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(Cite as:2005 WL 1670783)

UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING.

Superior Court of Connecticut,

Judicial District of Litchfield, Geographic Area 18.

STATE of Connecticut

v.

Michael ROST.

No. LLI18WCR040114451S.


June 13, 2005.

SHABAN, J.

*1 Defendant has filed a motion for Stay of Prosecution dated November 12, 2004, arguing that the Court should stay criminal proceedings against the defendant until such time as a final decision is issued by the United States Dept. of the Interior's Bureau of 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 has been charged with Criminal Mischief in the First Degree (C.G.S.Sec.53a–115) and Reckless Endangerment in the Second Degree (C.G.S.Sec.53a–64) for an incident which took place on the grounds of the Schaghticoke Indian Reservation on or about March 28, 2004 in Kent, Connecticut. Mr. Rost had been hired by a co-defendant Alan Russell to do construction work on the reservation. 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. 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) claiming that 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 acknowledgment 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 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 Preston Mountain Club, Inc. and the State of Connecticut.

Whether a state has criminal jurisdiction over crimes committed by “Indians” in “Indian Country” is controlled by the federal Indian Civil Rights Act, 25 U.S.C. Sections 1301 though 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.

Mr. Rost states that he relied on the claimed authority of Mr. Russell as tribal chairman of the SIT to enter onto the property and commence construction work thereon. Because there is a dispute as to whether the SIT or the STN has proper authority over tribal affairs and lands, Mr. Rost has asked for a stay of prosecution until such dispute is resolved by the BIA.

*2 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). 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 occurring in “Indian country” (as defined in 25 U.S.C. Sections 1301 et seq.). 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.

In this case the defendant Rost does not claim to be an Indian as defined under the Act. Also, the stipulated admission of the copy of the May 12, 2005 decision of the IBIA (Defendant Russell Exhibit 2) ordering a remand to the hearing officer makes clear that the question of federal acknowledgment is still pending within the Department of the Interior. It is also clear that the Schaghticoke Tribe is an entity recognized by the State of Connecticut.  FN2 While this court does find sufficient evidence to establish that the codefendant Mr. Russell is a member of the Schaghticoke Tribe, and that he is an “Indian” for purposes of state law, there was no evidence 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, the defendant has failed to show that there was any evidence of a final federal acknowledgment for either the SIT or the STN. Based on the above facts and the precedent set forth in Sebastian, this court cannot conclude that the Schaghticoke Tribe, either in the form of the SIT or the STN, has received final federal acknowledgment as of the date of Mr. Rost's arrest. Hence, the State of Connecticut retains criminal jurisdiction in this matter.

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

Defendant has 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 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 further delay the resolution of the issue of tribal acknowledgment. The greater the delay to a trial date in the 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.

*3 For the foregoing reasons, the Motion for Stay of Prosecution is denied.

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