Should there be an exception to the rule of tribal sovereign immunity when the action is an in rem proceeding and the Indian tribe purchased the land in question commercially?
In this case, the Supreme Court will decide whether there will be an exception to the rule of tribal sovereign immunity when a tribe is sued in an in rem proceeding. Petitioner Upper Skagit Indian Tribe argues that there should not be an exception for in rem proceedings because actions against a tribe’s land challenge its sovereignty and cannot be distinguished from in personam actions in the way they affect a tribe’s personal interests. The Upper Skagit Indian Tribe asserts that because the Court has never recognized this exception it is up to Congress instead to weigh the policy considerations at issue and create new legislation if necessary. Respondents Sharline and Ray Lundgren argue that the Upper Skagit Indian Tribe does not have sovereignty over the land at issue because it lost title to the land in 1855 and cannot regain sovereignty through a commercial purchase, which is how it got the land back in 2013. Furthermore, the Lundgrens argue that there should be an exception to tribal sovereign immunity for cases of in rem jurisdiction because of the state interest in regulating the conditions of title to property within its territory. This case will determine whether there will be a new class of cases in which a private individual can subject an Indian tribe to a lawsuit.
Questions as Framed for the Court by the Parties
Does a court’s exercise of in rem jurisdiction overcome the jurisdictional bar of tribal sovereign immunity when the tribe has not waived immunity and Congress has not unequivocally abrogated it?
In 1981, Sharline and Ray Lundgren purchased 10 acres of land in Skagit County, Washington. The land had previously belonged to Sharline’s grandmother, who purchased it in 1947. Since that time, the family has treated a fence running along the property as the boundary between their property and the neighboring property; they have also exclusively maintained the land near the fence and harvested timber on their land.
In 2013, the Upper Skagit Indian Tribe (“Tribe”) purchased the land neighboring the Lundgren’s property from Paul Brown, Vivian Jennings, and Barbara Carrell. The land had previously belonged to Annabell Brown who quitclaimed a fourth undivided interest in the land to her son David Brown in 1984; when Annabell Brown died, the land passed to her three remaining children, who sold the property to the Tribe.
The Tribe alleges that it did not know that the fence existed when it bought the land in 2013, but later became aware of the fence’s presence through surveyors. In September 2014, the Tribe sent a letter to the Lundgrens stating that it did not recognize the fence as the boundary between the two properties and that the property deeded to them extended beyond the fence barrier into the property that the Lundgrens had been treating as their own.
In March 2015, the Lundgrens brought a quiet title action against the Tribe in the Washington Superior Court and asked the court to grant them injunctive relief. The Lundgrens moved for summary judgment on the basis that they acquired the land through adverse possession before the Tribe even purchased it, as the law allows adverse possession after ten years; they also claimed ownership to the land through mutual acceptance and acquiescence. The Tribe moved to dismiss the action for lack of subject matter jurisdiction on the basis of their sovereign immunity from suit and for failure to join the necessary parties.
The trial court denied the Tribe’s motion to dismiss. The Tribe sought direct discretionary review, and the trial court granted the Lundgrens’ motion for summary judgment. The trial court held that the Lundgrens had adversely possessed the land in question and that there existed mutual acceptance and acquiescence of ownership. Thus, the two orders allowed the Lundgrens to assert ownership over the land in question.
The Tribe amended its motion for direct discretionary review, seeking review of the trial court’s decisions. The Supreme Court of Washington accepted review and affirmed the trial court’s rulings. The Supreme Court of Washington held that dismissing the Lundgrens’ action would deprive them of justice, leaving them without any remedy for their adverse possession claim, and would allow the Tribe to “[wield] sovereign immunity as a sword in disguise.” The Supreme Court granted certiorari on December 8, 2017.
DOES THE UPPER SKAGIT INDIAN TRIBE HAVE SOVEREIGN AUTHORITY OVER THE DISPUTED LAND?
The Tribe asserts that, as a recognized Indian tribe, it is immune from lawsuits under the doctrine of sovereign immunity. According to the Tribe, an individual cannot bring an Indian tribe into court without its consent. The Tribe maintains that its sovereign immunity can be revoked in only two ways: an express act of Congress or voluntary waiver by a tribe itself. The Tribe points out that neither it nor Congress expressly permitted Washington state courts to bypass the Tribe’s sovereign immunity in this case. The Tribe emphasizes that federal law governs tribal immunity, which state courts must respect.
The Lundgrens do not dispute that an Indian tribe maintains sovereign authority over its tribal land. Here, however, the Lundgrens argue that the disputed property is not tribal land and is instead under the sovereign authority of the State of Washington. The Lundgrens assert that the Tribe ceded sovereignty over the land to the United States in 1855 pursuant to the Treaty of Point Elliot. In addition, the Lundgrens contend that the disputed land was not previously part of an Indian reservation nor was it held by the government in trust for the Tribe. The Lundgrens note that the Tribe simply purchased the land from its previous owner. The Lundgrens argue that a tribe “cannot unilaterally revive its ancient sovereignty . . . through open-market purchases from current titleholders.” Consequently, the Lundgrens argue that the Tribe cannot claim sovereignty over the disputed land.
IS THERE AN IN REM EXCEPTION TO SOVEREIGN IMMUNITY?
The Tribe argues that the Washington Supreme Court contradicted federal law by recognizing in rem proceedings as a third exception to tribal sovereign immunity. According to the Tribe, in recognizing an in rem exception, the Washington Supreme Court incorrectly applied County of Yakima v. Confederated Tribes and Bands of Yakima Nation. In County of Yakima, an Indian tribe challenged the local county’s authority to impose property taxes on certain tribal land. According to the Tribe, the Court ultimately held that the county did have authority to levy property taxes on certain tribal land pursuant to the Indian General Allotment Act of 1887 (“GAA”). , Although the Tribe acknowledges that County of Yakima mentioned in rem jurisdiction, it argues that County of Yakima simply confirms the ability of state and local governments to levy taxes on tribal land under the GAA. Furthermore, the Tribe points out that, unlike the government in this case, the local government in County of Yakima was acting pursuant to an express act of Congress. Finally, the Tribe asserts that very few other courts read County of Yakima to stand for the proposition that there is an in rem exception to tribal sovereign immunity.
The Tribe contends that it is “settled federal law” that both individual states and the federal government retain sovereign immunity in in rem cases. The Supreme Court, according to the Tribe, has held that only two types of lawsuits supersede sovereign immunity: bankruptcy proceedings and admiralty cases. The Tribe consequently argues that there is no reason to believe that there is a general in rem exception to tribal sovereign immunity.
Next, the Tribe argues that the Washington Supreme Court impermissibly diminished the Tribe’s sovereignty by exercising in rem jurisdiction over the Tribe’s land. The Tribe asserts that a court cannot maintain jurisdiction over a sovereign’s property unless the court also has jurisdiction over the sovereign itself. The Tribe contends that the Washington Supreme Court’s argument that an in rem action does not affect the Tribe’s sovereign interests but merely divides land among its legal owners misses the point. According to the Tribe, if a state court can decide the merits of a property dispute before determining whether one of the parties is immune from suit, then the doctrine of sovereign immunity is meaningless. Furthermore, the Tribe asserts that under current law, a federal court cannot deprive a state of property in a private action, and that the federal government specifically retains sovereign immunity from adverse possession claims. The Tribe argues that there is no meaningful distinction between a state’s sovereign authority over land from that of an Indian tribe’s. Consequently, the Tribe maintains that because it is the record owner of the disputed land, its title to the land may not be adjudicated unless it waives its sovereign immunity or Congress passes legislation expressly permitting such a suit.
In response, the Lundgrens argue that the State of Washington retains in rem jurisdiction over land located within its territory. The Lundgrens emphasize that the judgment in an in rem case affects only the disputed property and does not otherwise extend to the property owner. According to the Lundgrens, a state retains in rem jurisdiction to ensure the marketability of land within its territory and to maintain a uniform procedure for resolving property disputes. Consequently, the Lundgrens maintain that Washington may exercise in rem jurisdiction over property located within its borders, even if Washington lacks personal jurisdiction over one of the parties.
The Lundgrens argue that even assuming that the Tribe generally has sovereign immunity, its sovereign immunity does not extend to immovable property it owns in Washington. The Lundgrens also assert that international law recognizes the immovable property rule, which holds that a foreign state that owns land in the domestic state must follow the rules of the domestic state. As an example, the Lundgrens state that if a prince purchases land in another country, the prince is not entitled to sovereign immunity with respect to the land and instead “assumes the character of a private individual.” In the United States specifically, the Lundgrens assert that a state’s sovereign immunity does not extend to property disputes over land the state owns in another state. The Lundgrens suggest, for example, that if Georgia purchases land in Tennessee, that land can still be condemned under Tennessee law, just like privately-owned land. The Lundgrens maintain that, in arguing that a tribe’s sovereign immunity bars a court from exercising in rem jurisdiction over disputed land, the Tribe erroneously relies on cases where the disputed land rests within the sovereign’s territory.
According to the Lundgrens, the Tribe acknowledges that tribal sovereign immunity is at least not broader than the sovereign immunity of individual states or the federal government. The Lundgrens assert that neither a foreign country nor an individual state would retain sovereign immunity under these facts. In this case, the Lundgrens argue that Washington has a “core state prerogative” to control and adjudicate disputes over land within its territory. Furthermore, the Lundgrens contend that a sovereign has historically never had immunity from an action in another sovereign’s courts when the action involved land located in the other sovereign’s territory.
DO THE LUNDGRENS HAVE OTHER ADEQUATE REMEDIES?
The Tribe argues that the Lundgrens have other remedies available that do not jeopardize the Tribe’s sovereign authority. The Tribe notes that the Lundgrens claim that they acquired title to the disputed land by adverse possession “decades before” the Tribe purchased the adjacent land in 2013. The Tribe highlights, however, that the Lundgrens did not previously seek to confirm their ownership of the disputed property. The Tribe asserts that, even today, the Lundgrens have other remedies available, including filing claims against the seller of the disputed land for unjust enrichment and money had and received. Finally, the Tribe argues that the Lundgrens are free to seek a congressional remedy to address their situation, noting that Congress has been “active and diligent” in limiting tribal sovereignty in the past.
The Lundgrens disagree with the Tribe’s assertion that they failed to take adequate action in the past to confirm ownership of the disputed land. The Lundgrens assert that, under Washington law, an adverse possessor automatically receives title to the land if all the required elements are met during the statutory period; there is no need for the adverse possessor to bring an action in court to confirm his title. The Lundgrens also dispute the Tribe’s assertion that other remedies are still available to them. First, the Lundgrens point out that, generally, a sum of money is inadequate to rectify the loss of land. Next, the Lundgrens argue that neither one of the Tribe’s suggested legal claims are viable. The Lundgrens maintain that they cannot succeed on a claim to recover money from the seller of the land because they did not pay any money to their neighbors who sold the land to the Tribe. The Lundgrens likewise argue that they cannot succeed on a claim for unjust enrichment because they conferred no benefit on the land’s prior owner.
SOVEREIGNTY INTERESTS IN LAND
The Tribe argues that Indian tribes have a special interest in land ownership due to their turbulent history with land rights since the founding of the United States. It points out that this history included the government taking land from tribes to specifically undermine their sovereignty, with the larger purpose of forcing assimilation. The National Congress of American Indians, et al., in support of the Tribe, furthers that land serves a distinct purpose for Indian tribes, especially when it comes to religious practice and tribal identity and that, most often, tribes have lost their land to private individuals, as would happen in this case. The National Congress of American Indians also argues that the Tribe specifically has struggled with land loss in its history, as it lost its homeland in the Treaty of Point Elliott in 1855 and, since the 1970s, has been trying to regain it. This, the National Congress of American Indians argues, lends significance to the Tribe’s claim to the land, distinct from the claim of a private individual.
The Lundgrens argue that, since the Tribe lost title to its land in the Treaty of Point Elliott in 1855, and the land in question was not part of the land the federal government gave the Tribe in the 1980s, the Tribe cannot assert sovereignty over this land. Thus, the Lundgrens argue, the Tribe’s sovereign interest in this land is based only on its commercial purchase of the land from Paul Brown, Vivian Jennings, and Barbara Carrell in 2013. The Lundgrens assert that an Indian tribe cannot “revive” its sovereign interest over land through commercial purchases such as this one. The Lundgrens instead assert that the State of Washington has a sovereign interest over this land, since the Tribe’s sovereign interest was lost in 1855, and the state can assert jurisdiction over the Tribe because of this. Finally, the Lundgrens argue that, even if sovereign immunity did exist here, an in rem action does not infringe on it because it involves only property. Seneca County, in support of the Lundgrens, adds that, in this scenario, the Tribe is more akin to a private landowner; borrowing the Supreme Court’s analysis in County of Yakima, it argues that allowing private remedies in actions involving tribe-owned lands does not implicate sovereignty in the way that asserting jurisdiction over tribe members themselves does.
PROPER SCOPE OF SOVEREIGN IMMUNITY
The Cayuga Nation, et al., in support of the Tribe, argues that tribal sovereign immunity should be read broadly to include in rem actions because in rem actions against Indian tribes, although they regard property, have the same effect as in personam actions of drawing the tribes into court to answer the complaints of the private party asserting them. . Thus, the Cayuga Nation argues, these actions injure the dignity of the Indian tribes, which the rule of sovereign immunity seeks to prevent. The National Congress of American Indians adds that a plaintiff cannot get around sovereign immunity simply by classifying the action a certain way, giving the example that a litigant cannot evade federal sovereign immunity by suing a government official instead of the government itself. They argue that an action against a sovereign’s land is one of the greatest violations of a sovereign’s dignity.
The Lundgrens argue that tribal sovereign immunity should be read narrowly in this case, largely because of the interest a state has in ensuring certain conditions of ownership over land in its territory. The Lundgrens argue that holding of ownership, transfer of ownership, and the regulation of rights of descent, distribution, and grants of domain are distinctly state concerns. They contend that continuous clouds of titles to land in a state are problematic because states have a strong interest in the marketability of land within their borders and ensuring that there is a proper procedure for establishing title to a given property. The Village of Union Springs, in support of the Lundgrens, adds that depriving the state of jurisdiction over the property here would cause “jurisdictional checkerboarding,” also preventing the state from subjecting the property to zoning laws and “other regulatory controls.” Finally, the Lundgrens assert that because tribal sovereign immunity is only quasi-sovereign, in that tribes have more restrictions on their sovereignty than do foreign nations or states, it cannot be broader than these other forms of immunity and, thus, should apply to in rem cases.
- Brian L. Pierson, Washington Supreme Court Rejects Sovereign Immunity Defense in Quiet Title Action, The National Law Review (March 21, 2017).