concluding that even if the Supreme Court’s precedents establish “only a federal court procedural rule,” that court may look to similar policies in (continued . . .
How later courts described this case
- concluding that even if the Supreme Court’s precedents establish “only a federal court procedural rule,” that court may look to similar policies in (continued . . .
- suggesting that the exhaustion doctrine, inseparable from the policy of deference to tribal courts, is an interstitial rule of federal common law, which is binding upon state courts under the Supremacy Clause; concluding that the exhaustion doctrine is binding on state courts because states are equally likely to disrupt the "federal policy supporting tribal self-government"
- concluding that the concerns "upon which the doctrine is based [are] most pressing when a parallel proceeding is pending in the tribal court"
- finding that exhaustion of tribal remedies doctrine is not jurisdictional, and, therefore, does not mandate dismissal
Written by the judges who cited it.
The opinion
MCDONALD, J.,
concurring in part and dissenting in part. I agree with the majority that the trial court improperly dismissed the plaintiffs’ case against the defendants, one of whom was chairman of the tribal council. I do so because our decision in Charles v. Charles, 243 Conn. 255 , 701 A.2d 650 (1997), cert. denied, 523 U.S. 1136 , 118 S. Ct. 1838 , 140 L. Ed. 2d 1089 (1998), settled the issue of the jurisdiction of our courts over such cases in which Indians may be parties. As we pointed out in Charles , Congress made clear by the Mashantucket Pequot Indian Claims Settlement Act, 25 U.S.C. §§ 1751 through 1760 (1994), that its policy was to invest jurisdiction of such cases in the Connecticut courts. Charles v. Charles, supra, 264-65 .
I disagree, however, that the case with respect to plaintiffs John Drumm and Richard Perron should be stayed pending the resolution of the lawsuit they were forced to bring in the tribal court after their state court case was dismissed. Drumm and Perron only brought suit in tribal court because they were left in “no-man’s-Iand” after that dismissal. The dismissal had been urged by the defendants who were demanding that they be sued in tribal court. In these circumstances, comity would not require abstention by the state courts on grounds of interference by the state courts with a tribal court matter.
I also disagree because Drumm and Perron had no tribal court lawsuit pending when the trial court dismissed their case. The tribal court suit is not properly before us in this appeal. In this case, this court’s jurisdiction is limited to reviewing questions of law decided in the trial court. See General Statutes § 52-263. The question of a stay should have been raised before the trial court and not addressed originally by this decision.
I also disagree because leaving Drumm’s and Perron’s lawsuit in tribal court subjects them to having their *700 cases heard by judges appointed and retained by the very parties they are suing. This strikes at the very first principle of any judicial system that every litigant should receive a fair and impartial hearing and that the process satisfy the parties that they have received such a hearing. However fair the proceedings in the tribal court may be in actuality, it would be difficult, if not impossible, to so satisfy the parties in these circumstances. See Low v. Madison, 135 Conn. 1, 9-10 , 60 A.2d 774 (1948); see also Papa v. New Haven Federation of Teachers, 186 Conn. 725, 745-46 , 444 A.2d 196 (1982). In this respect, the Second Circuit has stated: “No nation is under unremitting obligation to enforce foreign interests which are fundamentally prejudicial to those of the domestic forum. Thus, from the earliest times, authorities have recognized that the obligation of comity expires when the strong public policies of the forum are vitiated by the foreign act.” (Internal quotation marks omitted.) Pravin Banker Associates, Ltd. v. Banco Popular del Peru, 109 F.3d 850, 854 (2d Cir. 1997).
Accordingly, I respectfully concur in part and dissent in part.