Life can get complicated when a sovereign nation moves in next door, as the Lundgren family of Skagit County, Wash., discovered.
For three generations, stretching over 70 years, the family owned a 10 acre parcel in the foothills of the Cascades north of Seattle. The family land was bounded on the north by a barbed wire fence that had been in place since at least 1947. The family treated all the land south of the fence as its own.
In 2013, the Upper Skagit Tribe bought the 40 acres directly north of the Lundgren land and began incorporating it into its adjacent reservation. As part of the process, the tribe hired surveyors, who broke the news that the barbed wire fence was in the wrong place. The tribe had paid for about one acre that lay on the Lundgrens’ side.
When the tribe informed the Lundgrens of its plan to tear down the old fence and replace it with a new one farther south, the Lundgrens responded by filing a suit to quiet title – that is, to establish their legal ownership of the land, which they claimed to have acquired by adverse possession.
Adverse possession is the formal legal recognition of squatters’ rights. Under Washington law, a person can gain title to land by occupying it without interruption for 10 years in an “open and notorious way” and generally acting like the owner. (In New Mexico, the claimant must additionally possess “color of title” – some deed-like document – and pay taxes.) The Lundgrens easily satisfied those requirements. If they had brought a quiet title suit against the former owners of the land, a private party, they undoubtedly would have prevailed.
But all American governments, being sovereign, are immune from suit except when they have consented to it, and the Upper Skagit Tribe didn’t consent to be sued in Washington state court. The tribe asked to have the Lundgrens’ otherwise-meritorious suit dismissed under the doctrine of tribal immunity.
To a majority of the justices of the Washington Supreme Court, it didn’t seem fair that the family should lose land that had been in the family for so many decades without a right to be heard. And yet their hands were seemingly tied by tribal immunity. They tried to get around the problem by declaring they were exercising jurisdiction only over the land (“in rem”) and not over the tribe itself. The justices’ position, boiled down, was that by intoning the phrase “in rem,” they could nullify the tribe’s title to an acre of land without affecting the tribe’s rights – a kind of magical thinking.
Last month, the U.S. Supreme Court ruled that the state courts’ reliance on the “in rem” dodge was an error in this particular instance, without, however, prohibiting the state from resorting to it in the future on different facts. In doing so, incidentally, the high court established that the New Mexico Supreme Court acted correctly when it rejected the same argument in a 2016 case about road access involving San Felipe Pueblo.
The high court’s opinion, by Justice Gorsuch, didn’t explain what options remained open to the Lundgrens. This bothered some of the other justices, especially Justice Thomas, who dissented. He would have decided in favor of the Lundgrens on the basis of “the ‘immovable property’ exception to sovereign immunity” – which the Lundgrens themselves never raised. In a nutshell, when a foreign nation purchases real estate for non-diplomatic reasons, for instance, as an investment, the property remains subject to the ordinary operations of the law. The same rule, suitably modified, should apply to Indian tribes, according to Thomas. It sounds like a sensible solution.
But Thomas, joined by Justice Alito, didn’t stop there. He went on to criticize the very notion of sovereign immunity as applied to tribes, referring to it as a “judge-made doctrine” rather than an incident of treaty rights, and characterizing its legal impact as “quite exorbitant.” The Thomas-Alito hostility to tribal interests was a bit much for the more mild-mannered Justices Roberts and Kennedy, who suggested only that the scope of tribal immunity might “need to be addressed in a future case” if the immovable property rule doesn’t solve the Lundgrens’ problem.
That looks like four votes in favor of recognizing the immovable property exception to tribal immunity. Notably, Gorsuch (joined by the four Democrats) didn’t say anything in opposition to the exception, merely holding that the issue should be addressed in the first instance by the state courts.
The writing is on the wall. New Mexico tribes, and everybody involved in real estate transactions with them, should take note.
Joel Jacobsen is an author who recently retired from a 29-year legal career. If there are topics you would like to see covered in future columns, please write him at firstname.lastname@example.org