It was a tale of two arguments yesterday in Upper Skagit Indian Tribe v. Lundgren. The very first fifty percent of the argument showcased most of the justices giving scorching criticism of the thought that the tribe could be immune from state jurisdiction about off-reservation land the second fifty percent showcased the exact group of justices complaining to counsel for the landowners that the argument in their favor was not ripe for conclusion.
The situation is refreshingly basic. The Upper Skagit Indian Tribe ordered a parcel of land north of Seattle near the Canadian border the land adjoins but is outside the tribe’s reservation. The Lundgren spouse and children has owned land just to the south of that parcel for several a long time, and uncovered soon just after the tribal obtain that a strip of the land that they have been occupying all those yrs (demarcated by a World War II-period fence) was included inside of the land bought to the tribe. When the tribe refused to provide the parcel to the Lundgrens, they submitted a fit to “quiet” title, proclaiming that their use of the land for the very last two generations had offered them title to the strip by “adverse possession.”
The situation just before the Supreme Courtroom includes the tribe’s argument that as a sovereign, it is immune from fit in the Washington state courts. The Washington Supreme Courtroom turned down the tribe’s plea of immunity, reasoning that the immunity does not apply because this is a fit “in rem” (from the land) relatively than a fit “in personam” (from the tribe).
The very first element of the argument have to have seemed promising to Eric Miller, counsel for the Lundgrens: Sitting at counsel table, he had the luxurious, without stating a term, of listening to the justices hound David Hawkins (counsel for the tribe) with all of Miller’s very best arguments. The tone of Hawkins’ argument was established a few sentences into his presentation, when Justice Ruth Bader Ginsburg interrupted to check with pointedly: “Is it not the situation that no other political entity would be immune from this sort of a quiet-title fit, not the United States, not a state of the United States, not a overseas govt? So you’re proclaiming a variety of super-sovereign immunity for the tribe that no just one else will get.”
It before long turned apparent Ginsburg was not alone in that assessment of the tribe’s placement. Justices Elena Kagan, Stephen Breyer and Anthony Kennedy also came to the argument with what seemed to be a settled watch that regular rules of sovereign immunity “refute” the tribe’s assert of immunity. As Kagan consistently discussed, sovereign immunity “typically by common regulation and historically incorporates this exception for immovable residence,” underneath which sovereign immunity would not increase to land owned by just one sovereign in the territory of a different. As Breyer set it – just after tossing off references to a few continental treatises he had consulted just before the argument – “if you were being to have a quiz – ‘What was the regulation of sovereign immunity in 1760?’ — , … I guess you’d have to say the regulation was that [if] the prince purchases a office store in Iowa, … he’s just like a different Iowan.”
Ann O’Connell (appearing on behalf of the govt to assistance the tribe) challenged Kagan on that place, arguing that Kagan was calling for an “exception” to the general principles of sovereign immunity, and that the justices should leave it to Congress to enact statutes utilizing exceptions. But Kagan was unpersuaded: “[M]y place is not no matter if it should be denominated an exception or not an exception but no matter if this is the variety of historic, regular, very long-standing rule that we should not be expecting Congress to have to set in, that it just type of goes into the doctrine because that is element of the doctrine from very long, very long back.” Kennedy weighed in to assistance Kagan, commenting to O’Connell that “[y]ou call it … an exception. Other folks could call it just a restrict to the general rule. …. So that’s just enjoying with phrases.”
As if it weren’t poor plenty of that four justices seemed settled on the watch that the tribe’s immunity argument contradicts regular immunity rules, an overlapping group of justices seemed flabbergasted by the functional consequences of immunity in instances like this just one, giving a collection of pointed hypotheticals. Justice Samuel Alito led the way with his “ripped-from-the-headlines” case in point:
Let’s say a state or the federal govt would like to construct a freeway or it’s possible it is a pipeline, and there’s opposition to this job, so the men and women who are opposed to the job enlist an Indian tribe to invest in a little parcel of land alongside the route of this freeway or this pipeline. That would be the conclusion of the job, would it not?
In the exact vein, Kennedy commented to Hawkins with incredulity: “Under your watch of this situation, suppose the tribe, on land that it owns in a state but outside the reservation, puts up a large-increase creating in violation of the zoning regulation. They are exempt? They can develop wherever without reference to zoning rules?”
By the conclusion of O’Connell’s presentation, a good the vast majority (Kennedy, Ginsburg, Breyer, Alito and Kagan) seemed firmly settled on the propriety of the “immovable property” exception to sovereign immunity. But a stunning change of tone transpired when Miller ultimately came to the podium for the landowners.
The challenge for the landowners is the distinction among an “in-rem” exception and an immovable-residence exception. The Washington Supreme Courtroom ruled for the landowners primarily based on an “in-rem” exception that it discerned in the Supreme Court’s conclusion in County of Yakima v. Confederated Tribes and Bands of Yakima Indian Country, which would secure the tribe from any litigation instantly from residence (no matter if real or private). Miller argued that the landowners should prevail underneath an immovable-residence exception, which applies only to real residence, and which he grounds in historical rules of sovereign immunity that predate the Structure.
The tribe’s reply brief contended that Miller’s change of argument was an unfair surprise and that the dilemma was not effectively just before the justices. And nonetheless slight the distinction might appear to be as I explained it earlier mentioned, most of the justices seemed to concur.
Early in Miller’s presentation, for case in point, Justice Neil Gorsuch obtained Miller to “agree that Yakima does not management.” But armed with that concession, Gorsuch asked, “[W]hy is not it plenty of for the day for this Courtroom to solve a break up of authority about no matter if Yakima controls in instances like this and return it to the Washington Supreme Courtroom in which you can current all these wonderful arguments you’ve lifted here for the very first time”?
Miller tried out valiantly to argue that the distinctions among “immovable property” and “in rem” principles are immaterial, but Kagan clearly had imagined about the challenge at size – she noted having sketched “a little Venn diagram for myself” just before the argument – and was not in the least bit persuaded:
I assume there are real distinctions in the scope of the immovable residence exception on the just one hand and an in rem exception on the other hand. And clearly the Washington court docket talked about the in rem exception. Now you’re coming in and you have an really potent argument about this immovable residence rule, but it is not the exact argument that the court docket in Washington built.
Kagan went out of her way to praise the substance of Miller’s argument, but she could not concur with his characterization of it as a basic tweak to the arguments presented in the state courts:
This is the way I … see what’s took place in this situation, and yet again, you can tell me if I am erroneous. You took about this situation and you examine this feeling and you reported this is not a quite good concept. There is a definitely good concept here. And I’m likely to make that. And that’s what good lawyers do. I’m not at all criticizing you. It is just it is a new concept, … it is not just even a new argument. It is … a completely new way to earn this situation.
Justice Sonia Sotomayor seemed to crystallize the justices’ regular reluctance to rule on late-presented arguments, suggesting that if the litigants took the time to permit the situation to “get aired fully” in the decreased courts, the justices could solve the challenge with much more self esteem. In the exact vein, Kagan commented that she was “a little bit apprehensive that” opportunity “amici [didn’t] kn[o]w about this concept. … And I assume it would be … just a poor way of working on our element if we allowed events to come in, even with the very best of faith, and reported I have a new concept for you that … definitely the only men and women who obtained a prospect to reply are the Petitioners in a 20-webpage yellow brief.”
Miller’s presentation ended with a good the vast majority of the court docket (Breyer, Kagan, Alito, Sotomayor and Gorsuch) appearing to take a potent watch from achieving the immovable-residence argument. So I assume it is rather straightforward to predict the consequence here: a quick feeling vacating the conclusion of the Washington Supreme Courtroom primarily based on Miller’s concession, with a remand to give that court docket a prospect to look at the arguments the justices observed so persuasive. Miller could have received the argument about the appropriate lawful rule, but it appears to be like he won’t stroll away with a earn in the situation from the justices.
Argument examination: Justices doubtful about tribal immunity from state-court docket steps to adjudicate title to land, but hesitant to embrace new concept,
SCOTUSblog (Mar. 21, 2018, 7:31 PM),