Golden Hill Paugussett Tribe v. Weicker, 2:92CV00738 (PCD).

• Decision Date: 21 July 1993
• Docket Number: No. 2:92CV00738 (PCD).,2:92CV00738 (PCD).
• Citation: 839 F. Supp. 130
• Court: U.S. District Court — District of Connecticut
• Parties: GOLDEN HILL PAUGUSSETT TRIBE OF INDIANS, et al. v. Lowell P. WEICKER, Jr., et al.

839 F. Supp. 130

GOLDEN HILL PAUGUSSETT TRIBE OF INDIANS, et al. v. Lowell P. WEICKER, Jr., et al.

No. 2:92CV00738 (PCD).

United States District Court, D. Connecticut.

July 21, 1993.

Michael D. O'Connell, O'Connell, Flaherty & Attmore, Hartford, CT, David Michael Tilles, Rome, Case, Kennelly & Klebanoff, Bloomfield, CT, Martin D. Wheeler, Connecticut Legal Services, Middletown, CT, William A. Wechsler, Bailey & Wechsler, Hartford, CT, Bernard Wishnia, Roseland, NJ, for Golden Hill Paugussett Tribe of Indians.

David Michael Tilles, Rome, Case, Kennelly & Klebanoff, Bloomfield, CT, Martin D. Wheeler, Connecticut Legal Services, Middletown, CT, William A. Wechsler, Bailey & Wechsler, Hartford, CT, Bernard Wishnia, Roseland, NJ, for Aurelilus H. Piper, Jr., Moonface Bear.

William A. Wechsler, Bailey & Wechsler, Hartford, CT, Bernard Wishnia, Roseland, NJ, for Ethel Sherman Piper Baldwin Peters.

Charles H. Benson, Daniel R. Schaefer, Atty. General's Office, Sp. Litigation, Richard Blumenthal, Atty. General's Office, Admin. Dept., Hartford, CT, for Lowell P. Weicker, Jr.

Mark T. Anastasi, Office of the City Atty., Bridgeport, CT, for Joseph Ganim.

Henry C. Winiarski, Jr., Hartford, CT, Allan van Gestel, Goodwin, Procter & Hoar, Boston, MA, for Hoffman Fuel Co.

Richard L. Albrecht, Alexander H. Schwartz, Cohen & Wolf, P.C., Bridgeport, CT, for Merrill Lynch Interfunding, Inc., Alfred Marini, Sr., Alfred Marini, Jr., Luigi Constantini, Fernando Constantini, Kanuel F. Ferreia.

Mark Richard Kravitz, Noel E. Hanf, Wiggin & Dana, New Haven, CT, for United Illuminating Co.

Richard S. Lipman, Thomas A. Gugliotti, Schatz & Schatz, Ribicoff & Kotkin, Hartford, CT, for Lafayette Bank & Trust Co., Anthony Julian R.R. Const. Co.

Richard L. Albrecht, Alexander H. Schwartz, Austin K. Wolf, Cohen & Wolf, P.C., Bridgeport, CT, for Costal Pallet Corp.

Geoffrey A. Hecht, Virshup, Caplan & Hecht, New Haven, CT, Richard L. Albrecht, Alexander H. Schwartz, Austin K. Wolf, Cohen

& Wolf, P.C., Bridgeport, CT, for Peter G. Standish, Christine M. Smilee.

Geoffrey A. Hecht, Virshup, Caplan & Hecht, New Haven, CT, John Pirina, Jr., Union Trust Co., Legal Dept., Shelton, CT, for Union Trust Co.

Janet L. Janczewski, The Southern Connecticut Gas Co., Bridgeport, CT, for Southern Connecticut Gas Co.

Richard J. Buturla, Robert L. Berchem, John J. Kelly, Jr., Berchem, Moses & Devlin, P.C., Milford, CT, for Daddario Industries.

Richard S. Lipman, Schatz & Schatz, Ribicoff & Kotkin, Hartford, CT, for Dominick Julian.

Carl J. Schuman, U.S. Attorney's Office, Hartford, CT, Andrew M. Eschen, U.S. Dept. of Justice, Washington, DC, for U.S.

Heidi Cornish, Hunt, Leibert, Chester & Pontacoloni, P.C., Hartford, CT, for Rita Lipton.

RULING ON PENDING MOTIONS

DORSEY, District Judge.

Plaintiffs Golden Hill Paugussett Tribe of Indians and individuals claiming tribe membership have sued pursuant to the Indian Nonintercourse Act, 25 U.S.C. § 177, and the Proclamation of 1763 by King George III of Great Britain, against holders of record title to certain land in Bridgeport, Connecticut. Defendants move to dismiss for lack of jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1).

I. Background

Plaintiffs' allegations are that since time immemorial and until the acts complained of here, the Golden Hill Paugussett Tribe of Indians ("the Tribe") exclusively owned, used, and occupied much of the southwestern part of the state of Connecticut prior to the arrival of European colonists during the seventeenth century. English colonists began to settle in the area in 1638. In 1659, a dispute between the colonists and the Tribe was settled by creating the first Indian reservation in Connecticut, an eighty-acre territory which became known as the Golden Hill reservation, located within modern-day Bridgeport.

Allegedly by 1760, settler encroachment had reduced the size of the reservation, prompting a petition by the Tribe to the Assembly of the Colony of Connecticut. In 1765, that dispute was resolved by allowing the settlers to keep sixty-eight acres of the reservation, but giving to the Tribe the remaining twelve acres, known as the "Nimrod lot," and eight additional acres known as the "Rocky Hill lot."

An act of the Connecticut General Assembly in 1802 purported to sell the Nimrod lot and the Rocky Hill lot on behalf of the Tribe, without the consent or approval of the United States. At later points during the nineteenth century, several overseers of the Tribe conveyed tribal property in Bridgeport, without the consent or approval of the United States.

II. Discussion

A. Nonintercourse Act

The Constitution of the United States, ratified in 1789, gave Congress the power "to regulate commerce with foreign Nations, and among the several states, and with the Indian Tribes." U.S. Const., Art, I, § 8, cl. 3. On July 22, 1790, Congress adopted the first Indian Nonintercourse Act, 1 Stat. 137, 138, which was modified slightly and reenacted in 1793, 1796, 1799, 1802 and 1834. The Nonintercourse Act nullified any conveyance of Indian tribal lands without the consent of Congress.

No purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution.

25 U.S.C. § 177. This section has been in force in substantially the same terms since 1790. The sale of the Nimrod and Rocky Hill lots in 1802 without the consent of the United States violated its terms.

Article III of the United States Constitution limits the jurisdiction of federal courts to the adjudication of "cases" and "controversies." U.S. Const., Art. III. The case or controversy requirement mandates that the plaintiff have standing to initiate the action. Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). "In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues." Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2204, 45 L.Ed.2d 343 (1975). The absence of standing deprives the court of subject matter jurisdiction. Whether the plaintiff has standing is "the threshold question in every federal case, determining the power of the court to entertain the suit." Id.

The protection afforded by the Nonintercourse Act is limited to "Indian nations" and "tribes of Indians." 25 U.S.C. § 177. Hence, in order for a claim to be cognizable under that Act, plaintiff must show, among other factors, that it is or represents an Indian tribe. Epps v. Andrus, 611 F.2d 915, 918 (1st Cir.1979); Mashpee Tribe v. New Seabury Corp., 592 F.2d 575 (1st Cir.), cert. denied, 444 U.S. 866, 100 S.Ct. 138, 62 L.Ed.2d 90 (1979); Narragansett Tribe v. Southern Rhode Island Land Devel. Corp., 418 F.Supp. 798, 803 (D.R.I. 1976). Neither individual Indians, nor groups of Indians that possess no tribal status, have standing to sue for tribal land under the Nonintercourse Act. Epps, 611 F.2d at 918; Oneida Indian Nation v. County of Oneida, 434 F.Supp. 527, 537-38 (N.D.N.Y.1977), aff'd, 719 F.2d 525 (2d Cir. 1983), aff'd in part and rev'd in part, 470 U.S. 226, 105 S.Ct. 1245, 84 L.Ed.2d 169 (1985).

Plaintiffs concede that the individually named plaintiffs lack standing to assert claims under the Nonintercourse Act. As plaintiffs have no objection to dismissal of that portion of the amended complaint in which Aurelius Piper, Jr., Moonface Bear, and Ethel Sherman Piper Baldwin Peters are named individually as plaintiffs, that portion of the amended complaint is dismissed. See Memorandum in Response to Motion by Defendant Hoffman Fuel Co. to Dismiss, May 7, 1993, at 1-2.

The question remains whether the Paugussett Tribe has standing to sue under the Nonintercourse Act. Defendants argue that plaintiff is not a tribe and has no standing under the Nonintercourse Act absent federal acknowledgment (recognition) by the Bureau of Indian Affairs of the Department of the Interior. The Paugussett Tribe is not federally recognized; its petition for federal recognition is currently pending.

Congress has authorized the executive branch to prescribe regulations concerning Indian affairs. See 25 U.S.C. §§ 2, 9. The Department of the Interior (DOI) has promulgated regulations establishing procedures for recognition of Indian tribes. See 25 C.F.R. § 83. Any Indian group not previously acknowledged by DOI may apply for recognition. A tribe recognized as such is entitled to federal protection, services, and benefits. 25 C.F.R. § 83.2. A petition for recognition is a prerequisite to acknowledgment. See 25 C.F.R. §§ 83.4, 83.7.

It has been held that recognition of tribal status is not required for a tribe to be able to invoke the Nonintercourse Act. See Mashpee Tribe v. New Seabury Corp., 427 F.Supp. 899, 902 (D.Mass.1977) (tribal status absent federal recognition is an adjudicative fact); Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 388 F.Supp. 649, 655-56 (D.Me.), aff'd, 528 F.2d 370, 376-77 (1st Cir. 1975) (absence of federal recognition does not exclude stipulated tribe from Nonintercourse Act); Narragansett, 418 F.Supp. at 808 (rejecting argument that only federally recognized tribes are protected by Nonintercourse Act); Mohegan Tribe v. State of Connecticut, Civil No. H-77-434, Ruling on Motion for Summary Judgment (D.Conn. Apr. 11, 1984) (absence of federal recognition is not conclusive).

In both Narragansett and Passamaquoddy, the plaintiffs were stipulated to be a tribe. See Narragansett, 418 F.Supp. at 808; Passamaquoddy, 528 F.2d at 376-77 ("there is no reason why the Passamaquoddy Tribe should be excluded from Nonintercourse Act protection since it is stipulated to be a tribe racially and culturally"). In Narragansett and Passamaquoddy, the stipulation in effect precluded any viable argument over plaintiff's standing under the...