A Hartford Superior Court judge dismissed some of the Schaghticoke Tribal Nation’s $610 million lawsuit against Connecticut over land rights dating back to the 18th century.
In his ruling partially dismissing the claims, Judge Thomas Moukawsher wrote the state appears to be correct in arguing it doesn’t have to pay the nation since it never owned the land.
Moukawsher wrote the nation had not asserted a claim for violating the Schaghticoke’s constitutional right against the government taking property without compensation. Therefore, the judge ruled, “its claims for compensation over the alleged lost real estate must be dismissed.” In addition, Moukawsher wrote, the claims asserted by the nation for the alleged lost real estate are barred by sovereign immunity.
Moukawsher ruled the nation’s remaining claims, alleged ownership of certain mortgages, are not affected by the ruling.
Austin Tighe, one of the nation’s attorneys, said in an email Thursday the judge’s ruling could still put the entire $610 million in play. “As mortgagee, STN had a constitutionally protected property interest in every one of these mortgages, all 102 of them,” said Tighe, of counsel at Nix, Patterson & Roach in Texas.
The judge noted the nation relied on two legislative resolutions from the 1700s in making its claims.
The 1736 resolution only allows the nation to “continue” on the land until the General Assembly decided otherwise, Moukawsher wrote. The 1752 act grants the nation the “liberty” to improve and cut wood on the land so long as the General Assembly allowed it.
“Telling someone they can stay somewhere, fix it up, and cut wood for themselves on it until the owners says otherwise doesn’t sound very much like the owner is giving that person the land,” Moukawsher wrote. “This conclusion is even easier to reach under the legal rules governing land transfers that applied in the 18th century and before and still apply today.”
Moukawsher added that “With only the 1736 language and the 1752 language to look to, it becomes obvious that rights that can be instantly and capriciously taken away are no rights at all. … No competent court at this time would hold that either of these acts of the General Assembly gave this land to the Schaghticokes.”
The nation claims in the underlying lawsuit that the state seized 2,000 acres from a 2,400-acre reservation in Western Connecticut between 1801 and 1918 without proper payment.
The judge wrote the final language of both acts made it clear that whatever the General Assembly was letting the nation do had no value because everything was done at the pleasure of the General Assembly.
Tighe said a possible appeal to the Connecticut Supreme Court would be announced at the appropriate time.
“We respectfully disagree with the court’s ruling dismissing one-half of our constitutional takings claim, and we look forward to proceeding on our other six claims,” Tighe wrote. “As the court expressly stated, STNs remaining claims, including our mortgage taking claims, are unaffected by this ruling.”
The six remaining claims are unconstitutional taking of mortgage ownership interest in violation of the Fifth Amendment of the U.S. Constitution; unconstitutional taking of mortgage ownership interest in violation of Article 1, Section 11 of the Connecticut Constitution; violation of constitutional due process; breach of fiduciary duty; and claims for injunctive and declaratory relief.
In his ruling, Moukawsher never cited the friction between the nation and a rival faction, the Schaghticoke Indian Tribe. The tribe attempted to block the lawsuit three months ago. In a motion to intervene, the tribe claimed it “exclusively possesses, controls, and maintains title to the Schaghticoke reservation in Kent including the land and funds that are the subject matter of this lawsuit.” That motion is pending.
Assisting Tighe are partner Michael Angelovich of Nix Patterson, and former Sen. Joseph Lieberman, Mark Lerner and Christine Montenegro, all of Kasowitz, Benson, Torres & Friedman, an Am Law 200 firm.
Samuel Carmody, a spokesman for the Connecticut attorney general, said the state is reviewing the decision, but declined to comment further.