2018	ME	154	
	
	
	
	
	
	
	
                      OPINION	OF	THE	JUSTICES	
                 OF	THE	SUPREME	JUDICIAL	COURT	
                                      	
                 GIVEN	UNDER	THE	PROVISIONS	OF	
         ARTICLE	VI,	SECTION	3	OF	THE	MAINE	CONSTITUTION	
                                      	
                           Docket	No.	OJ-18-1	
                                      	
                       ______________________________	
                                      	
                                      	
                     QUESTION	PROPOUNDED	BY	
              THE	MAINE	HOUSE	OF	REPRESENTATIVES	
                                      	
                          ON	AUGUST	30,	2018	
                                      	
                OPINION	ISSUED	NOVEMBER	20,	2018	
                                      	
                                      	
                       ______________________________	
	
    QUESTION	PROPOUNDED	BY	THE	MAINE	HOUSE	OF	REPRESENTATIVES	
                       ON	AUGUST	30,	2018	
	
        WHEREAS,	 it	 appears	 to	 the	 House	 of	 Representatives	 of	 the	 128th	
Legislature	that	the	following	is	an	important	question	of	law	and	that	this	is	a	
solemn	occasion;	and		
        	
        WHEREAS,	the	Constitution	of	Maine,	Article	VI,	Section	3	provides	for	
the	 Justices	 of	 the	 Supreme	 Judicial	 Court	 to	 render	 their	 opinion	 on	 such	 a	
question;	and		
        	
        WHEREAS,	 the	 House	 of	 Representatives	 has	 repeatedly	 considered	
proposals	 to	 authorize	 tribal	 gaming	 such	 as	 House	 Paper	 838,	 Legislative	
Document	1201,	“An	Act	To	Authorize	 Tribal	 Gaming”	and	House	 Paper	999,	
Legislative	Document	1447,	“An	Act	To	Recognize	and	Provide	for	the	Right	of	
the	 Houlton	 Band	 of	 Maliseet	 Indians	 To	 Operate	 a	 Casino	 on	 Houlton	 Band	
Trust	Land	Exempt	from	Certain	Gaming	Laws”;	and		
        	
        WHEREAS,	 the	 State	 authorizes	 and	 regulates	 casinos,	 including	 the	
operation	 of	 table	 games	 and	 slot	 machines,	 pursuant	 to	 the	 Maine	 Revised	
Statutes,	Title	8,	chapter	31;	authorizes	and	regulates	betting	on	harness	racing	
pursuant	 to	 Title	 8,	 chapter	 11;	 and	 authorizes	 and	 regulates	 a	 state	 lottery	
pursuant	to	Title	8,	chapter	14-A;	and		
        	
        WHEREAS,	the	revenue	provided	to	the	Houlton	Band	of	Maliseet	Indians	
by	tribal	gaming	will	ensure	tribal	self-sufficiency	and	self-determination	and	
will	be	used	by	the	tribal	government	for	critical	social	and	health	programs	
vital	 to	 the	 well-being	 of	 tribal	 members	 including	 reducing	 chronically	 high	
rates	of	unemployment,	depression	and	mortality	and	providing	services	such	
as	health	care,	elder	care,	housing	and	education;	and		
        	
        WHEREAS,	the	Supreme	Court	of	the	United	States	decided	in	California	
v.	Cabazon	Band	of	Mission	Indians,	480	U.S.	202	(1987)	that	state	and	local	
governments	 do	 not	 have	 the	 authority	 to	 regulate	 gambling	 on	 Indian	 land;	
and		
        	
        WHEREAS,	 it	 is	 important	 that	 the	 Legislature	 be	 informed	 as	 to	 the	
question	raised	in	this	order;	now,	therefore,	be	it		
        	
   	                                                                                  3	


      ORDERED,	that,	in	accordance	with	the	provisions	of	the	Constitution	of	
Maine,	 the	 House	 of	 Representatives	 respectfully	 requests	 the	 Justices	 of	 the	
Supreme	Judicial	Court	to	give	the	House	of	Representatives	their	opinion	on	
the	following	question	of	law:		
      	
      Question.		Does	the	decision	of	the	Supreme	Court	of	the	United	States	in	
California	v.	Cabazon	Band	of	Mission	Indians,	480	U.S.	202	(1987)	allow	the	
Houlton	 Band	 of	 Maliseet	 Indians,	 a	 federally	 recognized	 Indian	 tribe,	 to	
conduct	 gambling	 on	 tribal	 trust	 land	 without	 permission	 to	 do	 so	 from	 the	
State?	
	                         	
4	 	


                         OPINION	OF	THE	JUSTICES	
                                       	
To	the	Maine	House	of	Representatives:	
	
	     [¶1]		On	August	30,	2018,	before	the	128th	Maine	Legislature	adjourned	

sine	 die,	 the	 Maine	 House	 of	 Representatives	 referred	 a	 Question	 to	 us	 as	

individual	Justices	of	the	Maine	Supreme	Judicial	Court	pursuant	to	article	VI,	

section	3	of	the	Maine	Constitution,	which	states,	“The	Justices	of	the	Supreme	

Judicial	Court	shall	be	obliged	to	give	their	opinion	upon	important	questions	

of	law,	and	upon	solemn	occasions,	when	required	by	the	Governor,	Senate	or	

House	of	Representatives.”		Me.	Const.	art.	VI,	§	3;	see	Opinion	of	the	Justices,	682	

A.2d	661,	663	(Me.	1996).	

       [¶2]		The	Question	presented	is	this:			

       Does	 the	 decision	 of	 the	 Supreme	 Court	 of	 the	 United	 States	 in	
       California	v.	Cabazon	Band	of	Mission	Indians,	480	U.S.	202	(1987)	
       allow	the	Houlton	Band	of	Maliseet	Indians,	a	federally	recognized	
       Indian	 Tribe,	 to	 conduct	 gambling	 on	 tribal	 trust	 land	 without	
       permission	to	do	so	from	the	state?	
       	
	      [¶3]		By	procedural	order,	we	invited	the	House	of	Representatives,	the	

Senate,	the	Governor,	the	Houlton	Band	of	Maliseet	Indians,	other	Maine	tribes,	

the	 Attorney	 General,	 and	 any	 interested	 person	 or	 entity	 to	 submit	 briefs	

addressing	 whether	 the	 question	 propounded	 presents	 a	 “solemn	 occasion”	

pursuant	to	article	VI,	section	3	of	the	Maine	Constitution.			
    	                                                                                  5	


        [¶4]		 Although	we	received	briefs	from	 others,	including	a	brief	urging	

the	existence	of	a	solemn	occasion	filed	by	an	individual	member	of	the	House,	

Representative	Henry	John	Bear	of	the	 Houlton	Band	of	Maliseet	Indians,	we	

did	 not	 receive	 a	 brief	 from	 the	 House	 of	 Representatives.	 	 When	 the	 body	

propounding	a	 Question	does	 not,	upon	our	request	for	briefing	of	the	issue,	

provide	 any	 response	 that	 asks	 us	 to	 determine	 the	 existence	 of	 a	 solemn	

occasion	that	would	justify	our	consideration	of	a	propounded	question,	we	will	

determine	that	the	question	is	not	“of	a	serious	and	immediate	nature”	and	that	

the	situation	does	not	“present[]	an	unusual	exigency.”		Opinion	of	the	Justices,	

2017	ME	100,	¶	22,	162	A.3d	188	(quotation	marks	omitted).			

        [¶5]	 	 Accordingly,	 we	 conclude	 that	 no	 solemn	 occasion	 exists,	 and	 we	

each	decline	to	answer	the	Question	propounded.	

Signed:	November	20,	2018	 	             Each	Justice	Individually	Opining.	
	
                                         For	the	Justices,	
                                         	
                                         	
                                         	      	     	     /s/	 	         	     	      	
                                         LEIGH	I.	SAUFLEY	
                                         Chief	Justice	
                                         DONALD	G.	ALEXANDER	
                                         ANDREW	M.	MEAD	
                                         ELLEN	A.	GORMAN	
                                         JOSEPH	M.	JABAR	
                                         JEFFREY	L.	HJELM	
                                         THOMAS	E.	HUMPHREY	
	
6	 	


Henry	John	Bear,	pro	se	
	
John	Clark,	pro	se	
	
Daniel	W.	Walker,	Esq.,	and	Matthew	S.	Warner,	Esq.,	Preti	Flaherty	Beliveau	&	
Pachios,	LLP,	Portland,	for	Oxford	Hills	Chamber	of	Commerce	
	
Joshua	A.	Tardy,	Esq.,	Edmond	J.	Bearor,	Esq.,	and	Brent	A.	Singer,	Esq.,	
Rudman	Winchell,	Bangor,	for	HC	Bangor,	LLC	
	
	
