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Rosemary Terry et al.

v.

Mohegan Tribal Gaming Authority et al.

4107163

Superior Court of Connecticut.

File Date: May 16, 2008

Peck, A. Susan, J.

MEMORANDUM OF DECISION RE MOTION TO DISMISS

The defendant, Mohegan Tribal Gaming Authority, d/b/a Mohegan Sun Casino, ^FN1 has filed a motion to dismiss the complaint for interpleader, ^FN2 asserting that, pursuant to the doctrine of sovereign immunity, the court lacks subject matter jurisdiction. “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 ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.” (Internal quotation marks omitted.) Salgado v. Commissioner of Transportation, 106 Conn.App. 562, 566, 942 A.2d 546 (2008). “[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for wanting a motion to dismiss.” (Internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007).

FN1. The defendants have claimed in the Motion to Dismiss that there is no entity entitled The Mohegan Sun Gaming Authority and the defendants assume the plaintiffs are attempting to bring suit against the Mohegan Tribal Gaming Authority, d/b/a Mohegan Sun Casino.

FN2. The fund which is the subject of this interpleader action consists of settlement proceeds held by Simones on behalf of Terry who was injured in the course of her employment at the Mohegan Sun Casino for which she also received workers' compensation benefits. The defendant Mohegan Tribal Gaming Authority asserted a lien arising out of benefits paid.

“Tribal sovereign immunity is governed by federal law ... Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers ... We begin with the premise that Indian tribes are domestic dependent nations which exercise inherent sovereign authority over their members and territories ... Tribal sovereign immunity is dependent upon neither the location nor the nature of the tribal activities ...

“An Indian tribe is subject to suit only when Congress has authorized the suit or the tribe has waived its immunity ... However, such waiver may not be implied, but must be expressed unequivocally ... [T]he [United States] Supreme Court has refused to find a waiver of tribal immunity based on policy concerns, perceived inequities arising from the assertion of immunity, or the unique context of a case ... The Supreme Court has stated that there are reasons to doubt the wisdom of tribal sovereign immunity, for example, the fact that it 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 ... To the extent, however, that [t]hese considerations might suggest a need to abrogate tribal immunity, courts must defer to the role Congress may wish to exercise in this important judgment.” (Citations omitted; internal quotation marks omitted.) Id., 134-36.

The plaintiffs argue in their memorandum in opposition that this action is outside the jurisdiction of the Mohegan Tribal Gaming Court. The plaintiffs rely on Ellis v. Allied Snow Plowing, Removal & Sanding Services Corp., 81 Conn.App. 110, 838 A.2d 237 (2004), for the proposition that “tribes generally lack civil authority over the tortious conduct of nonmembers of the tribe unless the underlying action directly affects the tribe's political integrity, economic security, health or welfare.” (Emphasis in original.) Ellis v. Allied Snow Plowing, Removal and Sanding Services Corp., supra, 81 Conn.App. 115, citing Strate v. A-1 Contractors, 520 U.S. 438, 117 S.Ct. 1404, 137 L.Ed 661 (1997). The court held in Ellis, “that the tribal court does not have exclusive jurisdiction to adjudicate this ‘run of the mill’ slip and fall accident.” Id. The plaintiffs' reliance on Ellis is misplaced because this is not a dispute between non-members of the tribe. The Mohegan Tribal Gaming Authority is an entity of a federally recognized Indian tribe and has not waived its tribal sovereign immunity. Furthermore, in Ellis, the court found that it “cannot discern any way in which the plaintiff's action in the Superior Court could have a direct adverse effect on an economic interest of the tribe.” Id., 119. Because the Mohegan Trial Gaming Authority has filed a notice of lien on the funds in question arising out of its payment of workers' compensation benefits to Simones, the economic interest of the tribe would be directly affected by the interpleader action.

Accordingly, the defendant's motion to dismiss is granted. The court lacks subject matter jurisdiction over the Mohegan Tribal Gaming Authority because it is barred by sovereign immunity.

Peck, J.