Connecticut Fights Land Suit by Faction of Splintered Tribe

HARTFORD, Conn. (CN) – Fighting a $610 million claim for Native American land seized over a century ago, Connecticut told a federal judge that the Schaghticoke Tribal Nation lacks standing because of its unique distinction as the only tribe to lose federal recognition.

The tribe filed its lawsuit in October 2016, demanding belated compensation for about 2,000 acres of land Connecticut seized between 1801 and 1918.

In its first public response to the case, Connecticut moved Wednesday to dismiss based on precedent, both state and federal, over what it called “the historical tribe referred to as the Schaghticoke.”

These courts “have determined on multiple occasions,” according to the motion, “that the Schaghticoke is divided into multiple factions and that the tribe’s leadership is the subject of an ‘ongoing and hotly contested dispute.’”

Last year’s case was filed by the Schaghticoke Tribal Nation, or STN, but Connecticut notes that the “so-called Schaghticoke Indian Tribe,” which it calls SIT, is not a party to this case.

“STN makes no reference to the SIT faction — or any other faction — in its complaint,” the motion states.

Connecticut notes that separate factions have claimed leadership of the tribe in filings with its Department of Energy and Environmental Protection as recently as January 2017.

Schaghticoke Tribal Nation Chief Richard Velky in October 2016, announcing his tribe’s lawsuit against the state of Connecticut. (Photo by Christine Stuart, CNS)

The argument did not worry Schaghticoke Tribal Nation Chief Richard Velky, however. “We look forward to responding to the State’s motion to dismiss, which we are confident will be denied,” Velky said Wednesday in an email.

Connecticut’s motion also cites sovereign immunity as a basis to dismiss. Assistant Attorney General Robert Deichert said Supreme Court precedent is consistent that sovereign immunity generally bars all claims for monetary damages against state officials in their official capacities.

Though the Supreme Court has held that takings claims can be an exception to the general rule on sovereign immunity, Deichert said “that exception does not help STN here.”

“STN’s taking claims are based on events that occurred before 1818 when article first, § 11 of the Connecticut Constitution came into existence and before 1896 when the United States Supreme Court first held that the Fifth Amendment’s just compensation requirement applied to the states,” according to the motion.

So even if it did have a protected interest, the motion continues, “well over half of the land on which STN bases its taking claims was taken well over a decade before article first, § 11 of the Connecticut Constitution existed and nearly a century before the federal just compensation requirement applied to the states.”

“STN has not met — and cannot meet — its burden to allege a taking claim under existing precedent for several reasons, and that should be fatal to its taking claims,” the motion concludes.

The Schaghticoke Tribal Nation has asked the court for an extension to file its next motion. Chief Velky and the tribe are represented by Mark Lerner, Joseph Lieberman and Christine Montenegro, of the Manhattan firm Kasowitz, Benson, Torres, and Friedman, and by Austin Tighe and Michael Angelovich of the Austin, Texas, firm Nix, Patterson and Roach.

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