Golden Hill Paugussett Tribe of Indians v. Rell

• Decision Date: 29 November 2006
• Docket Number: No. 2:92cv738 (JBA).,2:92cv738 (JBA).
• Citation: 463 F.Supp.2d 192
• Court: U.S. District Court — District of Connecticut
• Parties: GOLDEN HILL PAUGUSSETT TRIBE OF INDIANS, Plaintiff, v. M. Jodie RELL, Governor of the State of Connecticut, et al., Defendants.

Page 192

463 F.Supp.2d 192

GOLDEN HILL PAUGUSSETT TRIBE OF INDIANS, Plaintiff, v. M. Jodie RELL, Governor of the State of Connecticut, et al., Defendants.

No. 2:92cv738 (JBA).

United States District Court, D. Connecticut.

November 29, 2006.

Bernard Wishnia, Roseland, NJ, Michael D. O'Connell, O'Connell, Flaherty & Attmore, Hartford, CT, William A. Wechsler, Bailey & Wechsler, Hebron, CT, for Plaintiff.

Daniel R. Schaefer, David G. Chabot, Attorney General's Office, Special Litigation, Mark F. Kohler, Susan Quinn Cobb, Attorney General's Office, Richard Blumenthal, Attorney General's Office, Administration Dept., Henry C. Winiarski, Jr., Gerald L. Garlick, Linda Clifford Hadley, Krasow, Garlick & Hadley, Hartford, CT, Mark T. Anastasi, City of Bridgeport Office of the City Attorney, Anthony M. Feeherry, Mark S. Puzella, Michael K. Murray, Goodwin Procter LLP, Boston, MA, Richard L. Albrecht, Austin K. Wolf, Cohen & Wolf, P.C., Janet L. Janczewski, The Southern Connecticut Gas Co., Gerald T. Weiner, Judith A. Mauzaka, Roberta Napolitano Weinstein, Weiner, Ignal, Vogel & Shapiro, Bridgeport, CT, Jeffrey R. Babbin, Noel E. Hanf, Wiggin & Dana, Geoffrey A. Hecht, Caplan Hecht Scanlon & Mendel, Stuart A. Margolis, Michael Stanton Hillis, Dombroski, Knapsack & Hillis, Kenneth M. Rozich, Law Firm of Edward D. Jacobs, New Haven, CT, John J. Kelly, Jr., Cantor, Floman, Gross, Kelly, Amendola & Sacramone, Orange, CT, Richard J. Buturla, Robert L. Berchem, Warren L. Holcomb, Berchem, Moses & Devlin, P.C., Milford, CT, Paul Ruszczyk, Cheshire, CT, Howard R. Wolfe, Goldman Gruder & Woods, Greenwich, CT, Carolyn W. Kaas, James A. Trowbridge, Quinnipiac College, Law School Clinic, Hamden, CT, for Defendants.

RULING ON PENDING MOTIONS FOR JUDGMENT ON THIS PLEADINGS [DOCS. ## 330, 333, 334, 335, 339, 342, 346, 347, 350, 357, 362, 364, 381]

ARTERTON, District Judge.

This case is the consolidated action composed of three separate land actions brought by plaintiff, Golden Hill Paugussett Tribe of Indians ("Golden Hill"), against various individuals, corporations, and the State of Connecticut. Plaintiff seeks to "restore the Golden Hill Paugussett Tribe of Indians to possession of certain aboriginal and reservation lands in Bridgeport, Connecticut, which lands are subject to the Indian Non-Intercourse Act, 25 U.S.C. § 177, and which lands were taken in violation of the common law." Am. Compl. [Doc. # 325] ¶ 1. Plaintiff also seeks money damages stemming from the alleged denial of the use and enjoyment of any rental income and profits due to it from the land and the fair market value thereof.¹ Id. ¶¶ 161, 162.

Pursuant to order of the Second Circuit, Golden Hill Paugussett Tribe of Indians v. Weicker, 39 F.3d 51 (2d Cir.1994), this case was stayed pursuant to the doctrine of primary jurisdiction pending resolution by the Bureau of Indian Affairs (the "BIA") of Golden Hill's petition for federal tribal acknowledgment. The BIA's proceedings concluded with the rejection of Golden Hill's petition and defendants now move pursuant to Fed.R.Civ.P. 12(c) for judgment on the pleadings, contending that the Court should defer and/or give preclusive effect to various factual determinations made by the BIA, which would preclude Golden Hill from satisfying the elements of its Nonintercourse Act claim, or, alternatively, for dismissal pursuant to Fed.R.Civ.P. 12(b)(6) based on the equitable doctrines of lathes, long acquiescence, and impossibility. See [Does. ## 330, 333, 334, 335, 339, 342, 346, 347, 350, 357, 362, 364, 381].²

For the reasons that follow, defendants' Rule 12(c) motions will be granted.

I. Factual and Procedural Background

Golden Hill alleges that it "is an Indian Tribe which has resided in the State of Connecticut since time immemorial. The Tribe is recognized by the State of Connecticut and has two reservations in the State of Connecticut located in Trumbull and Colchester." Am. Compl. ¶ 4: Plaintiff claims that "[s]ince time immemorial, and until the acts complained of [in this action], the Tribe exclusively owned, used, and occupied lands in what is now known as the City of Bridgeport, Connecticut, including the lands which are the subject of this litigation." Id. ¶ 12.

Plaintiff alleges a series of illegal encroachments by which the Tribe was divested of portions of its property. Id. ¶¶ 15-25. As articulated by plaintiff, "[t]he Non-Intercourse Act confirmed the rights of Indian Tribes to the possession of all lands then owned or occupied by them, until alienated with the consent of the Congress, and nullified any purported conveyance of tribal lands made without such federal consent." Id. ¶ 22. Plaintiff alleges that "[t]he government of the United States has never consented to or approved of the said enactment of the General Assembly of the State of Connecticut or the Assembly of the Colony of Connecticut [purporting to alienate certain alleged tribal property], or the acts of any other persons, or any conveyance or alienation pursuant thereto, and the said acts, enactments, and conveyances are void; nor has the title and right of possession of the Tribe to the said land been transferred to any defendant or to any ether party with the consent of ... or approval of the Government of the United States. The Tribe therefore retains the title and right of possession to the said land and the said land is not and never has been the property of any other person, party or entity." Id. ¶ 26. Plaintiff accordingly seeks a declaration that it is "the owner of and [has] the legal and equitable title and right of possession to such land, and restor[ation] to immediate possession," as well as, inter alia, money damages representing the fair market value of the land and the fair rental value and profits of the land for the period of dispossession. Id. at 45 (prayer for relief).

In order "[t]o establish a prima facie case based on a violation of the [Nonintercourse] Act, a plaintiff must show that (1) it is an Indian tribe, (2) the land is tribal land, (3) the United States has never consented to or approved the alienation of this tribal land, and (4) the trust relationship between the United States and the tribe has not been terminated or abandoned." Golden Hill, 39 F.3d at 56. "Federal courts have held that to prove tribal status under the Nonintercourse Act, an Indian group must show that it is `a body of Indians of the same or a similar race', united in a community under one leadership or government, and inhabiting a particular though sometimes ill-defined territory." Id. at 59 (citing United States v. Candelaria, 271 U.S. 432, 442, 46 S.Ct. 561, 70 L.Ed. 1023 (1926); Montoya v. United States, 180 U.S. 261, 266, 36 Ct.Cl. 577, 21 S.Ct. 358, 45 L.Ed. 521 (1901)).

In 1992 to 1993, after plaintiff filed an amended complaint and the parties briefed motions to dismiss, this Court (by opinion of Hon. Peter C. Dorsey) dismissed plaintiff's Nonintercourse Act claim, finding that Golden Hill had failed to exhaust administrative procedures for tribal recognition prior to seeking a judicial determination of tribal status, and exercised its discretion to defer in the first instance to federal acknowledgment proceedings before the BIA. See Golden Hill Paugussett Tribe of Indians v. Weicker, 839 F.Supp. 130 (D.Conn.1993).

On appeal, the Second Circuit found that "[n]either lack of standing [n]or failure to exhaust administrative remedies provides good grounds for the district court's dismissal of plaintiff's suit," noting that "tribal status for purposes of obtaining federal benefits is not necessarily the same as tribal status under the Nonintercourse Act [and] that tribal status for purposes of the Act relates both to standing to sue under the Act and to the merits of a claim under the Act. The two issues are distinct, though they overlap to a considerable extent." See Golden Hill, 39 F.3d at 59-61. The Second Circuit observed that "Golden Hill alleged that it is an Indian tribe" and thus "the plaintiff tribe ha[d] pled in each of its three complaints all of the elements of a Nonintercourse Act claim," but found that "deferral [in the first instance to the BIA] [wa]s fully warranted ... where the plaintiff ha[d] already invoked the BIA's authority." Id. at 57-58, 60. While the Second Circuit observed that "[r]egardless of whether the BIA were to acknowledge Golden Hill as a tribe for purposes of federal benefits, Golden Hill must still turn to the district court for an ultimate judicial determination of its claim under the Nonintercourse Act," the court relied on the doctrine of primary jurisdiction in holding that "the BIA is better qualified by virtue of its knowledge and experience to determine at the outset whether Golden Hill meets the criteria for tribal status" and that "[t]he BIA's resolution of these factual issues regarding tribal status will be of considerable assistance to the district court in ultimately deciding Golden Hill's Nonintercourse Act claims." Id. 58-60. The court noted that "[a] federal court, of course, retains final authority to rule on a federal statute, but should avail itself of the agency's aid in gathering facts and marshaling them into a meaningful pattern." Id. at 60 (citing Fed. Maritime Bd. v. Isbrandtsen Co., 356 U.S. 481, 498, 78 S.Ct. 851, 2 L.Ed.2d 926 (1958)). Accordingly, the Second Circuit remanded the case to the district court "with directions to stay the proceedings ... pending the BIA's consideration of Golden Hill's claim for tribal recognition, the duration and termination of the stay to be determined in accordance with this opinion." Id. at 61.

On June 14, 2004, the BIA issued its Final Determination, rejecting plaintiff's petition for federal tribal acknowledgment, of which decision the defendant State provided notice to the Court. See Notification [Doc. # 281]. As noted by the State, under the acknowledgment regulations the Final Determination would become final and...