Petition for Writ of Certiorari — Flying T Ranch, Inc., a Washington Corporation, Petitioner v. Stillaguamish Tribe of Indians, a federally recognized Indian Tribe

Supreme Court briefFeb 17, 2026

Ask Donna

What actually matters in this document.

Text

Appendix

Table of Contents

Opinion, Supreme Court of the State of

Washington, filed October 9, 2025 ......................... 1a

Published Opinion, Court of Appeals of

the State of Washington, filed June 4, 2024 ........ 36a

Order on Motion for Clarification or Certification

for Appeal, Superior Court of Washington in and

for Snohomish County, filed April 11, 2023 ......... 68a

Order Denying Plaintiff’s Motion for

Reconsideration, Superior Court of

Washington in and for Snohomish County,

filed January 24, 2023 .......................................... 70a

Order Granting Defendant Stillaguamish Tribe of

Indian’s Motion to Dismiss, Superior Court of

Washington in and for Snohomish County,

filed December 22, 2022 ....................................... 72a

Objections and Plaintiff’s Response to Defendants’

Motion to Dismiss [without exhibits], Superior

Court of Washington in and for Snohomish

County, filed December 16, 2022 ......................... 74a

Complaint to Quiet Title by Adverse Possession,

Superior Court of Washington in and for

Snohomish County, filed November 15, 2022 ...... 97a

Quit Claim Deed, recorded July 26, 2018

(Exhibit 2 to Objections and Plaintiff’s

Response to Defendants’ Motion to Dismiss,

filed December 16, 2022) .................................... 107a

IN THE SUPREME COURT OF

THE STATE OF WASHINGTON

FLYING T RANCH, INC., a

Washington corporation,

No. 103430-0

Petitioner, En Banc

Filed: October 9,

2025

STILLAGUAMISH TRIBE

OF INDIANS, a federally

recognized Indian tribe,

Respondent,

SNOHOMISH COUNTY, a

Washington State municipal

corporation,

Defendant.

MADSEN, J.— Under federal common law, Indian

tribes may be sued only under two circumstances:

when a tribe waives its sovereign immunity or when

Congress unequivocally abrogates tribal sovereign

immunity. Here, Flying T Ranch (Flying T) filed suit

in Snohomish County Superior Court to quiet title to

nonreservation land purchased by the Stillaguamish

Tribe of Indians (Tribe). Flying T contends it had

acquired that land through adverse possession prior

to the Tribe’s purchase. The superior court dismissed

the case with prejudice based on the Tribe’s sovereign

immunity.

The primary issue before us is a matter of first

impression: whether a common law immovable

property exception waives tribal sovereign immunity.

The Court of Appeals held that tribal sovereign

immunity is not subject to an immovable property

exception absent a clear waiver by Congress or the

tribe itself. Congress has not clearly indicated its

intent to abrogate tribal sovereign immunity here;

therefore, we affirm the Court of Appeals.

FACTS

The Stillaguamish Tribe of Indians is a federally

recognized Indian tribe. In 2021, the Tribe purchased

a parcel of land located along the Stillaguamish River

via statutory warranty deed. The Tribe purchased its

parcel utilizing state and federal funding from a

conservation grant from the National Oceanic and

Atmospheric

Administration,

through

the

Washington State Recreation and Conservation

Office. The main purpose of the grant is to protect the

land in perpetuity with a deed of right for salmon

recovery.

Upon acquiring title, the Tribe designated the plot

as “conservation” land. Clerk’s Papers at 86. The

Tribe’s interest in the land has been specifically for

protecting the riparian habitat necessary for salmon,

which is in turn tightly connected to the Tribe’s treaty

right to fish. As the Stillaguamish River salmon runs

face extinction, so do many aspects of the Tribe’s

culture, community, and treaty reserved rights. By

using these parcels as conservation land to protect

and restore salmon in the Stillaguamish River, the

Tribe seeks to preserve their way of life. Prior to

purchase, the land had not been part of any

reservation.

Flying T, a Washington corporation domiciled in

Snohomish County, has owned a parcel of land

running adjacent to that of the Tribe’s and county’s

parcels since 1991.

Snohomish County had acquired its portion of the

disputed parcel of land along the Stillaguamish River

in 1995. The land was privately owned prior to the

county acquiring it.

In 2022, Flying T filed a complaint against

Snohomish County and the Tribe in Snohomish

County Superior Court, seeking to quiet title to a

narrow strip of the two parcels of land described above

by adverse possession. Id. at 84-85. Flying T contends

that since at least 1962, it and its predecessors in

interest have had continuous and exclusive possession

over a narrow strip of both the Tribe’s and county’s

parcels of land by and through their maintenance of a

fence, which served to mark the boundary line, and

their use of the land to graze and keep livestock. It

contends that their possession has been actual,

uninterrupted, open, notorious, exclusive, and hostile

to any claim of right by all others.

The Tribe moved to dismiss pursuant to CR

12(b)(1)-(3), (6), and (7), based on tribal sovereign

immunity. Before the court ruled on the motion to

dismiss, Snohomish County conveyed its portion of

the disputed parcel of land to the Tribe, and thus the

Tribe acquired ownership of the entire disputed

parcel. The superior court entered an order granting

the Tribe’s motion to dismiss. Flying T moved for

reconsideration, which was denied.

Flying T appealed, seeking direct discretionary

review in this court. We denied the motion and

transferred the case to the Court of Appeals.1 Flying

After filing a notice of appeal, but before filing its statement

of grounds for direct review, Flying T moved in the trial court to

clarify whether the order dismissing the claims against the Tribe

was a final, appealable order since Snohomish County was not

dismissed from the suit. In April 2023, the trial court signed a

T argued that although tribes enjoy common law

sovereign immunity, the scope of that immunity is

limited by the common law immovable property

exception, and since adverse possession claims affect

title to real property, Washington superior courts

have in rem jurisdiction over nonreservation land

within state boundaries, even if owned by a tribe.

The Court of Appeals rejected Flying T’s arguments

and affirmed the superior court’s dismissal of the

quiet title action.2 It concluded that “a foreign

sovereign enjoys immunity as directed by the political

branches of government and would not face process

directed by the judiciary alone. When the Tribe is

afforded immunity equal to a foreign sovereign, it may

be sued over its objection only when allowed by

new order stating that Snohomish County was dismissed from

the action and that all claims against the Tribe were dismissed

with prejudice.

Flying T then filed a motion to clarify

appealability or to extend time to file an amended notice of

appeal in this court and filed an amended notice of appeal. The

Tribe filed a motion to dismiss the appeal or any discretionary

review based on Flying T’s failure to timely appeal from the new

April order. We transferred the case along with the motion to

clarify and the motion to dismiss to the Court of Appeals.

The parties dispute the Court of Appeals’ holding. The Tribe

states that the Court of Appeals held that there is no common

law immovable property exception to tribal sovereign immunity,

that cases finding an in rem exception to tribal sovereign

immunity are no longer good law, and that only Congress can

abrogate tribal sovereign immunity. Flying T states that the

Court of Appeals correctly held that the immovable property

exception should apply to tribes acquiring nonreservation land

but erred when it deferred to Congress. The Court of Appeals in

essence stated that even if a common law immovable property

exception exists, it should not extend to tribal sovereign

immunity absent some direction from Congress. See Flying T

Ranch, Inc. v. Stillaguamish Tribe of Indians, 31 Wn. App. 2d

343, 359-62, 549 P.3d 727 (2024).

Congress, and to hold otherwise would unfaithfully

lessen its immunity in comparison to that

traditionally enjoyed by sovereign powers.” Flying T

Ranch, Inc. v. Stillaguamish Tribe of Indians, 31 Wn.

App. 2d 343, 346, 549 P.3d 727 (2024). The court

stated that Flying T has not shown “any history of the

judiciary invoking the immovable property exception

against a foreign nation to disallow foreign sovereign

immunity without regard to the direction of the

political branches.” Id. at 358. It also noted that the

codification of the Foreign Sovereign Immunities Act

(FSIA) did not support application of a common law

immovable

property

exception

here

absent

congressional direction. Thus, Congress must act to

limit tribal immunity. Id. at 371.

The court also recognized that prior Washington

authority permitted quiet title claims like the one

Flying T asserts here but stated that the rationale of

the cases finding an in rem exception to tribal

sovereign immunity was disapproved in Upper Skagit

Indian Tribe v. Lundgren, 584 U.S. 554, 558, 138 S.

Ct. 1649, 200 L. Ed. 2d 931 (2018). Id. at 351. The

court declined to reach any other issues raised by the

parties after determining the Tribe has immunity. Id.

at 371.

Flying T petitioned for review, which this court

granted. Flying T Ranch, Inc. v. Stillaguamish Tribe

of Indians, 3 Wn.2d 1031 (2024).

ANALYSIS

Questions of federal law regarding tribal sovereign

immunity are reviewed de novo. Auto. United Trades

Org. v. State, 175 Wn.2d 214, 222, 226, 285 P.3d 52

(2012); Outsource Servs. Mgmt., LLC v. Nooksack Bus.

Corp., 181 Wn.2d 272, 276, 333 P.3d 380 (2014)

(whether a court has subject matter jurisdiction is a

question of law that appellate courts review de novo).

Tribal Sovereign Immunity

Indian tribes are “‘separate sovereigns pre-existing

the Constitution.’” Michigan v. Bay Mills Indian

Cmty., 572 U.S. 782, 788, 134 S. Ct. 2024, 188 L. Ed.

2d 1071 (2014) (quoting Santa Clara Pueblo v.

Martinez, 436 U.S. 49, 56, 98 S. Ct. 1670, 56 L. Ed. 2d

106 (1978)). “Among the core aspects of sovereignty

that tribes possess . . . is the ‘common-law immunity

from suit traditionally enjoyed by sovereign powers.’”

Id. (quoting Santa Clara Pueblo, 436 U.S. at 58);

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

512, 60 S. Ct. 653, 84 L. Ed. 894 (1940) (holding that

“Indian Nations are exempt from suit without

Congressional authorization”).

Tribal sovereign

immunity is “‘a necessary corollary to Indian

sovereignty and self-governance.’” Bay Mills, 572 U.S.

at 788 (quoting Three Affil. Tribes of Fort Berthold

Rsrv. v. Wold Eng’g, PC, 476 U.S. 877, 890, 106 S. Ct.

2305, 90 L. Ed. 2d 881 (1986)); THE FEDERALIST NO.

81, at 511 (A. Hamilton) (Benjamin F. Wright ed.

1961) (it is “inherent in the nature of sovereignty not

to be amenable” to suit without consent).

Thus, as the United States Supreme Court has

explained, the “baseline position” is tribal immunity,

and federally recognized Indian tribes may be sued

only when either a tribe has waived its immunity or

Congress has “‘unequivocally’” abrogated tribal

immunity. Bay Mills, 572 U.S. at 790 (quoting C&L

Enters., Inc. v. Citizen Band Potawatomi Tribe of

Okla., 532 U.S. 411, 418, 121 S. Ct. 1589, 149 L. Ed.

2d 623 (2001)); see Santa Clara Pueblo, 436 U.S. at 58

(waiver of sovereign immunity cannot be implied; it

must be unequivocally expressed). Tribal sovereign

immunity “is a matter of federal law and is not subject

to diminution by the States.” Kiowa Tribe v. Mfg.

Techs., Inc., 523 U.S. 751, 756, 118 S. Ct. 1700, 140 L.

Ed. 2d 981 (1998). The United States Supreme Court

has “time and again treated the ‘doctrine of tribal

immunity [as] settled law’ and dismissed any suit

against a tribe absent congressional authorization (or

a waiver).” Bay Mills, 572 U.S. at 789 (alteration in

original) (quoting Kiowa, 523 U.S. at 756).

Tribal sovereign immunity is broad. In fact, tribes

enjoy broader immunity than foreign sovereigns in

some contexts. For example, a tribe’s immunity from

suit extends to contracts, whether involving

governmental or commercial activities and whether

they are made on or off a reservation. Kiowa, 523 U.S.

at 760; cf. 28 U.S.C. § 1605(a)(6) (contractual

exception to the jurisdictional immunity of a foreign

state).

While tribes enjoy immunity like other sovereigns

do, the Court has long recognized the federal

government’s unique relationship with Indian tribes

as compared to foreign nations. A tribal nation is not

“foreign to the United States.” Cherokee Nation v.

Georgia, 30 U.S. (5 Pet.) 1, 19, 8 L. Ed. 25 (1831).

Instead, the Court has referred to tribes as “domestic

dependent nations” that engage in government-togovernment relations with the United States. Id. at

17. Because of the unique relationship that tribes

have with the federal government, sovereign

immunity concepts applicable to foreign nations do

not always apply identically in the tribal context. E.g.,

Kiowa, 523 U.S. 751. Further, tribal sovereign

immunity “is not coextensive with that of the States.”

Id. at 756. Thus, only Congress and the tribes

themselves retain the power to determine when tribal

immunity may be waived.

Prior Limitations on Tribal Sovereign Immunity

Prior Washington case law held that superior

courts in Washington may exercise in rem jurisdiction

to settle disputes over tribally owned, nonreservation

land. Lundgren v. Upper Skagit Indian Tribe, 187

Wn.2d 857, 865, 389 P.3d 569 (2017), vacated and

remanded, 584 U.S. 554. In Lundgren, the issue was

whether the Tribe’s assertion of sovereign immunity

required dismissal of an in rem adverse possession

action to quiet title to a disputed strip of land on the

boundary of property purchased by the Tribe. We held

that the Tribe’s sovereign immunity was no barrier to

the in rem proceeding. However, in reaching this

conclusion, the court relied heavily on a case that the

United States Supreme Court later stated does not

support our holding.

In Lundgren our court stated, “A court exercising

in rem jurisdiction is not necessarily deprived of its

jurisdiction by a tribe’s assertion of sovereign

immunity.” Id. at 865-66. We noted that the United

States Supreme Court recognized this principle in

County of Yakima v. Confederated Tribes & Bands of

Yakima Indian Nation, 502 U.S. 251, 255, 112 S. Ct.

683, 116 L. Ed. 2d 687 (1992). Id. In Yakima, the

county sought to foreclose property within the

Yakama Indian Reservation for failure to pay ad

valorum taxes. 502 U.S. at 256. The Yakama Nation

argued that federal law prohibited these taxes on feepatented reservation land. Id. The United States

Supreme Court held that the Indian General

Allotment Act of 1887, 25 U.S.C. §§ 331-358, repealed

in part by Pub. L. No. 106-462, 114 Stat. 1991 (2000),

allowed Yakima County to impose ad valorum taxes

on reservation land pursuant to the General

Allotment Act. Id. at 270.

In Lundgren our court stated that in Yakima, the

United States Supreme Court reached its holding by

characterizing the county’s assertion of jurisdiction

over the land as in rem, rather than in personam

jurisdiction over Yakama Nation. 187 Wn.2d at 866.

The court further noted that Washington courts had

similarly upheld a superior court’s assertion of in rem

jurisdiction over tribally owned land in Anderson &

Middleton Lumber Co. v. Quinault Indian Nation, 130

Wn.2d 862, 929 P.2d 379 (1996), and Smale v. Noretep,

150 Wn. App. 476, 208 P.3d 1180 (2009). Lundgren,

187 Wn.2d at 866-76.

In Anderson, this court held that the Grays Harbor

County Superior Court had in rem jurisdiction over an

action in partition and quiet title to fee-patented lands

within the Quinault Indian Reservation. 130 Wn.2d

at 873-74. The Anderson court relied heavily on the

Yakima case, stating that the court was exercising

jurisdiction over the property, not over the Quinault

Indian Nation, and thus the land was “subject to a

state court in rem action which does nothing more

than divide it among its legal owners according to

their relative interests.” Id. at 873.

In Smale, the Smales sought to quiet title to

property they claimed to have acquired through

adverse possession against Noretep, the non-Indian

original owner. 150 Wn. App. at 476-77. After the

Smales sued, Noretep sold the property by statutory

warranty deed to the Stillaguamish Tribe. Id. Smales

added the Tribe as a defendant. Id. The Tribe argued

that sovereign immunity barred the action. Id. In

10a

holding that sovereign immunity did not bar the Tribe

from being joined in the action, the court relied

heavily on Anderson, stating, “The quiet title action in

Anderson is similar to the quiet title action here in two

crucial ways:

both are proceedings in rem to

determine rights in the property at issue and neither

has the potential to deprive any party of land they

rightfully own.” Id. at 483. Since the Smales allegedly

acquired title to the land via adverse possession before

the original owner sold the land to the Tribe, the court

reasoned that the Tribe never possessed the land and

never had land to lose. Id. at 480-81. The court found

that the holding in Anderson controlled the case

before it. Id. at 478.

In Lundgren our court held that Yakima,

Anderson, and Smale “establish the principle that our

superior courts have subject matter jurisdiction over

in rem proceedings in certain situations where claims

of sovereign immunity are asserted.” 187 Wn.2d at

868. However, Lundgren was vacated by the United

States Supreme Court in Upper Skagit, 584 U.S. 554,

and remanded to our court. Specifically, the United

States Supreme Court in Upper Skagit stated that it

had accepted review to clarify that its decision in

Yakima did not address the scope of tribal sovereign

immunity but, rather, a question of statutory

interpretation of the Indian General Allotment Act of

1887. Id. at 558. “Yakima sought only to interpret a

relic of a statute in light of a distinguishable

precedent; it resolved nothing about the law of

sovereign immunity.” Id. at 559. The Lundgrens

asked the United States Supreme Court to affirm the

judgment based on an alternative ground: that

sovereigns enjoy no immunity from actions involving

immovable property located in the territory of another

11a

sovereign. Id. at 559-60. Exercising judicial restraint,

the Court stated, “We leave it to the Washington

Supreme Court to address these arguments in the

first instance.” Id. at 560.

Flying T argues that the holdings in Lundgren,

Anderson, and Smale are still controlling since they

contain independent rationales aside from their

reliance on Yakima. Flying T contends that the

holding in Anderson is still good law and must be

followed under stare decisis principles. It also argues

that Smale presented two crucial bases for

jurisdiction: in rem, which relied on Yakima, and

prior ripened adverse possession.3

Adverse possession is based in both statutory and

common law. Flying T claims that due to the unique

nature of adverse possession law, once the elements

The Tribe states that Flying T’s new argument that prior

ripened adverse possession is an exception to sovereign

immunity, was not presented below and should not be heard.

Although Flying T mainly argued the immovable property

doctrine is an exception to tribal sovereign immunity below, it

also discussed the unique nature of adverse possession law,

therefore, we consider its argument. The Tribe also notes that

Flying T raises another new argument that “[t]his is a fn.8 case

appropriate for the Courts.” Pet. for Rev. at 5-6. This refers to

footnote 8 in Bay Mills, 572 U.S. 799 n.8, which states that courts

have not addressed whether immunity should apply when “a tort

victim, or other plaintiff who has not chosen to deal with a tribe,

has no alternative way to obtain relief for off-reservation

commercial conduct.” The court noted that the argument of

whether there is a “‘special justification’” for abandoning

precedent in such circumstances was not before it. Id. (quoting

Arizona v. Rumsey, 467 U.S. 203, 212, 104 S. Ct. 2305, 81 L. Ed.

2d 164 (1984)) This new argument about lack of alternative

remedies potentially being a reason not to abide by precedent

was not raised below, and we have discretion not to consider it.

State v. Lazcano, 188 Wn. App. 338, 361, 354 P.3d 233 (2015).

12a

thereof have been met, original title vests without the

need for court action. Therefore, contrary to the Court

of Appeals’ holding, there is no need for Congress to

act to resolve such in rem adverse possession cases. In

addition to Smale and Anderson, Flying T cites to

Gorman v. City of Woodinville, 175 Wn.2d 68, 283 P.3d

1082 (2012), to support his argument that here, the

Tribe cannot lose land that it did not rightfully own,

having been adversely possessed prior to its

acquisition by the Tribe.

In Gorman, the plaintiff sought to acquire title to

land that had been dedicated to the city of

Woodinville. 175 Wn.2d at 70-71. Under RCW

4.92.010, Washington waived its own immunity,

allowing a right of action against it in superior court.

However, it had limited this waiver under RCW

4.16.160, which stated that the statute of limitations

for adverse possession would not run against the State

or a city acting in its governmental capacity. The

court held that RCW 4.16.160 could not shield the city

under the facts of the case since the statute of

limitations ran while the land was privately owned

before the land was dedicated to the city. Id. at 74.

Similarly, in Burlison v. United States, 533 F.3d

419, 421 (6th Cir. 2008), the plaintiffs sought to quiet

title to an access road pursuant to the Quiet Title Act

(QTA). See 28 U.S.C. § 2409a. The QTA provides that

“[t]he United States may be named as a party

defendant in a civil action under this section to

adjudicate a disputed title to real property in which

the United States claims an interest.” Id. § 2409 a(a).

The QTA states that “[n]othing in this section shall be

construed to permit suits against the United States

based upon adverse possession.” Id. § 2409a(n). The

plaintiffs argued that the QTA did not foreclose

13a

adverse possession claims that ripened before the

government acquired title to the lands. Burlison, 533

F.3d at 428. The court found the argument to be

cognizable but did not answer the question since the

plaintiffs failed to meet their burden of proving

adverse possession. Id.

Neither Gorman nor Burlison discussed the limits

of common law sovereign immunity or involved tribes.

Gorman was interpreting a state statute and Burlison

focused on the QTA. Furthermore, both Washington

and the United States have waived their immunity by

allowing a cause of action to be brought against them

in court related to real property. In contrast, the Tribe

has not waived its own immunity and the statutes

discussed in the cases above do not apply. Indeed, the

fact that both Washington and the United States

explicitly waived immunity suggests that such explicit

waiver from the Tribe might similarly be necessary.

Even if we interpret Smale as providing two

different rationales for its holding, one being that the

Smales acquired title to the land through adverse

possession before the Tribe was deeded the land, it

was not sufficiently analyzed to support such a

holding here. The court cited only one Idaho Supreme

Court case, which did not deal with tribes, in support

of the proposition that parties seeking to quiet title to

land they allegedly own are not asserting claims

against a sovereign. See Lyon v. State, 76 Idaho 374,

376, 283 P.2d 1105 (1955). Other cases specifically

discussing tribes hold that tribal sovereign immunity

is not waived with respect to real property. See

Cayuga Indian Nation v. Seneca County, 761 F.3d

218, 221 (2d Cir. 2014) (declining to draw a distinction

between in rem and in personam proceedings); Oneida

Indian Nation v. Madison County, 605 F.3d 149, 157

14a

(2d Cir. 2010) (a tribe’s immunity from suit is

independent of its lands), vacated and remanded, 562

U.S. 42, 131 S. Ct. 704, 178 L. Ed. 2d 587 (2011);

Hamaatsa, Inc. v. Pueblo of San Felipe, 2017-NM-007,

388 P.3d 977, 985 (2016) (regardless of whether claims

are in rem or in personam, tribes still retain their

sovereign immunity).

Flying T states that original title to real property

vests once the elements of adverse possession are met.

He cites Gorman; however, as previously noted, the

facts in Gorman are distinguishable. The State had

waived its immunity to suit and limited that waiver

by providing that “‘[n]o claim of right predicated upon

the lapse of time shall ever be asserted against the

state.’” Gorman, 175 Wn.2d at 70 (emphasis added)

(quoting RCW 4.16.160). The court in Gorman stated

that the statute barred claims that were “‘predicated

upon the lapse of time,’” however, Gorman’s claim was

that “the requisite period of time already ran against

the private owner.” Id. at 73. Therefore, the claim

was not barred by the statute. Furthermore, the court

stated that the city was the proper defendant as the

current record titleholder of the disputed property.

Here, the Tribe is the record titleholder to the

disputed property and thus an interested party.

To formally establish that real property has been

adversely possessed, a quiet title action is usually

initiated, as is the case here. A court must have

subject matter jurisdiction to decide a quiet title

action against a tribe. Tribal sovereign immunity is

an issue of subject matter jurisdiction. See Lewis v.

Norton, 424 F.3d 959, 963 (9th Cir. 2005) (holding that

the tribe was immune from suit and therefore

affirming the lower court’s dismissal of the case for

lack of subject matter jurisdiction); Acres Bonusing,

15a

Inc. v. Marston, 17 F.4th 901, 908 (9th Cir. 2021)

(“when a defendant timely and successfully invokes

tribal sovereign immunity, we lack subject matter

jurisdiction”); Alvarado v. Table Mountain Rancheria,

509 F.3d 1008, 1015-16 (9th Cir. 2007) (“Sovereign

immunity limits a federal court’s subject matter

jurisdiction over actions brought against a sovereign.

Similarly, tribal immunity precludes subject matter

jurisdiction in an action against an Indian tribe.”

(citation omitted)).

Thus, even if Flying T asserts the court has in rem

jurisdiction, it still must show some authority vesting

our courts with subject matter jurisdiction over quiet

title actions against tribes. In rem jurisdiction grants

courts authority to deal with land within its

boundaries, however, jurisdiction over real property

does not waive tribal sovereign immunity. Only

Congress

may

abrogate

tribal

immunity;

alternatively, a tribe may waive its immunity in

“‘clear’ and unmistakable terms.” Bodi v. Shingle

Springs Band of Miwok Indians, 832 F.3d 1011, 1016

(9th Cir. 2016) (quoting C&L Enters., 532 U.S. at 418).

We hold that Washington and federal case law does

not support finding in rem jurisdiction over land

owned by tribes to determine if there is a viable

adverse possession claim.

The Immovable Property Doctrine

Flying T argues that the common law immovable

property exception to foreign sovereign immunity

applies to tribes acquiring off-reservation land,

despite Congress not expressly or unequivocally

waiving tribal immunity in such instances.

Prior to the Foreign Sovereign Immunities Act of

1976 (FSIA), 28 U.S.C. §§ 1602-1611, immunity for

16a

foreign nations was based on common law and

primarily centered around deference to the political

branches of government.

Our nation’s history

illustrates that our common law foreign sovereign

immunity was a matter of comity. Verlinden BV v.

Cent. Bank of Nigeria, 461 U.S. 480, 486, 103 S. Ct.

1962, 76 L. Ed. 2d 81 (1983) (“foreign sovereign

immunity is a matter of grace and comity on the part

of the United States”).

Rather than assuming

jurisdiction, the United States Supreme Court would

defer to the political branches, specifically the

executive branch, to determine whether to take

jurisdiction over actions against foreign sovereigns.

Id. The United States Department of State ordinarily

requested immunity in all actions against friendly

foreign sovereigns. Id. For example, in Knocklong

Corp. v. Kingdom of Afghanistan, 6 Misc. 2d 700, 167

N.Y.S.2d 285 (County Ct. 1957), the Kingdom of

Afghanistan acquired fee ownership of real property

in New York. Since the property was being used to

house the Chief Representative of Afghanistan to the

United Nations, the State Department urged the New

York state court to find that foreign sovereign

immunity barred the action. Id. at 701.

In 1952, the State Department through the “Tate

Letter” attempted to remove the discretionary

application of sovereign immunity. Verlinden BV, 461

U.S. at 487 (citing Letter from Jack B. Tate, Acting

Legal Advisor, U.S. Dep’t of State, to Acting U.S. Att’y

Gen. Phillip B. Perlman (May 19, 1952)).

announced that it would be adopting a more

“‘restrictive’ theory” of sovereign immunity, which

confined immunity to suits involving a foreign

sovereign’s public acts but not extending it to cases

17a

“arising out of a foreign state’s strictly commercial

acts.” Id.

In 1976, Congress passed the FSIA to attempt to

alleviate case-by-case diplomatic pressures. Id. at

488. The FSIA mainly codified the restrictive theory

of sovereign immunity. However, Congress carved out

an exception to foreign sovereign immunity in 28

U.S.C. § 1605(a)(4), which states, “A foreign state shall

not be immune from the jurisdiction of courts of the

United States or of the States in any case . . . in which

. . . rights in immovable property situated in the

United States are in issue.” (Emphasis added.) The

parties in this case agree that the FSIA, and its

exceptions, do not extend to tribes.

While Flying T agrees that the FSIA does not apply

to tribes, it argues that a common law immovable

property exception exists, predating the FSIA, and

applies to tribes. Flying T states that we should focus

on the “product” of the political branches’ decisions on

foreign sovereign immunity, meaning the patterns

emerging from the collection of individual decisions

over time, to define the scope of tribal immunity in the

context of non-reservation title to real property.

Suppl. Br. of Pet’r Flying T Ranch at 15. That product,

it contends, includes the immovable property

exception, which limits the scope of tribal immunity.

It asserts that Congress has taken no action to remove

the immovable property exception and, therefore, it

should continue to apply to tribes on off-reservation

land. Flying T’s argument attempts to shift the

burden, urging this immovable property exception

applies unless Congress later says otherwise. This is

not how tribal sovereign immunity works. Tribal

sovereign immunity applies unless Congress takes

action stating otherwise.

18a

Moreover, Flying T argues, territorial sovereigns

have a primeval interest in resolving title disputes

within their own domain. However, as previously

discussed, before the FSIA, foreign national immunity

was almost entirely determined by the executive

branch. Thus, foreign nations could have acquired

land within another state, claimed immunity, and

been

granted

that

immunity

upon

the

recommendation of the State Department, not based

on preferences of the state in which the property was

located.

For support, Flying T cites to cases that do not

involve tribes, such as Asociacion de Reclamantes v.

United Mexican States, 237 U.S. App. D.C. 81, 735

F.2d 1517, 1521-22 (1984), and Permanent Mission of

India to the United Nations v. City of New York, 551

U.S. 193, 199-200, 127 S. Ct. 2352, 168 L. Ed 2d 85

(2007). In Permanent Mission of India, the court held

that the FSIA does not immunize a foreign

government from suit to declare the validity of tax

liens on property held by the sovereign for purposes of

housing its employees. 551 U.S. at 195. The court

reasoned that the purpose of the FSIA was to find

immunity only with respect to public acts of a state,

but not with respect to private acts of a sovereign. Id.

at 199. Additionally, the FSIA was meant to codify

the real property exception recognized by

international practice. Id. at 200; see Asociacion de

Reclamantes, 735 F.2d at 1521 (recognizing that a

territorial sovereign has a primeval interest in

resolving all disputes over the use of real property in

its own domain).

The flaw here is that the FSIA was not a

codification of the common practice within American

courts but rather was meant to codify the real

19a

property exception as recognized by international

practice. Prior to the FSIA and the Tate Letter, our

common practice was to defer to the State Department

regarding whether to find that there was immunity

with respect to a foreign nation.

The Court in The Schooner Exchange recognized

the common law immovable property exception in its

first acknowledgment of foreign sovereign immunity.

The case involved an American claimant asserting

title to a national armed vessel that was

commissioned by and in service of the emperor of

France. The Schooner Exch. v. M‘Faddon, 11 U.S. (7

Cranch) 116, 146, 3 L. Ed. 287 (1812). The Court

stated, “A prince, by acquiring private property in a

foreign country, may possibly be considered as

subjecting that property to the territorial jurisdiction

. . . and assuming the character of a private

individual.” Id. at 145; see also Georgia v. City of

Chattanooga, 264 U.S. 472, 479-80, 44 S. Ct. 369, 68

L. Ed. 796 (1924) (rejecting Georgia’s claim of

sovereign immunity over the land because it had

“acquired land in another State for the purpose of

using it in a private capacity”). While there is little

case law discussing or applying the common law

immovable property exception, these cases suggest

that the purpose for which the property is being used

is a consideration in applying the common law

exception to sovereign immunity.

Assuming the use to which the subject property is

put is germane, the Tribe here used state and federal

funding from a conservation grant from the National

Oceanic and Atmospheric Administration, through

the Washington State Recreation and Conservation

Office, to purchase the land. This was conditioned on

the Tribe protecting the land in perpetuity with a deed

20a

of right for salmon recovery. The Tribe is expected to

take reasonable and feasible measures to protect,

preserve, restore, and/or enhance the habitat

functions on the property, which aim to support Puget

Sound chinook, chum, coho, and pink salmon, and

steelhead, cutthroat, and bull trout. Salmon in the

Stillaguamish River are a keystone species that are

essential for the continuation of the Tribe’s living

culture. As salmon runs in the Stillaguamish River

face extinction, so do many aspects of the Tribe’s

culture, community, and treaty reserved rights. After

acquiring the land, the Tribe designated it as

conservation land as a way to preserve their way of

life and protect and restore salmon in the

Stillaguamish River.

Protecting the riparian habitat necessary for

salmon is tightly connected to the Tribe’s treaty right

to fish. Although the land at issue is not part of a

reservation, its purchase is conditioned on the Tribe

agreeing to use the land for salmon recovery purposes.

Thus, the land is being used to promote the interests

of the Tribe as a whole, especially with respect to

preserving their treaty rights to fish, as well as the

public by helping restore salmon populations. See

Okla. Tax Comm’n v. Citizen Band Potawatomi

Indian Tribe, 498 U.S. 505, 511, 111 S. Ct. 905, 112 L.

Ed. 2d 1112 (1991) (stating that the test for

determining whether land is Indian country does not

turn upon whether that land is denominated “‘trust

land’” or “‘reservation’” but, rather, “whether the area

has been ‘validly set apart for the use of the Indians

as such, under the superintendence of the

Government’” (quoting United States v. John, 437 U.S.

634, 648-49, 98 S. Ct. 2541, 57 L. Ed. 2d 489 (1978))).

It is unlikely Congress would have intended to waive

21a

tribal sovereign immunity in these circumstances

where the Tribe has used federal funding to acquire

the land and is using the land for a specified purpose

subject to the State’s supervision.

More fundamentally, the immovable property

exception discussed above has never been applied in

the context of Indian tribes, and Flying T has not

persuaded us that it is appropriate for the judicial

branch to do so now. The immovable property

exception is a doctrine that primarily emerged in the

context of foreign sovereign immunity. But tribes are

not foreign nations; the United States Supreme Court

has described tribes as “domestic dependent nations”

with a unique relationship to the federal government.

Cherokee Nation, 30 U.S. at 13. Thus, the scope of

sovereign immunity has never been coextensive

between tribes, states, and foreign nations. Instead,

as stated above, in the absence of a tribe’s waiver of

immunity, courts defer to Congress, which must

“unequivocally” express its decision to abrogate tribal

immunity. Bay Mills, 572 U.S. at 790. To this point,

it is relevant that when Congress enacted the FSIA, it

did not expressly include the tribes, suggesting it did

not intend the immovable property exception,

whether in the FSIA or common law, to apply to

tribes.

In support of its position, Flying T cites to Chief

Justice Roberts’ concurrence in Upper Skagit to

indicate that the Court believed that an immovable

property exception should apply to tribes. “There

should be a means of resolving a mundane dispute

over property ownership, even when one of the parties

to the dispute—involving non-trust, non-reservation

land—is an Indian tribe. The correct answer cannot

be that the tribe always wins no matter what.” Upper

22a

Skagit, 584 U.S. at 562 (Roberts, C.J., concurring). 4

However, even Flying T acknowledges that finding

such an exception would be contrary to the primary

holdings and rationales in Kiowa and Bay Mills,

which upheld tribal immunity in off-reservation

commercial business dealings.

In Kiowa, the Court helped clarify the bounds of

tribal sovereign immunity. 523 U.S. 751. The Kiowa

Tribe had agreed to buy stock from a company, and a

tribal representative signed a promissory note in the

name of the tribe. Id. at 753. A disputed issue was

whether the note was signed on or off tribal trust land.

Id. at 753-54. The tribe defaulted on the note and an

action was brought in state court. Id. at 754. The

Court held that the tribe was entitled to sovereign

immunity from suit, regardless of where the note was

signed and that sovereign immunity extended to the

tribe’s commercial activities. Id. at 754-55. It

reasoned that precedent did not support finding a

distinction between governmental and commercial

activities. Id. at 755. In coming to its decision that

tribal sovereign immunity applied, the Court

reasoned that Congress has not acted to abrogate

sovereign immunity and that Congress is in the best

position “to weigh and accommodate the competing

policy concerns and reliance interests.” Id. at 757,

759. Therefore, the Court declined to revisit current

case law on tribal sovereign immunity and chose to

defer to Congress. Id. at 760.

Flying T also argues that requiring Congress to act first will

lead to untenable and absurd results. However, we are bound by

precedent. Moreover, Congress has acted to waive tribal

immunity in more than one instance; therefore, it is not absurd

for Congress to act here.

23a

In Bay Mills, the Court further clarified that tribal

immunity is the baseline. 572 U.S. at 790. If

Congress intends to abrogate such immunity, it must

do so unequivocally. Id.; see Santa Clara Pueblo, 436

U.S. at 58 (a waiver of sovereign immunity cannot be

implied, but must be unequivocally expressed).

“Although Congress has plenary authority over tribes,

courts will not lightly assume that Congress in fact

intends to undermine Indian self-government.” Bay

Mills, 572 U.S. at 790. The State of Michigan had

brought an action to enjoin the Bay Mills Indian Tribe

from operating a casino on land outside of its

reservation. The Court held that the State lacked the

ability to sue the tribe for illegal gaming, even if

occurring off the reservation. Id. at 795. In reaching

that conclusion, the Court reasoned that as domestic

dependent nations, tribes exercise sovereignty at the

will of the federal government and that means tribes

are immune from lawsuits unless Congress wishes to

abrogate that immunity. Id. at 803. Congress had not

abrogated that immunity under the Indian Gaming

Regulatory Act with respect to off-reservation gaming:

thus, Michigan could not sue the Tribe to enjoin the

casino. Id. at 804.

Congress has chosen to limit tribal sovereign

immunity in specific contexts through explicit

statutory provisions.

See, e.g., 25 U.S.C.

§ 2710(d)(7)(A)(ii) (abrogating tribal immunity in the

context of class III gaming activities); 25 U.S.C.

§ 450f(c)(3)

(relating

mandatory

liability

insurance). Courts have also found that Congress has

waived tribal sovereign immunity when it has

included Indian Tribes within its definition of

“persons” within a national regulatory scheme. See

United States v. Weddell, 12 F. Supp. 2d 999 (D.S.D.

24a

1998), aff’d, 187 F.3d 645 (8th Cir. 1999)

(congressional abrogation under 28 U.S.C. §§ 30013008, also known as the Federal Debt Collection Act,

by virtue of its inclusion of Indian tribes under the

definition of “person[s]” who may be garnishees);

Osage Tribal Council ex rel. Osage Tribe of Indians v.

U.S. Dep’t of Lab., 187 F.3d 1174, 1182 (10th Cir.

1999) (Congress abrogated tribal sovereign immunity

in the Safe Drinking Water Act); see also Pub. Serv.

Co. of Colorado v. Shoshone-Bannock Tribes, 30 F.3d

1203 (9th Cir. 1994) (holding that tribes are subject to

suit under the preemption provision of the Hazardous

Materials Transportation Act since the provision

specifically refers to tribes). When it has done so, it

has typically, but not always, referenced tribes

explicitly. See Lac du Flambeau Band of Lake

Superior Chippewa Indians v. Coughlin, 599 U.S. 382,

395, 143 S. Ct. 1689, 216 L. Ed. 2d 342 (2023) (holding

that the Bankruptcy Code unequivocally abrogated

tribal sovereign immunity when it abrogated

sovereign immunity for “other foreign or domestic

government[s]”).

Despite Washington’s primeval interests in

resolving disputes over land within its own

boundaries, Congress has not unequivocally

abrogated tribal sovereign immunity with respect to

nonreservation property acquired by tribes. The

parties agree that FSIA and its exception do not apply

to tribes, and the common law immovable property

exception has never been applied in the context of

Indian tribes, which are domestic dependent nations.

Furthermore, as the Supreme Court noted in Santa

Clara Pueblo, Kiowa, and Bay Mills, the waiver of

tribal sovereign immunity will not be inferred but

must be unequivocal. We hold that a common law

25a

immovable property exception to sovereign immunity

does not apply here.

The Superior Court’s Dismissal of Flying T’s

Claims

Flying T argues that the superior court erred in

dismissing its case under CR 19 since the Tribe is not

an indispensable party. CR 19(a) requires the joinder

of necessary parties. However, as the Tribe notes, the

superior court dismissed the case based on CR

12(b)(1)-(3), (6), and (7). Since we hold that the

superior court properly dismissed the case based on,

among other things, lack of subject matter

jurisdiction, we do not reach this argument.

CONCLUSION

Federal common law has long established that

tribes are immune from suit and may be sued only

where a tribe waives its immunity or when Congress

has unequivocally abrogated immunity. While the

superior court has in rem jurisdiction over real

property, it does not have subject matter jurisdiction

over

adverse

possession

claims

involving

nonreservation land owned by tribes.

Furthermore, a common law immovable property

exception has never been applied to waive tribal

sovereign immunity. An act of Congress is necessary

to create such an exception to tribal sovereign

immunity.

We hold that state courts do not have subject

matter jurisdiction over adverse possession claims

related to nonreservation land owned by tribes and

that the common law immovable property exception

does not apply to tribes.

26a

Accordingly, we affirm the Court of Appeals.

/s/ Madsen, J.

Madsen, J.

WE CONCUR:

/s/ Stephens, C.J.

/s/ Yu, J.

Stephens, C.J.

Yu, J.

/s/ Johnson, J.

/s/ Montoya-Lewis, J.

Johnson, J.

Montoya-Lewis, J.

/s/ González, J.

/s/ Whitener, J.

González, J.

Whitener, J.

/s/ Gordon McCloud, J.

________________________

Gordon McCloud, J.

Flying T Ranch, Inc., v. Stillaguamish

No. 103430-0

MUNGIA, J. (concurring)—I concur with the

majority’s opinion.1 And yet I dissent. Not from the

majority’s opinion, but I dissent from the racism

embedded in the federal case law that applies to this

dispute.

The majority assumes, for the sake of argument, that the

use the Stillaguamish Tribe makes of the property at issue is

germane to its analysis. It analyzes whether the Tribe uses the

property for private or public use under the immovable property

exception and suggests that the use is public.

In my view, this analysis is irrelevant to the outcome of the

case. As domestic sovereign nations, the immovable property

exception does not apply to tribes regardless of what a tribe uses

the property for. I depart from the majority to the extent that

the opinion may suggest a narrower holding.

27a

FEDERAL INDIAN LAW IS A PRODUCT OF THE RACIST

BELIEFS ENDEMIC IN OUR SOCIETY

AND OUR LEGAL SYSTEM

While it is certainly necessary to follow federal case

law on issues involving Native American tribes and

their members, at the same time it is important to call

out that the very foundations of those opinions were

based on racism and white supremacy. By doing this,

readers of our opinions will have no doubt that the

current court disavows, and condemns, those racist

sentiments, beliefs, and statements.

Since the founding of our country, the federal

government has characterized Native Americans as

“savages”: They were “uncivilized.” They had little

claim to the land upon which they lived. At times, the

federal government attempted to eradicate Native

Americans through genocidal policies. At other times,

the federal government employed ethnic cleansing by

forcibly removing children from their parents’ homes

to strip them from their culture, their language, and

their beings.2

Federal Indian case law arises from those racist

underpinnings.

The majority correctly cites to Cherokee Nation v.

Georgia, 30 U.S. (5 Pet.) 1, 8 L. Ed. 25 (1831), which is

one of the foundational cases involving tribal

sovereignty. That opinion is rife with racist attitudes

toward Native Americans.

Chief Justice John

Marshall, writing for the majority, describes a tribe’s

relationship to the federal government as one of “ward

For a description of the federal government’s treatment of

Native Americans from the founding through the early 1970s, see

In re Dependency of G.J.A., 197 Wn.2d 868, 884-85, 489 P.3d 631

(2021).

28a

to his guardian.” Id. at 17. In effect, the opinion

presents tribal members as children, and the federal

government as the adult. That theme would follow in

later opinions by the United States Supreme Court—

as would the theme of white supremacy.

Cherokee Nation began with the premise that

Native American tribes, once strong and powerful,

were no match for the white race and so found

themselves “gradually sinking beneath our superior

policy, our arts and our arms.” Id. at 15. The white

man was considered the teacher, the Native

Americans the pupils:

Meanwhile they are in a state of pupilage.

Their relation to the United States resembles

that of a ward to his guardian.

Id. at 17.

This characterization of superior to inferior,

teacher to student, guardian to ward, was repeated in

later United States Supreme Court opinions.

In Lone Wolf v. Hitchcock, 187 U.S. 553, 23 S. Ct.

216, 47 L. Ed. 299 (1903), often characterized as the

“American Indian Dred Scott,”3 the Court used that

rationale to justify ruling that the United States could

break its treaties with Native American tribes.

These Indian tribes are the wards of the nation.

They are communities dependent on the United

States. Dependent largely for their daily food.

Dependent for their political rights. . . . From

See Adam Crepelle, Lies, Damn Lies, and Federal Indian

Law: The Ethics of Citing Racist Precedent in Contemporary

Federal Indian Law, 44 N.Y.U. REV. L. & SOC. CHANGE 529, 530

(2021); Philip P. Frickey, Doctrine, Context, Institutional

Relationships, and Commentary: The Malaise of Federal Indian

Law Through the Lens of Lone Wolf, 38 TULSA L. REV. 5, 5 (2002).

29a

their very weakness and helplessness . . . there

arises the duty of protection, and with it the

power.

Id. at 567 (quoting United States v. Kagama, 118 U.S.

375, 383-84, 6 S. Ct. 1109, 30 L. Ed. 228 (1886)).

Our court also carries the shame of denigrating

Native

Americans

using

that

same

characterization: “The Indian was a child, and a

dangerous child, of nature, to be both protected and

restrained.” State v. Towessnute, 89 Wash. 478, 482,

154 P. 805 (1916), judgment vacated and opinion

repudiated by 197 Wn.2d 574, 486 P.3d 111 (2020).

Returning to Cherokee Nation, Justice William

Johnson’s separate opinion was less tempered in how

he considered the various Native American tribes:

I cannot but think that there are strong reasons

for doubting the applicability of the epithet

state, to a people so low in the grade of

organized society as our Indian tribes most

generally are.

Cherokee Nation, 30 U.S. at 21. Native Americans

were not to be treated as “equals to equals” but,

instead, the United States was the conqueror and

Native Americans the conquered. Id. at 23.

In discussing Native Americans, Justice Johnson

employed another racist trope used by judges both

before and after him:

Native Americans were

uncivilized savages.

[W]e have extended to them the means and

inducement to become agricultural and

civilized. . . . Independently of the general

influence of humanity, these people were

restless, warlike, and signally cruel.

30a

....

But I think it very clear that the constitution

neither speaks of them as states or foreign

states, but as just what they were, Indian tribes

. . . which the law of nations would regard as

nothing more than wandering hordes, held

together only by ties of blood and habit, and

having neither laws or government, beyond

what is required in a savage state.

Id. at 23, 27-28.

This same characterization was used by Justice

Stanley Matthews in Ex parte Kan-Gi-Shun-Ca

(otherwise known as Crow Dog), 109 U.S. 556, 3 S. Ct.

396, 27 L. Ed. 1030 (1883). Justice Matthews

described Native Americans as leading a savage life.

They were people who did not have “the

responsibilities of civil conduct.” Id. at 571. Native

Americans in fact were incapable of comprehending

civility. Id. To Justice Matthews, there was a clear

distinction between Native Americans and the white

man. In comparing tribal courts to the white man’s

court, he stated that tribal courts have

[T]he strongest prejudices of their savage

nature; one which measures the red man’s

revenge by the maxims of the white man’s

morality.

Id. at 571.

One other aspect of Justice Johnson’s opinion in

Cherokee Nation that must be noted and condemned

is the “Doctrine of Discovery.” Justice Johnson wrote:

When the eastern coast of this continent, and

especially the part we inhabit, was discovered,

finding it occupied by a race of hunters,

connected in society by scarcely a semblance of

31a

organic government; the right was extended to

the absolute appropriation of the territory, the

annexation of it to the domain of the discoverer.

It cannot be questioned that the right of

sovereignty, as well as soil, was notoriously

asserted and exercised by the European

discoverers. From that source we derive our

rights, and there is not an instance of a cession

of land from an Indian nation, in which the

right of sovereignty is mentioned as part of the

matter ceded.

Cherokee Nation, 30 U.S. at 23.

In Johnson v. MʻIntosh, 21 U.S. 543 (8 Wheat.), 5

L. Ed. 681 (1823), the United States Supreme Court

recognized the Doctrine of Discovery. The doctrine

provided the justification for European nations to

claim title to certain lands “‘then unknown to all

Christian people.’”4

Id. at 576.

Chief Justice

Marshall, writing for the majority, stated that while

European countries may have legitimate claims to

various parts of the United States, Native Americans

retained only a right of occupancy to the land, which

was subject to the conquering nation’s right of

appropriation. Id. at 574, 584.

Our court was guilty of adopting that mistaken

ideology:

The premise of Indian sovereignty we reject.

The treaty is not to be interpreted in that light.

At no time did our ancestors in getting title to

this continent, ever regard the aborigines as

other than mere occupants, and incompetent

occupants, of the soil. Any title that could be

For a description of the doctrine and its origins, see State v.

Wallahee, 3 Wn.3d 179, 181 & n. 1, 548 P.3d 200 (2024).

32a

had from them was always disdained. From

France, from Spain, from Mexico, and from

England we have ever proclaimed our title by

purchase, by conquest, and by cession, in all of

which great transactions the migratory

occupant was ignored. Only that title was

esteemed which came from white men, and the

rights of these have always been ascribed by the

highest authority to lawful discovery of lands,

occupied, to be sure, but not owned, by any one

before. Johnson v. McIntosh, [21 U.S. ]8 Wheat.

543[, 5 L. Ed. 681 (1823)]. If in Worcester v.

Georgia, [31 U.S. ]6 Pet. 515[, 8 L. Ed. 483

(1832)], the supreme court speaks of the

Indians having something which the whites

had yet to purchase, it was not title, but mere

possessory uses for subsistence. Later cases

continue to plant our title on discovery. Martin

v. [Lessee of] Waddell, [41 U.S. ]16 Pet. 367,

409[, 10 L. Ed. 997 (1842)]; United States v.

Rogers, [45 U.S. ]4 How. 567, 572[, 11 L. Ed.

1105 (1846)].

Towessnute, 89 Wash. at 481-82.

In short, European nations gained title to the land

without ever setting foot on the land itself. Viewing

the land from the ship was enough to give them title.

The Doctrine of Discovery allowed Europeans to

justify driving Native Americans from their homes

and from their lands because the federal government,

as conquerors, had the right to extinguish Indian title.

The tribes did not own the land but merely

occupied it. They were not sovereigns in relation to

the federal government. The United States controlled

the land, and the sovereignty, of the various tribes.

33a

The cases the majority cites, and indeed must cite,

are based on the racist premises that Native American

tribes were never sovereign nations, that they had no

fee title to the land on which they lived, and that the

United States had the ultimate power as to those

issues. The justification for those holdings was that

Native Americans were inferior and were savages,

who became wards of the United States.

Each time a court cites a case that has as its

foundation such racist fallacies, it is incumbent on us

to call out that racism, even if just in a footnote.

THE UNITED STATES SUPREME COURT, AND OUR

COURT, HAS TAKEN STEPS TO

ADDRESS THESE PAST WRONGFUL ACTIONS

The United States Supreme Court, and our court,

has taken steps to address some of the errors of the

past.

The United States Supreme Court now recognizes

“the sovereign authority of Native American Tribes

and their right to ‘the common-law immunity from

suit traditionally enjoyed by sovereign powers.’”

Upper Skagit Indian Tribe v. Lundgren, 584 U.S. 554,

557, 138 S. Ct. 1649, 200 L. Ed. 2d 931 (2018) (quoting

Michigan v. Bay Mills Indian Cmty., 572 U.S. 782,

788, 134 S. Ct. 2024, 188 L. Ed. 2d 1071 (2014)); see

also Haaland v. Brackeen, 599 U.S. 255, 276, 143 S.

Ct. 1609, 216 L. Ed. 2d 254 (2023) (while Congress’s

Indian affairs power “is plenary within its sphere, . . .

even a sizeable sphere has borders”).

In this opinion, our court correctly holds that the

Stillaguamish Tribe has sovereign immunity and that

“only Congress and the tribes themselves retain the

power to determine when tribal immunity may be

waived.” Majority at 7.

34a

In recent years we have repudiated prior decisions

that disregarded the rights of Native Americans and

their treaty rights. In Towessnute, 197 Wn.2d at 57778, we repudiated the prior Towessnute “case; its

language; its conclusions; and its mischaracterization

of the Yakama people.” In State v. Wallahee, 3 Wn.3d

179, 187-88, 548 P.3d 200 (2024), we recalled the

mandate and vacated the wrongful conviction of Jim

Wallahee,5 who had been convicted for exercising his

treaty right to hunt on ceded Yakama land. We also

properly called out the wrongfulness of the Doctrine of

Discovery:

The Doctrine of Discovery and its use in law to

justify state-sponsored violence are a stain on

this nation.

Id. at 189.

In those prior, repudiated decisions, we had

followed United States Supreme Court precedent that

Native American tribes were not sovereign entities

and that Native Americans were merely occupants of

the land. While we continue to be constrained to

follow United States Supreme Court precedent, we

must not be constrained from calling out the racism

found within those opinions. We must do a better job.

CONCLUSION

In our letter dated June 4, 2020, we noted the

“devaluation and degradation of [B]lack lives is not a

recent event.”6

State v. Wallahee, 143 Wash. 117, 255 P. 94 (1927).

Letter from Wash. State Sup. Ct. to Members of Judiciary

& Legal Cmty. 1 (Wash. June 4, 2020) https://www.courts.wa.go

v/content/publicUpload/Supreme%20Court%20News/Judiciary%

35a

The same holds true for Native Americans.

We noted, “The legal community must recognize

that we all bear responsibility for this on-going

injustice, and that we are capable of taking steps to

address it, if only we have the courage and the will.” 7

The same holds true for Native Americans.

We noted, “As judges, we must recognize the role

we have played in devaluing [B]lack lives.”8

The same is true for Native Americans.

While we are bound by United States Supreme

Court precedent, we are not bound to stay silent as to

the underlying racism and prejudices that are woven

into the very fabric of those opinions. Instead, every

chance we get, we must clearly, loudly, and

unequivocally state that was “wrong.”

That was wrong.

/s/ Mungia, J.

Mungia, J.

20Legal%20Community%20SIGNED%20060420.pdf

[https://perma.cc/QNT4-H5P7].

Id.

36a

Filed June 4, 2024

IN THE COURT OF APPEALS

OF THE STATE OF WASHINGTON

FLYING T RANCH, INC., a

Washington corporation,

No. 85739-8-1

Appellant, DIVISION ONE

PUBLISHED

STILLAGUAMISH TRIBE

OPINION

OF INDIANS, a federally

recognized Indian Tribe,

Respondent,

SNOHOMISH COUNTY, a

Washington state municipal

corporation,

Defendant.

¶1 BIRK, J. — Flying T Ranch Inc. appeals the

dismissal of its lawsuit to quiet title to certain land

against the Stillaguamish Tribe of Indians (Tribe)

based on tribal sovereign immunity. Flying T agrees

the Tribe enjoys the immunity traditionally enjoyed

by sovereign powers, but the parties dispute the scope

of that immunity. The land is not tribal land, so

Flying T argues the Tribe’s immunity is equal only to

the immunity a foreign sovereign would have, and

that immunity, Flying T argues, does not bar its quiet

title claim under the “immovable property” exception.

We conclude a foreign sovereign enjoys immunity as

directed by the political branches of government and

would not face process directed by the judiciary alone.

When the Tribe is afforded immunity equal to a

foreign sovereign, it may be sued over its objection

only when allowed by Congress, and to hold otherwise

would unfaithfully lessen its immunity in comparison

37a

to that traditionally enjoyed by sovereign powers. We

therefore affirm.

¶2 Flying T filed a complaint in Snohomish County

Superior Court, pleading it is a Washington

corporation domiciled in Snohomish County, with its

principal place of business at 18808 State Route 530

Northeast, Arlington, Washington.

Flying T’s

complaint sought to quiet title to certain land against

the Tribe, acknowledged in the complaint to be a tribal

government.

¶3 According to its allegations, Flying T owns a

parcel of land lying along the North Fork of the

Stillaguamish River. Opposite the river, the parcel is

bounded on the north by a former railroad right-ofway, now the White Horse Trail. To the west of Flying

T’s parcel, the river and the railroad right-of-way

converge, making a triangular piece of land bounded

on its three sides by Flying T’s parcel, the river, and

the railroad right-of-way. The triangular piece of land

is composed of parts of two parcels west of Flying T’s.

It is accessible from Flying T’s neighboring parcel, but

cut off by the railroad right-of-way from the rest of the

two westerly parcels of which it is part. Flying T

asserts title to this piece of land by adverse possession.

¶4 To support its claim of adverse possession,

Flying T alleges a former owner of its parcel, Robert

Olsen, repaired and maintained a fence enclosing the

disputed triangular piece of land together with Flying

T’s parcel starting in at least 1961. Flying T alleges

that since at least 1962, this barbed wire fence has run

in a straight, continuous line along the railroad rightof-way. It alleges that without permission of the true

owners, the fence marked the boundary line

38a

separating the area from the railroad right-of-way and

from the portions of the westerly parcels lying north

of the fence. Olsen used the land to keep and graze

livestock. In 1974, Olsen conveyed the Flying T parcel

to Edwin and Antoinette Tanis.

Edwin Tanis

continued Olsen’s practice of repairing and

maintaining the fence. In 1990, a court entered

judgment against the Tanises and the sheriff sold the

parcel to Bruce and Tammy Blakey. The Blakeys

continued the practice of repairing and maintaining

the fence, excluding others from the enclosed area,

and using the land to keep and graze livestock. In

1991, the Blakeys conveyed their parcel to Flying T,

and since then it has continuously repaired and

maintained the fence, excluding all others from the

enclosed area without the permission of the title

owners and using the enclosed land to keep and graze

livestock.

¶5 Flying T alleges that Snohomish County

obtained title to one of the westerly parcels in 1995.

After Flying T commenced this action and a week

before the superior court heard the Tribe’s motion to

dismiss based on tribal sovereign immunity,

Snohomish County conveyed its parcel to the Tribe.

Flying T alleges that the Tribe obtained title to the

other westerly parcel in 2021. Flying T alleges—and

the Tribe has not controverted—that before

Snohomish County and the Tribe came into title of

these parcels, they were privately held and not part of

any tribal land or reservation.

¶6 Flying T commenced this action to quiet title in

November 2022. The Tribe moved to dismiss under

CR 12(b)(1), CR 12(b)(2), CR 12(b)(3), CR 12(b)(6), and

CR 12(b)(7), all based on its having tribal sovereign

39a

immunity from Flying T’s claims.1 In support of its

motion, the Tribe attached three documents,

including a declaration by Sara Thitipraserth,

director of the Tribe’s Natural Resources Department.

Thitipraserth stated the Tribe purchased its parcel

along with seven other parcels, totaling about 143.4

acres along 1.2 miles of the North Fork of

Stillaguamish River. The Tribe acquired these lands

for habitat restoration actions aimed to increase the

A challenge to the court’s subject matter jurisdiction under

CR 12(b)(1) may be either “facial or factual.” Outsource Servs.

Mgmt., LLC v. Nooksack Bus. Corp., 172 Wn. App. 799, 806, 292

P.3d 147 (2013), aff’d on other grounds, 181 Wn.2d 272, 333 P.3d

380 (2014). Once it is challenged, the party asserting subject

matter jurisdiction bears the burden of proof on its existence. Id.

at 807. A facial challenge puts at issue the sufficiency of the

pleadings. Id. at 806-07. A denial of a facial challenge under CR

12(b)(1) based on the complaint alone or the complaint

supplemented by undisputed facts is reviewed de novo. Id. at

807. A factual challenge requires the trial court to weigh

evidence to resolve disputed jurisdictional facts, and its factual

determinations will be accepted by an appellate court unless

clearly erroneous. Id.

In determining a challenge to personal jurisdiction under CR

12(b)(2), the trial court has discretion to rely on written

submissions, or it may hold a full evidentiary hearing. Id. Once

it is challenged, the party asserting personal jurisdiction bears

the burden of proof to establish its existence. Id. If the trial court

determines personal jurisdiction based on the pleadings and the

undisputed facts before it, this court reviews the determination

de novo. Id.

Because we conclude federal law requires that Flying T’s

complaint be dismissed, Michigan v. Bay Mills Indian Cmty., 572

U.S. 782, 791, 134 S. Ct. 2024, 188 L. Ed. 2d 1071 (2014), it is not

necessary to determine whether the dismissal is properly

characterized as a matter of Washington procedural law as a

facial dismissal for lack of subject matter jurisdiction under

CR 12(b)(1) or a dismissal for lack of personal jurisdiction under

CR 12(b)(2).

40a

productivity and abundance of Puget Sound Chinook

salmon. The parcels were acquired using funds from

a conservation grant from the National Oceanic and

Atmospheric

Administration,

through

the

Washington State Recreation and Conservation

Office, that required the Tribe to protect those lands

in perpetuity with a deed of right for salmon recovery.

Stillaguamish River salmon are a cultural keystone

species that supports activities essential for the

continuation of the Tribe’s living culture. As the

Stillaguamish River salmon runs face extinction, so do

many aspects of the Tribe’s culture, community, and

treaty reserved rights. The Tribe preserves its way of

life through the use of these parcels as conservation

land to protect and restore salmon in the

Stillaguamish River.2

In the superior court, Flying T objected to the Tribe’s

submission of documents outside the pleadings as improper to

the extent its motion was based on CR 12(b)(6). Flying T did not

assert that the Tribe could not rely on undisputed facts outside

the pleadings under CR 12(b)(1) and CR 12(b)(2), and did not

indicate that it disputed the extrinsic facts the Tribe proffered.

Washington authority supports converting CR 12(b)(1) and CR

12(b)(2) motions to summary judgment motions if they rely on

matter extrinsic to the pleadings. See Ace Novelty Co. v. M.W.

Kasch Co., 82 Wn.2d 145, 146, 152, 508 P.2d 1365 (1973) (noting

the superior court considered the moving party’s affidavit that

stated at no time had it done business within Washington and

treated the CR 12(b) motion for lack of personal or subject matter

jurisdiction as a motion for summary judgment); Puget Sound

Bulb Exch. v. Metal Bldgs. Insulation, Inc., 9 Wn. App. 284, 289,

513 P.2d 102 (1973) (“If matters outside the pleadings are

presented to the court on a motion to dismiss for lack of personal

jurisdiction under CR 12(b)(2) the motion is to be treated as a

motion for summary judgment.”). Thus, any error in the

consideration of extrinsic evidence lay only in the timing of

41a

¶7 The superior court granted the Tribe’s motion to

dismiss pursuant to CR 12(b)(1)-(3) and CR 12(b)(6)

and dismissed the action with prejudice. The court

denied Flying T’s motion for reconsideration. Flying

T filed a notice of appeal or discretionary review

directed to the Washington Supreme Court. The

Washington Supreme Court transferred the appeal to

this court. After Flying T filed its initial notice of

appeal, it sought clarification in the superior court

based on Snohomish County’s conveyance of its parcel

to the Tribe. The superior court entered a further

order dismissing Snohomish County from the case and

dismissing all claims against the Tribe based on tribal

sovereign immunity. A commissioner of this court

accepted Flying T’s amended notice of appeal and

denied the Tribe’s motion to dismiss the appeal on

timeliness grounds.

¶8 On appeal, Flying T contends the Tribe’s

sovereign immunity does not extend to Flying T’s

claims, arguing they fall within a traditional

exception to the doctrine of sovereign immunity for

“‘immovable property.’” The Tribe disputes that an

immovable property exception was ever “universally

applied” to assertions of sovereign immunity and

further argues the justifications for such a rule do not

apply in the case of a domestic tribe. The Tribe asserts

that, in the absence of its consent to suit, only

hearing the motion to dismiss, which was heard as an ordinary

civil motion, instead of with the 28 calendar days’ notice afforded

for a summary judgment motion under CR 56. Flying T

articulates no prejudice based on the timing of the proceedings

before the superior court and does not object to the consideration

of these submissions on appeal.

42a

Congress can abrogate its immunity.3 Whether tribal

sovereign immunity applies is a question of federal

law this court reviews de novo. Auto. United Trades

Org. v. State, 175 Wn.2d 214, 222, 226, 285 P.3d 52

(2012).

¶9 Past Washington authority permitted quiet title

claims like Flying T’s against tribes, recognizing an

“in rem” exception to tribal sovereign immunity.

Anderson & Middleton Lumber Co. v. Quinault Indian

Nation, 130 Wn.2d 862, 869, 929 P.2d 379 (1996), held

the superior court had in rem jurisdiction over the

plaintiff’s lawsuit based on the language of the Indian

General Allotment Act of 1887, 25 U.S.C. §§ 331-358,

repealed in part by Pub. L. No. 106-462, 114 Stat.

1991 (2000), and County of Yakima v. Confederated

Tribes & Bands of Yakima Indian Nation, 502 U.S.

251, 252, 112 S. Ct. 683, 116 L. Ed. 2d 687 (1992).

Relying on Anderson, Smale v. Noretep, 150 Wn. App.

476, 484, 208 P.3d 1180 (2009), held that exercising

jurisdiction over in rem proceedings did not implicate

tribal sovereign immunity and, therefore, a quiet title

claim based on adverse possession could proceed

against a tribe. But the rationale of these authorities

was disavowed in Upper Skagit Indian Tribe v.

Lundgren, 584 U.S. 554, 558, 138 S. Ct. 1649, 200 L.

Ed. 2d 931 (2018), which held Yakima did not justify

an in rem exception to tribal sovereign immunity.

Yakima interpreted the General Allotment Act to

allow the imposition of in rem state taxes on land that

had been fee-patented under that law. Id. at 559.

The court received amicus curiae briefs supporting

affirmance from the Sauk-Suiattle, Jamestown S'Klallam,

Kalispel, Makah, Nooksack, Port Gamble S'Klallam, Puyallup,

Quinault, Samish, Snoqualmie, Squaxin Island, and Suquamish

Tribes.

43a

Yakima was a statutory interpretation case that

“sought only to interpret a relic of a statute in light of

a distinguishable precedent; it resolved nothing about

the law of sovereign immunity.” Id. Because tribal

sovereign immunity is a question of federal law and

the United States Supreme Court has disavowed the

interpretation of federal law on which Anderson and

Smale relied, those decisions do not now determine

the outcome here. Indeed, Flying T argues that they

are consistent with its argument, but it does not argue

that they are controlling.4

III

¶10 Tribes “possess the ‘common-law immunity

from suit traditionally enjoyed by sovereign powers.’”

Lac du Flambeau Band of Lake Superior Chippewa

Indians v. Coughlin, 599 U.S. 382, 387, 143 S. Ct.

1689, 216 L. Ed. 2d 342 (2023) (quoting Santa Clara

Pueblo v. Martinez, 436 U.S. 49, 58, 98 S. Ct. 1670, 56

L. Ed. 2d 106 (1978)). The United States Supreme

Court has “repeatedly emphasized that tribal

sovereign immunity, absent a clear statement of

congressional intent to the contrary, is the ‘baseline

position.’” Id. (quoting Michigan v. Bay Mills Indian

Cmty., 572 U.S. 782, 790, 134 S. Ct. 2024, 188 L. Ed.

2d 1071 (2014)). “[T]he suability of . . . the Indian

Nations, whether directly or by cross-action, depends

upon affirmative statutory authority.” United States

v. U.S. Fid. & Guar. Co., 309 U.S. 506, 514, 60 S. Ct.

If the United States Supreme Court had not clearly

disavowed Anderson’s rationale, it would remain binding on this

court. A decision by the Washington Supreme Court is binding

on all lower courts in the state. 1000 Va. Ltd. P’ship v. Vertecs

Corp., 158 Wn.2d 566, 578, 146 P.3d 423 (2006).

44a

653, 84 L. Ed. 894 (1940). “Congress has consistently

reiterated its approval of the immunity doctrine.”

Okla. Tax Comm’n v. Citizen Band Potawatomi

Indian Tribe of Okla., 498 U.S. 505, 510, 111 S. Ct.

905, 112 L. Ed. 2d 1112 (1991). “[T]ribal immunity is

a matter of federal law and is not subject to

diminution by the States.” Kiowa Tribe of Okla. v.

Mfg. Techs., Inc., 523 U.S. 751, 756, 118 S. Ct. 1700,

140 L. Ed. 2d 981 (1998). A court must dismiss an

action against a tribe if entertaining it would

contravene the tribe’s federal tribal sovereign

immunity. Bay Mills, 572 U.S. at 791. Tribal

sovereign immunity may be waived by a tribe or

abrogated by Congress, id. at 788-89, but the parties

do not assert that either has occurred here.

¶11 The United States Supreme Court has applied

tribal sovereign immunity in settings otherwise

governed by federal statutory law, not confined to

tribal lands, and involving commercial activities. In

Santa Clara Pueblo, the plaintiffs filed lawsuits

against a tribe under the Indian Civil Rights Act of

1968, 25 U.S.C. §§ 1301-1303. 436 U.S. at 52-53. The

Court held that in the absence of any “unequivocal

expression of contrary legislative intent,” sovereign

immunity barred the lawsuits against the Santa Clara

Pueblo Tribe. Id. at 58-59. In Kiowa, the Court

declined to “confine” tribal sovereign immunity to

reservations or to noncommercial activities and

deferred “to the role Congress may wish to exercise in

this important judgment.” 523 U.S. at 758. The Court

held the Kiowa Tribe enjoyed immunity from suits on

contracts,

whether

those

contracts

involve

governmental or commercial activities and whether

they were made on or off a reservation, because

Congress had not abrogated this immunity. Id. at

45a

760.

In Bay Mills, the Court held Congress’s

abrogation of tribal immunity in the Indian Gaming

Regulatory Act, 25 U.S.C. §§ 2701-2721, applied to

gaming on, but not off, tribal lands, so Michigan was

barred from suing Bay Mills to enjoin the operation of

a casino. 572 U.S. at 787, 804. The Court said, “[W]e

have time and again” treated tribal sovereign

immunity as settled law and dismissed any suit

against a tribe absent congressional authorization or

tribal waiver, and “[t]he baseline position, we have

often held, is tribal immunity.” Id. at 789-90. Under

Bay Mills, the Tribe is immune from Flying T’s claims

given the absence of the Tribe’s consent or abrogation

of its immunity by Congress.

¶12 Flying T concedes the Tribe has immunity but

argues its immunity does not extend to Flying T’s

claims to quiet title, because, Flying T says, its suit is

“outside the scope of the common law immunity.”

Flying T argues that under the immovable property

exception, “a sovereign who purchases property in the

territory of another sovereign does so in the character

of a private party and enjoys no immunity from suit in

actions regarding rights of possession or title to the

property.” But none of Flying T’s arguments establish

that an immovable property exception has ever

existed under which courts adjudicated claims

independently of the direction of the political branches

of government.

¶13 Flying T relies first on dicta in The Schooner

Exchange v. McFaddon, a case in which American

claimants asserted title to a ship that, by the time of

46a

their lawsuit, was “a national armed vessel,

commissioned by, and in the service of the emperor of

France.” 11 U.S. (7 Cranch) 116, 146, 3 L. Ed. 287

(1812). Extending immunity, the Court held it was “a

principle of public law, that national ships of war,

entering the port of a friendly power open for their

reception, are to be considered as exempted by the

consent of that power from its jurisdiction.” Id. at 14546. In dicta, based on the possibility of a court’s

exercising jurisdiction over a foreign sovereign’s

property in its territory, the Court said, “A prince, by

acquiring private property in a foreign country, may

possibly be considered as subjecting that property to

the territorial jurisdiction; he may be considered as so

far laying down the prince, and assuming the

character of a private individual.” Id. at 145. Based

on this language, Flying T argues that in acquiring

nontribal land on the open market in Washington, the

Tribe comes to the land as a private party subject to

the territorial jurisdiction of the Washington courts.

¶14 This argument overlooks the reasoning of The

Schooner Exchange and the next century and a half of

American practice. The Court in The Schooner

Exchange never doubted the authority of a territorial

sovereign over foreign sovereigns and their property

within its territory and, thus, over the ship in

question:

The jurisdiction of the nation within its own

territory is necessarily exclusive and absolute.

It is susceptible of no limitation not imposed by

itself. Any restriction upon it, deriving validity

from an external source, would imply a

diminution of its sovereignty to the extent of

the restriction, and an investment of that

47a

sovereignty to the same extent in that power

which could impose such restriction.

All exceptions, therefore, to the full and

complete power of a nation within its own

territories, must be traced up to the consent of

the nation itself. They can flow from no other

legitimate source.

Id. at 136. But the existence of this authority did not

determine whether the judicial branch would exercise

it.

¶15 As the Court later explained, “[F]oreign

sovereign immunity is a matter of grace and comity on

the part of the United States, and not a restriction

imposed by the Constitution.” Verlinden BV v. Cent.

Bank of Nigeria, 461 U.S. 480, 486, 103 S. Ct. 1962,

76 L. Ed. 2d 81 (1983). “[A] major consideration for

the rule enunciated in The Schooner Exchange is the

embarrassing consequences which judicial rejection of

a claim of sovereign immunity may have on diplomatic

relations.” Nat’l City Bank of N.Y. v. Republic of

China, 348 U.S. 356, 360-61, 75 S. Ct. 423, 99 L. Ed.

389 (1955).

The doctrine of foreign sovereign

immunity “is one of implied consent by the territorial

sovereign to exempt the foreign sovereign from its

‘exclusive and absolute’ jurisdiction, the implication

deriving from standards of public morality, fair

dealing, reciprocal self-interest, and respect for the

‘power and dignity’ of the foreign sovereign.” Id. at

362 (quoting The Schooner Exch., 11 U.S. at 136-37,

143-44).

¶16 It became the practice of American courts to

defer to the political branches on whether to take

jurisdiction over actions against foreign sovereigns.

Verlinden, 461 U.S. at 486. Until legislation by

48a

Congress discussed below, “the State Department”

was “the normal means of suggesting to the courts

that a sovereign be granted immunity from a

particular suit.”5 Nat’l City Bank, 348 U.S. at 360.

The State Department urged a state court to extend

immunity in at least one reported case involving a

title dispute. In Knocklong Corp. v. Kingdom of

Afghanistan, the Kingdom of Afghanistan had

acquired fee ownership of real property in Kings

Point, New York. 6 Misc. 2d 700, 700, 167 N.Y.S.2d

285 (Nassau County Ct. 1957). The plaintiff claimed

competing title based on a tax deed. Id. Because

Afghanistan used the property “to house the person of

the Chief Representative of Afghanistan to the United

Nations” and “to serve as the office of, and repository

of records for, the Permanent Delegation of

Afghanistan to the United Nations,” the State

Department urged the New York state court to

dismiss the action as barred by foreign sovereign

immunity. Id. at 700-01. The court did so, explaining,

“[I]f the claim of immunity is recognized and allowed

by the executive branch of the government, in this

case the Department of State, it is then the duty of the

court to accept such claim upon appropriate

suggestion made by the Attorney General of the

United States.” Id. at 701 (citing Compania Espanola

de Navegacion Maratima, SA v. The Navemar, 303

U.S. 68, 74, 58 S. Ct. 432, 82 L. Ed. 667 (1938)).

In some cases, foreign sovereigns did not make requests to

the State Department but asked the courts to extend immunity.

Verlinden, 461 U.S. at 487-88. The question here is not whether

a tribe might voluntarily subject itself to a court’s determination

of its immunity but may insist on leaving that decision to the

branch the United States Supreme Court has repeatedly held has

the prerogative to make it—Congress.

49a

¶17 Flying T argues that Knocklong merely reflects

an “exception to the exception” under which title

disputes remained generally justiciable except in

cases of diplomatic or consular property. But under

Restatement (Second) of Foreign Relations Law of the

United States § 77(4) (Am. L. Inst. 1965),6 diplomatic

premises were not exempt from determinations of title

but only from “prescription or enforcement of any tax

or levy of the receiving state.” A deed of trust might

be foreclosed, for instance, but regaining possession

depended on the territorial state resorting to “the

ultimate sanction of termination of diplomatic status.”

Restatement (Second) § 77 cmt. e at 243; see also

Cayuga Indian Nation of N.Y. v. Seneca County, 978

F.3d 829, 840 (2d Cir. 2020) (unnecessary to

determine whether immovable property exception

applied because, even if it did, county’s tax

enforcement proceedings fell “comfortably within the

absolute immunity from execution of judgment that

foreign sovereigns traditionally enjoyed at common

law”); City of New York v. Permanent Mission of India

to United Nations, 446 F.3d 365, 371 (2d Cir. 2006)

(international convention still limits execution that

would threaten a foreign sovereign’s possession), aff’d

and remanded, 551 U.S. 193, 127 S. Ct. 2352, 168 L.

Ed. 2d 85 (2007); HAZEL FOX & PHILIPPA WEBB, THE

LAW OF STATE IMMUNITY 484 (3d ed. 2015) (“State

immunity continues to bar to a very large extent the

The Restatement (Second) was the most recent restatement

of foreign relations law when Congress enacted the Foreign

Sovereign Immunities Act of 1976, 28 U.S.C. §§ 1602-1611, and

is therefore evidence of international practice predating the

statute. See Permanent Mission of India to United Nations v.

City of New York, 551 U.S. 193, 200, 127 S. Ct. 2352, 168 L. Ed.

2d 85 (2007).

50a

enforcement of judgments given by such courts

against foreign States.”). Under the Restatement

(Second), sovereign immunity should not have

protected the Kingdom of Afghanistan from a state

court determination of title, though it would have

afforded protection from execution of any judgment.

The relevant point of Knocklong is that pursuant to

then-current law the court abstained from

adjudicating title against the foreign power at the

direction of the executive branch.

¶18 In context, the dicta in The Schooner Exchange

Flying T relies on establishes only that a territorial

sovereign possesses authority over persons and

property within its territory, including foreign

sovereigns and their property.7 The Court did not

The Enlightenment era sources on which The Schooner

Exchange drew, see Upper Skagit, 584 U.S. at 567-69 (Thomas,

J., dissenting), focused on the authority of the territorial courts,

not the conditions justifying the exercise of that authority, and

equally recognized the authority of the political branches to

direct that the courts extend immunity or not based on a political

determination of national interest. These sources date from

before modern states, and looked at the issue initially through

the lens of the authority of territorial courts over the persons of

monarchs and their legates. The Schooner Exchange cites

Emmerich de Vattel as maintaining, “‘It is impossible to conceive’

. . . ‘that a Prince who sends an ambassador or any other minister

can have any intention of subjecting him to the authority of a

foreign power.’” 11 U.S. at 143 (quoting EMMERICH DE VATTEL,

THE LAW OF NATIONS bk. 4, ch. 7, § 92 (1805)); see also ERNEST K.

BANKAS, THE STATE IMMUNITY CONTROVERSY IN INTERNATIONAL

LAW 34-38 (2d ed. 2022) (tracing 18th century discussions of

immunity to medieval sources and ancient Roman law protecting

the persons of imperial Roman legates). The Schooner Exchange

dicta on which Flying T relies seems directed to the statement of

Bynkershoek’s, more recently translated into English, that

“[t]hrough the practice of nations it has been established that

51a

examine the circumstances in which territorial courts

would proceed to adjudicate the ownership of property

within their territory claimed by a foreign sovereign,

or support that courts should do so independently of

the direction of the political branches of government.

Granted, after The Schooner Exchange, American

courts did not defer absolutely to the suggestion of the

property which a prince has purchased for himself in the

dominions of another or has acquired through inheritance or in

any other way, shall be treated just like the property of private

individuals and shall be subject in equal degree to burdens and

taxes.” CORNELIUS VAN BYNKERSHOEK, DE FORO LEGATORUM

LIBER SINGULARIS 22 (G. Laing transl. 1946). This statement

appears to have been made in discussion of securing personal

jurisdiction through attachment of property, but in any event

Bynkershoek then described cases in which immunity was

directed by political branches of government. The first was a case

refusing to attach moneys on deposit by the German emperor.

Id. at 22-23. Although Bynkershoek criticized the decision, he

said this was because the decision to extend immunity based on

a political determination is not appropriately made by the

judicial department. Id. at 23. He next described a case

involving Spanish warships, relied on by The Schooner

Exchange, 11 U.S. at 145, in which the court issued an

attachment but on protest of the Spanish ambassador the

legislature extended immunity, BYNKERSHOEK, supra, at 23, and

a case in which the legislature refused consent to attach the

property of the countess of the Palatinate, id. He described three

more cases concerning the elector of Brandenburg, the Venetian

Republic, and the Duke of Mecklenburg in which the legislature

expressly allowed suits to proceed, and another involving the

king of Prussia in which the case proceeded with the king’s

consent. Id. at 24-25. These cases all support the thesis that a

foreign sovereign is subject to the authority of the territorial

courts but the decision whether to exercise that authority in

specific cases depends on the direction of the political branches

of government. This comports with United States Supreme

Court precedent and the Tribe’s position that only Congress can

abrogate tribal sovereign immunity.

52a

State Department.

In Berizzi Brothers Co. v.

Steamship Pesaro, 271 U.S. 562, 576, 46 S. Ct. 611, 70

L. Ed. 1088 (1926), the Court extended immunity to

an Italian government-owned vessel engaged in

commerce, despite the State Department’s view that

such vessels were not entitled to immunity, see

Michael H. Cardozo, Sovereign Immunity:

The

Plaintiff Deserves a Day in Court, 67 HARV. L. REV.

608, 609 (1954). But diverging from the direction of

the State Department was the exception. Id. at 608;

FOX & WEBB, supra, at 146. The Schooner Exchange

does not support, and Flying T does not show, any

history of the judiciary invoking the immovable

property exception against a foreign nation to disallow

foreign sovereign immunity without regard to the

direction of the political branches.8

Flying T’s position problematically calls for a

nondeferential, judicially established outer boundary on the

immunity generally accorded to foreign sovereigns. It is not

surprising that it supports this position exclusively with

secondary sources generally recognizing the need for territorial

courts to retain the authority to determine such matters as

title—a proposition with which we have no quarrel—but cites no

history of the judiciary of any nation routinely exercising such

authority against fellow nations without regard to its political

authorities’ direction. The Schooner Exchange runs against the

proposition that the judicial branch might decide on its own and

without the counsel of the political branches to adjudicate a

foreign sovereign’s interest in property within the United States.

After all, it was a case in which the government appeared to urge

the Court to extend immunity. The Schooner Exch., 11 U.S. at

117-18, 147. The American ship at issue had been taken

unlawfully as part of Napoleon’s efforts to impose a blockade

against Britain, a policy that had caused resentment among

dispossessed American shipowners. See GAMAL MOURSI BADR,

STATE IMMUNITY: AN ANALYTICAL AND PROGNOSTIC VIEW 10-14

53a

¶19 Flying T points to a statutory provision

allowing real property claims against foreign

sovereigns. Congress codified the law of foreign

sovereign immunity in the Foreign Sovereign

Immunities Act of 1976 (FSIA), 28 U.S.C. §§ 16021611. Verlinden, 461 U.S. at 488. The FSIA contains

an exception to immunity providing that a foreign

state shall not be immune in any case in which “rights

in immovable property situated in the United States

are in issue.” 28 U.S.C. § 1605(a)(4). This provision

was “meant ‘to codify . . . the pre-existing real

property exception to sovereign immunity recognized

by international practice.’” Permanent Mission of

India, 551 U.S. at 200 (alteration in original) (quoting

Asociacion de Reclamantes v. United Mexican States,

237 U.S. App. D.C. 81, 735 F.2d 1517, 1521 (1984)).

Under both theories of foreign sovereign immunity

prevailing at the time,9 “proceedings relating to

(1984). But with war with the United Kingdom imminent—the

War of 1812 was declared only three months after the decision in

The Schooner Exchange—it was “politically inconceivable” that

the American judiciary would seize a French warship to return

it to its rightful American owners. Id. at 14. It is not difficult to

imagine the State Department in Knocklong having similarly

compelling concerns about a court proceeding against property

claimed by the Kingdom of Afghanistan amidst 1950s Cold War

tensions with the former Soviet Union. A nondeferential

immovable property exception declaring such claims outside the

scope of immunity would put such concerns beyond judicial

accommodation.

The Schooner Exchange came to be regarded as extending

“virtually absolute” immunity to foreign sovereigns. Verlinden,

461 U.S. at 486. In 1952, the State Department’s “Tate Letter”

announced the United States’ “decision to join the majority of

other countries by adopting the ‘restrictive theory’ of sovereign

54a

immovables located in the territory of the forum

State” fell within one of the “earliest widely accepted

exceptions to State immunity.” FOX & WEBB, supra,

at 427. As framed in Restatement (Second) § 68, “The

immunity of a foreign state . . . does not extend to . . .

(b) an action to obtain possession of or establish a

property interest in immovable property located in the

territory of the State exercising jurisdiction.”

¶20 But as Knocklong showed, no such rule was

followed to the exclusion of the direction of the

political branches. Foreign nations “often placed

diplomatic pressure on the State Department in

seeking immunity.” Verlinden, 461 U.S. at 487. In

some cases, “political considerations led to

suggestions of immunity in cases where immunity

would not have been available” under the prevailing

theory. Id. Thus, even proponents of the restrictive

view of immunity acknowledged that the practical

inability to enforce judgments against coequal nations

explained why questions of immunity turned on

determinations of the political branches: the “‘general

inability of the judicial power to enforce its decisions’”

against foreign sovereigns prompts questions that are

“‘rather questions of policy than of law,’” and “‘for

diplomatic rather than legal discussion.’” FOX &

immunity, under which ‘the immunity of the sovereign is

recognized with regard to sovereign or public acts (jure imperii)

of a state, but not with respect to private acts (jure gestionis).’”

Permanent Mission of India, 551 U.S. at 199 (quoting Letter from

Jack B. Tate, Acting Legal Adviser, U.S. Dep’t of State, to Acting

U.S. Attorney General Phillip B. Perlman (May 19, 1952) (Tate

Letter), reprinted in 26 DEP’T OF STATE BULL. 984 (1952), and in

Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682,

711, 712, 96 S. Ct. 1854, 48 L. Ed. 2d 301 (1976) (appendix 2 to

opinion of the Court)). The FSIA was meant to codify the

restrictive theory. Id.

55a

WEBB, supra, at 32 (quoting The Schooner Exch., 11

U.S. at 146). With the passage of the FSIA, the former

practice of looking to executive suggestion on a caseby-case basis gave way to determining the availability

of immunity at Congress’s direction. The parties

agree the FSIA does not extend to tribes, but this only

further justifies deferring to Congress’s different

approach to tribal sovereign immunity.

¶21 In the absence of comprehensive legislation by

Congress regulating tribal sovereign immunity, the

United States Supreme Court has upheld tribal

sovereign immunity for claims for which the FSIA

clearly waived foreign nations’ immunity, such as for

commercial claims. Compare 28 U.S.C. § 1605(a)(2)

(exception to immunity for “commercial activity

carried on in the United States”), with Kiowa, 523

U.S. at 760 (“Tribes enjoy immunity from suits on

contracts,

whether

those

contracts

involve

governmental or commercial activities and whether

they were made on or off a reservation.”). Kiowa

contrasted Congress’s more limited waiver of tribal

sovereign immunity compared to its treatment of

foreign sovereigns, and cautioned, “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.” Id. at 759.

¶22 Congress periodically revisits tribal sovereign

immunity. After Kiowa, Congress “considered several

bills to substantially modify tribal immunity in the

commercial context,” but instead of these “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

56a

approval.” Bay Mills, 572 U.S. at 801-02 (citing

Indian Tribal Economic Development and Contract

Encouragement Act of 2000, § 2, 114 Stat. 46 (codified

at 25 U.S.C. § 81(d)(2))). And again, “[j]ust eight

months after the Supreme Court issued its decision in

[Upper Skagit], Congress reaffirmed its approval of

tribal immunity in the context of a statute that,

among other things, authorizes Indian tribes to grant

rights of way over their land for energy resource

development.” Self v. Cher-Ae Heights Indian Cmty.

of Trinidad Rancheria, 60 Cal. App. 5th 209, 221, 274

Cal. Rptr. 3d 255 (2021) (citing Pub. L. No. 115-325,

tit. I, §§ 103(a), 105(d) (Dec. 18, 2018), 132 Stat. 4447,

4454, codified at 25 U.S.C. § 3504(i)), cert. denied, 142

S. Ct. 1107 (2022). The real property exception in the

FSIA, even when characterized as a codification of

common law, does not support imposition of a similar

limitation on tribal sovereign immunity by the judicial

branch without regard to Congress’s direction.

¶23 Quoting Asociacion de Reclamantes, 735 F.2d

at 1521, Flying T invokes a territorial sovereign’s

“‘primeval’” interest in resolving title disputes within

its domain. In Asociacion de Reclamantes, then-Judge

Scalia wrote that the immovable property exception in

the FSIA stemmed from the fact that “[a] territorial

sovereign has a primeval interest in resolving all

disputes over use or right to use of real property

within its own domain,” because “‘[a] sovereignty

cannot safely permit the title to its land to be

determined by a foreign power.’”

Id. (quoting

1 FRANCIS WHARTON, CONFLICT OF LAWS § 278, at 636

(3d ed. 1905)). The specter of a foreign sovereign

laying claim to another’s domestic realm and claiming

57a

immunity from adjudication of title is complemented

by the local action rule, which places venue to

determine title exclusively in the local forum. Id. at

1521-22. It is clearly necessary that the territorial

sovereign reserve the authority to determine title

disputes notwithstanding a foreign putative owner’s

claims of immunity, because the operation of the local

action rule would leave no forum competent to

determine title. Id. at 1522. But this fails to justify

departure from deferring the question of the Tribe’s

immunity to Congress for two reasons. First, as

discussed above, that the territorial sovereign retains

the authority to determine title does not mandate that

it must necessarily do so at the behest of any claimant,

at any time, apart from considerations reserved to its

political branches. Second, the Tribe’s claim of

immunity is subject to abrogation domestically by

Congress, so it poses no threat to the properly defined

dual sovereignty governing this land.

¶24 “[W]hen the States entered the federal system,

they renounced their right to the ‘highest dominion in

the lands comprised within their limits.’” PennEast

Pipeline Co. v. New Jersey, 594 U.S. 482, 502, 141 S.

Ct. 2244, 210 L. Ed. 2d 624 (2021) (quoting Cherokee

Nation v. S. Kan. Ry. Co., 135 U.S. 641, 656, 10 S. Ct.

965, 34 L. Ed. 295 (1890)). Washington is the relevant

sovereign for purposes of substantive real property

law. See Munday v. Wisc. Tr. Co., 252 U.S. 499, 503,

40 S. Ct. 365, 64 L. Ed. 684 (1920) (“Where interstate

commerce is not directly affected, a State may forbid

foreign corporations from doing business or acquiring

property within her borders except upon such terms

as those prescribed by the Wisconsin statute.”);

United States v. Fox, 94 U.S. (4 Otto) 315, 320, 24 L.

Ed. 192 (1876) (“The power of the State to regulate the

58a

tenure of real property within her limits, and the

modes of its acquisition and transfer, . . . is

undoubted.”). But Washington is not the exclusive

sovereign for a purpose touching a federal concern. As

Verlinden explained, in addition to codifying the law

of foreign sovereign immunity, the FSIA permissibly

guaranteed foreign sovereigns the right to remove any

civil action from a state court to a federal court

because of “‘the potential sensitivity of actions against

foreign states and the importance of developing a

uniform body of law in this area.’” 461 U.S. at 489

(quoting H.R. REP. NO. 94-1487, at 32 (1976)).

¶25 Verlinden held that, even in the absence of a

federal claim, id. at 483, “an action against a foreign

sovereign arises under federal law, for purposes of

Art. III jurisdiction,” id. at 494 (citing U.S. CONST. art.

III). This followed from Congress’s “authority over

foreign commerce and foreign relations,” and the

recognition that “[a]ctions against foreign sovereigns

in our courts raise sensitive issues concerning the

foreign relations of the United States, and the primacy

of federal concerns is evident.” Id. at 493. Thus, a

case brought against a foreign sovereign alleging a

state law quiet title claim and falling within the

immovable property exception of 28 U.S.C.

§ 1605(a)(4) would be originally cognizable in federal

court and removable if commenced in state court. Id.

at 488-89 & n.11. And, if the claim did not fall within

an FSIA exception, the foreign sovereign would be

assured immunity at Congress’s direction in both

federal and state courts. Id. at 489. Therefore, it is

already recognized that Washington’s sovereignty

over land within its boundaries is limited in that it

may entertain suits against foreign sovereigns, even

59a

those concerning real property, only to the extent

consistent with Congress’s direction.

¶26 The Tribe’s claim to immunity as allowed or

disallowed by Congress is no more an imposition on

Washington’s sovereignty than a foreign sovereign’s

entitlement to immunity as allowed or disallowed by

Congress under the FSIA. Congress’s authority over

the nation’s relationships with tribes is equally

“plenary” as its authority over foreign relations. Bay

Mills, 572 U.S. at 788; see also County of Oneida v.

Oneida Indian Nation of N.Y. State, 470 U.S. 226, 234,

105 S. Ct. 1245, 84 L. Ed. 2d 169 (1985) (“With the

adoption of the Constitution, Indian relations became

the exclusive province of federal law.”). Recognizing

the Tribe’s immunity does not cede any territorial

sovereignty, because the determination of title

remains subject to the state’s sovereignty over real

property law and the nation’s sovereignty over the

determination of the Tribe’s immunity.10

That Congress may abrogate tribal sovereign immunity at

will also answers any argument that honoring tribal sovereign

immunity in real property cases might open up avenues for

abuse. For instance, in Cass County Joint Water Resource

District v. 1.43 Acres of Land, a landowner in an area affected by

a forthcoming public works project deeded land to the Turtle

Mountain Band of Chippewa Indians, who subsequently claimed

immunity against condemnation. 2002 ND 83, 643 N.W.2d 685,

688. Relying, among other authorities, on Yakima and Anderson,

the court allowed the condemnation to proceed based on the now

discredited in rem exception. Id. at 692, 694. While not doubting

the sincerity of the Turtle Mountain Band that it had no designs

to frustrate public works, the court nevertheless expressed

concern over the uncertainty that could result from tribes having

what it called “veto power” over projects through the acquisition

of a small tract within a project. Id. at 694. But Congress’s

60a

¶27 Also lacking in the case of a tribe is the

rationale on whose basis the United States Supreme

Court has permitted certain actions by one state

against another. In Georgia v. City of Chattanooga,

the court held state sovereign immunity does not

extend to “[l]and acquired by one State in another

State.” 264 U.S. 472, 480, 44 S. Ct. 369, 68 L. Ed. 796

(1924). Georgia undertook the construction of a

railroad extending from Atlanta, Georgia, to

Chattanooga, Tennessee. Id. at 478. Tennessee

granted Georgia land for terminal facilities and the

right to acquire the necessary right-of-way from the

state line to Chattanooga. Id. Georgia did so, and

Chattanooga later sought to take land from a railroad

yard for a street. Id. at 478-79. The Court held the

power of Tennessee to take land for a street was not

impaired by the fact another state owned the land for

railroad purposes; acquiring land in another state for

a private purpose prevented Georgia from claiming

sovereign immunity. Id. at 479-80. “The terms on

plenary authority over tribal immunity provides a ready check

against assertions of immunity that Congress deems

inappropriate.

Underscoring

the

sensitive

political

considerations involved, 1.43 Acres rested its decision in part on

the fact the land at issue was not part of the Turtle Mountain

Band’s aboriginal land. Id. In contrast, the land at issue here is

part of the Tribe’s ancestral land, and the Tribe’s purposes in

acquiring it serve protected treaty rights to take fish for

ceremonial and subsistence purposes, and otherwise “‘in

common’” with nontreaty right fishermen, United States v.

Washington, 384 F. Supp. 312, 343 (W.D. Wash. 1974), aff’d and

remanded, 520 F.2d 676 (9th Cir. 1975), and to preserve its

heritage and culture. Balancing these profound interests against

the need to adjudicate state law property rights lies with

Congress.

61a

which Tennessee gave Georgia permission to acquire

and use the land and Georgia’s acceptance amount to

consent that Georgia may be made a party to

condemnation proceedings.” Id. at 480. But the

United States Supreme Court has not looked to the

law of state immunity to determine that held by tribes

and, to the contrary, has cautioned “the immunity

possessed by Indian tribes is not coextensive with that

of the States.” Kiowa, 523 U.S. at 756. As between

states, “[w]hat makes the States’ surrender of

immunity from suit by sister States plausible is the

mutuality of that concession. There is no such

mutuality with either foreign sovereigns or Indian

tribes.” Blatchford v. Native Vill. of Noatak, 501 U.S.

775, 782, 111 S. Ct. 2578, 115 L. Ed. 2d 686 (1991).

¶28 The baseline rule is that a tribe is immune

from suit unless it has consented to the suit or

Congress has waived its immunity. The foregoing

discussion shows that this baseline rule of deferring

the question of immunity to a political branch of the

national government parallels the immunity foreign

sovereigns have been granted in American courts. So

far, however, the discussion has assumed that the

Tribe’s immunity is properly determined by reference

to the law governing the relationship among nation

states foreign to one another. But tribes are not

foreign to this land, and the relationship between the

three domestic sovereignties implicated in this case

further counsels deference to Congress.

¶29 From time immemorial, ancestors of the Coast

Salish people dwelt along the rivers in the coastal and

riverine lands of Puget Sound. See BRUCE G. MILLER,

THE PROBLEM OF JUSTICE, TRADITION AND LAW IN THE

62a

COAST SALISH WORLD 1-2 (2001); cf. Upper Skagit, 584

U.S. at 556 (“Ancestors of the Upper Skagit Tribe lived

for centuries along the Skagit River in northwestern

Washington State.”). Fishing constituted a means of

subsistence for the tribal members in the area

embracing the Stillaguamish River and its north and

south forks, where the river system constituted the

usual and accustomed fishing places of the tribe.

United States v. Washington, 384 F. Supp. 312, 379

(W.D. Wash. 1974), aff’d and remanded, 520 F.2d 676

(9th Cir. 1975).

The Tribe was identified as

represented at the 1855 signing of the Treaty of Point

Elliott, id. at 378, and in that treaty the Coast Salish

tribes agreed to “cede, relinquish, and convey” the

lands of present day northwestern Washington to the

United States. Treaty Between the United States &

the Dwámish, Suquámish & Other Allied &

Subordinate Tribes of Indians in Washington, 12 Stat.

927, art. 1 (1855).11

When the treaties were negotiated, “the translation of the

English words was difficult because the interpreter used a

‘Chinook jargon’ to explain treaty terms, and that jargon not only

was imperfectly (and often not) understood by many of the

Indians but also was composed of a simple 300-word commercial

vocabulary that did not include words corresponding to many of

the treaty terms.” Washington v. Wash. State Com. Passenger

Fishing Vessel Ass’n, 443 U.S. 658, 667 n.10, 99 S. Ct. 3055, 61

L. Ed. 2d 823, modified sub nom. Washington v. United States,

444 U.S. 816, 100 S. Ct. 34, 62 L. Ed. 2d 24 (1979). Beyond the

problem of translation, the incoming American settler societies

sought the treaties with the “express intention of undermining

existing systems of leadership and spiritual values and practices”

of the Coast Salish in the hopes of “quickly opening the area to

settlement.” MILLER, supra, at 81, 93-94. Territorial Governor

Isaac Stevens and the treaty commission “were aware that

village leaders did not have authority beyond their families and

63a

¶30 The riparian lands of the Stillaguamish River

are essential to the Tribe’s interest in preserving its

heritage and culture.

“The anadromous fish

constitute a natural resource of great economic value

to the State of Washington,” and “when the relevant

treaties were signed, anadromous fish were even more

important to most of the population of western

Washington than they are today.” Washington v.

Wash. State Com. Passenger Fishing Vessel Ass’n, 443

U.S. 658, 664, 99 S. Ct. 3055, 61 L. Ed. 2d 823,

modified sub nom. Washington v. United States, 444

U.S. 816, 100 S. Ct. 34, 62 L. Ed. 2d 24 (1979).

Diminishing the force of Flying T’s reliance on

international law to avoid the Tribe’s immunity, these

considerations are recognized in international law in

its protecting from execution “property ‘of great

importance to the cultural heritage of every people.’”

FOX & WEBB, supra, at 532 (quoting Convention for

the Protection of Cultural Property in the Event of

Armed Conflict with Regulations for the Execution of

the Convention art. 1(a), May 14, 1954, T.I.A.S. No.

09-313.1 [https://perma.cc/UV2S-PDUH]).

¶31 This is particularly salient in regard to the

Tribe’s effort to regain lands its ancestors possessed

and whose management is essential to preserving its

friends,” and therefore completed the treaties “by designating

‘tribes and chiefs.’” OLYMPIC PENINSULA INTERTRIBAL CULTURAL

ADVISORY COMM., NATIVE PEOPLES OF THE OLYMPIC PENINSULA

10-12 (Jacilee Wray ed., 2d ed. 2015). And when settlers began

entering the Puget Sound region pursuant to the 1850s treaties,

Upper Skagit leaders who believed settlers were encroaching on

their lands were limited by territorial authorities to seeking

assistance from Congress. MILLER, supra, at 94-95. With these

background circumstances, the United States “has a

responsibility to avoid taking advantage of the other side.” Wash.

State Com. Passenger, 443 U.S. at 675-76.

64a

heritage and culture. The settlement of the 1850s

treaties covering most of present day Washington12

soon gave way to “Congress’s late Nineteenth Century

Indian policy: ‘to extinguish tribal sovereignty, erase

reservation boundaries, and force the assimilation of

Indians into the society at large.’” Upper Skagit, 584

U.S. at 558 (quoting Yakima, 502 U.S. at 254). Later,

Congress “reversed course” and sought to restore

“‘tribal self-determination and self-governance.’” Id.

(quoting Yakima, 502 U.S. at 255). In Self, the court

considered similar facts, where plaintiffs filed suit to

quiet title to a public easement over coastal land that

a tribe was seeking to bring into trust. 60 Cal. App.

5th at 213-15. The court explained that “supporting

tribal land acquisition is a key feature of modern

federal tribal policy, which Congress adopted after its

prior policy divested tribes of millions of acres of land.”

Id. at 219. Congress’s later reversal, among other

things, “empowers the federal government to take

land into trust for the benefit of a tribe.” Id. at 220

(citing 25 U.S.C. § 5108). Congress’s policy now

“advances tribes’ sovereign interests by helping them

restore land they lost.” Id.

¶32 When coupled with only targeted waivers of

tribal sovereign immunity, Self explained, “This

history weighs strongly in favor of deferring to

Congress to weigh the relevant policy concerns of an

immovable property rule in light of the government’s

solemn obligations to tribes, the importance of tribal

land acquisition in federal policy, and Congress’s

practice of selectively addressing tribal immunity

12 See Treaty of Medicine Creek, 10 Stat. 1132 (1854); Treaty

of Point Elliott, 12 Stat. 927 (1855); Treaty of Point No Point, 12

Stat. 933 (1855); Treaty of Neah Bay, 12 Stat. 939 (1855); Treaty

of Olympia, 12 Stat. 971 (1855).

65a

issues in property disputes.” Id. at 221. We agree,13

and the same is true here. Congress’s land acquisition

policy is especially relevant to riverine lands in the

Puget Sound region, where degradation of salmon

habitat and reduced abundance of salmon have

resulted in continuing cultural, social, and economic

harm to tribes. United States v. Washington, 20 F.

Supp. 3d 986, 1020-21 (W.D. Wash. 2013). The Tribe

has not indicated it has sought to take the land into

trust, but it nevertheless avers it obtained the land

with federal funds based on a commitment to protect

the land for salmon recovery, an effort essential to

preserving its culture and heritage. Deciding whether

to subject tribal land acquisition to private suits thus

requires

balancing

the

long-standing

and

preconstitutional interests of the tribes, and national

policy, against any competing state law property

interests. This shows why the United States Supreme

Court has deferred tribal sovereign immunity to

Congress.

¶33 That Flying T may lack a present judicial

remedy as long as the Tribe retains immunity is not a

basis to decide the question differently. The United

States Supreme Court has left open the possibility

that tribal sovereign immunity might bow to a

claimant lacking any alternative remedies. Bay Mills,

572 U.S. at 799 n.8. But it has rejected the proposition

that the elimination of a claimant’s “most efficient”

remedy is a ground to set aside tribal sovereign

immunity where there are “any adequate

alternatives.” Potawatomi, 498 U.S. at 514. Flying

13 We also agree with Self’s conclusion that Chattanooga and

The Schooner Exchange, together with related authorities, do not

support extending a common law exception for immovable

property to tribes. 60 Cal. App. 5th at 216-18.

66a

T’s remedy lies with Congress, and in this regard it is

similarly situated to litigants in much of the nation’s

history who have been dependent on the national

legislature’s decision whether to authorize a remedy

within its discretion to grant or withhold.

¶34 The United States claims the same immunity

from claims such as Flying T’s.14 See United States v.

Testan, 424 U.S. 392, 399, 96 S. Ct. 948, 47 L. Ed. 2d

114 (1976) (“It has long been established, of course,

that the United States, as sovereign, ‘is immune from

suit save as it consents to be sued . . . and the terms of

its consent to be sued in any court define that court’s

jurisdiction to entertain the suit.’” (alteration in

original) (quoting United States v. Sherwood, 312 U.S.

584, 586, 61 S. Ct. 767, 85 L. Ed. 1058 (1941))); United

States v. Alabama, 313 U.S. 274, 282, 61 S. Ct. 1011,

85 L. Ed. 1327 (1941) (“A proceeding against property

in which the United States has an interest is a suit

against the United States.”). Under the Quiet Title

Act, the United States allows some title claims to be

brought against it, but it does not permit title to be

determined against it “based upon adverse

possession.” 28 U.S.C. § 2409a(n). If the United

States had acquired the land neighboring Flying T’s

parcel—instead of using its funds to support the Tribe

to do so—Flying T would be limited to the remedies

traditionally available in the absence of a waiver of

sovereign immunity.

14 And Washington asserts the same prerogative. Gorman v.

City of Woodinville, 175 Wn.2d 68, 72, 283 P.3d 1082 (2012)

(“State-owned land is statutorily protected from claims of

adverse possession.”); State ex rel. Hamilton v. Superior Ct., 200

Wash. 632, 634-35, 94 P.2d 505 (1939) (allowing claim to set aside

deed allegedly procured by the State by fraud to proceed in

Cowlitz County rather than Thurston County).

67a

¶35 Before the Quiet Title Act, these remedies

furnished claimants asserting title to land claimed by

the United States “only limited means of obtaining a

resolution”—“they could attempt to induce the United

States to file a quiet title action against them, or they

could petition Congress or the Executive for

discretionary relief.” Block v. North Dakota ex rel. Bd.

of Univ. & Sch. Lands, 461 U.S. 273, 280, 103 S. Ct.

1811, 75 L. Ed. 2d 840 (1983). And for decades,

petitioning Congress through the “private bill

procedure” was the exclusive remedy for any claim

against the United States. United States v. Mitchell,

463 U.S. 206, 212-13, 103 S. Ct. 2961, 77 L. Ed. 2d 580

(1983). These same remedies are available to Flying

T. Given the right to seek relief from Congress, even

if doing so is inconvenient, and given Congress’s

history of periodic, targeted waivers of tribal

sovereign immunity, Flying T does not lack “any

adequate alternatives.” Potawatomi, 498 U.S. at 514.

¶36 “[I]t is fundamentally Congress’s job,” not the

judicial department’s, “to determine whether or how

to limit tribal immunity.” Bay Mills, 572 U.S. at 800.

To hold otherwise would impermissibly lessen tribal

sovereign immunity compared to the immunity

afforded foreign nations. Until Congress provides

otherwise, the Tribe has immunity from Flying T’s

claims, and the superior court properly dismissed

those claims. With this conclusion, it is not necessary

to reach any other issues raised by the parties.

¶37 Affirmed.

DWYER AND FELDMAN, JJ., concur.

Reconsideration denied July 31, 2024.

Review granted at 3 Wn.3d 1031 (2024).

68a

Filed April 11, 2023

SUPERIOR COURT OF WASHINGTON

IN AND FOR SNOHOMISH COUNTY

FLYING T RANCH, INC., a

Washington Corporation,

Case No.

Plaintiff, 22-2-07015-31

ORDER ON

STILLAGUAMISH TRIBE

MOTION FOR

OF INDIANS, a federally

CLARIFICATION

recognized Indian Tribe,

and

CERTIFICATION

SNOHOMISH COUNTY, a

Washington State Municipal FOR APPEAL

[ ] PROPOSED

Corporation,

Defendants. [X] FINAL ORDER

THIS MATTER, having come before the court on

the Plaintiff’s Motion for Clarification or Certification

for Appeal, the Court having reviewed the motion and

response by the Defendants, and being otherwise fully

advised in the premises, now, therefore, it is hereby

ORDERED, ADJUDGED, AND DECREED that

(check all that apply):

[X] Defendant Snohomish County is dismissed as a

party to this matter with prejudice.

[X] All claims against Defendant Stillaguamish

Tribe of Indians are dismissed with prejudice

due to Tribal sovereign immunity.

DONE IN OPEN COURT this 4th day of April,

2023.

/s/ Marybeth Dingledy

JUDGE DINGLEDY

69a

Presented by:

/s/ Raven Arroway-Healing

Raven Arroway-Healing, WSBA #42373

Attorney for Defendant Stillaguamish

Tribe of Indians

70a

Filed January 24, 2023

SUPERIOR COURT FOR THE

STATE OF WASHINGTON

IN AND FOR THE COUNTY OF SNOHOMISH

FLYING T RANCH, INC., a

Washington Corporation,

No. 22-2-07015-31

Plaintiff,

ORDER

DENYING

STILLAGUAMISH TRIBE

PLAINTIFF’S

OF INDIANS, a federally

MOTION FOR

recognized Indian Tribe,

RECONSIDERAand

TION

SNOHOMISH COUNTY, a

Washington State Municipal [ ] PROPOSED

Corporation,

[X] FINAL ORDER

Defendants.

THIS MATTER, having come before this court

upon Plaintiff’s Motion for Reconsideration of the

Courts grant of Defendants’ Motion to Dismiss and

this Court having examined Plaintiff’s written

motion, Defendant’s response, and all supporting and

opposing submissions, as well as the relevant

pleadings/papers on file and deeming itself fully

advised in the premises. IT IS HEREBY ORDERED

THAT Plaintiff’s Motion for Reconsideration is

DENIED.

DONE IN OPEN COURT this 23 day of January,

2023.

s/ Marybeth Dingledy

Honorable Marybeth Dingledy

71a

Presented by:

/s/ Raven Arroway-Healing

Raven Arroway-Healing, WSBA #42373

Attorney for Stillaguamish Tribe

72a

Filed December 22, 2022

SUPERIOR COURT FOR THE

STATE OF WASHINGTON

IN AND FOR THE COUNTY OF SNOHOMISH

FLYING T RANCH, INC., a

Washington Corporation,

No. 22-2-07015-31

Plaintiff,

ORDER

GRANTING

STILLAGUAMISH TRIBE

DEFENDANT

OF INDIANS, a federally

STILLAGUAMISH

recognized Indian Tribe,

TRIBE OF

and

INDIAN’S

SNOHOMISH COUNTY, a

Washington State Municipal MOTION TO

DISMISS

Corporation,

Defendants. [ ] PROPOSED

[X] FINAL ORDER

I. BASIS

This matter came before the Court upon the

Stillaguamish Tribe of Indian’s (“Tribe”) Motion to

Dismiss pursuant to CR 12 (B)(l), (2), (3), (6), and/or

(7). The court has reviewed the documents on the file

in the above captioned matter.

II. FINDINGS

The Court having reviewed the Tribe’s Motion to

Dismiss and relevant court records and having heard

oral argument today now finds:

[X] Plaintiff’s claims must be dismissed as the

Court lacks subject matter jurisdiction

pursuant to CR 12(B)(1) due to tribal sovereign

immunity.

73a

[X] Plaintiff’s claims must be dismissed for lack of

jurisdiction over person pursuant to CR

12(B)(2) due to tribal sovereign immunity.

[X] Plaintiff’s claims must be dismissed for

improper venue pursuant to CR 12(B)(3) due

to tribal sovereign immunity.

[X] Plaintiff’s claims must be dismissed for failure

to state a claim upon which relief can be

granted pursuant to CR 12(B)(6) due to tribal

sovereign immunity.

Plaintiff’s claims must be dismissed for failure to

join an indispensable party under CR 12(b)(7) for

failure to join the Stillaguamish Tribe of Indians

due to tribal sovereign immunity.

Plaintiff’s claims must be dismissed for failure to

join an indispensable party under CR 12(B)(7) for

failure to join Puget Sound Power & Light

company and/or its successor in interest which has

an interest in the property since 1935.

III. ORDER

Being fully advised on the matter, the Court does

hereby FIND and ORDER:

Stillaguamish Tribe of Indians Motion to

Dismiss is GRANTED.

The case is dismissed WITH PREJUDICE.

DATED this 20 day of Dec., 2022.

/s/ Marybeth Dingledy

JUDGE DINGLEDY

74a

Filed December 16, 2022

Hearing Date: December 20, 2022

Hearing Time: 9:30 a.m.

Department 5B

IN THE SUPERIOR COURT OF THE STATE OF

WASHINGTON

IN AND FOR THE COUNTY OF SNOHOMISH

FLYING T RANCH, INC., a

Washington Corporation,

No. 22-2-07015-31

Plaintiffs,

vs.

OBJECTIONS AND

PLAINTIFF’S

STILLAGUAMISH TRIBE

RESPONSE TO

OF INDIANS, a federally

recognized Indian Tribe, and DEFENDANTS

MOTION TO

SNOHOMISH COUNTY, a

Washington State Municipal DISMISS

Corporation,

Defendants.

I. OBJECTION

Plaintiff objects to Defendants’ Motion to Dismiss

based on its improper filing.

The Washington

Supreme Court has consistently held that, while

either party may submit documents not included in

the original complaint for the court to consider in

evaluating a CR 12(b)(6) motion, doing so generally

converts it into a motion for summary judgment.

McAfee v. Select Portfolio Servicing, Inc., 193 Wn. App.

220, 226, 370 P.3d 25, 29 (2016). Documents whose

contents are alleged in a complaint but which are not

physically attached to the pleading may be considered

in ruling on a CR 12(b)(6) motion to dismiss and the

court may take judicial notice of public documents if

75a

their authenticity cannot be reasonably disputed.

Rodriguez v. Loudeye Corp., 144 Wn. App. 709, 72526, 189 P.3d 168, 176 (2008). Here, Defendant

Stillaguamish Tribe of Indians (“The Tribe”) attached

to its motion three documents: (1) a 1935 express

easement granted to Puget Sound Power & Light

Company; (2) a declaration from the director of the

Tribe’s Department of Natural Resources; and (3) an

e-mail from the Tribe’s attorney to the undersigned.

None of these documents were alleged in the

complaint and the latter two are not a matter of public

record. The distinction matters.

In the context of summary judgment, courts view

all facts and inferences in a light most favorable to the

nonmoving party. Jones v. Allstate Ins. Co., 146

Wash.2d 291, 300, 45 P.3d 1068 (2002). Summary

judgment motions and any supporting affidavits,

memoranda of law, or other documentation must be

filed and served no later than 28 calendar days prior

to the hearing. CR 56(c). Here, the Tribe set the

hearing on its motion for just 13 calendar days after

filing and service. That is too few days’ notice by more

than half.

Plaintiff, as the nonmoving party, is entitled to the

full process afforded to it by the Civil Rules.

Defendant Tribe cannot so deprive an opposing

litigant of such protections by simply invoking CR

12(b)(6). Because Defendant Tribe failed to properly

follow summary judgment procedure, Plaintiff asks

this court to deny its motion to dismiss.

Plaintiff further objects to The Tribe’s

characterization of its complaint. The Tribe accuses

Plaintiff’s complaint of being disingenuous when it

Defendant Tribe as a Washington Nonprofit. There is

76a

nothing disingenuous about the complaint. The

Stillaguamish Tribe of Indians is a Washington

Nonprofit Corporation. See Exhibit 1. It is, in fact,

where Plaintiff found the appropriate address to effect

original service of process.

II. INTRODUCTION

This case is about the ownership of real property

located within the territory of the United States, in

the State of Washington, in the County of Snohomish.

Defendant Tribe absurdly argues that it has deprived

U.S. courts of jurisdiction over such real property for

no other reason than that it purchased it; even where

it has never, by operation of law, actually acquired

ownership over the Disputed Property. No court takes

this position.

To support its position, Defendant Tribe relies on a

gross misstatement of the import of the United States

Supreme Court ruling in Upper Skagit Indian Tribe v.

Lundgren and its impact on the caselaw of

Washington State. Lundgren does not prohibit all

assertions of In Rem jurisdiction to defeat a Tribe’s

assertion of sovereign immunity. Neither does it

overrule any Washington cases on the subject. The

Court’s of Washington State maintain subject matter

jurisdiction over real property located within its

boundaries, especially where (1) such property is not

on Indian Land and (2) ownership of the property

passed to an adverse possessor prior to a Tribe ever

acquiring title to it.

The Immovable Property Exception provides

another exception to The Tribe’s assertion of sovereign

immunity. When the Tribe purchased real property

located outside Indian Land and within the

boundaries of the United States, it acted as a private

77a

entity purchasing real property, thereby subjecting

itself to the laws of the United States, its political

subdivisions, and the jurisdiction of its courts. The

Tribe claims the Immovable Property exception to its

sovereign immunity does not apply because that

exception is based solely on a statute that does not

apply to native tribes because they are domestic

dependent nations.

First, the Immovable Property exception has a long

common law history that remains good law. Second,

if the Immovable Property exception does not apply,

then Native Tribes would have greater sovereign

immunity than even the United States, which acts as

their guardian. This is absurd and it is not the law.

This Court has personal jurisdiction over The Tribe by

virtue of the Immovable Property Exception.

The Tribe cannot undermine this case by claiming

immunity from this Court’s in personam jurisdiction

and then calling itself a necessary party. First, in

personam jurisdiction is not required because Plaintiff

seeks to assert its rights over the disputed property

for the purposes of this property; no one is seeking a

judgment against the Tribe personally and none can

be had absent its waiver of immunity. Second, The

Tribe never had ownership of the disputed land, it has

no interest in it; therefore, it is neither a necessary nor

an indispensible party. Third, even if The Tribe is

deemed a necessary party, equity and good conscience

dictate that this case proceeds.

Finally Defendant Tribe attempts to avoid this case

by claiming that Puget Sound Power & Light

(“PSP&L) holds an easement to the property for its

power lines which would be negatively impacted by

the requested relief and therefore it is a necessary

78a

party. This is a red herring. The complaint does not

seek to impinge on any easement rights from PSP&L,

which doesn’t have any power lines on the Disputed

Property anyway.

III. FACTS

The Complaint alleges the following undisputed

facts:

The Tribe acquired Snohomish County tax parcel

32061200301300 (“Stillaguamish Parcel”) on April 13,

2021 from the Clara A. Anderson Family Limited

Partnership, a private property owner. Prior to that

acquisition, this parcel was privately held and not

part of any Indian Land or Reservation.

Plaintiff Flying T Ranch (“Flying T”) is the legal

owner and fee title holder of Snohomish County tax

parcel 32061200300800 (“Flying T’s Parcel”), which is

located adjacent to the Disputed Property’s eastern

boundary. It acquired said parcel on July 15, 1991.

Since at least 1962, there has existed a barbed wire

fence (“The Fence”) which runs in a straight,

continuous line 50 feet from the center, and along the

south side of, the Burlington Northern, Inc. right-ofway (“BNSF ROW”) from Flying T’s parcel, to the

Stillaguamish Parcel, to Snohomish County parcel

number 32061200301200 (“County Parcel”) marking

the boundary line, enclosing, and separating the

portions of the County and Stillaguamish Parcels

located south of The Fence (“Disputed Property”) and

the portions of the County and Stillaguamish Parcels

located north of The Fence.

Since its 1991 acquisition of the Flying T Parcel,

Flying T. Ranch, Inc. has continuously repaired and

maintained The Fence, excluded all others from the

79a

Disputed Property without the permission of the title

holders and used the enclosed land to graze and keep

livestock. Flying T has had continuous and exclusive

possession of the Disputed Property and has

consistently treated the property as its own since

1991. Its possession has been actual, uninterrupted,

open, notorious, exclusive, and hostile to any claim of

right by all others.

Flying T Ranch, Inc. gained ownership of the

Disputed Property by adverse possession no later than

July 15, 2001, 20 years before The Tribe came on the

scene.

IV. ANALYSIS

While The Tribe predicates its motion to dismiss on

CR 12(b)(1),(2),(3),(6), and (7), its basis rests almost

entirely on The Tribes’ claim of absolute sovereign

immunity. It argues that The Tribe’s sovereign

immunity deprives this Court of: (1) subject matter

jurisdiction over the property, which makes venue

improper and deprives Plaintiff of any claim against

it; and (2) Personal jurisdiction over The Tribe, which

prevents Plaintiff from joining it, a necessary party, to

the suit. Setting aside the fact that The Tribe

converted its motion to a summary judgment when it

included materials extraneous to the Complaint, we

must recognize that this motion is essentially a

motion for judgment on the pleadings, especially give

The Tribe does not dispute any facts alleged in the

Complaint.

Washington Courts treat a motion for judgment on

the pleadings identically to a CR 12(b)(6) motion for

failure to state a claim. P.E. Sys., LLC v. CPI Corp.,

176 Wn.2d 198, 203, 289 P.3d 638, 641 (2012). On a

CR 12(b)(6) motion, no matter outside the pleadings

80a

may be considered, and the court in ruling on it must

proceed without examining depositions and affidavits.

Brummett v. Washington’s Lottery, 171 Wn. App. 664,

673-74, 288 P.3d 48, 53 (2012). A CR 12(b)(6) motion

“must be denied unless no state of facts which

plaintiff could prove, consistent with the complaint,

would entitle the plaintiff to relief on the claim

(emphasis added).” Halvorson v. Dahl, 89 Wn.2d

673, 674, 574 P.2d 1190 (1978). The plaintiff’s

inability to prove any set of facts must be “beyond

doubt.” See Haberman v. WPPSS, 109 Wn.2d 107,

120, 744 P.2d 1032 (1987). “Given this high standard,

CR 12(b)(6) motions should be granted sparingly and

with care where plaintiff’s allegations show on the

face of the complaint an insuperable bar to relief.”

Daniels v. State Farm Mut. Auto. Ins. Co., 193 Wn.2d

563, 571, 444 P.3d 582, 585 (2019).

“[A]ny

hypothetical situation conceivably raised by the

complaint defeats a CR 12(b)(6) motion if it is legally

sufficient to support plaintiff’s claim.” Halvorson, 89

Wn.2d at 674. A hypothetical situation can be, but

does not have to be, one the complaining party claims

to exist, and hypothetical facts can be from outside the

formal record. Id. at 674-75. The complaint alleges

facts sufficient to establish that Flying T adversely

possessed the Disputed Property no later than

July 15, 2001.

To establish ownership of a piece of property

through adverse possession, a claimant must prove

that his or her possession of the property was:

(1) open and notorious; (2) actual and uninterrupted;

(3) exclusive; (4) hostile and under a claim of right;

and (5) for a period of ten years. Shelton v. Strickland,

106 Wn. App. 45, 50, 21 P. 3d 1179, 1182 (2001).

Possession is established if it is such a character as a

81a

true owner would exhibit considering the nature and

location of the land in question. Id. Once an adverse

possessor has fulfilled the conditions of the doctrine,

title to the property vests in his or her favor. Gorman

v. City of Woodinville, 160 Wn. App. 759, 763, 249 P.3d

1040, 1042 (Div. 1, 2011), aff’d 175 Wn.2d 68 (2012).

The adverse possessor need not record or sue to

preserve his rights in the land adversely possessed.

Id. Rather, the law is clear that title is acquired upon

passage of the 10-year period. Id.

Here, the complaint alleges sufficient facts to

establish that Flying T acquired title to the Dispute

Property by operation of the law of adverse possession

no later than July 2001. It used and maintained the

fence to serve, in part, as a boundary separating the

north portions of the Tribe’s Parcel from that located

south of the BNSF ROW. This was done openly and

notoriously, continuously and without interruption,

excluding all others, adverse and hostile to the rights

of the true owner, and without the permission of the

owner of the property since it acquired the property in

1991: and by its predecessors in interest since 1962

(making title by adverse possession actually occurring

in 1972). These facts are not in dispute.

Thus, if The Tribe sovereign immunity argument

fails for any reason in anyway, then its motion fails

too. If there is subject matter jurisdiction, then

Snohomish County is the proper venue because the

Disputed Property is located in Snohomish County. If

there is subject matter jurisdiction, then there is no

CR 12(b)(6) failure to state a claim because the court

will have the authority to enter orders on this

straightforward adverse possession case. If the court

has subject matter jurisdiction, it doesn’t need in

personam jurisdiction because Plaintiff does not seek

82a

a judgment personally against the tribe. If the

Immovable Property doctrine applies, then the court

has both subject matter and in personam jurisdiction

because, in purchasing the property, The Tribe will

have subjected itself to the laws of this State and the

Jurisdiction of this Court.

1. This Court has subject matter jurisdiction

over the Disputed Property.

Subject matter jurisdiction exists where “the court

has the authority to adjudicate the type of controversy

in the action” Matter of Fleming, 129 Wn.2d 529, 533,

919 P.2d 66, 69 (1996). The superior court has original

jurisdiction in all cases at law which involve the title

or possession of real property. RCW 2.08.010.

In its efforts to strip the Court of this jurisdiction

over non-Indian real property within Snohomish

County, The Tribe grossly and egregiously misstates

the law. It claims that the United States Supreme

Court Opinion in Upper Skagit Indian Tribe v.

Lundgren overruled all Washington State Court

precedent recognizing an exception to tribal sovereign

immunity for adverse possession claims. This is not

at all what the Lundgren court said or did.

The Court was very clear why it took the case, what

it was doing, and what it was not doing. In the very

first sentence of the opinion, Justice Gorsuch, writing

for the majority, states that certiorari was granted to

resolve disagreement among lower court’s about the

significance of The U.S. Supreme Court’s decision in

County of Yakima v. Confederated Tribes and Bands

of Yakima Nation. Upper Skagit Indian Tribe v.

Lundgren, 138 S. Ct. 1649, 1651 (2018). Some courts,

Washington’s among them, misunderstood the

Yakima decision to establish an automatic exception

83a

to Tribal Sovereign Immunity based solely on the fact

that a proceeding is in rem. Id. at 1652. The entire

purpose in granting certiorari was to simply say that

“Yakima . . . resolved nothing about the law of

sovereign immunity. Id. at 1653. In other words, the

Ludngren [sic] Court is not saying there is no

exception to sovereign immunity based on in rem

proceedings, just that you cannot use Yakima as the

only means to do it. This is not the same thing as

saying that there is no exception to sovereign

immunity for adverse possession cases or that in rem

suits can never fall outside the scope of a tribe’s

sovereign immunity.

In fact, the court explicitly left to the Washington

Supreme Court on remand the determination of

alternate grounds for exceptions to a tribe’s sovereign

immunity other than Yakima. Id. at 1653 - 1654. It

is notable that the Lundgren opinion came out on

May 21, 2018. The Upper Skagit Tribe quitclaimed

the disputed parcel to the Lundgrens in settlement of

the dispute on July 26, 2018, and then it subsequently

moved the Washington State Supreme Court to

dismiss the case. Exhibit 2. Lundrgen [sic] did not

overturn Washington caselaw.

In Anderson & Middleton Lumber Company v.

Quinault Indian Nation, a lumber company brought

an action to partition and quiet title to fee-patented

lands within the Quinault Indian Reservation in

which it held five-sixths interest as a tenant-incommon. Anderson & Middleton Lumber Company v.

Quinault Indian Nation, 130 Wn.2d 862, 864 - 865,

929 P.2d 379 (1996). The property in question was

formerly tribal land held in trust by the United States

with federal restrictions on alienation. Id. at 865. It

acquired its fee simple status in 1958 when the United

84a

States issued a “fee-patent” under the Indian General

Allotment Act of 1887. Id. The sole question

presented to the Washington State Supreme Court,

was whether the Grays Harbor County Superior

Court retained jurisdiction after the tribe acquired the

interests of the 10 individual owners. Id. at 864. In

reaching its conclusion, the Court did not rely

exclusively on Yakima. In holding that the Grays

Harbor Superior Court retained jurisdiction to decide

ownership of the property, the Court reasoned that:

It is not disputed that the trial court had proper

jurisdiction over this action when it was filed.

The subsequent sale of an interest in the

property to an entity enjoying sovereign

immunity (Quinault Nation) is of no

consequence in this case because the trial

court’s assertion of jurisdiction is not over the

entity in personam, but over the property or the

“res” in rem. Because the res or property is

alienable and encumberable under a federally

issued fee patent, it should be subject to a state

court in rem action which nothing more than

divides it among its legal owners according to

their relative interests. Reacquisition of a

portion of the land by a federally recognized

Indian tribe does not alter this result because

tribal reacquisition of fee land does not affect

the land’s alienable status.

Id. at 873-874. This reasoning recognizes that even

historic Indian Land are subject to state court in rem

jurisdiction, where and because such land has been

made alienable and encumberable. The Court does

not lose that jurisdiction just because an Indian Tribe

purchased it. This reasoning stands with or without

Yakima.

85a

Here, the Disputed Property was not part of Indian

Land; it is has been subject to the laws of the State of

Washington and its courts and so it remains under

Anderson. Otherwise, there is nothing stopping a

Tribe from buying as much land as it can afford and

then shielding it from all claimants without even

applying to the federal government to make it part of

Indian trust land. This is not the law.

In Smale v. Noretep, Plaintiffs Smales initiated a

quiet title action in Snohomish County Superior Court

alleging that they acquired title through adverse

possession to the portion of the neighboring property,

owned by Noretep, a Washington State General

Partnership, which had been on their side of the

original fence line. Smale v. Noretep, 150 Wn. App.

476, 478, 208 P.3d 1180 (Div. 1, 2009) aff’d 150 Wn.

App. 476 (2009). After the Smales filed suit, Noretep

sold the property to the Stillaguamish Tribe of Indians

who promptly moved to dismiss the amended

complaint for lack of jurisdiction. Id. at 477.

The Washington Court of Appeals held that the

superior court’s continuing jurisdiction over the land

claimed by the Smales for the purposes of determining

ownership does not offend the Tribe’s sovereignty. Id.

In holding that the Smales’ claims were not barred,

the Washington State Supreme Court reasoned that

the doctrine of sovereign immunity does not apply

because (1) the proceedings were to determine rights

in the property at issue, (2) there is no potential to

deprive either party of land they rightfully own, and

(3) the Smales acquired title to the land in question

through adverse possession before The Tribe acquired

the property: parties seeking to quiet title to land they

allegedly own are not asserting claims against a

sovereign. Id. at 482 - 483 (emphasis added).

86a

Here, like in Smales and Anderson, the purpose of

this suit is to determine the rights in the Disputed

Property. And there is no potential to deprive The

Tribe of any land that rightfully belongs to it because

the whole purpose of the suit is to determine whether

it ever had any rights to the land to begin with. If it

is found, as is uncontested, that Flying T adversely

possessed the property prior to The Tribe’s purchase

of the land, then The Tribe never had any interest in

the Disputed Property. This Court has subject matter

jurisdiction over the Disputed Property.

Bay Mills is distinguishable in that it was a suit to

enjoin commercial gaming activities taking place off of

reservation land. The United States Supreme Court

ruled that there is no exception to sovereign immunity

based on where the tribe conducts it [sic] activities.

Michigan v. Bay Mills Indian Community, 572 U.S.

782, 785 (2014). That case was not about determining

the rights of ownership to land located in the territory

of the United States and not part of any Indian trust

lands. It was about the conduct of a tribe and whether

or not its sovereign immunity deprived the court of in

personam jurisdiction.

The Tribe misplaces its reliance on Hamaatsa, a

New Mexico Supreme Court case from 2016.

Hamaatsa involved the Bureau of Land Management

(BLM), an agency within the Department of the

Interior, conveying to Pueblo of San Felipe, fee simple

land, reserving for itself use a 40 foot wide strip of

land along an existing road. Hamaatsa, Inc. v. Pueblo

of San Felipe, 388 P.3d 977, 979 (NMSC, 2016). About

a year later, BLM conveyed that easement to the

Tribe. Id. Hamaatsa alleged in its complaint that the

easement was owned by BLM since 1906, the road was

constructed using public funds from at least 1935

87a

until the date of the complaint, Hamaatsa, Inc. and its

predecessors in interest used the road to access its

property, and it was a public road since at least 1935.

Id. at 979 - 980.

Hamaatsa urged the Court to recognize an

exception to the doctrine of sovereign immunity in

matters pertaining to the public’s use and access to

public roads located on fee-owned tribal lands without

tribal interference. Id. at 984. It premised its

arguments on the in rem nature of the proceedings.

Id. The New Mexico Supreme Court, relying on Bay

Mills refused to find such an exception based solely on

the fact that the suit involved land. Id. at 986. Such

an exception would have been novel because

Hamaatsa’s claim was based solely on the form of the

suit rather than its substance, which was that

Hamaatsa was seeking, to take property owned by the

Tribe under a theory unsupported by the law.

Hamaatsa alleged nothing that would undermine

the 2002 conveyance of the easement by the BLM to

the Tribe. And, in reality, its claim reduces to nothing

more than a prescriptive easement. But prescriptive

easements cannot be obtained against the federal

government. U.S. v. Vasarajs, 908 F.2d 443, 447 n.3

(9th Cir. 1990) and BLM is an agency of the federal

government.

So Hamaatsa never acquired any

interest of any kind in the conveyed property.

Moreover, being federal land, it never fell under the

jurisdiction of the State of New Mexico.

Here, unlike in Bay Mills there is no commercial

activity at issue. And unlike in Hamaatsa, Flying T’s

complete ownership interest in the Disputed Property

was established more than 20 years ago. The Tribe

has no interest in that property to protect.

88a

2. The immovable Property Exception applies

to The Tribe.

For centuries, there has been “uniform authority in

support of the view that there is no immunity from

jurisdiction with respect to actions relating to

immovable property.” Lauterpacht, The Problem of

Jurisdictional Immunities of Foreign States, 28 Brit.

Y.B. Int’l Law 220, 244 (1951). The immovableproperty exception is a corollary of the ancient

principle of lex rei sitae. Sometimes called lex situs or

lex loci rei sitae, the principle provides that “land is

governed by the law of the place where it is situated.”

F. Wharton, Conflict of Laws § 273, p. 607 (G. Parmele

ed., 3d ed. 1905). It reflects the fact that a sovereign

“cannot suffer its own laws . . . to be changed” by

another sovereign.

H. Wheaton, Elements of

International Law § 81, p. 114 (1866). It is “selfevident” that “[a] territorial sovereign has a primeval

interest in resolving all disputes over use or right to

use of real property within its own domain.”

Asociacion de Reclamantes v. United Mexican States,

735 F.2d 1517, 1521 (C.A.D.C.1984). And because

“land is so indissolubly connected with the territory of

a State,” a State “cannot permit” a foreign sovereign

to displace its jurisdiction by purchasing land and

then claiming “immunity.” Competence of Courts in

Regard to Foreign States, 26 Am. J. Int’l L. Supp. 451,

578 (1932). An assertion of immunity by a foreign

sovereign over real property is an attack on the

sovereignty of “the State of the situs.” Id.

The United States Supreme Court held, nearly 200

years ago, that “the nature of sovereignty” requires

that “[e]very government” have “the exclusive right of

regulating the descent, distribution, and grants of the

89a

domain within its own boundaries.” Green v. Biddle,

8 Wheat. 1, 12, 5 L.Ed. 547 (1823).

The acceptance of the immovable-property

exception has not wavered over time. In the 20th

century, as nations increasingly owned foreign

property, it remained “well settled in International

law that foreign state immunity need not be extended

in cases dealing with rights to interests in real

property.” Weber, The Foreign Sovereign Immunities

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

Int’l L. 1, 33 (1976). Countries around the world

continued to recognize the exception in their statutory

and decisional law. See Competence of Courts 572590 (noting support for the exception in statutes from

Austria, Germany, Hungary, and Italy, as well as

decisions from the United States, Austria, Chile,

Czechoslovakia, Egypt, France, Germany, and

Romania). “All modern authors are, in fact, agreed

that in all disputes in rem regarding immovable

property, the judicial authorities of the State possess

as full a jurisdiction over foreign States as they do

over foreign individuals.” C. Hyde, 2 International

Law 848, n. 33 (2d ed. 1945) (internal quotation marks

omitted).

Given the centuries of uniform agreement on the

immovable-property exception, it is no surprise that

all three branches of the United States Government

have recognized it. Writing for a unanimous Court,

Chief Justice Marshall noted that “the property of a

foreign sovereign is not distinguishable by any legal

exemption from the property of an ordinary

individual.” Schooner Exchange v. McFaddon, 7

Cranch 116, 144–145, 3 L.Ed. 287 (1812). Thus, “[a]

prince, by acquiring private property in a foreign

country, may possibly be considered as subjecting that

90a

property to the territorial jurisdiction . . . and

assuming the character of a private individual.” Id.,

at 145. The Court echoed this reasoning over a

century later, holding that state sovereign immunity

does not extend to “[l]and acquired by one State in

another State.” Georgia v. Chattanooga, 264 U.S. 472,

480, 44 S.Ct. 369, 68 L.Ed. 796 (1924). In 1952, the

State Department acknowledged that “[t]here is

agreement[,] supported by practice, that sovereign

immunity should not be claimed or granted in actions

with respect to real property.” Tate Letter 984. Two

decades later, Congress endorsed the immovableproperty exception by including it in the Foreign

Sovereign Immunities Act of 1976. See 28 U.S.C.

§ 1605(a)(4) (“A foreign state shall not be immune

from the jurisdiction of courts of the United States . . .

in any case . . . in which . . . rights in immovable

property situated in the United States are in issue”).

This statutory exception was “meant to codify the preexisting real property exception to sovereign

immunity recognized by international practice.”

Permanent Mission of India to United Nations v. City

of New York, 551 U.S. 193, 200, 127 S.Ct. 2352, 168

L.Ed.2d 85 (2007) (emphasis added; internal

quotation marks omitted).

There is an argument to be made that “[i]t is

inherent in the nature of sovereignty not to be

amenable to the suit of an individual without its

consent.” The Federalist No. 81, p. 487 (C. Rossiter

ed. 1961) (emphasis deleted).

Yet “property

ownership is not an inherently sovereign function,”

Permanent Mission, supra, at 199, 127 S.Ct. 2352, and

Hamilton’s general statement does not suggest that

immunity is automatically available or is not subject

to longstanding exceptions. Because the immovable-

91a

property exception clearly applies to both state and

foreign sovereign immunity, the only question is

whether it also applies to tribal immunity. It does.

In 2017, the United State Supreme Court refused

to “exten[d]” tribal immunity “beyond what commonlaw sovereign immunity principles would recognize.”

Lewis v. Clarke, 197 L. Ed. 2d 631, 137 S. Ct. 1285,

1292 (2017)(tribal sovereign immunity is no broader

than the protection offered by state or federal

sovereign immunity). Tribes are “domestic dependent

nations,” Cherokee Nation v. Georgia, 5 Pet. 1, 17, 8

L.Ed. 25 (1831), that “no longer posses[s] the full

attributes of sovereignty,” United States v. Wheeler,

435 U.S. 313, 323, 98 S.Ct. 1079, 55 L.Ed.2d 303

(1978) (internal quotation marks omitted). Given the

“limited character” of their sovereignty, Id., Indian

tribes possess only “the common-law immunity from

suit traditionally enjoyed by sovereign powers,” Santa

Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S.Ct.

1670, 56 L.Ed.2d 106 (1978). That is why the US

Supreme Court declined to make tribal immunity

“broader than the protection offered by state or federal

sovereign immunity.” Lewis, 137 S. Ct. at 1292.

Accordingly, because States and foreign countries are

subject to the immovable-property exception, Indian

tribes are too. “There is no reason to depart from

these general rules in the context of tribal sovereign

immunity.” Id. The other counterargument raised by

The Tribe for why the exception should not extend to

tribal immunity has no merit.

The Tribe notes that “immunity doctrines lifted

from other contexts do not always neatly apply to

Indian tribes.” But the authority for that proposition

merely states that tribal immunity “is not coextensive

with that of the States.” Kiowa Tribe of Okla. v.

92a

Manufacturing Technologies, Inc., 523 U.S. 751, 756,

118 S.Ct. 1700, 140 L.Ed.2d 981 (1998)). Even

assuming arguendo that is so, it does not mean that

the Tribe’s immunity can be more expansive than any

recognized form of sovereign immunity, including the

immunity of the United States and foreign countries.

See Lewis, supra, at 1659 - 1660, 137 S.Ct., at 12911292. No one argues that the United States could

claim sovereign immunity if it wrongfully asserted

ownership of private property in a foreign country—

the equivalent of what The Tribe attempts to do here

in this case. The United States plainly would be

subject to suit in that country’s courts.

See

Competence of Courts 572-590.

The Founders would be shocked to learn that an

Indian tribe could acquire property in a State and

then claim immunity from that State’s jurisdiction.

Tribal immunity is “a judicial doctrine” that is not

mandated by the Constitution. Kiowa, 523 U.S., at

759, 118 S.Ct. 1700.

It “developed almost by

accident,” was reiterated “with little analysis,” and

does not reflect the realities of modern-day Indian

tribes. See id., at 756-758. Extending it even further

by eliminating the Immovable Property Exception

would contradict the bedrock principle that each State

is “entitled to the sovereignty and jurisdiction over all

the territory within her limits.” Lessee of Pollard v.

Hagan, 3 How. 212, 228, 11 L.Ed. 565 (1845); accord,

Texas v. White, 7 Wall. 700, 725, 19 L.Ed. 227 (1869);

Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1, 9, 8

S.Ct. 811, 31 L.Ed. 629 (1888). Since 1812, the United

States Supreme Court “entertain[ed] no doubt” that

“the title to land can be acquired and lost only in the

manner prescribed by the law of the place where such

land is situate [d].” United States v. Crosby, 7 Cranch

93a

115, 116, 3 L.Ed. 287 (1812). Justice Bushrod

Washington declared it “an unquestionable principle

of general law, that the title to, and the disposition of

real property, must be exclusively subject to the laws

of the country where it is situated.” Kerr v. Devisees

of Moon, 9 Wheat. 565, 570, 6 L.Ed. 161 (1824). The

US Supreme Court has been similarly emphatic ever

since. See, e.g., Munday v. Wisconsin Trust Co., 252

U.S. 499, 503, 40 S.Ct. 365, 64 L.Ed. 684 (1920) (“long

ago declared”); Arndt v. Griggs, 134 U.S. 316, 321, 10

S.Ct. 557, 33 L.Ed. 918 (1890) (“held repeatedly”);

United States v. Fox, 94 U.S. 315, 320, 24 L.Ed. 192

(1877) (“undoubted”); McCormick v. Sullivant, 10

Wheat. 192, 202, 6 L.Ed. 300 (1825) (“an

acknowledged principle of law”).

Allowing the judicial doctrine of tribal immunity to

intrude on such a fundamental aspect of state

sovereignty contradicts the Constitution’s design,

which “leaves to the several States a residuary and

inviolable sovereignty.” New York v. United States,

505 U.S. 144, 188, 112 S. Ct. 2408, 120 L.Ed.2d 120

(1992) (quoting The Federalist No. 39, at 256). The

Immovable Property Exception applies to the Tribes

too.

3. Neither The Tribe nor Puget Sound Power

& Light are necessary parties; even if so,

equity and good conscience require this

case to proceed.

Dismissal under CR 12(b)(7) for failure to join an

indispensable party under CR 19 is a drastic remedy,

courts prefer trials on the merits, it should be

employed sparingly when there is no other ability to

obtain relief. See, Gildon v. Simon Prop. Grp., Inc.,

158 Wn.2d 483, 494, 145 P.3d 1196, 1202 (2006) citing

94a

e.g., 7 Wright & Miller § 1609, at 130 (in general,

dismissal should be ordered only when a defect cannot

be cured and serious prejudice or inefficiency will

result). The CR 19 analysis is two parts: (1) whether

a party is needed for just adjudication; and (2) if an

absent party is needed but it is not possible to join the

party, then the court must determine whether in

“equity and good conscience” the action should

proceed among the parties before it or should be

dismissed, the absent party being thus regarded as

indispensable. Id. at 495.

If joinder of a party is necessary and joinder is not

feasible, the court considers: (1) to what extent a

judgment rendered in the person’s absence might be

prejudicial to him or those already parties; (2) if there

is prejudice, the extent to which, by protective

provisions in the judgment, by 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; and (4) whether the

plaintiff will have an adequate remedy if the action is

dismissed for nonjoinder. CR 19(b).

a. The Tribe is not a necessary or indispensible

party.

Flying T acquired ownership interest in the

Disputed Property no later than July 2001. Therefore,

The Tribe has no interest in that property to protect.

Moreover, Plaintiff does not seek a judgment

personally against The Tribe. There is no way this

case could result in The Tribe losing anything to which

it has a right. Even if The Tribe is deemed a necessary

party and that it cannot be joined, equity and good

conscience dictate that this case proceed, otherwise,

the rightful owner (Flying T) by operation of law

95a

(Adverse Possession) of the Disputed Property will

have its land taken from it by a party (The Tribe) that

has no interest in that property.

b. Puget Sound Power & Light is not a necessary

or indispensible party.

In an obvious reference to § 4.1 of the Complaint,

The Tribe claims that PSP&L is a necessary party

because “any decision of this Court determining that

petitioner has ‘exclusive’ and ‘complete’ possession of

the land would affect [its] interests.” The Tribe fails

to mention that the very next sentence states, in §4.2

of the Complaint, “[t]hat such title quieted in Plaintiff

shall be subject to any easement, including those, if

any, held by Puget Sound Power & Light Company.”

The complaint seeks nothing that will impinge on the

rights of Puget Sound Power & Light. The Tribe

cannot have failed to notice this. Second, the power

lines which are the subject of the easement can in no

way be affected because they are not even located on

the property. They run to the east of the disputed

property. Exhibit 3.

V. CONCLUSION

The Tribe’s assertion of sovereign immunity is

meritless. The Court had jurisdiction over the

property before The Tribe purchased it in 2021.

Flying T has owned through adverse possession the

Disputed property for 20 years before The Tribe

acquired it from the Anderson Trust. The Anderson

Trust, a private family trust, by virtue of the adverse

possession, had no interest in the Disputed Property

to convey to The Tribe. Therefore The Tribe has never

had any interest in that property.

96a

The Immovable Property Exception to sovereign

immunity is rooted in centuries old case law that

remains good law and applicable to The Tribes.

Ruling otherwise would ignore hundreds of years of

caselaw and confer a greater immunity to Native

Tribes than is enjoyed by any other sovereign power,

including the United States.

The Court has subject matter jurisdiction over the

Disputed Property because it was subject to its

authority before the sale to The Tribe and purchasing

the property alone is insufficient to take it out of the

Court’s jurisdiction. The Court has subject matter

jurisdiction over the Disputed Property because it is

not owned by the Tribe but rather by the adverse

possessor, Flying T.

The Court has personal jurisdiction over The Tribe

because it purchased property within the domain of

the United States thereby subjecting itself to its

jurisdiction and that of its political subdivisions under

the Immovable Property doctrine.

Neither The Tribe nor PSP&L are necessary or

indispensable parties: the former because it has no

interest in the Disputed Property; the latter because

the complaint seeks no relief that will impinge on its

easement rights.

For the above-stated reasons, Plaintiff respectfully

requests this Court deny Defendants Tribe’s motion to

dismiss the Complaint.

RESPECTFULLY SUBMITTED this 16th day of

December, 2022.

LAW OFFICES OF VIC S. LAM, P.S.

/s/ Jules R. Butler

Jules R. Butler, WSBA #41772

Attorney for Plaintiff

97a

Filed November 15, 2022

IN THE SUPERIOR COURT OF THE STATE OF

WASHINGTON

IN AND FOR THE COUNTY OF SNOHOMISH

FLYING T RANCH, INC., a

Washington Corporation,

No. 22-2-07015-31

Plaintiffs,

vs.

COMPLAINT TO

QUIET TITLE BY

STILLAGUAMISH TRIBE

ADVERSE

OF INDIANS, a federally

recognized Indian Tribe, and POSSESSION

SNOHO

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.