Washington Court of Appeals Limits Tribal Sovereign Immunity in Land Cases
Division One of Washington’s Court of Appeals held Monday that sovereign immunity did not shield a tribe from a quiet title suit. Relying primarily on an implication of Anderson & Middleton Lumber Co. v. Quinault Indian Nation, 130 Wn.2d 862, 929 P.2d 379 (1996), the court upheld jurisdiction over the Stillaguamish Tribe in Smale v. Noretep reasoning that sovereign immunity is not bar to a state court’s exercise of jurisdiction over in rem proceedings.
The Smales filed an action to quiet title to property they claimed they had
acquired through adverse possession and named Noretep, the original non-Indian owners, as defendants. After the suit was filed, Noretep deeded the disputed property to the Stillaguamish Tribe. The Smales then named the Tribe as a defendant in their quiet title suit. The Tribe asserted its sovereign immunity and moved unsuccessfully to dismiss based on a lack of subject matter jurisdiction.
The court held that the Smales’ suit did not aim to deprive the Tribe of its land, because if the land had been adversely possessed, it had never actually become the Tribe’s land in the first instance. The Tribe had only taken what title Noretep had passed. More problematically, relying on the Anderson Court’s conflation of subject-matter and in-rem jurisdiction, Division One upheld the lower court’s assertion of jurisdiction. Relying on a statement from the Washington Supreme Court’s decision in Anderson that “sovereign immunity is of no consequence in this case because the trial court’s assertion of jurisdiction is not over the entity in personam, but over the property or the ‘res’ in rem,” 130 Wn.2d at 873, Division One appears to have been examining the matter in the personal, rather than subject-matter jurisdiction context. See Smale, FN 4 (“The action of the court is binding, even in the absence of any personal jurisdiction.”) Whether sovereign immunity bars a claim against a federally recognized Indian tribe is a question of subject matter jurisdiction over the claim. Wright v. Colville Tribal Enter. Corp., 159 Wn.2d 108, 111 (2006), cert. dismissed 550 U.S. 931 (2007).
Undoubtedly, future litigants will attempt to style their suits against tribes and tribal governments as actions in rem to avoid the full force of sovereign immunity (which is otherwise re-confirmed in Smale). But as one district court recently held, plaintiffs “cannot circumvent Tribal sovereign immunity by characterizing the suit as in rem, when it is, in actuality, a suit to take the tribe’s property. New York Oneida Indian Nation of New York v. Madison County, 401 F. Supp. 2d 219, 229 (N.D.N.Y. 2005). Even though tribes’ immunity from suit is a question of subject matter jurisdiction, tribes and their lawyers must closely examine whether there is real in-rem exposure in lawsuit. If Anderson did not explicitly undermine sovereign immunity before, the Smale court’s decision ensures that it does now.
