Flying T Ranch, Inc. v. Stillaguamish Tribe of Indians

549 P.3d 727

FLYING T RANCH, INC, a Washington corporation, Appellant,

v.STILLAGUAMISH TRIBE OF INDIANS, a federally recognized Indian Tribe, Respondent,Snohomish County, a Washington state municipal corporation, Defendant.

No. 85739-8-I

Court of Appeals of Washington, Division 1.

Filed June 4, 2024

Appeal from Snohomish Superior Court, Docket No: 22-2-07015-1, Honorable Mary-beth Dingledy, Judge.

Kevin. Hochhalter, Olympic Appeals PLLC, 4570 Avery Ln. Se. #c-217, Lacey, WA, 98503, for Appellant.

Raven Tichi8ak8i Arroway-Healing, Stillaguamish Tribe of Indians, 3322 236th Street Ne., Arlington, WA, 98223-7233, George Bradley Marsh, Civil Div. Snohomish County Prosecutor’s, 3000 Rockefeller Ave., Everett, WA, 98201-4046, for Respondent.

Dillon Louis Spiess, Attorney at Law, 6830 176th St. Sw., Edmonds, WA, 98026-5614, Jack Warren Fiander, Towtnuk Law Offices, 5808-a Summitview Ave. #93, Yakima, WA, 98908-3095, for Amicus Curiae on behalf of Sauk-Suiattle Indian Tribe.

Lauren Patricia Rasmussen, Law Offices of Lauren P. Rasmussen PLLC, 1215 4th Ave. Ste. 1350, Seattle, WA, 98161-1012, for Amici Curiae on behalf of Jamestown S’Klallam, Port Gamble S’Klallam Tribe.

Lorraine Anne Parlange, Kalispel Tribe of Indians, 934 S Garfield Rd., Airway Heights, WA, 99001-9030, for Amicus Curiae on behalf of Kalispel Tribe of Indians.

Brian Cammiade Gruber, Ziontz Chestnut, 2101 4th Ave. Ste. 1230, Seattle, WA, 98121-2331, for Amicus Curiae on behalf of Makah Tribe.

Charles Jd Hurt, Attorney at Law, 2137 Walnut St., Bellingham, WA, 98225-2836, for Amicus Curiae on behalf of Nooksack Indian Tribe.

Lori Bruner, Karen Allston, Quinault Indian Nation, P.O. Box 613, Taholah, WA, 98587-0613, for Amicus Curiae on behalf of Quinault Indian Nation.

Corin La Pointe-Aitchison, Attorney at Law, 1737 Ne. Alberta St. Ste. 208, Portland, OR, 97211-5890, for Amicus Curiae on behalf of Samish Indian Nation.

David W. Babcock, Squaxin Island Legal Department, 3711 Se. Old Olympic Hwy., Shelton, WA, 98584-7734, for Amicus Curiae on behalf of Squaxin Island Tribe.

Maryanne Elizabeth Mohan, Suquamish Indian Tribe, 18490 Suquamish Way Ne., Suquamish, WA, 98392, for Amicus Curiae on behalf of Suquamish Indian Tribe.

Rob Roy Smith, Kilpatrick Townsend & Stockton, LLP, 1420 5th Ave. Ste. 3700, Seattle, WA, 98101-4089, for Amicus Curiae on behalf of Snoqualmie Indiantribe.

PUBLISHED OPINION

Birk, J.

¶1 Flying T Ranch Inc. appeals the dismissal of its lawsuit to quiet title to certain land against the Stillaguamish Tribe of Indians (Tribe) based on tribal sovereign immunity. Flying T agrees the Tribe enjoys the immunity traditionally enjoyed by sovereign powers, but the parties dispute the scope of that immunity. The land is not tribal land, so Flying T argues the Tribe’s immunity is equal only to the immunity a foreign sovereign would have, and that immunity, Flying T argues, does not bar its quiet title claim under the "immovable property" exception. We conclude a foreign sovereign enjoys immunit as directed by the political branches of government and would not face process directed by the judiciary alone. When the Tribe is afforded immunity equal to a foreign sovereign, it may be sued over its objection only when allowed by Congress, and to hold otherwise would unfaithfully lessen its immunity in comparison to that traditionally enjoyed by sovereign powers. We therefore affirm.

I

¶2 Flying T filed a complaint in Snohomish County Superior Court pleading it is a Washington corporation domiciled in Snohomish county, with its principal place of business at 18808 State Route 530 Northeast, Arlington, Washington. Flying T’s complaint sought to quiet title to certain land against the Tribe, acknowledged in the complaint to be a tribal government.

¶3 According to its allegations, Flying T owns a parcel of land lying along the North Fork of the Stillaguamish River. Opposite the river, the parcel is bounded on the north by a former railroad right-of-way, now the White Horse Trail. To the west of Flying T’s parcel, the river and the railroad right-of-way converge, making a triangular piece of land bounded on its three sides by Flying T’s parcel, the river, and the railroad right-of-way. The triangular piece of land is composed of parts of two parcels west of Flying T’s. It is accessible from Flying T’s neighboring parcel, but cut off by the railroad right-of-way from the rest of the two westerly parcels of which it is part. Flying T asserts title to this piece of land by adverse possession.

¶4 To support its claim of adverse possession, Flying T alleges a former owner of its parcel, Robert Olsen, repaired and maintained a fence enclosing the disputed triangular piece of land together with Flying T’s parcel starting in at least 1961. Flying T alleges that since at least 1962, this barbed wire fence has run in a straight continuous line along the railroad right-of-way. It alleges that without permission of the true owners, the fence marked the boundary line separating the area from the railroad right-of-way and from the portions of the westerly parcels lying north of the fence. Olsen used the land to keep and graze livestock. In 1974, Olsen conveyed the Flying T parcel to Edwin and Antoinette Tanis. Edwin Tanis continued Olsen’s practice of repairing and maintaining the fence. In 1990, a court entered judgment against the Tanises and the sheriff sold the parcel to Bruce and Tammy Blakey. The Blakeys continued the practice of repairing and maintaining the fence, excluding others from the enclosed area, and using the land to keep and graze livestock. In 1991, the Blakeys conveyed their parcel to Flying T, and since then it has continuously repaired and maintained the fence, excluding all others from the enclosed area without the permission of the title owners and using the enclosed land to keep and graze livestock.

¶5 Flying T alleges that Snohomish County obtained title to one of the westerly parcels in 1995. After Flying T commenced this action and a week before the superior court heard the Tribe’s motion to dismiss based on tribal sovereign immunity, Snohomish County conveyed its parcel to the Tribe. Flying T alleges that the Tribe obtained title to the other westerly parcel in 2021. Flying T alleges—and the Tribe has not controverted—that before Snohomish County and the Tribe came into title of these parcels, they were privately held and not part of any tribal land or reservation.

[1–9] ¶6 Flying T commenced this action to quiet title in November 2022. The Tribe moved to dismiss under CR 12(b)(1), CR 12(b)(2), CR 12(b)(3), CR 12(b)(6), and CR 12(b)(7), all based on its having tribal sovereign immunity from Flying T’s claims.¹ In support of its motion, the Tribe attached three documents, including a declaration by Sara Thitipraserth, director of the Tribe’s Natural Resources Department. Thitipraserth stated the Tribe purchased its parcel along with seven other parcels, totaling about 143.4 acres along 1.2 miles of the North Fork of Stillaguamish River. The Tribe acquired these lands for habitat restoration actions aimed to increase the productivity and abundance of Puget Sound Chinook salmon. The parcels were acquired using funds from a conservation grant from the National Oceanic and Atmospheric Administration, through the Washington State Recreation and Conservation Office, that required the Tribe to protect those lands in perpetuity with a deed of right for salmon recovery. Stillaguamish River salmon are a cultural keystone species that support activities essential for the continuation of the Tribe’s living culture. As the Stillaguamish River salmon runs face extinction, so do many aspects of the Tribe’s culture, community, and treaty reserved rights. The Tribe preserves its way of life through the use of these parcels as conservation land to protect and restore salmon in the Stillaguamish River.²

¶7 The superior court granted the Tribe’s motion to dismiss pursuant to CR 12(b)(1)-(3) and CR 12(b)(6) and dismissed the action with prejudice. The court denied Flying T’s motion for reconsideration. Flying T, filed a notice of appeal or discretionary review directed to the Washington Supreme Court. The Washington Supreme Court transferred the appeal to this court. After Flying T filed its initial notice of appeal, it sought clarification in the superior court based on Snohomish County’s conveyance of its parcel to the Tribe. The superior court entered a further order dismissing Snohomish County from the case and dismissing all claims against the Tribe based on tribal sovereign immunity. A commissioner of this court accepted Flying T’s amended notice of appeal and denied the Tribe’s motion to dismiss the appeal on timeliness grounds.

II

[10] ¶8 On appeal, Flying T contends the Tribe’s sovereign immunity does not extend to Flying T’s claims, arguing they fall within a traditional exception to the doctrine of sovereign immunity for " ‘immovable property.’ " The Tribe disputes that an immovable property exception was ever "universally applied" to assertions of sovereign immunity and further argues the justifications for such a rule do not apply in the case of a domestic tribe. The Tribe asserts that, in the absence of its consent to suit, only Congress can abrogate its immunity.³ Whether tribal sovereign immunity applies is a question of federal law this court reviews de novo. Auto. United Trades Org. v. State, 175 Wash.2d 214, 222, 226, 285 P.3d 52 (2012).

[11] ¶9 Past Washington authority permitted quiet title claims like Flying T’s against tribes, recognizing an "in rem" exception to tribal sovereign immunity. Anderson & Middleton Lumber Co. v. Quinault Indian Nation, 130 Wash.2d 862, 869, 929 P.2d 379 (1996) held the superior court had in rem jurisdiction over the plaintiff’s lawsuit based on the language of the Indian General Allotment Act of 1887, 25 U.S.C. §§ 331-358, repealed in part by Pub. L. 106-462, and County of Yakima v. Confederated Tribes & Bands of...