Golden Hill Paugussett Tribe of Indians v. Weicker

Decision Date28 October 1994
Docket NumberNos. 1154-1156,D,s. 1154-1156
Citation39 F.3d 51
PartiesGOLDEN HILL PAUGUSSETT TRIBE OF INDIANS, Plaintiff-Appellant, Aurelilus H. Piper, Jr., Moonface Bear, Ethel Sherman Piper Baldwin Peters, Plaintiffs, v. Lowell P. WEICKER, Jr., Governor of Connecticut; Joseph Ganim, Mayor, City of Bridgeport; Hoffman Fuel Co.; et al., Defendants-Appellees. HOFFMAN FUEL CO.; et al., Counter-Claimants, v. GOLDEN HILL PAUGUSSETT TRIBE OF INDIANS; Aurelilus H. Piper, Jr.; Moonface Bear; Ethel Sherman Piper Baldwin Peters and Lowell P. Weicker, Jr., Governor of Connecticut, Counter-Defendants. ockets 93-6227, 93-9059 and 93-9061.
CourtU.S. Court of Appeals — Second Circuit

Michael D. O'Connell, Hartford, CT (O'Connell, Flaherty & Attmore, of counsel), for plaintiff-appellant Golden Hill Paugussett Tribe of Indians.

Ellen J. Durkee, Dept. of Justice, Washington, DC (Lois J. Schiffer, Acting Asst. Atty. Gen., Christopher F. Droney, U.S. Atty., Carl J. Schuman, Asst. U.S. Atty., Andrew M. Eschen, Robert L. Klarquist, Dept. of Justice, Scott Keep, Sandra J. Ashton, Office of the Sol., Dept. of the Interior, of counsel), for appellee U.S.

Richard Blumenthal, Office of the Atty. Gen., State of Conn., Hartford, CT (Aaron S. Bayer, Daniel R. Schaefer, Office of the Atty. Gen., State of Conn., Hartford, CT, of counsel), for Lowell P. Weicker, Jr., Governor of the State of Conn. Also of counsel on the brief: Mark R. Kravitz, Noel E. Hanf, Jeffrey R. Babbin, Penelope I. Bellamy, Wiggin & Dana, New Haven, CT, for United Illuminating Co.; Allan Van Gestel, Goodwin, Procter & Hoar, Boston, MA, for Hoffman Fuel Co.; Janet L. Janczewski, J. Richard Tiano, Connecticut Energy Corp., Bridgeport, CT, for The Southern Connecticut Gas Co.; Richard S. Lipman, Schatz & Schatz, Ribicoff & Kotkin, Hartford, CT, for Lafayette Bank & Trust Co., et al.; Stuart A. Margolis, Berdon, Young & Margolis, P.C., New Haven, CT, for Craig E. Moffett; Geoffrey A. Hecht, Virshup, Caplan & Hecht, New Haven, CT, for Union Trust Co., et al.; Mark T. Anastasi, John H. Barton, Office of the City Atty., Bridgeport, CT, for Joseph Ganim, Mayor, City of Bridgeport; James A. Trowbridge, Quinnipiac College School of Law, Bridgeport, CT, for Charlotte Nyzio, et al.; Gerald L. Garlick, Leventhal, Krasow & Roos, P.C., Hartford, CT, for Joyce A. Knoll and Gregory E. Knoll; Howard R. Wolfe, Albert, Ward & Johnson, P.C., Greenwich, CT, for Joseph E. Shapiro and Marjorie Shapiro; Richard J. Buturla, Berchem, Moses & Devlin, P.C., Milford, CT, for D'Addario Industries; Gerald T. Weiner, Judith A. Mauzaka, Weinstein, Weiner & Shapiro, P.C., Bridgeport, CT, for John C. Bachyrycz, Jr., et al.

Before: NEWMAN, Chief Judge, CARDAMONE and MAHONEY, Circuit Judges.

CARDAMONE, Circuit Judge:

This is an appeal by the Golden Hill Paugussett Tribe of Indians from judgments of the United States District Court for the District of Connecticut (Dorsey, J.) entered July 22, 1993, August 31, 1993, and September 3, 1993, dismissing without prejudice each of its three claims under the Nonintercourse Act, 25 U.S.C. Sec. 177. See Golden Hill Paugussett Tribe of Indians v. Weicker, 839 F.Supp. 130 (D.Conn.1993). Golden Hill's appeals from the judgments of dismissal in all three actions have been consolidated and are now before us for review.

The appeal presents a complex problem involving the intersection of judicial authority over Indian land claims and administrative authority granted to the Department of the Interior's Bureau of Indian Affairs to determine whether a given group of Indians is entitled to tribal recognition. Where an executive agency and the federal courts have overlapping, though not identical, jurisdiction, judicial authority is often best exercised in conjunction with the administrative; one first, the other later.

BACKGROUND

Plaintiff is a group of American Indians that calls itself the "Golden Hill Paugussett Tribe of Indians" (Golden Hill, Tribe or plaintiff). It claims to be an Indian tribe that has resided since time immemorial in the southwest portion of what is now the State of Connecticut. In a complaint filed September 3, 1992 and amended November 6, 1992, Golden Hill sued to reclaim 20 acres of its alleged aboriginal territory. 1 These 20 acres are located within the City of Bridgeport, Connecticut. The complaint alleges that the land, which had been established as a reservation for Golden Hill, was sold by the State of Connecticut in 1802 without the consent of the United States. It further alleges Golden Hill contends it is entitled to the possession of and to the rents and profits for the 20 acres because it was conveyed in violation of Sec. 4 of the Indian Trade and Intercourse Act of July 22, 1790, ch. 33, 1 Stat. 137, codified as reenacted and amended at 25 U.S.C. Sec. 177 (1988) (Nonintercourse Act or Act). In separate actions, also brought under the Nonintercourse Act, Golden Hill asserted a right to 19 and 3/4 acres of land in Trumbull, Connecticut, and 100 acres of land in Orange, Connecticut. The defendants in the three actions are numerous individuals and entities currently in possession of the land that is the subject of those suits, including Lowell P. Weicker, Jr. (as governor of the State of Connecticut) and Joseph Ganim (as mayor of the City of Bridgeport) (collectively State of Connecticut or defendant).

that until the 1802 conveyance it exclusively owned, used, and occupied the lands at issue. In addition to these 20 acres, the Tribe's complaint refers to various portions of aboriginal and ancestral lands of unstated sizes and of a particular 68-acre lot of aboriginal land each conveyed in violation of a Proclamation of 1763 issued by King George III of Great Britain. With respect to these lands, the complaint was dismissed, 839 F.Supp. at 135-39, and plaintiff has not sought review of that part of the district court's decision.

In an answer dated January 15, 1993 the State of Connecticut contended that plaintiff's complaint failed to state a viable cause of action and that the district court lacked subject matter jurisdiction due to plaintiff's failure to allege "that the plaintiff group has been duly recognized by the Secretary of the Interior." On April 20, 1993 the district court directed the parties to address the question of plaintiff's standing, absent tribe certification, explaining that since plaintiff had not alleged that it had been certified as a tribe by the Department of the Interior's Bureau of Indian Affairs (BIA), subject matter jurisdiction over the action was in question. In support of its subsequent motion to dismiss, defendant D'Addario Industries argued that the district court lacked jurisdiction because plaintiff had alleged insufficient facts to support an element of its claim, namely that plaintiff is a "tribe" within the meaning of the Nonintercourse Act. The State, in response to the district court's request to address the issue of plaintiff's standing, argued that lack of federal recognition deprived plaintiff of standing, therefore requiring dismissal of the action.

Golden Hill petitioned the BIA for federal acknowledgment of its existence as an Indian tribe on April 13, 1982. It appears that at least some of the supporting documentation for the Tribe's petition was not submitted to the BIA until April 1993. At the time the district court dismissed Golden Hill's complaint, the administrative petition was in a pre-consideration stage where the BIA reviews it for "obvious deficiencies." According to defendant's brief, after the district court ruled in this case, the BIA completed its deficiency review and notified Golden Hill as to what the agency considered obvious deficiencies in the petition. Under the BIA's regulations, Golden Hill is entitled to submit additional information to cure the deficiencies.

On July 21, 1993 the district court granted defendant's motions to dismiss, explaining that Golden Hill was required to exhaust administrative procedures for tribal recognition prior to seeking a judicial determination of tribal status under the Nonintercourse Act. The district court concluded that "Congress's delegation of authority, the regulations adopted in implementation thereof, and BIA's development of expertise appropriate thereto, amply demonstrate a scheme for determination of tribal status intended and best left at first blush to the BIA." 839 F.Supp. at 135.

The dismissal without prejudice to renew as to plaintiff's Nonintercourse Act claims "depending on resolution of plaintiff's petition for federal recognition," 839 F.Supp. at 139, in effect conditioned plaintiff's standing upon federal administrative agency recognition. The Tribe maintains on appeal that if the question of tribal status were properly viewed as one of standing under Fed.R.Civ.P. 12(b)(6), it would be entitled to an evidentiary hearing in district court to establish its status as an Indian tribe. Plaintiff also insists that because "federal recognition" is not

a prerequisite to satisfying the definition of "tribe" under the Nonintercourse Act claim, the district court erred as a matter of law by directing it to complete the administrative acknowledgment process. While the trial court's opinion is not entirely clear, we believe the central question it decided is that on the issue of tribal status it should defer to the administrative agency. The result the district court reached of withholding a judicial decision until that agency has made an administrative ruling is one with which we agree, although our reasoning is somewhat different and leads to a slightly modified disposition.

DISCUSSION
I Statutory and Administrative History
A. The Nonintercourse Act

We turn now to examine the statutory and administrative history governing the issues before us. In 1790 Congress passed the first Indian Trade and Intercourse Act of which Sec. 4 was the Nonintercourse Act. This Act prohibited the sale by Indians...

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