Upper Skagit Tribe v. Lundgren , 200 L. Ed. 2d 931 ( 2018 )

(Slip Opinion) OCTOBER TERM, 2017 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
UPPER SKAGIT INDIAN TRIBE v. LUNDGREN ET VIR
CERTIORARI TO THE SUPREME COURT OF WASHINGTON
No. 17–387. Argued March 21, 2018—Decided May 21, 2018
The Upper Skagit Indian Tribe purchased a roughly 40-acre plot of land
and then commissioned a boundary survey. The survey convinced
the Tribe that about an acre of its land lay on the other side of a
boundary fence between its land and land owned by Sharline and
Ray Lundgren. The Lundgrens filed a quiet title action in Washing-
ton state court, invoking the doctrines of adverse possession and mu-
tual acquiescence, but the Tribe asserted sovereign immunity from
the suit. Ultimately, the State Supreme Court rejected the Tribe’s
immunity claim and ruled for the Lundgrens, reasoning that, under
County of Yakima v. Confederated Tribes and Bands of Yakima Na-
tion, 502 U.S. 251, tribal sovereign immunity does not apply to in
rem suits.
Held: Yakima addressed not the scope of tribal sovereign immunity, but
a question of statutory interpretation of the Indian General Allot-
ment Act of 1887. That Act authorized the President to allot parcels
of reservation land to individual tribal members and directed the
United States eventually to issue fee patents to the allottees as pri-
vate individuals. In 1934, Congress reversed course but made no at-
tempt to withdraw the lands already conveyed. As a result, Indian
reservations sometimes contain both trust land held by the United
States and fee-patented land held by private parties. Yakima con-
cerned the tax consequences of this intermixture. This Court had
previously held that §6 of the General Allotment Act could no longer
be read as allowing States to impose in personam taxes on transac-
tions between Indians on fee-patented land within a reservation.
Moe v. Confederated Salish and Kootenai Tribes of Flathead Reserva-
tion, 425 U.S. 463, 479–481. The Court reached a different conclu-
sion in Yakima with respect to in rem state taxes, holding that the
state collection of property taxes on fee-patented land within reserva-
2 UPPER SKAGIT TRIBE v. LUNDGREN
Syllabus
tions was still allowed under §6. 502 U.S., at 265. In short, Yakima
sought only to interpret a relic of a statute in light of a distinguisha-
ble precedent; it resolved nothing about the law of sovereign immuni-
ty.
Acknowledging this, the Lundgrens now ask the Court to affirm on
an alternative, common-law ground: that the Tribe cannot assert
sovereign immunity because this suit relates to immovable property
located in Washington State, purchased by the Tribe in the same
manner as a private individual. Because this alternative argument
did not emerge until late in this case, the Washington Supreme Court
should address it in the first instance. Pp. 3–7.
187 Wash. 2d 857, 389 P.3d 569, vacated and remanded.
GORSUCH, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and KENNEDY, GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ.,
joined. ROBERTS, C. J., filed a concurring opinion, in which KENNEDY,
J., joined. THOMAS, J., filed a dissenting opinion, in which ALITO, J.,
joined.
Cite as: 584 U. S. ____ (2018) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 17–387
_________________
UPPER SKAGIT INDIAN TRIBE, PETITIONER v.
SHARLINE LUNDGREN, ET VIR
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
WASHINGTON
[May 21, 2018]
JUSTICE GORSUCH delivered the opinion of the Court.
Lower courts disagree about the significance of our
decision in County of Yakima v. Confederated Tribes and
Bands of Yakima Nation, 502 U.S. 251 (1992). Some
think it means Indian tribes lack sovereign immunity in
in rem lawsuits like this one; others don’t read it that way
at all.* We granted certiorari to set things straight. 583
U. S. ___ (2017).
Ancestors of the Upper Skagit Tribe lived for centuries
along the Skagit River in northwestern Washington State.
But as settlers moved across the Cascades and into the
region, the federal government sought to make room for
them by displacing native tribes. In the treaty that fol-
lowed with representatives of the Skagit people and oth-
ers, the tribes agreed to “cede, relinquish, and convey”
——————
* Compare 187 Wash. 2d 857, 865–869, 389 P.3d 569, 573–574 (2017)
(case below); Cass County Joint Water Resource Dist. v. 1.43 Acres of
Land in Highland Twp., 2002 ND 83, 643 N.W.2d 685, 691–693 (2002)
(conforming to the Washington Supreme Court’s interpretation of
Yakima), with Hamaatsa, Inc. v. Pueblo of San Felipe, 2017–NMSC–
007, 388 P.3d 977, 986 (2016) (disagreeing); Cayuga Indian Nation of
N. Y. v. Seneca County, 761 F.3d 218, 221 (CA2 2014) (same).
2 UPPER SKAGIT TRIBE v. LUNDGREN
Opinion of the Court
their lands to the United States in return for $150,000 and
other promises. Treaty of Point Elliott, Jan. 22, 1855, 12
Stat. 927; see Washington v. Washington State Commer-
cial Passenger Fishing Vessel Assn., 443 U.S. 658, 676
(1979); United States v. Washington, 384 F. Supp. 312, 333
(WD Wash. 1974).
Today’s dispute stems from the Upper Skagit Tribe’s
efforts to recover a portion of the land it lost. In 1981, the
federal government set aside a small reservation for the
Tribe. 46 Fed. Reg. 46681. More recently, the Tribe has
sought to purchase additional tracts in market transac-
tions. In 2013, the Tribe bought roughly 40 acres where, it
says, tribal members who died of smallpox are buried.
The Tribe bought the property with an eye to asking the
federal government to take the land into trust and add it
to the existing reservation next door. See 25 U.S. C.
§5108; 25 CFR §151.4 (2013). Toward that end, the Tribe
commissioned a survey of the plot so it could confirm the
property’s boundaries. But then a question arose.
The problem was a barbed wire fence. 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. The survey convinced the Tribe that the fence
is in the wrong place, leaving about an acre of its land on
the Lundgrens’ side. So the Tribe informed its new neigh-
bors that it intended to tear down the fence; clearcut the
intervening acre; and build a new fence in the right spot.
In response, the Lundgrens filed this quiet title action in
Washington state court. Invoking the doctrines of adverse
possession and mutual acquiescence, the Lundgrens of-
fered evidence showing that the fence has stood in the
same place for years, that they have treated the disputed
acre as their own, and that the previous owner of the
Tribe’s tract long ago accepted the Lundrens’ claim to the
land lying on their side of the fence. For its part, the Tribe
asserted sovereign immunity from the suit. It relied upon
Cite as: 584 U. S. ____ (2018) 3
Opinion of the Court
the many decisions of this Court recognizing the sovereign
authority of Native American tribes and their right to “the
common-law immunity from suit traditionally enjoyed by
sovereign powers.” Michigan v. Bay Mills Indian Com-
munity, 572 U. S. ___, ___ (2014) (slip op., at 5) (internal
quotation marks omitted).
Ultimately, the Supreme Court of Washington rejected
the Tribe’s claim of immunity and ruled for the
Lundgrens. The court reasoned that sovereign immunity
does not apply to cases where a judge “exercis[es] in rem
jurisdiction” to quiet title in a parcel of land owned by a
Tribe, but only to cases where a judge seeks to exercise in
personam jurisdiction over the Tribe itself. 187 Wash. 2d
857, 867, 389 P.3d 569, 573 (2017). In coming to this
conclusion, the court relied in part on our decision in
Yakima. Like some courts before it, the Washington
Supreme Court read Yakima as distinguishing in rem
from in personam lawsuits and “establish[ing] the princi-
ple that . . . courts have subject matter jurisdiction over
in rem proceedings in certain situations where claims of
sovereign immunity are asserted.” 187 Wash. 2d, at 868,
389 P.3d, at 574.
That was error. Yakima did not address the scope of
tribal sovereign immunity. Instead, it involved only a
much more prosaic question of statutory interpretation
concerning the Indian General Allotment Act of 1887. See
24 Stat. 388.
Some background helps dispel the misunderstanding.
The General Allotment Act represented part of Congress’s
late Nineteenth Century Indian policy: “to extinguish
tribal sovereignty, erase reservation boundaries, and force
the assimilation of Indians into the society at large.”
Yakima, supra, at 254; In re Heff, 197 U.S. 488, 499
(1905). It authorized the President to allot parcels of
reservation land to individual tribal members. The law
then directed the United States to hold the allotted parcel
4 UPPER SKAGIT TRIBE v. LUNDGREN
Opinion of the Court
in trust for some years, and afterwards issue a fee patent
to the allottee. 24 Stat. 389. Section 6 of the Act, as
amended, provided that once a fee patent issued, “each
and every allottee shall have the benefit of and be subject
to the laws, both civil and criminal, of the State or Territory
in which they may reside” and “all restrictions as to sale,
incumbrance, or taxation of said land shall be removed.”
25 U.S. C. §349.
In 1934, Congress reversed course. It enacted the Indian
Reorganization Act, 48 Stat. 984, to restore “the principles
of tribal self-determination and self-governance” that
prevailed before the General Allotment Act. Yakima, 502
U.S., at 255. “Congress halted further allotments and
extended indefinitely the existing periods of trust applica-
ble to” parcels that were not yet fee patented. Ibid.; see 25
U.S. C. §§461–462. But the Legislature made no attempt
to withdraw lands already conveyed to private persons
through fee patents (and by now sometimes conveyed to
non-Indians). As a result, Indian reservations today
sometimes contain two kinds of land intermixed in a kind
of checkerboard pattern: trust land held by the United
States and fee-patented land held by private parties. See
Yakima, supra, at 256.
Yakima concerned the tax consequences of this checker-
board. Recall that the amended version of §6 of the
General Allotment Act rendered allottees and their fee-
patented land subject to state regulations and taxes. 25
U.S. C. §349. Despite that, in Moe v. Confederated Salish
and Kootenai Tribes of Flathead Reservation, 425 U.S.
463 (1976), this Court held that §6 could no longer be read
as allowing States to impose in personam taxes (like those
on cigarette sales) on transactions between Indians on fee-
patented land within a reservation. Id., at 479–481.
Among other things, the Court pointed to the impracticality
of using the ownership of a particular parcel within a
reservation to determine the law governing transactions
Cite as: 584 U. S. ____ (2018) 5
Opinion of the Court
taking place upon it. See id., at 478–479. Despite Moe
and some years later, this Court in Yakima reached a
different conclusion with respect to in rem state taxes.
The Court held that allowing States to collect property
taxes on fee-patented land within reservations was still
allowed by §6. Yakima, supra, at 265. Unlike the in
personam taxes condemned in Moe, the Court held that
imposing in rem taxes only on the fee-patented squares of
the checkerboard was “not impracticable” because property
tax assessors make “parcel-by-parcel determinations”
about property tax liability all the time. Yakima, supra,
at 265. In short, Yakima sought only to interpret a relic of
a statute in light of a distinguishable precedent; it re-
solved nothing about the law of sovereign immunity.
Commendably, the Lundgrens acknowledged all this at
oral argument. Tr. of Oral Arg. 36. Instead of seeking to
defend the Washington Supreme Court’s reliance on Ya-
kima, they now ask us to affirm their judgment on an
entirely distinct alternative ground. At common law, they
say, sovereigns enjoyed no immunity from actions involv-
ing immovable property located in the territory of another
sovereign. As our cases have put it, “[a] prince, by acquir-
ing private property in a foreign country, . . . may be con-
sidered as so far laying down the prince, and assuming the
character of a private individual.” Schooner Exchange v.
McFaddon, 7 Cranch 116, 145 (1812). Relying on this line
of reasoning, the Lundgrens argue, the Tribe cannot assert
sovereign immunity because this suit relates to immovable
property located in the State of Washington that the Tribe
purchased in the “the character of a private individual.”
The Tribe and the federal government disagree. They
note that immunity doctrines lifted from other contexts do
not always neatly apply to Indian tribes. See Kiowa Tribe
of Okla. v. Manufacturing Technologies, Inc., 523 U.S.
751, 756 (1998) (“[T]he immunity possessed by Indian
tribes is not coextensive with that of the States”). And
6 UPPER SKAGIT TRIBE v. LUNDGREN
Opinion of the Court
since the founding, they say, the political branches rather
than judges have held primary responsibility for determin-
ing when foreign sovereigns may be sued for their activi-
ties in this country. Verlinden B. V. v. Central Bank of
Nigeria, 461 U.S. 480, 486 (1983); Ex parte Peru, 318
U.S. 578, 588 (1943).
We leave it to the Washington Supreme Court to ad-
dress these arguments in the first instance. Although we
have discretion to affirm on any ground supported by the
law and the record that will not expand the relief granted
below, Thigpen v. Roberts, 468 U.S. 27, 30 (1984), in this
case we think restraint is the best use of discretion. De-
termining 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; and the alternative
argument for affirmance did not emerge until late in this
case. In fact, it appeared only when the United States
filed an amicus brief in this case—after briefing on certio-
rari, after the Tribe filed its opening brief, and after the
Tribe’s other amici had their say. This Court has often
declined to take a “first view” of questions that make their
appearance in this posture, and we think that course the
wise one today. Cutter v. Wilkinson, 544 U.S. 709, 718,
n. 7 (2005).
The dissent is displeased with our decision on this score,
but a contradiction lies at the heart of its critique. First,
the dissent assures us that the immovable property excep-
tion applies with irresistible force—nothing more than a
matter of “hornbook law.” Post, at 3–10 (opinion of
THOMAS, J.). But then, the dissent claims that allowing
the Washington Supreme Court to address that exception
is a “grave” decision that “casts uncertainty” over the law
and leaves lower courts with insufficient “guidance.” Post,
at 3, 13–14. Both cannot be true. If the immovable prop-
erty exception presents such an easy question, then it’s
hard to see what terrible things could happen if we allow
Cite as: 584 U. S. ____ (2018) 7
Opinion of the Court
the Washington Supreme Court to answer it. Surely our
state court colleagues are no less versed than we in “horn-
book law,” and we are confident they can and will faithfully
apply it. And what if, instead, the question turns out to be
more complicated than the dissent promises? In that case
the virtues of inviting full adversarial testing will have
proved themselves once again. Either way, we remain
sanguine about the consequences.
The dissent’s other objection to a remand rests on a
belief that the immovable property exception was the
source of “the disagreement that led us to take this case.”
Post, at 1. But this too is mistaken. As we’ve explained,
the courts below and the certiorari-stage briefs before us
said precisely nothing on the subject. Nor do we under-
stand how the dissent might think otherwise—for its
essential premise is that no disagreement exists, or is even
possible, about the exception’s scope. The source of confu-
sion in the lower courts that led to our review was the one
about Yakima, see supra, at 1, n., and we have dispelled it.
That is work enough for the day. We vacate the judgment
and remand the case for further proceedings not incon-
sistent with this opinion.
It is so ordered.
Cite as: 584 U. S. ____ (2018) 1
ROBERTS, C. J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 17–387
_________________
UPPER SKAGIT INDIAN TRIBE, PETITIONER v.
SHARLINE LUNDGREN, ET VIR
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
WASHINGTON
[May 21, 2018]
CHIEF JUSTICE ROBERTS, with whom JUSTICE KENNEDY
joins, concurring.
I join the opinion of the Court in full.
But that opinion poses an unanswered question: What
precisely is someone in the Lundgrens’ position supposed
to do? 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. 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.
The Tribe suggests that the proper mode of redress is for
the Lundgrens—who purchased their property long before
the Tribe came into the picture—to negotiate with the
Tribe. Although the parties got off on the wrong foot here,
the Tribe insists that negotiations would run more
smoothly if the Lundgrens “understood [its] immunity
from suit.” Tr. of Oral Arg. 60. In other words, once the
Court makes clear that the Lundgrens ultimately have no
recourse, the parties can begin working toward a sensible
settlement. That, in my mind at least, is not a meaningful
remedy.
The Solicitor General proposes a different out-of-court
2 UPPER SKAGIT TRIBE v. LUNDGREN
ROBERTS, C. J., concurring
solution. Taking up this Court’s passing comment that a
disappointed litigant may continue to assert his title, see
Block v. North Dakota ex rel. Board of Univ. and School
Lands, 461 U.S. 273, 291–292 (1983), the Solicitor Gen-
eral more pointedly suggests that the Lundgrens should
steer into the conflict: Go onto the disputed property and
chop down some trees, build a shed, or otherwise attempt
to “induce [the Tribe] to file a quiet-title action.” Brief for
United States as Amicus Curiae 23–24. Such brazen
tactics may well have the desired effect of causing the
Tribe to waive its sovereign immunity. 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 consequences of the Court’s decision today thus
seem intolerable, unless there is another means of resolv-
ing property disputes of this sort. Such a possibility was
discussed in the Solicitor General’s brief, the Lundgrens’
brief, and the Tribe’s reply brief, and extensively explored
at oral argument—the exception to sovereign immunity
for actions to determine rights in immovable property.
After all, “property ownership is not an inherently sover-
eign function.” Permanent Mission of India to United
Nations v. City of New York, 551 U.S. 193, 199 (2007).
Since the 18th century, it has been a settled principle of
international law that a foreign state holding real prop-
erty outside its territory is treated just like a private indi-
vidual. Schooner Exchange v. McFaddon, 7 Cranch 116,
145 (1812). The same rule applies as a limitation on the
sovereign immunity of States claiming an interest in land
located within other States. See Georgia v. Chattanooga,
264 U.S. 472, 480–482 (1924). The only question, as the
Solicitor General concedes, Brief for United States as
Amicus Curiae 25, is whether different principles afford
Indian tribes a broader immunity from actions involving
off-reservation land.
Cite as: 584 U. S. ____ (2018) 3
ROBERTS, C. J., concurring
I do not object to the Court’s determination to forgo
consideration of the immovable-property rule at this time.
But if it turns out that the rule does not extend to tribal
assertions of rights in non-trust, non-reservation property,
the applicability of sovereign immunity in such circum-
stances would, in my view, need to be addressed in a
future case. See Michigan v. Bay Mills Indian Commu-
nity, 572 U. S. ___, ___, n. 8 (2014) (slip op., at 16, n. 8)
(reserving the question whether sovereign immunity
would apply if a “plaintiff who has not chosen to deal with
a tribe[ ] has no alternative way to obtain relief for off-
reservation commercial conduct”). 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.
Cite as: 584 U. S. ____ (2018) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 17–387
_________________
UPPER SKAGIT INDIAN TRIBE, PETITIONER v.
SHARLINE LUNDGREN, ET VIR
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
WASHINGTON
[May 21, 2018]
JUSTICE THOMAS, with whom JUSTICE ALITO joins,
dissenting.
We granted certiorari to decide whether “a court’s exer-
cise of in rem jurisdiction overcome[s] the jurisdictional
bar of tribal sovereign immunity.” Pet. for Cert. i; 583
U. S. ___ (2017). State and federal courts are divided on
that question, but the Court does not give them an an-
swer. Instead, it holds only that County of Yakima v.
Confederated Tribes and Bands of Yakima Nation, 502
U.S. 251 (1992), “resolved nothing about the law of [tribal]
sovereign immunity.” Ante, at 5. Unfortunately, neither
does the decision today—except to say that courts cannot
rely on County of Yakima. As a result, the disagreement
that led us to take this case will persist.
The Court easily could have resolved that disagreement
by addressing respondents’ alternative ground for affir-
mance. Sharline and Ray Lundgren—whose family has
maintained the land in question for more than 70 years—
ask us to affirm based on the “immovable property” excep-
tion to sovereign immunity. That exception is settled,
longstanding, and obviously applies to tribal immunity—
as it does to every other type of sovereign immunity that
has ever been recognized. Although the Lundgrens did
not raise this argument below, we have the discretion to
reach it. I would have done so. The immovable-property
2 UPPER SKAGIT TRIBE v. LUNDGREN
THOMAS, J., dissenting
exception was extensively briefed and argued, and its
application here is straightforward. Addressing the excep-
tion now would have ensured that property owners like
the Lundgrens can protect their rights and that States like
Washington can protect their sovereignty. Because the
Court unnecessarily chooses to leave them in limbo, I
respectfully dissent.
I
As the Court points out, the parties did not raise the
immovable-property exception below or in their certiorari-
stage briefs. See ante, at 6. But this Court will resolve
arguments raised for the first time in the merits briefs
when they are a “ ‘ “predicate to an intelligent resolution”
of the question presented’ ” and thus “ ‘fairly included’
within the question presented.” Caterpillar Inc. v. Lewis,
519 U.S. 61, 75, n. 13 (1996) (quoting Ohio v. Robinette,
519 U.S. 33, 38 (1996); this Court’s Rule 14.1). The Court
agrees that the immovable-property exception is necessary
to an intelligent resolution of the question presented,
which is why it remands that issue to the Washington
Supreme Court. See ante, at 6–7. But our normal practice
is to address the issue ourselves, unless there are “good
reasons to decline to exercise our discretion.” Jones v.
United States, 527 U.S. 373, 397, n. 12 (1999) (plurality
opinion).
There are no good reasons here. The Court’s only prof-
fered reason is that the applicability of the immovable-
property exception is a “grave question” that “will affect
all tribes, not just the one before us.” Ante, at 6.1 The
——————
1 The Court does not question the adequacy of the briefing or identify
factual questions that need further development. Nor could it. The
immovable-property exception received extensive attention in the
parties’ briefs, see Brief for Respondents 9–26; Reply Brief 13–24, and
the Government’s amicus brief, see Brief for United States 25–33. Most
Cite as: 584 U. S. ____ (2018) 3
THOMAS, J., dissenting
exception’s applicability might be “grave,” but it is also
clear. And most questions decided by this Court will affect
more than the parties “before us”; that is one of the primary
reasons why we grant certiorari. See this Court’s Rule
10(c) (explaining that certiorari review is usually reserved
for cases involving “an important question of federal law”
that has divided the state or federal courts). Moreover,
the Court’s decision to forgo answering the question pre-
sented is no less “grave.” It forces the Lundgrens to
squander additional years and resources litigating their
right to litigate. And it casts uncertainty over the sover-
eign rights of States to maintain jurisdiction over their
respective territories.
Contrary to the Court’s suggestion, ante, at 6–7, I have
no doubt that our state-court colleagues will faithfully
interpret and apply the law on remand. But I also have no
doubt that this Court “ha[s] an ‘obligation . . . to decide the
merits of the question presented’ ” in the cases that come
before us. Encino Motorcars, LLC v. Navarro, 579 U. S.
___, ___ (2016) (THOMAS, J., dissenting) (slip op., at 1).
The Court should have discharged that obligation here.
II
I would have resolved this case based on the immovable-
property exception to sovereign immunity. That excep-
tion is well established. And it plainly extends to tribal
immunity, as it does to every other form of sovereign
immunity.
A
The immovable-property exception has been hornbook
——————
of the oral argument likewise focused on the immovable-property
exception. See Tr. of Oral Arg. 14–16, 19–29, 34–51, 54–59. And when
asked at oral argument what else it could say about the exception if it
had more time, the Tribe had no response. See id., at 19–21.
4 UPPER SKAGIT TRIBE v. LUNDGREN
THOMAS, J., dissenting
law almost as long as there have been hornbooks. For
centuries, there has been “uniform authority in support of
the view that there is no immunity from jurisdiction with
respect to actions relating to immovable property.” Lau-
terpacht, The Problem of Jurisdictional Immunities of
Foreign States, 28 Brit. Y. B. Int’l Law 220, 244 (1951).2
This immovable-property exception predates both the
founding and the Tribe’s treaty with the United States.
Cornelius van Bynkershoek, a renowned 18th-century
jurist,3 stated that it was “established” that “property
which a prince has purchased for himself in the dominions
of another . . . shall be treated just like the property of
private individuals.” De Foro Legatorum Liber Singularis
22 (G. Laing transl. 2d ed. 1946). His conclusion echoed
——————
2 There is some disagreement about the outer bounds of this excep-
tion—for example, whether it applies to tort claims related to the
property or to diplomatic embassies. See, e.g., Letter from J. Tate,
Acting Legal Adviser, Dept. of State, to Acting Attorney General P.
Perlman (May 19, 1952), 26 Dept. of State Bull. 984, 984–985 (Tate
Letter); see also C. Bynkershoek, De Foro Legatorum Liber Singularis
22–23 (G. Laing transl. 2d ed. 1946) (explaining there is “no unanimity”
regarding attaching a foreign prince’s debts to immovable property).
But there is no dispute that it covers suits concerning ownership of a
piece of real property used for nondiplomatic reasons. See Tate Letter
984; Brief for United States as Amicus Curiae 27–28. In other words,
there is no dispute that it applies to in rem suits like this one.
3 Considered “a jurist of great reputation” by Chief Justice Marshall,
Schooner Exchange v. McFaddon, 7 Cranch 116, 144 (1812), “Bynker-
shoek’s influence in the eighteenth century [w]as enormous,” Adler, The
President’s Recognition Power, in The Constitution and the Conduct of
American Foreign Policy 133, 153, n. 19 (G. Adler & L. George eds.
1996) (internal quotation marks omitted). Madison, for example,
consulted Bynkershoek’s works (on the recommendation of Jefferson)
while preparing to draft the Constitution. See Letter from Thomas
Jefferson to James Madison (Feb. 20, 1784), in 4 The Works of Thomas
Jefferson 239, 248 (P. Ford ed. 1904); Letter from James Madison to
Thomas Jefferson (Mar. 16, 1784), in 2 The Writings of James Madison
34, 43 (G. Hunt ed. 1901).
Cite as: 584 U. S. ____ (2018) 5
THOMAS, J., dissenting
the 16th-century legal scholar Oswald Hilliger. See ibid.
About a decade after Bynkershoek, Emer de Vattel ex-
plained that, when “sovereigns have fiefs and other pos-
sessions in the territory of another prince; in such cases
they hold them after the manner of private individuals.” 3
The Law of Nations §83, p. 139 (C. Fenwick transl. 1916);
see also E. de Vattel, The Law of Nations §115, p. 493 (J.
Chitty ed. 1872) (“All landed estates, all immovable prop-
erty, by whomsoever possessed, are subject to the jurisdic-
tion of the country”).4
The immovable-property exception is a corollary of the
ancient principle of lex rei sitae. Sometimes called lex
situs or lex loci rei sitae, the principle provides that “land
is governed by the law of the place where it is situated.”
F. Wharton, Conflict of Laws §273, p. 607 (G. Parmele ed.,
3d ed. 1905). It reflects the fact that a sovereign “cannot
suffer its own laws . . . to be changed” by another sover-
eign. H. Wheaton, Elements of International Law §81,
p. 114 (1866). As then-Judge Scalia explained, it is “self-
evident” that “[a] territorial sovereign has a primeval
interest in resolving all disputes over use or right to use of
real property within its own domain.” Asociacion de
Reclamantes v. United Mexican States, 735 F.2d 1517,
1521 (CADC 1984). And because “land is so indissolubly
connected with the territory of a State,” a State “cannot
permit” a foreign sovereign to displace its jurisdiction by
purchasing land and then claiming “immunity.” Compe-
tence of Courts in Regard to Foreign States, 26 Am. J. Int’l
L. Supp. 451, 578 (1932) (Competence of Courts). An
assertion of immunity by a foreign sovereign over real
property is an attack on the sovereignty of “the State of
——————
4 De Vattel’s work was “a leading treatise” of its era. Jesner v. Arab
Bank, PLC, ante, at 9, n. 3 (GORSUCH, J., concurring in part and concur-
ring in judgment).
6 UPPER SKAGIT TRIBE v. LUNDGREN
THOMAS, J., dissenting
the situs.” Ibid.
The principle of lex rei sitae was so well established by
the 19th century that Chancellor James Kent deemed it
“too clear for discussion.” 2 Commentaries on American
Law 429, n. a (4th ed. 1840). The medieval jurist Bartolus
of Sassoferatto had recognized the principle 500 years
earlier in his commentary on conflicts of law under the
Justinian Code. See Bartolus, Conflict of Laws 29 (J.
Beale transl. 1914).5 Bartolus explained that, “when there
is a question of any right growing out of a thing itself, the
custom or statute of the place where the thing is should be
observed.” Ibid. Later authorities writing on conflicts of
law consistently agreed that lex rei sitae determined the
governing law in real-property disputes.6 And this Court
likewise held, nearly 200 years ago, that “the nature of
——————
5 In the foreword to his translation of Bartolus, Joseph Henry Beale
described him as “the most imposing figure among the lawyers of the
middle ages,” whose work was “the first and standard statement of the
doctrines of the Conflict of Laws.” Bartolus, Conflict of Laws, at 9.
6 See, e.g., F. von Savigny, Conflict of Laws 130 (W. Guthrie transl.
1869) (“This principle [of lex rei sitae] has been generally accepted from
a very early time”); G. Bowyer, Commentaries on Universal Public Law
160 (1854) (“[W]here the matter in controversy is the right and title to
land or other immovable property, the judgment pronounced in the
forum rei sitae is held conclusive in other countries”); H. Wheaton,
Elements of International Law §81, p. 114 (G. Wilson ed. 1936) (“[T]he
law of a place where real property is situated governs exclusively as to
the tenure, title, and the descent of such property”); J. Story, Commen-
taries on the Conflict of Laws §424, p. 708 (rev. 3d ed. 1846) (“The title
. . . to real property can be acquired, passed, and lost only according to
the Lex rei sitae”); J. Westlake, Private International Law *56 (“The
right to possession of land can only be tried in the courts of the situs”);
L. Bar, International Law 241–242 (G. Gillespie transl. 1883) (noting
that, in “the simpler case of immoveables,” “[t]he lex rei sitae is the
rule”); F. Wharton, 1 Conflict of Laws §273, p. 607 (G. Parmele ed., 3d
ed. 1905) (“Jurists of all schools, and courts of all nations, are agreed
in holding that land is governed by the law of the place where it is
situated”).
Cite as: 584 U. S. ____ (2018) 7
THOMAS, J., dissenting
sovereignty” requires that “[e]very government” have “the
exclusive right of regulating the descent, distribution, and
grants of the domain within its own boundaries.” Green v.
Biddle, 8 Wheat. 1, 12 (1823) (Story, J.).
The acceptance of the immovable-property exception has
not wavered over time. In the 20th century, as nations
increasingly owned foreign property, it remained “well
settled in International law that foreign state immunity
need not be extended in cases dealing with rights to inter-
ests in real property.” Weber, The Foreign Sovereign
Immunities Act of 1976: Its Origin, Meaning, and Effect, 3
Yale J. Int’l L. 1, 33 (1976). Countries around the world
continued to recognize the exception in their statutory and
decisional law. See Competence of Courts 572–590 (noting
support for the exception in statutes from Austria, Ger-
many, Hungary, and Italy, as well as decisions from the
United States, Austria, Chile, Czechoslovakia, Egypt,
France, Germany, and Romania). “All modern authors
are, in fact, agreed that in all disputes in rem regarding
immovable property, the judicial authorities of the State
possess as full a jurisdiction over foreign States as they
do over foreign individuals.” C. Hyde, 2 International
Law 848, n. 33 (2d ed. 1945) (internal quotation marks
omitted).
The Restatement of Foreign Relations Law reflects this
unbroken consensus. Every iteration of the Restatement
has deemed a suit concerning the ownership of real prop-
erty to be “outside the scope of the principle of [sovereign]
immunity of a foreign state.” Restatement of Foreign
Relations Law of the United States (Proposed Official
Draft) §71, Comment c, p. 228 (1962); see also Restate-
ment (Second) of Foreign Relations Law of the United
States §68(b) (1965) (similar); Restatement (Third) of
Foreign Relations Law of the United States §455(1)(c)
(1987) (denying that immunity exists for “claims . . . to
immovable property in the state of the forum”); Restate-
8 UPPER SKAGIT TRIBE v. LUNDGREN
THOMAS, J., dissenting
ment (Fourth) of Foreign Relations Law of the United
States §456(2) (Tent. Draft No. 2, Mar. 22, 2016) (recogniz-
ing “jurisdiction over a foreign state in any case in which
rights in immovable property situated in the United
States are in issue”). Sovereign immunity, the First Re-
statement explains, does not bar “an action to obtain
possession of or establish an ownership interest in immov-
able property located in the territory of the state exercis-
ing jurisdiction.” §71(b), at 226.
Given the centuries of uniform agreement on the
immovable-property exception, it is no surprise that all
three branches of the United States Government have
recognized it. Writing for a unanimous Court and drawing
on Bynkershoek and De Vattel, Chief Justice Marshall
noted that “the property of a foreign sovereign is not dis-
tinguishable by any legal exemption from the property of
an ordinary individual.” Schooner Exchange v. McFaddon,
7 Cranch 116, 144–145 (1812). Thus, “[a] prince, by ac-
quiring private property in a foreign country, may possibly
be considered as subjecting that property to the territorial
jurisdiction . . . and assuming the character of a private
individual.” Id., at 145.7 The Court echoed this reasoning
over a century later, holding that state sovereign immunity
does not extend to “[l]and acquired by one State in another
State.” Georgia v. Chattanooga, 264 U.S. 472, 480 (1924).
In 1952, the State Department acknowledged that “[t]here
is agreement[,] supported by practice, that sovereign
immunity should not be claimed or granted in actions with
respect to real property.” Tate Letter 984.8 Two decades
——————
7 The Skagit Tribe entered into its treaty with the United States four
decades later. See Treaty of Point Elliott, Apr. 11, 1859, 12 Stat. 927.
The treaty does not mention sovereignty or otherwise alter the rule laid
out in Schooner Exchange.
8 This declaration has long been “the official policy of our Govern-
ment.” Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S.
Cite as: 584 U. S. ____ (2018) 9
THOMAS, J., dissenting
later, Congress endorsed the immovable-property excep-
tion by including it in the Foreign Sovereign Immunities
Act of 1976. See 28 U.S. C. §1605(a)(4) (“A foreign state
shall not be immune from the jurisdiction of courts of the
United States . . . in any case . . . in which . . . rights in
immovable property situated in the United States are in
issue”). This statutory exception was “meant to codify the
pre-existing real property exception to sovereign immunity
recognized by international practice.” Permanent Mission
of India to United Nations v. City of New York, 551 U.S.
193, 200 (2007) (emphasis added; internal quotation
marks omitted).
The Court does not question any of the foregoing author-
ities. Nor did the parties provide any reason to do so. The
Government, when asked to identify its “best authority for
the proposition that the baseline rule of common law was
total immunity, including in rem actions,” pointed to just
two sources. See Tr. of Oral Arg. 29; Brief for United
States as Amicus Curiae 10, 26. The first was Hamilton’s
statement that “[i]t is inherent in the nature of sovereignty
not to be amenable to the suit of an individual without its
consent.” The Federalist No. 81, p. 487 (C. Rossiter ed.
1961) (emphasis deleted). Yet “property ownership is not
an inherently sovereign function,” Permanent Mission,
supra, at 199, and Hamilton’s general statement does not
suggest that immunity is automatically available or is not
subject to longstanding exceptions. The Government also
cited Schooner Exchange. But as explained above, that
——————
682, 698 (1976). The State Department has reaffirmed it on several
occasions. See, e.g., Dept. of State, J. Sweeney, Policy Research Study:
The International Law of Sovereign Immunity 24 (1963) (“The immunity
from jurisdiction of a foreign state does not extend to actions for
the determination of an interest in immovable—or real—property in
the territory. This limitation on the immunity of the state is of long
standing”).
10 UPPER SKAGIT TRIBE v. LUNDGREN
THOMAS, J., dissenting
decision expressly acknowledges the immovable-property
exception. The Government’s unconvincing arguments
cannot overcome more than six centuries of consensus on
the validity of the immovable-property exception.
B
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.
Just last Term, this Court refused to “exten[d]” tribal
immunity “beyond what common-law sovereign immunity
principles would recognize.” Lewis v. Clarke, 581 U. S.
___, ___–___ (2017) (slip op., at 7–8). Tribes are “domestic
dependent nations,” Cherokee Nation v. Georgia, 5 Pet. 1,
17 (1831), that “no longer posses[s] the full attributes of
sovereignty,” United States v. Wheeler, 435 U.S. 313, 323
(1978) (internal quotation marks omitted). Given the
“limited character” of their sovereignty, ibid., Indian
tribes possess only “the common-law immunity from suit
traditionally enjoyed by sovereign powers,” Santa Clara
Pueblo v. Martinez, 436 U.S. 49, 58 (1978). That is why
this Court recently declined an invitation to make tribal
immunity “broader than the protection offered by state or
federal sovereign immunity.” Lewis, 581 U. S., at ___ (slip
op., at 8). Accordingly, because States and foreign coun-
tries are subject to the immovable-property exception,
Indian tribes are too. “There is no reason to depart from
these general rules in the context of tribal sovereign im-
munity.” Id., at ___ (slip op., at 7).
In declining to reach the immovable-property exception,
the Court highlights two counterarguments that the Tribe
and the United States have raised for why the exception
should not extend to tribal immunity. Neither argument
has any merit.
First, the Court notes that “immunity doctrines lifted
Cite as: 584 U. S. ____ (2018) 11
THOMAS, J., dissenting
from other contexts do not always neatly apply to Indian
tribes.” Ante, at 5 (citing Kiowa Tribe of Okla. v. Manufac-
turing Technologies, Inc., 523 U.S. 751, 756 (1998)). But
the Court’s authority for that proposition merely states
that tribal immunity “is not coextensive with that of the
States.” Id., at 756 (emphasis added). Even assuming
that is so, it does not mean that the Tribe’s immunity can
be more expansive than any recognized form of sovereign
immunity, including the immunity of the United States
and foreign countries. See Lewis, supra, at ___–___ (slip
op., at 7–8). And the Tribe admits that this Court has
previously limited tribal immunity to conform with analo-
gous “limitations . . . in suits against the United States.”
Reply Brief 22. No one argues that the United States
could claim sovereign immunity if it wrongfully asserted
ownership of private property in a foreign country—the
equivalent of what the Tribe did here. The United States
plainly would be subject to suit in that country’s courts.
See Competence of Courts 572–590.
Second, the Court cites two decisions for the proposition
that “since the founding . . . the political branches rather
than judges have held primary responsibility for determin-
ing when foreign sovereigns may be sued for their activi-
ties in this country.” Ante, at 6 (citing Verlinden B. V. v.
Central Bank of Nigeria, 461 U.S. 480, 486 (1983); Ex
parte Peru, 318 U.S. 578, 588 (1943)). But those cases did
not involve tribal immunity. They were admiralty suits in
which foreign sovereigns sought to recover ships they
allegedly owned. See Verlinden, supra, at 486 (citing
cases involving ships allegedly owned by Italy, Peru, and
Mexico); Ex parte Peru, supra, at 579 (mandamus action
by Peru regarding its steamship). Those decisions were an
extension of the common-law principle, recognized in
Schooner Exchange, that sovereign immunity applies to
vessels owned by a foreign sovereign. See Berizzi Brothers
Co. v. S. S. Pesaro, 271 U.S. 562, 571–576 (1926). These
12 UPPER SKAGIT TRIBE v. LUNDGREN
THOMAS, J., dissenting
cases encourage deference to the political branches on
sensitive questions of foreign affairs. But they do not
suggest that courts can ignore longstanding limits on
sovereign immunity, such as the immovable-property
exception. And they do not suggest that courts can abdi-
cate their judicial duty to decide the scope of tribal im-
munity—a duty this Court exercised just last Term. See
Lewis, supra, at ___–___ (slip op., at 5–8).9
In fact, those present at “the founding,” ante, at 6, would
be shocked to learn that an Indian tribe could acquire
property in a State and then claim immunity from that
State’s jurisdiction.10 Tribal immunity is “a judicial doc-
trine” that is not mandated by the Constitution. Kiowa,
523 U.S., at 759. It “developed almost by accident,” was
reiterated “with little analysis,” and does not reflect the
realities of modern-day Indian tribes. See id., at 756–758.
The doctrine has become quite “exorbitant,” Michigan v.
Bay Mills Indian Community, 572 U. S. ___, ___ (2014)
(GINSBURG, J., dissenting) (slip op., at 1), and it has been
implausibly “exten[ded] . . . to bar suits arising out of an
——————
9 These decisions about ships, even on their own terms, undercut the
Tribe’s claim to immunity here. The decisions acknowledge a “distinc-
tion between possession and title” that is “supported by the overwhelm-
ing weight of authority” and denies immunity to a foreign sovereign
that has “title . . . without possession.” Republic of Mexico v. Hoffman,
324 U.S. 30, 37–38 (1945); see, e.g., Long v. The Tampico, 16 F. 491,
493–501 (SDNY 1883). That distinction would defeat the Tribe’s claim
to immunity because the Lundgrens have possession of the land. See
187 Wash. 2d 857, 861–864, 389 P.3d 569, 571–572 (2017).
10 Their shock would not be assuaged by the Government’s proposed
remedy. The Government suggests that the Lundgrens should force a
showdown with the Tribe by chopping down trees or building some
structure on the land. See Brief for United States as Amicus Curiae
23–24. If the judge-made doctrine of tribal immunity has come to a
place where it forces individuals to take the law into their own hands to
keep their own land, then it will have crossed the threshold from
mistaken to absurd.
Cite as: 584 U. S. ____ (2018) 13
THOMAS, J., dissenting
Indian tribe’s commercial activities conducted outside its
territory,” id., at ___ (THOMAS, J., dissenting) (slip op.,
at 1).
Extending it even further here would contradict the
bedrock principle that each State is “entitled to the sover-
eignty and jurisdiction over all the territory within her
limits.” Lessee of Pollard v. Hagan, 3 How. 212, 228
(1845); accord, Texas v. White, 7 Wall. 700, 725 (1869);
Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1, 9 (1888)
(collecting cases). Since 1812, this Court has “enter-
tain[ed] no doubt” that “the title to land can be acquired
and lost only in the manner prescribed by the law of the
place where such land is situate[d].” United States v.
Crosby, 7 Cranch 115, 116 (1812) (Story, J.). Justice
Bushrod Washington declared it “an unquestionable prin-
ciple of general law, that the title to, and the disposition of
real property, must be exclusively subject to the laws of
the country where it is situated.” Kerr v. Devisees of
Moon, 9 Wheat. 565, 570 (1824). This Court has been
similarly emphatic ever since. See, e.g., Munday v. Wis-
consin Trust Co., 252 U.S. 499, 503 (1920) (“long ago
declared”); Arndt v. Griggs, 134 U.S. 316, 321 (1890)
(“held repeatedly”); United States v. Fox, 94 U.S. 315, 320
(1877) (“undoubted”); McCormick v. Sullivant, 10 Wheat.
192, 202 (1825) (“an acknowledged principle of law”).
Allowing the judge-made doctrine of tribal immunity to
intrude on such a fundamental aspect of state sovereignty
contradicts the Constitution’s design, which “ ‘leaves to the
several States a residuary and inviolable sovereignty.’ ”
New York v. United States, 505 U.S. 144, 188 (1992)
(quoting The Federalist No. 39, at 256).
* * *
The Court’s failure to address the immovable-property
exception in this case is difficult to justify. It leaves our
colleagues in the state and federal courts with little more
14 UPPER SKAGIT TRIBE v. LUNDGREN
THOMAS, J., dissenting
guidance than they had before. It needlessly delays relief
for the Lundgrens, who must continue to litigate the
threshold question whether they can litigate their indis-
putable right to their land. And it does not address a
clearly erroneous tribal-immunity claim: one that asserts
a sweeping and absolute immunity that no other sovereign
has ever enjoyed—not a State, not a foreign nation, and
not even the United States.
I respectfully dissent.