Schaghticoke Indians of Kent, Connecticut, Inc. v. Potter
Decision Date | 16 May 1990 |
Docket Number | No. 7919,7919 |
Citation | 577 A.2d 719,22 Conn.App. 229 |
Court | Connecticut Court of Appeals |
Parties | SCHAGHTICOKE INDIANS OF KENT, CONNECTICUT, INC., et al. v. Keith POTTER et al. |
Grace M. Dodier, Asst. Atty. Gen., with whom, on the brief, were Clarine Nardi Riddle, Atty. Gen., and Robert E. Walsh, Asst. Atty. Gen., for appellees (intervening plaintiffs).
Before BORDEN, FOTI and LAVERY, JJ.
This case arises from a contract action that the plaintiff, the Schaghticoke Indians of Kent, Connecticut, Inc. (the Schaghticoke Indians), instituted against the defendants Keith Potter and Alan Russell. The complaint alleged that a contract for the sale of timber between Potter, an independent logger, and Russell, a member of the Schaghticoke Indians, had resulted in substantial damage to the Schaghticoke tribal reservation. After commencement of the suit, the state of Connecticut and the commissioner of environmental protection (the state) received permission to intervene as plaintiffs. Thereafter, the defendant Russell moved to dismiss the action, arguing that the Superior Court lacked civil jurisdiction over an Indian tribal dispute. The trial court granted the motion and, in its memorandum of decision, characterized the dispute as concerning whether Russell is actually the tribal chief, with authority to enter into contracts on behalf of the tribe. The tribe, however, does not deny in its complaint that Russell is the tribal chief. The tribe alleges only that, as chief, Russell failed to obtain the consent and approval of the tribal counsel before entering into the contract with the defendant, Potter. The tribe alleges that the defendants acted in concert in deforesting the tribe's reservation. The state has brought this appeal. Neither the original plaintiff, the Schaghticoke Indians, nor the defendants here have joined in the appeal, filed a brief or appeared at argument.
The disposition of this appeal depends on whether the state has a sufficient interest in the outcome of the case to entitle it to bring an appeal in the absence of the Schaghticoke Indians. In Diamond v. Charles, 476 U.S. 54, 68, 106 S.Ct. 1697, 1706, 90 L.Ed.2d 48 (1986), the United States Supreme Court held that an intervenor's right to continue a suit in the absence of the party on whose side intervention was permitted is contingent upon a showing by the intervenor that he or she has standing. Under Connecticut law, a party may not appeal from the final judgment of a court unless that party is aggrieved. Practice Book § 4000; Nye v. Marcus, 198 Conn. 138, 141-42, 502 A.2d 869 (1985). The state's claim to aggrieved party status is based upon General Statutes § 47-65(a), which provides, inter alia, that the commissioner of environmental protection is responsible for the care and management of Indian reservation land. We hold that the state is not an aggrieved party because the state lacks legislative jurisdiction to regulate the Schaghticoke Indians.
One obstacle to state jurisdiction over Indians is the notion of tribal sovereignty. Prior to the Revolutionary War, England recognized Indian tribes as sovereign, but subjugated, nations. Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 544-45, 8 L.Ed. 483 (1832). In Worcester, Chief Justice John Marshall held that the treaties and laws of the Union concerning Indians "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." Id., at 31 S.Ct. at 557. It is clear from Justice Marshall's opinion that after the war, the view of Indian tribes as sovereign nations continued. According to Marshall, the exercise of state jurisdiction over an Indian tribe would be valid only "with the assent of [the tribe itself] or in conformity with treaties and with acts of Congress." Id., at 560.
Article I, § 8, cl. 3, of the United States constitution gives Congress plenary authority over Indian affairs. 1 Pursuant to that authority, Congress in 1953 enacted Public Law 83-280 2 to enable states to assume the federal government's role and acquire jurisdiction over Indian matters. This legislation was enacted out of "congressional concern over law-and-order problems on Indian reservations and the financial burdens of continued federal jurisdictional responsibilities on Indian lands...." Washington v. Yakima Indian Nation, 439 U.S. 463, 488, 99 S.Ct. 740, 755, 58 L.Ed.2d 740 (1979).
Public Law 83-280 granted criminal and civil jurisdiction over Indian affairs outright to five states, 3 and, for the remainder of the states, the act set out certain procedures that must be followed before jurisdiction over Indians could be exercised. 4 If a state not expressly granted jurisdiction fails to follow the procedure set out in the act, then the state does not have jurisdiction over Indians. Kennerly v. District Court of Montana, 400 U.S. 423, 91 S.Ct. 480, 27 L.Ed.2d 507 (1971); Nenna v. Moreno, 132 Ariz. 565, 566, 647 P.2d 1163 (1982). The state of Connecticut failed to acquire civil jurisdiction over Indian affairs under Public Law 83-280 through compliance with § 7 of the act. The Connecticut General Assembly would have had to bind the state to assumption of civil jurisdiction by affirmative legislation.
After 1968, Connecticut could no longer assume civil jurisdiction over Indian affairs simply by passing legislation. In that year, Congress passed the Indian Civil Rights Act. 5 Section 403 of the 1968 Act repealed § 7 of Public Law 83-280. See 25 U.S.C. § 1323(b). Sections 401 and 402 of the 1968 Act replaced § 7 of Public Law 83-280. See 25 U.S.C. § 1321(a) and § 1322(a). Under § 402 of the 1968 Act, Connecticut could only assume civil jurisdiction over Indian affairs through the consent of the Indian tribes involved. 6
States that acquired jurisdiction over Indian affairs under § 7 of Public Law 83-280 prior to its repeal in 1968 are exempt from the requirement of obtaining tribal consent. 7 Section 403 of the 1968 Act expressly provides that the repeal of § 7 of Public Law 83-280 "shall not affect any cession of jurisdiction made pursuant to such section prior to its repeal." 25 U.S.C. § 1323(b); see also Kennerly v. District Court of Montana, supra, 400 U.S. at 426 n. 2, 91 S.Ct. at 481 n. 2.
We hold for the following reasons that the state of Connecticut has failed to acquire civil jurisdiction over the Indian tribes within its borders under the federal statutes. There is no jurisdiction under the Indian Civil Rights Act as the trial court found that the state never obtained the consent of the Schaghticoke tribe pursuant [22 Conn.App. 236] to 25 U.S.C. § 1326. Between the years of 1953 and 1968, when Public Law 83-280 was in effect, the state could have acquired civil jurisdiction through affirmative legislation, but the Connecticut General Assembly did not pass such legislation during those years.
The Connecticut statutes regarding Indian tribes are insufficient to confer civil jurisdiction under § 7 of Public Law 83-280. Under the former General Statutes (Rev. to 1958) § 47-59, entitled "Overseer of Indians," the welfare commissioner was authorized to act as overseer of all Indian tribes residing within the state. Section 6 of Public Acts 1961, No. 304 8 repealed General Statutes (Rev. to 1958) § 47-59. Section 4 of Public Acts 1961, No. 304, 9 which replaced former General Statutes § 47-59, provided in relevant part: In 1973, General Statutes § 47-65 was amended by Public Acts 1973, No. 73-660. Among other changes, the act substituted the commissioner of environmental protection in the place of the welfare commissioner. 10 See Rolling Cloud v. Gill, 412 F.Supp. 1085 (D.Conn.1976).
Although Public Acts 1961, No. 304, was enacted in 1961, while Public Law 83-280 was still in effect, there are several reasons why the state of Connecticut did not acquire civil jurisdiction over Indian tribes through that statute. First, Public Acts 1961, No. 304, makes no mention of Public Law 83-280, which shows that Public Acts 1961, No. 304 was not enacted for the purpose of acquiring civil jurisdiction pursuant to the federal legislation. Second, Public Acts 1961, No. 304, does not call for the assumption of civil jurisdiction over all controversies that may arise in Indian country, but is instead limited to the assumption of jurisdiction over questions "in regard to admission to or eviction from a reservation." Finally, to hold that Connecticut has acquired civil jurisdiction over Indian tribes pursuant to Public Acts 1961, No. 304, would contradict the decision of the Connecticut federal district court in Mashantucket Pequot Tribe v. McGuigan, 626 F.Supp. 245 (D.Conn.1986).
In Mashantucket Pequot, the court held that the state of Connecticut did not have jurisdiction to enforce its bingo statute; General Statutes § 7-169; on the reservation of the Western Pequot Tribe. Pursuant to the Connecticut Indian Land Claims Settlement, 11 the state acquired criminal jurisdiction, but not civil-regulatory jurisdiction, over the tribe. 25 U.S.C. § 1755. The court characterized General Statutes § 7-169 as civil-regulatory, as opposed to criminal, in nature, and therefore held that the statute was unenforceable on the reservation.
The Mashantucket Pequot case stands for the proposition that Connecticut does not have civil-regulatory jurisdiction over Indians in Indian country. General Statutes § 47-65 is...
To continue reading
Request your trial-
Schaghticoke Indians of Kent, Conn., Inc. v. Potter
...state and the DEP appealed to the Appellate Court which dismissed the appeal. 2 Schaghticoke Indians of Kent, Connecticut, Inc. v. Potter, 22 Conn.App. 229, 577 A.2d 719 (1990). We granted certification limited to the following issues: (1) whether the state, as intervenor, has the right to ......
-
Schaghticoke Indians of Kent, Conn., Inc. v. Potter
...of Connecticut's and commissioner of environmental protection's petition for certification for appeal from the Appellate Court, 22 Conn.App. 229, 577 A.2d 719, is granted, limited to the following "1. Do the Connecticut courts have civil jurisdiction over the state's Indian tribes and reser......
-
1990 Connecticut Supreme Court Review
...lO44(1990)(No 1 ); Greger v. Greger, 22 Conn. App. 596,578 A.2d ME (O'Connell) cert. denied, 216 Conn. 820,581 A.2d 1055 (1990). 41. 22 Conn. App. 229, 16, cert. granted, 215 Conn. 816,576 A.2d 545 (1990). 42. 22 Conn. App. 610,579 A.2d 532, cert. granted, 216 Conn. 825 582 A.2d 203 (1990).......