Schaghticoke Tribal Nation v. State

215 Conn.App. 384

283 A.3d 508

SCHAGHTICOKE TRIBAL NATION

v.STATE of Connecticut et al.

AC 43811

Appellate Court of Connecticut.

Argued February 9, 2022

Officially Released September 27, 2022

John R. Weikart, with whom was James P. Sexton, for the appellant (plaintiff).

Daniel Salton, assistant attorney general, with whom, on the brief, were William Tong, attorney general, Clare Kindall, solicitor general, Matthew I. Levine, deputy associate attorney general, and David H. Wrinn and Michael W. Lynch, assistant attorneys general, for the appellees (defendants).

Alvord, Elgo and Palmer, Js.

ELGO, J.

This appeal arises out of a protracted dispute between the plaintiff, the Schaghticoke Tribal Nation, and the defendants, the state of Connecticut and Robert Klee, the Commissioner of Energy and Environmental Protection. The plaintiff claims that it is owed compensation pursuant to the state's sale of land and associated mortgages in which it claims to have a property interest, and thus filed a complaint alleging an unconstitutional taking of its property without compensation and a breach of fiduciary duty by the defendants. The trial court rendered judgment dismissing the complaint, from which the plaintiff has appealed. On appeal, the plaintiff challenges the judgment of the trial court dismissing its complaint in its entirety. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. The plaintiff consists of members of the Schaghticoke tribe (tribe), an indigenous tribe recognized by the state in General Statutes § 47-59a (b). The state's relationship with the tribe dates back several centuries. In 1736, in response to the tribe's settlement of an area along the Housatonic River, the General Assembly enacted a resolution (1736 resolve) permitting the tribe to "[continue] where they are [now settled during] the [pleasure] of this [governmental body] ...." The General Assembly further addressed the tribe's rights with respect to that area in 1752, when it enacted another resolution (1752 resolve) permitting the tribe's use of additional land for "improvement and for the cutting of wood and timber for their own use ... during the pleasure of this Assembly."

In 1801, the state appointed overseer of the tribe wrote to the General Assembly requesting permission to sell a portion of the tribe's land in order to settle a debt incurred by the tribe. The state granted that request and passed an instrument that established a committee of sale with respect to that land, authorized the committee to build several dwellings on the land, and empowered the overseer to manage the proceeds and any mortgage securities obtained.

More than two centuries later, on October 13, 2016, the plaintiff brought the present action by way of a six count complaint.

In the first and second counts, the plaintiff alleged that the state's conduct with respect to the 1801 land sale and creation of the associated mortgages amounted to an unconstitutional taking of property without just compensation in violation of the United States and Connecticut constitutions, respectively. In the third count, the plaintiff claimed that the allegedly unconstitutional taking of its property violated its due process rights under article first, § 8, of the Connecticut constitution. The fourth through sixth counts alleged that the defendants had violated a fiduciary duty to the plaintiff and requested a number of measures, including monetary relief as set forth in the fourth count, with the aim of "[making] tribal funds ... whole."

On February 14, 2017, the defendants filed a motion to dismiss. In their accompanying memorandum of law, they argued that (1) the plaintiff lacked standing as a result of an alleged ongoing leadership dispute within the tribe and (2) the plaintiff's claims were barred by the doctrine of sovereign immunity.¹ The plaintiff filed an opposition to the motion to dismiss accompanied by a memorandum of law, arguing that it appropriately represented the interest of the tribe for standing purposes and that the defense of sovereign immunity was inapplicable to its takings, due process, and breach of fiduciary duty claims.

Following transfer of the action to the Complex Litigation Docket on July 24, 2017, the court ordered the parties to prepare a joint case management report in advance of a status conference, which they submitted to the court on August 9, 2017. In their report, the parties expressed their desire to resolve the issue of the plaintiff's standing and the applicability of General Statutes § 47-66i before considering any alternative grounds for dismissal.

The court heard argument on the standing issue on September 17, 2017. On September 19, 2017, the court denied the defendants’ motion to dismiss on the ground that the plaintiff lacked standing to bring the action. The court reasoned that, regardless of whether the plaintiff consisted of the entirety of the tribe or a mere faction, the plaintiff sufficiently represented the interest of individual members of the tribe for the purposes of bringing the present action.²

The parties and the court next addressed the issue of whether the plaintiff's property interest in the land at issue was sufficient to survive dismissal. After several rounds of supplemental briefs and memoranda on this issue, the parties appeared for argument before the court on December 18, 2017.

On December 27, 2017, the court granted in part the defendants’ motion to dismiss.

Turning first to the text of the 1736 and 1752 resolves, the court determined that neither resolve contained language that would have been understood to signify a formal conveyance of a property interest at the time of their ratification. In response to the plaintiff's contention that even a mere ability to occupy the land created a property right that entitled the plaintiff to compensation following the state's sale of the land, the court undertook a similar analysis. The court observed that the resolves permitted the tribe's presence on the land "during the pleasure" of the General Assembly, meaning that "the General Assembly ... had the right to take away" the tribe's ability to use the land. The court further cited several cases holding that a revocable license to access land does not confer a property interest on its holder.³

On May 23, 2019, the plaintiff filed a motion for clarification with respect to the status of its due process and fiduciary claims against the defendants.⁴ Days later, the court, sua sponte, opened the judgment "to prevent any appeal period from running during the consideration of [the plaintiff's] motion and any outstanding matters undecided."

The parties and the court then agreed on a briefing schedule for the plaintiff's remaining claims. Following the submission of briefs by the parties and oral argument before the court, the court granted the defendants’ motion to dismiss as to the fiduciary claims and, accordingly, dismissed the remainder of the plaintiff's complaint. The court held that, regardless of whether sovereign immunity was fatal to the plaintiff's claims, the plaintiff had not adequately demonstrated the existence of a statutory or common-law fiduciary relationship between it and the defendants such that its claims could proceed. This appeal followed.

I

The plaintiff first claims that the court improperly dismissed its takings claim with respect to the sale of the land at issue. The plaintiff argues that the 1752 resolve created an ownership interest in the land at issue that entitles it to compensation as a result of the prior sale of the land. We disagree.

Our review of this claim is governed by the following legal principles. "The standard of review for a court's decision on a motion to dismiss is well settled. A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. ... [O]ur review of the court's ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo. ... When a ... 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. ... In this regard, 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. ...

The motion to dismiss ... admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone." (Internal quotation marks omitted.) Gold v. Rowland , 296 Conn. 186, 200–201, 994 A.2d 106 (2010).

"[T]he doctrine of sovereign immunity is not available to the state as a defense to claims for just compensation arising under article first, § 11, of the Connecticut constitution. ... When possession has been taken from the owner, he is constitutionally entitled to any damages which he may have suffered ...." (Internal quotation marks omitted.) 184 Windsor Avenue, LLC v. State , 274 Conn. 302, 319, 875 A.2d 498 (2005). "The complaint, to survive the defense of sovereign immunity, must allege sufficient facts to support a finding of a taking of [property] in a constitutional sense." (Internal quotation marks omitted.) Gold v. Rowland , supra, 296 Conn. at 201, 994 A.2d 106.

"It is axiomatic that government action cannot constitute a taking when the aggrieved party does not have a property right in the affected property. Whether one's interest or entitlement rises to the level of a protected property right depends on the extent to which one has been made secure by [s]tate or [f]ederal law in its enjoyment." (Internal quotation marks omitted.) 184 Windsor Avenue, LLC v. State , supra, 274 Conn. at 319, 875 A.2d 498.

A

The plaintiff first argues that the right of occupancy conveyed to it through the 1752 resolve is tantamount to a property right under state law.⁵ In support of this contention, the plaintiff...