
USCA1 Opinion

	




                           United States Court of Appeals                                For the First Circuit                                ____________________          No.  97-1644                                ANDREW AKINS, ET AL.,                               Plaintiffs, Appellants,                                         v.                              PENOBSCOT NATION, ET AL.,                               Defendants, Appellees.                                ____________________                    APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. Morton A. Brody, U.S. District Judge]                                ____________________                                       Before                               Torruella, Chief Judge,                                Lynch, Circuit Judge,                            and Stearns,* District Judge.                                ____________________               Timothy C. Woodcock, with whom Weatherbee, Woodcock, Burlock          & Woodcock was on brief, for appellants.               Kaighn Smith for appellees.                                ____________________                                  November 17, 1997                                ____________________          *  Of the District of Massachusetts, sitting by designation.               LYNCH, Circuit Judge.  This case presents the first instance          this court has been asked to address an important question in the          allocation                     of                       sovereign                                 powers between the Penobscot Nation and the          State of Maine: the definition of "internal tribal matters."   If          the dispute here  involves an "internal  tribal matter" then  the          tribal                 courts                       have                            exclusive jurisdiction; if not, then claims have          been stated within federal court jurisdiction and it was error to          dismiss the action.  While defining what constitutes an  internal          matter  controlled by  Indian tribes  is hardly  novel in  Native          American law, it is novel in this context.  The relations between          Maine                and                    the                       Penobscot                                 Nation are not governed by all of the usual          laws governing such  relationships, but by  two unique laws,  one          Maine and one  federal, approving a settlement.  That  settlement          resulted from disputed claims for vast portions of lands in Maine          brought                  by                     the Penobscots and others who had not historically been          formally recognized as sovereign Indians.                                         I.               This case involves  the harvesting of timber on those  lands          acquired by  the Penobscot Nation as  a result of the  settlement          agreement.                                          Plaintiff                               Andrew X. Akins is the former Chairman of the          Joint Tribal  Negotiating Committee; he  now resides in  Alabama.          Akins                and                    his                       company,                                PENAK, Inc., also a plaintiff (whom we refer          to jointly as "Akins")  for several years logged portions of  the          land under stumpage permits issued by the Nation.  In December of          1993, the Nation's  Tribal Council voted  a new policy:  stumpage          permits  would be issued  only to people  who were both  enrolled                                          2          members                  of                     the                        Nation                               and residents of Maine.  Akins is an enrolled          member of the Nation, but not a Maine resident.  Akins says he is          the              only                   tribal                         member                                who will be affected by the new policy.  The          policy                 became                       effective                                 on May 18, 1994 and the next day the Nation          told Akins he was not eligible for a permit.               Akins  sued the Nation  and its Tribal  Council in the  U.S.          District                   Court                         in                           Maine,                                  under 42 U.S.C. SS 1983 and 1985, alleging          that               singling                        him                           out                               through an ostensibly neutral policy violated          his rights to due process, equal protection, and to be free  from          bills of attainder.  He also brought state law claims and alleged          diversity                    jurisdiction.                                                                   A report of a Magistrate Judge recommended          dismissal                    of                       the                          case                               for failure to state a claim for which relief          may be granted and for lack of subject matter jurisdiction.   The          U.S. District Court  accepted the  recommendation and  dismissed.          Akins appeals, arguing: that the district court erred in  holding          that the stumpage policy is an "internal tribal matter;" that  he          has              cognizable claims under 42 U.S.C. SS 1983 and 1985, as well as          the Declaratory Judgment Act,  28 U.S.C. S 2201-02; and that  the          stumpage policy violates the Maine Administrative Procedures  Act          and the Maine Constitution.                                         II.               The  issues   in  this  case   cannot  be  grasped   without          understanding                        the                           genesis of the Maine Indian Claims Settlement Act          of             1980,                   25                      U.S.C. SS 1721-35 (the "Settlement Act").  The history          of the Settlement Act was brought to life in the decision of  the          Maine                Law                    Court in Penobscot Nation v. Stilphen, 461 A.2d 478, 487                                          3          (Me.               1983),                      and                         of                            this                                 Circuit in Passamaquoddy Tribe v. Maine, 75          F.3d 784, 787 (1st Cir. 1996).  A summary of that history will do          here.               The disputes which led to the settlement involved assertions          that certain persons and groups were members of Indian tribes and          as such entitled to ancestral lands and to monetary damages.  The          claimed lands amounted to nearly two-thirds of Maine's landmass.           See                          Joint                    Tribal Council of the Passamaquoddy Tribe v. Morton, 388          F. Supp. 649, 651-53, 667-69  (D. Me.), aff'd, 528 F.2d 370  (1st          Cir. 1975).  Under federal auspices, the Penobscot Nation,  other          claimants,                     and Maine negotiated a settlement.  That settlement was          subject to approval  by both the Maine Legislature and  Congress.          Maine                enacted the Implementing Act, Me. Rev. Stat. Ann. tit. 30 SS          6201-14, which provides:                    [T]he Passamaquoddy  Tribe and the  Penobscot                    Nation,  within   their   respective   Indian                    territories, shall  have, exercise and  enjoy                    all  the   rights,  privileges,  powers   and                    immunities,                                including, but without limitation,                    the power  to  enact ordinances  and  collect                    taxes,                           and                               shall be subject to all the duties,                    obligations, liabilities and limitations of a                    municipality                                 of and subject to the laws of the                    State, provided however, that internal tribal                    matters,   including   membership   in    the                    respective tribe  or  nation,  the  right  to                    reside   within    the   respective    Indian                    territories,  tribal   organization,   tribal                    government, tribal elections  and the use  or                    disposition of  settlement fund income  shall                    not be subject to regulation by the State.          Title 30, S 6206(1)  (emphasis added).  The Implementing Act  was          incorporated                       into the federal Settlement Act of 1980, 25 U.S.C. SS          1721-35.                                          4               Each                    party                         benefitted                                    from the settlement.  The Nation in many          respects gained  the powers of  a municipality  under Maine  law.          "[T]he                 Settlement Act confirmed [the Nation's] title to designated          reservation lands, memorialized federal recognition of its tribal          status, and  opened the floodgate for  the influx of millions  of          dollars in federal  subsidies."  Passamaquoddy Tribe, 75 F.3d  at          787.  Maine, in turn, put to rest the land claims and  achieved a          certain sharing of authority with the Nation, as described below.                                        III.               The structure of analysis differs here from that which would          be             used                  in                     claims against the vast majority of other Indian tribes          in             the                 country.2  This is true as to the application of both state          and federal law.  As to state law, the Penobscot Nation and Maine          expressly                    agreed that, with very limited exceptions, the Nation is          subject                  to                     the laws of Maine.  See 25 U.S.C. S 1725.  Congress was          explicit                   that the purpose of the Settlement Act was "to ratify the          Maine                Implementing Act, which defines the relationship between the          State                of                   Maine                         .                          .                            .                              and                                  the Penobscot Nation" and "to confirm that          all              other                    Indians                            .                             .                               .                                 are and shall be subject to the laws of the          State of Maine, as provided herein."  25 U.S.C. S 1721(b)(3)&(4).          The federal Settlement Act provides that:                    The                        .                          .                            .                              Penobscot Nation, and [its] members,                    and the land and natural resources owned  by,                    or                       held                            in                               trust for the benefit of the tribe,                    nation, or [its] members, shall be subject to          2.  The Narragansett tribe in Rhode Island is also governed by a          Claims Settlement Act.  See 25 U.S.C. SS 1701-06 (1978);          Narragansett Indian Tribe v. Narragansett Elec. Co., 89 F.3d 908          (1st Cir. 1996).                                          5                    the jurisdiction of the State of Maine to the                    extent                           and                               in the manner provided in the Maine                    Implementing  Act  and  that  Act  is  hereby                    approved, ratified, and confirmed.          25 U.S.C. S 1725(b)(1).  In turn, the Settlement Act made federal          law              which                    was then generally applicable to Indians also applicable          to the Penobscot Nation but declared special laws and regulations          inapplicable.  See 25 U.S.C. S  1725(h).  The State of Maine  may          amend the Implementing Act to modify the jurisdictional powers of          the Nation only if  the Nation agrees to  the amendment.  See  25          U.S.C. S 1725(e)(1).               Although  Indian  tribes are  not  usually  subject  to  the          diversity jurisdiction  of the federal  courts, see Romanella  v.          Hayward, 114 F.3d 15 (2d Cir. 1997), the Settlement Act  subjects          the Maine tribes to diversity jurisdiction:                      the                        Penobscot Nation . . . may sue and be sued                    in the courts of  the . . . United States  to                    the same extent as any other entity or person                    residing in the State of Maine may sue and be                    sued in [that] court.3          25             U.S.C.                    S                      1725(d)(1).  Further, those federal laws enacted after          October                  10,                      1980                          (the                               effective date of the Settlement Act) for the          benefit of Indians do  not apply within Maine unless the  federal          statute is made expressly  applicable within Maine.  25 U.S.C.  S          1735(b).               The Settlement Act provides at 25 U.S.C. S 1725(f):                    The  .  .  .  Penobscot  Nation  [is]  hereby                    authorized to exercise jurisdiction, separate                    and distinct  from  the  civil  and  criminal          3.  That section also provides certain immunities from suit.  We          do not reach the issue of immunity.                                          6                    jurisdiction of the  State of  Maine, to  the                    extent authorized  by the Maine  Implementing                    Act, and any subsequent amendments thereto.          The Implementing Act in turn makes the Nation subject "to all the          duties,                  obligations, liabilities and limitations of a municipality          . . . provided, however, that internal tribal matters . . . shall          not be subject to regulation by the State."  Me. Rev. Stat.  Ann.          tit. 30, S 6206(1) (emphasis  added).  The viability of both  the          federal law claims  under S 1983 and  the state law claims  under          diversity jurisdiction depend on whether the Implementing Act and          the Settlement Act subject the Penobscot Nation's stumpage policy          to             regulation                        by                          the                              State.  Put differently, the Nation in certain          capacities functions as a municipality of Maine and is  reachable          under                state                      and                         federal                                 law in that capacity, but when it functions          as a tribe as to internal tribal matters, it is not.               This                    case                         turns                              on                                 whether the issuance of stumpage permits is          an             "internal                      tribal                             matter."  Under the Settlement Act, we consider          that to be a question of federal law, and the parties so  agree.4          If this is an internal  tribal matter, then Akins's S 1983  claim          fails                because                        the                           Nation                                  would not have been acting "under color of          state                law."                                             See                                                  R.J.                               Williams Co. v. Fort Belknap Hous. Auth., 719          F.2d 979, 982  (9th Cir. 1983); Dry  Creek Lodge, Inc. v.  United          States               ,                  515                     F.2d                          926,                               931 (10th Cir. 1975).  If this is an internal          tribal                 matter, then under both Settlement Act and the Implementing          Act, Maine law does not apply and no claims arise under the Maine          4.  The Settlement Act at 25 U.S.C. S 1735(a) recites that in the          event of any conflict between that Act and the Maine Implementing          Act, the federal statute prevails.                                          7          Constitution                       or                         under                               the Maine Administrative Procedure Act.  Thus          no  claim arises  under  state  law warranting  the  exercise  of          diversity jurisdiction.                                         IV.               In                  considering                              Akins's                                     S                                       1983 claim, we note that Congress did          not              exempt                     the Penobscot Nation from obligations not to trammel on          civil rights.   At  a minimum  it did  so in  a separate  general          statute, the Indian  Civil Rights Act of  1968 ("ICRA").  See  25          U.S.C. SS 1301-41, made applicable to the Penobscot Nation by  25          U.S.C. S  1725(h).  The  ICRA imposes  "restrictions upon  tribal          governments similar, but not identical, to those embodied in  the          Bill of Rights and the Fourteenth Amendment."  Santa Clara Pueblo          v. Martinez, 436 U.S. 49, 57 (1978).  Under the ICRA, "No  Indian          tribe in exercising powers of self-government shall . . . deny to          any              person                     within                           its                               jurisdiction the equal protection of its laws          or             deprive                     any                        person                               of                                  liberty or property without due process of          law."  25 U.S.C. S 1302(8).               Two distinctions are pertinent.  As a matter of  substantive          law,  generally, the ICRA  and not the  U.S. Constitution is  the          source of the rights.  See Santa Clara Pueblo, 436 U.S. at 56; J.          Resnik,                  Dependent                           Soverei                                 gns: Indian Tribes, States and the Federal          Courts, 56 U.  Chi. L. Rev. 671,  694 (1989) ("Members of  Indian          tribes cannot make Bill of Rights claims against their tribes.").          Secondly, such claims of violations of civil rights must be heard          in the  tribal  courts, not  in  the federal  courts.   With  the          exception of petitions for habeas corpus relief, Congress did not                                          8          intend in the ICRA to create implied causes of action to  redress          substantive                      rights in federal court.5  See Santa Clara Pueblo, 436          U.S. at 59-66.  Similarly, if this is an internal tribal  matter,          then the tribal court will have authority over the essence of the          state constitutional  claims.  The  ICRA contains  its own  equal          protection   and  due   process   guarantees.     Akins's   state          constitutional claims rest on similar guarantees.  This is not  a          potential instance of a right without a remedy.                                         V.               Is the  issuance  of stumpage  permits an  "internal  tribal          matter"?  The language of the statute itself is the first resort.          That language refers to:                    internal tribal matters, including membership                    in the respective tribe or nation, the  right                    to  reside   within  the  respective   Indian                    territories,  tribal   organization,   tribal                    government, tribal elections  and the use  or                    disposition of settlement fund income . . . .          Me. Rev. Stat. Ann. tit. 30, S 6206(1).  Because the wording used          is "including,"  the specific  categories are  exemplars and  not          exclusive.  The examples provide limited guidance.  The  stumpage          permit policy does not fit neatly within any of these categories.          5.  While Akins may view a tribal court as a less desirable forum          than federal court, the Supreme Court has said that "even if a          jurisdictional holding occasionally results in denying an Indian          plaintiff a forum to which a non-Indian has access, such          disparate treatment of the Indian is justified because it is          intended to benefit the class of which he is a member by          furthering the congressional policy of Indian self-government."           Fisher v. District Ct., 424 U.S. 382, 390-91 (1976).  The Court          has recognized that subjecting purely intra-tribal disputes to          state jurisdiction has the potential to undermine the authority          of tribal courts and of the tribal government.  See Santa Clara          Pueblo, 436 U.S. at 59-60.                                          9          It might be argued it fits within "tribal government" but such an          argument rests on inherently  too broad a reading of the  phrase.          That a tribe attempts  to govern a matter  does not render it  an          internal tribal matter.               A                 number                        of                          strong                                 considerations point to the stumpage policy          being an internal tribal matter.  First, and foremost, the policy          purports to  regulate only members of  the tribe, as only  tribal          members may even apply for permits.  The interests of non-members          are not at issue.   Thus, it appears  to be an "internal"  tribal          matter.  Second, the policy has to do with the commercial use  of          lands                acquired                         by                           the                               Nation with the federal funds it received for          this               purpose                       as part of the settlement agreement.  These lands are          "Penobscot                     Indian Territory" and are subject to federal restraints          on             alienation.  See 25 U.S.C. S 1724; Me. Rev. Stat. Ann. tit. 30,          S 6205.   The  policy regulates the  very land  that defines  the          territory of the Nation, and so appears to be a "tribal"  matter.          Third, the policy  concerns the harvesting of a natural  resource          from               that                    land; and permit fees paid benefit the Penobscot Nation.          The control of the permitting process operates as a control  over          the growth,  health, and reaping of  that resource.  Fourth,  the          policy, at least  on its face, does  not implicate or impair  any          interest                   of                      the                         state                               of                                  Maine.  Fifth, it is consistent with prior          legal                understandings                              to                                 view the issuance of stumpage permits as an          internal tribal matter.               There are also arguments that this is not an internal tribal          matter.  First, logging permits are issued by municipalities as a                                         10          standard part of municipal powers.  But it is surely too broad  a          test to ask whether a municipality engages in the same  activity.          Every                activity                        specifically listed in the statute as an exemplar of          an internal tribal matter is also engaged in by a municipality.                 The                   second                          and more interesting argument advanced by Akins is          that, outside of  the categorical exemplars, the focus should  be          historical and tribe specific.  The Penobscots, Akins says,  have          offered no evidence  that they have historically been loggers  or          supported themselves through  timber harvesting.  Logging,  Akins          says,                is                   a                     major commercial activity in Maine and historically has          been engaged in by others,  and is not "uniquely Indian" nor  "of          particular cultural importance" to the Nation.                 Akins  analogizes  the expansion  of  the  Nation  into  the          economics                    of                       commercial logging to the expansion of the tribe into          commercial gambling,  an activity that  the Maine  Law Court  has          specifically  held is  not  an  "internal tribal  matter."    See          Stilphen, 461 A.2d 478 (holding that an illegal bingo game run by          the              Nation                     did not qualify as an internal tribal matter); see also          Passamaquoddy Tribe, 75 F.3d at 787-88 (holding that Congress did          not intend to give the  Maine tribes any rights under the  Indian          Gaming  Regulatory Act).   At the very  least, Akins argues,  the          dismissal                    of                       his                          action                                 should be vacated and the case remanded for          a hearing on whether logging is a traditional tribal activity and          whether the stumpage policy reinforces traditional tribal values.               The Nation responds to this latter argument vigorously.  The          Nation retorts  that it  is not  a museum  piece and  may not  be                                         11          relegated to historic roles.  If the Nation is truly to  exercise          its              residual                      sovereignty, it must be free to act within the present          marketplace                      and not be stereotypically restricted to ancient forms          of             economic                      support.  Narrow historical analysis, the Nation says,          should play almost no role.  Accordingly, the Nation argues  that          the Maine  Law Court  was wrong in  Stilphen when  it focused  on          historic                   culture or development to define internal tribal matters.          See Stilphen, 461 A.2d at 490.               Such                    broad                          themes do not help to define the rules of decision          in  these cases.   At  the same  time Congress  was enacting  the          Settlement                     Act                        the                            Supreme Court noted that, "'[g]eneralizations in          this               subject                       [of                          tribal                                 authority] have become . . . treacherous.'"          White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 141  (1980)          (quoting Mescalero  Apache  Tribe v.  Jones,  411 U.S.  145,  148          (1973)).                                      Generalizations are no less treacherous today, almost two          decades later.  We  tread cautiously and write narrowly, for  the          problems                   and                       conflicting interests presented by this case will not          be the same as the  problems and interests presented by the  next          case.               Context informs our approach.  This is not a dispute between          Maine and the  Nation over the  attempted enforcement of  Maine's          laws.                                 This                     does                          not                              involve a direct or indirect regulation of the          Nation                 by                    Congress.                                                           This is also not a dispute over application of          statutory rights  Congress may  have wished  to apply  uniformly,          regardless of  whether the application  involved Indian lands  or          Indian government.  This is not an instance of potential conflict                                         12          or             coincidence                         of                           Maine                                 law and federal statutory law.  This is not          even a situation of substantive rights regarding stumpage permits          granted to persons by statute, state or federal.  This is instead          a question of allocation of jurisdiction among different fora and          allocation of substantive law to a dispute between tribal members          where                neither the Congress nor the Maine Legislature has expressed          a particular interest.  The federal courts have jurisdiction over          this case  only if the stumpage  permits are not internal  tribal          matters.               The five  considerations outlined  earlier, taken  together,          resolve the  question in favor of  this being an internal  tribal          matter  and do so as  a matter of law.   Though future cases  may          require some exploration of evidence as to whether the underlying          subject is  an  internal tribal  matter  before decision  of  the          jurisdictional question, this case does not.               Of                  great                        significance                                    is                                       that this is an intra-tribal dispute.          It involves  only members of  the tribe, and  not actions by  the          Nation addressed to  non-members.  The  tribe's treatment of  its          members,                   particularly                               as                                  to commercial interests, is not of central          concern to  either Maine or federal  law (other than through  the          ICRA).  There appear to be  no strong policy reasons not to  view          this as an area appropriate for internal tribal regulation.               Secondly, the  subject matter appears  to be  one which  the          settlement  statutes viewed  as  being within  legitimate  tribal          concern;                   both                       the                           Implementing Act, S 6203, and the Settlement Act,          S            1722,                  define                        "land                              and                                  other natural resources" as meaning, inter                                         13          alia, "timber and  timber rights."6  The Settlement Act  provides          that the natural resources within the Penobscot Indian  Territory          may, at the request of the Nation, be leased, sold, or subject to          right of way, in accord with other sections of Title 25.   See 25          U.S.C. S 1724(g).  It has long been understood that the power  to          issue                permits                        is                          an                             indirect method of managing a natural resource.          See California Coastal Comm'n  v. Granite Rock Co., 480 U.S.  572          (1987).  To a large extent, the subject matter here involves  the          regulation and conservation of natural resources belonging to the          tribe.               Third,                      the                          subject matter, involving tribal lands, appears to          have               no                  impact                        on                           Maine's environmental or other interests.  By its          own  terms,  the  Implementing Act,  S  6204,  makes  state  laws          regulating land use or management, conservation and environmental          protection                     applicable                               to                                  tribal lands.  The absence of an assertion          that               any                   such                       laws                            are                                involved here is telling.  Cf. Narragansett,          89 F.3d at 922 (enjoining construction of housing until the tribe          complied  with  the  requirements  of  state  coastal   resources          management program).   Under such circumstances, arguments  about          history,  which  may  be pertinent  in  other  contexts  and  for          addressing other problems,7 offer little here.          6.  That language is used in part to define the meaning of Indian          lands and used to extinguish claims that much earlier transfers          of lands had not complied with the Trade and Intercourse Act of          1790, and other claims.  See 25 U.S.C. S 1723.          7.  Debates about the role to be played by historical and          anthropological evidence in Indian cases are not new.  In the          trial court in Santa Clara, such evidence was explored, and          commentators have questioned whether it is relevant to the issue                                         14               We test  our conclusions  against a  different history,  the          legislative history, because the language of the Implementing and          Settlement                     Acts                          does                              not                                  clearly dispose of the question.  See Blum          v. Stenson, 465 U.S. 886, 896 (1984) ("Where, as here, resolution          of a question of federal law turns on a statute and the intention          of Congress, we look first to the statutory language and then  to          the legislative history if the statutory language is  unclear.");          Penobscot Indian Nation v. Key Bank, 112 F.3d 538, 548 (1st  Cir.          1997)  (inquiry   into  legislative   history  is   "particularly          appropriate in the context of federal Indian law"); Massachusetts          v. FDIC,  102 F.3d 615,  620 (1st Cir.  1996).  That  legislative          history  is  only  somewhat  helpful  because  it  embodies   two          conflicting approaches to  resolving the question  of what is  an          internal tribal matter.  On the one hand, Congress described  the          settlement                     as "original" and "innovative."  On the other hand, the          Congress  referred  to  respecting  the  inherent  self-governing          authority                    of                       a tribe.  In so doing, it referred to a Supreme Court          opinion, Santa Clara Pueblo, 436 U.S. 49 (1978).               We                  look                       to                         the                             Committee                                       Report of the Senate Select Committee          on Indian Affairs concerning  the Settlement Act.  See Garcia  v.          United                 States, 469 U.S. 70, 76 (1984) (Committee Reports on a bill          are              authoritative                           source                                  for determining legislative intent).  That          report                 explains that the "treatment of the Passamaquoddy Tribe and          Penobscot                    Nation in the Maine Implementing Act is original.  It is          an innovative blend  of customary state  law respecting units  of          of sovereignty.  See Resnik, 56 U. Chi. L. Rev. at 705-09.                                         15          local government  coupled with a  recognition of the  independent          source of tribal authority, that is, the inherent authority of  a          tribe to be self-governing."  S.  Rep.  No. 96-957, at 29  (1980)          (citing Santa Clara Pueblo, 436 U.S. 49).               In                  the                      final                           Committee                                     Reports on the Settlement Act, both the          House and  the Senate addressed  the Nation's  concern that  "the          settlement amounts to a 'destruction' of the sovereign rights and          jurisdiction                       of the . . . Penobscot Nation."  S. Rep.  No. 96-957,          at 14;  H.R.  Rep. No.  96-1353,  at 14-15  (1980).   Before  the          settlement,                      the federal government had not formally recognized the          Penobscot                    Nation                           as                             an                                Indian tribe and the State of Maine had long          assumed that the Maine  tribes had no inherent sovereignty.   See          Bottomly v. Passamaquoddy Tribe, 599 F.2d 1061, 1063-65 (1st Cir.          1979).  The Reports state that "While the settlement represents a          compromise in  which  state  authority is  extended  over  Indian          territory to the extent provided in the Maine Implementing Act, .          .            .              the                 settlement                            provides that henceforth the tribes will be free          from               state                     interference in the exercise of their internal affairs.          Thus, rather than  destroying the sovereignty  of the tribes,  by          recognizing                      their                           power                                 to control their internal affairs . . . the          settlement strengthens the sovereignty of the Maine Tribes."   S.          Rep. No. 96-957, at 14; H.R. Rep. No. 96-1353, at 14-15.               The Committee Report also referred to the Santa Clara Pueblo          case,                which                      concerned whether Title I of the ICRA authorized civil          actions  in  the  federal  courts  to  enforce  its   substantive          provisions.  At  issue was the  definition of tribal  membership,                                         16          which the tribe extended to children of males who married outside          the tribe but not to children of females who married outside  the          tribe.                                   The                     Supreme                             Court held that the ICRA vested jurisdiction in          the              tribal                     courts                           and                               not the federal courts.  The Court recognized          both               that                    Congress                            had                                the power to limit the powers of local self-          government                     that tribes possessed and that Congress intended in the          ICRA to balance  dual objectives.  Under such circumstances,  the          Court                would                      not infer from Congressional silence a cause of action          in the federal courts.               Congress' citation to the Santa Clara Pueblo opinion in  the          Senate                 Report                       reinforces                                  the tension between the dual objectives of          the Settlement Act: between an original, innovative allocation of          authority                    between the State and tribes and the desire to recognize          the              tribe's                     inherent                              self-government authority.  From Congressional          silence we are hesitant to read an intent to expand federal court          jurisdiction                       where                            it                               appears, as it does here, that inherent self-          governing authority of a tribe is involved.  We stress that we do          not read the reference by  Congress to Santa Clara Pueblo in  the          legislative                      history of the Settlement Act as invoking all of prior          Indian law.  That would be inconsistent with the unique nature of          the Maine  settlement  and the  specific  provisions of  the  Act          limiting                   the                      application                                  of federal Indian law.  But we also do not          agree                that                     reference to such law is never helpful in defining what          is an internal tribal matter.   Congress was explicitly aware  of          such law, and explicitly made existing general federal Indian law          applicable                     to                       the                           Penobscot Nation in the Settlement Act.  In other                                         17          areas, courts have  long presumed that Congress acts against  the          background of prior law.  See, e.g., Clarke v. Securities  Indus.          Ass'n              ,                 479                     U.S.                         388,                              405                                  (1987); Kolster v. INS, 101 F.3d 785, 787-          88 (1st Cir. 1996).               General federal Indian caselaw supports our conclusion.  The          cases uniformly recognize  the importance of the factors we  have          stressed:                    that                         the                            issue                                  involves matters between tribe members and          matters of the economic use of natural resources inherent in  the          tribal                 lands.  "When on-reservation conduct involving only Indians          is at issue, state law is generally inapplicable, for the State's          regulatory interest  is  likely to  be  minimal and  the  federal          interest  in  encouraging   tribal  self-government  is  at   its          strongest."  White  Mountain Apache Tribe, 448  U.S. at 144.   In          White                Mountain Apache, a non-Indian logging company challenged the          applicability of state  taxes to  its exclusively  on-reservation          operations.    The  Court  said  that  the  tradition  of  Indian          sovereignty                      over                          their                                reservations informed the determination that          the              exercise                       of state authority was preempted by federal law.  The          Court reviewed  the "basic principles"  established by its  prior          decisions regarding  the  "boundaries  between  state  regulatory          authority and  tribal self-government."  Id.  at 141.  The  Court          emphasized the  "significant  geographical  component  to  tribal          sovereignty"                       and said that "though the reservation boundary is not          absolute, it remains an important factor to weigh in  determining          whether                  state authority has exceeded the permissible limits."  Id.          at 151.                                         18               Similarly,                          in Merrion v. Jicarilla Apache Tribe, 455 U.S. 130          (1982),                  the                      Court                           held                                that the tribe had the inherent authority to          impose                 a                   severance tax on on-reservation mining activities as part          of its power to be self-governing.  This power derived from  "the          tribe's  general authority,  as  sovereign, to  control  economic          activity within its  jurisdiction" and  extended to  transactions          "'occurring on trust lands and significantly involving a tribe or          its members  .  .  . .'"    Id.  at 137  (quoting  Washington  v.          Confederated Tribes of Colville Indian Reservation, 447 U.S. 134,          152 (1980)).               Where, in  contrast, the issue  involves tribal attempts  to          regulate                   non-tribal                             members, the Supreme Court has often found that          those                attempts                         are                            not                                within the inherent self-governing powers of          a            tribe.                                       Mon                      tana v. United States, 450 U.S. 544 (1981), held that          the Crow Indians did not  have the power to regulate hunting  and          fishing by non-Indians on reservation lands owned by non-Indians.          The Court said that the tribal "powers of self-government . . . .          involve                  only                       the relations among members of a tribe."  Id. at 564.               Similarly,                          in                            Strate                                                                    v.                                      A                                      -1 Contractors, 117 S. Ct. 1404, 1409          (1997), the Court reaffirmed Montana's holding that, in  general,          the inherent sovereign powers of  a tribe "'do not extend to  the          activities                     of                       nonmembers                                  of the tribe.'" (quoting Montana, 450 U.S.          at 565). The  Court also noted  that "tribes retain  considerable          control  over nonmember conduct  on tribal land."   Id. at  1413.          Here, only tribal conduct is at issue.               The legislative history  and precedent  thus reinforces  our                                         19          conclusion that this dispute involves an "internal tribal matter"          and that, accordingly, no claim  is stated under S 1983 or  under          Maine law.8               The judgment  of the district court  is affirmed.  Costs  to          appellees.          8.  Appellants' claims under S 1985(3) and the Declaratory          Judgment Act,  28 U.S.C. SS 2201-02 fail for the same reasons.           Neither statute, in itself, creates a substantive cause of          action.  See Great Am. Fed. S. & L. Assn. v. Novotny, 442 U.S.          366, 372 (1979) (S 1985(3)); Colonial Penn Group, Inc. v.          Colonial Deposit Co., 834 F.2d 229, 232 (1st Cir. 1987)          (Declaratory Judgment Act).  Appellants must rely on an          independent source for their claims, and there is none present          which is capable of being asserted in federal court.                                         20
