Supreme Court Vacates and Remands Washington Supreme Court Decision in Upper Skagit Indian Tribe v. Lundgren, Marking a Victory for Sovereign Immunity

On Monday, the United States Supreme Court ruled 7-2 with tribal interests in the Upper Skagit Indian Tribe v. Lundgren case, giving the Tribe a procedural victory by vacating and remanding the Supreme Court of Washington’s earlier decision in the case. The case had been closely watched by Indian country because of its impact on further issues concerning sovereign immunity.

Ronald Mann, a contributor to SCOTUSblog, wrote in an opinion analysis that “the case involves a narrow and technical question of sovereign immunity: whether the immunity of a federally recognized Indian tribe protects it from a suit in state court to adjudicate the tribe’s claim to land located outside the tribe’s reservation.”

The majority opinion was written by Justice Neil Gorsuch, the Court’s newest member, noting that the Court “granted certiorari to set things straight.”

As Justice Gorsuch writes in the opinion, the case concerns a land dispute between the Upper Skagit Tribe and Sharline and Ray Lundgren. In 2013, the Tribe bought approximately 40 acres of land where it claims that Tribal members who died of smallpox are buried, with the intention of asking the federal government to take the land into trust and add it to the Upper Skagit’s existing reservation. A 1300-foot barbed wire fence owned by the Lundgrens was, according to a survey commissioned by the Tribe, in the wrong place, leaving about an acre of Upper Skagit land on the Lundgren’s side of the fence. When the Tribe informed the Lundgrens that they planned to tear down the fence and build a new one in the right spot, the Lundgrens filed an action in Washington state court. The Tribe asserted sovereign immunity from the suit, and the Supreme Court of Washington ultimately rejected this claim.

In coming to their conclusion, the Washington Supreme Court relied in part on the Supreme Court’s decision in County of Yakima v. Confederated Tribes and Bands of Yakima Nation, a 1992 ruling that allowed the state of Washington to impose certain kinds of taxes on fee land within the Yakima nation. Under their interpretation of the Yakima ruling, the Washington Supreme Court ruled that the Upper Skagit could be sued without its consent in connection with a property dispute, in essence abrogating the Tribe’s sovereign immunity claim.

“Like some courts before it, the Washington Supreme Court read Yakima as distinguishing in rem from in personam lawsuits and ‘establish[ing] the principle that … courts have subject matter jurisdiction over in rem proceedings in certain situations where claims of sovereign immunity are asserted.’ That was an error,” Gorsuch wrote.

As a result of the Indian Reorganization Act, Gorsuch noted, Tribal reservations contain two kinds of land that can be intermixed in a checkerboard pattern: trust land held by the United States and fee-patented land held by private parties. The Yakima decision pertained to the tax issues involved in this checkerboard situation.

“The source of confusion in the lower courts that led to our review was the one about Yakima, and we have dispelled it,” Gorsuch wrote.

Significantly, the majority opinion acknowledged that “determining the limits on the sovereign immunity held by Indian tribes is a grave question; the answer will affect all tribes, not just the one before us.” In so doing, Gorsuch acknowledged that whatever way the Court ruled, the impacts on Indian country would be widespread.

Chief Justice John Roberts agreed with the outcome of the case but wrote in a separate concurrence that he had concerns about the way events transpired. “The correct answer cannot be that the tribe always wins no matter what; otherwise a tribe could wield sovereign immunity as a sword and seize property with impunity, even without a colorable claim of right,” Roberts wrote.

In a 14-page dissent, Justice Clarence Thomas, writing for himself and Justice Samuel Alito, argued that they would have ruled differently. “I would have resolved this case based on the immovable-property exception to sovereign immunity,” Thomas wrote. “That exception is well established. And it plainly extends to tribal immunity, as it does to every other form of sovereign immunity.”

According to the dissent, the majority opinion holds only that Yakima “resolved nothing about the law of [tribal] sovereign immunity. Unfortunately, neither does the decision today – except to say that courts cannot rely on County of Yakima. As a result, the disagreement that led us to take this case will persist.”

This is not the final decision on the case, and further proceedings are likely. However, in the short term, it is a win for sovereign immunity and for the Upper Skagit.