Schaghticoke Indians of Kent, Conn., Inc. v. Potter

Decision Date05 March 1991
Docket NumberNo. 14005,14005
Citation587 A.2d 139,217 Conn. 612
CourtConnecticut Supreme Court

Grace M. Dodier, Asst. Atty. Gen., with whom were Robert B. Teitelman and Joseph Rubin, Asst. Attys. Gen., and, on the brief, Clarine Nardi Riddle, then Atty. Gen., for appellants (intervening plaintiffs).

William R. Breetz, with whom were Iris J. Brown and, on the brief, Lewis K. Wise, Hartford, amici curiae.

Richard B. Stewart, Asst. Atty. Gen., Stanley A. Twardy, Jr., U.S. Atty., New Haven, Carl Schuman, Asst. U.S. Atty., New London, Robert L. Klarquist and Edward J. Shawaker, Washington, D.C., filed a brief, for U.S. as amicus curiae.

Julia T. Bradley, New Haven, filed a brief, for Indian Law Project as amicus curiae.


COVELLO, Associate Justice.

This appeal concerns the right of the state of Connecticut to intervene in a dispute between an Indian tribe and its alleged tribal chief. The dispositive issue is whether Connecticut courts can exercise civil jurisdiction over actions involving only Schaghticoke Indians and relating solely to the Schaghticoke reservation. This, in turn, depends on: (1) whether federal law preempts the exercise of state civil jurisdiction over the Schaghticoke reservation; or (2) whether the residual sovereignty of the Schaghticoke tribe acts as an independent bar created by federal law to the jurisdiction of the state courts. We conclude that the record is inadequate to determine either issue and therefore remand the case to the trial court for further proceedings.

On September 22, 1987, the plaintiff, Schaghticoke Indians of Kent, Connecticut, Inc., filed a complaint in the Superior Court seeking damages from the defendant Potter 1 and the defendant Russell. The complaint alleged that on September 29, 1984, Alan Russell, claiming to be the chief of the Schaghticoke Indian Tribe, signed a contract with Keith Potter, a non-Indian. In the contract Russell authorized Potter to cut and remove 30,000 board feet of timber in a manner designed to preserve the integrity of the Indian reservation. The complaint further alleged that Potter had cut in excess of 250,000 board feet of timber and had caused significant collateral damage to reservation lands. The plaintiff further claimed that the defendant Russell had failed to account for the proceeds for the sale of the timber and had failed to obtain the consent and approval of the tribal council to the contract.

On July 29, 1988, the state of Connecticut and the Department of Environmental Protection (DEP) moved to intervene claiming that, pursuant to General Statutes 47-65, the commissioner of the DEP had the duty to protect Indian reservation land and to assure that the value of the lost timber was placed in the tribal fund accounts.

On March 7, 1989, Russell moved to dismiss the action, claiming that the predicate acts took place on an Indian reservation and involved members of an Indian tribe. Russell claimed that, because this was wholly an internal tribal dispute, the trial court lacked subject matter jurisdiction. The trial court granted the motion to dismiss, concluding that Connecticut had failed to assume jurisdiction over the Schaghticoke reservation pursuant to the relevant federal procedures and, therefore, that the court lacked the requisite authority to hear the case. The 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 appeal what is allegedly an internal Indian tribal dispute; 3 and (2) whether the Connecticut courts have civil jurisdiction over the state's Indian tribes and reservations.


The original plaintiff declined to appeal the judgment of the trial court. It is, therefore, incumbent on the state, as intervenor, to demonstrate that it has standing to maintain this appeal. Diamond v. Charles, 476 U.S. 54, 68, 106 S.Ct. 1697, 1706, 90 L.Ed.2d 48 (1986). Standing is present "when a complainant makes a colorable claim of [a] direct injury he has suffered or is likely to suffer, in an individual or representative capacity." Maloney v. Pac, 183 Conn. 313, 321, 439 A.2d 349 (1981). The state and the DEP claim a personal stake in the outcome of the controversy because it is required, under General Statutes §§ 47-65 and 47-66, to preserve the state's Indian reservations and tribal funds.

General Statutes 47-59a, as amended by Public Acts 1989, No. 89-368 states, in relevant part, that: "The state of Connecticut further recognizes that ... the Schaghticoke ... [is a] self-governing [entity] possessing powers and duties over tribal members and reservations. Such powers and duties include the power to ... (4) make contracts, and (5) determine tribal leadership in accordance with tribal practice and usage." Thus, were this enactment controlling, the state's general supervisory authority over Indian affairs pursuant to § 47-65 would be subordinated to the specific authority granted to the Schaghticoke by Public Act No. 89-368.

The actions of the defendants that allegedly caused injury to the reservation, however, took place on September 29, 1984, before the passage of Public Act No. 89-368 amending § 47-59a. "General Statutes § 1-1(u) provides that '[t]he passage or repeal of an act shall not affect any action then pending.' We have construed that provision to mean that '[s]tatutes should be construed retroactively only when the mandate of the legislature is imperative.' " Sherry H. v. Probate Court, 177 Conn. 93, 100, 411 A.2d 931 (1979). Because there is no language in the statute or its legislative history suggesting that the legislature intended Public Act No. 89-368 to have retroactive application, we conclude that it is not controlling in this case.

Because Public Act No. 89-368, granting legislative power to the Schaghticoke tribe, is not applicable here, we conclude that the state, through the commissioner, had the statutory obligation to oversee the Schaghticoke reservation. Section 47-65(a) states, in relevant part, that "[t]he commissioner of environmental protection ... shall have the care and management of [Indian] reservation lands." Further, § 47-66 adds that "[t]ribal funds shall be under the care and control of the commissioner of environmental protection...." Because the complaint alleges that the defendant "has failed to account for all of the sums of money" involved and has caused "serious" damage to the reservation, and because the DEP is responsible under the statute for damage to the reservation and misuse of tribal funds, we conclude that the state and the commissioner had standing and are thus authorized to appeal.


The remaining certified question, however, is whether the state of Connecticut has civil jurisdiction over Indian tribal matters arising within the state. Jurisdiction over Indian tribes and reservations implicates two separate principles. The first is the extent to which Congress has preempted the field by exercising direct control over the Schaghticoke Indians pursuant to its powers set out in the federal constitution, 4 and the second is the extent to which the Schaghticoke Indians have retained a residual and demonstrable tribal sovereignty as recognized by federal case law. White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 144, 100 S.Ct. 2578, 2584, 65 L.Ed.2d 665 (1980).

"This congressional authority [pursuant to Art I, § 8, cl. 3] and the 'semi-independent position' of Indian tribes have given rise to two independent but related barriers to the assertion of state regulatory authority over tribal reservations and members. First, the exercise of such authority may be pre-empted by federal law.... Second, [a state enactment] may unlawfully infringe 'on the right of reservation Indians to make their own laws and be ruled by them.' ... The two barriers are independent because either, standing alone, can be a sufficient basis for holding state law inapplicable to activity undertaken on the reservation or by tribal members." (Citations omitted.) White Mountain Apache Tribe v. Bracker, supra, at 142-43, 100 S.Ct. at 2582-83.

Federal Preemption

In 1953, Congress passed Public Law 83-280; 67 Stat. 588, Eighty-Third Congress, codified at 18 U.S.C. § 1162 and 28 U.S.C. § 1360; in an effort to regulate the assumption of state jurisdiction over Indian tribes. 5 As a threshold matter, the state argues that federal Public Law 83-280 does not preempt state civil jurisdiction over the Schaghticoke reservation because this law only applies to federally recognized "Indian country." The state argues that neither the Schaghticoke tribe nor their reservation have ever been recognized by the federal government and therefore that 18 U.S.C. § 1162 and 28 U.S.C. § 1360 do not apply.

"Indian country" under 18 U.S.C. § 1151(b) is defined as "all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state." (Emphasis added.) No federal statute defines "dependent Indian community."

Courts have developed two distinctly different tests for deciding whether a given group of Indians constitutes a dependent Indian community for the purposes of federal law. State v. St. Francis, 151 Vt. 384, 386-87, 563 A.2d 249 (1989). The first test is the one set out 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). An alternative test is found in United States v. Martine, 442 F.2d 1022 (10th Cir.1971), and United States v. South Dakota, 665 F.2d 837 (8th Cir.1981). Under this alternative test a court is required to...

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