Supreme Court Ducks Addressing “Immovable Property” Exception to Tribal Sovereign Immunity

As Chief Justice Roberts put it in his concurring opinion in Upper Skagit Indian Tribe v. Lundgren, “There should be a means of resolving a mundane dispute over property ownership, even when one of the parties to the dispute—involving non-trust, non-reservation land—is an Indian tribe.”1 However, the majority opinion of Justice Gorsuch concludes that a decision determining whether such a resolution may occur, and under what legal doctrine, must await a remand of the case to the Washington Supreme Court and any further review the Supreme Court may allow.

Sharline and Ray Lundgren had owned land in Skagit County, Washington, for many years. In 2013, the Upper Skagit Indian Tribe purchased an adjacent 40 acre tract. When it surveyed the tract in preparation for asking the Department of the Interior to take the land into trust, it learned that a barbed wire fence had been in place for many years was some 1300 feet on the tribe’s side of the newly-surveyed boundary. When the tribe sought to remove the fence, the Lundgren’s filed suit in Washington state court seeking a declaration that they acquired title through adverse possession and mutual acquiescence, alleging that the fence had stood for many years, they had used the disputed parcel on their side of the fence, and the tribe’s predecessors had accepted the Lundgren’s ownership of the disputed parcel. The tribe sought dismissal of the Lundgrens’ claims on grounds of sovereign immunity from suit.

The Washington Supreme Court held the tribe’s sovereign immunity could not bar relief because the suit was an action in rem, so jurisdiction over the land, not necessarily of all parties claiming interests in the land, was required. It relied on the Supreme Court’s decision in County of Yakima v. Confederated Tribes and Bands of Yakima Nation.2 The Supreme Court reversed, noting that counsel for the Lundgrens had disclaimed reliance on Yakima in the Supreme Court, and instead has advanced the “immovable property” doctrine, which holds that “a prince, by acquiring property in a foreign country, . . . may be considered as so far laying down the prince, and assuming the character of a private individual.” Observing that the parties had not argued, and the Washington Supreme Court had not addressed, the immovable property doctrine, the majority concluded the issue should be addressed below before it addresses the applicability of the doctrine to a tribal government. It vacated the decision below and remanded for further proceedings.

The three opinions in Upper Skagit present differing perspectives on the question whether a tribe, by purchasing land may evade claims by opposing owners based solely on tribal sovereign immunity. The Chief Justice’s, in concurrence, does not oppose remand, but would find such an outcome “intolerable,” and observes the Court recently signaled it could address in a later case whether sovereign immunity would bar a “plaintiff who has not chosen to deal with a tribe [and] has no alternative way to obtain relief for off-reservation commercial conduct.3 Justice Thomas, joined in an extensive dissent by Justice Alito, argued remand was unnecessary because the immovable property doctrine was “well established” and “plainly extends to tribal sovereign immunity,” is consistent with the principle lex rei sitae, holding land is governed by the law of the place where it’s located, and the Court’s recent decision in Lewis v. Clark,4 declined to extend tribal sovereign immunity “beyond what common law sovereign immunity principles would recognize.” Whether tribes’ assertions of title to private, off-reservation, fee lands lie beyond legal recourse remains unanswered pending remand and further proceedings.


1 ___ S. Ct. ___, 2018 WL 2292 445 (May 21, 2018)
2 502 U.S. 251 (1992).
3 See Michigan v. Bay Mills Indian Community, 572 U.S.) ___, ___, 134 S. Ct. 2014, 2036 n.8 (2014).
4 581 U.S. ___, 137 S.Ct. 1285, 1292 (2017).

POSTED IN: Articles