A sign on the Upper Skagit Indian Reservation in Washington. Photo: Hans-Jürgen Hübner

Supreme Court hears second Indian law case during a busy term

The U.S. Supreme Court has released the transcript from arguments in Upper Skagit Indian Tribe v. Lundgren.

The U.S. Supreme Court is hearing arguments in its second Indian law case of what has turned out to be an unusually busy term.

The court has set aside one hour on Wednesday morning for Upper Skagit Indian Tribe v. Lundgren. At issue is whether a property proceeding can move forward in Washington state court without the involvement of the Upper Skagit Indian Tribe, whose ownership rights are impacted by resolution of the proceeding.

"The Washington Supreme Court failed to recognize that a sovereign’s interest in real property goes to the heart of the interests protected by immunity," the tribe said in its merits brief in the case.

On the other side of the fence, literally and legally, are Sharline Lundgren and Ray Lundgren, who own property adjacent to the tribe's. They believe the Washington Supreme Court got it right when, by a 5 to 4 vote, it ruled that the tribe did not need to be involved.

"This is an issue of state law and is the reason federal courts have not weighed in," the couple wrote in their brief in opposition. "A state’s jurisdiction to control the ownership and disposition of real property within its territory is a core state prerogative."

The case is unusual in that the Supreme Court accepted it at the tribe's request. That rarely happens, according to a landmark study by Indian law professor Matthew Fletcher, especially when a tribal party seeks to overturn a negative decision in the lower courts, as Upper Skagit is trying to do.

As a result, the dispute has attracted widespread interest in and out of Indian Country. Several tribes submitted briefs in support of Upper Skagit while states and local governments, along with a utility company that has a separate petition pending before the Supreme Court, are backing the Lundgrens.

Attorney David Hawkins will be arguing on behalf of the Upper Skagit Indian Tribe, according to the day call for Wednesday. He has been with the case since its inception in the Washington courts.

Hawkins is sharing his 30 minutes of time with Ann O'Connell of the Department of Justice. The federal government is backing the tribe in the dispute.

The Lundgrens are being represented by Eric Miller. He did not appear in the briefs in the Washington courts but his presence in D.C. is notable -- he is the attorney who represented the non-Indian couple in Lewis v. Clarke. In that case, the Supreme Court held that a tribe's sovereign immunity does not protect its employees from being sued, even when the employees are carrying out their official duties.

A transcript from the hearing will be posted by the Supreme Court later on Wednesday. Audio will be posted on Friday.

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