Supreme Court shakes up docket by accepting sovereignty case at request of tribe

Monday, December 11, 2017

The U.S. Supreme Court has been relatively uneventful so far for Indian Country but a little shakeup is on the way.

On Friday afternoon, the justices granted a petition in Upper Skagit Indian Tribe v. Lundgren. The sovereign immunity dispute is only the second Indian law case on the court's current docket, a marked turnaround from recent seasons.

The action, which came in a short order list, was somewhat of a surprise because the justices had only considered the petition earlier in the day after delaying consideration twice. In another dramatic situation, repeated delays resulted in an Indian law case being rejected by the court.

The matter is also notable in that the petition was granted at the request of the Upper Skagit Indian Tribe. Historically, the court passes on cases in which a tribe seeks to overturn a negative decision, according to a landmark study by Indian law professor Matthew Fletcher.

But the tribe succeeding after pitching the case as a means to resolve a legal conflict with nationwide implications. The petition argued that some state courts are taking a different approach when it comes to sovereign immunity, an approach that needs to be corrected.

"As evidenced by the split in authority, the conflict will not be resolved until this Court issues a definitive ruling," the September 11 petition stated.

"And until such a ruling is made, there will be uncertainty about the scope of tribal sovereign immunity invoked in in rem proceedings throughout the country," the document added.

The in rem proceeding at issue involves a property the tribe acquired in Skagit County in 2013. In preparations for submitting a land-into-trust application to the Bureau of Indian Affairs, the tribe noticed a fence on the property.

The fence had apparently been there for decades, leading Sharline Lundgren and Ray Lundgren to believe it represented the boundary between their property, which has been in their family's hands for 70 years, and the tribe's newly acquired property. So the husband and wife filed a lawsuit in state court, claiming they had acquired ownership in the disputed portion long before the tribe showed up.

The tribe, as the owner of the disputed portion, objected on grounds of sovereign immunity, arguing that it could not be sued without its consent. The tribe also said the in rem proceeding could not move forward without its participation as a "necessary party."

Washington State Supreme Court: Sharline & Ray Lundgren v. Upper Skagit Indian Tribe

By a 5 to 4 vote, the Washington Supreme Court disagreed on both counts. Tribal sovereign immunity does not need to be considered in an in rem proceeding, the majority determined, and the tribe does not need to be joined either.

"The tribe has wielded sovereign immunity as a sword in disguise," Justice Charles W. Johnson wrote for the majority. "While we do not minimize the importance of tribal sovereign immunity, allowing the tribe to employ sovereign immunity in this way runs counter to the equitable purposes underlying compulsory joinder."

In a dissent, Justice Debra L. Stephens acknowledged that accepting the tribe's sovereign immunity would require dismissal of the case, leaving the Lundgren without much recourse. But she said the case should not proceed without the tribe's inovlement.

"A determination of title to the disputed property without the tribe being a party to the litigation casts a shadow over the tribe's ownership," Stephens wrote in the dissent joined by three of her colleagues.

The close split in Washington will now be resolved thousands of miles away by the nation's highest court. The tribe and the Lundgrens will be able to submit additional briefs on the merits and an oral argument will be scheduled to hear from the parties.

The Supreme Court's last sovereign immunity case was Michigan v. Bay Mills Indian Community. In May 2014, the justices held that the Bay Mills Indian Community could not be sued without its consent by the state of Michigan. The vote was close too -- 5 to 4.

Washington Supreme Court Decision:
Lundgren v. Upper Skagit Indian Tribe (February 16, 2017)

More on tribal sovereignty

In a separate action on Monday, the Supreme Court denied a petition in Great Plains Lending v. Consumer Financial Protection Bureau. At issue was an attempt by tribal lending businesses to assert their sovereignty before the Consumer Financial Protection Bureau, a federal agency.

The 9th Circuit Court of Appeals held that the agency could investigate the tribal businesses as a matter of "general applicability." The tribes had argued they should be treated as co-regulators of the online lending industry.

"We have consistently held that similar laws of general applicability govern tribal entities unless Congress has explicitly provided otherwise," Judge Johnnie B. Rawlinson wrote in the unanimous 20-page decision, which now stands as a result of the denial of the Great Plains petition.

The bureau is currently in a leadership struggle due to the recent departure of its prior director. President Donald Trump named an "acting" replacement but the deputy director has claimed to be in charge. A federal judge in Washington, D.C., is overseeing the case, which could end up before the Supreme Court.

9th Circuit Court of Appeals Decision:
Great Plains Lending v. Consumer Financial Protection Bureau (January 20, 2017)

The October term

The Supreme Court began its 2017 term in October with just one Indian law case on the docket. The outcome in Patchak v. Zinke, which was heard on November 7, will determine whether Congress can protect a Michigan tribe's already-operating casino from litigation.

The court otherwise has rejected petitions in a slew of notable cases, leaving intact critical victories for tribes on water rights, sovereignty, land and the Indian Child Welfare Act.

The October 2017 term also marks the first full term for Justice Neil Gorsuch. He was confirmed to the court in April, following an unprecedented level of support from Indian Country.

Tribes were impressed with Gorsuch's experience in cases affecting reservation boundaries and sovereign immunity when he served on the 10th Circuit Court of Appeals,. His participation in Patchak will mark his first Indian law case at the Supreme Court.