(CN) – The U.S. Supreme Court will hear a case involving a land dispute that could have ramifications on Native American tribes’ sovereign immunity.
The high court, which granted certiorari on Dec. 8, will decide whether a state court rightfully applied in rem jurisdiction – giving itself the authority to hear a case over which it doesn’t typically have jurisdiction – in a case involving a land dispute between the Upper Skagit Indian Tribe and a Washington state couple.
The dispute began in 2013, when the tribe acquired putative title of land that included a 10-acre strip previously maintained by Sharline and Ray Lundgren.
The Lundrens claimed Sharline’s grandmother purchased the land in 1947 and that the family had built a barbed-wire fence on the disputed strip years earlier, treating the fence as a boundary line.
After a surveyor informed the tribe of the fence, the tribe notified the Lundgrens that the boundary fence encroached on tribe-owned lands.
In 2015, the Lundgrens sued to quiet title in state court, claiming they had acquired the strip of land years ago through adverse possession – the legal principle commonly known as “squatter’s rights” – or by mutual recognition and acquiescence.
The Lundgrens also argued that for years they had worked the disputed land, clearing brush and harvesting timber from it.
The tribe moved to dismiss the case, arguing its sovereign immunity is a shield against the Lundgrens’ lawsuit.
A trial judge allowed the case to proceed, ultimately ruling the doctrine of in rem jurisdiction gave it the authority to determine who owned the land without the tribe participating in the lawsuit. The judge in the case said during proceedings that “this is as clear as a case as I’ve had on the bench.”
The Washington Supreme Court agreed, ruling 5-4 that sovereign immunity did not bar a quiet title action and that the tribe was not an “indispensable party” in the lawsuit.
“The tribe has wielded sovereign immunity as a sword in disguise,” Justice Charles Johnson wrote in the opinion, noting that “allowing the tribe to employ sovereign immunity in this way runs counter to the equitable purposes underlying compulsory joinder.”
In a dissenting opinion, Justice Debra Stephens wrote the court should not use in rem jurisdiction as an end-run around sovereign immunity and that tribe was clearly a necessary party to the lawsuit. “Here, the tribe has properly asserted its sovereign immunity as a shield to protect itself from suit,” she wrote.
In its petition to the U.S. Supreme Court, the Upper Skagit Tribe argued there is no clear opinion among state and federal courts regarding whether in rem jurisdiction is an exception to sovereign immunity. The tribe noted the Second Circuit and the New Mexico Supreme Court both have ruled against the exception.
The Lundgrens, however, have argued sovereign immunity does not bar the lawsuit because the court’s in rem jurisdiction concerns the land, not the tribe. They noted that if tribes are allowed to use sovereign immunity in all such cases, “anyone in Washington state who lost their interest in property to an adverse possessor could extinguish the adverse possessor’s vested title by transferring record title to an Indian tribe.”
The issue of tribal sovereign immunity has come up recently before the Supreme Court, most notably in 2014 in Michigan v. Bay Mills Indian Community. In a 5-4 opinion, the high court ruled tribes have an inherent right to sovereign immunity, even in cases involving state governments.
The Upper Skagit is a federally recognized tribe in Washington state with a roughly 84-acre reservation.
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