Petition for Writ of Certiorari — Charles v. Charles

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Supreme Court, U.s.

PILED

a EE 889-0 —

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

No.

OwEN CHARLES,

Petitioner,

MARILYN CHARLES,

Respondent.

Petition for a Writ of Certiorari to the

Supreme Court of Connecticut

PETITION FOR A WRIT OF CERTIORARI

REID PEYTON CHAMBERS *

HARRY R. SACHSE

ANNE D. NoTo

Amy L. LOCKLEAR

JAMES T. MEGGESTO

SONOSKY, CHAMBERS, SACHSE

& ENDRESON

1250 Eye Street, N.W.

Suite 1000

Washington, D.C. 20005

(202) 682-0240

Dated: February 17, 1998 Attorneys for the Petitioner

* Counsel of Record

WILSON - Epgs PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

QUESTIONS PRESENTED

1. Whether under section 6 of the Connecticut Indian

Land Claims Settlement Act, 25 U.S.C. § 1755, Connecti-

cut validly assumed civil jurisdiction over the Mashan-

tucket Pequot Reservation even though the State took no

formal action to manifest its intent to assume such juris-

diction (in contrast to what the State has done to assume

jurisdiction over another reservation within the State),

and the Tribe did not formally consent to the State’s

assumption of such jurisdiction.

2. Whether, in this divorce and custody case, the Con-

necticut courts erred in failing to abstain in favor of

parallel proceedings before the Mashantucket Pequot

Tribal Court where: (a) the Tribal Court has jurisdic-

tion to decide the matter; (b) the defendant is an enrolled

member of the Tribe who lives on the Tribal Reservation,

the child is an enrolled member of the Tribe, the plaintiff

is not a Connecticut resident; and (c) the terms of the

Connecticut Indian Land Claims Settlement Act, even if

construed to vest the State with concurrent jurisdiction,

would still require the State to apply principles of Tribal

law that do not conflict with State law.

(i)

TABLE OF CONTENTS

EPROP MRDEE BE URMRIMGIT EDD | vevecvesevinonvcnsnscsensvassusoersenessstoens

TABLE OF AUTHORITIES .

OPINIONS BELOW ......20<:..c-ccosaseosscs- iaiaed insula alauonalipais

REASONS FOR GRANTING THE WRIT ..................

II.

Il.

CONCLUSION

THE CONNECTICUT SUPREME COURT RE-

SOLVED INCORRECTLY AN IMPORTANT

QUESTION OF THE STATE’S CIVIL JURIS-

DICTION OVER INDIANS ON THEIR RES-

ek 8 RE RE IOT SCE IS Neo Steen Dr A ON te

THE CONNECTICUT SUPREME COURT

MISCONSTRUED THE CONNECTICUT IN-

DIAN LAND CLAIMS SETTLEMENT ACT...

THE DECISION OF THE CONNECTICUT

SUPREME COURT CONFLICTS WITH THE

WELL SETTLED RULE OF FEDERAL LAW

THAT COURTS SHOULD ABSTAIN FROM

EXERCISING JURISDICTION UNTIL A

TRIBAL COURT HAS HAD AN OPPORTU-

NITY TO EXERCISE ITS JURISDICTION...

(iii)

TABLE OF AUTHORITIES

Cases Page

Bowen v. Doyle, 880 F. Supp. 99 (W.D.N.Y.

8 UEC As PERN Neneh NRE ca UES Onn De Tle SODA ITEM 15

Bryan v. Itasca County, 426 U.S. 378 (1976)........ ll

Drumm v. Brown, No. CV-96-079971 (Judicial

District of Middlesex at Middletown June 27,

5007) RORE SORES | idk cr 14

Gavle v, Little Six, Inc., 555 N.W.2d 284 (Minn.

1996), petiiton for cert. filed (Jan. 29, 1997)... 15

Granite Valley Hotel Ltd Partnership v. Jackpot

Junction Bingo & Casino, 559 N.W.2d 135

(Was, £t: Ae: TOOT) oe ne 15 ;

Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9 ;

B22 RU ERRCAE Siem a ods ao rae ro MLD ee 12, 18, 14, 16

Kennerly v. District Court of Montana, 400 U.S.

UE AE Ee cic eccecinismadsnesuseiadatsidacnamainscacaeceees: fe Bs!

Klammer v. Lower Sioux Convenience Store, 535

N.W.2d 379 (Minn. Ct. App. 1995) ....................... 15 ;

Matsch v. Prairie Island Indian Community, 567

N.W.2d 276 (Minn. Ct. App), review denied, t

1997 Minn. Lexis 717 (1997) ............csccccscsseceeoeee 15 :

Mashantucket Pequot Tribe v. McGuigan, 626 :

F. Supp. 245 (D. Conn. 1986) .....c..cccccccssscscceseos 10

Maxa v. Yakima Petroleum, Inc., 924 P.2d 3872 i

(Wash. Ct. App. 1996), review denied, 1997 i

Wee: Tie Re Te oes ek a 15 4

McClanahan v. Arizona State Tax Comm’n, 411

Rega BO UTED ecinidess aise haseldete cmap atenn es ccak ce 11

Nat’l Farmers Union Ins. Co. v. Crow Tribe, 471

Baie ee oi la ee 12, 18, 14

Nenana Fuel Co., Inc. v. Native Village of Venetie,

GRE F.2d TESS CATAOA VOOR) wccive cess ceccccciecicccsececs 15

Printz v. United States, 521 U.S. ——, 138 L.Ed.2d

Da AOE. cciiecrusnais as ha eealbik PEE ALE Sle 9

Rice v. Olson, 324 U.S. 786 (1945) ...... SNS RAE CECE 11

Schaghticoke Indians of Kent, Connecticut, Inc. v.

Potter, 217 Conn. 612, 587 A.2d 139 (1991)........ 10

Three Affiliated Tribes of the Fort Berthold Reser-

vation v. Wold Engineering, 476 U.S. 877 t

RUDE | ccivsnscssasccnnsnssdidicaptnesiantinincmaionanaiaiiiale tiie siesta 8

TABLE OF

Continued

Page

Warren Trading Post v. Arizona Tax Comm., 380

Ra UIE ED eicustucidbiciicidiasschaatatt te cee ata. 11

Washington v. Confe derated Bands and Tribes of

the Yakima Indian Nation, 439 U.S. 463 (1979)... 7, 11

Williams v. Lee, 358 U.S. 217 (1959) ..................6, 7, 9, 11

Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832). 11

Constitution, Statutes:

RF gens ST: AAS AU crnssnccantcctn cateubabedies ecient 9

Connecticut Indian Land Claims Settlement Act of

October 18, 1983, Public Law 98-134, 97 Stat.

851, codified in 25 U.S.C. § 17565 ............. rates passim

Connecticut Public Act 96-142 effective May 29,

1996, codified at § 47-65b of the General Statutes

Ge EER gies MRR eat SN OO DT ot SREY 9

Act of April 11, 1968, the Indian Civil Rights Act

codified im 25 U.5.C. € 1822 oo... nk ccc cccccesccosee ..... passim

Act of April 11, 1968, the Indian Civil Rights Act

OgduneG ti Be UB. BA ies eh: 3,8

Indian Self-Determination and Education Assist-

ance Act, 25 U.S.C. 8§ 450 et seq. .......0000...c ec. 15

IN THE

Supreme Coot of the United States

OCTOBER TERM, 1997

No, -—-——

OweEN CHARLES,

Petitioner,

Vv.

MARILYN CHARLES,

Respondent.

Petition for a Writ of Certiorari to the

Supreme Court of Connecticut

PETITION FOR A WRIT OF CERTIORARI

The Petitioner, Owen Charles, respectfully petitions for

a writ of certiorari to review the judgment of the Con-

necticut Supreme Court in this case.

OPINIONS BELOW

The opinion of the Connecticut Supreme Court (App.

A, infra) is reported at 243 Conn. 255. The opinion of

the Connecticut Superior Court, reversed by the Connect-

icut Supreme Court (App. B, infra), is unreported but

available at 1997 Conn. Super. LEXIS 1259 (May 7,

1997).

JURISDICTION

The judgment of the Connecticut Supreme Court was

entered on November 18, 1997. App. A at la. No peti-

tion for rehearing was filed. This Court’s jurisdiction is

invoked under 28 U.S.C. § 1257.

STATUTES INVOLVED

Section 6 of the Connecticut Indian Land Claims Settle-

ment Act of October 18, 1983, Public Law 98-134, 97

Stat. 851, codified in 25 U.S.C. § 1755 provides:

1755. State jurisdiction over reservation

Notwithstanding the provisions relating to a spe-

cial 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. $§ 1321-1326].

Section 402 of Title IV of the Act of April 11, 1968,

the Indian Civil Rights Act codified in 25 U.S.C. § 1322

provides (emphasis added):

pr Ee one ee te see

1322. Assumption by State of civil jurisdiction ;

(a) Consent of the United States; force and effect

of civil law

The consent of the United States is hereby given

to any State not having jurisdiction over civil causes !

of action between Indians or to which Indians are

parties which arise in the areas of Indian country

situated within such State to assume, with the con-

sent of the tribe occupying the particular Indian

country or part thereof which would be affected by

such assumption [of state jurisdiction] such measure

of jurisdiction over any or all such civil causes of

action arising within such Indian country . . . to the

same extent that such State has jurisdiction over

other civil causes of action, and those civil laws of

such State that are of general application to private

persons or private property shall have the same force

and effect within such Indian country ... as they

lave elsewhere within that State... .

* * * ”

customs

Any tribal ordinance or custom heretofore or here-

inafter adopted by an Indian tribe, . . . in the exer-

cise of any authority which it may possess shall, if

not inconsistent with any applicable civil law of the

State, be given full force and effect in the determina-

tion of civil causes of action pursuant to this section.

Section 406 of Title IV of the Act of April 11, 1968,

the Indian Civil Rights Act codified in 25 U.S.C. § 1326

provides:

1326. Special election

State jurisdiction acquired pursuant to this title [25

U.S.C. §§ 1321 et seq.] with respect to... civil causes

of action, . . ., shall be applicable in Indian country

only where the enrolled Indians within the affected

area of such Indian country accept such jurisdiction

by a majority vote of the adult Indians voting at a

special election held for that purpose.

STATEMENT OF THE CASE

The Mashantucket Pequot Tribe is a federally recog-

nized Indian Tribe with a reservation in Ledyard, Con-

necticut. App. A at 2a; 25 U.S.C. § 1758(a). Petitioner,

Owen Charles, is an enrolled member of the Tribe. App.

A at 2a.

On October 23, 1995 the Mashantucket Pequot Tribe

adopted a family law ordinance which vested the Tribe’s

courts with civil jurisdiction over proceedings for dissolu-

tion of a marriage. App. B at 15a n. 5. On November 1,

1995, Marilyn Charles, a non-Indian who was and remains

a resident of Rhode Island, filed suit in the Connecticut

Superior Court against Petitioner seeking dissolution of

their marriage, as well as custody of their child, child

support and alimony. App. B at 12a-13a. The Petitioner,

both at the time of the filing of the Connecticut suit, and

since then, has resided on the Mashantucket Pequot Reser-

vation. 7d. The parties’ child is an enrolled member of

the Mashantucket Pequot Tribe.

In November 1996, Petitioner moved to dismiss the

state court action for lack of personal jurisdiction. App. B

at 14a. The motion was denied by the Connecticut Su-

perior Court in March 1996, Jd. Petitioner appealed that

ruling, but the appeal was dismissed by the Appellate

Division in September 1996 for lack of a final judgment.

App. B at 15a n. 4.

In October 1996 Petitioner initiated a suit in the Ma-

shantucket Pequot Tribal Court against Marilyn Charles

seeking dissolution of their marriage, custody and child

support. App. B at 15a. Marilyn Charles, through coun-

sel, entered an appearance in the Tribal Court case, id.

at n. 5, and filed an answer to the complaint admitting

all allegations of the complaint. Marilyn Charles did not

challenge the Tribal Court’s jurisdiction, but filed a motion

with the Tribal Court for a stay pending disposition of

the proceedings in the Connecticut courts. Jd. She has

further moved in the Tribal Court for alimony pendente

lite as well as custody and child support pendente lite.’

By motions filed with the Connecticut Superior Court in

October 1996 and March 1997, Petitioner, represented by

new counsel, sought to dismiss the state court action for

lack of jurisdiction. App. B at 16a. By opinion and order

entered on May 7, 1997, the Conuscticut Superior Court

granted the motion to dismiss, finding that it lacked juris-

diction over a suit for dissolution of a marriage brought

by a nonresident of the State, against a tribal member

living on the Reservation. App. B at 27a. The Court

found that a trial member’s domicile on the Reservation,

alone, was not a sufficient contact with the State to give

the State subject matter jurisdiction. 7d. In dismissing

the action, the Court further noted the potential availability

1 We are lodging a copy of the record of the proceedings in the

Tribal Court with the Clerk of this Court.

of the Mashantucket Pequot Tribal Court as a forum for

resolution of this matter. Jd.

Marilyn Charles appealed the Superior Court's May 7

decision to the Connecticut Appellate Court, and the case

was shortly thereafter transferred to the Supreme Court of

Connecticut. App. A at 2a. The Supreme Court of Con-

necticut, by a decision issued on November 18, 1997,

reversed the Superior Court’s ruling. App. A at 2a-3a.

The Court reasoned that “[t]he Superior Court has exclu-

Sive jurisdiction of all complaints seeking a dissolution of

marriage,” and that Connecticut statutes imposed a resi-

dency requirement “satisfaction of which is essential to

confer on the court subject matter jurisdiction.” App. A

at 3a (footnote omitted). Because the plaintiff in the case

was not a Connecticut resident, the Court held that state

court jurisdiction could only be satisfied if the defendant—

a tribal member living on the Reservation—were deemed

a resident of the State. Jd. The Court concluded that he

was and that as a matter of state law the Superior Court

had jurisdiction in the case. Jd. at 11a.

The Connecticut Supreme Court further concluded that

the federal statute governing Connecticut's jurisdiction over

Indians on the Mashantucket Pequot Reservation—the

Connecticut Indian Land Claims Settlement Act, 25 U.S.C.

§ 1755—-vested the State with civil jurisdiction to adjudi-

cate a divorce proceeding brought against an Indian resid-

ing on the Mashantucket Pequot Reservation. App. A at

3a-4a, lla. Although the Settlement Act incorporates by

reference the requirements of Public Law 280 as amended

—under which the United States permits, but does not

require, a State to assume jurisdiction over Indian country

provided, however, that any such assumption of jurisdiction

by the State be with the consent of the Tribe—the Con-

necticut Supreme Court concluded that under the Settle-

ment Act, Tribal consent was not needed. App. A at 4a,

6a-lla. The Court did not address the need for any formal

act of the State of Connecticut assuming the jurisdiction

offered by Congress.”

In holding that the State may exercise civil jurisdiction

on the Reservation, the Connecticut Supreme Court rea-

soned that because the Settlement Act expressly excluded

the requirement that a “special election” be used to manifest

tribal consent to a state’s assumption of jurisdiction, as set

out in the 1968 amendments to Public Law 280, 25 U.S.C.

§ 1326, the Settlement Act eliminated all requirements

for Tribal consent to state jurisdiction, including that which

separately appears in another section of Public Law 280.

That separate section, 25 U.S.C. § 1322(a), sets the pro-

cedures by which a state may agree to assume civil juris-

diction over Indian country and requires both “the consent

of the tribe” and a state assumption of jurisdiction. See

App. A at 7a-8a, 9a.

REASONS FOR GRANTING THE WRIT

I. THE CONNECTICUT SUPREME COURT RE-

SOLVED INCORRECTLY AN IMPORTANT QUES-

TION OF THE STATE’S CIVIL JURISDICTION

OVER INDIANS ON THEIR RESERVATION.

This case, like Williams v. Lee, 358 U.S. 217, 218

(1959), raises an “important question of state power over

Indian affairs’—-whether a state court may exercise juris-

diction over a civil suit brought by a non-Indian against an

Indian living on the reservation. This turns on the inter-

pretation of a federal statute, and the quintessential federal

question of a state’s authority to assert jurisdiction over

Indians on a reservation. Because it has significant long-

term effects on the relationship between the State of Con-

2 Our search of Connecticut law reveals no act by which the State

formally undertook to assume jurisdiction over the Mashantucket

Pequot Reservation, although, as discussed infra, the State did

enact a statute to assume criminal jurisdiction over another Indian

reservation—the Mohegan Reservation—in order to implement the

jurisdictional provisions of a federal settlement act involving that

tribe.

necticut and the Mashantucket Pequot Tribe, this case

warrants Supreme Court review.

Il. THE CONNECTICUT SUPREME COURT MISCON-

STRUED THE CONNECTICUT INDIAN LAND

CLAIMS SETTLEMENT ACT.

The Court’s construction of the Connecticut Indian

Land Claims Settlement Act to conclude that the State

had civil jurisdiction over the Mashantucket Pequot Reser-

vation, in the absence of any formal act by the State as-

suming such jurisdiction or consent by the Tribe, is in

clear conflict with established precedent of this Court.

The jurisdictional provision of the Connecticut Indian

Lands Claims Settlement Act, 25 U.S.C. § 1755, expressly

incorporates by reference the requirements of Public Law

280 as amended in 1968. Public Law 280 effectively

imposes three preconditions to a state’s assumption of

jurisdiction over Indian country. First, the United States

must give its consent, and such consent is reflected in the

erms of both the Settlement Act and Public Law 280

itself. See 25 U.S.C. §§ 1755, 1322(a). Second, the State

must take some formal action® manifesting its intent to

assume Or assert jurisdiction over the Reservation—be-

yond simply the exercise of jurisdiction at the behest of a

private party in a particular civil action. 25 U.S.C.

$§ 1322(a), 1324. See Williams vy. Lee, 358 U.S. 217,

222 (1959); Kennerly v. District Court of Montana, 400

U.S. 423, 427 (1971): Washington v. Confederated

Bands and Tribes of the Yakima Indian Nation, 439 U.S.

463, 485-86 n.30 (1979). Third, because Congress under-

stood that a state’s assumption of jurisdiction could have

’ While the form by which the State chooses to manifest its

intent to assume jurisdiction over Indian country is not dictated by

the federal statute, but a matter of state law, see Washington v.

Confederated Bands and Tribes of the Yakima Indian Nation, 429

U.S. 463, 484-93 (1979), the significance that an assumption of

jurisdiction has on the interests of both a state and a tribe require

some formal act by the state. See id. at 486 n.30, 493.

serious implications for tribal sovereignty, Congress also

required that a tribe consent to the state’s assumption of

jurisdiction before such jurisdiction is granted. 25 U.S.C.

§$ 1322(a). Tribal consent is an integral part of this

statutory scheme.‘ In addition, under Public Law 280,

where all three preconditions are met, the State is still

required to apply tribal law and custom, if not inconsistent

with the civil law of the State, in determining civil causes

of action pursuant to that section. 7d. at § 1322(c).

Congress very delibesately chose to invoke the require-

ments of Public Law 9 as amended when Congress

enacted the Connecticut indian Land Claims Settlement

Act in 1983. The only part of Public Law 280 that Con-

gress directed not apply—as Congress expressly stated in

section 1755—was the “special election” procedures the

1968 Amendments required be used to manifest tribal

consent to a state’s assumption of jurisdiction.° Thus.

while § 1755 of the Settlement Act does not condition

Connecticut’s assumption of jurisdiction on a “special

election” by tribal members as provided in 25 U.S.C.

§ 1326, Congress otherwise quite carefully chose not to

*“The impetus for the addition of a consent requirement in the

1968 amendments [to Public Law 280} was congressional dissatis-

faction with the involuntary extension of state jurisdiction over

Indians who did not feel they were ready to accept such jurisdic-

tion, or who felt threatened by it.” Three Affiliated Tribes of the

Fort Berthold Reservation v. Wold Engineering, 476 U.S. 877, 892

(1986) (citing S. Rep. No. 721, 90th Cong., Ist Sess., 32 (1967)).

* Section 1326 specifies a procedure by which tribal consent would

be manifested, requiring that “the enrolled Indians within the

affected area of such Indian country accept such jurisdiction by a

majority vote of the adult Indians voting at a specia! election held

for that purpose.” 25 U.S.C. § 1326. Presumably, however, in the

era of Self-Determination, Congress found it unnecessary to dictate

to the Mashantucket Pequot Tribe the manner by which it could

manifest its consent to a state’s assumption of jurisdiction, but

instead left the Tribe, like the State, see Note 3, supra, free to

deterraine for itself the appropriate method by which this might

be done.

omit all other requirements of Public Law 280, specifi-

cally that (a) the State manifest its intent to assume

jurisdiction over the Reservation by some formal action,

25 U.S.C. § 1322(a) and (b) that the Tribe consent to

the State’s assumption of jurisdiction as separately re-

quired by 25 U.S.C. § 1322(a). Indeed, given the con-

straints imposed by the Tenth Amendment of the United

States Constitution on Congress’ power to compel a state

to assume a federal obligation, see Printz v. United States,

348 4S. -, 138 L.Ed.2d 914 (1997), we question

whether Congress could have constitutionally conferred

such jurisdiction on a state without allowing the state, by

some subsequent act, to choose whether it would agree to

assume the responsibilities and burdens that—as_ this

Court has found—accompany the assumption of such

jurisdiction. See Williams v. Lee, 358 U.S. 217. 220

(1959); Kennerly v. District Court of Montana, 400 U.S.

423, 427 (1971).

Significantly, neither of the two requirements imposed

by Public Law 280—a formal State act assuming juris-

diction, or consent by the Tribe—has been satisfied with

regard to the Mashantucket Pequot Reservation. First,

there is no evidence that Connecticut has manifested its

intent to assume jurisdiction over Indians on the Mashan-

tucket Pequot Reservation by any formal action. The

State however, apparently recognizes that some such for-

mal action is required to assume jurisdiction over Indian

country, as the State—in the context of assuming juris-

diction over another reservation in the State (the Mohe-

gan Reservation)—expressly enacted a statute formally

assuming jurisdiction. See Connecticut Public Act 96-14?

effective May 29, 1996, codified at § 47-65b of the Gen-

eral Statutes of Connecticut. That statute recites:

The state of Connecticut assumes criminal jurisdic-

tion and civil regulatory jurisdiction pursuant to the

May 17, 1994 Agreement and the May 17, 1994,

Gaming Compact between the state of Connecticut

and the Mohegan Tribe of Indians of Connecticut

and Public Law 103-377."

In stark contrast to this act of the State Legislature, Con-

necticut has done nothing to formally manifest its intent

to assume civil jurisdigion over the Mashantucket Pequot

Reservation. t

The lack of compliance by the State of Connecticut with

the provisions of Public Law 280 for assuming civil juris-

diction over the Mashantucket Pequot Reservation was

noted by the federal district court in Mashantucket Pe-

quot Tribe v. McGuigan, 626 F. Supp. 245 (D. Conn.

1986). There, in the context of holding that state bingo

laws did not apply to the Mashantucket Pequot Tribe’s

bingo operation, the federal district court noted that:

There is no claim that Connecticut has formally

acted to assume jurisdiction over the land which now

constitutes plaintiff's Reservation . . . nor that the

tribe has consented to such assumption. .. .

Id. at 247. The court further noted that the Settlement Act

placed the Mashantucket Pequot Reservation “on the

same footing as Indian land then controlled by . . . the

successor to Public Law 83-280,” id. at 248, but that

by eliminating the special election requirement contained

in section 1326, Congress “may have created an anomaly

by the fact that it does not eliminate the consent require-

ment of 25 U.S.C. section 1321.” Id. The court, how-

ever, found it unnecessary to resolve the question of tribal

consent as it declined to find state jurisdiction to enforce

its bingo laws on the Reservation on other grounds. 7d.

Since Connecticut has never formally acted to assume

jurisdiction over the Mashantucket Pequot Reservation,

6 Similarly, the Connecticut Supreme Court in Schaghticoke In-

dians of Kent, Connecticut, Inc. v. Potter, 217 Conn. 612, 587 A.2d

139 (1991) concluded that some formal manifestation of the State’s

intent to assume civil jurisdiction over Indians on a reservation is

required by Public Law 280.

there likewise has been no need for the Tribe to formally

indicate whether it would consent to the State’s assump-

tion of such jurisdiction—as is required by § 1322. And

the absence of formal State action assuming jurisdiction

over the Mashantucket Pequot Reservation, coupled with

the complete lack of Tribal consent to the State’s asser-

tion of jurisdiction, bar the State from now claiming

it has civil jurisdiction over matters involving Indians on

the Reservation.

The Connecticut Supreme Court’s decision thus con-

flicts with established and longstanding precedent of this

Court which (1) hold that states lack jurisdiction over

Indians on their reservations unless Congress, by a clear

and plain statement has consented to such jurisdiction; *

(2) require strict compliance with federal statutes au-

thorizing a state to assume jurisdiction over Indian

country; and (3) require any doubt to be resolved

against a state’s assumption of jurisdiction and in favor of

preserving tribal sovereignty.”

7 As this Court has stated: “[t]he policy of leaving Indians free

from state jurisdiction is deeply rooted in the Nation’s history.”

Rice v. Olson, 324 U.S. 786, 789 (1945). “[F]rom the very first

days of our Government, the Federal Government had been per-

mitting the Indians largely to govern themselves, free from state

interference, ....” Warren Trading Post v. Arizona Tax Comm.,

380 U.S. 685, 686-87 (1965). “Congress has also acted consistently

upon the assumption that the states have no power to regulate the

affairs of Indians on a reservation.” Williams v. Lee, 358 U.S. 217,

220 (1959). Accord McClanahan v. Arizona State Tax Comm'n,

411 U.S. 164, 170-71 (1973) ; Worcester v. Georgia, 31 U.S. (6 Pet.)

515 (1832).

* Williams v. Lee, 358 U.S. 217, 218, 222 (1959); KXennerly v.

District Court of Montana, 400 U.S. 423 (1971); Washington v.

Confederated Bands of Yakima Indian Nation, 439 U.S. 463, 484

(1979) (“{A]mbiguities in legislation affecting retained tribal

sovereignty are to be construed in favor of the Indians ...”). See

also Bryan v. Itasca County, 426 U.S. 373, 392 (1976) (“[I|n con-

struing this ‘admittedly ambiguous’ statute, we must be guided by

that ‘eminently sound and vital canon’ that ‘statutes passed for the

Ill. THE DECISION OF THE CONNECTICUT SU-

PREME COURT CONFLICTS WITH THE WELL

SETTLED RULE OF FEDERAL LAW THAT

COURTS SHOULD ABSTAIN FROM EXERCIS-

ING JURISDICTION UNTIL A TRIBAL COURT

HAS HAD AN OPPORTUNITY TO EXERCISE ITS

JURISDICTION.

This Court’s decisions in Nat'l Farmers Union Ins. Co.

v. Crow Tribe, 471 U.S. 845 (1985) and lowa Mutual

Ins. Co. v. LaPlante, 480 U.S. 9 (1987) establish a policy

of abstention in favor of tribal court jurisdiction in cases

where jurisdiction lies in both federal court and tribal

court. The teaching of these cases is simple. Where such

concurrent jurisdiction is present, civil jurisdiction “pre-

sumptively lies in the tribal courts unless affirmatively lim-

ited by a specific treaty provision or federal statute.”

LaPlante, 480 U.S. at 18; see also Nat'l Farmers Union,

471 U.S. at 855-57. This should be particularly so where

the matter at issue is the marital status of a tribal mem-

ber residing on the Tribe’s Reservation. Thus while not a

matter of this Court’s supervisory authority over the lower

federal courts, the abstention doctrine reflects important

federal interests in protecting tribal sovereignty and should

have equal application here.

This abstention doctrine was born out of a concern

that the federal government’s longstanding policy of pro-

moting tribal self-government through the development

of tribal courts would be frustrated without a policy of

deference to tribal courts when jurisdiction lies concur-

rently with a tribal court and a federal court. Nat'l Farm-

ers Union, 471 U.S. at 856; LaPlante, 480 U.S. at 15-16.

In both cases the Court found that although federal sub-

ject matter jurisdiction existed, the government’s firmly

established policy of promoting Indian self-governance and

benefit of dependent Indian tribes ... are to be liberally construed,

doubtful expressions being resolved in favor of the Indians.’ ”’)

(citations omitted).

self-determination required exhaustion of tribal court rem-

edies before any action on the same subject matter could

be maintained in federal court. Nat'l Farmers Union, 47]

U.S. at 856; LaPlante, 480 U.S. at 18. The Court recog-

nized that few if any such cases (especially those involv-

ing non-Indians) would be heard by tribal courts without

such deference, effectively undermining tribal law-making

authority and tribal institutions. In addition to furthering

tribal self-governance, the Court found that deferral to

tribal courts in these instances would foster the “orderly

administration of justice” by avoiding the “ ‘procedural

nightmare’” often alleged when tribal courts share juris-

diction with another court. Nat'l Farmers Union, 471 U.S.

at 856.

The same policy considerations that underlie the ab-

stention rule in the context of concurrent federal jurisdic-

tion apply with equal, if not greater, force where a state

court seeks to assert jurisdiction over a matter within the

jurisdiction of the tribal court. The abstention doctrine

promotes tribal sovereignty because it protects the tribal

courts from the harsh realities of concurrent jurisdiction

—that tribal courts will hear relatively few cases within

their jurisdiction. That same reality is just as prevalent

when jurisdiction lies concurrently between a state court

and tribal court. As this Court noted, “[i]f state-court

jurisdiction over Indians or activities on Indian lands

would interfere with tribal sovereignty and self-government,

the state courts are generally divested of jurisdiction as

a matter of federal law.” LaPlante, 480 U.S. at 15. Thus

even where states and tribes might share jurisdiction, the

promotion of Indian self-government dictates that absten-

tion in favor of tribal courts is required. “The federal

policy favoring tribal self-government operates even in

areas where state control has not been affirmatively pre-

empted by federal statute.” 7d. at 14. And as this Court

has found “[a]djudication of such matters by any nontribal

court also infringes upon tribal law-making authority, be-

cause tribal courts are best qualified to interpret and apply

tribal law.” 7d. at 16 (emphasis added).

Abstention is warranted in this case. There is no dis-

pute that the Mashantucket Pequot Tribal Court has juris-

diction to hear and decide a dissolution of marriage pro-

ceeding involving a tribal member residing on the Reserva-

tion. App. B at 15a, n. 5. Although asked to dismiss this

action to allow the matter to be heard in the Tribal Court,

the Connecticut Supreme Court declined to address the

exhaustion doctrine. Its failure to do so conflicts with

another decision of the State court, in particular Drumm

v. Brown, No. CV-96-079971, p. 4 (Judicial District of

Middlesex at Middletown June 27, 1997) appeal pend-

ing, where the State court expressly concluded that under

the dictates of this Court’s decisions in Natl Farmers

Union and LaPlante, the Mashantucket Pequot Tribal

Court “should have the first opportunity to determine its

jurisdiction,” and dismissed the State court action.°

Moreover, application of the abstention doctrine is all

the more compelling given the facts of this case. The only

contact that the Connecticut courts claim to have with re-

gard to the litigation is based on the Court’s conclusion

that a tribal member living on the Reservation is a resident

of the State. The non-Indian plaintiff in the Connecticut

suit is not a resident of the State of Connecticut—but

resides in Rhode Island. Moreover, under Public Law

280, even if the State were found to have civil jurisdic-

tion, the State may be called upon to apply principles of

tribal law in resolving questions related to the dissolution

of the marriage. See 25 U.S.C. § 1322(c). Given the

availability of a Tribal forum to do this, no purpose is

served by the State’s assumption of jurisdiction in these

circumstances.

Proper application of this Court’s decisions in Nat’]

Farmers Union and LaPlante by state courts is becoming

®We are lodging a copy of this opinion with the Clerk of this

Court.

Eee

increasingly important as more tribal governments—like

the Mashantucket Pequot—utilize the self-governance tools

provided by Congress to develop tribal court systems.””

But as the number of tribal courts increase, so do the

instances of concurrent jurisdiction with various state

courts, and the greater the threat to tribal sovereignty and

self-determination posed by an absence of a ruling requir-

ing deference to tribal court jurisdiction."’ The circum-

stances of this case illustrate this point. The tribal gov-

ernment here recently established its tribal court system.

Without an adequate opportunity to exercise its jurisdic-

tion, its entire system is severely undermined. Federal

policy favors the development of tribal courts and recog-

nizes that this can only be achieved by allowing tribal

courts the first opportunity to hear a case when jurisdic-

tion is shared. As this Court stated: “[p]romotion of

tribal self-government and self-determination require[s]

that the Tribal Court have the first opportunity [to exer-

10 See Indian Self-Determination and Education Assistance Act,

25 U.S.C. §§ 450 et seq. (encouraging the development of tribal judi-

cial systems through direct contracting with the federal government).

11 Unfortunately, state courts have not uniformly applied the

rule of abstention. E.g., Gavle v. Little Six, Inc., 555 N.W.2d 284,

292 (Minn. 1996), petition for cert. filed (Jan. 29, 1997) (finding

that Nat'l Farmers Union and LaPlante need not be followed by

state courts unless an assumption of jurisdiction “infringes” upon

tribal sovereignty) ; Granite Valley Hotel Ltd Partnership v. Jack-

pot Junction Bingo & Casino, 559 N.W.2d 135, 137 (Minn. Ct. App.

1997) (same); Maza v. Yakima Petroleum, Inc., 924 P.2d 372

(Wash. Ct. App. 1996), review denied, 1997 Wash. Lexis 218(1997).

But see Bowen v. Doyle, 880 F. Supp. 99, 123-26 (W.D.N.Y. 1995)

(applying the tribal court exhaustion doctrine to state courts):

Nenana Fuel Co., Inc. v. Native Village of Venetie, 834 P.2d 1229,

1233-35 (Alaska 1992) (recognizing the applicability of the absten-

tion doctrine to state courts when jurisdiction is shared with tribal

courts) ; Matsch v. Prairie Island Indian Community, 567 N.W.2d

276 (Minn. Ct. App.), review denied, 1997 Minn. Lexis 717 (1997)

(dismissing state court action in favor of a concurrent tribal court

action under Nat’l Farmers Union and LaPlante); Klammer v.

Lower Sioux Convenience Store, 535 N.W.2d 379 (Minn. Ct. App.

1995) (same).

cise jurisdiction].” LaPlante, 480 U.S. at 15-16 (internal

quotation omitted).

CONCLUSION

For all of the foregoing reasons, Petitioner respectfully

prays that this Court grant the petition and reverse the

decision below.

Respectfully submitted,