mr chief justice in may please the court the respondent sued the tribe to challenge the tribes title of record to the property decision this court has consistently held that sovereign immunity bar suits against tribal governments be subject to a claim along the same factual lines is this quite title actually this is the address is that correct what what are the london supposed to do in this situation they can't bring legal action affecting the tribe your honor the longer ones are in a situation where similar to other states that have been confronted with sovereign immunity for example in the pottawattamie case where they were unable to enforce or taxing authority and try to court recognized that sometimes sovereign immunity will lead to results that preclude individuals from being able to sue for relief that being said in this instance it would be helpful for all of the parties to understand their legal standings before they gauge in the goshi ations its  a patient that once this case is removed or resolved they can pardon that we would hopefully be able to engage in a negotiation with you where you would be in a better position when that negotiation started wouldn't you if we have a ruling saying that you can't be sued either way both parties would be more informed as to what their legal positions wore during the negotiations what happens generally if a drop is land or thinks it owns land in downtown tulsa or new york city or any other place off the reservation and they they send members of the tribe there and somehow they are and these guys you know lease part of it how is that dispute resolved i  don't understand what worries me is if there is sovereign immunity and if members of the tribe acting for the tribe obtain property they they have a building or an empty lot or somewhere in there they are and there is another person who believes he owns the property or the law the building and so there are two different people the tribe and another group both of which thinks they own a lot in really york city or tulsa how is that dispute resolved normally we resolve it in a court but how in your opinion will the dispute how has it been resolved what i'm thinking of is i joined a case saying there was broad sovereign immunity ye i thought congress would have act but it hasn't and tribes have business interests all over the country all over the place and how are they resolved so i understand  your honor and obviously that congress to do not act f it is no so that's why i asked my question property disputes are fairly common and you could get into some really and bad situations where the only resolution is force that's why we have courts and i want to know how are they resolved how should they be resolved if you can't sue the trot so the precedent that this court has recognized in both the us for alabama and the minnesota case is that sometimes that will be the reality of sovereign immunity that being said by way of example the fact that states can enforce taxes against tribes of not preclude i'm not talking about were justice briar's but suppose the tribe owns property outside the reservation in tosa or new york the state wants to condemn the land is their sovereign immunity or not sovereign immunity applies in that situation because the lot next door to his house one morning because of some tribal legacy or something he wakes up and finds members of the tribe they are next to him on the lot he says i own the lot next to my house i have my swimming pool there he's quite wealthy the tribe members say no this is ours now how is that dispute since that decision that i joined how is that dispute kind of dispute which could arise all over the place how has it been resolved i can't believe there is no such thing but some form so again that is a dispute that would be resolved out of the judicial process your case in the philippines case establishe that if there is a dispute the court simply looks to the merits of the claim as it pertains to the interests of the private tripe if the action is against the tried to interest and it is in this instance it's registers titled here you're not confronted with a non frivolous claim on the part of the tribe in the instances that you're describing it sounds as though the tribes claims probably are going to be somewhat frivolous past to establish a prime aphasia basis that it has an interest once that interest is established as in this instance where we have registered title that the court therefore would immediately lose its jurisdiction the case should be  what would happen in this situation let's say a state of the federal government wants to construct a highway or maybe it's a pipeline and there's opposition to this project so the people who are opposed to the project and list an indian tribe to buy a little parcel of land along the route of this highway or this pipeline that would be the end of the project would it not that potentially would be the end of the project yes however there would be remedies available that the u s government could invoke and it's important to keep in mind that what baby mills stands for the problem specifically affords congress the ability to step in and act in this situation  mills a couple of times but about footnote eight in b mills there it says we have never specifically addressed whether immunity should apply in the ordinary way if it toward victim or other plaintiff was not chosen in individual action i remember that from lewis and clark but how does that work here are the lundgren supposed to sue anybody from the tribe who goes on to the area that they claim to have adverse possession if they were able to  properly lewis we clark may provide them relief in that instance yeah so every time somebody from the tribe goes over the barbed wire fence that they say for since time immemorial has to find their property they should sue them just have a lawyer there walking down along the line every time somebody goes serve him with process and is that a valid viable alternative remedy to a quiet title action it is not but again i get back to the point that this court has continually affirmed as relates to the significance of sovereign immunity shouldn't the tribe when it's taken from someone who doesn't have a immediately step into the shoes of that person and sovereign immunity against someone who had no reason to believe that he was in the tribe in the picture in the instance were a case that already been started the tribe would step into litigation and it's immunity would not apply because the jurisdiction of the court would have already been asserted over the perceived i see and  this property for over forty years never paying property taxes on it never taking any action for that period of time to legally establish their claims and now all of a sudden when the tribe comes into title they assert that they have a right we'll tell the just the trial judge in the states that he had never seen a case of adverse possession clearer than this one seems to me you're arguing the merits of their adverse possession claim and they would love to have you do that in court i don't mean to get into the merits of the state case you are this is sovereign immunity is a federal issue that preempts the state law and the merits of the underlying decision as it pertains to mr hawkins i mean i guess the question is what is sovereign immunity and what is it entailed even beyond the footnote in bay mills that the chief justice referenced i think when you look at language of the kind that appears in bay mails and in other cases what which says that you know if congress wants to change it it's up to congress to change it but the lesson is what is the it in other words what's up to congress to change is deviations from the general law sovereign immunity and i think what the lundgren's are saying here is that this is not part of the general law of sovereign immunity and this goes back to justice ginsburg's question that sovereign immunity to typically by common law and historically includes this exception for immovable property and so that's the baseline it's wells sovereign immunity as a test or a cli exists except as it historically exists it just didn't include immunity from suits that related to him movable property so if you look at the judicial history of the a movable property issue  and in particular as it pertains to the cases involving foreign nations the court took action at the guidance of the state department and the court has consistently deferred to the state department the political branches as to whether or not it will exercise jurisdiction or it's prudent to exercise jurisdiction over those foreign sovereigns so that the court has consistently recognized that immunity is in the hands of the political branches now you ask how does this relate to indian tribes and the significance and what is it for land this tribe like the upper skagit sovereign immunity has enabled it to purchase lands take them into trusts and establish a reservation providing services for their members without being subject to third party claims that's essential where we are because if you allow third parties to bring frivolous or meritorious claims against the tribe the purse of the tribe is going to be spent to come along those lines do you think you'd have a stronger case if the land had been taken into trust and the land is purchases underst thousand and thirteen and i'm curious why it hasn't been taken to trust we were in the process of getting everything ready for taking it into trust but first i'm sorry to answer your question no we don't think that it would that's not a  and and commercial contacts cairo where you have a case where you have a note that the tribe determines that they're not going to comply with all the terms of commercial transaction you say off an answer my question is what why should it make a difference whether it's in trust or not it does not make a difference as to whether it's interests or not to try is a party that the action is being brought against immunity therefore is appropriate and should be applied but if you were in trust then we would treat it as the land of the separate sovereign right it would be the tribes the land just might be france now it's it's it's it's titled under the state's laws and it is still part of the state that does not resonate with you at all and if that doesn't make sense tell me why no i i think i understand the question your hon minnesota case is a situation where you have the land taken into trusts and minnesota then sues us and the court finds that it's barred by sovereign immunity because the land is held in trust on them for the benefit of the tribe but the reality is that the immunity isn't subject to what the particular transaction is your case law has been clear that immunity applies regardless of what the action is it applies if the relief is being s against the tribe because of the significance of it were the tribe not able to preclude suits from it it could be subject to countless claims taking away the ability to provide for its members just ask a question about a movable property argument which was just raised in the merits brief here if you had more time where would you argue to us what more could you show us to prove that you were right that this is not a part of the car that was your suv you made an argument and say it's a matter of practice not common law but what else could  show us if we gave you more time that is difficult to answer not being not having had the time to go back and look at what the law provides and all of the cases that would be applied couple here but what i would  is that when you delve into the application of that proposed exception here it is inherently in conflict with the underlying request that they have made and their original complaint and they're going to counsel i  fully accept that they only raise this in their merits but i'm asking you a very direct question what other research would you do that could help you prove your argument we would like we would take the time to look at the application as a relates to other tribes specifically but also how the state has the political branches have been involved in that process and how the u s has addressed it and the  reality is that giving context to an exception to sovereign immunity is a very complex matter and how that applies to tribes is a very complex matter and it's not something that we in a very short period time are fully able to respond to you have you had a month since they filed their belief that is correct your honor as you just said well the being of the dignity of a software has the same kind of immunity as a sovereign nation would have that is that is our position well i don't know a sovereign nation i think since about seven hundred fifty there's been an exception for a sovereign nation for him move a bill property and therefore if the nation of canada comes in and has a piece of land in north dakota and the person who lives there says i'm sorry this belongs to me not to canada and canada says no my understanding was there has been a longstanding exception to sovereign immunity but that exception has been at the direction of the political branches and that is exactly what we are certain should occur here should an exception be considered by this court if there are no further questions i'd like to reserve time for rebuttal thank you counsel connell mr chief justice and may it please the court i'd like to start with justice kagan's question about what is the baseline here about what sovereign immunity entails the baseline is sovereign immunity from suit this is the alexander hamilton quote from the federalist papers it is inherent in the nature of sovereignty not to be amenable to suit without consent the a movable property exception is an exception that applies to other sovereigns but that's because an exception to that general rule has been made in the united states the political branches control whether there are exceptions to that general rule of sovereign immunity from suit for the united states for foreign states and for  the preexisting real property exception the sovereign immunity recognized by international practice correct it was recognized by international practice as a matter of what the executive branch recognized when it was asserting and you know why doesn't that same principle allow the court to recognize that there's limits to the sovereign immunity under the very same principle well i think that's because it is it is up to congress this court has consistently said it's up to congress to control and make exceptions to the immunity from suit in we explained what the foreign sovereign immunity actually started as a traditional document was only later that it was taken over by the political branches i think what the court said there and i think that that quote was and well i can't remember if it's initially in for but that the the initial judicial doctrine was from the schooner exchange versus mcfadden was that it's general immunity from suit that's the general rule that it doesn't say in the in the i mean my law clerk has yards i guess he got out and then we have that tell and all these others and they say the same thing really talk about exceptions are not exceptions so you were to have a quiz what was the law of sovereign immunity seven hundred sixty you know i guess you'd have to say the law is that the print baes a department store in iowa i'm sorry is just like a whole other iowa i'm not i'm not sure that any of those sources are talking about sovereign immunity from suit i mean those quotes could equally applied to whether the prince has to is subject to the regulatory jurisdiction of the state as opposed to you could sue the foreign nation if you look at more two cases means o'connell one is schooner exchange which talks about foreign states and then the other is this georgia v chattanooga which is individual states in another state's jurisdiction i mean both of those seem to be indicating that there is this longstanding rule that when the prince goes someplace else and buys land there  he's just going to be treated like anybody else and it doesn't have much to do with any kind of executive action and doesn't have much to do with the states all agreeing about something that the constitutional convention it's just a sort of rule that when the prince pops up in some other jurisdiction and buys a piece of land he's no longer the prince that justice kagan i think is an exception to the general rule of immunity from suit this court called it an exception and permanent mission of india congress certainly called an exception in the foreign sovereign immunity is that where it leaves out that the baseline rule is that sovereigns are completely immune from suit unless and i guess that was my point is is is is not whether it should be denominated an exception or not an exception but whether this is the kind of historic traditional longstanding rule that we should we shouldn't expect congress to have to put in that it just sort of goes into the doctrine because that is part of the doctrine from long long ago which is a very different thing from saying look it's up to congress to really to to treat you know to start modifying terms of the doctrine that have existed for a long time to the contrary i think that congress's ability to create a comprehensive exception or solution here and weigh the policy interests on both sides is what should counsel this court not to begin recognizing judicial exceptions to sovereign immunity from well a cour exception from immunity from suit for suits against the united states it made various policy judgments the suits could only be brought in federal court impose a statute of limitations it made exceptions for adverse possession claims for water rights under your view they can develop anywhere without reference to the only law they're not exempt from the regulatory jurisdiction of the state if it's just feel land but the immunity from suit would still attach some kind of why i've been hoping to hear from you about what the baseline rule was versus the exceptions still hopeful we might get an answer to that question why do you and what's your best authority for the proposition that the baseline rule of common law was total immunity including in ram actions i think it's the federalist papers the hamilton quote from the federal federalist papers also skinner exchange versus mcfadden lays that out as a general rule for foreign states at least but again i think one important point that i want to get out here is that if congress were to look at this and decide whether to create a judicial statutory exception for tribal sovereign immunity it may very well make decisions like it made with respect to the united states about a statute of limitations or exceptions for adverse possession claims or things that congress is in a position to weigh and create a comprehensive solution i think there would be ms o'connor one there was one sentence in your brief that really leapt off the page for me anyway because the one between pages twenty three and twenty four or to file suit is that really what you want them to do there's a dispute about this piece of property and you say we'll go pick a fight go cut down some trees i think that's a surprising position for a for the government that that alternative way of resolving the dispute is laid out in this court's decision and block versus north dakota in that case the court said even though the states claim against the united states to quiet title to land was barred by the statute of limitations that didn't mean the title  cutting down trees and when the tribe comes up with them they're supposed to say oh mr o'connell said i should do this the but of all they probably shouldn't say that the point that we're trying to make here is that when a suit is dismissed because the sovereign has immunity when a quiet title suit is dismissed in those circumstances it doesn't mean that the tribe now owns the land it means title is still not settled and so the lundgren's could continue to assert their or their ownership of the property and force the tribe to quite a title and i think one other thing i'd like to point out there is that the land into trust process is another way that this dispute could still be resolved in this particular case the tribe bought this land with the intention of asking the united states to take the land into trust for the indian tribe in that process the tribe has to present the secretary of the interior with its deed and with title insurance and then the secretary conducts an investigation to see if there are any infirmities to the title and so in this case obviously there is another claim to the land and the secretary would require the tribe to get that settled either through negotiation or through its own quiet title action before that what just what difference would that make let's say the land were in title how should that affect our analysis of it all if united states there would be an adverse possession exception in those circumstances so what what i mean it was twenty years ago and i did really think congress would do something you stand nothing right so in the meantime it's not necessarily this one but many tribes have business interests all over the country and so how how do these in practice how are they getting resolved if there is solve or an immunity all over the place what happens congress does step in from time to time so there are certain statutes where congress has abrogated tribal sovereign immunity with respect to specific water settlement when agreements are required the tribe to waive its immunity in order to exercise statutory jurisdiction under various statutes but you know the i think the foot the foot no problem and b mills doesn't come up here because unlike a tort plaintiff that's just out of luck if it can't sue the tribe because of immunity the title is not settled here there are other options for resolving who owns the property than suing the tribe thank thank you coun heading in realm jurisdiction and what the court below say is that the courts of washington have interim jurisdiction to resolve disputes over real property within the state of washington and i think to understand what that means you have to look authority councillor justice ginsburg question i really would prefer an answer that because troubles me to the state of washington relied on this court's decision and yakima and said that there was no impediment to suit but yeah come of course was just an interpretation of the general weightman act and had nothing to do with in ram authority written large and i didn't see anything in your brief defending the reasoning of the washington supreme court and it's   i i would say however that yeah reflects an undersea standing there is a difference between control over property and find that you agree that yakima doesn't control yes ok all right in that case why isn't it enough for the day for this court to resolve this dispute of authority over the yakima controls in cases like this and return it to the washington supreme court where you can present all these wonderful arguments you've raised here for the first time well a couple reasons your honor first of all you know the  argument that we are presenting is a response to the argument that petitioner has presented so petitioners argument in their opening brief it's very clear and straightforward and has two parts no i understand that special of that my question though remains you've raised a new ground for defending the result below and abandon the ground that was actually asserted this court doesn't normally resolve questions like that in the first instance normally is a question of review not first few why shouldn't we exercise discretion here its emphasis on its authority over land within the state of washington necessarily encompasses the same thing but that's quite true mr miller on this i mean tell me if i'm wrong but i made a little venn diagram for myself and it turns out that immovable property and in rem jurisdiction there is lord sphere of overlap but there are definitely places where the two do not overlap so you know you have here in ram about land that's this fear of overlap but you can have him movable property that the action is about land and have and in persona suit that would be a typical trespass something like that then the other side you could have been in ram suit so i think that there are real differences in the scope of the immovable property exception on the one hand and in ram exception on the other hand and and clearly the washington court talked about the option now you're coming in and you have an extremely strong argument about this immovable property rule but it's not the same argument that the court in washington made it's not the same theory as just discourse such pointed out property you know the admiralty in bankruptcy and so forth but if you read the decision below there are thirty four references to land there is nothing about boats the first sentence of the substantive part of the analysis begins with the statement that the superior court has jurisdiction and actions in rome jurisdiction in actions involving real property so the fairest reading of the decision below is even if it's ok and there's still the question of where is the land is the land on the reservation or is the land outside the reservation if the land is on the reservation i took you to agree with the point that that's the prince's land and so the prince would be immune from suit two points on your honor first in the brief in opposition in our formulation of the question presented we emphasize that the case involved offered their version land so we raised that clarification at that stage on reservation land the analysis of a different question a more complicated question if you ask about a broad in ram exception or you know in some ways the interim exception is broader in some ways it's narrow where it just becomes a different question if you ask about in ram exception one which does take you into this question of what happens if the land is on the reservation then if you say look under the a movable property rule if one sovereign owns land in another  that's not that's not a general in rem question it's a question about the immovable property rule but but you know given you're going back to what i said earlier about you know under shafer what what to make it clear that the notion that they have any right is fanciful anything claim involving a person is people have rights  the court addressed you obviously that case was about the qualifying run jurisdiction or you're just using the property as a hook to regulate some other activity of the defendant but the court had an extended discussion of th pretty much automatically going to be qualified because of be satisfied because of the state strong interest in assuring the marketability of property within its borders and in providing a procedure for peaceful resolution of disputes about the possession of that i thought that the justice ginsburg's question which started off this line of questioning was essentially this suppose there were no such thing as the a movable property exception just doesn't exist or doesn't apply in this situation would the decision of the washington supreme court be correct based on the  if there were i mean no it would not as i've been explaining the the interim theory you know ultimately refers to the same underlying concepts about the forms power and then when we made this point of this really this is the way i sort of see what's happened in this case and again you can tell me if i'm wrong that you took over this case and you read this opinion and you said this is not a very good theory there is a really good theory here and i'm going to make that and that's a good later still i'm not at all criticizing you it's just it's a new theory and a new it's not just even a new argument it's just a new it's a completely new way to win this case we took over the case and read the other side's brief and petitioners briefs as tribes should be treated just like other sovereigns and other sovereigns would be immune in this kind of case and we're saying no they wouldn't that's not quite right though because we know the united states would be immune from this suit right no your honor or adverse possession i think everyone acknowledges that the united states would not be subject to a suit like that maybe you can tell me why that's wrong in response to justice from this kind of suit right if the let there philandering trust of the governor of the united states would bar the suit but the reason i say the united states would not be immune from this kind of suit is this is a suit challenging title to property owned by think it is we could write a decided or we could say review not first you are right so one of the things in ways in my mind is this that reading the words immunity from suit broadly extending we're not even candidate would dare to go all right there's a lot of language in cases that does say that so i'm pretty curious whether anyone else is but i'm pretty curious for the last twenty years how things gone i mean congress has acted tribes are in business across the country there must have been controversies what actually happened then and one argument for leaving things alone is that we've all survived an argument the other ways it's very anomalous could give the tribes more immunity than foreign countries would have all right so why shouldn't we send it back and get all this out on the table and you know we  have abuse of other courts and we also have a more extensive set of arguments because what what what has happened is that there is a conflict in the lower courts and these issues have been fully ventilat d in the lower court so that you know the other state high court decision on the same side as washington i'm sorry i'm actually quite interested in that because i want to look there is a split i've got coming and what you ask a means or doesn't mean but i don't know that the courts below have been looking at this property theory with the the other state high court decision on the same side as washington is the north dakota decision in cass county drink water resources district  and that has a several paragraph discussion of georgia against china so you know those the concept is there in the decisions below on the other side of the split the leading cases the second circuit going to you might or might not have a split that would require us to take the case again this theory but it still doesn't explain why we should follow our normal practice just say relying on your thumb is wrong and there might be something else but you know you take care i mean because or since it's you because you already i mean you already have a split in which these issues have been ventilated in the lower courts you have an issue here that that the lower court's decision wasn't just county of yakima it was also about the state's authority over land within the state and we made that point in the brief in opposition at page six we said that  sovereigns primeval interest in controlling real property with it in its domain what would be what's your objection to the tribe who suggested that you wait into the trust proceedings at which time you'll have an opportunity to object title would should preclude taking the land into trust but if we if we succeed we convince the secretary not to take the land in the trust that doesn't actually get us anything we still have the tribe asserting an interest in land of the under state law belongs to us and that is a that's a cloud on the title of it makes the title on marketable and that is a real immediate and concrete injury for which washington law like a lot of pretty  you know every government and really every organized society has an interest in having some mechanism for determining who owns what pieces of land and the tribes position would create situations like like this one  were that's impossible the tribes position would also undermine the ability of the state to acquire land that's needed for public use and just as a leader you asked a hypothetical about blocking condemnation that's that's not hypothetical at all the north dakota case i mentioned earlier it was a case where they were going to build a dam and they had plotted out the area that was going to be flooded by the dam and the tribe purchased one and a half acres in the middle of that area and then the attempted to they said it's what this court has said is justice kagan you mentioned earlier that you know under being males and under cynically republic what tribal sovereign immunity is is the common law munity from suit traditionally enjoyed by which is you know you know if we really looked harder maybe there would be something else that would cut against this theory a little bit worried that there aren't a miki who knew about this theory the only one who did is really the solicitor general because the solicitor general generally talks to parties as the litigation goes forward and i think it would be have to say just a bad way of dealing on our part if we allowed parties to come in even with the best of faith and said i have a new theory for you that that that really the only people who got a chance to reply are the petitioners in a twenty page yellow brief i  by petitioners in the madison county case when when this court from the second circuit when this court granted cert seven years ago so if anybody was looking at the legal landscape of you know what the circuit conflict was would have been aware of these issues anybody who sovereign domain would have been aware of the issue than anyone who read this court's decision in city of cheryl which doesn't address this precise question presented but goes a long way towards saying that you know when you have a land that's within a state the fact that the tribe has come along and purchased it on the open market does not divest the state of sovereignty it still subject to state sovereignty not tribal sovereignty you know all of those things that were out there of american indians and so forth they all have an interest in this and they'd have to say squarely why should tribes have more immunity than canada mexico whatever and  did address that question and so the tribes would have the same immunity as other sovereigns so you know they they have addressed not so in your saw but do you think are there also people in there so i well know i'm i'm referring to the people on and it would be too early in the section of our brief we just a bill or i you argue forcefully and you argue intelligently but i don't know why if it was still obvious to not explicit but it is another way of getting out that concept  it is fundamentally congress's jobs not ours to determine whether or how to limit tribal sovereign immunity that comes from bay mills twenty thirty seven just as for us how things gone over twenty years and how are these issues addressed these issues are addressed every day in contracts and land transactions by the tribe either agreeing to weigh voluntarily or negotiating how disputes will be resolved so there is a mechanism and that's between the parties who understand their place even in this situation had the long greens offered an opportunity to negotiate in recognition of the tribes immunity from suit we would have not we would have engaged in that same process here i'm sorry there  and i thought the negotiation resulted in the tribe saying no we want to live and we won't take money for it we won't exchange parcels for it to luncheons wanted to pay you money or exchange parcels and the tribe said no just a sort of matter what were they supposed to do next there was a there there what i said was if the longer into understood our immunity from suit then the negotiations would be different how would you said  because they would not and they would not have the opportunity to seek the legal relief that they have sought here we respectfully asked that the judgment below be reversed thank you counsel the case is submitted