Cracks in the Shield: Tribal sovereign immunity in real property disputes
By Greg George, Attorney
Coeur d’Alene, Idaho, [June 20, 2017]. As most landowners know, boundary-line disputes can be a significant risk in owning real property. This is especially true when you buy property outside of platted subdivisions. Such property may not have been surveyed, or old survey pins may have retreated into the ground never to be seen again. As a result, disputes can arise over the true boundary between properties.
These disputes take on legal significance when doctrines like “adverse possession” are brought up. Simply put, adverse possession is where a person acquires title to all or part of another’s property by occupying the property for a certain length of time. In Idaho, the length of time required to establish adverse possession is twenty years. Idaho Code (I.C.) § 5-203. Before July 1, 2006, the required length of time in Idaho was just five years. In Washington State, the length of time required for adverse possession is ten years. Revised Code of Washington (R.C.W.) § 4.16.020(1).
In a normal adverse possession case there will be no dispute over the court’s jurisdiction (i.e., power to decide the case). Most adverse possession lawsuits are between neighbors, and are filed in the county court with general civil jurisdiction (the Superior Court in Washington State, or the District Court in Idaho). But in some situations, a party might dispute that the court is authorized to hear a case. In those cases, the party argues that the court lacks jurisdiction.
To properly hear a case, a court must have, at minimum: (1) personal jurisdiction; and (2) subject matter jurisdiction. “Personal jurisdiction” means the power to preside over the parties in a case. “Subject matter jurisdiction” means the power to hear the type of case that is being brought. For example, an Idaho court will probably have no personal jurisdiction over a Florida resident who has never been to or done business in Idaho, and some courts’ subject matter jurisdiction includes only cases with claims up to a certain monetary amount (such as $10,000).
These jurisdictional issues can get tricky in cases involving land on federal Indian reservations or other land owned by Indian tribes. The law considers Indian tribes to be “sovereign”—i.e., “vested with independent and supreme authority” over their own affairs. See Black’s Law Dictionary 1611 (10th ed. 2014). Therefore, tribes are typically “immune” from lawsuits in federal or State courts. “As a matter of federal law, an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity.” Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 754 (1998).
So, issues of jurisdiction can come up where a property owner believes he/she has acquired a portion of neighboring land by adverse possession but the neighboring land is currently owned by an Indian tribe. The property owner may file a “quiet title” suit for the court to determine ownership of the disputed land, but the tribe may claim immunity and try to have the case dismissed.
What is the property owner to do? If the tribe does not waive its immunity from suit, the court has no personal jurisdiction and cannot determine ownership of the disputed property. It would seem the owner is out of luck and cannot legally vindicate his/her property rights.
However, cases from the federal courts and the State courts of Washington and Idaho show how property owners can keep such cases in court until they are decided on the merits. Specifically, they can invoke the court’s in rem jurisdiction. “In rem jurisdiction” refers to “[a] court’s power to adjudicate the rights to a given piece of property, including the power to seize and hold it.” Black’s Law Dictionary 982 (10th ed. 2014). In other words, in rem jurisdiction allows the Court to hear a case because the property is within its jurisdiction.
The question then becomes: can a State court exercise in rem jurisdiction over property that is titled in a Tribe’s name, even if the Tribe does not consent? The U.S. Supreme Court has indicated strongly the answer is “yes.” The most relevant case here is County of Yakima v. Yakima Indian Nation, 502 U.S. 251 (1992). There, the Yakima Indian Nation in Washington State argued its tribal immunity prohibited Yakima County, Washington from assessing property taxes on land parcels owned by the tribe or its members. Id. at 256.
The U.S. Supreme Court disagreed. It held Yakima County could impose property taxes on Indian reservation land within the county—so long as the U.S. government does not hold the land in trust. Id. at 270. In doing so, the Court noted the key distinction that property taxes are assessed based on a County’s in rem jurisdiction rather than personal jurisdiction over the tribe or its members. Id. at 265.
If a county can assess taxes on tribe-owned properties under in rem jurisdiction, and foreclose for non-payment, it logically follows that a county Court can decide adverse possession cases under the same jurisdiction.
The Washington Supreme Court has backed this conclusion in multiple cases. First, in Anderson & Middleton Lumber Company v. Quinault Indian Nation, 130 Wn.2d 862, 929 P.2d 379 (1996), the Quinault tribe argued, on sovereign-immunity grounds, that a State court lacked jurisdiction over a quiet-title and partition action involving Quinault reservation land owned by the tribe.
The Washington Supreme Court rejected the tribe’s argument. It applied County of Yakima to hold the superior court had in rem jurisdiction to quiet title to and partition non-trust property claimed by an Indian tribe. Anderson, 130 Wn.2d at 873, 929 P.2d at 385. The Court reasoned “[b]ecause the . . . property is alienable and encumberable [i.e., able to be sold] . . . it should be subject to a state court in rem action which does nothing more than divide it among its legal owners according to their relative interests.” Id.
In other words, the Washington Supreme Court concluded that lawsuits involving the rights to non-trust tribal property can be brought in State court because the State court has jurisdiction over the property itself—even if it does not have personal jurisdiction over the tribe. The Court reinforced this idea in a case this year. Lundgren v. Upper Skagit Indian Tribe, 187 Wn.2d 857, 389 P.3d 569 (2017).
In Lundgren, the Court held the Skagit County Superior Court had jurisdiction over the Lundgrens’ claim to adverse possession of ten disputed acres bordering tribe-owned property. Id. at 868, 389 P.3d at 574. In doing so, the Court reaffirmed that a Washington court’s in rem jurisdiction allows it to hear adverse possession cases even where it does not have personal jurisdiction over a tribe.
Important to the Court’s decision, however, was that the Lundgrens could show they adversely possessed the neighboring land before the tribe acquired it. Id. at 870, 389 P.3d at 575. It is unclear where exactly that leaves Washington cases in which a property owner does not meet the required adverse possession time period before a tribe acquires neighboring land.
Nevertheless, Lundgren solidifies that Washington State courts will not automatically throw out cases involving rights to tribe-owned property simply because the tribe asserts its immunity.
Idaho law points to the same conclusion. See Lyon v. State, 76 Idaho 374, 283 P.2d 1105 (1955) (rejecting the Idaho State Board of Education’s argument that it had sovereign immunity from a quiet-title suit). Idaho courts recognize a quiet-title suit is “principally in rem.” Brown’s Tie & Lumber Co. v. Kirk, 109 Idaho 589, 590, 710 P.2d 18, 19 (Ct. App. 1985). Further, the Idaho Attorney General’s Office has concluded Indian-owned lands within reservation boundaries are subject to county property taxes unless the lands are held in trust by the federal government or subject to other restraints on sale. Idaho Attorney Gen. Op. No. 96-2, at 1.
In other words, it strongly appears that an Idaho district court can decide parties’ rights to land within its jurisdiction, even if a party to the suit would be immune from the Court’s personal jurisdiction.
The upshot for property owners in Idaho and Washington is if there is a dispute about parties’ rights to non-trust tribal land, it can likely be tried in State court. That can allow landowners to vindicate their property rights while saving them time and money they might otherwise spend going through tribal court first. Overall, these decisions of the federal courts and the State courts of Washington and Idaho are a win for property owners looking to secure their rights.
Note: This post is not legal advice, and should not be relied upon as such. Different sets of facts will likely lead to different legal conclusions. If you need assistance with real property matters, call Bristol George, PLLC for a one-hour, no charge consultation to see if we can help.