Washington Supreme Court takes up tribal sovereignty challenge

(CN) — The Washington state Supreme Court on Thursday took up a cattle ranch’s challenge to the scope of the Stillaguamish Tribe of Indians’ sovereign immunity as it pertains to a wedge of land that has long been used by the ranch and was in recent years acquired by the tribe.

Flying T Ranch brought a quiet title lawsuit against the tribe over two parcels of land on the banks of the North Fork Stillaguamish River adjacent to the ranch that the tribe acquired as part of a larger purchase of land along the river to conserve the habitat of Puget Sound Chinook salmon.

The ranch claims so-called adverse possession — sometimes called squatters’ rights —, of the parcels it has used since the early 1960s to graze cattle. In addition, the ranch argues the tribe isn’t shielded by tribal sovereignty from its lawsuit because the “immovable property” exception that applies to foreign nations’ sovereignty in so far as it relates to real estate disputes in the U.S. should also apply to tribal sovereignty.

“We have a very basic adverse possession case where title ripened well prior to tribal acquisition, and the question is, in such case, is the landowner entitled to clean up the title and move on or does sovereign immunity somehow keep the cloud over the title,” Peter Ojala, the ranch’s attorney, told the court.

Both a trial court and a state appellate court rebuffed the ranch’s argument and concluded that Stillaguamish had sovereign immunity against the ranch’s claims, even if the parcels weren’t historically part of the tribe’s land, and that it was up to the U.S. Congress, not the courts, to waive this immunity.

But whereas Congress has clearly made an immovable property exception for foreign nations to allow courts to weigh in on domestic land disputes involving these nations’ property in the U.S., it hasn’t done so for Indian tribes.

“Congress has been clear that they abrogate tribal sovereign immunity and no one else,” Justice Barbara Madsen observed. “So, where would we get the authority to do that?”

The dispute over the Stillaguamish’s tribe immunity from Flying T’s claims is similar to a case that went up to the U.S. Supreme Court in 2018. In that case, the nation’s top court didn’t resolve the removable exception issue as it relates to tribal sovereign immunity, to the chagrin of Justices Clarence Thomas and Samuel Alito, because the plaintiffs had brought up this legal wrinkle only after the Supreme Court had agreed to hear the case.

In a concurring opinion in the 2018 Upper Skagit Indian Tribe v Lundgren case, brought up by Ojala at Thursday’s hearing, Chief Justice John Roberts noted that there should be a way of resolving a mundane dispute over property ownership even when one of the parties of 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,” Roberts said at the time.

Raven Arroway-Healing, the attorney for the Stillaguamish Tribe of Indians, reiterated that it’s in the nature of sovereign immunity that, under American common law, the courts don’t look at who’s right or wrong but only at whether they have jurisdiction over the case.

“That’s the reality of American common law sovereign immunity,” Arroway-Healing told the court. “It doesn’t look at the facts of the case.”

She added that this can create outcomes that offend our sense of fairness and justice such as in the dismissal of a federal lawsuit against Saudi Crown Prince Mohammed bin Salman by the fiancee of the murdered journalist Jamal Khashoggi.

The tribe purchased the disputed parcel along with seven others, totaling about 143.4 acres along 1.2 miles of the North Fork Stillaguamish River. 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.

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