The dispositive issue in this consolidatedappeal is the extent of the jurisdiction of theSuperior Court to inquire into a plaintiff's authorityto bring a lawsuit in the name of an Indian tribe. Theplaintiff, representing itself to be the Golden Hill PaugussettTribe of Indians (plaintiff), brought an actionto quiet title to land located in the town of Southbury(town). In its complaint, the plaintiff requested that thetown be designated representative of a proposeddefendant class of current owners of that land. Thestate of Connecticut (state) and a party representingitself as the General Tribal Council of the Golden HillPaugussett Indian Nation (council) moved separatelyto intervene as defendants, and the trial court grantedboth motions. Thereafter, the defendants separatelymoved to dismiss the action on the grounds that, interalia, the plaintiff had no authority to bring this lawsuitin the name of the tribe. After an evidentiary hearing,the trial court found that the tribe had notauthorized the suit and rendered judgment dismissingthe action. The plaintiff appealed from the judgment
[231 Conn. 566]
of the trial court to the Appellate Court, and we transferredthe appeal to this court pursuant to PracticeBook § 4023 and General Statutes § 51-199(c). Weaffirm.
This action arises out of events that are alleged tohave occurred more than 300 years ago. In its complaint,the plaintiff claimed that its tribe, from timeimmemorial until the arrival of English colonists, hadpossessed, occupied and controlled much of present-daysouthwestern Connecticut. The plaintiff furtherclaimed that, in a deed of 1706, the tribe had transferredto a group of colonists the tribe's Indian titleto certain lands, but had "reserved" to the tribe theland now in dispute. The plaintiff admitted that, in theyears 1733 to 1759, a series of additional deeds had purportedto transfer to the colonists the reserved landas well. The plaintiff contended, however, that thoselater deeds had been void ab initio, because the transfershad occurred without the Colonial General Court'sexpress consent in violation of General Court enactmentsof 1663, 1680 and 1717. In light of the allegedinvalidity of the later deeds, the plaintiff contended thatits "Indian title"1 in the reserved land never had beenproperly extinguished, and, therefore, that it has apresent right to occupy the land.
After filing its complaint, the plaintiff filed a noticeof lis pendens in the Southbury town clerk's office andbegan to serve copies of the notice on all 1200 recordedcurrent owners of the land. Alleging that the lis pendenswas causing irreparable harm to the current landowners
[231 Conn. 567]
by making their titles uninsurable, the townfiled motions for a temporary injunction against continuedservice of the notice of lis pendens and for dischargeof the lis pendens itself. After a hearing, thetrial court granted both motions.2
Thereafter, all three defendants moved to dismiss theaction on the grounds that the lawsuit, althoughbrought in the name of the tribe, actually had not beenauthorized by the tribe. The trial court held an evidentiaryhearing on the motions to dismiss, at which theplaintiff refused, on grounds of tribal sovereignty, tooffer any evidence of its authority to sue on behalf ofthe tribe, other than copies of documents filed with thegovernor pursuant to General Statutes § 47-66i.3 Thosedocuments did not directly authorize any individual to
[231 Conn. 568]
sue on behalf of the tribe, but they did indicate thatthe tribe's "leader" was its "Traditional Chief," ChiefBig Eagle. The documents also indicated that Chief BigEagle had appointed his son, Chief Quiet Hawk, to bethe tribe's "Council Chief." Although neither Chief BigEagle nor Chief Quiet Hawk testified at the hearing,the parties stipulated that someone identifying himselfas Chief Quiet Hawk had authorized the plaintiff's counselto file the lawsuit.
In support of their motions to dismiss, the defendantsoffered testimony, which the trial court foundcredible, that Chief Quiet Hawk lacked authority to sueon behalf of the tribe. R. Michael Smith, a member ofthe tribe, testified that (1) notwithstanding the documentsfiled with the governor, the tribe was governedby an elected tribal council, (2) only the council couldauthorize a lawsuit in the name of the tribe and (3) inthis case, the council specifically had decided not toauthorize the action. Michael S. Haney, executive directorof the American Indian Arbitration Institute, confirmedthat pursuant to the customs and practices ofthe Golden Hill Paugussetts, only the tribal councilcould authorize a lawsuit in the name of the tribe.Haney testified, further, that a survey of the tribe'smembers disclosed no one who supported Chief QuietHawk in the bringing of the lawsuit. After finding that"the Council, and not Quiet Hawk, has control of thegroup calling themselves members of the tribe" andthat the council "wishes the case withdrawn," the trialcourt granted the motions to dismiss.4
[231 Conn. 569]
On appeal, the plaintiff argues, for two reasons, thatthe trial court improperly dismissed the case.5 First,the plaintiff maintains that the trial court had no jurisdictionto determine whether the plaintiff actually hadpower to act in the name of the tribe, as that questionwas a matter of tribal sovereignty not cognizable in civilcourt. Second, the plaintiff contends that, even if thetrial court had jurisdiction to determine whether theplaintiff had authority to sue, the court was bound tomake that determination solely on the basis of the documentsfiled with the governor pursuant to § 47-66i andwas required to allow this suit to proceed because theindividual who had authorized the suit was listed inthose documents as a "leader" of the tribe. We disagreewith both arguments.
The plaintiff's initial claim is that the trial courtexceeded its jurisdiction when it decided that the plaintifflacked authority to sue in the name of the tribe.6
[231 Conn. 570]
The plaintiff's claim requires us to examine the interrelationshipof three propositions: (1) courts> alwayshave jurisdiction to determine whether they have jurisdiction;(2) courts> lack jurisdiction over suits broughtin the names of parties by persons unauthorized to sueon behalf of those parties; and (3) instrumentalities ofthe state have no jurisdiction over the internal affairsof bona fide Indian tribes. In essence, the plaintiff asksus to hold that the third proposition superseded the firsttwo — that is, that because of tribal sovereignty, the trialcourt had no power to decide the jurisdictional questionof whether the plaintiff had authority to sue onthe tribe's behalf. In the circumstances of this case,however, we need not decide whether a tribe's inherentsovereignty outweighs a court's inherent power todecide its jurisdiction. Contrary to the plaintiff'simplicit assertion, we are persuaded that all threepropositions not only are compatible in this case, butare complementary, and that the trial court respectedall of them by dismissing the action.
We first address the trial court's power to determineits jurisdiction. As we have held repeatedly, the powerto determine its jurisdiction is one of the core inherentpowers of a court. "[O]nce the question of lack ofjurisdiction of a court is raised, [it] must be disposedof no matter in what form it is presented . . . and thecourt must fully resolve it before proceeding furtherwith the case. . . . [A] court must have jurisdiction
[231 Conn. 571]
to determine its own jurisdiction once that has beenput in issue." (Citations omitted; internal quotationmarks omitted.) Castro v. Viera, 207 Conn. 420,429-30, 541 A.2d 1216 (1988); accord Chrysler CreditCorp. v. Fairfield Chrysler-Plymouth, Inc., 180 Conn. 223,227, 429 A.2d 478 (1980); Aaron v. ConservationCommission, 178 Conn. 173, 178, 422 A.2d 290 (1979).
As we also have held, "[i]t is a basic principle of lawthat a plaintiff must have standing for the court to havejurisdiction. Standing is the legal right to set judicialmachinery in motion. One cannot rightfully invoke thejurisdiction of the court unless he has . . . some realinterest in the cause of action, or a legal or equitableright, title or interest in the subject matter of the controversy."(Internal quotation marks omitted.) UnisysCorp. v. Dept. of Labor, 220 Conn. 689, 693,600 A.2d 1019 (1991); Ardmare Construction Co. v. Freedman,191 Conn. 497, 501, 467 A.2d 674 (1983). The standingrequirement is "designed to ensure that courts> andparties are not vexed by suits brought to vindicate nonjusticiableinterests and that judicial decisions whichmay affect the rights of others are forged in hot controversy,with each view fairly and vigorously represented."(Internal quotation marks omitted.) Rose v.Freedom of Information Commission, 221 Conn. 217,223, 602 A.2d 1019 (1992); Board of Pardons v. Freedomof Information Commission, 210 Conn. 646, 649,556 A.2d 1020 (1989); Maloney v. Pac, 183 Conn. 313,320, 439 A.2d 349 (1981).
To fulfill these goals, the standing doctrine requiresa plaintiff to demonstrate two facts. First, the complainingparty must be a "proper party to request adjudicationof the issues." See, e.g., Nye v. Marcus,198 Conn. 138, 141, 502 A.2d 869 (1985). Second, the personor persons who prosecute the claim on behalf ofthe complaining party must have authority to representthe party. See, e.g., Orsi v. Senatore, 230 Conn. 459,
[231 Conn. 572]
470, 645 A.2d 986 (1994) (standing of foster parentto sue child's guardian on behalf of child); State v.Nardini, 187 Conn. 109, 112-16, 445 A.2d 304 (1982)(standing of state's attorney to challenge recommendationof sentence review division on behalf of state);Barrett v. Southern Connecticut Gas Co., 172 Conn. 362,370, 374 A.2d 1051 (1977) (standing of shareholderto file derivative action on behalf of corporation);Vaitekunene v. Budrys, 156 Conn. 547, 554,244 A.2d 408 (1968) (standing of legatee's purported attorneyto appeal order of Probate Court on behalf of legatee).
A complaining party ordinarily can show that it is"a proper party" when it "makes a colorable claim of[a] direct injury [it] has suffered or is likely to suffer,in an individual or representative capacity. Such a personalstake in the outcome of the controversy . . .provides the requisite assurance of concrete adversenessand diligent advocacy." (Citations omitted; internalquotation marks omitted.) Rose v. Freedom ofInformation Commission, supra, 221 Conn. 223-24;Board of Pardons v. Freedom of Information Commission,supra, 210 Conn. 649; Maloney v. Pac, supra,183 Conn. 321.
To demonstrate authority to sue, however, it is notenough for a party merely to show a "colorable claim"to such authority. Rather, the party whose authorityis challenged has the burden of convincing the courtthat the authority exists. See Orsi v. Senatore, supra,230 Conn. 470; Vaitekunene v. Budrys, supra,156 Conn. 554; see also Meredith v. Ionian Trader, 279 F.2d 471,474 (2d Cir. 1960) ("A party to . . . a suit mayby motion or pleading dispute the authority of theopposing party `to act for the party in whose name heis proceeding, and, if the authority is not shown, thecourt will dismiss the action for want of parties beforeit.'"). The burden of proof for questions of authorityis higher than that for questions of propriety because
[231 Conn. 573]
the former questions are more important. Lawsuitsmust be authorized not only to ensure that the litigants"`fairly and vigorously'" represent the party's views;Rose v. Freedom of Information Commission, supra,221 Conn. 223; but also because, if unauthorized lawsuitswere allowed to proceed, future rights of thenamed parties might be severely impaired. Because ofthe doctrines of collateral estoppel (issue preclusion)and res judicata (claim preclusion), parties named inan unauthorized suit might later be unable to relitigateissues decided in that suit or to bring new claims. Barrettv. Southern Connecticut Gas Co., supra, 172 Conn. 371.
In this case, as it was not disputed that the tribe itselfhad at least "a colorable claim of [a] direct injury [it]ha[d] suffered . . . in an individual or representativecapacity"; (internal quotation marks omitted) Rose v.Freedom of Information Commission, supra, 221 Conn. 223;the motions to dismiss did not allege that the tribewas not a "proper party" to bring an action to quiettitle to the disputed lands. The motions to dismissargued only that the person who had brought suit onbehalf of the tribe lacked authority to do so. In lightof the precedents cited above, those motions properlycalled into question the jurisdiction of the trial courtand required the court to determine its jurisdiction.
The plaintiff alleges, however, that even if a courtnormally is empowered to investigate a litigant'sauthority to represent a party, the court does not havesuch power here, because any exercise of that powerwould violate the inherent sovereignty of the tribe. Toavoid interfering with tribal sovereignty, according tothe plaintiff, the trial court was required to accept theplaintiff's assertion that it had authority to sue andtherefore was required to adjudicate the merits of theplaintiff's case.
[231 Conn. 574]
Interestingly, the state joins the first part of theplaintiff's argument, agreeing that the trial courtlacked jurisdiction to resolve who had authority to sue,because doing so interfered with the sovereignty of thetribe. From this agreement with the plaintiff, however,the state draws the opposite conclusion. The state reasonsthat, because the trial court had no power to decidewho had authority to sue, the court was unable to makean affirmative finding that the plaintiff had standing,and thus it could not exercise jurisdiction over the case.
We agree with both the plaintiff and the state thatour courts> may not interfere with tribal sovereignty.We disagree with both parties, however, that the trialcourt's decision as to whether the plaintiff had authorityto sue on behalf of the tribe amounted to such an interference.On the contrary, greater threats to tribal sovereigntyare posed by the positions taken by theplaintiff and the state than by the actions of the trialcourt.
Like all instrumentalities of the state of Connecticut,our courts> are powerless to intervene in the exerciseof tribal self-government. Federal statute, federalcommon law and state statute all require us to treatbona fide Indian tribes as sovereign nations and to protecttribal rights to self-determination. SchaghticokeIndians of Kent, Connecticut, Inc. v. Potter, 217 Conn. 612,626-29, 587 A.2d 139 (1991).7 Because of the continuinginherent sovereignty of Indian tribes, for example,federal common law forbids states from "unlawfullyinfring[ing] on the right of reservation Indians to make
[231 Conn. 575]
their own laws and be ruled by them." (Internal quotationmarks omitted.) White Mountain Apache Tribev. Bracker, 448 U.S. 136, 142, 100 S.Ct. 2578, 65L.Ed.2d 665 (1980); Williams v. Lee, 358 U.S. 217, 220,79 S.Ct. 269, 3 L.Ed.2d 251 (1959). Similarly, statestatutes explicitly provide that "the indigenous tribes,[including] . . . the Golden Hill Paugussett are self-governingentities possessing powers and duties overtribal members and reservations. Such powers andduties include the power to . . . (2) determine thetribal form of government . . . and (5) determinetribal leadership in accordance with tribal practice andusage." General Statutes § 47-59a(b).8 Any action bya state court that infringed on tribal sovereignty orinterfered in tribal self-government would therefore beimproper.
Our recognition of tribal sovereignty does not, however,render all matters touching upon tribal decisionsnonjusticiable. As the United States Supreme Courthas made clear, tribal sovereignty does not impede statecourt jurisdiction unless "the exercise of state-courtjurisdiction in [the] case would interfere with the rightof tribal Indians to govern themselves under their own
[231 Conn. 576]
laws." Three Affiliated Tribes of the Fort BertholdReservation v. Wold Engineering, P. C., 467 U.S. 138,148, 104 S.Ct. 2267, 81 L.Ed.2d 113 (1984). If theexercise of state court jurisdiction is "compatible withtribal autonomy"; id., 149; judicial action not only ispermitted, but may be required. See id., 151-52 (suggestingthat failure to exercise jurisdiction could violateIndians' rights under due process clause, equalprotection clause and 42 U.S.C. § 1981).
The question before us, therefore, is whether, indeciding if the plaintiff had authority to sue on behalfof the tribe, the trial court actually interfered with theexercise of tribal sovereignty. Notwithstanding theplaintiff's and the state's arguments, we are persuadedthat the trial court's actions were consistent with suchsovereignty. By determining whether the suit had beenbrought by the tribe, the trial court preserved theautonomy of the tribe to choose its own form of government(i.e., government by tribal council) and enforcedthe tribe's sovereign decision not to sue.9
The propriety of the trial court's actions is furtherestablished by a decision of the United States SupremeCourt, in a case strikingly similar to the case at bar,
[231 Conn. 577]
more than seventy years ago. In Pueblo of Santa Rosav. Fall, 273 U.S. 315, 317, 47 S.Ct. 361, 71 L.Ed. 658(1927), as in this case, a suit had been filed in the nameof an Indian tribe pursuant to a power of attorney executedby a man who purported to be the "Captain" orchief of the tribe. The defendant, by way of a motionto dismiss, alleged that counsel had no authority to suein the name of the tribe. Id., 319. At an evidentiaryhearing, the defendant offered evidence of "inquiries,conducted among the Indians . . . [that] failed to discloseanyone who knew of any authority from theIndians to bring or maintain the suit. . . . The evidencefurther show[ed] that no suit properly could havebeen brought without the prior consent of the Indiansin council and that no council for that purpose was everassembled. . . . Indeed, there [was] no evidence to thecontrary worthy of serious consideration." Id., 318-20.The proper result, the court declared, was that the trialcourt should "dismiss the bill, on the ground that thesuit was brought by counsel without authority. . . ."Id., 321.10
Had the trial court followed the plaintiff's or thestate's suggested courses of action, on the other hand,it would have risked a substantial infringement of tribalsovereignty. If, as the plaintiff desired, the suit hadgone forward, the tribe might later have been precludedfrom relitigating issues decided against the plaintiff,or barred from bringing new claims not raised by theplaintiff. Likewise, if, as the state desired, the suit hadbeen dismissed because there was a "dispute" aboutwho was authorized to sue on behalf of an Indian tribe,the tribe might be forever foreclosed from bringing
[231 Conn. 578]
even an authorized lawsuit in its own name.11 Cf. id.,321 (cautioning that trial court should dismiss unauthorizedsuit only without prejudice to "the bringingof any other suit hereafter by and with the authorityof the alleged Pueblo of Santa Rosa"). Both parties'suggestions, therefore, lead to results far more detrimentalto tribal sovereignty than the path followed bythe trial court.
In conclusion, we reiterate that the inherent sovereigntyof Indian tribes bars courts> from interveningin many matters of tribal self-government. The principleof tribal sovereignty, however, does not bar courts>from acting to protect tribal sovereignty and thus didnot bar the actions of the trial court in this case.
The plaintiff's second claim is that, even if the trialcourt was empowered to decide whether the plaintiffwas authorized to sue on behalf of the tribe, the courtwas required to decide the issue of standing solely onthe basis of documents filed with the governor pursuantto § 47-66i. We disagree.
We note, first, that the statute itself does not requirea trial court to look only to § 47-66i documents whendeciding a litigant's authority to sue. The statute's onlystated purpose in requiring the documents to be filedis to limit a court's role in reviewing an optional dispute
[231 Conn. 579]
resolution mechanism also established by the statute.The statute provides that "[u]pon request of a partyto a dispute, the dispute may" (emphasis added) be submittedto a panel of three arbitrators. General Statutes§ 47-66i(b). On appeal from the arbitral procedure,the statute then directs the Superior Court to determine"if provisions of the written description filed . . .pursuant to this section have been followed" and tovacate the decision and remand the case to the arbitratorsif "the dispute was not resolved in accordance withthe provisions of the written description." General Statutes§ 47-66i(b). Section 47-66i, therefore, is consistentwith other legislation limiting the scope of judicialreview of consensual arbitration awards.12 See General
[231 Conn. 580]
Statutes § 52-418(a).13 Because nothing in the legislativehistory otherwise suggests, we are persuadedthat the legislature, in enacting § 47-66i, did not intendto limit the Superior Court's role in deciding whetheran individual had authority to represent a tribe in anaction brought to the Superior Court in the firstinstance.14
[231 Conn. 581]
Our conclusion is buttressed by the limited reliabilityof the documents contemplated by § 47-66i withrespect to a leader's actual authority to act on behalfof a tribe. On its face, the statute empowers any individualpurporting to be the "leader" of a tribe to filedocuments confirming his leadership and power. Thestatute provides no procedure to guarantee that thetribe consents to the contents of the documents beforethey are filed by its purported leader.15 Cf. 25 U.S.C. § 476.16The statute also establishes no procedure bywhich the executive officials who receive the documentscan inquire into the documents' provenance. Cf. Statev. Bertrand, 61 Wn.2d 333, 341, 378 P.2d 427 (1963)(before issuing resolution effectuating decision of tribalcounsel, governor must be "satisfied that the bodypresenting the resolution was duly qualified").17 If the
[231 Conn. 582]
statute were read, therefore, to preclude courts> fromlooking behind such documents and considering evidenceoffered by tribal members that their leaders hadnot been authorized to sue, tribal sovereignty andself-determination would be significantly impaired.
In sum, the documents filed pursuant to § 47-66i willconstitute evidence of a purported tribal leader'sauthority only to the extent that the trial court findsthose documents to be reliable and accurate. In thiscase, the trial court found, as a matter of fact, that thedocuments were unreliable, and that the lawsuit hadnot been authorized by the tribe. As the plaintiff hasraised no challenge to the trial court's findings of fact,and as we have rejected the plaintiff's challenges tothe legal standards employed by the trial court, weaccordingly conclude that the trial court acted appropriately.18
The judgment is affirmed.
In this opinion CALLAHAN, KATZ and PALMER, Js.concurred.
1. "[A]lthough fee title to the lands occupied by Indians when thecolonists arrived became vested in the sovereign — first thediscovering European nation [Great Britain] and later the original Statesand the United States — a right of occupancy in the Indian tribes wasnevertheless recognized. That right, sometimes called Indian title and goodagainst all but the sovereign, could be terminated only by sovereign act."Oneida Indian Nation of New York v. Oneida, 414 U.S. 661, 667, 94S.Ct. 772, 39 L.Ed.2d 73 (1974).
2. The trial court concluded that service of the notice of lispendens was not necessary in this case, as, inter alia, "the verynature of Indian land claims [is that] hundreds of years andthousands of good faith purchases are claimed to be of noeffect." It further concluded that the lis pendens was itselfimproper, as there was no probable cause to support theplaintiff's claimed title in the subject property.
3. General Statutes § 47-66i provides: "METHOD OF SELECTINGTRIBAL LEADERS. DISPUTES. (a) Each tribal leader shall file withthe governor his name and a written description of the method ofselecting tribal leaders and the process by which tribal leadersexercise their authority. The governor shall file suchdescription with the secretary of the state and the IndianAffairs Council established under section 47-59b. "(b) A leadership dispute shall be resolved in accordance withtribal usage and practice. Upon request of a party to a dispute,the dispute may be settled by a council. Each party to thedispute shall appoint a member to the council and the partiesshall jointly appoint one or two additional members provided thenumber of members of the council shall be an odd number. If theparties cannot agree on any joint appointment, the governor shallappoint any such member who shall be a person knowledgeable inIndian affairs. The decision of the council shall be final onsubstantive issues. An appeal may be taken to the superior courtto determine if provisions of the written description filed withthe secretary of the state pursuant to this section have beenfollowed. If the court finds that the dispute was not resolved inaccordance with the provisions of the written description, itshall remand the matter with instructions to reinstituteproceedings, in accordance with such provisions."
4. The trial court provided three alternative reasons for itsdecision to dismiss the case. First, the trial court noted thatif "a tribe is a group or band of Indians following a leader,"the court was required to dismiss for lack of standing because"[t]he designated plaintiff in this lawsuit is . . . not a tribeor representing a tribe . . . ." The trial court explained that,because "[n]o other members of the group calling themselvesmembers of the Golden Hill Tribe of Indians support the bringingof this lawsuit on Quiet Hawk's authority . . . no tribe existswhich followed Quiet Hawk at the time suit was filed [that] maybe designated as the plaintiff Golden Hill Paugussett Tribe ofIndians." Second, the trial court held that if its determinationof the plaintiff's standing implicated an "issue of disputedtribal leadership," it was required to dismiss because suchissues were "unsuited to judicial inquiry" and "reserved by theLegislative Branch for resolution by a tie breaker appointed bythe Executive Branch." Third, the trial court held that if it didhave "inherent jurisdiction to determine the identity andcapacity of a party filing a lawsuit," it would be required todismiss because, as a matter of fact, Quiet Hawk had no authorityto sue on the tribe's behalf. We affirm the trial court'sjudgment only on the last of these three grounds. Like the trialcourt, we offer no opinion as to who did have authority to sue onthe tribe's behalf, and affirm only the finding that Quiet Hawkdid not have such authority.
5. The plaintiff also argues on appeal that the trial courtshould not have imposed the temporary injunction against serviceof the notice of lis pendens or discharged the lis pendens.Because we affirm the trial court's determination that theplaintiff lacked authority to sue, however, these other issues onappeal are moot, and we need not reach them. See Patterson v.Council on Probate Judicial Conduct, 215 Conn. 553, 561-62,577 A.2d 701 (1990).
6. Because the plaintiff does not raise the issue on appeal,we have no occasion to decide whether the individuals whopurportedly authorized the suit, including Chief Quiet Hawk,could have sued in their own names to quiet title to the disputedlands. Compare United States v. Dann, 873 F.2d 1189, 1196 (9thCir.) (individual Indians may sue to enforce Indian title iftheir lineal ancestors held and exclusively occupied, asindividuals, particular tract of land from time immemorial),cert. denied, 493 U.S. 890, 110 S.Ct. 234, 107 L.Ed.2d 185(1989), with Epps v. Andrus, 611 F.2d 915, 917-18 (1st Cir.1979), and cases cited therein (only tribe, but not individualtribal member, has standing to sue under Indian Non-IntercourseAct to reclaim tribal lands transferred in violation of thatact).
7. As the plaintiff's claim in this case concerns landsoutside the current borders of "Indian country"; see SchaghticokeIndians of Kent, Connecticut, Inc. v. Potter, supra, 217 Conn. 620;and as none of the parties has pointed us to any federalstatute addressing a state court's jurisdiction to decide who hasauthority to sue on behalf of a tribe, we will focus our inquiryonly on the jurisdictional limits imposed by federal common lawand state law.
8. General Statutes § 47-59a provides: "CONNECTICUT INDIANS;CITIZENSHIP, CIVIL RIGHTS, LAND RIGHTS. (a) It is hereby declaredthe policy of the state of Connecticut to recognize that allresident Indians of qualified Connecticut tribes are consideredto be full citizens of the state and they are hereby granted allthe rights and privileges afforded by law, that all ofConnecticut's citizens enjoy. It is further recognized that saidIndians have certain special rights to tribal lands as may havebeen set forth by treaty or other agreements. "(b) The state of Connecticut further recognizes that theindigenous tribes, the Schaghticoke, the Paucatuck EasternPequot, the Mashantucket Pequot, the Mohegan and the Golden HillPaugussett are self-governing entities possessing powers andduties over tribal members and reservations. Such powers andduties include the power to: (1) Determine tribal membership andresidency on reservation land; (2) determine the tribal form ofgovernment; (3) regulate trade and commerce on the reservation;(4) make contracts; and (5) determine tribal leadership inaccordance with tribal practice and usage."
9. Although the state cites Felix S. Cohen's monumentaltreatise, Handbook of Federal Indian Law (reprint 1986) (1942) p.126, to support its proposition that
10. See also Meredith v. Ionian Trader, supra, 279 F.2d 473-74(following Pueblo of Santa Rosa v. Fall, supra, 273 U.S. 315;dismissing suit by insurer of damaged cargo because statements ofcargo's owner, the sovereign Government of Pakistan, showed thatinsurer had no authority to sue on owner's behalf).
11. The state suggests that the trial court would only need towait until the dispute had been resolved pursuant to thearbitration procedures outlined in § 47-66i. Because thosestatutory procedures are discretionary, however, a court has noguaranty that the dispute ever would be submitted for resolution.In addition, the state does not explain how a court could preventopposing parties from making false allegations that there were"disputes" as a means to deprive the court of jurisdiction. If,as the state contends, a court has no power to hear evidence onthe internal decision-making processes of the tribe, the courtapparently would have to find that there was a bona fide"dispute," and then dismiss the case, whenever anyone challengeda litigant's standing to sue on behalf of a tribe.
12. The statutory language, its legislative history, andpolicy considerations all support our conclusion that §47-66i does not require disputing parties to submit to arbitrationbefore a court can determine an individual's authority to sue. Inthe same statute providing that disputes "may" be submitted toarbitration, the legislature also provided that disputes "shall"be resolved in accordance with tribal usage and practice, thatparties submitting to arbitration "shall" each appoint onearbitrator, that the governor "shall" appoint a tie-breakingarbitrator if the parties cannot agree on a joint appointment,that the arbitrators' decision "shall" be final on substantiveissues, that an appeal from the arbitration award "may" be takento the Superior Court, and that the court on appeal "shall"remand the case to the arbitrators if the dispute was notresolved in accordance with the written documents. "This use ofshall and may in the same statute, which is commonly mandatoryand directory in connotation is a factor that evidencesaffirmative selectivity of terms with specific intent to bedistinctive in meaning. The words shall and may must then beassumed to have been used with discrimination and a fullawareness of the difference in their ordinary meanings."(Internal quotation marks omitted.) Builders Service Corp. v.Planning & Zoning Commission, 208 Conn. 267, 304-305,545 A.2d 530 (1988); Jones v. Civil Service Commission, 175 Conn. 504,509, 400 A.2d 721 (1978); Mazzola v. Southern New EnglandTelephone Co., 169 Conn. 344, 365 n. 19, 363 A.2d 170 (1975);Shulman v. Zoning Board of Appeals, 154 Conn. 426, 428-29,226 A.2d 380 (1967). There is no legislative history contradictingthe clear language of the statute and suggesting that disputantswere to be required to submit to arbitration before a court coulddetermine an individual's authority to sue on behalf of a tribe.Moreover, because § 47-66i constrains the arbitrators todecide a dispute "in accordance with the provisions of thewritten description," policy considerations counsel againstreading the statute to require arbitration on questions ofauthority to sue. If we refused to recognize disputants'statutory rights to opt out of the arbitration procedure,disputants theoretically would become bound by documents theyalleged to be inaccurate or fraudulent. See following text.
13. General Statutes § 52-418(a) provides: "Upon theapplication of any party to an arbitration, the superior courtfor the judicial district in which one of the parties resides or,in a controversy concerning land, for the judicial district inwhich the land is situated or, when the court is not in session,any judge thereof, shall make an order vacating the award if itfinds any of the following defects: (1) If the award has beenprocured by corruption, fraud or undue means; (2) if there hasbeen evident partiality or corruption on the part of anyarbitrator; (3) if the arbitrators have been guilty of misconductin refusing to postpone the hearing upon sufficient cause shownor in refusing to hear evidence pertinent and material to thecontroversy or of any other action by which the rights of anyparty have been prejudiced; or (4) if the arbitrators haveexceeded their powers or so imperfectly executed them that amutual, final and definite award upon the subject mattersubmitted was not made."
14. We furthermore decline to hold that notwithstanding theoptional nature of § 47-66i arbitration, the trial courtshould have stayed the action until such time as arbitrationoccurred, pursuant to the doctrine of "primary jurisdiction." SeeGolden Hill Paugussett tribe of Indians v. Weicker, Docket Nos.93-6227, 93-9059, 93-9061, slip op. pp. 7875, 7889 (2d Cir. Oct.28, 1994); Sharkey v. Stamford, 196 Conn. 253, 256, 492 A.2d 171(1985); Mazzola v. Southern New England Telephone Co., 169 Conn. 344,349, 363 A.2d 170 (1975). None of the parties has argued inthis case that the arbitration panels established by § 47-66iare "administrative bod[ies]" having "special competence" overthe question of authority to sue on behalf of an Indian tribe.(Internal quotation marks omitted). Mazzola v. Southern NewEngland Telephone Co., supra, 169 Conn. 349. Nor has any partyexplained how an arbitration decision identifying an individualas a tribe's "leader" pursuant to § 47-66i would "materiallyai[d]" the court in determining whether that leader had authorityto sue on the tribe's behalf. Golden Hill Paugussett Tribe ofIndians v. Weicker, supra, slip op. p. 7889 (question of tribalexistence within special competence of Bureau of Indian Affairs[BIA]; BIA's decision will aid District Court in deciding tribe'sclaim under Non-Intercourse Act).
15. We do not mean to suggest that the documents would have tobe approved democratically to be valid. The tribe's right tochoose its own form of government surely allows it to choose anondemocratic government. Even nondemocratic governments,however, derive their legitimacy only from the consent of thegoverned. The tribal documents, therefore, cannot accuratelyrepresent the choices of the tribe unless made with the consentof the tribe, however such consent is expressed.
16. Title 25 of the United States Code, § 476 provides inrelevant part: ORGANIZATION OF INDIAN TRIBES; CONSTITUTION AND BYLAWS AND AMENDMENT THEREOF; SPECIAL ELECTION "(a) ADOPTION; EFFECTIVE DATE "Any Indian tribe shall have the right to organize for itscommon welfare, and may adopt an appropriate constitution andbylaws, and any amendments thereto, which shall become effectivewhen . . . ratified by a majority vote of the adult members ofthe tribe or tribes at a special election authorized and calledby the Secretary . . . . (b) REVOCATION "Any constitution or bylaws ratified and approved by theSecretary shall be revocable by an election open to the samevoters and conducted in the same manner as provided in subsection(a) of this section for the adoption of a constitution orbylaws."
17. Because the statute similarly does not contemplate anexercise of executive discretion in recognizing and/oraccrediting the tribal leaders listed in the documents, we neednot consider whether it would be appropriate for our
18. We reject, for two reasons, the plaintiff's final argumentthat even if we affirm the reasoning of the trial court, weshould still reverse the judgment and remand the case, to allowthe plaintiff to offer additional evidence of its authority tosue on behalf of the tribe. The plaintiff maintained, at oralargument in this court, that it withheld such evidence at theinitial hearing only because it feared that introduction of theevidence would waive its challenge to the jurisdiction of thetrial court to decide who had authority to sue. This argument,however, is supported neither by legal precedent nor by thefactual record in this case, the latter of which indicates thatthe plaintiff persisted in its refusal to offer evidence at thehearing even after the defendants had stipulated, on the record,that they would not argue that the plaintiff had waived itsjurisdictional challenge. We therefore decline to grant theplaintiff's request.
19. At the outset, I must point out that I agree with themajority that litigation must only be instituted by persons orentities that have standing. See Unysis [Unisys] Corp. v. Dept. of Labor,220 Conn. 689, 693, 600 A.2d 1019 (1991). A plaintiff hasstanding if "he has, in an individual or representative capacity,some real interest in the cause of action, or a legal orequitable right, title or interest in the subject matter of thecontroversy." (Internal quotation marks omitted.) Id. Indeed, aplaintiff must have standing in order for a court to assertsubject matter jurisdiction over the litigation. Id. Nevertheless, the question here is not so much one of standingbut one of authorization to bring suit. The named plaintiff, theGolden Hill Paugussett Tribe, clearly has standing to assert aright to its aboriginal lands. See Oneida Indian Nation of NewYork v. New York, 691 F.2d 1070, 1081 (2d Cir. 1982). The onlyquestion is whether the person who has instituted the litigationon behalf of the tribe, Aurelius H. Piper, Jr., whose Indian nameis Chief Quiet Hawk, has been authorized by the tribe to do so.Challenges to one's authority to bring suit have been made ininnumerable ways, including an affirmative defense in thepleadings; Vishipco Line v. Chase Manhattan Bank, N.A., 660 F.2d 854(2d Cir. 1981), cert. denied, 459 U.S. 976, 103 S.Ct. 313, 74L.Ed.2d 291 (1982); or a motion to vacate service and summons ofcomplaint; Sterling Industries, Inc. v. Ball Bearing Pen Corp.,298 N.Y. 483, 84 N.E.2d 790 (1949); or a motion to dismiss;Meredith v. Ionian Trader, 279 F.2d 471 (2d Cir. 1960). I agreethat a defendant should be able to raise such an issue early inthe proceedings.
20. General Statutes § 47-66i provides: METHOD OF SELECTINGTRIBAL LEADERS. DISPUTES. (a) Each tribal leader shall file withthe governor his name and a written description of the method ofselecting tribal leaders and the process by which tribal leadersexercise their authority. The governor shall file suchdescription with the secretary of the state and the IndianAffairs Council established under section 47-59b. "(b) A leadership dispute shall be resolved in accordance withtribal usage and practice. Upon request of a party to a dispute,the dispute may be settled by a council. Each party to thedispute shall appoint a member to the council and the partiesshall jointly appoint one or two additional members provided thenumber of members of the council shall be an odd number. If theparties cannot agree on any joint appointment, the governor shallappoint any such member who shall be a person knowledgeable inIndian affairs. The decision of the council shall be final onsubstantive issues. An appeal may be taken to the superior courtto determine if provisions of the written description filed withthe secretary of the state pursuant to this section have beenfollowed. If the court finds that the dispute was not resolved inaccordance with the provisions of the written description, itshall remand the matter with instructions to reinstituteproceedings, in accordance with such provisions."
21. The Indian Affairs Council includes a representative ofeach of the five tribes recognized by the state including theGolden Hill Paugussett Tribe. General Statutes § 47-59b.
22. Representative Andrew Norton, who was a member of the taskforce, remarked on the bill in the House of Representatives that"the tribe has every right to pick its own method of leadership.The state only asks that we have a copy of that format so that incases of dispute it can be referred to . . . ." 32 H.R. Proc.,Pt. 31, 1989 Sess., p. 10896.
23. The majority, in its pursuit to uphold the dismissal ofthis case and thereby temporarily dispose of the vexing issues itraises, dismisses this minimally intrusive procedure as merelyone that the parties may or may not choose to employ. Themajority argues that the statute indicates only that a party tothe dispute "may" submit the dispute to a panel of threearbitrators, and that the procedure, therefore, is discretionary.It is well established, however, that the "word `may' when usedin a statute is to be interpreted as mandatory rather thandirectory if the context of the statute permits it and it isnecessary to do so in order to make the statute effective tocarry out the legislative intent." Karp v. Urban RedevelopmentCommission, 162 Conn. 525, 530, 294 A.2d 633 (1972); see State exrel. Markley v. Bartlett, 130 Conn. 88, 93, 32 A.2d 58 (1943);Lake Garda Co. v. LeWitt, 126 Conn. 588, 590-91, 13 A.2d 510(1940); Capobinco v. Samorak, 102 Conn. 310, 313, 128 A. 648(1925). Clearly, the intent of the legislature in this case wasto establish an effective means for the resolution of intratribaldisputes that allowed for only limited review by state
24. No party to this action disputes Chief Big Eagle'scontinuing authority as traditional tribal chief. "The GoldenHill Paugussetts are the state's only traditionally governedTribe: whereas the other four tribes now have elected tribalchairmen and tribal councils, the Paugussett Chief is appointedby the clan mother." Legislative Task Force on Indian Affairs,Report to General Assembly, Feb., 1989, p. 1, reprinted in Conn.Joint Standing Committee Hearings, Environment, Pt. 8, 1989Sess., p. 2461. Clan mother Ethel Sherman Piper Baldwin Petersappointed Chief Big Eagle the traditional tribal chief in 1959.
25. The record indicates that Moonface Bear is not without hisproblems with either the tribe or the state. The tribal documentson file with the secretary of the state indicate that both ChiefBig Eagle and Chief Quiet Hawk banished Moonface Bear from thetribe in April, 1993 — several months prior to the filingof this lawsuit — and revoked any powers he held withrespect to the tribe. Therefore, according to these documents, atno time relevant to the issues involved in this case did MoonfaceBear hold a position of leadership in the tribe. The state, meanwhile, has charged Moonface Bear with threecounts of selling unstamped cigarettes in violation of GeneralStatutes § 12-304(b)(1), two counts of conspiracy to sellunstamped cigarettes in violation of General Statutes §§53a-48 and 12-304(b)(1), one count of interfering with a policeofficer in violation of General Statutes § 53a-167a, onecount each of threatening and coercion in violation of GeneralStatutes §§ 53a-62 and 53a-192, respectively, one count ofconspiracy to commit threatening and coercion in violation ofGeneral Statutes § 53a-48, and one count of possessing andoffering for sale 20,000 or more unstamped cigarettes inviolation of § 12-304(b). State v. Piper, supra, 12 Conn. L.Rptr. 138.
26. Moonface Bear's documents, dated January 25, 1990, werereceived in the secretary of the state's office on February 22,1990.
27. The majority contends that the dispute resolution councilcannot conclusively decide issues of Indian governance andleadership because the council must resolve the dispute "inaccordance with the provisions of the written description" whichare filed with the secretary of the state pursuant to §47-66i(a). According to the majority, an Indian who disputed histribe's leadership might therefore "become bound by documents[he] alleged to be inaccurate or fraudulent." This is a narrow and incorrect reading of the statute. Indeed,such a reading presumes that tribal documents, once filedpursuant to § 47-66i, can never be updated to reflect changesin tribal leadership and that the dispute resolution council isunable to determine the authenticity of documents filed. Each ofthese presumptions is flawed. First, there is nothing in the statute to prevent a member ofthe tribe who claims to be the rightful leader from filinganother explanation of the practices the tribe follows inchoosing its leader and its form of governance. Indeed, themajority recognized this fact elsewhere in its opinion, when itstated that "the statute empowers any individual purporting to bethe `leader' of a tribe to file documents confirming hisleadership and power." In the case of the Golden Hill PaugussettTribe, for example, several individuals have filed documentsdescribing the scope of their leadership and the tribe's processof governance. Moonface Bear filed documents in 1990 under hisauthority as "warchief and Reservation Chief of Colchester."Chief Quiet Hawk filed documents in February, 1993, and inAugust, 1993, under his authority as "council chief" Chief BigEagle filed documents in July, 1993, under his authority as"traditional chief." Clearly, the majority's presumption that nosuperseding documents can ever be filed is incorrect. Second, because the statute allows the filing of supersedingdocuments, the dispute resolution council is necessarilyauthorized to determine which filing is authentic in order toresolve the leadership dispute. Indeed, this is the very purposeof requiring the members of the council to be either appointed bythe parties or "knowledgeable in Indian affairs." In a case ofcontradictory filings, the council would simply determine whichset of filed documents accurately represents the tribe'sleadership structure, and then would determine which of thecontending parties was properly chosen the leader. In the case ofan appeal to Superior Court, the court would determine whetherthe council properly determined, based upon the documents itfound to be authentic, who was the proper leader and the powershe possesses.
28. See footnote 4 and accompanying text.
29. The Second Circuit Court of Appeals allowed the GoldenHill Paugussett Tribe to reapply to the trial court for a rulingon the merits if the BIA had not ruled on its tribal statuswithin eighteen months.
30. The majority ingenuously suggests that it will not deferto the dispute resolution council because no party has "explainedhow an arbitration decision identifying an individual as atribe's `leader' pursuant to § 47-66i would `materiallyai[d]' the court in determining whether that leader had authorityto sue on the tribe's behalf." The statute, however, empowers thecouncil to resolve not only who is a tribe's leader, but also atribal "leadership dispute." The council, therefore, is capableof determining not only who represents the tribe but also whattype of authority he has traditionally possessed. The council'sdetermination on this point would certainly "materially aid" a
31. General Statutes § 47-61 provides: "NO TITLE BYPOSSESSION AGAINST AN INDIAN. In any action brought by an Indianor Indians for the recovery of lands owned by Indians, orsequestered for their use by the general assembly or by any townagreeably to law, the defendant shall not plead the statute oflimitations, except as against an Indian or Indians authorized bylaw to convey Indian lands, or as against a town authorized bylaw to convey Indian lands."
32. The state has formally recognized the tribe as a sovereignnation; see General Statutes § 47-59a; and has recognized thetribe's reservation in the town of Colchester. See GeneralStatutes § 47-63.