The U.S. Supreme Court is reviewing three cases that Indian Country considers vital to tribal sovereignty. The cases: Upper Skagit Indian Tribe v. Lundgren, and Washington v. United States.
Last fall tribes were optimistic the cases would go their way, especially when newly minted Justice Neil Gorsuch asked, “Where’s the real beef here?” But no one ever knows for sure how the Supremes will rule.
The case of Upper Skagit Indian Tribe v. Lundgren would resolve some disagreements between various state courts on the issue of sovereign immunity. The Skagit tribe of Washington acquired some land in 2013 and submitted an application to put it into trust. However, the land included fenced land that adjacent landowners—the Lundgrens— believed they had acquired through adverse condemnation because the fence has been there for more than 70 years.
For its part, the tribe claims it cannot be sued without its consent, no matter what the legal principle in question. Washington state’s highest court has ruled against the tribe. Its Chief Justice wrote: “The tribe has wielded sovereign immunity as a sword in disguise. While we do not minimize the importance of tribal sovereign immunity, allowing the tribe to employ sovereign immunity in this way runs counter to the equitable purposes underlying compulsory joinder.”
Arguments in this case will take place on March 21.
The case of Washington v. United States, again involves the state of Washington in which the 9th Circuit Court of Appeals ruled that the state violated treaties from the 19th century when it failed to maintain culverts clear of debris. The poorly maintained culverts have wreaked havoc on Indian salmon fishing.
Tribes are not optimistic about this case because they feel that the High Court has consistently ruled against sovereignty rights in the last 12 years.
