Lundgren v. Upper Skagit Indian Tribe

Stephens, J.

(dissenting)

¶23 It is well established that “tribal sovereign immunity comprehensively protects recognized American Indian tribes from suit absent explicit and ‘unequivocal’ waiver or abrogation.” Wright v. Colville Tribal Enter. Corp., 159 Wn.2d 108, 112 , 147 P.3d 1275 (2006) (plurality opinion) (quoting Santa Clara Pueblo v. Martinez, 436 U.S. 49, 59 , 98 S. Ct. 1670 , 56 L. Ed. 2d 106 (1978)). ‘“[S]ociety has consciously opted to shield Indian tribes from suit,’ ” Auto. United Trades Org. v. State, 175 Wn.2d 214, 230 , 285 P.3d 52 (2012) (internal quotation marks omitted) (quoting Fluent v. Salamanca Indian Lease Auth., 928 F.2d 542 , 548 (2d Cir. 1991)), because tribes are “ ‘separate sovereigns pre-existing the Constitution,’ ” Michigan v. Bay Mills Indian Cmty., _ U.S. _, 134 S. Ct. 2024, 2030 , 188 L. Ed. 2d 1071 (2014) (quoting Sania Clara Pueblo, 436 U.S. at 56 ). Brushing aside this fundamental principle, the majority concludes that the Upper Skagit Indian Tribe (Tribe) must either waive its sovereign immunity and defend against Sharline and Ray Lundgren’s adverse possession claim, or else risk having judgment entered in its absence. The majority justifies this result on the ground that personal jurisdiction over the Tribe is unnecessary in an in rem action to quiet title. Majority at 865. It also insists that the Tribe has no interest in the disputed property because the Lundgrens’ claim of adverse possession predates the Tribe’s ownership, and therefore the Tribe is not a necessary party to this suit. Id. at 862, 870.

¶24 I respectfully dissent. While the existence of in rem jurisdiction gives a court authority to quiet title to real property without obtaining personal jurisdiction over affected parties, Civil Rule (CR) 19 counsels against exercising this authority in the face of a valid assertion of sovereign immunity. Proceeding without regard to the Tribe’s defense, the majority gives “insufficient weight” to the sovereign status of the Tribe and erroneously “reach [es] and discount[s] the merits of [the Tribe’s] claims.” Republic of Philippines v. Pimentel, 553 U.S. 851, 855, 864 , 128 S. Ct. 2180 , 171 L. Ed. 2d 131 (2008).

*875 ¶25 Applying the analysis of CR 19, I would conclude that the Tribe is a necessary and indispensable party that cannot be joined in this quiet title action. The result is clear under our precedent: we should dismiss this case without reaching the merits of the Lundgrens’ claims. Accordingly, I would reverse the superior court and remand for entry of an order of dismissal under CR 12(b)(7).

ANALYSIS

¶26 The only difference between this case and others in which we have respected assertions of tribal sovereign immunity is that the superior court’s jurisdiction to quiet title rests on in rem jurisdiction. Focusing on this jurisdictional basis, the majority looks to cases that recognize the superior court’s power to proceed. See, e.g., County of Yakima v. Confederated Tribes & Bands of the Yakima Indian Nation, 502 U.S. 251 , 112 S. Ct. 683 , 116 L. Ed. 2d 687 (1992); Anderson & Middleton Lumber Co. v. Quinault Indian Nation, 130 Wn.2d 862 , 929 P.2d 379 (1996); Smale v. Noretep, 150 Wn. App. 476 , 208 P.3d 1180 (2009). The majority reads these cases to support its conclusion that “where claims of sovereign immunity are asserted,” a superior court has “subject matter jurisdiction over in rem proceedings” and may determine the status of the property without obtaining in personam jurisdiction over the tribe. Majority at 868; cf. Cass County Joint Water Res. Dist. v. 1.43 Acres of Land, 2002 ND 83 , 643 N.W.2d 685, 691-95 (relying in part on County of Yakima and Anderson, and holding tribal sovereign immunity does not bar “a purely in rem action against land held by the Tribe in fee and which is not reservation land, allotted land, aboriginal land, or trust land”); Miccosukee Tribe of Indians v. Dep’t of Envtl. Prot. ex rel. Bd. of Trs. of Internal Improvement Tr. Fund, 78 So. 3d 31, 34 (Fla. Dist. Ct. App. 2011) (holding tribal “sovereign immunity is not implicated and does not bar” an eminent domain action because it is “an action against land held in fee by the Tribe” and there is in rem jurisdiction over the *876 land). 5 None of these cases address the impact of a tribe’s CR 19 claim.

I. CR 19 Counsels against Exercising in Rem Jurisdiction in the Face of a Valid Assertion of Sovereign Immunity

¶27 The majority acknowledges that CR 19 reflects a prudential standard: “CR 19 . . . asks not whether a court has the power to decide a case, but rather whether it should,!’ Majority at 868. But the majority fails to acknowledge the significance of the Tribe’s interest and the Lundgrens’ inability to obtain personal jurisdiction over the Tribe. Instead, the majority seems to believe that because the court has in rem jurisdiction, there is no need to engage in a full CR 19 analysis. This reasoning is flawed. The court’s authority to exercise in rem jurisdiction does not obviate the need to determine which parties must be joined to fully and justly adjudicate the action. Which parties are necessary and indispensable is a separate question from the court’s jurisdiction—one I find dispositive in this case given the Tribe’s sovereign immunity.

*877 ¶28 Sovereign immunity affects personal jurisdiction. See, e.g., Santa Clara Pueblo, 436 U.S. at 58 (“'Indian Nations are exempt from suit’ ” (emphasis added) (quoting United States v. U.S. Fid. & Guar. Co., 309 U.S. 506, 512 , 60 S. Ct. 653 , 84 L. Ed. 894 (1940))); see also Anderson, 130 Wn.2d at 876 (describing tribal sovereign immunity under the “personal jurisdiction” section). 6 Though personal jurisdiction does not impact a superior court’s subject matter jurisdiction for in rem proceedings, In re Acquisition of Land & Other Prop. by City of Seattle, 56 Wn.2d 541, 544-45 , 353 P.2d 955 (1960), it does impact a superior court’s ability to join a nonparty. See Equal Emp’t Opportunity Comm’n v. Peabody W. Coal Co., 400 F.3d 774, 779 (9th Cir. 2005) (“Rule 19(a) sets forth three circumstances in which joinder is not feasible: when venue is improper, when the absentee is not subject to personal jurisdiction, and when joinder would destroy subject matter jurisdiction.” (emphasis added)); see also William W. Schwarzer, A. Wallace Tashima & James M. Wagstaffe, Federal Civil Procedure Before Trial 7-37 (2010) (“Joinder is not ‘feasible’ where .. . the party sought to be joined is immune from suit.”). Personal jurisdiction is thus very relevant to a court’s CR 19 analysis.

¶29 The Tribe is not subject to personal jurisdiction because, as is conceded, it has sovereign immunity. Resp’ts’ Br. at 6. Therefore, while the Tribe is incorrect that “[in rem] jurisdiction in this case can only he if the Court has both subject matter jurisdiction and personal jurisdiction over the claims and parties,” Appellant’s Reply Br. at 5, it is *878 correct that personal jurisdiction, in part, dictates the outcome of this case. We must consider personal jurisdiction under the analysis of CR 19.

II. The Tribe Is a Necessary and Indispensable Party

¶30 We recently addressed CR 19 in a case implicating tribal sovereignty, noting that it applies “when the joinder of absent persons is needed for a just adjudication.” Auto. United Trades Org., 175 Wn.2d at 221 . “Where the feasibility of joinder is contested, courts engage in a three-step analysis.” Id. First, the court determines whether the absent party is “ ‘necessary’ ” under CR 19(a). Id. at 222 . If the party is “necessary,” the court then determines whether joinder is feasible. See id. If it is not feasible to join the party, the court “determine [s] whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed.” CR 19(b). If the action cannot proceed “in equity and good conscience” without the absent party, that party is considered “indispensable.” Id.; Auto. United Trades Org., 175 Wn.2d at 229 .

¶31 The party urging dismissal for failure to join a necessary and indispensable party bears the burden of persuasion. See Auto. United Trades Org., 175 Wn.2d at 222 . “We review a [superior] court’s decision under CR 19 for an abuse of discretion and review any legal determinations necessary to that decision de novo.” Id. We find an abuse of discretion “if the [superior] court relies on unsupported facts, takes a view that no reasonable person would take, applies the wrong legal standard, or bases its ruling on an erroneous view of the law.” Gildon v. Simon Prop. Grp., Inc., 158 Wn.2d 483, 494 , 145 P.3d 1196 (2006). Dismissal under CR 12(b)(7) is a “ ‘drastic remedy.’ ” Auto. United Trades Org., 175 Wn.2d at 222 (quoting Gildon, 158 Wn.2d at 494 ). Because our Civil Rule and Federal Rule of Civil Procedure (FRCP) 19 are substantially similar, we may look to federal case law for guidance. Id. at 223.

¶32 Here, the superior court denied dismissal based on CR 19 without engaging in the required analysis. In its oral *879 ruling, the court stated that although it understood it could not join the Tribe against its will,

it seems to me that the Tribe is the one saying that this property, which by its appearance may be adversely possessed long before the Tribe came into it, is asking to bar litigation for the other side rather than the other way around . . . and I find that contrary to common sense, fairness, and due process for all involved.

Verbatim Report of Proceedings (Apr. 24,2015) (VRP) at 32. While the superior court’s concerns are understandable, they reflect a desire to reach the merits of the action so that both parties can have their day in court. The majority adopts this approach unapologetically, asserting without a full analysis of the rule’s factors that CR 19 requires “a merit-based determination,” even though this seems “to put ‘the cart before the horse.’ ” Majority at 869-70. In fact, CR 19 precludes a court from considering the merits when one of the parties validly asserts sovereign immunity. See, e.g., Auto. United Trades Org., 175 Wn.2d at 224 (noting the CR 19 analysis focuses “on whether a party claims a protected interest, not whether it actually has one”); see also Gildon, 158 Wn.2d at 494 (contrasting “[d]ismissal under CR 12(b)(7)” with “trials on the merits” (emphasis added)). As the Supreme Court recognized in Pimentel , beyond the threshold determination that claims are not frivolous in evaluating the CR 19 factors, “consideration of the merits [is] itself an infringement on foreign sovereign immunity.” 553 U.S. at 864 . Indeed, it would make no sense that a court evaluating the interests of a party who cannot be joined to an action could summarily decide the party will lose, and therefore has no interests to protect. 7

*880

A. The Tribe Is a “Necessary” Party

¶33 A party is “necessary” if “the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may ... as a practical matter impair or impede the person’s ability to protect that interest.” CR 19(a)(2)(A). The claimed interest must be legally protected. Auto. United Trades Org., 175 Wn.2d at 224 . As noted above, the main inquiry here is “whether a party claims a protected interest, not whether it actually has one.” Id.

¶34 In concluding that the Tribe has no interest because the Lundgrens satisfied the elements of adverse possession, the majority takes its CR 19 analysis too far. Majority at 869-72. The Tribe claims record title ownership of the disputed property. This is a cognizable claim for a legally protected property interest. See Cady v. Kerr, 11 Wn.2d 1, 8, 14-15 , 118 P.2d 182 (1941) (stating that parties with a legal or equitable interest in property directly affected by a boundary dispute must be defendants in the boundary line adjudication); Reitz v. Knight, 62 Wn. App. 575, 585 , 814 P.2d 1212 (1991) (“In the context of boundary line disputes, joinder ordinarily is required only of persons who own property adjacent to the disputed boundary line.”); RCW 7.28.010 (“[a]ny person having a valid subsisting interest in real property, and a right to the possession thereof, may recover the same by action in the superior court of the proper county, to be brought against the tenant in posses sion; if there is no such tenant, then against the person *881 claiming the title or some interest therein” (emphasis added)); Quileute Indian Tribe v. Babbitt, 18 F.3d 1456, 1458-59 (9th Cir. 1994) (finding the Quinault Indian Nation was a necessary party because it had a claim to escheated property within its reservation). The Tribe is clearly a necessary party to this lawsuit.

B. The Tribe Cannot Be Joined Due to Sovereign Immunity

¶35 Having determined that the Tribe is a necessary party, the next question is whether the Tribe can feasibly be joined. “Joinder is not feasible when tribal sovereign immunity applies.” Auto. United Trades Org., 175 Wn.2d at 222 . Because the parties agree that the Tribe has not waived its sovereign immunity, the Tribe cannot be joined. 8

C. The Tribe Is an Indispensable Party

¶36 Because the Tribe is a necessary party that cannot be joined, we must determine if the Tribe is indispensable. See Confederated Tribes of Chehalis Indian Reservation v. Lujan, 928 F.2d 1496, 1499 (9th Cir. 1991).

¶37 Federal courts have consistently recognized “that when the necessary party is immune from suit, there may be ‘very little need for balancing [FRCP] 19(b) factors because immunity itself may be viewed as the compelling factor.’ ” Quileute Indian Tribe, 18 F.3d at 1460 (quoting Confederated Tribes of Chehalis Indian Reservation, 928 F.2d at 1499 ). Indeed, “comity and respect for sovereign interests often outweigh all other factors in disposing of the joinder question” because “ ‘society has consciously opted to shield Indian tribes from suit.’ ” Auto. United Trades Org., 175 Wn.2d at 230 (internal quotation marks omitted) (quot *882 ing Fluent, 928 F.2d at 548 ). Courts, however, may still apply the four factors to determine whether a tribe is an indispensable party. Quileute Indian Tribe, 18 F.3d at 1460 . These factors are:

(1) to what extent a judgment rendered in the person’s absence might be prejudicial to the person or those already parties; (2) the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; (3) whether a judgment rendered in the person’s absence will be adequate; (4) whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.

CR 19(b). Analyzing and balancing these factors, 9 I would conclude that the Tribe is an indispensable party.

1. CR 19(b)(1): Prejudice

¶38 Under CR 19(b)(1), we “assess! ] the likelihood and significance of any prejudice.” Auto. United Trades Org., 175 Wn.2d at 229 . This factor favors the Tribe for two reasons. First, this court has found that “[i]n evaluating the extent of prejudice, we accord heavy weight to the tribes’ sovereign status.” Id. “Indian tribes are ‘domestic dependent nations’ that exercise inherent sovereign authority over their members and territories.” Okla. Tax Comm’n v. Citizen Band of Potawatomi Indian Tribe of Okla., 498 U.S. 505, 509 , 111 S. Ct. 905 , 112 L. Ed. 2d 1112 (1991) (quoting Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 , 8 L. Ed. 25 (1831)). “Among the core aspects of sovereignty that tribes possess—subject ... to congressional action—is the ‘common-law immunity from suit traditionally enjoyed by sovereign powers.’ ” Bay Mills, 134 S. Ct. at 2030 (quoting San *883 ta Clara Pueblo, 436 U.S. at 58 ). That sovereign immunity against suit “is ‘a necessary corollary to Indian sovereignty and self-governance.’ ” Id. (quoting Three Affil. Tribes of Fort Berthold Reservation v. Wold Eng’g, PC, 476 U.S. 877, 890 , 106 S. Ct. 2305 , 90 L. Ed. 2d 881 (1986)). “Where tribal sovereign immunity is concerned, ‘respect for the inherent autonomy Indian tribes enjoy has been particularly enduring.’ ” Auto. United Trades Org., 175 Wn.2d at 230 (quoting Fla. Paraplegic Ass’n v. Miccosukee Tribe of Indians, 166 F.3d 1126, 1130 (11th Cir. 1999)). This factor strongly favors finding the Tribe to be an indispensable party. See id. at 229-31; cf. Pimentel, 553 U.S. at 867 (discussing cases of joinder and the governmental immunity of the United States; finding under the first factor that “[t]hese cases instruct us that where sovereign immunity is asserted, and the claims of the sovereign are not frivolous, dismissal of the action must be ordered where there is a potential for injury to the interests of the absent sovereign”).

¶39 Importantly, a judgment entered in the Tribe’s absence would not bind the Tribe to a determination that the Lundgrens adversely possessed the disputed property. See Cady, 11 Wn.2d at 8 (explaining parties who have a direct interest in the result of a boundary line dispute must be joined “for otherwise such persons are not bound as to any determination of the location of the boundaries”); Pit River Home & Agric. Coop. Ass’n v. United States, 30 F.3d 1088, 1099 (9th Cir. 1994) (finding the tribal council to be a necessary party in a dispute over the beneficial owners of trust property because “even if the Association obtained its requested relief in this action, it would not have complete relief, since judgment against the government would not bind the Council, which could assert its right to possess the Ranch”); Confederated Tribes of Chehalis Indian Reservation, 928 F.2d at 1498 (finding that in an action challenging the United States’ continuing recognition of the Quinault Indian Nation as the sole governing authority for the Qui- *884 nault Indian Reservation that “[.judgment against the federal officials would not be binding on the Quinault Nation, which could continue to assert sovereign powers and management responsibilities over the reservation”).

¶40 A determination of title to the disputed property without the Tribe being a party to the litigation casts a shadow over the Tribe’s ownership. See Quileute Indian Tribe, 18 F.3d at 1460 (agreeing with the lower court’s conclusion “that the Quinaults ‘would suffer severe prejudice by not being a party to an action which could deplete the Quinaults’ land interests or jeopardize their authority to govern the lands in question’ ” (quoting Quileute Indian Tribe v. Lujan, C91-558C, 1992 WL 605423 , at *3 (W.D. Wash. Aug. 28, 1992) (court order))). At the same time, proceeding without the Tribe could prevent the Lundgrens from providing marketable title should they someday wish to sell their property. See Hebb v. Severson, 32 Wn.2d 159, 166 , 201 P.2d 156 (1948) (“[M]arketable title is one that is free from reasonable doubt and such as reasonably well informed and intelligent purchasers, exercising ordinary business caution, would be willing to accept.”). It thus prejudices both the Tribe and the Lundgrens. See CR 19(b)(1); Pimentel, 553 U.S. at 869 (FRCP 19(b)’s first factor “directs consideration of prejudice both to absent persons and those who are parties”). This factor strongly favors dismissal.

2. CR 19(b)(2): Avoiding or Reducing Prejudice

¶41 A further relevant inquiry is whether the court could lessen or avoid prejudice by “protective provisions in the judgment, by the shaping of relief, or [by] other measures.” CR 19(b)(2). The Lundgrens do not propose any way the court could lessen prejudice. I am unable to imagine a remedy that would lessen the prejudice that results from quieting title to disputed property in the absence of the record title holder. The majority fails to acknowledge that we cannot require the Tribe to waive its sovereign immu *885 nity to lessen prejudice. See Confederated Tribes of Chehalis Indian Reservation, 928 F.2d at 1500 (“the ability to intervene if it requires waiver of immunity is not a factor that lessens prejudice” (citing Makah Indian Tribe v. Verity, 910 F.2d 555, 560 (9th Cir. 1990))). This factor also strongly favors dismissal.

3. CR 19(b)(3): Adequacy of the Judgment

¶42 The third factor—the adequacy of a judgment rendered without the Tribe—also weighs in favor of dismissal. See CR 19(b)(3). “Adequacy” here “ ‘refers to the public stake in settling disputes by wholes, whenever possible.’ ” Auto. United Trades Org., 175 Wn.2d at 232 (internal quotation marks omitted) (quoting Pimentel, 553 U.S. at 870 ). “A party who seeks to quiet title to a piece of land must join all known persons who are claiming title in order to settle the property’s ownership without additional litigation.” 7 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil § 1621, at 334 (3d ed. 2001). As noted above, the Tribe may not be bound by a determination made in its absence, and the Lundgrens may not be able to obtain secure title absent a judgment against the Tribe. The dispute cannot be completely and definitively settled without joining the Tribe.

4. CR 19(b)(4): Remedy for the Plaintiffs

¶43 Finally, I consider whether the Lundgrens would have a remedy if this case were to be dismissed. See CR 19(b)(4). I agree with the majority that this factor weighs in favor of the Lundgrens. It appears that the Lundgrens do not have another judicial forum in which they may seek relief if this claim were to be dismissed for failure to join the Tribe. See Wash. Supreme Court oral argument, Lundgren v. Upper Skagit Indian Tribe, No. 91622-5 (June 9, 2016), at 11 min., 42 sec., recording by TVW, Washington State’s Public Affairs Network, available at http://www.tvw.org (explaining that although there is a tribal court, “the Upper *886 Skagit Indian Tribe has not waived its sovereign immunity from suit in its tribal court, so there would not be a claim in the Upper Skagit Tribal Court to be brought by the plaintiffs”)- However, the majority fails to recognize that “lack of an alternative forum does not automatically prevent dismissal of a suit.” Makah Indian Tribe, 910 F.2d at 560 . Courts respect the need to dismiss claims for inability to join a necessary and indispensable sovereign even when doing so denies the plaintiff any remedy. See, e.g., Pit River, 30 F.3d at 1102-03 ; Quileute Indian Tribe, 18 F.3d at 1460-61 ; Confederated Tribes of Chehalis Indian Reservation, 928 F.2d at 1500 ; cf. Pimentel, 553 U.S. at 872 (“Dismissal under [FRCP] 19(b) will mean, in some instances, that plaintiffs will be left without a forum for definitive resolution of their claims. But that result is contemplated under the doctrine of foreign sovereign immunity.”). This simply underscores that dismissal under CR 19 can be a drastic remedy, albeit a proper one.

D. Balancing the CR 19(b) Factors

¶44 Balancing these four factors, I would conclude that the Tribe is a necessary and indispensable party that cannot be joined. The most logical result is that this case should be dismissed pursuant to the Tribe’s CR 12(b)(7) motion, as the Lundgrens’ interest in quieting title to the disputed property yields to the Tribe’s interest in maintaining its sovereign immunity. I recognize that dismissal potentially leaves the Lundgrens without recourse. Although in our most recent CR 19 and sovereign immunity case we rejected dismissal due in part to the plaintiff’s inability to obtain relief, that was a unique case in which the State attempted to assert tribal sovereign immunity “as a sword.” Auto. United Trades Org., 175 Wn.2d at 233 . We explained, “Sovereign immunity is meant to be raised as a shield by the tribe, not wielded as a sword by the State.” Id. Dismissal in that case “would have the effect of immunizing the State, *887 not the tribes, from judicial review.” Id. at 234 . 10 Here, the Tribe has properly asserted its sovereign immunity as a shield to protect itself from suit. I would therefore respect the Tribe’s status as a sovereign and dismiss the case without reaching the merits of the Lundgrens’ claims.

CONCLUSION

¶45 I would reverse the superior court. Under the analysis of CR 19, the Tribe is a necessary and indispensable party that cannot be joined because of sovereign immunity. Accordingly, the Tribe is entitled to dismissal, and I would remand for entry of an order granting the Tribe’s motion to dismiss under CR 12(b)(7).

Fairhurst, C.J., and Madsen and Gordon McCloud, JJ., concur with Stephens, J.

After modification, further reconsideration denied June 12, 2017.

It is worth noting, however, that recent decisions question whether a court may exercise in rem jurisdiction over cases in which a tribe asserts its sovereign immunity, particularly since the Supreme Court issued its decision in Bay Mills, which reiterated the importance of sovereign immunity. See Hamaatsa, Inc. v. Pueblo of San Felipe, 2017-NMSC-007 , 388 P.3d 977 (2016) (holding “regardless of whether Hamaatsa asserts claims that lie in rem or in personam, its action against the Pueblo is barred in accordance with federal law. Because tribal sovereign immunity divests a court of subject matter jurisdiction it does not matter whether Hamaatsa’s claim is asserted in rem or in personam" and specifically noting that while Anderson carved out an exception “to tribal sovereign immunity for in rem actions,’’ that case was decided before Bay Mills, which “unequivocally bars us from carving out a similar exception’’); Cayuga Lidian Nation v. Seneca County, 761 F.3d 218, 221 (2d Cir. 2014) (finding that Bay Mills reaffirmed the importance of sovereign immunity and that it protects a tribe from any suit absent waiver or congressional authorization, and declining “to draw ... a distinction between in rem and in personam proceedings’’). Because I would decide this case under CR 19, I do not reexamine our precedent in light of Bay Mills. Nor do I address whether our decision in Anderson rests on a misreading of County of Yakima , though this question will certainly need to be addressed in a future case that considers the arc of United States Supreme Court precedent leading to Bay Mills.

Sovereign immunity has been variously characterized as a matter of subject matter jurisdiction and as a matter of personal jurisdiction. See, e.g., Miner Elec., Inc. v. Muscogee (Creek) Nation, 505 F.3d 1007, 1009 (10th Cir. 2007) (“‘Tribal sovereign immunity is a matter of subject matter jurisdiction.’ ’’ (quoting E.F.W. v. St. Stephen’s Indian High Sch., 264 F.3d 1297, 1302-03 (10th Cir. 2001))); Wright, 159 Wn.2d at 111 (“The existence of personal jurisdiction over a party asserting tribal sovereign immunity is a question of law reviewed de novo.’’). It is not necessary to resolve this dispute here because this case can be resolved under CR 19. Under that standard, in quiet title actions where an absent sovereign may be stripped of land to which it has a legitimate claim, an assertion of sovereign immunity is dispositive and requires dismissal.

The Court of Appeals analysis in Srnale, on which the superior court and the majority rely, is problematic in this regard when read in light of the CR 19 cases. See VRP at 31. The Smale court broadly stated that the quiet title action at issue did not have “the potential to deprive any party of land they rightfully own’’ because the Smales asserted they acquired title by adverse possession before the Tribe bought the property. 150 Wn. App. at 483 ; see also id. at 480-81 (“[I]f the Smales acquired title before the suit was filed and Noretep attempted to convey *880 the land, Noretep had no title to convey. Thus, the [t]ribe never had any property to lose.”). The court justified its consideration of the merits on the procedural posture of the case; the tribe moved to dismiss for lack of jurisdiction under CR 12(b)(1), so the court assumed the Smales could prove adverse possession. Id. at 481 n.15. The majority’s reliance on Smale is concerning for two reasons. First, the majority goes further than Smale by actually resolving the merits. Compare majority at 870 (the Lundgrens “are attempting to retain what they already own” (emphasis added)), with Smale, 150 Wn. App. at 482 (“the Smales are attempting to retain what they allegedly own” (emphasis added)). Second, no similar presumption to that under CR 12(b)(1) applies in considering CR 19 and a motion to dismiss under CR 12(b)(7).

Sovereign immunity may be waived either by the tribe or congressional abrogation. Okla. Tax Comm’n v. Citizen Band Potawatomi Indian Tribe of Okla., 498 U.S. 505, 509 , 111 S. Ct. 905 , 112 L. Ed. 2d 1112 (1991). As noted above, the Lundgrens admit that the Tribe is entitled to sovereign immunity. See Resp’ts’ Br. at 6. They do not argue that either the Tribe or Congress waived this immunity.

The majority refuses to balance the parties’ interests, choosing instead to ignore three of the four factors. Majority at 872-73; cf. Auto United Trades Org., 175 Wn.2d at 229 (“In examining each of the four factors . . . the court determines how heavily the factor weighs in favor of, or against, dismissal.’’ (emphasis added)). The sole factor the majority considers conveniently favors the Lundgrens (remedy for the plaintiffs), while the three it ignores favor the Tribe (prejudice, avoiding or reducing prejudice, and adequacy of the judgment).

The majority misses the mark when it asserts that the “Tribe has wielded sovereign immunity as a sword in disguise.’’ Majority at 873. This statement rests on the mistaken premise that the Tribe seeks to take from the Lundgrens “title to property they rightfully own.’’ Id. Even accepting as established the Lundgrens’ claim that they adversely possessed the disputed property for decades before the Tribe took ownership, they never brought a claim of ownership until now. As a putative defendant in the Lundgrens’ quiet title action, the Tribe holds record title —and the validity of that ownership is not in question absent a merits adjudication. Thus, the Tribe is asserting sovereign immunity defensively, to resist being haled into court. The situation could not be more different from the State’s offensive assertion of tribal sovereign immunity in Automotive United Trades Organization.