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(Cite as: 2005 WL 1757010 (Conn. Super))

UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING.

State of Connecticut

v.

Alan Russell

LLI18WCR040114452S

Superior Court of Connecticut.

File Date:June 13, 2005

Shaban, Dan, J.

MEMORANDUM OF DECISION RE MOTION TO DISMISS

Pursuant to Practice Book Section 41-8(4), Defendant has filed a Motion to Dismiss dated November 9, 2004 arguing that the Court has no jurisdiction over the defendant and/or the subject matter.  As part of his motion, defendant has asked that a stay of prosecution be ordered until such time as a final decision is issued by the United States Dept. of the Interior's Bureau of Indian Affairs on the pending application for recognition of the Schaghticoke Tribal Nation. The State of Connecticut has objected to the motion.  The parties agreed to several continuances for the purposes of filing briefs and holding oral argument on the matter with testimony which was presented on May 19, 2005.

The defendant, Alan Russell, has been charged with Criminal Mischief in the First Degree (C.G.S.Sec.53a-115) and Reckless Endangerment in the First Degree (C.G.S.Sec.53a-63) for an incident which took place on the grounds of the state-recognized Schaghticoke Indian Reservation on or about March 28, 2004 in Kent, Connecticut.  Mr. Russell claims the status of chairman of the tribal council of the Schaghticoke Indian Tribe ("SIT").  However, there exists a rival faction known as the Schaghticoke Tribal Nation ("STN") which claims rightful authority over tribal affairs.  Mr. Russell had hired a co-defendant, Michael Rost to do construction work on the reservation.  Shortly after commencement of the work, Connecticut State Police, in part upon the complaint of Mr. Richard Velky, as the claimed leader of the STN, arrested both Mr. Rost and Mr. Russell for actions taken by each on the reservation.

Prior to the arrest, both the SIT and the STN factions had filed separate petitions with the Bureau of Indian Affairs (BIA) seeking federal acknowledgment as an Indian tribe.  On January 30, 2004, the petition filed by the STN was granted by the Assistant Secretary for Indian Affairs thereby providing recognition of the STN as an Indian tribe under federal law. (Defendant Russell's Exhibit 1.) Sec. 25 C.F.R. 83.7.  Subsequently, the SIT appealed the decision [FN1] to the Department of the Interior's Board of Indian Appeals (IBIA) under Sec. 25 C.F.R. 83.11 claiming its petition should have been granted rather than the STN's petition.  The State of Connecticut has objected to both of the petitions of the STN and SIT seeking federal acknowledgment.  On May 12, 2005 the IBIA issued a decision vacating the acknowledgement of the STN as an Indian tribe and remanded the matter back to the Assistant Secretary for Indian Affairs for further work and reconsideration in accordance with Sec. 25 C.F.R. 83.11.  (In Re Federal Acknowledgment of the Schaghticoke Tribal Nation;  Defendant Russell's Exhibit 2.)

FN1. Four other requests for reconsideration were filed by various parties including the Town of Cornwall, the "Coggswell Group," the State of Connecticut and the Preston Mountain Club, Inc.

Whether a state has criminal jurisdiction over crimes committed by the defendant on an Indian reservation is controlled by the federal Indian Civil Rights Act, 25 U.S.C. Sections 1301 through 1341.  Specifically, the Act preempts any exercise of state authority over a federally acknowledged Indian tribe unless that tribe has consented to state jurisdiction by a majority vote.  25 U.S.C. Sections 1321(a) and 1326.

Defendant Russell has set forth several alternative arguments in his motion to support his claim that the State of Connecticut has no jurisdiction over criminal activity on the reservation.  First, that state jurisdiction has been preempted by federal statute.  Second, that recognition of Schaghticoke tribal sovereignty by the State of Connecticut precludes interference with that sovereignty by the State. [FN2]  Third, that the defendant is protected by tribal sovereign immunity because he was acting in his representative capacity as a tribal official.  Finally, the defendant argues that even if this Court finds that there has been no federal acknowledgment of the tribe, any prosecution of the defendant should be stayed pending a final decision of the tribe's status by the Department of the Interior.

FN2. State recognition of the Schaghticoke Tribe has been granted by virtue of C.G.S. § 47-63.

The leading case on the issue of state jurisdiction over criminal matters involving Indians and/or Indian reservations is State v. Sebastian, 243 Conn. 115 (1997), cert. denied, 522 U.S. 1077 (1998).  In that case, the defendant was a member of the Paucatuck Eastern Pequot Tribe and was arrested for a breach of peace that took place on tribal property.  At the time of his arrest the tribe had already been formally recognized by the State of Connecticut by virtue of C.G.S. Section 47-63.  Also at that time there was an application for federal acknowledgment pending with the Department of the Interior's Bureau of Indian Affairs (BIA).  A final decision had not yet been issued by BIA at the time of the arrest.  Our Supreme Court held that in the absence of actual proof that the federal government had formally acknowledged a defendant's tribe, the state retained jurisdiction over criminal matters involving members of that tribe.  See Sebastian at 136.  In other words, there could be no preemption of state jurisdiction until there had been a final acknowledgment of tribal status by the BIA.

The facts before the court in the instant case are nearly identical to those in Sebastian.  In addition, in this case the stipulated admission of the copy of the May 12, 2005 decision of the IBIA (Defendant Russell's Exhibit 2) ordering a remand to the hearing officer makes clear that the matter is still pending within the Department of the Interior.  It is accepted that the Schaghticoke Tribe is an entity recognized by the State of Connecticut.  While this court does find sufficient evidence to establish that Mr. Russell is a member of the Schaghticoke Tribe, and that he is an "Indian" for purposes of state law, he has failed to show that there has been a final federal acknowledgment of either the SIT or STN, or for that matter, of the reservation itself.  Moreover, at oral argument the defendant admitted that there was no evidence of publication of any final acknowledgment by the Department of the Interior in the Federal Register for either the SIT or the STN. In order for the State of Connecticut to be preempted from exercising its jurisdiction in this matter, this court must find that the tribe to which the defendant belongs, and the reservation which his tribe claims, have received final federal acknowledgment prior to the date of his arrest.  Based on the above facts and the precedent set forth in Sebastian, the court cannot make such a finding.  Hence, the State of Connecticut retains criminal jurisdiction in this matter.

The defendant has alternatively argued that the exercise of criminal jurisdiction by the state over him would violate the inherent sovereignty granted by the State of Connecticut.  Defendant's argument must be rejected as the court cannot find from the facts and arguments presented to it that the state's prosecution would actually interfere with the exercise of tribal sovereignty.  At oral argument the defendant conceded that there were no tribal courts in place or any tribal mechanism through which crimes could be prosecuted.  See Sebastian, at 160-62;  State v. Velky, 263 Conn. 602, 611 (2003).  Moreover, such a claim is not proper for consideration in a Motion to Dismiss under Section 41-8 of the Practice Book.

The defendant has also argued that the exercise of jurisdiction by the state would violate the protection afforded him by tribal sovereign immunity.  This claim is rejected as tribal sovereign immunity can only be claimed by a tribe and not its individual members.  Sebastian at 161.

Although not claimed in the body of his motion, the defendant also argued orally and in its brief that the state's exercise of criminal jurisdiction resulted in an infringement upon the tribe's right to freedom of religious expression.  The court can find no credible evidence on the record or in the parties' pleadings to support the defendant's claim.  It is noted here also that such a claim is not proper for consideration in a Motion to Dismiss under Section 41-8 of the Practice Book and therefore must be rejected.

Finally, the defendant has alternatively argued that even if there is no federal acknowledgment of the Schaghticoke Tribe (whether it be the SIT or the STN), any prosecution of the charges should be stayed pending the outcome of the hearings before the Department of the Interior.  In deciding whether to issue a stay, it must be noted that "an independent public interest exists in the 'disposition of criminal charges with all reasonable dispatch.' " Sebastian, at 153, n.47 quoting State v. Beckenbach, 198 Conn. 43, 52 n.5 (1985).  The instant case is already approximately one year old.  The original application for federal recognition was filed in 1981.  It has taken nearly twenty-five years for the Department of the Interior to act on the application(s), only to have the matter internally appealed and then remanded for reconsideration.  There is no question that at this time there are additional pending administrative hearings regarding the application(s) which will be strongly contested by the interested parties and likely further delay the resolution of the issue of tribal acknowledgment.  The greater the delay to a trial date in this criminal matter, the greater the likelihood of the unavailability of witnesses, the fading of memories, etc.  As a result, the court finds that it would not be in the interests of justice to grant a stay of prosecution in this matter.

For the foregoing reasons, the Motion to Dismiss is denied as is the request for a stay of prosecution.

BY THE COURT

Shaban, J.