Tribal Sovereign Immunity

By Jeffrey Lang

Vice President, Old Republic Title National Underwriting Counsel

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A recent case decided by the state of Washington's Supreme Court muddies the waters regarding the applicability of tribal sovereign immunity claims in in rem actions, that is actions directly against the property rather than actions against a person. Tribal sovereign immunity is a legal doctrine that provides Native American tribes with State and Federal court immunity from lawsuits or quasi-judicial proceedings without either the tribe's consent or a Congressional waiver.

The case of Lundgren v. Upper Skagit Indian Tribe, which can be found at 187 Wn.2d 857, 389 P.3d 569 (2017), involved the ownership of a disputed strip of land lying within the boundary of property purchased in 2013 by the Upper Skagit Indian Tribe ("Tribe"). The Lundgren family purchased the adjoining property in 1947 and had been using the disputed strip as if it were their own for over 65 years. As a result, the Lundgren's argued they had acquired title to the disputed area through adverse possession years before the Tribe acquired its interest. In response to a lawsuit, the Tribe claimed sovereign immunity which, had the claim been accepted, would prevent the State courts from rendering a determination.

In a 5-4 decision, the court stated that in seeking to dismiss the Lundgren's claims based on sovereign immunity, the "Tribe has wielded sovereign immunity as a sword in disguise" in order to deny Lundgren a forum to determine the legal title to property acquired by adverse possession decades before. The majority went on to state that "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."

This case is at odds with various other state and federal cases from around the country and creates confusion as to the applicability of tribal sovereign immunity claims in relation to in rem actions. Regardless of who the insured may be, until either Congress or the U.S. Supreme Court firmly and clearly addresses the issue, matters involving tribal sovereignty should always be taken very seriously and care must be taken in evaluating all in rem matters in which tribal sovereign immunity may be an issue.

For more information regarding tribal sovereign immunity or any other title matter, please contact an Old Republic Title underwriter.

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