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

Supreme Court briefMar 12, 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

____________________________________________

REPLY 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

TABLE OF CONTENTS

Page(s)

TABLE OF AUTHORITIES...................................... iii

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

ARGUMENT .............................................................. 3

The Court Should Decline to Consider the

Lundgrens’ New Argument for an Immovable

Property Exception. ........................................... 3

II.

The Court Should Continue to Defer to

Congress to Define the Extent and Limits of

Tribal Sovereign Immunity. .............................. 5

The Political Branches, Not the Courts,

Have Determined Whether to Except

Immovable Property from Foreign

Sovereign Immunity. ................................. 5

Any Narrowing of Tribal Sovereign

Immunity Should Come from Congress. . 10

III. An Immovable Property Exception to Tribal

Sovereign Immunity Would Be Inconsistent

with this Court’s Settled Precedents and the

Unique Nature of Tribes as Domestic

Dependent Nations. ......................................... 13

This Court’s Precedents Foreclose an

Immovable Property Exception to Tribal

Sovereign Immunity. ............................... 13

The Lundgrens’ Analogies to States and

Foreign Nations Ignore Basic Differences

Bearing on the “Special Brand of

Sovereignty the Tribes Retain.” .............. 16

IV. Having Sought to Adjudicate the Tribe’s

Interest in the Property, the Lundgrens’ Suit

Should Have Been Dismissed for Lack of

Jurisdiction....................................................... 24

CONCLUSION ......................................................... 26

TABLE OF AUTHORITIES

Page(s)

Cases

Asociacion de Reclamantes v. United

Mexican States,

735 F.2d 1517 (D.C. Cir. 1984) ......................... 22

Block v. North Dakota ex rel. Bd. of Univ. & Sch.

Lands,

461 U.S. 273 (1983) ........................................... 23

C & L Enters., Inc. v. Citizen Band Potawatomi

Indian Tribe,

532 U.S. 411 (2001) ............................... 14, 15, 19

Cherokee Nation v. Georgia,

30 U.S. (5 Pet.) 1 (1831) .............................. 19–21

City of Sherrill v. Oneida Indian Nation of

New York,

544 U.S. 197 (2005) ..................................... 14, 15

County of Yakima v. Confederated Tribes &

Bands of the Yakima Indian Nation,

502 U.S. 251 (1992) ......................................... 3, 4

Empire Oil Co. v. Lynch,

126 S.E.2d 478 (Ga. Ct. App. 1962).................. 24

Ex Parte Republic of Peru,

318 U.S. 578 (1943) ............................................. 6

iii

FDIC v. Meyer,

510 U.S. 471 (1994) ........................................... 25

Georgia v. City of Chattanooga,

264 U.S. 472 (1924) ..................................... 17, 18

Heckman v. United States,

224 U.S. 413 (1912) ........................................... 21

In re B & L Oil Co.,

46 B.R. 731 (Bankr. D. Colo. 1985) .................. 24

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

523 U.S. 751 (1998) ............ 6, 7, 13–15, 17–19, 23

Knocklong Corp. v. Kingdom of Afghanistan,

167 N.Y.S.2d 285 (Nassau Cty. Ct. 1957) .......... 8

Lewis v. Clarke,

137 S. Ct. 1285 (2017)............................. 5, 22, 25

Michigan v. Bay Mills Indian Community,

134 S. Ct. 2024 (2014)...............2, 5, 8, 10, 11, 13,

15, 16, 18, 19, 23, 25

Nevada v. Hall,

440 U.S. 410 (1979) ........................................... 17

Nev. Comm’n on Ethics v. Carrigan,

564 U.S. 117 (2011) ............................................. 3

OBB Personenverkehr AG v. Sachs,

136 S. Ct. 390 (2015)........................................... 5

Okla. Tax Comm’n v. Citizen Band Potawatomi

Indian Tribe of Oklahoma,

498 U.S. 505 (1991) ........................................... 23

Payne v. Tennessee,

501 U.S. 808 (1991) .......................................... 16

Puyallup Tribe, Inc. v. Dep’t of Game,

433 U.S. 165 (1977) ..........................14, 15, 18, 19

Republic of the Philippines v. Pimentel,

553 U.S. 851 (2008) ........................................... 25

Santa Clara Pueblo v. Martinez,

436 U.S. 49 (1978) ............................................. 24

Somerlott v. Cherokee Nation Distribs., Inc.,

686 F.3d 1144 (10th Cir. 2012)......................... 21

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

423 F.3d 790 (8th Cir. 2005)............................. 11

State Oil Co. v. Khan,

522 U.S. 3 (1997) ............................................... 16

Taylor v. Freeland & Kronz,

503 U.S. 638 (1992) ............................................. 3

The Schooner Exchange v. McFaddon,

11 U.S. (7 Cranch) 116 (1812) ........................ 8, 9

The Siren,

74 U.S. (7 Wall.) 152 (1868).............................. 22

Three Affiliated Tribes of the Fort Berthold

Reservation v. Wold Eng’g,

476 U.S. 877 (1986) ........................................... 22

United States v. Jicarilla Apache Nation,

564 U.S. 162 (2011) ....................................... 2, 21

United States v. Lee,

106 U.S. 196 (1882) ............................................. 6

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

309 U.S. 506 (1940) ........................................... 21

Verlinden B.V. v. Central Bank of Nigeria,

461 U.S. 480 (1983) ................................... 6–8, 19

Va. Office for Prot. & Advocacy v. Stewart,

563 U.S. 247 (2011) ........................................... 11

Washington v. Confederated Tribes of the

Colville Indian Reservation,

447 U.S. 134 (1980) ........................................... 22

Constitutional Provisions

U.S. Const. art. I, § 8, cl. 3 ..................................... 23

U.S. Const. art. VI, cl. 2 ......................................... 23

Statutes

25 U.S.C. § 5108 ............................................... 11, 12

28 U.S.C. § 1604 ....................................................... 7

28 U.S.C. § 1605 ................................................. 7, 19

28 U.S.C. § 2409a ............................................. 12, 21

Rules and Regulations

25 C.F.R. 151.13 ..................................................... 11

Sup. Ct. R. 14.1 ........................................................ 3

Sup. Ct. R. 15.2 ........................................................ 3

Other Authorities

H. Lauterpacht, The Problem of Jurisdictional

Immunities of Foreign States,

28 Brit. Y.B. Int’l L. 220 (1951) .......................... 9

Cornelius van Bynkershoek, De Foro Legatorum

Liber Singularis (Gordon J. Laing

trans. 1946) (1744) .............................................. 9

Fredric A. Weber, The Foreign Sovereign Immunities

Act of 1976: Its Origin, Meaning and Effect, 3

Yale J. Int’l L. 1 (1976) ....................................... 8

vii

INTRODUCTION

The question raised by the Lundgrens below,

answered by the Washington Supreme Court, and

accepted for review by this Court is whether “a court’s

exercise of in rem jurisdiction overcome[s] the

jurisdictional bar of tribal sovereign immunity when

the tribe has not waived immunity and Congress has

not unequivocally abrogated it.” Pet. i. Apparently

recognizing that the answer to this question is no, the

Lundgrens have now abandoned that argument,

urging the Court instead to recognize a new

“immovable property” exception that would erase

tribal sovereign immunity for actions challenging

tribal ownership of property held in fee within a

state’s territory.

This new argument was not raised below or in

opposition to the petition for writ of certiorari and is

waived. But advancing this argument underscores

the fallacy of the one abandoned: the Lundgrens had

claimed that sovereign immunity did not apply to

their in rem quiet title action because the action was

against property, not against the sovereign. In fact,

the Lundgrens’ action directly attacked a sovereign’s

interest in property—its recorded title. Recognizing

that fatal flaw, the new argument concedes that

immunity normally bars lawsuits attacking a

sovereign’s interest in property.

Given that the Lundgrens admit that their

“immovable property” exception does not apply to the

federal government and has never been applied to

tribes, the Court has already answered the argument

the Lundgrens raise: “it is fundamentally Congress’s

job, not ours, to determine whether or how to limit

tribal immunity.” Michigan v. Bay Mills Indian

Community, 134 S. Ct. 2024, 2037 (2014).

The Lundgrens’ analogy to foreign nations and to

states shows the opposite of the proposition they

advance. Foreign nations’ narrower immunity from

suit reflects choices made by the political branches—

Congress and the Executive.

States’ narrower

immunity reflects mutual waiver and the nature of

federalism.

This Court has repeatedly recognized that Indian

tribes are “domestic dependent nations” of the federal

government subject to the plenary power of Congress,

in the federal government’s guardianship and

“tutelage.” United States v. Jicarilla Apache Nation,

564 U.S. 162, 177 (2011) (citations omitted). The

Lundgrens cite no case, and the Tribe is not aware of

one, where this Court has held that tribes lack

immunity from suit in circumstances where the

federal government, in a tribe’s position and absent

waiver, would be immune.

The Court should reject the Lundgrens’ invitation

to sidestep the political branches and narrow

sovereign immunity by judicial action where

Congress has not acted and the Executive agrees that

tribal sovereign immunity applies.

ARGUMENT

The Court Should Decline to Consider

the Lundgrens’ New Argument for an

Immovable Property Exception.

The Lundgrens advance an immovable property

exception to tribal sovereign immunity for the first

time in their merits brief. The question of the

applicability of that exception to tribes has never been

raised in this litigation: it was not argued to, or ruled

on by, the Washington courts; nor was it identified in

the petition for writ of certiorari, opposition, or reply.

The Court should decline to consider this new

argument. Under Rule 14.1(a), “[o]nly the questions

set out in the petition, or fairly included therein, will

be considered by the Court.” Id.; see also Taylor v.

Freeland & Kronz, 503 U.S. 638, 645–46 (1992)

(“[o]rdinarily, this Court does not decide questions

not raised or resolved in the lower court[s]”

(alterations in original) (citation omitted)). Under

Rule 15.2, any objection to the question presented is

“waived unless called to the Court’s attention in the

brief in opposition.” Id. Accordingly, arguments not

“decided below” and “omitted” from the opposition to

the petition for the writ of certiorari “are normally

considered waived.” Nev. Comm’n on Ethics v.

Carrigan, 564 U.S. 117, 128–29 (2011).

The

Lundgrens have consistently argued that County of

Yakima v. Confederated Tribes & Bands of the

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

the in rem nature of their action dispositive,

rendering sovereign immunity irrelevant.

The

Washington courts decided the case on that basis,

Joint Appendix (JA) 71–72, 105–108, and the

Lundgrens’ opposition to the petition for writ of

certiorari defended the decision below based on in rem

jurisdiction and Yakima, raising no argument that

the fact that the property was “immovable” warranted

its own exception.

This new argument falls outside the scope of the

question presented because the two are not logically

congruent: the new argument is both broader and

narrower than their discarded argument. It is

broader because actions regarding immovable

property need not be in rem proceedings. E.g., Resp.

12 (“A sovereign may not assert immunity to bar an

action in the courts of another sovereign involving

interests in land that it owns within the forum

sovereign’s territory.”). It is narrower because it

applies only to immovable property, not to all actions

that are in rem. Nor is addressing the Lundgrens’

“immovable property” exception necessary to the

“intelligent resolution of the question presented.”

Resp. 22 (citation omitted). The Court can answer

whether in rem jurisdiction and Yakima render tribal

sovereign immunity inapplicable, leaving for another

case arguments that a separate “immovable property”

exception would allow suit.

The new argument also raises complex new

questions about the purpose, history, and limits of

tribal, state, and foreign sovereignty, foreign affairs,

and the common law dating to the 18th century,

questions that the Tribe has been forced, because of

its untimely assertion, to answer within the time and

page limit constraints of its reply. Neither the parties

nor the Court are well served by the addition of a new

issue that has not been fully and fairly litigated.

The Court has previously refused to consider

arguments outside the scope of the question

presented. See, e.g., OBB Personenverkehr AG v.

Sachs, 136 S. Ct. 390, 397–98 (2015) (refusing to

evaluate sovereign immunity on a new basis, holding,

“[t]hat argument was never presented to any lower

court and is therefore forfeited”); see also Lewis v.

Clarke, 137 S. Ct. 1285, 1292 n.2 (2017). The

Lundgrens waived their new argument by failing to

raise it earlier and the Court should not consider it

now.

II.

The Court Should Continue to Defer

to Congress to Define the Extent and

Limits of Tribal Sovereign Immunity.

On the merits, the Lundgrens’ request for a

common-law narrowing of immunity is ill-founded.

“[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.” Bay Mills, 134 S. Ct. at 2037.

A. The Political Branches, Not the Courts,

Have Determined Whether to Except

Immovable

Property

from

Foreign

Sovereign Immunity.

This Court has previously noted that, “[i]n

considering Congress’ role in reforming tribal

immunity, we find instructive the problems of

sovereign immunity for foreign countries.” Kiowa

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

759 (1998). Foreign nations’ immunity has narrowed

over time not by actions of the Judiciary, but instead

because Congress and the Executive narrowed the

broad rule of immunity that this Court had previously

recognized, and courts deferred to that choice:

[F]oreign sovereign immunity is a

matter of grace and comity on the part of

the United States, and not a restriction

imposed

the

Constitution.

Accordingly, this Court consistently has

deferred to the decisions of the political

branches—in particular, those of the

Executive Branch—on whether to take

jurisdiction over actions against foreign

sovereigns and their instrumentalities.

Verlinden B.V. v. Central Bank of Nigeria, 461 U.S.

480, 486 (1983); see also Ex Parte Republic of Peru,

318 U.S. 578, 588 (1943) (“In such cases the judicial

department of this government follows the action of

the political branch, and will not embarrass the latter

by assuming an antagonistic jurisdiction.” (quoting

United States v. Lee, 106 U.S. 196, 209 (1882))).

The development of the immovable property

exception reflects this deference. Prior to passage of

the Foreign Sovereign Immunities Act (FSIA) in 1976,

courts looked to the State Department to determine

whether immunity should be granted. Verlinden

B.V., 461 U.S. at 486–88. “Until 1952, the State

Department ordinarily requested immunity in all

actions against friendly foreign sovereigns.” Id. at

486.

After the State Department adopted the

restrictive theory of foreign sovereign immunity in

1952, “its application proved troublesome.” Id. at 487.

In enacting the FSIA, Congress substituted its

political judgment for the State Department’s. The

FSIA established a default rule of foreign sovereign

immunity subject to enumerated exceptions,

including an exception for suits “in which . . . rights

in immovable property situated in the United States

are in issue.” 28 U.S.C. §§ 1604, 1605(a)(4).

The Court has grounded its deference to the

political branches on their unique institutional

advantages, deference which applies to both foreign

and tribal immunity:

In both fields, Congress is in a position

to weigh and accommodate the

competing policy concerns and reliance

interests.

The capacity of the

Legislative Branch to address the issue

by comprehensive legislation counsels

some caution by us in this area.

Kiowa, 523 U.S. at 759. That is, the Court recognized

the default rule of tribal sovereign immunity and

deferred to Congress to determine what exceptions, if

any, should apply. Just as it was the domain of the

political branches to develop and refine exceptions to

foreign

sovereign

immunity

(first

recommendations by the State Department, later by

congressional action), so too should Congress take the

lead in any consideration of the wisdom and

practicalities of an immovable property exception to

tribes’ sovereign immunity. See Bay Mills, 134 S. Ct.

at 2039 (“[A] fundamental commitment of Indian law

is judicial respect for Congress’s primary role in

defining the contours of tribal sovereignty.”).

The Lundgrens incorrectly contend that a

common-law immovable property exception to foreign

sovereign immunity was uniformly recognized since

the 18th century. Resp. 13–15. But, as just described,

decisions about the application and scope of foreign

nation immunity were deemed political questions

entrusted to the State Department, not judicial

questions answered by the common law. Verlinden

B.V., 461 U.S. at 486–87; Knocklong Corp. v. Kingdom

of Afghanistan, 167 N.Y.S.2d 285, 286–87 (Nassau

Cty. Ct. 1957) (recognizing sovereign immunity in an

action challenging title, after receiving a suggestion

of immunity from the State Department). The Tribe

has found no pre-FSIA decision by a United States

court denying immunity to a foreign sovereign based

on a common law immovable property exception. See

Fredric A. Weber, The Foreign Sovereign Immunities

Act of 1976: Its Origin, Meaning and Effect, 3 Yale J.

Int’l L. 1, 33 (1976) (stating that, prior to the FSIA,

“[n]o State Department or judicial denial of immunity

appears to have been expressly based on” the

immovable property exception to foreign sovereign

immunity).

Nor does it appear that the Lundgrens have found

such a case, citing only The Schooner Exchange v.

McFaddon, 11 U.S. (7 Cranch) 116 (1812). See Resp.

Brief 13–15. The Court referenced in passing the

possibility of an exception to immunity stating, “[a]

prince, by acquiring private property in a foreign

country, may possibly be considered as subjecting

that property to the territorial jurisdiction.” The

Schooner Exchange, 11 U.S. at 145. But the Court

stressed it was not “indicating any opinion on this

question,” id., nor does the opinion indicate whether

the resolution of the question would lie with the

political branches or the courts.

Even outside the United States, the immovable

property exception appears not to have been

uniformly established at common law. Compare

Resp. 13–15 with H. Lauterpacht, The Problem of

Jurisdictional Immunities of Foreign States, 28 Brit.

Y.B. Int’l L. 220, 244 (1951) (whether there is no

immunity with respect to actions relating to

immovable property “is not altogether free of doubt—

it is significant that there is no English decision

directly supporting this exception from the principle

of immunity”), and Cornelius van Bynkershoek, De

Foro Legatorum Liber Singularis 22 (Gordon J. Laing

trans. 1946) (1744) (“In regard to the property of

foreign princes there is, however, no unanimity.”).

The Lundgrens ask the Court to draw a lesson

from the immunity of foreign nations. But the only

clear lesson is that the Court established a baseline of

immunity from suit, deferring to the political

branches to narrow the immunity as necessary.

Applying that lesson here merely reaffirms what the

Court held in Bay Mills: “[I]t is fundamentally

Congress’s job, not ours, to determine whether or how

to limit tribal immunity.” 134 S. Ct. at 2037.

B. Any Narrowing of Tribal Sovereign

Immunity Should Come from Congress.

An “immovable property” exception to tribal

sovereign immunity would substantially undermine

tribal sovereignty. The Tribe does not ask the Court

to weigh these harms against those the Lundgrens

claim. Rather, the Tribe identifies some of the harms

to illustrate the wisdom of deferring these

considerations to Congress.

The Lundgrens sued the Tribe, stating in their

complaint that the Tribe “is the record title holder” of

the property. JA 12. They sued for the express

purpose of “reforming” the “legal descriptions of . . .

[the Tribe’s] propert[y]” and “terminating” the Tribe’s

claim to it. JA 15; see also Clerk’s Papers (CP) 17

(county record identifying Upper Skagit Indian Tribe

as “owner” of parcel). The Tribe, like any sovereign

whose ownership of property is claimed by another,

was forced to choose among invoking sovereign

immunity against an action attacking its interest in

property (in this case recorded title), waiving

immunity and thus bearing the costs of defending

against this claim on the merits, forfeiting its right to

the property, or paying a settlement. Without

sovereign immunity, each option diminishes tribal

treasuries and limits the resources tribes can spend

to provide services and benefits to its members. And

successful claims asserting ownership of tribal land

will erode tribal territory and reduce the cultural,

governmental, and economic resources those lands

provided. Sovereign immunity is designed to avoid

these harms. Va. Office for Prot. & Advocacy v.

Stewart, 563 U.S. 247, 258 (2011) (“sovereign

immunity protects” against the “specific indignity” of

the sovereign’s “being haled into court without its

consent” which “occurs . . . when (for example) the

object of the suit . . . is to . . . acquire [the sovereign’s]

lands”). Pursuant to Bay Mills, the question of when

these harms should be borne by the tribes is for

Congress. 134 S. Ct. at 2030, 2037–38.

Among the important considerations in that

legislative examination would be whether to allow

litigants to interfere with the trust-acquisition

process established by Congress and the Executive to

assist tribes in rebuilding their land holdings. See 25

U.S.C. § 5108. Actions claiming an interest in Indian

lands will slow or halt trust-acquisitions by imposing

“liens, encumbrances or infirmities.” See 25 C.F.R.

151.13(b). Such actions could reverse the progress

Indian tribes have made to rebuild tribal territory

and self-sufficiency pursuant to the Indian

Reorganization Act. See South Dakota v. U.S. Dep’t

of the Interior, 423 F.3d 790, 798 (8th Cir. 2005)

(“Congress believed that additional land was

essential for the economic advancement and selfsupport of the Indian communities.”). Accordingly,

the proposed exception poses a substantial risk of

interfering with current law.

Additionally, Congress could weigh the important

differences between Indian tribes and other

sovereigns. For example, when a state purchases

land in another state, or a foreign nation purchases

land in another nation, the land normally comprises

a small fraction of the sovereign’s land holdings. The

exercise of local jurisdiction over the land to

adjudicate interests and ownership does not

meaningfully impact or diminish the sovereignty and

holdings of the state and foreign sovereign. But all

land that tribes acquire in fee within the United

States will exist within the territory of one or more

states. Especially for landless tribes (as the Upper

Skagit was, see Pet. 6–7), property held in fee may

comprise a significant portion of land holdings as

tribes acquire property as part of the fee-to-trust

acquisition process advanced by the Indian

Reorganization Act, 25 U.S.C. § 5108.

Whether there is any merit to the Lundgrens’

proposed exception is a matter of balancing the tribes’

unique sovereign interests within the existing

statutory and policy framework. This balancing is a

legislative determination best made by Congress.

The Quiet Title Act is instructive. When Congress

waived the federal government’s immunity, it limited

that waiver in many ways—for example, by requiring

that quiet-title actions be brought in federal court and

providing the United States the option to pay

compensation in lieu of surrendering ownership. 28

U.S.C. § 2409a(a)–(b); see Br. of United States as

Amicus Curiae (U.S. Br.) 31. The Court should “defer

to the role Congress may wish to exercise in this

important judgment.” Bay Mills, 134 S. Ct. at 2037

(citation omitted).

III.

An Immovable Property Exception to

Tribal Sovereign Immunity Would Be

Inconsistent with this Court’s Settled

Precedents and the Unique Nature of

Tribes as Domestic Dependent

Nations.

The Lundgrens’ proposed exception is inconsistent

with the legal and factual underpinnings of tribal

sovereign immunity. The basic differences among

tribes, states, and foreign nations warrant rejection of

the proposed exception.

A. This Court’s Precedents Foreclose an

Immovable Property Exception to Tribal

Sovereign Immunity.

The Court has “time and again treated the

‘doctrine of tribal immunity [as] settled law’ and

dismissed any suit against a tribe absent

congressional authorization (or a waiver).” Bay Mills,

134 S. Ct. at 2030–31 (alteration in original) (quoting

Kiowa, 523 U.S. at 756). And the Court has never

imposed an exception to tribal sovereign immunity for

disputes involving immovable property within a

state’s territory. Instead, the Court has repeatedly

held that tribal sovereign immunity extends beyond

the borders of reservation land and applies to

disputes that arise on land fully subject to a state’s

jurisdiction. See, e.g., id. at 2034 (“[A] State lacks the

ability to sue a tribe for illegal gaming when that

activity occurs off the reservation.”); C & L Enters.,

Inc. v. Citizen Band Potawatomi Indian Tribe, 532

U.S. 411, 414 (2001) (recognizing tribes are not

subject to suit for off-reservation commercial conduct

absent congressional abrogation or waiver); Kiowa,

523 U.S. at 754 (recognizing “our cases have

sustained tribal immunity from suit without drawing

a distinction based on where the tribal activities

occurred” and declining to limit immunity to onreservation activities); Puyallup Tribe, Inc. v. Dep’t of

Game, 433 U.S. 165, 167–68, 172–73 (1977) (affirming

tribal immunity for claims arising from offreservation fishing).

The Lundgrens suggest that City of Sherrill v.

Oneida Indian Nation of New York, 544 U.S. 197

(2005), bars immunity here because the Tribe—

having acquired this land on the open market—has

no “sovereign interests” at stake. Resp. 11–12, 32.

This argument misses the essential holding of City of

Sherrill, confusing the distinct issues of sovereign

authority over land and sovereign immunity from

suit. The Court in City of Sherrill rejected the Oneida

Indian Nation’s attempt to assert “sovereign

authority to remove the land from local taxation.” Id.

at 215 n.9, 221. Sovereign authority (and the

consequent immunity from local taxation) is entirely

distinct from sovereign immunity from suit; only the

former was at issue in City of Sherrill. Id. at 214. The

Court has never limited tribes’ sovereign immunity

from suit to sovereign interests or sovereign land—as

is clear from the cases applying immunity to offreservation, commercial activities. 1

Bay Mills, C & L Enterprises, Kiowa, and Puyallup

established that, when an Indian tribe acts outside

reservation or trust land and within the territory of a

state, it retains the full protection of sovereign

immunity from suit unless Congress limits that

immunity. Nothing changes that equation here.

When the Tribe purchased land in fee adjacent to its

trust and reservation lands, it retained its sovereign

immunity from suit. The Lundgrens brought this

action, choosing to name the Tribe as a defendant

because the Tribe was the “record title holder” of the

property, and for the very purpose of “reforming the .

. . legal description[] of . . . Defendant’s propert[y].”

JA 12, 15; see CP 17 (property record). The Lundgrens

decided that they needed to attack the Tribe’s interest

and secure recorded title in their name. Absent

Congressional abrogation, the Tribe may invoke

immunity to bar this action.

The Lundgrens seek to create an exception to the

established principle that tribes retain their

immunity from suit when acting outside reservation

and trust lands. “But this Court does not overturn its

precedents lightly. Stare decisis . . . ‘is the preferred

course because it promotes the evenhanded,

predictable, and consistent development of legal

principles, fosters reliance on judicial decisions, and

1 If City of Sherrill had any application to these proceedings,

it would be in the Court’s application of laches to long-dormant

claims such as the Lundgrens’ claim here.

contributes to the actual and perceived integrity of

the judicial process.”’ Bay Mills, 134 S. Ct. at 2036

(quoting Payne v. Tennessee, 501 U.S. 808, 827

(1991)). Carving out a new exception here would be

particularly problematic because “stare decisis

concerns are at their acme in cases involving property

and contract rights.” State Oil Co. v. Khan, 522 U.S.

3, 20 (1997). In reliance on this settled law, the Upper

Skagit and other tribes have acquired land in fee

outside the borders of their reservations and use that

land to provide services and benefits for their

members.

Creating a new exception to tribal

sovereign immunity for immovable property would

undermine considerable investment and development

undertaken by Indian tribes and have sweeping

effects on tribal lands, resources, and governance

across the country. Such a change cannot be justified

absent an exceptionally compelling “special

justification.” Bay Mills, 134 S. Ct. at 2036 (citation

omitted). The Lundgrens offer no such justification.

B. The Lundgrens’ Analogies to States and

Foreign Nations Ignore Basic Differences

Bearing on the “Special Brand of

Sovereignty the Tribes Retain.”

The Lundgrens’ reliance on the “immovable

property” exception ignores the basic differences

among Indian tribes, states, and foreign nations

which the Court has repeatedly recognized as

creating a “special brand of sovereignty the tribes

retain—both its nature and its extent.” Bay Mills,

134 S. Ct. at 2037.

As to states, this Court explained in Kiowa that

“the immunity possessed by Indian tribes is not

coextensive with that of the States,” and, in some

ways, the immunity enjoyed by tribes is broader. 523

U.S. at 756. Contra Resp. 27 (arguing that the

immunity “should be narrower” than “that of other

sovereigns”). In particular, the states surrendered

their immunity from suits by sister states at the

Constitutional Convention. 523 U.S. at 756. Indian

tribes did not participate in the Convention and made

no such concession. Id. Additionally, while “tribal

immunity is a matter of federal law and is not subject

to diminution by the States,” id., “one State’s

immunity from suit in the courts of another State is

. . . a matter of comity,” Nevada v. Hall, 440 U.S. 410,

425 (1979).

This distinction explains why Georgia v. City of

Chattanooga, 264 U.S. 472 (1924), is of no help to the

Lundgrens. In City of Chattanooga, the Court held

that the State of Georgia could not invoke its

sovereign immunity from suit to bar the City’s

condemnation action regarding Georgia-owned land

within Tennessee. Id. at 482. The Lundgrens contend

that the fact that City of Chattanooga predated Hall

suggests it rested on—but did not identify—an

immovable property exception. Resp. 24–25. But City

of Chattanooga rested on the same notion of “consent”

by “a sister state,” 264 U.S. at 479–80, as Hall.

Indeed, the Court in Hall identified City of

Chattanooga as an example of the principle it

announced, that a state may make its own policy

judgments about recognizing the immunity of other

states in its courts. 440 U.S. at 426 n.29. And the

Lundgrens’ claim that an (unidentified) “immovable

property” exception underlay City of Chattanooga is

belied by the Court’s cabining of its holding in City of

Chattanooga to “[t]he power of eminent domain,”

stressing, “we need not decide the broad question

whether Georgia has consented generally to be sued

in the courts of Tennessee in respect of all matters

arising out of the ownership and operation of its . . .

property in that state.” 264 U.S. at 480, 482.

If anything, City of Chattanooga underscores how

states differ from tribes. The case relied not on an

“immovable property” exception but on Georgia’s

“[h]aving acquired land in another state for the

purpose of using it in a private capacity”—that is,

Georgia’s commercial activity. Id. at 479; see also id.

at 481 (“[Georgia’s] enterprise in Tennessee is a

private undertaking. It occupies the same position

there as does a private corporation . . . .”). But this

Court has repeatedly reaffirmed that there is no

commercial activity exception to tribal sovereign

immunity. See, e.g., Bay Mills, 134 S. Ct. at 2031,

2036–37; Kiowa, 523 U.S. at 760; Puyallup, 433 U.S.

at 167–68.

No less fundamental are the differences between

tribes and foreign nations. As already explained,

exceptions to foreign sovereign immunity are a

matter of deference to the political branches. See also

U.S. Br. at 29–31. And the political branches have

limited that immunity in ways they have not yet seen

fit to do with tribes’ immunity.

For example,

pursuant to the “restrictive” theory of foreign

sovereign immunity adopted by the State Department

in 1952 and Congress in 1976, foreign sovereigns are

generally immune from suit in United States courts,

but not immune from suits relating to commercial

activity in the United States. Verlinden B.V., 461

U.S. at 486–88; 28 U.S.C. § 1605(a)(2). In contrast,

Indian tribes are immune from suits relating to

commercial activity, even when that activity takes

place off reservation lands. Bay Mills, 134 S. Ct. at

2031, 2036–37; C & L Enters., Inc., 532 U.S. at 414;

Kiowa, 523 U.S. at 760; Puyallup, 433 U.S. at 167–68.

The Court has recognized these differences,

holding that tribes are “domestic dependent nations,”

retaining a “special brand of sovereignty” that “rests

in the hands of Congress.” Bay Mills, 134 S. Ct. at

2030, 2037; see also id. at 2040 (Sotomayor, J.,

concurring) (“Indian Tribes have never historically

been classified as ‘foreign’ governments in federal

courts even when they asked to be.”). The Court

recognized these differences early in this nation’s

history. Chief Justice Marshall, writing for the Court

in Cherokee Nation v. Georgia, stated:

[T]he relation of the Indians to the

United States is marked by peculiar and

cardinal distinctions which exist no

where else.

The Indian territory is admitted to

compose a part of the United States. . . .

. . . [I]t may well be doubted whether

those tribes which reside within the

acknowledged boundaries of the United

States can, with strict accuracy, be

denominated foreign nations. They may,

more correctly, perhaps, be denominated

domestic dependent nations. . . .

...

. . . But we think that in construing

them, considerable aid is furnished by

that clause in the eighth section of the

third article; which empowers congress

to “regulate commerce with foreign

nations, and among the several states,

and with the Indian tribes.”

In this clause they are as clearly

contradistinguished

name

appropriate to themselves, from foreign

nations, as from the several states

composing the union.

They are

designated by a distinct appellation; and

as this appellation can be applied to

neither of the others, neither can the

appellation distinguishing either of the

others be in fair construction applied to

them.

30 U.S. (5 Pet.) 1, 16–18 (1831).

In light of tribes’ distinct status, the Court should

not undertake to limit tribal sovereign immunity by

analogy to states and foreign nations. This Court has

long viewed tribes’ immunity as linked to the federal

government’s, explaining that the same “public policy

. . . exempted the dependent as well as the dominant

sovereignties from suit without consent.” United

States v. U.S. Fid. & Guar. Co., 309 U.S. 506, 512,

(1940); see id. (“It is as though the immunity which

was [tribes’] as sovereigns passed to the United States

for their benefit . . . .”). That is consistent with the

Court’s recognition that Indian tribes are “domestic

dependent nations” of the federal government “under

the ‘tutelage’ of the United States.” Jicarilla Apache

Nation, 564 U.S. at 177 (quoting Cherokee Nation, 30

U.S. at 17 and Heckman v. United States, 224 U.S.

413, 444 (1912)); see also Somerlott v. Cherokee Nation

Distribs., Inc., 686 F.3d 1144, 1150 (10th Cir. 2012)

(“[T]ribal sovereign immunity is deemed to be

coextensive with the sovereign immunity of the

United States.” (citation omitted)). In this case, were

the federal government the purchaser of the land at

issue, there is no dispute that it would remain

immune from suit absent waiver. Resp. 18. 2 It is for

this reason that the Lundgrens’ proposed rule—that

tribes are subject to suit for property held in fee but

not in trust—is not only a flawed legislative

judgment, 3 it misconceives the nature and scope of

the tribes’ immunity from suit.

The Lundgrens cite no case—and the Tribe has

found none—in which this Court has deemed tribal

immunity from suit to be narrower than the United

States’ immunity. Of the examples the Lundgrens’

2 Congress declined to waive immunity as to suits based on

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

3 As described in Section II(B), supra, before land can be

taken into trust, it must be acquired in fee. Litigants who oppose

efforts to take tribal land into trust could readily sabotage the

trust-acquisition process if land acquired in fee is subject to suit.

cite of limitations on tribal immunity, Resp. 25–26,

only Lewis, 137 S. Ct. at 1290 (holding that suit could

be maintained against individual), and Three

Affiliated Tribes of the Fort Berthold Reservation v.

Wold Eng’g, 476 U.S. 877, 891 (1986) (commenting

that counterclaim alleging setoff would not violate

immunity), involved immunity from suit.

The

limitations identified in each case have analogs in

suits against the United States. See Lewis, 137 S. Ct.

at 1290 (“Our cases establish that, in the context of

lawsuits against state and federal employees or

entities, courts should look to whether the sovereign

is the real party in interest to determine whether

sovereign immunity bars the suit.”); The Siren, 74

U.S. (7 Wall.) 152, 154 (1868) (“when the United

States institute a suit, they waive their exemption so

far as to allow a presentation by the defendant of setoffs”). The Lundgrens’ other example, Washington v.

Confederated Tribes of the Colville Indian

Reservation, 447 U.S. 134 (1980) (holding that the

state could seize contraband), again evidences the

Lundgrens’ conflation of sovereign authority with

sovereign immunity from suit.

The concessions of federalism answer why the

harms to state sovereignty the Lundgrens allege,

Resp. 13–14, are legislative, rather than judicial,

concerns.

By ratifying the Constitution, states

relinquished their “primeval interest in resolving all

disputes over use or right to use real property,” Resp.

14 (quoting Asociacion de Reclamantes v. United

Mexican States, 735 F.2d 1517, 1521 (D.C. Cir. 1984));

the federal government’s immunity makes that

impossible. More, the Supremacy Clause binds states

to federal law, including Congress’s power over

relations “with the Indian Tribes,” U.S. Const. art. I,

§ 8, cl. 3; see id. art. VI, cl. 2, making tribal immunity

from suit “a matter of federal law and . . . not subject

to diminution by the States.” Kiowa, 523 U.S. at 752.

States’ sovereignty is protected by the rule that

Indian tribes and their members are normally

“subject to any generally applicable state law” outside

reservation boundaries. Bay Mills, 134 S. Ct. at 2034.

But “[t]here is a difference between the right to

demand compliance with state laws and the means

available to enforce them.” Kiowa, 523 U.S. at 755.

The fact that sovereign immunity may, in some

instances, limit states’ ability to adjudicate disputes

within their territories has never justified judicially

limiting tribal immunity from suit.

Nor, finally, does the Lundgrens’ suggestion that

they lack remedies they deem “adequate,” Resp. 37,

justify the result they seek. The Lundgrens chose not

to pursue any remedy for over 40 years. They

downplay the remedies available to them now—such

as provoking a suit by the Tribe or individual-capacity

suits against Tribe employees—as inefficient or

incomplete. Resp. 40. But immunity often “bars . . .

the most efficient remedy.” Okla. Tax Comm’n v.

Citizen Band Potawatomi Indian Tribe of Oklahoma,

498 U.S. 505, 514 (1991). Similar limited remedies

existed for litigants asserting ownership of lands

claimed by the United States until Congress

narrowed federal immunity through the Quiet Title

Act, but the change came through Congress, not the

courts. Block v. North Dakota ex rel. Bd. of Univ. &

Sch. Lands, 461 U.S. 273, 280–81 (1983). The

Lundgrens question whether Washington law would

recognize a damages actions against the seller, Resp.

39, but they cite no case that has considered similar

facts, and other jurisdictions have expressly allowed

such actions. 4 The Court should not entertain their

request for a new exception to sovereign immunity

based on speculation that the state’s remedies might

be inadequate, when limitations to tribal immunity

from suit remain a matter for Congress.

The Lundgrens chose not to seek to test their claim

to title for decades. Then, after the Tribe purchased

the property and became its recorded owner, the

Lundgrens chose to sue to eradicate the Tribe’s

interest—that action is barred by sovereign

immunity.

IV.

Having Sought to Adjudicate the

Tribe’s Interest in the Property, the

Lundgrens’ Suit Should Have Been

Dismissed for Lack of Jurisdiction.

As “separate sovereigns pre-existing the

Constitution,” Santa Clara Pueblo v. Martinez, 436

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

immunity from suit in the absence of waiver or

4 See, e.g., In re B & L Oil Co., 46 B.R. 731, 736 (Bankr. D.

Colo. 1985) (“It is immaterial how the money may have come into

the defendant’s hands, and the fact that it was received from a

third person will not affect his liability if in equity and good

conscience, he is not entitled to hold it against the true owner.”

(quoting Empire Oil Co. v. Lynch, 126 S.E.2d 478, 479 (Ga. Ct.

App. 1962), and citing cases from Minnesota and Kentucky)).

congressional abrogation, Bay Mills, 134 S. Ct. at

2028.

When a litigant brings an action targeting an

Indian tribe’s interest in real property, the tribe need

not prove its ownership or disprove the adverse

litigant’s claim before invoking sovereign immunity

from suit; the tribe need only establish it has a nonfrivolous interest. Cf. Republic of the Philippines v.

Pimentel, 553 U.S. 851, 864, 867 (2008) (holding that

sovereign with non-frivolous claim may bar

adjudication of interpleader action). Once the tribe

does so, the action must be dismissed for lack of

jurisdiction. See FDIC v. Meyer, 510 U.S. 471, 475

(1994) (“Sovereign immunity is jurisdictional in

nature.”).

The Lundgrens brought an action to adjudicate the

Tribe’s interest in certain property. Their complaint

named the Tribe as the defendant, conceded that the

Tribe is record owner of the property, and asked the

Court to order that the Tribe’s name be removed from

the governmental property records, confirming the

Tribe’s interest is non-frivolous. JA 12, 15; CP 17.

The Tribe had the right to invoke its sovereign

immunity from suit and prevent the court from

exercising jurisdiction. See Lewis, 137 S. Ct. at 1291

(holding that tribal sovereign immunity was not

implicated because lawsuit “will not require action by

the sovereign or disturb the sovereign’s property”

(citation omitted)). The Washington courts erred by

failing to give effect to the Tribe’s immunity from suit

and instead adjudicating the Tribe’s interests on the

merits.

CONCLUSION

The judgment of the Washington Supreme Court

should be reversed.

Respectfully submitted,