Supreme Court schedules March 21 argument in tribal property case

Wednesday, January 24, 2018  

Oral arguments have been scheduled in the second Indian law case on the U.S. Supreme Court docket.

The justices will hear Upper Skagit Indian Tribe v. Lundgren on March 21, the court announced on Wednesday. The outcome will determine whether a property dispute in Washington state can proceed without the involvement of the Upper Skagit Indian Tribe, the owner of the land at issue in the case.

The Washington Supreme Court, by a 5 to 4 vote, ruled that the tribe did not need to be involved. The ruling also said the tribe's sovereign immunity, or its inherent protection against being sued, did not need to be considered.

"The tribe has wielded sovereign immunity as a sword in disguise," Justice Charles W. Johnson wrote for the state court's majority. "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."

The Supreme Court will now determine whether those Washington judges were right. There is no indication on which way the dispute will turn out, but already the case is unusual in that it was accepted at the tribe's request.

Historically, the court passes on cases in which a tribe seeks to overturn a negative decision, according to a landmark study by Indian law professor Matthew Fletcher. So Upper Skagit could be a way for the justices to set a national precedent when it comes to sovereign immunity. Different states have come to different conclusions, the tribe pointed out in its petition.

The court's last sovereign immunity case was Michigan v. Bay Mills Indian Community. In May 2014, the justices held that the Bay Mills Indian Community could not be sued without its consent by the state of Michigan. The vote was close too -- 5 to 4.

The court granted the Upper Skagit petition on December 8, 2017, after reviewing what are known as briefs on a petition for a writ of certiorari. Now that the case has been accepted, the justices are accepting briefs on the merits.

The Upper Skagit Indian Tribe submitted its opening brief on Monday. The other landowners in the property dispute, Sharline Lundgren and Ray Lundgren, will be able to file their own response brief, and then the tribe will be able to file a final reply. Outside parties could also submit amicus briefs to the court.

The case isn't the only one from Washington on the high court's current docket. The justices have agreed to hear Washington v. U.S., a treaty rights case that will determine whether the state is responsible for failing to fix hundreds of culverts, or passageways for salmon.

So far in this term, the court hasn't released any Indian law decisions. But a ruling is expected soon in Patchak v. Zinke, whose outcome will determine whether Congress can protect tribes from litigation against their homelands. Arguments took place last November.

Washington Supreme Court Decision:
Lundgren v. Upper Skagit Indian Tribe (February 16, 2017)

San Manuel Band awards large grant to Tribal Supreme Court Project (January 24, 2018)
Supreme Court shakes up docket by accepting sovereignty case at request of tribe (December 11, 2017)