584 U.S. ___ (2018)
SHARLINE LUNDGREN, ET VIR UPPER SKAGIT INDIAN TRIBE, PETITIONER
March 21, 2018
WRIT OF CERTIORARI TO THE SUPREME COURT OF WASHINGTON
Upper Skagit Indian Tribe purchased a roughly 40-acre plot
of land and then commissioned a boundary survey. The survey
convinced the Tribe that about an acre of its land lay on
the other side of a boundary fence between its land and
land owned by Sharline and Ray Lundgren. The Lundgrens
filed a quiet title action in Washington state court,
invoking the doctrines of adverse possession and mutual
acquiescence, but the Tribe asserted sovereign immunity
from the suit. Ultimately, the State Supreme Court rejected
the Tribe's immunity claim and ruled for the Lundgrens,
reasoning that, under County of Yakima v. Confederated
Tribes and Bands of Yakima Nation, 502 U.S. 251,
tribal sovereign immunity does not apply to in rem
Yakima addressed not the scope of tribal sovereign
immunity, but a question of statutory interpretation of the
Indian General Allotment Act of 1887. That Act authorized
the President to allot parcels of reservation land to
individual tribal members and directed the United States
eventually to issue fee patents to the allottees as private
individuals. In 1934, Congress reversed course but made no
attempt to withdraw the lands already conveyed. As a
result, Indian reservations sometimes contain both trust
land held by the United States and fee-patented land held
by private parties. Yakima concerned the tax
consequences of this intermixture. This Court had
previously held that §6 of the General Allotment Act
could no longer be read as allowing States to impose in
personam taxes on transactions between Indians on
fee-patented land within a reservation. Moe v.
Confederated Salish and Kootenai Tribes of Flathead
Reservation, 425 U.S. 463, 479-481. The Court reached
a different conclusion in Yakima with respect to
in rem state taxes, holding that the state
collection of property taxes on fee-patented land within
reservations was still allowed under §6. 502 U.S., at
265. In short, Yakima sought only to interpret a
relic of a statute in light of a distinguishable precedent;
it resolved nothing about the law of sovereign immunity.
this, the Lundgrens now ask the Court to affirm on an
alternative, common-law ground: that the Tribe cannot
assert sovereign immunity because this suit relates to
immovable property located in Washington State, purchased
by the Tribe in the same manner as a private individual.
Because this alternative argument did not emerge until late
in this case, the Washington Supreme Court should address
it in the first instance. Pp. 3-7.
187 Wash.2d 857, 389 P.3d 569, vacated and remanded.
GORSUCH, J., delivered the opinion of the Court, in which
ROBERTS, C. J., and Kennedy, Ginsburg, Breyer, Sotomayor, and
Kagan, JJ., joined. ROBERTS, C. J., filed a concurring
opinion, in which KENNEDY, J., joined. THOMAS, J., filed a
dissenting opinion, in which ALITO, J., joined.
courts disagree about the significance of our decision in
County of Yakima v. Confederated Tribes and Bands of
Yakima Nation, 502 U.S. 251 (1992). Some think it means
Indian tribes lack sovereign immunity in in rem
lawsuits like this one; others don't read it that way at
granted certiorari to set things straight. 583 U.S. (2017).
of the Upper Skagit Tribe lived for centuries along the
Skagit River in northwestern Washington State. But as
settlers moved across the Cascades and into the region, the
federal government sought to make room for them by displacing
native tribes. In the treaty that followed with
representatives of the Skagit people and others, the tribes
agreed to "cede, relinquish, and convey" their
lands to the United States in return for $150, 000 and other
promises. Treaty of Point Elliott, Jan. 22, 1855, 12 Stat.
927; see Washington v. Washington State Commercial
Passenger Fishing Vessel Assn., 443 U.S. 658, 676
(1979); United States v. Washington, 384 F.Supp.
312, 333 (WD Wash. 1974).
dispute stems from the Upper Skagit Tribe's efforts to
recover a portion of the land it lost. In 1981, the federal
government set aside a small reservation for the Tribe. 46
Fed. Reg. 46681. More recently, the Tribe has sought to
purchase additional tracts in market transactions. In 2013,
the Tribe bought roughly 40 acres where, it says, tribal
members who died of smallpox are buried. The Tribe bought the
property with an eye to asking the federal government to take
the land into trust and add it to the existing reservation
next door. See 25 U.S.C. §5108; 25 CFR §151.4
(2013). Toward that end, the Tribe commissioned a survey of
the plot so it could confirm the property's boundaries.
But then a question arose.
problem was a barbed wire fence. The fence runs some 1, 300
feet along the boundary separating the Tribe's land from
land owned by its neighbors, Sharline and Ray Lundgren. The
survey convinced the Tribe that the fence is in the wrong
place, leaving about an acre of its land on the
Lundgrens' side. So the Tribe informed its new neighbors
that it intended to tear down the fence; clearcut the
intervening acre; and build a new fence in the right spot.
response, the Lundgrens filed this quiet title action in
Washington state court. Invoking the doctrines of adverse
possession and mutual acquiescence, the Lundgrens offered
evidence showing that the fence has stood in the same place
for years, that they have treated the disputed acre as their
own, and that the previous owner of the Tribe's tract
long ago accepted the Lundrens' claim to the land lying
on their side of the fence. For its part, the Tribe asserted
sovereign immunity from the suit. It relied upon the many
decisions of this Court recognizing the sovereign authority
of Native American tribes and their right to "the
common-law immunity from suit traditionally enjoyed by
sovereign powers." Michigan v. Bay Mills Indian
Community, 572 U.S.___, ___ (2014) (slip op., at 5)
(internal quotation marks omitted).
the Supreme Court of Washington rejected the Tribe's
claim of immunity and ruled for the Lundgrens. The court
reasoned that sovereign immunity does not apply to cases
where a judge "exercis[es] in rem jurisdiction" to
quiet title in a parcel of land owned by a Tribe, but only to
cases where a judge seeks to exercise in personam
jurisdiction over the Tribe itself. 187 Wash.2d 857, 867, 389
P.3d 569, 573 (2017). In coming to this conclusion, the court
relied in part on our decision in Yakima. Like some
courts before it, the Washington Supreme Court read
Yakima as distinguishing in rem from in
personam lawsuits and "establishing] the principle
that . . . courts have subject matter jurisdiction over in
rem proceedings in certain situations where claims of
sovereign immunity are asserted." 187 Wash. 2d, at 868,
389 P.3d, at 574.
was error. Yakima did not address the scope of
tribal sovereign immunity. Instead, it involved only a much
more prosaic question of statutory interpretation concerning
the Indian General Allotment Act of 1887. See 24 Stat. 388.
background helps dispel the misunderstanding. The General
Allotment Act represented part of Congress's late
Nineteenth Century Indian policy: "to extinguish tribal
sovereignty, erase reservation boundaries, and force the
assimilation of Indians into the society at large."
Yakima, supra, at 254; In re Heff, 197 U.S.
488, 499 (1905). It authorized the President to allot parcels
of reservation land to individual tribal members. The law
then directed the United States to hold the allotted parcel
in trust for some years, and afterwards issue a fee patent to
the allottee. 24 Stat. 389. Section 6 of the Act, as amended,
provided that once a fee patent issued, "each and every
allottee shall have the benefit of and be subject to the
laws, both civil and criminal, of the State or Territory in
which they may reside" and "all restrictions as to
sale, incumbrance, or taxation of said land shall be
removed." 25 U.S.C. §349.
1934, Congress reversed course. It enacted the Indian
Reorganization Act, 48 Stat. 984, to restore "the
principles of tribal self-determination and
self-governance" that prevailed before the General
Allotment Act. Yakima, 502 U.S., at 255.
"Congress halted further allotments and extended
indefinitely the existing periods of trust applicable
to" parcels that were not yet fee patented.
Ibid.; see 25 U.S.C. §§461-462. But the
Legislature made no attempt to withdraw lands already
conveyed to private persons through fee patents (and by now
sometimes conveyed to non-Indians). As a result, Indian
reservations today sometimes contain two kinds of land
intermixed in a kind of checkerboard pattern: trust land held
by the United States and fee-patented land held by private
parties. See Yakima, supra, at 256.
concerned the tax consequences of this checkerboard. Recall
that the amended version of §6 of the General Allotment
Act rendered allottees and their fee-patented land subject to
state regulations and taxes. 25 U.S.C. §349. Despite
that, in Moe v. Confederated Salish and Kootenai Tribes
of Flathead Reservation, 425 U.S. 463 (1976), this Court
held that §6 could no longer be read as allowing States
to impose in personam taxes (like those on cigarette
sales) on transactions between Indians on fee-patented land
within a reservation. Id., at 479-481. Among other
things, the Court pointed to the impracticality of using the
ownership of a particular parcel within a reservation to
determine the law governing transactions taking place upon
it. See id., at 478-479. Despite Moe and
some years later, this Court in Yakima reached a
different conclusion with respect to in rem state
taxes. The Court held that allowing States to collect
property taxes on fee-patented land within reservations was
still allowed by §6. Yakima, supra, at 265.
Unlike the in personam taxes condemned in
Moe, the Court held that imposing in rem
taxes only on the fee-patented squares of the checkerboard
was "not impracticable" because property tax
assessors make "parcel-by-parcel determinations"
about property tax liability all the time. Yakima,
supra, at 265. In short, Yakima sought only to
interpret a relic of a statute in light of a distinguishable
precedent; it resolved nothing about the law of sovereign
the Lundgrens acknowledged all this at oral argument. Tr. of
Oral Arg. 36. Instead of seeking to defend the Washington
Supreme Court's reliance on Yakima, they now ask
us to affirm their judgment on an entirely distinct
alternative ground. At common law, they say, sovereigns
enjoyed no immunity from actions involving immovable property
located in the territory of another sovereign. As our cases
have put it, "[a] prince, by acquiring private property
in a foreign country, . . . may be considered as so far
laying down the prince, and assuming the character of a
private individual." Schooner Exchange v.
McFaddon, 7 Cranch 116, 145 (1812). Relying on this line
of reasoning, the Lundgrens argue, the Tribe cannot assert
sovereign immunity because this suit relates to immovable
property located in the State of Washington that the Tribe
purchased in the "the character of a private
Tribe and the federal government disagree. They note that
immunity doctrines lifted from other contexts do not always
neatly apply to Indian tribes. See Kiowa Tribe of Okla.
v. Manufacturing Technologies, Inc., 523 U.S. 751, 756
(1998) ("[T]he immunity possessed by Indian tribes is
not coextensive with that of the States"). And since the
founding, they say, the political branches rather than judges
have held primary responsibility for determining when foreign
sovereigns may be sued for their activities in this country.
Verlinden B. V. v. Central Bank of Nigeria, 461 U.S.
480, 486 (1983); Ex parte Peru, 318 U.S. 578, 588
leave it to the Washington Supreme Court to address these
arguments in the first instance. Although we have discretion
to affirm on any ground supported by the law and the record
that will not expand the relief granted below, Thigpen v.
Roberts, 468 U.S. 27, 30 (1984), in this case we think
restraint is the best use of discretion. 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 amid 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. Cutter v.
Wilkinson, 544 U.S. 709, 718, n. 7 (2005).
dissent is displeased with our decision on this score, but a
contradiction lies at the heart of its critique. First, the
dissent assures us that the immovable property exception
applies with irresistible force-nothing more than a matter of
"hornbook law." Post, at 3-10 (opinion of
THOMAS, J.). But then, the dissent claims that allowing the
Washington Supreme Court to address that exception is a
"grave" decision that "casts uncertainty"
over the law and leaves lower courts with insufficient
"guidance." Post, at 3, 13-14. Both cannot
be true. If the immovable property exception presents such an
easy question, then it's hard to see what terrible things
could happen if we allow the Washington Supreme Court to
answer it. Surely our state court colleagues are no less
versed than we in "hornbook law, " and we are
confident they can and will faithfully apply it. And what if,
instead, the question turns out to be ...