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SCOTUS Vacates Adverse Possession Claim Against Tribe

By William Vogeler, Esq. | Last updated on

When a judge says a case will be boring, you can believe it.

Justice Neil Gorsuch said as much as he read the opinion of the U.S. Supreme Court in Upper Skagit Indian Tribe v. Lundgren. It was a dispute between a Native American tribe and a family over an adverse possession claim to an acre of land in Washington.

It was not as high-profile as recent decisions over sports betting and mandatory arbitration, but it will make a difference in the near future. The High Court remanded the case to decide whether the property claim is an exception to sovereign immunity.

Sovereign Immunity

The case started with a barbed wire fence. Sharline and Ray Lundgren put up the fence and treated the area as their own for years.

The Upper Skagit Indian Tribe, however, said the land belonged to their ancestors. The Lundgrens filed a quiet title action based on adverse possession.

The tribe responded that it had sovereign immunity in the case, but ultimately the Washington Supreme Court disagreed. Citing County of Yakima v. Confederated Tribes and Bands of Yakima Nation, the state court said sovereign immunity doesn't apply to cases based on in rem jurisdiction.

The U.S. Supreme Court said that was an error. The justices vacated the decision, explaining they didn't address tribal sovereign immunity in Yakima.

Adverse Possession

The Lundgrens apparently saw it coming because they raised another theory on appeal. At common law, they said, sovereigns enjoyed "no immunity from actions involving immovable property located in the territory of another sovereign."

Because the state supreme court didn't address the issue, the U.S. Supreme Court sent it back. While Gorsuch told listeners in court the details of the case "will bore you," he pointed out in his written opinion the importance of the ultimate decision in the case.

"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," he said.

In a dissent, Justice Clarence Thomas suggested that the "immovable property exception" was an easy question and that the court could have resolved the case by "hornbook law." Of course, hornbook law really would have been boring.

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