Publication
Tribal Sovereign Immunity Bars In Rem Proceedings
On October 9, 2025, the Washington Supreme Court held that tribal sovereign immunity cannot be abrogated through in rem jurisdiction over tribally owned non-reservation lands to vest the court with subject matter jurisdiction over a quiet title action through adverse possession.
Adverse Possession Claim in Superior Court
The Stillaguamish Tribe of Indians (“Tribe”) purchased an off-reservation parcel along the Stillaguamish River from Snohomish County in 2021 for conservation use.1 The parcel was privately owned before Snohomish County purchased it in 1995.2 Flying T Ranch, a corporation (“Flying T”), owns adjacent property.3
In 2022, Flying T brought suit against the Tribe in Snohomish County Superior Court (“SCSC”) to quiet title to a narrow strip of the parcel.4 Flying T alleged it had acquired title by adverse possession, evidenced by placement of a fence and ongoing use for livestock grazing since 1962.5 The Tribe moved for dismissal based on sovereign immunity.6 The SCSC granted the Tribe’s motion and dismissed the suit based upon sovereign immunity.7
Sovereign Immunity & the Immovable Property Exception Appellate Analysis
On appeal, Flying T argued that sovereign immunity was limited by a common law immovable property exception and that the court had in rem jurisdiction over off-reservation lands within the state, regardless of tribal ownership of the parcel.8 The Washington Court of Appeals (“WCOA”) disagreed, affirming the SCSC’s dismissal.9
The WCOA reasoned that “[w]hen the Tribe is afforded immunity equal to foreign sovereign, it may be sued over its objection only when allowed by Congress.”10 The WCOA opined that Flying T had presented no precedent demonstrating any court had applied “the immovable property exception against a foreign nation to disallow foreign sovereign immunity.”11 Moreover, the WCOA noted Congress’s passage of the Foreign Sovereign Immunities Act of 1976 (“FSIA”) “did not support application of a common law immovable property exception” without Congress explicitly so stating in statute.12 Finally, the WCOA stated Upper Skagit Indian Tribe v. Lundgren superseded state precedent permitting quiet title claims to proceed against a tribe.13
Washington Supreme Court Analysis of Sovereign Immunity
On appeal, the Washington Supreme Court (“WSC”) examined precedent clarifying sovereign immunity. The WSC explained the United States Supreme Court (“USSC”) has held tribes are not “foreign” sovereigns but are “domestic dependent nations” with sovereign immunity that only Congress or the tribes may waive.14
Next, the WSC noted Washington precedent had permitted in rem jurisdiction over tribally owned non-reservation land.15 The WSC had interpreted County of Yakima to signify in rem jurisdiction overrode sovereign immunity; however, the USSC in Upper Skagit clarified that interpretation misconstrued its holding.16 The USSC in Upper Skagit explicitly stated its County of Yakima opinion did not address sovereign immunity’s scope but instead focused on statutory interpretation.17As a result, the USSC vacated and remanded Lundgren for the WSC to address sovereign immunity as a separate issue in light of its clarification of County of Yakima’s holding.18 That foundation framed WSC’s analysis here.
The WSC analyzed precedent nationwide, concluding that in rem claims do not circumvent sovereign immunity, as sovereign immunity is “an issue of subject matter jurisdiction.”19 Tribal sovereign immunity bars suit against a tribe unless the tribe has clearly and unmistakably waived its right to sovereign immunity or Congress has by statute expressly abrogated such immunity, as the WSC noted.20 The WSC noted Flying T did not provide precedent supporting in rem jurisdiction absent an explicit waiver.21
The WSC next assessed tribal land ownership for the purposes of applying sovereign immunity. After discussing precedent defining “Indian country,” the WSC concluded off-reservation lands were not necessarily excluded from “Indian country” for purposes of tribal sovereign immunity.22 The WSC noted the use of the property should be considered.23 In this case, the WSC explained, the Tribe was promoting its interests “with respect to preserving [its] treaty rights to fish… [and] restore salmon populations.”24 The WSC found it “unlikely Congress… intended to waive sovereign immunity” where the Tribe purchased the land using “state and federal funding from a conservation grant,” conditioned on the Tribe protecting the parcel “in perpetuity,” use the land “for a specified purpose,” and remain “subject to the State’s supervision.”25 Based on the foregoing, the WSC held tribal sovereign immunity applied.
Washington Supreme Court Analysis of the Immovable Property Exception
The WSC also discussed the historical application of comity prior to Congress’s codification of foreign sovereign immunity and the immovable property exception in the FSIA.26 Congress, through the FSIA, clarified that foreign sovereign immunity does not apply to actions regarding “rights in immovable property” within the U.S.27 Although all parties agreed FSIA was inapplicable to tribes, Flying T contended FSIA merely codified common law.28 Flying T argued it was reasonable to infer the existence of a common law immovable property exception predating the FSIA that would require the Tribe to affirmatively prove its sovereign immunity barred suit.29 The WSC rejected this logic and instead reasoned FSIA codified international practice, not U.S. common law, so the existence of a U.S. common law exception could not be inferred from FSIA’s enactment.30
The WSC refused to be the first to apply the immovable property exception to a tribe.31 Furthermore, the WSC observed that Congress “did not expressly include the tribes” in the immovable property exception within the FSIA and thus must not have intended the exception apply to tribes.32 Thus, the WSC affirmed the dismissal based on lack of subject matter jurisdiction, held the immovable property exception inapplicable to tribes, and held state courts “do not have subject matter jurisdiction over adverse possession claims related to non-reservation land owned by tribes.”33
This decision further solidifies the applicability of sovereign immunity to non-reservation lands owned by tribes.
Footnotes
-
Flying T Ranch, Inc. v. Stillaguamish Tribe of Indians, No. 103430‑0 (Wash. Oct. 9, 2025) (opinion) at 1-2 (found at: https://turtletalk.wordpress.com/wp-content/uploads/2025/10/103430-0-opinion.pdf).
-
Id.
-
Id. at 2 – 3.
-
Id.
-
Id. at 3 (Flying T contended its possession was “actual, uninterrupted, open notorious, exclusive, and hostile to any claim of right by all others,” meeting the standards for an adverse possession claim.).
-
Id. at 3.
-
Id.
-
Id. at 4.
-
Id.
-
Id. at 4 – 5.
-
Id. at 5.
-
Id. at 5.
-
Id.at 5; See Upper Skagit Indian Tribe v. Lundgren, 584 U.S. 554 (2018) (“Upper Skagit”)
-
Id. at 6 – 8; See Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 19 (1831), Kiowa Tribe v. Mfg. Techs., Inc., 523 U.S. 751, 756 (1998)
-
Id. at 8 – 11; See County of Yakima v. Confederated Tribes & Bands of Yakima Indian Nation, 502 U.S. 251, 255 (1992) (“County of Yakima”), Anderson & Middleton Lumber Co. v. Quinault Indian Nation, 929 P.2d 379 (1996), Smale v. Noretep, 208 P.3d 1180 (2009) Lundgren v. Upper Skagit Indian Tribe, 389 P.3d 569 (2017) (“Lundgren”), vacated and remanded by Upper Skagit, 584 U.S. 554 (2018).
-
Id. at 10 – 11.
-
Id.
-
Id.
-
See Cayuga Indian Nation v. Seneca County, 761 F.3d 218, 221 (2d Cir. 2014), Oneida Indian Nation v. Madison County, 605 F.3d 149, 157 (2d Cir. 2010), vacated and remanded 562 U.S. 42, (2011), Hamaatsa, Inc. v. Pueblo of San Felipe, 388 P.3d 977 (2016), Lewis v. Norton, 424 F.3d 959 (9th Cir. 2005), Acres Bonusing, Inc. v. Marston, 17 F.4th 901 (9th Cir. 2021), Alvarado v. Table Mountain Rancheria, 509 F.3d 1008 (9th Cir. 2007).
-
See Bodi v. Shingle Springs Band of Miwok Indians, 832 F.3d 1011 (9th Cir. 2016).
-
Id. at 15.
-
Id. at 20 – 21.
-
Id. at 19 – 20, See The Schooner Exch. v. M‘Faddon, 3 L. Ed. 287 (1812), Georgia v. City of Chattanooga, 264 U.S. 472 (1924).
-
Id. at 20.
-
Id.
-
Id. at 15 – 16.
-
Id.; See 28 U.S.C. § 1605(a)(4).
-
Id.
-
Id. at 18.
-
Id. at 19.
-
Id. at 20.
-
Id.
-
Id. at 26.
About Snell & Wilmer
Founded in 1938, Snell & Wilmer is a full-service business law firm with more than 500 attorneys practicing in 17 locations throughout the United States and in Mexico, including Los Angeles, Orange County, Palo Alto and San Diego, California; Phoenix and Tucson, Arizona; Denver, Colorado; Washington, D.C.; Boise, Idaho; Las Vegas and Reno-Tahoe, Nevada; Albuquerque, New Mexico; Portland, Oregon; Dallas, Texas; Salt Lake City, Utah; Seattle, Washington; and Los Cabos, Mexico. The firm represents clients ranging from large, publicly traded corporations to small businesses, individuals and entrepreneurs. For more information, visit swlaw.com.
