A recent decision by the U.S. Supreme Court over a land dispute between two Skagit County land owners and the Upper Skagit Indian Tribe provided some clarification on an earlier Washington Supreme Court precedent, but left open a much larger question concerning tribal sovereign immunity.
On May 21, the Supreme Court decided Upper Skagit Indian Tribe v. Lundgren, No. 17-387, holding that its prior decision in County of Yakima v. Confederated Tribes and Bands of Yakima Nation, 502 U.S. 251 (1992), did not address the scope of tribal sovereign immunity but rather involved a statutory interpretation concerning the Indian Allotment Act of 1887.
The issue dates back to 2013, when the Upper Skagit Indian Tribe purchased approximately 40 acres of land with the intention of adding the land to the adjacent reservation. In order to confirm the property boundaries, the tribe commissioned a survey of the plot, which revealed that approximately an acre of the tribe’s new land was on the other side of a barbed wire fence separating the tribe’s land from land owned by its neighbors, Sharline and Ray Lundgren. The tribe informed the Lundgrens that it was going to tear down the barbed wire fence, clear the land, and build a new fence in the correct spot as determined by the survey.
In order to establish their claim to the contested property, the Lundgrens filed a quiet title action and invoked the doctrines of adverse possession and mutual acquiescence. They stated the property had been in their extended family for approximately 70 years, that the fence had always stood in the same place, that they had treated the disputed acre as their own, and that the previous owner of the tribe’s property had accepted the Lundgren’s claim to the land lying on their side of the fence. The tribe then moved to dismiss the case and asserted sovereign immunity from the suit.
The trial court denied the tribe’s motion to dismiss and held that the Lundgrens had adversely possessed the land in question. On appeal, the Washington Supreme Court affirmed the trial court’s rulings, rejecting the tribe’s claim of immunity. The court relied on an interpretation of the U.S. Supreme Court’s 1992 decision in County of Yakima v. Confederated Tribes and Bands of Yakima Nation and reasoned that there is a difference between in rem jurisdiction (the power a court can exercise over property) and in personam jurisdiction (the power a court has to exercise power over a party). The court held that because this case regarded property, the tribal sovereign immunity did not apply.
The tribe appealed the decision to the U.S. Supreme Court and the case was accepted in an attempt to determine the proper interpretation of the Yakima decision. The Supreme Court held that the Washington Supreme Court’s interpretation of Yakima was incorrect. Writing for the majority, Justice Neil Gorsuch determined that Yakima “resolved nothing about the law of sovereign immunity,” but rather addressed a question of statutory interpretation concerning the Indian General Allotment Act of 1887, specifically that states could collect property taxes on land owned by private parties within tribal reservations. Therefore, Yakima did not support the Washington Supreme Court’s decision that the tribe did not have sovereign immunity in an in rem lawsuit.
At oral argument, however, the Lundgrens asked the Supreme Court to affirm the judgment on an entirely different basis. They argued that even if the tribe has sovereign immunity, its sovereign immunity does not extend to immovable property it owns in Washington state. This “immovable property exception” holds that sovereigns who purchase property within the territory of another sovereign cannot invoke their sovereign immunity to halt proceedings concerning those lands.
The U.S. Supreme Court chose not to issue a ruling based on the Lundgrens’ arguments, but rather remanded the case back to the Washington Supreme Court to address those concerns. Although the Supreme Court has the discretion to affirm on any ground supported by the law, the court declined to rule on the issue here. As Justice Gorsuch wrote, the court felt that determining the limits on the sovereign immunity held by Indian tribes is a “grave question” as the answer can affect all tribes and not just the Upper Skagit Indian Tribe. As the oral arguments raised a brand new question of law, the court sent the case back to the Washington Supreme Court.
In a lengthy dissent, Justice Clarence Thomas argued that the immovable property exception did apply to tribes. Justice Thomas argued that the immovable property exception is well established, and since the immovable property exception applies to both state and sovereign immunity it should apply to tribal immunity as well. Justice Thomas was concerned that by failing to address the immovable property exception, the court did not leave any further guidance for state and federal courts, as well as delaying relief for the Lundgrens who still do not know whether they can legally bring a suit against the tribe.
As the case was remanded, it’s now up to the Washington Supreme Court to decide the types of property-related cases where tribes can assert immunity. And just as Justice Thomas predicted, the parties will have to wait a bit longer to resolve their property dispute.
Shanna Lisberg. Shanna is an attorney who lives and works in Seattle. She can be reached at selisberg@gmail.com.
