By Joe Sexton
On February 16, a split Washington State’s Supreme Court issued a ruling providing a way to circumvent tribal sovereign immunity, at least as far as claims concerning tribal land go.
As Anthony Broadman, partner at Galanda Broadman, warned in 2011, in rem exceptions to the rule that tribes cannot be sued absent clear and unambiguous waivers of sovereign immunity have the propensity to swallow tribal sovereign immunity. The case discussed here appears to signal that this warning was prescient.
In Lundgren v. Upper Skagit Indian Tribe, 2017 WL 635649 (Wash. 2017), the court held that sovereign immunity did not bar a quiet title action that impacted tribally owned fee land. At first blush, the Lundgren case appears to be a run-of-the-mill boundary dispute in which adverse possession transforms a de facto recognized property boundary into a legally recognized boundary. But this case will likely cut a wider swath as parties with land disputes of all varieties against tribal sovereigns will leverage the holding.
In this case, the Lundgren family purchased a parcel of land and then built a boundary fence beyond the deeded boundary of their land. According to the Lundgrens, this fence was recognized as the property boundary for sufficient time to be deemed the legal boundary under the doctrines of adverse possession or mutual recognition and acquiescence.
In 2013, the Upper Skagit Indian Tribe acquired title to the parcel the Lundgrens had encroached upon with their boundary fence. At the time the Tribe acquired title, it was apparently unaware of the boundary fence and its encroachment on the Tribe’s land. During the course of a fee-to-trust transfer process concerning its parcel, the Tribe learned of the encroaching fence and notified the Lundgrens that the fence did not represent the boundary between the two parcels, and that the Tribe was asserting ownership rights over its entire deeded property.
The Lundgrens sued to quiet title in state court under that court’s in rem jurisdiction. They moved for summary judgment, asserting that “they acquired title to the disputed property by adverse possession or by mutual recognition and acquiescence long before the Tribe bought the land.” The Tribe moved to dismiss under Rules 12 and 19, arguing that the Tribe was a necessary and indispensable party. Because the Tribe had not waived its sovereign immunity, the Tribe could not be compelled to join the litigation. Consequently, the Tribe asserted, the Lundgrens’ lawsuit must be dismissed.
The trial court granted summary judgment in favor of the Lundgrens and denied the Tribe’s motion to dismiss, ruling that “because [the court] had in rem jurisdiction, it could determine ownership of the land without the Tribe’s participation.”
The Supreme Court affirmed the trial court. The five-Justice majority opinion reasoned that the trial court was not deprived of jurisdiction by a claim of sovereign immunity because in rem proceedings are distinct and not constrained by such issues rooted in personal jurisdiction. This effectively opens the door to parties using in rem proceedings as an end run around sovereign immunity.
The flaw in the Lundgren majority’s analysis, and the potential for litigants to exploit this flaw as a loophole to sovereign immunity, is that the decision conflates the court’s subject matter jurisdiction, with the question of whether necessary and indispensable parties have been and can be joined. As Justice Stephens’ dissent observes, the majority opinion uses in rem jurisdiction to essentially ignore sovereign immunity and dispense with questions of which parties are required for a full and just adjudication:
The court’s authority to exercise in rem jurisdiction does not obviate the need to determine which parties must be joined to fully and justly adjudicate the action. Which parties are necessary and indispensable is a separate question from the court’s jurisdiction—one I find dispositive in this case given the Tribe’s sovereign immunity.
Although the Lundgrens’ claim of adverse possession may have merit on its own, the question of sovereign immunity is separate. It remains to be seen whether the Lundgren decision will end up nothing more than a narrow exception to the general rule barring claims impacting a tribe’s fee land where the tribe has not waived sovereign immunity. It is likely, however, that parties with land disputes impacting tribally owned fee land now see a way to get around sovereign immunity via in rem jurisdiction, and will seek to expand the Lundgren holding against tribal interests.
 Lundgren v. Upper Skagit Indian Tribe, 2017 WL 635649, *1 (Wash. 2017).
 Id. at *2.
 Id. at *8.
Joe Sexton is Of Counsel with Galanda Broadman, PLLC. Joe’s practice focuses on tribal sovereignty issues, including complex land and environmental issues, and economic development matters. He can be reached at (509) 910-8842 and firstname.lastname@example.org.