Attorney General: The Honorable Mark Shiffrin, Department of Consumer Protection, 1998-024 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General Richard Blumenthal

Novebmer 23, 1998

The Honorable Mark Shiffrin
Commissioner
Department of Consumer Protection
165 Capitol Avenue
Hartford, CT 06106

Dear Commissioner Shiffrin:

You have asked this office for an opinion regarding whether Conn. Gen. Stat.  20-627 to 20-630 apply to the "Pequot Pharmaceutical Network", a pharmacy owned and operated by the Mashantucket Pequot Tribal Nation on the Mashantucket Pequot Reservation in Ledyard, Connecticut. These statutory provisions regulate "nonresident pharmacies", which are defined as "any pharmacy located outside this state which ships, mails or delivers, in any manner, legend devices or legend drugs . . . into this State." Conn. Gen. Stat.  20-627.1 Thus, the dispositive question is whether a pharmacy located solely on reservation land situated within the geographical boundaries of the State of Connecticut is "within" the State of Connecticut for purposes of the statute. We conclude that the "Pequot Pharmacy Network" is located within the State of Connecticut, and thus Conn. Gen. Stat.  20-627 to 20-630 do not apply.2

This office has previously addressed a virtually identical question relating to the applicability of state banking statutes to a branch office of a bank located on the Mashantucket Pequot Reservation. AG Opinion No. 95-024, John P. Burke, August 24, 1995 (attached as Exhibit A). In AG Opinion No. 95-024, this office concluded that a branch office of a Connecticut bank established on the Mashantucket Pequot Reservation was within the State of Connecticut for purposes of Conn. Gen. Stat.  36a-145(b) and P.A. 95-155.

As we noted in AG Opinion 95-024:

While federally recognized Indian tribes retain attributes of sovereignty over their members and reservation, "tribal lands within the boundaries of state or organized territories have always been considered to be geographically part of the respective state or territory." Cohen, Felix S., Handbook of Federal Indian Law (1982 Fed.) p. 649.

Federal and state cases and statutes and regulations support a finding that the Reservation is "in this state." The Tribe received federal recognition in 1983 by an act of Congress entitled the Indian Land Claims Settlement Act of 1983 (the "Settlement Act"). 25 U.S.C.  1751 et seq. The Settlement Act also established the boundaries of the Tribe's federal Reservation. Section 1752(7) of the Settlement Act defines the Reservation as: "The existing reservation of the Tribe as defined by Chapter 824 of Connecticut General Statutes and any settlement lands taken in trust by the United States for the Tribe." Conn. Gen. Stat.  47-63 in turn defines the Tribe's reservation as: "the Mashantucket Pequot reservation in the town of Ledyard, assigned to the Mashantucket Pequot Tribe." (Emphasis added.)

The Federal Gaming Procedures, which govern the gaming operations and other related matters on the Reservation, support a finding that the Reservation is "in this state" for purposes of Section 36a-145(b)(1). Section 2(t) defines the Tribe's "Reservation" as:

"Reservation" means the Indian lands of the Mashantucket Pequot Tribe within the State of Connecticut as defined by Section 4(4) of the Act, 25 U.S.C.  2703(4), including all lands within the Mashantucket Pequot Reservation as defined by 25 U.S.C.  1752(7) and all lands within the State of Connecticut title to which is either held in trust by the United States for the benefit of the Tribe or held by the Tribe .... (Emphasis added.)

In addition, federal statutes of general applicability provide further support for the principle that, as a general matter, Congress considers federal Indian reservations to be within states. The Indian Gaming Regulatory Act (IGRA), which governs Indian tribes' ability to conduct gaming on Indian reservations, provides:

Indian tribes have the exclusive right to regulate gaming activity on Indian lands if the gaming activity is not specifically prohibited by federal law and is conducted within a state which does not . . . prohibit such gaming activity.

25 U.S.C.  2701(5) (emphasis added). Furthermore, 25 U.S.C.  1321 and 1322, commonly referred to as P.L. 280, permits states to assume criminal and civil adjudicatory jurisdiction on federal reservations "in areas of Indian country situated within such state ..." (Emphasis added).

Finally, the Eighth Circuit Court of Appeals has determined that a federal reservation located in Minnesota was a "portion of a state." The Court stated:

That a tribal government exercises sovereign powers on a reservation and that reservation lands are held in trust by the United States does not prevent the reservation from constituting a portion of a state and a political subdivision of a state.

Shakopee Medwakanton Sioux Community v. City of Prior Lake, 771 F.2d 1153 (8th Cir. 1985), cert. denied, 475 U.S. 1011, 106 S.Ct. 1185 (1985).

This reasoning is directly applicable to the question you now ask and makes clear that the "Pequot Pharmaceutical Network" is within the State of Connecticut for purposes of Conn. Gen. Stat.  20-627 to 20-630. Consequently, the regulatory requirements of those statutes relative to "nonresident pharmacies" do not apply to the "Pequot Pharmaceutical Network".

We trust that this opinion answers your questions.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Eliot D. Prescott
Assistant Attorney General

RB/EDP/tb


Footnote:

1 Sections 20-627 to 20-630 require, inter alia, "nonresident pharmacies" to register with the Commissioner of Consumer Protection and submit proof of licensing by another state. A pharmacy that does not meet the definition of a "nonresident pharmacy" may be subject to the licensing requirements contained in Chapter 400j of the General Statutes.

2 Because we conclude that Conn. Gen. Stat.  20-627 to 20-630 do not apply, we need not address your second question regarding possible federal preemption of those provisions.


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