
USCA1 Opinion

	




                           United States Court of Appeals                                For the First Circuit                                ____________________          No. 96-1670                              PENOBSCOT INDIAN NATION,                                Plaintiff, Appellee,                                         v.                             KEY BANK OF MAINE, ET AL.,                               Defendants, Appellees,                                  ________________                     JOHN PALMER, PALMER MANAGEMENT CORPORATION,                         AND PALMER DEVELOPMENT CORPORATION,                                     Appellants.                                _____________________          No. 96-1671                              PENOBSCOT INDIAN NATION,                                Plaintiff, Appellant,                                         v.                             KEY BANK OF MAINE, ET AL.,                               Defendants, Appellees.                                  _________________          No. 96-1672                              PENOBSCOT INDIAN NATION,                                Plaintiff, Appellee,                                         v.                             KEY BANK OF MAINE, ET AL.,                               Defendants, Appellees.                                _____________________                                    JOHN SCHIAVI,                                     Appellant.                                _____________________          No. 96-1736                              PENOBSCOT INDIAN NATION,                                Plaintiff, Appellee,                                         v.                                 KEY BANK OF MAINE,                                Defendant, Appellant.                                ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. Morton A. Brody, U.S. District Judge]                                ____________________                                       Before                           Selya and Stahl, Circuit Judges,                           and Woodlock,* District Judge.                                ____________________                                    ERRATA SHEET               Please make the following changes to the opinion issued on          May 5, 1997:               On page 6, line 9, "May 1988" should read "May 1989"               On page 6, the first full paragraph, lines 9-15, should               be moved in its entirety to become the end of the               paragraph that begins on line 16 (beginning "In April               1989").  Specifically, it should be placed after the               sentence that reads "As part of the liquidation plan,               PIN and Palmer then assigned Schiavi Homes' assets to               Key Bank."  It should not form a new paragraph, but,               instead, should form the continuation of the paragraph               that currently is at page 6, lines 16-19.  In addition,               footnote marker 2 (currently located after "Key Bank."               on page 6, line 19), should be moved to follow the               sentence that reads "In May 1989, Key Bank notified PIN               that it intended to exercise the purchase option               contained in the Lease-Option Agreement."               On page 17, line 15, replace brackets around               [hereinafter "Indian fee lands"] with parentheses       No. 96-1670                              PENOBSCOT INDIAN NATION,                                Plaintiff, Appellee,                                         v.                             KEY BANK OF MAINE, ET AL.,                               Defendants, Appellees,                                  ________________                     JOHN PALMER, PALMER MANAGEMENT CORPORATION,                         AND PALMER DEVELOPMENT CORPORATION,                                     Appellants.                                _____________________       No. 96-1671                              PENOBSCOT INDIAN NATION,                                Plaintiff, Appellant,                                         v.                             KEY BANK OF MAINE, ET AL.,                               Defendants, Appellees.                                  _________________       No. 96-1672                              PENOBSCOT INDIAN NATION,                                Plaintiff, Appellee,                                         v.                             KEY BANK OF MAINE, ET AL.,                               Defendants, Appellees.                                _____________________                                    JOHN SCHIAVI,                                     Appellant.                                _____________________       No. 96-1736                              PENOBSCOT INDIAN NATION,                                Plaintiff, Appellee,                                         v.                                 KEY BANK OF MAINE,                                Defendant, Appellant.                                ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. Morton A. Brody, U.S. District Judge]                                ____________________                                       Before                           Selya and Stahl, Circuit Judges,                           and Woodlock,* District Judge.                                ____________________            Peter J. Haley, with whom Stephen F. Gordon, Gordon & Wise,       Ronald C. Caron, and Caron & Sullivan,were on brief for appellant       Penobscot Indian Nation and third-party defendants-appellees, Gerald       Pardilla and Reuben Phillips.            Catherine R. Connors, with whom Debra Brown and Pierce Atwood,       were on brief for appellee and cross-appellant Key Bank of Maine.            Justin W. Leary, with whom Leonard I. Sharon and Sharon, Leary &       Detroy, were on brief for appellee Michael Marcello.            Stephen B. Wade             with whom Skelton, Taintor & Abbott was on brief for defendants-       appellees and cross-appellants, John Palmer, Palmer Management Corp.,       and Palmer Development Corp.            Jeffrey A. Thaler with whom Berman & Simmons, P.A. was on brief       for defendant-appellee and cross-appellant, John Schiavi.            Melissa A. Hewey with whom Drummond Woodsum & MacMahon was on       brief for appellees Consumers Water Company, Burlington Homes of New       England, Inc., and SHC Corporation.                                ____________________                                     May 5, 1997                                ____________________       _____________________       * Of the District of Massachusetts, sitting by designation.                      STAHL, Circuit  Judge.    Appellant,  a  federally-            recognized                       Indian                             tribe,                                    appeals the district court's denial of            its motion for declaratory judgment, pursuant to 25 U.S.C.  S            81, seeking to  invalidate several agreements concerning  the            purchase and operation of a mobile home business.   Appellees            cross appeal the district court's summary judgment ruling  in            favor                  of                     Appellant on several defamation counterclaims as well            as a breach of  contract and emotional distress  counterclaim            stemming from litigation involving  the failure of this  same            mobile home business.                                     Background                      Although                               the                                  district                                           court provided a cogent summary            of the facts and procedural history in its memorandum opinion            below, see Penobscot Indian Nation v. Key Bank, 906 F.  Supp.            13,                16-17                      (D.                         Me.                             1995),                                    the complexity of this case compels us            to sketch the necessary background information.                      In 1983, Consumers  Water Company ("CWC")  acquired            Schiavi Homes Corporation ("SHC"), a profitable Maine  mobile            home sales  business, from John  Schiavi ("Schiavi").   Under            CWC's ownership, SHC continued  to operate successfully.   In            1985, John Palmer ("Palmer") became SHC's new president.   In            August 1985,  Palmer and his  wife, Mary  Anna, also  founded            Palmer Development Corporation ("Palmer Development").   Like            SHC, Palmer Development engaged in the sale of mobile homes             throughout Maine.                                         -3-                      In 1985, the Penobscot Indian Nation ("PIN")  hired            Tribal  Assets Management  ("TAM") to  locate, evaluate,  and            recommend potential investment opportunities.  Late in  1986,            TAM                identified SHC as a potential PIN investment and conducted            a              detailed                       analysis                               of                                  SHC's viability as a successful business            venture.    TAM  alerted PIN  that  SHC  constituted  a  good            investment possibility, but cautioned PIN that the success of            the                venture                        would                             depend                                    largely on PIN's willingness to invest            in new mobile home sites on which the mobile homes it sold to            retail  customers  could  be  located.    PIN  expressed  its            willingness                        to use its lands and invest its resources for such            purposes.                      On  December 31,  1986, PIN  and Palmer  Management            Corporation                        ("Palmer                                Management"), a corporation formed for the            purpose of purchasing  SHC, executed a Partnership  Agreement            creating                     Schiavi Homes ("Schiavi Homes" or "the Partnership"),            a Maine  limited partnership.   Pursuant  to the  Partnership            Agreement, PIN  became the  sole limited  partner and  Palmer            Management the sole general partner.1  PIN acquired a  ninety            percent                    interest in Schiavi Homes.  Palmer Management received            only a  ten percent share but  secured full control over  all            management decisions.            1.  Prior to the purchase, TAM informed PIN that Palmer had            been the president of SHC.  PIN also knew both that Palmer            and his wife owned Palmer Development and that Palmer            Development engaged in business activities similar to those            of SHC.                                         -4-                                          4                      Also on December 31, 1986, the Partnership executed            a              Purchase                       and Sale Agreement with SHC, which provided for the            Partnership's  purchase of  SHC's  assets  and  business  for            approximately $5  million.  Key  Bank of  Maine ("Key  Bank")            financed                     the                         purchase on the condition that Palmer retain full            management                       control over Schiavi Homes.  Key Bank also insisted            that                 PIN                     post a $1 million letter of credit to secure its loan            and agree  to restrictions on  the withdrawal  of funds  from            Schiavi Homes.                      As part  of its  purchase of  SHC, the  Partnership            secured three non-competition agreements.  CWC entered into a            non-competition agreement with Schiavi Homes and assigned  to            the Partnership its  interest in an existing  non-competition            agreement  with Schiavi,  which it  obtained at  the time  it            originally acquired  the business.   Palmer signed a  similar            agreement with the Partnership.                      Schiavi Homes  fared  poorly  from  its  inception.            Although sales of mobile  homes in Maine reached an all  time            high                 during                        this                            time,                                  by the end of 1987 Schiavi Homes' market            share had declined from eighteen to eight percent.  Over  the            course  of  its  three  year  existence,  PIN  made   several            investments                        in                          Schiavi                                  Homes in an attempt to buoy its business            fortunes.  Most significantly, in October 1987, PIN signed  a            Lease-Option  Agreement with  Schiavi Homes  leasing for  the            nominal fee of $1 per  year a twenty-four acre tract of  real                                         -5-                                          5            property                     (the                         "Holden                                 Lot") that PIN purchased during this same             onth.                                       The                       Lease-Option                                    Agreement afforded the Partnership the            option            m       to  purchase  the  Holden  Lot  for  $100,000.    PIN            subsequently invested approximately  $135,000 to develop  the            Holden Lot  for purposes of the  Schiavi Homes business.   In            December 1988, with Schiavi Homes unable to make its  regular            monthly                    loan                         payment                                of                                   principal and interest to Key Bank, the            Partnership pledged the Lease-Option Agreement to Key Bank.                      In April 1989, acting on the advice of its counsel,            Bernstein,                       Shur, Sawyer & Nelson ("Bernstein"), PIN decided to            liquidate                      Schiavi Homes.  As part of the liquidation plan, PIN            and Palmer then assigned Schiavi Homes' assets to Key Bank.            In               May                   1989,                        Key                            Bank                                 notified PIN that it intended to exercise            the purchase option contained in the Lease-Option Agreement.2            At               this                    time,                         Key                             Bank                                  also initiated three foreclosure actions            with respect to real property that the Partnership owned  and            encumbered                       with                           mortgage                                    deeds given to Key Bank in conjunction            with the initial financing of SHC's purchase.                      On  September  29,  1989,  PIN  entered  into   two            comprehensive                         Settlement Agreements with Schiavi, SHC, Schiavi            2.             The Area Director of the Eastern Area Office of the Bureau of           Indian Affairs, George Big Eagle, approved the transfer of           the Holden Lot to Key Bank pursuant to Title IV of the Indian           Financing Act of 1974, 25 U.S.C. SS 1451-1543, which forbids,           without written consent, any transfer or disposal of a           project being improved with federal grant funds within three           years of the use of such funds.                                         -6-                                          6            Homes,                   Palmer,                          Palmer                                 Management, Key Bank, Burlington Homes of            New England3  ("Burlington  Homes"),  and  CWC  (collectively            "Appellees").  PIN,  Schiavi Homes,  Schiavi, Palmer,  Palmer            Management,  and  Key  Bank  executed  the  first  Settlement            Agreement ("first Settlement Agreement"); PIN, Schiavi Homes,            SHC, Palmer, Palmer Management, Key Bank, CWC, and Burlington            Homes  executed  the  second  Settlement  Agreement  ("second            Settlement                       Agreement").                                                                       The two agreements contained identical            language that served broadly to "release, remise and  forever            discharge"                       all                          claims                                 involving the signatories.  Subsequent to            the                signing                        of                          the                              two                                  Settlement Agreements, legal proceedings            deriving from the operation of Schiavi Homes ceased.                      The ensuing period of  calm ended on September  14,            1994,                  when                       PIN                          filed                                the                                    lawsuit underlying this appeal.  PIN's            suit stemmed from an  investigation of Key Bank's  activities            relating                     to                        Schiavi Homes that Penobscot County Deputy Sheriff            Carl Andrews conducted between approximately 1993 and  1994.4            3.  Burlington Homes of New England, a subsidiary of CWC,            manufactured mobile homes.  SHC, Schiavi Homes, and Palmer            Development all sold homes that Burlington manufactured.            4.  The record does not reveal the exact duration, scope, or            findings of the investigation.  Andrews testified that he            provided the Maine Attorney General's office with a three            page report summarizing his findings, but he did not divulge            the report's contents to PIN.  No party submitted this report            into evidence; in fact, it is not apparent from the record            that the results of the investigation were set out in writing            or were made known to the public.  It is clear, however, that            no criminal proceedings of any kind resulted from Andrews'            investigation.                                         -7-                                          7            PIN alleges that Andrews' investigation revealed  substantial            improprieties on the part of PIN's business associates in the            Schiavi Homes venture.  Also on September 14, 1994, PIN  held            two press  conferences,  one in  Bangor,  Maine, and  one  in            Portland, Maine,  to announce the  filing of  its lawsuit  in            federal  district  court.    Michael  Marcello,  PIN's  media            relations                      consultant,                                 prepared the statements that PIN Governor            Reuben Phillips and  PIN Lieutenant Governor Gerald  Pardilla            read at the two press conferences.  Marcello also distributed            the text of the statements to members of the media.                      PIN's                            complaint contained nine counts and named nine            defendants.  Most importantly for our purposes, the complaint            alleged that the two Settlement Agreements signed by PIN  and            the  Appellees were  void because  they did  not receive  the            Secretary of the Interior's approval pursuant to 25 U.S.C.  S            81.5  SHC filed a motion to dismiss PIN's claims.  Key  Bank,            Schiavi, Palmer, Palmer Development, Palmer Management,  CWC,            and Burlington Homes moved for summary judgment.            5.  PIN's complaint also alleged the following:  (1) breach            of duty of good faith and fair dealing (against Key Bank,            CWC, SHC, Burlington, Schiavi, Palmer, and Palmer            Management); (2) breach of contract (against Schiavi); (3)            misrepresentation (against CWC, SHC, Burlington, Schiavi, and            Palmer); (4) fraud (against Bernstein); (5) negligence            (against Bernstein); (6) breach of fiduciary duty (against            Key Bank, Palmer, and Palmer Management); and (7) RICO            violations (against Key Bank, CWC, Burlington, Bernstein,            Schiavi, Palmer, Palmer Management, and Palmer Development).                                         -8-                                          8                      Palmer, Palmer Development, Palmer Management  (the            "Palmer                    Defendants"),                                 Key Bank, and Schiavi filed counterclaims            against PIN for defamation and punitive damages based on  the            alleged defamation stemming from the September 14, 1994 press            conferences.   Key  Bank filed  counterclaims for  defamation            against Marcello, Phillips, and Pardilla.  Also deriving from            these                  press                        conferences, Palmer asserted counterclaims against            PIN  for intentional  and negligent  infliction of  emotional            distress.     Both   Palmer  and   Palmer  Management   filed            counterclaims                          against                                 PIN for breach of contract, alleging that            PIN's suit violated the  release contained in the  Settlement            Agreements.                                                 Only Marcello responded with a motion for summary            judgment.                      The district court  (Brody, J.)  concluded that  25            U.S.C. S  81  did not  apply  to the  Settlement  Agreements.            Determining that the Settlement Agreements constituted  valid            releases, the district court granted summary judgment for the            defendants                       with respect to all of PIN's claims.  See Penobscot            Indian                   Nation,                          906                              F.                                 Supp. at 20-21.  Treating SHC's motion to            dismiss as a motion for summary judgment, the district  court            separately granted  summary  judgment for  SHC based  on  the            binding                    nature                           of                             the                                 Settlement Agreements.  See id. at 21-22.            The district court also ruled that the statute of limitations            barred PIN's RICO claims.  See id. at 21.                                         -9-                                          9                      The                          district                                   court                                        then                                             considered the counterclaims.            Finding that Key Bank did not allege facts demonstrating even                  ence  on Marcello's  part, the  district court  granted            Marcello's                       motion                             for                                 summary judgment on Key Bank's defamation                terclaim.                   neglig            coun            See id. at  23.  Despite  the fact that  only            Marcello filed  a motion for  summary judgment, the  district            court proceeded to grant summary judgment sua sponte for  PIN            and  the  remaining  cross-Appellees  with  respect  to   the            defamation                       claims.6  See id.  Judge Brody also awarded summary            judgment sua sponte for PIN and the other cross-Appellees  on            the punitive damage counterclaims.  See id. at 24.   Finally,            the district court granted PIN's motion for summary  judgment            with respect to the emotional distress and breach of contract            claims.                                         See                                                Penobscot Indian Nation v. Key Bank, Civ. No. 94-            0212-B (D. Me. Dec. 13, 1995).                      In  the spring  of 1996,  PIN's malpractice  claims            against Bernstein  went to  trial before  a jury.   The  jury            returned a verdict in favor of Bernstein.  The district court            then entered a final judgment resolving all claims on May  7,            1996.  These appeals ensued.7              6.  The Palmer Defendants immediately filed a motion for            reconsideration, which the district court subsequently denied             See Penobscot Indian Nation v. Key Bank, Civ. No. 94-0212-B,            1 (D. Me. Dec. 13, 1995).            7.  PIN did not appeal the adverse judgment respecting either            its RICO claims or its other claims against Bernstein.             Cross-Appellants did not appeal the district court's sua            sponte ruling as to punitive damages.                                        -10-                                         10                                 Standard of Review                      The district court  must grant summary judgment  if            "the pleadings, depositions, answers to interrogatories,  and            admissions on file, together  with the affidavits . . .  show            that                 there                       is                         no                            genuine                                    issue as to any material fact and that            the                moving                       party                            is                               entitled to a judgment as a matter of law."            Fed. R. Civ. P. 56(c).  "On appeal from the entry of  summary            judgment we  review the  district court's  decision de  novo,            construing the record in the light most . . . [favorable]  to            the                non-movant and resolving all reasonable inferences in that            party's                    favor."  Hachikian v. FDIC, 96 F.3d 502, 504 (1st Cir.            1996).  We are not "wedded to the district court's reasoning.            Rather,                    '[w]e are free, on appeal, to affirm a judgment on any            independently sufficient ground.'"   Garside  v. Osco  Drugs,            Inc., 895 F.2d 46, 49 (1st Cir. 1990) (quoting  Polyplastics,            Inc.  v. Transconex,  Inc., 827  F.2d 859,  860-61 (1st  Cir.            1987)).                                         Discussion                      This                           appeal                                 raises                                        several issues which we address in            turn.  We begin by resolving an issue of first impression  in            this Circuit:  whether  25 U.S.C. S 81 applies to  agreements            relative                     to                        lands that an Indian tribe purchases in fee simple            for investment  purposes.   We then  determine whether  PIN's            filing                   of                      this action in 1994 constituted an actionable breach            of contract.   Subsequently, we  decide whether the  district                                        -11-                                         11            court                  erred                       in                          concluding that the statements Marcello prepared            and  individual  PIN officials  announced  to  the  press  in            September 1994 did not amount to defamation.  Thereafter,  we            touch upon  the issue of whether  PIN's conduct at the  press            conferences  constituted  either  intentional  or   negligent            infliction                       of                         emotional                                   distress.  Finally, we evaluate whether            the                district                         court                              has                                  jurisdiction to hear the remaining state            law claims at issue in this case.            A.  Section 81                      PIN sought a declaratory judgment from the district            court that  the  agreements it  executed with  the  Appellees            necessitated  approval from  the  Secretary of  the  Interior            pursuant to 25 U.S.C. S  81.  Section 81 states in  pertinent            part:                      No agreement shall be made by any  person                      with any tribe  of Indians . . . for  the                      payment or delivery of any money or other                      thing  of   value,  in   present  or   in                      prospective,  or  for  the  granting   or                      procuring any  privilege to  him, or  any                      other person in consideration of services                      for                          said                               Indians relative to their lands .                      . . unless such agreement be executed and                      approved as follows:                                       . . . .                      It  shall  bear   the  approval  of   the                      Secretary  of   the  Interior   and   the                      Commissioner                                   of Indian Lands indorsed upon                      it.                                       . . . .                                   All  contracts  or  agreements  made   in                      violation of this  section shall be  null                      and void . . . .                                         -12-                                         12            Congress adopted S 81, originally Revised Statute S 2103,  in            1872.                                     To                      this day, Congress has not repealed S 81 and the few            amendments                       to                          its                             text                                  have been only technical.  See Altheimer            &              Gray                   v.                      Sioux                           Mfg.                                Corp., 983 F.2d 803, 805 (7th Cir. 1993).8                      Section 81 dictates  that any agreement within  its            purview that is not approved by the Secretary of the Interior            ("the Secretary") is void ab  initio.  PIN insists that S  81            applies                    not                        only to the two Settlement Agreements, but also to            the agreements  pertaining to the  creation and operation  of            Schiavi Homes, specifically the Asset Purchase Agreement, the            Partnership Agreement, and  the Lease-Option Agreement.   PIN            therefore                      reasons that the Settlement Agreements, the Purchase            and Sale  Agreement, and the  Lease-Option Agreement are  not            binding.   PIN also  contends that  the Secretary  improperly            determined  that  S  81 did  not  apply  to  the  Partnership            Agreement.                      Significantly, if the Settlement Agreements are not            valid because they  never received  the Secretary's  approval            pursuant to S 81, PIN may pursue its remaining claims against            the  Appellees.    If, on  the  other  hand,  the  Settlement            Agreements  do not fall  within the parameters  of S 81,  PIN            8.  In addition to technical amendments to S 81, Congress            passed the Indian Gaming Regulatory Act, 25 U.S.C. SS 2701-            2721, which provides in part:  "The authority of the            Secretary under section 81 of this title, relating to            management contracts regulated pursuant to this chapter, is            hereby transferred to the [National Indian Gaming]            Commission."  25 U.S.C. S 2711(h).                                        -13-                                         13            concedes that its remaining  non-S 81 claims fail due to  the            binding nature  of the Settlement  Agreements.  We  therefore            begin our analysis by evaluating the applicability of S 81 to            the Settlement Agreements.                      1.  Settlement Agreements                        Without                              regard                                     to                                       S                                         81,                                             the two Settlement Agreements            constituted  valid  releases.    Both  Settlement  Agreements            provided  that  the  parties  "release,  remise  and  forever            discharge each other . . . from all suits . . .  at law or in            equity                   .                     .                      .                        which                              directly or indirectly relate[] to . . . any            . . . transactions . . . among each other."  Whether or not S            81               pertains                        to                          and                              thus                                   voids the Settlement Agreements depends            upon whether either  or both constitute an agreement with  an            Indian tribe for services  relative to Indian lands.  See  25            U.S.C. S 81.                           a.  Agreement with an Indian Tribe                      The Appellees contend that the Partnership,  rather            than                 PIN                     in                        its individual capacity, represents the applicable            entity  in this case.   This argument  is unavailing.   PIN's            Lieutenant                       Governor signed both Settlement Agreements as PIN's            personal representative,  not  as the  Partnership's  Limited            Partner.   John  Palmer, the  Partnership's General  Partner,            signed on behalf of Schiavi Homes.  Moreover, even if Schiavi            Homes,  not  PIN  in  its  individual  capacity,  signed  the            agreements, the district  court's observation that  "[c]ourts                                        -14-                                         14            look beyond  the  mere formality  of corporate  structure  in            construing  the identity  of parties  with regard  to S  81,"            Penobscot, 906 F. Supp. at 19, necessitates no elaboration on            our                part.                                             Se                        e Altheimer & Gray, 983 F.2d at 809-10; Pueblo of            Santa Ana v. Hodel, 663 F. Supp. 1300, 1306 (D.D.C. 1987).                           b.  Services                      The  district  court  ruled  that  "the  Settlement            Agreements                       themselves                                 do                                    not constitute contracts for services.            The Settlement  Agreements rather pertain  to the release  of            legal claims  . . . ."  Penobscot, 906 F. Supp. at 20.   This            conclusion aptly  describes the  first Settlement  Agreement,            which made no reference to any service to be performed by any            party to the Agreement for any other party to the  Agreement.            The first Settlement Agreement, consequently, did not involve            services.                      The                          second                                 Settlement Agreement contains a provision            obligating                       Key                           Bank                               to                                  "jointly [with PIN] seek a purchaser for            the Holden Lot9 . . . at a price to be mutually agreed upon."            Because                    the                        Supreme Court has instructed that federal statutes            concerning                       Indian tribes must be construed "liberally in favor            of the Indians,"  Montana v. Blackfeet Tribe of Indians,  471            U.S. 759, 766 (1985), we assume for purposes of this  opinion            9.  At oral argument, PIN informed us that the Holden Lot            constitutes the sole tract of land at issue in this case,            and, thus, the only piece of Indian land to which S 81 could            apply.                                        -15-                                         15            that                 this                      provision                               in                                  the second Settlement Agreement entailed            a              "service"                        within the meaning of S 81, see Green v. Menominee            Tribe, 233 U.S. 558,  569 (1914) (finding S 81 applicable  to            sales contract); see also  Wisconsin Winnebago Bus. Comm.  v.            Koberstein                     ,                       762                           F.2d                                613, 619 (7th Cir. 1985) (applying S 81 to            management  contract); United  States  ex rel.  Citizen  Band            Potawatomi Indian Tribe v. Enterprise Management Consultants,            Inc.               ,                  734                      F.                         Supp. 455, 457 (W.D. Okla. 1990) (same), aff'd in            part and rev'd in part, 968 F.2d 22 (10th Cir. 1992); but see            United States ex rel. Harlan v. Bacon, 21 F.3d 209, 211  (8th            Cir. 1994) (determining  that lease agreement which  provided            that                 forty                       percent of produce deriving from use of leased land            be               delivered                         to tribe did not entail service within meaning of            S 81).                           c.  Relative to Indian lands                      The final prong  of the S 81 analysis, whether  the            Settlement Agreements  were  "relative  to  [Indian]  lands,"            presents a  more difficult  question.   The first  Settlement            Agreement is not relative to Indian lands because it  neither            pertained nor referred  to any land  whatsoever.  The  second            Settlement Agreement, however, both involved and referred  to            land that an  Indian tribe owned.   Specifically, the  second            Settlement                       Agreement                                provided for the disposition of the Holden            Lot.  At first glance, S 81 may appear to apply to the Holden            Lot because PIN, an Indian tribe, owned this parcel of  land.                                        -16-                                         16            We believe, however, that the meaning of S 81's language, the            intentions  of   its  drafters,   the  Interior   Secretary'                           of  S 81,  the case  law from  o-determinatio                                   e statute does not apply to the Holden                                                                        s            interpretation                                              n            support                    a                      holding                             that                                  th            Lot.  Although we have uncovered no precedent that explicitly            considers whether or not S 81 applies to land that an  Indian            tribe                  purchased                            in                              fee                                  simple for investment purposes, in doing            so now we  give voice to  an assumption underlying  virtually            every                  decision addressing the applicability of S 81 to service            agreements with Indian tribes relative to their lands.                        We                         base                              our                                  conclusion primarily on the distinctions            between                    Indian                           trust                                or                                   tribal lands (hereinafter "Indian trust            lands")10 and  lands that Indian  tribes hold  in fee  simple            (hereinafter "Indian fee lands").   The phrase "Indian  trust            lands" derives from the historic trust relationship  existing            between Indian tribes and the federal government,  originally            described as "resembl[ing]  that of a ward to his  guardian."            Worcester v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831); see also            Oneida  County v.  Oneida Indian  Nation, 470  U.S. 226,  247            10.  We use the terms "Indian trust lands" and "Indian tribal            lands" interchangeably because we have not located any            authority that draws a distinction between these terms that            is material for our purposes.  See, e.g., Black's Law            Dictionary 772 (1990); Felix S. Cohen's Handbook of Federal            Indian Law 35-36, 476 (Rennard Strickland et al. eds., 1982);            Reid P. Chambers & Monroe E. Price, Regulating Sovereignty:             Secretarial Discretion and the Leasing of Indian Lands, 26            Stan. L. Rev. 1061, 1061 (1974) (referring to Indian lands            delineated "restricted" in 25 U.S.C. S 415 as "Indian trust            land").                                         -17-                                         17            (1985);                    United                          States                                                                v.                                    Sam Pelican, 232 U.S. 442, 447 (1914);            Joint                  Tribal                         Council of the Passamaquoddy Tribe v. Morton, 528            F.2d 370, 379 (1st Cir. 1975).  Indian trust lands constitute            real property the title  to which the United States holds  in            trust for an  Indian tribe.   See 25 U.S.C.  S 465; Felix  S.            Cohen's                    Handbook of Federal Indian Law 476 (Rennard Strickland            et al. eds., 1982) [hereinafter Cohen's Handbook].                        Fee simple lands, by  contrast, are those lands  in            which the  owner "is entitled  to the  entire property,  with            unconditional power of disposition."  Black's Law  Dictionary            615                (6th                     ed.                         1990).  Federal law recognizes that Indian tribes            may hold certain lands in fee simple and that these lands may            not                be                   subject to the trust relationship between Indian tribes            and the  federal government.   See, e.g.,  25 U.S.C. S  1466.            Specifically,                         and pertinent to these appeals, the Maine Indian            Claims Settlement Act, 25 U.S.C. SS 1721-1735, indicates that            the Holden  Lot constitutes Indian  fee land  over which  the            federal                    government                              does                                   not have a trust responsibility because            the                Lot                    does                        not                            lie                                within designated PIN Territory.  In fact,            Congress expressly disavowed trust responsibility for  Indian            real                 property encompassing the area in which the Holden Lot is            situated.                    11                                                                       Accordingly, we find that PIN held the Holden Lot            11.  25 U.S.C. S 1724(d)(3) provides:  "Land or natural            resources acquired outside the boundaries of [Penobscot            Indian Territory] . . . shall be held in fee by the            respective tribe or nation, and the United States shall have            no further trust responsibility with respect thereto."  25                                        -18-                                         18            in fee simple.  We now  consider the impact this fact has  on            whether S 81 applies to the second Settlement Agreement.                        This                           inquiry                                   necessitates that we first consider the            statute's text.   See United States  v. Gonzales, 117 S.  Ct.            1032, 1034 (1997).   As previously noted,  S 81 states:   "No            agreement                      shall                            be                              made                                   by any person with any tribe of Indians            . . . for the payment or delivery of any money or other thing            of               value,                      in                         present or in prospective, or for the granting or            procuring  any privilege  to  him,  or any  other  person  in            consideration of services for said Indians relative to  their            lands                  .                    .                      .                       ."                                                     The                               statute does not distinguish between Indian            trust lands and  Indian fee lands; nor  does it refer to  all            Indian lands.  In fact, S 81's scope is not clearly  defined.            See Mark A.  Jarboe, Fundamental  Legal Principles  Affecting            Business Transactions in Indian Country, 17 Harmline L.  Rev.            417, 430 (1994); see also Stowell v. Secretary of Health  and            Human  Servs., 3 F.3d  539, 542 (1st  Cir. 1993) ("Given  two            plausible alternatives, and recognizing that the universe  of            interpretive                         possibilitie                                   s may extend beyond them, we think the            U.S.C. S 1722(j) defines Penobscot Indian Territory as "those            lands as defined in the Maine Implementing Act."  The Maine            Implementing Act defines Penobscot Indian Territory as the            Penobscot Indian Reservation and "[t]he first 150,000 acres            of land acquired by the secretary for the benefit of the            Penobscot Nation" as further defined in this section.  Me.            Rev. Stat. Ann. tit. 30, S 6205(2)(B) (1993).  The Holden Lot            does not fall within either the Penobscot Indian Reservation            or the remaining area that S 6205(2)(B) designed as current            or potential Penobscot Indian Territory.                                         -19-                                         19            statute contains an undeniable ambiguity.").                      Section 81's  lack of  clarity and  its failure  t                                                                Smith                                                                        o            define the phrase "Indian lands" requires us to determine the            "ordinary or natural" meaning  of these terms.  See        v.            United States, 508 U.S.  223, 228 (1993).  When Congress  has            failed to  define statutory language,  the Supreme Court  has            resorted  to authoritative  texts to  determine the  ordinary            meaning of statutory language.  See id. at 229.  According to            one  such text,  the term  "Indian lands"  refers to  "[r]eal            property ceded to the U.S. by Indians, commonly to be held in            trust                  for                      Indians."                                                               Blac                                   k's Law Dictionary 771 (6th ed. 1990).            The definition of  Indian tribal or  trust land is  virtually            identical:  "real propt 772.12                      In the  context of S  81, the  phrase "relative  to            [Indian] lands" is understood to refer to Indian trust lands.            See Cohen's Handbook at 318 n.293 (explaining that "25 U.S.C.            S 81[] prohibit[s]  contracts with  Indian tribes  concerning            trust property unless approved by the Commissioner of  Indian            affairs") (emphasis  added);  Patrick K.  Duffy and  Lois  A.            12.  It is noteworthy that the phrase "Indian country" refers            to "all lands set aside by whatever means for the residence            of tribal Indians under federal protection, together with            trust and restricted Indian allotments."  Cohen's Handbook at            34; see also United States v. John, 437 U.S. 634, 648-50            (1978).  The phrase "as Indian lands are held" is read            "simply to state the United States will hold title in trust            for the tribe."  Cohen's Handbook at 476.  These definitions            would seem to indicate that "Indian country" and "Indian            lands" encompass Indian trust lands but not Indian fee lands.                                        -20-                                         20            Lofgren,  Jurassic  Farce:    A  Critical  Analysis  of   the            Government's Seizure of "Sue," A  Sixty-Five-Million-Year-Old            Tyrannosaurs                         Rex                            Fossil,                                    39 S. D. L. Rev. 478, 528 n.169 (1994)            (indicating                        that                            pursuant to S 81, the Secretary "has oversight            responsibility  for  approving  or  vetoing  the  terms   and            conditions                       of                         all                             contracts involving Native American tribal or            trust  property") (emphasis  added).   No authority  directly            states  that  S  81 applies  to  Indian  fee lands.    It  is            understood,                        however,                                that by adopting S 81 "Congress prohibited            most contracts between  non-Indians and tribes  . . .  unless            approved                     by                        the Secretary of the Interior and the Commissioner            of Indian Affairs."  Cohen's Handbook at 143.  Thus, although            it appears that S 81's "relative to [Indian] lands"  language            connotes Indian trust lands rather than Indian fee lands,  we            acknowledge that this interpretation is not iron-clad.                      Recognizing that we cannot end our inquiry with the            "ordinary" or  "natural" meaning of  the statute's terms,  we            consider                     the                         relevant legislative history in an effort to give            effect  to the  intentions of  the statute's  drafters.   See            Griffin                                      v.                       Oceanic                              Contra                                   ctors, Inc., 458 U.S. 564, 571 (1982);            United States ex rel. S. Prawer & Co. v. Fleet Bank, 24  F.3d            320,  327  (1st  Cir.  1994);  Federal  Election  Comm'n   v.            Massachusetts Citizens for  Life, Inc., 769 F.2d 13, 17  (1st            Cir. 1985),  aff'd, 479  U.S. 238  (1986).   This inquiry  is            particularly                         appropriate in the context of federal Indian law.                                        -21-                                         21            The Supreme Court has made it clear that "Indian law[] cannot            be interpreted in isolation but must be read in light of  the            common notions  of the day and  the assumptions of those  who            drafted [such law]."  Oliphant v. Suquamish Indian Tribe, 435            U.S.                 191,                      206                         (1978);                                 see                                    also Central Machinery Co. v. Arizona            State Tax Comm'n,  448 U.S. 160, 166 (1980) (explaining  that            courts must  "interpret [certain  federal statutes  involving            Indian tribes] .  . . in light  of the Congress that  enacted            them").                      Congress                               "intended                                        [S                                           81] to protect the Indians from            improvident                        and unconscionable contracts."  In re Sanborn, 148            U.S. 222,  227 (1893); see also  Cong. Globe, 41st Cong.,  3d            Sess. 1483, 1483  (daily ed. Feb.  22, 1871) (declaring  that            statute was for Indians' "protection and to prevent them from            being plundered") (comments of Senator Davis).  Specifically,            Congress adopted S 81 to protect Indian tribes and individual            Indians                    from                        persons,                                 particularly attorneys and claims agents,            offering  dubious services,  typically the  assertion of  the            Indians' land claims against the government, in exchange  for            enormous fees.  See Cong. Globe, 41st Cong. at 1483-86.   One            senator  indicated that  this section  "would prevent  . .  .            contracts                      being made by [Indian tribes] unless approved by the            Secretary                      of                        the                            Interior in any matter relating to the land or            annuities  that they  hold under  or derive  from the  United            States."   See Cong. Globe, 41st  Cong. at 1486 (comments  of                                        -22-                                         22            Senator Harlan) (emphasis  added).  Another senator  declared            that S 81 "is limited  to such agreements or services as  are            made                 or                   rendered                            relative to the lands of the Indians or to any            claim against  annuities  from or  treaties with  the  United            States."                                           Id.                         (comments of Senator Casserly) (emphasis added).                      Evidence                               of                                  the drafters' assumptions and intentions            does little to resolve whether or not the phrase "relative to            [Indian] lands" pertains to both Indian trust land and Indian            fee lands,  or solely  to  the former.   The  two  statements            addressing the application  of S 81 may be read  differently:            Senator Harlan's description  may indicate  that the  statute            applies solely  to lands  over which  the federal  government            exercises   a  trust   responsibility;   Senator   Casserly's            explanation may mean that the statute applies to Indian lands            generally.                                               To reconcile this ambiguity, and thus to parse the            ordinary meaning of S 81 at the time of its ratification,  we            consider the understanding of the status of Indian lands that            prevailed at the time Congress passed S 81.13  See  Oliphant,            13.  Our determination to further consider the nature of            Indian land ownership during this time in order to properly            interpret the phrase "relative to [Indian] lands" would be            appropriate even if we read Senator Harlan's statement in the            disjunctive, rather than in the conjunctive as the sentence            was recorded.  That is, if we read the phrase "relating to            the land or annuities that they hold under or derive from the            United States" so that the qualifying statement "that they            hold under or derive from the United States" qualifies only            the word "annuities" but not the words "the land," we still            would have learned little more concerning the definition of            "Indian lands."  Such a reading, though tortured, would            resolve the ambiguity between the drafters' two statements                                        -23-                                         23            435 U.S. at 206.                      In 1872,  when Congress  passed S  81, federal  law            provided that Indian tribes enjoyed the right to possess  and            occupy  lands but  not to  alienate these  lands without  the            federal government's approval.   See Johnson v. M'Intosh,  21            U.S.                 (8                    Wheat.) 543, 574 (1823) (indicating that United States            possessed                      title                            to                              all                                  Indian lands "subject only to the Indian            right                  of                    occupancy");                                 Uni                                   ted States v. Cook, 86 U.S. (19 Wall.)            591,                 592-94                        (1873) (explaining that Indians enjoyed only right            of occupancy  in Indian lands  and that "the  fee was in  the            United States"); David H.  Getches and Charles F.  Wilkinson,            Federal Indian  Law 161 (1986)  ("The United  States had  the            exclusive  right to  purchase or  extinguish Indian  title.")            [hereinafter  Federal  Indian   Law].    Memorializing   this            conception of Indian  real property rights, Congress  adopted            general, comprehensive legislation  addressing the rights  of            Indian tribes with  respect to their  lands during this  era.            See              ,                 e.g.                    ,                      Nonintercourse                                    Act of 1834, R.S. S 2116 (codified as            25               U.S.C.                      S                       177)                            (prohibiting "purchase, grant, lease, or other            conveyance                       of                         lands                             ,                                or                                   of any title or claim thereto, from any            Indian  nation or  tribe  of  Indians")  (emphasis  added).14            and would tend to point to a broader definition of the terms            "Indian lands," but it would not dispose of our inquiry into            the meaning of the phrase "relative to [Indian] lands."            14.  It was not until the legal relationship between Indian            tribes and the federal government evolved dramatically in the            twentieth century that legislation regulating Indian tribes'                                        -24-                                         24            Congress did not distinguish  between Indian trust lands  and            Indian fee lands at  this time presumably because it did  not            contemplate that Indian tribes could hold land in fee simple.                      During this time, however, Congress did provide for            individual Indians to hold land in fee simple.  See 25 U.S.C.            SS 348-349 (1887).  The allotment process that these statutes            authorized permitted the  Secretary to transfer certain  real            property to individual Indians.  Typically, the United States            would hold such lands in trust for the designated individuals            for a period of twenty-five years.  See Sam Pelican, 232 U.S.            at 447.  The Secretary, at his discretion, could "cause to be            issued                   to                      such allottee a patent in fee simple, and thereafter            all restrictions as to sale, incumbrance, or taxation of said            land shall  be removed."   25 U.S.C.  S 349.   Despite  these            statutes'  provision  for  individual  Indians'  fee   simple            ownership of real property, we have unearthed no  legislation            real property routinely distinguished between restricted and            unrestricted tribal lands.  See, e.g., 28 U.S.C. S 1360(b)            (1953) (referring specifically to the "alienation,            encumbrance, or taxation of any real or personal property . .            . that is held in trust by the United States or is subject to            a restriction against alienation imposed by the United            States"); 25 U.S.C. S 415 (1955) (referring specifically to            "restricted Indian lands").  Modern statutes routinely            distinguish between Indian trust lands and Indian fee lands.             See, e.g., 25 U.S.C. S 1724(d)(3) (1980) (distinguishing            between Indian trust lands and Indian fee lands, and            indicating that the United States does not have "trust            responsibility" with respect to the latter); 25 U.S.C. S 1466            (1974) (indicating that Indian tribes can purchase real            property "without any restriction on alienation, control, or            use").                                        -25-                                         25            enacted                    during                           this                               time                                    that afforded similar rights to Indian            tribes.  See Cohen's Handbook at 36 & n.78.                      Interpreting S 81  and its  legislative history  in            light of  the  understandings and  assumptions of  those  who            drafted it, see Oliphant, 435 U.S. at 206, thus supports  the            conclusion                       that S 81 does not pertain to the Holden Lot.  When            Congress passed S 81  it did not envision that Indian  tribes            could hold land in the  manner that PIN held the Holden  Lot.            Cf. Cohen's Handbook at  127-43 (concluding that during  this            time                 "extensive government supervisory power over the everyday            life of  Indians was essentially  unchecked").  It  therefore            would  seem  anomalous, in  endeavoring  to  give  effect  to            Congress' intent, to apply S 81 to lands PIN purchased in fee            simple for investment purposes.                      Admittedly, the broad remedial purposes that S 81's            drafters  attributed  to  the  statute  may  complicate  this            analysis.   Congress desired  to protect  Indian tribes  from            unscrupulous                         business practices, see Cong. Globe 41st Cong. at            1485-86, and enjoyed  the sole right  to encumber all  Indian            lands, see Oneida Indian Nation v. County of Oneida, 414 U.S.            661,                 667                     (1974) ("Once the United States was organized and the            Constitution                         adopted                                 .                                  .                                    . tribal rights to Indian lands became            the exclusive  province of the  federal law.   Indian  title,            recognized                       to be only a right of occupancy, was extinguishable            only  by  the  United States.").    It  may  seem  plausible,                                        -26-                                         26            therefore, that S 81 should apply to agreements for  services            relative                     to                        all                           Indian                                  lands.  Congress, moreover, occasionally            did                authorize individual Indians to hold designated parcels of            real property  in  fee  simple, and,  therefore,  could  have            exempted these fee simple lands from S 81's purview if it did            not                want                     S                       81 to apply to Indian fee lands.  To our knowledge,            Congress has adopted  no such exemption.   Our analysis  thus            illustrates  that  although   S  81's  legislative   history,            considered                       in light of the status of federal Indian law during            the                middle                       of the nineteenth century, points to the conclusion            that S 81  does not apply  to Indian fee  lands, it does  not            provide a clear answer to the issue we face today.                      Having                             failed                                    to                                      arrive                                             at a definitive answer to our            inquiry  through  reference  to  S  81's  plain  meaning  and            legislative history, we turn to analyze the interpretation of            the agency  responsible for administering  the statute.   See            Chevron U.S.A., Inc.  v. Natural  Resources Defense  Council,            Inc.               ,                  467                      U.S.                          837,                               843                                   (1984).  Although we have not unearthed            a general interpretation of S 81 advanced by the Secretary of            the  Interior,  in  this  case  the  parties  submitted   the            Partnership Agreement for the Secretary's approval.  The Area                                        -27-                                         27            Director of the Eastern  Area Office of the Bureau of  India                      stated:                                                                        n            Affairs15                      The  Secretary has  determined  that  the                      Agreement does not encumber trust land or                      other trust assets, that the Agreement is                      not                          subject                                  to the provisions of 25 U.S.C.                      S 81 (1982), and  that, as a result,  the                      Nation has contractual capacity to  enter                      into this  Agreement  without  additional                      Secretarial approval.            Declaration of B. D. Ott, Area Director, Eastern Area Office,            Bureau of Indian Affairs (December 31, 1986).                      This declaration  illustrates that  in  determining            whether or not an agreement with an Indian tribe falls within            the                parameters                           of                             S                               81,                                   the Secretary focuses on whether or not            the agreement relates to  Indian trust lands or assets.   See            also B arona Group  of the  Capitan Grande  Bande of  Mission            Indians v.  American Management &  Amusement, Inc., 840  F.2d            1394, 1404-05 (9th Cir. 1987) (quoting Acting  Superintendent            for  Southern California  Bureau  of  Indian  Affairs  office            explaining that S 81 does not apply if "trust lands and funds            are  not involved").   In  this case,  the second  Settlement            Agreement did  not  involve  Indian trust  lands  or  assets.            Although the administrative agency's interpretation does  not            15.  The Secretary of the Interior's duties pursuant to the            text of S 81 subsequently have been delegated to the            appropriate Area Director of the Bureau of Indian Affairs.             See Reorganization Plan No. 3 of 1950, 5 U.S.C. S 903(a)(5) &            note; Order of the Secretary of the Interior, Nos. 3150 &            3177, Amend. No. 3 (Dec. 16, 1996); 10 B.I.A.M. Bulletins 13,            9409, & 9602.                                        -28-                                         28            function                     to                       conclusively                                    resolve our evaluation of whether S 81            pertains to the second  Settlement Agreement, see Stowell,  3            F.3d at 544; American  Management, 840 F.2d at 1405, we  must            afford                   it                      considerable deference, see Chevron U.S.A., 467 U.S.            at 843;  Strickland  v. Commissioner,  Maine Dep't  of  Human            Servs., 96 F.3d 542, 547 (1st Cir. 1996).                      Judicial interpretation  of S  81 provides  further            guidance.                                             See                                                  Securities                                    Indus. Ass'n v. Board of Governors of            Fed. Reserve Sys., 839 F.2d 47, 49 (2d Cir. 1988) (explaining            that in determining reasonableness of administrative agency's            interpretation of  statute,  court should  consider  judicial            construction)                        .  Courts generally have focused on the existence            of               Indian                      trust                           land                                in                                   evaluating S 81's "relative to [Indian]            lands"                   component.  In Koberstein, 762 F.2d at 619, the Seventh            Circuit  explicitly stated  that  S  81 applied  to  a  bingo            management agreement  because "S  81 applies  to Indian  land            transactions                         concerning                                   their tribal trust property." (emphasis            added).  See also Pueblo of  Santa Ana, 663 F. Supp. at  1306            (finding S 81 applicable to agreement because it provided for            construction  and operation  of  facility  on  "tribal  trust            property") (emphasis  added); Enterprise  Management, 734  F.            Supp.                  at                     457                        (voiding                                 bingo management agreement providing non-            Indian party exclusive right to operate bingo games on Indian            trust lands  because this agreement  was "relative to  Indian            lands and . . . thus governed by section 81").                                        -29-                                         29                      The Ninth Circuit in particular has manifested  the            importance                       that                           the                               presence of Indian trust lands plays in the            "relative                      to                         [Indian] lands" analysis.  In A.K. Management Co.            v. San Manuel Band of Mission Indians, 789 F.2d 785, 786 (9th            Cir. 1986), the Ninth Circuit considered the applicability of            S              81                 to                   a                     bingo                           management contract that the San Manuel Band of            Mission  Indians executed  with a  bingo management  company.            Upholding the district court's grant of summary judgment, the            court                  held                       "that                            the                                instant Agreement is 'relative to [Indian]            lands' under 25 U.S.C. S 81."  Id. at 787.  In  reaching this            conclusion, the court reasoned that "the Agreement gives  the            non-Indian contracting party . . . the express right to build            and control the  operation of the  bingo facility located  on            tribal                   trust                         lands and prohibits the Band from encumbering the            land."  Id. (emphasis added).                      One year later, in American Management, 840 F.2d at            1404, the  Ninth  Circuit again  determined that  a  contract            between an  Indian tribe  and a  non-Indian bingo  management            company                    providing                             for                                 the construction and operation of a bingo            facility on  Indian trust  lands was  "'relative to  [Indian]            lands' under section 81."  The court specifically stated that            it               reached                       this conclusion despite the fact that the agreement            neither afforded the non-Indian party exclusive control  over            the                bingo                      facility                              nor                                  abridged the tribe's ability to encumber            its trust lands.  See id.  The fact that the non-Indian party                                        -30-                                         30            exercised  some control  over  Indian  trust  lands,  however            minimal, proved decisive  to the American Management  court's            analysis.                                             See                                                  id.                            ;                               see                                                                    a                                   lso United States ex rel Yellowtail v.            Little Horn State Bank, 828 F. Supp. 780, 787 (D. Mont. 1992)            ("The only interest the government has in overseeing  certain            contracts and agreements with Indians flows from its duty  as            trustee  of  tribal  resources.  . .  .  The  nature  of  the            government's  interest is  in  the  Tribe's  trust  resources            'relative                      to                        the                            land.'"), aff'd, 15 F.3d 1095 (9th Cir. 1994).                      The  most   recent   circuit  court   decision   to            specifically                         address                                the                                    "relative to [Indian] lands" component            of S  81,  Altheimer &  Gray, 983  F.2d at  808-12, offers  a            slightly  different  construct  that  further  supports   the            conclusion                       that                           the                               second Settlement Agreement in this case is            not  "relative  to [Indian]  lands."    The  Altheimer  court            considered a  Letter of  Intent that  a federally  recognized            Indian                   tribe,                          in                            the                                form of a wholly owned tribal corporation,            executed  with an  Illinois  corporation  providing  for  the            manufacture of latex medical products on tribal trust  lands.            See id . at  806-07.   Although manufacture  of the  products            actually                     commenced,                               the                                   parties failed to execute the necessary            contracts.                                               Operations thus ceased shortly after commencement.            The                Illinois                        corporation                                    sued the tribal corporation for breach            of contract.  The  district court found the Letter of  Intent            void  pursuant to S  81 and granted  summary judgment to  the                                        -31-                                         31            tribal    corporation.        See    id.    at   806-07.                           The                          Seventh                                 Circuit                                         reversed the district court.  See            id             .                at                   815.                                                In                           so                              doing, the court set forth four factors that            it considered  determinative of whether  or not a  management            contract is "relative to [Indian] lands" pursuant to S 81:                       1)  Does the contract relate to the management                       of a facility to be located on Indian lands?                        2)  If so, does the non-Indian party have the                       exclusive right to operate that facility?                        3)  Are the Indians forbidden from encumbering                       the property?  4)  Does the operation of the                       facility depend on the legal status of an Indian                       tribe being a separate sovereign?            Id.  at 811.   Despite  the fact  that the  Letter of  Intent            involved                     the                        operation                                  of a facility on Indian trust lands, the            Altheimer                                          court found that it was not relative to Indian lands            and thus not within the purview of S 81.  The Seventh Circuit            emphasized the fact that the non-Indian contracting party did            not  have exclusive  control of  the facility  and that  "the            business derived  no  special benefit  from its  location  on            Reservation land."  Id. at 812.                      Considering the present case in light of  Altheimer            compels                    two                       initial                               observations.  First, the second Settlement            Agreement obviously did not constitute a management contract.            Second, importing the precise considerations pertinent to  an            evaluation  of a  management contract  to an  analysis of  an            agreement  to assist  in locating  a purchaser  for land  may            present                    certain difficulties.  See id. at 811 (indicating that                                        -32-                                         32            the                four                     factors that it set forth "are not the 'sine qua non'            of a contract which relates to Indian lands").                      Despite                              its                                  distinguishing characteristics, however,            Altheimer                                          informs our analysis of PIN's appeal.  Specifically,            the                Altheimer                         court refused to find the agreement "relative to            [Indian] lands" in part because the Indian tribe in Altheimer            remained                     involved in the business relationship.  In this case,            PIN  participated  in  the  Partnership,  not  through  daily            management                       duties,                              but                                  through financing and leasing activities            promoting  Schiavi   Homes'   business  activities.      More            importantly, Altheimer emphasized  the fact that the  subject            matter of the  contract derived no  special benefit from  the            Indian  tribe's sovereign  status.   See  id.  at 812.    The            Altheimer court explained:   "Unlike bingo, manufacturers  of            latex medical products need not seek refuge from state  civil            laws by locating on a reservation."   Id.  In this case,  the            parties to the second Settlement Agreement derived no special            benefit from PIN's sovereign status.16                      Notwithstanding the fact  that Altheimer, like  the            other cases we have considered, supports the conclusion  that            16.  We note that when the land at issue constitutes Indian            fee land it is difficult for the subject matter of the            contract to derive a special benefit from the Indian tribe's            sovereignty because Indian tribes do not have the same powers            and privileges with respect to Indian fee lands that they do            in the context of Indian trust lands.  See Narragansett            Indian Tribe v. RIBO, Inc., 686 F. Supp. 48, 50 (D.R.I.            1988), aff'd on other grounds, 868 F.2d 5 (1st Cir. 1989);            Cohen's Handbook at 232-57.                                        -33-                                         33            the second  Settlement  Agreement does  not fall  within  the            purview of S 81, we consider one additional case in which the            district court for the district of Rhode Island interpreted S            81's  "relative  to   [Indian]  lands"   requirement.     See            Narragansett Indian Tribe v. RIBO, Inc., 686 F. Supp. 48,  51            (D.R.I. 1988), aff'd on  other grounds, 868 F.2d 5 (1st  Cir.            1989).                                       The                        N                        arragansett court considered S 81's applicability            to               two                   management agreements "contemplating acquisition by the            Tribe of property on which a high stakes bingo hall could  be            constructed."   See id.  at 49.   Following execution of  the            agreements, the Tribe purchased a total of 28.8 acres of land            adjacent to  the Tribe's reservation.   See id.  at 50.   The            Tribe, however, failed to secure trust status for this  land.            See id.                      The                          Narragans                                  ett defendants specifically argued that            "S 81 pertained only to 'tribal  land' . . . [that is,]  land            that is part of the Tribe's reservation."  Id.  The  district            court rejected this argument, reasoning:                      [S]uch a  construction  proves to  be  at                      variance with both the plain language  of                      the statute and  with its broad  remedial                      purpose.  Thus the statute uses the  term                      'their  [the  Indians']  lands'   without                      differentiating between  original  tribal                      lands and  those  subsequently  acquired.                      Reading into  those words the  limitation                      urged by  Defendants would distort  their                      plain meaning.   Moreover, it also  would                      emasculate the statute and frustrate  its                      purpose  of  providing  a  mechanism   to                      regulate Indian land transactions.                                        -34-                                         34            Id.                                               Although the Narragansett court recognized that S 81 "has            its origin in the longstanding trust relationship between the            federal                    government and Indian tribes," id. at 50, it held that            "S 81 renders both the agreements and the notes and mortgages            given by  the Tribe in accordance  with their terms null  and            void."  Id. at 51.                      We   find  the   Narragansett   court's   reasoning            unpersuasive.    The   construction  that  the   Narragansett            defendants  advanced, we  believe,  comports with  the  plain            language of the statute.  If S 81 is predicated on the  trust            relationship between the  federal government  and the  Indian            tribes, see  id.; United States ex  rel. Hall v. Tribal  Dev.            Corp.                ,                   49                     F.3d                          1208,                                1214 (7th Cir. 1995), then reading S 81 to            apply to Indian  lands purchased in  fee simple for  business            reasons contradicts the  statute's purpose and its  drafters'            intentions.  Even  those courts that have propounded a  broad            reading of  S 81's  "relative to  [Indian] lands"  component,            moreover,                      have not found that this phrase refers to Indian fee            lands.  See, e.g., Koberstein, 762 F.2d at 619; United States            ex rel Shakopee v. Pan American Mgmt. Co., 616 F. Supp. 1200,            1217-18  (D.  Minn.  1985)  (finding  that  "the   management            agreements [were] . . . inextricably tied up in the  property            rights flowing from the establishment of the bingo operations            on               tribal                      trust                           lands")                                   (emphasis added).  We thus find that to            the extent Narragansett can  be read to hold that Indian  fee                                        -35-                                         35            lands purchased for investment purposes and not designated as            trust                  lands                        qualify as "Indian lands" under S 81, that holding            is not compelling.                      To                         reach                               a                                different                                          conclusion in the context of the            Holden  Lot would defy  common sense.   See United States  v.            Carroll, 105 F.3d 740, 744 (1st Cir. 1997) (instructing  that            common sense construction  that "avoid[s] absurd or  counter-            intuitive results" is favored); O'Connell v. Shalala, 79 F.3d            170,                 176                     (1st Cir. 1996) (explaining that "courts are bound to            afford statutes a practical, common-sense reading").  Were we            to hold  that the  second Settlement  Agreement required  the                        pproval pursuant to S 81 despite the fact that it                              17            Secretary's                        a            relates only  to  Indian  fee lands  purchased  for  business            reasons, we  would force the  Secretary to  exercise a  trust            responsibility  with respect  to  lands over  which  Congress            specifically                         disavowed any further trust obligation.18  See 25            17.  Perhaps recognizing the Narragansett decision as an            anomaly, at least one circuit court has interpreted            Narragansett as "simply hold[ing] that bingo management            agreements involve services within the meaning of [S 81]."             Bacon, 21 F.3d at 212.            18.  We recognize that the Supreme Court determined that the            Nonintercourse Act, 25 U.S.C. S 177, applied to land that the            Pueblo Indian tribes of New Mexico held in fee simple.  See            United States v. Candelaria, 271 U.S. 432, 440-44 (1926); see            also United States v. Sandoval, 231 U.S. 28, 45-48 (1913)            (finding that Congress could restrict the alienation of land            that New Mexico Pueblo Indians held in fee simple).  The            Pueblo Indians at issue in Candelaria and Sandoval held their            lands in fee simple under both Spanish and Mexican law before            the United States gained control over New Mexico.  See            Candelaria, 271 U.S. at 442; Sandoval, 231 U.S. at 44-45.                                         -36-                                         36            U.S.C. S 1724(d)(3);  25 U.S.C. 1722(j); Me. Rev. Stat.  Ann.            lands.              tit. 30, S 6205(2)(B) (1993).                      In the Maine Indian Claims Settlement Act, Congress            not only disavowed further trust responsibility over the area            First the Spanish and then the Mexican authorities, however,                        Candelaria                   Sandoval, 231 U.S.            at 44-45.  We believe that the situation in this case, in            which PIN purchased land in fee simple for investment                                                              Candelaria                    See            retained the authority to restrict the alienation of these                                  , 271 U.S. at 442;             purposes, differs substantially from that in both             and Sandoval, in which the tribes held their ancestral tribal            lands in a modified version of fee simple under Spanish and            Mexican rule.       We note, however, that several courts,            relying on Candelaria and Sandoval, have found S 177            applicable to lands that other Indian tribes have purchased            in fee simple.  See Alonzo v. United States, 249 F.2d 189,            196 (10th Cir. 1957); United States v. 7,405.3 Acres of Land,            97 F.2d 417, 422 (4th Cir. 1938).  Given Alonzo's paucity of            analysis and outdated paternalism (the court adopted the            notion that Indians are "'a simple, uninformed people, ill-            prepared to cope with the intelligence and greed of other            races,'" see id. (quoting Candelaria, 271 U.S. at 442)), we            do not find this decision persuasive.  This conclusion            applies equally to 7,405.3 Acres of Land.                          The situation in this case, moreover, differs            substantially from that in Alonzo and 7,405.3 Acres of Land.             As opposed to the land in question in those cases, Congress            disavowed trust responsibility over the land encompassing the            Holden Lot.  See 25 U.S.C. S 1724(d)(3).  In Lummi Indian            Tribe v. Whatcom County, 5 F.3d 1355, 1359 (9th Cir. 1993),            the Ninth Circuit took issue with Alonzo and 7,405.3 Acres of            Land and ruled that "parcels of land approved for alienation            by the federal government and then reacquired by the Tribe            did not then become inalienable by operation of the            Nonintercourse Act."  See also Federal Power Comm'n v.            Tuscarora Indian Nation, 362 U.S. 99, 110-15 (1960)            (determining that lands that Indian tribe purchased in fee            simple were not subject to federal oversight pursuant to            Federal Power Act, 16 U.S.C. S 797(e), because United States            neither owned these lands nor owned an interest in these            lands).  The lands at issue in Lummi Indian Nation and            Tuscarora Indian Nation were similar to the Holden Lot in            that the tribes purchased these lands in fee simple.  See            Lummi Indian Tribe, 5 F.3d at 1357; Tuscarora Indian Nation,            362 U.S. at 105-06.                                         -37-                                         37            encompassing the  Holden Lot,  it expressly  stated that  the            p                as its  source the Nonintercourse  Act, meaning that  th            trust relationship pertains to land transactions which are or                                         Passamaquoddy Tribe            N            See 25 U.S.C. S  1724(g)(1).  This is significant because  we             reviously                       have indicated that "the 'trust relationship' . . .            has                                                         e            may be covered by the Act."                     , 528 F.2d at            379.                                   Because                         the                             Nonintercourse Act no longer pertains to PIN,            Passamaquoddy Tribe dictates that the federal government does            not have a trust  obligation with respect to the Holden  Lot.            See                                        Imposing  such                onintercours                        e Act, 25 U.S.C. S 177, no longer applied to PIN.                                 also  25  U.S.C.  S  1724(d)(3).19                     a            responsibility pursuant to  S 81 would  defy not only  common            19.  Key Bank urges us to rule that the Maine Indian Claims            Settlement Act, 25 U.S.C. SS 1721-1735, implicitly repealed S            81 with respect to PIN generally.  Although S 1724 provides            that several statutes, including 25 U.S.C. S 177, no longer            apply to PIN, it makes no mention of S 81.  If Congress            desired to repeal completely S 81 with respect to all PIN            real property it could easily have done so, as it did with S            177.  Cf. Bailey v. United States, 116 S. Ct. 501, 507 (1995)            (specifying that if Congress desired to alter a statute it            specifically would have done so); Russello v. United States,            464 U.S. 16, 23 (1983) ("'[W]here Congress includes            particular language in one section of a statute but omits it            in another section of the same Act, it is generally presumed            that Congress acts intentionally and purposely in the            disparate inclusion or exclusion.'") (quoting United States            v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972)); Hirschey            v. F.E.R.C., 760 F.2d 305, 308 (D.C. Cir. 1985) (indicating            that Congress understands how to effect such results); see            also Altheimer, 983 F.2d at 805 (explaining that Congress has            neither explicitly nor implicitly overruled S 81).  We thus            do not find that the Maine Indian Claims Settlement Act            implicitly repealed S 81 with respect to all PIN land.                                        -38-                                         38            sense but logic as well.20                         v.                   ,                                        See Lummi Indian Tribe    Whatcom            County   5 F.3d  1355,  1359  (9th Cir.  1993)  (ruling  that            Nonintercourse                           Act                              did                                  not apply to land Indian tribe purchased            in fee simple over  which Congress previously terminated  its            trust                  obligation);                              cf.                                                                  Fe                                   deral Power Comm'n v. Tuscarora Indian            Nation, 362  U.S.  99, 110-15  (1960) (finding  that  federal            government  did not  own an  interest in  lands Indian  tribe            purchased in fee simple).                      Applying  S  81  to  the  Holden  Lot  also   would            necessitate that almost every agreement for services executed            with an  Indian tribe, no  matter how  minute, would  require            Secretarial approval.  See In re United States ex rel.  Hall,            825                F.                   Supp.                        1422,                              1434                                   (D. Minn. 1993) (discussing undesirable            implications of such an  interpretation), aff'd, 27 F.3d  572            (8th                 Cir.                      1994),                            cert.                                                                  de                                   nied, 115 S. Ct. 1112 (1995); see also            Raymond  Cross,  De-Federalizing  American  Indian  Commerce:            Toward                   a                     New                         Political Economy for Indian Country, 16 Harv. J.            L. &  Pub. Pol'y  445, 489  (1993) (indicating  that even  as            presently interpreted, "[e]xperience has shown . . . that  in            many cases  . .  . [S 81]  harms, rather  than helps,  Indian            20.  The fact that Congress explicitly determined that the            Nonintercourse Act does not apply to PIN further            distinguishes this case from the cases in which courts have            interposed a trust obligation in regard to real property that            Indian tribes have purchased in fee simple.  See Alonzo, 249            F.2d at 196; 7,405.3 Acres of Land, 97 F.2d at 422-23.             Congress never stated that the Nonintercourse Act did not            apply to the real property at issue in Alonzo or 7,404.3            Acres of Land.                                        -39-                                         39            tribes.   Its  rigid formalism  and over-inclusiveness  chill            business dealings between  tribes and  third parties  without            providing                      substantial offsetting benefits.").  We believe that            further                    extending administrative authority over the Holden Lot            would neither favor, see Montana v. Blackfeet Tribe, 471 U.S.            759, 766 (1985), nor protect, see In re Sanborn, 148 U.S.  at            227, Indian tribes.   In fact, adopting PIN's  interpretation            would frustrate Indian  tribes' efforts  to promote  economic            development and fiscal autonomy.                        This analysis reflects the modern trend in  federal            Indian                   policy away from outmoded paternalistic21 practices and            policies.                                             Se                        e Cohen's Handbook at 180-206; Federal Indian Law            at               151-59.                                               Particularly during the last forty years, Congress            has endeavored to afford Indian tribes the latitude to pursue            their social, political, and economic goals as they determine            appropriate.  See,  e.g., 25 U.S.C.  S 450 (proclaiming  that            "prolonged                       Federal                              domination . . . has served to retard rather            than  enhance  the  progress  of  Indian  people  and   their            communities by depriving Indians  of the full opportunity  to            develop leadership skills crucial to the realization of  self            government");                         25 U.S.C. S 450a (declaring Congress' commitment            21.  One proponent of S 81 described the statute as follows:             "If it is enacted and becomes part of the law it will be the            best shield, the best protection, and the best security for            the rights and the helplessness of these sons of the forest            that has ever been devised by American legislation or            American humanity."  Cong. Globe 41st Cong., 3d Sess. 1483,            1484 (daily ed. Feb. 22, 1871) (comments of Senator Davis).                                        -40-                                         40            to               "the                    establishment                                 of                                    a meaningful Indian self-determination            policy");                      Blatchford                                                              v.                                   N                                   ative Village of Noatak, 501 U.S. 775,            793                (1991)                      (Blackmun,                                 J., dissenting) (noting that Congress has            passed legislation  in recent decades  "as part  of a  larger            national                     policy                           of                              'self-determination' for the Native American            peoples").                                               To                           find                               S                                 81                                    applicable to a tract of real property            that  PIN purchased  in fee  simple to  promote its  business            interests would contravene  modern efforts  to secure  tribal            self-determination.                      In                         light                               of                                 these                                       policy                                              considerations, the dictates            of common sense, the vast majority of S 81 jurisprudence, and            the Secretary's interpretation,  we conclude that the  second            Settlement                       Agreement does not qualify as "relative to [Indian]            lands."                                         This Agreement did not pertain to Indian trust lands.            In fact, the second  Settlement Agreement involved lands  PIN            purchased in fee simple to promote its investment  objectives            over which Congress expressly disavowed trust responsibility.            To  rule that  this  Agreement necessitated  the  Secretary's            approval  pursuant to  S 81,  we conclude,  would strain  the            statute's                      ordinary                              meaning and exceed its drafters' intentions.                      We recognize that statutes affecting Indian  tribes            must be  construed liberally  in favor  of the  tribes.   See            Blackfeet  Tribe, 471  U.S.  at 766.    The rule  recited  in            Blackfeet Tribe, however, does not require a court to  ignore            compelling authority supporting a conclusion contrary to  the                                        -41-                                         41            position                     that a particular Indian tribe advances.  See Lyng v.            Northwest Indian Protective Ass'n, 485 U.S. 439, 456  (1988).            We therefore hold that the Settlement Agreements did not fall            within                   the                       parameters                                 of                                    S 81, and thus that the two Settlement            Agreements constituted valid, binding releases that  preclude            PIN from further pursuing its remaining claims.                      2.  Underlying Agreements                      Despite the  fact that S 81  does not apply to  the            Settlement                       Agreements, and thus that the Settlement Agreements            function to release PIN's  remaining claims, we must  briefly            consider whether S 81 applies to the underlying agreements at            issue                  in                     this case.  We pursue this inquiry to deter potential            abuse                  stemming from the execution of a settlement agreement in            the context  of S  81.   We are  particularly concerned  that            parties to an agreement for services relative to Indian trust            lands may seek to avoid securing Secretarial approval of such            agreement  pursuant to S  81 by executing  a relet that  this            release did not constitute an agreement with an Indian  tribe            for services relative  to Indian lands, and that the  release            functions to prohibit any action that a party to the  release            initiates  subsequently  to  void  the  underlying  agreement            pursuant                     to                        S                         81.22                                                                                            To                                   avoid creating a potential safe harbor,            22.  Even if such a release did preclude a party's action to            invalidate the underlying agreement pursuant to S 81, as in            the instant case, S 81's qui tam provision would permit            another party to bring suit in the name of the United States            to invalidate the underlying agreements if these underlying                                        -42-                                         42            we evaluate the three underlying agreements at issue in  this            case  to  determine whether  or  not  they  necessitated  the            Secretary's approval pursuant to S 81.                           a.  Asset Purchase Agreement                      The  Asset  Purchase  Agreement23  constituted  the            operative agreement relating to the Partnership's purchase of            SHC.                                   This                      Agreement                                was                                    a pure sales contract.  Without regard            to whether  S  81's "services"  component pertains  to  sales            contracts, see Menominee Tribe, 233 U.S. at 570-71 (finding S            81 applicable to  contract for sale of logging equipment  and            supplies); but see Hall, 825 F. Supp. at 1431-32 (ruling that            "Congress  did  not  intend  that  section  81  govern  sales            contracts"),  the  only  real  property  that  the  Agreement            mentioned was real property that the seller, SHC,  possessed,            not land that an Indian tribe, specifically PIN, owned.  This            Agreement                      simply                            stipulated that the Partnership secured a $3.5            agreements did not bear the Secretary's approval.  See Tribal            Development, 49 F.3d at 1212; United States ex rel. Yankton            Sioux Tribe v. Gambler's Supply, Inc. 925 F. Supp. 658, 668-            69 (D.S.D. 1996).            23.  PIN refers both to the Asset Purchase Agreement and to            "associated contracts and documentation" as being void ab            initio pursuant to S 81.  The Partnership executed a Non-            Competition and Consulting Agreement with John Schiavi on            December 30, 1996.  Although this Agreement did provide for            services, in the form of consulting duties, it never            mentioned and did not relate to any Indian lands.  The non-            competition agreements that the Partnership executed with CWC            similarly did not pertain to any Indian lands.  Section 81,            therefore, does not apply to these "associated contracts and            documentation."                                        -43-                                         43            million                    guaranteed loan from Key Bank; it neither required nor            referred                     to                        PIN's use of its land as collateral for this loan.                           b.  Partnership Agreement                      We                         find                              that                                  the                                      Partnership Agreement did constitute            a              services                      agreement                                because it contained a provision dictating            that                 Palmer                        enjoyed                               sole                                    responsibility for managing SHC to the            benefit of both Palmer and PIN.  See Koberstein, 762 F.2d  at            619  (finding  that  S  81  governs  management   contracts).            Nonetheless,  despite  PIN's   assertion  that  the   parties            envisioned the use  of PIN's lands to advance SHC's  business            activities, the  Partnership Agreement  neither  specifically            mentioned                      nor                         indirectly                                    referenced any use of land.  It merely            stated                   that                        PIN would provide a $1 million Letter of Credit to            secure Key Bank's Guaranteed  Loan financing the purchase  of            SHC.   The Partnership  Agreement, therefore,  does not  fall            within                   the                       parameters                                 of                                    S 81 because it does not constitute an            agreement   for   services  relative   to  Indian   lands.24                       Because the service that the Partnership  Agreement            provided for  entailed  the  management of  SHC,  we  briefly            evaluate                     this Agreement in light of Altheimer, which addressed            the applicability of S 81 to a management agreement.  See 983            F.2d                 at                    811.                          The relevant Altheimer factors indicate that the            24.  As previously noted, the parties to the Partnership            Agreement submitted this Agreement for the Secretary's            approval pursuant to S 81.  The Secretary specifically            determined that S 81 did not pertain to the Agreement.                                        -44-                                         44            Partnership Agreement  does not fall  within S 81's  purview.            Specifically, the Partnership Agreement did not relate to the            management of a facility to be located on Indian lands,  and,            even if it did, the operation of such facility would not have            depended in  any way  on  PIN's legal  status as  a  separate            sovereign.  See id.                           c.  Lease-Option Agreement                      The Lease-Option Agreement, unlike the  Partnership            Agreement, did not pertain  to "services" relative to  Indian            lands.25  The Lease-Option simply provided that Schiavi Homes            enjoyed the right to use  and improve the Holden Lot for  the            purpose of conducting its business.  It also afforded Schiavi            Homes an option to purchase the Holden Lot.  The Lease-Option            never  mentioned and  did  not  relate to  the  provision  of            services.  In addition, although it did involve real property            that                 PIN                     owned (the Holden Lot), as previously noted this land            was                not                    within the parameters of S 81 because it was not trust            land.   Even if  the Holden Lot  did constitute Indian  trust            lands, S  81 would not  apply to  the Lease-Option  Agreement            25.  The Assignment of Lease executed on December 1, 1988,            transferring Schiavi Homes' entire interest in the Lease, and            particularly the option to purchase the Holden Lot, to Key            Bank as additional collateral for the repayment of its            Guaranteed Loan in the amount of $3,500,000 did not require            Secretarial approval under S 81.  This agreement did not            entail any services and pertained only to the Holden Lot not            to PIN's trust lands.  On July 20, 1989, moreover, PIN            secured Bureau of Indian Affairs approval for this Assignment            pursuant to Title IV of the Indian Financing Act of 1974, 25            U.S.C. SS 1521-1524.                                        -45-                                         45            because                    the                        Maine                             Indian                                    Claims Settlement Act provided that 25            U.S.C.  SS  396  & 415  would  govern  leases  involving  PIN            territory.  See 25 U.S.C. S 1724(g)(3)(A)&(B) (providing that            25 U.S.C.  SS  396a-396g &  415-415d  govern leasing  of  PIN            Territory); see also Koberstein, 762 F.2d at 619  (indicating            that S 81  governs transactions relative to Indian lands  for            which Congress has not passed a specific statute).            B.  Breach of Contract                      Palmer and Palmer Management assert that by  filing            the  instant suit,  PIN breached  the contractual  obligation            memorialized  in the  Settlement Agreements  to "release  all            claims."  In  their counterclaim, these two  cross-Appellants            sought damages from this  purported breach deriving from  the            "loss of time that could otherwise be spent in the pursuit of            legitimate business interests."  On appeal, Palmer and Palmer            Management request damages "caused by the lawsuit outside  of            attorney                     fees."                         26                                                                                      Because we find the Settlement Agreements to            constitute                       valid                            releases not within the parameters of S 81, we            now                consider                         Palmer and Palmer Management's breach of contract            counterclaims.            26.  The district court devoted the majority of its analysis            to the issue of whether a party may recover attorney's fees            for the breach of a settlement agreement's release of claims.             The district court found that a party could not recover such            attorney's fees in the defense of a suit that itself            constituted a breach of a settlement agreement.  See            Penobscot Indian Nation v. Key Bank, Civ. No. 94-0212-B, at 6            (D. Me. Dec. 13, 1995).  Neither Palmer nor Palmer Management            raises this issue on appeal.                                        -46-                                         46                                        -47-                                         47                      Both Settlement  Agreements  state:   "The  parties            hereto                   have                       been                            collectively negotiating a final settlement in            the                Schiavi                        Homes                             loan                                  transaction, termination of business and            liquidation, and are desirous of reaching a final  settlement            between the parties  to avoid litigation now in existence  or            that could  hereafter  arise."   As mentioned  earlier,  both            Settlement Agreements  expressly  provided that  the  parties            "release, remise and forever discharge each other . . .  from            all suits .  . . at law or in equity . . . which directly  or            indirectly                       relate[]                                to                                  .                                    . . any . . . transactions . . . among            each other."  The district court dismissed Palmer and  Palmer            Management's claim for lost  business damages on the  grounds            that PIN's lawsuit in violation of the Settlement  Agreements            "was  seemingly  in good  faith"  and  "was  not  frivolous."            Penobscot Indian Nation v. Key Bank, Civ. No. 94-0212-B, at 6            (D. Me. Dec. 13, 1995).                      "A compromise agreement,  fairly arrived at, is  an            enforceable  contract  both  under  Maine  law  and   general            doctrine."                     27                                                 Warner v. Rossignol, 513 F.2d 678, 682 (1st Cir.            1975);                   see                                            al                        so Phillips v. Fuller, 541 A.2d 629, 629 n.1 (Me.            27.  Despite the fact that this case raises a federal            question, and thus that the district court exercised            jurisdiction pursuant to 28 U.S.C. S 1331 not 28 U.S.C. S            1332, we apply Maine law to the remaining claims because they            all involve state law and raise substantive rather than            procedural issues of law.  See Erie R.R. Co. v. Tompkins, 304            U.S. 64, 78 (1938); Walton v. City of Southfield, 995 F.2d            1331, 1343 (6th Cir. 1993) (applying state law in federal            question case involving pendent state claims).                                        -48-                                         48            1988) (recognizing that claim can be asserted for a breach of            a settlement agreement, and, specifically, that such a  claim            can                take                     the                         form of a counterclaim); A. L. Brown Constr. Co.,            Inc.  v. McGuire,  495  A.2d  794, 798  (Me.  1985)  (finding            settlement agreement to be an enforceable contract).  Whether            or not an enforceable  contract is breached does not turn  on            whether or not the breaching party acted in good faith.   Cf.            John                 D.                    Calamari & Joseph M. Perillo, The Law of Contracts 455            (2d                ed.                    1977)                         ("Any                               failure to perform a contractual duty which            has  become  absolute  constitutes  a  breach.");  E.   Allan            Farnsworth,                        Contracts                                                                636 (1982) ("[T]o abandon the traditional            view                 and                     take                         account                                 of                                    good faith in all cases would probably            be unworkable.").                      The  issue  which   demands  our  full   attention,            therefore, concerns the nature of the damages that Palmer and            Palmer Management may receive as a result of PIN's breach  of            the  Settlement Agreements.    Palmer and  Palmer  Management            contend                    that                         Dodge v. United States Auto. Ass'n, 417 A.2d 969,            975 (Me. 1980)  supports their claim  for damages other  than            attorney's  fees.   In  Dodge,  the parties  entered  into  a            settlement                       agreement concerning a homeowners insurance policy.            The  agreement included  a  provision  releasing  all  claims            stemming  from  the insurance  policy.    Subsequent  to  the            execution of the agreement, plaintiff filed suit against  the            insurance company.  The insurance company then responded with                                        -49-                                         49            "a counterclaim for  specific performance  of the  settlement            agreement and for damages resulting from [plaintiff's] . .  .            breach thereof," id. at 972, which "consisted principally  of            its attorney's fees incurred in defending the suit brought by            [the  plaintiff]  .  .  .  in  violation  of  the  settlement            agreement,"  id. at 975.   The Superior  Court did not  order            specific shed by  the court's disposition of the main  claims            asserted                     by                        [the plaintiff]."  Id. at 975.  The Superior Court            also                 denied                        the insurance company's claim for attorney's fees.            See id.                        The insurance company cross-appealed these rulings,            recognizing that  if  the Maine  Supreme Court  affirmed  the            Superior                     Court's judgment, there would be no need to reach the            issue of specific performance.  The Dodge court held:                      Because of the pervasiveness and vigor of                      the American rule making each party  bear                      its own  attorney's  fees, parties  to  a                      settlement--in  absence  of  an   express                      contractual provision  to the  contrary--                      must  be  taken  to  intend  to   exclude                      attorney's  fees from  the  damages  that                      otherwise  would  be  recoverable  as   a                      foreseeable and probable consequence of a                      breach of the agreement.            Id.                                               The                     Maine Supreme Court explained in detail its denial of            damages                    which normally attend a breach of contract in the case            of the breach of a settlement agreement:                          An after-the fact rationalization for the                      rule denying normal contract damages  for                      breach of settlement agreements can  also                      be                         developed                                   from the strong public policy                      favoring such settlements.  Were the rule                                        -50-                                         50                      otherwise, a  lawyer would  be much  more                      wary of  informal settlement  discussions                      for fear of subjecting his client to  the                      added  expense of  the  opposing  party's                      attorney's   fees  if   it   were   later                      determined that those discussions had  in                      fact  reached  the  point  of  a  binding                      bilateral                                agreement.  On balance it may be                      preferable to  encourage free  settlement                      negotiations, undampened  by the risk  of                      the heavy damages that would be  assessed                      in those relatively  few cases where  one                      party fails to perform its agreement.            Id.  at 976.    The Dodge  court  thus denied  the  insurance            company's cross-appeal in full.                      Although it may be debatable whether Dodge resolved            the issue concerning the possibility of a non-breaching party            recovering  on a  breach  of  contract theory  the  costs  of            litigation, other than  attorney's fees,  resulting from  its            defense  of a  suit filed  in contravention  of a  settlement            agreement, we need not take up this debate today.  Palmer and            Palmer Management have not directed us to any Maine case that            grants damages of the variety that they seek, and we have not            found                  any                      such case on our own initiative.  We note that Maine            does                 recognize the remedy of specific performance in the event            of a breach of a settlement agreement.  See McGuire, 495 A.2d            at               798                   (indicating that party may seek specific performance as            remedy for breach of settlement agreement).  By ruling that S            81 does not apply to the Settlement Agreements in this  case,            and                thus                     that                         these                               Agreements preclude PIN's remaining claims,            we effectively have provided Palmer and Palmer Management the                                        -51-                                         51            equitable remedy of  specific performance  of the  Settlement            Agreements.                      We                         need                              not                                  sift alternative sources of authority to            resolve  the exact issue  of whether or  not the law  affords            damages in addition to specific performance in the event of a            breach                   of                      a                       settlement                                  agreement28 because no material issue of            fact                 exists                        as                          to                             the                                 damages that Palmer and Palmer Management            sustained as  a  result of  PIN's  breach of  the  Settlement            Agreements in this case.  See Fed. R. Civ. P. 56(e); Anderson            28.  We recognize that certain jurisdictions may permit a            party to sue for both specific performance and consequential            See, e.g.,           v.     , 428 N.W.2d 647, 658 (Iowa            damages in the case of the breach of a settlement agreement.                        Berryhill    Hatt            1988); see also Restatement (Second) of Contracts S 281(3)            (1981).  Other jurisdictions, however, apparently require a            party to select between specific performance and monetary            damages in the event of a breach of a settlement agreement.             See, e.g., TNT Marketing, Inc. v. Agresti, 796 F.2d 276, 278            (9th Cir. 1986).  Even those jurisdictions that appear to            afford an aggrieved party the right to sue both for specific            performance and for consequential damages are not consistent            in their approach.  In Village of Kaktovik v. Watt, 689 F.2d            222 (D.C. Cir. 1982), for instance, the District of Columbia            Circuit first stated:  "Upon breach [of a settlement            agreement] by one party, the other party may obtain damages            or specific performance as appropriate."  Id. at 230; see            also Jackson v. Washington Monthly Co., 569 F.2d 119, 120 n.            1 (D.C. Cir. 1977).  The Watt court then declared:  "Upon            anticipatory breach of a settlement contract . . . the non-            breaching party m[ay] choose . . . to enforce the agreement            and perhaps also recover damages resulting from its breach .            . . ."  Id. at 231.  We therefore believe that further            exposition of this issue, see Blinzler v. Marriott Int'l,            Inc., 81 F.3d 1148, 1151 (1st Cir. 1996) (explaining that            when a state's highest court has not propounded on an issue            in question, "we seek guidance in analogous state court            decisions, persuasive adjudications by courts of sister            states, learned treatises, and public policy considerations            identified in state decisional law"), would be of little            benefit in this case.                                        -52-                                         52            v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) ("[T]here is            no               issue                     for                        trial                              unless there is sufficient evidence favoring            the nonmoving party for a  jury to return a verdict for  that            party."); Celotex v. Catrett, 477 U.S. 317, 323 (1986)  ("The            moving party is 'entitled to a judgement as a matter of  law'            [if]                 .                   .                     .                       the nonmoving party has failed to make a sufficient            showing on an essential  element of her case with respect  to            which she  has  the burden  of proof.");  Cortes-Irizarry  v.            Corporacion                        Insular                               de                                  Seguros, No. 96-1894, slip op. at 7 (1st            Cir.                 April                       16,                          1997)                                ("To defeat a motion for summary judgment,            the nonmoving  party  must  demonstrate the  existence  of  a            trialworthy issue as  to some material  fact.").  Palmer  and            Palmer                   Management                             have                                  failed to submit any evidence of damages            resulting either from  "loss of time that could otherwise  be            spent in the pursuit  of legitimate business interests,"  or,            more generally, from "the lawsuit outside of attorney  fees."            We thus affirm the district court's grant of summary judgment            for PIN on Palmer  and Palmer Management's counterclaims  for            breach of the settlement agreement.            C.  Defamation                      Key Bank asserts that  the district court erred  in            granting                     summary                            judgment for Marcello on Key Bank's defamation            counterclaim.                          The district court ruled that the press release            Marcello prepared and distributed to the media concerning the            two press conferences  in September 1994  did not defame  Key                                        -53-                                         53            Bank.29       Penobscot                                     n            Maine law governing a defamation claim initiated by a private            person,                     See           , 906 F. Supp.  at 22-23.  Relying  o                    the district court  determined that Marcello was  not            negligent                      in                         drafting and circulating the press release to the            media because he reasonably relied "on the veracity of  PIN's            complaint."   Id.  Finding  that Marcello's  conduct did  not            amount even to the negligence applicable to private  persons,            the district court did  not consider whether or not Key  Bank            constituted a public figure.  See id.                        Key Bank insists that  a genuine issue of  material            fact                 existed                         concerning whether or not Marcello was negligent.            Key                Bank                     also                         argues                                that the district court improperly granted            summary judgment sua sponte on its defamation claims  against            PIN,  Phillips, and  Pardilla.   The  other  cross-Appellants            (Schiavi, Palmer, Palmer Development, and Palmer  Management)            29.  As it did below, Key Bank argues that the following            statements, contained in the press release that Marcello            drafted and disseminated, are defamatory:  (1) the statement            claiming that "money . . . had been stolen from" PIN; (2) the            statement asserting that Key Bank "conspired and acted to            defraud the Penobscot Nation;" (3) the statement explaining            that "the conduct of Key Bank . . . resulted in the Penobscot            Nation entering into an improvident and unconscionable            partnership investment" pursuant to which it "relinquished            its right, its land, and its money to those who plundered the            Penobscot Nation, lied to the Penobscot Nation and its            members, and stole from the Penobscot Nation and its            members;" (4) the statement positing that "bad acts, fraud,            and bad faith committed by Key Bank . . . against the            Penobscot Nation is a far greater conspiracy than could have            been outlined" in the press conference; and (5) the statement            insisting that PIN "suffered grave financial losses and later            learned that they have been victimized, manipulated, lied to,            and used by Key Bank."                                         -54-                                         54            echo Key Bank's objection to the district court's sua  sponte            ruling on their defamation claims against PIN.  They maintain            that this ruling constituted reversible error.                      1.  Marcello                      We                         first                              consider                                       whether the district court properly            granted                    summary judgment for Marcello on Key Bank's defamation            claim.  In order to state a claim for defamation in Maine,  a            private                    person must establish the following:  "(a) a false and            defamatory statement concerning another; (b) an  unprivileged            publication to a third party; (c) fault amounting at least to            negligence on  the  part of  the  publisher; and  (d)  either            actionability                         of the statement irrespective of special harm or            the existence  of special  harm caused  by the  publication."            Powers, 596 A.2d at  69.  The issue  in this case is  whether            Marcello's conduct constituted negligence.                      We                         find                              that                                  the                                      existence of material issues of fact            precludes                      the entry of summary judgment concerning this issue.            See                              Lipsett                                              v.                          University                                    of P. R., 864 F.2d 881, 885 (1st Cir.            1988)  ("If,  after .  .  . canvassing  .  . .  the  material            presented, the district court finds that some genuine factual            issue                  remains in the case, whose resolution one way or another            could affect its outcome, the court must deny the  motion.").            We               believe                      that                           reasonable jurors could find negligence in this            case.  See Liberty Lobby, 477 U.S. at 248 (indicating that  a            material issue of fact exists "if the evidence is such that a                                        -55-                                         55            reasonable jury  could return  a verdict  for the  non-moving            party"); see also Mejias-Quiros v. Maxxam Property Corp., 108            F.3d 425, 427 (1st Cir. 1997) ("Negligence . . . is usually a            jury issue,  but only if there  exists evidence from which  a            rational jury could  find negligence in the case at  hand.");            Taylor  v. Gallagher,  737  F.2d  134, 137  (1st  Cir.  1984)            ("Summary judgment  is  inappropriate  in  [cases  involving]            negligence                       .                         .                          .                            if                               genuine issues of material fact exist or if            reasonable jurors could draw different inferences from agreed            facts.").                      Reasonable jurors could draw a conclusion, at  odds            with                 the                     district court's finding, that Marcello did much more            than "read the substance of PIN's complaint to the print  and            broadcast                      media at PIN's press conference."  Penobscot, 906 F.            Supp. at 23.  Marcello's press release did not simply  recite            the complaint; it used such language as "lied to," "cheated,"            "manipulated," "stole[] from,"  and "conspired  and acted  to            defraud"                     to                        describe Key Bank's conduct.  Given the negligence            standard in Maine of a reasonably prudent person acting under            like circumstances, see Lambert v. Tripp, 560 A.2d 1097, 1100            (Me. 1989);  Wing v.  Morse, 300  A.2d 491,  499 (Me.  1973);            Restatement (Second) of  Torts S 283 (1978), we believe  that            reasonable jurors could find that Marcello's characterization            of  Key  Bank's conduct  amounted  not  simply  to  "colorful            adjectives                       and                          common                                 parlance," Penobscot, 906 F. Supp. at 23,                                        -56-                                         56            but to negligence.  See Marston v. Newavom, 629 A.2d 587, 592            (Me. 1993) ("[D]efamatory language must be 'construed in  the            light of what might reasonably have been understood therefrom            by the persons who [heard] it.  In interpreting the language,            it is . . . a question of . . . the understanding of those to            whom the words are addressed and of the natural and  probable            effect                   of                      the words on them.") (quoting Picard v. Brennan, 307            A.2d 833, 835 (Me. 1973)).                      Regardless of the reasonableness of the  statements            that  Marcello  disseminated  to  the  media  at  the   press            conferences, a material  issue of fact remains as to  whether            Marcello  actually  "rel[ied]   on  the  veracity  of   PIN's            complaint."                                                 Penobscot, 906 F. Supp. at 23.  In his deposition            testimony,  Marcello stated  repeatedly  that  he  could  not            recollect the exact  documents that he  used to assemble  his            press                  package.  At his deposition, in fact, Marcello could not            locate  the written  notes  or  statements that  he  made  in            preparation for the  press conferences.  There is a  material            issue                  as                     to                        whether Marcello even consulted PIN's complaint in            advance of the press conferences.                      In any  event, Marcello has  not made a  sufficient            showing that he was privileged to disseminate the  defamatory            statements                       to the media.  Maine law provides that "allegations            made in  pleadings  are absolutely  privileged."   Dineen  v.            Daughan, 381  A.2d 663, 664 (Me.  1978); see also Creamer  v.                                        -57-                                         57            Danks, 700  F. Supp. 1169.  1171 (D.  Me.) (discussing  Maine            judicial                     proceedings                                pleadings privilege), aff'd, 863 F.2d 1037            (1st Cir. 1988).  The Maine Supreme Court has indicated  that            the privilege  may be  "lost by  unnecessary or  unreasonable            publication                        beyond the scope of the privileged circumstances."            Vahlsing Christina Corp.  v. Stanley, 487 A.2d 264, 267  (Me.            1985); see also Sriberg  v. Raymond, 544 F.2d 15, 16-17  (1st            Cir.  1976)   ("[I]f  an   occasion  is   privileged  as   to            communications between certain parties, the privilege is lost            if  the  communication  is  made  in  such  a  manner  as  to            unnecessarily                          and                             unreasonably publish it to others, as to whom            the                occasion                         is not privileged.") (quoting Galvin v. New York,            168                N.E.2d                       262,                           266                               (N.Y. 1960)).  The Vahlsing Christina court            reversed                     the                         dismissal of a defamation claim predicated on the            dissemination of false  statements originally contained in  a            complaint                      on                         the basis that publication removed the statements            from the privileged context.  See id.                      In                         this                              case,                                   a                                     media                                           relations consultant engaged by            a party  to a lawsuit  claims protection  under the  judicial            proceedings privilege for statements that he disseminated  to            the press  concerning  the suit.   Marcello  published  these            statements on the same  day that PIN filed the complaint  but            prior to the  commencement of any  courtroom activity.   "The            judicial                     proceedings                                privilege reflects public policy regarding            the importance and necessity of the free flow of  information                                        -58-                                         58            during such proceedings."  Creamer, 700 F. Supp. at 1171.  In            light                                                       e            public                   policy                         underlying                                    the judicial proceedings privilege, we            doubt very  much that  this privilege  applies to  Marcello's            publications, which were neither reasonable nor necessary for                efficient disposition of the legal proceedings at  issue                  of the  circumstances of the  press conference and  th            the                                                         .            See Frazier  v. Bailey,  957 F.2d  921, 932  (1st Cir.  1992)            (explaining                        that                            under                                  Massachusetts law, if a communication is            "unnecessarily or unreasonably  published," it  is no  longer            privileged); Dineen,  381 A.2d at  665 ("The  purpose of  the            privilege                      is                         to allow the attorney to litigate strenuously the            interests                      of                         his                            client.                                     To fulfill this purpose the privilege            need only be broad enough to encompass statements relevant to            those interests.  To extend the protection beyond this  point            would  be  to abuse  the  public  policy which  acts  rt  has            explained, moreover, that  this privilege applies to  judges,            parties, witnesses, and attorneys.  See id.; Dineen, 381 A.2d            at               664-65.                                              Marcello                                directs us to no authority indicating that            the  judicial  proceedings  privilege  pertains  to  a  media            consultant who is not a party or a witness or an attorney  in            the dispute at issue.30            30.  Marcello contends that his statements are privileged            because they fairly and accurately report a judicial            proceeding.  The privilege that Marcello attempts to adopt at            this point pertains to defamatory statements contained in            reports of judicial proceedings prepared by reporters.  See            Brown v. Hearst Corp., 54 F.3d 21, 25 (1st Cir. 1995); Jones            v. Taibbi, 512 N.E.2d 260, 266 (Mass. 1987).  Regardless of                                        -59-                                         59                      We                         thus                              conclude that Marcello's statements were not            within the  judicial proceedings  privilege.   Based on  this            conclusion,                        in addition to our findings that reasonable jurors            could determine that  Marcello did more than read from  PIN's            complaint and  that a  material issue  of fact  exists as  to            whether  Marcello  actually  relied  on  PIN's  complaint  in            formulating these statements,  we believe  that the  district            court improperly granted summary judgment for Marcello.                      We                         note                              that                                   if the trial court, with the assistance            of  further factual  development,  determines that  Key  Bank            constitutes a  public figure, it  may resolve the  defamation            issue                  on                     alternative grounds.  According to the Supreme Court,                      it                         may                             be                                possible for someone to become a                      public                             figure through no purposeful action                      of his own,  but the  instances of  truly                      involuntary  public   figures   must   be                      exceedingly                                  rare.  For the most part those                      who attain this status have assumed roles                      of especial prominence in the affairs  of                      society.  Some  occupy positions of  such                      persuasive power and influence that  they                      are  deemed   public  figures   for   all                      purposes.                                                                 More commonly, those classed as                      public figures have thrust themselves  to                      the  forefront   of   particular   public                      controversies in  order to influence  the                      resolution of the issues involved.            Gertz  v. Robert  Welch,  Inc.,  418 U.S.  323,  345  (1974).            Although  ostensibly  a question  of  law  suitable  for  our            the fairness or accuracy of Marcello's publications, he is            not a reporter.  In any event, Maine does not appear to have            adopted the "reporter privilege" to this date, and we will            not speculate as to the future development of Maine law.                                        -60-                                         60            resolution, see  Quantum Elecs. Corp.  v. Consumers Union  of            United States,  Inc., 881 F.  Supp. 753,  763 (D.R.I.  1995);            Haworth v. Feigon, 623 A.2d 150, 158 (Me. 1991);  Restatement            (Second) of Torts S 580A  cmt. c (1978), a finding of  public            figure   status  necessitates   a   detailed   fact-sensitive            determination, see Bruno & Stillman, Inc. v. Globe  Newspaper            Co., 633 F.2d 583, 589 (1st Cir. 1980); Quantum, 881 F. Supp.            at               763;                    Lawrence                            H.                               Tribe, American Constitutional Law S 12-13,            at 880-81 (2d ed. 1988) (explaining that the determination of            whether  an individual  constitutes a  limited public  figure            necessitates                         that                             the                                 trial court establish first the existence            of a "public  controversy," and second  "that the nature  and            extent                   of                      the                         person's                                  participation in the controversy reached            some critical mass at which 'voluntary injection' occurred").            On               the                   record                         before                                us                                   now, we cannot make this particularized            factual determination.31                      If  the  trial  court  determines  that  Key   Bank            constitutes a public figure, Marcello may claim a conditional            privilege                      regarding                               his                                   publications concerning Key Bank.  Such            a privilege exists for statements concerning public  figures.            See Curt is Publ'g Co.  v. Butts, 388  U.S. 130, 155  (1967).            31.  Marcello must establish sufficient evidence to support a            factual conclusion that Key Bank is a public figure.  See            Restatement (Second) of Torts S 580A cmt. e (1977) ("For a            privilege created by the law to apply, the person who seeks            to dispel the seemingly tortious character of his conduct            normally has the burden of raising the issue of the privilege            and proving the existence of its elements.").                                          -61-                                         61            Liability                      does                          not                              attach for a defamatory statement concerning            a public figure  unless the publisher of the statement  acted            with knowledge or  reckless disregard of  the falsity of  the            defamatory publication.  See New York Times v. Sullivan,  376            U.S.                 254,                      279-80 (1964); Curtis Publ'g, 388 U.S. at 155; Time,            Inc. v.  Firestone,  424 U.S.  448,  455 (1976);  Michaud  v.            Inhabitants                        of                          Livermore                                    Falls, 381 A.2d 1110, 1113 (Me. 1978).            On the record before us, we do not presume to direct a  trial            court finding regarding either the predicates for or, in  the            event that the trial court establishes the existence of  such            predicates, the consequences of a conditional privilege.                      2.  PIN, Phillips, and Pardilla                      We now turn  to the issue  of whether the  district            court properly granted summary  judgment sua sponte for  PIN,            Phillips, and Pardilla.  "It is [clear] that district  courts            have  the  power  to  grant  summary  judgment  sua  sponte."            Berkovitz v. Home Box Office, Inc., 89 F.3d 24, 29 (1st  Cir.            1996).  Two conditions,  however,  circumscribe the  district            court's exercise  of this power:   first,  discovery must  be            "sufficiently  advanced  that  the  parties  have  enjoyed  a            reasonable opportunity to glean the material facts;"  second,            the                district                         court must "give[] the targeted party appropriate            notice and a chance to present its evidence on the  essential            elements of the claim or  defense."  Id.; see also Stella  v.            Tewksbury                    ,                       4                        F.3d                             53,                                 55                                    (1st Cir. 1993); Jardines Bacata, Ltd.                                        -62-                                         62            v. Diaz-Marquez, 878 F.2d 1555, 1560 (1st Cir. 1989).                       In this case, discovery had proceeded to the  point            that                 the                     parties understood the material facts.  PIN filed its            complaint and conducted  the press  conferences in  September            1994.  The district court did not make its sua sponte  ruling            until October 1995.  By this time, the parties had compiled a            voluminous record  that included  depositions of  all of  the            parties involved in the press conference.                      As in Berkovitz, however, the district court  never            "gave the [cross-Appellants] a meaningful opportunity to cull            the  best evidence  supporting  [their] position[s],  and  to            present  that   evidence,  together   with  developed   legal            argumentation                        , in opposition to the entry of summary judgment"            with respect PIN, Phillips, and Pardilla.  Id. at 31.  On the            contrary, the district court's  sua sponte ruling took  these            parties by  surprise;  only Marcello  had moved  for  summary            judgment and neither Schiavi nor the Palmer Defendants  filed            defamation claims against Marcello.32            32.  Although Key Bank did have the opportunity to present            its position with respect to Marcello, it did not in the case            of PIN, Phillips, and Pardilla because none of these parties            moved for summary judgment.  Key Bank's argumentation may            have differed little in response to summary judgment motions            filed by PIN, Phillips, and Pardilla, given the similarity of            the facts and circumstances relating to its claims against            these parties.  The nature of PIN, Phillips, and Pardilla's            relationship to the conduct at issue as well as the defenses            that these parties now assert in response to Key Bank's            defamation claims, however, support Key Bank's argument that            it would have responded differently to these parties had the            district court afforded it an opportunity to do so.  See                                        -63-                                         63                      We acknowledge that "[t]his court from time to time            has                refused                        to permit appellants to take advantage of supposed                  ghts that had  not been called to the district  court's            attention by  way of a [timely]  motion to reconsider."   Id.            (citing United States v. Schaefer, 87 F.3d 562, 570 n.9  (1st                 1996);             oversi            Cir.        Grenier v. Cyanamid Plastics, Inc., 70 F.3d  667,            678 (1st Cir. 1995); VanHaaren v. State Farm Mut. Auto.  Ins.            Co., 989 F.2d 1, 4-5 (1st Cir. 1993)).  Like the appellant in            Berkovitz                    ,                      however,                               the                                   Palmer Defendants timely filed a motion            to reconsider.  Although Key Bank and Schiavi did not  follow            suit,                  the                     considerations                                    that govern the filing of a motion for            reconsideration are very flexible.  See Berkovitz, 89 F.3d at            31; United  States v. Roberts, 978  F.2d 17, 21-22 (1st  Cir.            1992).  In any event, neither the cases that Berkovitz  cites            nor Rule  56 imposes an  obligation on the  subject of a  sua            sponte summary judgment ruling to move for reconsideration in            order to preserve its claims on appeal.  We therefore refrain            from penalizing  Key  Bank and  Schiavi for  their  purported            oversight.  Because  the district court failed to afford  the            Stella, 4 F.3d at 56 (noting the special preparation            necessary to defend a motion for summary judgment).             Significantly, Key Bank did not present evidence, either in            its written or in its oral defense to Marcello's summary            judgment motion, concerning PIN, Phillips, or Pardilla.  See            Berkovitz, 89 F.3d at 31 n.8 (reasoning that plaintiff at            issue in Berkovitz did not have an opportunity to put forth            evidence relating to summary judgment motion).  We thus            include Key Bank in our disposition of the district court's            sua sponte defamation rulings.                                             -64-                                         64            cross-Appellants                             any                                opportunity to oppose its grant of summary            judgment for PIN,  Phillips, and Pardilla, we hold that  this            ruling cannot stand.            D.  Emotional Distress                      The district court awarded PIN summary judgment  on            Palmer's claims for both intentional and negligent infliction            of emotional distress deriving from the two press conferences            held                 in                    September                             1994.                                                                       In his Brief, Palmer merely adverts to            the issue  of  whether the  district court  properly  granted            summary judgment on these  two claims.  Specifically,  Palmer            mentions                     this issue only in the table of contents and a single            heading of his Brief.  Other than these floating  references,            Palmer  never  makes any  argument  in  his  principal  brief            concerning either  intentional  or  negligent  infliction  of            emotional                      distress.                                                                "It                                    is settled in this circuit that issues            adverted                     to                        on                          appeal                                 in                                    a perfunctory manner, unaccompanied by            some  developed  argumentation,  are  deemed  to  have   been            abandoned."  Ryan v. Royal  Ins. Co., 916 F.2d 731, 734  (1st            Cir.                 1990);                        s                        ee also Williams v. Poulos, 11 F.3d 271, 285 (1st            Cir. 1993).                      We recognize that, in its Reply Brief, PIN notes in            passing the  fact that the  district court "correctly"  ruled            against Palmer  and awarded summary  judgment to  PIN on  the            emotional  distress  claims  that  Palmer  mentioned  in  his            counterclaim.   In  his  Reply Brief,  Palmer  articulates  a                                        -65-                                         65            "response"                       to PIN concerning the emotional distress claims and            devotes four pages  to the argument  that the district  court            improperly                       granted                              PIN                                  summary judgment on these claims.  As we            have  stated previously,  "relief  from an  appellate  court,            requested for the first time in a reply brief, is  ordinarily            denied                   as                      a                       matter                              of                                 course."  Aulson v. Blanchard, 83 F.3d 1,            7  (1st Cir.  1996); see  also Indian  Motorcycle Assocs.  v.            Massachusetts Hous. Fin. Agency, 66 F.3d 1246, 1253 n.12 (1st            Cir. 1995).  The general rule set forth in Aulson and  Indian            Motorcycle applies to thi time in his Reply Brief.            E.  Supplemental Jurisdiction                      The                          final                                issue confronting us is whether or not the            district                     court properly exercised and now retains jurisdiction            over the state law claims at issue in this case.  28 U.S.C. S            1367(a)                    provides:                                                            "[I]n                                    any civil action of which the district            courts have original jurisdiction, the district courts  shall            have supplemental jurisdiction over all other claims that are            so related  to  claims in  the  action within  such  original            jurisdiction  that  they  form  part  of  the  same  case  or            controversy   under  Article   III  of   the  United   States            Constitution."  Section 1367(a)'s discussion of  supplemental            jurisdiction embraces both pendent and, more importantly  for            our purposes, ancillary jurisdiction.  See Rodriguez v. Doral            Mortgage Corp., 57 F.3d 1168, 1175 n.8 (1st Cir. 1995); Vera-            Lozano                                    v.                      Int                        ernational Broadcasting, 50 F.3d 67, 70 (1st Cir.                                        -66-                                         66            1995).                      In this case, the district court exercised original            jurisdiction                         pursuant                                 to                                    28 U.S.C. S 1331 because PIN's primary            claim                  arose                        under                             25                                U.S.C. S 81.  The district court correctly            exercised jurisdiction to  hear the Appellees'  counterclaims            because  state and  federal  claims  form part  of  the  same            constitutional case if they "derive from a common nucleus  of            operative fact" or "are such that . . .  would ordinarily  be            expected to [be] tr[ied]  . . . in one judicial  proceeding."            United                   States Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966);            see also Baker  v. Gold Seal Liquors,  417 U.S. 467, 469  n.1            (1974)                   (finding                           ancillary jurisdiction when counterclaim arises            out of the "same transaction or occurrence" as the underlying            claim);                    Rodri                        guez, 57 F.3d at 1175-76 (quoting Gibbs, 383 U.S.            at 725).   As the Magistrate Judge  noted in this case,  "the            truth  or  falsity  of the  statements  [made  at  the  press            conferences]                         for                            purposes of the defamation claim . . . turn[s]            on the same  'aggregate of operative  facts' as the  original            claim."                  33                                                                 Pe                        nobscot Indian Nation v. Key Bank, No. 94-0212-B,            33.  We do not distinguish between the counterclaims of            Schiavi, Palmer, Palmer Development, Palmer Management, and            Key Bank against PIN and the counterclaims of Key Bank            against Marcello, Phillips, and Pardilla, for purposes of our            discussion of supplemental jurisdiction.  All of the            counterclaims satisfy the "basic transaction-or-occurrence            test that is used to distinguish between compulsory and            permissive counterclaims."  6 Charles Alan Wright & Arthur R.            Miller, Federal Practice and Procedure S 1404, at 32 (2d ed.            1990).  Supplemental jurisdiction exists for all of the            counterclaims in this case.                                         -67-                                         67            at 2 (D. Me. Nov. 10, 1994); see also Painter v. Harvey,  863            F.2d 329,  333  (4th  Cir. 1988)  (finding  counterclaim  for            defamation  fell within  the  ancillary jurisdiction  of  the            district                     court);                            Pochiro                                                                      v. Prudential Ins. Co., 827 F.2d 1246,            1251 (9th cir. 1987) (finding that if "defamatory  statements            are sufficiently  related  to  [sic] subject  matter  of  the            original action," defamation  claim constitutes a  compulsory            counterclaim).                      Although our  affirmance  of the  district  court's            ruling with respect to S 81 eliminates the sole federal claim            conferring                       original jurisdiction pursuant to 28 U.S.C. S 1331,            the district court has discretion to hear the remaining state            law  claims at  issue.   "In  a  federal question  case,  the            termination of the foundational federal claim does not divest            the  district  court   of  power  to  exercise   supplemental            jurisdiction, but, rather, sets the stage for an exercise  of            the court's informed discretion."  Roche v. John Hancock Mut.            Life Ins. Co., 81 F.3d 249, 256-57 (1st Cir. 1996) (citing 28            U.S.C. S 1367(c)(3)).   As the Roche court pointed out,  "the            trial                  court                        must                            take                                 into account concerns of comity, judicial            economy, convenience, fairness, and the like" in making  this            decision.  Id.  at 257.   This determination necessitates  an            evaluation of the facts peculiar to each case.34             34.  Finding that the district court properly considered the            state law claims at issue despite the fact that it had            disposed of the federal claim supporting original                                        -68-                                         68                      We                         emphasize                                   that the decision to retain or disclaim            jurisdiction over the remaining state law claims at issue  in            this case lies in the broad discretion of the district court.            See                              Vera-Lozano                         ,                            50                               F.3d                                    at 70; Martinez v. Colon, 54 F.3d 980,            990                (1st                     Cir.) (finding that "once the court determined so far            in advance  of  trial  that no  legitimate  federal  question            existed, the  jurisdictional  basis for  plaintiff's  pendent            claims                   under                         Puerto                               Rico                                    law evaporated"), cert. denied, 116 S.            Ct.                515                    (1995).                                                       28                               U.S.C. S 1367(c) specifically provides that            the  district  court  may  refuse  to  exercise  supplemental            jurisdiction over  a state law claim  if the claim "raises  a            novel  or  complex   issue  of  State  law,"  if  the   claim            "substantially                           predominat                                   es over the claim or claims over which            the district  court has  original jurisdiction,"  or if  "the            district court  has dismissed all  claims over  which it  has            original jurisdiction."            jurisdiction, the Roche court emphasized the following:  "The            litigation had matured well beyond its nascent stages,            discovery had closed, the summary judgment record was            complete, the federal and state claims were interconnected,            and powerful interests in both judicial economy and fairness            tugged in favor of retaining jurisdiction."  81 F. 3d at 257.                                        -69-                                         69                                     Conclusion                      These appeals present many interesting issues.   We            find the question of S 81's applicability to the transactions            at issue in this case particularly important in light of  the            evolution                      of                        federal                                Indian law and of the marketplace in which            Indian tribes actively participate.  Our conclusion that S 81            does not apply either to the Settlement Agreements or to  the            underlying                       agreements                                 governing the parties' business relations            reflects our determination not simply to dovetail with  those            authorities that have offered persuasive interpretations of S            81 before us, but further to reach a logical conclusion  that            promotes the interests of Indian tribes as they grapple  with            modern                   economic                           realities.  We believe that in so doing we also            give effect to  the intentions of those  who adopted S 81  in            1872.                      We affirm in part, reverse and vacate in part,  and            remand                   to                      the                         district                                  court for further proceedings consistent            with this opinion.  Costs to Appellees and cross-Appellants.                                        -70-                                         70
