throbber

`(Slip Opinion)
`
`
`
` OCTOBER TERM, 2017
`
`
`Syllabus
`
`1
`
` NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
`
`
`
` being done in connection with this case, at the time the opinion is issued.
`
`
`
` The syllabus constitutes no part of the opinion of the Court but has been
`
` prepared by the Reporter of Decisions for the convenience of the reader.
`
` See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
`
`
`SUPREME COURT OF THE UNITED STATES
`
`
`
` Syllabus
`
`
`
` UPPER SKAGIT INDIAN TRIBE v. LUNDGREN ET VIR
`
`CERTIORARI TO THE SUPREME COURT OF WASHINGTON
`
`No. 17–387. Argued March 21, 2018—Decided May 21, 2018
`
`The Upper Skagit Indian Tribe purchased a roughly 40-acre plot of land
`and then commissioned a boundary survey. The survey convinced
`the Tribe that about an acre of its land lay on the other side of a
`boundary fence between its land and land owned by Sharline and
`
`Ray Lundgren. The Lundgrens filed a quiet title action in Washing-
`ton state court, invoking the doctrines of adverse possession and mu-
`
`tual acquiescence, but the Tribe asserted sovereign immunity from
`
`the suit. Ultimately, the State Supreme Court rejected the Tribe’s
`
`immunity claim and ruled for the Lundgrens, reasoning that, under
`County of Yakima v. Confederated Tribes and Bands of Yakima Na-
`
`tion, 502 U. S. 251, tribal sovereign immunity does not apply to in
`
`rem suits.
`
`Held: Yakima addressed not the scope of tribal sovereign immunity, but
`a question of statutory interpretation of the Indian General Allot-
`
`ment Act of 1887. That Act authorized the President to allot parcels
`of reservation land to individual tribal members and directed the
`United States eventually to issue fee patents to the allottees as pri-
`vate individuals. In 1934, Congress reversed course but made no at-
`
`tempt to withdraw the lands already conveyed. As a result, Indian
`reservations sometimes contain both trust land held by the United
`
`States and fee-patented land held by private parties. Yakima con-
`
`cerned the tax consequences of this intermixture. This Court had
`
`previously held that §6 of the General Allotment Act could no longer
`be read as allowing States to impose in personam taxes on transac-
`tions between Indians on fee-patented land within a reservation.
`
`Moe v. Confederated Salish and Kootenai Tribes of Flathead Reserva-
`tion, 425 U. S. 463, 479–481. The Court reached a different conclu-
`
`sion in Yakima with respect to in rem state taxes, holding that the
`state collection of property taxes on fee-patented land within reserva-
`
`
`
`
`
`
`
`

`

`2
`
`
`UPPER SKAGIT TRIBE v. LUNDGREN
`
`
`Syllabus
` tions was still allowed under §6. 502 U. S., at 265. In short, Yakima
`
`sought only to interpret a relic of a statute in light of a distinguisha-
`ble precedent; it resolved nothing about the law of sovereign immuni-
`ty.
`Acknowledging this, the Lundgrens now ask the Court to affirm on
`
`
`an alternative, common-law ground: that the Tribe cannot assert
`
`sovereign immunity because this suit relates to immovable property
`
`located in Washington State, purchased by the Tribe in the same
`
`manner as a private individual. Because this alternative argument
`
`did not emerge until late in this case, the Washington Supreme Court
`should address it in the first instance. Pp. 3–7.
`
`187 Wash. 2d 857, 389 P. 3d 569, vacated and remanded.
`GORSUCH, J., delivered the opinion of the Court, in which ROBERTS,
`
`
`
`C. J., and KENNEDY, GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ.,
`
`
`
`
`
`
`
`joined. ROBERTS, C. J., filed a concurring opinion, in which KENNEDY,
`
`
`J., joined. THOMAS, J., filed a dissenting opinion, in which ALITO, J.,
`
`
`
`
`
`joined.
`
`
`
`

`

`
`
`
`Cite as: 584 U. S. ____ (2018)
`
`Opinion of the Court
`
`1
`
`
` NOTICE: This opinion is subject to formal revision before publication in the
`
`
`
` preliminary print of the United States Reports. Readers are requested to
`
` notify the Reporter of Decisions, Supreme Court of the United States, Wash-
`
` ington, D. C. 20543, of any typographical or other formal errors, in order
`
`
` that corrections may be made before the preliminary print goes to press.
`
`
`
`
`SUPREME COURT OF THE UNITED STATES
`
`_________________
`
` No. 17–387
`_________________
`UPPER SKAGIT INDIAN TRIBE, PETITIONER v.
`
`
`
`
` SHARLINE LUNDGREN, ET VIR
`
`ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
`
`
`WASHINGTON
`
`[May 21, 2018]
`
`JUSTICE GORSUCH delivered the opinion of the Court.
`
`Lower courts disagree about the significance of our
`
`decision in County of Yakima v. Confederated Tribes and
`
`Bands of Yakima Nation, 502 U. S. 251 (1992). Some
`think it means Indian tribes lack sovereign immunity in
`
`in rem lawsuits like this one; others don’t read it that way
`
`at all.* We granted certiorari to set things straight. 583
`U. S. ___ (2017).
`Ancestors of the Upper Skagit Tribe lived for centuries
`
`
`along the Skagit River in northwestern Washington State.
`
`But as settlers moved across the Cascades and into the
`region, the federal government sought to make room for
`
`them by displacing native tribes. In the treaty that fol-
`lowed with representatives of the Skagit people and oth-
`ers, the tribes agreed to “cede, relinquish, and convey”
`——————
`*Compare 187 Wash. 2d 857, 865–869, 389 P. 3d 569, 573–574 (2017)
`
`
`(case below); Cass County Joint Water Resource Dist. v. 1.43 Acres of
`
`
`Land in Highland Twp., 2002 ND 83, 643 N. W. 2d 685, 691–693 (2002)
`
`(conforming to the Washington Supreme Court’s interpretation of
`Yakima), with Hamaatsa, Inc. v. Pueblo of San Felipe, 2017–NMSC–
`
`007, 388 P. 3d 977, 986 (2016) (disagreeing); Cayuga Indian Nation of
`
`N. Y. v. Seneca County, 761 F. 3d 218, 221 (CA2 2014) (same).
`
`
`
`
`
`

`

`2
`
`
`UPPER SKAGIT TRIBE v. LUNDGREN
`
`Opinion of the Court
`their lands to the United States in return for $150,000 and
`
`other promises. Treaty of Point Elliott, Jan. 22, 1855, 12
`Stat. 927; see Washington v. Washington State Commer-
`cial Passenger Fishing Vessel Assn., 443 U. S. 658, 676
`(1979); United States v. Washington, 384 F. Supp. 312, 333
`(WD Wash. 1974).
`
`
`Today’s dispute stems from the Upper Skagit Tribe’s
`efforts to recover a portion of the land it lost. In 1981, the
`federal government set aside a small reservation for the
`Tribe. 46 Fed. Reg. 46681. More recently, the Tribe has
`sought to purchase additional tracts in market transac-
`tions. In 2013, the Tribe bought roughly 40 acres where, it
`
`says, tribal members who died of smallpox are buried.
`
`The Tribe bought the property with an eye to asking the
`federal government to take the land into trust and add it
`
`to the existing reservation next door. See 25 U. S. C.
`§5108; 25 CFR §151.4 (2013). Toward that end, the Tribe
`commissioned a survey of the plot so it could confirm the
`
`property’s boundaries. But then a question arose.
`
`
`The problem was a barbed wire fence. The fence runs
`
`
`some 1,300 feet along the boundary separating the Tribe’s
`land from land owned by its neighbors, Sharline and Ray
`Lundgren. The survey convinced the Tribe that the fence
`
`is in the wrong place, leaving about an acre of its land on
`the Lundgrens’ side. So the Tribe informed its new neigh-
`bors that it intended to tear down the fence; clearcut the
`
`intervening acre; and build a new fence in the right spot.
`
`In response, the Lundgrens filed this quiet title action in
`Washington state court. Invoking the doctrines of adverse
`possession and mutual acquiescence, the Lundgrens of-
`fered evidence showing that the fence has stood in the
`same place for years, that they have treated the disputed
`
`acre as their own, and that the previous owner of the
`Tribe’s tract long ago accepted the Lundrens’ claim to the
`
`land lying on their side of the fence. For its part, the Tribe
`
`asserted sovereign immunity from the suit. It relied upon
`
`
`
`

`

`3
`
`
`
`
`
` Cite as: 584 U. S. ____ (2018)
`
`Opinion of the Court
`the many decisions of this Court recognizing the sovereign
`
`authority of Native American tribes and their right to “the
`common-law immunity from suit traditionally enjoyed by
`
`sovereign powers.” Michigan v. Bay Mills Indian Com-
`munity, 572 U. S. ___, ___ (2014) (slip op., at 5) (internal
`quotation marks omitted).
`Ultimately, the Supreme Court of Washington rejected
`
`
`the Tribe’s claim of
`immunity and ruled
`for the
`Lundgrens. The court reasoned that sovereign immunity
`does not apply to cases where a judge “exercis[es] in rem
`
`jurisdiction” to quiet title in a parcel of land owned by a
`
`Tribe, but only to cases where a judge seeks to exercise in
`
`personam jurisdiction over the Tribe itself. 187 Wash. 2d
`857, 867, 389 P. 3d 569, 573 (2017). In coming to this
`
`conclusion, the court relied in part on our decision in
`Yakima. Like some courts before it, the Washington
`Supreme Court read Yakima as distinguishing in rem
`
`from in personam lawsuits and “establish[ing] the princi-
`ple that . . . courts have subject matter jurisdiction over
`
`in rem proceedings in certain situations where claims of
`
`
`
`
`sovereign immunity are asserted.” 187 Wash. 2d, at 868,
`
`
`
`
`389 P. 3d, at 574.
`That was error. Yakima did not address the scope of
`
`tribal sovereign immunity.
`Instead, it involved only a
`much more prosaic question of statutory interpretation
`
`concerning the Indian General Allotment Act of 1887. See
`24 Stat. 388.
`
`
`Some background helps dispel the misunderstanding.
`
`The General Allotment Act represented part of Congress’s
`
`late Nineteenth Century Indian policy: “to extinguish
`
`tribal sovereignty, erase reservation boundaries, and force
`
`the assimilation of Indians into the society at large.”
`
`Yakima, supra, at 254; In re Heff, 197 U. S. 488, 499
`
`It authorized the President to allot parcels of
`(1905).
`reservation land to individual tribal members. The law
`then directed the United States to hold the allotted parcel
`
`
`
`
`
`

`

`4
`
`
`UPPER SKAGIT TRIBE v. LUNDGREN
`
`Opinion of the Court
`in trust for some years, and afterwards issue a fee patent
`
`to the allottee. 24 Stat. 389. Section 6 of the Act, as
`amended, provided that once a fee patent issued, “each
`and every allottee shall have the benefit of and be subject
`to the laws, both civil and criminal, of the State or Territory
`in which they may reside” and “all restrictions as to sale,
`
`incumbrance, or taxation of said land shall be removed.”
`
`25 U. S. C. §349.
`
`
`In 1934, Congress reversed course. It enacted the Indian
`Reorganization Act, 48 Stat. 984, to restore “the principles
`
`of tribal self-determination and self-governance” that
`
`prevailed before the General Allotment Act. Yakima, 502
`U. S., at 255. “Congress halted further allotments and
`extended indefinitely the existing periods of trust applica-
`
`ble to” parcels that were not yet fee patented. Ibid.; see 25
`U. S. C. §§461–462. But the Legislature made no attempt
`
`to withdraw lands already conveyed to private persons
`through fee patents (and by now sometimes conveyed to
`non-Indians). As a result, Indian reservations today
`sometimes contain two kinds of land intermixed in a kind
`
`of checkerboard pattern: trust land held by the United
`States and fee-patented land held by private parties. See
`
`Yakima, supra, at 256.
`
`Yakima concerned the tax consequences of this checker-
`board. Recall that the amended version of §6 of the
`General Allotment Act rendered allottees and their fee-
`patented land subject to state regulations and taxes. 25
`U. S. C. §349. Despite that, in Moe v. Confederated Salish
`
`
`and Kootenai Tribes of Flathead Reservation, 425 U. S.
`463 (1976), this Court held that §6 could no longer be read
`as allowing States to impose in personam taxes (like those
`on cigarette sales) on transactions between Indians on fee-
`
`patented land within a reservation.
`Id., at 479–481.
`
`Among other things, the Court pointed to the impracticality
`of using the ownership of a particular parcel within a
`reservation to determine the law governing transactions
`
`
`
`
`
`

`

`5
`
`
`
` Cite as: 584 U. S. ____ (2018)
`
`Opinion of the Court
`
` taking place upon it. See id., at 478–479. Despite Moe
`
` and some years later, this Court in Yakima reached a
`
` different conclusion with respect to in rem state taxes.
`
`The Court held that allowing States to collect property
`
`
`taxes on fee-patented land within reservations was still
` allowed by §6. Yakima, supra, at 265. Unlike the in
`
`
`
` personam taxes condemned in Moe, the Court held that
`imposing in rem taxes only on the fee-patented squares of
`the checkerboard was “not impracticable” because property
`
`tax assessors make “parcel-by-parcel determinations”
`
`about property tax liability all the time. Yakima, supra,
`
`at 265. In short, Yakima sought only to interpret a relic of
`
`
`a statute in light of a distinguishable precedent; it re-
`solved nothing about the law of sovereign immunity.
`
`Commendably, the Lundgrens acknowledged all this at
`oral argument. Tr. of Oral Arg. 36. Instead of seeking to
`defend the Washington Supreme Court’s reliance on Ya-
`kima, they now ask us to affirm their judgment on an
`entirely distinct alternative ground. At common law, they
`say, sovereigns enjoyed no immunity from actions involv-
`
`ing immovable property located in the territory of another
`sovereign. As our cases have put it, “[a] prince, by acquir-
`ing private property in a foreign country, . . . may be con-
`
`sidered as so far laying down the prince, and assuming the
`character of a private individual.” Schooner Exchange v.
`
`McFaddon, 7 Cranch 116, 145 (1812). Relying on this line
`of reasoning, the Lundgrens argue, the Tribe cannot assert
`sovereign immunity because this suit relates to immovable
`
`property located in the State of Washington that the Tribe
`purchased in the “the character of a private individual.”
`
`The Tribe and the federal government disagree. They
`note that immunity doctrines lifted from other contexts do
`not always neatly apply to Indian tribes. See Kiowa Tribe
`
`of Okla. v. Manufacturing Technologies, Inc., 523 U. S.
`751, 756 (1998) (“[T]he immunity possessed by Indian
`
`tribes is not coextensive with that of the States”). And
`
`
`
`
`
`

`

`6
`
`
`UPPER SKAGIT TRIBE v. LUNDGREN
`
`Opinion of the Court
`since the founding, they say, the political branches rather
`than judges have held primary responsibility for determin-
`ing when foreign sovereigns may be sued for their activi-
`ties in this country. Verlinden B. V. v. Central Bank of
`
`
`
`
`Nigeria, 461 U. S. 480, 486 (1983); Ex parte Peru, 318
`U. S. 578, 588 (1943).
`We leave it to the Washington Supreme Court to ad-
`
`dress these arguments in the first instance. Although we
`have discretion to affirm on any ground supported by the
`
`law and the record that will not expand the relief granted
`below, Thigpen v. Roberts, 468 U. S. 27, 30 (1984), in this
`case we think restraint is the best use of discretion. De-
`termining the limits on the sovereign immunity held by
`
`Indian tribes is a grave question; the answer will affect all
`
`tribes, not just the one before us; and the alternative
`
`argument for affirmance did not emerge until late in this
`case. In fact, it appeared only when the United States
`filed an amicus brief in this case—after briefing on certio-
`rari, after the Tribe filed its opening brief, and after the
`Tribe’s other amici had their say. This Court has often
`
`declined to take a “first view” of questions that make their
`
`appearance in this posture, and we think that course the
`
`
`
`wise one today. Cutter v. Wilkinson, 544 U. S. 709, 718,
`n. 7 (2005).
`
`The dissent is displeased with our decision on this score,
`but a contradiction lies at the heart of its critique. First,
`the dissent assures us that the immovable property excep-
`tion applies with irresistible force—nothing more than a
`
`matter of “hornbook law.” Post, at 3–10 (opinion of
`
` THOMAS, J.). But then, the dissent claims that allowing
`
`
`the Washington Supreme Court to address that exception
`is a “grave” decision that “casts uncertainty” over the law
`
` and leaves lower courts with insufficient “guidance.” Post,
`at 3, 13–14. Both cannot be true. If the immovable prop-
`erty exception presents such an easy question, then it’s
`hard to see what terrible things could happen if we allow
`
`
`
`

`

`7
`
`It is so ordered.
`
`
`
`
` Cite as: 584 U. S. ____ (2018)
`
`Opinion of the Court
`the Washington Supreme Court to answer it. Surely our
`
`state court colleagues are no less versed than we in “horn-
`book law,” and we are confident they can and will faithfully
`
`apply it. And what if, instead, the question turns out to be
`
`more complicated than the dissent promises? In that case
`the virtues of inviting full adversarial testing will have
`
`proved themselves once again. Either way, we remain
`
`sanguine about the consequences.
`
`The dissent’s other objection to a remand rests on a
`
`
`belief that the immovable property exception was the
`
`source of “the disagreement that led us to take this case.”
`
`Post, at 1. But this too is mistaken. As we’ve explained,
`
`the courts below and the certiorari-stage briefs before us
`
`said precisely nothing on the subject. Nor do we under-
`stand how the dissent might think otherwise—for its
`
`essential premise is that no disagreement exists, or is even
`possible, about the exception’s scope. The source of confu-
`sion in the lower courts that led to our review was the one
`about Yakima, see supra, at 1, n., and we have dispelled it.
`
`That is work enough for the day. We vacate the judgment
`
`and remand the case for further proceedings not incon-
`sistent with this opinion.
`
`
`
`
`
`

`

`
`
` Cite as: 584 U. S. ____ (2018)
`
` ROBERTS, C. J., concurring
`
`
`
`SUPREME COURT OF THE UNITED STATES
`
`1
`
`
`
`_________________
`
` No. 17–387
`_________________
`UPPER SKAGIT INDIAN TRIBE, PETITIONER v.
`
`
`
`
` SHARLINE LUNDGREN, ET VIR
`
`ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
`
`
`WASHINGTON
`
`[May 21, 2018]
`
`CHIEF JUSTICE ROBERTS, with whom JUSTICE KENNEDY
`
`joins, concurring.
`
`I join the opinion of the Court in full.
`
`But that opinion poses an unanswered question: What
`
`precisely is someone in the Lundgrens’ position supposed
`
`to do? There should be a means of resolving a mundane
`dispute over property ownership, even when one of
`
`the parties to the dispute—involving non-trust, non-
`reservation land—is an Indian tribe. The correct answer
`cannot be that the tribe always wins no matter what;
`
`otherwise a tribe could wield sovereign immunity as a
`
`sword and seize property with impunity, even without a
`colorable claim of right.
`
`The Tribe suggests that the proper mode of redress is for
`
`the Lundgrens—who purchased their property long before
`the Tribe came into the picture—to negotiate with the
`Tribe. Although the parties got off on the wrong foot here,
`the Tribe insists that negotiations would run more
`smoothly if the Lundgrens “understood [its] immunity
`from suit.” Tr. of Oral Arg. 60. In other words, once the
`
`Court makes clear that the Lundgrens ultimately have no
`recourse, the parties can begin working toward a sensible
`settlement. That, in my mind at least, is not a meaningful
`
`remedy.
`
`The Solicitor General proposes a different out-of-court
`
`
`
`
`

`

`2
`
`
`UPPER SKAGIT TRIBE v. LUNDGREN
`
` ROBERTS, C. J., concurring
`
`
`
`solution. Taking up this Court’s passing comment that a
`disappointed litigant may continue to assert his title, see
`Block v. North Dakota ex rel. Board of Univ. and School
`
`Lands, 461 U. S. 273, 291–292 (1983), the Solicitor Gen-
`
`eral more pointedly suggests that the Lundgrens should
`
`steer into the conflict: Go onto the disputed property and
`chop down some trees, build a shed, or otherwise attempt
`to “induce [the Tribe] to file a quiet-title action.” Brief for
`
`United States as Amicus Curiae 23–24. Such brazen
`
`tactics may well have the desired effect of causing the
`
`Tribe to waive its sovereign immunity. But I am skeptical
`that the law requires private individuals—who, again, had
`
`no prior dealings with the Tribe—to pick a fight in order to
`vindicate their interests.
`
`The consequences of the Court’s decision today thus
`seem intolerable, unless there is another means of resolv-
`
`ing property disputes of this sort. Such a possibility was
`discussed in the Solicitor General’s brief, the Lundgrens’
`brief, and the Tribe’s reply brief, and extensively explored
`at oral argument—the exception to sovereign immunity
`for actions to determine rights in immovable property.
`After all, “property ownership is not an inherently sover-
`eign function.” Permanent Mission of India to United
`
`
`Nations v. City of New York, 551 U. S. 193, 199 (2007).
`Since the 18th century, it has been a settled principle of
`international law that a foreign state holding real prop-
`erty outside its territory is treated just like a private indi-
`
`vidual. Schooner Exchange v. McFaddon, 7 Cranch 116,
`145 (1812). The same rule applies as a limitation on the
`sovereign immunity of States claiming an interest in land
`located within other States. See Georgia v. Chattanooga,
`264 U. S. 472, 480–482 (1924). The only question, as the
`Solicitor General concedes, Brief for United States as
`
`Amicus Curiae 25, is whether different principles afford
`Indian tribes a broader immunity from actions involving
`off-reservation land.
`
`
`
`
`
`

`

`3
`
`
`
` Cite as: 584 U. S. ____ (2018)
`
` ROBERTS, C. J., concurring
`
`
`
`I do not object to the Court’s determination to forgo
`
`
`
`consideration of the immovable-property rule at this time.
`
` But if it turns out that the rule does not extend to tribal
`assertions of rights in non-trust, non-reservation property,
`the applicability of sovereign immunity in such circum-
`stances would, in my view, need to be addressed in a
`future case. See Michigan v. Bay Mills Indian Commu-
`
`nity, 572 U. S. ___, ___, n. 8 (2014) (slip op., at 16, n. 8)
`
`(reserving the question whether sovereign immunity
`would apply if a “plaintiff who has not chosen to deal with
`
`a tribe[ ] has no alternative way to obtain relief for off-
`reservation commercial conduct”). At the very least, I
`hope the Lundgrens would carefully examine the full
`
`range of legal options for resolving this title dispute with
`
`their neighbors, before crossing onto the disputed land and
`firing up their chainsaws.
`
`
`
`
`
`
`
`

`

`
`
` Cite as: 584 U. S. ____ (2018)
`
` THOMAS, J., dissenting
`
`
`SUPREME COURT OF THE UNITED STATES
`
`1
`
`
`
`_________________
`
` No. 17–387
`_________________
`UPPER SKAGIT INDIAN TRIBE, PETITIONER v.
`
`
`
`
` SHARLINE LUNDGREN, ET VIR
`
`ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
`
`
`WASHINGTON
`
`[May 21, 2018]
`
`JUSTICE THOMAS, with whom JUSTICE ALITO joins,
`
`
`dissenting.
`We granted certiorari to decide whether “a court’s exer-
`
`cise of in rem jurisdiction overcome[s] the jurisdictional
`bar of tribal sovereign immunity.” Pet. for Cert. i; 583
`U. S. ___ (2017). State and federal courts are divided on
`
`that question, but the Court does not give them an an-
`swer. Instead, it holds only that County of Yakima v.
`Confederated Tribes and Bands of Yakima Nation, 502
`U. S. 251 (1992), “resolved nothing about the law of [tribal]
`
`
`sovereign immunity.” Ante, at 5. Unfortunately, neither
`does the decision today—except to say that courts cannot
`
`
`rely on County of Yakima. As a result, the disagreement
`that led us to take this case will persist.
`The Court easily could have resolved that disagreement
`
`by addressing respondents’ alternative ground for affir-
`mance. Sharline and Ray Lundgren—whose family has
`maintained the land in question for more than 70 years—
`ask us to affirm based on the “immovable property” excep-
`tion to sovereign immunity. That exception is settled,
`longstanding, and obviously applies to tribal immunity—
`as it does to every other type of sovereign immunity that
`
`has ever been recognized. Although the Lundgrens did
`not raise this argument below, we have the discretion to
`reach it. I would have done so. The immovable-property
`
`
`
`

`

`2
`
`
`UPPER SKAGIT TRIBE v. LUNDGREN
`
` THOMAS, J., dissenting
`
`
`exception was extensively briefed and argued, and its
`application here is straightforward. Addressing the excep-
`tion now would have ensured that property owners like
`the Lundgrens can protect their rights and that States like
`
`Washington can protect their sovereignty. Because the
`
`Court unnecessarily chooses to leave them in limbo, I
`
`respectfully dissent.
`
`
`
`
`
`
`
`
`
`I
`As the Court points out, the parties did not raise the
`
`immovable-property exception below or in their certiorari-
`stage briefs. See ante, at 6. But this Court will resolve
`arguments raised for the first time in the merits briefs
`when they are a “‘“predicate to an intelligent resolution”
`of the question presented’” and thus “‘fairly included’
`within the question presented.” Caterpillar Inc. v. Lewis,
`519 U. S. 61, 75, n. 13 (1996) (quoting Ohio v. Robinette,
`519 U. S. 33, 38 (1996); this Court’s Rule 14.1). The Court
`
`agrees that the immovable-property exception is necessary
`to an intelligent resolution of the question presented,
`which is why it remands that issue to the Washington
`
`Supreme Court. See ante, at 6–7. But our normal practice
`is to address the issue ourselves, unless there are “good
`
`reasons to decline to exercise our discretion.” Jones v.
`United States, 527 U. S. 373, 397, n. 12 (1999) (plurality
`
`opinion).
`
`There are no good reasons here. The Court’s only prof-
`fered reason is that the applicability of the immovable-
`property exception is a “grave question” that “will affect
`all tribes, not just the one before us.” Ante, at 6.1 The
`
`
`——————
`1The Court does not question the adequacy of the briefing or identify
`factual questions that need further development. Nor could it. The
`immovable-property exception received extensive attention in the
`
`
`parties’ briefs, see Brief for Respondents 9–26; Reply Brief 13–24, and
`
`
`the Government’s amicus brief, see Brief for United States 25–33. Most
`
`
`
`
`
`
`

`

`
`
`3
`
`
`Cite as: 584 U. S. ____ (2018)
`
` THOMAS, J., dissenting
`
`
`exception’s applicability might be “grave,” but it is also
`
`clear. And most questions decided by this Court will affect
`more than the parties “before us”; that is one of the primary
`reasons why we grant certiorari. See this Court’s Rule
`
`10(c) (explaining that certiorari review is usually reserved
`for cases involving “an important question of federal law”
`that has divided the state or federal courts). Moreover,
`the Court’s decision to forgo answering the question pre-
`sented is no less “grave.” It forces the Lundgrens to
`squander additional years and resources litigating their
`right to litigate. And it casts uncertainty over the sover-
`eign rights of States to maintain jurisdiction over their
`
`respective territories.
`
`
`Contrary to the Court’s suggestion, ante, at 6–7, I have
`
`no doubt that our state-court colleagues will faithfully
`
`interpret and apply the law on remand. But I also have no
`doubt that this Court “ha[s] an ‘obligation . . . to decide the
`
`merits of the question presented’” in the cases that come
`
`before us. Encino Motorcars, LLC v. Navarro, 579 U. S.
`___, ___ (2016) (THOMAS, J., dissenting) (slip op., at 1).
`
`The Court should have discharged that obligation here.
`
`II
`
`I would have resolved this case based on the immovable-
`
`property exception to sovereign immunity. That excep-
`tion is well established. And it plainly extends to tribal
`
`immunity, as it does to every other form of sovereign
`immunity.
`
`
`
`A
`The immovable-property exception has been hornbook
`
`
`
`
`——————
`of the oral argument likewise focused on the immovable-property
`
` exception. See Tr. of Oral Arg. 14–16, 19–29, 34–51, 54–59. And when
`
`asked at oral argument what else it could say about the exception if it
`
` had more time, the Tribe had no response. See id., at 19–21.
`
`
`
`

`

`
`
`
`
`4
`
`
`UPPER SKAGIT TRIBE v. LUNDGREN
`
` THOMAS, J., dissenting
`
`
`law almost as long as there have been hornbooks. For
`
`centuries, there has been “uniform authority in support of
`the view that there is no immunity from jurisdiction with
`respect to actions relating to immovable property.” Lau-
`terpacht, The Problem of Jurisdictional Immunities of
`
`Foreign States, 28 Brit. Y. B. Int’l Law 220, 244 (1951).2
`This immovable-property exception predates both the
`founding and the Tribe’s treaty with the United States.
`Cornelius van Bynkershoek, a renowned 18th-century
`jurist,3 stated that it was “established” that “property
`which a prince has purchased for himself in the dominions
`of another . . . shall be treated just like the property of
`private individuals.” De Foro Legatorum Liber Singularis
`
`22 (G. Laing transl. 2d ed. 1946). His conclusion echoed
`
`
`——————
`2There is some disagreement about the outer bounds of this excep-
`
`
`
` tion—for example, whether it applies to tort claims related to the
` property or to diplomatic embassies. See, e.g., Letter from J. Tate,
`
`Acting Legal Adviser, Dept. of State, to Acting Attorney General P.
`Perlman (May 19, 1952), 26 Dept. of State Bull. 984, 984–985 (Tate
`
`Letter); see also C. Bynkershoek, De Foro Legatorum Liber Singularis
`
`22–23 (G. Laing transl. 2d ed. 1946) (explaining there is “no unanimity”
`
`
` regarding attaching a foreign prince’s debts to immovable property).
`But there is no dispute that it covers suits concerning ownership of a
`
` piece of real property used for nondiplomatic reasons. See Tate Letter
` 984; Brief for United States as Amicus Curiae 27–28. In other words,
`
`there is no dispute that it applies to in rem suits like this one.
` 3Considered “a jurist of great reputation” by Chief Justice Marshall,
`
`
` Schooner Exchange v. McFaddon, 7 Cranch 116, 144 (1812), “Bynker-
`shoek’s influence in the eighteenth century [w]as enormous,” Adler, The
`
`President’s Recognition Power, in The Constitution and the Conduct of
` American Foreign Policy 133, 153, n. 19 (G. Adler & L. George eds.
`
`
` 1996) (internal quotation marks omitted). Madison, for example,
`consulted Bynkershoek’s works (on the recommendation of Jefferson)
`
`while preparing to draft the Constitution. See Letter from Thomas
`
`Jefferson to James Madison (Feb. 20, 1784), in 4 The Works of Thomas
`
`Jefferson 239, 248 (P. Ford ed. 1904); Letter from James Madison to
`
`Thomas Jefferson (Mar. 16, 1784), in 2 The Writings of James Madison
`
` 34, 43 (G. Hunt ed. 1901).
`
`
`
`
`
`
`
`

`

`5
`
`
`Cite as: 584 U. S. ____ (2018)
`
` THOMAS, J., dissenting
`
`
`the 16th-century legal scholar Oswald Hilliger. See ibid.
`About a decade after Bynkershoek, Emer de Vattel ex-
`plained that, when “sovereigns have fiefs and other pos-
`sessions in the territory of another prince; in such cases
`
`they hold them after the manner of private individuals.” 3
`
`The Law of Nations §83, p. 139 (C. Fenwick transl. 1916);
`
`see also E. de Vattel, The Law of Nations §115, p. 493 (J.
`
`Chitty ed. 1872) (“All landed estates, all immovable prop-
`erty, by whomsoever possessed, are subject to the jurisdic-
`tion of the country”).4
`
`The immovable-property exception is a corollary of the
`
`
`ancient principle of lex rei sitae. Sometimes called lex
`
`situs or lex loci rei sitae, the principle provides that “land
`
`is governed by the law of the place where it is situated.”
`F. Wharton, Conflict of Laws §273, p. 607 (G. Parmele ed.,
`
`3d ed. 1905). It reflects the fact that a sovereign “cannot
`suffer its own laws . . . to be changed” by another sover-
`eign. H. Wheaton, Elements of International Law §81,
`p. 114 (1866). As then-Judge Scalia explained, it is “self-
`evident” that “[a] territorial sovereign has a primeval
`
`interest in resolving all disputes over use or right to use of
`real property within its own domain.” Asociacion de
`
`Reclamantes v. United Mexican States, 735 F. 2d 1517,
`
`
`1521 (CADC 1984). And because “land is so indissolubly
`connected with the territory of a State,” a State “cannot
`
`permit” a foreign sovereign to displace its jurisdiction by
`
`purchasing land and then claiming “immunity.” Compe-
`tence of Courts in Regard to Foreign States, 26 Am. J. Int’l
`
`L. Supp. 451, 578 (1932) (Competence of Courts). An
`
`assertion of immunity by a foreign sovereign over real
`property is an attack on the sovereignty of “the State of
`
`
`
`——————
` 4De Vattel’s work was “a leading treatise” of its era. Jesner v. Arab
`
`
` Bank, PLC, ante, at 9, n. 3 (GORSUCH, J., concurring in part

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