Opposition Brief — Charles v. Charles

rts D

Dp.

No. 97-1336 ' APR 20 8

Clerk

In The

Supreme Court of the United States

-

October Term, 1997

OWEN CHARLES,

Petitioner,

VS.

MARILYN CHARLES,

Respondent.

On Petition for Writ of Certiorari to the

Supreme Court of Connecticut

RESPONDENT’S BRIEF IN OPPOSITION

DAVID P. GACCIONE

Attorney for Respondent

21 Huntington Street

New London, CT 06320

(860) 443-1887

st (200) 274-3321 = (800) 359-6859 LX ooellate

A DIVISION OF COUNSEL PRESS Services, inc.

i

QUESTION PRESENTED FOR REVIEW

Whether the State of Connecticut Supreme Court correctly

decided that the Mashantucket Pequot Indian Settlement Act of

1983 conferred civil jurisdiction upon the state of Connecticut

in a private dissolution action pursuant to 25 U.S.C. §§ 1322

and 1755.

il

PARTIES TO PROCEEDINGS BELOW

ASS TRS te

Respondent agrees with the Petitioner’s list, Pet., p. 1.

iti

TABLE OF CONTENTS

Page

Questions Presented for Review ................... i

Parties to Proceedings Below ..................... ii

hls ae a wg ca cc vine ili

SERS SRST i ae a ee eee iv

I ie cca l

I NN oc acewcesacccecs l

I oe l

Reasons for Denying the Writ .................... l

I. The Decision Of The Connecticut Supreme Court

Relied Upon And Is Consistent With The

Decisions Of The United States Supreme Court

SERS IES BSE A tas Cretan s Be 2

II. The Matter Before This Court Is A Civil Action

For Dissolution Of Marriage. It Has No

Significance Beyond The Private Interests Of The

Husband And Wife Parties Herein. .......... =

GES NRE SESE ae re ee ot ger nae a 7

iv

Contents

Page

TABLE OF CITATIONS

Cases Cited:

California v. Cabazon Band of Mission Indians, 107 S.

Ct. 1083, 480 U.S. 202, 94 L. Ed. 2d 244 (1987)

Pe Ee VP rr Per OOTP Ore Bee er ee eee oe? 6

Charles v. Charles, 243 Conn. 255, 701 A.2d 650 (Conn.

od f MPEP eee eee PEE OE Ove Ce Teo ES 3

Deere v. State of New York, 22 F.2d 851 (D.C. N.D. N.Y.

pt) ee er epee rarn nae te eben eset Ge win, eh hear amen gy ae 6

Firestone v. Cleveland Trust Co., C.A. 6 (Ohio) 1981,

Ge Sea ROEM oo5 5 543 64S ke ee eee 5

Golden Hill Paugussett Tribe of Indians v. Town of

Southbury, 231 Conn. 563, 651 A.2d 1246 (1995)

jek MLLER ERASER ERA ELOMESS We CODES RIOD ES e En 5, 6

Kennerly v. District Court of Montana, 400 U.S. 423, 91

mS. SU Be Ss Ss a RUPTE) bs ees de dan 3

Negonsott v. Samuels, 113 S. Ct. 1119, 1122 (1993) . 3

Poafpybitty v. Skelly Oil Company, 390 U.S. 365, 88 S.

Ce Bias 5 Bac ie Be PE i Ga ees owedeoinsn®s 5

Rice v. Rehner, 103 S. Ct. 3291, 463 U.S. 713, 77 L.

Ses ee Se RSD 08 05 oS ees eee Meee eee’ 5

Contents

Page

Smith v. Smith, 150 Conn. 15, 183 A.2d 848 (1962) . 5

State v. Spears, 234 Conn. 78, 662 A.2d 80, cert. denied,

516 U.S. 1009, 116 S. Ct. 565, 133 L. Ed. 2d 490

fo BEE EEO R TST PE Peer ro Da Res ie oe

Three Affiliated Tribes of the Fort Berthold Reservation

v. Wold Engineering, P.C., 467 U.S. 138, 104 S. Ct.

Bee OE hee ee We BED CEDOO bb oe edadcow seis 5, 6

White v. Califano, 437 F. Supp. 543 (1977) ......... 6

Wickins v. Rogers, C.A. 4 (S.C.) 1978, 581 F.2d 399 . 5

Statutes Cited:

Me as DOPE oi cthe hese cavern ee i, 3

Be Wea RPE i cbc ohooh caso ae nee en 4

Sa EE Ci Cok ace bak Chee eaeci een ine 3

fe Gk oe Bee 2 ie ee Ne a aera 2

ee See OF AER co biwntee bee eek th cnkooe liber 3

SPA BEMES baie oki bodes base scuba ie

l

OPINION BELOW

Respondent agrees with Petitioner’s statement.

STATEMENT OF JURISDICTION

Respondent agrees with Petitioner’s statement.

STATEMENT OF THE CASE

The Respondent agrees with the Petitioner’s STATEMENT

OF THE CASE (Pet., pp. 3-6) except that the State Supreme

Court found that in enacting the Settlement Act, Congress

intended to confer, i.e. grant, both civil and criminal jurisdiction

to the state of Connecticut without the need for any further

state or Tribal action. (Emphasis added).

REASONS FOR DENYING THE WRIT

The Connecticut Supreme Court’s decision in this case is a

direct application of its well reasoned decision in State v. Spears,

234 Conn. 78, 662 A.2d 80, cert. denied, 516 U.S. 1009, 116

S. Ct. 565, 133 L. Ed. 2d 490 (1995).

The action before this Court is a civil dissolution of

marriage. Its significance does not extend beyond the private

interests of the husband and wife who are the only parties herein.

The Mashantucket Pequot Tribal Nation is not a party to this

action. It is a matter between a husband and wife and has no

effect on tribal sovereignty or self-government. There are no

important issues of Federal law involved here, the case sets no

precedent and the issue is unlikely to reoccur.

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I.

THE DECISION OF THE CONNECTICUT SUPREME

COURT RELIED UPON AND IS CONSISTENT WITH

THE DECISIONS OF THE UNITED STATES SUPREME

COURT AND STATE LAW.

The assumption of state civil jurisdiction over the Petitioner

in this action is based upon a direct application of the rational

used by the Connecticut Supreme Court in its decision in the

Spears case. (The Spear’s decision was denied Certiorari on

December 4, 1995).

In Spears, after a exhaustive and deliberate analysis of the

provisions within the Mashantucket Land Claims Settlement

Act of 1983', Federal law and statutes, the Connecticut Supreme

Court concluded that the state had acquired criminal jurisdiction

over the Mashantucket reservation.

Here, the Connecticut Supreme Court was again asked to

evaluate the provisions of the Settlement Act in order to

determine whether the state had been granted civil jurisdiction

over the Mashantucket Pequot Indians and reservation land.

The court unanimously concluded that the same principals of

statutory construction, Federal law and rational employed in

Spears to establish state criminal jurisdiction were equally

applicable to the civil jurisdiction question raised in this case.

The Settlement Act reflects a compromise settlement

between the federal government, the state of Connecticut and

the tribe over a civil land claims action. The tribe “was

1. The Mashantucket Pequot Indian Claims Settlement Act of

1983, Public Law 98-134, § 2, Oct. 18, 1983, 97 Stat. 851, codified

at 25 U.S.C. §§ 1751-60.

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represented in the action as well as in the hearings before

Congress, and manifested its consent to the terms of the

Settlement Act.” 25 U.S.C. § 1751(e). Spears, at 83. At the

time the Settlement Act was enacted, there was no tribal court

and it was clearly the intent and desire of the Mashantucket

Pequot tribe to have continuing civil jurisdiction in the state of

Connecticut.

In reaching its decision, the Connecticut Supreme Court

relied upon this Court’s determination that the only mechanism

by which a tribe could manifest its consent to state jurisdiction

is by the provisions set forth in 25 U.S.C. § 1326. Kennerly v.

District Court of Montana, 400 U.S. 423, 429, 91 S. Ct. 480,

483, 27 L. Ed. 2d 507 (1971). The Court was equally guided

by Negonsott v. Samuels, 113 S. Ct. 1119, 1122 (1993), where

this Court held that in determining the effect of a statute, “[o]ur

task is to give effect to the will of Congress. ... An enactment

should be read so as to give effect to every clause and word of

the statute.” (Internal quotations marks omitted).

In applying the above principals, the Connecticut Supreme

Court has consistently held that 25 U.S.C. § 1755 of the

Settlement Act effectively eliminated the consent provision

contained in section 1326 and was an “immediate, definitive

grant of state jurisdiction . . .” not requiring any further Tribal

consent. Spears at 87. (Also see Pet., p. 2).

Again here, the Court confirmed its Spears holding and

reiterated its conclusion that the Settlement Act was in itself

tribal consent to state jurisdiction; “[i]n agreeing to the

Settlement Act’s provisions, . . . the tribe relinquished its right

to require its consent to state jurisdiction”. Charles v. Charles,

243 Conn. 255, 701 A.2d 650, 655 n.15 (Conn. 1997).

It follows then that, under 25 U.S.C. § 1322,

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those civil laws of [Connecticut] that are of general

application to private persons or private property

shall have the same force and effect within such

Indian country or part thereof as they have elsewhere

within that State.

25 U.S.C. § 1322(a).

The Petitioner’s residence on the reservation can not enable

him to escape the jurisdiction of the state of Connecticut in an

action for dissolution of marriage.

Il.

THE MATTER BEFORE THIS COURT IS A CIVIL

ACTION FOR DISSOLUTION OF MARRIAGE. IT HAS

NO SIGNIFICANCE BEYOND THE PRIVATE

INTERESTS OF THE HUSBAND AND WIFE PARTIES

HEREIN.

The only parties to this action for dissolution for marriage

are the Petitioner husband and Respondent wife. The

Mashantucket Pequot Tribe is not a party to this action and

there are no tribal assets, property, rights or interest being sought.

The parties were married off the reservation, in New Haven,

Connecticut and they never resided together on the Mashantucket

reservation. The jurisdiction of the state of Connecticut is

confined to and concerned only with the rights and interests of

the respective parties.

The Petitioner attempts to use his status as a Mashantucket

Pequot tribal member to transform a dissolution of marriage

civil action into a Federal matter of tribal sovereignty. This court

has ruled that

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tribal sovereignty does not impede state court

jurisdiction unless the exercise of state-court

jurisdiction in [the] case would interfere with the

right of the tribal Indians to govern themselves under

their own laws.

Golden Hill Paugussett Tribe of Indians v. Town of Southbury,

231 Conn. 563, 651 A.2d 1246, 1253 (1995), (Internal

quotation marks omitted.) citing Three Affiliated Tribes of the

Fort Berthold Reservation v. Wold Engineering, P.C., 467 U.S.

138, 104 S. Ct. 2267, 81 L. Ed. 2d 113 (1984).

When appropriate, issues involving tribal sovereignty are

considered in decisions involving Indians, but, “[o]Jur

recognition of tribal sovereignty does not. . . render all matters

touching upon tribal decisions nonjusticiable.” Golden Hill

Paugussett Tribe of Indians v. Town of Southbury, 231 Conn.

563, 651 A.2d 1246, 1253 (1995). The right of an individual

Indian Citizen to sue or be sued in the courts of this land has

long been recognized by our judicial system. Poafpybitty v.

Skelly Oil Company, 390 U.S. 365, 370, 88 S. Ct. 982, 985,

19 L. Ed. 2d 1238, 1243.

A suit whose substance is domestic relations generally will

not be entertained in federal court even if it is brought under

the guise of a federal question. Firestone v. Cleveland Trust

Co., C.A. 6 (Ohio) 1981, 654 F..d 1212; the whole subject of

domestic relations belongs to laws of the states and not the

laws of the United States. Wickins v. Rogers, C.A. 4 (S.C.) 1978,

581 F.2d 399. An action for a dissolution of marriage is a civil

action. Smith v. Smith, 150 Conn. 15, 19, 183 A.2d 848 (1962).

In Rice v. Rehner, 103 S. Ct. 3291, 3295 463 U.S. 713, 77

L. Ed. 2d 961 (1983), this Court recognized that

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Congress has to a substantial degree opened the

doors of reservations to state laws. ... even on

reservations, state laws may be applied unless such

application would interfere with reservation self-

government or would impair a right granted or

reserved by federal! law.

(Internal quotations omitted) (Citations omitted). In addition,

“state laws may be applied to tribal Indians on their reservations

if Congress has expressly so provided.” California v. Cabazon

Band of Mission Indians, 107 S. Ct. 1083, 1087, 480 U.S.

202, 94 L. Ed. 2d 244 (1987). The Settlement Act expressly

provides Congressional approval for the state of Connecticut

to assume civil jurisdiction over the Mashantucket reservation.

Indeed, the failure of Connecticut to recognize and exercise

its civil jurisdiction over Indians residing on reservation lands

could violate their civil rights under the Equal Protection and

Due Process clauses of the Fourteenth Amendment. Golden Hill

Paugussett Tribe of Indians v. Town of Southbury, 231 Conn.

563, 651 A.2d 1246 (1995), citing Three Affiliated Tribes of

the Fort Berthold Reservation v. Wold Engineering, P.C., 467

U.S. 138 104 S. Ct. 2267, 81 L. Ed. 2d 113 (1984). “Indian

tribes have vestiges of sovereignty which must be guarded

carefully, but reservations are not analogous to foreign states.”

White v. Califano, 437 F. Supp. 543, 547 (1977).

The Petitioner is a citizen of the state of Connecticut because

Indians, as citizens of the United States, automatically become

citizens of the state of their residence. Deere v. State of New

York, 22 F.2d 851, 852 (D.C. N.D. N.Y. 1927). Accordingly,

he is afforded all of the privileges and benefits of such

citizenship and is subject to state civil jurisdiction.

The action before this Court is not a issue of Federal

importance or tribal sovereignty. In reaching its decision, the

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Connecticut Supreme Court considered and was guided by well

established principals of statutory interpretation to effectuate

the expressed Congressional purpose and intent contained within

the language in the Settlement Act. The correct decision was

reached.

CONCLUSION

For the foregoing reasons, this Court should deny the

Petition for a Writ of Certiorari.

Respectfully submitted,

DAVID P. GACCIONE

Attorney for Respondent

21 Huntington Street

New London, CT 06320

(860) 443-1887