Schaghticoke Indian Tribe et al. v. Michael J. Rost (2011)

Decision

The Schaghticoke Indian Tribe and the Schaghticoke Tribal Nation brought this summary process action against Michael J. Rost on a complaint dated July 29, 2010 and filed with the court on August 10, 2010.   Plaintiffs claim that the defendant never had the right to occupy the premises recognized as the Schaghticoke Reservation in Kent, Connecticut.

In order to sustain their burden, Plaintiffs must prove the following elements:

1) Plaintiff is owner of the subject property;

2) When occupant moved in or when the owner became aware that the occupant was residing in the premises;

3) Address of subject premises;

4) Defendant never had the right to occupy said premises;

5) Notice to quit—service and termination date—were properly served;

6) Occupant still in possession.

The first element of the complaint was the most vigorously challenged by the defendant.   Much of the testimony during the trial from both the plaintiffs and the defendant centered on Plaintiff's claim of a superior right of control over the reservation lands.

A review of Connecticut Statutes provides a legal guideline for the resolution of this argument.  Conn. Gen. Statute § 47–59a(a) recognizes all resident Indians of qualified Tribes as full citizens of this state.   It also recognizes that qualified Connecticut tribes have certain special rights to tribal lands.   Subsection (b) reads as follows:

The state of Connecticut further recognizes that the indigenous tribes, the Schaghticoke, the Paucatuck Eastern Pequot, the Mashantucket Pequot, the Mohegan and the Golden Hill Paugussett are self-governing entities possessing powers and duties over tribal members and reservations.   Such powers and duties include the power to:  (1) Determine tribal membership and residency on reservation land;  (2) determine the tribal form of government;  (3) regulate trade and commerce on the reservation;  (4) make contracts, and (5) determine tribal leadership in accordance with tribal practice and usage.

Further, § 47–66i(a) prescribes the method for selection of tribal leaders.   The tribe's leader is required to file with the Governor's office the process by which they govern the reservation.   The Governor's office files this description with the Secretary of the State and the Indian Affairs Council.   This information is then forwarded to the Department of Environmental Protection.   Subsection (b) of that statute clearly prescribes the procedure for a leadership dispute.

Plaintiffs submitted Exhibit # 1, the constitution for the Schaghticoke Tribal Nation.   While previously the Schaghticoke tribe had used different formal appellations, with the adoption of this constitution, the name then became the Schaghticoke Tribal Nation.   The constitution provides the formal procedures for governing the tribe including provisions for the selection or removal of the tribal leaders and council.

Plaintiff, Richard Velky, testified on behalf of the Schaghticoke Tribal Council in his position as Chief of the Schaghticoke Tribal Nation.   Plaintiffs submitted a number of exhibits from the State of Connecticut, most notably Ex. # 7 and # 8, where Velky has been recognized by the State as either tribal chief or chairman of the Schaghticoke Tribal Nation.   In a letter dated March 9, 2011, the DEP recognized Velky as Tribal chairman and notes there have been no “claims or challenges to leadership” of the Schaghticoke Tribe.  (Ex. # 8.)   Defendant offered a number of exhibits from the “Schaghticoke Indian Tribe” purporting to challenge Velky's leadership.   However, there was no evidence submitted that the “Schaghticoke Indian Tribe” had taken any legally recognized actions under Connecticut statutes or through their own Constitution (Ex. # 1) to effectuate that challenge.   Based on the evidence submitted by both parties, the court finds that the Schaghticoke Tribal Nation, through its Tribal Council, is the governing authority for the Schaghticoke tribe.   Accordingly the court finds that the Plaintiffs have met their burden in establishing this first element.

The second element requires the plaintiffs prove that Michael Rost had moved in or was residing in the premises.   There was uncontroverted evidence that the defendant had moved onto the Schaghticoke Reservation and had been residing there for a period of at least two years.

The third element involves the address of the subject premises.   The location of the subject property is recognized by state law as the Schaghticoke Reservation.   It comprises an area of approximately four hundred acres in Kent, Connecticut.   A map of the location (Ex. # 11) was offered into evidence.

The fourth element requires that the plaintiffs prove that the defendant, Michael Rost, never had the right to occupy the premises.   Velky testified that the defendant had never been given permission by the Schaghticoke Tribal Nation to reside on the Schaghticoke Reservation.   The defendant offered testimony from Gayle Donovan, a recognized Schaghticoke Indian.   Ms. Donovan testified that she had been given permission over twenty years ago by the Schaghticoke Tribal Nation to build a personal residence on the Reservation;  this personal home located within the Reservation has the address of 262 Schaghticoke Road. While she owns and is responsible for the building, she does not own the land.   Ms. Donovan testified that she had allowed Michael Rost to live in her personal dwelling.

State statutes specifically hold that only the tribe, through its recognized leaders, can give permission for residency on reservation lands. [§ 47–59a(a).]   Further, Plaintiffs' Tribal Constitution, Article VIII, subsection (u), Powers and Duties of the Tribal Council provides the plaintiffs with the authority to institute the present action.  (Ex. # 1.)   Velky, in his capacity as tribal leader, testified that the defendant did not have permission to reside on the reservation.   Plaintiffs therefore have sustained their burden in regard to this fourth element.

As to the fifth element, the court took judicial notice of the Notice to Quit Possession that accompanied the complaint.   Issued on June 28, 2010, it ordered the defendant, Michael Rost, to quit possession on or before July 27, 2010.   It was served on the defendant on June 30, 2010, both at 262 Schaghticoke Road, Kent, Connecticut and at “his rock hubble” on Schaghticoke Road, Kent, Connecticut.   Defendant filed a pro se appearance on August 17, 2010 and did not contest the validity of service.

The sixth and final element is that the defendant is still in occupation of the premises.   There was uncontroverted testimony that Michael Rost still resides at 262 Schaghticoke Road, located within the Schaghticoke Reservation, Kent, Connecticut.

The court finds that the plaintiffs have met their burden with respect to all elements of the complaint and therefore judgment is granted for the plaintiff, subject to any statutory stays.

Corinne L. Klatt, J.

Klatt, Corinne L., J.