Home

Back to the Indian Law Bulletins

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

Not Reported in A.2d, 2005 WL 1273562

UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING.

Superior Court of Connecticut,

District of New Britain, Complex Litigation Docket.

AMALGAMATED INDUSTRIES, INC.

v.

HISTORIC EASTERN PEQUOT TRIBE aka The Eastern Pequot Tribal Nation, et al.

No. X03CV034000287.

May 2, 2005.

Thomas Kokoska , Windsor, Halloran R. Bartley Law Offices , Garrett Flynn , Farmington, Motley Rice, LLC, Hartford, for Amalgamated Industries Inc.

Tobin, Carberry, Omalley, Riley & Seli, New London, for Historic Pequot Tribe aka Eastern Pequot Nation, Eastern Pequot Tribe of Connecticut, Mark R., Katherine H., William O. and Mary E. Sebastian, Marcia Jones-Flowers, Ronald M. Jackson, Lynn D. Powers, Joseph A. Perry, and Lewis E. Randall.

PHV Mescon Richard A. 5/11/04, New York, NY, for Historic Pequot Tribe aka Eastern Pequot Nation.

Jeremiah Donovan , Old Saybrook, for Paucatuck Eastern Pequot Tribe Nation, Eugene R. and Frances M. Young, James L. Williams , James A. and Agnes E. Cunha, Beverly Kilpatrick , Gina M. Hogan , and Christine C. Meisner.

Andrews, Young & Geraghty P.C. , New London, Edward Reilly, Jr. , Bockius, Leonard Lesser , New York, NY, for Eastern Capital Dev LLC fka Eastern Cap Funding LLC.

PECK, J.

*1 This action arises out of an alleged breach of contract by the defendants, the Paucatuck Eastern Pequots, a/k/a Paucatuck Eastern Pequot Tribal Nation (PEPs); James A. Cunha, Jr.; Frances M. Young; Agnes E. Cunha; Gina M. Hogan; Eugene R. Young, Jr.; Beverly Kilpatrick; James L. Williams, Sr.; and Christine C. Meisner (PEP councillors). FN1 The plaintiff, Amalgamated Industries, Inc., filed an eighteen-count complaint on July 10, 2003, alleging, inter alia, breach of contract (counts one through five), conversion (count six), breach of implied covenant of good faith and fair dealing (count seven), tortious interference with contract (count eight), tortious interference with business relations (count nine), commercial disparagement (count ten), civil conspiracy (count eleven), and violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. (count twelve). The plaintiff also sets forth five alternative claims against the defendants. As alternative grounds for recovery against the Historic Eastern Pequot Tribe, a/k/a Eastern Pequot Tribal Nation (Historics), “including and consisting of the [PEPs] and Easterns,” the plaintiff claims successor liability (count fourteen), breach of implied contract (count sixteen), quantum meruit/unjust enrichment (count seventeen), and promissory estoppel (count eighteen). As its remedies, the plaintiff seeks a mandatory injunction (count thirteen, reformation of contract (count fifteen), specific performance, a prohibitive injunction, money damages, punitive damages, attorneys fees and costs, reimbursement of sums paid for and on behalf of the defendants; and imposition of a constructive trust (count seventeen). FN2


FN1. Although the Historic Eastern Pequot Tribe, a/k/a Eastern Pequot Tribal Nation (Historics), the Eastern Pequot Indians of Connecticut, Inc., a/k/a Eastern Pequot Tribe (Easterns), Eastern Capital Development, LLC f/k/a Eastern Capital Funding, LLC (ECD), Mark R. Sebastian, Marcia Jones-Flowers a/k/a Marcia Flowers, Lynn D. Powers, Ronald M. Jackson, Joseph A. Perry, Jr., Katherine H. Sebastian, William O. Sebastian, Jr., Mary E. 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 PEPs and/or the PEP councillors.


FN2. Since the defendants moved to dismiss “the complaint against them,” without specifying which counts they view as being directed against them, the court assumes that the motion seeks dismissal of the counts directed at the PEPs and various PEP councillors, that, counts one through three (against Historics, “including and consisting of the [PEPS] and Easterns”), counts four and five (against PEP councillors), count seven (against Historics, “including and consisting of the [PEPS] and Easterns”), counts eight through eleven (against, inter alia, Eugene R. Young, Jr.) and counts twelve, fourteen and sixteen through eighteen (against Historics, “including and consisting of the [PEPS] and Easterns”). Counts thirteen and fifteen 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). Accordingly, this memorandum addresses the PEP councillors' motion to dismiss as to counts one through five, seven through twelve, fourteen, and sixteen through eighteen only. Counts thirteen and fifteen will not be addressed in connection with this motion to dismiss because they are more properly addressed by a motion to strike. Count six is directed solely at the defendant ECD and will not be addressed here.

The defendant PEPs and PEP councillors 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 “partnered” with the defendant PEPs, an Indian tribe recognized by the state of Connecticut, in the PEPs' project to become a federally recognized Indian tribe. (Complaint, ¶¶ 1, 2 and 16.) In exchange for the PEPs' promises to pay the plaintiff according to the terms of their written agreements, the plaintiff, inter alia, “spent over ten years assisting, guiding and strategizing day-to-day with the [PEPs'] Tribal Council regarding, among other things, the [PEPs'] efforts to become officially recognized by the United States government” (Complaint, ¶ 2), provided the PEPs with “valuable business and financial advice and council,” introduced the PEPs to, garnered support from, and assisted in negotiations with “world class developers and financial partners.” (Complaint, ¶¶ 2 and 3.) The plaintiff and others “funded more than fourteen million dollars to pay for the numerous academic, legal and other experts necessary to prepare a competent federal recognition petition, as well as all [PEP][t]ribal salaries, offices and operations.” (Complaint, ¶ 4.)

*2 In exchange for the plaintiff's assistance, the PEPs “agreed to compensate [the plaintiff] by paying it amounts equal to a small percentage of any future gaming proceeds, and of any financing originated for the [PEPs].” (Complaint, ¶ 8.) The PEPs “also granted a right of first refusal to meet or best any acceptable financing otherwise arranged for the [PEPs].” (Complaint, ¶ 8.)

“To reflect [the plaintiff's] acceptance and performance of increasing responsibilities with the [PEPs], and to reflect the [PEPs'] desire that [the plaintiff] continue its work, the [PEP][t]ribal [c]ouncil by unanimous [r]esolution dated January 12, 1999, authorized a Restated Agreement and a separate Restated Capital Fee Agreement [ (Amalgamated agreements) ] with [the plaintiff].” (Complaint, ¶ 56.) This resolution “authorized Grand Chief Sachem Williams to execute the Amalgamated [a]greements on the [PEPs'] behalf, which he did ...” (Complaint, ¶ 57.) Each PEP councilor signed this resolution and “individually signed their agreement to the Amalgamated [a]greements before a notary, acknowledging that [the plaintiff] had performed all its obligations to earn, and had earned, all the compensation detailed in the Amalgamated [a]greements.” (Complaint, ¶ 58.) “The Restated Agreement also provides that the [PEPs] will pay additional compensation for [the plaintiff's] efforts for the period from the date the [PEPs'] petition was placed on active status until the [PEPs become] federally recognized.” (Complaint, ¶ 60.)

The plaintiff also includes in its complaint a lengthy recitation of facts that was allegedly part of the Restated Agreement, which include the following statements: “WHEREAS, because the [t]ribe lacked funds, [the plaintiff] financed many [t]ribal governmental and other activities, as well as substantial portions of the [t]ribal government's federal recognition project; and ... WHEREAS, [the plaintiff] ... at its own expense flew in gaming [i]ndustry experts as well as persons and entities with established backgrounds in either the gaming industry or structuring large and/or sophisticated investment packages ... and ... WHEREAS, due to the [t]ribe's historic lack of an economic base, it could offer [the plaintiff] no consideration other than the possibility of payment if the [t]ribal government, through [the plaintiff's] intervention, succeeded in its lengthy, expensive, time-consuming and highly speculative project to pursue federal recognition and economic development ...” (Complaint, ¶ 62.)

The plaintiff further alleges the following with regard to compensation: The PEPs agreed to pay the plaintiff five percent of the net revenues of the PEPs' gaming activities, as well as an additional five percent of any and all other PEP tribal economic activities in which the plaintiff participates, “paid quarterly over a period of fifteen (15) years, commencing thirty (30) days subsequent to the first quarter of operation of a casino gaming facility.”  (Complaint, ¶ 63.) The PEPs also agreed to pay the plaintiff, “as presently earned and payable, ‘additional compensation’ for continuing to advise and assist until the date the [PEPs'] petition was placed on active status,” 0.625 percent “of gross revenues of any and all gaming and related gaming facility activities ... paid quarterly as an operating expense, for a period of [eighty-four] months, commencing thirty (30) days subsequent to the first quarter of operation of a casino gaming facility.” (Complaint, ¶ 64; see also Complaint, ¶ 65.) The plaintiff further alleges that the Restated Agreement provides that “if the [PEPs] ... for any reason other than [the plaintiff's] gross misconduct, [prevent the plaintiff] from completing its performance to earn additional compensation for the period from the date the [PEPs'] [p]etition was placed on active status until the [PEPs are] federally recognized, this entire additional compensation amount also is immediately earned and payable as a debt of the [PEPs] in its entirety.” (Complaint, ¶ 66.) Further, the plaintiff alleges that the PEPs agreed in the Restated Capital Fee Agreement to pay the plaintiff two percent “of all sums procured, originated or financed by or through any source for the [PEPs], for a period from the date the [PEPs] first associated with [the plaintiff] and ending [ninety-six] months subsequent to the date the [PEPs receive] final federal recognition.” (Complaint, ¶ 67.)

*3 In the Amalgamated agreements, the PEPs “purposefully, intentionally, expressly and unequivocally waived, as to the subject matter of its agreements with [the plaintiff], any and all sovereign immunity it had or may have at any time in the future.” (Complaint, ¶ 69.) Further, the PEPs expressly and unequivocally consented to submit to the jurisdiction of the United States District Court for the District of Connecticut and the courts of the state of Connecticut. (Complaint, ¶ 70; see Complaint, exhibit B, ¶¶ 7.a. and 7.b.; Complaint, exhibit C, ¶¶ 3.a. and 3.b.)

The Easterns, “at various relevant tines claimed to be part of the [PEPs] that shared the state reservation located in New London County, Connecticut, and at other times held themselves out as a separate Indian tribe. The Easterns sought federal recognition separately from the [PEPs].” (Complaint, ¶ 18.) The Historics consist of the PEPs and. the Easterns. (Complaint, ¶ 20.)

On July 1, 2002, the Assistant Secretary of the Interior for Indian Affairs “determined that the [PEPs] and the Easterns equally and together comprise the Historic Tribe that qualifies for federal recognition.” (Complaint, ¶ 22; see Complaint, ¶ 87.) 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. The BIA's determination is “currently pending appeal.” (Complaint, ¶ 87; see Complaint, Count Seventeen, ¶ 189.)

Shortly after the BIA issued its determination, the defendant Historics “approved an interim Historic [t]ribal constitution in January 2003 authorizing a[j]oint [i]nterim [t]ribal [c]ouncil composed of [five PEPs] and [nine Easterns], with a quorum of ten, thereby allowing either side to prevent a quorum if necessary to protect their rights and interests.” (Complaint, ¶ 92.) The defendant PEPs “chose its five [j]oint [t]ribal [c]ouncil members from among the nine members of the [PEP][t]ribal [c]ouncil, which continues to control internal [PEP] matters.” (Complaint, ¶ 93.) The defendants “[Eastern Capital Development, LLC (ECD) ], Mark R. Sebastian and others advised the [j]oint [i]nterim [t]ribal [c]ouncil that it could pick and choose among backers, notwithstanding written agreements with them, and void the agreements with [the plaintiff] and Trump [i.e., Donald Trump, Trump Hotels and Casino Resorts Development Company, LLC, and Seven Arrows Investment and Development Corp.] without cause or justification.” (Complaint, ¶ 95.) The defendant “ECD also demanded that the [j]oint [i]nterim [t]ribal [c]ouncil not meet with [the plaintiff].” (Complaint, ¶ 96.) Defendants “ECD, Mark Sebastian and others advised the [Historics'] [j]oint [i]nterim [t]ribal [c]ouncil to breach its agreements with [the plaintiff] and Trump.” (Complaint, ¶ 98.)

*4 In March 2003, defendant Eugene R. Young, Jr., a PEP councilor and councilor on the joint interim tribal council, called the plaintiff and stated “that he wanted a ‘bonus,’ and demanded that either Trump or [the plaintiff] immediately pay him ten thousand dollars ...” (Complaint, ¶¶ 101-02.) Young also “demanded from both [the plaintiff] and the [PEPs'] attorney that he receive a substantial increase in his annual salary as a[t]ribal [c]ouncil member.” (Complaint, ¶ 104.) “Young further stated that ‘[t]hings have changed on the council, and I have the power now,’ and threatened that [the plaintiff] and Trump would be ‘out’ and ECD would be ‘in’ if [the plaintiff] and Trump failed to meet his demands for money.” (Complaint, ¶ 106.) The plaintiff was later told that “Young went to Mark Sebastian and other Eastern members of the [j]oint [i]nterim [t]ribal [c]ouncil to request protection from any administrative action by the [PEP][t]ribal [c]ouncil, and was promised their protection.” (Complaint, ¶ 115.)

“In March 2003, with Eugene Young providing a quorum, the Eastern members of the [j]oint [i]nterim [t]ribal [c]ouncil voted to breach the Amalgamated and Trump [a]greements in favor of ECD.” (Complaint, ¶ 118.) In May 2003, defendant “Marcia Flowers, an Eastern member and the [j]oint [i]nterim [t]ribal [c]ouncil chair, delivered separate letters to [the plaintiff] and Trump on behalf of the [j]oint [i]nterim [t]ribal [c]ouncil, terminating the [Historics'] relationship with each ...” (Complaint, ¶ 119.) At that time, the plaintiff had “completed all its obligations under the Amalgamated [a]greements.” (Complaint, ¶ 120.)

The plaintiff commenced this suit by service of process on the various defendants on July 9, 2003. (Marshal's returns.) On July 15, 2004, the defendants PEPs and PEP councillors filed a motion to dismiss “the complaint against them,” accompanied by a memorandum in support as required by Practice Book § 10-31. In response to the defendants' motion to dismiss, the plaintiff filed a memorandum in opposition on August 19, 2004. FN3


FN3. With regard to this motion to dismiss, the parties filed numerous documents in addition to those mentioned above, including the plaintiff's “STATEMENT OF UNDISPUTED FACTS ” and “OBJECTIONS TO EXHIBITS AND PORTIONS OF INDIAN DEFENDANTS' MOTIONS TO DISMISS AND SUPPORTING MEMORANDUMS ” filed on August 19, 2004, the AFFIDAVIT OF MARCIA J. FLOWERS In Re MOTION TO DISMISS-MAY 19, 2004 ” filed on September 8, 2004 the plaintiff's “HEARING MEMORANDUM AS TO INDIAN DEFENDANTS' CITED CASES ” filed on September 10, 2004, the plaintiff's “POST-HEARING MEMORANDUM TO CLARIFY MISSTATEMENTS IN HEARING ON MOTIONS TO DISMISS ” filed October 6, 2004, the plaintiff's “POST-HEARING MEMORANDUM REGARDING ‘FACTION’ ARGUMENTS IN THE INDIAN DEFENDANTS' MOTIONS TO DISMISS ” filed October 18, 2004, and the defendant Historics' “REPLY TO AMALGAMATED INDUSTRIES' POST-HEARING MEMORANDA ” filed December 13, 2004. These have all been considered by the court in rendering its decision with regard to this motion to dismiss.

Counts one through five, seven through twelve, fourteen and sixteen through eighteen are directed against the defendant PEPs and PEP councillors. For the reasons stated in the court's memorandum of decision on the motion to dismiss of the defendants Historics, Easterns, and Eastern councillors, the court rejects the defendants' claims in their motion to dismiss 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. FN4 In addition, for the reasons stated in the remainder of this memorandum, the defendants PEPs and PEP councillors' motion to dismiss the complaint on the ground of sovereign immunity is also denied.


FN4. In so ruling, the court notes that the claims in counts four and five, which were not addressed in the memorandum of decision on the motion to dismiss of the defendants Historics, Easterns, and Eastern councillors, are also ripe for adjudication for the reasons stated in that decision concerning the other counts; that is, they are not entirely contingent on federal recognition and the operation of a casino gaming facility and they contain allegations of “severe and continuing economic harm.” (Complaint, ¶ ¶ 136 and 138.)


I


STANDARD OF REVIEW

As noted in the memorandum of decision concerning the motion to dismiss of the defendants Historics, Easterns and Eastern councillors, “[t]he 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).

*5 “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


TRIBAL SOVEREIGN IMMUNITY

The defendants argue that the plaintiff's claims against them are barred by the doctrine of sovereign immunity. They contend that the PEP councillors retain their sovereign immunity for acts within the scope of their authority as tribal councillors because the PEPs did not explicitly waive the immunity of the PEP councillors, although they allegedly waived the sovereign immunity of the tribe. They maintain that all of the allegations against the PEP councillors concern acts within the scope of their authority as tribal councillors. They contend that claims against tribal officials, whether arising in the context of contract or tort, for acts within the scope of their authority are barred by sovereign immunity. Moreover, they argue that the PEPs' waiver of sovereign immunity was invalid and does not bind the tribe. They contend that although Trump and the plaintiff encouraged them to think of themselves as a tribe, they were a minority faction lacking the authority to execute such a waiver.

The plaintiff makes several arguments against the defendants' assertion of tribal sovereign immunity. First, it argues that this matter does not infringe tribal sovereignty or implicate sovereign immunity. It contends that “because the [t]ribe exercised its sovereignty [in submitting to the jurisdiction of the state courts in its contracts with the plaintiff], the court is actually obligated to uphold the tribe's sovereignty by exercising its jurisdiction to enforce the [t]ribe's sovereign choices.” (Plaintiff's memorandum filed 8/19/04, p. 22.) It also argues that the tribe waived any and all sovereign immunity.

The plaintiff next argues that the doctrine of collateral estoppel, or issue preclusion, prohibits the defendants from arguing that the PEPs were not the state-recognized tribe at the time the plaintiff entered into contracts with them. It contends that the court previously decided this issue in Sebastian v. Indian Affairs Council,  Superior Court, judicial district of New London, Docket No. 028949 (November 30, 1979, Hendel, J.), which, it argues, upheld a 1977 ruling of the Connecticut Indian Affairs Council (CIAC) determining that descendants of Tamar Brushel Sebastian, the Easterns, were not members of the state-recognized tribe.

*6 In Sebastian v. Indian Affairs Council, supra, Docket No. 028949, the court dismissed an appeal of a CIAC decision, which found that Tamar Brushell Sebastian was at least “one-half blood Eastern Pequot Indian and that all direct linear decedents of Tamar Brushell Sebastian found to have at least one-eighth percentage of her blood are recognized as members of the Eastern Pequot tribe of Indians.” Contrary to the plaintiff's assertion, the CIAC had not determined that descendants of Tamar Brushell Sebastian were not members of the tribe, but merely had placed a limitation on the number of descendants who would have qualified for membership. Moreover, the General Statutes were amended in 1989 to eliminate the role of the CIAC in determining tribal membership. See Public Acts 1989, No. 89-368. Tribal membership is now determined by the tribes. See General Statutes § 47-66j(b). FN5 Collateral estoppel, therefore, does not preclude the defendants from litigating the issue of whether the PEPs were the state recognized tribe at the time the parties entered into the contracts because the CIAC decision at issue in Sebastian v. Indian Affairs Council, supra, Docket No. 028949, was superceded by statute.


FN5. General Statutes § 47-66j(b) provides, “[a] membership dispute shall be resolved in accordance with tribal usage and practice. Upon request of a party to a dispute, the dispute may be settled by a council. Each party to the dispute shall appoint a member of the council and the parties shall jointly appoint one or two additional members provided the number of members of the council shall be an odd number. If the parties cannot agree on any joint appointment, the Governor shall appoint such member who shall be a person knowledgeable in Indian affairs. The decision of the council shall be final on substantive issues but an appeal may be taken to the Superior Court to determine if membership rules filed in the office of the Secretary of the State pursuant to this section have been followed. If the court finds that the dispute was not resolved in accordance with the provisions of the written description, it shall remand the matter with instructions to reinstitute proceedings, in accordance with such provisions.”

The plaintiff further contends that the PEPs, with which it entered into contracts, was the only group calling itself the “Paucatuck Eastern Pequots,” the name of the state-recognized Indian tribe in the General Statutes, and that the public should not have to “parse beyond state statutes.” It argues that at the time it entered into contracts with the PEPs, the PEPs alone, therefore, had the authority to enter into contracts and to waive the tribe's sovereign immunity, “thereby subjecting itself and its agreements to state court jurisdiction and state law.” The plaintiff also argues that even if the PEPs' were a tribal faction, tribal factions and unincorporated associations may enter into contracts and waive whatever sovereign immunity they might be ale to assert. Moreover, it argues, if the PEPs were not a tribe and had no sovereign rights when they entered into the Restated Agreement and Restated Capital Fee Agreement, then they admit that they are subject to the court's jurisdiction.

“[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.

In its contracts with the plaintiff, the defendant PEPs have clearly and unequivocally waived their sovereign immunity. In the Restated Agreement and the Restated Capital Fee Agreement, the PEPs agreed to two relevant provisions in each, entitled “Waiver of Sovereign Immunity ”  FN6 and “Submission to State and Federal Court Jurisdiction,”  FN7 respectively. (Complaint, exhibit B, ¶¶ 7.a. and 7 b.; Complaint, exhibit C, ¶¶ 3.a. and 3.b.) Moreover, the plaintiff alleges that the PEPs “purposefully, intentionally, expressly and unequivocally waived, as to the subject matter of its agreements with Amalgamated, any and all sovereign immunity it had or may have at any time in the future.” (Complaint, ¶ 69.) The plaintiff further alleges that the PEPs “purposefully, intentionally, expressly and unequivocally consented to submit to the jurisdiction of the ... courts of the [s]tate of Connecticut.”  (Complaint, ¶ 70.) The defendants have submitted no evidence to contradict these allegations. To the extent the PEPs are entitled to assert sovereign immunity, the court, therefore, finds that it has been waived. Nevertheless, if the PEPs were a mere faction of the tribe, and lacked the requisite authority to waive the tribe's sovereign immunity, then they are not entitled to assert sovereign immunity; the tribe itself must assert sovereign immunity. See Kizis v Morse Diesel International, Inc., supra, 260 Conn. at 51 n. 7;  State v. Sebastian, 243 Conn. 115, 161, 701 A.2d 13 (1997). Accordingly, regardless of whether the PEPs were the tribe at the time it entered into the contracts with the plaintiff, they are not entitled to the protections of sovereign immunity and the motion to dismiss is hereby denied as to the counts directed at them.


FN6. Paragraph 7.a. of the Restated Agreement and ¶ 3.a. of the Restated Capital Fee Agreement provide, “[t]he Tribe hereby WAIVES, completely and to the fullest extent under the law, any and all sovereign immunity which it currently or at any future time might otherwise be entitled to assert as to any and all matters relating to this Agreement, including, but not limited to, the interpretation and/or enforcement of this Agreement.”


FN7. Paragraph 7.b. of the Restated Agreement and¶ 3.b. of the Restated Capital Fee Agreement provide in relevant part, “[f]or the purposes set forth in this paragraph, including, but not limited to, in any action to interpret or enforce its obligations under this Agreement, including any payment obligation to Amalgamated ... the Tribe hereby agrees and expressly consents to be a party defendant, and submits to the jurisdiction of ... any and all courts of the [s]tate of Connecticut, and agrees to take any and all steps necessary to confer jurisdiction upon any such court, including, but not limited to, after it is federally recognized. The Tribe specifically requests that those courts accept such jurisdiction ... The Tribe further agrees and represents that such exercise of jurisdiction does not and will not infringe or interfere with the Tribe's sovereignty, its right to govern its internal affairs or property, or its ability to regulate organized commercial activities on Tribal lands, or the authority of future Tribal courts to adjudicate disputes arising from activities on Tribal lands. There is no current or anticipated action in any Tribal court or tribunal regarding the subject matter herein.”

*7 The plaintiff also argues that the individual tribal councillors cannot assert sovereign immunity because the immunity of individual tribal members cannot extend beyond that of the tribe, and the tribe has waived any and all sovereign immunity. Further, it argues that tribal representatives are never immune for actions that are outside the scope of their authority. It contends that the complaint contains allegations of “significant illegal conduct outside the authority of individual defendants, such that they cannot possess representative immunity therefore under any circumstance.” Regardless of whether the plaintiff alleged sufficient facts demonstrating that the PEP councillors acted beyond the scope of their authority, it is not necessary for the court to address this issue because they are not entitled to the protections of sovereign immunity for any acts.

“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, [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 court finds no case in which members of a tribe have successfully asserted sovereign immunity after the tribe had executed an unlimited waiver of that immunity. FN8


FN8. The court notes that in the case of Trump Hotels and Casino Resorts Development Co., LLC v. Rosow, Superior Court, Judicial District of New Britain, Complex Litigation Docket Docket No. X03 CV 03 4000160 (April 29, 2005, Peck, J.), this court granted the motion to dismiss filed on behalf of the PEPs' councillors on the ground that the tribe's waiver of sovereign immunity in its contract with the plaintiff therein explicitly excluded the PEP councillors, thereby preserving the PEP councillors' sovereign immunity with respect to acts within the scope of their authority as tribal councillors. The court reaches a different conclusion in the instant case because in the Amalgamated agreements, the PEPs' waiver of sovereign immunity is unequivocal and comprehensive, and, as distinguished from the Trump contract, did not exclude the PEP tribal councillors from its waiver.

Accordingly, the individual PEP councillors are not entitled to sovereign immunity. As tribal councillors of a tribe that has unequivocally waived “any and all sovereign immunity which it currently or at any future time might otherwise be entitled to assert”; (Complaint, exhibit B, ¶¶ 7.a.; Complaint, exhibit C, ¶¶ 3.a.); the PEP councillors have no immunity to assert. In Chayoon v. Sherlock, Superior Court, judicial district of New London, Docket No. CV 03 0128101 (April 23, 2004, Martin, J.), a case relied upon by the defendants, “the plaintiff [did] not allege that the tribe has waived immunity from suit or that Congress has abrogated it. Instead, he assert[ed] that the defendants are non-Indians and claim[ed] that the defendants acted beyond the scope of their authority by violating company policy.” Similarly, in Bassett v. Mashantucket Pequot Museum & Research Center, Inc., 221 F.Sup.2d 271, 280 (D.Conn.2002), the court does not state that the tribe had waived its immunity. These cases are distinguishable because in this case, the plaintiff has alleged and shown that the PEPs clearly and unequivocally waived their sovereign immunity. Moreover, if the PEPs were not a tribe at the time the waivers were executed, then the PEP councillors would have no immunity to assert as councillors of a group that is not a tribe. Accordingly, the defendants' motion to dismiss is denied on the ground of tribal sovereign immunity.


III


CONCLUSION

*8 For the foregoing reasons, the motion to dismiss of the defendants, the PEPs and the individual PEP councillors, is hereby denied.


Home  |   Search  |   Disclaimer  |   Privacy Statement  |   Site Map