The Upper Skagit Court’s restraint Monday is appreciated in Indian Country.  A “hornbook” law principle is that tribes need not suffer litigation unless and until either the tribe or Congress expressly says so.  Monday’s Upper Skagit opinion affords appropriate time for further advocacy and lower court consideration as to whether that hornbook principle should be displaced by another—the immovable property doctrine.

As to the foundation tribal sovereignty principle, the Michigan v. Bay Mills Indian Community, 572 U.S. __ (2014) Court explained that:

“Among the core aspects of sovereignty that tribes possess—subject, again, to congressional action—is the “common-law immunity from suit traditionally enjoyed by sovereign powers.” Santa Clara Pueblo, 436 U. S., at 58. That immunity, we have explained, is “a necessary corollary to Indian sovereignty and self-governance.” Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, P. C., 476 U. S. 877, 890 (1986); cf. The Federalist No. 81, p. 511 (B. Wright ed. 1961) (A. Hamilton) (It is “inherent in the nature of sovereignty not to be amenable” to suit without consent).

Thus, we have time and again treated the “doctrine of tribal immunity [as] settled law” and dismissed any suit against a tribe absent congressional authorization (or a waiver). Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc., 523 U. S. 751, 756 (1998).”

In Upper Skagit, individual property owners sought to upset this proposition, arguing only on appeal to the U.S. Supreme Court that the “immovable property” exception to sovereign immunity allowed their quiet title action to proceed against the property as an in rem action.  Two justices in Upper Skagit were eager to embrace “hornbook law” and 16^th Century notions of challenges to princes claiming property outside their realms (6 references to princes! – perhaps caught up in the pageantry of Prince Harry’s royal wedding to American Meghan Markle over the weekend).

The majority’s steady hand, voiced by Justice Gorsuch not only showed proper judicial restraint, but was also prescient.

After first illustrating the plain error of the petitioner plaintiffs’ arguments below, and the Washington Supreme Court’s incorrect reading of the U.S. Supreme Court’s holding in County of Yakima (1992), the majority observed that the U.S. Supreme Court oral argument is not the proper venue to raise new arguments and remanded the case to the Washington State court for consideration of those arguments.  Justice Gorsuch’s rhetorical question was exactly the right one: “what if, instead [(of requiring robotic application of “centuries old” hornbook law)], the question turns out to be more complicated than the dissent promises?”

There will most certainly be need of “full adversarial testing” as the majority suggested, because sovereigns – including Illinois, Indiana, New Mexico and Texas in their Upper Skagit amicus brief – have already weighed in, noting that “a sovereign has the inherent right to protect itself from being sued without its consent;” and that in rem proceedings are, in all practical respects just like property rights: proceedings against/rights of persons/entities.  They also cited to the U.S. Supreme Court’s own holdings that States cannot be sued in quiet title actions or interpleader actions absent their express consent (Coeur d’Alene Tribe of Idaho (1997)) or absent Congressional abrogation of State sovereign immunity consistent with the Constitutional Convention (Principality of Monaco (1934); Seminole Tribe of Florida (1996); Missouri v. Fiske (1933); Cory v. White (1982); Worcester County Trust Co. (1934)).  The Amici States argued clearly that the in rem nature of action should be of no moment in allowing actions to proceed against State sovereigns.

The U.S. Supreme Court should be loath to facilitate asymmetry between how States and tribes are treated and the Court was quite right to stay its hand Monday.  Tribes are the third form of domestic government recognized in the Constitution.  Tribes remain “separate sovereigns pre-existing the Constitution.” Santa Clara Pueblo v. Martinez, 436 U. S. 49, 56 (1978).  Thus, unless and “until Congress acts, the tribes retain” their historic sovereign authority.  United States v. Wheeler, 435 U. S. 313, 323 (1978).

In her Bay Mills concurring opinion, Justice Sotomayor stated that “both history and proper respect for tribal sovereignty – or comity” required the result in Bay Mills.  Opinion of Sotomayor, J., at 11.  Justice Sotomayor also noted that “a legal rule that permitted States to sue Tribes, absent their consent, for commercial conduct would be anomalous in light of the existing prohibitions against Tribes’ suing States in like circumstances.”  Id. at 7.  Justice Sotomayor’s turn of phrase, “like circumstances,” refers to the rule of Seminole Tribe v. Florida, 517 U.S. 44 (1996), in which the Court held that tribes may not sue states in federal court and recognized an exception to Ex parte Young (1908): state officers cannot be sued to enforce federal statutes that contain comprehensive enforcement mechanisms.  Justice Sotomayor’s premise was straightforward: if tribes cannot sue State officials for violating IGRA (Seminole Tribe), then States cannot sue tribal official for violating IGRA (Bay Mills).

Justice Sotomayor’s Bay Mills reasoning applies just as strongly to the asymmetry found in the juxtaposition of: (1) the Upper Skagit Amici States (arguing that sovereign dignity is sacrosanct until an authorized sovereign waives it) and (2) the Upper Skagit dissent which fails to mention the States’ amicus brief and glosses over the “grave” implications for States by presuming that State sovereign interests will be served in State court quiet title proceedings, perhaps assuming that States will always win if served by Latin doctrines like lex rei sitae.  But subjecting sovereigns to unconsented suit has been a path the Court is reticent to tread.

In Idaho v. Coeur d’Alene Tribe, the Court crafted another exception to Ex parte Young, holding that State officers cannot be sued to quiet title to submerged lands.  Writing for the majority in that case, Justice Kennedy explained that “if the tribe were to prevail, Idaho’s sovereign interests in its lands and waters would be affected to a degree as fully as intrusive as almost any conceivable retroactive levy upon funds in its treasury.”  521 U.S. at 287.  The Coeur d’Alene Tribe Court held that “[t]he requested injunctive relief would bar the state’s principal officers from exercising their governmental powers and authority” over matters that were disputed.  Id. at 281.  Under Justice Sotomayor’s Bay Mills reasoning, if tribes cannot sue State officials when the requested relief would have a significant impact on state government, per Coeur d’Alene Tribe, then neither States nor their citizens sue tribal officials when the requested relief would have a significant impact on tribal government, again absent consent.  And further extension of that Bay Mills reasoning to Upper Skagit shows that if States cannot be sued for quiet title and interpleader actions absent consent, consistent with U.S. Supreme Court precedent, then there is no justification for tribes to be subjected to such suits absent consent, as the dissent would have it.

In Bay Mills, the State of Michigan requested that the Court “level the playing field” between tribes and States.  Opening Brief of the State of Michigan, Michigan v. Bay Mills Indian Community, 572 U.S. __ (2014) (No. 12-515) at 38.   That is exactly what obtained, although not in Michigan’s vision of a level playing field meaning that the State could trump the policy choices of the tribe.  Rather, with the Court’s Bay Mills opinion and Justice Sotomayor’s concurrence, the playing field is once again level between tribes and States because there is comity between sovereigns and neither sovereign is able to seek to impose its policy will in place of another through federal court litigation, either directly or styled as an Ex parte Young action.

So too under Upper Skagit, the playing field is level between State and tribal sovereigns so long as State courts are not available, absent consent, to pick winners and losers in property disputes, just as federal courts are unavailable.  Such symmetry and comity are exactly what the U.S. Supreme Court found required as between States and tribes in Lewis v. Clarke (2017) (finding tribal immunity was not broader than State or federal immunity).

The lessons from Bay Mills, Lewis v. Clarke and Upper Skagit are clear: (1) litigation should not be the primary device to resolve disputes with any sovereign government and (2) there is no legal basis to impose different legal principles as between State and tribal sovereigns unless Congress, vested with plenary power vis-à-vis tribes in the Constitution, expressly articulates one.  And of course Congress has not spoken to these issues.

Chief Justice Roberts’ Upper Skagit concurring opinion suggests there remains an open question: “What precisely is someone in the Lundgrens’ position supposed to do?”  The answer would be the same as to any person involved in a dispute with a government that has not consented to suit.  Petition the government for redress.  Engage in dialogue.  Tell your story.  Advance your policy argument.  Invite allies into the conversation, such as State or county officials who might help facilitate resolution.  Listen to the government’s reasoning.  Be prepared to compromise.

It seems quite modest for the majority to suggest that the Washington courts duly consider the legal and policy arguments implicated in the dissent, allow for fulsome advocacy about these issues of great importance, and go where the law takes them.

And if the Lundgrens are not inclined to keep litigating, good.  Showing respect for a sovereign tribal nation and engaging instead of litigating would be a good start.  And if the Upper Skagit Indian Tribe is inclined to explore non-litigation resolutions, good.  But if the parties do keep litigating, and the U.S. Supreme Court feels it is appropriate to review whatever the Washington Supreme Court does with the “immovable property” doctrine, well, that’s their job.  That’s exactly how our system of checks and balances works.  That’s how the judiciary ensures fairness to litigants.  And if the non-litigation option is less satisfying, but also wildly less expensive and gets litigants certainty sooner, that shouldn’t be a problem; that’s how justice might best be achieved: good citizens reaching amicable resolutions even if it means there’s not a clear winner and a clear loser.

The Upper Skagit result Monday is what the law requires.  The Upper Skagit Amicus States, Illinois, Indiana, New Mexico and Texas, through a bipartisan group of State Attorneys General, were quite right to highlight the significant hard questions the case yields.  And the Upper Skagit majority was quite right that “easy” answers might not lie ahead.

Even if the immovable property doctrine applies equally to States and tribes as the dissent states, and even if the immovable property doctrine is the least controversial legal principle articulated in the 16^th Century to keep roaming royals in check, that does not necessarily mean that it is a doctrine worth keeping current today in non-monarchical society where State and tribal governments alike face continuing and growing burdens on their treasuries to provide services to citizens, obligations with which litigation might well interfere to all citizens’ detriment.