dissenting. I disagree with the majority’s simplistic answer to the underlying pivotal question before the court1 — whether the Paucatuck Eastern Pequot Tribe (Paucatuck tribe) is an “Indian” tribe *163within the meaning of the Indian Civil Rights Act of 1968.2 The majority answers this issue by holding “that the decision to acknowledge a tribe federally for criminal jurisdictional purposes is a political question.” In other words, according to the majority, the rights of the defendant, Mark R. Sebastian, under the Indian Civil Rights Act can vest only if the Paucatuck tribe has been formally recognized by the federal government, even though the tribe has been continuously recognized by statutes enacted by both the colonial and state governments of Connecticut, the incident occurred on recognized tribal lands, and an active application for formal recognition has been pending before the Bureau of Indian Affairs (BIA) since 1989.
The pertinent facts are not in dispute.3 In June, 1993, a road crew working for the town of North Stonington (town) was widening a portion of Lantern Hill Road located on the Paucatuck Eastern Pequot reservation (reservation). The road crew previously had been advised that the area belonged to the reservation and, therefore, the town was not permitted to widen the road. The area in which the road crew was working contained an extremely high density of significant and sensitive archaeological sites that would be seriously damaged by the roadwork. The defendant, who is the vice-chairman of the Paucatuck tribe and a resident of the reservation, advised the second selectman of the town that the Paucatuck tribe’s governing body had not authorized such work. The defendant served the second selectman with a cease and desist order to halt all road work, but the town refused to comply with the order. Subsequently, the Connecticut state police arrived at the worksite and arrested the defendant for breach of the peace because he was obstructing the road work *164as a result of parking his car to prevent the disturbance of the archaeological sites.
After being charged with breach of the peace, the defendant filed a motion to dismiss, arguing that the trial court lacked subject matter jurisdiction because the state does not have jurisdiction to prosecute him. Specifically, based on the parties’ stipulation that the alleged offense occurred on the reservation and that the Paucatuck tribe is officially recognized by the state of Connecticut, and is under active consideration for formal recognition by the BIA, the defendant argues that only the federal government has jurisdiction to prosecute. Because the defendant is not a member of a tribe that has been formally recognized by the federal government, the trial court denied the defendant’s motion to dismiss, concluding that there was no basis to bar state jurisdiction over the defendant.
The defendant requested that the trial court take judicial notice of several judicially cognizable facts set forth in his brief to this court, including the fact that the state, and previously the colony of Connecticut, had continuously recognized the tribe through legislative acts. The reservation was established by Act of the Colonial Assembly in October, 1683, and the Indian title to this land has never been extinguished. The state has enacted legislation specifically recognizing the autonomy of the Paucatuck tribe. See General Statutes § 47-59a.4 Furthermore, an application for federal acknowledgment has been pending before the BIA since 1989 *165and is, according to the parties’ stipulation, under active consideration.5 With the exception of § 47-59a, the court declined to take judicial notice of any of the judicially cognizable facts put forth by the defendant.
In my view, because the rights of the defendant to be tried before a federal court, rather than a state court, are at stake, the defendant is entitled to an adjudication of whether he is an “Indian” for purposes of the Indian Civil Rights Act. Merely because the BIA has failed to act should not be determinative of the trial court’s subject matter jurisdiction.6
The majority adopts the bright line approach of the Ninth Circuit Court of Appeals in LaPier v. McCormick, 986 F.2d 303, 305 (9th Cir. 1993), which inquires merely whether a tribe has been federally recognized at the time of the judicial decision, either by looking to the BIA list or to congressional enactments. Conversely, the Second Circuit Court of Appeals, the federal circuit in which this court sits, has recognized that because Congress has created a structured administrative process within the BIA to recognize Indian tribes, the court in the first instance should allow that agency to complete its congressionally delegated task. See Golden Hill Paugussett Tribe of Indians v. Weicker, 39 F.3d 51, *16658-59 (2d Cir. 1994) (Golden Hill). Nevertheless, the court in Golden Hill also makes clear that if the BIA fails to decide the status of the tribe within a reasonable time, then the court is not only empowered, but also is obligated, to make this determination. Id., 60-61.
This court previously has recognized that, when there is a conflict among the federal circuit courts of appeal in interpreting federal law, “we generally give special consideration to decisions of the Second Circuit Court of Appeals.” Schnabel v. Tyler, 230 Conn. 735, 743, 646 A.2d 152 (1994); see also Red Maple Properties v. Zoning Commission, 222 Conn. 730, 739 n.7, 610 A.2d 1238 (1992) (“decisions of the federal circuit in which a state court is located are entitled to great weight in the interpretation of a federal statute” [internal quotation marks omitted]). Accordingly, this court should likewise follow the Second Circuit by adopting the procedure established in Golden Hill.7
In accordance with the Second Circuit’s conclusion in Golden Hill, the doctrine of primary jurisdiction requires that this court stay the proceedings with the consent of the defendant in order to furnish the BIA with an opportunity to make its determination on Paucatuck’s application. “Primary jurisdiction applies where a claim is originally cognizable in the courts, but enforcement of the claim requires, or is materially aided by, the resolution of threshold issues, usually of a factual nature, which are placed within the special competence of the administrative body.” Golden Hill, supra, 39 F.3d 58-59. “The primary jurisdiction doctrine serves two interests: consistency and uniformity in the regulation of an area which Congress has entrusted to a federal agency; and the resolution of technical questions *167of facts through the agency’s specialized expertise, prior to judicial consideration of the legal claims.” Id., 59. “A federal agency and a . . . court are not like two trains, wholly unrelated to one another, racing down parallel tracks towards the same end. Where a statute confers jurisdiction over a general subject matter to an agency and that matter is a significant component of a dispute properly before the court, it is desirable that the agency and the court go down the same track— although at different times — to attain the statute’s ends by their coordinated action.” Id.
If, after a reasonable period of time, the BIA has still not taken definitive action with respect to the Paucatuck tribe, or if the defendant fails to agree to such a stay, the trial court should then determine the status of the Paucatuck tribe.8 See Mashpee Tribe v. New Seabury Corp., 592 F.2d 575, 581 (1st Cir. 1979) (recognizing that the determination of official tribal status, “though developed and interpreted in part with the *168expert help of historians and anthropologists, [is] not so technical as to be beyond the understanding of judges or juries”); cf. Golden Hill, supra, 39 F.3d 60-61 (staying action for eighteen months for BIA to make ruling).
Accordingly, I would reverse the defendant’s conviction and remand the case to the trial court to determine whether the defendant would consent to a stay until such time as the BIA makes its determination or such other agreed upon time.9 If the defendant does consent, and no other reason exists for not deferring to the BIA, the trial court should enter an order staying the criminal prosecution of the case. Upon the BIA making its determination, the stay should be lifted and this case should proceed according to law. If the defendant fails to agree to the stay, or for some other reason a stay should not be entered, or if the BIA fails to act within a reasonable time, I would then direct the trial court to conduct the necessary evidentiary hearing in order to determine the status of the Paucatuck tribe.
Accordingly, I dissent.
I gather that the majority concedes, at least for the purposes of this case, that if the Paucatuck Eastern Pequot Tribe is recognized by the federal government through the Bureau of Indian Affairs, and assuming that the alleged offense occurred in “Indian country,” then the state would not have jurisdiction. Rather, the jurisdiction to prosecute in that case would be with the federal government. With regard to the location where the alleged infraction took place, the state and the defendant stipulated as follows: “The land where the alleged infraction took place is the . . . Paucatuck Eastern Pequot Reservation.”
Absent an express congressional grant of criminal jurisdiction to a state, criminal activity that has taken place by or against “Indians” in “Indian country” is generally exempt from state jurisdiction. See 18 U.S.C. § 1151; United States v. John, 437 U.S. 634, 651, 98 S. Ct. 2541, 57 L. Ed. 2d 489 (1978). Section 1321 of the Indian Civil Rights Act provides that states are authorized to assume criminal jurisdiction over offenses committed by or against “Indians” in “Indian country,” but only with the consent of the Indian tribe occupying the Indian country, which has not been granted in this case.
The parties in this appeal have agreed that the term “Indian” in the Indian Civil Rights Act has the same meaning under the Indian Country Crimes Act, 18 U.S.C. § 1152, and the Indian Major Crimes Act, 18 U.S.C. § 1153. In order for an individual to be considered an “Indian,” courts have adhered to a two-pronged test: (1) whether the individual has a significant amount of Indian blood; and (2) whether the individual has been recognized, either federally or tribally, as an Indian. See United States v. Dodge, 538 F.2d 770, 786 (8th Cir. 1976), cert. denied, 429 U.S. 1099, 97 S. Ct. 1119, 51 L. Ed. 2d 547 (1977); see also United States v. Rogers, 45 U.S. (4 How.) 567, 11 L. Ed. 1105 (1846). The state does not contest the fact that the defendant meets the first prong of the test.
25 U.S.C. §§ 1301 through 1341.
The majority contends that the state has never conceded these facts. To the contrary, the state has not contested the accuracy of these facts that were set forth in the defendant’s brief.
General Statutes § 47-59a provides: “(a) It is hereby declared the policy of the state of Connecticut to recognize that all resident Indians of qualified Connecticut tribes are considered to be full citizens of the state and they are hereby granted all the rights and privileges afforded by law, that all of Connecticut’s citizens er\joy. It is further recognized that said Indians have certain special rights to tribal lands as may have been set forth by treaty or other agreements.
“(b) The state of Connecticut further recognizes that the indigenous tribes, the Schaghticoke, the Paucatuck Eastern Pequot, the Mashantucket Pequot, *165the Mohegan and the Golden Hill Paugussett are self-governing entities possessing powers and duties over tribal members and reservations. Such powers and duties include the power to: (1) Determine tribal membership and residency on reservation land; (2) determine the tribal form of government; (3) regulate trade and commerce on the reservation; (4) make contracts, and (5) determine tribal leadership in accordance with tribal practice and usage.” (Emphasis added.)
Indeed, defense counsel represented to the court at oral argument that the Paucatuck tribe’s application is currently first on the waiting list for consideration by the BIA.
“The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings. . . . If at any point, it becomes apparent to the court that such jurisdiction is lacking, the appeal must be dismissed.” (Internal quotation marks omitted.) State v. Anonymous, 240 Conn. 708, 718, 694 A.2d 766 (1997).
The majority attempts to make much of the fact that Golden HiU was a civil action, and the present case is a criminal action. I am bewildered by this alleged distinction in light of the basic fact that a tribe that is officially acknowledged by the BIA is just as much an “Indian tribe” for purposes of criminal jurisdiction as it is for civil matters.
The majority argues that “[a] lengthy stay like that imposed by the Second Circuit in Golden Hill likely would run afoul of a defendant’s constitutional and statutory speedy trial rights.” The majority, however, presupposes that the defendant would be unwilling to consent to a stay. Furthermore, the majority claims that “the legal and practical difficulties of a stay in a criminal case would be greatly exacerbated in a case in which a defendant was incarcerated pending his or her trial.” These perceived difficulties, however, have no relevance to whether a stay should be ordered in this case because the defendant clearly is not incarcerated and the charge is merely an infraction.
Moreover, the majority argues that, even if the defendant were willing to consent to a stay, the public interest in speedy disposition of criminal charges counsels against such a stay. In my view, the defendant’s right to be tried before a federal court outweighs any such public interest with respect to this breach of peace charge. Additionally, this court cannot be blind to the defendant’s motive that resulted in his arrest — the preservation of the reservation. Finally, as I point out in this dissent, if the defendant fails to consent to the stay or if the stay would be impractical or for some other reason would not be appropriate, then the doctrine of primary jurisdiction evaporates and the trial court would determine the status of the tribe. See Golden Hill, supra, 39 F.3d 60-61.
I find significant the underlying factual predicate of the infraction — that is, the alleged breach of the peace — results from the defendant’s attempt to prevent the road crew from disturbing an area that contained sensitive archaeological remains. In view of the factual predicate of the infraction, the fact that the Paucatuck tribe has been recognized since time immemorial by the colony, and now by the state, and that a decision is forthcoming by the BIA, the prudent action in this case requires that we stay our proceedings.