February 7, 2002
EFFECT OF STATE RECOGNITION OF AN INDIAN TRIBE
By: Christopher Reinhart, Associate Attorney
You asked about the effect of state recognition of an Indian tribe, specifically (1) whether these tribes or their members are immune from civil suits or criminal prosecution in Connecticut courts, (2) whether these tribes are subject to state taxation, and (3) whether the state provides aid to these tribes.
The Office of Legislative Research is not authorized to issue legal opinions and this report should not be viewed as one.
Connecticut statutes recognize five tribes: (1) Golden Hill Paugussett, (2) Mashantucket Pequot, (3) Mohegan, (4) Paucatuck Eastern Pequot, and (5) Schaghticoke. The Mashantucket Pequot and Mohegan tribes are also federally recognized. We do not discuss the rights and immunities conferred by federal recognition of a tribe.
State criminal laws apply to Indians and reservations of tribes that are recognized by state statutes. The Connecticut Supreme Court ruled, in a case involving a member of the Paucatuck Eastern Pequot Tribe, that state criminal law applies to an Indian who is a member of a state tribe, even for a crime committed on the reservation. The court considered whether federal law or tribal sovereignty preempted state criminal law and found that neither prevented criminal prosecution in the case.
Connecticut also appears to have civil jurisdiction over state recognized tribes and their members. The statutes do not specify whether Indians, Indian tribes, or reservations are subject to Connecticut's civil jurisdiction. According to the Office of the Attorney General, the state presumes it has jurisdiction unless a court declares otherwise. The Connecticut Supreme Court has stated that courts cannot interfere in certain areas of tribal self-government such as tribal membership.
No statute grants these tribes sovereign immunity. But in one unpublished case, the superior court ruled that the Paucatuck Eastern Pequot Tribe had sovereign immunity and could not be sued on an agreement between the tribe and a corporation. This case is not binding on other courts and the parties have filed briefs on a motion to reargue in this case. We could not find any other Connecticut cases reaching this conclusion.
State reservation land and motor vehicles owned by members of "an indigenous Indian tribe or spouse garaged on the reservation of the tribe" are exempt from property tax by statute. No other statute exempts Indians from state taxation and it appears that tribes and their members are subject to all other taxes. In one unpublished superior court case, the court ruled that the sale of cigarettes on a reservation was subject to the state cigarette tax because the statutes did not provide an exemption. This case was not appealed and we could not find any other cases on this issue.
The state does not have any specific benefit programs for Indians because they are members of a state-recognized tribe. The Department of Environmental Protection (DEP) is responsible for maintaining the reservations and buildings on them (see OLR Report 2002-R-0072 for more information on DEP's responsibilities and laws governing the tribes). In addition, some federal benefits and programs may be available to individual Indians or groups or tribes, whether or not they are recognized by the federal or state government.
OLR Report 2002-R-0072 discusses the five state tribes, Connecticut statutes on Indians, and the location of reservations in Connecticut.
CIVIL AND CRIMINAL JURISDICTION
State statutes do not specify whether tribes recognized by the state statues, their members, or their reservations are subject to state civil or criminal jurisdiction. Connecticut courts have primarily considered two issues when deciding whether they have jurisdiction: (1) whether federal law applies to preempt the application of state law and (2) whether the court action would infringe on an area of tribal sovereignty.
State criminal law applies to Indians and reservations of tribes recognized by state statutes. In a case involving a member of the Paucatuck Eastern Pequot Tribe, the Connecticut Supreme Court ruled that state criminal law applies to an Indian who is a member of a tribe recognized by state statute, even for a crime committed on the reservation. The court considered (1) whether Congress preempted state law under its constitutional authority to regulate Indian affairs and (2) whether the tribe had any "residual and demonstrable tribal sovereignty under federal case law" that prevented the application of state law. The court ruled that neither prevented a state prosecution in this case (State v. Sebastian, 243 Conn. 115 (1997)).
The court first looked at the Federal Indian Civil Rights Act of 1968, which provides a procedure for states to assume jurisdiction over criminal offenses by or against "Indians" in "Indian country. " The defendant argued that this act applied to him and the state never assumed jurisdiction. The court ruled that because the defendant was not a member of a tribe acknowledged by the federal government, he did not qualify as an "Indian" under the Civil Rights Act and the act did not apply.
The court discussed federal court decisions that rely on membership in a federally recognized tribe as an important part of whether someone is an Indian under federal law. The court did not find any cases where someone was considered an Indian for purposes of federal criminal jurisdiction when he had not alleged membership or affiliation with a federally recognized tribe. The court stated that federal recognition is a political question and recognition "is the very essence of the government-to-government relationship that underlies federal criminal jurisdiction. " The court also discussed the difficulties of a state court determining the status of an Indian tribe under federal law. It also stated that the state's decision to recognize the tribe based on the state's relationship with the tribe did not give any support to the claim that the tribe was entitled to federal recognition.
The court then discussed tribal sovereignty. The court stated, "Any action by a state court that infringed on tribal sovereignty or interfered in tribal self-government would...be improper. " But the court added that "tribal sovereignty does not impede state court jurisdiction unless the exercise of state court jurisdiction in [the] case would interfere with the right of tribal Indians to govern themselves under their own laws" (citing a U. S. Supreme Court case). The court stated that even if it assumed that the tribe retained sovereignty over criminal matters, its sovereignty was not implicated because the tribe did not bring charges against the defendant and it was not a party to the case. The court also rejected the defendant's claim because "tribal sovereign immunity does not extend to individual members of a tribe, and instead must be asserted by the tribe itself. "
Connecticut also appears to have civil jurisdiction over Indians from tribes recognized by state statute. But courts cannot interfere in certain areas of self-government, such as tribal membership. In two Connecticut Supreme Court cases, the court discussed this issue.
In one case, the Golden Hill Paugussett tribal council intervened in a law suit claiming that the person bringing the suit did not have authority to sue on behalf of the tribe. The court stated that it could not interfere with tribal sovereignty and tribal self-government because federal and state law protect self-government. But the court stated that tribal sovereignty does not make all matters relating to tribal decisions nonjudiciable. If state court jurisdiction is compatible with tribal autonomy, the court stated that judicial action is not only permitted but may be required.
The court stated that its authority to determine tribal membership is limited by Connecticut's statutes that give the tribe the ability to do so. But the court has the power to determine whether it has jurisdiction in a case. The court dismissed the case, stating that by determining whether the suit was authorized by the tribe, it preserved the tribe's autonomy to choose its own government and it enforced the tribe's decision not to sue (Golden Hill Paugussett Tribe of Indians v. Southbury, 231 Conn. 563 (1995)).
In an earlier case, the court considered whether state courts had jurisdiction in a case involving Schaghticoke Indians and relating solely to their reservation. The case involved a dispute between the tribe and its purported chief.
The court stated that "...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 must be a tribe that exists as a distinct cultural or ethnic group. Additionally, the tribe must have a form of demonstrable sovereignty or functioning self-government. Further, the state act in question must actually infringe on some exercise of tribal government or existing tribal legislation. " The court did not decide this issue because it did not have the necessary facts before it and it sent the case back to the trial court.
The court also discussed federal law. The court stated that federal law preempts state jurisdiction in "Indian country," which includes "dependent Indian communities. " The statute does not define a "dependent Indian community" and the court adopted a test used by the Maine Supreme Court to determine if the law applied to a tribe. Under this test, federal law applies if the tribe: (1) is a bona fide tribe of Indians and (2) has inhabited the land, had "Indian title" to it since 1790, and has maintained the same status and nature of occupancy from 1790 to the time the cause of action arose. The court did not decide this issues either and sent it back to the trial court (Schaghticoke Tribe of Kent, Connecticut, Inc. v. Potter, 217 Conn. 612 (1991))
The ruling on criminal jurisdiction in Sebastian may call into question the validity of the test adopted to determine whether a tribe is a "dependent Indian community. " In Sebastian, the court declined to reconsider the test because it did not need to determine this question. But in a footnote the court stated that no federal courts have applied that test. In addition, the court's reliance on federal recognition in Sebastian for determining whether federal law applies is a different approach than that taken by the court in Schaghticoke.
No statute grants state recognized tribes sovereign immunity. One recent unpublished Superior Court opinion ruled that a state tribe had sovereign immunity in a suit brought by a corporation over an agreement. The court's ruling is not binding on other courts and the parties have field briefs on a motion to reargue in this case. In addition, the state was not a party to this case and it is not bound by the ruling. We did not find any other cases in Connecticut reaching this conclusion.
In this case, a corporation that develops gaming operations sued the Paucatuck Eastern Pequot Tribe. The court found that the Sebastian case did not rule that lack of federal recognition prohibited a tribe from having sovereign immunity. The court stated that the Sebastian court dealt with whether the defendant was an "Indian" for purposes of federal criminal jurisdiction and ruled that sovereign immunity was not implicated in the case without deciding whether the tribe had it or not.
The court then stated that sovereign immunity attaches to a tribe because of its status as a dependant domestic nation and Connecticut has recognized this tribe as such and as a self-governing entity in statute (CGS § 47-59a). (The court added in a footnote that the court in the Schaghticoke case did not find the Connecticut statute controlling because that case involved events that occurred before the statute took effect. ) (First American Casino v. Eastern Pequot Nation, No. 541674 (July 16, 2001)).
State law exempts from property taxation "reservation land held in trust by the state for an Indian tribe" (CGS § 12-81(2)). Motor vehicles owned by a member of "an indigenous Indian tribe or spouse garaged on the reservation of the tribe" are also exempt from property taxation (CGS § 12-81(71)). "Indigenous Indians" are not defined but presumably include the five tribes listed in Connecticut law. No other statute exempts Indians from taxation and it appears that tribes and their members are subject to all other taxes.
In an unpublished superior court case, the court ruled that a tribe recognized by state statute had to collect tax on cigarettes sold on the reservation because it was not granted a specific exemption (State v. Piper, No. CR21-57349, May 3, 1996). This case involved a criminal prosecution for selling unstamped cigarettes. Before considering the tax laws, the court first ruled that (1) federal law did not preempt state criminal law; (2) the court could determine whether it had jurisdiction in the case by determining whether the Golden Hill Paugussett tribe recognized the defendant as one of its members even though the court, under the statutes, has limited authority to determine tribal membership; and (3) tribal sovereignty did not prevent state prosecution.
The court then turned to the tax issue. The statutes specifically give the tribes the power to regulate trade and commerce on the reservation and the court ruled that this includes the power to buy, sell, or barter cigarettes on the reservation.
But, quoting a Connecticut Supreme Court case, the court said that statutes providing tax exemptions are "legislative grace" and that they are interpreted narrowly with any ambiguity in the statute resolved against the taxpayer. The court found that nothing in the statute granting the power to regulate trade and commerce suggested that it allowed the tribe to sell cigarettes on the reservation without collecting tax. It also stated that the legislature clearly granted exemptions to
these tribes when it wanted to do so with exemptions for reservation land and cars. The court ruled that the tribe did not have an exemption from the cigarette tax because no explicit language granted an exemption from the state's valid tax authority.
This case was not appealed and we did not find any other Connecticut cases on this issue.