Mohegan Tribe v. State of Conn.

• Decision Date: 11 January 1982
• Docket Number: Civ. No. H-77-434 Civil.
• Citation: 528 F. Supp. 1359
• Parties: MOHEGAN TRIBE v. STATE of CONNECTICUT.
• Court: U.S. District Court — District of Connecticut

528 F. Supp. 1359

MOHEGAN TRIBE v. STATE of CONNECTICUT.

Civ. No. H-77-434 Civil.

United States District Court, D. Connecticut.

January 11, 1982.

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Jerome M. Griner, West Hartford, Conn., John R. Williams, New Haven, Conn., for plaintiff.

Francis J. MacGregor, and Gerard J. Dowling, Asst. Attys. Gen., Hartford, Conn., for defendant.

RULING ON PLAINTIFF'S MOTION TO STRIKE AFFIRMATIVE DEFENSES

BLUMENFELD, Senior District Judge.

This litigation involves a claim by the Mohegan Tribe for possession of certain land located in the northeast portion of the town of Montville, Connecticut. The Tribe alleges that the land is part of its aboriginal territory and was alienated in violation of Article I, Section 8 of the United States Constitution, the Indian Trade and Intercourse Act, 25 U.S.C. § 177, and various other provisions of the federal Constitution and the Connecticut Constitution and laws. In addition to possession, the Tribe seeks a declaration of rights and title with respect to the land in question and an award of rents and profits as well as attorneys' fees and costs.

In previous rulings in this case, this court has, among other things, struck the defense of laches as insufficient as a matter of law and denied a motion to dismiss based on the argument that the Nonintercourse Act applies only in western "Indian country" and not in the eastern states, Mohegan Tribe v. State of Connecticut, 483 F.Supp. 597 (D.Conn.), aff'd, 638 F.2d 612 (2d Cir. 1980), cert. denied, ___ U.S. ___, 101 S.Ct. 3124, 69 L.Ed.2d 981 (1981).

Presently before this court is Plaintiff's Motion to Strike the Defendant's Four Additional Defenses. On May 26, 1981 the State of Connecticut was granted permission to amend its answer to plead four additional affirmative defenses. First, the State pleads that the Indian Trade and Intercourse Acts did not bar land transactions involving one of the original thirteen states except for the period from 1790 to 1793. Second, Connecticut pleads that "the Eleventh Amendment is a bar to retroactive claims for money damages and interest." Third, the State contends that the plaintiff's action is barred by the tenth amendment to the United States Constitution. The fourth additional defense raises the question of whether a judgment rendered on August 15, 1743 is res judicata and thus bars this action.

The plaintiff now moves pursuant to Rule 12(f) of the Federal Rules of Civil Procedure to strike all four additional defenses as legally insufficient. The standard for determining legal sufficiency under Rule 12(f) is narrow. The presence of a substantial or seriously disputed question of law will preclude a district court from granting a motion to strike. United States v. 187.40 Acres of Land, 381 F.Supp. 54, 56 (M.D.Pa.1974). Close or new questions of law should not be resolved on a motion to strike which is ordinarily not appealable and which, if appealed pursuant to 28 U.S.C. § 1292(b), would create piecemeal litigation. "A motion to strike can be granted only if the legal insufficiency of the defense is `clearly apparent.'" May Dept. Stores Co. v. First Hartford Corp., 435 F.Supp. 849, 855 (D.Conn.1977). Accord, Occidental Life Insurance Co. v. Fried, 245 F.Supp. 211, 213 (D.Conn.1965).

Although a motion to strike a defense on grounds of legal insufficiency is not favored, such motions do serve as "the primary procedure for objecting to an insufficient defense." Narragansett Tribe of Indians v. Southern Rhode Island Land Devel. Corp., 418 F.Supp. 798, 801 (D.R.I. 1976) (quoting from Wright and Miller, Federal Practice and Procedure, § 1381 at 782 (1969)). Where the merits of a defense have been fully briefed and argued it is within the discretion of the district court to determine its legal sufficiency at a pre-trial stage particularly where the postponement of the question until trial would considerably complicate discovery. Id. at 801-02. See also Schaghticoke Tribe of Indians v. Kent School Corp., 423 F.Supp. 780, 783 (D.Conn.1976) (leave to amend answer to add defenses denied for legal insufficiency). The legal issues presented by all four of these defenses would greatly complicate the pre-trial process. This case is already extraordinarily complex, and it is the conclusion of this court that if the legal insufficiency of these defenses is "clearly apparent" it would be appropriate to dispose of them at this stage of the litigation. Hopefully, this early resolution of defenses that "could not possibly prevent recovery" by the plaintiff, Narragansett Tribe v. So. R.I. Land Devel. Corp., 418 F.Supp. at 802, will facilitate the orderly progress of this protracted litigation towards either trial or settlement.

Disputed questions of fact cannot be decided on a motion to strike and, therefore, for purposes of this motion the defendant's well pleaded factual allegations will be assumed to be true. However, mere conclusory allegations are not controlling and will not be deemed to be admitted for purposes of this motion. Kohen v. H. S. Crocker Co., 260 F.2d 790, 792 (5th Cir. 1958). Also, "to the extent that the challenged defenses are not factually in conflict with those facts alleged by plaintiff to support its claim for recovery, we must, for purposes of this motion, assume that plaintiff will be able to establish them at trial." Narragansett Tribe v. So. R.I. Land Devel. Corp., 418 F.Supp. at 802.

I. The Nonintercourse Act

The State of Connecticut pleads as its first additional affirmative defense that "except for the dates between July 22, 1790 and March 1, 1793, the Alienation of Land Sections of the Indian Trade and Intercourse Acts did not bar land transactions involving the defendant." The Indian Trade and Intercourse Act, originally enacted in 1790 and in effect in substantially the same form today, provides a comprehensive regulatory scheme governing trade and intercourse with Indian nations and individuals within the United States. Section 4 of the Act of 1790 contained the first Nonintercourse statute which declared

that no sale of lands made by any Indians, or any nation or tribe of Indians within the United States, shall be valid to any person, or persons, or to any state, whether having the right of pre-emption to such lands or not, unless the same shall be made and duly executed at some public treaty, held under the authority of the United States.

Act of July 22, 1790, ch. 33, § 4, 1 Stat. 137. In 1793 the Trade and Intercourse Act was reenacted in an expanded version. Section 4 of the 1790 Act became Section 8 of the 1793 Act reading:

no purchase or grant of lands, or any title or claim thereto, from any Indians or nation or tribe of Indians, within the bounds of the United States, shall be of any validity in law or equity, unless the same be made by a treaty or convention entered into pursuant to the constitution ....

Act of March 1, 1793, ch. 19, § 8, 1 Stat. 329.

The defendant contends that by deleting the phrase "to any state, whether having the right of pre-emption to such lands or not," Congress intended to exempt sales of lands to the states from the general prohibition against sales of Indian lands without the consent of the United States government. In support of this construction the State argues (1) that the Indian Trade and Intercourse Acts passed in the late 18th and early 19th centuries were directed towards the problems of the Indians living in the frontier or to the west in Indian country, not to those living within the territory of the original states; (2) that the Supreme Court in Wilson v. Omaha Tribe, 442 U.S. 653, 667-68, 99 S.Ct. 2529, 2537-38, 61 L.Ed.2d 153 (1979), recognized that the states stand in a different footing than individuals in their dealings with Indians; and (3) that Congress expressed its understanding that the Nonintercourse Act did not proscribe land transactions with the states when it passed the Act of September 13, 1950, 25 U.S.C. § 233, which specifically prohibits the alienation of reservation land in New York. The defendant contends that if such sales were already prohibited under the Nonintercourse Act, this provision of the Act of 1950 would be superfluous.

The plaintiff Tribe, in support of its motion to strike this defense, argues that the language of the Nonintercourse Act clearly demonstrates the falsity of the defendant's construction of the 1793 amendment, that the defendant is attempting to relitigate an issue that was decided against it by this court and the Second Circuit, Mohegan Tribe v. State of Connecticut, 638 F.2d 612, aff'g, 483 F.Supp. 597, and that regardless of the merits of this statutory argument, the defense is inapplicable to the facts of this case because the plaintiff alleges and the defendant concedes that Connecticut was not the immediate grantee but obtained its title to the land in question through various "mesne conveyances" involving private parties. According to the plaintiff, the original grants to private individuals violated the Nonintercourse Act even under the defendant's suggested construction of the Act and are void. Any title obtained by Connecticut through these grantees would also be void regardless of whether a grant of land directly from the Tribe to the State is proscribed by the Nonintercourse Act.

Since I agree that the defendant's statutory argument does not present a substantial question of law and, at any rate, would not defeat the plaintiff's claims in this case, I grant the motion to strike this first additional defense.

The language of the Nonintercourse Act declares without qualification that "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" unless consented to by the United States government. 25 U.S.C. § 177. The statute thus clearly voids any grant made by an Indian tribe without the consent of the federal government. If the...