(Cite as: Not Reported in A.2d)
Not Reported in A.2d, 2005 WL 1273521
UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING.
Superior Court of Connecticut,
Judicial District of New Britain, Complex Litigation Docket.
TRUMP HOTELS AND CASINO RESORTS DEVELOPMENT COMPANY, LLC
David A. ROSOW, et al.
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. , Bockius, Leonard Lesser , New York, NY, for David A. Rosow, Eastern Capital Development, LLC and Eastern Capital Funding LLC.
Mintz, Levin, Cohn, Ferris, Glovsky & P , Stamford, PHV Bell Ray Morrow 6/9/04, San Diego, CA, for William I. Koch.
Tobin, Carberry, Omalley, Riley & Seli , New London, for Mark R., Katherine H., Mary and W. Sebastian , Marcia Jones-Flowers , Lynne D. Powers , Ron Jackson , Joseph A. Perry , Eastern Pequot Indians of Connecticut Inc., and Paucatuck Eastern Pequot Tribal Nation, and Lewis E. Randall.
Jeremiah Donovan , Old Saybrook, for Paucatuck Eastern Pequot Tribal Nation, Eugene R. and Frances M. Young, James L. Williams , James A. and Agnes E. Cuhna, Gina Hogan , Christine C. Meisner, and Brenda L. and Raymond A. Geer.
*1 This action arises out of an alleged breach of contract caused by the defendant Eastern Pequot Indians of Connecticut, Inc., aka Eastern Pequot Tribe, aka Sebastian Group (Easterns) and by the members of its tribal council, defendants 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.) FN1 The plaintiff, Trump Hotels and Casino Resorts Development Company, LLC (Trump), filed a nine-count complaint on June 24, 2003, alleging violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et. seq. (count one), intentional interference with contractual, economic and business relationships (count two), and civil conspiracy and fraud (count three) as to the Easterns and the Eastern councillors. Among other remedies, the plaintiff seeks a “prohibitive injunction” (count eight) and a “mandatory injunction” (count nine). FN2
FN1. Although David A. Rosow, William I. Koch, Eastern Capital Development, LLC, Eastern Capital Funding, LLC, the Paucatuck Eastern Pequot Tribal Nation (PEPs), Eugene R. Young, James L. Williams, Sr., James A. Cunha, Jr., Frances M. Young, Agnes E. Cunha, Gina Hogan, Christine C. Meisner, Brenda L. Geer and Raymond A. Geer 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 Easterns and/or the Eastern councillors.
FN2. Although the defendants have moved to dismiss counts one, two, three, eight and nine of the complaint, 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 action, as distinguished from separate and distinct claims for relief, shall be pleaded in separate counts). Accordingly, 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.
The defendants have now moved to dismiss counts one, two, three, eight and nine asserting 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 Paucatuck Eastern Pequot Tribal Nation (PEPs), which had been recognized as an Indian tribe by the state of Connecticut (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, were 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 the 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 FN3 and 47-59b FN4 (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.)
FN3. 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.”
FN4. 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 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 Historics 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 12, 2004, the defendants Easterns and Eastern councillors filed a motion to dismiss counts one, two, three, eight and nine 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.”
STANDARD OF REVIEW
“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).
*4 “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).
The defendant 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. 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).
The 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.
*5 The plaintiff counters that its claims are not dependent upon a political determination as to federal recognition. It contends that the defendant Easterns are not recognized by the state or by the federal government as an Indian tribe independent of the PEPs. It further contends 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, it 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 dependent 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 ... Furthermore, 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), 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 a civil 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.” FN5 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.
FN5. 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, the court finds that recognition of Indian tribes is not a political question and may be determined by the court. Accordingly, the motion to dismiss on the ground that the plaintiff's claims are dependent on a nonjusticiable political question is denied.
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) FN6 and 25 C.F.R. § 533.7. FN7 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.
FN6. 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 ...”
FN7. 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 its claims are ripe for adjudication, the court has jurisdiction to consider them and that an actual controversy exists because the action is not 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 contends 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. The plaintiff further argues that the defendant Easterns are liable for the obligations of the PEPs as set forth in the Trump contract because they have acknowledged, in their interim constitution, that their tribe is the same tribe referred to in General Statutes §§ 47-59a and 47-59b as the “Paucatuck Eastern Tribe.”
*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 in counts one, two and three are ripe for adjudication. In counts one and two, the plaintiff alleges that as a result of the defendants' acts, the plaintiff has lost the use of funds that were paid to the PEPs. (Complaint, Count 1, ¶ 48; Count 2, ¶ 48.) In count three, the plaintiff alleges that as a result of the defendants' acts, the plaintiff “has suffered and continues to suffer significant past and future econonic losses ...” (Complaint, Count 3, ¶ 49.) 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.) As noted previously, the plaintiff further alleges that it had advanced $9,192,807 as of August 31, 2002 pursuant to the contract; (Complaint, ¶ 22); and that the PEPs had breached the contract by agreeing to enter into a contract with ECD and/or ECF, Koch and Rosow. (Complaint, ¶ 38.)
These claims are not dependant upon federal recognition of the defendants as an Indian tribe because they are not contingent on future gaming revenue. They are based, in part, on the allegations that the Easterns and individual Eastern councillors engaged in certain activities which, inter alia, caused Trump to lose the use of funds that had been paid to the PEPs. (Complaint, count one, ¶¶ 43 and 48; count two, ¶¶ 43 and 48.) They are also based on the allegation that the individual Eastern councillors “and their attorneys and other representatives attended and participated in numerous secret meetings, conferences, and policy making sessions with [the PEPs], and/or its successors, individual [PEP] members and [PEP councillor], to implement and carry out the aforesaid policies, plans, and schemes and unlawfully interfere with and infringe upon the lawful and valuable rights of Trump causing [the defendant PEPs] and/or its successors to breach the Trump [c]ontract and enter into a subsequent project development contract with defendant ECD and/or ECF, Rosow, and Koch,” thereby causing Trump to suffer “significant past ... economic losses ...” (Complaint, count three, ¶¶ 46 and 49.)
*9 The claims in counts one, two and three are based, in part, therefore, on claims arising from the breach of contract by the PEPs, which, the plaintiff claims, requires the repayment of funds that the plaintiff advanced to the PEPs pursuant to the Trump contract, The plaintiff's claims in counts one, two, three, eight and nine are ripe for adjudication since they are not dependent on federal recognition of the PEPs or the Easterns as a tribe. Because the court has jurisdiction over the portions of those counts relating to the alleged advances from the plaintiff to the PEPs, it has jurisdiction over all of the foregoing counts. A motion to dismiss directed to counts over which the court has partial jurisdiction must be denied. 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).
TRIBAL SOVEREIGN IMMUNITY
The defendants argue that the plaintiff's claims are barred by the doctrine of sovereign immunity. They maintain that suits against Indian tribes are barred unless there is a clear waiver by the tribe or an express waiver by Congress and that there has been no such waiver by the defendant Easterns. Further, they argue that the plaintiff's suggestion that the court should determine which of the two groups, the PEPs or the Easterns, is the tribe recognized by the state, would infringe upon tribal sovereignty and would interfere with the tribe's right to self-government.
The defendants also argue that the Eastern councillors are entitled to sovereign immunity for the official conduct challenged by the plaintiff. They contend that according to the allegations in the complaint, the Eastern councillors voted to contract with ECD to the exclusion of the plaintiff pursuant to the interim constitution and in their capacities as tribal councillors. They argue that the Eastern councillors are entitled, therefore, to sovereign immunity from the plaintiff's claims.
The plaintiff makes several arguments against the defendants' assertion of tribal sovereign immunity. First, it asserts that the defendant Easterns are not entitled to sovereign immunity because neither the PEPs nor the Easterns are a federally recognized tribe. Relying primarily on Western Shoshone Business Council v. Babbitt, 1 F.3d 1052 (10th Cir.1993), the plaintiff argues that because neither tribe is listed as a federally recognized tribe by the Department of the Interior, the defendant's claims of sovereign immunity must fail because a purported tribe's absence from the department's list is dispositive as to that tribe's status.
“Western Shoshone is distinguishable, however, due to the nature of the federal statute involved in that case. The tribe in Western Shoshone was seeking to assert rights under 25 U.S.C. § 81, which requires that contracts with tribes for the payment of money be approved by the Bureau of Indian Affairs. Section 81 created a federal benefit available to Indian tribes officially recognized for that purpose. Because the tribe in that case was not administratively recognized, [the United States Court of Appeals for the Tenth Circuit] held it was not within the zone of interests protected by section 81 and therefore had no standing to bring suit ... Western Shoshone addressed only the ability of an unrecognized tribe to obtain statutory benefits created by the federal government; it does not apply to preexisting Indian rights recognized and guaranteed by a treaty, statute, or executive order.” (Emphasis in original.) Timpanogos Tribe v. Conway, 286 F.3d 1195, 1204 (10th Cir.2002). The absence of the PEPs and Easterns from the federal listing, therefore, is not dispositive of the issue of sovereign immunity from suit under state law.
*10 The plaintiff next argues that the defendant Easterns are not entitled to the protections of sovereign immunity because the state of Connecticut has recognized the PEPs, but has not recognized the Easterns. Citing First American Casino v. Eastern Pequot Nation, Superior Court, judicial district of New London, Docket No. CV 0541674 (July 16, 2001, Robaina, J.) (30 Conn. L. Rptr. 107), it concedes that recognition of a tribe by the state entitles that tribe to the protections of sovereign immunity. It notes that the listings in General Statutes §§ 47-59a and 47-59b, which the court in First American Casino referenced in rendering its decision, include the PEPs but not the Easterns. It argues that the Easterns' assertion of sovereign immunity, therefore, may succeed only to the extent that they prove that they are the same tribe referred to in §§ 47-59a and 47-59b as the Paucatuck Eastern Pequot tribe. The plaintiff further contends that the defendants' assertion of sovereign immunity must fail because the PEPs have waived their sovereign immunity and such a waiver binds the Easterns as a “splinter group” of the PEPs.
Alternatively, the plaintiff argues that an issue of fact exists as to whether the Easterns are bound under a theory of apparent authority. “Apparent authority is that semblance of authority which a principal, through his own acts or inadvertences, causes or allows third persons to believe his agent possesses ... Consequently, apparent authority is to be determined, not by the agent's own acts, but by the acts of the agent's principal ... The issue of apparent authority is one of fact to be determined based on two criteria ... First, it must appear from the principal's conduct that the principal held the agent out as possessing sufficient authority to embrace the act in question, or knowingly permitted [the agent] to act as having such authority ... Second, the party dealing with the agent must have, acting in good faith, reasonably believed, under all the circumstances, that the agent had the necessary authority to bind the principal to the agent's action.” (Internal quotation marks omitted.) Gordon v. Tobias, 262 Conn. 844, 850-51, 817 A.2d 683 (2003).
The plaintiff has not alleged or argued that the Easterns held the PEPs out as possessing the authority to bind the Easterns to a waiver of sovereign immunity by the PEPs. The defendants argue that the PEPs represented to the plaintiff that the PEPs had the authority to enter into a contract and waive its sovereign immunity. Nevertheless, the PEPs' representations are irrelevant to the issue of apparent authority. Only the conduct of the Easterns, as principal, is relevant to whether the PEPs, as agent, had apparent authority to waive sovereign immunity on behalf of the Easterns. The PEPs did not have apparent authority to bind the Easterns to the Trump contract or to a waiver of sovereign immunity because the Easterns did not hold the PEPs out as having such authority.
*11 The plaintiff also contends that as a successor tribe to the PEPs, the Easterns are required to accept responsibility for the PEPs' waiver of sovereign immunity and for its debts under a theory of successor liability. A review of the case law reveals no instance in which the courts of this state have applied the principles of successor liability outside the context of the sale of a business. See, e.g., Northeast Connecticut Economic Alliance, Inc. v. ATC Partnership, 272 Conn. 14, 38, 861 A.2d 473 (2004); Lynch v. Infinity Outdoor, Inc., Superior Court, judicial district of New Haven, Docket No. CV 01 0453323 (May 7, 2003, Licari, J.). In that context, the Superior Court has held, “Under Connecticut law, a corporation which purchases the assets of another company does not automatically become liable for the debts and liabilities of its predecessor unless there exists one of four established exceptions to this general rule. Specifically, the party seeking to impose liability on the basis of de facto successorship must establish: (1) that the purchase agreement expressly or impliedly so provides; (2) there was a merger or consolidation of the two firms; (3) the purchaser is a ‘mere continuation’ of the seller; or (4) the transaction is entered into fraudulently for the purpose of escaping liability ...” Lynch v. Infinity Outdoor, Inc., supra, Docket No. CV 01 0453323.
The plaintiff argues that the Easterns and the PEPs admit in the interim constitution that they are the same tribe, thereby satisfying the first exception. That document does not provide, expressly or impliedly, that the Easterns are liable as a successor tribe to the PEPs. Arguably, it impliedly provides that the Historics, the group comprised of the PEPs and the Easterns, is a successor in interest to the PEPs. Further, the allegations in the complaint do not support the plaintiff's argument because the plaintiff has not alleged that either the Easterns or the PEPs purchased an interest in the other group, but rather that the “Easterns, the Sebastian splinter group of [the PEPs] which had never duly constituted a separate government, rejoined [the PEPs] under the terms of an ‘Interim Constitution’ ...” (Complaint, ¶ 35.) The Easterns are not bound by the PEPs' waiver of sovereign immunity under a theory of successor liability because successor liability is not applicable under the facts alleged.
The plaintiff also contends that the Easterns' claims of sovereign immunity are inconsistent with its registration with the secretary of state as a Connecticut corporation. It argues that by such registration, it has submitted itself to the jurisdiction of the state. “[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. The Easterns' registration as a Connecticut corporation is not an unequivocal waiver of sovereign immunity.
*12 Further, the plaintiff asserts that the individual Eastern councillors may not assert sovereign immunity as a defense. Relying on Fletcher v. United States, 116 F.3d 1315, 1324 (10th Cir.1997), it argues that the individual tribe members may be sued in their official capacities because the Easterns do not enjoy the protections of sovereign immunity. It also argues that these defendants may be sued in their individual capacities as well because tribal members and tribal officials are amenable to suit with regard to claims that are not related to the performance of their official duties.
“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., 433 U.S. 165, 173, 97 S.Ct. 2616, 53 L.Ed.2d 667 (1977) ; 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, 243 Conn. 115, 160, 701 A.2d 13(1997), cert. denied, 522 U.S. 1077, 118 S.Ct. 856, 139 L.Ed.2d 756 (1998). 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 Eastern councillors would be entitled to sovereign immunity only if they were acting in their official capacities as tribal councillors and their sovereign immunity has not been waived.
Finally, 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 defendants counter that an evidentiary hearing is not required. The plaintiff contends that the defendant Easterns' claim of sovereign immunity depends on a factual determination by the court of its “tribal status,” which must be demonstrated through “various historical factors.” It argues that a hearing is required in order to make such a determination. The United States Court of Appeals has held that in the absence of recognition as an Indian tribe by the federal government, “tribal status may still be based on conclusions drawn from careful scrutiny of various historical factors. See, e.g., Mashpee Tribe v. New Seabury Corp., [supra, 592 F.2d at 582-88].” Alaska v. Native Village of Venetie, supra, 856 F.2d at 1387. In Mashpee Tribe, the United States Court of Appeals discussed at great length factors such as race, territory; id., at 582; ongoing “leadership or government”; id., at 583; and community; id., at 585-86; in reviewing a trial court's jury instructions with regard to the definition of “tribe.” These factors are to be considered by the fact finder in determining whether the defendant is an Indian tribe entitled to the protections of sovereign immunity.
*13 “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). “Moreover, a court cannot make a critical factual finding based on memoranda and documents submitted by the parties.” Coughlin v. Waterbury, 61 Conn.App. 310, 315, 763 A.2d 1058 (2001).
The Easterns have not submitted any evidence that raises a question of fact concerning the key allegations of the plaintiff's complaint to the effect that the Easterns are not entitled to sovereign immunity. In the course of the hearings on their motion to dismiss, the defendant Easterns have repeatedly asserted that there was no need for the court to hold an evidentiary hearing concerning their claim of sovereign immunity. Accordingly, viewed in a light most favorable to the plaintiff, the complaint alleges that the defendant Eastern are not entitled to sovereign immunity because they have never been recognized as an Indian tribe under federal or state law. Specifically, the Easterns have not submitted any evidence to the effect that they are a bona fide tribe separate from the PEPs. The plaintiff alleges that the Easterns were “a voluntary association that was a splinter group of [the PEPs] holding itself out to the public as an Indian tribe, but which has not been recognized as an Indian tribe by the state of Connecticut nor has it been finally so recognized by the federal government.” (Complaint, ¶ 7.) According to the complaint, the Easterns were part of the PEPs until they separated from the PEPs between 1973 and 1978. (Complaint, ¶¶ 10 and 13.)
Moreover, the Easterns have never been recognized as a tribe separate from the PEPs under state law. The General Statutes contain several references to the “Paucatuck Eastern Pequot” tribe. See General Statutes §§ 47-59a , 47-59b , 47-63 and 10-382. The Easterns are not separately mentioned nor is there any evidence which suggests that the “Easterns,” as opposed to the PEPs are the recognized Paucatuck Eastern Pequots. Therefore, for the purposes of this motion to dismiss, the court finds that the Easterns are a splinter group of the PEPs and are not a separate tribe.
Accordingly, the Easterns are not entitled to the protections of sovereign immunity. As members of a group separate from the PEPs that is not entitled to tribal status, sovereign immunity is not applicable to them. If the Easterns are in fact members of the PEPs, they cannot assert sovereign immunity because the tribe itself must assert that immunity. See Kizis v. Morse Diesel International, Inc., supra, 260 Conn. at 51 n. 7. In addition, in the second amendment to the Trump contract, the PEPs clearly and unequivocally waived sovereign immunity. (Complaint, ¶ 27 and Exh. A.) The defendant Easterns, therefore, are not immune from suit under the doctrine of sovereign immunity as a separate group or as members of the PEPs.
*14 Similarly, the individual Eastern councillors are not entitled to sovereign immunity. The plaintiff alleges that the Eastern councillors were “members of [t]he Easterns and at various relevant times its Tribal Council ...” (Complaint, ¶ 9.) It further alleges, “They are all sued in their official and their individual capacities.” (Complaint, ¶ 9.) As members of a tribal council of a group that is not a bona fide tribe, tribal sovereign immunity cannot shield them from the plaintiff's claims.
For all of the foregoing reasons, the defendant Easterns' and individual Eastern councillors' motion to dismiss is denied.