Upper Skagit Tribe v. Lundgren

certiorari to the supreme court of washington

No. 17–387. Argued March 21, 2018—Decided May 21, 2018 The Upper Skagit Indian Tribe purchased a roughly 40-acre plot of land and then commissioned a boundary survey. The survey convinced the Tribe that about an acre of its land lay on the other side of a boundary fence between its land and land owned by Sharline and Ray Lundgren. The Lundgrens filed a quiet title action in Washington state court, in-voking the doctrines of adverse possession and mutual acquiescence, but the Tribe asserted sovereign immunity from the suit. Ultimately, the State Supreme Court rejected the Tribe's immunity claim and ruled for the Lundgrens, reasoning that, under County of Yakima v. Confederated Tribes and Bands of Yakima Nation, 502 U. S. 251, tribal sovereign immunity does not apply to in rem suits. Held: Yakima addressed not the scope of tribal sovereign immunity, but a question of statutory interpretation of the Indian General Allotment Act of 1887. That Act authorized the President to allot parcels of reservation land to individual tribal members and directed the United States eventually to issue fee patents to the allottees as private individuals. In 1934, Congress reversed course but made no attempt to withdraw the lands already conveyed. As a result, Indian reservations sometimes contain both trust land held by the United States and fee-patented land held by private parties. Yakima concerned the tax consequences of this intermixture. This Court had previously held that § 6 of the General Allotment Act could no longer be read as allowing States to impose in personam taxes on transactions between Indians on fee-patented land within a reservation. Moe v. Confederated Salish and Kootenai Tribes of Flathead Reservation, 425 U. S. 463, 479–481. The Court reached a different conclusion in Yakima with respect to in rem state taxes, holding that the state collection of property taxes on fee-patented land within reservations was still allowed under § 6. 502 U. S., at 265. In short, Yakima sought only to interpret a relic of a statute in light of a distinguishable precedent; it resolved nothing about the law of sovereign immunity. Acknowledging this, the Lundgrens now ask the Court to affirm on an alternative, common-law ground: that the Tribe cannot assert sovereign immunity because this suit relates to immovable property located in Washington State, purchased by the Tribe in the same manner as a

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private individual. Because this alternative argument did not emerge until late in this case, the Washington Supreme Court should address it in the first instance. Pp. 558–561. 187 Wash. 2d 857, 389 P. 3d 569, vacated and remanded. Gorsuch, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. Roberts, C. J., filed a concurring opinion, in which Kennedy, J., joined, post, p. 562. Thomas, J., filed a dissenting opinion, in which Alito, J., joined, post, p. 564.

David S. Hawkins argued the cause for petitioner. With him on the briefs were Arthur W. Harrigan, Jr ., Tyler L. Farmer , Kristin E. Ballinger , and John C. Burzynski.

Ann O'Connell argued the cause for the United States as amicus curiae urging reversal. With her on the brief were Solicitor General Francisco , Acting Assistant Attorney General Wood, Deputy Solicitor General Kneedler , William B. Lazarus, and Mary Gabrielle Sprague.

Eric D. Miller argued the cause for respondents. With him on the brief were Scott M. Ellerby , Luke M. Rona, Jennifer A. MacLean, and Charles G. Curtis, Jr.*

Lower courts disagree about the significance of our decision in County of Yakima v. Confederated Tribes and Bands of Yakima Nation, 502 U. S. 251 (1992). Some think it means Indian tribes lack sovereign immunity in in rem lawsuits like this one; others don't read it that way at all.* We granted certiorari to set things straight. 583 U. S. 1036 (2017).

Ancestors of the Upper Skagit Tribe lived for centuries along the Skagit River in northwestern Washington State. But as settlers moved across the Cascades and into the region, the federal government sought to make room for them by displacing native tribes. In the treaty that followed with representatives of the Skagit people and others, the tribes agreed to “cede, relinquish, and convey” their lands to the United States in return for $150,000 and other promises. Treaty of Point Elliott, Jan. 22, 1855, 12 Stat. 927; see Washington v. Washington State Commercial Passenger Fishing Vessel Assn., 443 U. S. 658, 676 (1979); United States v. Washington, 384 F. Supp. 312, 333 (WD Wash. 1974).

Today's dispute stems from the Upper Skagit Tribe's efforts to recover a portion of the land it lost. In 1981, the federal government set aside a small reservation for the Tribe. 46 Fed. Reg. 46681. More recently, the Tribe has sought to purchase additional tracts in market transactions. In 2013, the Tribe bought roughly 40 acres where, it says, tribal members who died of smallpox are buried. The Tribe bought the property with an eye to asking the federal government to take the land into trust and add it to the existing

The problem was a barbed wire fence. The fence runs some 1,300 fleet along the boundary separating the Tribe's land from land owned by its neighbors, Sharline and Ray Lundgren. The survey convinced the Tribe that the fence is in the wrong place, leaving about an acre of its land on the Lundgrens' side. So the Tribe informed its new neighbors that it intended to tear down the fence; clearcut the interven-ing acre; and build a new fence in the right spot.

In response, the Lundgrens filed this quiet title action in Washington state court. Invoking the doctrines of adverse possession and mutual acquiescence, the Lundgrens offered evidence showing that the fence has stood in the same place for years, that they have treated the disputed acre as their own, and that the previous owner of the Tribe's tract long ago accepted the Lundgrens' claim to the land lying on their side of the fence. For its part, the Tribe asserted sovereign immunity from the suit. It relied upon the many decisions of this Court recognizing the sovereign authority of Native American tribes and their right to “the common-law immunity from suit traditionally enjoyed by sovereign powers.” Michigan v. Bay Mills Indian Community , 572 U. S. 782, 788 (2014) (internal quotation marks omitted).

Ultimately, the Supreme Court of Washington rejected the Tribe's claim of immunity and ruled for the Lundgrens. The court reasoned that sovereign immunity does not apply to cases where a judge “exercis[es] in rem jurisdiction” to quiet title in a parcel of land owned by a Tribe, but only to cases where a judge seeks to exercise in personam jurisdiction over the Tribe itself. 187 Wash. 2d 857, 867, 389 P. 3d 569, 573 (2017). In coming to this conclusion, the court relied in part on our decision in Yakima. Like some courts before it, the Washington Supreme Court read Yakima as distinguish- Page Proof Pending Publication

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That was error. Yakima did not address the scope of tribal sovereign immunity. Instead, it involved only a much more prosaic question of statutory interpretation concerning the Indian General Allotment Act of 1887. See 24 Stat. 388.

Some background helps dispel the misunderstanding. The General Allotment Act represented part of Congress's late 19th-century Indian policy: “to extinguish tribal sovereignty, erase reservation boundaries, and force the assimilation of Indians into the society at large.” Yakima, supra, at 254; In re Heff, 197 U. S. 488, 499 (1905). It authorized the President to allot parcels of reservation land to individual tribal members. The law then directed the United States to hold the allotted parcel in trust for some years, and afterwards issue a fee patent to the allottee. 24 Stat. 389. Section 6 of the Act, as amended, provided that once a fee patent issued, “each and every allottee shall have the benefit of and be subject to the laws, both civil and criminal, of the State or Territory in which they may reside” and “all restrictions as to sale, incumbrance, or taxation of said land shall be removed.” 25 U. S. C. § 349.

In 1934, Congress reversed course. It enacted the Indian Reorganization Act, 48 Stat. 984, to restore “the principles of tribal self-determination and self-governance” that prevailed before the General Allotment Act. Yakima, 502 U. S., at 255. “Congress halted further allotments and extended in-definitely the existing periods of trust applicable to” parcels that were not yet fee patented. Ibid.; see 25 U. S. C. §§ 461– 462. But the Legislature made no attempt to withdraw lands already conveyed to private persons through fee patents (and by now sometimes conveyed to non-Indians). As a result, Indian reservations today sometimes contain two Page Proof Pending Publication

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Yakima concerned the tax consequences of this checkerboard. Recall that the amended version of § 6 of the General Allotment Act rendered allottees and their fee-patented land subject to state regulations and taxes. 25 U. S. C. § 349. Despite that, in Moe v. Confederated Salish and Kootenai Tribes of Flathead Reservation, 425 U. S. 463 (1976), this Court held that § 6 could no longer be read as allowing States to impose in personam taxes (like those on cigarette sales) on transactions between Indians on fee-patented land within a reservation. Id., at 479–481. Among other things, the Court pointed to the impracticality of using the ownership of a particular parcel within a reservation to determine the law governing transactions taking place upon it. See id., at 478–479. Despite Moe and some years later, this Court in Yakima reached a different conclusion with respect to in rem state taxes. The Court held that allowing States to collect property taxes on fee-patented land within reservations was still allowed by § 6. Yakima, supra, at 265. Unlike the in personam taxes condemned in Moe , the Court held that imposing in rem taxes only on the fee-patented squares of the checkerboard was “not impracticable” because property tax assessors make “parcel-by-parcel determinations” about property tax liability all the time. Yakima, supra, at 265. In short, Yakima sought only to interpret a relic of a statute in light of a distinguishable precedent; it resolved nothing about the law of sovereign immunity.

Commendably, the Lundgrens acknowledged all this at oral argument. Tr. of Oral Arg. 36–37. Instead of seeking to defend the Washington Supreme Court's reliance on Yakima, they now ask us to affirm their judgment on an entirely distinct alternative ground. At common law, they say, sovereigns enjoyed no immunity from actions involving immov- Page Proof Pending Publication

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The Tribe and the federal government disagree. They note that immunity doctrines lifted from other contexts do not always neatly apply to Indian tribes. See Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc., 523 U. S. 751, 756 (1998) (“[T]he immunity possessed by Indian tribes is not coextensive with that of the States”). And since the founding, they say, the political branches rather than judges have held primary responsibility for determining when foreign sovereigns may be sued for their activities in this country. Verlinden B. V. v. Central Bank of Nigeria, 461 U. S. 480, 486 (1983); Ex parte Peru, 318 U. S. 578, 588 (1943).

We leave it to the Washington Supreme Court to address these arguments in the first instance. Although we have discretion to affirm on any ground supported by the law and the record that will not expand the relief granted below, Thigpen v. Roberts, 468 U. S. 27, 30 (1984), in this case we think restraint is the best use of discretion. Determining the limits on the sovereign immunity held by Indian tribes is a grave question; the answer will affect all tribes, not just the one before us; and the alternative argument for affirm-ance did not emerge until late in this case. In fact, it appeared only when the United States filed an amicus brief in this case—after briefing on certiorari, after the Tribe filed its opening brief, and after the Tribe's other amici had their say. This Court has often declined to take a “first view” of questions that make their appearance in this posture, and we Page Proof Pending Publication

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The dissent is displeased with our decision on this score, but a contradiction lies at the heart of its critique. First, the dissent assures us that the immovable property exception applies with irresistible force—nothing more than a matter of “hornbook law.” Post, at 566–572 (opinion of Thomas, J.). But then, the dissent claims that allowing the Washington Supreme Court to address that exception is a “grave” decision that “casts uncertainty” over the law and leaves lower courts with insufficient “guidance.” Post, at 565–566, 575. Both cannot be true. If the immovable property exception presents such an easy question, then it's hard to see what terrible things could happen if we allow the Washington Supreme Court to answer it. Surely our state court colleagues are no less versed than we in “hornbook law,” and we are confident they can and will faithfully apply it. And what if, instead, the question turns out to be more complicated than the dissent promises? In that case the virtues of inviting full adversarial testing will have proved themselves once again. Either way, we remain sanguine about the consequences.

The dissent's other objection to a remand rests on a belief that the immovable property exception was the source of “the disagreement that led us to take this case.” Post, at 564. But this too is mistaken. As we've explained, the courts below and the certiorari-stage briefs before us said precisely nothing on the subject. Nor do we understand how the dissent might think otherwise—for its essential premise is that no disagreement exists, or is even possible, about the exception's scope. The source of confusion in the lower courts that led to our review was the one about Yakima, see supra, at 556, n., and we have dispelled it. That is work enough for the day. We vacate the judgment and remand the case for further proceedings not inconsistent with this opinion.

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I join the opinion of the Court in full.

But that opinion poses an unanswered question: What precisely is someone in the Lundgrens' position supposed to do? There should be a means of resolving a mundane dispute over property ownership, even when one of the parties to the dispute—involving non-trust, non-reservation land—is an Indian tribe. The correct answer cannot be that the tribe always wins no matter what; otherwise a tribe could wield sovereign immunity as a sword and seize property with impunity, even without a colorable claim of right.

The Tribe suggests that the proper mode of redress is for the Lundgrens—who purchased their property long before the Tribe came into the picture—to negotiate with the Tribe. Although the parties got off on the wrong foot here, the Tribe insists that negotiations would run more smoothly if the Lundgrens “understood [its] immunity from suit.” Tr. of Oral Arg. 61. In other words, once the Court makes clear that the Lundgrens ultimately have no recourse, the parties can begin working toward a sensible settlement. That, in my mind at least, is not a meaningful remedy.

The Solicitor General proposes a different out-of-court solution. Taking up this Court's passing comment that a disappointed litigant may continue to assert his title, see Block v. North Dakota ex rel. Board of Univ. and School Lands, 461 U. S. 273, 291–292 (1983), the Solicitor General more pointedly suggests that the Lundgrens should steer into the conflict: Go onto the disputed property and chop down some trees, build a shed, or otherwise attempt to “induce [the Tribe] to file a quiet-title action.” Brief for United States as Amicus Curiae 23–24. Such brazen tactics may well have the desired effect of causing the Tribe to waive its sovereign immunity. But I am skeptical that the law requires private individuals—who, again, had no prior dealings with the Tribe—to pick a fight in order to vindicate their interests. Page Proof Pending Publication

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