High Court Grapples With Tribe’s Sovereign Immunity

WASHINGTON (CN) – A Native American tribe that tried to fend off quiet-title claims with sovereign immunity struggled to make their case Wednesday at the U.S. Supreme Court.

Arguing this morning on behalf of the Upper Skagit Indian Tribe, attorney David Hawkins said that the doctrine has been key to the tribe’s efforts to reclaim its homeland in Washington state without facing a flood of lawsuits that would drain its coffers.

“For a landless tribe like the Upper Skagit, sovereign immunity has enabled it to purchase lands, take them into trust, and establish their reservation providing services for their members without being subject to third-party claims,” Hawkins said.

Washington couple Sharline and Ray Lundgren brought the claim at hand in 2015 after the tribe notified them that a barbed-wire fence that had for years designated the boundary of the Lundgrens’ property encroached on the tribe’s reservation.

Though the Upper Skagit invoked sovereign immunity to avert the Lundgrens’ suit, a state judge instead determined that the tribe was not an indispensable party, allowing him to determine who owns the roughly acre-size tract of land, whether or not the tribe participated.

Chief Justice John Roberts scoffed at Wednesday’s hearing when Hawkins said the family could get around the sovereign-immunity problem by suing individual members of the tribe who use the land they claim to own.

“So every time somebody from the tribe goes over the barbed wire fence that they say since time immemorial has defined their property, they should sue them?” Roberts asked. “Just have a lawyer there walking along the line every time somebody goes, serve him with process? Is that a viable alternative remedy to a quiet-title action?”

Hawkins also noted that the Lundgrens could always negotiate with the tribe over the strip of land, but Roberts noted such negotiations would not exactly be fair if the court doors are locked.

Another argument that ruffled Roberts was made in support of the tribe by the U.S. government. At Tuesday’s hearing, the chief justice pressed  Assistant to the Solicitor General Ann O’Connell on whether it was fair for the government to assert that, rather than sue the tribe themselves, the Lundgrens could bait the tribe into suing them by continuing to use the land.

“The tribe, I gather, said they’re going to build their own fence right on the line, and you’re saying the Lundgrens should jump over the fence with a chainsaw and start cutting down trees,” Roberts said. “And when the tribe comes up to them, they’re supposed to say ‘Oh, Ms. O’Connell said I should do this.”

Eric Miller, an attorney for the Lundgrens at the Seattle firm Perkins Coie, argued that the tribe’s reading of its immunity to suit would create an enormous carve-out and give it enormous power no other entity enjoys.

“The discussion of sort of sovereignty can be a little bit abstract, but there’s a real practical reality underlying it, and that’s that, you know, every government and really every organized society has an interest in having some mechanism for determining who owns what pieces of land,” Miller said. “And the tribe’s position would create situations, you know, like this one where that’s impossible.”

Miller also argued there has been a historical exemption to sovereign immunity for immovable property, but this argument raised alarms for some justices, who were troubled that it was a major departure from the grounds on which the Washington Supreme Court decided the case.

Justice Elena Kagan voiced concern in particular about the Lundgrens’ decision to essentially abandon the reasoning of the Washington Supreme Court decision in their favor.

“This is the way I sort of see what’s happened in this case, and again, you can tell me if I am wrong,” Kagan said. “You took over this case and you read this opinion and you said this is not a very good theory. There is a really good theory here and I’m going to make that. And that’s what good lawyers do. I’m not at all criticizing you. It’s just it’s a new theory, and it’s not just even a new argument. It’s just a completely new way to win this case.”

Justice Neil Gorsuch suggested the court might be better off remanding the case to the state courts to get a more complete picture of Miller’s argument.

“My question, though, remains, you’ve raised a new ground for defending the result below and abandoned the ground that was actually asserted,” Gorsuch said. “This court doesn’t normally resolve questions like that in the first instance. Normally [it] is a question of review, not first view. Why shouldn’t we exercise discretion here and wait?”

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