245 Conn. 657 | Conn. | 1998
Lead Opinion
Opinion
The sole issue in this appeal is whether the trial court properly dismissed the plaintiffs’ action on the ground that they had failed to exhaust the remedies available in the Mashantucket Pequot Tribal Court (tribal court). The plaintiffs, John C. Drumm and Richard Perron, state police officers formerly assigned to the Foxwoods Casino (casino) on the Mashantucket Pequot Reservation (reservation), and Gerald O. Mar-anda, formerly an employee in the security unit at the casino, appeal from the judgment of the trial court
The plaintiffs claim that the trial court improperly dismissed their complaint because that court was obligated to exercise its jurisdiction over the complaint. The defendants claim that the trial court properly dismissed the complaint under the federal doctrine of exhaustion of tribal remedies. We conclude that under the particular facts of this case, at this stage of the proceedings the action should be stayed as to Drumm and Perron, and the action of Maranda should proceed in the trial court. Accordingly, we reverse the judgment of the trial court.
The complaint, which is drafted in general terms, gives very little detail regarding the facts underlying its allegations. A report of the state’s attorney for the judicial district of New London concerning the underlying incident, which the defendants submitted to the trial court, without objection, at the hearing on the motion to dismiss, illuminates the factual background, however.
On December 6, 1996, the defendants, citing the “plaintiffs’ failure to exhaust tribal remedies,” moved to dismiss the complaint or, in the alternative, to stay the proceedings. On June 27, 1997, the trial court granted the defendants’ motion and rendered judgment dismissing the plaintiffs’ action. This appeal followed.
In the meantime, on July 31,1997, Drumm and Perron filed a complaint in the tribal court against the tribe, the Mashantucket Pequot Tribal Council and the gaming enterprise. That complaint made claims substantially similar to those in the complaint that they had filed in the trial court.
The plaintiffs claim that the trial court improperly dismissed their complaint because that court was obligated to exercise its jurisdiction over this matter. Implicit in this claim is the assertion that the exhaustion of tribal remedies doctrine does not apply to the courts of this state. In the alternative, the plaintiffs assert that even if the exhaustion doctrine does apply, the trial court should have exercised its discretion to retain jurisdiction of this case because: (1) the failure to exhaust tribal remedies is excused by the supposed likelihood of bias in favor of the defendants on the part of the
The defendants argue that the trial court correctly applied the doctrine of exhaustion of tribal remedies. Specifically, they claim that: (1) the doctrine is binding on state courts; (2) pursuant to the doctrine, a nontribal court must abstain whenever a tribal remedy is arguably available to the plaintiff, even in the absence of a pending parallel proceeding in a tribal court; and (3) when the plaintiff has failed to exhaust tribal remedies, absent satisfaction of one of a narrow set of exceptions, none of which applies here, the obligation to abstain is mandatory, precluding the exercise of discretion.
We conclude that: (1) the doctrine of exhaustion of tribal remedies is binding on the courts of this state, superseding the general obligation upon our courts to exercise their jurisdiction; and (2) the trial court’s dismissal of the plaintiffs’ action was improper, however, because the doctrine applies only when a parallel proceeding is pending in the tribal court and, at the time of the trial court’s judgment, no such proceeding was pending. We also conclude, however, that the action initiated in the tribal court by Drumm and Perron after the filing of this appeal constitutes a pending parallel tribal court proceeding that triggered the application of the doctrine, and that absent satisfaction of one of a narrow set of exceptions, under the doctrine a nontribal court must abstain when a parallel proceeding is pending before a tribal court. We conclude further that: those exceptions do not apply when both the tribal and state court proceedings have been initiated by the same party or parties; therefore, abstention is warranted with respect to the actions of Drumm and Perron; and, in
I
Because the doctrine of exhaustion of tribal remedies is a matter of first impression in this jurisdiction, a review of the three United States Supreme Court cases that have generated and shaped the doctrine is in order. Those cases are: National Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 105 S. Ct. 2447, 85 L. Ed. 2d 818 (1985); Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9, 107 S. Ct. 971, 94 L. Ed. 2d 10 (1987); and Strate v.A-1 Contractors, 520 U.S. 438, 117 S. Ct. 1404, 137 L. Ed. 2d 661 (1997).
A
In National Farmers Union Ins. Cos. v. Crow Tribe of Indians, supra, 471 U.S. 855-57, which was decided in 1985, the United States Supreme Court first articulated the doctrine of tribal remedies. That case arose out of a motorcycle accident on the premises of a Montana public school, situated on property owned by the state but lying within the boundary of the Crow reservation. Id., 847. A Crow Indian minor who had sustained injuries in the accident filed an action in the Crow Tribal Court against the school district, a political subdivision of the state. The minor obtained a default judgment. Id. Without attempting an appeal within the tribal judicial system, the school district and its insurer, National Farmers Union Insurance Companies, filed a complaint in the United States District Court for the District of Montana against the Crow Tribe, the Crow Tribal Council, the chairman of that council, the Crow Tribal Court, and the judges of that court. Id., 848. The complaint
The Supreme Court reversed the Court of Appeals, concluding that “whether a tribal court has exceeded the lawful limits of its jurisdiction”; id., 853; is a federal question over which a federal court has jurisdiction pursuant to 28 U.S.C. § 1331. Id. The Supreme Court concluded, however, that the District Court should have abstained from considering any relief for the federal court plaintiffs “until after the Tribal Court has had a full opportunity to determine its own jurisdiction and to rectify any errors it may have made.” Id., 856-57.
The Supreme Court offered three reasons for requiring “[e]xhaustion of tribal court remedies . . . .” Id., 857. First, it noted that “[o]ur cases have often recognized that Congress is committed to a policy of supporting tribal self-government and self-determination. That policy favors a rule that will provide the [tribal] forum whose jurisdiction is being challenged the first opportunity to evaluate the factual and legal bases for the challenge.” Id., 856. Second, “the orderly administration of justice in the federal court will be served by allowing a full record to be developed in the Tribal Court before either the merits or any question concerning appropriate relief is addressed.” Id. Third, “[e]xhaustion of tribal court remedies . . . will encourage tribal courts to explain to the parties the precise basis for accepting jurisdiction, and will also provide other courts with the benefit of their expertise in such matters in the event of further judicial review.” Id., 857. Allowing the tribal
In National Farmers Union Ins. Cos., the court articulated three exceptions to the exhaustion requirement. Id., 856 n.21. “We do not suggest that exhaustion would be required [1] where an assertion of tribal jurisdiction is motivated by a desire to harass or is conducted in bad faith ... or [2] where the action is patently violative of express jurisdictional prohibitions, or [3] where exhaustion would be futile because of the lack of an adequate opportunity to challenge the court’s jurisdiction.” (Citation omitted; internal quotation marks omitted.) Id. The court indicated that none of these exceptions applied to the case before it. Id., 856-57. Finally, the court remanded the case to the District Court for a determination of whether the federal action should be dismissed or merely stayed. Id., 857.
B
In 1987, the United States Supreme Court decided a second case concerning the exhaustion doctrine, namely, Iowa Mutual Ins. Co. v. LaPlante, supra, 480 U.S. 9. That case arose out of an automobile accident within the boundary of the Blackfeet Indian Reservation in Montana. Id., 11. The accident resulted in injuries to Edward LaPlante, a member of the Blackfeet Indian Tribe, who was driving a truck owned by his employer, the Wellman Ranch Company, a Montana corporation
Instead of litigating the merits in the tribal court, however, Iowa Mutual Insurance Company filed an action in the United States District Court for the District of Montana, seeking a declaration that its insurance policy did not cover the injuries sustained by LaPlante. Id., 13. The asserted basis for federal jurisdiction was diversity of citizenship under 28 U.S.C. § 1332. Id., 12-13. The District Court concluded that it lacked jurisdiction unless and until the tribal court decided not to exercise its jurisdiction. Id., 13. Relying on the exhaustion doctrine articulated in National Farmers Union Ins. Cos., the United States Court of Appeals for the Ninth Circuit affirmed the ruling. Id., 13-14.
The Supreme Court concluded that the Court of Appeals had erroneously determined that there was no jurisdiction. Id., 19-20. It clarified that “the exhaustion rule enunciated in National Farmers Union [Ins. Cos.] did not deprive the federal courts of subject-matter jurisdiction. Exhaustion is required as a matter of comity, not as a jurisdictional prerequisite.” Id., 16 n.8. The court confirmed, however, that the exhaustion doctrine applied to diversity cases, such as the case before the court, as well as to cases in which jurisdiction was
The court again emphasized the federal policy of promoting tribal self-government as the reason for the exhaustion requirement, stating: “We have repeatedly recognized the Federal Government’s longstanding policy of encouraging tribal self-government. . . . This policy reflects the fact that Indian tribes retain attributes of sovereignty over both their members and their territory ... to the extent that sovereignty has not been withdrawn by federal statute or treaty. . . .
“Tribal courts play a vital role in tribal self-government . . . and the Federal Government has consistently encouraged their development. Although the criminal jurisdiction of the tribal courts is subject to substantial federal limitation . . . their civil jurisdiction is not similarly restricted.” (Citations omitted; internal quotation marks omitted.) Id., 14-15. The court stressed that “[tjribal authority over the activities of non-Indians on reservation lands is an important part of tribal sovereignty.” Id., 18.
The court noted that the federal policy concerning tribal sovereignty that had dictated the exhaustion requirement in National Farmers Union Ins. Cos., which was a federal question case, applied equally when the District Court’s jurisdiction was based upon diversity of citizenship. “A federal court’s exercise of jurisdiction over matters relating to reservation affairs can . . . impair the authority of tribal courts, as we recognized in National Farmers Union [Ins. Cos.]. . . .
The court rejected the petitioner’s argument that alleged local bias and incompetence on the part of the tribal court justified the exercise of federal jurisdiction on the basis of diversity of citizenship because the statutory grant of diversity jurisdiction was intended to protect litigants from those risks. The court reasoned that “[t]he alleged incompetence of tribal courts is not among the exceptions to the exhaustion requirement established in National Farmers Union [Ins. Cos. v. Crow Tribe of Indians, supra, 471 U.S. 856 n.21], and would be contrary to the congressional policy promoting the development of tribal courts. Moreover, the Indian Civil Rights Act, 25 U.S.C. § 1302, provides non-Indians with various protections against unfair treatment in the tribal courts.” Iowa Mutual Ins. Co. v. LaPlante, supra, 480 U.S. 19.
The court clarified that the exhaustion requirement was not satisfied until any appellate courts within the tribal judiciary had completed review of the question of the tribal court’s jurisdiction. “As National Farmers Union [Ins. Cos.] indicates, proper respect for tribal legal institutions requires that they be given a ‘full
The court explained that, notwithstanding the exhaustion requirement, “the Blackfeet Tribal Courts’ determination of tribal jurisdiction is ultimately subject to review. If the Tribal Appeals Court upholds the lower court’s determination that the tribal courts have jurisdiction, [the] petitioner may challenge that ruling in the District Court.” Id., 19. The court stressed, however, that “[u]nless a federal court determines that the Tribal Court lacked jurisdiction . . . proper deference to the tribal court system precludes relitigation of issues raised by the [petitioner’s] . . . claim and resolved in the Tribal Courts.” Id.
The court briefly considered whether any of the three exceptions to the exhaustion requirement that had been enumerated in National Farmers Union Ins. Cos. excused abstention, and then determined that the exceptions were not applicable. Id., 19 n.12. Finally, the court ordered the District Court, on remand, to “consider whether, on the facts of this case, the federal action should be stayed pending further Tribal Court proceedings or dismissed . . . .” Id., 20 n.14.
C
In 1997, the United States Supreme Court decided Strate v. A-1 Contractors, supra, 520 U.S. 438, its third and most recent case involving the exhaustion of tribal remedies doctrine. That case arose out of a collision
Fredericks, who was severely injured, and her children, who claimed loss of consortium, brought an action against A-l Contractors and Stockert in the Tribal Court for the Three Affiliated Tribes of the Fort Berthold Reservation. Id. The defendants moved to dismiss the action for lack of jurisdiction, and the tribal court denied the motion. Id., 444. The defendants appealed from that ruling to the Northern Plains Intertribal Court of Appeals, which affirmed the tribal court. Id.
Having exhausted all opportunities to challenge the jurisdictional question within the tribal court system, “[b]efore Tribal Court proceedings resumed, [A-l Contractors] commenced [an] action in the United States District Court for the District of North Dakota. Naming as defendants Fredericks, her adult children, the Tribal
The District Court dismissed the action concluding that the tribal court had jurisdiction over the complaint filed by Fredericks and her children. Id. It relied primarily on a reading of National Farmers Union Ins. Cos. and Iowa Mutual Ins Co. in reaching that conclusion. Id. The United States Court of Appeals for the Eighth Circuit initially affirmed, but then reversed after an en banc rehearing. Id.
The Supreme Court affirmed the judgment of the Court of Appeals. Id., 445. The court’s opinion carefully reviewed National Farmers Union Ins. Cos. and Iowa Mutual Ins. Co., concluding that the District Court and the petitioners had misconstrued those cases. Id., 448-53. The court clarified that “[b]oth decisions describe an exhaustion rule allowing tribal courts initially to respond to an invocation of their jurisdiction; neither establishes tribal-court adjudicatory authority, even over the lawsuits involved in those cases.” Id., 448. The court concluded, relying on other precedent,
Moreover, the court indicated that exhaustion would not be necessary in comparable cases in the future, on the basis of the exceptions to the requirement enumerated in National Farmers Union Ins. Cos. v. Crow Tribe of Indians, supra, 471 U.S. 856 n.21. Noting that “exhaustion is not an unyielding requirement”; Strate v. A-1 Contractors, supra, 520 U.S. 449 n.7; the court quoted the language articulating those exceptions. Id. Then the court indicated that based on its ruling, in the future, “state or federal courts will be the only forums competent to adjudicate . . . disputes [such as the one before it]. . . . Therefore, when tribal-court jurisdiction over an action such as this one is challenged in federal court, the otherwise applicable exhaustion requirement . . . must give way, for it would serve no purpose other than delay. Cf. National Farmers [Union Ins. Cos. v. Crow Tribe of Indians, supra, 856 n.21]
. . . .” (Citations omitted.) Strate v. A-1 Contractors, supra, 459-60 n.14.
D
This review of the Supreme Court cases involving the exhaustion doctrine brings into relief a number of points about that doctrine. First, the doctrine is based primarily upon respect for a federal policy supporting tribal self-government and self-determination, and the related notion of comity. It is also based upon efficiency considerations, specifically, the notion that efficiency is served by having tribal courts, in the first instance, apply their expertise to the complicated question of tribal court jurisdiction, and develop a record thereon, before that issue is addressed by a nontdbal court.
In addition, the doctrine is not jurisdictional; that is, it does not go to, affect, or depend directly upon, the
Certain aspects of postexhaustion procedure are also evident in light of these cases. After the tribal court
It is also apparent that in spite of the shared name, the tribal exhaustion doctrine is not identical to what has traditionally been referred to in this state as the “exhaustion” doctrine, namely, the exhaustion of administrative remedies doctrine. Under our exhaustion of administrative remedies doctrine, a trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided through an administrative proceeding, unless and until that remedy has been sought in the administrative forum. See, e.g., O & G Industries, Inc. v. Planning & Zoning Commission, 232 Conn. 419, 425-26, 655 A.2d 1121 (1995). In the absence of exhaustion of that remedy, the action must be dismissed. See, e.g., id., 431. In contrast, the
II
We first consider whether the doctrine is binding on the courts of this state. The defendants, relying on cases
The Supreme Court cases indicate that the doctrine is based primarily upon respect for a substantive “federal policy supporting tribal self-government . . . .” Iowa Mutual Ins. Co. v. LaPlante, supra, 480 U.S. 16. In articulating and applying the doctrine, the cases repeatedly refer to that policy. See id.; see also id., 14 (“[w]e have repeatedly recognized the Federal Government's longstanding policy of encouraging tribal self-government” [emphasis added]); id., 17 (referring to “the federal policy of deference to tribal courts” [emphasis added]); id., 19 (referring to “the congressional policy promoting the development of tribal courts” [emphasis added]); National Farmers Union Ins. Cos. v. Crow Tribe of Indians, supra, 471 U.S. 856 (“[o]ur cases have often recognized that Congress is committed to a policy of supporting tribal self-government and self-determination” [emphasis added]).
The Supreme Court cases do not conclusively indicate that the exhaustion rule is substantive federal law, which is binding in state courts pursuant to the supremacy clause of the federal constitution,
Moreover, even if the Supreme Court intended its exhaustion holdings in National Farmers Union Ins.
Ill
We next consider whether exhaustion is required in the absence of a pending parallel tribal proceeding. The
A
We note that, in both cases in which the Supreme Court has held that exhaustion was necessary, namely National Farmers Union Ins. Cos. and Iowa Mutual Ins. Co., a proceeding was already pending in the tribal court. Moreover, the cases contain no dicta stating that the rule applies in the absence of a pending tribal court proceeding.
On the contrary, language contained in each of the Supreme Court exhaustion cases indicates that the court contemplated application of the requirement only when a parallel proceeding was pending in the tribal court. For instance, in National Farmers Union Ins. Cos., the court stated that the “policy of supporting tribal self-government and self-determination . . . favors a rule that will provide the forum whose jurisdiction is being challenged the first opportunity to evaluate the factual and legal bases for the challenge.”
The court in Iowa Mutual Ins. Co. clarified that the exhaustion requirement applied generally whenever the exceptions enumerated in National Farmers Union Ins. Cos. v. Crow Tribe of Indians, supra, 471 U.S. 856 n.21, do not apply to a parallel proceeding in tribal court, and not merely when the nontribal proceeding directly challenges the jurisdiction of the tribal court, which was the factual scenario in National Farmers Union Ins. Cos. Notwithstanding this expansion of the doctrine, however, the case does not suggest that the doctrine was intended to apply where no proceeding is pending before the tribal court. Indeed, the court’s phrasing of the rule’s mandate for the federal courts, namely, that “federal courts should not intervene” in tribal court proceedings; (emphasis added) Iowa Mutual Ins. Co. v. LaPlante, supra, 480 U.S. 17; reinforces the impression that the court contemplated application of the rule specifically where tribal court proceedings have commenced. Moreover, in Granberry v. Greer, 481 U.S. 129, 131 n.4, 107 S. Ct. 1671, 95 L. Ed. 2d 119 (1987), in analyzing the exhaustion requirement that applies to state prisoners filing federal habeas corpus petitions, the court emphasized that in Iowa Mutual Ins. Co. abstention had been necessary in light of the “parallel tribal court proceeding . . . .”
Furthermore, language that the court has used in articulating the rule in its most recent case involving the exhaustion doctrine, namely, Strate, confirms our
Furthermore, this understanding of the exhaustion rule is reinforced by three complementary policy considerations. First, the primary concern upon which the doctrine is based is most pressing when a parallel proceeding is pending in the tribal corut. That concern is that adjudication in a nontribal forum will disrupt “the federal policy supporting tribal self-government . . . [by] impairing the [tribal court’s] authority over reservation affairs.” (Citation omitted; internal quotation marks omitted.) Iowa Mutual Ins. Co. v. LaPlante, supra, 480 U.S. 16. Assuming concurrent jurisdiction, where proceedings arising from the same transactions and occurrences, and involving substantially the same issues and parties, are pending in both a tribal and nontribal court, the risk that adjudication by the nontribal forum will impair the tribal court’s authority is high. Such impairment would ensue, for example, if the nontribal court reaches conclusions counter to those that the tribal court has, or would have, reached. Indeed, even if there
Second, as we recently stated, “[c]ourts are in the business of ruling on litigants’ contentions, and they generally operate under the rule essential to the efficient administration of justice, that where a court is vested with jurisdiction over the subject-matter . . . and . . . obtains jurisdiction of the person, it becomes its . . . duty to” adjudicate the case before it. (Internal quotation marks omitted.) Ahneman v. Ahneman, 243 Conn. 471, 484, 706 A.2d 960 (1998). Notwithstanding the plaintiffs’ contentions to the contrary, this rule is not absolute. It may be relaxed, however, only “in an extreme, compelling situation.” Id. Such a situation exists when a proceeding arising out of the same transactions and occurrences, and involving substantially the same issues and parties, is pending before a tribal court, because of the likelihood that state court adjudication will interfere with the proper authority of the tribal court over reservation affairs, in conflict with
Third, consideration of the traditional right of a plaintiff to select his forum leads to the same conclusion. Generally, in the absence of strong countervailing considerations, “[t]he plaintiffs choice of forum [notwithstanding that it] may well have been chosen . . . because it provides the plaintiff with certain procedural or substantive advantages, should be respected . . . .” (Internal quotation marks omitted.) Picketts v. International Playtex, Inc., 215 Conn. 490, 501, 576 A.2d 518 (1990); see also Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S. Ct. 839, 91 L. Ed. 1055 (1947) (“plaintiffs choice of forum should rarely be disturbed”). Although the concerns regarding the authority of tribal courts outweigh the plaintiffs’ traditional right of choice of forum when a relevant proceeding is pending in the tribal court, those concerns do not surmount “the strong presumption in favor of the plaintiffs chosen forum”; Picketts v. International Playtex, Inc., supra, 502; when proceedings are not pending elsewhere.
B
In the present case, nothing in the record or in the representations of the parties indicates that any relevant proceedings were pending in the tribal court at the time of the trial court’s dismissal of the plaintiffs’ complaint. We conclude, therefore, that that court’s application of the doctrine to the case, and the judgment dismissing the action on that basis, were improper.
C
Further consideration is necessary, however, with respect to Drumm and Perron, who have initiated a tribal court action during the pendency of this appeal. Ordinarily, when a factual or procedural development raises a new issue in a case on appeal, we remand the case to the relevant court for consideration of that issue in the first instance. In the present case, however, the relevant facts concerning the complaint filed in the tribal court are not in dispute, and the relevant points of law have been briefed and argued before us. We, therefore, address the applicability of the exhaustion of tribal remedies doctrine with respect to Drumm and Perron. We conclude that the pendency of their action before the tribal court renders application of the exhaustion doctrine appropriate in regard to them.
Examination of their tribal court complaint makes clear that it arises from the same transactions and occurrences as the trial court complaint. Their tribal court complaint alleges claims of malicious prosecution, defamation, libel, interference with contractual relations and infliction of emotional distress that are substantially the same claims and allegations that they
Although in both National Farmers Ins. Cos. and Iowa Mutual Ins. Co. the tribal court proceedings were filed prior to the commencement of actions in the respective nontribal fora, the fact that the opposite sequence of filings took place in the present matter does not affect our conclusion that the exhaustion doctrine should be applied with respect to Drumm and Perron. At least where a state court has not yet conducted proceedings on the merits of an action, the risk that continued state court adjudication will impair tribal court authority exists in equal measure when the parallel tribal court action is filed subsequent to the state court action. The order in which the filings take place, thus, is generally immaterial to the policy concerns that animate the doctrine.
We next address whether the doctrine permits us the discretion, in spite of the pendency of a parallel proceeding before the tribal court, to order continued adjudication of the case in the trial court, on a basis other than the exceptions enumerated in National Farmers Union Ins. Cos. v. Crow Tribe of Indians, supra, 471 U.S. 856 n.21 (“[w]e do not suggest that exhaustion would be required [1] where an assertion of tribal jurisdiction is motivated by a desire to harass or is conducted in bad faith ... or [2] where the action is patently violative of express jurisdictional prohibitions, or [3] where exhaustion would be futile because of the lack of an adequate opportunity to challenge the court’s jurisdiction” [citation omitted; internal quotation marks omitted]). The plaintiffs urge this court to order continued trial court adjudication on the basis of two discretionary factors. First, the plaintiffs claim that exhaustion should not be required because of the supposed likelihood that the tribal court will be biased in favor of the defendants. Second, they argue that the trial court should continue adjudication because the
The defendants counter that, absent satisfaction of one of the exceptions to the doctrine articulated in National Farmers Union Ins. Cos., a nontribal court has no discretion to dispense with exhaustion in a case when parallel proceedings are pending before a tribal court. The defendants, again, cite cases from other jurisdictions that conclude that the duty to abstain is mandatory.
Before analyzing the general issue of whether, absent satisfaction of an exception to the doctrine, a nontribal court has discretion to continue adjudication when parallel proceedings are pending before a tribal court, we address the plaintiffs’ first claim, namely, that the alleged likelihood of bias on the part of the tribal court in favor of the parties with tribal connections should induce this court to order continued adjudication of the case before the trial corut. The rejection by the Supreme Court of a virtually identical argument in Iowa Mutual Ins. Co. mandates our rejection of it, independent of our conclusion regarding the mandatory nature of the duty to abstain. Iowa Mutual Ins. Co. v. LaPlante, supra, 480 U.S. 18-19. The “[petitioner [in that case, in which federal jurisdiction was based on diversity of citizenship] . . . contended] that the policies underlying the grant of diversity jurisdiction — protection against local bias and incompetence — justified] the exercise of federal jurisdiction . . . .’’Id. The court, however, rejected that claim, noting that “[t]he alleged incompetence of tribal courts is not among the exceptions to the exhaustion requirement established in National Farmers Union [Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 856 n.21] . . . .” Iowa Mutual Ins. Co. v. LaPlante, supra, 19. In addition, the court stated, proceeding with adjudication on that ground “would be contrary to the congressional policy promoting the development of tribal courts. Moreover, the Indian Civil
We next consider the general issue of whether, absent satisfaction of an exception to the doctrine, a nontribal court has discretion to continue adjudication when parallel proceedings are pending before a tribal court. The opinions of the Supreme Court involving the exhaustion doctrine, in our view, indicate that a nontribal court has no such discretion. First, in concluding that requiring exhaustion of tribal remedies was appropriate, both National Farmers Union Ins. Cos. and Iowa Mutual Ins. Co. considered those three exceptions originally articulated in National Farmers Union Ins. Cos. as grounds for not requiring exhaustion. See National Farmers Union Ins. Cos. v. Crow Tribe of Indians, supra, 471 U.S. 856 n.21; Iowa Mutual Ins. Co. v. LaPlante, supra, 480 U.S. 19 n.12. Similarly, the exceptions were the basis of the court’s conclusion in Strate that exhaustion would not be necessary in comparable future cases. Strate v. A-1 Contractors, supra, 520 U.S. 459-60 n.14. Second, those cases gave no indication of the existence of any other basis for dispensing with exhaustion. Third, the language used by the court indicates that the exceptions are meant to constitute the
Our rejection of the plaintiffs’ proposed discretionary balancing approach to application of the exhaustion requirement is bolstered by reference to the policy considerations that underlie the doctrine. Such a balancing approach would require the courts of this state to determine the extent of tribal interest in the pending matter, in order to compare them to the state’s interests. The determination by a nontribal court of the extent of tribal interests in a dispute, however — particularly if it led to a decision to continue adjudication, with the attendant impact that would have on the tribal court’s authority —is discordant with the doctrine’s underlying concern for “tribal self-government and self-determination.” National Farmers Union Ins. Cos. v. Crow Tribe of Indians, supra, 471 U.S. 856.
Having concluded that the exceptions enumerated in National Farmers Union Ins. Cos. constitute the only grounds for not requiring exhaustion when a parallel proceeding is pending in a tribal court, as is true in regard to the present case, we next consider whether those exceptions excuse abstention in this case. The defendants assert that none of the exceptions applies. The plaintiffs do not contest this assertion. We conclude that the exceptions are inapplicable to the present case.
We reach this conclusion, however, without addressing the specific exceptions but, rather, because in our view, consideration of any of the exceptions would be inappropriate in the present matter. The exceptions presuppose that, as was the case in the three Supreme Court cases that have involved the exhaustion doctrine, the plaintiffs in the two different actions, namely, the actions in the tribal and the nontribal fora, are different parties with mutually exclusive preferences as to which court should exercise jurisdiction over their claims. Where the state court plaintiffs are also the initiator of the action before the tribal court, however, it simply makes no sense to consider continuing adjudication of the state court action on the basis that “assertion of tribal jurisdiction is motivated by a desire to harass or is conducted in bad faith ... or . . . the action is patently violative of express jurisdictional prohibitions, or . . . exhaustion would be futile because of the lack of an adequate opportunity to challenge the court’s jurisdiction.” (Citation omitted; internal quotation marks omitted.) Id., 856 n.21. None of
Moreover, policy considerations suggest that the parties supporting continued adjudication in the state forum should not receive the benefit of the exceptions to the abstention requirement where those same parties have initiated the parallel tribal court proceeding, which proceeding has triggered the abstention inquiry in the first place. Specifically, under these circumstances, the policy underlying our rule against allowing plaintiffs, in general, to pursue two virtually identical actions, namely, preventing our courts from becoming a means for plaintiffs to engage in unnecessary, oppressive and vexatious litigation; see, e.g. Halpern v. Board of Education, 196 Conn. 647, 652-53, 495 A.2d 264 (1985); militates in favor of abstaining without regard to any possible exceptions to that doctrine. Although that rule normally applies only when both actions lie within the same jurisdiction, the exhaustion doctrine’s presumption in favor of abstention by the nontribal court when parallel proceedings are pending in the tribal court make extension of the rule to this situation appropriate.
VI
Finally, we consider the proper form of abstention that should be utilized by the trial court on remand regarding the complaint filed by Drumm and Perron. The trial court rendered judgment dismissing the action of these two plaintiffs. Dismissal, however, is not the only means of satisfying the requirement to abstain. In National Farmers Union Ins. Cos. and Iowa Mutual Ins. Co., the court made clear that a stay pending further tribal court proceedings, instead of dismissal, suffices. See National Farmers Union Ins. Cos. v. Crow Tribe of Indians, supra, 471 U.S. 857 (ordering trial court on
The judgment is reversed and the case is remanded to the trial court with direction to stay the proceedings with respect to Drumm and Perron pending further proceedings concerning their action in the tribal court, and for further proceedings according to law with respect to Maranda.
In this opinion KATZ and PALMER, Js., concurred.
The plaintiffs appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023, now Practice Book (1998 Rev.) § 65-1, and General Statutes § 51-199 (c).
The defendants and their positions at the time of the events described in the plaintiffs’ complaint are: G. Michael Brown, president and chief executive officer of the casino; Robert J. Carroll, legal consultant to the gaming enterprise, through which the tribe conducts all gaming operations; George H. Henningsen, senior vice president of operations at the casino; Robert T. Winter, general counsel to the gaming enterprise; and Richard A. Hayward, a member of the tribe and the chairman of the Mashantucket Pequot Tribal Council.
The report of the state’s attorney provides: “On December 11, 1995, Richard A. Hayward, [c]hairman of the [tribe], wrote to the Governor of the State of Connecticut that an investigation by the management of [the casino] indicated that a member of the Connecticut State Police had ‘been involved in two illegal break-ins’ involving Mashantucket Pequot Tribal property. The property consists of an office located on Route 184 in North Stonington and a trailer used to store financial records on the [reservation. Governor John G. Rowland instructed Commissioner of Public Safety Kenneth II. Kirschner to investigate the matter and asked Chief State’s Attorney John M. Bailey to assist in resolving the issue. The Commissioner assigned the criminal investigation to the Eastern District Major Crime Squad which is entirely separate from the State Police Casino Unit and which reports to a separate commander. It is the responsibility of the State’s Attorney of the Judicial District of New London to determine whether or not there is evidence that violations of criminal laws have occurred and, if so, whether criminal charges should be brought. The criminal investigation conducted by the M^jor Crime Squad was detailed and thorough. The evidence does not indicate that any criminal laws were violated.
“The essential facts as developed not only by the Major Crime Squad but also by the management of [the casino], which interviewed and took statements from numerous witnesses, are straightforward.
“Subsequently, the [djirector authorized a security officer to enter the financial office [located on Route 184 in North Stonington] on the afternoon of Sunday, November 12, 1995, when financial personnel would not be present, in an attempt to locate and examine cancelled checks. He instructed the security officer to have a casino locksmith assist in entering the office. Having locksmiths enter locked rooms appears to have been a somewhat routine occurrence on the reservation, as locksmiths are required to complete forms indicating the date and time of entry, the person requesting entry and the reason for the request.
“The [sjecurity officer decided that in order to keep the investigation from becoming commonly known, he would report that the reason for the entry was to investigate a suspicious odor. The security officer requested that a detective assigned to the State Police Casino Unit accompany him to help look for and identify any checks or records that might be helpful. The detective correctly believed that the security officer was acting under the authority and with the approval of the [djirector of [sjecurity and agreed to accompany and assist the security officer. Whether or not the [djirector had actual authority to authorize this, he certainly had apparent authority to do so. With the assistance of the casino locksmith, the two entered the finance office. Within a few minutes the two determined that cancelled checks were not stored in this room. The security officer then asked the detective to accompany him to a trailer on the reservation where he believed cancelled checks might be located. The security officer and detective obtained the assistance of two other security shift supervisors, entered the
“Since there was no intent to commit a crime within the premises, the only applicable criminal statute is [s]ection 53a-108 of the General Statutes, a Class B misdemeanor. This [sjection provides that ‘A person is guilty of criminal trespass in the second degree when, knowing that he is not licensed or privileged to do so, he enters or remains in a building.’ Given the express authorization and approval of the [director of [s]ecurity, it cannot be proven that the security officer or the State Police detective knew that they were not licensed or privileged to enter these buddings and, therefore, criminal proceedings against either the security officer or the detective are not warranted.” Although the state’s attorney’s report does not name the individuals involved, the complaint indicates that the plaintiffs were centrally involved in this investigation into the alleged improprieties in the tribe’s finance office.
Specifically, the court relied on Montana v. United States, 450 U.S. 544, 101 S. Ct. 1245, 67 L. Ed. 2d 493 (1981), which the court described as “the pathmarking case concerning tribal civil authority over nonmembers. ” Strate v. A-1 Contractors, supra, 520 U.S. 445.
In this regard, our decision in Charles v. Charles, 243 Conn. 255, 263-65, 701 A.2d 650 (1997), is not related to the issues presently before us. In that case, we concluded that pursuant to the Mashantucket Pequot Indian Claims Settlement Act; 25 U.S.C. §§ 1751 through 1760; Connecticut courts have jurisdiction over civil actions “between Indians or to which Indians are parties which arise in the areas of Indian country situated within [Connecticut] . . . to the same extent that, [they have] jurisdiction over other civil causes of action . . . .” (Emphasis in original; internal quotation marks omitted.) Charles v. Charles, supra, 265. Neither Charles nor any other of our decisions, however, has addressed whether, and if so, under what circumstances, a state trial court must abstain from exercising jurisdiction over a case before it, in order to allow a tribal judicial system the opportunity to adjudicate the case. That is the issue presented in this appeal.
For instance, if “the action is patently violative of express . . . prohibitions” upon the jurisdiction of the tribal court, the second exception to the exhaustion requirement enumerated in National Farmers Union Ins. Cos. v. Crow Tribe of Indians, supra, 471 U.S. 856 n.21, would excuse abstention. Likewise, if the nontribal court clearly lacked jurisdiction, the action could be dismissed on that basis, without considering whether to abstain pursuant to the exhaustion doctrine. Without deciding the issue of the jurisdiction of the state trial court, we note that the parties have not questioned that court’s jurisdiction and, in our view, the record does not suggest any clear
Our conclusion that abstention is not required in the absence of aparallel pending proceeding in a tribal forum, as explained in part III A of this opinion, creates another distinction between the tribal remedies exhaustion doctrine and the exhaustion of administrative remedies doctrine, which precludes adjudication in the state court irrespective of whether a proceeding is pending in the administrative forum. See, e.g., O & G Industries, Inc. v. Planning & Zoning Commission, supra, 232 Conn. 425-26.
Given the significant differences between this doctrine and the traditional exhaustion doctrine, and that the effect of the doctrine is to require a nontribal court, under certain circumstances, to abstain from further proceedings, the doctrine is more appropriately referred to as an abstention rather than an exhaustion doctrine. Numerous courts and commentators have analogized it to various abstention doctrines, and some have even given it that name. See, e.g., B. Watson, “The Curious Case of Disappearing Federal Jurisdiction Over Federal Enforcement of Federal Law: A Vehicle for Reassessment of the Tribal Exhaustion/Abstention Doctrine,” 80 Marq. L. Rev. 531, 601-606 (1997). For instance, in Iowa Mutual Ins. Co., the Supreme Court itself analogized the tribal exhaustion “rule ... to principles of abstention articulated in Colorado River Water Conservation [District v. United States, 424 U.S. 800, 813-17, 96 S. Ct. 1236, 47 L. Ed. 2d 483 (1976)] . . . .” Iowa Mutual Ins. Co. v. LaPlante, supra, 480 U.S. 16 n.8. In both cases, the court, noted, “strong federal policy concerns favored” deference to proceedings in another forum. Id.; see also Colorado River Water Conservation Districts. United States, supra, 819 (under exceptional circumstances, federal court could abstain from exercising jurisdiction in favor of ongoing proceedings in state court; court emphasized that congressional policy embodied by underlying statute favored abstention); see also Kaul v. Wahquahboshkuk, 838 F. Sup. 515, 517 (D. Kan. 1993) (tribal remedies exhaustion rule “functions as a matter of comity in much the same way as the abstention principles enunciated in Colorado River Water Conservation [District v. United States, 813-17]”).
Similarly, numerous commentators have analogized the tribal remedies exhaustion doctrine to the doctrine of federal court abstention from enjoining a pending state prosecution or declaring invalid a state statute at issue therein, articulated in Younger v. Harris, 401 U.S. 37, 43, 91 S. Ct.
The gaps and ambiguities in the doctrine, and the different positions taken by lower courts on these points, are analyzed in a number of law review articles. See, e.g., B. Watson, “The Curious Case of Disappearing Federal Jurisdiction Over Federal Enforcement of Federal Law: A Vehicle for Reassessment of the Tribal Exhaustion/Abstention Doctrine,” 80 Marq. L. Rev. 531 (1997); L. Reynolds, “Exhaustion of Tribal Remedies: Extolling Tribal Sovereignly While Expanding Federal Jurisdiction,” 73 N.C. L. Rev. 1089 (1995); T. Joranko, “Exhaustion of Tribal Remedies in the Lower Courts After National Farmers Union and Iowa Mutual: Toward a Consistent Treatment of Tribal Courts by the Federal Judicial System,” 78 Minn. L. Rev. 259 (1993).
Specifically, the defendants cite the following cases: United States v. Plainbull, 957 F.2d 724, 727 (9th Cir. 1992); Basil Cook Enterprises, Inc. v. St. Regis Mohawk Tribe, 914 F. Sup. 839, 841 (N.D.N.Y. 1996), aff’d, 117 F.3d 61 (2d Cir. 1997); Bowen v. Doyle, 880 F. Sup. 99, 123-24 (W.D.N.Y. 1995); Klammer v. Lower Sioux Convenience Store, 535 N.W.2d 379, 381-82 (Minn. App. 1995); see also Matsch v. Prairie Island Indian Community, 567 N.W.2d 276, 278-79 (Minn. App. 1997); Cohen v. Little Six, Inc., 543 N.W.2d 376, 381 n.3 (Minn. App. 1996), aff’d, 561 N.W.2d 889 (Minn.), motion of respondent for sanctions denied, 522 U.S. 804, 118 S. Ct. 41, 139 L. Ed. 2d 9 (1997).
Although the plaintiffs cite no cases that support their argument that the exhaustion doctrine is not applicable to state courts, our research has uncovered such cases. See, e.g., Gavie v. Little Six, Inc., 555 N.W.2d 284, 290-92 (Minn. 1996); Maxa v. Yakima Petroleum, Inc., 83 Wash. App. 763, 766-67, 924 P.2d 372 (1996), review denied, 131 Wash. 2d 1016, 936 P.2d 416 (1997).
Title 25 of the United Sates Code, § 450 (a) provides in relevant part: “The Congress, after careful review of the Federal Government’s historical and special legal relationship with, and resulting responsibilities to, American Indian people, finds that . . .
“(2) the Indian people will never surrender their desire to control their relationships both among themselves and with non-Indian governments, organizations, and persons.”
Title 25 of the United States Code, § 450a (b) provides: “The Congress declares its commitment to the maintenance of the Federal Government’s unique and continuing relationship with, and responsibility to, individual Indian tribes and to the Indian people as a whole through the establishment of a meaningful Indian self-determination policy which will permit an orderly transition from the Federal domination of programs for, and services to, Indians to effective and meaningful participation by the Indian people in the planning, conduct, and administration of those programs and services. In accordance with this policy, the United States is committed to supporting and assisting Indian tribes in the development of strong and stable tribal governments, capable of administering quality programs and developing the economies of their respective communities.”
The constitution of the United States, article six, provides in relevant part: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. . . .”
See also United States v. Little Lake Misere Land Co., 412 U.S. 580, 593, 93 S. Ct. 2389, 37 L. Ed. 2d 187 (1973) (“[T]he inevitable incompleteness presented by all legislation means that interstitial federal lawmaking is a basic responsibility of the federal courts. At the very least, effective Constitutionalism requires recognition of power in the federal courts to declare, as a matter of common law or judicial legislation, rules which may be necessary to fill in interstitially or otherwise effectuate the statutory patterns enacted in the large by Congress. In other words, it must mean recognition offederal judicial competence to declare the governing law in an area comprising issues substantially related to an establishedprogram of government operation." [Emphasis added; internal quotation marks omitted.]).
See Williams v. Lee, supra, 358 U.S. 219-21; Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 557, 8 L. Ed. 483 (1832) (“[t]he treaties and laws of the United States contemplate the Indian territory as completely separated from that of the states; and provide that all intercourse with them shall be carried on exclusively by the government of the Union” [emphasis added]); Charles v. Charles, 243 Conn. 255, 258, 701 A.2d 650 (1997) (in order to determine “whether the defendant, a [Mashantucket Pequot] tribal member residing on the reservation, is subject to the jurisdiction of the Superior Court of the state of Connecticut ... we must construe those federal statutes that
The defendants cite the following cases: Texaco, Inc. v. Zah, 5 F.3d 1374, 1376 (10th Cir. 1993); United States v. Plainbull, 957 F.2d 724, 728 (9th Cir. 1992); Bowen v. Doyle, 880 F. Sup. 99, 123-24 (W.D.N.Y. 1995).
See, e.g., Altheimer & Cray v. Sioux Mfg. Corp., 983 F.2d 803, 814 (7th Cir.), cert. denied, 510 U.S. 1019, 114 S. Ct. 621, 126 L. Ed. 2d 585 (1993); Ute Distribution Corp. v. Secretary of Interior of the United States, 934 F. Sup. 1302, 1311-12 (D. Utah 1996); Vance v. Boyd Mississippi, Inc., 923 F. Sup. 905, 911 (S.D. Miss. 1996).
Cf. Steffel v. Thompson, 415 U.S. 452, 462, 94 S. Ct. 1209, 39 L. Ed. 2d 505 (1974) (notwithstanding doctrine of federal court abstention from enjoining pending state prosecution or declaring invalid state statute at issue therein, articulated in Younger v. Harris, 401 U.S. 37, 43, 91 S. Ct. 746, 27 L. Ed. 2d 664 [1971], and Samuels v. Mackell, 401 U.S. 66, 73, 91 S. Ct. 764, 27 L. Ed. 2d 688 [1971], federal courts may provide declaratory relief when criminal proceedings in state court are threatened but not pending, because “the . . . principles of equity . . . [and] comity . . . [upon which that abstention doctrine is based] have little force in the absence of upending . . . proceeding” [emphasis added; internal quotation marks omitted]).
The defendants assert that the only claim that Maranda legitimately could attempt to pursue is wrongful discharge, and that such a complaint could only be maintained against his former employer, the gaming enterprise, and not the individual defendants named in the state court action. Because that entity purportedly can be sued only in tribal court, due to considerations of tribal sovereign immunity, the defendants assert that the state court action with respect to Maranda should also be dismissed. This issue has not been fully briefed or argued before us, and the record gives no indication that it was raised before the trial court. We, therefore, do not consider it.
Cf. Hicks v. Miranda, 422 U.S. 332, 349, 95 S. Ct. 2281, 45 L. Ed. 2d 223 (1975) (doctrine of federal court abstention from enjoining pending state
We note that a different conclusion might be necessary where a state court action has proceeded to consideration of the merits before a relevant tribal court action has been filed. Because no proceedings on the merits took place in the trial court prior to the filing of the parallel tribal court proceeding, however, this appeal does not present the occasion to decide that question.
The defendants cite the following cases: Duncan Energy Co. v. Three Affiliated Tribes of the Fort Berthold Reservation, 27 F.3d 1294, 1300 (8th Cir. 1994), cert. denied, 513 U.S. 1103, 115 S. Ct. 779, 130 L. Ed. 2d 673 (1995); Crawford v. Genuine Parts Co., 947 F.2d 1405, 1407 (9th Cir. 1991), cert. denied, 502 U.S. 1096, 112 S. Ct. 1174, 117 L. Ed. 2d 419 (1992); Burlington Northern R.R. Co. v. Crow Tribal Council, 940 F.2d 1239, 1245 (9th Cir. 1991); Prescott v. Little Six, Inc., 897 F. Sup. 1217, 1221 (D. Minn. 1995); Bowen v. Doyle, 880 F. Sup. 99, 123-24 (W.D.N.Y. 1995); see also Reservation Telephone Cooperative v. Three Affiliated Tribes of Fort Berthold Reservation, 76 F.3d 181, 184 (8th Cir. 1996).
See, e.g., Altheimer & Gray v. Sioux Mfg. Corp., 983 F.2d 803, 814 (7th Cir. 1993); Vance v. Boyd Mississippi, Inc., 923 F. Sup. 905, 908-13 (S.D. Miss. 1996); Granite Valley Hotel Ltd. Partnership v. Jackpot Junction Bingo & Casino, 559 N.W.2d 135, 137 (Minn. App. 1997); see also Basil
We note that under some circumstances, specific allegations of bias on the part of a tribal court might satisfy the first of the exceptions to the exhaustion requirement, which applies “where an assertion of tribal jurisdiction is motivated by a desire to harass or is conducted in bad faith . . . .” (Citation omitted; internal quotation marks omitted.) National Farmers Union Ins. Cos. v. Crow Tribe of Indians, supra, 471 U.S. 856 n.21. Because the plaintiffs have not made such allegations, however, we have no occasion to consider the issue in this appeal.
Nor does the possibility that, pursuant to the doctrine, the extent of the tribe’s interests ultimately may be reviewed in a nontribal forum through
Concurrence in Part
concurring in part and dissenting in part. I agree with the majority that the trial court improperly dismissed the plaintiffs’ case against the defendants, one of whom was chairman of the tribal council. I do so because our decision in Charles v. Charles, 243 Conn. 255, 701 A.2d 650 (1997), cert. denied, 523 U.S. 1136, 118 S. Ct. 1838, 140 L. Ed. 2d 1089 (1998), settled the issue of the jurisdiction of our courts over such cases in which Indians may be parties. As we pointed out in Charles, Congress made clear by the Mashantucket Pequot Indian Claims Settlement Act, 25 U.S.C. §§ 1751 through 1760 (1994), that its policy was to invest jurisdiction of such cases in the Connecticut courts. Charles v. Charles, supra, 264-65.
I disagree, however, that the case with respect to plaintiffs John Drumm and Richard Perron should be stayed pending the resolution of the lawsuit they were forced to bring in the tribal court after their state court case was dismissed. Drumm and Perron only brought suit in tribal court because they were left in “no-man’s-Iand” after that dismissal. The dismissal had been urged by the defendants who were demanding that they be sued in tribal court. In these circumstances, comity would not require abstention by the state courts on grounds of interference by the state courts with a tribal court matter.
I also disagree because Drumm and Perron had no tribal court lawsuit pending when the trial court dismissed their case. The tribal court suit is not properly before us in this appeal. In this case, this court’s jurisdiction is limited to reviewing questions of law decided in the trial court. See General Statutes § 52-263. The question of a stay should have been raised before the trial court and not addressed originally by this decision.
I also disagree because leaving Drumm’s and Perron’s lawsuit in tribal court subjects them to having their
Accordingly, I respectfully concur in part and dissent in part.
Concurrence in Part
concurring in part and dissenting in part. I agree with the majority that the trial court incorrectly dismissed the action brought by the three plaintiffs, John C. Drumm, Richard Perron and Gerald O. Maranda, on the ground that they failed to “exhaust tribal remedies.” I, like Justice McDonald, disagree that this action with respect to Drumm and Perron should be stayed. They obviously filed their complaint with the tribal court only to protect themselves after the trial court wrongfully dismissed this action. Under those circumstances, fairness would dictate that if Drumm and Per-ron withdraw their complaint before the tribal court they be allowed to prosecute this complaint.
Accordingly, I dissent in part.