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(Cite as: 2005 WL 1971223)

Superior Court of Connecticut,Judicial District of Middlesex.

Bradley W. BEECHER et al.



No. MMXCV054002923S.

July 18, 2005.

John Williams Associates, LLC, New Haven, for Bradley W. Beecher and Katherine A. Beecher.

Rome Mcguigan P.C., Hartford, for MTIC LLC FKA.


*1 The plaintiffs, Bradley Beecher and his wife Katherine Beecher, have brought an action against the Mohegan Tribe of Indians of Connecticut (?tribe?). FN1 The action seeks damages arising from a prior action brought by the tribe and alleges that the prior action was brought for no purpose other than to stifle expression. The gravamen of the underlying factual situation is that the plaintiff Bradley Beecher had been employed by the tribe as part of its security effort. He was terminated in April 2004; a controversy as to whether Beecher had been listed by the tribe without his knowledge as a terminated employee of a fictional agency is alleged in this complaint. Later in 2004 the tribe sought to purchase various gambling enterprises in Pennsylvania and needed regulatory approval. Allegedly in an effort to restrain the plaintiff from making adverse comments to the Pennsylvania authorities, the tribe brought an action against the plaintiffs which claimed violations of a confidentiality agreement and breaches of common-law duties arising out of employment. It is that action which the plaintiffs claim to be a ?SLAPP?  FN2 proceeding. FN3 The tribe has moved to dismiss the action because of the sovereign immunity of the Indian Nation.

FN1. There is some discrepancy regarding the nomenclature of the defendant. For the purpose of the motion to dismiss, I assume that the facts stated in footnote 1 of the defendant's memorandum in support of its motion to dismiss are correct. I also assume that the defendant is an Indian Nation recognized by the state and federal governments. These are facts which have not been disputed by the plaintiffs.

FN2. A ?SLAPP? action is a so called ?Strategic Lawsuit Against Public Participation.? The terminology appeared in Field v. Kearns, 43 Conn.App. 265, 275-76 (1996) and in a University of Bridgeport Law Review Article.

FN3. According to copies of documents from the prior action submitted by the tribe, that action appears to have been terminated by a mutually agreed-upon permanent injunction. Ordinarily, a settled case does not provide the ingredients for a subsequent case based on abuse of process, malicious prosecution or the like. But that issue need not be addressed here.

The general rule, of course, is that recognized Indian tribes enjoy sovereign immunity from suit. See, e.g., Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) ; Kizis v. Morse Diesel International, Inc., 260 Conn. 46 (2002). Such sovereign immunity may be abrogated only by express legislative authorization or by express waiver. Id. Any waiver must be clear and unambiguous. C & L Enterprises v. Potawatomi Indian Tribe, 532 U.S. 411, 418 (2001). In order for waiver to be found as a result of an action brought by a tribe, the waiver of immunity is limited to issues which are necessary to decide the action initially brought by the tribe. See, e.g., McClendon v. United States, 885 F.2d 627, 630 (9th Cir.1989).

The plaintiffs seem to agree with the black letter law. They claim, however, that the facts alleged in the complaint support a finding of waiver sufficient to remove this action from the application of the usual rule. Two sorts of exceptions, somewhat related, are cited. The first is that sovereign immunity does not extend, in some circumstances, to Indian activity outside the reservation. The second is that by seeking the aid of the Connecticut courts in the prior action, the tribe has waived immunity for a secondary action arising out of the first. The reliance is misplaced.

The first claim requires little discussion. The plaintiffs rely upon Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973), for the proposition that off-reservation activities are not entitled to the protections of sovereign immunity. Mescalero Apache Tribe, however, involved the question of whether the state could tax some aspects of the tribe's ski resort, a business enterprise conducted on land outside the reservation. With some qualifications, the United States Supreme Court decided that such taxation was not barred by the application of sovereign immunity. The Mescalero context is entirely different from the instant scenario.

*2 The second claim has more substance. The plaintiffs rely on Confederated Tribes of Colville Reservation Tribal Credit v. White, 139 F.3d 1268 (9th Cir.1998), for the proposition that a tribe, by filing an action, waives immunity from ?inevitable consequences? of having filed the first action. White, though, does not support the proposition advanced. White was a debtor of a credit union totally owned by a tribe. When White was in financial difficulty and sought Chapter 11 protection in bankruptcy court, the tribe actively submitted a claim but later objected to a proposed workout. When White converted his filing to a Chapter 7 claim, the tribe sought to avoid having its claim adjudicated by the bankruptcy court on the ground of sovereign immunity. The tribe's position was that the Chapter 11 proceeding and the Chapter 7 proceeding were really two different actions, and that by seeking relief in one forum it was not waiving immunity as to the other. Had the Ninth Circuit agreed that there were in reality two separate proceedings and that by actively joining the first the tribe waived any objection to the second, White may have been most helpful to the Beechers' position. But the court's holding was different:

Knowing that White could convert his reorganization into a liquidation at any time, Colville Credit nevertheless submitted its claim to the jurisdiction of the bankruptcy court for adjudication. That waived sovereign immunity for the case for that claim. Like any creditor, Colville Credit must ?abide by the consequences? of choosing to assert a claim in White's bankruptcy, Gardner, 329 U .S. at 573, and cannot reclaim immunity just because the case took a turn that was not to its liking. Oregon, 657 F.2d at 1014.

In further support of its contention that participation in the prior Chapter 11 reorganization should not carry over to the issues in a Chapter 7 liquidation brought after it entered White's bankruptcy, Colville Credit relies on the general rule that a tribe's waiver of sovereign immunity is only valid in the particular proceeding in which the waiver is knowingly and expressly given. See, e.g., McClendon, 885 F.2d at 630;  Pit River Home and Agric. Coop. Ass'n v. United States, 30 F.3d 1088, 1100 (9th Cir.1994) , and Quileute Indian Tribe v. Babbitt, 18 F.3d 1456, 1460 (9th Cir.1994). These cases are unhelpful, however, as they have to do with whether a waiver of sovereign immunity in one action with one set of parties or issues extends to a different action with different issues or parties. Here, the case is the same, the parties are the same, the debt is the same, and the issue is the same. The only difference is how, and how much of, Colville Credit's claim will be discharged.

In re White, supra, at 1272-73.

White, then, obliquely supports the proposition that a waiver of sovereign immunity in one action does not extend to a different action with different issues. In the case at hand, the issues in the two actions are quite different in that the first is concerned with whether Beecher was properly subject to nondisclosure provisions, and the second is concerned with whether the first action was brought apparently solely in order to chill public participation. Even compulsory counterclaims are generally subject to sovereign immunity; see, e.g., Mashantucket Pequot Gaming Enterprise v. CCI, Inc., 1994 WL 373122  (Leuba, J.) (1994) (12 Conn. L. Rptr. 69); and there would appear to be no viable theory excepting this action from dismissal.

*3 The motion to dismiss is granted.