Beecher v. Mohegan Tribe of Indians, 17546.

• Decision Date: 24 April 2007
• Docket Number: No. 17546.,17546.
• Citation: 918 A.2d 880,282 Conn. 130
• Court: Connecticut Supreme Court
• Parties: Bradley W. BEECHER et al. v. The MOHEGAN TRIBE OF INDIANS OF CONNECTICUT.

918 A.2d 880

282 Conn. 130

Bradley W. BEECHER et al. v. The MOHEGAN TRIBE OF INDIANS OF CONNECTICUT.

No. 17546.

Supreme Court of Connecticut.

Argued November 29, 2006.

Decided April 24, 2007.

John R. Williams, New Haven, for the appellants (plaintiffs).

Andrew L. Houlding, with whom was Glenn E. Coe, Hartford, for the appellee (defendant).

Richard Blumenthal, attorney general, and Susan Quinn Cobb and Robert J. Deichert, assistant attorneys general, filed a brief for the office of the attorney general as amicus curiae.

Meredith G. Diette and Mark C. Tilden filed a brief for the Mashantucket (Western) Pequot Tribe as amicus curiae.

BORDEN, NORCOTT, KATZ, VERTEFEUILLE and ZARELLA, Js.

BORDEN, J.

The sole issue in this appeal is whether a federally recognized Indian tribe has waived tribal sovereign immunity against a vexatious litigation claim in state court by having commenced, in state court, the prior action that is the subject of that vexatious litigation claim. The plaintiffs, Bradley W. Beecher, a former employee of the Mohegan Tribal Gaming Commission (gaming commission), and his wife, Katherine Beecher, appeal¹ from the judgment of the trial court granting the motion to dismiss filed by the defendant, the Mohegan Tribe of Indians of Connecticut.² On appeal, the plaintiffs claim that the court improperly concluded that tribal sovereign immunity bars the plaintiffs' state law claim. We disagree and, accordingly, we affirm the judgment of the trial court.

Because in this appeal we review the trial court's ruling on a motion to dismiss, we take the facts to be those alleged in the complaint, construing them in a manner most favorable to the pleader. Sullins v. Rodriguez, 281 Conn. 128, 132 913 A.2d 415 (2007). The facts and procedural history are as follows. In October, 2004, the defendant, a federally recognized Indian tribe; see 25 U.S.C. § 1775;³ brought an action against the plaintiffs in the Superior Court. The defendant claimed that, in an attempt to extort money from the defendant, the plaintiffs had threatened to disclose confidential information obtained during the course of the named plaintiff's employment with the gaming commission. That action concluded with the entry of a stipulated, permanent injunction on December 12, 2004, enjoining the plaintiffs from communicating any confidential information pertaining to the defendant. In May, 2005, the plaintiffs initiated this action, alleging that the defendant's October, 2004 claim was a type of vexatious litigation that has been referred to as a "`strategic lawsuit against public participation' or SLAPP suit." Field v. Kearns, 43 Conn.App. 265, 275-76, 682 A.2d 148, cert. denied, 239 Conn. 942, 684 A.2d 711 (1996), citing G. Pring & P. Canan, "Strategic Lawsuits Against Public Participation (`SLAPPs'): An Introduction for Bench, Bar and Bystanders," 12 U. Bridgeport L.Rev. 937 (1992).⁴ Specifically, the plaintiffs complained that the defendant, in need of regulatory approval in order to purchase various gambling enterprises in Pennsylvania, had brought its 2004 claim to restrain the plaintiffs from making adverse comments to relevant state authorities.

The defendant moved to dismiss the complaint because, absent consent or congressional abrogation, it enjoys sovereign immunity from suit in state court as a federally recognized Indian tribe. In opposition to the defendant's motion to dismiss, the plaintiffs argued that the defendant had waived that immunity by having commenced the prior action against the plaintiffs in state court. The trial court granted the defendant's motion to dismiss, concluding that "[i]n 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." This appeal followed.

The plaintiffs claim that the trial court improperly concluded that the defendant did not waive its tribal sovereign immunity in the present action by having brought the prior action, which is the subject of the present case, in state court. Specifically, the plaintiffs contend that the defendant waived its sovereign immunity "with respect to the inevitable consequences of making that claim." The defendant counters that, in bringing the prior action in state court, it consented only to the adjudication of the merits of that action, and not to the adjudication of any subsequent state court claims. We agree with the defendant.

"As a preliminary matter, we set forth the standard of review. A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [O]ur review of the trial court's ultimate legal conclusion and resulting [decision to] grant . . . the motion to dismiss will be de novo." (Internal quotation marks omitted.) State v. Haight, 279 Conn. 546, 550, 903 A.2d 217 (2006). "[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." (Internal quotation marks omitted.) Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 51, 794 A.2d 498 (2002).

Tribal sovereign immunity is governed by federal law. Kiowa Tribe of Oklahoma v. Mfg. Technologies, Inc., 523 U.S. 751, 754, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998). "`Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers.' Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978); Oklahoma Tax Commission v. Citizen Band, Potawatomi Indian Tribe [of Oklahoma], 498 U.S. 505, 509, 111 S.Ct. 905, 112 L.Ed.2d 1112 (1991); United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 512, 60 S.Ct. 653, 84 L.Ed. 894 (1940). We begin with the premise that `Indian tribes are "domestic dependent nations" which exercise inherent sovereign authority over their members and territories.' Oklahoma Tax Commission v. Citizen Band, Potawatomi Indian Tribe [of Oklahoma], supra, at 509, 111 S.Ct. 905, citing Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17, 8 L.Ed. 25 (1831)." Kizis v. Morse Diesel International, Inc., supra, 260 Conn. at 52-53, 794 A.2d 498. Tribal sovereign immunity is dependent upon neither the location nor the nature of the tribal activities. Kiowa Tribe of Oklahoma v. Mfg. Technologies, Inc., supra 523 U.S. at 760, 118 S.Ct. 1700 (applying tribal sovereign immunity to claim of breach of commercial contract executed off reservation).

An Indian tribe is subject to suit only when Congress has authorized the suit or the tribe has waived its immunity. Id., at 754, 118 S.Ct. 1700. "However, such waiver may not be implied, but must be expressed unequivocally." (Internal quotation marks omitted.) Kizis v. Morse Diesel International, Inc., supra, 260 Conn. at 54, 794 A.2d 498. "[T]he [United States] Supreme Court has refused to find a waiver of tribal immunity based on policy concerns, perceived inequities arising from the assertion of immunity, or the unique context of a case." Ute Distribution Corp. v. Ute Indian Tribe, 149 F.3d 1260,1267 (10th Cir.1998), citing Kiowa Tribe of Oklahoma v. Mfg. Technologies, Inc., supra, 523 U.S. at 758, 118 S.Ct. 1700. The Supreme Court has stated that there are reasons to doubt the wisdom of tribal sovereign immunity, for example, the fact that it "can harm those who are unaware that they are dealing with a tribe, who do not know of tribal immunity, or who have no choice in the matter, as in the case of tort victims." Kiowa Tribe of Oklahoma v. Mfg. Technologies, Inc., supra, at 758, 118 S.Ct. 1700. To the extent, however, that "[t]hese considerations might suggest a need to abrogate tribal immunity," courts must defer "to the role Congress may wish to exercise in this important judgment." Id.

Although the initiation of a lawsuit by a tribe may constitute consent, the corresponding waiver of tribal sovereign immunity has been held not to extend beyond the court's adjudication of the merits of that particular controversy. See Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Engineering, P.C., 476 U.S. 877, 891, 106 S.Ct. 2305, 90 L.Ed.2d 881 (1986) (tribes' access to sue in state court may not be conditioned on global waiver); Schaghticoke Indians of Kent, Connecticut, Inc. v. Potter, 217 Conn. 612, 622 n. 9, 587 A.2d 139 (1991) (tribal action in state court insufficient to constitute consent); McClendon v. United States, 885 F.2d 627, 630 (9th Cir.1989) (plaintiff tribes consent only to risk of adverse determination). Moreover, tribal sovereign immunity bars even compulsory counterclaims filed against a tribe in an action commenced by the tribe. See Oklahoma Tax Commission v. Citizen Band, Potawatomi Indian Tribe of Oklahoma, supra, 498 U.S. at 509, 111 S.Ct. 905 ("[p]ossessing . . . immunity from direct suit, we are of the opinion [the Indian nations] possess a similar immunity from cross-suits" [internal quotation marks omitted]).

In Citizen Band, Potawatomi Indian Tribe of Oklahoma, the tribe brought an action for injunctive relief to foreclose the state's ability to tax cigarette sales on the reservation, and the state filed a counterclaim for back taxes. Id., at 507-508, 111 S.Ct. 905. The court concluded that the tribe had not waived its sovereign immunity "merely by filing an action for injunctive relief." Id., at 509-10, 111 S.Ct. 905. In so doing, the United States Supreme Court explicitly rejected the argument that trial courts do not need any independent jurisdictional basis to hear compulsory counterclaims. Id., at 509, 111 S.Ct. 905. The court noted that it had rejected the same argument more than one-half century earlier, in United States v. United...