Could the Houlton Band of Maliseet Indians conduct high-stakes bingo/beano games on Houlton Band Trust Lands under Maine's tribal gaming statute?

Subject

Whether 17 M.R.S.A. § 314-A authorized the Houlton Band of Maliseet Indians to conduct high-stakes bingo or beano games on Houlton Band Trust Lands.

Currency note

This opinion was issued in 2008. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Plain-English summary

Maine Indian Tribal-State Commission Chair Paul Bisulca asked AG G. Steven Rowe whether the Houlton Band of Maliseet Indians could conduct high-stakes bingo (called "beano" in Maine) under 17 M.R.S.A. § 314-A. The AG split the answer in two:

Yes on eligibility. As a federally recognized tribe under 25 U.S.C. § 1726(i), the Band qualified to receive a license from the Chief of the Maine State Police under § 314-A(1).

No on operation. Subsection (5)(C) prohibited a licensee from conducting a game "outside the Indian Territory of the licensed organization." The AG concluded that "Indian Territory" in this statute meant the Indian Territory defined in the Maine Implementing Act (30 M.R.S.A. § 6205(1) and (2)), which only described Penobscot and Passamaquoddy lands. The Band's trust lands and other holdings did not constitute "Indian Territory" under that definition.

The AG walked through the legislative history. The 1987 statute (P.L. 1987, c. 197) had originally required all games to be "on the reservation" of the licensed tribe, and only the Penobscot Nation and Passamaquoddy Tribe had reservations as defined in 30 M.R.S.A. § 6203. In 1991 the Legislature changed "reservation" to "Indian Territory" (P.L. 1991, c. 426), and the Statement of Fact accompanying that amendment said: "Indian Territory includes only locations within unorganized territories specifically designated in law." House and Senate floor statements clarified that the change applied to both the Penobscot and Passamaquoddy. The 2003 reorganization (P.L. 2003, c. 452) did not change the substantive restrictions.

The conclusion: the Houlton Band could be licensed in principle, but had no place where it could legally run a game.

Common questions

Q: What is "Indian Territory" under the Maine Implementing Act?

It is the lands defined in 30 M.R.S.A. § 6205(1) (Passamaquoddy) and § 6205(2) (Penobscot). The Implementing Act gives those territories specific legal status, including jurisdiction grants to tribal courts under §§ 6209-A and 6209-B and law enforcement authority under § 6210.

Q: Could the Band have applied for a license anyway?

The AG said yes, the Band was eligible to receive a license under § 314-A(1). The license would just be unusable for actual gaming because § 314-A(5)(C) had no place where the Band could conduct games.

Q: Were the Houlton Band Trust Lands not "tribal land"?

They are land held in trust for the Band, and the Band has rights in those lands under 30 M.R.S.A. §§ 6203(2-A) and 6205-A. But the gaming statute incorporated a specific Implementing-Act-defined term, "Indian Territory," that excluded the Band's trust lands. The legal definition controlled, not the broader colloquial sense.

Q: Has this changed since 2008?

The opinion does not answer that question. Both Maine's gaming statute and the Maine Indian Claims Settlement Act framework have been the subject of significant legislative and litigation activity since 2008. Anyone relying on this for a current question should check the present text of 17 M.R.S.A. § 314-A and 30 M.R.S.A. ch. 601 along with later opinions and case law.

Background and statutory framework

The Maine Implementing Act treats the Penobscot Nation, Passamaquoddy Tribe, and Houlton Band differently. The Penobscot Nation and Passamaquoddy Tribe have express grants of "Indian Territory" (30 M.R.S.A. § 6205(1) and (2)) with attendant jurisdictional powers (tribal-court jurisdiction under §§ 6209-A and 6209-B, law enforcement authority under § 6210, and the powers and duties of § 6206). The Houlton Band has trust land defined in §§ 6203(2-A) and 6205-A, but the AG concluded that land is not "Indian Territory" within the meaning of the Act, so it does not carry that same status.

In Penobscot Nation v. Stilphen, 461 A.2d 478 (Me.), appeal dismissed, 464 U.S. 923 (1983), the Maine Law Court held that Maine's general high-stakes bingo prohibition applied to the Penobscot Nation. The Legislature responded with § 314-A in 1987, creating a tribal-specific licensing path with the on-reservation restriction that effectively limited the program to the Penobscot and Passamaquoddy.

Citations

• 17 M.R.S.A. § 314-A (high-stakes beano licensing)
• 30 M.R.S.A. §§ 6203, 6205, 6205-A, 6206, 6209-A, 6209-B, 6210 (Maine Implementing Act)
• 25 U.S.C. § 1726(i) (federal recognition of Houlton Band)
• Penobscot Nation v. Stilphen, 461 A.2d 478 (Me.), appeal dismissed, 464 U.S. 923 (1983)

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/2008/ag_20081223.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

MAINE STATE LEGISLATURE

The following document is provided by the LAW AND LEGISLATIVE DIGITAL LIBRARY at the Maine State Law and Legislative Reference Library http://legislature.maine.gov/lawlib

Reproduced from scanned originals with text recognition applied (searchable text may contain some errors and/or omissions) 2008-06

REG10NAL OFFICES:
84 HARLOW ST., 2ND FLOOR
BANGOR, MAINE 04401
TEL: (207) 941-3070 fa)C: (207) 941-3075
G. STEVEN ROWE
ATTORNEY GENERAL
44 OAK STREET. 4Ttl FLOOR
PORTLAND, MA1NE 0410ls3014
TEL (207) 822-0260
FAX: (207) 822-0259
TDD: (877) 428--8800
STATE OF MAlNE
TEL (207) 626-8800 OFFICE OF THE ATTORNEY GENERAL 128 SWEDEN ST.. STE. 2
TTY: 1-888-577-6690
CARIBOU, 1v1AINE 04736
6 STATE HousE STATJON
TEL: (207) 49(-i-3792
AUGUSTA, MAINE 04333,0006
FtQ[: (207) 49&3291

December 23, 2008

Paul Bisulca, Chairman
Maine Indian Tribal - State Commission
P.O. Box 186
Hudson, ME 04449

Dear Chairman Bisulca:

This will respond to your v\rritten request dated December 3, 2008 seeking an opinion of this Office as to whether the Houlton Band of Maliseet Indians is authorized to conduct high-stakes bingo/beano games pursuant to 17 M.R. S.A. § 314-A. For the reasons discussed below, it is the opinion of this Office that, although the Houlton Band of Maliseet Indians is eligible to receive a license to conduct high-stakes bingo/beano games as a federally recognized tribe under 17 M.R.S.A. § 314-A(l ), subsection (5)(C) of that statute prohibits the Band from conducting such games on Houlton Band Trust Lands or elsewhere, since the Band does not have "Indian Territory" on which to conduct such games.

Title 17 M.R.S.A. § 314-A(l) authorizes ''[t]he Chief of the Maine State Police to issue licenses to operate high-stakes beano or high-stakes bingo to a federally recognized Indian tribe." In view of the fact that the Houlton Band of Maliseet Indians is a federally recognized Indian tribe, 25 U.S.C. § l 726(i), the Band is eligible to receive a license to operate games of high-stakes beano/bingo pursuant to section 314-A(l).

There are, however, several restrictions imposed upon a licensee by virtue of 17 M.R.S.A. § 314-A(S), which provides in its entirety as follows:

A licensee may not:

A Transfer or assign a license issued under this section;
B. Operate or conduct a beano game or high-stakes beano game on the same premises on the same date as another licensee; or C. Conduct a game outside the Indian Territory of the licensed organization.
 Paul Bisulca, Chaimrnn
December 23, 2008
Page2

A licensee who violates this subsection commits a civil violation for which a fine of not more than $1,000.00 may be adjudged. (emphasis added).

Your inquiry requires us to consider the meaning of the te1111 "Indian Te1Titory" as used in section 314-A(S)(C). In other words, the issue is whether the Legislature intended "Indian TelTitory" to mean the Penobscot Nation and Passamaquoddy Tribe "Indian Te1Titdry" as defined in the Maine Implementing Act, 30 M.R.S.A. § 6205( 1) and (2), or, alternatively intended "Indian Te1Titory" to have a more generalized meaning that refers to any land owned or held in some fashion by a federally recognized Indian tribe.

It is our opinion that if this question were to be presented to a court in Maine, it would conclude that the term "Indian Territory" as used in 17 M.R.S.A. § 314-A(5)(C), was intended to refer to the "Indian Territory" described in the Maine Implementing Act and, thus, was not intended to include Houlton Band Trust Land as defined in 30 M.R.S.A. §§ 6203(2-A) and 62O5-A, or other land that may be owned, possessed or held on behalf of the Houlton Band of Maliseet Indians. Our opinion is based upon the legislative history of the enactment of 17 M.R.S.A. § 314-A and the clear evidence that the Legislature nieant the te1111 "Indian Territory" to refer to Penobscot Indian Territory and Passamaquoddy Indian Territory as those terms are used in the Maine Implementing Act. See 30 M.R.S.A. § 6205(1) and (2).

In Penobscot Nation v. Stilphen, 461 A.2d 478 (Me.), appeal dismissed, 464 U.S.
923 (1983), the Supreme Judicial Court of Maine rµled that the general state law prohibiting high-stakes bingo/beano was applicable to the Penobscot Nation. The Court further concluded that the Nation's unlicensed operation of high-stakes bingo/beano games was not an "internal tribal matter" exempt from state regulation within the meaning of 30 M.R.S.A. § 6206(1).

In 1987, the 113 th Legislature enacted L.D. 1642 entitled "An Act Concerning 'Beano' or 'Bingo' on Indian Reservations.'' The bil1 was signed by the Governor as Chapter 197 of the Public Laws of 1987 and created 17 M.R.S.A. § 314-A to deal expressly with high-stakes beano/bingo by federally recognized Indian Tribes. As originally enacted, the restrictions contained in 17 M.R.S.A. § 314-A(S) included the requirement that "[a]ll games shall be conducted on the reservation of the licensed organization." (emphasis added).

The fact that high-stakes beano/bingo could only be conducted on the "reservation" of the licensed federally recognized Indian tribe was significant, because only the Penobscot Nation and Passamaquoddy Tribe have Indian reservations as defined and described in detail in the Maine Implementing Act. See 30 M.R.S.A. § 6203(5) and Paul Bisulca, Chairman December 23, 2008 Page 3

(8). The reservations are only a pmi of the respective Indian Territories of the Penobscot Nation and the Passamaquoddy Tribe as defined by 30 M.R.S.A. § 6205(1) and (2). Moreover, the reservations themselves have a unique legal status, in that the Penobscot Nation and Passamaquoddy Tribal Courts have exclusive jurisdiction within their respective Indian reservations over certain specified matters. See 30 M.R.S.A. § 6209-A and§ 6209-B (jurisdiction of the Passamaquoddy Tribe and the Penobscot Nation Tribal Courts). In addition, law enforcement officers appointed by the Passamaquoddy Tribe and the Penobscot Nation have exclusive authority to enforce ce1iain matters on their respective Indian reservations. 30 M.R.S.A. § 6210.

As a result, when the 113th Legislature ehacted i 7 M.RS.A. § 3l4-A(5) in 1987, it was clear that the high-stakes beano/bingo law only had application to the Penobscot Nation and the Passamaquoddy Tribe, since those were and are the only two federally recognized Indian tribes in the State of Maine that could conduct high-stakes games on their "reservations" as required by section 314-A. The Houlton Band of Maliseet Indians, although clearly a federally recognized Indian tribe, could not meet the requirements imposed by subsection 5 of 17 M.R.S.A. § 314-A, since the land held on behalf of the Band is not a "reservation" as defined in the Maine hnplementing Act.

In 1991, the Legislature amended 17 M.R.S.A. § 314-A(5) to delete the requirement that all high-stakes beano/bingo games be conducted "on the reservation of the licensed organization," and provided instead that "[a]ll games must be conducted within the Indian Territory of the licensed organization." See P.L. 1991, c. 426. (emphasis added). This change originated in Corrun:ittee Amendment "A," No. H- th
529, to L.D. 1522 in the First Regular Session of the 115 Legislature. The Statement of Fact accompanying Committee Amendment "A" described the change as follows:

The amendment also expands the permissible location of beano games by permitting the operation on Indian Territory rather than on the Indian reservation. Indian Territory includes only locations within unorganized territories specifically designated in law.
(emphasis added).

As is the case with Indian reservations, so it is with Indian Territory, i.e., only the Penobscot Nation a..11d the Passamaquoddy Tribe have Indian Territory within the meaning of the Maine Implementing Act. The fact that the Legisiatme used the terrn "Indian Territory" is significant because Indian Territory has a specific legal meaning and description, and has unique legal status under the terms of the Maine Implementing Act. See 30 Ivl.R.S.A. § 6206 (powers and duties oflndian Tribes within their respective Indian Ten-itories). The land owned or held by or on behalf of the Houlton Band of Paul Bisulca, Chainnan December 23, 2008 Page4

Maliseet India11s does not constitute Indian Tenitory within the meaning of the Maine Implementing Act As the Statement of Fact to Committee Amendment "A" to L.D. 1522 makes clear, the Legislature in 1991 understood that the term "Indian Tenitory" referred to specifically designated locations defined in the law. The only "Indian Territory" within the unorganized territories specifically designated in the law is the Penobscot and Passamaquoddy Indian Territories described in the Maine Implementing Act. See 30 M.R.S.A. § 6205(1) (Passamaquoddy Indian TeITitory) and (2) (Penobscot Indian Territory). The logical conclusion is that when the Legislature used the term "Indian Territory," it meant the Passamaquoddy arid Penobscot Indian Territories. 1

In 2003, 17 M.R.S.A. § 314-A(S) was repealed and replaced to read as it presently does. See P.L. 200,3, c. 452, § I-6. The Amendment reorganized subsection 5 but made no substantive change in the restrictions contained therein, except to make a violation of the restrictions a civil violation for which a fine of not more than $1,000.00 may be adjudged.

In our view, the history of 17 M.R.S.A. § 314-A(S)(C), which prohibits conducting a game of high-stakes beano/bingo "outside the Indian Territory of the licensed organization," is clear. The purpose of that restriction was to require that a licensed federally recognized Indian tribe could 9nly conduct high-stakes beano/bingo games within the tribes' "Indian Territory." Indian TetTitoty is specifically defined in the law and only the Penobscot Nation and Passamaquoddy Tribe have h1dian Territory.

We believe that if a court were to consider the question as to whether the Houlton Band of Maliseet Indians could conduct high-stakes beano/bingo games, it would conclude that, while the Band is a federally recognized Indian tribe eligible to receive a license from the Chief of the Maine State Police in accordance with 17 M.R.S .A § 314- A( 1), the Band may not conduct such high-stakes beano/bingo games at the present time because, as a licensed organization, it does not have Indian Territory within which to conduct such games.

1
That the Legislature in 1991 understood that the term "Indian Territory" applied only to die Penobscot Nation and the Passamaquoddy Tribe is illustrated by comments in both the House and Senate with respect to L.D. 1522. The original Statement of Fact in L.D. 1522 only refe1i-ed to the Penobscot Nation. On the floor of the House, Representative Lawrence of Kittery rose to the floor to "clarify an e1rnr in the Statement of Fact, this bill applies to both the Penobscot and Passamaquoddy Nations [sic] even though the Statement of Fact only makes reference to the Penobscot Nation." Legislative Record (House) at H-1062 (June I 0, 1991 ), A similar statement was made by Senator Mills of Oxford in the Senate on the same day. See Legislative Record (Senate) at S-1 I 45 (June 10, 199 l ). Paul Bisulca, Chairman December 23, 2008 Page 5

I hope this information is helpful to you. Please feel free to contact me if I can be of further assistance to you.

Sincerely,

G. Steven Rowe
Attorney General