243 Conn. 115 | Conn. | 1997
Lead Opinion
Opinion
The dispositive issue raised by this appeal is whether the state of Connecticut has criminal jurisdiction over a defendant who is a member of an Indian tribe that has not been acknowledged by the federal government but whose application for acknowledgment is pending with the federal Bureau of Indian Affairs (BIA).
The record reveals the following facts and procedural history. On June 30, 1993, the defendant was arrested by the Connecticut state police and charged with breach of the peace. The charge resulted from an altercation between the defendant and certain employees of the North Stonington highway department regarding the widening of a portion of Lantern Hill Road that passes through the Paucatuck Eastern Pequot reservation.
On December 13, 1993, the defendant moved to dismiss the charge, claiming, inter aha, that: (1) the state’s assumption of criminal jurisdiction was preempted by operation of federal law; and (2) the state court’s exercise of jurisdiction over him unduly infringed on tribal sovereignty because he had been acting as a tribal officer in furtherance of legitimate tribal interests. On November 18,1994, the trial court, after a hearing, orally denied the motion to dismiss. On January 31, 1995, the trial court issued a written memorandum of decision explaining the grounds for its denial of the defendant’s motion, concluding that “where [the defendant] ha[s] not established that [he is an Indian], or that the offense took place on a reservation, there is no basis for granting the motion to dismiss.”
The trial court thereafter granted the defendant’s motion for reargument and, on April 28,1995, the court conducted a hearing on that motion.
On October 30, 1995, the defendant filed a motion for articulation, which was granted by the trial court. In its articulation, the trial court stated that the defendant had presented sufficient evidence to establish that he was a member of the Paucatuck Eastern Pequot Tribe
On appeal, the defendant reasserts the federal preemption and tribal sovereignty claims that he advanced
I
JURISDICTIONAL OVERVIEW
Article first, § 8, of the United States constitution provides in relevant part that “[t]he Congress shall have
“This congressional authority . . . and the semi-independent position of Indian tribes have given rise to two independent but related barriers to the assertion
II
FEDERAL PREEMPTION
The defendant advances two reasons why the trial court should have dismissed the criminal charge against him on federal preemption grounds. First, he claims that the provisions of the Indian Civil Rights Act of 1968
A
Indian Civil Rights Act
The state concedes that it has never formally obtained criminal jurisdiction over the Paucatuck Eastern Pequot Tribe under the relevant provisions of the Indian Civil Rights Act. In light of this concession, the defendant maintains that the state’s exercise of criminal jurisdiction over him for his conduct on tribal property was preempted by federal law. The state, on the other hand, contends that its exercise of criminal jurisdiction over the defendant is not dependent on its compliance with the requirements of 25 U.S.C. § 1321 (a); see footnote 16 of this opinion; because the defendant is not an Indian within the meaning of that statutory provision. In support of its claim, the state asserts that, because the defendant concededly is not a member of a tribe that has been acknowledged by the federal government, he is not an Indian for purposes of criminal jurisdiction under the Indian Civil Rights Act.
In general, federal courts have held that states have subject matter jurisdiction over crimes committed in Indian country that do not involve Indians.
Following the suggestion of the United States Supreme Court in United States v. Rogers, 45 U.S. (4 How.) 567, 572-73, 11 L. Ed. 1105 (1846), federal courts consider a criminal defendant to be an Indian under these statutes if he or she (1) has some Indian blood,
Generally, the first, so-called “racial” prong of this test must be met as well as the second, nonracial prong. Courts have considered the following enumerated factors, in declining order of importance, in determining whether a defendant meets the second, nonracial prong of this test: “(1) enrollment in a tribe; (2) government recognition formally and informally through providing the person assistance reserved only to Indians; (3) enjoying benefits of tribal affiliation; and (4) social recognition as an Indian through living on a reservation and participating in Indian social life.” St. Cloud v. United States, supra, 702 F. Sup. 1461; see also United States v. Torres, supra, 733 F.2d 456; United States v. Driver, supra, 755 F. Sup. 888; see generally S. Rep. No. 102-153, pp. 50-51, reprinted in United States Congressional Serial Set, Serial No. 14049, Senate Reports Nos. 151-67, 102d Cong., 1st Sess. (1991) (Appendix C, prepared by American Law Division of Library of Congress Research Division for Senate Select Committee on Indian Affairs, discussing federal case law under 18 U.S.C. §§ 1151 through 1153).
The four factors enumerated in St. Cloud have emerged as a widely accepted test for Indian status in the federal courts. Thus, a person with sufficient Indian ancestry who also is a member of a federally acknowledged Indian tribe generally will be subject only to federal criminal jurisdiction if he commits an offense in Indian country.
Our research has revealed only one federal case, LaPier v. McCormick, supra, 986 F.2d 303, that has addressed the veiy question posed by this appeal, namely, whether a state court may exercise criminal jurisdiction over an Indian who is a member of a tribe that has not been acknowledged by the executive or legislative branches of the federal government.
In rejecting LaPier’s claim, the Ninth Circuit noted that “criminal jurisdiction [in Indian country] is allocated among federal, state, and tribal courts depending on the subject matter of the crime, the persons involved in the crime, and the locus of the crime .... Because the crime occurred on an Indian reservation, LaPier’s legal status as an Indian (or non-Indian) determines jurisdiction. If LaPier is legally an Indian, the federal court would have jurisdiction, 18 U.S.C. § 1153 (1988), but if he is not, [then] the . . . state courts would have exclusive jurisdiction, because the victim was a non-Indian.
“LaPier has steadfastly maintained that, as an Indian, he should have been tried in federal court. Generally speaking, it is true that in Indian country federal jurisdiction is preeminent, specifically covering interracial crimes committed on an Indian reservation, [fourteen] major crimes if committed by an Indian on a reservation, and certain assimilative crimes within Indian country. [R.] Clinton, ‘Criminal Jurisdiction Over Indian Lands: A Journey Through a Jurisdictional Maze,’ 18
“We need not address, however, the question whether LaPier has shown a significant degree of blood and sufficient connection to his tribe to be regarded as one of its members for criminal jurisdiction purposes. See, e.g., United States v. Rogers, [supra, 45 U.S. (4 How.) 573]; United States v. Broncheau, [supra, 597 F.2d 1263]. There is a simpler threshold question that must be answered first, and in this case it is dispositive: Is the Indian group with which LaPier claims affiliation a federally acknowledged Indian tribe?
“If the answer is no, the inquiry ends. A defendant whose only claim of membership or affiliation
“It is therefore the existence of the special relationship between the federal government and the tribe in question that determines whether to subject the individual Indians affiliated with that tribe to exclusive federal jurisdiction for crimes committed in Indian country. See [id., 646-47 n.7]; [United States v. Heath, supra, 509 F.2d 19]. To determine whether that special relationship exists — whether the United States [acknowledges] a particular tribe — we defer to the political departments. See Baker v. Carr, 369 U.S. 186, 215, 82 S. Ct. 691, 709, 7 L. Ed. 2d 663 (1962).” (Citations omitted; internal quotation marks omitted.) LaPier v. McCormick, supra, 986 F.2d 304-305. The Ninth Circuit then reviewed the list compiled by the BIA of tribes that had received federal acknowledgment.
In general, we look to the federal courts for guidance in resolving issues of federal law. See, e.g., Joo v. Capitol Switch, Inc., 231 Conn. 328, 332-36, 650 A.2d 526 (1994)
Implicit in the federal case law adopting the St. Cloud test is the requirement that the tribe to which a defendant claims membership or affiliation have been federally acknowledged. See footnotes 27 and 28 of this opinion. We have discovered no federal case law, and the defendant has not brought any to our attention, in which a court has held that a defendant is an Indian for federal criminal jurisdiction purposes even though he failed to allege membership in, or affiliation with, a federally acknowledged tribe.
Furthermore, we concur in the Ninth Circuit’s conclusion that the decision to acknowledge a tribe federally for criminal jurisdictional purposes is apolitical question.
We note, moreover, that such an undertaking by a state court would also raise serious federalism concerns. Of course, principles of federalism generally do not bar state courts from deciding questions of federal law. Indeed, as the United States Supreme Court recently has noted, “[interpretation of federal law is the proprietary concern of state, as well as federal, courts. It is the right and duty of the States, within
In addition, several other, albeit related, prudential concerns also caution against requiring state trial courts to determine the status, for federal purposes, of Indian tribes. First, that decision is at best a highly complex one requiring an in-depth understanding of the historical relationship between the applicant tribe and the federal government.
Second, the United States, in its amicus brief, takes the position that it lacks jurisdiction over the Paucatuck Eastern Pequot reservation except with regard to federal crimes of general applicability. Moreover, the parties dispute whether tribal courts are available on the reservation. Even if we assume, arguendo, that tribal courts do operate on the Paucatuck Eastern Pequot reservation, the defendant does not contest the state’s assertion that any such courts have not been approved by the United States Secretary of the Interior. These considerations, in combination with the uncertainty regarding who has criminal jurisdiction over offenses committed by Paucatuck Eastern Pequot tribal members on reservation property, could leave the inhabitants of the reservation facing serious gaps in police
Third, the prospect that a criminal defendant can, in effect, compel a state court to determine whether a tribe should receive federal acknowledgment status is a troubling one. Because the regulations of the BIA require that a tribe compile extensive documentary evidence in support of its claim; see 25 C.F.R. § 83.7; there exists the real possibility that a tribe might be forced to assert its federal acknowledgment claim prematurely. Indeed, a tribe conceivably could be made to litigate its status in a criminal forum in which it otherwise is not a party, in which it has little or no control over a defendant’s introduction of supporting documentation, and in which it would not have the ability to supplement the material submitted in support of its claim, as it would in connection with an application for federal acknowledgment filed with the BIA.
Finally, we are mindful of the need for predictability in the area of criminal enforcement and jurisdiction. Indeed, we can think of no better place for a bright line rule, like that adopted by the Court of Appeals for the Ninth Circuit in LaPier, than in the criminal context, with its patchwork of federal, state and tribal jurisdiction.
The defendant, for several reasons, claims that we should not follow LaPier. First, relying on Pittsburgh & Midway Coal Mining Co. v. Watchman, 52 F.3d 1531, 1545 n.15 (10th Cir. 1995), the defendant contends that the LaPier court utilized the “western,” rather than the “eastern,” test for determining Indian status, and that the former test is inapposite to the Paucatuck Eastern
The defendant’s first argument merits little discussion. The distinction drawn in Pittsburgh & Midway Coal Mining Co. v. Watchman, supra, 52 F.3d 1531, between the so-called “western” and “eastern” tests
We also are unpersuaded that the court in LaPier limited its deference to the BIA list of acknowledged tribes in the manner asserted by the defendant. LaPier, like the defendant in this case, had claimed to be affiliated with a tribe that had an application for federal acknowledgment pending with the BIA. See footnote 30. In rendering its decision, the Ninth Circuit emphasized that the tribe to which LaPier claimed membership was not listed by the BIA as having been acknowledged by the federal government, and that “[a]bsent evidence of its incompleteness, the BIA fist appears to be the best source to identify federally acknowledged Indian tribes whose members or affiliates satisfy the threshold criminal jurisdiction inquiry.” LaPier v. McCormick, supra, 986 F.2d 305. The Ninth Circuit’s reference to “incompleteness” most likely refers to the possibility of a tribe having received federal acknowledgment after the BIA list last had been published. Because the defendant concedes that the Paucatuck Eastern Pequot Tribe has not been acknowledged by the BIA or by Congress, he cannot claim that the Paucatuck Eastern Pequot Tribe is not on the BIA list because that list is incomplete.
The defendant next contends that the state’s statutoiy recognition of the Paucatuck Eastern Pequot Tribe should be treated as a concession by the state that the tribe satisfies the requirements for federal acknowledgment. No authority exists for the proposition that a state has the authority to determine whether a tribe that has not been acknowledged formally by the federal
We also conclude that the defendant’s reliance on the decision of the Court of Appeals for the Second Circuit in United States v. Cook, supra, 922 F.2d 1026, is misplaced. The defendants in Cook, members of the federally acknowledged St. Regis Mohawk Tribe, were convicted in District Court of various gambling offenses. They appealed their convictions to the Second Circuit, claiming that their gambling establishments were not located in Indian country and that, consequently, the federal government lacked jurisdiction to prosecute them. Id., 1029-30. In affirming the defendants’ convictions, the court in Cook concluded that the trial court properly had determined that the offenses had occurred within Indian country because the tribal land on which the gaming devices were located was situated within a dependent Indian community. Id., 1030-31; see footnote 22 of this opinion. The Second
The defendant also suggested, in his supplemental brief, that the result that we reach in this case is inconsistent with the decision of the Second Circuit in Golden Hill, supra, 39 F.3d 51. In Golden Hill, the state sought dismissal of the plaintiff tribe’s land claim under the Nonintercourse Act; see footnote 17 of this opinion; on the ground that the tribe, whose federal acknowledgment application with the BIA was pending, lacked standing to bring such a claim as an Indian tribe within the meaning of the act. The District Court had dismissed the action without prejudice in light of the fact that the BIA had not yet decided the tribe’s application. Golden Hill, supra, 55. On appeal from the District Court’s judgment of dismissal, the Second Circuit reinstated the tribe’s action after concluding that, although it was appropriate for the District Court to defer to the BIA in resolving the federal acknowledgment issue, the District Court should have stayed the action to allow the BIA the opportunity to act on the tribe’s application. Id., 59-60. We conclude that our holding in this case, which follows the holding of LaPier v. McCormick, supra, 986 F.2d 303, is not inconsistent with Golden Hill.
In Golden Hill, the central issue was the question of the tribe’s standing to bring a claim -under the civil Nonintercourse Act, which, unlike the federal statutes discussed herein, has been held by federal courts not to require that a tribe be federally acknowledged. Thus, in discussing the history of the Nonintercourse Act, the Second Circuit noted that “[federal courts have held
“Whether there should be judicial forbearance hinges therefore on the authority Congress delegated to the agency in the legislative scheme. . . . The BIA has the authority to prescribe regulations for carrying into effect any act relating to Indian affairs. See 25 U.S.C. § 9 (1988). Before the promulgation of the acknowledgment regulations there did not exist a uniform, systematic procedure to determine tribal status within the Department of the Interior.
As we have discussed, the federal acknowledgment status of a tribe is not merely a significant component of the federal government’s exercise of criminal jurisdiction over an Indian tribe, as it was held to be by the Second Circuit relative to claims under the Nonintercourse Act. Contrary to the more limited role that the federal acknowledgment process has been held to play under the civil Nonintercourse Act, federal acknowledgment is the very essence of the govemment-to-govemment relationship that underlies federal criminal jurisdiction. Accordingly, we are aware of no support for the defendant’s contention that a member of a tribe that is not included on the BIA’s list of federally acknowledged tribes nevertheless may prevail on a claim that his state prosecution is federally preempted.
We emphasize, moreover, the overriding practical difficulties associated with staying a criminal case until the BIA has reached its acknowledgment determination. A lengthy stay like that imposed by the Second Circuit in Golden Hill likely would run afoul of a defendant’s constitutional and statutory speedy trial rights.
In addition, as previously discussed, this case exemplifies the complexity and length of the federal acknowledgment process. The Paucatuck Eastern Pequot Tribe filed its petition for federal acknowledgment in 1989. Although the defendant represented at oral argument that his tribe’s petition was in its final stages and would be decided before that of any other tribe, he also conceded that the BIA’s final decision could take more
Thus, the standing issue addressed by the Second Circuit in Golden Hill in the context of a civil land claim raises substantially different questions, and implicates substantially different interests, than the criminal prosecution addressed in this appeal. In light of those differences, and because these cases involve completely different statutory schemes, we are persuaded that our determination in this case, which follows the Ninth Circuit’s resolution of the same issue in LaPier v. McCormick, supra, 986 F.2d 303, is not inconsistent with the Second Circuit’s decision in Golden Hill, supra, 39 F.3d 51.
Accordingly, the issue of whether the defendant is an Indian for purposes of establishing federal criminal jurisdiction, as opposed to standing under the Nonintercourse Act, implicates a political question best left to the federal acknowledgment process performed by the BIA. In the absence of actual proof that the federal government has acknowledged the defendant’s tribe and, therefore, that he is an Indian, we conclude that the state’s exercise of criminal jurisdiction over the
B
Antialienation Provisions
The defendant further claims that, even if the state had properly assumed criminal jurisdiction over his tribe under the Indian Civil Rights Act, his federal preemption claim finds support under the federal Nonintercourse Act and various other related statutory and regulatory provisions. In particular, he contends that 25 U.S.C. § 1322 (b),
Even if we were to assume, arguendo, that the statutory and regulatory provisions cited by the defendant apply to the Paucatuck Eastern Pequot reservation lands, the defendant fails to cite any state or federal authority for the proposition that a criminal prosecution arising from a dispute over the use of reservation property implicates any of the antialienation provisions upon which he relies.
Furthermore, even if it is assumed, arguendo, that the Nonintercourse Act could serve as a basis for an antialienation claim under the Indian Civil Rights Act, several federal courts in this district have concluded that it is inappropriate to consider a land claim under the Nonintercourse Act until the group’s application for federal acknowledgment has been considered by the BIA. See, e.g., United States v. 43.47 Acres of Land More or Less, 855 F. Sup. 549, 552 (D. Conn. 1994) (group lacking federal acknowledgment cannot contest extinguishment of property interest absent certification by BIA that it actually represents tribe); Golden Hill Paugussett Tribe of Indians v. Weicker, 839 F. Sup. 130 (D. Conn. 1993) (concluding that tribe lacking federal acknowledgment must exhaust administrative remedies with Department of Interior before suing under Nonintercourse Act), remanded with direction, Golden Hill Paugussett Tribe of Indians v. Weicker, 39 F.3d 51 (2d Cir. 1994) (same; action ordered stayed eighteen
Ill
INDIAN TRIBAL SOVEREIGNTY
In addition to his claim that federal law preempts the state action taken in this case, the defendant also raises a claim of tribal sovereignty. The defendant contends that the trial court should have dismissed the charge against him because the state prosecution violates the inherent sovereignty of the Paucatuck Eastern Pequot Tribe. In essence, he claims that because his arrest resulted from a land dispute between himself, acting in his official capacity as tribal vice-chairman in serving
“Like all instrumentalities of the state of Connecticut, our courts are powerless to intervene in the exercise of tribal self-government. Federal statute, federal common law and state statute all require us to treat bona fide Indian tribes as sovereign nations and to protect tribal rights to self-determination. [Schaghticoke, supra, 217 Conn. 626-29]. Because of the continuing inherent sovereignty of Indian tribes, for example, federal common law forbids states from unlawfully infring[ing] on the light of reservation Indians to make their own laws and be ruled by them. . . . White Mountain Apache Tribe v. Bracker, [supra, 448 U.S. 142]; Williams v. Lee, 358 U.S. 217, 220, 79 S. Ct. 269, 3 L. Ed. 2d 251 (1959). Similarly, state statutes explicitly provide that the indigenous tribes, [including the Paucatuck Eastern Pequot Tribe] are self-governing entities possessing powers and duties over tribal members and reservations. . . . General Statutes § 47-59a (b). Any action by a state court that infringed on tribal sovereignty or interfered in tribal self-government would therefore be improper.
“Our recognition of tribal sovereignty does not, however, render all matters touching upon tribal decisions nonjusticiable. As the United States Supreme Court has
“The question before us, therefore, is whether, in [permitting the prosecution of the defendant by the state], the trial court actually interfered with the exercise of tribal sovereignty.” (Internal quotation marks omitted.) Golden Hill Paugussett Tribe of Indians v. Southbury, 231 Conn. 563, 574-76, 651 A.2d 1246 (1995); cf. Schaghticoke, supra, 217 Conn. 629 (“in order for a state enactment to impinge on tribal sovereignty, or in order for an Indian tribe to assert that it is not subject to civil jurisdiction that otherwise applies to state citizens, there [first] must be a tribe that exists as a distinct cultural or ethnic group. [Second], the tribe must have a form of demonstrable sovereignty or functioning self-government. [Finally], the state act in question must actually infringe on some exercise of tribal government or existing tribal legislation.”). “Tribal immunity is just that: sovereign immunity which attaches to a tribe because of its status as a dependant domestic nation.” United States v. James, 980 F.2d 1314, 1319 (9th Cir. 1992), cert. denied, 510 U.S. 838, 114 S. Ct. 119, 126 L. Ed. 2d 84 (1993); see also United States v. Wheeler, supra, 435 U.S. 323 (“Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependant status”).
Furthermore, the trial court made no finding with regard to the defendant’s assertion that he holds the position of vice-chairman of the Eastern Pequot Tribe, and the defendant failed to seek any articulation from the trial court with regard to that claim. In fact, the record reflects an ongoing dispute regarding tribal membership and leadership. See footnote 13 of this opinion. Moreover, even if the defendant had established that he holds the position of tribal vice-chairman, it is unclear that that fact alone would have any bearing on his sovereignty claim. See, e.g., United States v. Funmaker, 10 F.3d 1327, 1331 (7th Cir. 1993) (fact that Indian defendant was following tribal chairperson’s orders did not immunize him under “police power” doctrine from federal prosecution). Indeed, it is well established that tribal sovereign immunity does not extend to individual members of a tribe, and instead must be asserted by the tribe itself. See Puyallup Tribe, Inc. v. Dept. of Game, 433 U.S. 165, 173, 97 S. Ct. 2616, 53 L. Ed. 2d 667 (1977) (“the successful assertion of tribal sovereign immunity in this case does not impair the authority of the state court to adjudicate the rights of the individual defendants [who are tribal members] over whom it properly obtained personal jurisdiction”);
The judgment is affirmed.
In this opinion CALLAHAN, C. J., BORDEN, KATZ, MCDONALD and PETERS, Js., concurred.
Although this process is referred to both as “recognition” and “acknowledgment,” we refer to the federal administrative or congressional recognition of a tribe’s special relationship with the federal government as “acknowledgment.” This term “more accurately reflects] the ethnohistorical reality of the United States’ acknowledging the existence of an extant and continuously surviving American Indian polity”; W. Quinn, “Federal Acknowledgment of American Indian Tribes: Authority, Judicial Interposition, and 25 C.F.R. § 83,” 17 Am. Indian L. Rev. 37, 37 n.4 (1992); and also more readily distinguishes the process of federal acknowledgment from the recognition that may be afforded a tribe under state law. See footnote 3 of this opinion.
Although Congress also can acknowledge a tribe by legislative act, the federal acknowledgment “function [generally] is carried out through an ordinary administrative process authorized by congressional statute. Congress has given the President the power to ‘prescribe such regulations as he may think fit for carrying into effect the various provisions of any act relating to Indian affairs.’ [25 U.S.C. § 9.] Pursuant to these provisions, the President, through the Secretary of [the] Interior has promulgated rules to control the federal government’s ‘acknowledg[ment] that certain American Indian groups exist as tribes.’ [25 C.F.R. § 83.2.] Federal acknowledgment 'is a prerequisite to the protection, services, and benefits of the Federal government available to Indian tribes by virtue of their status as tribes.’ [Id.]” C. Ford, “Executive Prerogatives in Federal Indian Jurisprudence: The Constitutional Law of Tribal Recognition,” 73 Denver U. L. Rev. 141 (1995). The federal statutes further provide that “[t]he Commissioner of Indian Affairs shall, under the direction of the Secretary of the Interior, and agreeably to such regulations as the President may prescribe, have the management of all Indian affairs and of all matters arising out of Indian relations.” 25 U.S.C. § 2.
Unless otherwise noted, we refer to the tribal entity to which the defendant has claimed to be a member as the Paucatuck Eastern Pequot Tribe,
“(b) The state of Connecticut further recognizes that the indigenous tribes, the Schaghticoke, the Paucatuck Eastern Pequot, the Mashantucket Pequot, the Mohegan and the Golden Hill Paugussett are self-governing entities possessing powers and duties over tribal members and reservations. Such powers and duties include the power to: (1) Determine tribal membership and residency on reservation land; (2) determine the tribal form of government; (3) regulate trade and commerce on the reservation; (4) make contracts; and (5) determine tribal leadership in accordance with tribal practice and usage.” (Emphasis added.)
General Statutes § 53a-181 provides: “(a) A person is guilty of breach of the peace when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: (1) Engages in fighting or in violent, tumultuous or threatening behavior in a public place; or (2) assaults or strikes another; or (3) threatens to commit any crime against another person or his property; or (4) publicly exhibits, distributes, posts up or advertises any offensive, indecent or abusive matter concerning any person; or (5) in a public place, uses abusive or obscene language or makes an obscene gesture; or (6) creates a public and hazardous or physically offensive condition by any act which he is not licensed or privileged to do.
“(b) Breach of the peace is a class B misdemeanor.”
General Statutes § 54-94a provides: “Conditional nolo contendere plea. Appeal of denial of motion to suppress or dismiss. When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure, motion to suppress statements and evidence based on the involuntariness of a statement or motion to dismiss, the defendant after the imposition of
General Statutes § 53a-181a provides: “Creating a public disturbance: Infraction, (a) A person is guilty of creating a public disturbance when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he (1) engages in fighting or in violent, tumultuous or threatening behavior; or (2) annoys or interferes with another person by offensive conduct; or (3) makes unreasonable noise.
“(b) Creating a public disturbance is an infraction.”
The trial court imposed a fine of $85 plus costs.
Ashbow Sebastian, the defendant’s brother, was also arrested for breach of the peace, but the charge against him was nolled. The defendant’s brother is not a party to this appeal.
The dissent mischaracterizes the defendant’s recitation of the facts as undisputed. In fact, the state never conceded that the defendant’s version of the facts was accurate, the trial court never made the factual findings upon which the dissent relies, and the defendant never specifically requested that the trial court articulate its factual findings regarding his alleged position as vice-chairman of the “Eastern Pequot Tribe,” his alleged residence on the Paucatuck Eastern Pequot reservation, his alleged previous interactions with the North Stonington town officials, or his alleged basis for committing the infraction at issue on appeal. See footnote 13 of this opinion.
Previously, on March 31,1995, the state had filed a substitute information charging the defendant with creating a public disturbance.
General Statutes § 47-63 provides: “Definitions. The following terms as used in this chapter, shall have the following meanings: ‘Indian’ means a person who is a member of any of the following tribes, Paucatuck Eastern Pequot, Mashantucket Pequot, Schaghticoke, Golden Hill Paugussett and Mohegan; ‘reservation’ means the Paucatuck Eastern Pequot reservation in the town of North Stonington, assigned to the use of the Paucatuck Eastern Pequot tiibe; the Golden Hill Paugussett reservations in the towns of Trumbull and Colchester, assigned to 1he Golden Hill Paugussett tribe; the Schaghticoke reservation in the town of Kent, assigned to the Schaghticoke tribe, and the Mashantucket Pequot reservation in the town of Ledyard, assigned to the Mashantucket Pequot tribe; ‘tribal funds’ means the money held by the state for the use and benefit of a tribe as distinguished from legislative appropriations.” (Emphasis added.)
The trial court noted its reluctance to consider the issue of tribal membership in light of General Statutes § 47-66j (b), which provides: “A membership dispute shall be resolved in accordance with tribal usage and practice. Upon request of a party to a dispute, the dispute may be settled by a council. Each party to the dispute shall appoint a member of the council and the parties shall jointly appoint one or two additional members provided the number of members of the council shall be an odd number. If the parties
With regard to the issue of tribal membership, the trial court stated: “I want to make it perfectly clear [that] I will accept any evidence to prove that these gentlemen are members of a tribe. I am precluded from [making that determination] by state law. Tribal determination has to be made by the tribe. If the tribe makes that determination and evidence of that is introduced, then ... I would accept that and take judicial notice of it. It would be conclusive.” On the basis of testimony elicited by the defendant from William Bingham, attorney for the “Eastern Pequot Tribe” and director of that group’s federal acknowledgment project, as well as the defendant’s counsel on appeal, the trial court concluded that the defendant had established that he is enrolled in the tribe as a member. No claim has been raised by either party challenging this determination.
As we previously have noted, the defendant claims to be vice-chairman of the “Eastern Pequot Tribe” and a resident of the Paucatuck Eastern Pequot reservation. Although the trial court concluded that the defendant was a member of the Paucatuck Eastern Pequot Tribe; see footnote 12 of this opinion; it made no findings as to the defendant’s residency or his alleged leadership position within the tribe. The attorney general of the state of Connecticut, who filed an amicus brief in this case, argues that the state recognizes only the “Paucatuck Eastern Pequot Tribe,” and not the “Eastern Pequot Tribe,” of which the defendant alleges he is a member. The attorney general further notes, and the defendant does not dispute, that separate petitions for federal acknowledgment have been filed with the BIA by groups calling themselves the “Paucatuck Eastern Pequot Tribe” and the “Eastern Pequot Tribe.” Moreover, the state’s attorney noted in the trial
The stipulation upon which the trial court relied, however, refers to the “Eastern Pequot Tribe” as the same entity as the “Paucatuck Eastern Pequot Tribe,” which is recognized by the state. The Appellate Court, moreover, has referred to the “Eastern Pequot[s]” as a “faction of the [Paucatuck Eastern Pequot] tribe, the members of which claim to be the true tribal members.” Paucatuck Eastern Pequot Indians v. Connecticut Indian Affairs Counsel, 18 Conn. App. 4, 6 n.3, 555 A.2d 1003 (1989). Accordingly, for purposes of this appeal, we accept the trial court’s conclusion that the defendant is a member of a tribe recognized by the state of Connecticut. See Hunte v. Blumenthal, 238 Conn. 146, 150, 680 A.2d 1231 (1996) (stipulation relied upon by trial court also informs issues on appeal).
The defendant, the state and the amici curiae also have briefed the following four additional issues that we asked them to address in our order for reargument in this case: (1) “What bearing, if any, does the definition of the term ‘Indian’ contained in 25 U.S.C. § 1301 (4) have on the issue of whether the defendant is an ‘Indian’ for purposes of criminal jurisdiction? Does a different definition of‘Indian’ apply under 25 U.S.C. § 1321 as opposed to under either the Indian Major Crimes Act, 18 U.S.C. § 1153, or the Indian Country Crimes Act, 18 U.S.C. § 1152 (incorporating the Assimilative Crimes Act, 18 U.S.C. § 13)?” (2) “In LaPier v. McCormick, 986 F.2d 303 (9th Cir. 1993), the court concluded that, for purposes of 25 U.S.C. § 1321, the term ‘Indian’ includes only those persons who are members of a tribe that has been formally acknowledged by the [BIA]. Is that holding still viable in light of 25 U.S.C. § 1301 (4)? If so, what specific authority is there to support the LaPier court’s conclusion that the BIA has exclusive jurisdiction to determine whether a person is an ‘Indian’ for purposes of criminal jurisdiction? Finally, what impact does the decision of the Court of Appeals for the Second Circuit in Golden Hill Paugussett Tribe of Indians v. Weicker, 39 F.3d 51 (2d Cir. 1994), regarding the BIA’s primary jurisdiction over the federal acknowledgment determination, have on this issue?” (3) “Assuming that it is necessary for the trial court to reach the question of whether the
The Indian Civil Rights Act is codified at 25 U.S.C. §§ 1301 through 1341.
Title 25, § 1321, of the United States Code provides in relevant part: “Assumption by State of criminal jurisdiction
“(a) Consent of United States; force and effect of criminal laws
“The consent of the United States is hereby given to any State not having jurisdiction over criminal offenses committed by or against Indians in the area of Indian country situated within such State to assume, with the consent of the Indian tribe occupying the particular Indian country or part thereof which could be affected by such assumption, such measure of jurisdiction over any or all such offenses committed within such Indian country or any part thereof as may be determined by such State to the same extent that such State has jurisdiction over any such offense committed elsewhere within the State, and the criminal laws of such State shall have the same force and effect within such Indian country or part thereof as they have elsewhere within that State. . . .”
The Nonintercourse Act, now codified at 25 U.S.C. § 177, provides: “No purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution. Every person who, not being employed under the authority of the United States, attempts to negotiate such treaty or convention, directly or indirectly, or to treat with any such nation or tribe of Indians for the title or purchase of any lands by them held or claimed, is liable to a penalty of $1,000. The agent of any State who may be present at any treaty held with Indians under the authority of the United States, in the presence and with the approbation of the commissioner of the United States appointed to hold the same, may, however, propose to, and adjust with, the Indians the compensation to be made for their claim to lands within such State, which shall be extinguished by treaty.”
Title 25, § 1322 (b), of the United States Code provides: “Nothing in this section shall authorize the alienation, encumbrance, or taxation of any real or personal property, including water rights, belonging to any Indian or any Indian tribe, band, or community that is held in trust by the United States or is subject to a restriction against alienation imposed by the United States; or shall authorize regulation of the use of such property in a manner inconsistent with any Federal treaty, agreement, or statute, or with any regulation made pursuant thereto; or shall confer jurisdiction upon the State to adjudi
Title 25, § 1.4, of the Code of Federal Regulations (1997) provides in relevant part: “[N]one of the laws, ordinances, codes, resolutions, rules or other regulations of any State or political subdivision thereof limiting, zoning or otherwise governing, regulating, or controlling the use or development of any real or personal property, including water rights, shall be applicable to any such property leased from or held or used under agreement with and belonging to any Indian or Indian tribe, band, or community that is held in trust by the United States or is subject to a restriction against alienation imposed by the United States.”
The state also maintains that the Paucatuck Eastern Pequot reservation is not Indian country within the meaning 25 U.S.C. § 1321 (a) and, therefore, that the defendant also has failed to meet the second requirement of that statutory provision. See footnote 16 of this opinion. Because we conclude that the defendant is not an Indian within the meaning of 25 U.S.C. § 1321 (a), we need not consider whether the Paucatuck Eastern Pequot reservation is Indian country for purposes of criminal jurisdiction under the Indian Civil Rights Act. Accordingly, we decline the state’s invitation to reconsider the
Conversely, “Congress has conferred on the federal courts special criminal jurisdiction over offenses [involving Indians] committed in Indian country. See Negonsott v. Samuels, 507 U.S. 99, 102-103, 113 S. Ct. 1119, 122 L. Ed. 2d 457 (1993). The Indian Country Crimes Act, codified at 18 U.S.C. § 1152, applies to crimes committed by non-Indians against Indians and to crimes committed by Indians against non-Indians not encompassed by other statutes or prosecuted in a tribal court. See Williams v. United States, 327 U.S. 711, 714, 66 S. Ct. 778, 90 L. Ed. 962 (1946); F. Cohen, Handbook of Federal Indian Law (1982 Ed.) pp. 287-300. The Indian Major Crimes Act establishes as federal crimes certain felonies committed by any Indian in Indian country ‘against the person or property of another Indian or other person . . . .’ 18 U.S.C. §§ 1153, 3242. In the absence of an express grant of state jurisdiction by Congress, state jurisdiction within Indian country ‘is limited to crimes by non-Indians against non-Indians . . . and victimless crimes by non-Indians.’ Solem v. Bartlett, 465 U.S. 463, 465 n.2, 104 S. Ct. 1161, 79 L. Ed. 2d 443, reh. denied, 466 U.S. 948, 104 S. Ct. 2148, 80 L. Ed. 2d 535 (1984).” State v. Spears, supra, 234 Conn. 85 n.6.
Title 18, § 1151, of the United States Code provides in relevant part: “ ‘Indian country’ . . . means (a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government . . . (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and (c) all Indian allotments . . . .” This jurisdictional definition is applicable in both criminal and civil contexts. See, e.g., California v. Cabazon Band of Mission Indians, 480 U.S. 202, 207, 107 S. Ct. 1083, 94 L. Ed. 2d 244 (1987).
In claiming that the term Indian in the Indian Civil Rights Act includes a member of a “bona fide tribe,” the defendant relied on our decision in Schaghticoke, supra, 217 Conn. 612, as well as that of the Supreme Court of Maine in State v. Dana, 404 A.2d 551 (Me. 1979), cert. denied, 444 U.S.
Title 18, § 1152, of the United States Code provides: “Exceptas otherwise expressly provided by law, the general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country.
“This section shall not extend to offenses committed by one Indian against the person or property of another Indian, nor to any Indian committing any offense in the Indian country who has been punished by the local law of the tribe, or to any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively.”
Title 18, § 1153, of the United States Code provides: “Offenses committed within Indian country
“(a) Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder, manslaughter, kidnapping, maiming, a felony under chapter 109A, incest, assault with intent to commit minder, assault with a dangerous weapon, assault resulting in serious bodily injury (as defined in section 1365 of this title), an assault against an individual who has not attained the age of 16 years, arson, burglary, robbery, and a felony under section 661 of this title within the Indian country, shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.
“(b) Any offense referred to in subsection (a) of this section that is not defined and punished by Federal law in force within the exclusive jurisdiction of the United States shall be defined and punished in accordance with the laws of the State in which such offense was committed as are in force at the time of such offense.”
Although the state indicated at oral argument that the test did not contain a racial component, it cited no cases to support that assertion, and the cases that we have reviewed indicate otherwise.
In general, the federal case law either refers to a federally acknowledged tribe by name or malees reference to a tribe being “official.” Contrary to the view espoused by the defendant, we are aware of no federal authority to support a claim that state recognition of a tribe has any bearing on federal criminal jurisdiction over that tribe. State recognized tribes, which are found primarily in the eastern United States, generally “are tribes [that] very early in their interaction with whites came under the protection and jurisdiction of the colonial, and later, state governments. In general, it is the state government which has the responsibility for providing services and benefits and for exercising primary civil and criminal jurisdiction over the tribes.” S. O’Brien, “Tribes and Indians: With Whom Does the United States Maintain a Relationship?,” 66 Notre Dame L. Rev. 1461, 1476 (1991). Two tribes recognized by the state of Connecticut, however, have been granted federal acknowledgment by congressional enactment. See 25 U.S.C. § 1758 (a) (Mashantucket Pequot Tribe); 25 U.S.C. § 1775 (a) (1) (Mohegan Tribe of Indians of Connecticut). We note that Congress also has transferred criminal jurisdiction over these two tribes to the state. 25 U.S.C. §§ 1755, 1775d.
Although there has been no single, standardized definition of Indian encompassing all federal criminal statutes; see R. Clinton, “Criminal Jurisdic
The defendant has identified no state case, and we are aware of none, that addresses the exact question raised by this appeal.
The state of Montana had not been granted, nor had it assumed, criminal jurisdiction under the Indian Civil Rights Act over the Blackfeet Indian reservation, the location of LaPier’s criminal activity. See LaPier v. McCormick, supra, 986 F.2d 304 n.2. Because there was no question that the Blackfeet Indian reservation was Indian country, the sole question before the Court of Appeals for the Ninth Circuit was whether LaPier, who claimed to be enrolled in the Little Shell Band of Landless Chippewa Indians of Montana, was an Indian for purposes of federal criminal jurisdiction under the Indian Civil Rights Act even though his tribe had not received federal acknowledgment. The Little Shell Band of Landless Chippewa Indians of Montana, like the Paucatuck Eastern Pequot Tribe, had an application for federal acknowledgment that was pending with the BIA at the time that LaPier was decided. Id., 306; State v. LaPier, 242 Mont. 335, 341, 790 P.2d 983 (1990). On appeal, LaPier had abandoned his claim that he was affiliated with two federally acknowledged tribes, the Blackfeet Tribe and the Turtle Mountain Band of Chippewas. LaPier v. McCormick, supra, 306 n.5.
In the present case, in contrast, the defendant’s infraction was a “victimless” crime in the sense that no victim was involved whose status as an Indian also would have to be considered by the trial court. A non-Indian who commits a victimless crime in Indian country, however, also is subject to state jurisdiction. Solem v. Bartlett, 465 U.S. 463, 465 n.2, 104 S. Ct. 1161, 79 L. Ed. 2d 443 (1984) (“[w]ithin Indian country, state jurisdiction is limited to crimes by non-Indians against non-Indians . . . and victimless crimes by non-Indians" [citation omitted]); see generally Conference of Western Attorneys General, supra, pp. 86-97.
Several older federal cases have indicated that actual membership in an “official” tribe is not necessary if a defendant’s relationship with such a tribe is akin to that of a member. See United States v. Ives, 504 F.2d 935, 953 (9th Cir. 1974), vacated on other grounds, 421 U.S. 944, 95 S. Ct. 1671, 44 L. Ed. 2d 97 (1975); Ex parte Pero, 99 F.2d 28, 30 (7th Cir. 1938), cert. denied, 306 U.S. 643, 59 S. Ct. 581, 83 L. Ed. 1043 (1939). The defendant in this case represented to the trial court that he is of mixed Indian ancestry, which includes Mashantucket Pequot ancestry. The Mashantucket Pequot Tribe is recognized by the state of Connecticut; General Statutes § 47-63; and also has been acknowledged by the federal government. When the trial court suggested that it would be willing to consider the defendant’s Mashantucket Pequot ancestry instead of his Paucatuck Eastern Pequot background, the defendant declined to present evidence regarding that affiliation. Accordingly, the question of whether the defendant’s affiliation with the Mashantucket Pequot Tribe would satisfy the test for Indian status under the Indian Civil Rights Act is not before us.
The BIA list is comprehensive because it enumerates “exactly which Indian tribes are federally acknowledged and by exclusion from that list which Indian groups are not.” W. Quinn, “Federal Acknowledgment of American Indian Tribes: Authority, Judicial Interposition, and 25 C.F.R. § 83,” 17 Am. Indian L. Rev. 37, 38 (1992). “Two methods [currently] exist by which an unacknowledged Indian group can obtain federal acknowledgment as a
The court also noted that LaPier had made no claim that the BIA list of federally acknowledged tribes was incomplete. LaPier v. McCormick, supra, 986 F.2d 305.
The Ninth Circuit stressed that it had made no determination as to the defendant’s Indian status in any other sense of the word. It noted that “while LaPier may be an Indian in an anthropological or ethnohistorical sense, he is not an Indian for purposes of criminal jurisdiction.” LaPier v. McCormick, supra, 986 F.2d 306 n.5; see also United States v. Antelope, supra, 430 U.S. 646 (“Federal regulation of Indian tribes ... is governance of once-sovereign political communities .... [Respondents were not subjected to federal criminal jurisdiction because they are of the Indian race but because they are enrolled members of the Coeur d’Alene Tribe.”); United States v. Heath, supra, 509 F.2d 19 (“[w]hile anthropologically a Klamath Indian even after the [Klamath] Termination Act [25 U.S.C. § 564 et seq.] obviously remains an Indian, his unique status vis-a-vis the Federal Government no longer exists”). Similarly, although the defendant in the present case “may be an Indian in an anthropological or ethnohistorical sense” and belongs to a tribe that has a special relationship with the state that is recognized in our General Statutes, these factors do not confer federal Indian status on the defendant for purposes of criminal jurisdiction.
Indeed, the defendant himself has made the alternative argument that “the questions raised in this appeal are political questions which require nonjudicial remedies,” and that a state trial court is not competent to undertake the task that has been delegated to the BIA. He claims that “[u]ntil such time as a final determination is made by the BIA and/or there is a resolution by the United States Congress, the state is powerless to act unilaterally.” Because a trial court has an independent obligation to determine its own subject matter jurisdiction, however, we must address the trial court’s authority to conduct such an undertaking, regardless of the outcome.
“The federal acknowledgment procedures require that a group seeking recognition present a petition to the BIA with evidence that the tribe meets each of seven criteria.” Comment, “The Imprimatur of Recognition: American Indian Tribes and the Federal Acknowledgment Process,” 66 Wash. L. Rev. 209, 216 (1991). These criteria include: “(a) The petitioner has been identified as an American Indian entity on a substantially continuous basis since 1900. . . . (b) A predominant portion of the petitioning group comprises a distinct community and has existed as a community from historical times until the present. . . . (c) The petitioner has maintained political influence or authority over its members as an autonomous entity from historical times until the present. . . . (d) [The petitioner has provided a] copy of the [petitioner’s] present governing document including its membership criteria [or, in] the absence of a written document, the petitioner must provide a statement describing in full its membership criteria and current governing procedures. . . . (e) Tire petitioner’s membership [consists] of individuals who descend from a historical Indian tribe or from historical Indian tribes which combined and functioned as a single autonomous political entity. . . . (f) [Absent special conditions, t]he membership of the petitioning group is composed principally of persons who are not members of any acknowledged North American Indian tribe. . . . (g) Neither the peti
“Once a petition is complete, the BIA appoints a team of experts to determine the tribe’s status. Typically, the team includes [a] historian, an anthropologist, and a genealogist, each of whom issues a report evaluating the evidence in light of the published criteria. Petitioners provide the bulk of the research, but BIA experts may conduct additional research when evaluating petitions.
“Upon completing their analyses, the BIA experts combine or summarize their reports and issue proposed findings with regard to the petition. Following a notice and comment period, the Assistant Secretary of Indian Affairs authorizes and issues the final determination.” Comment, supra, 66 Wash. L. Rev. 216-17.
Indeed, because “[t]here is no evidence that the federal government would take any action in this [particular] case, ” if the “[defendant] prevails], the apparent result is that [he] will escape all criminal prosecution.” State v. St. Francis, 151 Vt. 384, 391, 563 A.2d 249 (1989).
At oral argument, the defendant also contended that because the Indian Civil Rights Act predates the regulations governing federal acknowledgment, Congress could not have contemplated federal acknowledgment as a basis for determining Indian status under the Indian Civil Rights Act. We disagree. Even though these regulations were promulgated in 1974, several years after the Indian Civil Rights Act was enacted, Congress’ delegation to the executive branch of the authority to acknowledge tribes occurred more than one century before the Indian Civil Rights Act became law. See 25 U.S.C. §§ 2, 9.
Two tests for determining whether an areais a “dependentlndian community” and, consequently, Indian country, have been articulated by various courts that have considered this question. First, in. State v. Dana, 404 A.2d 551 (Me. 1979), cert. denied, 444 U.S. 1098, 100 S. Ct. 1064, 62 L. Ed. 2d 785 (1980), the Supreme Court of Maine established a test to be applied specifically to eastern tribes, a test that we adopted in Schaghticoke, supra, 217 Conn. 620. See footnote 23 of this opinion. That test, however, has not been applied by any federal court, including the Court of Appeals for the First Circuit.
The state urges us to revisit and reconsider the test set forth in Schaghticoke for determining what constitutes a dependent Indian community. Because it is unnecessary for us to do so for purposes of this appeal, we decline the state’s invitation.
General Statutes § 47-66h (b) provides: “Nothing in this chapter shall be construed, to confer tribal status under federal law on the indigenous tribes named, in section 47-59a, or to confer additional rights of ownership and title to such tribes to land in the state which was not held in trust for such tribes on June 1, 1989.” (Emphasis added.)
The defendant also claims that our decision in Schaghticoke, supra, 217 Conn. 612, controls the outcome of this case. Schaghticoke, however, also is inapposite because it did not involve a criminal prosecution but, rather, a civil action between the plaintiff tribe and its alleged tribal chief in which the state sought to intervene. See footnote 23 of this opinion.
The Second Circuit summarized the relevant history of the federal acknowledgment process as follows: “In 1832 Congress established the position of Commissioner of Indian Affairs (currently within the Department of the Interior) and delegated to the Commissioner the authority to manage all Indian affairs. See Act of July 9, 1832, ch. 174, § 1, 4 Stat. 564 (codified at 25 U.S.C. §§ 1, 2 (1988)). Two years later Congress granted the President authority to ‘prescribe such rules and regulations as he may think fit, for carrying into effect the various provisions of [any act] relating to Indian affairs. . . .’ Act of June 30, 1834, ch. 162, § 17, 4 Stat. 735, 738 (codified as amended at 25 U.S.C. § 1 et seq. (1988)). At the same time Congress established the Department of Indian Affairs, predecessor to the BIA. See Act of June 30, 1834, ch. 162, 4 Stat. 735 (codified as amended at 25 U.S.C. § 9 et seq. (1988)).
“Between 1834 and 1871 Congress continued to deal directly by means of its treaty-making power with American Indian tribes, but in 1871 recognition by treaty ended as Congress terminated its treaty-making authority. See Act of March 3,1871, ch. 120, § 1,16 Stat. 544, 566 (codified at 25 U.S.C. § 71 (1988)). Numerous reasons were advanced for termination of Indian policy based on treaty negotiations. After the War of 1812 the military importance of alliances with Indian tribes was diminished. The movement to end treaty making gained strength as a result of alliances between some of the southern Indian tribes and the Confederacy. The final decision to end treaty making resulted from a movement by members of the House of
'The Department of the Interior did not actively begin to engage in recognition determinations until after the passage of the Indian Reorganization Act of 1934, ch. 576, 48 Slat. 984 (codified as amended at 25 U.S.C. §§ 461-479 (1988)). After passage of the Indian Reorganization Act recognition proceedings were necessary because the benefits created by it were made available only to descendants of ‘recognized’ Indian tribes. See 25 U.S.C. § 479.
“Between 1934 and 1978 the Department of the Interior and the BIA recognized American Indian tribes on a case-by-case basis. See 59 Fed. Reg. 9280, 9280 (1994). In 1978 the Department of the Interior promulgated regulations establishing a uniform procedure for acknowledging American Indian tribes. Id.; see 25 C.F.R. §§ 83.1-83.13 (1994). Under these regulations recognition creates a govemment-to-government relationship between the tribe and the United States, and makes the tribe eligible for those services and benefits available to other federally recognized tribes. See [25 C.F.R.] § 83.2.” Golden Hill, supra, 39 F.3d 57.
The Second Circuit also indicated that if the BIA had not rendered an acknowledgment decision by the expiration of the eighteen month period, the District Court was authorized, absent a showing of good cause why the stay should not be dissolved, to reach the merits of the standing issue. Golden HOI, supra, 39 F.3d 60-61.
Indeed, in discussing the Golden Hill decision, the dissent blurs this distinction between that civil case, which involved the plaintiff tribe’s standing to pursue a claim under the Nonintercourse Act, and existing federal precedent delineating federal criminal jurisdiction over Indians in Indian country.
Of course, the legal and practical difficulties of a stay in a criminal case would be greatly exacerbated in a case in which a defendant was incarcerated pending his or her trial.
Although the dissent contends that the defendant should be given the option of consenting to a stay for an unspecified “reasonable period of time” to allow the BIA to make its determination, we conclude that the dissent’s approach is unworkable. First, we note that, even if a defendant is willing to consent to a prolonged stay in a criminal case to permit the BIA to perform its federal acknowledgment determination, an independent public interest exists in the “disposition of criminal charges with all reasonable dispatch.” (Internal quotation marks omitted.) State v. Beckenbach, 198 Conn. 43, 52 n.5, 501 A.2d 752 (1985). Indeed, “the public interest demands that criminal proceedings be prosecuted with dispatch . . . and the greater the delay between the charge and the trial date, the greater the likelihood that witnesses will be unable to appear or that their memories will have faded and their testimony will be less convincing.” (Citation omitted.) United States v. Tortora, 464 F.2d 1202, 1208-1209 (2d Cir.), cert. denied, 409 U.S. 1063, 93 S. Ct. 554, 34 L. Ed. 2d 516 (1972). Second, under the dissent’s approach, the defendant’s decision whether to consent to a stay would determine whether the trial court applied the doctrine of primary jurisdiction or, in the alternative, decided the federal acknowledgment status of the Paucatuck Eastern Pequot Tribe at the outset. We are aware of no precedent for the proposition that a party, in consenting to a stay, can thereby determine whether a court applies the doctrine of primary jurisdiction. Finally, the dissent, in reaching its conclusion, relies heavily on the alleged facts underlying the defendant’s infraction. See footnote 9 of this opinion. We know of no reason, however, and the dissent suggests none, why the defendant in this case should be treated any differently for purposes of criminal
At oral argument, the defendant conceded that, contrary to the stipulation entered into by the parties in this case, the Paueatuck Eastern Pequot Tribe had not yet entered active consideration status with the BIA but, rather, was first on the waiting list for such consideration. The defendant further represented that, after the tribe finally had entered active consideration at an unspecified point in the future, it then could take more than two years for a determination to be issued by the BIA.
See footnote 18 of this opinion.
See footnote 17 of this opinion.
See footnote 19 of this opinion.
Relying on Mohegan Tribe v. Connecticut, 528 F. Sup. 1359, 1365 (D. Conn. 1982), a land claim brought by the plaintiff tribe under the Nonintercourse Act, the defendant contends that the Paucatuck Eastern Pequot reservation clearly is subject to a restraint upon alienation imposed by the federal government pursuant to the Nonintercourse Act. Because we conclude that the Nonintercourse Act, even if applicable to the Paucatuck Eastern Pequot Tribe, does not preempt the state’s exercise of criminal jurisdiction over the defendant, we express no opinion regarding the Paucatuck Eastern Pequot Tribe’s ability to pursue an action under the Nonintercourse Act.
The trial court addressed the flaw in the logic of the defendant’s argument during its colloquy with defense counsel regarding the defendant’s first motion to dismiss:
“[The Court]: [T]he motion to dismiss is divided into five separate claims of law — five separate paragraphs. The first paragraph states or claims that the State lacked subject matter jurisdiction because the Federal [Indian] Civil Rights Act, which prohibits courts from exercising jurisdiction or any adjudicatory power over claims relating to the rights of possession, ownership, or any other interest of Indian lands, and then it goes on to specify that the state has no authority to adjudicate titles or property rights involving Indian land. Is that your claim? Is that what the claim is?
“[Defense Counsel]: Yes, it is, Your Honor. . . .
“[The Court]: Supposing I went home today and found the Highway Department tearing up my hedges, and I said to them, ‘You’re on my land,’ and they say, ‘No, this is [an] interstate highway or the town highway’ and I get a stick and start beating them over the head and shoulders and I’m arrested for breach of peace. Is there a real estate title problem involved in that?”
The defendant’s repeated attempts to transform this case from a criminal action, resulting from his decision to block access to town property with his vehicle, into a civil action, involving the town’s attempt to alienate Paucatuck Eastern Pequot land, are unavailing. This case is not a civil action between the Paucatuck Eastern Pequot Tribe and the town regarding whether the town had authority to widen the road; it is a criminal action in which the state is prosecuting the defendant for creating a disturbance. The defendant’s underlying reasons for committing this infraction, however compelling, are not at issue in this case.
The defendant failed to present any evidence to the trial court regarding the retained sovereignty of the Paucatuck Eastern Pequot Tribe over criminal matters.
Dissenting Opinion
dissenting. I disagree with the majority’s simplistic answer to the underlying pivotal question before the court
The pertinent facts are not in dispute.
After being charged with breach of the peace, the defendant filed a motion to dismiss, arguing that the trial court lacked subject matter jurisdiction because the state does not have jurisdiction to prosecute him. Specifically, based on the parties’ stipulation that the alleged offense occurred on the reservation and that the Paucatuck tribe is officially recognized by the state of Connecticut, and is under active consideration for formal recognition by the BIA, the defendant argues that only the federal government has jurisdiction to prosecute. Because the defendant is not a member of a tribe that has been formally recognized by the federal government, the trial court denied the defendant’s motion to dismiss, concluding that there was no basis to bar state jurisdiction over the defendant.
The defendant requested that the trial court take judicial notice of several judicially cognizable facts set forth in his brief to this court, including the fact that the state, and previously the colony of Connecticut, had continuously recognized the tribe through legislative acts. The reservation was established by Act of the Colonial Assembly in October, 1683, and the Indian title to this land has never been extinguished. The state has enacted legislation specifically recognizing the autonomy of the Paucatuck tribe. See General Statutes § 47-59a.
In my view, because the rights of the defendant to be tried before a federal court, rather than a state court, are at stake, the defendant is entitled to an adjudication of whether he is an “Indian” for purposes of the Indian Civil Rights Act. Merely because the BIA has failed to act should not be determinative of the trial court’s subject matter jurisdiction.
The majority adopts the bright line approach of the Ninth Circuit Court of Appeals in LaPier v. McCormick, 986 F.2d 303, 305 (9th Cir. 1993), which inquires merely whether a tribe has been federally recognized at the time of the judicial decision, either by looking to the BIA list or to congressional enactments. Conversely, the Second Circuit Court of Appeals, the federal circuit in which this court sits, has recognized that because Congress has created a structured administrative process within the BIA to recognize Indian tribes, the court in the first instance should allow that agency to complete its congressionally delegated task. See Golden Hill Paugussett Tribe of Indians v. Weicker, 39 F.3d 51,
This court previously has recognized that, when there is a conflict among the federal circuit courts of appeal in interpreting federal law, “we generally give special consideration to decisions of the Second Circuit Court of Appeals.” Schnabel v. Tyler, 230 Conn. 735, 743, 646 A.2d 152 (1994); see also Red Maple Properties v. Zoning Commission, 222 Conn. 730, 739 n.7, 610 A.2d 1238 (1992) (“decisions of the federal circuit in which a state court is located are entitled to great weight in the interpretation of a federal statute” [internal quotation marks omitted]). Accordingly, this court should likewise follow the Second Circuit by adopting the procedure established in Golden Hill.
In accordance with the Second Circuit’s conclusion in Golden Hill, the doctrine of primary jurisdiction requires that this court stay the proceedings with the consent of the defendant in order to furnish the BIA with an opportunity to make its determination on Paucatuck’s application. “Primary jurisdiction applies where a claim is originally cognizable in the courts, but enforcement of the claim requires, or is materially aided by, the resolution of threshold issues, usually of a factual nature, which are placed within the special competence of the administrative body.” Golden Hill, supra, 39 F.3d 58-59. “The primary jurisdiction doctrine serves two interests: consistency and uniformity in the regulation of an area which Congress has entrusted to a federal agency; and the resolution of technical questions
If, after a reasonable period of time, the BIA has still not taken definitive action with respect to the Paucatuck tribe, or if the defendant fails to agree to such a stay, the trial court should then determine the status of the Paucatuck tribe.
Accordingly, I would reverse the defendant’s conviction and remand the case to the trial court to determine whether the defendant would consent to a stay until such time as the BIA makes its determination or such other agreed upon time.
Accordingly, I dissent.
I gather that the majority concedes, at least for the purposes of this case, that if the Paucatuck Eastern Pequot Tribe is recognized by the federal government through the Bureau of Indian Affairs, and assuming that the alleged offense occurred in “Indian country,” then the state would not have jurisdiction. Rather, the jurisdiction to prosecute in that case would be with the federal government. With regard to the location where the alleged infraction took place, the state and the defendant stipulated as follows: “The land where the alleged infraction took place is the . . . Paucatuck Eastern Pequot Reservation.”
Absent an express congressional grant of criminal jurisdiction to a state, criminal activity that has taken place by or against “Indians” in “Indian country” is generally exempt from state jurisdiction. See 18 U.S.C. § 1151; United States v. John, 437 U.S. 634, 651, 98 S. Ct. 2541, 57 L. Ed. 2d 489 (1978). Section 1321 of the Indian Civil Rights Act provides that states are authorized to assume criminal jurisdiction over offenses committed by or against “Indians” in “Indian country,” but only with the consent of the Indian tribe occupying the Indian country, which has not been granted in this case.
The parties in this appeal have agreed that the term “Indian” in the Indian Civil Rights Act has the same meaning under the Indian Country Crimes Act, 18 U.S.C. § 1152, and the Indian Major Crimes Act, 18 U.S.C. § 1153. In order for an individual to be considered an “Indian,” courts have adhered to a two-pronged test: (1) whether the individual has a significant amount of Indian blood; and (2) whether the individual has been recognized, either federally or tribally, as an Indian. See United States v. Dodge, 538 F.2d 770, 786 (8th Cir. 1976), cert. denied, 429 U.S. 1099, 97 S. Ct. 1119, 51 L. Ed. 2d 547 (1977); see also United States v. Rogers, 45 U.S. (4 How.) 567, 11 L. Ed. 1105 (1846). The state does not contest the fact that the defendant meets the first prong of the test.
25 U.S.C. §§ 1301 through 1341.
The majority contends that the state has never conceded these facts. To the contrary, the state has not contested the accuracy of these facts that were set forth in the defendant’s brief.
General Statutes § 47-59a provides: “(a) It is hereby declared the policy of the state of Connecticut to recognize that all resident Indians of qualified Connecticut tribes are considered to be full citizens of the state and they are hereby granted all the rights and privileges afforded by law, that all of Connecticut’s citizens er\joy. It is further recognized that said Indians have certain special rights to tribal lands as may have been set forth by treaty or other agreements.
“(b) The state of Connecticut further recognizes that the indigenous tribes, the Schaghticoke, the Paucatuck Eastern Pequot, the Mashantucket Pequot,
Indeed, defense counsel represented to the court at oral argument that the Paucatuck tribe’s application is currently first on the waiting list for consideration by the BIA.
“The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings. . . . If at any point, it becomes apparent to the court that such jurisdiction is lacking, the appeal must be dismissed.” (Internal quotation marks omitted.) State v. Anonymous, 240 Conn. 708, 718, 694 A.2d 766 (1997).
The majority attempts to make much of the fact that Golden HiU was a civil action, and the present case is a criminal action. I am bewildered by this alleged distinction in light of the basic fact that a tribe that is officially acknowledged by the BIA is just as much an “Indian tribe” for purposes of criminal jurisdiction as it is for civil matters.
The majority argues that “[a] lengthy stay like that imposed by the Second Circuit in Golden Hill likely would run afoul of a defendant’s constitutional and statutory speedy trial rights.” The majority, however, presupposes that the defendant would be unwilling to consent to a stay. Furthermore, the majority claims that “the legal and practical difficulties of a stay in a criminal case would be greatly exacerbated in a case in which a defendant was incarcerated pending his or her trial.” These perceived difficulties, however, have no relevance to whether a stay should be ordered in this case because the defendant clearly is not incarcerated and the charge is merely an infraction.
Moreover, the majority argues that, even if the defendant were willing to consent to a stay, the public interest in speedy disposition of criminal charges counsels against such a stay. In my view, the defendant’s right to be tried before a federal court outweighs any such public interest with respect to this breach of peace charge. Additionally, this court cannot be blind to the defendant’s motive that resulted in his arrest — the preservation of the reservation. Finally, as I point out in this dissent, if the defendant fails to consent to the stay or if the stay would be impractical or for some other reason would not be appropriate, then the doctrine of primary jurisdiction evaporates and the trial court would determine the status of the tribe. See Golden Hill, supra, 39 F.3d 60-61.
I find significant the underlying factual predicate of the infraction — that is, the alleged breach of the peace — results from the defendant’s attempt to prevent the road crew from disturbing an area that contained sensitive archaeological remains. In view of the factual predicate of the infraction, the fact that the Paucatuck tribe has been recognized since time immemorial by the colony, and now by the state, and that a decision is forthcoming by the BIA, the prudent action in this case requires that we stay our proceedings.
