The Connecticut General Assembly
OFFICE OF LEGISLATIVE RESEARCH
August 24, 1994 94-R-0170
FROM: David K. Leff, Senior Attorney
RE: Tribal Sovereignty
You asked what the extent of Indian tribal sovereignty is in Connecticut.
The concept of tribal sovereignty has developed principally as a matter of federal common law and was initially articulated by Chief Justice Marshall. The principal attributes of tribal sovereignty are inherent tribal power (not derived from the federal government) over internal affairs, state inability to interfere in tribal self-government, and Congressional power to limit tribal sovereignty. Thus, tribes are generally able to act within their sphere unless federal requirements dictate otherwise, and states are prevented from interfering with the tribe unless specifically authorized by the federal government. Although inherent sovereignty may still be a significant bar on state action, the trend of recent case law has been to emphasize federal pre-emption over a tribe's inherent powers.
The sovereignty concepts described above clearly apply to federally recognized tribes. Recognition by the federal government may derive from treaties, statutes, executive or administrative orders, or from a course of dealing with the tribe as a political entity. Federal recognition establishes a trust relationship between the tribe and the federal government. But the absence of federal recognition does not necessarily deprive a tribe of inherent sovereignty and the courts have established broad criteria for making tribal status determinations. Such determinations are made on a case by case basis and may include evaluation of the tribe's origin and continuing status as a distinct cultural and political community. Courts have also decided that tribes that are not federally recognized can be bona fide tribes for purposes of federal law thus preempting independent state action.
In practice, the extent of tribal authority to act independently of state intrusion depends on the particular issues in dispute, the nature of the tribe, and the status of its land. Tribal sovereignty is a complex area of law involving a myriad of subjects. Below we discuss sovereignty issues in three areas crucial to tribal independence: criminal jurisdiction, taxation, and control of zoning and land use. Should you wish a discussion of a sovereignty with regard to other issues such as civil adjudicatory or regulatory jurisdiction, hunting and fishing rights, tribal forms of government, or membership do not hesitate to contact us.
The applicability of federal rather than state criminal law to offenses involving Indians depends on whether the acts are committed in “Indian country.” The reservations of federally recognized tribes are Indian country and the other Connecticut reservations could be considered Indian country if judicial decisions evaluating the particular facts of the case make such a finding. Under federal law, jurisdiction over crimes committed in Indian country depend on whether the alleged offender or victims are Indians, and the nature of the offense. One law (PL 280) cedes much jurisdiction to the state. The Mashantucket reservation is subject to PL 280.
State law exempts Indian reservations and motor vehicles of tribal members garaged on the reservation from property taxation. The ability of the state to tax transactions on the reservations of state recognized tribes is largely unexplored and the subject of intense dispute. Without Congressional authority, states cannot tax tribes or their members on their reservations, though Indians beyond reservation boundaries are generally subject to nondiscriminatory state laws applicable to all citizens. Questions of state taxation become more complex in cases involving activities or transactions occurring between tribes or their members and nonmembers on reservations. These issues are subject to case by case analysis which includes evaluation of the state's regulatory interest and the burden on the tribe.
Federally recognized tribes generally have exclusive zoning authority over reservation lands. Although the question is not settled, it is unlikely municipalities can exercise zoning authority on state recognized reservations. The state's authority to regulate land use on state reservations depends on an analysis of (1) whether the reservation is Indian country within the meaning of federal law or whether the tribe's inherent sovereignty is a bar and (2) on the nature of the governmental interference at issue. Thus, in each case the outcome depends on the nature of the tribe and its reservation and the type of governmental action involved.
AN OVERVIEW OF TRIBAL SOVEREIGNTY
Connecticut Tribes and Reservations
Connecticut has five indigenous Indian tribes recognized by statute: the Schaghticoke, Paucatuck Eastern Pequot, Mashantucket Pequot, Mohegan, and Golden Hill Paugussett. Two have achieved federal recognition, the Mashantucket Pequot by act of Congress in 1983, and the Mohegan by federal Bureau of Indian Affairs procedures in 1994. The Mohegans are the only tribe lacking a reservation, the Golden Hill Paugussetts have two (one of which is a quarter acre house lot reported to be the world's smallest reservation).
At the time of European discovery American Indian tribes governed their own affairs and relied on no outside authority to legitimize their governance. As a result, the colonial powers and later the United States recognized the tribes as “distinct, independent political communities, retaining their original natural rights, as the undisputed possessors of the soil, from time immemorial, with the single exception of that imposed by irresistible power, which excluded them from intercourse with any other European potentate than the first discoverer of the coast of the particular region claimed. . .” (Worcester v. Georgia, 31 U.S. (5 Pet.) 515, at 559 (1832)). This concept of tribal independence subject to the overriding authority of the United States was also embodied in the Constitution (see, F. Cohen, Handbook of Federal Indian Law (1982) at 232, 233). The commerce clause which empowers Congress “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes,” recognizes exclusive federal authority and classes tribes among other sovereigns in the area of commerce. It has been the basis for “broad and exclusive federal powers and responsibilities in Indian affairs” (Cohen at 233). The Constitution further excludes “Indians not taxed” from the meaning of “free persons” counted in determining representatives or apportioning direct taxes reflecting, according to Cohen, the distinct limited sovereignty of the tribes.
The basis for modern concepts of Indian sovereignty was established by Justice Marshall who termed the tribes “domestic dependent nations” whose relation “to the United States resembles that of a ward to his guardian” (Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831)). A fuller expression of the extent of tribal self-government and its relationship to states and the federal government was achieved a year later in Worcester v. Georgia, an appeal of a state conviction of a white minister living with the Cherokees without a state license. The chief justice found the Georgia law in violation of the supremacy clause since the state action was in derogation of exclusive federal authority to regulate Indian affairs. In doing so he decided that the dependent status of the tribes neither required them to rely on federal law for their governmental power nor did it eliminate preexisting tribal political authority. Using tenants of international law Marshall stated that
[t]he settled doctrine of the law of nations is, that a weaker power does not surrender its independence—its right to self-government, by associating with a stronger, and taking its protection. A weak state, in order to provide for its safety, may place itself under the protection of one more powerful, without stripping itself of the right of government, and ceasing to be a state (31 U.S. (6 Pet.) at 560, 561).
Worcester and Cherokee Nation laid out the following fundamental principles that have governed the relationship of tribes to the federal and state governments ever since: (1) that by reason of their aboriginal political and territorial status Indian tribes retain elements of sovereignty, (2) that conquest leaves tribal sovereignty subject to attenuation by Congressional legislation but not by the states, and (3) by virtue of their limited sovereignty and dependency on the United States the federal government has a fiduciary responsibility toward the tribes (see, Spaeth, American Indian Law Deskbook (1993)). Barring federal legislation, Marshall's view left tribes independent except with regard to sale of land and dealing with foreign powers. This approach has been modified over the years and layered with complexity, but still is the basis for evaluating the nature of tribal government.
Extent of Tribal Authority
“The precise limits of tribal powers are not readily definable because tribal authority `is attributable in no way to any delegation to [the tribes] of federal authority'” (Cohen at 246 quoting U.S. v. Wheeler, 98 S. Ct. 1079 at 1089 (1978)). Tribes possess those aspects of sovereignty that have not been “withdrawn by treaty or statute, or by implication as a necessary result of their dependent status (98 S. Ct. 1079 at 1086). Therefore the relevant inquiry in matters of tribal power is not whether any authority exists to allow the action, but rather whether there is any restriction preventing the action (see, W. Canby, Jr., American Indian Law (1981) at 67). The approach is the opposite used in the evaluation of municipal authority.
Though the exact reach of tribal sovereignty is not easily expressed, the courts have noted that tribal governing power extends to “both their members and their territory” (U.S. v. Mezurie, 95 S. Ct. 710 at 117 (1975)). Whether the tribe has a specific power depends on the extent to which the particular issue is a matter of internal self-government. Among matters that are within the purview of tribes are the powers to determine the tribal form of government and tribal membership, make substantive criminal and civil laws within Indian country (as modified by Congress especially with regard to criminal law), to operate court systems and administer justice, and to exclude people from tribal territory. But tribal authority has been limited in certain instances even without Congressional action. In a case holding that a tribe lacked jurisdiction to try non-Indian criminal defendants, the U.S. Supreme Court held that tribes may not exercise powers surrendered by treaty, prohibited by Congress, or inconsistent with their status as domestic dependent nations (Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978)). This last test, applied in Oliphant, with its lack of a bright line standard leaves open questions about future restrictions on tribal sovereignty and allows such matters to be decided on a case-by-case basis.
Although tribal sovereignty severely restricts the applicability of state law on Indian reservations, it is not an absolute bar and state law has applied to Indians off reservations and in some instances to non-Indians on reservations where the state has a legitimate interest. But state law is only applicable where “essential tribal relations” are not involved. Thus, state courts have no jurisdiction over a civil claim by a non-Indian against an Indian where the transaction occurs on the reservation because it infringes on the right of the tribe “to make their own laws and be governed by them” (Williams v. Lee, 358 U.S. 217 at 223(1959)). In a case that denied Arizona authority to impose income taxes on money earned by Indians on the reservation the court determined that state law would only be applicable in Indian country if (1) there was no interference with a tribe's self-government, and (2) non-Indians were involved. In deciding the case the court described the evolution of the Indian sovereignty doctrine:
[T]he trend has been away from the idea of inherent Indian sovereignty as a bar to state jurisdiction and toward reliance on federal preemption. The modern cases thus tend to avoid reliance on platonic notions of Indian sovereignty and to look instead to the applicable treaties and statutes which define the limits of state power.
The Indian sovereignty doctrine is relevant, then, not because it provides a definitive resolution of the issues in this suit, but because it provides a backdrop against which the applicable treaties and federal statutes must be read. It must always be remembered that the various Indian tribes were once independent and sovereign nations, and that their claim to sovereignty long predates that of our own Government (citations omitted) (McLaughlin v. Arizona, 93 S. Ct. 1257, 1262 (1973)).
Connecticut's State Recognized Tribes
The applicability of tribal sovereignty concepts to Connecticut's nonfederally recognized tribes has been a matter of much controversy and has never been finally resolved. In a case involving the state's authority to control logging on a reservation and seek recovery of the value of lost timber the Connecticut Supreme Court held that the state may lack jurisdiction due to the tribe's inherent sovereignty or because of federal preemption (Schaghticoke Indians of Kent, Connecticut, Inc v. Potter, 217 Conn. 612 (1991)).
In reviewing Worcester v. Georgia and several of its progeny the Schaghticoke court apparently assumes that the sovereignty concepts delineated in the federal cases apply to Connecticut tribes. The only questions remaining for the court were factual determinations. In order to be free of state jurisdiction the Schaghticokes had to prove they are a tribe existing as a distinct cultural or ethnic group with “a form of demonstrable sovereignty or functioning self-government.” Furthermore, if the tribe existed, the ability of the state to assert jurisdiction would depend on whether the state action infringed on an exercise of tribal government or tribal legislation. In determining whether the Schaghticokes are a tribe the court recommended the trial court consider the criteria used by the federal Bureau of Indian Affairs for recognizing tribes. These criteria include identification as a tribe substantially continuously since 1900, existence as a distinct community from historical times, autonomous maintenance of political influence or authority over members from historical times, and descent of members from a historical tribe. It also recommended consideration of a tribal definition, used in federal case law, specifically U.S. v. Candelaria, which denoted a tribe as “[A] body of Indians of the same or similar race, united in a community under one leadership or government, and inhabiting a particular though sometimes ill-defined, territory” (46 S. Ct. 561). In determining whether the tribe retains any sovereignty the trial court was directed “to determine if the tribe maintains some form of practical tribal government, such as a tribal council or a tribal court, that controls the tribe's internal relations, and whether the tribe has enacted any legislation or regulations controlling reservation lands” (217 Conn. at 630).
While theoretically federal preemption differs from tribal sovereignty, in practice they may result in similar insulation of the tribe from state authority. The Schaghticoke court held that if the tribe's reservation is “Indian country” within the meaning of federal statutes “federal law directly applies and preempts independent state action” because the federal act (PL 280) which grants certain states jurisdiction over Indian country does not apply to Connecticut. The court rejected the state's argument that PL 280 did not preempt state civil jurisdiction over the Schaghticoke reservation because it applies only to federally recognized Indian country which does not include the Schaghticoke reservation.
The court noted that the term “Indian country” in federal law is defined as “all dependent Indian communities within the borders of the United States,” but that no statute defined “dependent Indian communities.” Finding that a definition of “dependent Indian communities” used by the Maine courts “accurately addresses the problems associated with tribal identity in the context of the Eastern Indians,” the court determined that the Schaghticoke reservation would be Indian country if the Schaghticokes were a tribe in colonial times inhabiting the land under Indian title since passage of the federal non-Intercourse Act of 1790 and continuing to function as a cohesive unit (State v. Dana, 404 A.2d 551(Me. 1979), cert. den., 100 S. Ct. 1064 (1980)). The court remanded the matter to the trial court to determine whether the tribe met the Dana test. It rejected the state's contention that even if federal law applies, it had jurisdiction because it historically exercised jurisdiction or validly assumed jurisdiction under federal law.
While the court decided that as a matter of law Connecticut's nonfederally recognized tribes are not outside the ambit of federally developed sovereignty and preemption concepts, the Schaghticoke case was never pursued on remand so no decision as to the tribe's factual status was ever made. The same remains true for the other two state recognized tribes, the Pawcatuck Eastern Pequot and Golden Hill Paugussett. Thus, the extent to which these tribes are free to govern their own affairs without state interference in the same manner as federally recognized tribes remains uncertain until the matter is litigated or they achieve federal recognition.
The applicability of federal rather than state criminal law to offenses involving Indians depends on whether the acts are committed in “Indian country.” Federal criminal law defines Indian country as follows (18 USCA § 1151):
[T]he term “Indian country,” as used in this chapter, means (a) all land within the limits of any Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) 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, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.
As a reservation under federal trust status, the Mashantucket Pequot reservation is clearly Indian country. The other Connecticut reservations would have to be considered “dependent Indian communities” to make them Indian country. Whether they in fact qualify as such is not a completely settled question, and since judicial decisions on the matter are likely to turn on particular facts the issue would probably have to be decided on a case by case basis for each reservation. Some courts have held that the reservation of a nonfederally recognized tribe is Indian country and thus generally subject to federal rather than state jurisdiction (State v Dana, 404 A.2d 551 (Me. 1979), cert. den., 100 S. Ct. 1064 (1980)). In Dana the court defined a dependent Indian community as Indian country because there was a bona fide tribe of Indians and the tribe had inhabited the land under “Indian title” since passage of the federal non-Intercourse Act of 1790 and continued the same status and nature of occupancy.
Neither Connecticut's Indian nor criminal laws make special provision for offenses committed on Indian reservations. Thus, under state law no distinction is made between crimes committed on or off a reservation.
Indian Country Crimes
Two principal federal laws govern jurisdiction over crimes committed in Indian country: the General Crimes Act (18 USCA § 1152) and the Major Crimes Act (18 USCA § 1153). Under these laws the jurisdiction of state, federal, or tribal authorities typically turns on whether the alleged offender or victim are Indians, the nature of the offense, and whether the offense was committed in Indian country. In addition, Public Law 280, enacted by Congress in 1953, ceded much jurisdiction to certain states thus substantially altering the exclusive jurisdiction conferred by the General Crimes Act and Major Crimes Act (18 USCA § 1162). Congress has also passed a number of separate statutes, especially with regard to Indian land claims settlements that confer jurisdiction on the states. Among them is the Connecticut Indian Land Claim Settlement Act which deals with jurisdiction over the Mashantucket Pequot Reservation (25 USCA §§ 1751-1760).
The General Crimes Act
Originally passed in 1817, the General Crimes Act provides for federal prosecution of crimes by non-Indians against Indians, and of nonmajor crimes by Indians against non-Indians. Crimes committed by non-Indians against non-Indians are not subject to the act. The act provides that:
Except as otherwise expressly provided by law, the general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country.
This section shall not extend to offenses by one Indian against the person or property of another Indian, nor to any Indian committing any offense in the Indian country who has been punished by the local law of the tribe or to any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively.
The effect of the first paragraph by its use of the term “general laws” is to import into Indian country the federal criminal statutes that govern in admiralty and maritime matters and in such federal enclaves as post offices, national parks, military installations, and other areas of exclusive federal jurisdiction. For this reason the law is sometimes denoted the Federal Enclaves Act.
In 1825 Congress enacted the assimilative Crimes Act which is now one of the “general laws” and applies state penal laws to areas of federal jurisdiction (18 USCA § 13). Thus, a person may be charged with a federal offense and tried in federal court under a crime and sentence prescribed by state law. The Assimilative Crimes Act reads:
Whoever within [the special maritime and territorial jurisdiction of the United States] is guilty of any act or omission which, although not made punishable by an enactment of Congress, would be punishable if committed or omitted within the jurisdiction of the State, Territory, Possession, or District in which such place is situated, by the laws thereof in force at the time of such act or omission, shall be guilty of a like offense and subject to a like punishment.
Although the General Crimes Act appears to apply to all crimes committed by non-Indians, the Supreme Court has held that state courts have jurisdiction over crimes by non-Indians against non-Indians (U.S. v. McBritney, 104 U.S. 621 (1881); Draper v. U.S. 164 U.S. 240 (1896)). The reason given for the rule is that because no Indian interests are involved there is no need to invoke federal jurisdiction, leaving the law to apply to non-Indians only when they commit crimes against Indians or Indian interests.
Although the General Crimes Act applies to Indians as well as non-Indians, the second paragraph excepts crimes by Indians against Indians, crimes by Indians that have been punished by the tribe, and crimes over which a treaty gives the tribe sole jurisdiction. Although Indian against Indian criminal jurisdiction has been superseded for particular offenses by the Major Crimes Act, most crimes of this nature remain under tribal jurisdiction. Because they are as much an internal tribal matter as a crime by an Indian against an Indian, the U.S. Supreme court has held that the victimless crime of consensual adultery between Indians is also excluded from federal jurisdiction (U.S. v. Quiver, 281 U.S. 602 (1916)), but whether the exception applies to all victimless crimes remains unclear (Spaeth at 88). The tribal law punishment exception has never been litigated, and the treaty exception has little relevance today.
Major Crimes Act
The Major Crimes Act was enacted in 1885 in direct response to a U.S. Supreme Court case which voided a conviction of one Indian for murdering another under the Indian-against-Indian exception of the General Crimes Act (Ex Parte Crow Dog 109 U.S. 556 (1883)). Under the major crimes act
An Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder, manslaughter, kidnapping, rape, carnal knowledge of any female, not his wife, who has not attained the age of sixteen years, assault with intent to commit rape, incest, assault with intent to commit murder, assault with a dangerous weapon, assault resulting in serious bodily injury, arson, burglary, robbery, and larceny within the Indian country, shall be subject to the same laws and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.
The primary effect of the major crimes act is to allow federal prosecution of Indians for the enumerated crimes regardless of whether the victim is Indian or not. Unlike the General Crimes Act, the Major Crime Act does not apply to non-Indian violators, nor does it have the Indian-against-Indian or tribal law punishment exemptions. No jurisdiction is vested in the states to prosecute Indians for Indian country crimes. The Major Crimes Act requires trials “in the same courts, and in the same manner” as federal enclave and maritime jurisdiction matters (18 USC § 3282).
Public Law 280
As originally adopted in 1953, Public Law 280 (18 USCA § 1162) imposed civil and criminal jurisdiction on five states (Alaska was later added) for all or part of Indian country within them because of “the problem of lawlessness on certain Indian reservations and the absence of adequate tribal institutions for law enforcement” (Bryan v. Itasca County, 96 S. Ct. 2102 at 2106 (1976)). Other States were allowed to voluntarily assume jurisdiction. The law's effect was to give the named states the same power to enforce their criminal laws within Indian country that they have always had outside of it. It extended state authority to crimes “by or against Indians,” and eliminated application of the General Crimes Act and Major Crimes Act in those areas (18 USCA § 1162 (c)) thus wholly supplanting federal with state authority. The U.S. Supreme Court has decided that Public Law 280 authorizes criminal jurisdiction only with regard to criminal-prohibitory, and not civil-regulatory laws. (California v. Cabazon Band of Mission Indians, 107 S. Ct. 1083 (1987)). Amendments to the law in 1968 allowed states to retrocede jurisdiction to the federal government, and prohibited states from assuming jurisdiction in the future without tribal consent.
Although Connecticut is not mentioned in Public Law 280, the statute is important because the Connecticut Indian Land Claims Settlement Act gives the state Public Law 280 authority over the Mashantucket Pequot Reservation.
Mashantucket Pequot Reservation
Under the Connecticut Indian Land Claims Settlement Act, the Mashantucket Pequot reservation is subject to maximum Public Law 280 state jurisdiction without the need for tribal consent through a special election. The act states (25 USCA § 1755):
Notwithstanding the provision relating to a special election in section 406 of the Act of April 11, 1968 (82 Stat. 80; 25 U.S.C. 1326), the reservation of the Tribe is declared to be Indian country subject to State jurisdiction to the maximum extent provided in Title IV of such Act (25 U.S.C.A. §1321 et seq.)
A 1993 Superior Court case concluded that the “settlement Act thus appears to have effected a complete grant of criminal jurisdiction over the reservation to the State” (State v. Spears, CR10-202120 (1993)). The case involved disorderly conduct, two counts of assault on an officer, and several other charges against a member of the Narragansett tribe while on the Mashantucket Pequot reservation. The Mashantucket Pequot Tribe intervened in the case as amicus curiae claiming that the federal government has exclusive jurisdiction over Indians on their reservation. The court rejected the tribe's contention that Public Law 280 requires both general tribal consent and a tribal vote, only the latter of which was forgone by the settlement act. It also cited other factors which it maintained indicated that Congress intended to grant criminal jurisdiction over Indians on the reservation to the state including that “there is nothing to indicate that at that time [of the settlement act] the tribe was in any way organized to maintain law and order on the reservation or to afford to anyone the protection of a court system” (Spears at 21). The case is on appeal to the Appellate Court.
An issue that has yet to be settled is the status of land taken into trust by the federal government that is beyond the bounds of the reservation contemplated in the settlement act. No one has yet addressed the extent to which such property is subject to PL 280, or whether tribal authority is greater on such lands.
State Laws and Reservations
State law exempts from property taxation “reservation land held in trust by the state for an Indian tribe” (CGS § 12-81(2)). Such lands include the Pawcatuck Eastern Pequot Reservation in North Stonington, the Golden Hill Paugusett reservations in Trumbull and Colchester, and the Schaghticoke reservation in Kent (CGS § 47-63). Although the statutes mention the Mashantucket Pequot Reservation, it is under federal, not state trust status. The Mohegan tribe does not have a reservation.
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)). This statute does not limit the exemption to state trust lands. It is limited to indigenous Indians which is left undefined in the tax law, but presumably includes only the Schaghticoke, Pawcatuck Eastern Pequot, Mohegan, Mashantucket Pequot, and Golden Hill Paugussett tribes (see, CGS § 47-5aa(b)).
State statutes do not otherwise deal with taxation of Indians or Indian tribes except by reference to the Tribal-State Compact with the Mashantucket Pequots (also known as Final Mashantucket Pequot Gaming Procedures) (CGS § 12-586f). The tribe is assessed for certain state regulatory costs and collects state sales, alcoholic beverage, cigarette, income and other taxes where activities on their reservation involve non-Indians.
Except for the exemptions specified in statute, the state's authority to tax transactions on Indian reservations held in trust by the state has, until recently, been wholly unexplored. The Golden Hill Paugussett smoke shop controversy on the Colchester reservation has begun discussion of this issue though no court has resolved the matter. Attorney William Breetz, who has represented the tribal faction operating the smoke shop, has maintained that language in the state Indian statutes which recognizes the tribes as “self-governing entities possessing powers and duties over tribal members and reservations,” specifically the authority to “regulate trade and commerce on the reservation” (CGS § 47-59a(b)), allows the tribe to avoid cigarette taxes because cigarette sales are a form of trade and commerce that are a matter for the tribe. Taxation of cigarettes, Breetz asserts, interferes with the tribe's self-government and authority to regulate trade and commerce.
In opposition to the tribe's claims, State's Attorney C. Robert Satti argues that where the legislature intends a tax exemption for Indians it specifically gives one as in the case of reservation property and automobiles. Satti also maintains that Moon Face Bear, the tribal war chief operating the smoke shop, was acting “as an individual, whether or not he is of Indian heritage.”
Generally, state authorities have assumed that transactions on reservations held in trust by the state are taxable. Until such time as the legislature or the courts clearly articulate a different rule they will apparently continue acting on that assumption.
The authority of tribes to impose their own taxes on economic activity taking place within a reservation held in trust by the state, or to impose them on tribal members remains unexplored though a credible argument in favor of such authority could be developed from the general statutory authority to determine tribal government and regulate trade and commerce.
State Taxation in Federal Indian Country
Without congressional authority states lack the power to tax tribes or their members on their reservations (McClanahan v. Arizona State Tax Commission, 93 S. Ct. 1257 (1973)). Although originally based on Indian sovereignty principles, “the trend has been away from the idea of inherent Indian sovereignty as a bar to state jurisdiction and toward reliance on federal preemption” (McClanahan at 1262). According to Cohen, “the federal purposes implicit in setting aside Indian country for the residence of a tribe—self-government and economic support—preempt state jurisdiction.” Cohen notes that this principle has been recognized in cases involving a state income tax, personal property tax, real property tax, gross receipts tax, cigarette excise tax, vendors' license fees, and hunting and fishing license fees.
Although states may not tax Indians or tribes on their reservations, “absent express federal law to the contrary, Indians going beyond reservation boundaries have generally been held subject to nondiscriminatory state law otherwise applicable to all citizens of the state” (Mescalero Apache Tribes v. Jones, 93 S. Ct. 1267, 1270 (1973)).
Questions of state taxation become more complex in cases involving activities or transactions occurring between tribes or their members and nonmembers on reservations. In analyzing these taxes the Supreme Court has “conducted a 'particularized inquiry' into the nature of the state, federal, and tribal interests at stake, an inquiry designed to determine whether, in the specific context, the exercise of state authority would violate federal law and be preempted” (Spaeth at 305). The factors analyzed include the states regulatory interest, the burden on the tribe, whether value is generated on the reservation, whether the taxpayer receives tribal services, and the federal policy supporting tribal development and self-sufficiency.
In general, states may impose nondiscriminatory taxes on non-Indian customers of Indian retailers doing business on the reservation (Washington v. Confederated Tribes of Colville, 100 S. Ct. 2069 (1980)). States may also tax non-Indian businesses operating on Indian lands where they can justify the assessment by virtue of regulatory functions or services they perform (Cotton Petroleum v. New Mexico, 109 S. Ct. 1698 (1989)). Such taxes are permissible even if the tribe itself imposes a similar tax. The two principal limitations on this authority are that the state may not tax when the subject matter is preempted by federal law, or when it would infringe upon the right of reservation Indians to make their own laws and be governed by them.
The cases deal with a number of topics, but the cigarette cases are most instructive, especially given the issues raised by the Golden Hill Paugussett smoke shop. In Moe v. Confederated Salish and Kootenai Tribes, 96 S. Ct. 1634 (1976), the U.S. Supreme Court held that states were allowed to impose a tax on cigarette sales by Indian sellers to non-Indian purchasers in Indian country, and could require Indian sellers to collect the tax and remit it to state authorities. The court viewed the taxes as imposed, not on Indians, but on the non-Indian purchasers. It found collection a “minimal” burden designed to avoid the likelihood that in its absence non-Indians purchasing from tribal sellers will avoid payment of a concededly lawful tax (96 S. Ct. at 1646).
The Colville case also involved cigarette sales. The court held that not only were sales to non-Indians and non-tribal member Indians subject to sales and cigarette excise taxes which the tribe had to collect, but that the state could require the tribe to affix state tax stamps to cigarette packages and to keep related detailed records of exempt and nonexempt sales. The Court noted that the taxes “may be valid even if it seriously disadvantages or eliminates the Indian retailer's business with non-Indians.”
The Cotton Petroleum case involved a non-Indian oil and gas producer operating on an Indian reservation. The court held that a New Mexico oil and gas severance tax imposed on the producer who also paid a similar tribal tax was valid notwithstanding the marginal effect on demand for on-reservation leases, the value to the tribe of those leases, and the ability of the tribe to increase its own severance tax rate.
Taxation by Tribes in Federal Indian Country
“The power to levy taxes and similar exactions, is an inherent and essential part of the authority of any government,” and is “an aspect of the retained sovereignty of Indian tribes” (Cohen at 431). Although tribes have rarely taxed their own members due to traditional hostility toward taxation and the poverty of many tribes there are a number of cases where tribes have attempted to tax non-Indians engaging in economic activity on the reservation.
Except to the extent restricted by Congress, tribes retain authority to impose taxes on their members under their “general governmental jurisdiction” (Cohen at 432). But tribal taxing authority is not limited to internal matters among tribal members. In Washington v. Confederated Tribes of Colville the Supreme Court upheld the imposition of a tribal cigarette tax on non-members purchasing cigarettes on the reservation even through a state tax covered the same subject matter. According to the Court, “the power to tax transactions occurring on trust lands and significantly involving a tribe or its members is a fundamental attribute of sovereignty which the tribes retain unless divested of it by federal law or necessary implication of their dependent status” (100 S. Ct. at 2081). The Court has also upheld a tribal oil and gas severance tax against allegations that the tribe lacked that power and that it violated the commerce clause of the U.S. Constitution (Merrion v. Jicarilla Apache Tribe, 102 S. Ct. 894 (1982)). The Court explained the tribe's authority to tax as follows:
The power to tax is an essential attribute of Indian sovereignty because it is a necessary instrument of self-government and territorial management. This power enables a tribal government to raise revenues for its essential services. The power does not derive solely from the Indian tribe[']s power to exclude non-Indians from tribal lands. Instead, it derives from the tribe's general authority, as sovereign, to control economic activity within its jurisdiction, and to defray the cost of providing governmental services by requiring contributions from persons or enterprises engaged in economic activities within that jurisdiction (102 S. Ct. at 901).
ZONING AND LAND USE REGULATION
Federal Trust Lands
The U.S. Supreme Court has upheld a tribe's exclusive zoning authority over reservation lands it controls (Brendale v. Confederated Tribes and Bands of Yakima, 109 S. Ct. 2994 (1989)). Although the highly fractured decision generated three opinions because of differences over nonmember owned lands within the reservation, a majority of justices supported tribal power over lands held in trust for the tribe. Noting that the United States has granted many Indian tribes the power to exclude nonmembers from territory reserved for the tribe, Justices Stevens determined that “that power necessarily must include the lesser power to regulate land use in the interest of protecting the tribal community” (109 S. Ct. at 3009). He viewed zoning as the process whereby a community defines its essential character and a “tribe's power to exclude nonmembers from a defined geographical area obviously includes the lesser power to define the character of that area” (109 S. Ct. at 3010). Justice Blackmun observed that “it would be difficult to conceive of a power more central to `the economic security, or health or welfare of the tribe' [citation deleted] than the power to zone” (109 S. Ct. at 3022). He observed that “this fundamental sovereign power of local government's to control land use is especially vital to Indians, who enjoy a unique historical and cultural connection to the land” (109 S. Ct. at 3022).
Public Law 280 grants certain states a large measure of criminal and civil jurisdiction over Indian country. The Connecticut Indian Land Claims Settlement Act subjects the Mashantucket Pequot reservation to maximum Public Law 280 jurisdiction. A proviso of Public Law 280 prohibits state laws from placing an encumbrance on trust or restricted Indian property and from regulating the property's use “in a manner inconsistent with any federal treaty, agreement, or statute or with any regulation made pursuant thereto” (18 USCA § 1162(b); 25 USCA §§ 1321(b), 1322(b); 28 USCA § 1360(b)). Some courts have determined that certain land use regulations constitute an encumbrance in violation of these federal statutes. Thus the Supreme Court of Washington found a local requirement that solid waste disposal sites obtain a permit inapplicable to Indian lands because the ordinance was considered an encumbrance on reservation lands even where the tribe had acceded to state criminal and civil jurisdiction (Snohomish County v. Seattle Disposal Co., 425 P.2d 22, cert. den., 389 U.S. 10106 (1967)). The case involved a private disposal company leasing a site from an Indian tribe. In interpreting the word “encumbrance” the court relied on a comprehensive state definition of encumbrance as a burden on land which diminishes its value, and its view that the federal government does not allow reservation land to be to be interfered with by means of zoning ordinances. But this interpretation of the word encumbrance is not universal (see, Rincon Band of Mission Indians v. County of San Diego, 324 F.Supp. 371 (S.D. Cal. 1971), rev'd on other grounds, 495 F.2d1 (9th Cir. 1974), cert. den. 94 S. Ct. 328 (1974); Agua Caliente Band of Mission Indians' Tribal Council v. City of Palm Springs, 347 F.Supp. 42 (C.D. Cal. 1972)). Nevertheless, after reviewing the cases, the U.S. Court of Appeals, Ninth Circuit relied on the canon of construction resolving doubts in favor of the Indians and concluded that the word encumbrance “as used here may reasonably be interpreted to deny the state the power to apply zoning regulations to trust property” Santa Rose Band of Indians v. Kings County, 532 F.2d 655 at 667 (1975)).
Citing solicitor's opinions, Cohen notes that the Interior Department has long viewed state land use laws as inapplicable to Indian trust lands without federal permission (Cohen at 364, n.42). Bureau of Indian Affairs regulations state that unless authorized by the Interior Department
none of the laws, ordinances, codes, resolutions, rules or other regulations of any state or political subdivision thereof limiting, zoning or otherwise governing, regulating, or controlling the use or development of any real or personal property, including water rights, shall be applicable to any such property leased from or held or used under agreement with and belonging to any Indian or Indian tribe, band, or community that is held in trust by the United States or is subject to a restriction against alienation imposed by the United States (25 CFR § 1.4).
The validity of this regulation was upheld in Santa Rosa, but the court noted that several commentators and at least two district courts have refused to apply its provisions because they found it invalid due to lack of specific statutory authority. The Santa Rosa court found such authority in a statute, relevant to the case before it, which authorizes the interior secretary to purchase land for the “purpose of providing land for Indians” and to take that land in trust (25 USCA § 465). It also found that given “the nature of the trust property relationship between the federal government and the Indian tribes is rather uniquely a product of judicial decision rather than statute, and as Congress has implicitly acted on it and ratified it for so long, and as that relationship provides the central framework for `Indian relations,' the general authority in 25 USCA § 2 to make rules for the “management of all Indian affairs and of all matters arising out of Indian relations” may be sufficient authority for the regulation by itself (532 F.2d at 665).
State Trust Lands
Although it appears clear that zoning and related land use laws do not generally apply to lands held in trust for federally recognized Indian tribes, the law is less clear with regard to state recognized tribes because there is no specific statute, regulation or dispositive case law on the matter. The fact that reservation land is held in trust by the state militates against the ability of municipalities to exercise zoning authority on reservations (CGS § 47-60). This is because state property is generally exempt from local zoning (see, 82 Am Jur 2d §§ 149, 150). However, because tribes “exercise on reservation land all rights incident to ownership except the power of alienation” an argument could be made that the state's exemption does not inure to the tribe as in some states has been the case with state leased property (see, Youngstown Cartage Co. v. North Point Peninsula Community Co-ordinating Council, 24 Md. Appl. 624 (1925)). But because the nature of the trust relationship carries with it fiduciary responsibility a lease does not, such an argument may be weak. Further, state statutes recognize the tribes as “self-governing entities possessing powers and duties over tribal members and reservations” (CGS § 47-59a). These powers and duties include authority to determine residency on the reservation, tribal form of government, and regulate trade and commerce. This authority can be construed to included tribal power to regulate land use on the reservation. The notion is bolstered by Justice Stevens' reasoning in Brendale that the power to exclude nonmembers “necessarily must include the lesser power to regulate land use in the interest of protecting the tribal community” (109 S. Ct. at 3009).
The extent of state power to regulate land use on state recognized reservations has never been finally resolved. The statutes charge the commissioner of the Department of Environmental Protection (DEP) with “the care and management of reservation lands,” an authority whose extent is uncertain (CGS § 47-65). In a case that, among other things, involved DEP's authority to protect tribal land from logging and assure that the value of lost timber was returned to the tribe, the Connecticut Supreme Court determined that if a reservation is Indian country within the meaning of federal law DEP lacks authority to intervene and the state lacks jurisdiction because of federal preemption (Schaghticoke Indians of Kent, Connecticut, v. Potter, 217 Conn. 612 (1991)). Using a test applied by the Maine Courts, the Connecticut court determined that the Schaghticoke reservation would be Indian country if the Schaghticokes were a tribe in colonial times inhabiting the land under Indian title since passage of the federal Non-Intercourse Act of 1790 and continuing to function as a cohesive cultural unit (State v. Dana, 404 A.2d 551 (Me. 1979), cert den., 100 S. Ct. 1064 (1980)). The Court further found that even if the reservation was not Indian country, state jurisdiction may be barred by the tribe's inherent sovereignty. This occurs if there is proof the Schaghticokes are a tribe that exists as a district cultural or ethnic group and if they “have a form of demonstrable sovereignty or functioning self-government.” Further, the state action must “actually infringe on some exercise of tribal government or existing tribal legislation (217 Conn. at 612). Thus, the authority of the state to regulate land use on the reservation appears to depend on the status of the tribe and its reservation land, and the nature of government interference with the tribe. The elements must be determined for each tribe on a case-by-case basis.
Due to a lack of information in the record the court never decided the extent of state authority over the Schaghticoke tribe, and remanded the case for further proceedings. Those further proceedings never occurred since prosecution of the matter was dropped by the plaintiffs according to Joseph Rubin, an assistant attorney general involved in the case. But the case is significant in that it does not automatically assume the state recognized tribes are subject to state authority, and because it articulates the tests for determining tribal sovereignty and federal status.