Petitioners Brief — Upper Skagit Indian Tribe, Petitioner v. Sharline Lundgren, et vir

Supreme Court briefJan 22, 2018

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No. 17-387

IN THE

SUPREME COURT OF THE UNITED STATES

__________________________

UPPER SKAGIT INDIAN TRIBE,

Petitioner,

SHARLINE LUNDGREN AND RAY LUNDGREN,

Respondents.

__________________________

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF WASHINGTON

____________________________________________

BRIEF FOR THE PETITIONER

____________________________________________

Arthur W. Harrigan, Jr.

Counsel of Record

Tyler L. Farmer

Kristin E. Ballinger

John C. Burzynski

Harrigan Leyh Farmer

& Thomsen LLP

999 Third Ave., Suite 4400

Seattle, WA 98104

(206) 623-1700

arthurh@harriganleyh.com

David S. Hawkins

General Counsel

Upper Skagit Indian Tribe

25944 Community Pl. Way

Sedro-Woolley, WA 98284

(360) 854-7016

dhawkins@upperskagit.com

LEGAL PRINTERS LLC, Washington DC ! 202-747-2400 ! legalprinters.com

QUESTION PRESENTED

Does a court’s exercise of in rem jurisdiction

overcome the jurisdictional bar of tribal sovereign

immunity when the tribe has not waived immunity

and Congress has not unequivocally abrogated it?

PARTIES TO THE PROCEEDING

There are no parties to the proceeding other than

those listed in the caption. Petitioner is the Upper

Skagit Indian Tribe, a federally recognized Indian

tribe. Petitioner was the defendant and appellant

below. Respondents are Sharline and Ray Lundgren,

who were the plaintiffs and respondents below.

There are no parent or publicly-held corporations

involved in the proceeding.

TABLE OF CONTENTS

Page(s)

QUESTION PRESENTED ....................................... i

PARTIES TO THE PROCEEDING ......................... ii

TABLE OF AUTHORITIES .................................... v

INTRODUCTION .................................................... 1

OPINIONS BELOW ................................................. 2

JURISDICTION ....................................................... 2

CONSTITUTIONAL PROVISION INVOLVED ..... 3

RULES INVOLVED ................................................. 3

STATEMENT .......................................................... 5

SUMMARY OF ARGUMENT................................ 10

ARGUMENT .......................................................... 14

Federal Courts and Congress Have

Long Recognized That Indian Tribes

Retain Inherent Sovereign Immunity ..... 14

II.

The Washington Supreme Court Erred

in Recognizing an in rem Exception to

Tribal Sovereign Immunity ...................... 16

This Court’s Decision in County

of Yakima Did Not Recognize

an in rem Exception to Tribal

Sovereign Immunity from Suit ........ 17

Only Congress or an Indian

Tribe May Limit a Tribe’s

Sovereign Immunity ......................... 24

iii

A State’s Exercise of in rem

Jurisdiction over Property Acquired

by an Indian Tribe Works an

Impermissible Diminution of

the Tribe’s Sovereignty..................... 26

All Sovereigns, and Particularly

Indian Tribes, Have Interests in

Ownership and Control of Their

Land Protected by Sovereign

Immunity .......................................... 27

III. Once a Tribe Invokes Sovereign

Immunity from Suit, Courts May Not

Adjudicate Tribal Rights and Interests

in the Absence of the Tribe ...................... 32

IV. The Lundgrens Had and Continue

to Have a Means to Seek Redress for

Their Claim ............................................... 35

CONCLUSION ....................................................... 38

TABLE OF AUTHORITIES

Page(s)

Adams v. Murphy,

165 F. 304 (8th Cir. 1908)................................. 15

Alden v. Maine,

527 U.S. 706 (1999) ..................................... 26, 30

Alvarado v. Table Mountain Rancheria,

509 F.3d 1008 (9th Cir. 2007)........................... 32

Anderson & Middleton Lumber Co. v.

Quinault Indian Nation,

929 P.2d 379 (Wash. 1996) ........................... 9, 10

Belknap v. Schild,

161 U.S. 10 (1896) ............................................. 23

Blatchford v. Native Village of Noatak,

501 U.S. 775 (1991) ........................................... 30

California v. Deep Sea Research, Inc.,

523 U.S. 491 (1998) ..................................... 27, 28

Carr v. United States,

98 U.S. 433 (1878) ............................................. 23

Cass Cty. Joint Water Res. Dist. v.

1.43 Acres of Land in Highland Twp.,

643 N.W. 2d 685 (N.D. 2002) ............................ 22

Cayuga Indian Nation of New York v. Seneca

County,

890 F. Supp. 2d 240 (W.D.N.Y. 2012),

aff’d, 761 F.3d 218 (2d Cir. 2014) ..................... 20

Cayuga Indian Nation of New York v. Seneca

County,

761 F.3d 218 (2d Cir. 2014) ........................ 20, 23

Cherokee Nation v. Georgia,

30 U.S. 1 (1831) ................................................. 14

Coast Trading Co., Inc. v. Parmac, Inc.,

587 P.2d 1071 (Wash. Ct. App. 1978) .............. 36

County of Yakima v. Confederated Tribes

& Bands of Yakima Indian Nation,

502 U.S. 251 (1992) .................................... passim

Ex parte Ayers,

123 U.S. 443 (1887) .......................................... 26

Ex parte Young,

209 U.S. 123 (1908) .................................... 29, 30

FDIC v. Meyer,

510 U.S. 471 (1994) ..................................... 27, 32

First Bank & Tr. v. Maynahonah,

313 P.3d 1044 (Okla. Civ. App. 2013) .............. 21

Florida Dep’t of State v. Treasure Salvors, Inc.,

458 U.S. 670 (1982) ........................................... 24

Foremost-McKesson, Inc. v. Islamic Republic

of Iran,

905 F.2d 438 (D.C. Cir. 1990) ..................... 12, 27

Halverson v. City of Bellevue,

704 P.2d 1232 (Wash. Ct. App. 1985) .............. 36

Hamaatsa, Inc. v. Pueblo of San Felipe,

388 P.3d 977 (N.M. 2016) ................................. 20

Hess v. Port Auth. Trans-Hudson Corp.,

513 U.S. 30 (1994) ............................................. 26

Idaho v. Coeur d’Alene Tribe of Idaho,

521 U.S. 261 (1997) .................................... passim

Kiowa Tribe of Oklahoma v. Mfg. Techs., Inc.,

523 U.S. 751 (1998) .................................... passim

Koehler v. United States,

153 F.3d 263 (5th Cir. 1998)....................... 12, 27

Lundgren v. Upper Skagit Indian Tribe,

389 P.3d 569 (Wash. 2017) ........................ passim

Mescalero Apache Tribe v. Jones,

411 U.S. 145 (1973) ....................................... 6, 17

Michigan v. Bay Mills Indian Community,

134 S. Ct. 2024 (2014)................................ passim

Moe v. Confederated Salish & Kootenai Tribes,

425 U.S. 463 (1976) ..........................17, 18, 19, 20

vii

Nevada v. Hicks,

533 U.S. 353 (2001) ........................................... 14

Okla. Tax Comm’n v. Citizen Band

Potawatomi Indian Tribe of Oklahoma,

498 U.S. 505 (1991) .................................... passim

Oneida Indian Nation of New York v.

Madison County,

401 F. Supp. 2d 219 (N.D.N.Y. 2005),

aff’d in part, vacated in part, rev’d in part,

665 F.3d 408 (2d Cir. 2011) .............................. 21

Oneida Indian Nation of New York v.

Madison County,

605 F.3d 149 (2d Cir. 2010), vacated and

remanded on other grounds,

562 U.S. 42 (2011) ............................................. 18

Pan Am. Co. v. Sycuan Band of Mission Indians,

884 F.2d 416 (9th Cir. 1989)............................. 27

Republic of the Philippines v. Pimentel,

553 U.S. 851 (2008) ..................................... 34, 35

Rhode Island v. Narragansett Indian Tribe,

19 F.3d 685 (1st Cir. 1994) ............................... 14

Santa Clara Pueblo v. Martinez,

436 U.S. 49 (1978) ....................................... 10, 14

viii

Save the Valley, LLC v. Santa Ynez Band of

Chumash Indians,

No. CV 15-02463-RGK (MANx), 2015 WL

12552060 (C.D. Cal. July 2, 2015) .................... 21

Shaffer v. Heitner,

433 U.S. 186 (1977) ........................................... 23

Smale v. Noretep,

208 P.3d 1180 (Wash. Ct. App. 2009) ................ 9

South Dakota v. U.S. Dep’t of Interior,

423 F.3d 790 (8th Cir. 2005)............................... 6

Stanley v. Schwalby,

162 U.S. 255 (1896) ........................................... 23

Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83 (1998) ............................................. 32

Tenn. Student Assistance Corp. v. Hood,

541 U.S. 440 (2004) ........................................... 28

Thebo v. Choctaw Tribe of Indians,

66 F. 372 (8th Cir. 1895)................................... 15

Three Affiliated Tribes of the Fort Berthold

Reservation v. Wold Eng’g,

476 U.S. 877 (1986) ..................................... 14, 15

TransAmerica Assurance Corp. v. United States,

423 F. Supp. 2d 691 (W.D. Ky. 2006) ............... 22

United States v. Alabama,

313 U.S. 274 (1941) ........................................... 23

United States v. Nordic Vill., Inc.,

503 U.S. 30 (1992) ............................................. 22

United States v. United States Fid. & Guar. Co.,

309 U.S. 506 (1940) ........................................... 15

Washington v. Wash. State Commercial

Passenger Fishing Vessel Ass’n,

443 U.S. 658 (1979) ............................................. 5

Wis. Dep’t of Nat. Res. v. Timber &

Wood Prods. Located in Sawyer Cty.,

Appeal No. 2017AP181, 2017 WL 6502934

(Wis. Ct. App. Dec. 19, 2017) ............................ 21

Worcester v. Georgia,

31 U.S. 515 (1832) ............................................. 14

Young v. Young,

191 P.3d 1258 (Wash. 2008) ............................. 36

Zych v. Wrecked Vessel Believed to

Be the Lady Elgin,

960 F.2d 665 (7th Cir. 1992)............................. 22

Constitutional Provisions

U.S. Const. art. I, § 8, cl. 3 ..................................... 14

U.S. Const. art. VI, cl. 2 ............................... 3, 13, 33

Statutes

25 U.S.C. § 349 ....................................................... 19

25 U.S.C. § 5108 ....................................................... 6

28 U.S.C. § 1257(a)........................................................ 3

28 U.S.C. § 2409a(a) .............................................. 28

28 U.S.C. § 2409a(n) ............................................. 28

Wash. Rev. Code § 7.28.010 ..................................... 8

Legislative Materials

H.R. Rep. No. 1804, 73rd Cong., 2d Sess.,

at 6 (1934) .......................................................... 6

Regulations

25 C.F.R. § 151.10 .............................................. 6, 31

25 C.F.R. § 151.11 .............................................. 6, 31

Rules

Washington Civil Rule 19 ............................... passim

Other Authorities

Bruce G. Miller, The Problem of Justice:

Tradition and Law in the Coast

Salish World (2001) ........................................ 5, 6

The Federalist No. 81

(Alexander Hamilton) ....................................... 15

xii

INTRODUCTION

Petitioner Upper Skagit Indian Tribe (the Tribe)

purchased 39.56 acres of its ancestral land in Skagit

County, Washington, by statutory warranty deed in

2013. Respondents Sharline and Ray Lundgren own

adjacent land to the south of the Tribe’s land. In 2015,

the Lundgrens brought a quiet title action in

Washington State court, arguing they are entitled to

a portion of the Tribe’s land by adverse possession.

The Tribe invoked its sovereign immunity from suit

and moved to dismiss the action.

This Court has repeatedly affirmed the

importance and inviolability of tribal sovereign

immunity from suit, and has recognized two, and only

two, exceptions: waiver of the immunity by the tribe

and abrogation of the immunity by Congress.

Michigan v. Bay Mills Indian Community, 134 S. Ct.

2024, 2030–31 (2014).

Contrary to controlling precedent in this Court

and despite the Upper Skagit Indian Tribe’s

invocation of its sovereign immunity from suit, the

courts below permitted the Lundgrens’ quiet title

action to proceed based on the in rem nature of

Washington State quiet title actions where there was

neither a waiver nor congressional abrogation of

sovereign immunity.

The Washington Supreme Court’s ruling is based

on what would amount to a third exception to tribal

sovereign immunity for actions brought in rem

against land owned by a federally recognized Indian

tribe. No such exception exists. The ruling cannot

stand against controlling rulings of this Court. If

affirmed, the decision would undermine the

autonomy, territorial integrity, and resources of

Indian tribes throughout the nation.

OPINIONS BELOW

The opinion of the Washington Supreme Court

that is the subject of this appeal is reported at

Lundgren v. Upper Skagit Indian Tribe, 389 P.3d 569

(Wash. 2017), and reproduced at Joint Appendix 98–

134. The order of the Washington Supreme Court

amending its opinion is unreported but reproduced at

Joint Appendix 135–138.

The order of the

Washington Supreme Court denying the motion for

reconsideration is unreported but reproduced at Joint

Appendix 139.

The opinion of the Washington Superior Court

denying the Upper Skagit Indian Tribe’s motion to

dismiss is unreported but reproduced at Joint

Appendix 75–76.

JURISDICTION

The Washington Supreme Court issued its

decision on February 16, 2017, amended the decision

on June 8, 2017, and denied reconsideration on June

12, 2017. The Upper Skagit Indian Tribe filed a

petition for a writ of certiorari on September 11, 2017,

and this Court granted the petition on December 8,

2017.

The Court’s jurisdiction rests on 28 U.S.C. §

1257(a).

CONSTITUTIONAL PROVISION INVOLVED

The Supremacy Clause of the United States

Constitution provides:

This Constitution, and the Laws of the United

States which shall be made in Pursuance

thereof; and all Treaties made, or which shall

be made, under the Authority of the United

States, shall be the supreme Law of the Land;

and the Judges in every State shall be bound

thereby, any Thing in the Constitution or

Laws of any State to the Contrary

notwithstanding.

U.S. Const. art. VI, cl. 2.

RULES INVOLVED

Washington’s Superior Court Civil Rules

governing joinder of necessary parties provide in

relevant part:

Persons to Be Joined if Feasible. A person

who is subject to service of process and whose

joinder will not deprive the court of

jurisdiction over the subject matter of the

action shall be joined as a party in the action

if (1) in the person’s absence complete relief

cannot be accorded among those already

parties, or (2) 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 (A) as a practical

matter impair or impede the person’s ability

to protect that interest or (B) leave any of the

persons already parties subject to a

substantial risk of incurring double, multiple,

or otherwise inconsistent obligations by

reason of the person’s claimed interest. If the

person has not been so joined, the court shall

order that the person be made a party. If the

person should join as a plaintiff but refuses to

do so, the person may be made a defendant,

or, in a proper case, an involuntary plaintiff.

If the joined party objects to venue and the

person’s joinder would render the venue of the

action improper, the joined party shall be

dismissed from the action.

Washington Civil Rule 19(a) (2017).

Determination by Court Whenever

Joinder Not Feasible. If a person joinable

under (1) or (2) of section (a) hereof cannot be

made a party, the court shall determine

whether in equity and good conscience the

action should proceed among the parties

before it, or should be dismissed, the absent

person being thus regarded as indispensable.

The factors to be considered by the court

include: (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.

Washington Civil Rule 19(b) (2017).

STATEMENT

In 1855, the predecessor aboriginal bands of

the Upper Skagit Indian Tribe and the United States

of America entered into the Treaty of Point Elliott.

See Washington v. Wash. State Commercial Passenger

Fishing Vessel Ass’n, 443 U.S. 658, 661–62, 661 n.1,

662 n.2 (1979). By doing so, the United States

recognized the Tribe as a sovereign and secured title

to the lands the Tribe held in the Pacific Northwest.

See id.

One hundred and fifty-eight years later, in

2013, the Tribe bought property in Skagit County,

Washington, and received a statutory warranty deed.

Clerk’s Papers (CP) 85–88; see Skagit County

property map exhibit, reproduced at Joint Appendix

33. This purchase was part of the Tribe’s long-term

effort to reclaim its ancestral lands for the religious,

cultural, and economic benefit of its members, see

Bruce G. Miller, The Problem of Justice: Tradition

and Law in the Coast Salish World 97–98 (2001): the

property is adjacent to other land the Tribe owns,

borders a tribal cemetery, and is where the Tribe

buried its members killed by smallpox.

Until the early 1980s, the Tribe was

landless save for a cemetery held in trust for the Tribe

since 1914. Id. Congress was particularly concerned

about landless tribes when, in 1934, it enacted the

Indian Reorganization Act, authorizing acquisition of

trust land for Indian tribes. 25 U.S.C. § 5108 (2017);

H.R. Rep. No. 1804, 73rd Cong., 2d Sess., at 6 (1934).

The statute’s “intent and purpose” was “to

rehabilitate the Indian’s economic life and to give him

a chance to develop the initiative destroyed by a

century of oppression and paternalism.” Mescalero

Apache Tribe v. Jones, 411 U.S. 145, 152 (1973)

(quoting H.R. Rep. No. 1804, 73rd Cong., 2d Sess., at

6 (1934)). “Congress believed that additional land

was essential for the economic advancement and selfsupport of the Indian communities.” South Dakota v.

U.S. Dep’t of Interior, 423 F.3d 790, 798 (8th Cir.

2005) (citations omitted).

The Tribe has secured approximately 500

acres (0.78 square miles) of trust land in the past. See

generally Miller, The Problem of Justice at 98–99.

The property at issue here is one of the last remaining

pieces of that contiguous area. Because the land

borders existing Tribe trust land, it is much more

likely that the federal government will approve

taking the land into trust. See 25 C.F.R. §§ 151.10–

.11 (2018).

Beyond the significant historical,

religious, and cultural meaning this land holds for the

Tribe, its acquisition for commercial development to

support the Tribe’s “economic base and its ability to

be self-sufficient[,] . . . to facilitate growth in tribal

industry[,] and [to] ensure the use of the land for

future generations” is encouraged by federal

law. U.S. Dep’t of Interior, 423 F.3d at 801.

There are two partially overgrown fences on

the property, one of which, on the southern part, is

relevant here. CP 8, 103–05, 115. Both fences are of

the same vintage and are believed to have been

installed by a prior owner of the property. CP 103–

05. The southern fence runs north of and almost

parallel to the southern deed line, and has a wide

access gate. CP 103, 115; see fence line exhibit,

reproduced at Joint Appendix 38, and access gate

exhibit, reproduced at Joint Appendix 42. One of the

previous property owners stated that he was not

aware of the southern fence and that neither he nor

his family members were told that anyone had built a

fence there or intended to do so. CP 57–58.

Sharline and Ray Lundgren are the record

owners of property immediately south of the subject

property. CP 103, 115.

In March 2015, the Lundgrens filed a quiet

title action in state court, naming the Tribe as the

defendant, and alleging that they had acquired title

to the property between the southern fence and the

boundary line by adverse possession prior to the

Tribe’s purchase. 1 CP 7–12; Lundgren, 389 P.3d at

571.

The Tribe entered a special appearance

stating that it was not waiving its sovereign

immunity, and filed a motion to dismiss the

Lundgrens’ complaint or, if denied, to stay

proceedings while the Tribe sought appellate review.

CP 256, 229–44. The trial court denied the Tribe’s

motion and shortly thereafter granted the Lundgrens’

motion for summary judgment. CP 155–60. The

Washington Supreme Court granted the Tribe’s

request for direct review of those decisions.

Lundgren, 389 P.3d at 572; see also CP 141–43, 148–

51.

In a 5-4 decision, the Washington Supreme

Court affirmed, holding that the Tribe’s sovereign

immunity did not bar suit. Lundgren, 389 P.3d at

572–74. To reach this conclusion, the court construed

County of Yakima v. Confederated Tribes & Bands of

Yakima Indian Nation, 502 U.S. 251 (1992), to

support the proposition that courts may exercise in

rem jurisdiction over property owned by a federally

recognized Indian tribe despite its sovereign

immunity from suit. 389 P.3d at 573. The court also

looked to Washington State precedent interpreting

County of Yakima, reasoning that an action to quiet

title to Indian property is not impermissibly offensive

1 Washington State law requires quiet title actions “to be

brought against the tenant in possession [or] if there is no such

tenant, then against the person claiming the title or some

interest therein.” Wash. Rev. Code § 7.28.010 (2017).

to tribal sovereignty because it is a “‘less intrusive

assertion of state jurisdiction’ . . . than taxing and

foreclosing” on Indian land. 389 P.3d at 573 (quoting

Anderson & Middleton Lumber Co. v. Quinault

Indian Nation, 929 P.2d 379, 384–85 (Wash. 1996)).

The court further reasoned that the exercise of in rem

jurisdiction over such land is consistent with tribal

sovereign immunity because it does not have “the

potential to deprive any party of land [it] rightfully

own[s].” 389 P.3d at 573–74 (quoting Smale v.

Noretep, 208 P.3d 1180, 1184 (Wash. Ct. App. 2009)).

Having concluded that tribal sovereign immunity was

not a bar to the exercise of in rem jurisdiction

affecting the Tribe’s real property rights, the court

held that the Tribe was not a necessary party under

Washington Civil Rule 19. The court concluded that

the Lundgrens would prevail on their adverse

possession claim and, accordingly, the Tribe had no

protectable

interest

stake—though

acknowledged that “this analysis seems, in a way, to

put ‘the cart before the horse.’” 389 P.3d at 574–75.

10.

Justice Stephens, joined by Chief Justice

Fairhurst and Justices Madsen and Gordon McCloud,

dissented. The dissenters found that the majority had

given “insufficient weight to the sovereign status of

the Tribe and erroneously reach[ed] and discount[ed]

the merits of [the Tribe’s] claims.” Id. at 577

(Stephens, J., dissenting) (citation omitted) (internal

quotation marks omitted). The dissent stated it

would have held that the Tribe was a necessary and

indispensable party that could not be joined in the

quiet title action, necessitating dismissal of the case.

Id. The dissent noted that the Washington Supreme

Court’s opinion in Anderson & Middleton Lumber Co.,

929 P.2d 379, which informed the majority’s holding

in this case, may “rest[] on a misreading of County of

Yakima,” that “will certainly need to be addressed in

a future case that considers the arc of United States

Supreme Court precedent leading to Bay Mills.” Id.

at 578 n.1.

This Court granted certiorari.

SUMMARY OF ARGUMENT

As “separate sovereigns pre-existing the

Constitution,” Santa Clara Pueblo v. Martinez, 436

U.S. 49, 56 (1978), Indian tribes enjoy sovereign

immunity from suit, subject only to waiver by the

tribes or unequivocal abrogation by Congress, Bay

Mills, 134 S. Ct. at 2030–31.

Contrary to this settled rule of sovereign

immunity, the Washington Supreme Court held the

Lundgrens’ quiet title action could proceed because it

was an in rem action. Lundgren, 389 P.3d at 574.

This ruling would create a third exception to tribal

sovereign immunity for in rem actions. Id. The

Washington Supreme Court cannot create such an

exception. “[T]ribal immunity ‘is a matter of federal

law and is not subject to diminution by the States.’”

Bay Mills, 134 S. Ct. at 2031 (citation omitted).

The Washington Supreme Court is not alone in its

belief that there is a third exception to tribal

sovereign immunity for actions in rem, but the

majority of courts faced with the question have

declined to recognize such an exception.

II.

The Washington Supreme Court’s decision

was based on multiple errors: (a) an erroneous

interpretation of this Court’s decision in County of

Yakima, 502 U.S. 251; (b) a flawed reading of how

tribal sovereign immunity may be limited; (c) a failure

to appreciate that one purpose of sovereign immunity

is to shield sovereigns from the burdens of litigation;

and (d) a failure to recognize the significant sovereign

interests in ownership and control of land.

The Washington Supreme Court cited this

Court’s decision in County of Yakima in support of its

holding. Lundgren, 389 P.3d at 573. But this Court

did not recognize an in rem exception to tribal

sovereign immunity in County of Yakima. That case

held that only Congress may authorize states to

impose taxes on fee land within the exterior

boundaries of a tribe’s reservation. See County of

Yakima, 502 U.S. at 258. The Court’s passing

mention of in rem jurisdiction in County of Yakima

did not remotely suggest, much less hold, that there

is an exception to tribal sovereign immunity to suit

for in rem actions. Id. at 254–65.

The Washington Supreme Court opined

that exercising in rem jurisdiction over property

owned by an Indian tribe is less invasive of tribal

sovereignty than other assertions of state jurisdiction

that this Court has permitted such as taxing property

owned by an Indian tribe. Lundgren, 389 P.3d at 573.

But the degree to which a tribe’s sovereignty is

invaded is not a basis for expanding exceptions to

immunity. Only an Indian tribe (by waiver) or

Congress (by legislation) may limit tribal sovereign

immunity. See Bay Mills, 134 S. Ct. at 2030–31. The

Upper Skagit Indian Tribe has not waived its

immunity to quiet title actions nor has Congress

abrogated it.

The Washington Supreme Court concluded

that subjecting property owned by an Indian tribe to

in rem quiet title actions would not actually diminish

tribal sovereignty because such actions merely

apportion property according to all parties’ legal

rights: i.e., the Tribe would not lose anything to which

it was entitled. Lundgren, 389 P.3d at 573–74. But

the shield of sovereign immunity protects against the

burdens of litigation regardless of the merits of a

claim. See Koehler v. United States, 153 F.3d 263, 267

(5th Cir. 1998); Foremost-McKesson, Inc. v. Islamic

Republic of Iran, 905 F.2d 438, 443 (D.C. Cir. 1990).

The Tribe may not be subjected to an action that tests

its title to the disputed property because being forced

to defend its title is a central harm foreclosed by the

immunity. The argument that immunity from suit

vanishes if the party asserting it will lose on the

merits would eradicate immunity from suit.

The Washington Supreme Court failed to

recognize that a sovereign’s interest in real property

goes to the heart of the interests protected by

immunity, see Idaho v. Coeur d’Alene Tribe of Idaho,

521 U.S. 261, 281–82 (1997), and that Indian tribes’

interest in real property is a core interest.

III.

Tribal sovereign immunity mandates

dismissal of in rem actions involving tribal property.

The Washington Supreme Court erred when it

allowed adjudication of the Tribe’s real property

interests absent jurisdiction over the Tribe based on

its ruling that the Tribe was not a necessary party for

purposes of Washington Civil Rule 19. Lundgren, 389

P.3d at 572, 574–76. Regardless of the merits of the

Washington Supreme Court’s interpretation of

Washington State law, it cannot apply that law in a

way that undermines the federal law of tribal

sovereign immunity. U.S. Const. art. VI, cl. 2. The

Washington Supreme Court erred by permitting the

Lundgrens’ quiet title action to proceed in the face of

the Tribe’s sovereign immunity.

IV.

Sovereign immunity is not defeated by a

lack of alternative remedies for affected litigants,

particularly in light of the right to seek remedial

legislation from Congress, see Okla. Tax Comm’n v.

Citizen Band Potawatomi Indian Tribe of Oklahoma,

498 U.S. 505, 514 (1991) (citations omitted), but the

Lundgrens were not without other means to protect

their interests. The Lundgrens could have sought,

but did not seek, to quiet title to the disputed property

in the decades before the Tribe purchased the land in

2013. Even now, the Lundgrens could sue the seller

of the property for purporting to sell land the seller

(the Lundgrens’ claim) did not own. The Washington

State legislature could create a cause of action for

money damages against those who purport to sell real

property to which they do not have title. Finally, if

the situation presented by this case merited

legislative attention, Congress could fashion a

carefully tailored exception to sovereign immunity

that would not require a wholesale exception for all

actions brought in rem.

ARGUMENT

Federal Courts and Congress Have

Long Recognized That Indian Tribes

Retain Inherent Sovereign Immunity.

Tribal sovereignty predates the nation’s founding.

This Court has recognized that Indian tribes are

“distinct, independent political communities,”

Worcester v. Georgia, 31 U.S. 515, 519 (1832),

abrogated on other grounds by Nevada v. Hicks, 533

U.S. 353, 361–62 (2001), and “separate sovereigns

pre-existing the Constitution,” Santa Clara Pueblo v.

Martinez, 436 U.S. 49, 56 (1978). See also Cherokee

Nation v. Georgia, 30 U.S. 1, 17 (1831) (recognizing

Indian tribes as “domestic dependent nations”);

Rhode Island v. Narragansett Indian Tribe, 19 F.3d

685, 694 (1st Cir. 1994) (“The Tribe’s retained

sovereignty predates federal recognition—indeed, it

predates the birth of the Republic.” (citation

omitted)). Because of their recognized status as

separate sovereigns, the Constitution’s Commerce

Clause groups “Indian Tribes” alongside “foreign

Nations” and “the several States.” U.S. Const. art. I,

§ 8, cl. 3.

Sovereign immunity from suit is a “core aspect[] of

sovereignty that tribes possess,” Bay Mills, 134 S. Ct.

at 2030 (citation omitted), and “a necessary corollary

to Indian sovereignty and self-governance,” Three

Affiliated Tribes of the Fort Berthold Reservation v.

Wold Eng’g, 476 U.S. 877, 890 (1986) (citation

omitted). Cf. The Federalist No. 81 (Alexander

Hamilton) (“It is inherent in the nature of sovereignty

not to be amenable to the suit of an individual without

its consent.”).

Thus, “[a]s a matter of federal law, an Indian tribe

is subject to suit only where Congress has authorized

the suit or the tribe has waived its immunity.” Kiowa

Tribe of Oklahoma v. Mfg. Techs., Inc., 523 U.S. 751,

754 (1998) (citation omitted). For over one hundred

years, federal courts have recognized that only

Congress (by abrogation) and the tribes (by waiver)

may define the contours of tribal sovereign immunity.

See, e.g., Bay Mills, 134 S. Ct. at 2030 (“tribes

possess—subject . . . to congressional action . . . the

‘common-law immunity from suit traditionally

enjoyed by sovereign powers’” (citations omitted));

United States v. United States Fid. & Guar. Co., 309

U.S. 506, 512–13 (1940) (“Indian Nations are exempt

from suit without Congressional authorization.”

(citations omitted)); Adams v. Murphy, 165 F. 304,

308 (8th Cir. 1908) (“Indian tribes are exempt from

civil suit. That has been the settled doctrine of the

government from the beginning.”); Thebo v. Choctaw

Tribe of Indians, 66 F. 372, 375 (8th Cir. 1895) (“It has

been the policy of the United States to place and

maintain the . . . civilized Indian Nations in the

Indian Territory, so far as relates to suits against

them, on the plane of independent states. A state,

without its consent, cannot be sued by an

individual.”).

“Congress has consistently reiterated its approval

of the immunity doctrine.” Okla. Tax Comm’n, 498

U.S. at 510 (citations omitted). Congressional acts

approving tribal sovereign immunity “reflect

Congress’ desire to promote the goal of Indian selfgovernment, including its overriding goal of

encouraging tribal self-sufficiency and economic

development.”

Id. (citation omitted) (internal

quotation marks omitted). The corollary is that

“courts will not lightly assume that Congress in fact

intends to undermine Indian self-government,” and

will find that Congress has abrogated immunity only

if the “congressional decision” is “clear” and expressed

“unequivocally.” Bay Mills, 134 S. Ct. at 2031–32

(citations omitted) (internal quotation marks

omitted).

The Washington Supreme Court’s creation of a

new exception to tribal sovereign immunity violated

the basic principle that “tribal immunity ‘is a matter

of federal law and is not subject to diminution by the

States.’” Bay Mills, 134 S. Ct. at 2031 (quoting Kiowa,

523 U.S. at 756).

II.

The Washington Supreme Court Erred

in Recognizing an in rem Exception to

Tribal Sovereign Immunity.

This Court has recognized only two exceptions to

Tribal sovereign immunity: waiver and congressional

abrogation. Id. at 2030–31. Here, the Tribe did not

waive its immunity and Congress has not limited it.

The Washington Supreme Court held that the

exercise of in rem jurisdiction to adjudicate ownership

of property purchased by an Indian tribe was a third

exception to Tribal sovereign immunity. Lundgren,

389 P.3d at 574 (“courts have subject matter

jurisdiction over in rem proceedings in certain

situations where claims of sovereign immunity are

asserted”). The court based this holding on a

misreading of County of Yakima, 502 U.S. at 255.

This ruling is contrary to federal law.

A. This Court’s Decision in County of Yakima

Did Not Recognize an in rem Exception to

Tribal Sovereign Immunity from Suit.

The Washington Supreme Court misunderstood

this Court’s holdings in County of Yakima and a prior

case, Moe v. Confederated Salish & Kootenai Tribes,

425 U.S. 463 (1976). Neither case concerns sovereign

immunity from suit, let alone supports an in rem

exception to such immunity. Instead, both cases focus

on tribal immunity from taxation and conclude that

only Congress can authorize state taxation of

reservation lands and Indians. See County of Yakima,

502 U.S. at 258 (“‘[A]bsent cession of jurisdiction or

other federal statutes permitting it’ . . . a State is

without power to tax reservation lands and

reservation Indians.” (quoting Mescalero Apache

Tribe v. Jones, 411 U.S. 145, 148 (1973))); Moe, 425

U.S. at 465, 475–76 (state taxation of Indian

reservation lands or income “‘is not permissible

absent congressional consent’” (quoting Mescalero

Apache Tribe, 411 U.S. at 148)). Tribal immunity

from taxation and tribal immunity from suit are

distinct concepts, but under both doctrines, only

Congress can limit a tribe’s sovereignty and authorize

the state action at issue. See Oneida Indian Nation

of New York v. Madison County, 605 F.3d 149, 156–59

(2d. Cir. 2010), vacated and remanded on other

grounds, 562 U.S. 42 (2011).

In both County of Yakima and Moe, states argued

that Congress had authorized a tax in the General

Allotment Act of 1887 (GAA). County of Yakima, 502

U.S. at 258; Moe, 425 U.S. at 477. In Moe, the Court

found that Congress had not authorized states to

impose sales and property tax on Indians living and

working on Indian reservations. 425 U.S. at 477–81.

In County of Yakima, the Court found that Congress

had authorized states “to impose . . . ad valorem

property tax[es] on reservation land patented in fee.”

502 U.S. at 270. Both cases required the Court to

analyze the statutes at issue to determine whether

Congress had clearly authorized states to impose a

tax. Neither case recognized or even discussed an

independent in rem exception to tribal sovereign

immunity from suit.

The Washington Supreme Court’s error arises

from a passing reference to in rem jurisdiction in

County of Yakima when the Court explained its

justification for the differing applications of the GAA

in that case and in Moe. See County of Yakima, 502

U.S. at 264–65 (“But because the jurisdiction is in rem

rather than in personam, it is assuredly not Moecondemned.”).

In Moe, the State of Montana imposed and sought

to enforce certain sales and property taxes on

members of Indian tribes residing or conducting

business on reservation land. 425 U.S. at 465, 468–

69. At issue was Section 6 of the GAA, which

provides,

[a]t the expiration of the trust period and

when the lands have been conveyed to the

Indians by patent in fee . . . then 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.

Id. at 477 (quoting 25 U.S.C. § 349). The Court

rejected the State’s view that this statute was an

express authorization for the disputed taxes, saying,

among other things, that such a reading would create

“an impractical pattern of checkerboard jurisdiction .

. . contrary to the intent embodied in the existing

federal statutory law of Indian jurisdiction.” Id. at

478 (citations omitted) (internal quotation marks

omitted). The Court held, as it has in many other

cases, that tribal sovereignty prohibits states from

imposing taxes on Indian reservation lands or income

absent clear authorization from Congress. Id. at 475–

76.

This principle was also applied in County of

Yakima with a different result—because the Court

found that Congress had clearly acted to allow a

specific tax, not on individual Indians as in Moe, but

on certain Indian-owned land. 502 U.S. at 264–65.

Referring to Moe’s “checkerboard jurisdiction”

language, the Court distinguished the earlier case by

saying, “because the jurisdiction is in rem rather than

in personam, it is assuredly not Moe-condemned.” Id.

at 265. An in rem tax on land often produces a

“checkerboard” effect, but a “checkerboard” pattern of

taxation of land, unlike the taxation of persons in

Moe, was unobjectionable because it was consistent

with congressional intent to limit tribal immunity

from taxation. Id. at 262–65.

Thus, the use of the words “in rem” in County of

Yakima does not remotely suggest the existence of the

in rem exception to sovereign immunity from suit that

the Washington Supreme Court embraced here.

Rather, County of Yakima merely clarifies the

jurisdiction to tax afforded to states pursuant to

Section 6 of the GAA. County of Yakima, like Moe and

every other relevant authority, recognized the need

for unequivocal congressional action to overcome

tribal sovereign immunity from taxation.

Nearly all courts that have considered the

question have rejected the Washington Supreme

Court’s reading of County of Yakima. E.g., Cayuga

Indian Nation of New York v. Seneca County, 761 F.3d

218, 221 (2d Cir. 2014) (“we read no implied

abrogation of tribal sovereign immunity from suit

into” County of Yakima), aff’g 890 F. Supp. 2d 240,

247 (W.D.N.Y. 2012) (“[T]he Court disagrees that

[County of Yakima] stands for the proposition that

tribal sovereign immunity from suit is inapplicable to

in rem proceedings.”), aff’d,; Hamaatsa, Inc. v. Pueblo

of San Felipe, 388 P.3d 977, 985 (N.M. 2016) (County

of Yakima “concerned the county’s authority to tax

certain fee patent parcels of land, located within the

Yakima Reservation—and not . . . the tribe’s

amenability to suit in court based on a concept of an

in rem exception to immunity” (citation omitted)

(internal quotation marks omitted)); Wis. Dep’t of Nat.

Res. v. Timber & Wood Prods. Located in Sawyer Cty.,

Appeal No. 2017AP181, 2017 WL 6502934, at *9 (Wis.

Ct. App. Dec. 19, 2017) (publ’n decision pending)

(“Yakima does not stand[] for the proposition that

tribal sovereign immunity from suit is inapplicable to

in rem proceedings.” (alteration in original) (citation

omitted) (internal quotation marks omitted); Save the

Valley, LLC v. Santa Ynez Band of Chumash Indians,

No. CV 15-02463-RGK (MANx), 2015 WL 12552060,

at *3 (C.D. Cal. July 2, 2015) (“Plaintiff has failed to

provide any binding authority to show that Congress

abrogated the Tribe’s immunity to in rem actions . . .

. Unlike the present action, Yakima concerned an

action by the local government pursuant to an express

abrogation of tribal power by an act of Congress.”);

First Bank & Tr. v. Maynahonah, 313 P.3d 1044, 1056

(Okla. Civ. App. 2013) (“We do not agree with [the]

assertion that Yakima . . . [is] authority that ‘plainly

demonstrate[s] that tribal sovereign immunity does

not bar the exercise of in rem jurisdiction over tribal

property, even when a tribe loses some part of that

property as a result.’” (citation omitted)); see also

Oneida Indian Nation of New York v. Madison

County, 401 F. Supp. 2d 219, 229 (N.D.N.Y. 2005)

(“The County cannot circumvent Tribal sovereign

immunity by characterizing the suit as in rem, when

it is, in actuality, a suit to take the tribe’s property.”),

aff’d in part, vacated in part, rev’d in part, 665 F.3d

408 (2d Cir. 2011). Contra Cass Cty. Joint Water Res.

Dist. v. 1.43 Acres of Land in Highland Twp., 643

N.W. 2d 685, 690–94 (N.D. 2002).

The majority position that there is no general in

rem exception to tribal sovereign immunity from suit

is consistent with settled federal law that there is no

general in rem exception to state and federal

sovereign immunity from suit. See, e.g., United States

v. Nordic Vill., Inc., 503 U.S. 30, 38 (1992) (“we have

never applied an in rem exception to the sovereignimmunity bar against monetary recovery, and have

suggested that no such exception exists” (citation

omitted)); Zych v. Wrecked Vessel Believed to Be the

Lady Elgin, 960 F.2d 665, 669 (7th Cir. 1992) (“there

is no general in rem exception to principles of

sovereign

immunity”

(citation

omitted));

TransAmerica Assurance Corp. v. United States, 423

F. Supp. 2d 691, 696 (W.D. Ky. 2006) (“[T]here is no

general ‘in rem’ exception to the doctrine of sovereign

immunity. Rather, the Supreme Court has excepted

only two very specific types of in rem proceedings from

sovereign

immunity

analysis:

bankruptcy

proceedings, and admiralty cases.”). There is no

reason to conclude there is a general in rem exception

to tribal sovereign immunity but no general in rem

exception to state or federal sovereign immunity.

It is no answer to say that sovereign immunity is

not at issue because an in rem action “subject[s]” a

tribe’s property, rather than the tribe itself, “to suit.”

Cf. Kiowa, 523 U.S. at 754 (“an Indian tribe is subject

to suit only where Congress has authorized the suit or

the tribe has waived its immunity” (citations

omitted)). As this Court has previously recognized,

“[t]he phrase, ‘judicial jurisdiction over a thing’, is a

customary elliptical way of referring to jurisdiction

over the interests of persons in a thing.” Shaffer v.

Heitner, 433 U.S. 186, 207 (1977) (alteration in

original) (quoting Restatement (Second) of Conflict of

Laws § 56, Introductory Note (1971)).

For purposes of sovereign immunity from suit, an

assertion of jurisdiction over a sovereign’s real

property is an assertion of jurisdiction over the

sovereign itself. See United States v. Alabama, 313

U.S. 274, 282 (1941) (“A proceeding against property

in which the United States has an interest is a suit

against the United States.” (citation omitted));

Stanley v. Schwalby, 162 U.S. 255, 269–70 (1896) (“It

is a fundamental principle of public law . . . that no

suit can be maintained against the United States, or

against their property, in any court, without express

authority of congress.” (citation omitted)); Belknap v.

Schild, 161 U.S. 10, 16 (1896) (“The United States,

however, like all sovereigns, cannot be impleaded in

judicial tribunal, except so far as they have

consented to be sued. . . . The same exemption from

judicial process extends to the property of the United

States . . . .”); Carr v. United States, 98 U.S. 433, 437–

38 (1878) (“[W]ithout an act of Congress no direct

proceeding can be instituted against the government

or its property. . . . Otherwise, the government could

always be compelled to come into court and litigate

with private parties in defence of its property.”); The

Siren, 74 U.S. 152, 154 (1868) (“[T]here is no

distinction between suits against the government

directly, and suits against its property.”); Cayuga, 761

F.3d at 221 (“[W]e decline to draw the novel

distinctions—such as a distinction between in rem

and in personam proceedings . . . .”). Accordingly, “an

action—otherwise barred as an in personam action

against the State—cannot be maintained through

seizure of property owned by the State.” Florida Dept.

of State v. Treasure Salvors, Inc., 458 U.S. 670, 699

(1982) (plurality opinion). Any other rule would allow

sovereign immunity from suit to “easily be

circumvented; an action for damages could be brought

simply by first attaching property that belonged to the

State and then proceeding in rem.” Id.

No matter the form of action, adjudicating a nonconsenting sovereign’s real property rights requires

an effective assertion of jurisdiction over the

sovereign itself and necessarily implicates sovereign

immunity from suit. Absent a valid exception to

immunity, the action cannot proceed. This Court’s

decision in County of Yakima does not support the

Washington Supreme Court’s recognition of an in rem

exception to tribal sovereign immunity absent clear

congressional action authorizing such an exception.

B. Only Congress or an Indian Tribe May

Limit a Tribe’s Sovereign Immunity.

The Washington Supreme Court sought to

buttress its conclusion that there is an in rem

exception to sovereign immunity by opining that an

action to quiet title to Indian land intrudes less on the

tribe’s sovereignty than other assertions of state

jurisdiction that this Court has permitted, such as the

taxation and foreclosure of fee lands permitted in

County of Yakima. Lundgren, 389 P.3d at 573. The

court did not explain why taking ancestral land of

which a tribe is a record owner is less “intrusive” than

taxing it. But the question is irrelevant. Whether an

exception to tribal sovereign immunity exists has

nothing to do with how intrusive it is. The issue is

authorization, which may be granted only through

clear congressional action or tribal waiver. See Bay

Mills, 134 S. Ct. at 2030–31 (“[W]e have 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).”

(citation omitted) (internal quotation marks

omitted)).

The scope of the limitation on tribal sovereign

immunity from a legitimate source (Congress or a

tribe) is as broad as the source provides. See Okla.

Tax Comm’n, 498 U.S. at 510 (“Congress has always

been at liberty to dispense with such tribal immunity

or to limit it.”). But if the limitation comes from an

illegitimate source, it is invalid no matter its scope.

See Bay Mills, 134 S. Ct. at 2030–31. In this case,

neither the Upper Skagit Indian Tribe nor Congress

authorized state courts to exercise in rem jurisdiction

over the Tribe’s land in quiet title actions.

Accordingly, the Tribe remains immune from suit to

quiet title to its land.

C. A State’s Exercise of in rem Jurisdiction

over Property Acquired by an Indian

Tribe

Works

Impermissible

Diminution of the Tribe’s Sovereignty.

The Washington Supreme Court’s third

justification for the exercise of in rem jurisdiction over

property purchased by a federally recognized Indian

tribe is that, because the action will merely determine

the tribe’s legal rights, it does not actually burden or

invade tribal sovereignty. According to the court, “a

state court in rem action . . . does nothing more than

divide [land] among its legal owners according to their

relative interests,” and does not have “the potential to

deprive any party of land [it] rightfully own[s].”

Lundgren, 389 P.3d at 573–74 (citations omitted).

In other words, the Washington court asks, “What

do you need sovereign immunity for? If you are right,

you will win the case.” Of course, the same can be said

of any legal action against an Indian tribe or any

other sovereign. Apart from the logical fallacy of

looking to the outcome of the case to decide whether

the case can be brought—what the state court itself

called putting “the cart before the horse,” 389 P.3d at

575—this reasoning overlooks the fundamental

reason why sovereigns are immune from suit.

Sovereign immunity protects sovereigns from the

burdens of litigation in the interest of preserving

sovereign dignity, Alden v. Maine, 527 U.S. 706, 715,

749 (1999), protecting public resources, Hess v. Port

Auth. Trans-Hudson Corp., 513 U.S. 30, 48 (1994),

and maintaining self-governance, Ex parte Ayers, 123

U.S. 443, 505 (1887). Immunity would be eviscerated

if the action had to be heard on the merits to

determine if immunity existed, and immunity limited

to suits without merit would be no immunity at all.

See FDIC v. Meyer, 510 U.S. 471, 475 (1994)

(“Sovereign immunity is jurisdictional in nature.”);

Pan Am. Co. v. Sycuan Band of Mission Indians, 884

F.2d 416, 418 (9th Cir. 1989) (“[W]e must first

determine whether the Band has effectively waived

tribal immunity—thus making it amenable to suit in

federal court—irrespective of the merits of [plaintiff’s]

tort and contractual claims.”); Koehler, 153 F.3d at

267 (“At its core, sovereign immunity deprives the

courts of jurisdiction irrespective of the merits of the

underlying claim.”); Foremost-McKesson, Inc., 905

F.2d at 443 (“sovereign immunity is an immunity

from trial and the attendant burdens of litigation, and

not just a defense to liability on the merits” (citation

omitted)).

The Tribe is the record owner of this property, and

its title may not be tested without its consent or

congressional authorization.

D. All Sovereigns, and Particularly Indian

Tribes, Have Interests in Ownership and

Control of Their Land Protected by

Sovereign Immunity.

The assertion of in rem jurisdiction over land poses

a significant threat to sovereign interests.

Accordingly, state sovereign immunity bars actions

targeting state real property interests. See, e.g.,

California v. Deep Sea Research, Inc., 523 U.S. 491,

506 (1998) (“the Eleventh Amendment bars federal

jurisdiction over general title disputes relating to

state property interests”); 2 Coeur d’Alene Tribe, 521

U.S. at 289 (O’Connor, J., concurring in part and

concurring in the judgment) (“The Tribe could not

maintain a quiet title action in federal court without

the State’s consent, and for good reason: A federal

court cannot summon a State before it in a private

action seeking to divest the State of a property

interest.” (citations omitted)).

The federal

government has a similar interest in protecting

federal land. While the United States has waived its

sovereign immunity to some quiet title actions, it has

retained its immunity to adverse possession claims,

see 28 U.S.C. § 2409a(a), (n) (2017).

In Coeur d’Alene Tribe, the Coeur d’Alene Tribe

sued state officials seeking a “permanent injunction

prohibiting [the officials] from regulating, permitting,

or taking any action in violation of the Tribe’s rights

of exclusive use and occupancy, quiet enjoyment, and

other ownership interest in the submerged lands” of

2 Deep Sea Research held that an in rem admiralty action

could proceed against a res not in the State’s possession. Id. at

507–08.

The Court explicitly acknowledged the limited

applicability of this carve-out, which is rooted in admiralty law.

Id. (holding that the “longstanding precedent respecting the

federal courts’ assumption of in rem admiralty jurisdiction over

vessels that are not in the possession of a sovereign” meant “that

the Eleventh Amendment does not bar” in rem jurisdiction over

a shipwrecked vessel); see also Tenn. Student Assistance Corp. v.

Hood, 541 U.S. 440, 461 (2004) (Thomas, J., dissenting) (“our

holding in Deep Sea Research was limited to actions where the

res is not within the State’s possession”). It has no applicability

to real property of which the sovereign has recorded title.

Lake Coeur d’Alene based on a prior executive order.

521 U.S. at 264–65. The Court noted that while “[a]n

allegation of an ongoing violation of federal law where

the requested relief is prospective is ordinarily

sufficient to invoke the [Ex parte] Young fiction,” and

thereby avoid the state’s sovereign immunity defense,

“this case is unusual in that the Tribe’s suit is the

functional equivalent of a quiet title action which

implicates special sovereignty interests.” Id. at 281.

See generally Ex parte Young, 209 U.S. 123 (1908). If

the Tribe prevailed, “substantially all benefits of

ownership and control would shift from the State to

the Tribe,” and the state’s “sovereign interest in its

lands and waters would be affected in a degree fully

as intrusive as almost any conceivable retroactive

levy upon funds in its Treasury.” Id. at 281–82, 287.

While the Court’s decision was grounded in state

immunity under the Eleventh Amendment, id. at

287–88, its reasoning is equally applicable to tribal

sovereign immunity. The Court has

sometimes referred to the States’ immunity

from suit as “Eleventh Amendment

immunity.”

The phrase is convenient

shorthand but something of a misnomer, for

the sovereign immunity of the States neither

derives from, nor is limited by, the terms of

the Eleventh Amendment. Rather, as the

Constitution’s structure, its history, and the

authoritative interpretations by this Court

make clear, the States’ immunity from suit is

a fundamental aspect of the sovereignty

which the States enjoyed before the

ratification of the Constitution, and which

they retain today . . . except as altered by the

plan of the Convention or certain

constitutional Amendments.

Alden, 527 U.S. at 713. Just as the State’s immunity

from suit in Coeur d’Alene Tribe was based on the

State’s inherent sovereignty, Indian tribes’ immunity

from suit is derived from their inherent sovereignty.

See Bay Mills, 134 S. Ct. at 2030–31 (citations

omitted). While the doctrines of tribal sovereign

immunity and state sovereign immunity are not

identical, 3 their historical origins and justification are

similar. There is no principled basis to distinguish

between the two immunities with respect to sovereign

interests in land. Whether the sovereign is a state or

an Indian tribe, suits seeking title to, or functional

control over, sovereign land implicate sovereign

interests and are subject to sovereign immunity.

The plaintiffs in Coeur d’Alene Tribe and in this

matter both brought suits directly implicating

sovereign interests and both claimed an exception to

sovereign immunity. In Coeur d’Alene Tribe, the

exception was the Ex parte Young doctrine: a suit

seeking prospective relief from state officials, rather

than the state itself. 521 U.S. at 266. The Court

rejected application of the Ex parte Young exception

3 For example, states mutually surrendered their sovereign

immunity from suits filed by each other at the Constitutional

Convention, but Indian tribes and states made no such mutual

concession. Blatchford v. Native Village of Noatak, 501 U.S. 775,

782 (1991).

because the relief sought against state officials

implicated sovereign interests in the ownership and

control of land. Id. at 281–82, 287–88. Similarly, in

this matter, the Lundgrens seek an exception to the

Upper Skagit Indian Tribe’s sovereign immunity by

bringing an in rem action to quiet title to disputed

property. The Court should reject this exception for

the same reason it did in Coeur d’Alene Tribe: despite

the form of the suit, the substance of the suit

implicates sovereign interests in the ownership and

control of land.

Moreover, Indian tribes have an acute interest in

maintaining ownership and control of their land,

especially in light of the history of such land being

taken from tribes, often with the very purpose of

undermining tribal sovereignty. See, e.g., County of

Yakima, 502 U.S. at 254 (“The objectives of allotment

were simple and clear cut: to extinguish tribal

sovereignty, erase reservation boundaries, and force

the assimilation of Indians into the society at

large.”). 4

4 The Tribe purchased the land at issue with the intention of

taking the land into trust pursuant to 25 C.F.R. §§ 151.10–

.11. See infra at 6, paras. 3–4. As part of this process, the Tribe

must provide the Department of the Interior with title insurance

for the relevant property. In the Tribe’s experience, all title

insurance policies contain an exception for claims such as

adverse possession, to which the Department of the Interior has

not previously objected. If the Tribe prevails here, it expects to

be able to take the land into trust based on this past experience

and on the effect of a favorable ruling for the tribe: i.e., such a

ruling would effectively extinguish the Lundgrens’ adverse

possession claim and clarify that sovereign immunity would bar

other adverse possession claims.

III.

Once a Tribe Invokes Sovereign

Immunity from Suit, Courts May Not

Adjudicate Tribal Rights and Interests

in the Absence of the Tribe.

The Washington Supreme Court recognized that

the Upper Skagit Indian Tribe could not be joined in

the Lundgrens’ quiet title action against its will.

Lundgren, 389 P.3d at 572. But, having concluded

that the court had in rem jurisdiction over the

disputed property, the court then held that the Tribe

was not a necessary party under Washington Civil

Rule 19. Id. at 574–76. The court based this holding

on its finding that the Tribe had no legally protected

interest at stake, a finding it made by analyzing the

merits of the dispute and determining the Lundgrens

had a superior claim to the disputed property via

adverse possession. Id. at 575–76. As the majority

below conceded, this analysis put “the cart before the

horse.” Id. at 575. In fact, there is no horse. The

court lacked the power to proceed.

Before a court can resolve the merits of a dispute,

it must have jurisdiction. Steel Co. v. Citizens for a

Better Env’t, 523 U.S. 83, 94 (1998) (“Without

jurisdiction the court cannot proceed at all in any

cause. Jurisdiction is power to declare the law, and

when it ceases to exist, the only function remaining to

the court is that of announcing the fact and

dismissing the cause.” (citation omitted)). Sovereign

immunity from suit deprives courts of jurisdiction.

See Meyer, 510 U.S. at 475 (“Sovereign immunity is

jurisdictional in nature.”); Alvarado v. Table

Mountain Rancheria, 509 F.3d 1008, 1015–16 (9th

Cir. 2007) (“tribal immunity precludes subject matter

jurisdiction in an action against an Indian tribe”).

Accordingly, once a tribe invokes its sovereign

immunity from suit and deprives the court of

jurisdiction, the suit must be dismissed.

Sovereign immunity from suit would be effectively

eradicated under the Washington Supreme Court’s

reasoning. Immunity could be avoided by simply

dismissing the sovereign from the case or omitting to

join the sovereign while adjudicating the sovereign’s

rights in its absence. Jurisdiction is a prerequisite to

a determination on the merits, not the other way

around.

The Washington Supreme Court is the final

authority on Washington State law, including

Washington Civil Rule 19, but it may not invoke state

rules governing joinder of parties in a way that

defeats sovereign immunity in violation of federal

law:

This Constitution, and the Laws of the United

States which shall be made in Pursuance

thereof; and all Treaties made, or which shall

be made, under the Authority of the United

States, shall be the supreme Law of the Land;

and the Judges in every state shall be bound

thereby, any Thing in the Constitution or

Laws of any State to the Contrary

notwithstanding.

U.S. Const. art. VI, cl. 2.

“[T]ribal immunity ‘is a matter of federal law and

is not subject to diminution by the States.’” Bay Mills,

134 S. Ct. at 2031 (quoting Kiowa, 523 U.S. at 756).

When a sovereign Indian tribe’s legal rights are

directly implicated in an action and the tribe invokes

its immunity from suit, it does not matter whether the

action is in personam or in rem. The action cannot

proceed without the tribe’s consent or clear

congressional abrogation of the tribe’s immunity from

suit.

This Court confronted a similar issue in Republic

of the Philippines v. Pimentel, 553 U.S. 851 (2008).

That case arose from an interpleader action to resolve

disputed ownership of property. Id. at 854–55. The

Republic of the Philippines was named in the suit,

invoked its sovereign immunity, and sought dismissal

of the action. Id. at 855, 859. The District Court

dismissed the foreign sovereign, but permitted the

action to proceed to judgment in its absence. Id. at

860. The Court of Appeals subsequently held that

while the Republic of the Philippines was a required

or necessary party, its claim was so unlikely to prevail

on the merits that the action could proceed in its

absence. Id. This Court reversed, finding that the

lower courts had not given “full effect to sovereign

immunity.” Id. at 865. The Court held:

A case may not proceed when a requiredentity sovereign is not amenable to suit. . . .

[W]here 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.

Id. at 867. The analysis is no different here. The

Lundgrens filed an in rem action to resolve disputed

ownership of property and named the Tribe as a

defendant. The Tribe invoked its sovereign immunity

from suit, sought dismissal of the action, is the record

owner of the disputed land, and disputes the validity

of the Lundgrens’ adverse possession claim on the

merits. To “give full effect to” the Tribe’s “sovereign

immunity” from suit, Pimentel, 553 U.S. at 865, the

Lundgrens’ quiet title action must be dismissed.

IV.

The Lundgrens Had and Continue to

Have a Means to Seek Redress for

Their Claim.

This Court has accepted that tribal sovereign

immunity may leave a litigant without a remedy short

of congressional action. Okla. Tax Comm’n, 498 U.S.

at 514 (plaintiffs “may of course seek appropriate

legislation from Congress”); see Kiowa, 523 U.S. at

755 (“There is a difference between the right to

demand compliance with state laws and the means

available to enforce them.”); cf. Pimentel, 553 U.S. at

872 (“Dismissal . . . 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.”).

But, here, the Lundgrens did have a remedy; they

chose not to exercise it. They claimed below to have

“acquired title by adverse possession decades before”

the Tribe purchased the property in 2013. Brief for

Respondent at 1, Upper Skagit Indian Tribe v.

Lundgren, No. 91622-5 (Wash. Nov. 2, 2015), 2015

WL 10438674, at *1. Indeed, they argued that

between 1947 and 2013, either they or their

predecessors had continually used the property in the

manner required to obtain title by adverse possession.

Id. at *7–18. For fifty-six years, they elected to do

nothing to confirm their title. See Halverson v. City

of Bellevue, 704 P.2d 1232, 1234 (Wash. Ct. App.

1985) (“the merit of an adverse possession claim

cannot be determined . . . prior to adjudication”).

Even now, they have a remedy. Washington law

recognizes a claim for money had and received and a

claim for unjust enrichment, either of which the

Lundgrens could bring against the seller of the

property who, they claim, sold the property without

the right to do so. See Coast Trading Co., Inc. v.

Parmac, Inc., 587 P.2d 1071, 1075 (Wash. Ct. App.

1978) (noting that an action for “money had and

received . . . is looked upon with favor by the courts

and is liberally applied” (citation omitted)); Young v.

Young, 191 P.3d 1258, 1262 (Wash. 2008) (“Unjust

enrichment is the method of recovery for the value of

the benefit retained absent any contractual

relationship because notions of fairness and justice

require it.” (citation omitted)). The Washington State

legislature also could address the Lundgrens’

situation by creating a specific cause of action for

money damages against those who, without valid

title, purport to dispose of property.

Finally, the Lundgrens “may of course seek

appropriate legislation from Congress.” Okla. Tax

Comm’n, 498 U.S. at 514. This Court has repeatedly

acknowledged that it would be improper for the

federal courts to judicially abrogate tribal sovereign

immunity. See Bay Mills, 134 S. Ct. at 2037 (“[I]t is

fundamentally Congress’s job, not ours, to determine

whether or how to limit tribal immunity. The special

brand of sovereignty the tribes retain—both its

nature and its extent—rests in the hands of

Congress.” (citations omitted)); Kiowa, 523 U.S. at

759–60 (“Congress is in a position to weigh and

accommodate the competing policy concerns and

reliance interests. . . . [W]e decline to revisit our case

law and choose to defer to Congress.”); Okla. Tax

Comm’n, 498 U.S. at 510 (“Congress has always been

at liberty to dispense with . . . tribal immunity or to

limit it . . . [and] has consistently reiterated its

approval of the immunity doctrine . . . . [W]e are not

disposed to modify the long-established principle of

tribal sovereign immunity.”).

Congress has been active and diligent in carrying

out its powers and responsibilities in this area. It has

repeatedly considered and enacted various limits on

tribal sovereignty:

Congress has now reflected on Kiowa and

made an initial (though of course not

irrevocable) decision to retain that form of

tribal immunity. Following Kiowa, Congress

considered several bills to substantially

modify tribal immunity in the commercial

context. Two in particular—drafted by the

chair

the

Senate

Appropriations

Subcommittee on the Interior—expressly

referred to Kiowa and broadly abrogated

tribal immunity for most torts and breaches

of contract. But instead of adopting those

reversals of Kiowa, Congress chose to enact a

far more modest alternative requiring tribes

either to disclose or to waive their immunity

in contracts needing the Secretary of the

Interior’s approval. Since then, Congress has

continued to exercise its plenary authority

over tribal immunity, specifically preserving

immunity in some contexts and abrogating it

in others.

Bay Mills, 134 S. Ct. at 2038 (citations omitted).

The Lundgrens asserted a claim for relief to which

they are not entitled, but they had and have other

means of redress: they could have sought to quiet title

in the decades prior to the Tribe’s purchase or sued

the seller for money damages after the Tribe’s

purchase. If that outcome is unwise or unjust,

Congress has the power and institutional resources

“to weigh and accommodate the competing policy

concerns” and craft a legislative response. Kiowa, 523

U.S. at 759. The Lundgrens are not without recourse.

CONCLUSION

The judgment of the Washington Supreme Court

should be reversed.

Respectfully submitted,