Upper Skagit Indian Tribe v. Lundgren

• Decision Date: 21 May 2018
• Docket Number: No. 17–387.,17–387.
• Citation: 138 S.Ct. 1649,200 L.Ed.2d 931
• Parties: UPPER SKAGIT INDIAN TRIBE, Petitioner v. Sharline LUNDGREN, et vir.
• Court: U.S. Supreme Court

138 S.Ct. 1649

200 L.Ed.2d 931

UPPER SKAGIT INDIAN TRIBE, Petitioner

v.Sharline LUNDGREN, et vir.

No. 17–387.

Supreme Court of the United States

Argued March 21, 2018.

Decided May 21, 2018.

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.

Justice GORSUCH delivered the opinion of the Court.

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 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 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 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 Wash.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 Congress's late Nineteenth 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, 112 S.Ct. 683 ; In re Heff, 197 U.S. 488, 499, 25 S.Ct. 506, 49 L.Ed. 848 (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, 112 S.Ct. 683. "Congress halted further allotments and extended indefinitely 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 kinds of land intermixed in a kind of checkerboard pattern: trust land held by the United States and fee-patented land held by private parties. See Yakima, supra, at 256, 112 S.Ct. 683.

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, 96 S.Ct. 1634, 48 L.Ed.2d 96 (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, 96 S.Ct. 1634. 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, 96 S.Ct. 1634. 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, 112 S.Ct. 683. 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, 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.

Commendably, the Lundgrens acknowledged all this at oral argument. Tr. of Oral Arg. 36. 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 immovable property located in the territory of another sovereign. As our cases have put it, "[a] prince, by acquiring private property in a foreign country, ... may be considered as so far laying down the prince, and assuming the character of a private individual." Schooner Exchange v. McFaddon, 7 Cranch 116, 145, 3 L.Ed. 287 (1812). Relying on this line of reasoning, the Lundgrens argue, the Tribe cannot assert sovereign immunity because this suit relates to immovable property located in the State of Washington that the Tribe purchased in the "the character of a private individual."

The Tribe and the federal government disagree. They note that immunity doctrines lifted from other contexts do not...