(Slip Opinion) OCTOBER TERM, 2017 1 

Syllabus 

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 Washington state court, invoking the doctrines of adverse possession and mutual 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 Nation, 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 Allotment 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 private individuals. In 1934, Congress reversed course but made no attempt 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 concerned 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 transactions between Indians on fee-patented land within a reservation. 

Moe v. Confederated Salish and Kootenai Tribes of Flathead Reservation, 425 U. S. 463, 479–481. The Court reached a different conclusion 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 distinguishable precedent; it resolved nothing about the law of sovereign immunity. 

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) 1 

Opinion of the Court 

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, Washington, 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 followed with representatives of the Skagit people and others, 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 Commercial 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 transactions. 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 neighbors 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 offered 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 
 

 

 

Cite as: 584 U. S. ____ (2018) 3 

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 Community, 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 principle 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 

(1905). It authorized the President to allot parcels of

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 applicable 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 checkerboard. Recall that the amended version of §6 of the

General Allotment Act rendered allottees and their feepatented 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 feepatented 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 
 

Cite as: 584 U. S. ____ (2018) 5 

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 resolved 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 Yakima, 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 involving immovable property located in the territory of another

sovereign. As our cases have put it, “[a] prince, by acquiring private property in a foreign country, . . . may be considered 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 determining when foreign sovereigns may be sued for their activities 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 address 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. Determining 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 certiorari, 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 exception 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 property exception presents such an easy question, then it’s 

hard to see what terrible things could happen if we allow 
 

 

Cite as: 584 U. S. ____ (2018) 7 

Opinion of the Court 

the Washington Supreme Court to answer it. Surely our

state court colleagues are no less versed than we in “hornbook 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 understand 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 confusion 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 inconsistent with this opinion. 

It is so ordered. 
 

_________________ 

_________________ 

 

Cite as: 584 U. S. ____ (2018) 1 

ROBERTS, C. J., concurring 

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] 

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, nonreservation 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 General 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 resolving 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 sovereign 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 property outside its territory is treated just like a private individual. 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. 
 

 

Cite as: 584 U. S. ____ (2018) 3 

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 circumstances would, in my view, need to be addressed in a

future case. See Michigan v. Bay Mills Indian Community, 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 offreservation 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) 1 

THOMAS, J., dissenting 

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 THOMAS, with whom JUSTICE ALITO joins,

dissenting. 

We granted certiorari to decide whether “a court’s exercise 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 answer. 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 affirmance. 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” exception 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 exception 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 certioraristage 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 proffered reason is that the applicability of the immovableproperty 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 
 

 

Cite as: 584 U. S. ____ (2018) 3 

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 presented 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 sovereign 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 immovableproperty exception to sovereign immunity. That exception 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.” Lauterpacht, 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 exception—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), “Bynkershoek’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). 
 

Cite as: 584 U. S. ____ (2018) 5 

THOMAS, J., dissenting 

the 16th-century legal scholar Oswald Hilliger. See ibid. 

About a decade after Bynkershoek, Emer de Vattel explained that, when “sovereigns have fiefs and other possessions 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 property, by whomsoever possessed, are subject to the jurisdiction 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 sovereign. H. Wheaton, Elements of International Law §81, 

p. 114 (1866). As then-Judge Scalia explained, it is “selfevident” 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.” Competence 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 and concurring in judgment). 
 

 

6 UPPER SKAGIT TRIBE v. LUNDGREN 

THOMAS, J., dissenting 

the situs.” Ibid. 

The principle of lex rei sitae was so well established by 

the 19th century that Chancellor James Kent deemed it 

“too clear for discussion.” 2 Commentaries on American 

Law 429, n. a (4th ed. 1840). The medieval jurist Bartolus

of Sassoferatto had recognized the principle 500 years

earlier in his commentary on conflicts of law under the 

Justinian Code. See Bartolus, Conflict of Laws 29 (J. 

Beale transl. 1914).5 Bartolus explained that, “when there

is a question of any right growing out of a thing itself, the 

custom or statute of the place where the thing is should be

observed.” Ibid. Later authorities writing on conflicts of

law consistently agreed that lex rei sitae determined the 

governing law in real-property disputes.6 And this Court 

likewise held, nearly 200 years ago, that “the nature of 

—————— 

5 In the foreword to his translation of Bartolus, Joseph Henry Beale 

described him as “the most imposing figure among the lawyers of the 

middle ages,” whose work was “the first and standard statement of the

doctrines of the Conflict of Laws.” Bartolus, Conflict of Laws, at 9. 6See, e.g., F. von Savigny, Conflict of Laws 130 (W. Guthrie transl.

1869) (“This principle [of lex rei sitae] has been generally accepted from

a very early time”); G. Bowyer, Commentaries on Universal Public Law 

160 (1854) (“[W]here the matter in controversy is the right and title to

land or other immovable property, the judgment pronounced in the 

forum rei sitae is held conclusive in other countries”); H. Wheaton,

Elements of International Law §81, p. 114 (G. Wilson ed. 1936) (“[T]he

law of a place where real property is situated governs exclusively as to

the tenure, title, and the descent of such property”); J. Story, Commentaries on the Conflict of Laws §424, p. 708 (rev. 3d ed. 1846) (“The title

. . . to real property can be acquired, passed, and lost only according to 

the Lex rei sitae”); J. Westlake, Private International Law *56 (“The

right to possession of land can only be tried in the courts of the situs”);

L. Bar, International Law 241–242 (G. Gillespie transl. 1883) (noting 

that, in “the simpler case of immoveables,” “[t]he lex rei sitae is the 

rule”); F. Wharton, 1 Conflict of Laws §273, p. 607 (G. Parmele ed., 3d 

ed. 1905) (“Jurists of all schools, and courts of all nations, are agreed

in holding that land is governed by the law of the place where it is 

situated”). 
Cite as: 584 U. S. ____ (2018) 7 

THOMAS, J., dissenting 

sovereignty” requires that “[e]very government” have “the 

exclusive right of regulating the descent, distribution, and

grants of the domain within its own boundaries.” Green v. 

Biddle, 8 Wheat. 1, 12 (1823) (Story, J.).

The acceptance of the immovable-property exception has

not wavered over time. In the 20th century, as nations

increasingly owned foreign property, it remained “well 

settled in International law that foreign state immunity

need not be extended in cases dealing with rights to interests in real property.” Weber, The Foreign Sovereign

Immunities Act of 1976: Its Origin, Meaning, and Effect, 3

Yale J. Int’l L. 1, 33 (1976). Countries around the world 

continued to recognize the exception in their statutory and

decisional law. See Competence of Courts 572–590 (noting 

support for the exception in statutes from Austria, Germany, Hungary, and Italy, as well as decisions from the

United States, Austria, Chile, Czechoslovakia, Egypt, 

France, Germany, and Romania). “All modern authors 

are, in fact, agreed that in all disputes in rem regarding

immovable property, the judicial authorities of the State 

possess as full a jurisdiction over foreign States as they 

do over foreign individuals.” C. Hyde, 2 International 

Law 848, n. 33 (2d ed. 1945) (internal quotation marks

omitted).

The Restatement of Foreign Relations Law reflects this

unbroken consensus. Every iteration of the Restatement 

has deemed a suit concerning the ownership of real property to be “outside the scope of the principle of [sovereign]

immunity of a foreign state.” Restatement of Foreign

Relations Law of the United States (Proposed Official 

Draft) §71, Comment c, p. 228 (1962); see also Restatement (Second) of Foreign Relations Law of the United

States §68(b) (1965) (similar); Restatement (Third) of 

Foreign Relations Law of the United States §455(1)(c) 

(1987) (denying that immunity exists for “claims . . . to

immovable property in the state of the forum”); Restate-
 

 

 

 

8 UPPER SKAGIT TRIBE v. LUNDGREN 

THOMAS, J., dissenting 

ment (Fourth) of Foreign Relations Law of the United

States §456(2) (Tent. Draft No. 2, Mar. 22, 2016) (recognizing “jurisdiction over a foreign state in any case in which 

rights in immovable property situated in the United

States are in issue”). Sovereign immunity, the First Restatement explains, does not bar “an action to obtain

possession of or establish an ownership interest in immovable property located in the territory of the state exercising jurisdiction.” §71(b), at 226. 

Given the centuries of uniform agreement on the 

immovable-property exception, it is no surprise that all 

three branches of the United States Government have 

recognized it. Writing for a unanimous Court and drawing 

on Bynkershoek and De Vattel, Chief Justice Marshall 

noted that “the property of a foreign sovereign is not distinguishable by any legal exemption from the property of 

an ordinary individual.” Schooner Exchange v. McFaddon, 

7 Cranch 116, 144–145 (1812). Thus, “[a] prince, by acquiring private property in a foreign country, may possibly 

be considered as subjecting that property to the territorial 

jurisdiction . . . and assuming the character of a private 

individual.” Id., at 145.7 The Court echoed this reasoning

over a century later, holding that state sovereign immunity 

does not extend to “[l]and acquired by one State in another 

State.” Georgia v. Chattanooga, 264 U. S. 472, 480 (1924). 

In 1952, the State Department acknowledged that “[t]here

is agreement[,] supported by practice, that sovereign

immunity should not be claimed or granted in actions with

respect to real property.” Tate Letter 984.8 Two decades 

—————— 

7The Skagit Tribe entered into its treaty with the United States four 

decades later. See Treaty of Point Elliott, Apr. 11, 1859, 12 Stat. 927.

The treaty does not mention sovereignty or otherwise alter the rule laid

out in Schooner Exchange. 8This declaration has long been “the official policy of our Government.” Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U. S. 
 

 

Cite as: 584 U. S. ____ (2018) 9 

THOMAS, J., dissenting 

later, Congress endorsed the immovable-property exception by including it in the Foreign Sovereign Immunities 

Act of 1976. See 28 U. S. C. §1605(a)(4) (“A foreign state

shall not be immune from the jurisdiction of courts of the

United States . . . in any case . . . in which . . . rights in

immovable property situated in the United States are in

issue”). This statutory exception was “meant to codify the 

pre-existing real property exception to sovereign immunity

recognized by international practice.” Permanent Mission 

of India to United Nations v. City of New York, 551 U. S. 

193, 200 (2007) (emphasis added; internal quotation

marks omitted). 

The Court does not question any of the foregoing authorities. Nor did the parties provide any reason to do so. The 

Government, when asked to identify its “best authority for

the proposition that the baseline rule of common law was 

total immunity, including in rem actions,” pointed to just 

two sources. See Tr. of Oral Arg. 29; Brief for United

States as Amicus Curiae 10, 26. The first was Hamilton’s 

statement that “[i]t is inherent in the nature of sovereignty 

not to be amenable to the suit of an individual without its 

consent.” The Federalist No. 81, p. 487 (C. Rossiter ed. 

1961) (emphasis deleted). Yet “property ownership is not 

an inherently sovereign function,” Permanent Mission, 

supra, at 199, and Hamilton’s general statement does not

suggest that immunity is automatically available or is not 

subject to longstanding exceptions. The Government also 

cited Schooner Exchange. But as explained above, that 

—————— 

682, 698 (1976). The State Department has reaffirmed it on several 

occasions. See, e.g., Dept. of State, J. Sweeney, Policy Research Study:

The International Law of Sovereign Immunity 24 (1963) (“The immunity

from jurisdiction of a foreign state does not extend to actions for

the determination of an interest in immovable—or real—property in 

the territory. This limitation on the immunity of the state is of long 

standing”). 
 

10 UPPER SKAGIT TRIBE v. LUNDGREN 

THOMAS, J., dissenting 

decision expressly acknowledges the immovable-property

exception. The Government’s unconvincing arguments 

cannot overcome more than six centuries of consensus on 

the validity of the immovable-property exception. 

B 

Because the immovable-property exception clearly

applies to both state and foreign sovereign immunity, the 

only question is whether it also applies to tribal immunity.

It does. 

Just last Term, this Court refused to “exten[d]” tribal

immunity “beyond what common-law sovereign immunity 

principles would recognize.” Lewis v. Clarke, 581 U. S. 

___, ___–___ (2017) (slip op., at 7–8). Tribes are “domestic 

dependent nations,” Cherokee Nation v. Georgia, 5 Pet. 1, 

17 (1831), that “no longer posses[s] the full attributes of

sovereignty,” United States v. Wheeler, 435 U. S. 313, 323 

(1978) (internal quotation marks omitted). Given the 

“limited character” of their sovereignty, ibid., Indian 

tribes possess only “the common-law immunity from suit 

traditionally enjoyed by sovereign powers,” Santa Clara 

Pueblo v. Martinez, 436 U. S. 49, 58 (1978). That is why

this Court recently declined an invitation to make tribal

immunity “broader than the protection offered by state or

federal sovereign immunity.” Lewis, 581 U. S., at ___ (slip 

op., at 8). Accordingly, because States and foreign countries are subject to the immovable-property exception,

Indian tribes are too. “There is no reason to depart from

these general rules in the context of tribal sovereign immunity.” Id., at ___ (slip op., at 7). 

In declining to reach the immovable-property exception, 

the Court highlights two counterarguments that the Tribe 

and the United States have raised for why the exception

should not extend to tribal immunity. Neither argument 

has any merit.

First, the Court notes that “immunity doctrines lifted 
 

 

Cite as: 584 U. S. ____ (2018) 11 

THOMAS, J., dissenting 

from other contexts do not always neatly apply to Indian

tribes.” Ante, at 5 (citing Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc., 523 U. S. 751, 756 (1998)). But 

the Court’s authority for that proposition merely states

that tribal immunity “is not coextensive with that of the 

States.” Id., at 756 (emphasis added). Even assuming

that is so, it does not mean that the Tribe’s immunity can 

be more expansive than any recognized form of sovereign

immunity, including the immunity of the United States 

and foreign countries. See Lewis, supra, at ___–___ (slip 

op., at 7–8). And the Tribe admits that this Court has 

previously limited tribal immunity to conform with analogous “limitations . . . in suits against the United States.” 

Reply Brief 22. No one argues that the United States 

could claim sovereign immunity if it wrongfully asserted 

ownership of private property in a foreign country—the

equivalent of what the Tribe did here. The United States 

plainly would be subject to suit in that country’s courts.

See Competence of Courts 572–590. 

Second, the Court cites two decisions for the proposition 

that “since the founding . . . the political branches rather 

than judges have held primary responsibility for determining when foreign sovereigns may be sued for their activities in this country.” Ante, at 6 (citing Verlinden B. V. v. 

Central Bank of Nigeria, 461 U. S. 480, 486 (1983); Ex 

parte Peru, 318 U. S. 578, 588 (1943)). But those cases did 

not involve tribal immunity. They were admiralty suits in

which foreign sovereigns sought to recover ships they

allegedly owned. See Verlinden, supra, at 486 (citing

cases involving ships allegedly owned by Italy, Peru, and 

Mexico); Ex parte Peru, supra, at 579 (mandamus action 

by Peru regarding its steamship). Those decisions were an 

extension of the common-law principle, recognized in 

Schooner Exchange, that sovereign immunity applies to

vessels owned by a foreign sovereign. See Berizzi Brothers 

Co. v. S. S. Pesaro, 271 U. S. 562, 571–576 (1926). These 
 

 

 

12 UPPER SKAGIT TRIBE v. LUNDGREN 

THOMAS, J., dissenting 

cases encourage deference to the political branches on 

sensitive questions of foreign affairs. But they do not 

suggest that courts can ignore longstanding limits on

sovereign immunity, such as the immovable-property 

exception. And they do not suggest that courts can abdicate their judicial duty to decide the scope of tribal immunity—a duty this Court exercised just last Term. See 

Lewis, supra, at ___–___ (slip op., at 5–8).9 

In fact, those present at “the founding,” ante, at 6, would 

be shocked to learn that an Indian tribe could acquire

property in a State and then claim immunity from that

State’s jurisdiction.10 Tribal immunity is “a judicial doctrine” that is not mandated by the Constitution. Kiowa, 

523 U. S., at 759. It “developed almost by accident,” was 

reiterated “with little analysis,” and does not reflect the 

realities of modern-day Indian tribes. See id., at 756–758. 

The doctrine has become quite “exorbitant,” Michigan v. 

Bay Mills Indian Community, 572 U. S. ___, ___ (2014) 

(GINSBURG, J., dissenting) (slip op., at 1), and it has been

implausibly “exten[ded] . . . to bar suits arising out of an 

—————— 

9These decisions about ships, even on their own terms, undercut the 

Tribe’s claim to immunity here. The decisions acknowledge a “distinction between possession and title” that is “supported by the overwhelming weight of authority” and denies immunity to a foreign sovereign 

that has “title . . . without possession.” Republic of Mexico v. Hoffman, 

324 U. S. 30, 37–38 (1945); see, e.g., Long v. The Tampico, 16 F. 491, 

493–501 (SDNY 1883). That distinction would defeat the Tribe’s claim 

to immunity because the Lundgrens have possession of the land. See 

187 Wash. 2d 857, 861–864, 389 P. 3d 569, 571–572 (2017). 10Their shock would not be assuaged by the Government’s proposed 

remedy. The Government suggests that the Lundgrens should force a

showdown with the Tribe by chopping down trees or building some

structure on the land. See Brief for United States as Amicus Curiae 

23–24. If the judge-made doctrine of tribal immunity has come to a

place where it forces individuals to take the law into their own hands to

keep their own land, then it will have crossed the threshold from

mistaken to absurd. 
 

 

Cite as: 584 U. S. ____ (2018) 13 

THOMAS, J., dissenting 

Indian tribe’s commercial activities conducted outside its 

territory,” id., at ___ (THOMAS, J., dissenting) (slip op.,

at 1).

Extending it even further here would contradict the 

bedrock principle that each State is “entitled to the sovereignty and jurisdiction over all the territory within her 

limits.” Lessee of Pollard v. Hagan, 3 How. 212, 228 

(1845); accord, Texas v. White, 7 Wall. 700, 725 (1869); 

Willamette Iron Bridge Co. v. Hatch, 125 U. S. 1, 9 (1888) 

(collecting cases). Since 1812, this Court has “entertain[ed] no doubt” that “the title to land can be acquired 

and lost only in the manner prescribed by the law of the

place where such land is situate[d].” United States v. 

Crosby, 7 Cranch 115, 116 (1812) (Story, J.). Justice 

Bushrod Washington declared it “an unquestionable principle of general law, that the title to, and the disposition of

real property, must be exclusively subject to the laws of

the country where it is situated.” Kerr v. Devisees of 

Moon, 9 Wheat. 565, 570 (1824). This Court has been 

similarly emphatic ever since. See, e.g., Munday v. Wisconsin Trust Co., 252 U. S. 499, 503 (1920) (“long ago 

declared”); Arndt v. Griggs, 134 U. S. 316, 321 (1890) 

(“held repeatedly”); United States v. Fox, 94 U. S. 315, 320 

(1877) (“undoubted”); McCormick v. Sullivant, 10 Wheat. 

192, 202 (1825) (“an acknowledged principle of law”).

Allowing the judge-made doctrine of tribal immunity to

intrude on such a fundamental aspect of state sovereignty

contradicts the Constitution’s design, which “‘leaves to the 

several States a residuary and inviolable sovereignty.’” 

New York v. United States, 505 U. S. 144, 188 (1992) 

(quoting The Federalist No. 39, at 256). 

* * * 

The Court’s failure to address the immovable-property

exception in this case is difficult to justify. It leaves our 

colleagues in the state and federal courts with little more 
 

14 UPPER SKAGIT TRIBE v. LUNDGREN 

THOMAS, J., dissenting 

guidance than they had before. It needlessly delays relief 

for the Lundgrens, who must continue to litigate the

threshold question whether they can litigate their indisputable right to their land. And it does not address a 

clearly erroneous tribal-immunity claim: one that asserts

a sweeping and absolute immunity that no other sovereign 

has ever enjoyed—not a State, not a foreign nation, and 

not even the United States. 

I respectfully dissent.