic phrases be employed. Thus, an effective limitation ... need not use magic words.” Narragansett, 449 F.3d at 25.9
MICSA is clear. In
The Aroostook Band tries to interpret this clear statement by Congress as nevertheless exempting specific units of tribal government. Aided by the Houlton Band as amicus, the Aroostook Band sees significance in the fact that
This argument lacks merit. It is not a natural reading of the language and it creates an artificial distinction merely to suit tribal purposes. Further, MICSA recognizes that a governing Council exists as a representative of a tribe. See
Amicus presents another argument why
But amicus ignores the fact that elsewhere in MICSA, the Passamaquoddy and the Penobscots were “authorized to exercise jurisdiction, separate and distinct from the civil and criminal jurisdiction of the State of Maine, to the extent authorized by the [state Settlement Act].”
2. Statutory Clarity in Context: Indian Statutes in Supreme Court Case Law
The Aroostook Band attempts to undercut the clarity of MICSA by comparing it to statutes—most notably Public Law 280 and the Menominee Indian Termination Act of 1954—examined in several Supreme Court cases.
MICSA stands in stark contrast to Public Law 280, Act of Aug. 15, 1953, ch. 505, 67 Stat. 588 (codified as amended at
jurisdiction over civil causes of action between Indians or to which Indians are parties which arise in ... Indian country ... to the same extent that such State has jurisdiction over other civil causes of action, and those civil laws of such State that are of general application to private persons or private property shall have the same force and effect within such Indian country as they have elsewhere within the State.
In finding Public Law 280 ambiguous, the Court relied on reasons that are inapplicable to MICSA‘s
More importantly, the Court in Bryan stressed that Public Law 280 lacked “any conferral of state jurisdiction over the tribes themselves.” Bryan, 426 U.S. at 389. In contrast,
The Aroostook Band also cites to Menominee Tribe of Indians v. United States, 391 U.S. 404, 88 S.Ct. 1705, 20 L.Ed.2d 697 (1968), but Menominee does not assist the tribe. Menominee involved a federal statute, the Menominee Indian Termination Act of 1954, 68 Stat. 250 (repealed 1973), which stated that “the laws of the several States shall apply to the [Menominee] tribe and its members in the same manner as they apply to other citizens or persons within their jurisdiction.” 391 U.S. at 410 (quoting
We disagree and find Menominee not only easily distinguishable, but in fact supportive of our reading of MICSA. Menominee‘s holding is not that the Termination Act alone was too unclear to abrogate aspects of tribal sovereignty. Instead, Menominee held that the Termination Act needed to be considered pari materia with Public Law 280, which was contemporaneously passed and which explicitly said it was not interfering with Indian hunting and fishing rights granted by treaty. Id. at 410-11. The combination of these two statutes created enough ambiguity to favor preservation of Indian rights. With MICSA there is no similar federal statute, passed roughly contemporaneously, that could create a comparable ambiguity. To the contrary, the federal statutory scheme is a consistent whole on the issue in question.
Nor is this the sole fact that distinguishes Menominee. For instance, the Termination Act was abrogating a treaty right, which meant that rules of statutory construction favoring Indians were bolstered by the rule that “the intention to abrogate or modify a treaty is not to be lightly imputed to ... Congress.” Id. at 413 (quoting Pigeon River Improvement, Slide & Boom Co. v. Charles W. Cox, Ltd., 291 U.S. 138, 160 (1934)) (internal quotation marks omitted). By contrast, this case does not involve any treaty. Additionally, the Menominee Court drew support from statements by the Termination Act‘s chief sponsor; he had declared that the act ” in no way violates any treaty obligation with this tribe.” Id. (quoting 100 Cong. Rec. 8537, 8538 (1954) (statement of Sen. Watkins)). The Aroostook Band has pointed to no legislative history for MICSA that is similarly so on point.
The Supreme Court‘s decision in South Carolina v. Catawba Indian Tribe, Inc., 476 U.S. 498, 106 S.Ct. 2039, 90 L.Ed.2d 490 (1986), puts Menominee in context and further confirms our reading of MICSA. Catawba interpreted a statute virtually identical to the Termination Act in Menominee. See Catawba Indian Tribe Division of Assets Act,
3. Statutory Clarity and The Tribal Employment Rule
Despite the statutory clarity, and the Supreme Court case law reinforcing this clarity, the Aroostook Band urges us to apply what it calls the “Tribal Employment Rule.” What it means by this is that there are a number of cases, all from other jurisdictions and involving differently situated tribes,12 holding that general federal
These cases are inapposite. The fact that a tribe may be exempt from federal employment laws says little regarding that tribe‘s status under state employment laws, particularly where Congress has enacted settlement acts. None of these cases say that tribal employment decisions are somehow insulated from state law in the face of a federal statute that specifically applies state laws to tribes.13 We think the “Tribal Employment Rule” is inapplicable in the face of MICSA‘s clarity.
B. The State Settlement Act and Its Relationship to MICSA
We have held that as a matter of reading MICSA,
The state Settlement Act explicitly created an “internal tribal matters” exception for the Passamaquoddy and the Penobscots and not for the Houlton Band, the Aroostook Band, or any other Maine tribe. Compare
The Aroostook Band takes issue with this understanding of the state law. It argues that while the “internal tribal matters” exception in the state Settlement Act refers only to the Penobscots and the Passamaquoddy, the internal matters of all Maine tribes are free from state regulation. The Aroostook Band contends that the exception in the statute is “actually a savings clause that preserves certain aspects of inherent tribal sovereignty and self-governance rights that generally apply to all Indian tribes.” It posits that such a savings clause was needed for the Penobscots and the Passamaquoddy to clarify their retained sovereignty despite their unique status as municipalities under Maine law. Since the other Maine tribes were not given municipal status, the Aroostook Band argues that no “internal tribal matters” exception was needed for them in the state Settlement Act, so little should be inferred from congressional failure to place such an exception in MICSA.
We disagree with this innovative reading of the state Settlement Act. It is not a rational reading of the language. And the reading is also in tension with our precedent. We have held that the “internal tribal matters” exception has its own unique meaning, and that it does not invoke all of Indian common law.14 See Fellencer, 164 F.3d at 709-13 (treating Indian common law as but one factor in determining whether something is an “internal tribal matter“); Akins, 130 F.3d at 488-90 (same); see also id. at 489 (refusing to read the exception “as invoking all of prior Indian law” because “[t]hat would be inconsistent with the unique nature of the Maine settlement“). This is hardly the effect we would expect from a “savings clause.”15
The Aroostook Band‘s reading of the exception is also undercut by strong evidence of legislative intent. The state Settlement Act clearly intended to give the Penobscots and the Passamaquoddy more independence from state law than it gave the Houlton Band (the only other Maine tribe that asserted a claim at the time that act was passed). In its findings section, the state Settlement Act declares: “[T]he Passamaquoddy Tribe and the Penobscot Nation have agreed to adopt the laws of the State as their own to the extent provided in this Act. The Houlton Band of Maliseet Indians and its lands will be wholly subject to the laws of the State.”
In the previous section, we concluded that MICSA clearly subjected the Aroostook Band to state employment laws—a conclusion we reached both from MICSA‘s language and from its context in relation to the state Settlement Act. “[W]hen two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.” Morton v. Mancari, 417 U.S. 535, 551, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974). We think that MICSA and the later-enacted ABMSA are capable of co-existence, and there is no clearly expressed congressional intention that ABMSA makes Maine law inapplicable here despite MICSA‘s language.
The Aroostook Band‘s argument to the contrary proffers two ABMSA provisions as conflicting with MICSA: § 6(a), which gives the Aroostook Band federal recognition, and § 7(a), which authorizes the Aroostook Band to adopt a governing instrument and organize for its common welfare. When read alongside ABMSA § 11, the conflicts provision, the Aroostook Band believes that ABMSA codifies the tribe‘s inherent sovereignty and insulates its employment decisions from state law. In an attempt to reinforce its reading of §§ 6(a) and 7(a), the Aroostook Band also appears to argue that ABMSA impliedly repeals parts of MICSA. We disagree with these arguments. Additionally, we disagree with the repeal argument that is offered by our dissenting colleague (and that was not advanced by the Aroostook Band).
A. Section 6(a): Federal Recognition
The Aroostook Band contends that when ABMSA gave it federal recognition, it used a “term of art” that entitles the tribe to a variety of privileges and immunities.17 Cf.
We flatly reject the argument. MICSA contains express terms to the contrary. It gave the Penobscots and the Passamaquoddy “federal recognition,” see
Indeed, it is hard to see how the Congress that enacted MICSA intended recognition to be a “grant” of sovereignty at all. That Congress understood Maine tribes to be able to invoke sovereign powers even without recognition: our court had decided as much in Bottomly v. Passamaquoddy Tribe, 599 F.2d 1061, 1064-66 (1st Cir.1979), and Congress was plainly aware of our holding, see H.R.Rep. No. 96-1353, at 14 (1980), reprinted in 1980 U.S.C.C.A.N. 3786, 3790 (noting Bottomly‘s holding regarding inherent sovereignty); S.Rep. No. 96-957, at 14 (1980) (same).
Thus we understand “recognition,” at least as used in MICSA, to be merely an acknowledgment that the Passamaquoddy, the Penobscots, and the Houlton Band are eligible for particular federal tax treatment and benefits. It is telling that MICSA only grants federal recognition as part of two sentences dealing with financial benefits and taxes:
As federally recognized Indian tribes, the Passamaquoddy Tribe, the Penobscot Nation, and the Houlton Band of Maliseet Indians shall be eligible to receive all of the financial benefits which the United States provides to Indians, Indian nations, or tribes or bands of Indians to the same extent and subject to the same eligibility criteria generally applicable to other Indians, Indian nations or tribes or bands of Indians. The Passamaquoddy Tribe, the Penobscot Nation, and the Houlton Band of Maliseet Indians shall be treated in the same manner as other federally recognized tribes for the purposes of Federal taxation and any lands which are held by the respective tribe, nation, or band ... shall be considered Federal Indian reservations for purposes of Federal taxation.
We have no reason to think that ABMSA‘s grant of “recognition” used a “term of art” that meant something different from MICSA‘s use of the term. Like the similar provision in MICSA, ABMSA § 6(a) grants recognition as part of a provision discussing federal financial benefits.19 Although there are small differences in wording, those differences cannot plausibly be read as relevant to the Aroostook Band‘s claimed exemption from employment laws, and the Aroostook Band does not so argue.
B. Section 7(a): Government Organization and Documents
The Aroostook Band also points to ABMSA § 7(a) as “affirming” the Aroos-
The [Aroostook] 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. Such instrument and any amendments thereto must be consistent with the terms of this Act. The Band shall file with the Secretary a copy of its organic governing document and any amendments thereto.
The Aroostook Band reads this language as allowing it “to determine the structure and internal operations of [its] governing body,” a power which it contends gives it an exemption from state employment law.
We disagree with this extremely broad reading. First, by its plain terms, § 7(a) says nothing about conferring an exemption from state laws. It merely allows the Aroostook Band to “organize for its common welfare” and “adopt an appropriate instrument in writing to govern [tribal] affairs.” The language cannot be read to exclude the Aroostook Band from discrimination suits brought by former employees.
Second, our view is strengthened by comparing § 7(a) to a similar provision in MICSA. Section 7(a) is clearly based on virtually identical language contained in MICSA‘s § 1726(a). That subsection stated:
The Passamaquoddy Tribe, the Penobscot Nation, and the Houlton Band of Maliseet Indians may each organize for its common welfare and adopt an appropriate instrument in writing to govern the affairs of the tribe, nation, or band when each is acting in its governmental capacity. Such instrument and any amendments thereto must be consistent with the terms of [this act] and the [state Settlement Act]. The Passamaquoddy Tribe, the Penobscot Nation, and the Houlton Band of Maliseet Indians shall each file with the Secretary a copy of its organic governing document and any amendments thereto.
Indeed, the Aroostook Band‘s argument amounts to a claim that ABMSA § 7(a) (and MICSA‘s
While it is not necessary to consult legislative history at all, that history reveals that MICSA‘s
The Aroostook Band disputes this reading of MICSA‘s legislative history by pointing out that
1. ABMSA as a Repeal of MICSA: The Aroostook Band‘s Position
The Aroostook Band makes another argument, designed to advance its claim that ABMSA §§ 6(a) and/or 7(a) give it an exemption from state employment laws. It points to the fact that two ABMSA sections, 6(b) and 8(a), specifically invoke parts of MICSA as applicable to the Aroostook Band. Section 1725(a) is not one of the specifically invoked provisions. The Aroostook Band posits that if Congress had intended
At its core, this is an argument about congressional intent, and it is one that we reject. Courts rarely presume that a statute‘s failure to invoke a prior statute will reflect an intent to repeal, see Morton, 417 U.S. at 549-50, although in an appropriate case this rule can be overcome by the Indian canons of construction, see, e.g., Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766, 105 S.Ct. 2399, 85 L.Ed.2d 753 (1985). In any event, ABMSA‘s failure to reference MICSA‘s
The Aroostook Band‘s reading is implausible. There is another possible explanation for the failure to reference
2. ABMSA as a Repeal of MICSA: The Dissent‘s Position
Our dissenting colleague offers a different interpretation of ABMSA. The dis-
To reach its paradoxical result, the dissent offers the following syllogism. First, the dissent contends that ABMSA essentially repealed MICSA insofar as MICSA dealt with the relationship between Maine law and the Aroostook Band. This is because, in the dissent‘s view, Congress intended for the state Micmac Act to deal with the issue. Second, the dissent contends that the state Micmac Act never became effective as a matter of state law, due to irregularities in its passage. Third, the dissent argues that despite Congress‘s allegedly very strong intent for the state Micmac Act to govern this issue, Congress‘s intent was apparently not quite strong enough for it to have succeeded in ratifying the relevant portions of the state Micmac Act into federal law. Finally, faced with an apparent legal void on the issue, the dissent concludes that the “default option” must necessarily be the full scope of federal Indian common law.
This view of ABMSA diverges significantly from the interpretation offered by the Aroostook Band. Indeed, the dissent goes far beyond the position that the Aroostook Band advocates.26
In any event, we disagree with the dissent‘s view that ABMSA supplanted MICSA‘s
The dissent first points out that Congress did not simply amend MICSA to add the Aroostook Band, but rather enacted a separate statute. Yet that can hardly carry significant weight—the fact that Congress enacted a separate statute is the whole reason why we must apply cases like Morton and the statutory canons that deal with the effect of a later statute on an
The dissent also finds persuasive the fact that ABMSA §§ 6(b) and 8 specifically reference MICSA, and the dissent concludes that the rest of MICSA must have been intentionally omitted. Yet as we explained above, the fact that ABMSA did not explicitly invoke MICSA‘s
The dissent seizes on this, contending that it demonstrates Congress‘s belief that
Perhaps in recognition of this distinction, the dissent acknowledges that our position would have significant force if MICSA and the state Micmac Act contained identical jurisdictional provisions. Yet the dissent argues that they are not the same because while MICSA‘s
Furthermore, the dissent‘s position is internally inconsistent. The dissent concludes that ABMSA “does not directly refer to the State‘s jurisdiction.” Post at 71. Yet it also finds that Congress displaced MICSA‘s allocation of jurisdiction with the state Micmac Act. Because (in the dissent‘s view) the state Micmac Act was not effective, the dissent assumes that Congress must have preferred a void in the law over a reinstatement of MICSA‘s acknowledgment of state jurisdiction in disputes such as this.
Even if ABMSA had supplanted MICSA in favor of the state Micmac Act, the correct conclusion would be that ABMSA had simultaneously ratified the relevant provision of that act into federal law. Cf. Mattingly v. District of Columbia, 97 U.S. 687, 690 (1878) (explaining that Congress can ratify earlier proceedings, notwithstanding the fact that the earlier proceedings were procedurally irregular, “if the irregularity consists in the mode or manner of doing some act ... which [Congress] might have made immaterial by prior law“).
3. ABMSA and the Status of the Houlton Band
A final set of arguments about ABMSA, and its interplay with MICSA, comes from the Houlton Band as amicus curiae. These arguments are also without merit.
First, amicus notes that while MICSA‘s
This argument is misguided. Whatever the difference between the phrases “except as provided in” and “notwithstanding,” it does not bear the weight amicus assigns. By using “except as provided in,” Congress clearly expressed its view in MICSA that state law will apply to Maine tribes unless one of the two exceptions applies. These two statutory exceptions have nothing to do with the application of state law in this case. One,
Second, amicus argues from MICSA‘s
Notwithstanding the provisions of [
§ 1725(a) ], the State of Maine and the Houlton Band of Maliseet Indians are authorized to execute agreements regarding the jurisdiction of the State of Maine over lands owned by or held in trust for the benefit of the band or its members.
Amicus reasons from this that Congress wanted Maine and the Houlton Band to form their own agreement regarding Maine‘s jurisdiction, and thus Congress did not intend MICSA to contravene the Houlton Band‘s sovereignty (with the inference, again, that Congress intended a similar effect for the Aroostook Band in ABMSA).
Amicus misses the mark. While Congress contemplated the state and Houlton Band negotiating over certain matters, it also clearly set the baseline from which that negotiation would proceed. Indeed,
V. OTHER ARGUMENTS
In the previous sections, we concluded that MICSA subjects the Aroostook Band to claims of employment discrimination under state law, and that this is not altered by ABMSA. The Aroostook Band argues
First, the Aroostook Band argues that its sovereign immunity protects it from the jurisdiction of the Maine courts, even if the Aroostook Band is in fact subject to substantive Maine law. But the language of
The Aroostook Band next contends that this court must engage in Bracker preemption analysis. See White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980). When it applies, Bracker analysis has two parts: state law may be preempted either because of the application of federal law, or because of inherent tribal sovereignty. See id. at 142-43; see also New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 333-34 & n.16 (1983). But Bracker analysis does not apply in cases where a federal settlement act applies state law to a tribe. See Narragansett, 449 F.3d at 22-23.28
VI. CONCLUSION
The parties have not challenged the magistrate judge‘s finding that the Aroostook Band is exempt from Title VII, and we do not disturb that conclusion. In all other respects, we reverse the magistrate judge‘s decision.
The magistrate judge did not rule on several of the Aroostook Band‘s alternative claims for relief: count 2, regarding sovereign immunity, count 4, regarding Title VII preemption, and count 5, regarding interpretations of state employment law. But the sovereign immunity claim was briefed to us as an alternative ground for affirmance, we have rejected it, and it is now foreclosed. The other two claims—Title VII preemption of state law and the state law interpretive question based on pendent jurisdiction29—are remanded.
The judgment is reversed and remanded. Costs are awarded to the defendants-appellants.
LIPEZ, Circuit Judge, dissenting.
The majority considers at length whether the Maine Indian Claims Settlement Act (“MICSA“) authorizes the State to enforce its employment discrimination laws against the Aroostook Band of Micmacs and concludes that it does. In my view, however, MICSA no longer governs the relationship between the Band and the State. Instead, the federal Aroostook Band of Micmacs Settlement Act (“ABMSA“) replaced MICSA in 1991 as the federal law governing the Band‘s status, in-
I recognize that all relevant parties—Congress, the State and the Band—assumed that ABMSA‘s passage would leave the Band subject to Maine law. ABMSA, however, relied solely on the State‘s Micmac Settlement Act (“MSA“) to establish Maine‘s jurisdiction over the Band.30 That reliance makes the effectiveness of the state statute critical to the outcome of this case. I agree with the magistrate judge that, with at least one prerequisite unmet, MSA was never validly enacted, and the jurisdiction asserted by Maine and anticipated by Congress never took effect. Consequently, I conclude that the Band is not subject to the Maine employment discrimination laws at issue in this case. Respectfully, therefore, I dissent.
I.
The majority‘s discussion of “The Status of the Aroostook Band under ABMSA” is devoted primarily to addressing, and rejecting, potential conflicts between MICSA and ABMSA. My colleagues specifically consider whether ABMSA‘s provisions on federal recognition and self-government, §§ 6(a) and 7(a), conflict with, and thus exempt the Band from, the MICSA provision subjecting all Maine tribes to state law,
I recognize the canon of statutory construction, cited by the majority, that two statutes capable of co-existence must both be regarded as effective, “absent a clearly expressed congressional intention to the contrary.” Morton v. Mancari, 417 U.S. 535, 551 (1974); see also United States v. Lahey Clinic Hosp., Inc., 399 F.3d 1, 10 (1st Cir. 2005) (“Inconsistency between ... two statutes ... is not enough: ‘where two seemingly inconsistent acts can reasonably stand together, a court must interpret them in a manner which gives harmonious operation and effect to both, in the absence of clear and unambiguous expression of Congressional intent to the contrary.’ “) (citations omitted). The issue, however, is not whether the two statutes may co-exist—I agree that they may—but what effect ABMSA had on MICSA‘s applicability to the Micmacs.
In my view, it is apparent that ABMSA replaces the general “all other tribes” approach of MICSA, as it may have applied to the Band, with a specific statute premised on federal recognition of the Band. In its coverage of subjects addressed in MICSA, this separate statutory settlement with the Micmacs parallels MICSA‘s settlement with the other named tribes. In fact, Congress included language in ABMSA reflecting such an intent. In ABMSA‘s
Despite an expressed intent to afford the Band the same settlement as the Maliseets, it is telling that Congress did not simply amend MICSA to extend like terms to the Micmacs. Rather, Congress specified in ABMSA‘s provisions various entitlements for the Band, including a $900,000 land acquisition fund, see § 4(a), federal recognition, see § 6(a), and the right to “organize for its common welfare,” see § 7(a). ABMSA also contains provisions that parallel MICSA‘s on the Band‘s eligibility for financial benefits and for special services from the federal government. Compare ABMSA §§ 6(a), (c) with
In addition, as the majority acknowledges, ABMSA explicitly incorporated MICSA provisions governing the applicability of federal law, see § 6(b), and implementation of the Indian Child Welfare Act, see § 8.31 If MICSA continued to apply to the Micmacs independently of such refer- ences in ABMSA, there would be no need for ABMSA to explicitly incorporate particular MICSA provisions. The majority offers an explanation for the overlap with respect to § 8—observing that it clarifies the applicability of the Indian Child Welfare Act in Maine—but does not explain the need to adopt MICSA‘s terms for the applicability of federal law in § 6(b). In my view, the reason for both is the same: where Congress wanted MICSA‘s provisions to continue to apply to the Micmacs, it knew that it had to say so explicitly because ABMSA replaced MICSA with respect to the Band. Congress also took this approach with MICSA‘s universal extinguishment of claims of aboriginal title to Maine lands, explicitly recognizing that the Band remained bound by that portion of the earlier statute. See ABMSA § 2(a)(3) (noting that the Micmacs “could have asserted aboriginal title” to lands in Maine “but for the extinguishment of all such claims by the Maine Indian Claims Settlement Act of 1980“).
The specificity and completeness of ABMSA are persuasive evidence that the Act was clearly intended by Congress as a comparable, but independent, statement of the benefits and limitations applicable to the Band. The majority wrongly dismisses the Band‘s argument that ABMSA‘s reference to particular MICSA provisions, and not others, is significant, see supra pp. 41-42 (observing that the lack of reference to MICSA‘s
The majority misses the larger context when it briefly rejects the notion that ABMSA impliedly repealed
Moreover, even if we viewed this case from the perspective of implied repeal, the all-embracing nature of ABMSA would meet the standard to show Congressional intent to “repeal” MICSA insofar as it applied to the Micmacs. Cf. Posadas v. Nat‘l City Bank, 296 U.S. 497, 503 (1936) (“[I]f the later act covers the whole subject of the earlier one and is clearly intended as a substitute, it will operate similarly as a repeal of the earlier act.“); Lahey Clinic Hosp., 399 F.3d at 10 (noting that implied repeal of a federal statute may be shown if, “by clear and manifest intent,” a later act “covers the whole subject matter area and was meant as a substitute“) (citing Kremer v. Chem. Constr. Corp., 456 U.S. 461, 468 (1982)); Granite State Chapter, Assoc. of Civilian Technicians v. Fed. Labor Relations Auth., 173 F.3d 25, 27 (1st Cir. 1999) (“If one Congress clearly and manifestly makes known its intent to supplant an existing law, a court can find repeal by implication.“). That the progression from MICSA to ABMSA is from a general statute to a specific one lends additional support to the view that ABMSA effectively “repealed” MICSA with respect to the Band. Cf. Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766 (1985) (noting the “strong presumption against repeals by implication, ... especially an implied repeal of a specific statute by a general one“) (citations omitted).
The view of the majority that MICSA could be reactivated as a default, imposing state law on the Micmacs in the face of any statutory gap that may have occurred because of the failed enactment of MSA, might be more persuasive if MICSA and MSA contained identical jurisdictional provisions. In such circumstances, one could more plausibly argue that ABMSA was intended to reaffirm an ongoing relationship, first defined by MICSA. MICSA, however, included two separate provisions establishing the State‘s authority over its resident tribes. See
My view that ABMSA replaced MICSA as the federal law governing the Band‘s status and defining the Micmac-Maine relationship—and that MICSA therefore may not be invoked as a default—is reinforced by comments from every member of Maine‘s Congressional delegation at the time of ABMSA‘s passage. In urging a favorable vote on the statute, then-Senators Cohen and Mitchell and then-Representatives Andrews and Snowe all emphasized the need for the new legislation because of the Micmacs’ “omission from the 1980 Maine Indian Claims Settlement Act.” 137 Cong. Rec. H9,652, 9,655 (1991); see also 137 Cong. Rec. S13,360, 13,362 (1991). Among other comments, Senator Mitchell observed:
137 Cong. Rec. at S13,362 (emphasis added).The Micmacs’ exclusion from the 1980 Maine Indian Claims Settlement Act left them in a unique situation, where they have no State Indian assistance and are ineligible for Federal assistance. The bill the Senate is considering today will establish the historical presence of the Micmacs in Maine and provide Federal recognition to the band.
Senator Cohen assured his colleagues that “[t]he bill does not amend the 1980 act, and we do not intend that any of the issues covered in that landmark legislation will be reopened or reconsidered.” 137
ABMSA‘s conflicts provision, § 11, reflects this approach. The provision states: “In the event of a conflict of interpretation between the provisions of the Maine Implementing Act, the Micmac Settlement Act, or the Maine Indian Claims Settlement Act of 1980 ... and this Act, the provisions of this Act shall govern.” MICSA remained in effect, and Congress undoubtedly recognized that the general language in MICSA and the more specific language in ABMSA covered some of the same subject matter. It thus sought to ensure that any seeming conflicts between the two would be resolved by deferring to ABMSA‘s provisions—reinforcing ABMSA‘s preemptive effect on the matters it covered.34
In sum, every indicator points to a congressional intent to supplant MICSA for the Micmacs in all respects in which that earlier statute was not explicitly extended by ABMSA‘s terms. Thus, I can only conclude that, after passage of ABMSA, MICSA no longer controlled Maine‘s jurisdiction over the Aroostook Band of Micmacs.
II.
My conclusion that ABMSA, rather than MICSA, governs Maine‘s authority to impose its employment discrimination laws on the Band requires me to evaluate the Maine Micmac Act. ABMSA relied wholly on the state act to “define[] the relationship between the State of Maine and the Aroostook Band of Micmacs,” § 2(b)(4), and I therefore must confront the Band‘s
The required certification cannot be cast aside as a mere technicality. Given the complex relationship between Maine and its tribes, it would be both injudicious and disrespectful to ignore an express requirement of consent contained in a settlement act.37 Indeed, ABMSA and MSA carry the consent requirement through to future amendments regarding jurisdiction, see
As the magistrate judge pointed out, strict adherence to the consent procedure is consistent with a 1985 legal opinion from Maine‘s Attorney General concerning a similar certification requirement in the “Act Relating to the Time of Penobscot Nation Trust Land Acquisition.” That act required the Penobscot Nation to submit written certification of its agreement with the act‘s provisions within sixty days of the legislature‘s adjournment. The tribe‘s certification was received two days late, and the Attorney General concluded that the only remedy was to reenact the legislation. He observed:
While this is unfortunate, I feel it is especially necessary to be strict in interpreting these provisions in that it deals with the question of land acquisition. Indeed, any other conclusion ... could render a land transaction subject to legal challenge by third parties.
Although MSA does not focus on the question of land acquisition, it is of comparable significance because the statute would diminish the Band‘s sovereign rights. Cf., e.g., Penobscot Nation v. Fellencer, 164 F.3d 706, 709 (1st Cir. 1999) (noting that courts are obliged “to construe ‘acts diminishing the sovereign rights of Indian tribes ... strictly’ “) (quoting Rhode Island v. Narragansett Indian Tribe, 19 F.3d 685, 702 (1st Cir. 1994)). Moreover, the Legislature added the certification requirement to MSA in the face of the Attorney General‘s previously issued opinion,
Indeed, while MSA‘s efficacy is technically an issue governed by Maine law, the limitation it purportedly imposes on the Band‘s sovereignty implicates federal concerns as well. States may not assert jurisdiction over tribes without congressional approval, see Three Affiliated Tribes of Fort Berthold Reserv. v. Wold Eng‘g, 476 U.S. 877, 891 (1986) (“[I]n the absence of federal authorization, tribal immunity, like all aspects of tribal sovereignty, is privileged from diminution by the States.“); Fellencer, 164 F.3d at 709 (“[O]nly Congress can abrogate or limit an Indian tribe‘s sovereignty.“), and courts must remain sensitive to the federal interest even when sovereignty issues arise from state law. Noting that this is a “unique case and there is no controlling authority either way,” appellants urge the court to find implied certification based on the Band‘s expressed support of MSA at the time of its enactment. On matters of Indian sovereignty, however, the magistrate judge is certainly correct that a court may not “finesse what is clearly the absence of a state legislative imposed precondition to the statute‘s valid enactment.” Aroostook Band of Micmacs, 403 F. Supp. 2d at 121.
Moreover, as with the issue of land acquisition, compliance with the certification requirement could have reduced the risk of time-consuming and expensive future conflicts. If the Band‘s governing body had discussed and voted on the certification, tribal officials would have had the opportunity to crystallize their expectations and clarify matters of concern, and the Band‘s formal commitment to the agreement would have protected the State from later claims that the Band objected to certain of its terms. Failure to obtain the Band‘s consent was not, as appellants argue, simply an “irregularity in the final execution of the agreement.” To find implied consent would be to override the very purpose of a certification provision.
I also join the magistrate judge in rejecting the notion that Congress‘s expression of purpose to ratify MSA effectively validated the statute or served to incorporate its substantive provisions into federal law. Unlike MICSA, which affirmatively states that the tribes shall be “subject to the civil and criminal jurisdiction of the State,”
It has now been nearly ten years since the certification problem surfaced, casting doubt on the validity of MSA and its assertion of state jurisdiction over the Band. In the well stated words of the magistrate judge: “There is no doubt that Congress did (and still does) have the power to enact federal legislation which, despite the lack of an effective state law, included the terms of that legislation in the federal act[,] making those terms federal law.” Aroostook Band of Micmacs, 403 F. Supp. 2d at 122. Congress has so far not chosen to act, and the courts are not at liberty to fill the gap.39
III.
I recognize that my conclusions about ABMSA and MSA lead to an anomalous result—the Micmacs are the sole Maine tribe not subject to some level of state jurisdiction. But courts may not ignore established principles of statutory construction or the canons of Indian law to avoid uncomfortable outcomes. The failure of MSA to take effect means that the Micmacs were left with the sovereign rights they otherwise would hold as a recognized Indian tribe under ABMSA. See Aroostook Band of Micmacs v. Ryan, 404 F.3d 48, 62 (1st Cir. 2005) (“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.’ “) (quoting United States v. Wheeler, 435 U.S. 313, 323 (1978)), overruled on other grounds by Narragansett Indian Tribe v. Rhode Island, 449 F.3d 16 (1st Cir. 2006) (en banc)40; Fellencer, 164 F.3d at 709. Although that outcome is not what Congress anticipated,41 it is nonetheless the inevitable result of the choice Congress made to explicitly rely on the state Micmac Act to frame the Maine-Micmac relationship.42
Our prior case law establishes that the sovereign rights retained by the Band foreclose application of the state‘s employment discrimination laws to the Micmacs. Cf. Fellencer, 164 F.3d at 711-13 (rejecting employment discrimination claim against the Penobscot Nation, relying, inter alia, on ” ‘the longstanding federal policy of providing a unique legal status to the Indians in matters of tribal employment’ “) (quoting Morton v. Mancari, 417 U.S. 535, 548 (1974)). I would therefore affirm the judgment of the magistrate judge.
Notes
Federal recognition is hereby extended to the Aroostook Band of Micmacs. The Band shall be eligible to receive all of the financial benefits which the United States provides to Indians and Indian tribes to the same extent, and subject to the same eligibility criteria, generally applicable to other federally recognized Indians and Indian tribes.
Id. at 55-56. This position was also articulated by the Band at oral argument. In explaining the Micmacs’ position in response to questions from the panel, counsel for the Band stated:For example, Congress enumerated in ABMSA § 8(a) that the MICSA Child Welfare provisions apply to the Micmac. ABMSA § 6(b) provides that federal law will apply to the Band as it does to other Maine tribes in MICSA. If Congress intended that all or any other parts of MICSA would apply to the Band, then it would not have specified those it did and not the others. It is a “fundamental principle of statutory construction that the specific trumps the general.” ... Clearly, all of MICSA cannot apply to the Band without rendering the specific inclusions meaningless surplusage.
At that point, a panel member asked: “So, the ‘91 Act basically eliminates the 1980 Act except where it expressly repeats?” Counsel replied: “Correct, your honor, that is our argument.”The 1980 law except where expressly noted by Congress cannot apply to deny the Band its right to self-government. Congress created a wholly separate statute for the Micmac.... The 1991 Act, and only the 1991 Act, except where Congress noted the 1980 Act would apply ...
The substance of the memo‘s analysis is reflected in three section headings: (1) “The 1989 State and 1991 Federal Micmac Settlement Acts Replaced the Earlier Settlement Acts to the Extent the Earlier Acts Applied to the Micmacs,” (2) “The [MSA] does not Subject the Micmacs to State Law because the [MSA] Never Became Effective,” and (3) “Congress Intended the [MSA] and ABMSA to Embody the Settlements with the Micmacs, thereby Repealing the Provisions of the [Maine Implementing Act] and MICSA Previously Applicable to the Micmacs.” In the last of those sections, the memo states: “To the extent Congress intended the earlier settlement acts to continue to apply to the Micmacs, Congress specified those sections in the ABMSA.”The Department, as the primary federal agency responsible for interpreting the Maine Indian settlement acts, has analyzed the legal status of the Aroostook Band of Micmac Indians (Micmacs) and we conclude that under the Aroostook Band of Micmac Settlement Act (ABMSA), the Micmacs have retained their inherent tribal sovereignty.