January 23, 2002
QUESTIONS ABOUT STATE RECOGNITION OF INDIAN TRIBES
By: Christopher Reinhart, Associate Attorney
You asked (1) what Indian tribes are recognized by Connecticut; (2) when were the tribes recognized and does the legislative history show the legislature's intent; (3) what reservation lands do the tribes have; and (4) what rights are conferred on the tribe by Connecticut law.
The Office of Legislative Research is not authorized to issue legal opinions and this report should not be viewed as one.
Connecticut law recognizes five Indian tribes: (1) Golden Hill Paugussett, (2) Mashantucket Pequot, (3) Mohegan, (4) Paucatuck Eastern Pequot, and (5) Schaghticoke. These five tribes have six reservations in the state. The Mashantucket Pequot and Mohegan tribes are both recognized by the federal government and their reservations are federal reservations.
Legislation in 1973 redefined “Indian” in the statutes as someone from one of these five tribes. The act created an Indian Affairs Council and transferred responsibility for the state reservations and their communities from the welfare commissioner to the Department of Environment Protection (DEP) commissioner. In 1989, legislation recognized these five tribes as “self-governing entities possessing powers and duties over tribal members and reservations.” Specifically, it required the governor to enter trust agreements with willing tribes to define the state-tribe relationship, made state reservations and motor vehicles owned by members of indigenous tribes and housed on reservations exempt from property taxes, and required that reservation land be held in trust by the state forever.
The legislative history of the 1973 act discussed giving the tribes greater control over tribal affairs and removing certain restrictions on their reservations. The legislative history of the 1989 act discussed the powers the act gave the tribes and their status as self-governing entities but also, in debate on an amendment that was adopted, that these powers did not confer recognition on the tribes under federal law.
Connecticut statutes give these tribes power over (1) determining their membership and residency on their reservations, (2) determining the tribal form of government and leadership, (3) regulating trade and commerce on the reservation, and (4) making contracts. Reservation land is held by the state but the tribe has all the other rights of ownership, except alienation. Tribal members on their reservation can hunt, fish, and trap without a license. The DEP commissioner, with advice of the Indian Affairs Council, is responsible for the reservation land and buildings and services to members residing on reservations.
We will discuss issues of state aid to these tribes, taxation, and civil and criminal jurisdiction in a separate report. We do not discuss issues that arise when a tribe is recognized by the federal government in this report.
STATE RELATIONSHIP WITH TRIBES AND LEGISLATIVE HISTORY
Since colonial times, Connecticut has had various relationships with Indians. References to specific tribes and reservations are found in many statutes over the years. In 1973, the legislature changed the definition of “Indian” in the statutes to a person with 1/8 Indian blood of one of the five tribes listed above (current law does not include the 1/8 blood requirement) (CGS § 47-63). Previously, an “Indian” was a person from a tribe “for whose use any reservation was set out.” The 1973 legislation created the Indian Affairs Council to provide services and formulate programs for the Indian reservation communities; decide on eligibility for residence on reservations; and set regulations for Indian hunting, fishing, and trapping on the reservations. It transferred from the welfare commissioner to the DEP commissioner responsibility for the care and management of the land, buildings, and people living on the reservations and care and control of tribal funds. It required the commissioner to act with the advice of the council. It also changed regulations on the use of reservations and stated a general policy affirming the state citizenship of Indians and recognizing their special rights to tribal lands (PA 73-660, sHB 9191).
The legislative history of the 1973 act discusses giving Indians a say in their own affairs and removing certain restrictions on their reservations, but much of the debate focused on whether the Indian Affairs Council should control its funds rather than DEP.
Representative Joseph M. Pugliese, describing the effect of the bill, stated that “…I do feel that it ought to give all of us a great deal of satisfaction in that for the first time in the state of Connecticut, perhaps in the nation, American Indians are through this bill being given an opportunity to have a full say in their own affairs.” He stated that, “They deeply resent having their affairs placed in the Department of Welfare, and rightfully so. The bill before us will change that and also give them a say in their own affairs.” He added that it “establishes a state policy that Connecticut Indians are considered to be full citizens with all the rights and privileges of other citizens. And further that they have special rights in their tribal lands.” He added that it also “guarantees Indian rights to reservation lands and sets forth how the lands may be used” and “insures that Indian reservations will be protected in perpetuity as historical sites” (House Transcript, May 16, 1973).
In 1989, the legislature adopted PA 89-368 recognizing that these five tribes “are self-governing entities possessing powers and duties over tribal members and reservations.” Among other things, it required the governor to enter trust agreements with willing tribes to define the state-tribe relationship, removed state reservations and motor vehicles owned by members of “an indigenous Indian tribe or spouse garaged on the reservation of the tribe” from property taxes, and required reservation land to be held in trust by the state forever. This legislation resulted from the work of the Indian Affairs Task Force. Much of the debate focused on the provisions on archaeology and Indian heritage.
Describing the bill's provisions on tribal powers, Representative Andrew Norton stated that “we say that they are self-governing entities with sovereignty of their own and this is, in essence, recognition of a status that they had before we ever came here and should continue to have and we recognize that those tribes have the right to determine their membership and who can live on the land…and determine their form of government and regulate trade on the reservation, make contracts, and determine their leadership” (House Transcript, May 31, 1989).
Senator Steven Spellman discussed an amendment (that was adopted) saying that its purpose was “to clarify that the state is recognizing these tribes for purposes of establishing administrative control over the lands which they currently own, or which are held in trust by the state, and establishing a legal mechanism for allowing these tribes to do so. It does not, however, take the step which the original language did, which would be to recognize them under federal law, which would have consequences which would effect the pending litigation.” He later states that, “Specifically, what the bill does is to specify that five recognized tribes in the state of Connecticut, have certain powers in terms of…determining tribal membership, residency on the reservation, determining the tribal form of government, regulating trade and commerce on the reservation, making contracts, and choosing tribal leaders” (Senate Transcript, June 6, 1989).
INDIAN RESERVATIONS IN CONNECTICUT
Five tribes have reservations in Connecticut, two of these are federal reservations. Information on the size of reservations is approximate and was provided by Ed Sarabia of the Connecticut Indian Affairs Council and, for the Mashantucket Pequot reservation, by Richard Kehoe of the Attorney General's office.
1. The Golden Hill Paugussett tribe has a ¼-acre state reservation in Trumbull and a 106 acre state reservation in Colchester.
2. The Mashantucket Pequot tribe has 1,400 acres held as federal trust land in Ledyard with the potential for a 2,300-acre federal reservation under the settlement act and agreements.
3. The Mohegan tribe has 409 acres held as federal trust land in Montville and Norwich with the potential for a 700-acre federal reservation under the settlement act and agreements.
4. The Paucatuck Eastern Pequot tribe has a 225-acre state reservation in North Stonington.
5. The Schaghticoke tribe has a 278-acre state reservation in Kent.
RIGHTS UNDER STATE LAW
Connecticut law declares it is state policy that all resident Indians of qualified Connecticut tribes are full state citizens with all legal rights and privileges and also with certain special rights to tribal lands by treaty or other agreement. The law recognizes the five tribes as self-governing entities with power and duties over tribal members and reservations, including 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 under tribal practice and usage (CGS § 47-59a).
The law requires the governor to enter trust agreements with willing tribes to define the powers and duties of the tribe, consistent with recommendations of the Indian Affairs Task Force's final report (CGS § 47-66h).
A tribe determines who can live on its reservation land (but anyone lawfully residing there on October 1, 1989 can continue to do so). The tribe can lease reservation land for up to 25 years. Any reservation property that escheats to the state is preserved by DEP as an Indian historical area (CGS § 47-64).
Someone who is not a member of the tribe or a spouse or child of a member cannot reside or go on the tribe's reservation without the tribe's written permission (Conn. Agency Regs. § 47-59b-30).
The law authorizes a housing authority for each tribe with the same powers, rights, and functions of municipal authorities. The tribe's governing council must declare that there is a need for the authority. The laws that apply to municipal housing authorities and their commissioners apply to these housing authorities unless the law provides otherwise (CGS § 47-66a et seq.).
The statutes specify that nothing in the chapter on Indians can be construed to confer tribal status under federal law on these tribes or to confer additional rights of ownership and title to land in the state that was not held in trust on June 1, 1989 (CGS § 47-66h).
Indian Affairs Council and DEP
The Indian Affairs Council, with the DEP commissioner, administers legislation concerning Connecticut Indians and their reservations. It consists of one representative of each of the five tribes and three non-Indians appointed by the governor. The council:
1. provides services and programs to the reservation communities;
2. determines qualifications of individuals entitled to be designated as Indians under the statutes and decides who is eligible to reside on reservation lands;
3. advises the DEP commissioner about the general health, safety, and well-being of people residing on reservations;
4. advises the DEP commissioner on the care and management of reservation lands and buildings;
5. advises the DEP commissioner on the care and control of tribal funds; and
6. surveys and maps reservations, with the DEP commissioner (Conn. Agency Regs. § 47-59b-3).
By law, land held in trust by the state on October 1, 1989 remains in trust to prevent alienation and to insure it is available for future generations of Indians. A tribe has all other rights of ownership on reservation land. A conveyance by an Indian of land belonging to or that belonged to the estate of any tribe is void (CGS § 47-60).
The law prohibits a defendant from claiming that the statute of limitations prohibits an action to recover land owned by Indians or sequestered for their use by the General Assembly or by any town under the law. This does not apply to an action against an Indian authorized by law to convey Indian lands or against a town authorized by law to convey Indian lands (CGS § 47-61).
The DEP commissioner, with the advice of the Indian Affairs Council, cares for and manages reservation lands. Buildings that are not privately owned are under the commissioner's care and management. Residents can petition for repairs and improvements by DEP, with the advice of the Indian Affairs Council. An Indian resident without sufficient means to support himself can petition the council for assistance to maintain a standard of living in his home that is compatible with his well-being. The council can provide other services it deems necessary to insure the well-being of residents on the reservations (CGS § 47-65). The DEP commissioner cares for and controls tribal funds with the advice of the council. He can bring an action to recover any property misappropriated from a reservation (CGS § 47-66).
An Indian on his tribe's reservation can take, hunt, or trap wild birds or quadrupeds or take or assist in taking fish or bait species in the waters without a license, subject to council regulations and seasonal and bag limitations set by law. The DEP commissioner must issue a private land deer permit to an Indian for use on his tribe's reservation if it is at least 250 acres in size. The law sets the conditions of the permit (CGS § 47-65a).
Other State Interests
The DEP commissioner, with the advice of the council, manages other state interests including maintaining state documents, providing information to tribal members, and coordinating governmental grant programs (CGS § 47-66g).