(Cite as: 2005 WL 1331206 (Conn.Super.))
Superior Court of Connecticut,
Judicial District of Tolland.
EASTLANDER GROUP, LLC
SEVERIN HILLS, LLC et al.
May 10, 2005.
Pepe & Hazard, Hartford, for Eastlander Group LLC.
Reid & Riege PC, Gordon Muir & Foley, Hartford, for Native American Gaming Fund Inc.
Zeldes Needle & Cooper, Bridgeport, for Severin Hills LLC.
Reid & Riege PC, Hartford, for Dean P. Markham.
JON M. ALANDER, Judge.
*1 The plaintiff Eastlander Group, LLC (Eastlander) has brought this action against the defendants Severin Hills, LLC (Severin Hills), The Native American Gaming Fund, Inc., and Dean Markham alleging that the defendants tortiously interfered with the plaintiff's contract with the Schaghticoke Tribal Nation pursuant to which the plaintiff was to assist the Tribe with achieving federal recognition in return for substantial monetary sums that would be generated from the expected gaming facility which would result. As the complaint alleges that he was acting as an agent for the Tribe, Markham has moved to dismiss the claims against him of tortious interference and civil conspiracy on the grounds that he is immune from suit due to the Tribe's sovereign immunity.
The doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss. Amore v. Frankel, 228 Conn. 358, 362 (1994). In ruling on a motion to dismiss, the court must take the facts to be those alleged in the complaint, including those necessarily implied, construing them in a manner most favorable to the pleader. Pamela B. v. Ment, 244 Conn. 296, 308 (1998).
The defendant Markham contends that the Schaghticoke Tribal Nation is entitled to immunity from suit in state courts due to tribal sovereignty and, since he has been sued as an agent of the tribe, he is cloaked with the same immunity. The plaintiff maintains that the Schaghticoke Tribal Nation is not protected by sovereign immunity because tribal immunity only extends to those tribes that have been recognized as tribes by the federal government, a recognition not yet received by the Schaghticoke Tribal Nation and, to the extent the Tribe possesses immunity, it was waived through the Tribe's contract with the plaintiff. I agree with the defendant that the Schaghticoke Tribal Nation is imbued with immunity from suit due to its status as a tribe recognized by the state of Connecticut and the Tribe has not waived its immunity for purposes of this litigation.
As a matter of federal law, Indian tribes are immune from suit except to the extent Congress has acted to circumscribe that immunity and authorized suit. "Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers. This aspect of tribal sovereignty, like all others, is subject to the superior and plenary control of Congress. But without congressional authorization, the Indian Nations are exempt from suit." (Citations and internal quotation marks omitted). Santa Clara Pueblo v. Martinez, 436 U .S. 49, 58 (1978). Connecticut's Supreme Court has similarly recognized that an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity. Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 52-53 (2002). Tribal sovereign immunity extends to civil suits on contracts whether those contracts involve governmental or commercial activities. Kiowa Tribe of Okla. v. Manufacturing Technologies, 523 U.S. 751 (1998).
*2 The plaintiff does not claim that the Schaghticoke Tribal Nation is not, in fact, an Indian tribe. The Schaghticoke Tribe has been recognized by the state of Connecticut as an Indian tribe through legislation. See General Statutes § 47-59a(b). [FN1] The plaintiff maintains that only those tribes which have been formally recognized by the federal government enjoy the protection of sovereign immunity. Tribal sovereign immunity however is not a product of federal recognition. It flows from the acknowledgment at federal common law that Indian tribes are "distinct, independent political communities, retaining their original natural rights ..." Santa Clara Pueblo v. Martinez, supra, 436 U.S. at 55. "The powers of Indian tribes are, in general, 'inherent powers of a limited sovereignty which has never been extinguished." F. Cohen, Handbook of Federal Indian Law 122 (1945)" (Emphasis in original.) United States v. Wheeler, 435 U.S. 313, 322 (1978). It is the long history, which predates the founding of this country, of tribes "as self-governing sovereign political communities" which establishes their claim of sovereignty. Id., at 323. See also Cherokee Nation v. Babbitt, 117 F.3d 1489 (D.C.Cir., 1997) ("Tribal sovereign immunity does not derive from an act of Congress, but rather is one of the inherent powers of a limited sovereignty which has never been extinguished.") [FN2]
FN1. Section 47-59a(b) provides that: "The state of Connecticut further recognizes that the indigenous tribes, the Schaghticoke, the Paucatuck Eastern Pequot, the Mashantucket Pequot, the 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."
FN2. Congress can alter the limits of sovereign immunity enjoyed by Indian tribes. Kiowa Tribe of Okla. v. Manufacturing Technologies, supra, 523 U.S. at 759. The plaintiff is making no claim in this case that any congressional limitation applies here.
The claim that an Indian tribe which lacks federal recognition is not eligible to claim sovereign immunity has been rejected by the federal courts. Bottomly v. Passamaquoddy Tribe, 599 F.2d 1061, 1065 n.5 (1st Cir., 1979) ("[A] tribe need not prove that it has been 'federally recognized' in order to assert its immunity from suit.") See also Alaska ex rel. Yukon Flats School Dist. v. Native Village of Venetie, 856 F.2d 1384, 1387 (9th Cir., 1988) in which the court held that tribal status may be achieved notwithstanding lack of federal recognition. Statutory recognition by the state of Connecticut pursuant to General Statutes § 47-59a is sufficient for a tribe to assert sovereign immunity. First American Casino v. Eastern Pequot Nation, Superior Court, judicial district of New London at New London, Docket No. 541674 (July 16, 2001) (Robaina, J.) (30 Conn. L. Rptr. 107).
The plaintiff further claims, that to the extent the Schaghticoke Tribal Nation is protected from suit by sovereign immunity, it has waived that immunity through the provisions of the contract it entered into with the plaintiff. The plaintiff contends that the agreement dated May 21, 2000 (Agreement) pursuant to which the plaintiff agreed to provide assistance to the Tribe to gain federal recognition contains an express waiver of sovereign immunity that allows the plaintiff to sue Markham as an agent of the Tribe in this litigation. A review of the language of the May 21, 2000 Agreement does not support the plaintiff's position.
While an Indian tribe may waive its sovereign immunity, any such waiver must be "clear." C & L Enterprises v. Cit. Bd. Potawatomi Indian Tribe, 532 U.S. 411, 418 (2001). A waiver "cannot be implied but must be unequivocally expressed." Santa Clara Pueblo v. Martinez, supra, 436 U.S. at 58, quoting United States v. Testan, 424 U.S. 392, 399 (1976). A sovereign's interest encompasses not merely whether it may be sued, but where it may be sued. Garcia v. Akwesasne Hous. Auth., 268 F.3d 76, 86 (2d Cir., 2001).
*3 Section 16, which is entitled "Sovereign Immunity," of the May 21, 2000 Agreement between the plaintiff and the Schaghticoke Tribal Nation reads in its entirety as follows:
The Nation expressly consents to be sued by Eastlander in the courts of the State of Connecticut for the purpose of enforcing the provisions of this Agreement and any document or obligation of the Nation referred to in this Agreement, including particularly the arbitration provisions of this Agreement and any resulting arbitration award; provided, that such consent is limited to, and subject to, the following express and specific limitations:
(i) the action or matter is first submitted to arbitration in accordance with Section 15 and is brought to compel arbitration or to enforce an arbitration award;
(ii) the action is brought by Eastlander and not by any other person, firm, corporation, partnership, governmental agency or entity whatsoever; and
(iii) any award or judgment shall be satisfied solely from the revenues generated by the Nation from its gaming or ancillary operations and from any assets or revenues specifically pledged in any loan or other contractual agreements between the Nation and Eastlander; and not from any other assets or revenues of the Nation.
The Nation does not waive, limit or modify its sovereign immunity except as expressly provided in this Section 16.
This provision of the Agreement does not, as the plaintiff contends, evidence the Tribe's general consent to be sued by Eastlander to enforce the provisions of the Agreement. Rather, section 16 by its express terms is limited to a waiver by the Tribe of its sovereign immunity only with respect to suits to compel arbitration or to enforce an arbitration award. Cf. C & L Enterprises v. Cit. Bd. Potawatomi Indian Tribe, supra, 532 U.S. at 411, in which the U.S. Supreme Court found that Indian Tribe waived through contract its immunity from suit with respect to a state court suit to enforce an arbitral award. This action is neither a suit to compel arbitration nor a suit to enforce an arbitration award. Moreover, the consent to be sued provided by the Tribe is conditioned on the matter first being submitted to arbitration; a condition that was not met here. [FN3] Accordingly, the limited waiver of sovereign immunity contained in the Agreement does not authorize the tort claims against Markham filed here.
FN3. Although Eastlander did submit its dispute with the Schaghticoke Tribal Nation to arbitration, it has not similarly submitted its dispute with Markham to arbitration.
The parties agree that, to the extent the claims for damages against Markham are being made by the plaintiff in Markham's official capacity as an agent for the tribe, he is imbued with whatever sovereign immunity is possessed by the Schaghticoke Tribal Nation. See Kizis v. Morse Diesel International, Inc., supra, 260 Conn. at 54 ("[T]he doctrine of tribal immunity extends to individual tribal officials acting in their representative capacity and within the scope of their authority.") For the first time at oral argument, the plaintiff asserted that Markham was also being sued in his individual capacity in addition to his capacity as agent for the tribe. That however is not what the plaintiff's complaint expressly states. Paragraph 3 of the complaint states: "Dean Markham is an individual residing in Connecticut and, at all times relevant hereto, was an agent of the Tribe as alleged herein." (Emphasis supplied.) This court must decide the motion to dismiss based on the facts as alleged in the complaint. Pamela B. v. Ment, supra, 244 Conn. at 308. Since the plaintiff's complaint alleges that at all relevant times Markham was acting as an agent of the Tribe, he is entitled to tribal immunity.
*4 In light of the above, the motion to dismiss filed by the defendant Markham is hereby granted.