Argument preview: Justices to consider tribal immunity from state-court actions to adjudicate title to land

Posted Wed, March 14th, 2018 2:45 pm by way of Ronald Mann

The justices gets a possibility to assessment first ideas of sovereign immunity subsequent week after they listen oral argument in Upper Skagit Indian Tribe v Lundgren. The case gifts but any other bankruptcy within the lengthy saga of the Supreme Court’s stance as a mediator between the efforts of the states to keep an eye on actions inside of their territorial barriers and the rights of tribes to give protection to the sovereignty left to them after their assimilation into the nationwide neighborhood.

The factor is modest and simple – a type of questions that you’d be expecting the Supreme Court to have replied way back: if a tribe claims to personal land in a state, if it is immune from litigation within the courts of the state difficult its declare of possession. This case comes to the Upper Skagit Indian Tribe, a federally identified Indian tribe with a small reservation in Washington, north of Seattle close to the Canadian border. (In case you’re questioning, the Lower Skagit Indians historically lived about 50 miles to the south on Whidbey Island in Puget Sound.) In 2013, the tribe bought a 40-acre parcel of land that adjoins the present reservation. The Lundgrens personal the land simply to the south of that parcel. Shortly after the acquisition, the tribe came upon a fence, it sounds as if built greater than 70 years in the past, operating from east to west all of the method around the parcel a couple of dozen toes north of the south boundary line of the parcel; the fence demarcates a strip of about one acre.

When the tribe refused to promote the strip to the Lundgrens, they filed this go well with searching for to “quiet” (this is, adjudicate) the title to the strip. The Lundgrens declare that their steady and unchallenged workout of dominion over that strip for the reason that 1940s gave them title to the strip by way of “adverse possession” lengthy sooner than the date of the tribe’s acquire. Thus, they declare, the tribe by no means obtained title to the strip. For its phase, the tribe contends that it’s immune from a go well with within the state courts to adjudicate that query; when the state courts rejected that declare, the Supreme Court agreed to consider the tribe’s plea for immunity.

The tribe’s argument for immunity is modest and compelling. The Supreme Court has emphasised on a large number of events that the standing of the tribes as “separate sovereigns pre-existing the Constitution” offers them sovereign immunity from litigation except the tribe voluntarily waives the immunity or Congress abrogates it. All agree that the tribe has no longer waived its immunity right here, and not one of the quite a lot of congressional enactments comes to this kind of litigation.

The Lundgrens’ opposite argument has two prongs, one sensible and one precedential. The sensible one attracts an analogy to the sovereign immunity of the states or of overseas countries. All agree that the Washington state courts would have authority to adjudicate if the land in query have been deeded to Canada (a overseas country) or to Oregon (any other state). Why, the Lundgrens ask, will have to the tribe have higher rights than Canada or Oregon? The solicitor basic, despite the fact that, weighing in at the facet of the tribe in an amicus temporary, explains that Canada can be topic to that go well with as a result of Congress has enacted regulation to that impact – the Foreign Sovereign Immunities Act. For the Oregon hypothetical, the solicitor basic explains that states by no means have immunity within the courts of the opposite states, pointing to the Supreme Court’s 1979 choice in Nevada v. Hall.

The precedential argument turns at the 1992 choice in County of Yakima v. Confederated Tribes and Bands of Yakima Indian Nation. That case upheld a belongings tax on land within the Yakima reservation (additionally, no longer coincidentally, positioned within the state of Washington). The Supreme Court reasoned that the tax was once carried out best to the land (“in rem”) fairly than towards the tribe itself (“in personam”). Here, the Lundgrens (just like the state courts) can level to the standard characterization of a quiet-title motion as an in rem motion towards the land, as to which the claimant is kind of of a bystander.  In that context, as with the tax, permitting the motion to continue does no longer contain the direct adjudication towards the tribe this is on the core of issues about sovereign immunity.

I don’t suppose the justices will in finding this situation tough, despite the fact that it isn’t that transparent to me how they’ll unravel it. As I discussed above, the tribe’s argument for immunity is modest and compelling, however the skill of the state to sidestep that argument by way of portraying this as a go well with towards the land fairly than a go well with towards the tribe makes a ruling for the Lundgrens simple sufficient to provide an explanation for. It additionally is helping the Lundgrens’ facet of the case to remember the fact that on the world degree, traditions of sovereign immunity have no longer ordinarily safe countries from this kind of litigation: Congress’ choice within the Foreign Sovereign Immunities Act to topic overseas states to this type of litigation was once extra a codification of normal norms of world legislation than an abrogation of a long-standing identified immunity.

The argument will have to display us the lens in which the justices view this downside. By this time subsequent week, as most probably as no longer we’ll have a horny just right concept how this one will end up.

Posted in Upper Skagit Indian Tribe v. Lundgren, Featured, Merits Cases

Recommended Citation:
Ronald Mann,
Argument preview: Justices to consider tribal immunity from state-court actions to adjudicate title to land,
SCOTUSblog (Mar. 14, 2018, 2:45 PM),

Updated: March 14, 2018 — 6:58 pm
Mesothelioma Lawsuit Funding © 2016