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Kimball v. LURC, attorneys and footnotes

Attorneys for plaintiffs:

Jeffrey Rosenblatt, Esq., (orally)
Berman & Simmons, P.A.
P O Box 961
Lewiston, ME 04243-0961

Margaret D. Wille, Esq., (orally)
P O Box 146
Hebron, ME 04238

John M.R. Paterson, Esq.
Bernstein, Shur, Sawyer & Nelson, P.A.
P O Box 9729
Portland, ME 04104

Attorneys for defendants:

Gregory W. Sample, Esq, (orally)
Barbara L. Goodwin, Esq.
Drummond Woodsum & MacMahon
P O Box 9781
Portland, ME 04104-5081
(for Passamaquoddy Tribe)

Andrew Ketterer, Attorney General
Jeffrey Pidot, Asst. Attorney General, (orally)
6 State House Station
Augusta, ME 04333-0006
(or LURC)
FOOTNOTES******************************** {1} . The Implementing Act was passed contingent upon passage and signing into law of the federal legislation. See P.L. 1979, ch. 732, § 31. {2} . The Act also settled the claims of the Penobscot Nation and the Houlton Band of Maliseet Indians. See 25 U.S.C.A. § 1724 (1983). {3} . The relevant portion of the Settlement Act is as follows: § 1724. Maine Indian Claims Settlement and Land Acquisition Funds in the United States Treasury . . . . (d) Apportionment of land acquisition fund; expenditures for acquisition of land or natural resources; trust acreage; fee holdings; interests in corpus of trust for Houlton Band following termination of Band's interest in trust; agreement for acquisitions for benefit of Houlton Band: scope, report to Congress The principal of the land acquisition fund shall be apportioned as follows: (1) $900,000 to be held in trust for the Houlton Band of Maliseet Indians; (2) $26,800,000 to be held in trust for the Passamaquoddy Tribe; and (3) $26,800,000 to be held in trust for the Penobscot Nation. The Secretary is authorized and directed to expend, at the request of the affected tribe, nation or band, the principal and any income accruing to the respective portions of the land acquisition fund for the purpose of acquiring land or natural resources for the Passamaquoddy Tribe, the Penobscot Nation, and the Houlton Band of Maliseet Indians and for no other purpose. The first 150,000 acres of land or natural resources acquired for the Passamaquoddy Tribe and the first 150,000 acres acquired for the Penobscot Nation within the area described in the Maine Implementing Act as eligible to be included within the Passamaquoddy Indian Territory and the Penobscot Indian Territory shall be held in trust by the United States for the benefit of the respective tribe or nation. . . . . . . . 25 U.S.C.A. § 1724(d) (1983) (emphasis added). {4} . The relevant portion of the statute is as follows: § 6205. Indian territory 1. Passamaquoddy Indian territory. Subject to subsections 3, 4 and 5, the following lands within the State are known as the "Passamaquoddy Indian territory:" . . . . B. The first 150,000 acres of land acquired by the secretary for the benefit of the Passamaquoddy Tribe from the following areas or lands to the extent that those lands are acquired by the secretary prior to January 31, 1991, are not held in common with any other person or entity and are certified by the secretary by January 31, 1991, as held for the benefit of the Passamaquoddy Tribe: . . . any lands in Albany Township acquired by the Passamaquoddy Tribe before January 1, 1991; . . . . . . . 30 M.R.S.A. § 6205(1)(B). {5} . The federal Settlement Act provided that no change in the Maine statute could become effective without the Tribe's approval. See 25 U.S.C.A. § 1725(e)(1) (1983). The Tribe approved the 1992 Amendment by vote of the Joint Tribal Council on April 6, 1992. {6} . In addition, the Rosenblatt Petitioners moved for certification of the Superior Court's judgment, which was denied, and moved that the Tribe's appeal be dismissed as premature. Rosenblatt no longer presses the argument that the Superior Court's decision was not final. {7} . The statute reads as follows: 5. Limitations. No lands held or acquired by or in trust for the Passamaquoddy Tribe or the Penobscot Nation, other than those described in subsection 1, 2, 3, and 4, shall be included within or added to the Passamaquoddy Indian territory or the Penobscot Indian territory except upon recommendation of the [Maine Indian Tribal-State Commission] and approval of the State to be given in the manner required for the enactment of laws by the Legislature and Governor of Maine, provided, however, that no lands within any city, town, village or plantation shall be added to either the Passamaquoddy Indian territory or the Penobscot Indian territory without approval of the legislative body of said city, town, village or plantation in addition to the approval of the State. 30 M.R.S.A. § 6205(5) (1996). {8} . See Op. Me. Att'y Gen. 86-11 (concluding that subsection 5 provides a method of creating Indian territory). {9} . The Legislature could have addressed the Albany lands outside of the strictures of section 6205(1)(B). For example, it later included land in Calais through a bill which created an entirely new subparagraph in which the newly added land was addressed separately from those lands addressed in section 6205(1)(B). See P.L. 1993, ch. 713, § 1 (adding 30 M.R.S.A. § 6205(1)(C)). {10} . The Implementing Act and the Settlement Act must be read together as the "statutory scheme." Reading the Acts together, there was no way for the Secretary to receive the Albany parcel in trust prior to January 31, 1991, because the Secretary was unable to become trustee over the parcel until the Legislature acted to add the Albany land to the applicable provision of the Implementing Act in 1992. See 30 M.R.S.A. § 6205; 24 U.S.C. § 1724(d). {11} . Although we noted that the Albany land had been placed in trust in 1994 in Forrest Associates v. Passamaquoddy Tribe, 1998 ME 240, 719 A.2d 535, id. ¶ 17, 719 A.2d at 539, we did not reach the question presented here: whether the land had become Indian territory in accordance with the requirements of section 6205. As our holding today makes clear, placement in trust with the Secretary and the creation of Indian territory are distinct events, the latter of which requires an additional, temporally limited step-the transfer into trust must occur by a certain date. {12} . See, e.g., P.L. 1983, ch. 493, § 1; P.L. 1983, ch. 660, § 1; P.L. 1985, ch. 637, § 1; P.L. 1983, ch. 747, § 2; P.L. 1987, ch. 153, § 1. Each of those extensions occurred before the enactment of P.L. 1991, ch. 720. At the same time that chapter 720 was enacted, the Legislature amended the provisions effecting the creation of Penobscot Indian territory, extending the deadline related to Penobscot land to 2001. See P.L. 1991, ch. 721, § 1. It could have, but did not, do the same for Passamaquoddy land, and declined to extend the Passamaquoddy deadline again on at least one other occasion. See L.D. 964 (118th Legis. 1997) (proposing, in addition to the deadline change, that other lands in Albany adjacent to the parcel in question be eligible for placement in trust). {13} . Nor is the Tribe's argument that the later amendment trumps the previous statutory provision persuasive. "Where two statutes are involved each of which by its terms applies to the facts before the court, the statute which is the more recent of the two irreconcilably conflicting statutes prevails," 2B Norman J. Singer, Sutherland Statutory Construction § 51.02 (5th ed. 1992). We are not, however, confronted with two statutes, each requiring specific and incompatible dates by which the Secretary must accept the land in trust and certify it as accepted. Rather, we are asked to divine a date which the more recent amendment failed to provide. The "recency" canon urged upon us by the Tribe is inapplicable to the circumstances at hand. {14} . See also Lopez-Soto v. Hawayek, 175 F.3d 170, 173 (1st Cir. 1999) ("Courts have an obligation to refrain from embellishing statutes by inserting language that Congress opted to omit.") (citing Keene Corp. v. United States, 508 U.S. 200, 208 (1993)). {15} . If the appellants are correct in their assertion that the Legislature intended the Albany land to become Indian territory without further action by the Legislature, it must also have intended, when it inserted that parcel into section 6205(1)(B), to have once again extended the date by which all lands listed therein could be accepted and certified by the Secretary. Neither the Tribe nor LURC argue that the Legislature intended to change the date with respect to all of the other lands listed in subsection 1. {16} . The appellants' argument that we need not identify the deadline is disingenuous. The Legislature has never, either before or after the 1992 Amendment, enacted an entirely open-ended process regarding specific land.

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