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(Cite as: Not Reported in A.2d)

Not Reported in A.2d, 2005 WL 1273260

UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING.

Superior Court of Connecticut,Judicial District of New Britain.

TRUMP HOTELS AND CASINO RESORTS DEVELOPMENT COMPANY, LLC

v.

David A. ROSOW et al.

No. X03CV034000160S.


May 2, 2005.

Reardon Law Firm PC, New London, for Trump Hotels & Casino Resorts Development Comp. LLC.

Andrews, Young & Geraghty P.C. , New London, Edward Reilly Jr. , Leonard Lesser , New York, NY, for David A. Rosow, Eastern Capital Development LLC and Eastern Capital Funding LLC.

Mintz, Levin, Cohn, Ferris, Glovsky & Popeo P.C. , Stamford, PHV Bell Ray Morrow, San Diego, CA, for William I. Koch.

Tobin, Carberry, Omalley, Riley & Seli, New London, for Mark R. Sebastian, Marcia Jones-Flowers, Lynne D. Powers, Ron Jackson, Joseph A. Perry, Katherine H. Sebastian, W. Sebastian, Eastern Pequot Indians of Connecticut Inc., Mary Sebastian, Paucatuck Eastern Pequot Tribal Nation and Lewis E. Randall.

Jeremiah Donovan, Old Saybrook, for Paucatuck Eastern Pequot Tribal Nation, Eugene R. Young, James L. Williams, James A. Cuhna, Frances M. Young, Agnes E. Cuhna, Gina Hogan, Christine C. Meisner, Brenda L. Geer and Raymond A. Geer.

PECK, J.

*1 This action arises out of an alleged breach of contract by the defendants, FN1 the Paucatuck Eastern Pequot Tribal Nation (PEPs) and members of its tribal council, James L. Williams, Sr., James A. Cunha, Jr., Frances M. Young, Agnes E. Cunha, Gina Hogan, Christine C. Meisner, Brenda L. Geer, Raymond A. Geer and Eugene R. Young, Jr. FN2 (PEP councillors). The plaintiff, Trump Hotels and Casino Resorts Development Company, LLC (Trump), filed a nine-count complaint on June 24, 2003, alleging violations of Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. (count one), intentional interference with contractual, economic and business relationships (count two), civil conspiracy and fraud (count three), default payment (count four), breach of contract (count five), and fraud as against defendant Young  FN3 (count seven). As its remedies, the plaintiff seeks specific performance (count six), a prohibitive injunction (count eight) and a mandatory injunction (count nine). FN4

FN1. Although David A. Rosow, William I. Koch, Eastern Capital Development, LLC, Eastern Capital Funding, LLC, the Eastern Pequot Indians of Connecticut, Inc. aka Eastern Pequot Tribe, aka Sebastian Group (Easterns), Mark R. Sebastian, Marcia Jones-Flowers aka Marcia Flowers, Lynn D. Powers, Ron Jackson, Joseph A. Perry, Jr., Katherine H. Sebastian, William O. Sebastian, Jr., Mary Sebastian, and Lewis E. Randall, Sr.  (Eastern councillors) were also named as defendants, they are not parties to this motion to dismiss. Accordingly, unless otherwise specified, all references herein to the defendants are to the PEP councillors.


FN2. The defendant Eugene R. Young, Jr. filed a separate motion to dismiss and is not a party to this motion to dismiss. Accordingly, issues relating only to Young's motion will be addressed in a separate memorandum and will not be addressed here.


FN3. Count seven of the complaint refers to “the defendant Ernest R. Young, Jr.,” although that name is not included in the list of defendants on the summons form. The only named party with a similar name is Eugene R. Young, Jr. This apparent typographical error is not relevant to the resolution of this motion to dismiss.


FN4. Since the defendant PEP councillors moved to dismiss “The entire complaint,” without specifying which counts they view as being directed against them, the court assumes that the motion seeks dismissal of the three counts directed against the PEPs, that is, count four (default payment), count five (breach of contract) and count six (specific performance). Further, counts eight and nine are not proper counts because they do not contain separate and distinct claims. See Practice Book § 10-26 (separate and distinct causes of action, as distinguished from separate and distinct claims for relief, shall be pleaded in separate counts). Although count six seeks the remedy of specific performance, the allegations are sufficiently detailed for the court to construe this count as a further claim for breach of contract which seeks specific performance as its remedy. Accordingly, this memorandum addresses the PEP councillors' motion to dismiss as to counts four, five and six only; counts eight and nine will not be addressed in considering this motion to dismiss because they are more properly addressed by a motion to strike. Counts one, two and three are directed only at defendants ECD, ECF, Rosow, Koch, the Easterns, the Eastern Councillors and Eugene Young.

The defendant PEPs have moved to dismiss the complaint as against them on the ground that the court lacks subject matter jurisdiction to consider the plaintiff's claims because these claims (1) have not ripened into an actual controversy, (2) are dependent upon a political determination committed to another branch of government, and, (3) are barred by principles of tribal sovereignty and tribal sovereign immunity.

In the complaint, the plaintiff alleges the following relevant facts: The plaintiff entered into a contract (Trump contract) with the defendant PEPs, which the state of Connecticut had recognized as an Indian tribe; (Complaint, ¶ ¶ 6 and 12); to provide funding to assist the PEPs in efforts to seek federal recognition by the Bureau of Indian Affairs of the Department of the Interior (BIA) as an Indian tribe. (Complaint, ¶¶ 17-18.) The PEPs and Trump agreed, among other things, “to use all commercially reasonable efforts” to pursue the project, which was defined by the Trump contract to mean “the joint efforts” of the parties to obtain federal recognition and to secure the legal rights of the PEPs and Trump “to operate a tribal gaming facility in the State of Connecticut” owned by the PEPs “and/or its successors” and managed by Trump.  (Complaint ¶ 19.) In exchange for its assistance, Trump was to receive “substantial additional fees, payments, revenues and other compensation for a term of seven (7) full years from the opening of the casino gaming facility, with an option to extend the seven-year period by agreement of the parties.”  (Complaint, ¶ 24.)

The plaintiff further alleges that the PEPs agreed, in the Trump contract, that as of August 31, 2002, the plaintiff had advanced an aggregate of $9,192,807 to or on behalf of the PEPs pursuant to the contract terms.  (Complaint, ¶ 22.) The payments made by Trump to the PEPs were to be treated as advances. (Complaint ¶ 21.) The aggregate amount of these advances, with interest at 8% per annum, was to become immediately “repayable to Trump in the event [the PEPs], or any successor tribe to which [the PEPs are] a constituent part, or any instrumentality of any of the foregoing, shall execute a management agreement (or consulting agreement in lieu thereof) or other agreement with any party other than Trump or an affiliate of Trump with respect to the development or management of a tribal gaming facility ...” (Complaint, ¶ 21.) The PEP councillors represented to the plaintiff that they were the only governing body of the PEPs, that they were authorized to bind the PEPs and any successor tribe and that the PEPs and any successor tribe would be bound by the contract. (Complaint, ¶¶ 25-26.) The contract further provides that the PEPs and any successor tribe “waived its sovereign immunity and consented to being sued and submitted to the jurisdiction of any court of the [s]tate of Connecticut and the Federal District Court for the District of Connecticut, the Federal Court of Appeals for the Second Circuit and the United States Supreme Court with respect to any claim or cause of action arising out of or relating to the Trump [c]ontract and/or [t]he [p]roject and that the governing law shall be Connecticut law.” (Complaint, ¶ 27.)

*2 The plaintiff also alleges that the Easterns are a “splinter group” of the PEPs, which holds itself out to the public as an Indian tribe, but which has not been finally recognized by the federal government or by the state as an Indian tribe. (Complaint, ¶ 7.) In 1978, the Easterns filed a petition for federal recognition with the United States Department of the Interior, Branch of Acknowledgment and Research (BAR). (Complaint, ¶ 13.) In 1989, the PEPs separately sought federal recognition by filing a petition with the BAR.  (Complaint, ¶ 14.) In 1998, the BAR decided to consider the Easterns' and the PEPs' petitions simultaneously. (Complaint, ¶ 14.)

The plaintiff further alleges that on or about June 24, 2002, the BIA “provisionally acknowledged the ‘historical Eastern Pequot Tribe,’ consisting of [the PEPs] and the membership of the [Easterns],” subject to a request for reconsideration or appeal. (Complaint, ¶ 29.) The court notes that, in rendering its decision, the BIA determined that both groups “had derived in recent times from the historical Eastern Pequot Tribe which had existed continuously since first sustained contact with Europeans ... This determination does not merge two tribes, but determines that only a single tribe exists which is represented by two petitioners.” Final Determination to Acknowledge the Historical Eastern Pequot Tribe, 67 Fed.Reg. 44, 234, 44, 235 (Bureau of Indian Affairs July 1, 2002). The BIA's determination was to become final after ninety days from the date of publication, unless a request for reconsideration was filed. 67 Fed.Reg. 44, 240;  25 C.F.R. § 83.11. In September 2002, the state of Connecticut and certain towns in the state allegedly filed such a request, which is still pending before the BIA.  (Complaint, ¶ 30.)

The plaintiff alleges that after the BIA issued its determination, the defendant Eastern Capital Development, LLC (ECD) and the defendant Eastern Capital Funding, LLC (ECF), which were both managed and controlled by defendants David A. Rosow and William I. Koch, sought to orchestrate the repudiation of the Trump contract and to usurp Trump's business opportunity by recruiting Eastern councillors to act as their agents in an effort to “manipulate a reconstitution of the [t]ribal [c]ouncil so as to severely disadvantage the [PEPs].” (Complaint, ¶¶ 32-33.) As a result of the coercive tactics of ECD and ECF, representatives of the PEPs and the Easterns drafted an “Interim Constitution,” which would change the PEPs' tribal name from the “Paucatuck Eastern Pequot Tribal Nation” to “Eastern Pequot Tribal Nation,” provide for an “Interim Tribal Council,” consisting of five members of the PEPs' tribal council and nine members of the Easterns' tribal council, and require a quorum of ten councillors at a tribal council meeting to conduct business. (Complaint, ¶ 34; Interim const., art. I  and art. X.)

The plaintiff alleges that in January 2003, the historical Eastern Pequot Tribal Nation (Historics), which consists of all members of the Easterns and the PEPs, adopted the “Interim Constitution of the Eastern Pequot Tribal Nation,” which acknowledged that it was “the same [t]ribe referred to in Connecticut General Statutes, Chapter 824, Section 47-59a  FN5 and 47-59b  FN6 (1971) as the Paucatuck Eastern Pequot Tribe and the same Tribe acknowledged by the Secretary of the Interior as the [historical] Eastern Pequot Tribe ...” (Complaint, ¶ 35; Interim const., art. I, p. 1.)

FN5. General Statutes § 47-59a provides in relevant part, “(a) 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.”

FN6. General Statutes § 47-59b provides in relevant part “(b) There shall continue to be an Indian Affairs Council, consisting of one representative from each of the following Indian tribes: The Schaghticoke, the Paucatuck Eastern Pequot, the Mashantucket Pequot, the Mohegan and the Golden Hill Paugussett; to be appointed by the respective tribes ...”

*3 The plaintiff further alleges that in April 2003, defendant PEP councillor Eugene R. Young, Jr. “demanded a monetary payment in order to remain loyal to the desires of [the PEPs] to honor the terms of the Trump [c]ontract,” which Trump refused to pay. (Complaint, ¶ 36.) Defendants Mark R. Sebastian and Rosow became aware of this demand and “employed financial enticements and other unlawful methods to induce defendant Young to support the effort of [defendants ECD and ECF] to cause the [t]ribe to repudiate the Trump [c]ontract in favor of a new contract with [ECD and ECF].” (Complaint, ¶ 37.)

The plaintiff also alleges that on April 15, 2003, the Historics' tribal council held a meeting, attended by all nine Eastern councillors and the defendant Young. (Complaint, ¶ 38.) Young was the only PEP councillor to attend the meeting. (Complaint, ¶ 38.) Although he abstained from voting, his presence provided the council with a quorum to conduct business. (Complaint, ¶ 38.) At this meeting, the Historics' tribal council voted to approve a tribal resolution to execute a development contract with the defendants ECD and/or ECF, Rosow and Koch “to acquire and develop tribal land, and build and operate a casino gaming facility and related entertainment sites, all to the exclusion of Trump ...” (Complaint, ¶ 38.) Defendant Young attended this meeting knowing that the purpose of the meeting was to pass this resolution and that his presence would establish a quorum to conduct business. (Complaint, ¶ 39.) Some or all of the defendants also knew of the purpose of the meeting before it occurred and “conspired and colluded to arrange for Young to attend so that his presence would ensure a ‘quorum’ under the ‘Interim Constitution’ “ to allow the resolution to pass. (Complaint, ¶ 40.) On May 5, 2003, the Histories notified Trump that it intended to negotiate a new development agreement with defendants ECD and/or ECF, Rosow and Koch.

The plaintiff commenced this suit by service of process on the various defendants between May 28, 2003 and June 23, 2003. (Marshal's return.) On May 24, 2004, the defendants, the individual PEP councillors, filed a motion to dismiss the complaint against them on the grounds that the plaintiff's claims are nonjusticiable in that they are not ripe and involve a “political determination committed to another branch of government” and that they are barred by “principles of tribal sovereignty and tribal sovereign immunity.” Counts four (default payment), five (breach of contract) and six (specific performance) are directed at the defendant PEPs and PEP councillors. For the reasons discussed, infra, the defendant PEP councillors' motion to dismiss is denied on the ground that the issues raised in the counts against them are nonjusticiable, that is, that they concern a political question or are not ripe for adjudication. Nevertheless, the motion to dismiss counts four, five and six  FN7 is granted on the ground of sovereign immunity.

FN7. While there is some authority for the proposition that sovereign immunity does not extend to actions for prospective injunctive relief against individual tribal members; see, e.g., Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505, 516, 111 S.Ct. 905, 112 L.Ed.2d 1112 (1991) (Stevens, J., concurring) (tribe's sovereign immunity from actions seeking money damages does not necessarily extend to actions seeking equitable relief); the court finds no authority to apply that exception in the context of a breach of contract claim, particularly when that claim alleges no specific acts outside the scope of the defendant's authority as a tribal council member. See Niagara Mohawk Power Corp. v. Tonawanda Band of Seneca Indians, 862 F.Sup. 995, 1003 (W.D.N.Y.1994) (breach of contract claim against individual members of tribal council does not invoke ultra vires exception to sovereign immunity doctrine). That exception has typically been applied in the context of tribal members acting outside the scope of their authority as tribal council members, in violation of state or federal law. See, e.g., Puyallup Tribe, Inc. v. Department of Game of Washington, 433 U.S. 165, 171-72, 97 S.Ct. 2616, 53 L.Ed.2d 667 (1977) (“a suit to enjoin violations of state law by individual tribal members is permissible. The doctrine of sovereign immunity ... does not immunize the individual members of the [t]ribe.”).


I


STANDARD OF REVIEW

*4 “The standard of review of a motion to dismiss is ... well established. In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.” (Internal quotation marks omitted.) Dyous v. Psychiatric Security Review Board, 264 Conn. 766, 773, 826 A.2d 138 (2003). “When a [trial] court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light.” (Internal quotation marks omitted.) Martin v. Brady, 261 Conn. 372, 376, 802 A.2d 814 (2002).

“Jurisdiction of the subject-matter is the power [of the court) to hear and determine cases of the general class to which the proceedings in question belong.” (Internal quotation marks omitted .) New England Pipe Corp. v. Northeast Corridor Foundation, 271 Conn. 329, 334, 857 A.2d 348. “[A] reviewing court should indulge every presumption in favor of the trial court's subject matter jurisdiction.” (Internal quotation marks omitted.) Amore v. Frankel, 228 Conn. 358, 374, 636 A.2d 786 (1994). “[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss.” Gordon v. H.N.S. Management Co., 272 Conn 81, 92, 861 A.2d 1160 (2004).

“[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor ... clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute.” (Internal quotation marks omitted.) St. George v. Gordon, 264 Conn. 538, 544-45, 825 A.2d 90 (2003).  “The plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised.” Fink v. Golenbock, 238 Conn. 183, 199 n. 13, 680 A.2d 1243 (1996).

II


JUSTICIABILITY

The defendant PEP councillors adopt the arguments of the defendant Easterns, set forth in a memorandum in support of the Easterns' separate motion to dismiss, concerning two aspects of justiciability. The Easterns contend that the plaintiff's claims are not justiciable because (1) they are dependent upon a political determination committed to the BIA and (2) they have not ripened into an actual controversy. As articulated in the court's memorandum of decision on the Easterns' motion, the court rejects these contentions.

“Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable ... Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute ... (2) that the interests of the parties be adverse ... (3) that the matter in controversy be capable of being adjudicated by judicial power ... and (4) that the determination of the controversy will result in practical relief to the complainant ... As [the Supreme Court has] recognized, justiciability comprises several related doctrines, namely, standing, ripeness, mootness and the political question doctrine, that implicate a court's subject matter jurisdiction and its competency to adjudicate a particular matter.” (Citations omitted; internal quotation marks omitted.) Office of the Governor v. Select Committee of Inquiry, 271 Conn. 540, 568-69, 858 A.2d 709 (2004).

A


Political Question

*5 The defendant Easterns contend that the plaintiff's claims are dependent on a political determination and, therefore, are beyond this court's jurisdiction. They argue that the plaintiff seeks damages based on gambling revenue to be generated by a federally recognized tribe. They further argue that these claims require a judicial determination of whether the defendants, the Easterns and/or the PEPs, are a federally recognized Indian tribe. They also argue that such a determination is a nonjusticiable political question because it has been committed either to Congress or to the BIA under federal law.

The plaintiff counters that its claims are not dependent upon a political determination as to federal recognition. It contends that the Easterns are not recognized by the state or by the federal government as an Indian tribe independent of the PEPs. It argues that in the absence of such recognition, the court may determine “tribal status” by “the undertaking of a careful scrutiny of various historical factors” in determining whether the Easterns are entitled to the protections of sovereign immunity. Relying on State of Alaska v. Native Village of Venetie, 856 F.2d 1384, 1387 (9th Cir.1988) , and Mashpee Tribe v. New Seabury Corp., 592 F.2d 575, 582 (1st Cir.1979), cert. denied, 444 U.S. 866, 100 S.Ct. 138, 62 L.Ed.2d 90 (1979), it asserts that the only courts to address this issue have held that such an inquiry is not a political question and may be determined by the courts and that this is a factual question for the jury. Finally, the plaintiff argues that although courts should defer to agency decisions when reviewing the actions of an agency, no final agency decision has been made in this case so there is no final agency decision to which the court may defer.

“The political question doctrine itself is based on the principle of separation of powers ... as well as the notion that the judiciary should not involve itself in matters that have been committed to the executive and legislative branches of government. To conclude that an issue is within the political question doctrine is not an abdication of judicial responsibility; rather, it is a recognition that the tools with which a court can work, the data which it can fairly appraise, the conclusions which it can reach as a basis for entering judgments, have limits ... Whether a controversy so directly implicates the primary authority of the legislative or executive branch, such that a court is not the proper forum for its resolution, is a determination that must be made on a case-by-case inquiry.

“In considering whether a particular subject matter presents a nonjusticiable political question, [the Supreme Court has] articulated a number of relevant factors, including: a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for nonjusticiability on the ground of a political question's presence ... Further simply because the case has a connection to the political sphere [is not] an independent basis for characterizing an issue as a political question ...” (Citations omitted; internal quotation marks omitted.) Office of the Governor v. Select Committee of Inquiry, supra, 271 Conn. at 572-74. As discussed, infra, none of these factors regarding nonjusticiable political questions is inextricably linked to the present case.

*6 In the context of a civil case, the courts of this state have not held that recognition of a group as an Indian tribe by the state is a nonjusticiable political question. In State v. Sebastian, 243 Conn. 115, 134, 701 A.2d 13 (1997), cert. denied, 522 U.S. 1077, 118 S.Ct. 856, 139 L.Ed.2d 756 (1998), the court considered “whether a state court may exercise criminal jurisdiction over an Indian who is a member of a tribe that has not been acknowledged by the executive or legislative branches of the federal government.” In that case, the Supreme Court held, inter alia, that “the decision to acknowledge a tribe federally for criminal jurisdictional purposes is a political question”; id., at 139; but did not address the issue of whether state tribal recognition is a nonjusticiable political question in the context of a civil dispute. (Emphasis in original.) In Sebastian,  the defendant's motion to dismiss asserted federal preemption under the Indian Civil Rights Act of 1968, 25 U.S.C. §§ 1301 -1341, which deprives state courts of jurisdiction to prosecute members of federally recognized tribes for crimes committed on tribal land. State v. Sebastian, supra, 243 Conn. at 132. In this case federal recognition is relevant only to the plaintiff's claims pertaining to casino revenue, not to the defendants' sovereign immunity defense. State recognition alone is sufficient to support that defense, in the absence of a clear and unequivocal waiver by the tribe or congressional abrogation. See First American Casino v. Eastern Pequot Nation, Superior Court, judicial district of New London, Docket No. 541674 (July 16, 2001, Robaina, J.)  (30 Conn. L. Rptr. 107) (“[f]ederal recognition of a tribe is not required for the tribe to assert sovereign immunity”) and cases cited therein; Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 53, 794 A.2d 498 (2002). The Sebastian holding, therefore, is inapplicable to the issue of whether this court has jurisdiction over civil claims action against defendants who assert the defense of tribal sovereign immunity under state law.

In Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 836, 826 A.2d 1102 (2003), the Supreme Court rejected “the defendant's claim that ... the federal government has preempted the field of determination of tribal status of Native American groups ...” Moreover, it rejected the defendant's assertion “that federal recognition of some tribes precludes state recognition of additional tribes not recognized by the federal government and, therefore, precludes the trial court from determining whether [a party] is in fact the tribe recognized by the state under § 47-63.”  FN8 Id., at 836-37. Further, it held that “the fact that the plaintiff has petitioned the [BIA] for federal recognition does not, by itself, render the present case not ripe or otherwise not justiciable.” Id., at 837.

FN8. General Statutes § 47-63 provides in relevant part, “ ‘Indian’ means a person who is a member of any of the following tribes, Paucatuck Eastern Pequot, Mashantucket Pequot, Schaghticoke, Golden Hill Paugussett and Mohegan ...”

In State of Alaska v. Native Village of Venetie, supra, 856 F .2d at 1387, the United States Court of Appeals explained that the absence of federal recognition is not conclusive evidence of tribal status. “If the [Indian Reorganization Act of 1934, 25 U.S.C. § 461 et seq., (IRA) ] does not settle the matter, the inquiry would shift to whether [the Easterns have] been otherwise recognized as a tribe by the federal government ... Failing there, tribal status may still be based on conclusions drawn from careful scrutiny of various historical factors ...

*7 “Once tribal status is determined, other considerations arise. The sovereign immunity that naturally flows from tribal sovereignty will not be effective if it has been divested by Congress or otherwise lost by implication ... Nor will it be effective if it was waived during incorporation under the IRA ... And even if the tribe and its instrumentalities are immune, the individual officers of the tribe will not be immune unless they were acting in their representative capacity and within the scope of their authority.”  (Citations omitted; internal quotation marks omitted.) Id. In the absence of a final determination by the federal government, therefore, recognition of Indian tribes is not a political question and may be determined by the court. Accordingly, the motion to dismiss is denied on the ground that the subject matter before the court constitutes a nonjusticiable political question.

B


Ripeness

The Easterns next argue that Trump's claims are not ripe for adjudication and that the court, therefore, lacks subject matter jurisdiction. They further argue that there is no actual and existing controversy between the parties because counts one, two and three depend entirely upon Trump's contract with the PEPs and any damage claims depend upon federal recognition of the PEPs by the BIA. They also argue that the plaintiff's claims to casino gaming revenue are contingent on the PEPs' rights to operate a casino pursuant to the Indian Gaming Regulatory Act, 25 U.S.C. § 2703(5)(A), which, in turn, are contingent on federal recognition and regulatory approval. Unless the PEPs are recognized by the BIA as a distinct tribe and granted the right to operate a casino, Trump will not have any rights to casino gaming revenue. They maintain that two other conditions would need to be met prior to the operation of a casino: (1) a state compact would have to be negotiated by the governor and ratified by the General Assembly with the consent of the Mashantucket Pequot and Mohegan Indians pursuant to their state compacts and (2) development and management agreements must be approved by the National Indian Gaming Commission pursuant to 25 U.S.C. § 2710(d)(9)  FN9 and 25 C.F.R. § 533.7.  FN10 They argue that before these conditions are met, the plaintiff has no enforceable contract right to establish a gaming facility and no expectancy of receiving gaming revenue. They contend that because the plaintiff's claims are contingent on several events that have yet to occur, they are not ripe for adjudication and the court, therefore, lacks subject matter jurisdiction over such claims.

FN9. 25 U.S.C. § 2710(d)(9) provides in relevant part, “An Indian tribe may enter into a management contract for the operation of a class III gaming activity if such contract has been submitted to, and approved by, the Chairman ...”


FN10. 5 C.F.R. § 533.7 provides in relevant part, “Management contracts ... that have not been approved by the Secretary of the Interior or the Chairman in accordance with the requirements of this part, are void.”

The plaintiff counters that an actual controversy does exist because the action is not at all contingent on federal recognition of the PEPs. It contends that its claim for repayment of funds advanced to the PEPs is dependent only upon the fact-finder's determination as to whether the PEPs breached their contract with the plaintiff. It further argues that the Trump contract provides for the immediate repayment of all funds paid to the PEPs, if the PEPs, any successor tribe of which the PEPs are a constituent part, or any instrumentality thereof, executes a management agreement with a party other than the plaintiff with respect to the development or management of a tribal gaming facility. It notes that the complaint contains allegations that the agreement was breached and that the money has become payable.

*8 “In light of the rationale of the ripeness requirement, to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements ... [the court] must be satisfied that the case before [it] does not present a hypothetical injury or a claim contingent upon some event that has not and indeed may never transpire.” (Citation omitted; internal quotation marks omitted.) Esposito v. Specyalski, 268 Conn. 336, 346, 844 A.2d 211 (2004).

The plaintiff's claims are ripe for adjudication. In count four, the plaintiff alleges that the Trump contract “has been breached and is in default ... [A]ll funds advanced under the term of the Trump Contract, plus all applicable interest, is due, owing, and payable in full at this time to Trump in the amount of [$10,105,555] with interest accruing daily and Trump hereby demands immediate and full payment hereof ...” (Complaint, Count 4, ¶¶ 43 and 44.) The plaintiff also alleges that the Trump contract provides that all payments made pursuant to the Trump contract by the plaintiff shall be treated as advances to the tribe and that the aggregate amount of such advances, with interest at the rate of 8% per annum from the date of each advance, shall become immediately repayable to Trump in the event that the PEPs, or any successor tribe to which the PEPs are a constituent part, executes a management agreement with a party other than the plaintiff. (Complaint, ¶ 21.) In count five, the plaintiff claims that the “actions of the [PEPs and PEP councillors] ... constitute material and substantial breach of the Trump Contract for which each said defendant is jointly and severally liable.” (Complaint, Count 5, ¶ 43.) “As a result of said material breach of the Trump Contract, Trump has suffered substantial money damages ...” (Complaint, Count 5, ¶ 44.) In count six, the plaintiff alleges: “As a result of said failure to perform [by the PEPs and PEP councillors] and the unique aspect of this contractual arrangement, Trump has suffered and will continue to suffer irreparable harm ...” (Complaint, Count 6, ¶ 46.) These claims relate, in whole or in part, to the alleged economic harm that the plaintiff has suffered or continues to suffer, regardless of whether the PEPs will be finally recognized by the BIA or whether they ultimately will be able to operate a casino.

In sum, the court finds that the foregoing claims are justiciable because they are not dependent on federal recognition of the PEPs or the Easterns as a tribe and because there are portions of the counts directed against the PEP councillors relating to alleged advances from the plaintiff to the defendants which are ripe. Therefore, the motion to dismiss the counts against the PEP councillors is denied on this ground. See Bazzano v. Arroyo, Superior Court, judicial district of Litchfield, Docket No. CV 93 0063015 (November 2, 1993, Pickett, J.) (a motion to dismiss a single count must be denied when the court has jurisdiction over a portion of that count).

III


TRIBAL SOVEREIGN IMMUNITY

*9 The defendant PEP councillors argue that the court should dismiss the plaintiff's claims against them because their sovereign immunity, acknowledged in the Trump contract, deprives the court of jurisdiction. They argue that suits against an Indian tribe are barred by tribal sovereign immunity unless Congress has authorized the suit or the tribe has clearly and unequivocally waived its immunity and consented to suit in a specific forum. They further argue that federal recognition is not a prerequisite for a tribe to invoke sovereign immunity. Moreover, they contend that the doctrine of sovereign immunity extends to individual tribal officials acting in their representative capacities and within the scope of their authority.

Relying on Fletcher v. United States, 116 F.3d 1315, 1324 (10th Cir.1997), the plaintiff argues that the defendant PEP councillors are not immune from suit in their official capacities because the defendant PEPs clearly and unequivocally waived the tribe's sovereign immunity in the Trump contract. Relying primarily on Puyallup Tribe, Inc. v. Department of Game of Washington, 433 U.S. 165, 173, 97 S.Ct. 2616, 53 L.Ed.2d 667 (1977), it further argues that the defendants may be sued in their individual capacities because tribal members, including tribal officials, are amenable to suit if the subject of the suit is not related to the officials' performance of official duties.

The defendants concede that the defendant PEPs agreed to limited waivers of sovereign immunity in the Trump contract and in subsequent amendments, but they argue that these waivers do not allow the plaintiff to sue the defendant PEP councillors. They contend that in the original agreement, the PEPs waived their sovereign immunity only with respect to compelling arbitration of disputes that might arise out of the Trump contract and the enforcement of arbitration decisions. They further argue that, in the second amendment to the Trump contract, the original waiver provision was deleted and replaced with another waiver, which, they argue, explicitly preserves the tribal sovereign immunity applicable to the defendant PEP councillors.

The plaintiff counters that the waiver in the Trump contract “does not limit the causes of action” that the plaintiff has brought against the defendants. It argues that the waiver limits only “the personal liability of the individual [PEP councillor] defendants for their official actions on the Tribal Council or as a member of the Tribe,” but does not limit the defendants' personal liability for their “personal actions that exceed the scope of their official authority as alleged.” (Emphasis in original.) (Plaintiff's memorandum, p. 22.) The plaintiff argues that the defendants, therefore, may be sued in their official capacities because the PEPs waived their sovereign immunity in the Trump contract and that they may be sued in their individual capacities because their actions exceeded the scope of their authority as tribal councillors. It argues that the limiting provision in the PEPs' waiver is inapplicable to its claims against the defendants.

*10 “[A]s a matter of federal law, an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity ... and the tribe itself has consented to suit in a specific forum ... Absent a clear and unequivocal waiver by the tribe or congressional abrogation, the doctrine of sovereign immunity bars suits for damages against a tribe ... However, such waiver may not be implied, but must be expressed unequivocally.”  (Citations omitted; internal quotation marks omitted.) Kizis v. Morse Diesel International, Inc., supra, 260 Conn. at 53-54.

“Several cases have established that tribal sovereign immunity does not extend to individual members of a tribe and that the tribe itself must assert immunity. A state court does have the authority to adjudicate actions against tribal members when it properly obtains personal jurisdiction. See, e.g., Puyallup Tribe, Inc. v. Washington Game Dept., [supra, 433 U.S. at 173];  United States v. James, 980 F.2d 1314, 1319 (9th Cir.1992), cert. denied, 510 U.S. 838, 114 S.Ct. 119, 126 L.Ed.2d 84 (1993) ; State v. Sebastian, supra, 243 Conn. at 160. The doctrine of tribal immunity [however] extends to individual tribal officials acting in their representative capacity and within the scope of their authority ... Romanella v. Hayward, 933 F.Sup. 163, 167 (D.Conn.1996). The doctrine does not extend to tribal officials when acting outside their authority in violation of state law. See Puyallup Tribe, Inc. v. Washington Game Dept., supra, at 171-72.” (Internal quotation marks omitted.) Kizis v. Morse Diesel International, Inc., supra, 260 Conn. at 51 n. 7. The defendants, therefore, would be entitled to sovereign immunity only if they were acting in their official capacities as tribal councillors and if their sovereign immunity has not been waived.

In the second amendment to Trump contract, entered into on September 30, 2002, the defendant PEPs agreed to a provision entitled “Limited Waiver of Sovereign Immunity,” which provides in relevant part, “The Tribe hereby waives its sovereign immunity, consents to be sued and submits to the jurisdiction of any court of the State of Connecticut and of the Federal District Court for the District of Connecticut, the Federal Court of Appeals for the Second Circuit and the United States Supreme Court with respect to any claim or cause of action arising under or relating to this Agreement and/or the Project ... Developer acknowledges that no member of the Tribal Council or other representative of the Tribe shall have personal liability for the obligations of the Tribe under this agreement by reason of his or her status as a member of the Tribal Council or representative of the Tribe.” (Emphasis in original.)  (Complaint, Exhibit A, Second Amendment to Agreement, ¶ 2(g).) While this provision effectively waived the defendant PEPs' sovereign immunity for the purposes of this suit, it explicitly preserved that immunity as to the defendant PEP councillors as to acts within the scope of their official duties as members of the PEP tribal council. The plaintiff's argument that none of its claims were brought against the defendants because of their status as PEP councillors is unpersuasive because the plaintiff has not alleged any specific conduct by the defendants in counts four, five and six, that was outside the scope of their official duties. Moreover, even if this waiver is somewhat ambiguous as it relates to the PEP councillors, the court cannot find that the defendants have waived their sovereign immunity as to the plaintiff's claims because, to be effective, any waiver of tribal sovereign immunity must be clear and unequivocal. This court, therefore, lacks subject matter jurisdiction over the claims against the defendant PEP councillors in their official capacities set forth in counts four, five and six.

*11 The defendants next argue that although the complaint alleges that the defendants “are all sued in their official and their individual capacities”; (Complaint, ¶ 8.); the allegations in the complaint concerning the defendants relate only to their official conduct as tribal councillors. They note that the complaint lacks any allegations specific to any particular tribal councillor, with the exception of the defendant Eugene Young, although the defendants served the tribal council in various ways. As an example, they note that only some of the defendants were elected to serve on the Historics' tribal council, which approved the disputed development agreement. They argue that the collective way in which the complaint describes the activities of the defendants is a “strong indication that the defendants are being sued in their representative rather than personal capacities.” (Defendants' memorandum, p. 8.)

The defendants further argue that mere allegations that the PEP councillors breached a contract with the plaintiff and that the defendants are sued in their individual capacities are insufficient to overcome tribal sovereign immunity. They argue that even if the plaintiff had alleged that the defendants violated state and federal law, that would be insufficient to state a claim that the defendants acted outside the scope of their authority unless it had also alleged and proved that the defendants acted without any colorable claim of authority. Moreover, they argue that the plaintiff has made no such allegations. They maintain that the plaintiff's failure to allege facts showing that each defendant acted “manifestly or palpably beyond his authority,” prevents the plaintiff from overcoming the defendants' tribal sovereign immunity. They assert that each of the allegations in the complaint directed toward the defendants refers to official conduct of the defendants in their capacities as tribal councillors.

Although count three is not directed against the defendant PEPs or PEP councillors, FN11 the plaintiff contends that its allegations, in counts three, four, five and six of the complaint, that the defendants PEPs and PEP councillor conspired with defendants ECD, ECF, Rosow and Koch to illegally and fraudulently interfere with the Trump contract and to evade civil liability by “secretly covering up this conduct so as to induce [the PEPs] and/or its successors to enter into a subsequent project development contract with ECD, ECF, Rosow and Koch,” that the defendants participated in “secret meetings and conferences to scheme and unlawfully interfere with and infringe upon the lawful and valuable rights of [the plaintiff] secured by the Trump contract”; (plaintiff's memorandum, p. 20.); and that the defendant PEPs and individual PEP members breached the Trump contract, demonstrate that the defendants acted outside the scope of their authority as tribal councillors. It argues that the claims against the defendants in their official and individual capacities should be allowed to proceed against them pursuant to Fletcher, supra, 116 F.3d at 1315,  and Puyallup, supra, 433 U.S. at 165, respectively, without offering any explanation as to which capacity each claim relates.

FN11. See note 4.

*12 “In the tribal immunity context, a claim for damages against a tribal official lies outside the scope of tribal immunity only where the complaint pleads-and it is shown-that a tribal official acted beyond the scope of his authority to act on behalf of the Tribe.” Basset v. Mashantucket Pequot Museum & Research Center, Inc., 221 F.Sup.2d 271, 280 (D.Conn.2002). “Claimants may not simply describe their claims against a tribal official as in his ‘individual capacity’ in order to eliminate tribal immunity.” Id. A court should “examine the actions of the individual tribal defendants ... [A] tribal official-even if sued in his individual capacity-is only stripped of tribal immunity when he acts manifestly or palpably beyond his authority ...” (Emphasis in original; internal quotation marks omitted.) Id.;  see Oneida Indian Nation of New York v. Sherrill, 337 F.3d 139, 169 (2d Cir.2003). Further, “[i]n order to overcome sovereign immunity, the [plaintiff] must do more than allege that the defendants' conduct was in excess of their ... authority; they also must allege or otherwise establish facts that reasonably support those allegations.” (Internal quotation marks omitted.) Hultman v. Blumenthal, 67 Conn.App. 613, 624, 787 A.2d 666, cert. denied, 259 Conn. 929, 793 A.2d 253 (2002); see also Chayoon v. Sherlock, Superior Court, judicial district of New London at Norwich, Docket No. CV 03 0128101 (April 23, 2004, Martin, J.).

The allegations in counts four, five and six are insufficient to support the plaintiff's argument that the defendants acted outside the scope of their authority. In Puyallup Tribe, Inc. v. Department of Game of Washington, supra, 433 U.S. at 171-72, the United States Supreme Court held that “a suit to enjoin violations of state law by individual tribal members is permissible. The doctrine of sovereign immunity ... does not immunize the individual members of the Tribe.” In that case, the state of Washington sought to enjoin the fishing activities of tribal members that were in violation of state law. Unlike the facts of this case, the defendants in Puyallup were not acting as tribal council members, but as fishermen. The plaintiff does not allege that the PEP councillors are engaged in any activity so clearly outside the scope of their authority as tribal councillors. All of the allegations concerning the defendants relate to activities surrounding tribal decision making, tribal council meetings, and the Trump contract.

Although the plaintiff alleges that some of the defendants' activities were “illegal” or “unlawful” (see, e.g., Complaint, Count Three, ¶¶ 45-46.), such allegations are not, by themselves, sufficient to establish that the defendants acted outside the scope of their authority. In Basset v. Mashantucket Pequot Museum and Research Center Inc., supra, 221 F.Sup.2d at 281, the United States District Court for the District of Connecticut held that “it is insufficient for the [plaintiff] merely to allege that [the defendants] violated state and federal law in order to state a claim that [the defendants] acted beyond the scope of their authority; it would be tantamount to eliminating tribal immunity from damages actions because a plaintiff must always allege a wrong in order to state a claim for relief. Rather, the Court finds that to state a claim for damages against [the defendants], the plaintiffs would have to allege and prove that [the defendants] acted ‘without any colorable claim of authority,’ apart from whether they acted in violation of federal or state law.” The plaintiff has neither pleaded nor proved such conduct here. Moreover, the only allegations of “illegal or “unlawful” conduct by the defendants are in count three, which, as noted previously, is not directed against the defendant PEP councillors.

*13 In its memorandum, the plaintiff argues that discovery and a hearing are necessary prior to the resolution of the motion to dismiss because the motion raises issues of fact. The plaintiff contends that the defendant PEPs' claim of sovereign immunity depends on a factual determination by the court of “factual issues involving the conduct of the individual tribal members and whether, with regard to the actions alleged in the complaint, the individual defendants were acting within or outside the scope of their official duties as tribal councillors.”

“When issues of fact are necessary to the determination of a court's jurisdiction, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses.” (Internal quotation marks omitted.) Unisys Corp. v. Department of Labor, 220 Conn. 689, 695-96, 600 A.2d 1019 (1991). “A motion to dismiss may ... raise issues of fact and would, therefore, require a ... hearing [to determine the facts] ... In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.” (Citation omitted; internal quotation marks omitted.) Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983).

As previously noted, it is the burden of the party seeking the exercise of the court's jurisdiction to clearly allege facts establishing subject matter jurisdiction. The plaintiff has failed to allege any facts which would strip the PEP councillors of their tribal immunity. Moreover, the plaintiff was unable to articulate either in its papers or oral argument the facts it claimed needed to be resolved by way of an evidentiary hearing. Nor has it referred the court to any written evidence that raises a genuine issue of material fact concerning its claims against the PEP councillors. Therefore, the court may base its determinations on the allegations in the complaint, without additional discovery or a hearing.

Further, a close examination of the allegations of the complaint reveals that the plaintiff alleges it was the PEPs, not the PEP councillors who entered into the contract with the plaintiff, on March 11, 1997, “which was subsequently amended on March 7, 2002, and September 30, 2002.” (Complaint, ¶¶ 16 and 17.) Although the contract and its two amendments were authorized by resolutions of the Paucatuck Tribal Council, the PEP councillors were not themselves parties to the contract. (Complaint, ¶ 18; Exhibits A & B.) Therefore, although counts four, five and six, appear to be directed against the PEPs and the PEP councillors, for claims arising out of or relating to the alleged breach of contract by the tribe, based on the complaint, there is no practical relief that can obtained as to these defendants.

For all the foregoing reasons, the court finds that the defendant PEP councillors are entitled to the protections of tribal sovereign immunity because the waiver in the Trump contract explicitly preserves that immunity with regard to their official conduct as tribal councillors and the plaintiff has neither alleged nor proved that the defendant PEP councillors acted outside the scope of their authority.

IV


CONCLUSION

*14 Accordingly, the defendant PEP councillors' motion to dismiss is hereby granted.

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