Flying T Ranch, Inc., V. Stillaguamish Tribe Of Indians

• Court: Court of Appeals of Washington
• Decided: June 3, 2024
• Docket: 85739-8
• Status: Published

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

FLYING T RANCH, INC, a Washington corporation, No. 85739-8-I

Appellant, DIVISION ONE

v. PUBLISHED OPINION

STILLAGUAMISH TRIBE OF INDIANS, a federally recognized Indian Tribe, a Washington state municipal corporation,

Respondent.

BIRK, J. — Flying T Ranch Inc. appeals the dismissal of its lawsuit to quiet

title to certain land against the Stillaguamish Tribe of Indians (Tribe) based on tribal

sovereign immunity. Flying T agrees the Tribe enjoys the immunity traditionally

enjoyed by sovereign powers, but the parties dispute the scope of that immunity.

The land is not tribal land, so Flying T argues the Tribe’s immunity is equal only to

the immunity a foreign sovereign would have, and that immunity, Flying T argues,

does not bar its quiet title claim under the “immovable property” exception. We

conclude a foreign sovereign enjoys immunity as directed by the political branches

of government and would not face process directed by the judiciary alone. When

the Tribe is afforded immunity equal to a foreign sovereign, it may be sued over its

objection only when allowed by Congress, and to hold otherwise would unfaithfully No. 85739-8-I/2

lessen its immunity in comparison to that traditionally enjoyed by sovereign

powers. We therefore affirm.

I

Flying T filed a complaint in Snohomish County Superior Court pleading it

is a Washington corporation domiciled in Snohomish county, with its principal place

of business at 18808 State Route 530 Northeast, Arlington, Washington. Flying

T’s complaint sought to quiet title to certain land against the Tribe, acknowledged

in the complaint to be a tribal government.

According to its allegations, Flying T owns a parcel of land lying along the

North Fork of the Stillaguamish River. Opposite the river, the parcel is bounded

on the north by a former railroad right-of-way, now the White Horse Trail. To the

west of Flying T’s parcel, the river and the railroad right-of-way converge, making

a triangular piece of land bounded on its three sides by Flying T’s parcel, the river,

and the railroad right-of-way. The triangular piece of land is composed of parts of

two parcels west of Flying T’s. It is accessible from Flying T’s neighboring parcel,

but cut off by the railroad right-of-way from the rest of the two westerly parcels of

which it is part. Flying T asserts title to this piece of land by adverse possession.

To support its claim of adverse possession, Flying T alleges a former owner

of its parcel, Robert Olsen, repaired and maintained a fence enclosing the disputed

triangular piece of land together with Flying T’s parcel starting in at least 1961.

Flying T alleges that since at least 1962, this barbed wire fence has run in a straight

continuous line along the railroad right-of-way. It alleges that without permission

of the true owners, the fence marked the boundary line separating the area from

2 No. 85739-8-I/3

the railroad right-of-way and from the portions of the westerly parcels lying north

of the fence. Olsen used the land to keep and graze livestock. In 1974, Olsen

conveyed the Flying T parcel to Edwin and Antoinette Tanis. Edwin Tanis

continued Olsen’s practice of repairing and maintaining the fence. In 1990, a court

entered judgment against the Tanises and the sheriff sold the parcel to Bruce and

Tammy Blakey. The Blakeys continued the practice of repairing and maintaining

the fence, excluding others from the enclosed area, and using the land to keep

and graze livestock. In 1991, the Blakeys conveyed their parcel to Flying T, and

since then it has continuously repaired and maintained the fence, excluding all

others from the enclosed area without the permission of the title owners and using

the enclosed land to keep and graze livestock.

Flying T alleges that Snohomish County obtained title to one of the westerly

parcels in 1995. After Flying T commenced this action and a week before the

superior court heard the Tribe’s motion to dismiss based on tribal sovereign

immunity, Snohomish County conveyed its parcel to the Tribe. Flying T alleges

that the Tribe obtained title to the other westerly parcel in 2021. Flying T alleges—

and the Tribe has not controverted—that before Snohomish County and the Tribe

came into title of these parcels, they were privately held and not part of any tribal

land or reservation.

Flying T commenced this action to quiet title in November 2022. The Tribe

moved to dismiss under CR 12(b)(1), CR 12(b)(2), CR 12(b)(3), CR 12(b)(6), and

CR 12(b)(7), all based on its having tribal sovereign immunity from Flying T’s

3 No. 85739-8-I/4

claims.1 In support of its motion, the Tribe attached three documents, including a

declaration by Sara Thitipraserth, director of the Tribe’s Natural Resources

Department. Thitipraserth stated the Tribe purchased its parcel along with seven

other parcels, totaling about 143.4 acres along 1.2 miles of the North Fork of

Stillaguamish River. The Tribe acquired these lands for habitat restoration actions

aimed to increase the productivity and abundance of Puget Sound Chinook

salmon. The parcels were acquired using funds from a conservation grant from

the National Oceanic and Atmospheric Administration, through the Washington

State Recreation and Conservation Office, that required the Tribe to protect those

lands in perpetuity with a deed of right for salmon recovery. Stillaguamish River

salmon are a cultural keystone species that support activities essential for the

1 A challenge to the court’s subject matter jurisdiction under CR 12(b)(1)

may be either “facial or factual.” Outsource Servs. Mgmt., LLC v. Nooksack Bus. Corp., 172 Wn. App. 799, 806, 292 P.3d 147 (2013), aff’d on other grounds, 181 Wn.2d 272, 333 P.3d 380 (2014). Once it is challenged, the party asserting subject matter jurisdiction bears the burden of proof on its existence. Id. at 807. A facial challenge puts at issue the sufficiency of the pleadings. Id. at 806-07. A denial of a facial challenge under CR 12(b)(1) based on the complaint alone or the complaint supplemented by undisputed facts is reviewed de novo. Id. at 807. A factual challenge requires the trial court to weigh evidence to resolve disputed jurisdictional facts and its factual determinations will be accepted by an appellate court unless clearly erroneous. Id. In determining a challenge to personal jurisdiction under CR 12(b)(2), the trial court has discretion to rely on written submissions, or it may hold a full evidentiary hearing. Id. Once it is challenged, the party asserting personal jurisdiction bears the burden of proof to establish its existence. Id. If the trial court determines personal jurisdiction based on the pleadings and the undisputed facts before it, this court reviews the determination de novo. Id. Because we conclude federal law requires that Flying T’s complaint be dismissed, Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 791, 134 S. Ct. 2024, 188 L. Ed. 2d 1071 (2014), it is not necessary to determine whether the dismissal is properly characterized as a matter of Washington procedural law as a facial dismissal for lack of subject matter jurisdiction under CR 12(b)(1) or a dismissal for lack of personal jurisdiction under CR 12(b)(2).

4 No. 85739-8-I/5

continuation of the Tribe’s living culture. As the Stillaguamish River salmon runs

face extinction, so do many aspects of the Tribe’s culture, community, and treaty

reserved rights. The Tribe preserves its way of life through the use of these parcels

as conservation land to protect and restore salmon in the Stillaguamish River. 2

The superior court granted the Tribe’s motion to dismiss pursuant to CR

12(b)(1)-(3) and CR 12(b)(6) and dismissed the action with prejudice. The court

denied Flying T’s motion for reconsideration. Flying T filed a notice of appeal or

discretionary review directed to the Washington Supreme Court. The Washington

Supreme Court transferred the appeal to this court. After Flying T filed its initial

notice of appeal, it sought clarification in the superior court based on Snohomish

County’s conveyance of its parcel to the Tribe. The superior court entered a further

order dismissing Snohomish County from the case and dismissing all claims

2 In the superior court, Flying T objected to the Tribe’s submission of documents outside the pleadings as improper to the extent its motion was based on CR 12(b)(6). Flying T did not assert that the Tribe could not rely on undisputed facts outside the pleadings under CR 12(b)(1) and CR 12(b)(2), and did not indicate that it disputed the extrinsic facts the Tribe proffered. Washington authority supports converting CR 12(b)(1) and CR 12(b)(2) motions to summary judgment motions if they rely on matter extrinsic to the pleadings. See Ace Novelty Co. v. M. W. Kasch Co., 82 Wn.2d 145, 146, 152, 508 P.2d 1365 (1973) (noting the superior court considered the moving party’s affidavit that stated at no time had it done business within Washington and treated the CR 12(b) motion for lack of personal or subject matter jurisdiction as a motion for summary judgment); Puget Sound Bulb Exch. v. Metal Bldg. Insulation, Inc., 9 Wn. App. 284, 289, 513 P.2d 102 (1973) (“If matters outside the pleadings are presented to the court on a motion to dismiss for lack of personal jurisdiction under CR 12(b)(2) the motion is to be treated as a motion for summary judgment.”). Thus, any error in the consideration of extrinsic evidence lay only in the timing of hearing the motion to dismiss, which was heard as an ordinary civil motion, instead of with the 28 calendar days’ notice afforded for a summary judgment motion under CR 56. Flying T articulates no prejudice based on the timing of the proceedings before the superior court, and does not object to the consideration of these submissions on appeal.

5 No. 85739-8-I/6

against the Tribe based on tribal sovereign immunity. A commissioner of this court

accepted Flying T’s amended notice of appeal and denied the Tribe’s motion to

dismiss the appeal on timeliness grounds.

II

On appeal, Flying T contends the Tribe’s sovereign immunity does not

extend to Flying T’s claims, arguing they fall within a traditional exception to the

doctrine of sovereign immunity for “ ‘immovable property.’ ” The Tribe disputes

that an immovable property exception was ever “universally applied” to assertions

of sovereign immunity and further argues the justifications for such a rule do not

apply in the case of a domestic tribe. The Tribe asserts that, in the absence of its

consent to suit, only Congress can abrogate its immunity.3 Whether tribal

sovereign immunity applies is a question of federal law this court reviews de novo.

Auto. United Trades Org. v. State, 175 Wn.2d 214, 222, 226, 285 P.3d 52 (2012).

Past Washington authority permitted quiet title claims like Flying T’s against

tribes, recognizing an “in rem” exception to tribal sovereign immunity. Anderson &

Middleton Lumber Co. v. Quinault Indian Nation, 130 Wn.2d 862, 869, 929 P.2d

379 (1996) held the superior court had in rem jurisdiction over the plaintiff’s lawsuit

based on the language of the Indian General Allotment Act of 1887, 25 U.S.C. §§

331-358, repealed in part by Pub. L. 106-462, and County of Yakima v.

Confederated Tribes & Bands of Yakima Indian Nation, 502 U.S. 251, 252, 112 S.

3 The court received amicus curiae briefs supporting affirmance from the

Sauk-Suiattle, Jamestown S’Klallam, Kalispel, Makah, Nooksack, Port Gamble S’Klallam, Puyallup, Quinault, Samish, Snoqualmie, Squaxin Island, and Suquamish Tribes.

6 No. 85739-8-I/7

Ct. 683, 116 L. Ed. 2d 687 (1992). Relying on Anderson, Smale v. Noretep, 150

Wn. App. 476, 484, 208 P.3d 1180 (2009) held that exercising jurisdiction over in

rem proceedings did not implicate tribal sovereign immunity, and therefore a quiet

title claim based on adverse possession could proceed against a tribe. But the

rationale of these authorities was disavowed in Upper Skagit Indian Tribe v.

Lundgren, 584 U.S. 554, 558, 138 S. Ct. 1649, 200 L. Ed. 2d 931 (2018), which

held Yakima did not justify an in rem exception to tribal sovereign immunity.

Yakima interpreted the General Allotment Act to allow the imposition of in rem state

taxes on land that had been fee-patented under that law. Id. at 559. Yakima was

a statutory interpretation case that “sought only to interpret a relic of a statute in

light of a distinguishable precedent; it resolved nothing about the law of sovereign

immunity.” Id. Because tribal sovereign immunity is a question of federal law and

the United States Supreme Court has disavowed the interpretation of federal law

on which Anderson and Smale relied, those decisions do not now determine the

outcome here. Indeed, Flying T argues that they are consistent with its argument,

but it does not argue that they are controlling.4

III

A

Tribes “possess the ‘common-law immunity from suit traditionally enjoyed

by sovereign powers.’ ” Lac du Flambeau Band of Lake Superior Chippewa

4 If the United States Supreme Court had not clearly disavowed Anderson’s

rationale, it would remain binding on this court. A decision by the Washington Supreme Court is binding on all lower courts in the state. 1000 Va. Ltd. P’ship v. Vertecs Corp., 158 Wn.2d 566, 578, 146 P.3d 423 (2006).

7 No. 85739-8-I/8

Indians v. Coughlin, 599 U.S. 382, 387, 143 S. Ct. 1689, 216 L. Ed. 2d 342 (2023)

(quoting Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S. Ct. 1670, 56 L.

Ed. 2d 106 (1978)). The United States Supreme Court has “repeatedly

emphasized that tribal sovereign immunity, absent a clear statement of

congressional intent to the contrary, is the ‘baseline position.’ ” Id. (quoting

Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 790, 134 S. Ct. 2024, 188 L. Ed.

2d 1071 (2014)). “[T]he suability of . . . the Indian Nations, whether directly or by

cross-action, depends upon affirmative statutory authority.” United States v. U. S.

Fid. & Guar. Co., 309 U.S. 506, 514, 60 S. Ct. 653, 84 L. Ed. 894 (1940).

“Congress has consistently reiterated its approval of the immunity doctrine.”

Oklahoma Tax Comm’n v. Citizen Band Potawatomi Indian Tribe of Okla., 498 U.S.

505, 510, 111 S. Ct. 905, 112 L. Ed. 2d 1112 (1991). “[T]ribal immunity is a matter

of federal law and is not subject to diminution by the States.” Kiowa Tribe of Okla.

v. Mfg. Techs., Inc., 523 U.S. 751, 756, 118 S. Ct. 1700, 140 L. Ed. 2d 981 (1998).

A court must dismiss an action against a tribe if entertaining it would contravene

the tribe’s federal tribal sovereign immunity. Bay Mills, 572 U.S. at 791. Tribal

sovereign immunity may be waived by a tribe or abrogated by Congress, id. at 788-

89, but the parties do not assert that either has occurred here.

The United States Supreme Court has applied tribal sovereign immunity in

settings otherwise governed by federal statutory law, not confined to tribal lands,

and involving commercial activities. In Santa Clara Pueblo, the plaintiffs filed

lawsuits against a tribe under the Indian Civil Rights Act of 1968, 25 U.S.C. §§

1301-1303. 436 U.S. at 52-53. The court held that in the absence of any

8 No. 85739-8-I/9

“unequivocal expression of contrary legislative intent,” sovereign immunity barred

the lawsuits against the Santa Clara Pueblo Tribe. Id. at 58-59. In Kiowa, the

court declined to “confine” tribal sovereign immunity to reservations or to

noncommercial activities and deferred “to the role Congress may wish to exercise

in this important judgment.” 523 U.S. at 758. The court held the Kiowa Tribe

enjoyed immunity from suits on contracts, whether those contracts involve

governmental or commercial activities and whether they were made on or off a

reservation because Congress had not abrogated this immunity. Id. at 760. In

Bay Mills, the court held Congress’s abrogation of tribal immunity in the Indian

Gaming Regulatory Act, 25 U.S.C. § 2701-2721, applied to gaming on, but not off,

tribal lands, so Michigan was barred from suing Bay Mills to enjoin the operation

of a casino. 572 U.S. at 787, 804. The court said, “[W]e have time and again”

treated tribal sovereign immunity as settled law and dismissed any suit against a

tribe absent congressional authorization or tribal waiver, and “[t]he baseline

position, we have often held, is tribal immunity.” Id. at 789-90. Under Bay Mills,

the Tribe is immune from Flying T’s claims given the absence of the Tribe’s consent

or abrogation of its immunity by Congress.

B

Flying T concedes the Tribe has immunity, but argues its immunity does not

extend to Flying T’s claims to quiet title, because, Flying T says, its suit is “outside

the scope of the common law immunity.” Flying T argues that under the immovable

property exception, “a sovereign who purchases property in the territory of another

sovereign does so in the character of a private party and enjoys no immunity from

9 No. 85739-8-I/10

suit in actions regarding rights of possession or title to the property.” But none of

Flying T’s arguments establish that an immovable property exception has ever

existed under which courts adjudicated claims independently of the direction of the

political branches of government.

Flying T relies first on dicta in The Schooner Exchange v. McFaddon, a case

in which American claimants asserted title to a ship which, by the time of their

lawsuit, was “a national armed vessel, commissioned by, and in the service of the

emperor of France.” 11 U.S. 116, 146, 3 L. Ed. 287 (1812). Extending immunity,

the court held it was “a principle of public law, that national ships of war, entering

the port of a friendly power open for their reception, are to be considered as

exempted by the consent of that power from its jurisdiction.” Id. at 145-46. In dicta,

based on the possibility of a court’s exercising jurisdiction over a foreign

sovereign’s property in its territory, the court said, “A prince, by acquiring private

property in a foreign country, may possibly be considered as subjecting that

property to the territorial jurisdiction; he may be considered as so far laying down

the prince, and assuming the character of a private individual.” Id. at 145. Based

on this language, Flying T argues that in acquiring non-tribal land on the open

market in Washington, the Tribe comes to the land as a private party subject to the

territorial jurisdiction of the Washington courts.

This argument overlooks the reasoning of The Schooner Exchange and the

next century and a half of American practice. The court in The Schooner Exchange

10 No. 85739-8-I/11

never doubted the authority of a territorial sovereign over foreign sovereigns and

their property within its territory, and thus, over the ship in question:

The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction.

All exceptions, therefore, to the full and complete power of a nation within its own territories, must be traced up to the consent of the nation itself. They can flow from no other legitimate source.

Id. at 136. But the existence of this authority did not determine whether the judicial

branch would exercise it.

As the court later explained, “[F]oreign sovereign immunity is a matter of

grace and comity on the part of the United States, and not a restriction imposed by

the Constitution.” Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 486, 103

S. Ct. 1962, 76 L. Ed. 2d 81 (1983). “[A] major consideration for the rule

enunciated in The Schooner Exchange is the embarrassing consequences which

judicial rejection of a claim of sovereign immunity may have on diplomatic

relations.” Nat’l City Bank of N.Y. v. Republic of China, 348 U.S. 356, 360-61, 75

S. Ct. 423, 99 L. Ed. 389 (1955). The doctrine of foreign sovereign immunity “is

one of implied consent by the territorial sovereign to exempt the foreign sovereign

from its ‘exclusive and absolute’ jurisdiction, the implication deriving from

standards of public morality, fair dealing, reciprocal self-interest, and respect for

the ‘power and dignity’ of the foreign sovereign.” Id. at 362 (quoting The Schooner

Exchange, 11 U.S. at 136-37, 143-44).

11 No. 85739-8-I/12

It became the practice of American courts to defer to the political branches

on whether to take jurisdiction over actions against foreign sovereigns. Verlinden,

461 U.S. at 486. Until legislation by Congress discussed below, “the State

Department” was “the normal means of suggesting to the courts that a sovereign

be granted immunity from a particular suit.”5 Nat’l City Bank, 348 U.S. at 360. The

State Department urged a state court to extend immunity in at least one reported

case involving a title dispute. In Knocklong Corp. v. Kingdom of Afghanistan, the

Kingdom of Afghanistan had acquired fee ownership of real property in Kings

Point, New York. 6 Misc. 2d 700, 700, 167 N.Y.S.2d 285 (Nassau County Ct.

1957). The plaintiff claimed competing title based on a tax deed. Id. Because

Afghanistan used the property “to house the person of the Chief Representative of

Afghanistan to the United Nations” and “to serve as the office of, and repository of

records for, the Permanent Delegation of Afghanistan to the United Nations,” the

State Department urged the New York state court to dismiss the action as barred

by foreign sovereign immunity. Id. at 700-01. The court did so, explaining, “if the

claim of immunity is recognized and allowed by the executive branch of the

government, in this case the Department of State, it is then the duty of the court to

accept such claim upon appropriate suggestion made by the Attorney General of

5 In some cases, foreign sovereigns did not make requests to the State

Department but asked the courts to extend immunity. Verlinden, 461 U.S. at 487- 88. The question here is not whether a tribe might voluntarily subject itself to a court’s determination of its immunity, but may insist on leaving that decision to the branch the United States Supreme Court has repeatedly held has the prerogative to make it—Congress.

12 No. 85739-8-I/13

the United States.” Id. at 701 (citing The Navemar, 303 U.S. 68, 74, 58 S. Ct. 432,

82 L. Ed. 667 (1938)).

Flying T argues that Knocklong merely reflects an “exception to the

exception” under which title disputes remained generally justiciable except in

cases of diplomatic or consular property. But under the Restatement (Second) of

The Foreign Relations Law of the United States § 77(4) (Am. L. Inst. 1965)

(Restatement (Second)),6 diplomatic premises were not exempt from

determinations of title, but only from “prescription or enforcement of any tax or levy

of the receiving state.” A deed of trust might be foreclosed, for instance, but

regaining possession depended on the territorial state resorting to “the ultimate

sanction of termination of diplomatic status.” Id. cmt. e, at 243; see also Cayuga

Indian Nation of N.Y. v. Seneca County, N.Y., 978 F.3d 829, 840 (2d Cir. 2020)

(unnecessary to determine whether immovable property exception applied

because, even if it did, county’s tax enforcement proceedings fell “comfortably

within the absolute immunity from execution of judgment that foreign sovereigns

traditionally enjoyed at common law.”); City of New York v. Permanent Mission of

India to the United Nations, 446 F.3d 365, 371 (2d Cir. 2006) (international

convention still limits execution that would threaten a foreign sovereign’s

possession), aff’d and remanded, 551 U.S. 193; HAZEL FOX & PHILIPPA W EBB, THE

6 The Restatement (Second) was the most recent restatement of foreign

relations law when Congress enacted the Foreign Sovereign Immunities Act of 1976 (FSIA), 28 U.S.C. § 1602-1611, and is therefore evidence of international practice predating the statute. See Permanent Mission of India to the United Nations v. City of New York, 551 U.S. 193, 200, 127 S. Ct. 2352, 168 L. Ed. 2d 85 (2007).

13 No. 85739-8-I/14

LAW OF STATE IMMUNITY 484 (3d ed. 2015) (“State immunity continues to bar to a

very large extent the enforcement of judgments given by such courts against

foreign States.”). Under the Restatement (Second), sovereign immunity should

not have protected the Kingdom of Afghanistan from a state court determination of

title, though it would have afforded protection from execution of any judgment. The

relevant point of Knocklong is that pursuant to then-current law the court abstained

from adjudicating title against the foreign power at the direction of the executive

branch.

In context, the dicta Flying T relies on in The Schooner Exchange

establishes only that a territorial sovereign possesses authority over persons and

property within its territory, including foreign sovereigns and their property. 7 The

7 The Enlightenment era sources on which The Schooner Exchange drew,

see Upper Skagit, 584 U.S. 567-569 (Thomas, J., dissenting), focused on the authority of the territorial courts, not the conditions justifying the exercise of that authority, and equally recognized the authority of the political branches to direct that the courts extend immunity or not based on a political determination of national interest. These sources date from before modern states, and looked at the issue initially through the lens of the authority of territorial courts over the persons of monarchs and their legates. The Schooner Exchange cites Emmerich de Vattel as maintaining “ ‘It is impossible to conceive . . . that a Prince who sends an ambassador or any other minister can have any intention of subjecting him to the authority of a foreign power.’ ” 11 U.S. at 143 (quoting EMMERICH DE VATTEL, THE LAW OF NATIONS bk. 4, ch. 7, §§ 92 (1805)); see also ERNEST K. BANKAS, THE STATE IMMUNITY CONTROVERSY IN INTERNATIONAL LAW 34-38 (2d ed. 2022) (tracing Eighteenth Century discussions of immunity to medieval sources and ancient Roman law protecting the persons of imperial Roman legates). The Schooner Exchange dicta on which Flying T relies seems directed to the statement of Bynkershoek’s more recently translated into English that “[t]hrough the practice of nations it has been established that property which a prince has purchased for himself in the dominions of another or has acquired through inheritance or in any other way, shall be treated just like the property of private individuals and shall be subject in equal degree to burdens and taxes.” CORNELIUS VAN BYNKERSHOEK, DE FORO LEGATORUM LIBER SINGULARIS 22 (G. Laing transl. 1946). This statement appears to have been made in discussion of securing personal jurisdiction through

14 No. 85739-8-I/15

court did not examine the circumstances in which territorial courts would proceed

to adjudicate the ownership of property within their territory claimed by a foreign

sovereign, or support that courts should do so independently of the direction of the

political branches of government. Granted, after The Schooner Exchange,

American courts did not defer absolutely to the suggestion of the State

Department. In Berizzi Brothers Co. v. The Pesaro, 271 U.S. 562, 576, 46 S. Ct.

611, 70 L. Ed. 1088 (1926), the court extended immunity to an Italian government-

owned vessel engaged in commerce, despite the State Department’s view that

such vessels were not entitled to immunity, see Michael H. Cardozo, Sovereign

Immunity: The Plaintiff Deserves A Day in Court, 67 HARV. L. REV. 608, 609 (1954).

But diverging from the direction of the State Department was the exception. Id. at

608; FOX & W EBB, supra, at 146. The Schooner Exchange does not support, and

Flying T does not show, any history of the judiciary invoking the immovable

attachment of property, but in any event Bynkershoek then described cases in which immunity was directed by political branches of government. The first was a case refusing to attach moneys on deposit by the German emperor. Id. at 22-23. Although Bynkershoek criticized the decision, he said this was because the decision to extend immunity based on a political determination is not appropriately made by the judicial department. Id. at 23. He next described a case involving Spanish warships, relied on by The Schooner Exchange, 11 U.S. at 145, in which the court issued an attachment but on protest of the Spanish ambassador the legislature extended immunity, DE FORO LEGATORUM, supra, at 23, and a case in which the legislature refused consent to attach the property of the countess of the Palatinate, id. He described three more cases concerning the elector of Brandenburg, the Venetian Republic, and the duke of Mecklenburg in which the legislature expressly allowed suits to proceed, and another involving the king of Prussia in which the case proceeded with the king’s consent. Id. at 24-25. These cases all support the thesis that a foreign sovereign is subject to the authority of the territorial courts, but the decision whether to exercise that authority in specific cases depends on the direction of the political branches of government. This comports with United State Supreme Court precedent and the Tribe’s position that only Congress can abrogate tribal sovereign immunity.

15 No. 85739-8-I/16

property exception against a foreign nation to disallow foreign sovereign immunity

without regard to the direction of the political branches.8

Flying T points to a statutory provision allowing real property claims against

foreign sovereigns. Congress codified the law of foreign sovereign immunity in the

Foreign Sovereign Immunities Act of 1976 (FSIA), 28 U.S.C. § 1602-1611.

Verlinden, 461 U.S. at 488. The FSIA contains an exception to immunity providing

that a foreign state shall not be immune in any case in which “rights in immovable

property situated in the United States are in issue.” 28 U.S.C. § 1605(a)(4). This

provision was “meant ‘to codify . . . the pre-existing real property exception to

8 Flying T’s position problematically calls for a nondeferential, judicially established outer boundary on the immunity generally accorded to foreign sovereigns. It is not surprising that it supports this position exclusively with secondary sources generally recognizing the need for territorial courts to retain the authority to determine such matters as title—a proposition with which we have no quarrel—but cites no history of the judiciary of any nation routinely exercising such authority against fellow nations without regard to its political authorities’ direction. The Schooner Exchange runs against the proposition that the judicial branch might decide on its own and without the counsel of the political branches to adjudicate a foreign sovereign’s interest in property within the United States. After all, it was a case in which the government appeared to urge the court to extend immunity. The Schooner Exchange,11 U.S. at 117-18, 147. The American ship at issue had been taken unlawfully as part of Napoleon’s efforts to impose a blockade against Britain, a policy that had caused resentment among dispossessed American shipowners. See GAMAL MOURSI BADR, STATE IMMUNITY: AN ANALYTICAL & PROGNOSTIC VIEW 10- 14 (1984). But with war with the United Kingdom imminent—the War of 1812 was declared only three months after the decision in The Schooner Exchange—it was “politically inconceivable” that the American judiciary would seize a French warship to return it to its rightful American owners. BADR, supra, at 14. It is not difficult to imagine the State Department in Knocklong having similarly compelling concerns about a court proceeding against property claimed by the Kingdom of Afghanistan amidst 1950s Cold War tensions with the former Soviet Union. A nondeferential immovable property exception declaring such claims outside the scope of immunity would put such concerns beyond judicial accommodation.

16 No. 85739-8-I/17

sovereign immunity recognized by international practice.’ ” Permanent Mission of

India, 551 U.S. at 200 (alteration in original) (quoting Asociacion de Reclamantes

v. United Mexican States, 735 F.2d 1517, 1521 (D.C. Cir. 1984)). Under both

theories of foreign sovereign immunity prevailing at the time,9 “proceedings relating

to immovables located in the territory of the forum State” fell within one of the

“earliest widely accepted exceptions to State immunity.” FOX & W EBB, supra, at

427. As framed in the Restatement (Second), “The immunity of a foreign

state . . . does not extend to . . . (b) an action to obtain possession of or establish

a property interest in immovable property located in the territory of the State

exercising jurisdiction.”

But as Knocklong showed, no such rule was followed to the exclusion of the

direction of the political branches. Foreign nations “often placed diplomatic

pressure on the State Department in seeking immunity.” Verlinden, 461 U.S. at

487. In some cases, “political considerations led to suggestions of immunity in

cases where immunity would not have been available” under the prevailing theory.

Id. Thus, even proponents of the restrictive view of immunity acknowledged that

9 The Schooner Exchange came to be regarded as extending “virtually absolute” immunity to foreign sovereigns. Verlinden, 461 U.S. at 486. In 1952, the State Department’s “Tate Letter” announced the United States’ “decision to join the majority of other countries by adopting the ‘restrictive theory’ of sovereign immunity, under which ‘the immunity of the sovereign is recognized with regard to sovereign or public acts (jure imperii) of a state, but not with respect to private acts (jure gestionis).’ ” Permanent Mission of India, 551 U.S. at 199 (quoting Letter from Jack B. Tate, Acting Legal Adviser, U.S. Dept. of State, to Acting U.S. Attorney General Phillip B. Perlman (May 19, 1952) (Tate Letter), reprinted in 26 Dept. of State Bull. 984 (1952), and in Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682, 711, 712, 96 S. Ct. 1854, 48 L. Ed. 2d 301 (1976) (appendix 2 to opinion of the Court)). The FSIA was meant to codify the restrictive theory. Permanent Mission of India, 551 U.S. at 199.

17 No. 85739-8-I/18

the practical inability to enforce judgments against co-equal nations explained why

questions of immunity turned on determinations of the political branches: the

“ ‘general inability of the judicial power to enforce its decisions’ ” against foreign

sovereigns prompts questions that are “ ‘rather questions of policy than of law,’ ”

and “ ‘for diplomatic rather than legal discussion.’ ” FOX & W EBB, supra, at 32

(quoting Hersch Lauterpracht, The Problem of Jurisdictional Immunities of Foreign

States, 28 BRIT. YEAR BOOK INT’L LAW 220 (1951)). With the passage of the FSIA,

the former practice of looking to executive suggestion on a case by case basis

gave way to determining the availability of immunity at Congress’s direction. The

parties agree the FSIA does not extend to tribes, but this only further justifies

deferring to Congress’s different approach to tribal sovereign immunity.

In the absence of comprehensive legislation by Congress regulating tribal

sovereign immunity, the United States Supreme Court has upheld tribal sovereign

immunity for claims for which the FSIA clearly waived foreign nations’ immunity,

such as for commercial claims. Cf. 28 U.S.C. § 1605(a)(2) (exception to immunity

for “commercial activity carried on in the United States”) with Kiowa, 523 U.S. at

760 (“Tribes enjoy immunity from suits on contracts, whether those contracts

involve governmental or commercial activities and whether they were made on or

off a reservation.”). Kiowa contrasted Congress’s more limited waiver of tribal

sovereign immunity compared to its treatment of foreign sovereigns, and

cautioned, “In both fields, Congress is in a position to weigh and accommodate the

competing policy concerns and reliance interests. The capacity of the Legislative

18 No. 85739-8-I/19

Branch to address the issue by comprehensive legislation counsels some caution

by us in this area.” Id. at 759.

Congress periodically revisits tribal sovereign immunity. After Kiowa,

Congress “considered several bills to substantially modify tribal immunity in the

commercial context,” but instead of these “chose to enact a far more modest

alternative requiring tribes either to disclose or to waive their immunity in contracts

needing the Secretary of the Interior’s approval.” Bay Mills, 572 U.S. at 801-02

(citing Indian Tribal Economic Development and Contract Encouragement Act of

2000, § 2, 114 Stat. 46 (codified at 25 U.S.C. § 81(d)(2))). And again, “[j]ust eight

months after the Supreme Court issued its decision in [Upper Skagit], Congress

reaffirmed its approval of tribal immunity in the context of a statute that, among

other things, authorizes Indian tribes to grant rights of way over their land for

energy resource development.” Self v. Cher-Ae Heights Indian Cmty. of Trinidad

Rancheria, 60 Cal. App. 5th 209, 221, 274 Cal. Rptr. 3d 255 (2021) (citing Pub. L.

No. 115-325, tit. I, §§ 103(a), 105(d) (Dec. 18, 2018), 132 Stat. 4447, 4454, codified

at 25 U.S.C. § 3504(i)), cert. denied, 142 S. Ct. 1107, 212 L. Ed. 2d 7 (2022). The

real property exception in the FSIA, even when characterized as a codification of

common law, does not support imposition of a similar limitation on tribal sovereign

immunity by the judicial branch without regard to Congress’s direction.

Quoting Asociacion de Reclamantes, 735 F.2d at 1521, Flying T invokes a

territorial sovereign’s “ ‘primeval’ ” interest in resolving title disputes within its

domain. In Asociacion de Reclamantes, then-Judge Scalia wrote that the

19 No. 85739-8-I/20

immovable property exception in the FSIA stemmed from the fact that “[a] territorial

sovereign has a primeval interest in resolving all disputes over use or right to use

of real property within its own domain,” because “ ‘[a] sovereignty cannot safely

permit the title to its land to be determined by a foreign power.’ ” Id. (quoting 1 F.

WHARTON, CONFLICT OF LAWS § 278 at 636 (3d ed. 1905)). The specter of a foreign

sovereign laying claim to another’s domestic realm and claiming immunity from

adjudication of title is complemented by the local action rule, which places venue

to determine title exclusively in the local forum. Id. at 1521-22. It is clearly

necessary that the territorial sovereign reserve the authority to determine title

disputes notwithstanding a foreign putative owner’s claims of immunity, because

the operation of the local action rule would leave no forum competent to determine

title. Id. at 1522. But this fails to justify departure from deferring the question of

the Tribe’s immunity to Congress for two reasons. First, as discussed above, that

the territorial sovereign retains the authority to determine title does not mandate

that it must necessarily do so at the behest of any claimant, at any time, apart from

considerations reserved to its political branches. Second, the Tribe’s claim of

immunity is subject to abrogation domestically by Congress, so it poses no threat

to the properly defined dual sovereignty governing this land.

“[W]hen the States entered the federal system, they renounced their right

to the ‘highest dominion in the lands comprised within their limits.’ ” PennEast

Pipeline Co., LLC v. New Jersey, 594 U.S. 482, 502, 141 S. Ct. 2244, 210 L. Ed.

2d 624 (2021) (quoting Cherokee Nation v. S. Kan. Railway Co., 135 U.S. 641,

656, 10 S. Ct. 965, 971, 34 L. Ed. 295 (1890)). Washington is the relevant

20 No. 85739-8-I/21

sovereign for purposes of substantive real property law. See Munday v. Wisconsin

Tr. Co., 252 U.S. 499, 503, 40 S. Ct. 365, 64 L. Ed. 684 (1920) (“Where interstate

commerce is not directly affected, a state may forbid foreign corporations from

doing business or acquiring property within her borders except upon such terms

as those prescribed by the Wisconsin statute.”); United States v. Fox, 94 U.S. 315,

320, 24 L. Ed. 192 (1876) (“The power of the State to regulate the tenure of real

property within her limits, and the modes of its acquisition and transfer, . . . is

undoubted.”). But Washington is not the exclusive sovereign for a purpose

touching a federal concern. As Verlinden explained, in addition to codifying the

law of foreign sovereign immunity, the FSIA permissibly guaranteed foreign

sovereigns the right to remove any civil action from a state court to a federal court

because of “ ‘the potential sensitivity of actions against foreign states and the

importance of developing a uniform body of law in this area.’ ” 461 U.S. at 489

(quoting H.R. REP. NO. 94-1487, at 32 (1976)).

Verlinden held that, even in the absence of a federal claim, id. at 483, “an

action against a foreign sovereign arises under federal law, for purposes of Article

III jurisdiction,” id. at 494. This followed from Congress’s “authority over foreign

commerce and foreign relations,” and the recognition that “[a]ctions against foreign

sovereigns in our courts raise sensitive issues concerning the foreign relations of

the United States, and the primacy of federal concerns is evident.” Id. at 493.

Thus, a case brought against a foreign sovereign alleging a state law quiet title

claim and falling within the immovable property exception of 28 U.S.C. § 1605(a)(4)

would be originally cognizable in federal court and removable if commenced in

21 No. 85739-8-I/22

state court. Verlinden, 461 U.S. at 488-89 & n.11. And, if the claim did not fall

within a FSIA exception, the foreign sovereign would be assured immunity at

Congress’s direction in both federal and state courts. Id. at 489. Therefore, it is

already recognized that Washington’s sovereignty over land within its boundaries

is limited in that it may entertain suits against foreign sovereigns, even those

concerning real property, only to the extent consistent with Congress’s direction.

The Tribe’s claim to immunity as allowed or disallowed by Congress is no

more an imposition on Washington’s sovereignty than a foreign sovereign’s

entitlement to immunity as allowed or disallowed by Congress under the FSIA.

Congress’s authority over the nation’s relationships with tribes is equally “plenary”

as its authority over foreign relations. Bay Mills, 572 U.S. at 788; see also County

of Oneida, N.Y. v. Oneida Indian Nation of N.Y. State, 470 U.S. 226, 234, 105 S.

Ct. 1245, 84 L. Ed. 2d 169 (1985) (“With the adoption of the Constitution, Indian

relations became the exclusive province of federal law.”). Recognizing the Tribe’s

immunity does not cede any territorial sovereignty, because the determination of

title remains subject to the state’s sovereignty over real property law and the

nation’s sovereignty over the determination of the Tribe’s immunity.10

10 That Congress may abrogate tribal sovereign immunity at will also answers any argument that honoring tribal sovereign immunity in real property cases might open up avenues for abuse. For instance, in Cass County Joint Water Resource District v. 1.43 Acres of Land in Highland Township, a landowner in an area affected by a forthcoming public works project deeded land to the Turtle Mountain Band of Chippewa Indians, who subsequently claimed immunity against condemnation. 643 N.W.2d 685, 688 (N.D. 2002). Relying, among other authorities, on Yakima and Anderson, the court allowed the condemnation to proceed based on the now discredited in rem exception. 643 N.W.2d at 692, 694. While not doubting the sincerity of the Turtle Mountain Band that it had no designs to frustrate public works, the court nevertheless expressed concern over the

22 No. 85739-8-I/23

Also lacking in the case of a tribe is the rationale on whose basis the United

States Supreme Court has permitted certain actions by one State against another.

In State of Georgia v. City of Chattanooga, the court held state sovereign immunity

does not extend to “[l]and acquired by one State in another State.” 264 U.S. 472,

480, 44 S. Ct. 369, 68 L. Ed 796 (1924). Georgia undertook the construction of a

railroad extending from Atlanta, Georgia to Chattanooga, Tennessee. Id. at 478.

Tennessee granted Georgia land for terminal facilities and the right to acquire the

necessary right-of-way from the state line to Chattanooga. Id. Georgia did so, and

Chattanooga later sought to take land from a railroad yard for a street. Id. at 478-

79. The court held the power of Tennessee to take land for a street was not

impaired by the fact another state owned the land for railroad purposes; acquiring

land in another state for a private purpose prevented Georgia from claiming

sovereign immunity. Id. at 479-80. “The terms on which Tennessee gave Georgia

permission to acquire and use the land and Georgia’s acceptance amount to

consent that Georgia may be made a party to condemnation proceedings.” Id. at

uncertainty that could result from tribes having what it called “veto power” over projects through the acquisition of a small tract within a project. Id. at 694. But Congress’s plenary authority over tribal immunity provides a ready check against assertions of immunity that Congress deems inappropriate. Underscoring the sensitive political considerations involved, Cass County rested its decision in part on the fact the land at issue was not part of the Turtle Mountain Band’s aboriginal land. Id. at 694. In contrast, the land at issue here is part of the Tribe’s ancestral land, and the Tribe’s purposes in acquiring it serve protected treaty rights to take fish for ceremonial and subsistence purposes, and otherwise “ ‘in common’ ” with nontreaty right fishermen, United States v. Washington, 384 F. Supp. 312, 343 (W.D. Wash. 1974), aff’d and remanded, 520 F.2d 676 (9th Cir. 1975), and to preserve its heritage and culture. Balancing these profound interests against the need to adjudicate state law property rights lies with Congress.

23 No. 85739-8-I/24

480. But the United States Supreme Court has not looked to the law of State

immunity to determine that held by tribes, and, to the contrary has cautioned “the

immunity possessed by Indian tribes is not coextensive with that of the States.”

Kiowa, 523 U.S. at 756. As between States, “[w]hat makes the States’ surrender

of immunity from suit by sister States plausible is the mutuality of that concession.

There is no such mutuality with either foreign sovereigns or Indian tribes.”

Blatchford v. Native Vill. of Noatak, 501 U.S. 775, 782, 111 S. Ct. 2578, 115 L. Ed.

2d 686 (1991).

C

The baseline rule is that a tribe is immune from suit unless it has consented

to the suit or Congress has waived its immunity. The foregoing discussion shows

that this baseline rule of deferring the question of immunity to a political branch of

the national government parallels the immunity foreign sovereigns have been

granted in American courts. So far, however, the discussion has assumed that the

Tribe’s immunity is properly determined by reference to the law governing the

relationship among nation states foreign to one another. But tribes are not foreign

to this land, and the relationship between the three domestic sovereignties

implicated in this case further counsels deference to Congress.

From time immemorial, ancestors of the Coast Salish people dwelt along

the rivers in the coastal and riverine lands of Puget Sound. See BRUCE G. MILLER,

THE PROBLEM OF JUSTICE, TRADITION AND LAW IN THE COAST SALISH W ORLD 1-2

(Gerald M. Sider et al. 2001); cf. Upper Skagit, 138 S. Ct. at 556 (“Ancestors of the

Upper Skagit Tribe lived for centuries along the Skagit River in northwestern

24 No. 85739-8-I/25

Washington State.”). Fishing constituted a means of subsistence for the tribal

members in the area embracing the Stillaguamish River and its north and south

forks, where the river system constituted the usual and accustomed fishing places

of the tribe. United States v. Washington, 384 F. Supp. 312, 379 (W.D. Wash.

1974), aff’d and remanded, 520 F.2d 676 (9th Cir. 1975). The Tribe was identified

as represented at the 1855 signing of the Treaty of Point Elliott, id. at 378, and in

that treaty the Coast Salish tribes agreed to “cede, relinquish, and convey” the

lands of present day northwestern Washington to the United States. TREATY

BETWEEN THE UNITED STATES & THE DWÁMISH, SUQUÁMISH, & OTHER ALLIED &

SUBORDINATE TRIBES OF INDIANS IN W ASHINGTON, 12 Stat. 927, art. 1 (1855).11

11 When the treaties were negotiated, “the translation of the English words

was difficult because the interpreter used a ‘Chinook jargon’ to explain treaty terms, and that jargon not only was imperfectly (and often not) understood by many of the Indians but also was composed of a simple 300-word commercial vocabulary that did not include words corresponding to many of the treaty terms.” Washington v. Wash. State Com. Passenger Fishing Vessel Ass’n, 443 U.S. 658, 667 n.10, 99 S. Ct. 3055, 61 L. Ed. 2d 823, modified sub nom. Washington v. United States, 444 U.S. 816, 100 S. Ct. 34, 62 L. Ed. 2d 24 (1979). Beyond the problem of translation, the incoming American settler societies sought the treaties with the “express intention of undermining existing systems of leadership and spiritual values and practices” of the Coast Salish in the hopes of “quickly opening the area to settlement.” MILLER, supra, 81, 93-94. Territorial Governor Isaac Stevens and the treaty commission “were aware that village leaders did not have authority beyond their families and friends,” and therefore completed the treaties “by designating ‘tribes and chiefs.’ ” OLYMPIC PENINSULA INTERTRIBAL CULTURAL ADVISORY COMM., NATIVE PEOPLES OF THE OLYMPIC PENINSULA 10-12 (Jacilee Wray 2d ed. 2015). And when settlers began entering the Puget Sound region pursuant to the 1850s treaties, Upper Skagit leaders who believed settlers were encroaching on their lands were limited by territorial authorities to seeking assistance from Congress. MILLER, supra, 94-95. With these background circumstances, the United States “has a responsibility to avoid taking advantage of the other side.” Washington, 443 U.S. at 675-76.

25 No. 85739-8-I/26

The riparian lands of the Stillaguamish River are essential to the Tribe’s

interest in preserving its heritage and culture. “The anadromous fish constitute a

natural resource of great economic value to the State of Washington,” and “when

the relevant treaties were signed, anadromous fish were even more important to

most of the population of western Washington than they are today.” Washington

v. Wash. State Com. Passenger Fishing Vessel Ass’n, 443 U.S. 658, 664, 99 S.

Ct. 3055, 3063, 61 L. Ed. 2d 823, modified sub nom. Washington v. United States,

444 U.S. 816, 100 S. Ct. 34, 62 L. Ed. 2d 24 (1979). Diminishing the force of Flying

T’s reliance on international law to avoid the Tribe’s immunity, these considerations

are recognized in international law in its protecting from execution “property ‘of

great importance to the cultural heritage of every people.’ ” FOX & WEBB, supra,

532 (quoting Convention for the Protection of Cultural Property in the Event of

Armed Conflict with Regulations for the Execution of the Convention art. 1(a), May

14, 1954, T.I.A.S. No. 09-313.1 [https://perma.cc/UV2S-PDUH].).

This is particularly salient in regard to the Tribe’s effort to regain lands its

ancestors possessed and whose management is essential to preserving its

heritage and culture. The settlement of the 1850s treaties covering most of present

day Washington12 soon gave way to “Congress’s late Nineteenth Century Indian

policy: ‘to extinguish tribal sovereignty, erase reservation boundaries, and force

the assimilation of Indians into the society at large.’ ” Upper Skagit, 584 U.S. at

558 (quoting Yakima, 502 U.S. at 254). Later, Congress “reversed course,” and

12 See Treaty of Medicine Creek, 10 Stat. 1132 (1854); Treaty of Point

Elliott, 12 Stat. 927 (1855); Treaty of Point No Point, 12 Stat. 933 (1855); Treaty of Neah Bay, 12 Stat. 939 (1855); Treaty of Olympia, 12 Stat. 971 (1855).

26 No. 85739-8-I/27

sought to restore “ ‘tribal self-determination and self-governance.’ ” Id. (quoting

Yakima, 502 U.S. at 255). In Self, the court considered similar facts, where

plaintiffs filed suit to quiet title to a public easement over coastal land that a tribe

was seeking to bring into trust. 60 Cal. App. 5th at 213-15. The court explained

that “supporting tribal land acquisition is a key feature of modern federal tribal

policy, which Congress adopted after its prior policy divested tribes of millions of

acres of land.” Id. at 219. Congress’s later reversal, among other things,

“empowers the federal government to take land into trust for the benefit of a tribe.”

Id. at 220 (citing 25 U.S.C. § 5108). Congress’s policy now “advances tribes’

sovereign interests by helping them restore land they lost.” Id.

When coupled with only targeted waivers of tribal sovereign immunity, Self

explained, “This history weighs strongly in favor of deferring to Congress to weigh

the relevant policy concerns of an immovable property rule in light of the

government’s solemn obligations to tribes, the importance of tribal land acquisition

in federal policy, and Congress’s practice of selectively addressing tribal immunity

issues in property disputes.” Id. at 221. We agree,13 and the same is true here.

Congress’s land acquisition policy is especially relevant to riverine lands in the

Puget Sound region, where degradation of salmon habitat and reduced abundance

of salmon have resulted in continuing cultural, social, and economic harm to tribes.

United States v. Washington, 20 F. Supp. 3d 986, 1020-21 (W.D. Wash. 2013).

The Tribe has not indicated it has sought to take the land into trust, but it

13 We also agree with Self’s conclusion that Chattanooga and The Schooner

Exchange, together with related authorities, do not support extending a common law exception for immovable property to tribes. 60 Cal. App. 5th at 216-18.

27 No. 85739-8-I/28

nevertheless avers it obtained the land with federal funds based on a commitment

to protect the land for salmon recovery, an effort essential to preserving its culture

and heritage. Deciding whether to subject tribal land acquisition to private suits

thus requires balancing the longstanding and pre-constitutional interests of the

tribes, and national policy, against any competing state law property interests. This

shows why the United States Supreme Court has deferred tribal sovereign

immunity to Congress.

That Flying T may lack a present judicial remedy as long as the Tribe retains

immunity is not a basis to decide the question differently. The United States

Supreme Court has left open the possibility that tribal sovereign immunity might

bow to a claimant lacking any alternative remedies. Bay Mills, 572 U.S. at 799 n.8.

But it has rejected the proposition that the elimination of a claimant’s “most

efficient” remedy is a ground to set aside tribal sovereign immunity where there

are “any adequate alternatives.” Potawatomi, 498 U.S. at 514. Flying T’s remedy

lies with Congress, and in this regard it is similarly situated to litigants in much of

the nation’s history who have been dependent on the national legislature’s decision

whether to authorize a remedy within its discretion to grant or withhold.

The United States claims the same immunity from claims such as Flying

T’s.14 See United States v. Testan, 424 U.S. 392, 399, 96 S. Ct. 948, 47 L. Ed. 2d

14 And Washington asserts the same prerogative. Gorman v. City of Woodinville, 175 Wn.2d 68, 72, 283 P.3d 1082 (2012) (“State-owned land is statutorily protected from claims of adverse possession.”); State ex rel. Hamilton v. Superior Court for Cowlitz County, 200 Wash. 632, 634-35, 94 P.2d 505 (1939) (Allowing claim to set aside deed allegedly procured by the state by fraud to proceed in Cowlitz County rather than Thurston County.).

28 No. 85739-8-I/29

114 (1976) (“It has long been established, of course, that the United States, as

sovereign, ‘is immune from suit save as it consents to be sued . . . and the terms

of its consent to be sued in any court define that court’s jurisdiction to entertain the

suit.’ ”) (alteration in original) (quoting United States v. Sherwood, 312 U.S. 584,

586, 61 S. Ct. 767, 85 L. Ed. 1058 (1941)); United States v. Alabama, 313 U.S.

274, 282, 61 S. Ct. 1011, 1014, 85 L. Ed. 1327 (1941) (“A proceeding against

property in which the United States has an interest is a suit against the United

States.”). Under the Quiet Title Act, the United States allows some title claims to

be brought against it, but it does not permit title to be determined against it “based

upon adverse possession.” 28 U.S.C. § 2409a(n). If the United States had

acquired the land neighboring Flying T’s parcel—instead of using its funds to

support the Tribe to do so—Flying T would be limited to the remedies traditionally

available in the absence of a waiver of sovereign immunity.

Before the Quiet Title Act, these remedies furnished claimants asserting title

to land claimed by the United States “only limited means of obtaining a

resolution”—“they could attempt to induce the United States to file a quiet title

action against them, or they could petition Congress or the Executive for

discretionary relief.” Block v. N. D. ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273,

280, 103 S. Ct. 1811, 75 L. Ed. 2d 840 (1983). And for decades, petitioning

Congress through the “private bill procedure” was the exclusive remedy for any

claim against the United States. United States v. Mitchell, 463 U.S. 206, 212-13,

103 S. Ct. 2961, 77 L. Ed. 2d 580 (1983). These same remedies are available to

Flying T. Given the right to seek relief from Congress, even if doing so is

29 No. 85739-8-I/30

inconvenient, and given Congress’s history of periodic, targeted waivers of tribal

sovereign immunity, Flying T does not lack “any adequate alternatives.”

Potawatomi, 498 U.S. at 514.

“[I]t is fundamentally Congress’s job,” not the judicial department’s, “to

determine whether or how to limit tribal immunity.” Bay Mills, 572 U.S. at 800. To

hold otherwise would impermissibly lessen tribal sovereign immunity compared to

the immunity afforded foreign nations. Until Congress provides otherwise, the

Tribe has immunity from Flying T’s claims and the superior court properly

dismissed those claims. With this conclusion, it is not necessary to reach any other

issues raised by the parties.

Affirmed.

WE CONCUR: