"That is work enough for the day," he wrote.
The Yakima ruling was issued in 1992. By a vote 8 to 1, the Supreme Court allowed the state of Washington to impose certain kinds of taxes on fee land within the Yakama Nation. The decision, scorned in Indian law circles, resurfaced 25 years later, again in Washington. The Upper Skagit Indian Tribe can be sued without its consent in connection with a property dispute, the state's top court ruled last February But a higher power has now spoken. "That was error," Justice Gorsuch, who joined the Supreme Court a year ago with widespread support in Indian Country, wrote simply of the Washington Supreme Court's holding. "Yakima did not address the scope of tribal sovereign immunity," Gorsuch elaborated. Instead, he said it was about the legacy of the allotment era, during which tribes lost 90 million acres of their homelands between 1887 and 1934. "In 1934, Congress reversed course," Gorsuch continued. "It enacted the Indian Reorganization Act to restore 'the principles of tribal self-determination and self-governance' that prevailed before the General Allotment Act."
With that history lesson out of the way, Gorsuch concluded that Yakima "resolved nothing about the law of sovereign immunity." Even the attorney for the opposing party, a non-Indian couple that has been locked in a property dispute with the Upper Skagit Indian Tribe, "acknowledged all this at oral argument" just two months ago, he wrote. But while Sharline Lundgren and Ray Lundgren abandoned Yakima, they sought to abrogate the tribe's immunity on other grounds. Gorsuch, however, said the issue they raised was never considered by the Washington courts, so the case must return there for further proceedings. "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," Gorsuch wrote as he acknowledged that a ruling either way will have a major impact in Indian Country. And once the case returns to Washington, another member of the Supreme Court is hoping cooler heads prevail. Although Justice John G. Roberts, Jr., whose tenure has seen tribes lose a slew of cases, agreed without the outcome of the case, he wrote separately to express concerns about the way it has played out. "The correct answer cannot be that the tribe always wins no matter what; otherwise a tribe could wield sovereign immunity as a sword and seize property with impunity, even without a colorable claim of right," Roberts wrote in a short concurrence. Roberts appeared to be outright dismissive of the tribe's view of the dispute. Negotiating some sort of agreement, he wrote, does not seem fair to the non-Indian couple. "That, in my mind at least, is not a meaningful remedy," he wrote, because it affirms the view that the "Lundgrens ultimately have no recourse" with the tribe. Roberts also was dismissive of the federal government's stance. Summarizing a brief submitted by the Department of Justice, he said Lundgrens could "[g]o onto the disputed property and chop down some trees, build a shed, or otherwise attempt" to force the tribe into another type of legal proceeding, one in which sovereign immunity would not be an issue. "But I am skeptical that the law requires private individuals—who, again, had no prior dealings with the tribe—to pick a fight in order to vindicate their interests," the chief justice wrote. In the end, however, Roberts offered some guidance to the Lundgrens out of fear that their case might end up coming back to the Supreme Court sometime in the distant future. "At the very least, I hope the Lundgrens would carefully examine the full range of legal options for resolving this title dispute with their neighbors, before crossing onto the disputed land and firing up their chainsaws," he wrote. Restraint, on the other hand, seemed to be far from the mind of Justice Clarence Thomas, who authored the dissent in the case. Coming in at 14 pages, it was twice as long as the opinion, and it was clear about the tribe's immunity. "I would have resolved this case based on the immovable-property exception to sovereign immunity," Thomas wrote. "That exception is well established. And it plainly extends to tribal immunity, as it does to every other form of sovereign immunity." According to Thomas, no other sovereign -- "not a state, not a foreign nation, and not even the United States" -- can escape the exception. Tribes are no different, he wrote. "Because the immovable-property exception clearly applies to both state and foreign sovereign immunity, the only question is whether it also applies to tribal immunity. It does," Thomas asserted.
About that exceptionAccording to a review of briefs posted by the Tribal Supreme Court Project, a joint initiative of the Native American Rights Fund and the National Congress of American Indians, the Office of the Solicitor General at the Department of Justice was the first to discuss the exception. Attorneys from the Trump administration filed the brief on January 29, after the case had already been added to the docket. A couple of weeks later, the Lundgrens were citing the exception in their first and only brief on the merits. An earlier brief, which had been filed while the case was still in the consideration phase, did not mention it at all. A slew of local and industry interests then picked up on the issue, all filing briefs after the Trump administration brought up the exception. The tribe was then compelled to respond. "An 'immovable property' exception to tribal sovereign immunity would substantially undermine tribal sovereignty," Upper Skagit's reply brief stated. As the party that sought review, the tribe was entitled to file the last brief in the merits. "Creating a new exception to tribal sovereign immunity for immovable property would undermine considerable investment and development undertaken by Indian tribes and have sweeping effects on tribal lands, resources, and governance across the country," the brief continued. "Such a change cannot be justified absent an exceptionally compelling 'special justification.'" By refusing to rule on the exception, a majority of the Supreme Court backed the tribe's approach. It's now up to the Washington Supreme Court to consider the matter, barring some sort of agreement or other type of resolution to the dispute. The 40-acre property at issue was acquired in 2013. While preparing a land-into-trust application to be submitted pursuant to the Indian Reorganization Act, the law Justice Gorsuch mentioned in the opinion, the tribe noticed a barbed wire fence there. "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," Gorsuch noted. The barbed wire leaves about one acre of the tribe's property on the Lundgren's side of the fence. The couple, citing the doctrines of adverse possession and mutual acquiescence, claimed they acquired that disputed portion long before the tribe showed up. Their property has been in the family's hands for 70 years, they said in court papers. The tribe believes the BIA will place the entire 40-acre parcel in trust because it is contiguous to other trust parcels. But the agency typically cannot make a decision if there is some type of encumbrance, or limitation, on it, according to the fee-to-trust handbook. "This purchase was part of the tribe’s long-term effort to reclaim its ancestral lands for the religious, cultural, and economic benefit of its members," Upper Skagit's opening brief read. Up until the early 1980s, the tribe was "landless" except for a cemetery, it continued. The decision in Upper Skagit Indian Tribe v. Lundgren is the second Indian law decision from the Supreme Court's current term, which began last October. The first one, in Patchak v. Zinke, was a victory for tribal interests in a long-running land-into-trust case from Michigan. Two more cases await resolution. Oral arguments in Washington v. United States, a treaty rights case, took place on April 18. A decision is expected before the end of June. The fourth case was just added to the docket on Monday. At issue in Royal v. Murphy is whether the reservation of the Muscogee (Creek) Nation was diminished by an act of Congress. A lower court ruled that it hadn't been reduced, a victory now in doubt. U.S. Supreme Court Decision in Upper Skagit Indian Tribe v. Lundgren:
Syllabus | Opinion [Gorsuch] | Concurrence [Roberts] | Dissent [Thomas] U.S. Supreme Court Documents:
Docket No. 17-387 | Questions Presented | Oral Argument Transcript | More at Tribal Supreme Court Project Washington Supreme Court Decision:
Lundgren v. Upper Skagit Indian Tribe (February 16, 2017)
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