On Monday, the Supreme Court issued its decision in Upper Skagit v. Lundgren, the Court’s third foray into the topic of tribal sovereign immunity in the last four Terms. From one perspective, the decision—which sent the case back down to the Washington Supreme Court for further proceedings—importantly clarified an earlier Supreme Court precedent, but otherwise broke little new ground. Viewed from another perspective, though, the case raises deep and fundamental questions about the place of Native nations within the U.S. constitutional framework.
Upper Skagit involved a set of facts out of a property-law exam hypo: the Upper Skagit Tribe in Washington State purchased an off-reservation plot of land, but soon confronted a quiet title suit from the neighbors, who alleged that they had adversely possessed a portion of the property. The tribe then invoked its sovereign immunity to attempt to bar the proceeding, yet the Washington Supreme Court—relying on an interpretation of the U.S. Supreme Court’s 1992 decision County of Yakima v. Confederated Tribes and Bands of Yakima Nation—concluded that tribes cannot invoke their sovereign immunity in an in rem proceeding.
At oral argument, it was clear that neither the Court nor the attorneys for either side thought much of the lower court’s rationale, which conflated jurisdiction to tax with the distinct question of sovereign immunity. Writing for the seven-Justice majority, Justice Gorsuch easily concluded that Yakima “resolved nothing about the law of sovereign immunity.” Concurring, Justice Roberts, joined by Justice Kennedy, agreed—but expressed concern about the effect of tribal sovereign immunity in this instance, which, he feared, might leave the neighbors without any viable remedy shy of trespass.
But perhaps the key issue—one that, like much of federal Indian law, pushes us back to foundational questions about sovereignty and history—involved the “immovable property exception” to sovereign immunity. Under this rule, sovereigns who purchase property within the territory of another sovereign cannot invoke their sovereign immunity to halt proceedings concerning those lands. So, if California buys land in Nevada, or Canada buys land within the United States, neither sovereign enjoys the benefit of sovereign immunity in property actions in Nevada or U.S. courts. On appeal, the Lundgrens’ attorneys argued that the same rule should apply to tribes, too. But the Court decided not to entertain that claim, because the Lundgrens had failed to raise it adequately on appeal, and instead gave the Washington Supreme Court the first crack at assessing whether the exception applies.
This decision provoked the ire of Justice Thomas, who, in a lengthy dissent, insisted that the immovable property exception did apply to tribes. Thomas’s rationale involved a deep dive into the history of international law, citing the principle’s enunciation not just in such well-known staples as Vattel’s 1758 Law of Nations but also in deep cuts like the works of Cornelius van Bynkershoek and Bartolus of Sassaferatto. (Sadly for connoisseurs of elaborately named international-law treatise writers, Samuel von Pufendorf failed to make the cut). Columbia’s Ronald Mann, writing in ScotusBlog, called this dissent a “tour de force of historical arguments.”
I’m not so convinced. Although I’m on record sharply questioning Justice Thomas’s constitutional history in Indian law more generally, I agree with Thomas that the immovable property exception has deep roots in international law. But I question his blithe assumption that the same principle did, or should, apply to tribes.
To be sure, there is an intuitive appeal in the consistency implied by Thomas’s position—tribes should enjoy the same immunity as other sovereigns such as states and foreign nations. In fact, I’d be delighted to see Thomas and the other Justices apply this standard of consistency more broadly. But it seems bit late to invoke this principle, since, as a matter of historical fact, the United States explicitly chose not to treat Native nations as equivalent to other sovereigns.
This history has deep roots. As I’ve traced elsewhere, the “Founders,” as Thomas labels them, relied heavily on international law to define the legal status of Native nations within the United States. But even then, the Founders modified the principles of what Thomas calls “hornbook law” to define Native sovereignty as less than that enjoyed by “white nations,” to use a phrase employed by Thomas Jefferson. By 1831, in Cherokee Nation–a case that Justice Thomas cites—Chief Justice Marshall explicitly rejected the conclusion, urged by Justice Thompson, that a straightforward application of Vattel clearly defined the Cherokee Nation as a “foreign state.” Marshall instead opted to diverge from international law, arguing that, because “[t]he condition of the Indians in relation to the United States is perhaps unlike that of any other two people in existence,” its strictures did not apply. Marshall’s words provided a common thread that ran through the Court’s Indian law jurisprudence, justifying the manipulation of tribal sovereignty by reasoning that Native status within the U.S. has “always been . . . anomalous . . . and of a complex character.”
One consequence of Marshall’s ruling that tribes were “domestic dependent nations” was that Native nations were deprived the benefits of international law—including the immovable property exception. The history of U.S. westward expansion is largely the history of one sovereign—the United States—purchasing land within the territory of other sovereigns—Native nations. Yet, notwithstanding Thomas’s “six centuries of consensus” on the issue, the United States did not believe these purchases subjected these lands to tribal courts and law; it assumed that it now had jurisdiction as well as ownership over the land. And this was an assumption: unlike the transfers from France in the Louisiana Purchase or Mexico in the Treaty of Guadalupe Hidalgo, for instance, which explicitly stated that they conveyed sovereignty as well as title, most Indian treaties spoke only of the boundaries of the land sold. There is, then, a bitter irony in Thomas’s invocation of Bushrod Washington’s 1824 statement that “the title to, and the disposition of real property, must be exclusively subject to the laws of the country where it is situated”—an irony only heightened when we recall that Marshall had decided Johnson v. M’Intosh, which unambiguously rejected that principle with respect to Native peoples, a year before.
Thomas concludes his opinion with a paean to state territorial sovereignty, quoting 1845 case Pollard’s Lessee v. Hagan for the principle that states are “entitled to the sovereignty and jurisdiction over all the territory within her limits.” And he insists that “those present at ‘the founding’ would have been shocked” by the idea of a tribe acquiring property within a state and then claiming immunity over it.
I’m impressed by Justice Thomas’s ability to claim, with great certainty but no citations, what would and would not have shocked late eighteenth-century Americans. But my research makes me think his confidence is misplaced. Thomas’s shocked Founders, after all, are the same ones who signed treaties guaranteeing Native ownership and jurisdiction over vast swathes of supposed state territory, who enacted federal statutes that separated states’ “ordinary jurisdiction” from what they called “Indian country” and then criminalized the exercise of state authority there, and who proposed lopping off all the Indian territory within new states to make the jurisdictional lines unambiguous—but then decided to include it within state territory anyway. In fact, Thomas’s historical argument isn’t really rooted in the Founding at all. Rather, as I’ve explored in another piece, Pollard is not the summation of Founding-era views about territory and federalism, but its repudiation. It is grounded not in the world of Washington and Jefferson but in that of Jackson, in an ideology of rampant state territorial sovereignty that was developed and then invoked as a justification for Indian Removal.
This long history of shunting aside the legal rules Thomas explicates when it comes to tribes should give us pause, I think, before simply assuming with Thomas that Bynkershoek’s principles resolve the current dispute. But the history also has had important consequence in the present, pointing to another potentially significant difference that Thomas elides. States, both foreign and domestic, have a territory separate from the domain of other sovereigns. Tribes, because of the processes denigrating their sovereignty, do not: there is no portion of the Upper Skagits’ lands that does not lie within the state of Washington (as well as within the United States). In that sense, the tribes’ situation is much more analogous to that of the United States, which similarly holds most of its property within the states. And, for what it’s worth, the federal government does enjoy sovereign immunity with respect to that property, although it has partially waived it through the Quiet Title Act. Perhaps one might try to reconcile this discrepancy by drawing a line at the reservation border and suggesting that tribes enjoy sovereign immunity for lands within Indian country. Yet such a boundary ignores the fact that tribes’ land purchases almost always happen within their ancestral territories or diminished reservations. In other words, employing the immovable property exception turns out to be a very effective way to entrench the outcomes of centuries of dispossession and prevent tribes from reacquiring land that was taken from them.
The upshot is that for nearly its entire existence, the United States has sought to deny the analogy between Native nations and other sovereigns in order to avoid the implications that would flow if such comparisons were taken seriously. This is not ancient history, as the current Court continues to repeatedly deny tribes fundamental attributes of sovereignty—attributes that would be obvious for both states and foreign nations—based on the idea that they are sui generis. Thomas’s willingness to insist on tribes’ equality with states and foreign nations and apply “hornbook” principles of international law to Indian law is thus a welcome break from this long-standing practice. Too bad that he only seems to have the courage of this conviction when it works to harm tribes.
Greg Ablavsky is an assistant professor of law at Stanford Law School. His scholarship focuses on early American legal history, particularly on issues of sovereignty, territory, and property in the early American West.