Opinion analysis: Justices reject state-court justification for limiting tribal immunity from state-court actions to adjudicate title to land

Rarely have I read a set of opinions that so closely tracked the discussion at oral argument as the opinions this morning in Upper Skagit Indian Tribe v Lundgren. The case involves a narrow and technical question of sovereign immunity: whether the immunity of a federally recognized Indian tribe protects it from a suit in state court to adjudicate the tribe’s claim to land located outside the tribe’s reservation. The Washington Supreme Court rejected the tribe’s plea of immunity, reasoning that tribal immunity never applies to suits that are brought “in rem” (against the land), as opposed to “in personam” (against the tribe itself). The Supreme Court’s decision this morning rejected the state court’s analysis for the time being, though the various opinions leave little reason to think that the tribe ultimately will prevail.

To give a little context, the case involves a 40-acre piece of land adjacent to the reservation of the Upper Skagit tribe in northwestern Washington, which the tribe purchased in 2013. When it undertook to survey the land, the tribe discovered a barbed-wire fence running for about 1,300 feet a few feet inside the boundary of the parcel. About one acre of the parcel was on the far side of the fence, adjacent to land owned by the respondent Lundgrens. When the tribe threatened to tear down the fence and build a fence on the parcel’s boundary, the Lundgrens claimed that they  own the land outside the fence under rules for “adverse possession,” because they have continuously exercised control over the land for more than half a century, with the acquiescence of the parcel’s prior owner.

The problem the Lundgrens faced in the Supreme Court is that there is almost no support for the distinction between “in rem” and “in personam” actions that the Washington Supreme Court offered to allow the Lundgrens’ suit to proceed. By the time of the oral argument, even the Lundgrens admitted that the only basis for that distinction was the Supreme Court’s 1992 decision in County of Yakima v Confederated Tribes and Bands of Yakima Nation, and the justices who discussed the question at the argument seemed to think Yakima could not support such a broad intrusion on sovereign immunity. Justice Neil Gorsuch’s brief opinion for the court bluntly dismissed the state court’s reliance on Yakima as “error,” explaining that “Yakima did not address the scope of tribal sovereign immunity.” Rather, he explained, “it involved only a much more prosaic question of statutory interpretation concerning the Indian General Allotment Act of 1887.” Thus, Yakima “resolved nothing about the law of sovereign immunity,” as the Lundgrens “[c]ommendably … acknowledged … at oral argument.”

If this were the only thing going on in the opinions, the tribe would win the case easily. The problem for the tribe, though, is that the reason the Lundgrens abandoned Yakima as a justification for the decision below is that they found a much stronger basis for rejecting the tribe’s sovereign immunity: the idea that a sovereign has no immunity for actions involving “immovable property” located in the territory of another sovereign.  As Gorsuch acknowledged, that doctrine has been recognized by the Supreme Court for more than 200 years. If the doctrine were adopted as an attribute of tribal sovereign immunity, the tribe would have no immunity from the Lundgrens’ action, because the Lundgren parcel is outside the Upper Skagit reservation. The majority of the justices, though, declined to resolve that question, “leav[ing] it to the Washington Supreme Court to address these arguments in the first instance.” The court noted that “[d]etermining the limits on the sovereign immunity held by Indian tribes is a grave question; … and the alternative argument for affirmance did not emerge until late in this case, … only when the United States filed an amicus brief.” Closing his opinion, Gorsuch suggested that “[t]he source of confusion in the lower courts that led to our review was the one about Yakima … , and we have dispelled it.  That is work enough for the day.”

To make matters worse for the tribe, the two separate opinions that accompanied Gorsuch’s opinion for the majority underscored that the justices are unlikely to welcome a decision by the Washington Supreme Court granting the tribe immunity on remand.  First, Chief Justice John Roberts (joined by Justice Anthony Kennedy) wrote briefly to suggest that it would be “intolerable” if a grant of immunity left the Lundgrens without any legal remedy to protect the land they have occupied since World War II. As his comments at the argument suggested, Roberts was particularly incensed by the suggestion of the solicitor general that the Lundgrens were free to “[g]o onto the disputed property and chop down some trees … or otherwise attempt” to force the tribe to come into court against them. Roberts found himself “skeptical that the law requires private individuals – who had no prior dealings with the Tribe – to pick a fight in order to vindicate their interests.”

Even more pointedly, Justice Clarence Thomas (joined by Justice Samuel Alito) filed a sharp dissent, almost twice as long as Gorsuch’s opinion for the majority, arguing that the “immovable property” exception to sovereign immunity is so well settled that the justices should have reached out to decide the question in this case rather than leaving it for the Washington Supreme Court. Thomas offered a tour de force of historical arguments, citing among other things four treatises that predated adoption of the Constitution, numerous decisions of the Supreme Court addressing the problem in the context of foreign sovereigns, and even longstanding guidance from the State Department on the question. For Thomas, the idea that a sovereign would be immune from litigation over land it held in the territory of another sovereign is so ridiculous that it was absurd for the court to leave the question unresolved. As Thomas put it, it is “difficult to justify” subjecting the Lundgrens to yet another round of litigation over the tribe’s claim of “a sweeping and absolute immunity that no other sovereign has ever enjoyed—not a State, not a foreign nation, and not even the United States.”