while Congress’s Indian affairs power “is plenary within its sphere, … even a sizeable sphere has borders”
How later courts described this case
- while Congress’s Indian affairs power “is plenary within its sphere, … even a sizeable sphere has borders”
- holding that “Indian Nations are exempt from suit without Congressional authorization”
- it is “inherent in the nature of sovereignty not to be amenable” to suit without consent
- holding that the tribe was immune from suit and therefore affirming the lower court’s dismissal of the case for lack of subject matter jurisdiction
Written by the judges who cited it.
The opinion
FILE THIS OPINION WAS FILED
FOR RECORD AT 8 A.M. ON
OCTOBER 9, 2025
IN CLERK’S OFFICE
SUPREME COURT, STATE OF WASHINGTON
OCTOBER 9, 2025 SARAH R. PENDLETON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
FLYING T RANCH, INC., a Washington )
corporation, )
) No. 103430-0
Petitioner, )
) En Banc
)
v. ) Filed: October 9, 2025
)
STILLAGUAMISH TRIBE OF INDIANS, )
a federally recognized Indian tribe, )
)
Respondent, )
)
)
SNOHOMISH COUNTY, a Washington )
State municipal corporation, )
)
Defendant. )
_______________________________________ )
MADSEN, J.— Under federal common law, Indian tribes may be sued only under
two circumstances: when a tribe waives its sovereign immunity or when Congress
unequivocally abrogates tribal sovereign immunity. Here, Flying T Ranch (Flying T)
filed suit in Snohomish County Superior Court to quiet title to nonreservation land
purchased by the Stillaguamish Tribe of Indians (Tribe). Flying T contends it had
No. 103430-0
acquired that land through adverse possession prior to the Tribe’s purchase. The superior
court dismissed the case with prejudice based on the Tribe’s sovereign immunity.
The primary issue before us is a matter of first impression: whether a common law
immovable property exception waives tribal sovereign immunity. The Court of Appeals
held that tribal sovereign immunity is not subject to an immovable property exception
absent a clear waiver by Congress or the tribe itself. Congress has not clearly indicated
its intent to abrogate tribal sovereign immunity here; therefore, we affirm the Court of
Appeals.
FACTS
The Stillaguamish Tribe of Indians is a federally recognized Indian tribe. In 2021,
the Tribe purchased a parcel of land located along the Stillaguamish River via statutory
warranty deed. The Tribe purchased its parcel utilizing state and federal funding from a
conservation grant from the National Oceanic and Atmospheric Administration, through
the Washington State Recreation and Conservation Office. The main purpose of the
grant is to protect the land in perpetuity with a deed of right for salmon recovery.
Upon acquiring title, the Tribe designated the plot as “conservation” land. Clerk’s
Papers at 86. The Tribe’s interest in the land has been specifically for protecting the
riparian habitat necessary for salmon, which is in turn tightly connected to the Tribe’s
treaty right to fish. As the Stillaguamish River salmon runs face extinction, so do many
aspects of the Tribe’s culture, community, and treaty reserved rights. By using these
parcels as conservation land to protect and restore salmon in the Stillaguamish River, the
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No. 103430-0
Tribe seeks to preserve their way of life. Prior to purchase, the land had not been part of
any reservation.
Flying T, a Washington corporation domiciled in Snohomish County, has owned a
parcel of land running adjacent to that of the Tribe’s and county’s parcels since 1991.
Snohomish County had acquired its portion of the disputed parcel of land along
the Stillaguamish River in 1995. The land was privately owned prior to the county
acquiring it.
In 2022, Flying T filed a complaint against Snohomish County and the Tribe in
Snohomish County Superior Court, seeking to quiet title to a narrow strip of the two
parcels of land described above by adverse possession. Id. at 84-85. Flying T contends
that since at least 1962, it and its predecessors in interest have had continuous and
exclusive possession over a narrow strip of both the Tribe’s and county’s parcels of land
by and through their maintenance of a fence, which served to mark the boundary line, and
their use of the land to graze and keep livestock. It contends that their possession has
been actual, uninterrupted, open, notorious, exclusive, and hostile to any claim of right by
all others.
The Tribe moved to dismiss pursuant to CR 12(b)(1)-(3), (6), and (7), based on
tribal sovereign immunity. Before the court ruled on the motion to dismiss, Snohomish
County conveyed its portion of the disputed parcel of land to the Tribe, and thus the Tribe
acquired ownership of the entire disputed parcel. The superior court entered an order
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No. 103430-0
granting the Tribe’s motion to dismiss. Flying T moved for reconsideration, which was
denied.
Flying T appealed, seeking direct discretionary review in this court. We denied
the motion and transferred the case to the Court of Appeals. 1 Flying T argued that
although tribes enjoy common law sovereign immunity, the scope of that immunity is
limited by the common law immovable property exception, and since adverse possession
claims affect title to real property, Washington superior courts have in rem jurisdiction
over nonreservation land within state boundaries, even if owned by a tribe.
The Court of Appeals rejected Flying T’s arguments and affirmed the superior
court’s dismissal of the quiet title action. 2 It concluded that “a foreign sovereign enjoys
immunity as directed by the political branches of government and would not face process
directed by the judiciary alone. When the Tribe is afforded immunity equal to a foreign
1
After filing a notice of appeal, but before filing its statement of grounds for direct review,
Flying T moved in the trial court to clarify whether the order dismissing the claims against the
Tribe was a final, appealable order since Snohomish County was not dismissed from the suit. In
April 2023, the trial court signed a new order stating that Snohomish County was dismissed from
the action and that all claims against the Tribe were dismissed with prejudice. Flying T then
filed a motion to clarify appealability or to extend time to file an amended notice of appeal in this
court and filed an amended notice of appeal. The Tribe filed a motion to dismiss the appeal or
any discretionary review based on Flying T’s failure to timely appeal from the new April order.
We transferred the case along with the motion to clarify and the motion to dismiss to the Court of
Appeals.
2
The parties dispute the Court of Appeals’ holding. The Tribe states that the Court of Appeals
held that there is no common law immovable property exception to tribal sovereign immunity,
that cases finding an in rem exception to tribal sovereign immunity are no longer good law, and
that only Congress can abrogate tribal sovereign immunity. Flying T states that the Court of
Appeals correctly held that the immovable property exception should apply to tribes acquiring
nonreservation land but erred when it deferred to Congress. The Court of Appeals in essence
stated that even if a common law immovable property exception exists, it should not extend to
tribal sovereign immunity absent some direction from Congress. See Flying T Ranch, Inc. v.
Stillaguamish Tribe of Indians, 31 Wn. App. 2d 343, 359-62, 549 P.3d 727 (2024).
4
No. 103430-0
sovereign, it may be sued over its objection only when allowed by Congress, and to hold
otherwise would unfaithfully lessen its immunity in comparison to that traditionally
enjoyed by sovereign powers.” Flying T Ranch, Inc. v. Stillaguamish Tribe of Indians,
31 Wn. App. 2d 343, 346, 549 P.3d 727 (2024). The court stated that Flying T has not
shown “any history of the judiciary invoking the immovable property exception against a
foreign nation to disallow foreign sovereign immunity without regard to the direction of
the political branches.” Id. at 358. It also noted that the codification of the Foreign
Sovereign Immunities Act (FSIA) did not support application of a common law
immovable property exception here absent congressional direction. Thus, Congress must
act to limit tribal immunity. Id. at 371.
The court also recognized that prior Washington authority permitted quiet title
claims like the one Flying T asserts here but stated that the rationale of the cases finding
an in rem exception to tribal sovereign immunity was disapproved in Upper Skagit Indian
Tribe v. Lundgren, 584 U.S. 554, 558, 138 S. Ct. 1649, 200 L. Ed. 2d 931 (2018). Id. at
351. The court declined to reach any other issues raised by the parties after determining
the Tribe has immunity. Id. at 371.
Flying T petitioned for review, which this court granted. Flying T Ranch, Inc. v.
Stillaguamish Tribe of Indians, 3 Wn.2d 1031 (2024).
ANALYSIS
Questions of federal law regarding tribal sovereign immunity are reviewed de
novo. Auto. United Trades Org. v. State, 175 Wn.2d 214, 222, 226, 285 P.3d 52 (2012);
5
No. 103430-0
Outsource Servs. Mgmt., LLC v. Nooksack Bus. Corp., 181 Wn.2d 272, 276, 333 P.3d
380 (2014) (whether a court has subject matter jurisdiction is a question of law that
appellate courts review de novo).
Tribal Sovereign Immunity
Indian tribes are “‘separate sovereigns pre-existing the Constitution.’” Michigan
v. Bay Mills Indian Cmty., 572 U.S. 782, 788, 134 S. Ct. 2024, 188 L. Ed. 2d 1071 (2014)
(quoting Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56, 98 S. Ct. 1670, 56 L. Ed. 2d
106 (1978)). “Among the core aspects of sovereignty that tribes possess . . . is the
‘common-law immunity from suit traditionally enjoyed by sovereign powers.’” Id.
(quoting Santa Clara Pueblo, 436 U.S. at 58); United States v. U.S. Fid. & Guar. Co.,
309 U.S. 506, 512, 60 S. Ct. 653, 84 L. Ed. 894 (1940) (holding that “Indian Nations are
exempt from suit without Congressional authorization”). Tribal sovereign immunity is
“‘a necessary corollary to Indian sovereignty and self-governance.’” Bay Mills, 572 U.S.
at 788 (quoting Three Affil. Tribes of Fort Berthold Rsrv. v. Wold Eng’g, PC, 476 U.S.
877, 890, 106 S. Ct. 2305, 90 L. Ed. 2d 881 (1986)); THE FEDERALIST NO. 81, at 511 (A.
Hamilton) (Benjamin F. Wright ed. 1961) (it is “inherent in the nature of sovereignty not
to be amenable” to suit without consent).
Thus, as the United States Supreme Court has explained, the “baseline position” is
tribal immunity, and federally recognized Indian tribes may be sued only when either a
tribe has waived its immunity or Congress has “‘unequivocally’” abrogated tribal
immunity. Bay Mills, 572 U.S. at 790 (quoting C&L Enters., Inc. v. Citizen Band
6
No. 103430-0
Potawatomi Tribe of Okla., 532 U.S. 411, 418, 121 S. Ct. 1589, 149 L. Ed. 2d 623
(2001)); see Santa Clara Pueblo, 436 U.S. at 58 (waiver of sovereign immunity cannot
be implied; it must be unequivocally expressed). Tribal sovereign immunity “is a matter
of federal law and is not subject to diminution by the States.” Kiowa Tribe v. Mfg.
Techs., Inc., 523 U.S. 751, 756, 118 S. Ct. 1700, 140 L. Ed. 2d 981 (1998). The United
States Supreme Court has “time and again treated the ‘doctrine of tribal immunity [as]
settled law’ and dismissed any suit against a tribe absent congressional authorization (or a
waiver).” Bay Mills, 572 U.S. at 789 (alteration in original) (quoting Kiowa, 523 U.S. at
756).
Tribal sovereign immunity is broad. In fact, tribes enjoy broader immunity than
foreign sovereigns in some contexts. For example, a tribe’s immunity from suit extends
to contracts, whether involving governmental or commercial activities and whether they
are made on or off a reservation. Kiowa, 523 U.S. at 760; cf. 28 U.S.C. § 1605(a)(6)
(contractual exception to the jurisdictional immunity of a foreign state).
While tribes enjoy immunity like other sovereigns do, the Court has long
recognized the federal government’s unique relationship with Indian tribes as compared
to foreign nations. A tribal nation is not “foreign to the United States.” Cherokee Nation
v. Georgia, 30 U.S. (5 Pet.) 1, 19, 8 L. Ed. 25 (1831). Instead, the Court has referred to
tribes as “domestic dependent nations” that engage in government-to-government
relations with the United States. Id. at 17. Because of the unique relationship that tribes
have with the federal government, sovereign immunity concepts applicable to foreign
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No. 103430-0
nations do not always apply identically in the tribal context. E.g., Kiowa, 523 U.S. 751.
Further, tribal sovereign immunity “is not coextensive with that of the States.” Id. at 756.
Thus, only Congress and the tribes themselves retain the power to determine when tribal
immunity may be waived.
Prior Limitations on Tribal Sovereign Immunity
Prior Washington case law held that superior courts in Washington may exercise
in rem jurisdiction to settle disputes over tribally owned, nonreservation land. Lundgren
v. Upper Skagit Indian Tribe, 187 Wn.2d 857, 865, 389 P.3d 569 (2017), vacated and
remanded, 584 U.S. 554. In Lundgren, the issue was whether the Tribe’s assertion of
sovereign immunity required dismissal of an in rem adverse possession action to quiet
title to a disputed strip of land on the boundary of property purchased by the Tribe. We
held that the Tribe’s sovereign immunity was no barrier to the in rem proceeding.
However, in reaching this conclusion, the court relied heavily on a case that the United
States Supreme Court later stated does not support our holding.
In Lundgren our court stated, “A court exercising in rem jurisdiction is not
necessarily deprived of its jurisdiction by a tribe’s assertion of sovereign immunity.” Id.
at 865-66. We noted that the United States Supreme Court recognized this principle in
County of Yakima v. Confederated Tribes & Bands of Yakima Indian Nation, 502 U.S.
251, 255, 112 S. Ct. 683, 116 L. Ed. 2d 687 (1992). Id. In Yakima, the county sought to
foreclose property within the Yakama Indian Reservation for failure to pay ad valorum
taxes. 502 U.S. at 256. The Yakama Nation argued that federal law prohibited these
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No. 103430-0
taxes on fee-patented reservation land. Id. The United States Supreme Court held that
the Indian General Allotment Act of 1887, 25 U.S.C. §§ 331-358, repealed in part by
Pub. L. No. 106-462, 114 Stat. 1991 (2000), allowed Yakima County to impose ad
valorum taxes on reservation land pursuant to the General Allotment Act. Id. at 270.
In Lundgren our court stated that in Yakima, the United States Supreme Court
reached its holding by characterizing the county’s assertion of jurisdiction over the land
as in rem, rather than in personam jurisdiction over Yakama Nation. 187 Wn.2d at 866.
The court further noted that Washington courts had similarly upheld a superior court’s
assertion of in rem jurisdiction over tribally owned land in Anderson & Middleton
Lumber Co. v. Quinault Indian Nation, 130 Wn.2d 862, 929 P.2d 379 (1996), and Smale
v. Noretep, 150 Wn. App. 476, 208 P.3d 1180 (2009). Lundgren, 187 Wn.2d at 866-76.
In Anderson, this court held that the Grays Harbor County Superior Court had in
rem jurisdiction over an action in partition and quiet title to fee-patented lands within the
Quinault Indian Reservation. 130 Wn.2d at 873-74. The Anderson court relied heavily
on the Yakima case, stating that the court was exercising jurisdiction over the property,
not over the Quinault Indian Nation, and thus the land was “subject to a state court in rem
action which does nothing more than divide it among its legal owners according to their
relative interests.” Id. at 873.
In Smale, the Smales sought to quiet title to property they claimed to have
acquired through adverse possession against Noretep, the non-Indian original owner. 150
Wn. App. at 476-77. After the Smales sued, Noretep sold the property by statutory
9
No. 103430-0
warranty deed to the Stillaguamish Tribe. Id. Smales added the Tribe as a defendant. Id.
The Tribe argued that sovereign immunity barred the action. Id. In holding that
sovereign immunity did not bar the Tribe from being joined in the action, the court relied
heavily on Anderson, stating, “The quiet title action in Anderson is similar to the quiet
title action here in two crucial ways: both are proceedings in rem to determine rights in
the property at issue and neither has the potential to deprive any party of land they
rightfully own.” Id. at 483. Since the Smales allegedly acquired title to the land via
adverse possession before the original owner sold the land to the Tribe, the court
reasoned that the Tribe never possessed the land and never had land to lose. Id. at 480-
81. The court found that the holding in Anderson controlled the case before it. Id. at 478.
In Lundgren our court held that Yakima, Anderson, and Smale “establish the
principle that our superior courts have subject matter jurisdiction over in rem proceedings
in certain situations where claims of sovereign immunity are asserted.” 187 Wn.2d at
868. However, Lundgren was vacated by the United States Supreme Court in Upper
Skagit, 584 U.S. 554, and remanded to our court. Specifically, the United States Supreme
Court in Upper Skagit stated that it had accepted review to clarify that its decision in
Yakima did not address the scope of tribal sovereign immunity but, rather, a question of
statutory interpretation of the Indian General Allotment Act of 1887. Id. at 558. “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.” Id. at 559. The Lundgrens
asked the United States Supreme Court to affirm the judgment based on an alternative
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No. 103430-0
ground: that sovereigns enjoy no immunity from actions involving immovable property
located in the territory of another sovereign. Id. at 559-60. Exercising judicial restraint,
the Court stated, “We leave it to the Washington Supreme Court to address these
arguments in the first instance.” Id. at 560.
Flying T argues that the holdings in Lundgren, Anderson, and Smale are still
controlling since they contain independent rationales aside from their reliance on Yakima.
Flying T contends that the holding in Anderson is still good law and must be followed
under stare decisis principles. It also argues that Smale presented two crucial bases for
jurisdiction: in rem, which relied on Yakima, and prior ripened adverse possession. 3
Adverse possession is based in both statutory and common law. Flying T claims
that due to the unique nature of adverse possession law, once the elements thereof have
been met, original title vests without the need for court action. Therefore, contrary to the
Court of Appeals’ holding, there is no need for Congress to act to resolve such in rem
adverse possession cases. In addition to Smale and Anderson, Flying T cites to Gorman
3
The Tribe states that Flying T’s new argument that prior ripened adverse possession is an
exception to sovereign immunity, was not presented below and should not be heard. Although
Flying T mainly argued the immovable property doctrine is an exception to tribal sovereign
immunity below, it also discussed the unique nature of adverse possession law, therefore, we
consider its argument. The Tribe also notes that Flying T raises another new argument that
“[t]his is a fn.8 case appropriate for the Courts.” Pet. for Rev. at 5-6. This refers to footnote 8 in
Bay Mills, 572 U.S. 799 n.8, which states that courts have not addressed whether immunity
should apply when “a tort victim, or other plaintiff who has not chosen to deal with a tribe, has
no alternative way to obtain relief for off-reservation commercial conduct.” The court noted that
the argument of whether there is a “‘special justification’” for abandoning precedent in such
circumstances was not before it. Id. (quoting Arizona v. Rumsey, 467 U.S. 203, 212, 104 S. Ct.
2305, 81 L. Ed. 2d 164 (1984)) This new argument about lack of alternative remedies potentially
being a reason not to abide by precedent was not raised below, and we have discretion not to
consider it. State v. Lazcano, 188 Wn. App. 338, 361, 354 P.3d 233 (2015).
11
No. 103430-0
v. City of Woodinville, 175 Wn.2d 68, 283 P.3d 1082 (2012), to support his argument that
here, the Tribe cannot lose land that it did not rightfully own, having been adversely
possessed prior to its acquisition by the Tribe.
In Gorman, the plaintiff sought to acquire title to land that had been dedicated to
the city of Woodinville. 175 Wn.2d at 70-71. Under RCW 4.92.010, Washington
waived its own immunity, allowing a right of action against it in superior court.
However, it had limited this waiver under RCW 4.16.160, which stated that the statute of
limitations for adverse possession would not run against the State or a city acting in its
governmental capacity. The court held that RCW 4.16.160 could not shield the city
under the facts of the case since the statute of limitations ran while the land was privately
owned before the land was dedicated to the city. Id. at 74.
Similarly, in Burlison v. United States, 533 F.3d 419, 421 (6th Cir. 2008), the
plaintiffs sought to quiet title to an access road pursuant to the Quiet Title Act (QTA).
See 28 U.S.C. § 2409a. The QTA provides that “[t]he United States may be named as a
party defendant in a civil action under this section to adjudicate a disputed title to real
property in which the United States claims an interest.” Id. § 2409 a(a). The QTA states
that “[n]othing in this section shall be construed to permit suits against the United States
based upon adverse possession.” Id. § 2409a(n). The plaintiffs argued that the QTA did
not foreclose adverse possession claims that ripened before the government acquired title
to the lands. Burlison, 533 F.3d at 428. The court found the argument to be cognizable
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No. 103430-0
but did not answer the question since the plaintiffs failed to meet their burden of proving
adverse possession. Id.
Neither Gorman nor Burlison discussed the limits of common law sovereign
immunity or involved tribes. Gorman was interpreting a state statute and Burlison
focused on the QTA. Furthermore, both Washington and the United States have waived
their immunity by allowing a cause of action to be brought against them in court related
to real property. In contrast, the Tribe has not waived its own immunity and the statutes
discussed in the cases above do not apply. Indeed, the fact that both Washington and the
United States explicitly waived immunity suggests that such explicit waiver from the
Tribe might similarly be necessary.
Even if we interpret Smale as providing two different rationales for its holding,
one being that the Smales acquired title to the land through adverse possession before the
Tribe was deeded the land, it was not sufficiently analyzed to support such a holding
here. The court cited only one Idaho Supreme Court case, which did not deal with tribes,
in support of the proposition that parties seeking to quiet title to land they allegedly own
are not asserting claims against a sovereign. See Lyon v. State, 76 Idaho 374, 376, 283
P.2d 1105 (1955). Other cases specifically discussing tribes hold that tribal sovereign
immunity is not waived with respect to real property. See Cayuga Indian Nation v.
Seneca County, 761 F.3d 218, 221 (2d Cir. 2014) (declining to draw a distinction between
in rem and in personam proceedings); Oneida Indian Nation v. Madison County, 605 F.3d
149, 157 (2d Cir. 2010) (a tribe’s immunity from suit is independent of its
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No. 103430-0
lands), vacated and remanded, 562 U.S. 42, 131 S. Ct. 704, 178 L. Ed. 2d 587 (2011);
Hamaatsa, Inc. v. Pueblo of San Felipe, 2017-NM-007, 388 P.3d 977, 985 (2016)
(regardless of whether claims are in rem or in personam, tribes still retain their sovereign
immunity).
Flying T states that original title to real property vests once the elements of
adverse possession are met. He cites Gorman; however, as previously noted, the facts in
Gorman are distinguishable. The State had waived its immunity to suit and limited that
waiver by providing that “‘[n]o claim of right predicated upon the lapse of time shall ever
be asserted against the state.’” Gorman, 175 Wn.2d at 70 (emphasis added) (quoting
RCW 4.16.160). The court in Gorman stated that the statute barred claims that were
“‘predicated upon the lapse of time,’” however, Gorman’s claim was that “the requisite
period of time already ran against the private owner.” Id. at 73. Therefore, the claim
was not barred by the statute. Furthermore, the court stated that the city was the proper
defendant as the current record titleholder of the disputed property. Here, the Tribe is the
record titleholder to the disputed property and thus an interested party.
To formally establish that real property has been adversely possessed, a quiet title
action is usually initiated, as is the case here. A court must have subject matter
jurisdiction to decide a quiet title action against a tribe. Tribal sovereign immunity is an
issue of subject matter jurisdiction. See Lewis v. Norton, 424 F.3d 959, 963 (9th Cir.
2005) (holding that the tribe was immune from suit and therefore affirming the lower
court’s dismissal of the case for lack of subject matter jurisdiction); Acres Bonusing, Inc.
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No. 103430-0
v. Marston, 17 F.4th 901, 908 (9th Cir. 2021) (“when a defendant timely and successfully
invokes tribal sovereign immunity, we lack subject matter jurisdiction”); Alvarado v.
Table Mountain Rancheria, 509 F.3d 1008, 1015-16 (9th Cir. 2007) (“Sovereign
immunity limits a federal court’s subject matter jurisdiction over actions brought against
a sovereign. Similarly, tribal immunity precludes subject matter jurisdiction in an action
against an Indian tribe.” (citation omitted)).
Thus, even if Flying T asserts the court has in rem jurisdiction, it still must show
some authority vesting our courts with subject matter jurisdiction over quiet title actions
against tribes. In rem jurisdiction grants courts authority to deal with land within its
boundaries, however, jurisdiction over real property does not waive tribal sovereign
immunity. Only Congress may abrogate tribal immunity; alternatively, a tribe may waive
its immunity in “‘clear’ and unmistakable terms.” Bodi v. Shingle Springs Band of
Miwok Indians, 832 F.3d 1011, 1016 (9th Cir. 2016) (quoting C&L Enters., 532 U.S. at
418).
We hold that Washington and federal case law does not support finding in rem
jurisdiction over land owned by tribes to determine if there is a viable adverse possession
claim.
The Immovable Property Doctrine
Flying T argues that the common law immovable property exception to foreign
sovereign immunity applies to tribes acquiring off-reservation land, despite Congress not
expressly or unequivocally waiving tribal immunity in such instances.
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No. 103430-0
Prior to the Foreign Sovereign Immunities Act of 1976 (FSIA), 28 U.S.C. §§
1602-1611, immunity for foreign nations was based on common law and primarily
centered around deference to the political branches of government. Our nation’s history
illustrates that our common law foreign sovereign immunity was a matter of comity.
Verlinden BV v. Cent. Bank of Nigeria, 461 U.S. 480, 486, 103 S. Ct. 1962, 76 L. Ed. 2d
81 (1983) (“foreign sovereign immunity is a matter of grace and comity on the part of the
United States”). Rather than assuming jurisdiction, the United States Supreme Court
would defer to the political branches, specifically the executive branch, to determine
whether to take jurisdiction over actions against foreign sovereigns. Id. The United
States Department of State ordinarily requested immunity in all actions against friendly
foreign sovereigns. Id. For example, in Knocklong Corp. v. Kingdom of Afghanistan, 6
Misc. 2d 700, 167 N.Y.S.2d 285 (County Ct. 1957), the Kingdom of Afghanistan
acquired fee ownership of real property in New York. Since the property was being used
to house the Chief Representative of Afghanistan to the United Nations, the State
Department urged the New York state court to find that foreign sovereign immunity
barred the action. Id. at 701.
In 1952, the State Department through the “Tate Letter” attempted to remove the
discretionary application of sovereign immunity. Verlinden BV, 461 U.S. at 487 (citing
Letter from Jack B. Tate, Acting Legal Advisor, U.S. Dep’t of State, to Acting U.S. Att’y
Gen. Phillip B. Perlman (May 19, 1952)). It announced that it would be adopting a more
“‘restrictive’ theory” of sovereign immunity, which confined immunity to suits involving
16
No. 103430-0
a foreign sovereign’s public acts but not extending it to cases “arising out of a foreign
state’s strictly commercial acts.” Id.
In 1976, Congress passed the FSIA to attempt to alleviate case-by-case diplomatic
pressures. Id. at 488. The FSIA mainly codified the restrictive theory of sovereign
immunity. However, Congress carved out an exception to foreign sovereign immunity in
28 U.S.C. § 1605(a)(4), which states, “A foreign state shall not be immune from the
jurisdiction of courts of the United States or of the States in any case . . . in which . . .
rights in immovable property situated in the United States are in issue.” (Emphasis
added.) The parties in this case agree that the FSIA, and its exceptions, do not extend to
tribes.
While Flying T agrees that the FSIA does not apply to tribes, it argues that a
common law immovable property exception exists, predating the FSIA, and applies to
tribes. Flying T states that we should focus on the “product” of the political branches’
decisions on foreign sovereign immunity, meaning the patterns emerging from the
collection of individual decisions over time, to define the scope of tribal immunity in the
context of non-reservation title to real property. Suppl. Br. of Pet’r Flying T Ranch at 15.
That product, it contends, includes the immovable property exception, which limits the
scope of tribal immunity. It asserts that Congress has taken no action to remove the
immovable property exception and, therefore, it should continue to apply to tribes on off-
reservation land. Flying T’s argument attempts to shift the burden, urging this
immovable property exception applies unless Congress later says otherwise. This is not
17
No. 103430-0
how tribal sovereign immunity works. Tribal sovereign immunity applies unless
Congress takes action stating otherwise.
Moreover, Flying T argues, territorial sovereigns have a primeval interest in
resolving title disputes within their own domain. However, as previously discussed,
before the FSIA, foreign national immunity was almost entirely determined by the
executive branch. Thus, foreign nations could have acquired land within another state,
claimed immunity, and been granted that immunity upon the recommendation of the
State Department, not based on preferences of the state in which the property was
located.
For support, Flying T cites to cases that do not involve tribes, such as Asociacion
de Reclamantes v. United Mexican States, 237 U.S. App. D.C. 81, 735 F.2d 1517, 1521-
22 (1984), and Permanent Mission of India to the United Nations v. City of New York,
551 U.S. 193, 199-200, 127 S. Ct. 2352, 168 L. Ed 2d 85 (2007). In Permanent Mission
of India, the court held that the FSIA does not immunize a foreign government from suit
to declare the validity of tax liens on property held by the sovereign for purposes of
housing its employees. 551 U.S. at 195. The court reasoned that the purpose of the FSIA
was to find immunity only with respect to public acts of a state, but not with respect to
private acts of a sovereign. Id. at 199. Additionally, the FSIA was meant to codify the
real property exception recognized by international practice. Id. at 200; see Asociacion
de Reclamantes, 735 F.2d at 1521 (recognizing that a territorial sovereign has a primeval
interest in resolving all disputes over the use of real property in its own domain).
18
No. 103430-0
The flaw here is that the FSIA was not a codification of the common practice
within American courts but rather was meant to codify the real property exception as
recognized by international practice. Prior to the FSIA and the Tate Letter, our common
practice was to defer to the State Department regarding whether to find that there was
immunity with respect to a foreign nation.
The Court in The Schooner Exchange recognized the common law immovable
property exception in its first acknowledgment of foreign sovereign immunity. The case
involved an American claimant asserting title to a national armed vessel that was
commissioned by and in service of the emperor of France. The Schooner Exch. v.
M‘Faddon, 11 U.S. (7 Cranch) 116, 146, 3 L. Ed. 287 (1812). The Court stated, “A
prince, by acquiring private property in a foreign country, may possibly be considered as
subjecting that property to the territorial jurisdiction . . . and assuming the character of a
private individual.” Id. at 145; see also Georgia v. City of Chattanooga, 264 U.S. 472,
479-80, 44 S. Ct. 369, 68 L. Ed. 796 (1924) (rejecting Georgia’s claim of sovereign
immunity over the land because it had “acquired land in another State for the purpose of
using it in a private capacity”). While there is little case law discussing or applying the
common law immovable property exception, these cases suggest that the purpose for
which the property is being used is a consideration in applying the common law
exception to sovereign immunity.
Assuming the use to which the subject property is put is germane, the Tribe here
used state and federal funding from a conservation grant from the National Oceanic and
19
No. 103430-0
Atmospheric Administration, through the Washington State Recreation and Conservation
Office, to purchase the land. This was conditioned on the Tribe protecting the land in
perpetuity with a deed of right for salmon recovery. The Tribe is expected to take
reasonable and feasible measures to protect, preserve, restore, and/or enhance the habitat
functions on the property, which aim to support Puget Sound chinook, chum, coho, and
pink salmon, and steelhead, cutthroat, and bull trout. Salmon in the Stillaguamish River
are a keystone species that are essential for the continuation of the Tribe’s living culture.
As salmon runs in the Stillaguamish River face extinction, so do many aspects of the
Tribe’s culture, community, and treaty reserved rights. After acquiring the land, the
Tribe designated it as conservation land as a way to preserve their way of life and protect
and restore salmon in the Stillaguamish River.
Protecting the riparian habitat necessary for salmon is tightly connected to the
Tribe’s treaty right to fish. Although the land at issue is not part of a reservation, its
purchase is conditioned on the Tribe agreeing to use the land for salmon recovery
purposes. Thus, the land is being used to promote the interests of the Tribe as a whole,
especially with respect to preserving their treaty rights to fish, as well as the public by
helping restore salmon populations. See Okla. Tax Comm’n v. Citizen Band Potawatomi
Indian Tribe, 498 U.S. 505, 511, 111 S. Ct. 905, 112 L. Ed. 2d 1112 (1991) (stating that
the test for determining whether land is Indian country does not turn upon whether that
land is denominated “‘trust land’” or “‘reservation’” but, rather, “whether the area has
been ‘validly set apart for the use of the Indians as such, under the superintendence of the
20
No. 103430-0
Government’” (quoting United States v. John, 437 U.S. 634, 648-49, 98 S. Ct. 2541, 57
L. Ed. 2d 489 (1978))). It is unlikely Congress would have intended to waive tribal
sovereign immunity in these circumstances where the Tribe has used federal funding to
acquire the land and is using the land for a specified purpose subject to the State’s
supervision.
More fundamentally, the immovable property exception discussed above has never
been applied in the context of Indian tribes, and Flying T has not persuaded us that it is
appropriate for the judicial branch to do so now. The immovable property exception is a
doctrine that primarily emerged in the context of foreign sovereign immunity. But tribes
are not foreign nations; the United States Supreme Court has described tribes as
“domestic dependent nations” with a unique relationship to the federal government.
Cherokee Nation, 30 U.S. at 13. Thus, the scope of sovereign immunity has never been
coextensive between tribes, states, and foreign nations. Instead, as stated above, in the
absence of a tribe’s waiver of immunity, courts defer to Congress, which must
“unequivocally” express its decision to abrogate tribal immunity. Bay Mills, 572 U.S. at
790. To this point, it is relevant that when Congress enacted the FSIA, it did not
expressly include the tribes, suggesting it did not intend the immovable property
exception, whether in the FSIA or common law, to apply to tribes.
In support of its position, Flying T cites to Chief Justice Roberts’ concurrence in
Upper Skagit to indicate that the Court believed that an immovable property exception
should apply to tribes. “There should be a means of resolving a mundane dispute over
21
No. 103430-0
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.” Upper Skagit, 584 U.S. at 562 (Roberts, C.J., concurring). 4
However, even Flying T acknowledges that finding such an exception would be contrary
to the primary holdings and rationales in Kiowa and Bay Mills, which upheld tribal
immunity in off-reservation commercial business dealings.
In Kiowa, the Court helped clarify the bounds of tribal sovereign immunity. 523
U.S. 751. The Kiowa Tribe had agreed to buy stock from a company, and a tribal
representative signed a promissory note in the name of the tribe. Id. at 753. A disputed
issue was whether the note was signed on or off tribal trust land. Id. at 753-54. The tribe
defaulted on the note and an action was brought in state court. Id. at 754. The Court held
that the tribe was entitled to sovereign immunity from suit, regardless of where the note
was signed and that sovereign immunity extended to the tribe’s commercial activities. Id.
at 754-55. It reasoned that precedent did not support finding a distinction between
governmental and commercial activities. Id. at 755. In coming to its decision that tribal
sovereign immunity applied, the Court reasoned that Congress has not acted to abrogate
sovereign immunity and that Congress is in the best position “to weigh and accommodate
the competing policy concerns and reliance interests.” Id. at 757, 759. Therefore, the
4
Flying T also argues that requiring Congress to act first will lead to untenable and absurd
results. However, we are bound by precedent. Moreover, Congress has acted to waive tribal
immunity in more than one instance; therefore, it is not absurd for Congress to act here.
22
No. 103430-0
Court declined to revisit current case law on tribal sovereign immunity and chose to defer
to Congress. Id. at 760.
In Bay Mills, the Court further clarified that tribal immunity is the baseline. 572
U.S. at 790. If Congress intends to abrogate such immunity, it must do so unequivocally.
Id.; see Santa Clara Pueblo, 436 U.S. at 58 (a waiver of sovereign immunity cannot be
implied, but must be unequivocally expressed). “Although Congress has plenary
authority over tribes, courts will not lightly assume that Congress in fact intends to
undermine Indian self-government.” Bay Mills, 572 U.S. at 790. The State of Michigan
had brought an action to enjoin the Bay Mills Indian Tribe from operating a casino on
land outside of its reservation. The Court held that the State lacked the ability to sue the
tribe for illegal gaming, even if occurring off the reservation. Id. at 795. In reaching that
conclusion, the Court reasoned that as domestic dependent nations, tribes exercise
sovereignty at the will of the federal government and that means tribes are immune from
lawsuits unless Congress wishes to abrogate that immunity. Id. at 803. Congress had not
abrogated that immunity under the Indian Gaming Regulatory Act with respect to off-
reservation gaming: thus, Michigan could not sue the Tribe to enjoin the casino. Id. at
804.
Congress has chosen to limit tribal sovereign immunity in specific contexts
through explicit statutory provisions. See, e.g., 25 U.S.C. § 2710(d)(7)(A)(ii) (abrogating
tribal immunity in the context of class III gaming activities); 25 U.S.C. § 450f(c)(3)
(relating to mandatory liability insurance). Courts have also found that Congress has
23
No. 103430-0
waived tribal sovereign immunity when it has included Indian Tribes within its definition
of “persons” within a national regulatory scheme. See United States v. Weddell, 12 F.
Supp. 2d 999 (D.S.D. 1998), aff’d, 187 F.3d 645 (8th Cir. 1999) (congressional
abrogation under 28 U.S.C. §§ 3001-3008, also known as the Federal Debt Collection
Act, by virtue of its inclusion of Indian tribes under the definition of “person[s]” who
may be garnishees); Osage Tribal Council ex rel. Osage Tribe of Indians v. U.S. Dep’t of
Lab., 187 F.3d 1174, 1182 (10th Cir. 1999) (Congress abrogated tribal sovereign
immunity in the Safe Drinking Water Act); see also Pub. Serv. Co. of Colorado v.
Shoshone-Bannock Tribes, 30 F.3d 1203 (9th Cir. 1994) (holding that tribes are subject to
suit under the preemption provision of the Hazardous Materials Transportation Act since
the provision specifically refers to tribes). When it has done so, it has typically, but not
always, referenced tribes explicitly. See Lac du Flambeau Band of Lake Superior
Chippewa Indians v. Coughlin, 599 U.S. 382, 395, 143 S. Ct. 1689, 216 L. Ed. 2d 342
(2023) (holding that the Bankruptcy Code unequivocally abrogated tribal sovereign
immunity when it abrogated sovereign immunity for “other foreign or domestic
government[s]”).
Despite Washington’s primeval interests in resolving disputes over land within its
own boundaries, Congress has not unequivocally abrogated tribal sovereign immunity
with respect to nonreservation property acquired by tribes. The parties agree that FSIA
and its exception do not apply to tribes, and the common law immovable property
exception has never been applied in the context of Indian tribes, which are domestic
24
No. 103430-0
dependent nations. Furthermore, as the Supreme Court noted in Santa Clara Pueblo,
Kiowa, and Bay Mills, the waiver of tribal sovereign immunity will not be inferred but
must be unequivocal. We hold that a common law immovable property exception to
sovereign immunity does not apply here.
The Superior Court’s Dismissal of Flying T’s Claims
Flying T argues that the superior court erred in dismissing its case under CR 19
since the Tribe is not an indispensable party. CR 19(a) requires the joinder of necessary
parties. However, as the Tribe notes, the superior court dismissed the case based on CR
12(b)(1)-(3), (6), and (7). Since we hold that the superior court properly dismissed the
case based on, among other things, lack of subject matter jurisdiction, we do not reach
this argument.
CONCLUSION
Federal common law has long established that tribes are immune from suit and
may be sued only where a tribe waives its immunity or when Congress has unequivocally
abrogated immunity. While the superior court has in rem jurisdiction over real property,
it does not have subject matter jurisdiction over adverse possession claims involving
nonreservation land owned by tribes.
Furthermore, a common law immovable property exception has never been
applied to waive tribal sovereign immunity. An act of Congress is necessary to create
such an exception to tribal sovereign immunity.
25
No. 103430-0
We hold that state courts do not have subject matter jurisdiction over adverse
possession claims related to nonreservation land owned by tribes and that the common
law immovable property exception does not apply to tribes.
Accordingly, we affirm the Court of Appeals.
_______________________________
WE CONCUR:
_______________________________ ________________________________
_______________________________ ________________________________
_______________________________ ________________________________
_______________________________ ________________________________
26
Flying T Ranch, Inc., v. Stillaguamish
No. 103430-0
MUNGIA, J. (concurring)—I concur with the majority’s opinion.1 And yet I
dissent. Not from the majority’s opinion, but I dissent from the racism embedded in the
federal case law that applies to this dispute.
FEDERAL INDIAN LAW IS A PRODUCT OF THE RACIST BELIEFS ENDEMIC IN OUR SOCIETY
AND OUR LEGAL SYSTEM
While it is certainly necessary to follow federal case law on issues involving
Native American tribes and their members, at the same time it is important to call out that
the very foundations of those opinions were based on racism and white supremacy. By
doing this, readers of our opinions will have no doubt that the current court disavows, and
condemns, those racist sentiments, beliefs, and statements.
1
The majority assumes, for the sake of argument, that the use the Stillaguamish Tribe makes of
the property at issue is germane to its analysis. It analyzes whether the Tribe uses the property
for private or public use under the immovable property exception and suggests that the use is
public.
In my view, this analysis is irrelevant to the outcome of the case. As domestic sovereign
nations, the immovable property exception does not apply to tribes regardless of what a tribe
uses the property for. I depart from the majority to the extent that the opinion may suggest a
narrower holding.
Flying T Ranch, Inc., v. Stillaguamish, No. 103430-0
(Mungia, J., concurring)
Since the founding of our country, the federal government has characterized
Native Americans as “savages”: They were “uncivilized.” They had little claim to the
land upon which they lived. At times, the federal government attempted to eradicate
Native Americans through genocidal policies. At other times, the federal government
employed ethnic cleansing by forcibly removing children from their parents’ homes to
strip them from their culture, their language, and their beings. 2
Federal Indian case law arises from those racist underpinnings.
The majority correctly cites to Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 8
L. Ed. 25 (1831), which is one of the foundational cases involving tribal sovereignty.
That opinion is rife with racist attitudes toward Native Americans. Chief Justice John
Marshall, writing for the majority, describes a tribe’s relationship to the federal
government as one of “ward to his guardian.” Id. at 17. In effect, the opinion presents
tribal members as children, and the federal government as the adult. That theme would
follow in later opinions by the United States Supreme Court—as would the theme of
white supremacy.
Cherokee Nation began with the premise that Native American tribes, once strong
and powerful, were no match for the white race and so found themselves “gradually
sinking beneath our superior policy, our arts and our arms.” Id. at 15. The white man
was considered the teacher, the Native Americans the pupils:
2
For a description of the federal government’s treatment of Native Americans from the founding
through the early 1970s, see In re Dependency of G.J.A., 197 Wn.2d 868, 884-85, 489 P.3d 631
(2021).
2
Flying T Ranch, Inc., v. Stillaguamish, No. 103430-0
(Mungia, J., concurring)
Meanwhile they are in a state of pupilage. Their relation to the United
States resembles that of a ward to his guardian.
Id. at 17.
This characterization of superior to inferior, teacher to student, guardian to ward,
was repeated in later United States Supreme Court opinions.
In Lone Wolf v. Hitchcock, 187 U.S. 553, 23 S. Ct. 216, 47 L. Ed. 299 (1903),
often characterized as the “American Indian Dred Scott,” 3 the Court used that rationale to
justify ruling that the United States could break its treaties with Native American tribes.
These Indian tribes are the wards of the nation. They are communities
dependent on the United States. Dependent largely for their daily food.
Dependent for their political rights. . . . From their very weakness and
helplessness . . . there arises the duty of protection, and with it the power.
Id. at 567 (quoting United States v. Kagama, 118 U.S. 375, 383-84, 6 S. Ct. 1109, 30 L.
Ed. 228 (1886)).
Our court also carries the shame of denigrating Native Americans by using that
same characterization: “The Indian was a child, and a dangerous child, of nature, to be
both protected and restrained.” State v. Towessnute, 89 Wash. 478, 482, 154 P. 805
(1916), judgment vacated and opinion repudiated by 197 Wn.2d 574, 486 P.3d 111
(2020).
3
See Adam Crepelle, Lies, Damn Lies, and Federal Indian Law: The Ethics of Citing Racist
Precedent in Contemporary Federal Indian Law, 44 N.Y.U. REV. L. & SOC. CHANGE 529, 530
(2021); Philip P. Frickey, Doctrine, Context, Institutional Relationships, and Commentary: The
Malaise of Federal Indian Law Through the Lens of Lone Wolf, 38 TULSA L. REV. 5, 5 (2002).
3
Flying T Ranch, Inc., v. Stillaguamish, No. 103430-0
(Mungia, J., concurring)
Returning to Cherokee Nation, Justice William Johnson’s separate opinion was
less tempered in how he considered the various Native American tribes:
I cannot but think that there are strong reasons for doubting the
applicability of the epithet state, to a people so low in the grade of
organized society as our Indian tribes most generally are.
Cherokee Nation, 30 U.S. at 21. Native Americans were not to be treated as “equals to
equals” but, instead, the United States was the conqueror and Native Americans the
conquered. Id. at 23.
In discussing Native Americans, Justice Johnson employed another racist trope
used by judges both before and after him: Native Americans were uncivilized savages.
[W]e have extended to them the means and inducement to become
agricultural and civilized. . . . Independently of the general influence of
humanity, these people were restless, warlike, and signally cruel.
....
But I think it very clear that the constitution neither speaks of them as states
or foreign states, but as just what they were, Indian tribes . . . which the law
of nations would regard as nothing more than wandering hordes, held
together only by ties of blood and habit, and having neither laws or
government, beyond what is required in a savage state.
Id. at 23, 27-28.
This same characterization was used by Justice Stanley Matthews in Ex parte Kan-
Gi-Shun-Ca (otherwise known as Crow Dog), 109 U.S. 556, 3 S. Ct. 396, 27 L. Ed. 1030
(1883). Justice Matthews described Native Americans as leading a savage life. They
were people who did not have “the responsibilities of civil conduct.” Id. at 571. Native
Americans in fact were incapable of comprehending civility. Id. To Justice Matthews,
4
Flying T Ranch, Inc., v. Stillaguamish, No. 103430-0
(Mungia, J., concurring)
there was a clear distinction between Native Americans and the white man. In comparing
tribal courts to the white man’s court, he stated that tribal courts have
[T]he strongest prejudices of their savage nature; one which measures the
red man’s revenge by the maxims of the white man’s morality.
Id. at 571.
One other aspect of Justice Johnson’s opinion in Cherokee Nation that must be
noted and condemned is the “Doctrine of Discovery.” Justice Johnson wrote:
When the eastern coast of this continent, and especially the part we inhabit,
was discovered, finding it occupied by a race of hunters, connected in
society by scarcely a semblance of organic government; the right was
extended to the absolute appropriation of the territory, the annexation of it
to the domain of the discoverer. It cannot be questioned that the right of
sovereignty, as well as soil, was notoriously asserted and exercised by the
European discoverers. From that source we derive our rights, and there is
not an instance of a cession of land from an Indian nation, in which the
right of sovereignty is mentioned as part of the matter ceded.
Cherokee Nation, 30 U.S. at 23.
In Johnson v. MʻIntosh, 21 U.S. 543 (8 Wheat.), 5 L. Ed. 681 (1823), the United
States Supreme Court recognized the Doctrine of Discovery. The doctrine provided the
justification for European nations to claim title to certain lands “‘then unknown to all
Christian people.’” 4 Id. at 576. Chief Justice Marshall, writing for the majority, stated
that while European countries may have legitimate claims to various parts of the United
States, Native Americans retained only a right of occupancy to the land, which was
subject to the conquering nation’s right of appropriation. Id. at 574, 584.
4
For a description of the doctrine and its origins, see State v. Wallahee, 3 Wn.3d 179, 181 &
n. 1, 548 P.3d 200 (2024).
5
Flying T Ranch, Inc., v. Stillaguamish, No. 103430-0
(Mungia, J., concurring)
Our court was guilty of adopting that mistaken ideology:
The premise of Indian sovereignty we reject. The treaty is not to be
interpreted in that light. At no time did our ancestors in getting title to this
continent, ever regard the aborigines as other than mere occupants, and
incompetent occupants, of the soil. Any title that could be had from them
was always disdained. From France, from Spain, from Mexico, and from
England we have ever proclaimed our title by purchase, by conquest, and
by cession, in all of which great transactions the migratory occupant was
ignored. Only that title was esteemed which came from white men, and the
rights of these have always been ascribed by the highest authority to lawful
discovery of lands, occupied, to be sure, but not owned, by any one before.
Johnson v. McIntosh, [21 U.S. ]8 Wheat. 543[, 5 L. Ed. 681 (1823)]. If in
Worcester v. Georgia, [31 U.S. ]6 Pet. 515[, 8 L. Ed. 483 (1832)], the
supreme court speaks of the Indians having something which the whites
had yet to purchase, it was not title, but mere possessory uses for
subsistence. Later cases continue to plant our title on discovery. Martin v.
[Lessee of] Waddell, [41 U.S. ]16 Pet. 367, 409[, 10 L. Ed. 997 (1842)];
United States v. Rogers, [45 U.S. ]4 How. 567, 572[, 11 L. Ed. 1105
(1846)].
Towessnute, 89 Wash. at 481-82.
In short, European nations gained title to the land without ever setting foot on the
land itself. Viewing the land from the ship was enough to give them title. The Doctrine
of Discovery allowed Europeans to justify driving Native Americans from their homes
and from their lands because the federal government, as conquerors, had the right to
extinguish Indian title.
The tribes did not own the land but merely occupied it. They were not sovereigns
in relation to the federal government. The United States controlled the land, and the
sovereignty, of the various tribes.
The cases the majority cites, and indeed must cite, are based on the racist premises
that Native American tribes were never sovereign nations, that they had no fee title to the
6
Flying T Ranch, Inc., v. Stillaguamish, No. 103430-0
(Mungia, J., concurring)
land on which they lived, and that the United States had the ultimate power as to those
issues. The justification for those holdings was that Native Americans were inferior and
were savages, who became wards of the United States.
Each time a court cites a case that has as its foundation such racist fallacies, it is
incumbent on us to call out that racism, even if just in a footnote.
THE UNITED STATES SUPREME COURT, AND OUR COURT, HAS TAKEN STEPS TO
ADDRESS THESE PAST WRONGFUL ACTIONS
The United States Supreme Court, and our court, has taken steps to address some
of the errors of the past.
The United States Supreme Court now recognizes “the sovereign authority of
Native American Tribes and their right to ‘the common-law immunity from suit
traditionally enjoyed by sovereign powers.’” Upper Skagit Indian Tribe v. Lundgren,
584 U.S. 554, 557, 138 S. Ct. 1649, 200 L. Ed. 2d 931 (2018) (quoting Michigan v. Bay
Mills Indian Cmty., 572 U.S. 782, 788, 134 S. Ct. 2024, 188 L. Ed. 2d 1071 (2014)); see
also Haaland v. Brackeen, 599 U.S. 255, 276, 143 S. Ct. 1609, 216 L. Ed. 2d 254 (2023)
(while Congress’s Indian affairs power “is plenary within its sphere, … even a sizeable
sphere has borders”).
In this opinion, our court correctly holds that the Stillaguamish Tribe has
sovereign immunity and that “only Congress and the tribes themselves retain the power
to determine when tribal immunity may be waived. ” Majority at 7.
In recent years we have repudiated prior decisions that disregarded the rights of
Native Americans and their treaty rights. In Towessnute, 197 Wn.2d at 577-78, we
7
Flying T Ranch, Inc., v. Stillaguamish, No. 103430-0
(Mungia, J., concurring)
repudiated the prior Towessnute “case; its language; its conclusions; and its
mischaracterization of the Yakama people.” In State v. Wallahee, 3 Wn.3d 179, 187-88,
548 P.3d 200 (2024), we recalled the mandate and vacated the wrongful conviction of
Jim Wallahee, 5 who had been convicted for exercising his treaty right to hunt on ceded
Yakama land. We also properly called out the wrongfulness of the Doctrine of
Discovery:
The Doctrine of Discovery and its use in law to justify state-sponsored
violence are a stain on this nation.
Id. at 189.
In those prior, repudiated decisions, we had followed United States Supreme Court
precedent that Native American tribes were not sovereign entities and that Native
Americans were merely occupants of the land. While we continue to be constrained to
follow United States Supreme Court precedent, we must not be constrained from calling
out the racism found within those opinions. We must do a better job.
CONCLUSION
In our letter dated June 4, 2020, we noted the “devaluation and degradation of
[B]lack lives is not a recent event.” 6
The same holds true for Native Americans.
5
State v. Wallahee, 143 Wash. 117, 255 P. 94 (1927).
6
Letter from Wash. State Sup. Ct. to Members of Judiciary & Legal Cmty. 1 (Wash. June 4,
2020)
https://www.courts.wa.gov/content/publicUpload/Supreme%20Court%20News/Judiciary%20Le
gal%20Community%20SIGNED%20060420.pdf [https://perma.cc/QNT4-H5P7].
8
Flying T Ranch, Inc., v. Stillaguamish, No. 103430-0
(Mungia, J., concurring)
We noted, “The legal community must recognize that we all bear responsibility for
this on-going injustice, and that we are capable of taking steps to address it, if only we
have the courage and the will.” 7
The same holds true for Native Americans.
We noted, “As judges, we must recognize the role we have played in devaluing
[B]lack lives.” 8
The same is true for Native Americans.
While we are bound by United States Supreme Court precedent, we are not bound
to stay silent as to the underlying racism and prejudices that are woven into the very
fabric of those opinions. Instead, every chance we get, we must clearly, loudly, and
unequivocally state that was “wrong.”
That was wrong.
______________________________________
7
Id.
8
Id.
9