Owen Charles v. Mashantucket Pequot Tribal Nation (2011)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (# 101)

FACTS

On May 6, 2011, the plaintiff, Owen Charles, filed a complaint, alleging a violation of General Statutes §§ 46a–60, et seq., against the defendant, the Mashantucket Pequot Tribal Nation.   Specifically, the action was filed against the Mashantucket Pequot Tribal Nation doing business as the Two Trees Inn.

On June 16, 2011, the defendant filed a motion to dismiss the plaintiff's complaint and memorandum of law in support, on the ground that the Superior Court lacks subject matter jurisdiction.¹  The plaintiff filed a memorandum in opposition to the motion to dismiss on June 27, 2011, to which the defendant filed a reply on July 19, 2011.   The matter was heard at short calendar on August 15, 2011.

DISCUSSION

“A motion to dismiss ․ properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.”  (Internal quotation marks omitted.)  Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009).  “When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light ․ In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.”  (Internal quotation marks omitted.)  Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009).

“[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss.”  (Internal quotation marks omitted.)  Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010).  “[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor ․ clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute.”  (Internal quotation marks omitted.)  Wilcox v. Webster Ins., Inc., supra, 294 Conn. 213–14.

The complaint alleges the following facts for the purposes of this motion.   The defendant is a sovereign Native American nation that engages in commercial business operations off the reservation, in addition to its activities as a sovereign on its own land.   The plaintiff worked as the general manager at the Two Trees Inn for three years.   Two Trees Inn, a hotel in Ledyard, is owned by the defendant acting under the name Mashantucket Pequot Gaming Enterprise.   Prior to his work at the Two Trees Inn, the plaintiff was employed as a general manager by the defendant at the Norwich Inn and Spa. While working at the Norwich Inn and Spa, the plaintiff opposed discrimination by Skip Hayward, a member of the Mashantucket Pequot Gaming Enterprise's board of directors.   Hayward was removed from the board of directors, in part because of the plaintiff's public opposition to the discrimination against male employees in favor of female employees.   As of December 2009, the plaintiff received the highest possible evaluations in every aspect of his job performance, but was subjected to false accusations of wrongdoing, very bad evaluations and threats of termination from employment once members of Hayward's family regained control of the Mashantucket Pequot Gaming Enterprise in January 2010.   Nothing had changed since the plaintiff's last outstanding evaluation other than the control of the corporate parent.   The plaintiff filed a complaint with the Connecticut commission on human rights and opportunities regarding the discrimination and was terminated by the defendant in retaliation for filing the complaint with the commission and for his previous opposition to the unlawful discriminatory conduct of his employer.

In its memorandum of law in support of its motion to dismiss, the defendant argues that as a federally recognized Indian tribe, it “is not subject to suit unless the U.S. Congress has unequivocally abrogated tribal sovereign immunity from suit or the Tribe, itself, has clearly expressed a waiver of its immunity in a specific forum.” ²  The defendant argues that neither abrogation or waiver is present;  thus, the Superior Court is without jurisdiction to hear this matter.   The defendant's memorandum of law states that the plaintiff filed a claim with the Connecticut commission on human rights and opportunities on September 21, 2010, which the defendant received notice of by an October 1, 2010 letter and subsequently, the complaint was dismissed for lack of jurisdiction.   The defendant argues it did not receive notice of the complaint filed with the commission until after the plaintiff had been terminated, but even taking the allegation that the defendant violated a state statute by terminating the plaintiff in retaliation as true for the purposes of the motion to dismiss, the Superior Court lacks jurisdiction due to tribal sovereign immunity from suit.

Furthermore, the defendant argues that it does not matter whether the plaintiff claims he worked at a facility off tribal lands or that this is a commercial enterprise when applying the precedent of the United States and Connecticut Supreme Courts.   In reply to the plaintiff's arguments in opposition, the defendant argues that there is no distinction based on where the activities occurred or whether it is a governmental or commercial activity of the tribe.

The plaintiff counters that the defendant was engaged in “a wholly commercial activity conducted for profit entirely off the reservation.”   The plaintiff argues that the defendant is trying to operate a business, off tribal lands and having nothing to do with tribal activities without complying with state employment laws and that no court has extended the doctrine of tribal immunity as far as the defendant is asking in the present matter.   The plaintiff argues at a minimum the motion to dismiss should be denied to allow discovery related to the claimed immunity.

“The [Mashantucket Pequot Tribal Nation] is a federally recognized Indian tribe.”  Chayoon v. Sherlock, 89 Conn.App. 821, 827, 877 A.2d 4, cert. denied, 276 Conn. 913, 888 A.2d 83 (2005), cert. denied, 1574 U.S. 1138, 126 S.Ct. 2042, 164 L.Ed.2d 797 (2006).  “Tribal sovereign immunity is governed by federal law.”  Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007).  “[A]n Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity.”  Kiowa Tribe of Oklahoma v. Mfg. Technologies, Inc., 523 U.S. 751, 754, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998).  “[The United States Supreme Court has] recognized that a State may have authority to tax or regulate tribal activities occurring within the State but outside Indian country ․ To say substantive state laws apply to off-reservation conduct, however, is not to say that a tribe no longer enjoys immunity from suit ․ There is a difference between the right to demand compliance with state laws and the means available to enforce them.”  (Citations omitted.)  Id., 755.  “Tribal sovereign immunity is dependent upon neither the location nor the nature of the tribal activities.”  Beecher v. Mohegan Tribe of Indians of Connecticut, supra, 135.

“Though the doctrine of tribal immunity is settled law ․ [the United States Supreme Court noted] that it developed almost by accident.”  Kiowa Tribe of Oklahoma v. Mfg. Technologies, Inc., supra, 523 U.S. 756.  “There are reasons to doubt the wisdom of perpetuating the doctrine.   At one time, the doctrine of tribal immunity from suit might have been thought necessary to protect nascent tribal governments from encroachments by States.   In our interdependent and mobile society, however, tribal immunity extends beyond what is needed to safeguard tribal self-governance.   This is evident when tribes take part in the Nation's commerce.   Tribal enterprises now include ski resorts, gambling, and sales of cigarettes to non-Indians ․ In this economic context, immunity can harm those who are unaware that they are dealing with a tribe, who do not know of tribal immunity, or who have no choice in the matter, as in the case of tort victims.   These considerations might suggest a need to abrogate tribal immunity, at least as an overarching rule.”  (Citations omitted.)  Id., 758.   In Kiowa Tribe of Oklahoma v. Mfg. Technologies, Inc., the respondent suggested that the United States Supreme Court confine tribal sovereign immunity to reservations or to noncommercial activities, the Court stated, however:  “We decline to draw this distinction in this case, as we defer to the role Congress may wish to exercise in this important judgment.”  Id.

Comparing tribal sovereign immunity and sovereign immunity for foreign countries, the United States Supreme Court reasoned:  “In both fields, Congress is in a position to weigh and accommodate the competing policy concerns and reliance interests.   The capacity of the Legislative Branch to address the issue by comprehensive legislation counsels some caution by us in this area.   Congress has occasionally authorized limited classes of suits against Indian tribes and has always been at liberty to dispense with such tribal immunity or to limit it ․ It has not yet done so.”  (Citation omitted;  internal quotation marks omitted.)  Id., 759.   The scope of tribal sovereign immunity is so broad that it “bars even compulsory counterclaims filed against a tribe in an action commenced by the tribe.”  Beecher v. Mohegan Tribe of Indians of Connecticut, supra, 282 Conn. 136.

In the present case, the defendant is immune from suit in the Superior Court because tribal sovereign immunity has not been abrogated by the United States Congress, nor waived by the defendant.   The legal history of dealings between the United States and federally recognized Indian tribes has been, at times, inconsistent;  see, e.g., S. Pevar, The Rights of Indians and Tribes:  The Basic American Civil Liberties Union Guide to Indian and Tribal Rights (Southern Illinois University Press 2d Ed.1992) p. 1–9;  the case law in this area is clear:  any changes limiting or eliminating tribal sovereign immunity must come from the legislature.   The plaintiff has not identified any change in legislation or in the case law indicating a departure from the broad scope of sovereign immunity articulated in Kiowa Tribe of Oklahoma v. Mfg. Technologies, Inc., supra, 523 U.S. 751.   The plaintiff's argument that sovereign immunity does not apply because the claim relates to a wholly economic activity, occurring off tribal lands may be a policy reason for changing the scope of tribal sovereign immunity in the current economic context.   The argument is rejected expressly, however, by precedent of the United States and the Connecticut Supreme Courts.   Tribal sovereign immunity does not depend on where the activity took place or the nature of the activity.   Thus, even considering the allegations in the complaint in their most favorable light, the Superior Court lacks subject matter jurisdiction.

As previously noted, it is the plaintiff's burden to prove subject matter jurisdiction and the plaintiff must allege facts to demonstrate clearly that he is the proper party to invoke judicial resolution of the dispute.   The plaintiff has failed to allege any facts or cite to any supporting law that would indicate abrogation or waiver of tribal sovereign immunity in the present case and, therefore, the court is satisfied that it may base its determinations on the allegations contained in the complaint, without allowing for additional discovery.   See Vanstaen–Holland v. Lavigne, Superior Court, judicial district of New London, Docket No. CV 08 5007659 (February 26, 2009, Martin, J.) [47 Conn. L. Rptr. 306] (granting the motion to dismiss based on the allegations in the complaint without additional discovery or a hearing).

CONCLUSION

For the foregoing reasons, the defendant's motion to dismiss the complaint is granted.

Cosgrove, J.

FOOTNOTES

FN1. In support of its argument, the defendant attached the following to its memorandum of law in support of the motion to dismiss:  (1) the plaintiff's affidavit of illegal discriminatory practice filed with the Connecticut commission of human rights and opportunities on September 21, 2010, the plaintiff's amendment to his complaint of illegal discriminatory practice filed on September 27, 2010 and the October 1, 2010 letter to the defendant notifying it of the complaint, (2) the October 22, 2010 letter from the defendant to the commission stating that the defendant is exempt and the commission lacks jurisdiction because of tribal sovereign immunity, (3) the October 30, 2010 claimant's reply to respondent's letter dated October 22, 2010, (4) the November 4, 2010 respondent's reply to claimant's response dated October 30, 2010 and (5) the January 14, 2011 merit assessment review by the Connecticut commission on human rights and opportunities dismissing the complaint because the respondent is exempt..  FN1. In support of its argument, the defendant attached the following to its memorandum of law in support of the motion to dismiss:  (1) the plaintiff's affidavit of illegal discriminatory practice filed with the Connecticut commission of human rights and opportunities on September 21, 2010, the plaintiff's amendment to his complaint of illegal discriminatory practice filed on September 27, 2010 and the October 1, 2010 letter to the defendant notifying it of the complaint, (2) the October 22, 2010 letter from the defendant to the commission stating that the defendant is exempt and the commission lacks jurisdiction because of tribal sovereign immunity, (3) the October 30, 2010 claimant's reply to respondent's letter dated October 22, 2010, (4) the November 4, 2010 respondent's reply to claimant's response dated October 30, 2010 and (5) the January 14, 2011 merit assessment review by the Connecticut commission on human rights and opportunities dismissing the complaint because the respondent is exempt.

FN2. The defendant argues that the plaintiff is well aware that the Mashantucket Pequot Tribal Nation's laws and the Mashantucket Pequot Gaming Enterprise's policies provide the plaintiff with a forum to challenge alleged wrongful discharge.   The defendant has waived its tribal immunity from suit in the Mashantucket Pequot Tribal Court for these types of claims.   See Mashantucket Pequot Tribal Laws, tit.   VIII, c.1, § 2. See also Mashantucket Pequot Tribal Laws, tit.   XX, c.1, §§ 1 & 2..  FN2. The defendant argues that the plaintiff is well aware that the Mashantucket Pequot Tribal Nation's laws and the Mashantucket Pequot Gaming Enterprise's policies provide the plaintiff with a forum to challenge alleged wrongful discharge.   The defendant has waived its tribal immunity from suit in the Mashantucket Pequot Tribal Court for these types of claims.   See Mashantucket Pequot Tribal Laws, tit.   VIII, c.1, § 2. See also Mashantucket Pequot Tribal Laws, tit.   XX, c.1, §§ 1 & 2.

Cosgrove, Emmet L., J.