Schaghticoke Indian Tribe v. Rost

• Decision Date: 18 September 2012
• Docket Number: No. 33374.,33374.
• Citation: 138 Conn.App. 204,50 A.3d 411
• Court: Connecticut Court of Appeals
• Parties: SCHAGHTICOKE INDIAN TRIBE et al. v. Michael J. ROST.

138 Conn.App. 204

50 A.3d 411

SCHAGHTICOKE INDIAN TRIBE et al.

v.Michael J. ROST.

No. 33374.

Appellate Court of Connecticut.

Argued April 12, 2012.

Decided Sept. 18, 2012.

Michael J. Rost, pro se, the appellant (defendant).

Hugh J. Lavery, Stratford, for the appellee (plaintiff Schaghticoke Indian Tribe).

Dennis L. Kern, Berlin, for the appellee (plaintiff Schaghticoke Tribal Nation).

LAVINE, ROBINSON and FLYNN, Js.

ROBINSON, J.

The self-represented defendant in this summary process eviction action, Michael J. Rost, appeals from the trial court's judgment of possession rendered in favor of the plaintiffs, the Schaghticoke Indian Tribe (SIT) and the Schaghticoke Tribal Nation (STN). The defendant claims that the court improperly [138 Conn.App. 206]1) exercised jurisdiction by adjudicating a summary process action involving sovereign reservation land, (2) decided a dispute over tribal leadership, (3) rendered judgment without one of the plaintiffs being represented at the summary process trial and (4) ignored prior judicial decisions impacting STN's authority to represent the interests of the Schaghticoke Indians. We affirm the judgment of the court.

The following facts, which either are undisputed on the basis of the record or were found by the court, and procedural history are relevant to our review of the claims on appeal. The Schaghticoke tribe is recognized by the state as a self-governing entity that possesses the power to, inter alia, “[d]etermine tribal membership and residency on reservation land....” General Statutes § 47–59a (b)(1).¹ The Schaghticoke Indian reservation (reservation)is comprised of approximately four hundred acres of property located in Kent. For at least two years prior to the commencement of this summary process action, the defendant lived on the reservation with the permission of Gayle Donovan, a recognized Schaghticoke Indian, at her personal residence located at 262 Schaghticoke Road. Donovan had been given permission to build her residence on the reservation more than twenty years earlier. Donovan owns and is responsible for the residence, but she does not own the land.

On June 30, 2010, the plaintiffs jointly served the defendant with a notice to quit possession of “the [e]ntire Schaghticoke [r]eservation (including but not limited to) Schaghticoke Road, Kent, CT” by July 27, 2010, on the ground that he had “[n]o right or privilege to occupy same.” On August 4, 2010, the plaintiffs commenced this summary process action. Initially, both plaintiffs were represented by Attorney Paul Garlasco. The plaintiffs alleged in their complaint that they “own and possess” the reservation and that the defendant entered the reservation with no right or privilege to occupy or remain on the reservation. The plaintiffs further alleged that the defendant had failed to quit possession, and, therefore, they sought a judgment of “[e]xclusive [p]ossession of the reservation with an order of no re-entry” and “[a]n immediate execution of eviction of the [defendant].” The defendant filed an appearance and an answer to the complaint, in which he challenged the plaintiffs' authority to evict him from the reservation. Specifically, he stated that the plaintiffs do not represent the historic tribe as evidenced by copies of documents that he attached to his answer and which allegedly were on file with the secretary of state of Connecticut and with the Interior Board of Indian Appeals.

The matter initially was assigned for a pretrial hearing on October 22, 2010. On October 6, 2010, Garlasco filed a motion to withdraw as counsel for the plaintiffs, alleging a breakdown in the attorney-client relationship. Following a hearing, the court granted the motion to withdraw. The court also granted several continuances to allow the plaintiffs an opportunity to obtain new counsel. On January 27, 2011, the court issued notice to all parties that a summary process trial would be held on March 15, 2011. On March 14, 2011, Attorney Dennis L. Kern filed an appearance on behalf of STN only. The summary process trial went forward as scheduled on March 15, 2011. Kern and the defendant were present and each presented evidence; however, no one representing SIT appeared at the summary process trial. The court indicated at the close of the proceedings that it would continue the matter to April 15, 2011, at which time it would render a final decision.

On April 15, 2011, Attorney Hugh J. Lavery filed an appearance on behalf of SIT and also filed a motion asking the court to open the evidentiary portion of the trial to allow SIT an opportunity to present additional testimony or to declare a mistrial.² The court denied the motion to present evidence on the ground that the motion was procedurally irregular and that the proffered evidence concerned only the ongoing dispute between SIT and STN over tribal leadership, which the court found was immaterial to the summary process matter before it. The court next issued a written decision in which it found that the plaintiffs had met their burden as to all elements of the summary process complaint and rendered a judgment of possession in favor of the plaintiffs subject to any statutory stays. In reaching its decision, the court made the following specific finding: “Based on the evidence submitted by both parties, the court finds that [STN], through its [t]ribal [c]ouncil, is the governing authority for the Schaghticoke tribe.” The defendant filed the present appeal on April 20, 2011.

After the appeal was filed, SIT filed a motion to open the judgment. SIT argued that it wrongly had been deprived of an opportunity to present evidence that would have shown that SIT, and not STN, is the true governing authority for the Schaghticoke Indians. SIT was concerned about the res judicata effect of the court's finding that STN was the governing authority for the Schaghticoke Indians. SIT, nonetheless, also made clear that, despite the ongoing dispute between SIT and STN over which entity governs the Schaghticoke Indians, the entities continued to be united in their goal to remove the defendant from the reservation and had alleged in their complaint that they collectively own and possess the reservation. According to SIT, under a theory of judicial restraint, the court could reach a decision in which it finds the allegation of the summary process complaint proven without selecting a winner of the governing dispute.

The court heard argument on the motion to open on May 9, 2011, following which it denied the motion. The court reasoned, as it previously had, that the issue of which entity was “in charge” was not properly before it, and, therefore, it did not need to hear additional evidence on that topic from SIT. The court nevertheless opened its decision for the purpose of vacating its earlier finding that STN, through its tribal council, was the recognized tribal leader. It clarified that the plaintiffs collectively represented the individual members of the Schaghticoke Indians, and that it was those “individuals that have brought this summary process action, and have moved to evict [defendant].” The defendant did not amend his existing appeal to challenge the court's modification of its earlier decision.³

I

The defendant first claims that the court improperly exercised jurisdiction in adjudicating the present summary process action. We note at the outset that the defendant's brief contains little in the way of legal analysis and is, at times, disjointed and difficult to comprehend. Nevertheless, given the stated policy of Connecticut's courts to be solicitous of self-represented litigants; see State v. Adams, 117 Conn.App. 747, 755, 982 A.2d 187 (2009); and because the defendant challenges the court's exercise of both personal and subject matter jurisdiction in this matter, over which our review is plenary; see Ryan v. Cerullo, 282 Conn. 109, 118, 918 A.2d 867 (2007); Pritchard v. Pritchard, 281 Conn. 262, 270, 914 A.2d 1025 (2007); we will endeavor to review the defendant's claims despite the state of the briefing provided. We construe the defendant's jurisdictional argument to be twofold. First, he argues that, because the reservation constitutes sovereign land and the Schaghticoke Indians never entered into any agreement or contract with the state, it is not subject to the civil jurisdiction of Connecticut's courts. The defendant also argues that the court lacked personal jurisdiction over him because he is a “sovereign human being” and “common law free man.” We conclude that the court properly exercised jurisdiction in this matter.

A

We first dispose of the defendant's claim that the court lacked personal jurisdiction over him as a “sovereign human being” and “common law free man.” The defendant fails to explain in his brief the legal import of his numerous assertions that he is a “sovereign human being” and “common law free man.” We can discern no legal reason why the mere donning of such a mantle would act to defeat the court's exercise of personal jurisdiction over him in this matter. Nevertheless, it is unnecessary for us to delve further into the defendant's personal jurisdiction claim because we conclude that the defendant has waived his right to challenge personal jurisdiction.

“As a general matter, a party waives the right to dispute personal jurisdiction unless that party files a motion to dismiss within thirty days of the filing of an appearance.... Personal jurisdiction is not like subject matter jurisdiction, which can be raised at any time and by the court on its own motion.... Unless the issue of personal jurisdiction is raised by a timely motion to dismiss, any challenge to the court's personal jurisdiction over the defendant is lost.... As noted by our Supreme Court, under our rules of practice, the filing of a responsive pleading operates as a waiver of a future challenge of the court's personal jurisdiction over a party.” (Citation omitted; internal quotation marks...