1. Pursuant to Federal Rule of Civil Procedure 73(b), the partieshave consented to allow the United States Magistrate Judge to conduct anyand all proceedings in this matter. This is an action by the Aroostook Band of Micmacs seeking relief inthis federal forum in the hopes of forestalling current and futureinvestigations and complaints against the Band under the Maine HumanRights Act and the Maine Whistle Blower Protection Act. The ExecutiveDirector and the Members of the Maine Human Rights Commission, and threeformer employees of the Band[fn2] are the defendants. The parties havefiled cross-motions for summary judgment (Docket Nos. 36, 40, 41) and onJanuary 23, 2004, I heard oral argument by the Band and the Commissiondefendants. Because IPage 2conclude that this Court does not have jurisdiction over thiscontroversy, I DISMISS this action based upon lack of subjectmatter jurisdiction. Discussion The Band characterizes this as a case under federal law about whetherCongress has granted the State of Maine authority over the Band'ssovereign government. (PL's Mot. Summ. J. at 1.) They view theCommission's investigation of the Band with respect to the discriminationcomplaints of the three individual defendants as an impermissibleimpingement of their sovereignty in violation of the Band's federalrights. Key to the Band's paradigm is the Band's contention that, becausethe Band never followed through with written certification of itsagreement to the Maine Micmac Settlement Act (MMA), 30 M.R.S.A. §7201 et seq., the Maine settlement act is a nullity.[fn3] The status ofthe Band's sovereignty, the Band believes, requires an interpretation ofthe effect on the Band of a trio of pre and post MMA statutes: the MaineImplementing Act(MIA), 30 M.R.S.A. § 6201 et seq., the Maine IndianClaims Settlement Act (MICSA), 25 U.S.C. § 1721 et seq., and theAroostook Band of Micmacs Settlement Act (ASMSA), 25 U.S.C. § 1721note). Ultimately, the Band would like the Court to reach the conclusionthat the interplay of these acts vis-a-vis the Band has left its inherenttribal sovereignty unscathed and that the Congress has not delegated anyof its Constitutional and Statutory authority over the Band to the Stateof Maine.[fn4] The defendants claim that what really is at issue between the partiesis whether the Band is subject to the anti-discrimination provisions ofthe Maine Human Rights ActPage 3(MHRA) and the Maine Whistleblowers' Protection Act (MWPA)vis-à-vis the termination of the three employee defendants.(Defs.' Mot. Summ. J. at 1.) And, although they would just as soon havethe court reach the merits of this lawsuit, the defendants are of theview that the Band is doing little else than raising in this federal suitdefenses to the state MHRA and MWPA actions and that, as such, theirclaims do not "arise under" federal law when analyzed under thewell-pleaded complaint rule. (Id. at 3-13.) With some reluctance I accept the State's somewhat equivocal invitationto view the Band's complaint through the prism of the well-pleadedcomplaint rule; I must, as it is a question of jurisdiction that I havean obligation to decide, irrespective of the parties' positions on thematter. See American Policyholders Ins. Co. v. Nyacol Prods.,Inc., 989 F.2d 1256, 1258 (1st Cir. 1993) ("Notwithstanding thisaccord, we must pursue the matter. Litigants cannot confer subject matterjurisdiction by agreement."); Narragansett Indian Tribe R.I. v.Rhode Island, ___ F. Supp.2d ___, 2003 WL 23018759, *3 (D.R.I. Dec.29, 2003) ("The parties' cooperative effort to consolidate their cases inone court is admirable, but mutual desire and convenience is plainlyinsufficient to confer subject matter jurisdiction."); Wiener v.Wampanoag Aquinnah Shellfish Hatchery Corp., 223 F. Supp.2d 346, 350n.6 (D. Mass. 2002) ("Irrespective of the vigor with which partiescontest jurisdictional issues, however, it is the independent obligationof the court to assure itself it has jurisdiction in the first place."). The Band's Complaint through the Prism of the Well-PleadedComplaint Rule The Band is seeking declaratory relief pursuant to28 U.S.C. § 2201, which allows for declaratory relief in "a case of actualcontroversy" within this Court's jurisdiction. 28 U.S.C. § 2201 (a).Page 4See also Houlton Band of Maliseet Indians v. Houlton,950 F. Supp. 408, 410 (D. Me. 1996) (discussing the §2201(a) "case and controversy" requirement). Section 1331 of title 28 provides that this Court "shall have originaljurisdiction of all civil actions arising under theConstitution, laws, or treaties of the United States."28 U.S.C. § 1331 (emphasis added). Also at play in thiscase is § 1362, of title 28 which endows the district courts with"original jurisdiction of all civil actions, brought by any Indiantribe or band with a governing body duly recognized by the Secretary ofthe Interior, wherein the matter in controversy arises underthe Constitution, laws, or treaties of the United States."28 U.S.C. § 1362 (emphasis added). Although the phrase "arising under" seems simple enough on the surface,untangling the strands of precedent that have analyzed the concept in theframework of the well-pleaded complaint rule is hardly a facileundertaking, see Templeton Bd. Sewer Comm'rs. v. American TissueMills Mass., Inc., 352 F.3d 33, 36 (1st Cir. 2003) ("Determiningwhether "arising under" jurisdiction exists is a particularly difficulttask."), even with the assistance of the very able briefing and oralargument by the attorneys in this case. I have heeded each side'sargument and studied the proffered precedents and I keep coming backaround to a conviction that the conclusion to the jurisdictional disputearrived at by (then Chief) Judge Hornby in his two decisions on theissue, Penobscot Nation v. Georgia-Pacific Corp., 106 F. Supp.2d 81(D. Me. 2000) (Penobscot Nation I) and 116 F. Supp.2d 201(2000) (Penobscot Nation II) (order on motion forreconsideration), is the conclusion I must arrive at in this case.[fn5]Page 5The District Court litigation in Penobscot Nationarose when three paper companies threatened to initiate statecourt suit(s) against the Penobscot Nation and Passamaquoddy Tribe tocompel them to turn over certain documents under the Maine Freedom ofAccess Act. Penobscot Nation I, 106 F. Supp.2d at 82. The Tribesresponded to the notice of claim by filing a federal lawsuit against thewannabe state court plaintiffs seeking an injunction against any statecourt lawsuit and a declaratory judgment that the Maine Freedom of AccessAct violated the Tribes' federal right to be free of such stateregulation. Id. Section 1331 Analysis Drawing extensively from the same United States Supreme Court precedentbatted about by these parties, the § 1331 "arising under" discussionin Penobscot Nation I is as follows: "Arising under" has been narrowly interpreted: when a plaintiff has a claim created by state law and a defendant has a federal defense, the Supreme Court has made clear that the lawsuit does not "arise under" federal law and that there is no general federal question jurisdiction. See Franchise Tax Bd. of State of California v. Construction Laborers Vacation Trust, 463 U.S. 1, 9-12 (1983). This has come to be known as the "well-pleaded complaint rule," "the basic principle marking the boundaries of the federal question jurisdiction of the federal district courts." Metropolitan Life Ins. Co. v. Tavlor, 481 U.S. 58, 63 (1987); see also American Nat Red Cross v. S.G., 505 U.S. 247, 258 (1992) ("The `well-pleaded complaint' rule applies only to statutory `arising under' cases. . . .") (citations omitted). As a result, the plaintiff cannot file the casePage 6 in federal court, see, e.g., Iowa Management & Consultants. Inc. v. Sac & Fox Tribe, 207 F.3d 488, 489 (8th Cir. 2000); TTEA v. Ysleta Del Sur Pueblo, 181 F.3d 676, 681 (5th Cir. 1999), and the defendant cannot remove it to federal court, see Oklahoma Tax Com'n v. Graham, 489 U.S. 838, 840-41 (per curiam). The answer is the same if the defendant acts first and brings a declaratory judgment action in federal court seeking a declaration that its federal defense trumps the plaintiff's state law claim. Although the defendant has thereby become the plaintiff and ostensibly has pleaded a claim that is federal, there still is no federal jurisdiction. Specifically, in 1983 the United States Supreme Court announced that a 1950 decision (Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667) "has come to stand for the proposition that `if, but for the availability of the declaratory judgment procedure, the federal claim would arise only as a defense to a state created action, jurisdiction is lacking.'" Franchise Tax Bd., 463 U.S. at 16 (quoting 10A Charles A. Wright, Arthur R. Miller and Mary Kay Kane, Federal Practice and Procedure § 2767, at 744-45 (2d ed. 1983)). This statement made definitive what had been suggested in Public Service Commission v. Wycoff Co., 344 U.S. 237 (1952): Where the complaint in an action for declaratory judgment seeks in essence to assert a defense to an impending or threatened state court action, it is the character of the threatened action, and not of the defense, which will determine whether there is federal-question jurisdiction in the District Court. If the cause of action, which the declaratory defendant threatens to assert, does not itself involve a claim under federal law, it is doubtful if a federal court may entertain an action for a declaratory judgment establishing a defense to that claim. This is dubious even though the declaratory complaint sets forth a claim of federal right, if that right is in reality in the nature of a defense to a threatened cause of action. 344 U.S. at 248.106 F. Supp.2d at 82-83. The Court then explained in a footnote: There is confusing language in National Farmers Union Ins. Companies v. Crow Tribe of Indians, 471 U.S. 845(1985). There, the Supreme Court stated: The question whether an Indian tribe retains the power to compel a non-Indian property owner to submit to the civil jurisdiction of a tribal court is one that must be answered by reference to federal law and is a "federal question" under § 1331. Because petitioners contend that federal law has divested the Tribe of this aspect of sovereignty, it is federal law on which they rely as a basis for the asserted right of freedom from Tribal Court interference. They have, therefore, filed an action "arising under" federal law within the meaning of § 1331.Page 7 471 U.S. at 852-53 (footnote omitted). As phrased this federal issue sounds like a defense. But such a reading makes it inconsistent with the well-pleaded complaint rule, which the Supreme Court has otherwise endorsed. Alternatively, National Farmers can be read to say that a Tribe's assertion of power over an outsider must be premised upon federal law. This reading makes it parallel to Oneida Indian Nation v. County of Oneida, 414 U.S. 661 (1974) (dealing with a land claim), and consistent with the well-pleaded complaint rule. See Chilkat Indian Village v. Johnsoa, 870 F.2d 1469, 1473-75 (9th Cir. 1989) (citing Oneida and Farmers Union in support of federal jurisdiction in a case that presented a "close" question whether the Village's claim to enforce its ordinance arose under federal law).Id. at 83 n.3. Based on this analysis, the Court concludedthat the Tribes' potential defense to the state lawsuit did not, underthe well-pleaded defense rule, give the federal court § 1331jurisdiction. Id. at 83. On appeal the First Circuit picked no bones with this conclusion: [A]s the district court pointed out in its very able decision, Penobscot I, 106 F. Supp.2d at 82, it is not enough to satisfy traditional "arising under" jurisdiction under section 1331 that a case involve a federal issue. Although this would certainly satisfy Article III, the Supreme Court has read the identically-worded statutory grant more narrowly, Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 494-95 (1983), and has, for some time, required that it be apparent from the face of the plaintiffs complaint either that a cause of action arise under federal law, Am. Well Works Co. v. Lavne & Bowler Co., 241 U.S. 257, 259-60 (1916), or at least (in some cases) that a traditional state-law cause of action (e.g., a tort or contract claim) present an important federal issue. This latter exception, often associated with Smith v. Kansas City Title & Trust Co., 255 U.S. 180, 201-02(1921), might include a case in which a state-law contract claim rests on a federal regulatory requirement. E.g., Price v. Pierce, 823 F.2d 1114, 1120-21 (7th Cir. 1987). cert. denied, 485 U.S. 960(1988). This circuit treats Smith as good law but as limited to cases where an important federal issue is a central element in the state claim. Almond v. Capital Props., Inc., 212 F.3d 20, 23-24 & nn. 2-3 (1st Cir. 2000). The Tribes in this case do not rely on Smith. In all events, there remains an overriding requirement that the federal claim or issue 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. Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 153-54 (1908). As a settled corollary, the restriction cannot be avoided by having the beneficiary ofPage 8 defense assert the defense preemptively in a claim for declaratory or injunctive relief. This is just what the district court said that the Tribes were attempting to do.254 F.3d at 321-22. (footnote omitted).[fn6] In the case at hand I must look at the individual defendants' MHRA andMWPA complaints as they are tendered in the state court. Here is how Isee that playing out. The state-court actions against the Band goforward. The Band answers and asserts as affirmative defenses thecontents of their three (non-Title VII) counts in this declaratoryaction. One affirmative defense (Count I of this complaint) is thatbecause the MMA did not take effect, and ABMSA impliedly repealed theprovisions of MIA and the MICSA applicable to the Band, the Band retainsits inherent tribal authority and the Band, therefore, cannot be suedunder the State's anti-discrimination acts. Another affirmative defense(Count II of this complaint) alleges that the band's tribal sovereignimmunity, as a matter of federal law, bars the enforcement of the MHRAand the MWPA against the Band and that the Commission's continuedenforcement of the MHRA and the MWPA against the Band violates federallaw, e.g., the Supremacy Clause and ABMSA. Last, but certainlynot least, is the tail that wags this dog: The thirdaffirmative defense (Count V here) alleges that the Band is not a"person" and thus not an "employer" within the meaning of either the MHRAor the MWPA as those terms are defined in the two acts and, thus, theBand is not subject under state law to suit under the acts. It is the Band's argument on this third ground, made with some force inthe beginning of its motion for summary judgment, which drives home thefact that thePage 9counts implicating federal law are but defenses to thestate law claims. It is not even clear as a matter of state law whetheror not the Band is subject to suit under the MHRA and/or the MWPA perthose acts' respective definitions of person and employer. If the answerto this state law question is negative, there is no case orcontroversy vis-a-vis the settlement act questions raised in Counts I andII. These counts involving federal questions only spring to life asdefenses should the presiding court determine that one or other of thestate anti-discrimination acts applies, by internal statutory definition,to the Band. This reality makes the Band's § 1331 case lesspersuasive than that of the Penobscot Nation plaintiffs'. With respect to the Count I concern about the impact of the Band'sfailure to follow-through with written certification on the validity ofthe MMA, this too poses, first off, a substantial question ofstate law. How would the Maine courts respond to this scenariowhere there is an allegedly unintentional failure on the Band's part tocomplete a ministerial act, but where the Band accepts the benefit of thebargain and the State, the Band, and the United States Congress, operatedfor quite some time under the assumption that the State act did takeeffect as planned?[fn7] This question, too, must be answered in a mannerthat nullifies the MMA (at least in part) before a court would or shouldreach the federal law inquiry into the status of the Band's sovereigntyvis-a-vis the State and thePage 10Federal governments. See cf. Morales v. Trans WorldAirlines. Inc., 504 U.S. 374, 382 (1992) (injunctive reliefvis-à-vis enforcement of state regulations must be limited tocases where the application of the regulation is imminent, as "[a]nyother rule (assuming it would meet Article III case-or-controversyrequirements) would require federal courts to determine theconstitutionality of state laws in hypothetical situations where it isnot even clear the State itself would consider its law applicable."). With respect to the First Circuit discussion of Smith,Franchise Tax Board, Price and Almond inPenobscot Nation III, I conclude that this case does notwarrant more than a statement of the obvious to dispatch any suggestionthat it raises the "legal quandary" "generally referred to as thelitigation-provoking problem, or the presence of a federal issue in astate-created cause of action." Templeton Bd. Sewer Comm'rs,352 F.3d at 37 (citing Merrell Dow [Pharm., Inc v. Thompson],478 U.S. [804,] 809-10 (1986)). The private claims against the Band underMHRA and MWPA do not have an important federal issue as a centralelement, see Penobscot Nation III, 254 F.3d at 321 (citingSmith, 255 U.S. at 201-02); Gattegno v. Sprint Corp.,___ F. Supp.2d ___, 2003 WL 22955867, *3 (D. Mass. Dec. 11, 2003), and theindividual state-law discrimination claims do not rest on a federalregulatory requirement. See Smith, 255 U.S. 180, 201-02(1921);Penobscot Nation III, 254 F.3d at 321 & n.3. The resolutionof the state court plaintiffs' entire case may not even requiresome application of federal law, a dynamic that would be a farcry from rising to the level of "a substantial question offederal law." Templeton Bd. Sewer Comm'rs, 352 F.3d at 41. Examining the precedents proffered by both sides, this simply is not acase that poses a question of whether "federal jurisdiction existsbecause the federal issue of tribalPage 11sovereignty will inevitably come up in thelawsuit." Penobscot Nation II, 116 F. Supp.2d at 203 (emphasisadded). Compare Cayuga Indian Nation N.Y. v. Union Springs,293 F. Supp.2d 183, 190 (N.D.N.Y. 2003) ("Here, unlike in Penobscot,neither the Nation nor the federal government has expressly agreed thatthe Nation is subject to state or local zoning regulations. Therefore,the issue of whether the Property is Indian Country, which is asubstantial question of federal law, must be resolved in order to giveeither party the relief requested. For this reason, Penobscotis clearly not controlling here."); see also id. at 191. Thesame principle holds true for the cases analyzing the question under thedeclaratory relief "case and controversy" motif. See Prairie Band ofPotawatomi Indians v. Pierce, 253 F.3d 1234, 1241-42 (10th Cir.2001) (tribe having established its own motor vehicle registration andtitle system presented a "case and controversy" and had standing topursue declaratory relief, having received indications from the statethat the tribal registrations and titles would not be recognized outsidethe reservations and with tribal registrants having been cited threetimes and warned once by the state); Rhode Island v. NarragansettIndian Tribe, 19 F.3d 685, 693 (1st Cir. 1994) (undertaking aripeness analysis in a declaratory action by a tribe seeking to establishgaming on tribal land); Houlton Band of Maliseet Indians,950 F. Supp. at 410 (undertaking a 28 U.S.C. § 2201 (a) "case andcontroversy" analysis, observing that the town had assessed taxes, issuedtax liens, and threatened foreclosure and the declaratory claim involved"certain and definite events that would have immediate effect absent theCourt's declaration of the Plaintiffs' rights" under the federal IndianLand Claims Settlement). I also do not consider this case to be postured in a mannerthat invites Ex parte Young, 209 U.S. 123 (1908) injunctiverelief. State officials are not seeking to enforce aPage 12state regulation in violation of the Band's federalrights. As to the three private actions under the state laws looming inthis case, the Commission defendants are not state regulators that arethreatening to take action against the Band to enforce a regulatoryscheme as was the case in Shaw v. Delta Air Lines. Inc.,463 U.S. 85 (1983) and Morales v. Trans World Airlines, Inc.,504 U.S. 374(1992).[fn8] I appreciate, with the assistance of PhilipMorris Inc. v. Harshbarger, 946 F. Supp. 1067, 1071-72(D.Mass. 1996), the murky waters one can wade into in applying the §1331 "arising under well-pleaded complaint rule, while heeding the Exparte Young jurisdictional call, and attempting to understand therelevance of the different outcomes reached in Public ServiceCommission of Utah v. Wycoff Co., 344 U.S. 237(1952) and Shaw and Morales. However, as in Colonial PennGroup, Inc. v. Colonial Deposit Co., 834 F.2d 229 (1st Cir.1987) and Nashoba Communications Ltd. Partnership No. 7 v. Town ofDanvers, 893 F.2d 435 (1st Cir. 1990), the statelaw cases the Band seeks to enjoin are by private individuals and I thinkthere is a distinction of some significance between the threat of theapplication of a state regulation or law against the federal declaratoryplaintiff by a state regulatory agent, whether the threatenedsanction be civil or criminal (as was the case in Philip Morris). seee.g., Summit Medical Assocs. v. James, 998 F. Supp. 1339 (M.D.Ala. 1998), and the Maine Human Right's Commission'sinvestigatory/quasi-judicial role in essentially pre-screening what are atheart lawsuits by private citizens seeking a remedy that will redound tothe private plaintiffs on a case-by-case basis. (I certainly could notenjoin the state courts from proceeding with its review of the plaintiffdiscrimination suits. See 28 U.S.C. § 2283.)Page 13The parties acknowledge that the Band's request for declaratory reliefvis-a-vis the status of its inherent sovereignty might take on a wholenew complexion if the Band was asserting, say, a right to hunt withouta state license.[fn9] Section 1362 Analysis I also stage a revival of Penobscot Nation I & II withrespect to the § 1362 analysis (left dormant by the First Circuit),recognizing that this jurisdictional question presents an even moretroublesome quandary than § 1331, as it remains unclear how far thatprovision is meant to reach with respect to conferring federaljurisdiction over suits to which Indian tribes or bands are a party. On this score, the First Circuit stated in Penobscot NationIII: In this case the Tribes say that even if section 1331 does not support jurisdiction, section 1362 will do so. The "arising under" language in the two statutes is parallel; and the purpose of section 1362 was probably just to confer federal jurisdiction where it otherwise would exist over Indian cases without regard to the amount-in-controversy requirement that governed section 1331 at the time (but has been since repealed). See Blatchford v. Native Vill. of Noatak 501 U.S. 775, 784 (1991). Yet, the Supreme Court has not settled definitively the question whether section 1362 reaches any further, and if so, how far, beyond section 1331. See Blatchford, 501 U.S. at 784-85; Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463, 472-75 (1976).254 F.3d at 322-23.Page 14 The District Court in Penobscot Nation I went to some painsto parse the significance of § 1362. The opinion fully discusses thehistory and commentary associated with § 1362 since its adoption in1966. Ultimately, Judge Hornby concluded that § 1362 does not expandthe jurisdictional reach of "arising under" jurisdiction in a case suchas this one. Penobscot Nation I, 106 F. Supp.2d at 86, ("Insum, the `arising under' language of the two jurisdictional statutes isin all material respects comparable; the modern case law reads them aslargely equivalent; and even the `something more' of Moe andBlatchford seems to be limited to suits the United States might have brought as trustee."). I can add nothing further to the analysiscontained within that decision. In ruling on the motion for reconsideration, the District Court furtherreasoned with respect to the First Circuit's Penobscot Nation v.Fellencer, 164 F.3d 706, 708 (1st Cir. 1999): The Tribes argue that the paper companies cannot make the case that the state Freedom of Access Law applies, however, without using federal law, and therefore that jurisdiction exists even under the well-pleaded complaint rule. The argument goes as follows. The Freedom of Access Law, by its terms, applies to municipalities. It is the separate Implementing Act upon which the paper companies must rely to hold the Tribes to some of the responsibilities of municipalities. But the Implementing Act could not become effective without ratification by Congress. Therefore, the paper companies' claim presents a federal claim under the well-pleaded complaint rule. This argument fails because of Justice Cardozo's 1936 opinion in Gully v. First National Bank Quoting in part from an earlier decision, he said: The federal nature of the right to be established is decisive — not the source of the authority to establish it. Here the right to be established is one created by the state. If that is so, it is unimportant that federal consent is the source of state authority. To reach the underlying law we do not travel back so far. By unimpeachable authority, a suit brought upon a state statute does not arise under an act of Congress or the Constitution of the United States because prohibited thereby. With no greater reason can it be said to arise thereunder because permitted thereby.Page 15 299 U.S. 109, 116 (1936) (citation omitted). The same conclusion applies here. The fact that Congress ratified what Maine did and thereby permitted Maine to legislate concerning the Tribes — or that it prohibited Maine from doing so — does not suffice to let the Tribes meet the test for "arising under" federal jurisdiction. But as I have said, the outcome of one recent First Circuit decision is difficult to square with this analysis. In Fellencer, the First Circuit ruled that the Penobscot Nation was entitled to a federal court injunction against the state court lawsuit of a terminated female employee who was suing the Nation for state-prohibited sex discrimination. See 164 F.3d at 707. The Nation's federal "claim" was that federal law — specifically, the "internal tribal matters" exception that the Tribes also assert here — prevented Maine courts from applying the Maine Human Rights Act. Under well-pleaded complaint analysis, that "claim" sounds like a federal defense that the Nation could have asserted in state court — not enough to confer federal jurisdiction. Nevertheless, without mentioning the well-pleaded complaint rule, Fellencer assumed that jurisdiction existed. I have examined the trial court record from this District and discovered that the well-pleaded complaint rule was never briefed. The lawyer who represented the Penobscot Nation in that case is the lawyer for the Tribes in this case, and he informed me at oral argument that the well-pleaded complaint rule likewise was never mentioned on appeal. I do not therefore read Fellencer as having rejected the well-pleaded complaint rule for Indian cases.116 F. Supp.2d at 203-05 (footnotes omitted). See also CayugaIndian Nation N.Y., 293 F. Supp.2d at 188; see cf.Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc.,535 U.S. 826, 832-34 (2002) (discussing the continued applicabilityof well-pleaded complaint rule in the context of the patent-law "arisingunder" provision of 28 U.S.C. § 1338). My straight-up reliance onPenobscot Nation I & II is not simply a maneuver to save metime and effort; it also has the potential of saving the parties' timeand effort In terms of the legal questions of federal jurisdiction thedispute here is sufficiently parallel to that involved in PenobscotNation I & II that the earlier analysis covers all the bases andit has been well-vetted by the First Circuit and the parties here (thoughwithout a final clean bill of health). I hesitate to add "something more"to my decision that might deflect this case from a straight-forwardresolution of whether or not there is "somethingPage 16more" to the "arising under" language of § 1362. I doobserve that in this case the § 1362 "something more" would have tobe even more expansive than posed in Penobscot Nation wherethere was no argument that under state law the Maine Freedom ofAccess Act was inapplicable to the tribes irrespective of federal law, sothe federal issue was bound to arise. As stated above, this case has thepotential to be disposed of purely on state law grounds. I recognize that my § 1331 and § 1362 determinations (absent anintervening review by the First Circuit) means that the Bandmay find itself in a position in which it must accept the Mainecourt's determination of the federal question of its sovereignty. I alsorecognize that some view this forum as unfriendly on this topic. JudgeHornby addressed this reality when he denied the Tribes' motion forreconsideration: The Tribes argue that the consequence of this reasoning is to deprive them of the federal protection of their sovereignty — that it is an affront to that sovereignty to have to appear in state court to assert the defense and even worse if the state courts reject it. The premise of the well-pleaded complaint rule, however, is that federal issues can be handled perfectly well by state courts (indeed, there is no constitutional requirement that Congress establish inferior federal courts) and are to be addressed there when they are a defense rather than part of the federal claim. Not surprisingly, the State, an intervenor in this lawsuit, claims that it would be affronted if the opposite result were reached, because then every assertion of its jurisdiction under the Implementing Act would have to be raised in federal court, whereas part of the Indian Land Claims Settlement, it says, was to confirm state jurisdiction in enumerated areas. See Passamaquoddv Tribe v. Maine, 75 F.3d 784, 787 (1st Cir. 1996) ("Among other things, the Settlement Act . . . submitted the Passamaquoddies, the Penobscots, and their tribal lands to the State's jurisdiction."). Neither of these arguments affects the outcome here. The well-pleaded complaint rule exists. It has been criticized by the commentators, see 13B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3566, at 85, 89-90 (2d ed. 1984), but until it is overruled, I simply apply it.Page 17Penobscot Nation II, 116 F. Supp.2d at 204-05.[fn10]As the well-pleaded complaint rule has not since beenoverruled, and I can perceive no alternative avenue to avoid the questionin this case, I have applied it here to the best of my ability with theassistance of the earlier efforts of Penobscot Nation I &II. We remain without "a clear appellate ruling that it does or doesnot apply in cases where issues of Indian sovereignty are in dispute."Id. at 205. See Penobscot Nation III, 254 F.3d at323. The Two Title VII Counts If I could give any weight to the Band's assertions vis-a-vis theviability of Title VII exemption/preemption counts, then the case for"arising under" jurisdiction would have new vitality. However, I find theBand's argument on this score to be makeshift and makeweight. Count III of the complaint asserts that, because Title VII of the CivilRights Act, 42 U.S.C. § 2000-2000e-17 exempts Indian Tribes from thedefinition of employers, Title VII is not applicable to the Band. TheBand alleges that the Commission has a practice of filing charges ofdiscrimination on behalf of the complaining individuals with the EqualEmployment Opportunity Commission (EEOC) for dual filing purposes whichis an impermissible assertion that Title VII is applicable to the Band.Even if I assume that the Commission is filing these charges with theEEOC, a practice which the State suggested at oral argument has beenremedied, such act would have no possible operativePage 18effect under the law. The First Circuit addressed theTitle VII exemption in Fellencer as it related to the PenobscotNation. "Although we have refused to read into this reference anincorporation of `all prior Indian law' because that `would beinconsistent with the unique nature of the Maine settlement,'" the Courtexplained, "we also recognized that Congress `explicitly made existinggeneral federal Indian law applicable to the Penobscot Nation in theSettlement Act.'" 164 F.3d at 712 (quoting Akins v. PenobscotNation, 130 F.3d 482, 489 (1st Cir. 1997)). "That body of lawincludes Congressional enactments excluding Indian tribes from Title VIIcoverage and limiting civil rights claims against the tribes to tribalforums." Id. (citing Santa Clara Pueblo v. Martinez,436 U.S. 49, 65-66 (1978)). See also Shannon v. Houlton Band ofMaliseet Indians, 54 F. Supp.2d 35. 38-41 (D.Me. 1999). Although theBand's (somewhat unsettled) status under the settlement acts is notidentical to the Penobscot's, see Boudman v. Aroostook Band ofMicmac Indians, 54 F. Supp.2d 44, 48 (D. Me. 1999); see alsoShannon, 54 F. Supp.2d at 38-41,[fn11] do not doubt that the Band iscorrect in its argument that they are protected from suits under TitleVII due to the exemption, which is a conclusion already reached by thisDistrict Court in Boudman. 54 F. Supp.2d at 49. The filing ofany charges with the EEOC by the commission defendants' administrativestaff is at most an ultra vires act and does not present any live case orcontroversy that would give this court subject matter jurisdiction. Related to the above discussion is the theory of Count IV, whichalleges that Title VII actually preempts the Maine acts to the extentthat "the respective definitions of `employer' contained in the MHRA andthe MWPA include Indian tribes." I consider thePage 19question settled as to the Maine tribes: "[T]he Title VIIexemption does not preempt state law with respect to the Band."Shannoa, 54 F. Supp.2d at 40. Shannon drew thisconclusion from the First Circuit's statement in Fellencer onthe reach of Houlton Band of Maliseets v. Maine Human RightsCommission, 960 F. Supp. 449 (D. Me. 1997): "The court in HoultonBand was opining on whether the Title VII exemption operated topreempt state law with respect to the Maliseet Indians, an outcome whichclearly was not intended by the Settlement Act." 164 F.3d at 711 n.3.While I recognize that the Band claims a different status than theSettlement Act confers upon the Maliseets, the fact remains that if theMHRA does not reach them under federal law it is because of theirassertion that the MMA and the federal settlement acts have no effectupon them, not because of the exemption found in Title VII. Thatexemption does not preempt the MHRA. As with Count III, Count IV does notraise a case or controversy conferring jurisdiction upon this court. Conclusion Because I conclude that this complaint does not "arise under" federallaw, I DISMISS the complaint, with its attendant cross-motionsfor summary judgment, based upon lack of subject matter jurisdiction.This jurisdictional determination applies to all the defendants includingthe single defendant who has not participated in the briefing.
2. Lisa Gardiner, Tammy Condon, and Beverly Ayoob are the threeindividual defendants. Gardiner and Condon have filed suits in the statecourt and those suits have been stayed pending the outcome of thisaction. These two defendants have filed a motion seeking judgment intheir favor should the Commission defendants prevail. (Docket No. 40.) Atthe time these motions were filed Ayoob's charges of discrimination werestill being investigated by the Maine Human Rights Commission. Ayoob isproceeding pro se in this forum and has not filed any pleadingsin this summary judgment stage of the federal litigation.
3. Evidently neither the Band nor the State realized that thiscertification requirement had been inserted into the MMA's effectivenessmechanism.
4. The Band also argues that federal anti-discrimination lawpreempts or exempts them from the Maine acts. 1 address this contentionbelow.
5. In affirming the dismissal of the Penobscot Nation's complaint onother grounds, the First Circuit described the question of whether thewell-pleaded complaint rule dictated dismissal as a "difficult question."Penobscot Nation v. Georgia Pacific Corp., 254 F.3d 317, 320(1st Cir. 2001) (Penobscot Nation III), describing the order onthe motion to dismiss as "Very able," id. at 321. It stated:"The district court's treatment of the issue under section 1331 isstraightforward and, with one possible qualification as to nomenclature,arguably correct." Id. at 322 ("The qualification is that underBell v. Hood, 327 U.S. 678, 685 (1946), and its progeny, theSupreme Court has often said that a colorable claim of afederal cause of action will confer subject matter jurisdiction eventhough the claim itself may fail as a matter of law on furtherexamination."). In Templeton Board of Sewer Commissioners,the First Circuit responded to the parties citation of its PenobscotNation I § 1331 discussion: "While that case engaged in someanalysis of the issue of federal jurisdiction," the Court observed, "weheld that regardless of the jurisdictional issue, the district court wasbound by the ruling of the Supreme Judicial Court of Maine. Therefore,the case was decided on issue preclusion grounds, not under § 1331,and is irrelevant to the present issue." 352 F.3d and 39 n.6 (1st Cir.2003). The reach of the "arising under" § 1362 jurisdiction remains,likewise, unclear.
6. In a footnote the Court offered: "Although the Supreme Court hascited Smith with approval, its present scope remains in somedoubt. See Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804,808-10 & n. 5, 813-15 & n. 12 (1986); Franchise Tax Board v.Constr. Laborers Vacation Trust, 463 U.S. 1, 9 (1983)."Id. at n.3.
7. I recognize that in Atkins the First Circuitcharacterized as a question of federal law the interpretation of"internal tribal matters" in the Penobscot and Passamaquoddy Mainesettlement act. See Atkins v. Penobscot Nation, 130 F.3d 482,485 & n.4 (1st Cir. 1997). There was a clearer iteration of thereason for this characterization in Fellencer: "Because thephrase `internal tribal matters' was adopted by the federal SettlementAct, the meaning of that phrase raises a question of federal law." 164F.3d at 708 (citing Akins, 130 F.3d at 485). Thus while thecontent of a state statute may be relevant to the interpretation offederal law, that possibility does not make the state ratificationprocess into a federal question. Indeed, at oral argument the Band wasadamant, with respect to any contention that the later AMBSA ratified theMMA despite the notification miss-cue, that Congress cannot tell theState how to enact its settlement legislation because this was squarely amatter under State law. On the other hand, a federal question would ariseif what was at issue was a dispute about the statute's text concerningthe status of the Band's sovereignty vis-a-vis the State under the MMA asadopted by ABMSA.
8. On this score, Morales concluded: "We thinkYoung establishes that injunctive relief was available here. Aswe have described, the attorneys general of seven States, includingpetitioner's predecessor, had made clear that they would seek to enforcethe challenged portions of the guidelines (those concerning fareadvertising) through suits under their respective state laws."Morales, 504 U.S. at 381.
9. The complexion of this case would be different also ifthe Commission had issued a subpoena to force the Band to turn-overinformation. However, 1 am not convinced that such a change of posturewould cause me to embrace, without hesitation, the case at the openingsalvo, as there are still two layers of Maine law that must be workedthrough before considering any defenses relating to the scope of theBand's sovereignty under federal law. It is unclear under Maine lawwhether the Maine discrimination laws are even applicable to the Band.Prior federal cases on this subject have assumed that because the MHRAdoes not contain an exemption for the tribes, they are covered entities.However, in this case the Band forcefully argues that an Indian tribedoes not fall within the state statutory definitions of "person" or"employer," an issue never considered by the Maine state courts. In thecase of the hunting without a license hypothetical, Maine law clearlyprohibits these acts and the state regulatory powers would be brought tobear, as in the case of the Kansas vehicle licensing and registrationlaws in Prairie Band of Potawatomi Indians, 253 F.3d 1234.Additionally, the ratification issues surrounding the MMA have yet to beresolved and that state law issue would remain an initial layer even in ahunting without a state license hypothetical.
10. It is possible for disputes of this ilk to proceedsimultaneously as a state enforcement action in a state forum and afederal declaratory action in the District Court. See NarragansettIndian Tribe of Rhode Island, 2003 WL 23018759, *4 (dismissing underthe well-pleaded complaint rule the state's enforcement action underRhode Island's Uniform Declaratory Judgments Act seeking a declarationthat the Tribe's failure to comply with Rhode Island's cigarette salesand excise tax scheme was unlawful, while proceeding to address thefederal action by the Tribe seeking declaratory judgment that State couldnot enforce its cigarette sales and excise tax scheme against Tribe withrespect to smoke shop located on Tribe's Settlement Lands). Under thisscenario the tribe is free not to raise the federal law affirmativedefense in the state action, see Philip Morris Inc., 946 F. Supp.at 1078-79& n.13, in an effort to assure that the federal question isanswered in the federal forum.
11. Circuit Judge Lipez provided a concise summary of the backdropof the Penobscot and Passamaquoddy settlement process inFellencer. See 164 F.3d at 707-08.