# Opposition Brief — Charles v. Charles

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_2221%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1998
- **Citation:** 523 U.S. 1136

## Text

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.

2

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.

3

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,

4

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

5

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

6

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

7

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_2221%3A3. Public record. Not legal advice.