__ U.S. __, 17-387, Upper Skagit Indian Tribe v. Lundgren

Docket Nº:17-387
Citation:__ U.S. __, 138 S.Ct. 1649, 200 L.Ed.2d 931, 86 U.S.L.W. 4314, 27 Fla.L.Weekly Fed. S 268
Opinion Judge:GORSUCH, Justice.
Party Name:UPPER SKAGIT INDIAN TRIBE, Petitioner v. Sharline LUNDGREN, et vir.
Attorney:David S. Hawkins, Sedro-Woolley, WA, for Petitioner. Ann O’Connell, for the United States as amicus curiae, by special leave of the Court, supporting the petitioner. Eric D. Miller, Seattle, WA, for respondents. Lisa Madigan, Attorney General, State of Illinois, David L. Franklin, Solicitor Gener...
Judge Panel: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. THOMAS, J., filed a dissenting opinion, in which ALITO, J., joined. Chief Justice ROB...
Case Date:May 21, 2018
Court:United States Supreme Court
 
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__ U.S. __

138 S.Ct. 1649, 200 L.Ed.2d 931, 86 U.S.L.W. 4314, 27 Fla.L.Weekly Fed. S 268

UPPER SKAGIT INDIAN TRIBE, Petitioner

v.

Sharline LUNDGREN, et vir.

No. 17-387

United States Supreme Court

May 21, 2018

Argued March 21, 2018.

[138 S.Ct. 1650] Syllabus [*]

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, invoking 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, 112 S.Ct. 683, 116 L.Ed.2d 687, 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, 96 S.Ct. 1634, 48 L.Ed.2d 96. 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, 112 S.Ct. 683. 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 private individual. Because this alternative argument did not emerge until late in this case, the Washington Supreme Court should address [138 S.Ct. 1651] it in the first instance. Pp. 1652 - 1655.

187 Wn.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. THOMAS, J., filed a dissenting opinion, in which ALITO, J., joined.

David S. Hawkins, Sedro-Woolley, WA, for Petitioner.

Ann O’Connell, for the United States as amicus curiae, by special leave of the Court, supporting the petitioner.

Eric D. Miller, Seattle, WA, for respondents.

Lisa Madigan, Attorney General, State of Illinois, David L. Franklin, Solicitor General, Brett E. Legner, Deputy Solicitor General, Chicago, IL, Curtis T. Hill, Jr., Attorney General, State of Indiana, Indianapolis, IN, Hector Balderas, Attorney General, State of New Mexico, Santa Fe, NM, Ken Paxton, Attorney General, State of Texas, Austin, TX

Arthur W. Harrigan, Jr., Tyler L. Farmer, Kristin E. Ballinger, John C. Burzynski, Harrigan Leyh Farmer & Thomsen LLP, Seattle, WA, David S. Hawkins, General Counsel, Upper Skagit Indian Tribe, Sedro-Woolley, WA, for Petitioner.

Eric D. Miller, Luke M. Rona, Perkins Coie LLP, Scott M. Ellerby, Mullavey, Prout, Grenley & Foe, LLP, Seattle, WA, Jennifer A. MacLean, Charles G. Curtis, Jr., Perkins Coie LLP, Washington, D.C., Lauren Pardee Ruben, Perkins Coie LLP, Denver, CO, for Respondents.

OPINION

GORSUCH, Justice.

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, 112 S.Ct. 683, 116 L.Ed.2d 687 (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. __, 138 S.Ct. 543, 199 L.Ed.2d 423 (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 [138 S.Ct. 1652] Washington v. Washington State Commercial Passenger Fishing Vessel Assn., 443 U.S. 658, 676, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979); United States v. Washington, 384 F.Supp. 312, 333 (W.D.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 reservation next door. See 25 U.S.C. § 5108; 25 C.F.R. § 151.4 (2013). Toward that end, the Tribe commissioned a survey of the plot so it could confirm the property’s boundaries. But then a question arose.

The problem was a barbed wire fence. The fence runs some 1,300 feet 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 intervening 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. __, __, 134 S.Ct. 2024, 2030, 188 L.Ed.2d 1071 (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 Wn.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 distinguishing in rem from in personam lawsuits and "establish[ing] the principle that ... courts have subject matter jurisdiction over in rem proceedings in certain situations where claims of sovereign immunity are asserted." 187 Wn.2d at 868, 389 P.3d, at 574.

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 Congresss late Nineteenth Century Indian policy: "to extinguish tribal sovereignty, erase reservation boundaries, and force...

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