(CN) – The U.S. Supreme Court on Monday perpetuated a years-long fight between an Anglo couple and a Native American tribe over a single acre of land in Washington state, finding the Evergreen State’s high court must decide whether common law bars sovereign immunity for the tribe when real estate is involved.
The dispute began in 2013, when the Upper Skagit Indian Tribe purchased a 40-acre plot that is a burial ground for tribe members who died of smallpox. The tribe then hired a surveyor to confirm the property’s boundary lines.
But the surveyor discovered a problem: a 1,300-foot barbed wire fence separating the tribe’s property from Sharline and Ray Lundgren’s land is, the surveyor said, is in the wrong place. Based on this information, the tribe told the Lundgrens it intended to tear down the fence, clear-cut the acre the Lundgrens believed was theirs for years, and build a new fence along the correct boundary line.
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 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.
This past December, the nation’s highest court agreed to settle the dispute. But the Lundgrens added a new wrinkle during briefing: Apparently believing the Washington Supreme Court may have misinterpreted U.S. Supreme Court precedence by applying it to a sovereign immunity defense, the Lundgrens instead argued common law bars sovereign immunity in actions “involving immovable property located in the territory of another sovereign,” according to the 7-page opinion by Justice Neil Gorsuch.
The tribe and the federal government disagreed with the Lundgrens’ reasoning, arguing politicians rather than judges are responsible for deciding when and why foreign sovereigns can be sued over their activities in the United States.
According to Gorsuch and the six justices who sided with him, the wisest course of action is to let the Washington Supreme Court decide whether the Lundgrens’ latest argument is correct.
“Although we have discretion to affirm on any ground supported by the law and the record that will not expand the relief granted below, in this case we think restraint is the best use of discretion,” Gorsuch wrote. “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; and the alternative argument for affirmance did not emerge until late in this case. In fact, it appeared only when the United States filed an amicus brief in this case – after briefing on certiorari, after the tribe filed its opening brief, and after the tribe’s other amici had their say.
“This court has often declined to take a ‘first view’ of questions that make their appearance in this posture, and we think that course the wise one today.”
In dissent, Justice Clarence Thomas – joined by Justice Samuel Alito – said the point of taking up the case was to solve the dilemma over whether a court’s exercise of in rem jurisdiction trumps the jurisdictional bar of tribal sovereign immunity. Tossing the case back to the state court without answering that question, despite having the authority to step in and rule on the Lundgrens’ late argument, defeats the point in taking on the case, Thomas said.
“The immovable-property exception was extensively briefed and argued, and its application here is straightforward,” Thomas wrote. “Addressing the exception now would have ensured that property owners like the Lundgrens can protect their rights and that states like Washington can protect their sovereignty. Because the court unnecessarily chooses to leave them in limbo, I respectfully dissent.”