State v. Sebastian, 15434

CourtSupreme Court of Connecticut
Citation243 Conn. 115,701 A.2d 13
Decision Date02 September 1997
Docket NumberNo. 15434,15434
PartiesSTATE of Connecticut v. Mark R. SEBASTIAN.

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701 A.2d 13
243 Conn. 115
STATE of Connecticut
No. 15434.
Supreme Court of Connecticut.
Argued May 27, 1997.
Decided Sept. 2, 1997.

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William S. Bingham, with whom was Beth A. Hogan, Old Lyme, for appellant (defendant).

Kevin T. Kane, State's Attorney, with whom was Sarah Steere, Deputy Assistant State's attorney, for appellee (State).

Richard Blumenthal, Attorney General, and David H. Wrinn and Susan Quinn Cobb, Assistant Attorneys General, filed a brief for the attorney general as amicus curiae.

[243 Conn. 117] Christopher F. Droney, United States Attorney, and Carl J. Schuman, Assistant United States Attorney, filed a brief for the United States of America as amicus curiae.


PALMER, Associate Justice.

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). 2 The defendant, Mark R. Sebastian, a member of the Paucatuck Eastern Pequot Tribe, 3 was [243 Conn. 118] charged with breach of

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the peace in violation of General Statutes § 53a-181, 4 for conduct stemming from an incident on tribal property in the town of North Stonington. After the trial court denied the defendant's motion to dismiss, which challenged the court's subject matter jurisdiction over his arrest and prosecution, the defendant entered a conditional plea of nolo contendere under General Statutes § 54-94a and Practice Book § 4003 5 to a substitute information charging him with [243 Conn. 119] creating a public disturbance in violation of General Statutes § 53a-181a. 6 The trial court accepted the plea and rendered judgment thereon. 7 The defendant appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c). We affirm the judgment of the trial court.

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. 8 According to the state, the defendant was arrested after he had parked his automobile so as to block the grader that was being used by a road crew to widen the road, thereby obstructing the crew's activities and creating a hazard for other drivers. The defendant, who claims to be vice-chairman of the "Eastern Pequot Tribe" and [243 Conn. 120] a resident of the Paucatuck Eastern Pequot reservation, has maintained that the town had no right to widen the road without tribal consent

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and, further, that he had given the road crew a cease and desist order in his official capacity as tribal vice-chairman. 9

On December 13, 1993, the defendant moved to dismiss the charge, claiming, inter alia, 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. 10 For purposes of the hearing, the state and the defendant entered into the following stipulation: "(1) The land on which the alleged infraction took place is the Eastern Pequot also known as the Paucatuck Eastern Pequot Reservation. [243 Conn. 121] (2) The Eastern Pequot Tribe, also known as the Paucatuck Eastern Pequot Tribe, is recognized by the State of Connecticut as one of the five indigenous Indian Tribes in the State of Connecticut. 11 (3) This Tribe has not been ... federally [acknowledged as a] Tribe pursuant to 25 Code of Federal Regulations Part 83 although an application for such [acknowledgment] was filed in 1989 and is in active consideration status with the [BIA]." The trial court, upon reconsideration of the defendant's motion to dismiss, reaffirmed its earlier ruling on that motion. The defendant thereafter entered a plea of nolo contendere to the charge of creating a public disturbance, conditioned upon his right to appeal the court's determination that the state had criminal jurisdiction over him.

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 12 and, consequently, that he

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was an "Indian" for [243 Conn. 122] purposes of state law. The trial court further stated that "[a]ll of the defendant's arguments are without merit since he has failed to show any federal [acknowledgment] of the tribe or its reservation. The only evidence before the court indicates that the Paucatuck Eastern Pequot Tribe is an entity recognized solely by the [s]tate of Connecticut which has criminal jurisdiction in this matter." 13

On appeal, the defendant reasserts the federal preemption and tribal sovereignty claims that he advanced [243 Conn. 123] in support of his motion to dismiss. 14 Because we agree with the trial

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court that the state has criminal jurisdiction over the defendant, we affirm the judgment of the trial court.

Article first, § 8, of the United States constitution provides in relevant part that "[t]he Congress shall have [243 Conn. 124] Power ... [t]o regulate Commerce ... with the Indian Tribes...." Thus, criminal offenses committed by or against members of such "Indian Tribes" in "Indian country"; see footnote 22; "ordinarily have been subject only to federal or tribal laws ... except where Congress in the exercise of its plenary and exclusive power over Indian affairs has expressly provided that [s]tate laws shall apply...." (Citations omitted; internal quotation marks omitted.) State v. Spears, 234 Conn. 78, 84-85, 662 A.2d 80, cert. denied, --- U.S. ----, 116 S.Ct. 565, 133 L.Ed.2d 490 (1995); see also Washington v. Confederated Bands and Tribes of Yakima Indian Nation, 439 U.S. 463, 470-71, 99 S.Ct. 740, 746-47, 58 L.Ed.2d 740 (1979). Accordingly, the jurisdictional claims raised by the defendant "[implicate] two separate principles. The first is the extent to which Congress has preempted the field by exercising direct control over the [Paucatuck Eastern Pequot] Indians pursuant to its powers set out in [article first, § 8, of the] federal constitution, and the second is the extent to which the [Paucatuck Eastern Pequot] Indians have retained a residual and demonstrable tribal sovereignty as [acknowledged] 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 ... and the semi-independent position of Indian tribes have given rise to two independent but related barriers to the assertion [243 Conn. 125] of state ... authority over tribal reservations and members. First, the exercise of such authority may be [preempted] by federal law.... Second, [the state action] 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. [Id. at], 142-43 [100 S.Ct. at 2582-84]." (Citations omitted; internal quotation marks omitted.) Schaghticoke Indians of Kent, Connecticut, Inc. v. Potter, 217 Conn. 612, 617-18, 587 A.2d 139 (1991) (hereinafter Schaghticoke ). Because the defendant would prevail on his claim that the state lacks the authority to prosecute him if he could establish either of these jurisdictional claims, we address each in turn.


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 15 that set forth the process by which a state may assume jurisdiction over criminal offenses by or against "Indians" in "Indian country"; see 25 U.S.C. §§ 1321(a), 1326; 16 are [243 Conn. 126] applicable to him because he is an "Indian" within the meaning of the Indian

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Civil Rights Act and because his alleged infraction was committed in "Indian country" as that term is used in this act. The defendant further claims that, because the state has never satisfied the requirements for assuming criminal jurisdiction under the Indian Civil Rights Act with respect to the Paucatuck Eastern Pequot Tribe, the state lacks jurisdiction to prosecute him. Second, the defendant contends that, even if we were to conclude that the Indian Civil Rights Act does not apply to preempt his state criminal prosecution, it nevertheless is barred under the facts of this case by the Indian Trade and Intercourse Act of 1790 (Nonintercourse Act), 17 25 U.S.C. § 1322(b), 18...

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