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Will tribal police arresting non-Indians be immune to non-tribal lawsuits?

By David Collins

Publication: The Day

Published May 15. 2013 4:00AM

From the beginning, I've thought Gov. Dannel Malloy's plan to allow tribal police to take over much of the casino policing from Connecticut State Police was a terrible idea.

It is puzzling why the governor would go so far out of his way to accommodate the tribe's wishes to diminish the state police presence at the casinos since the tribes are required to pay for it, by the same compact that gives them permission to conduct gambling in the first place.

The governor's timing is especially odd, given the fact that the tribal member who was recently given executive authority over the Mashantucket Pequot police department has a criminal history and the Mashantuckets' treasurer is under federal indictment.

To accomplish this standing down of state police at the casinos, tribal police would be given the authority, for the first time, to arrest non-Indians.

I had a conversation this week with a lawyer who does a lot of work in tribal courts. Under the proposal before the General Assembly, the lawyer said, it appears civil complaints against tribal police would have to be brought in tribal court, a worry the governor's staff claims is unfounded, because a plan is in place to change that.

The notion of civil complaints against tribal police going to tribal courts, the lawyer said, is problematic, in part because tribal courts limit damages in a way that Connecticut courts don't.

A civil complaint against a Mohegan tribal police officer, accused of excessive force, was dismissed in 2010 in the tribe's Gaming Disputes Trial Court, the lawyer told me, because the tribe has not waived its sovereign immunity for monetary claims brought under the Indian Civil Rights Act.

The deck is already stacked against anyone bringing a civil claim in tribal court in regard to an arrest by a tribal police officer, the lawyer said.

I raised this objection with Mike Lawlor, the undersecretary in the state Office of Policy and Management who is Malloy's point person on empowering tribal police to arrest non-Indians, and he told me the tribes will waive their sovereign immunity against lawsuits brought by non-Indians arrested by tribal police. That would allow claims to proceed in Connecticut courts.

The trouble is that the waivers would not be made until after the General Assembly votes to empower the tribal police.

The way the proposed legislation is written, the state's police commissioner and lead prosecutor would have the sole authority to negotiate separate memorandums of understanding with each tribe that could spell out how the arrest of non-Indians would work.

Lawlor told me the state would not agree to any memorandums in which the tribes don't make relevant waivers of sovereign immunity for cases in Connecticut courts.

But the General Assembly lawmakers have to take his word on that when they push the button to green light the arrest of non-Indians by tribal police.

It is hard to imagine that lawmakers would leave it up to the state's chief law enforcement officer and chief prosecutor to decide where people's civil claims against police officers will be heard.

Shouldn't they see those memorandums of understanding before they vote, to know that the tribes will indeed allow civil claims against arresting police officers go forward in Connecticut courts? Or shouldn't the legislation itself clearly spell out those waivers?

Connecticut's non-Indians should pay close attention to which lawmakers are protecting their civil rights and which ones are following the governor on his inexplicable mission to appease the state's two gambling tribes and give them new arrest authority.

This is the opinion of David Collins

Town News

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