Washington Supreme Court Rejects Sovereign Immunity Defense in Quiet Title Action

A decision by the Washington Supreme Court conflicts with decisions of other courts on the issue whether plaintiffs can avoid tribal sovereign immunity in suits involving real property by suing “in rem,” i.e., bringing a lawsuit focused on real property rather than its tribal owner. While the Washington decision relates to a lawsuit to quiet title, the Court’s rationale would also support a lawsuit by a state or county to foreclose on land owned by tribes for failure to pay property taxes.

In Lundgren v. Upper Skagit Tribe, 2017 WL 635649 (Wash. 2017), the Upper Skagit Tribe purchased certain fee simple land in 2014 adjoining land owned by the Lundgrens, who had owned the land since 1947. The Lundgrens had long treated a fence that had been on the property since at least 1947 as the boundary of their property. When the Tribe informed the Lundgrens that the fence actually encompassed land owned by the Tribe, the Lundgrens sued to quiet title, arguing they acquired title to the disputed property by adverse possession or by mutual recognition and acquiescence long before the Tribe bought the land. The Tribe moved to dismiss under CR 12(b)(1) for a lack of subject matter jurisdiction based on the Tribe’s sovereign immunity and the rule that requires joinder of a necessary and indispensable party, which the Lundgrens could not satisfy because of the Tribe’s immunity. The trial court denied the Tribe’s motion and the Washington Supreme Court affirmed, citing the U.S. Supreme Court’s 1992 decision in Yakima County upholding Washington’s right to impose a property tax on tribal land and principles of equity: “After the Lundgrens commenced the quiet title action, the Tribe claimed sovereign immunity and joinder under CR 19 to deny the Lundgrens a forum to acquire legal title to property they rightfully own. The Tribe has wielded sovereign immunity as a sword in disguise. While we do not minimize the importance of tribal sovereign immunity, allowing the Tribe to employ sovereign immunity in this way runs counter to the equitable purposes underlying compulsory joinder. … Finding otherwise, as correctly articulated by the trial court, is contrary to common sense, fairness, and due process for all involved.” (Internal quotations and citations omitted.

Whether in rem suits can be used to avoid sovereign immunity is an unresolved question. In County of Yakima v. Confederated Tribes and Band of Yakima Nation, 502 U.S. 251, 263 (1992), and Cass County v. Leech Lake Band of Chippewa Indians, 524 U.S. 103 (1998), the U.S. Supreme Court upheld the right of states to impose property taxes on land allotted under acts of Congress and later re-acquired by tribes in fee simple. In both cases, however, the court did not address whether tribal sovereign immunity might bar a state tax foreclosure action if the tribes refused to pay the taxes. In 2010, the court agreed to review a decision by the Second Circuit Court of Appeals in Oneida Nation v. Madison County, 605 F.3d 149 (2d. Cir. 2010), that the tribe’s sovereign immunity barred a tax foreclosure action by the county, but the court changed its mind, at the tribe’s request, after the tribe voluntarily waived “its sovereign immunity to enforcement of real property taxation through foreclosure by state, county and local governments within and throughout the United States.” In Cayuga Indian Nation of New York v. Seneca County, N.Y., 761 F.3d 218 (2d. Cir. 2014), however, the Second Circuit held that even though the county had the right to impose a property tax on the property owned by the tribe, it could not foreclose for non-payment because of the

Nation’s sovereign immunity. The court rejected the county’s argument that a foreclosure action was in rem (against the property) rather than against the Nation. These circumstances make the Washington decision a viable candidate for Supreme Court review in the event the Tribe should file a petition for review.