Judge Weighs Dismissal of Schaghticoke’s $610M Lawsuit Against State
Robert Storace, The Connecticut Law Tribune
Whether the Schaghticoke Tribal Nation can continue its fight to reclaim $610 million from the state of Connecticut for taking reservation lands is now in the hands of a Superior Court judge.
The state made sovereign immunity and a lack of standing due to a dispute between two factions within the Schaghticoke its cornerstone argument for dismissal. The nation is suing the state saying it’s owed damages for land taken from its northwestern Connecticut reservation beginning more than two centuries ago.
The nation claims the state seized 2,000 acres of its 2,400-acre reservation without proper payment despite promises to do so.
Both sides agreed prior to Thursday’s hearing in Hartford Superior Court that lack of standing would be the only topic discussed.
Assistant Attorney General Rob Deichert repeatedly fielded questions from Judge Thomas Moukawsher about whether the dispute between the Schaghticoke Tribal Nation and the competing government, the Schaghticoke Indian Tribe, was “substantial.”
“The fact that there is a dispute can’t be enough,” the judge said. “Don’t I have to find there is a substantial dispute?”
Deichert said, “Our position is clear: There is a leadership dispute and it has been substantial for decades.”
The Schaghticoke split in two factions in 1986: the tribe and the nation. Lawsuits filed since the split have acknowledged the two factions, which Deichert claims is part of the ongoing “substantial” dispute.
The nation and the tribe also have separate tribal constitutions. Richard Velky, who was in court Thursday, was elected chief for life for the nation in 1987. Alan Russell is chief of the tribe and is not a party to the current lawsuit.
Deichert also told the court a favorable decision for the nation could preclude other factions “from bringing claims later. We know there are other factions out there.”
Deichert brought up the Connecticut Appellate Court case of Schaghticoke Indian Tribe v. Rost to bolster the state’s claim. The 2012 case dealt with the eviction of Michael Rost from Schaghticoke land, and involved the dispute over tribal leadership.
Austin Tighe, representing the nation, insisted his client has standing.
“We have a tribal council that passed a resolution and at least six members brought the lawsuit on behalf of the tribe.”
Tighe, of counsel for the Texas-based law firm Nix, Patterson & Roach, told the courtroom the state is looking for a way out of the lawsuit.
After the hearing, Tighe said, “This entire idea that there is a leadership dispute is a fiction created by the state only after they were sued for $610 million.”
Tighe declined to comment further. Deichert declined to comment afterward.
The first court action in a lawsuit filed a year ago by the Schaghticoke Tribal Nation against the State of Connecticut will take place this month. The complaint claims the State of Connecticut owes the tribe more than $610 million in mismanaged land use trust funds. A pretrial evidentiary hearing will be held at Connecticut Superior Court in Hartford on September 14 on the state’s motion to dismiss the case.
When noted Texas attorney Austin Tighe was sought to represent the Schaghticoke Tribal Nation in the tribe’s $610 million lawsuit against Connecticut, he said he jumped at the opportunity.
As with other cases he’s taken on behalf of Native American tribes seeking redress against the government, Tighe, 51, said he believes the case has clear merit. “I was attracted to this case based on three facts,” he said. “No. 1, the state took the Schaghticokes’ land. No. 2, the state promised to pay for that land and broke that promise; and No. 3, the U.S. Constitution and the Connecticut Constitution require the payment of fair compensation for taking of land.”
The Schaghticokes claim the state seized 2,000 of the tribe’s 2,400 acres of land in Western Connecticut from 1801 to 1918 without proper payment, and despite promises of compensation. For Tighe, issues related to the plight of Native Americans are something he holds close to his heart.
“There was a real sense of injustice that was visited upon these tribes over a long period of time,” Tighe said. “In all of the cases in which I represent the tribes, the common thread is the government’s failure to deliver on its promises to some of the nation’s first families.”
Tighe said he has always had an interest in American Indian law but “my focus on representing tribal interests has accelerated in the past three to four years.”
Later this month, Tighe will be in Connecticut to personally argue against the state’s contention that the Hartford Superior Court does not have jurisdiction to hear the tribe’s claims. “The court does have jurisdiction to hear our claims,” he said. “They are true. The state promised to pay for the land and never did. These are all procedural [issues] and we look forward to addressing them and moving the case forward to trial.”
In essence, Tighe said, the state has no answer as to why the tribe’s land was taken over the course of more than a century. He said the state is trying to throw monkey wrenches into what he believes is a solid case.
After meeting several times with Schaghticoke Chief Richard Velky, Tighe said he was “very impressed with their knowledge and very impressed with their passion. A strong relationship with the client is key for me. Because I only take cases on a contingency fee basis, I am investing in my clients like they are investing in me which results in a real sense of common purpose.”
Former U.S. Connecticut Sen. Joe Lieberman, senior counsel for Kasowitz, Benson, Torres & Friedman in New York City, is also defending the tribe. Tighe said partnering with Lieberman is a joy.
“Joe is just like you see him on TV or in the well of the Senate,” Tighe said. “He is very thoughtful, honorable and straightforward. He brings a real sense of perspective on every issue that comes up.”
Of the half-dozen tribal cases Tighe has handled, two were resolved. One is confidential, and another out of Oklahoma, in which he represented the Choctaw and Chickasaw tribes, was settled for $186 million in 2015. “We were alleging the government failed to properly protect tribal interests in the sale of about 1.3 million acres of tribal timberland between 1908 and 1940,” he said.
The more they see, the more Tighe’s contemporaries say he is an expert at distilling facts and getting to the central point of a case. After that, he fights like heck to win. Tighe on your side in a legal matter “is like having your own Doberman,” some say.
“He tries to communicate, both in writing and orally, in a brief and succinct manner — a very understandable manner,” said Jim Reed, a founding partner of Gray, Reed & McGraw in Houston. “He is not the only attorney who does that, but a lot of lawyers do not. Many times, judges get communication styles that are hard to understand. His is not.”
Tighe’s admirers say he also puts his all into each case, and works at a pace many lawyers find hard to match. “It’s more than just going the extra mile. I doubt he even sleeps, because he is going at it all the time,” said Brian Kabateck, founding and managing partner of Kabateck Brown Kellner in Los Angeles.
Kabateck worked with Tighe representing the NAACP in a landmark predatory lending lawsuit against major banks. “The guy would constantly be calling, emailing and talking to try to set up meetings at all hours of the day. He was and is extremely aggressive. I always want to work with someone who works at least as hard as I do, and that is Austin.”
Tighe has worked for several firms in Texas and spent a brief stint in Chicago. He has worked for Nix, Patterson & Roach in Austin, Texas, since August 2015, and has represented plaintiffs for the firm in consumer class actions, represented Fortune 100 companies, policyholder actions against insurance companies, commercial litigation, and personal injury, among other cases. One case he is particularly proud of is leading a class action on behalf of retired NFL players against EA Sports. The case, which has been going on for years with hopes to finalize later this year, involves allegations that EA used the likenesses of about 2,600 retired players in its Madden football games. “We are seeking compensation for the players,” Tighe said. “EA has generated a giant amount of profit. We are looking at potentially tens of millions of dollars.”
Tighe said he got hooked on becoming a lawyer after the 9th grade, when he went to a big New York City law firm where a friend’s father worked. “I got to see how lawyers work for a few days. One lawyer even let me watch a hearing in the Eastern District of Manhattan. After that, I was hooked. I rode the train back to Summit [in New Jersey] and said to myself that I knew what I wanted to do.”
Part of that passion has included seeing the law as a noble profession, Tighe said. “It does a tremendous amount of good,” Tighe said, adding, “There is a lot of talk in how important the amendments are to the Constitution. There is often a lot of talk about the First and Second Amendments. But, people who really focus on those amendments will tell you that all of the amendments were designed to be held in equal esteem, and that would include the Seventh Amendment.”
But the amendment that provides for a right to trial by jury, Tighe noted, is under attack “by people who think arbitration should take the place of right to jury trial and by various political interests. It’s a more noble profession — now more than ever, maybe. We, as plaintiffs attorneys, defend and foster citizen rights under the Seventh Amendment.”
On Wednesday, the Kent-based Schaghticoke Tribal Nation, which wants to open its own casino, announced it “will have no alternative” but to sue the state if the legislation allowing the two federally recognized tribes to open the $200 million-to-$300 million East Windsor facility prevails.
A bus with dozens of tribe members arrived at the Legislative Office Building at 10:30 am on May 9th to ask lawmakers to seek a competitive and open process if the state is to seek commercial gaming. We spoke to the media and legislators about why an open process is so important, and asked an important question:
HARTFORD, Conn. (WTNH)– The Speaker of the Connecticut House says he is increasing the odds that an expansion of casino gambling will pass this year. The prediction comes in the aftermath of greater red ink, and as a third Native American Tribe says they can increase the stakes for the state.
The third tribe is the state recognized Schaghticokes. You will recall they got federal recognition 13 years ago, only to have the U.S. Bureau of Indian Affairs reverse their ruling in the aftermath of massive public and political pressure here in Connecticut. But the Schaghticokes say they still have friends in the gambling industry that will bankroll them.
Lead by tribal chairman Richard Velky, members of the Kent based Scahghticoke Tribe invaded the Capitol complex today, urging that they be allowed to compete for a third gambling casino that they would like to establish southwest of New Haven to take advantage of what all parties agree is the potentially lucrative metropolitan New York City area.
“Anywhere in Fairfield County, preferably for me, probably be Bridgeport. We have always show an interest in Bridgeport. Bridgeport has always shown an interest in the Schaghticoke,” said Velky.
The legislature’s Appropriations Committee voted Monday to approve the bill that would enable the Mashantucket Pequot and Mohegan tribes to develop a commercial casino in East Windsor.
Senate Bill 957 passed 33-13. Six members of the 52-member committee were absent.
The bill still must be approved by the Senate and the House before Gov. Dannel P. Malloy considers whether to sign it into law. A negative vote in the Appropriations Committee would have killed the proposal
An alternative measure that’s also being considered, House Bill 7319, would establish a competitive-bidding process among operators interested in developing a third Connecticut casino. It would require the passage of further legislation before a commercial casino could be opened in the state.
The tribes, respective owners of Foxwoods Resort Casino and Mohegan Sun, are pursuing a third casino as a hedge against the anticipated impact of MGM Springfield, a $950 million resort casino being built in Massachusetts. Connecticut stands to lose thousands of jobs and millions of dollars in revenue if it fails to defend its turf, the tribes maintain.
“This was an important vote today because the Appropriations Committee members clearly recognized the value of saving jobs in Connecticut, jobs that are in most every city and town in the state,” Sen. Cathy Osten, the Sprague Democrat who co-chairs the committee, said. “There are 140 communities in Connecticut that send 12,000 employees to work in the gaming industry every day. … Today’s vote was a vote to stop MGM from destroying Connecticut jobs.”
Before the vote on the bill, several proposed amendments were defeated. The amendments sought to require a referendum in East Windsor, to set amounts of payments to towns surrounding the proposed casino and a provision that would have provided the state’s off-track betting system with a share of the casino’s revenues.
Osten was joined by other members of the southeastern Connecticut delegation in supporting the Senate bill, including Sens. Paul Formica, R-East Lyme, also Senate co-chairman of the committee; and Heather Somers, R-Groton, as well as Reps. Mike France, R-Ledyard; Kathleen McCarty, R-Waterford; and Kevin Ryan, D-Montville. Rep. Chris Soto, D-New London, recused himself from voting, citing an unspecified conflict.
“Another week, another milestone passed,” said Kevin Brown, the Mohegan tribal chairman.
“We thank the committee for its work and look forward to a continued discussion with our partners in government,” Rodney Butler, the Mashantucket chairman, said.
Members of the two tribes descended on the Capitol last week to lobby for passage of Senate Bill 957. This week, members of another Connecticut tribe, the Schaghticoke Tribal Nation, will travel to Hartford to deliver an altogether different message.
“A fair and open process is the only way for the state to go if we are serious about pursuing commercial gaming in Connecticut,” Schaghticoke Chief Richard Velky said Monday. “House Bill 7319 is the bill that gives us that process, and we have more than 40 members of our tribe coming to Hartford on Tuesday to urge support of it.”
Unlike the Mashantuckets and the Mohegans, the Schaghticokes have not been recognized by the federal government, status that would enable them to pursue a federally regulated tribal casino on their reservation in Kent. Instead, the Schaghticokes are now focused on pursuing a commercial casino on nontribal land.
“Studies clearly show southwestern Connecticut has five times the value for gaming development that East Windsor does,” Velky said. “This means thousands of good jobs can be created, the state will have access to the New York market we simply do not have in north central Connecticut, and Schaghticoke Tribal Nation will have a pathway to compete along with everyone else.
“Our tribe stands ready, willing and able to compete for the right to offer commercial casino gaming in southwestern Connecticut — all we need is an open process and a pathway to compete, which this bill (7319) gives us,” he said.
House Speaker Joe Aresimowicz, D-Berlin, said last week the third-casino debate could be dealt with as part of the state’s budget process.
Osten, who has said she’s confident the Senate will pass Senate Bill 957, said she prefers the matter be decided by a bipartisan vote on a standalone bill.
“That would give people an opportunity to see exactly what they’re voting on,” she said. “This bill might need some tweaking but I think both sides are pleased with the direction it’s going in.”
“The Public Safety and Security Committee did the prudent thing today in heeding Attorney General Jepsen’s warning and passing House Bill 7239—if there is going to be a third casino, a fair and equitable process executed in an orderly fashion is the only way the citizens of Connecticut can succeed without jeopardizing funding to the state….” said Chief Richard Velky in a statement by the Schaghticoke Tribal Nation.
Chief Richard Velky of the Schaghticoke Tribal Nation joined Ray to discuss casino expansion in the state. Should there be outside competition to build a commercial casino in Connecticut, beyond the Mashantucket Pequot and Mohegan tribes’ plans? Does the state even need another casino? Get insight from Chief Velky…
“Schaghticoke Chief Richard Velky backed the competitive bid bill and, in a show of solidarity, brought a group of tribal members to the hearing dressed in bright red shirts……Southwestern Connecticut offers a growing opportunity that is five times the size of the market north of Hartford, a market that can only decline with the high-end competition from Springfield,” Velky said. “Connecticut citizens demand a better deal, so why not us?”