It was a tale of two arguments yesterday in Upper Skagit Indian Tribe v. Lundgren. The first half of the argument featured most of the justices offering scorching criticism of the idea that the tribe could be immune from state jurisdiction over off-reservation land; the second half featured the same group of justices complaining to counsel for the landowners that the argument in their favor was not ripe for decision.

The case is refreshingly simple. The Upper Skagit Indian Tribe purchased a parcel of land north of Seattle near the Canadian border; the land adjoins but is outside the tribe’s reservation. The Lundgren family has owned land just to the south of that parcel for many decades, and discovered shortly after the tribal purchase that a strip of the land that they have been occupying all those years (demarcated by a World War II-era fence) was included within the land sold to the tribe. When the tribe refused to sell the parcel to the Lundgrens, they filed a suit to “quiet” title, claiming that their use of the land for the last two generations had given them title to the strip by “adverse possession.”

The issue before the Supreme Court involves the tribe’s argument that as a sovereign, it is immune from suit in the Washington state courts. The Washington Supreme Court rejected the tribe’s plea of immunity, reasoning that the immunity does not apply because this is a suit “in rem” (against the land) rather than a suit “in personam” (against the tribe).

The first part of the argument must have seemed promising to Eric Miller, counsel for the Lundgrens: Sitting at counsel table, he had the luxury, without saying a word, of listening to the justices hound David Hawkins (counsel for the tribe) with all of Miller’s best arguments. The tone of Hawkins’ argument was set three sentences into his presentation, when Justice Ruth Bader Ginsburg interrupted to ask pointedly: “Is it not the case that no other political entity would be immune from such a quiet-title suit, not the United States, not a state of the United States, not a foreign government? So you’re claiming a kind of super-sovereign immunity for the tribe that no one else gets.”

It soon became clear Ginsburg was not alone in that assessment of the tribe’s position. Justices Elena Kagan, Stephen Breyer and Anthony Kennedy also came to the argument with what seemed to be a settled view that traditional principles of sovereign immunity “refute” the tribe’s claim of immunity. As Kagan repeatedly explained, sovereign immunity “typically by common law and historically includes this exception for immovable property,” under which sovereign immunity would not extend to land owned by one sovereign in the territory of another. As Breyer put it – after tossing off references to three continental treatises he had consulted before the argument – “if you were to have a quiz – ‘What was the law of sovereign immunity in 1760?’ — , … I guess you’d have to say the law was that [if] the prince buys a department store in Iowa, … he’s just like another Iowan.”

Ann O’Connell (appearing on behalf of the government to support the tribe) challenged Kagan on that point, arguing that Kagan was calling for an “exception” to the general rules of sovereign immunity, and that the justices should leave it to Congress to enact statutes implementing exceptions.  But Kagan was unpersuaded: “[M]y point is not whether it should be denominated an exception or not an exception but whether this is the kind of historic, traditional, long-standing rule that we shouldn’t expect Congress to have to put in, that it just sort of goes into the doctrine because that is part of the doctrine from long, long ago.” Kennedy weighed in to support Kagan, commenting to O’Connell that “[y]ou call it … an exception. Others may call it just a limit to the general rule. …. So that’s just playing with words.”

As if it weren’t bad enough that four justices seemed settled on the view that the tribe’s immunity argument contradicts traditional immunity principles, an overlapping group of justices seemed flabbergasted by the practical consequences of immunity in cases like this one, offering a series of pointed hypotheticals. Justice Samuel Alito led the way with his “ripped-from-the-headlines” example:

Let’s say a state or the federal government wants to construct a highway or maybe it’s a pipeline, and there’s opposition to this project, so the people who are opposed to the project enlist an Indian tribe to buy a little parcel of land along the route of this highway or this pipeline. That would be the end of the project, would it not?

In the same vein, Kennedy commented to Hawkins with incredulity: “Under your view of this case, suppose the tribe, on land that it owns in a state but outside the reservation, puts up a high-rise building in violation of the zoning law. They’re exempt? They can develop anywhere without reference to zoning laws?”

By the end of O’Connell’s presentation, a solid majority (Kennedy, Ginsburg, Breyer, Alito and Kagan) seemed firmly settled on the propriety of the “immovable property” exception to sovereign immunity. But a surprising shift of tone occurred when Miller finally came to the podium for the landowners.

The problem for the landowners is the distinction between an “in-rem” exception and an immovable-property exception.  The Washington Supreme Court ruled for the landowners based on an “in-rem” exception that it discerned in the Supreme Court’s decision in County of Yakima v. Confederated Tribes and Bands of Yakima Indian Nation, which would protect the tribe from any litigation directly against property (whether real or personal). Miller argued that the landowners should prevail under an immovable-property exception, which applies only to real property, and which he grounds in historical principles of sovereign immunity that predate the Constitution.

The tribe’s reply brief contended that Miller’s shift of argument was an unfair surprise and that the question was not properly before the justices. And however slight the distinction might seem as I described it above, most of the justices seemed to agree.

Early in Miller’s presentation, for example, Justice Neil Gorsuch got Miller to “agree that Yakima doesn’t control.” But armed with that concession, Gorsuch asked, “[W]hy isn’t it enough for the day for this Court to resolve a split of authority over whether Yakima controls in cases like this and return it to the Washington Supreme Court where you can present all these wonderful arguments you’ve raised here for the first time”?

Miller tried valiantly to argue that the differences between “immovable property” and “in rem” rules are immaterial, but Kagan clearly had thought about the problem at length – she reported having sketched “a little Venn diagram for myself” before the argument – and was not in the least bit persuaded:

I think there are real differences in the scope of the immovable property exception on the one hand and an in rem exception on the other hand. And clearly the Washington court talked about the in rem exception. Now you’re coming in and you have an extremely strong argument about this immovable property rule, but it’s not the same argument that the court in Washington made.

Kagan went out of her way to praise the substance of Miller’s argument, but she could not agree with his characterization of it as a simple tweak to the arguments presented in the state courts:

This is the way I … see what’s happened in this case, and again, you can tell me if I am wrong. You took over this case and you read this opinion and you said this is not a very good theory. There is a really good theory here. And I’m going to make that. And that’s what good lawyers do. I’m not at all criticizing you. It’s just it’s a new theory, … it’s not just even a new argument. It’s … a completely new way to win this case.

Justice Sonia Sotomayor seemed to crystallize the justices’ traditional reluctance to rule on late-presented arguments, suggesting that if the litigants took the time to allow the issue to “get aired fully” in the lower courts, the justices could resolve the problem with more confidence. In the same vein, Kagan commented that she was “a little bit worried that” potential “amici [didn’t] kn[o]w about this theory. … And I think it would be … just a bad way of dealing on our part if we allowed parties to come in, even with the best of faith, and said I have a new theory for you that … really the only people who got a chance to reply are the Petitioners in a 20-page yellow brief.”

Miller’s presentation ended with a solid majority of the court (Breyer, Kagan, Alito, Sotomayor and Gorsuch) appearing to take a strong view against reaching the immovable-property argument. So I think it is pretty easy to predict the result here: a short opinion vacating the decision of the Washington Supreme Court based on Miller’s concession, with a remand to give that court a chance to consider the arguments the justices found so persuasive. Miller may have won the argument about the right legal rule, but it looks like he won’t walk away with a win in the case from the justices.

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

Recommended Citation: Ronald Mann, Argument analysis: Justices dubious about tribal immunity from state-court actions to adjudicate title to land, but hesitant to embrace new theory, SCOTUSblog (Mar. 21, 2018, 7:31 PM),