Schaghticoke Tribal Nation v. State

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SCHAGHTICOKE TRIBAL NATION v. STATE
OF CONNECTICUT ET AL.
(AC 43811)
Alvord, Elgo and Palmer, Js.

Syllabus

The plaintiff, which consists of members of the Schaghticoke tribe, an
indigenous tribe recognized by the state, brought an action against the
defendants, the state of Connecticut and the Commissioner of Energy
and Environmental Protection, claiming an unconstitutional taking of
certain of its real property and a breach of fiduciary duty. In 1752, the
General Assembly enacted a resolution permitting members of the tribe
to use certain land for improvement and for the cutting of wood and
timber for their own use ‘‘during the pleasure of [the] Assembly.’’ There-
after, in 1801, the General Assembly granted a request of the state
appointed overseer of the tribe for permission to sell a portion of the land
in order to settle a debt incurred by the tribe, authorized a committee
of sale to build several dwellings on the land and empowered the over-
seer to manage the proceeds and any mortgage securities obtained. The
plaintiff’s action, brought in 2016, alleged, inter alia, that the 1801 land
sale amounted to an unconstitutional taking without just compensation
under the Connecticut and United States constitutions. The plaintiff
requested various measures in its prayer for relief, including monetary
relief, with the aim of making tribal funds whole. The trial court granted
the defendants’ motion to dismiss the plaintiff’s complaint, and the
plaintiff appealed to this court. Held:
1. The trial court properly dismissed the plaintiff’s takings claims with
respect to the sale of the land at issue as they were barred by sovereign
immunity, that court having correctly determined that the revocable
right of occupancy granted to the tribe through the 1752 resolution was
not tantamount to a cognizable property right under state law that could
form the basis of a takings claim, as the language in that resolution did
not describe the plaintiff’s rights to the land as exclusive, it did not
reflect a statutory waiver of the state’s sovereign immunity, and the
ability to use the land was granted at the pleasure of the General Assem-
bly.
2. The trial court properly dismissed the plaintiff’s breach of fiduciary duty
claims, as they were barred by sovereign immunity because, although
the plaintiff’s prayer for relief with respect to these claims requested that
the defendants take certain actions, this relief was expressly grounded
in the plaintiff’s requests for funds from the defendants in order to make
up for the injury it alleges it suffered at the hands of the defendants,
and the plaintiff failed to cite to any statute in support of its claims that
entitled it to a monetary award and did not cite to any legislative materi-
als that contained a waiver of the state’s sovereign immunity regarding
claims the plaintiff might have against it.
(One judge concurring)
Argued February 9—officially released September 27, 2022

Procedural History

Action to recover damages for, inter alia, the alleged
unconstitutional taking of the plaintiff’s property, and
for other relief, brought to the Superior Court in the
judicial district of Hartford, and transferred to the Com-
plex Litigation Docket; thereafter, the court, Mou-
kawsher, J., granted the defendants’ motions to dismiss
and rendered judgment thereon, from which the plain-
tiff appealed to this court. Affirmed.
John R. Weikart, with whom was James P. Sexton,
for the appellant (plaintiff).
Daniel Salton, assistant attorney general, with whom,
on the brief, were William Tong, attorney general, Clare
Kindall, solicitor general, Matthew I. Levine, deputy
associate attorney general, and David H. Wrinn and
Michael W. Lynch, assistant attorneys general, for the
appellees (defendants).
Opinion

ELGO, J. This appeal arises out of a protracted dis-
pute between the plaintiff, the Schaghticoke Tribal
Nation, and the defendants, the state of Connecticut
and Robert Klee, the Commissioner of Energy and Envi-
ronmental Protection. The plaintiff claims that it is
owed compensation pursuant to the state’s sale of land
and associated mortgages in which it claims to have a
property interest, and thus filed a complaint alleging
an unconstitutional taking of its property without com-
pensation and a breach of fiduciary duty by the defen-
dants. The trial court rendered judgment dismissing the
complaint, from which the plaintiff has appealed. On
appeal, the plaintiff challenges the judgment of the trial
court dismissing its complaint in its entirety. We affirm
the judgment of the trial court.
The following facts and procedural history are rele-
vant to this appeal. The plaintiff consists of members
of the Schaghticoke tribe (tribe), an indigenous tribe
recognized by the state in General Statutes § 47-59a (b).
The state’s relationship with the tribe dates back several
centuries. In 1736, in response to the tribe’s settlement
of an area along the Housatonic River, the General
Assembly enacted a resolution (1736 resolve) permit-
ting the tribe to ‘‘[continue] where they are [now settled
during] the [pleasure] of this [governmental body]
. . . .’’ The General Assembly further addressed the
tribe’s rights with respect to that area in 1752, when it
enacted another resolution (1752 resolve) permitting
the tribe’s use of additional land for ‘‘improvement and
for the cutting of wood and timber for their own use
. . . during the pleasure of this Assembly.’’
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 commit-
tee to build several dwellings on the land, and empow-
ered the overseer to manage the proceeds and any mort-
gage securities obtained.
More than two centuries later, on October 13, 2016,
the plaintiff brought the present action by way of a six
count complaint. In the first and second counts, the
plaintiff alleged that the state’s conduct with respect
to the 1801 land sale and creation of the associated
mortgages amounted to an unconstitutional taking of
property without just compensation in violation of the
United States and Connecticut constitutions, respec-
tively. In the third count, the plaintiff claimed that the
allegedly unconstitutional taking of its property violated
its due process rights under article first, § 8, of the
Connecticut constitution. The fourth through sixth
counts alleged that the defendants had violated a fidu-
ciary duty to the plaintiff and requested a number of
measures, including monetary relief as set forth in the
fourth count, with the aim of ‘‘[making] tribal funds
. . . whole.’’
On February 14, 2017, the defendants filed a motion
to dismiss. In their accompanying memorandum of law,
they argued that (1) the plaintiff lacked standing as a
result of an alleged ongoing leadership dispute within
the tribe and (2) the plaintiff’s claims were barred by
the doctrine of sovereign immunity.1 The plaintiff filed
an opposition to the motion to dismiss accompanied
by a memorandum of law, arguing that it appropriately
represented the interest of the tribe for standing pur-
poses and that the defense of sovereign immunity was
inapplicable to its takings, due process, and breach of
fiduciary duty claims.
Following transfer of the action to the Complex Liti-
gation Docket on July 24, 2017, the court ordered the
parties to prepare a joint case management report in
advance of a status conference, which they submitted
to the court on August 9, 2017. In their report, the
parties expressed their desire to resolve the issue of
the plaintiff’s standing and the applicability of General
Statutes § 47-66i before considering any alternative
grounds for dismissal.
The court heard argument on the standing issue on
September 17, 2017. On September 19, 2017, the court
denied the defendants’ motion to dismiss on the ground
that the plaintiff lacked standing to bring the action. The
court reasoned that, regardless of whether the plaintiff
consisted of the entirety of the tribe or a mere faction,
the plaintiff sufficiently represented the interest of indi-
vidual members of the tribe for the purposes of bringing
the present action.2
The parties and the court next addressed the issue
of whether the plaintiff’s property interest in the land
at issue was sufficient to survive dismissal. After several
rounds of supplemental briefs and memoranda on this
issue, the parties appeared for argument before the
court on December 18, 2017.
On December 27, 2017, the court granted in part the
defendants’ motion to dismiss. Turning first to the text
of the 1736 and 1752 resolves, the court determined
that neither resolve contained language that would have
been understood to signify a formal conveyance of a
property interest at the time of their ratification. In
response to the plaintiff’s contention that even a mere
ability to occupy the land created a property right that
entitled the plaintiff to compensation following the
state’s sale of the land, the court undertook a similar
analysis. The court observed that the resolves permitted
the tribe’s presence on the land ‘‘during the pleasure’’
of the General Assembly, meaning that ‘‘the General
Assembly . . . had the right to take away’’ the tribe’s
ability to use the land. The court further cited several
cases holding that a revocable license to access land
does not confer a property interest on its holder.3
On May 23, 2019, the plaintiff filed a motion for clarifi-
cation with respect to the status of its due process and
fiduciary claims against the defendants.4 Days later, the
court, sua sponte, opened the judgment ‘‘to prevent any
appeal period from running during the consideration
of [the plaintiff’s] motion and any outstanding matters
undecided.’’
The parties and the court then agreed on a briefing
schedule for the plaintiff’s remaining claims. Following
the submission of briefs by the parties and oral argu-
ment before the court, the court granted the defendants’
motion to dismiss as to the fiduciary claims and, accord-
ingly, dismissed the remainder of the plaintiff’s com-
plaint. The court held that, regardless of whether sover-
eign immunity was fatal to the plaintiff’s claims, the
plaintiff had not adequately demonstrated the existence
of a statutory or common-law fiduciary relationship
between it and the defendants such that its claims could
proceed. This appeal followed.
I
The plaintiff first claims that the court improperly
dismissed its takings claim with respect to the sale of
the land at issue. The plaintiff argues that the 1752
resolve created an ownership interest in the land at
issue that entitles it to compensation as a result of the
prior sale of the land. We disagree.
Our review of this claim is governed by the following
legal principles. ‘‘The standard of review for a court’s
decision on a motion to dismiss is well settled. A motion
to dismiss tests, inter alia, whether, on the face of the
record, the court is without jurisdiction. . . . [O]ur
review of the court’s ultimate legal conclusion and
resulting [determination] of the motion to dismiss will
be de novo. . . . When a . . . court decides a jurisdic-
tional question raised by a pretrial motion to dismiss,
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 alle-
gations, construing them in a manner most favorable
to the pleader. . . . The motion to dismiss . . .
admits all facts which are well pleaded, invokes the
existing record and must be decided upon that alone.’’
(Internal quotation marks omitted.) Gold v. Rowland,
296 Conn. 186, 200–201, 994 A.2d 106 (2010).
‘‘[T]he doctrine of sovereign immunity is not available
to the state as a defense to claims for just compensation
arising under article first, § 11, of the Connecticut con-
stitution. . . . When possession has been taken from
the owner, he is constitutionally entitled to any damages
which he may have suffered . . . .’’ (Internal quotation
marks omitted.) 184 Windsor Avenue, LLC v. State,
274 Conn. 302, 319, 875 A.2d 498 (2005). ‘‘The complaint,
to survive the defense of sovereign immunity, must
allege sufficient facts to support a finding of a taking of
[property] in a constitutional sense.’’ (Internal quotation
marks omitted.) Gold v. Rowland, supra, 296 Conn. 201.
‘‘It is axiomatic that government action cannot consti-
tute a taking when the aggrieved party does not have
a property right in the affected property. Whether one’s
interest or entitlement rises to the level of a protected
property right depends on the extent to which one has
been made secure by [s]tate or [f]ederal law in its enjoy-
ment.’’ (Internal quotation marks omitted.) 184 Wind-
sor Avenue, LLC v. State, supra, 274 Conn. 319.
A
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 fed-
eral tribal matters is binding on disputes between states
and tribes recognized by those states.
Even if we were to consider Shoshone as persuasive
authority, several key distinctions exist between its
facts and the circumstances of the present case. In
Shoshone, the treaty between the Shoshone and the
federal government stated explicitly that the land in
question ‘‘would be ‘set apart for the absolute and undis-
turbed use and occupation of the Shoshone Indians,’ ’’
and that ‘‘no persons, except for a few specially enumer-
ated, and governmental agents engaged in the discharge
of duties enjoined by law, should ‘ever be permitted to
pass over, settle upon, or reside’ in the territory so
reserved.’’ Id., 485–86. This language is far broader than
that contained in the 1752 resolve, which merely permit-
ted the tribe to use the land for ‘‘improvement and for
the cutting of wood and timber.’’ Notably, the 1752
resolve does not contain any language that defines the
tribe’s right to be present and chop wood on the land
as exclusive. Furthermore, it expressly conditions the
tribe’s ability to use the land as existing ‘‘during the
pleasure of [the General] Assembly,’’ a limitation not
present in the treaty in Shoshone.
Most critically, in Shoshone, Congress had statutorily
waived the federal government’s sovereign immunity
as it pertained to ‘‘any and all legal and equitable claims
. . . arising under or growing out of’’ the particular
treaty at issue between the Shoshone tribe and the
federal government. Shoshone Tribe of Indians of Wind
River Reservation in Wyoming v. United States, supra,
299 U.S. 484 n.1. The record before us does not reflect
any such waiver on the part of the state concerning
future litigation of claims arising from the 1752 resolve.
For those reasons, we conclude that the plaintiff’s use
of Shoshone is an attempted shortcut around the proper
sovereign immunity analysis and inapposite to our reso-
lution of the present matter.
Indeed, the United States Supreme Court has held
that, in a federal context, ‘‘Indian occupancy, not specif-
ically recognized as ownership by action authorized by
Congress, may be extinguished by the [g]overnment
without compensation.’’ Tee-Hit-Ton Indians v. United
States, 348 U.S. 272, 288–89, 75 S. Ct. 313, 99 L. Ed. 314
(1955) (Tee-Hit-Ton). In Tee-Hit-Ton, a clan of Tlingit
Indians brought a takings claim arising out of the federal
government’s sale of land that the plaintiffs previously
had used for cutting timber. Id., 273. In response to the
plaintiffs’ assertion that their interest in the land was
sufficient for the government’s sale of the land to consti-
tute a taking,6 the federal government argued that ‘‘the
[plaintiffs’] property interest, if any, is merely that of
the right to the use of the land at the [g]overnment’s will;
that Congress has never recognized any legal interest
of [the plaintiffs] in the land and therefore without such
recognition no compensation is due the [plaintiffs] for
any taking by the United States.’’ Id., 277.
The United States Supreme Court first observed that
the plaintiffs could not pinpoint any statutory language
granting them ownership in the land at issue, which
necessarily meant that the plaintiffs had ‘‘no rights
against taking or extinction by the United States pro-
tected by the [f]ifth [a]mendment or any other principle
of law.’’ Id., 278, 285. The court then reviewed evidence
introduced at trial before the United States Court of
Claims and further acknowledged the similarities
between the plaintiffs’ relationship to and interactions
with the land and that of the ‘‘nomadic tribes of the
[lower forty-eight states],’’ whom the court previously
had held were not entitled to compensation for govern-
ment takings in the absence of formal title to the land.
Id., 285–90. Accordingly, the court adhered to its estab-
lished precedent concerning similar claims brought by
tribes from the continental United States and held that
the plaintiffs were not entitled to compensation. See id.
Although we are mindful that neither Shoshone nor
Tee-Hit-Ton bears directly on disputes between tribes
and individual states, we find the reasoning in Tee-Hit-
Ton more analogous to the present matter. As was the
case in Tee-Hit-Ton, the plaintiff in the present case is
unable to furnish any evidence demonstrating that it
possessed an unconditional permanent right to remain
on the land such that a legally cognizable property inter-
est could arise. See id., 278–79 (‘‘There is no particular
form for congressional recognition of Indian right of
permanent occupancy. It may be established in a variety
of ways but there must be the definite intention by
congressional action or authority to accord legal rights,
not merely permissive occupation.’’ (Emphasis
added.)). In our view, the principle articulated in Tee-
Hit-Ton differentiating an ownership right from permis-
sive occupation is consonant with our prior holdings
on this issue. See, e.g., Murphy, Inc. v. Remodeling,
Etc., Inc., 62 Conn. App. 517, 522, 772 A.2d 154 (‘‘[a]
license in real property is a mere privilege to act on
the land of another, which does not produce an interest
in the property’’ (internal quotation marks omitted)),
cert. denied, 256 Conn. 916, 773 A.3d 945 (2001). We
therefore conclude that the court correctly determined
that the plaintiff did not possess a sufficient ownership
interest in the land to overcome the bar of sovereign
immunity.
B
The plaintiff alternatively argues that the court mis-
construed the language of the 1752 resolve in conclud-
ing that it conveyed only a revocable license––rather
than a right of ownership or its equivalent––to the tribe.
Our review of that issue of statutory interpretation is
plenary. See Seramonte Associates, LLC v. Hamden,
202 Conn. App. 467, 476, 246 A.3d 513 (‘‘[i]ssues of
statutory construction raise questions of law, over
which we exercise plenary review’’ (internal quotation
marks omitted)), cert. granted, 336 Conn. 923, 246 A.3d
492 (2021).
‘‘The process of statutory interpretation involves the
determination of the meaning of the statutory language
as applied to the facts of the case, including the question
of whether the language does so apply. . . . When con-
struing a statute, [o]ur fundamental objective is to
ascertain and give effect to the apparent intent of the
legislature. . . . In other words, we seek to determine,
in a reasoned manner, the meaning of the statutory
language as applied to the facts of [the] case, including
the question of whether the language actually does
apply. . . . In seeking to determine that meaning, Gen-
eral Statutes § 1-2z directs us first to consider the text
of the statute itself and its relationship to other statutes.
If, after examining such text and considering such rela-
tionship, the meaning of such text is plain and unambig-
uous and does not yield absurd or unworkable results,
extratextual evidence of the meaning of the statute shall
not be considered.’’ (Internal quotation marks omitted.)
Id., 476–77.
In our view, the court properly concluded that the
plain text of the 1752 resolve granted the tribe no more
than a right to occupy the land which the state could
revoke at any given time. As stated previously, the 1752
resolve provides: ‘‘Resolved by this Assembly, that the
said Indians, the memorialists, shall have the liberty,
and they have hereby liberty granted to them, for their
improvement and for the cutting of wood and timber
for their own use only, the whole of the twenty-fifth
lot, as the lots are now laid out, and also the equal half
of the twenty-fourth lot on the southward part thereof
[adjoining] to such twenty-fifth lot, and this to be
improved by said Indians as aforesaid during the plea-
sure of this Assembly.’’ Our examination of the text of
a legislative enactment is guided by the principle that,
‘‘[i]n the absence of a definition of terms in the statute
itself, [w]e may presume . . . that the legislature
intended [a word] to have its ordinary meaning in the
English language, as gleaned from the context of its
use. . . . Under such circumstances, it is appropriate
to look to the common understanding of the term as
expressed in a dictionary.’’ (Internal quotation marks
omitted.) Jacques v. Commissioner of Energy & Envi-
ronmental Protection, 203 Conn. App. 419, 443, 249
A.3d 40, cert. denied, 336 Conn. 938, 249 A.3d 352 (2021).
According to the 1762 edition of Jacob’s Law Diction-
ary, a liberty is defined as ‘‘a [privilege] held by [grant]
or [prescription], by which [men] enjoy [some benefit]
. . . in a more general [signification], it is [said] to be
a [power] to do as one thinks fit . . . .’’ G. Jacob, A
New Law Dictionary (8th Ed. 1762). Similarly, a license
is defined as ‘‘a [power] or [authority] given to a [man]
to do some lawful act . . . .’’ Id. In both instances,
through their definitions’ references to ‘‘power’’ and
‘‘privilege,’’ it is clear that holding a liberty or a license
relates to the ability to carry out certain actions. Con-
spicuously absent from either definition is a link
between the term ‘‘liberty’’ or ‘‘license’’ and any con-
crete property rights or interests. In light of these defini-
tions, we agree with the court’s determination that the
1752 resolve merely permitted the tribe to engage in
certain behaviors––being physically present on the
land, chopping wood, and making ‘‘improvements’’ to
the property.
We also find instructive Connecticut courts’ interpre-
tation of similar language throughout the years. In
Chalker v. Dickinson, 1 Conn. 509, 514 (1816), our
Supreme Court was tasked with evaluating a resolve
permitting one Ambrose Kirkland ‘‘liberty and license
. . . to use and occupy’’ certain land designated for
fishing. (Emphasis omitted.) At the time the General
Assembly enacted the resolve, a 1783 act was in effect
barring the general public from fishing on the land at
issue; the resolve in question essentially exempted Kirk-
land from the 1783 act. Id., 517. (Gould, J., concurring).
Following the General Assembly’s 1808 repeal of the
1783 act, the status of Kirkland’s rights with respect to
the fishing area was left unclear. Id., 517–18. (Gould,
J., concurring).
Writing for our Supreme Court, Chief Justice Zepha-
niah Swift first reasoned that, had the General Assembly
sought to award a ‘‘new’’ right to Kirkland, such as
‘‘exclusive’’ rights to use the area, ‘‘very different lan-
guage would have been proper.’’ Id., 514. Elaborating
further in his concurring opinion, Justice Gould noted
that the resolve ‘‘[did] not import to grant . . . what
was not before [Kirkland’s] own . . . or to establish a
right already vested in him.’’ Id., 517. Justice Gould
also contrasted the resolve’s use of language such as
‘‘ ‘liberty’ ’’ and ‘‘ ‘license’ ’’ with ‘‘right, title, interest,
franchise, or any term of similar import,’’ suggesting
that the former were ‘‘terms almost appropriate to
denote a matter of mere [favor] or indulgence’’ as
opposed to formal conferrals of rights. (Emphasis omit-
ted.) Id.; see also East Haven v. Hemingway, 7 Conn.
186, 198 (1828) (use of ‘‘give, grant and ratify’’ in legisla-
tive instrument signifies bestowal of new rights rather
than affirmation of preexisting rights (internal quota-
tion marks omitted)).
After applying these principles to the 1752 resolve,
we are convinced that the trial court’s analysis of the
text was proper. The 1752 resolve does not refer to any
‘‘right,’’ ‘‘title,’’ ‘‘interest,’’ or ‘‘franchise’’ in the land that
was to be granted to the tribe. In contrast, the resolve
speaks of the tribe’s status as to the land only in terms
of a ‘‘liberty.’’ We also note that, as exemplified by the
resolve in Chalker, the General Assembly regarded (as
did courts of appeal tasked with interpreting its
resolves) the grant of a ‘‘liberty’’ and a ‘‘license’’ inter-
changeably; as noted in part I A of this opinion, this
court explicitly has held that a license with respect to
land ‘‘does not produce an interest in the property.’’
Murphy, Inc. v. Remodeling, Etc., Inc., supra, 62 Conn.
App. 522.
Furthermore, it follows by implication that, by giving
the tribe the ability to use the land ‘‘at the pleasure of
[the General] Assembly,’’ that ability would have been
revocable at any time. See, e.g., Black’s Law Dictionary
(11th Ed. 2019) pp. 124–25 (defining ‘‘pleasure appoint-
ment’’ in public employment context as ‘‘assignment
. . . that can be taken away at any time, with no require-
ment for cause, notice, or a hearing’’). In our view, the
use of such language greatly weakens any claim the
plaintiff could have to a protected property right in the
land. See A. Gallo & Co. v. Commissioner of Environ-
mental Protection, 309 Conn. 810, 825, 73 A.3d 693
(2013) (‘‘[w]hether one’s interest or entitlement rises
to the level of a protected property right depends upon
the extent to which one has been made secure by [s]tate
or [f]ederal law in its enjoyment’’ (internal quotation
marks omitted)), cert. denied sub nom. A. Gallo & Co.
v. Esty, 572 U.S. 1028, 134 S. Ct. 1540, 188 L. Ed. 2d
581 (2014). Such a reading also is supported by the
commonly held meaning of the term ‘‘license’’ at the
time of the 1752 resolve. As the trial court emphasized in
its memorandum of decision, the definition of ‘‘license’’
also provided that, ‘‘if [a] license was not given for a
specified time it may be ‘countermanded’ at any time.’’
In light of the foregoing, we conclude that the court
properly determined that the 1752 resolve did not grant
the tribe a cognizable property right that could form the
basis of a takings claim. As a result, the court properly
concluded that the plaintiff’s takings claims are barred
by sovereign immunity.
II
The plaintiff also claims that the court improperly
dismissed its breach of fiduciary duty claims in counts
four, five, and six for lack of standing. The plaintiff
argues that several legislative acts setting forth the
responsibilities of the state appointed overseer estab-
lished a fiduciary relationship between the defendants
and the tribe, which the defendants allegedly breached.
In response, the defendants contend that the plaintiff
has not properly pleaded an exception to, or waiver of,
the state’s sovereign immunity from suit. We agree with
the defendants.
‘‘Sovereign immunity relates to a court’s subject mat-
ter jurisdiction over a case, and therefore presents a
question of law over which we exercise de novo review.
. . . The principle that the state cannot be sued without
its consent, or sovereign immunity, is well established
under our case law. . . . Not only have we recognized
the state’s immunity as an entity, but [w]e have also
recognized that because the state can act only through
its officers and agents, a suit against a state officer
concerning a matter in which the officer represents the
state is, in effect, against the state. . . .
‘‘[T]he sovereign immunity enjoyed by the state is
not absolute. There are [three] exceptions . . . . The
first exception . . . occurs when the legislature, either
expressly or by force of a necessary implication, statu-
torily waives the state’s sovereign immunity; the second
exception occurs when an action seeks declaratory or
injunctive relief on the basis of a substantial claim that
the state or one of its officers has violated the plaintiff’s
constitutional rights; and the third exception occurs
when an action seeks declaratory or injunctive relief
on the basis of a substantial allegation of wrongful
conduct to promote an illegal purpose in excess of the
officer’s statutory authority.’’ (Citation omitted; internal
quotation marks omitted.) Jacques v. Commissioner of
Energy & Environmental Protection, supra, 203 Conn.
App. 429.
‘‘[A] plaintiff who seeks to bring an action for mone-
tary damages against the state must first obtain authori-
zation from the claims commissioner.’’ Miller v. Egan,
265 Conn. 301, 317, 828 A.2d 549 (2003). ‘‘[T]he excep-
tion to sovereign immunity for actions in excess of
statutory authority or pursuant to an unconstitutional
statute, applies only to actions seeking declaratory
relief or injunctive relief, not to those seeking monetary
damages.’’ Id., 321. ‘‘The principles governing statutory
waivers of sovereign immunity are well established.
[A] litigant that seeks to overcome the presumption of
sovereign immunity [pursuant to a statutory waiver]
must show that . . . the legislature, either expressly
or by force of a necessary implication, statutorily
waived the state’s sovereign immunity . . . . In mak-
ing this determination, [a court shall be guided by] the
well established principle that statutes in derogation of
sovereign immunity should be strictly construed. . . .
[When] there is any doubt about their meaning or intent
they are given the effect which makes the least rather
than the most change in sovereign immunity. . . . Fur-
thermore, because such statutes are in derogation of
the common law, [a]ny statutory waiver of immunity
must be narrowly construed . . . and its scope must
be confined strictly to the extent the statute provides.’’
(Internal quotation marks omitted.) Allen v. Commis-
sioner of Revenue Services, 324 Conn. 292, 299–300,
152 A.3d 488 (2016), cert. denied, U.S. , 137 S.
Ct. 2217, 198 L. Ed. 2d 659 (2017). Our resolution of this
claim is also guided by the fact that, because ‘‘sovereign
immunity implicates the subject matter jurisdiction of
the court’’; id., 299; it may be raised at any time. See
Starboard Resources, Inc. v. Henry, 196 Conn. App. 80,
88, 228 A.3d 1042 (‘‘[a] claim that a court lacks subject
matter jurisdiction may be raised at any time during
the proceedings . . . including on appeal’’ (internal
quotation marks omitted)), cert. denied, 335 Conn. 919,
213 A.3d 1170 (2020).
On our review of the pleadings, the relief sought in
counts five and six of the complaint is unmistakably
monetary in substance. The plaintiff’s requests for
accountings indicate that the plaintiff seeks to prove
that the defendants failed to properly financially com-
pensate the tribe, and, consequently, failed to uphold
their fiduciary responsibilities to the tribe. This reading
is further supported by the plaintiff’s request that the
defendants ‘‘settle [tribal] funds,’’ which makes clear
that the plaintiff expects to be compensated following
the aforementioned accountings. We additionally read
these requests for accountings in tandem with the plain-
tiff’s explicit requests for $610 million in damages,
which are incorporated by reference into the counts
alleging a breach of fiduciary duty. This underscores
the extent to which monetary compensation for the
defendants’ alleged failure to uphold a fiduciary duty
to the plaintiff is the plaintiff’s ultimate goal, were it
to have prevailed on its claims.
In our view, the present case is easily distinguishable
from our recent decision in Aldin Associates Ltd. Part-
nership v. State, 209 Conn. App. 741, 765–66, 269 A.3d
790 (2022) (Aldin), in which we held that a claim for
monetary damages is distinct from an action for specific
remedies set forth in a statute which may include mone-
tary compensation. In Aldin, the monetary relief sought
by the plaintiff––reimbursement from the Department
of Energy and Environmental Protection for remedia-
tion of petroleum storage tanks––was explicitly pro-
vided for by statute. Id., 745–46, 765; see General Stat-
utes § 22a-449r. Here, the statutes cited by the plaintiff
in support of its claims do not entitle it to a monetary
award. We therefore conclude that our reasoning in
Aldin does not apply to the matter before us.
In its complaint, the plaintiff alleges that the defen-
dants have wronged it; throughout the complaint, the
plaintiff requests money from the state in order to make
up for the injury it alleges it has suffered at the hands
of the defendants. We emphasize that, even though the
plaintiff’s prayer for relief with respect to counts five
and six requests that the defendants take certain
actions, this relief is expressly grounded in the plain-
tiff’s desire ‘‘to make tribal funds . . . whole.’’ As this
court previously has held, for purposes of sovereign
immunity, our conception of the relief sought by a plain-
tiff is to be driven by substance and not form. See Bloom
v. Dept. of Labor, 93 Conn. App. 37, 41, 888 A.2d 115
(‘‘The mere framing of the complaint as one for declara-
tory judgment does not, in and of itself, make it so.
. . . Although the plaintiff’s action was denominated
as a petition for declaratory and injunctive relief, the
prayer for relief . . . [indicated] that the plaintiff ulti-
mately is seeking money damages. . . . Therefore,
because the plaintiff’s claim ultimately is an action for
money damages, the doctrine of sovereign immunity
bars his action.’’ (Citations omitted.)), cert. denied, 277
Conn. 912, 894 A.2d 992 (2006); see also Daimler-
Chrysler Corp. v. Law, 284 Conn. 701, 723, 937 A.2d
675 (2007) (holding that request for order that defendant
refund sales taxes to plaintiff ‘‘must be characterized
as a claim for damages’’).
In light of our conclusion that the second and third
exceptions to sovereign immunity for injunctive and
declaratory relief do not apply, the plaintiff’s only con-
ceivable path around sovereign immunity would be a
legislative waiver. Yet none of the legislative materials
cited by the plaintiff contains any reference, much less
one ‘‘expressly or by force of a necessary implication,’’
to a waiver of the state’s sovereign immunity regarding
claims that the plaintiff might have against the defen-
dants. Id., 720. For these reasons, we conclude that
the plaintiff’s fiduciary claims are barred by sovereign
immunity. The trial court, therefore, properly dismissed
the plaintiff’s breach of fiduciary duty claims.
The judgment is affirmed.
In this opinion ALVORD, J., concurred.
1
In support of those claims, the defendants relied on General Statutes
§ 47-66i (b), which provides: ‘‘A leadership dispute shall be resolved in
accordance with tribal usage and practice. Upon request of a party to a
dispute, the dispute may be settled by a council. Each party to the dispute
shall appoint a member to the council and the parties shall jointly appoint
one or two additional members provided the number of members of the
council shall be an odd number. If the parties cannot agree on any joint
appointment, the Governor shall appoint any such member who shall be a
person knowledgeable in Indian affairs. The decision of the council shall
be final on substantive issues. An appeal may be taken to the Superior Court
to determine if provisions of the written description filed with the Secretary
of the State pursuant to this section have been followed. If the court finds
that the dispute was not resolved in accordance with the provisions of the
written description, it shall remand the matter with instructions to reinstitute
proceedings, in accordance with such provisions.’’
2
On October 3, 2017, the defendants filed a motion to reargue the standing
issue, which the court denied.
3
The parties and the court also addressed the issue of whether the plain-
tiff’s takings claim encompassed any mortgages which the state had obtained
in relation to its sale of the land at issue. After ordering jurisdictional
discovery and hearing argument from the parties, the court dismissed the
plaintiff’s takings claims with respect to the mortgages. On appeal, the
plaintiff does not challenge the propriety of the court’s determination that
it lacked a property interest in such mortgages.
4
That motion was predicated on the fact that the court concluded its
third memorandum of decision with the sentence ‘‘[j]udgment will enter for
the defendants,’’ despite the fact that the court had not yet ruled on the
plaintiff’s remaining claims.
5
Although the plaintiff relied on both the 1736 resolve and the 1752 resolve
at trial, on appeal it predicates its takings claim solely on the 1752 resolve.
6
The resolution providing for the sale of the land contained the following
provision: ‘‘Nothing in this resolution shall be construed as recognizing or
denying the validity of any claims of . . . rights to lands or timber within
the exterior boundaries of the [land at issue].’’ (Internal quotation marks
omitted.) Tee-Hit-Ton Indians v. United States, supra, 348 U.S. 276.