On May 21, 2018, the Supreme Court of the United States 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 addressed a specific statutory issue. The Washington Supreme Court erred in relying on Yakima for the principle that it had subject matter jurisdiction over an in rem proceeding where sovereign immunity was asserted.
In 2013, the Upper Skagit Tribe purchased forty acres of property believed to contain a tribal burial site, which was adjacent to an existing reservation. Following a survey, the Tribe discovered that a barbed wire fence running along a boundary line with privately owned neighboring property appeared to leave about an acre of the newly purchased parcel on the wrong side of the fence. The neighboring property owners, the Lundgrens, filed a quiet title action in Washington state court as to which the Tribe asserted sovereign immunity from suit. Relying in part on the Supreme Court’s prior decision in Yakima, the Supreme Court of Washington ultimately rejected the Tribe’s claim of immunity and ruled for the Lundgrens.
In an opinion by Justice Gorsuch, the Supreme Court clarified that Yakima does not resolve whether sovereign immunity extends to in rem actions but rather addressed a “much more prosaic 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. As such, Yakima did not support the Washington Supreme Court’s decision that it could assert jurisdiction over the Tribe.
At oral argument, counsel for the Lundgrens asked the Court to uphold the Washington Supreme Court’s decision on a different ground—the common law ground that “sovereigns enjoy no immunity from actions involving immovable property located in the territory of another sovereign.” Specifically, the Lundgrens argued that the Tribe could not assert sovereign immunity because the property at issue was purchased by the Tribe in the character of a private individual—an immovable property exception to sovereign immunity. The Court declined to consider this argument in the first instance because it was raised only after the United States had filed an amicus brief. The Court concluded that it should exercise restraint and decline to decide the issue in the first instance because the alternate ground for affirmance did not arise until late in the case and involved a “grave question” that would affect all tribes.
Justice Gorsuch delivered the opinion of the Court in which Chief Justice Roberts and Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan joined. Chief Justice Roberts also filed a concurring opinion, in which Justice Kennedy joined. Justice Thomas filed a dissenting opinion, in which Justice Alito joined.