Houlton Band v. Boyce, corrected text
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MAINE SUPREME JUDICIAL COURT		Reporter of Decisions			

Decision: 1997 ME 4
Docket: ARO-96-487
Argued November 7, 1996
Decided January 6, 1997

Panel:  WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, RUDMAN,
DANA, and LIPEZ,
JJ.

HOULTON BAND OF MALISEET INDIANS

v.

DANA BOYCE, et al.

DANA, J.

	[¶1]  	Defendants Dana Boyce, Sally Lindsay, Anthony
Tomah, and
Frederick Tomah appeal from an order of the Superior Court
(Aroostook
County, Pierson, J.) granting the Houlton Band of Maliseet
Indians' motion
for a summary judgment.  They contend that the court lacks subject
matter
jurisdiction to enjoin them from interfering with tribal
administrative
business and to allow Katahdin Trust Co., the Band's bank, to pay
the Band's
funds to the tribal council without liability.  They also argue
that the court is
precluded from entering a summary judgment because the Band failed
to
exhaust its available administrative remedies and because there
are genuine
issues of material fact in dispute.  We affirm the judgment.
	[¶2]  	In September 1995 the defendants were members of
the Band's
six-person tribal council when a dispute arose within the council. 
The
defendants took over the tribal administration building located on
the
Band's property and refused to allow the other council members
inside. 
Administrative functions ceased, including financial services
provided by the
Band for its members.  Katahdin Trust Co. froze the Band's
account.
	[¶3]  	A meeting of the Band's general membership was held
on
October 1.  A majority of those members present voted to remove
the
defendants from the tribal council and in their place elected
replacements
to serve until an election could be conducted in accordance with
the Band's
election ordinance.  On October 2 the Band's chief, Clair
Sabattis, wrote to
the U.S. Department of the Interior, Bureau of Indian Affairs
("the Bureau")
requesting that it recognize the council members elected on
October 1. 
The Bureau refused Sabattis's request, but also refused to
recognize the
authority of the defendants to act on behalf of the Band.
	[¶4]  	On October 4 Chief Sabattis and the new tribal
council filed a
complaint in the Band's name against the defendants and the
Katahdin Trust
Co., seeking both declaratory and injunctive relief.  The Band
requested that
the court find: (1) the defendants were duly removed from the
tribal
council; (2) the temporary council members were duly elected; and
(3) the
Chief and the new tribal council could proceed with tribal
business.  The
complaint also requested that the court enjoin the defendants from
preventing entry into the administration building, and that
Katahdin Trust
be ordered to recognize the authority of the chief and the new
council to
control the Band's funds.{1}  The Band simultaneously sought a
temporary
restraining order seeking the same relief.  The court issued an
order
temporarily enjoining the defendants from interfering with tribal
business,
and ordering Katahdin Trust to disburse funds to the tribal
council
consisting of the four temporary members elected on October 1,
Chief
Sabattis, and the two remaining original members.
	[¶5]  	After the defendants filed a motion alleging that
the court lacked
subject matter jurisdiction over internal tribal matters, the
court modified
its temporary restraining order to: 1) prohibit the defendants
from
preventing anyone's access to the administrative building; and 2)
allow
Katahdin Trust to recognize without liability the tribal chairman
as the
representative of the tribal government.  The court declined to
declare the
legitimacy of any members of the tribal council.
	[¶6]  	On January 23, 1996, the Band moved for a summary
judgment
attaching affidavits stating that the Band held a general election
on
December 30, 1995, in which six new tribal councilors were
elected, and
that the election results were certified by the Band's election
supervisor as
required by the tribal election ordinance.  The Band requested
that the
court: 1) permanently enjoin the defendants from interfering with
tribal
administrative functions; and 2) allow Katahdin Trust to recognize
Clair
Sabattis and the council elected on December 30 as the Band's
representatives. Without filing supporting affidavits, the
defendants
responded by alleging that the December election and certification
were not
conducted properly and contending that Chief Sabattis had not
exhausted
his available administrative remedies because he could have
appealed the
Bureau's refusal to recognize the validity of the October 1
election.
	[¶7]  	The court granted the Band's motion for a summary
judgment
and permanently enjoined the defendants from interfering with
tribal
administrative functions and allowed Katahdin Trust to recognize
the chief
and the new council as the governing authority of the Band.  The
court again
declined "to involve itself in the matter of tribal
self-government, leaving
such matters to the general membership of the Houlton Band of
Maliseet
Indians."  The defendants appeal the court's summary judgment.
I.
	[¶8]  	The defendants contend that the court lacks
jurisdiction to
permanently enjoin them from acting as tribal councilors and
allowing
Katahdin Trust to recognize the newly elected councilors as the
Band's
governing body.  They argue that the Band's action stems from an
internal
dispute over which the court does not have jurisdiction.  The Band
contends
that the court properly declined to adjudicate these intratribal
disputes and
granted a summary judgment only on issues regarding public order,
over
which the court has jurisdiction pursuant to 30 M.R.S.A. §§ 6202,
6204 and
25 U.S.C. § 1725(a).  We agree.
	[¶9]  	The Maine Indian Claims Settlement Act, 25 U.S.C.
§§ 1721-
1735 (1983 &;Supp. 1996), provides: 
[A]ll 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 . . . 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.

25 U.S.C. § 1725(a) (1983).  Maine's Act to Implement the Maine
Indian
Claims Settlement Act, 30 M.R.S.A. §§ 6201-6214 (1996), further
provides 
that all "tribes and bands of Indians in the State . . . shall be
subject to the
laws of the State and to the civil and criminal jurisdiction of
the courts of
the State to the same extent as any other person . . . ."  30
M.R.S.A. § 6204
(1996).  Finally, Maine's Act provides that "[t]he Houlton Band of
Maliseet
Indians and its lands will be wholly subject to the laws of the
State." 30
M.R.S.A. § 6202 (1996).  The defendants argue, however, that
neither the
federal nor state act alters the general rule that state courts
are divested of
jurisdiction if the exercise of jurisdiction over Indians or
activities on Indian
lands would interfere with tribal sovereignty and self-government. 
Iowa
Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 15 (1987) (citations
omitted).  They
contend that the Band, like other Indian tribes, is a "'distinct,
independent
political communit[y], retaining [its] original natural rights' in
matters of
local self-government."  Santa Clara Pueblo v. Martinez, 436 U.S.
49, 55
(1978) (quoting Worcester v. Georgia, 6 Pet. 515, 559, 8 L.Ed. 483
(1832))
(citations omitted).  Disputes that involve only tribal members or
matters of
internal tribal policy must generally be maintained in tribal
forums. 
Wacondo v. Concha, 873 P.2d 276, 278 (N.M. Ct. App. 1994).
	[¶10]  Even if the Houlton Band of Maliseet Indians has the
sovereign
right to determine matters of self-government, the court's order
does not
improperly invade the Band's sovereignty.  Rather, the order
declines to
review the legitimacy of the December 30 election.  The court
narrowly
tailored its order to address the immediate crises created by the
defendants' refusal to permit administrative functions of the Band
to
continue and Katahdin Trust's refusal to disburse the Band's
funds.   Both
the Maine Indian Claims Settlement Act and the state's
implementing act
make clear that members of the Band are subject to state laws. 
Any
incidental recognition of the Band's election dispute does not
invalidate the
court's order. 
II.
	[¶11]  The defendants next contend that the Band is not
entitled to
relief because it did not exhaust its available administrative
remedies.  We
disagree.  When a party seeks relief that is "'beyond the
jurisdiction of the
administrative agency . . . and when it would be futile for the
plaintiffs to
complete the administrative appeal process[,]'" the party need not
exhaust
its administrative remedies before seeking judicial relief. 
Minster v. Town
of Gray, 584 A.2d 646, 648 (Me. 1990) (quoting Stanton v. Trustees
of St.
Joseph's College, 233 A.2d 718, 724 (Me. 1967)).  The Band could
not turn
to the Department of the Interior to address the immediate crisis
created by
the defendants' takeover of the tribal administration building and
Katahdin
Trust's refusal to disburse the Band's funds.  Even if the Band
had appealed
the Bureau's refusal to recognize the October 1 election results,
the
December 30 election of a new tribal council rendered the October
1
election moot.  An appeal of the Bureau's refusal to recognize the
October 1
election results would not have provided relief. 
III.
	[¶12]  The defendants contend there are genuine issues of
fact that
preclude the court from entering a summary judgment for the Band,
and
that the court erred in granting a summary judgment because the
Band's
motion requested that the court recognize certain individuals as
members of
the tribal council who were different from those named in the
Band's
complaint.
	[¶13]  In their memorandum in opposition to the Band's motion
the
defendants asserted that the December 30 election was "bogus" and
that
the certification of the election results was not valid.  They
failed, however,
to submit any affidavits or other material in support of their
assertions.  The
party opposing a motion for a summary judgment "is obligated to
produce
specific controverting facts exposing the existence of a genuine
issue." 
Cloutier, Barrett, Cloutier &;Conley, P.A. v. Wax, 604 A.2d 42, 44
(Me. 1992)
(citation omitted).  When a party moving for a summary judgment
supports
the motion with the proper supporting affidavits, "'then the
adverse party
must respond by counteraffidavit setting forth the specific facts
showing that
there is a genuine issue for trial.'"  Haskell v. Town of
Yarmouth, 388 A.2d
100, 102 n.5 (Me. 1978) (quoting Steeves v. Irwin, 233 A.2d 126,
129 (Me.
1967)).  The Band supported its motion with an affidavit from its
election
supervisor stating that the December 30 election was conducted
with
proper notice and the results were uncontested by anyone in the
Band,
including the defendants. The defendants failed to respond with
any
counteraffidavit setting forth specific facts showing that there
was a genuine
issue for trial.
	[¶14]  Although the defendants assert that the election
supervisor's
affidavit is legally insufficient to support the motion and,
therefore, they had
no obligation to respond to it, they failed to raise this argument
in the trial
court.  They filed two memoranda in opposition to the Band's
motion for a
summary judgment and neither of those responses asserted that the
election supervisor was not competent to attest to the election
results. 
Similarly, the defendants failed to argue in the trial court that
the Band's
motion for summary judgment requested relief that varied from its
original
complaint.  Thus, they are precluded from raising these issues for
the first
time in this appeal.  See, e.g., Marston v. Newavom, 629 A.2d 587,
591 (Me.
1993).
	 The entry is:
						Judgment affirmed.

                                             
Attorney for plaintiffs:				

Ellen S. Maher, Esq. (orally)			
27 Court Street					
Houlton, ME 04730				

Attorney for defendants:

Malcom S. Berman, Esq. (orally)
P. O. Box 802 
Houlton, ME 04730
FOOTNOTES******************************** {1}. The defendants filed a
complaint against Katahdin Trust Co. on October 3, 1995, seeking to compel
Katahdin Trust to release the Band's funds. The court dismissed the
complaint and the defendants appealed. We affirmed the dismissal in a
summary affirmance dated June 20, 1996. On October 23, 1995, Katahdin
Trust initiated an interpleader action against the Band and later moved to
consolidate the action with the instant case. The Superior Court granted the
motion.