The facts of the Connecticut Appellate Court's opinion in Schaghticoke Tribal Nation v. Connecticut, No. AC 43811 (Sep. 27, 2022), really stand out.
Back in the day -- and we mean waaaaay back in the day -- as in 1801! -- the State of Connecticut sold some land which in 1752 (!) the Colony of Connecticut had allowed members of the Schaghticoke tribe to use,.
Flash forward to present day when the Nation sued, alleging the 1801 sale was a breach of the State's trust duties, and a taking of the Nation's private property. The short story is that the trial court dismissed and the appellate court affirmed. But the real interesting story is the longer one, and we hope you find the time to read the opinion's factual recitation.
That longer story starts in 1736 when the tribe settled in an area along the Housatonic River. In response, the General Assembly "permitted the tribe to '[continue] where they are [now settled during] the [pleasure]" of the government. Slip op. at 3. A few years later in 1752, the Colony adopted a resolution permitting the tribe to use the land to cut timber (again, at the government's "pleasure"). Next:
In 1801, the state appointed overseer of the tribe wrote to the General Assembly requesting permission to sell a portion of the tribe’s land in order to settle a debt incurred by the tribe. The state granted that request and passed an instrument that established a committee of sale with respect to that land, authorized the committee to build several dwellings on the land, and empowered the overseer to manage the proceeds and any mortgage securities obtained.
Id.
Then "[m]pre than two centuries later," in 2016, the tribe instituted a lawsuit alleging the 1801 sale was a breach of trust and a taking. Surprisingly, the State's objections did not apparently include a statute of limitations defense. Instead, it asserted the Nation lacked standing, and the claims were barred by sovereign immunity. The trial court dismissed, concluding that the Nation lacked a property interest since any interest in the land was subject to the "pleasure" of the government by the 1752 resolution's terms. What the Colony granted, the Colony could take away. No property meant no taking.
The appeals court agreed. Rather than go into great detail, we urge you to read it. Not so much because it represents some new landmark rule about whether a grant to the Nation of an occupancy interest qualifies as "property" for takings purposes, but just because it is a fascinating look at how relationships entered into centuries ago can result in present-day controversies.
We suspect this one is not over. The case relied on by the Nation to support its argument that the right of possession granted in 1752 recognized more than some kind of at-will occupancy -- Shoshone Tribe of Indians of Wind River Reservation in Wyoming v. United States, 299 U.S. 476 (1937) --
The Connecticut court concluded:
The plaintiff first argues that the right of occupancy conveyed to it through the 1752 resolve is tantamount to a property right under state law.5 In support of this contention, the plaintiff relies solely on a United States Supreme Court case, Shoshone Tribe of Indians of Wind River Reservation in Wyoming v. United States, 299 U.S. 476, 496–97, 57 S. Ct. 244, 81 L. Ed. 360 (1937) (Shoshone), which held that the right of occupancy granted to the Shoshone tribe by the federal government constituted a compensable property interest for the purpose of assessing a taking claim under the fifth amendment to the United States constitution. We deem this reliance mistaken. On its face, Shoshone concerned a dispute between a federally recognized tribe and the federal government over a treaty concerning the tribe’s rights with respect to the land at issue. Id., 485–86. The plaintiff offers no Connecticut authority in support of the proposition that federal precedent concerning federal tribal matters is binding on disputes between states and tribes recognized by those states.
Slip op. at 6. And, the treaty in Shoshone recognized the tribe's "absolute and undisturbed use" of the property, whereas the 1752 resolution was narrower and recognized use for chopping wood and timber. And most importantly, that use was "during the pleasure" of the government. Slip op. at 6-7.
Check out pages 7-8 for more about the nature of these type of property interests, and whether there needs to be a waiver of sovereign immunity before a takings claim may proceed.
Have we seen the last of this case? We're guessing no.
Schaghticoke Tribal Nation v. Connecticut, No. AC 43811 (Conn. App. Sep. 27, 2022)
