Legal Docket: Upper Skagit Indian Tribe v. Lundgren

MARY REICHARD, HOST: From member-supported WORLD Radio, this is The World and Everything in It for Monday, April 2nd. Good morning, I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher.

The Supreme Court handed down one decision last week.

It arose from a falling-out among family members. Which led to multiple lawsuits in Florida and the U-S Virgin Islands.

The Supreme Court, then, had a question to answer: Can one of those family members appeal part of a decision that resolves only some of the claims? Not all of the claims, just some of them.

One appeals court said that’s not permissible. Another said that it is. So the Supreme Court stepped in and sided unanimously with the family member’s right to that narrow appeal.

REICHARD: That’s a classic legal problem the Supreme Court remedies in federal law: that is, whenever the appeals courts differ with one another. And now, in that case, the legal standard is clear.

Well, now onto unresolved questions — our two oral arguments today.

The first case involves a recurring dispute over the relationship between Native American tribal government and the states.

There are 567 federally recognized tribes in this country. All of them have legal sovereignty, or governing power over themselves.

The U.S. Constitution gives Congress responsibility for some questions like civil rights. Or when a Native American commits a crime against a non-Native American.

States typically have no authority over tribal governments, except when Congress authorizes it.

Here’s a case where Congress has not specifically defined the legal boundaries: the question of land purchased by tribes in the course of ordinary commercial transactions. That is, tribal purchases outside reservation lands or lands held in trust for them.

In some ways, this is a question of real-estate law.

EICHER: Here’s the background:

The controversy is set in rural Skagit County, Washington. It’s about 60 miles north of Seattle. There, the Upper Skagit Indian Tribe purchased a piece of real-estate, a property adjacent to that of Ray and Sharline Lundgren. The couple had purchased 10 acres in 1981 from Sharline’s grandmother. She’d owned it since 1947.

The Lundgrens tended the land as the extended family always had for 70 years. A barbed-wire fence ran along the northern edge of the property, and it had been there the whole time. They regarded the fence as the proper boundary for the property.

But — and here’s the dispute: The Upper Skagit Indian Tribe wasn’t aware of the fence — not until they bought the land and completed a survey. What the survey found was the fence fell about 40 feet north of the recorded boundary.

So the tribe made it known it intended to assert ownership rights over that 40-foot strip of land.

REICHARD: The Lundgrens had always understood the property belonged to them— all the way up the barbed wire. So they sued to quiet title to the property.

Several legal threads weave throughout their complaint, but it comes down to squatter’s rights. That is, a legal concept that says if someone uses land without incident for a long time, then the land becomes his or hers.

The Lundgrens’ ownership does meet the squatter standard: something in the law called the 10 year adverse possession requirement.

But the tribe’s argument is that it has sovereign immunity from litigation in U-S courts. Yet, this is a real-estate question, and Washington State has its own sovereign interests.

Now to the Supreme Court. Here’s lawyer David Hawkins for the tribe:

HAWKINS: It is fundamentally Congress’s job, not ours, to determine whether or how to limit tribal sovereign immunity.

The federal government sided with the tribe in support of its sovereignty argument. Here is Ann O’Connell, assistant to the Solicitor General. O’Connell cited a Founding Father:

O’CONNELL: …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.”

In other words, the tribe didn’t consent to being sued, ergo, no lawsuit allowed.

Justice Stephen Breyer wasn’t buying that. He had a hypothetical — with a hypothetical landowner he calls Joe Smith. Listen:

BREYER: Look, Joe Smith owns an empty lot next door to his house. One morning, because of some tribal legacy or something, he wakes up and finds members of the tribe there 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 — …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 in some form.

For the tribe, David Hawkins replied this way: It’s not that such disputes go unresolved. It’s that they’re resolved outside the courtroom. And because the tribe has registered title to that land, the court immediately loses jurisdiction. Hawkins argued it must dismiss the case.

But Justice Samuel Alito took that notion a little further with Hawkins. For context, Alito uses recent protests over oil pipelines:

ALITO: What would happen in this situation? Let’s say a state or 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 enlist 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?

HAWKINS: That potentially would be the end of the project, yes.

Hawkins added even in that situation, though, Congress could do something about it if it wanted to. But it has not. So, again, he argued the courts have no jurisdiction — and, therefore, no case.

In the federal government’s legal brief supporting the tribe, O’Connell wrote that the Lundgrens had a way around the sovereignty problem. The couple could’ve induced the tribe to sue them, instead of the other way around.

For example, the Lundgrens could’ve built something on the disputed land and invited a lawsuit.

Chief Justice John Roberts was incredulous.

ROBERTS: Is that really what you want them to do? There’s a dispute about this piece of property and you say, well, go pick a fight. Go cut down some trees.

O’CONNELL: I think that —

ROBERTS: That’s a surprising position for — for the government to take …

As for the Lundgrens, their lawyer Eric Miller pounded on this distinction: that this case is about real estate, and that tribal sovereignty isn’t the only sovereignty involved.

MILLER: The core attribute of sovereignty is the authority to adjudicate disputes over the ownership of real property within the sovereign’s territory. That authority is not displaced simply because another sovereign claims an interest in the property.

This case has implications for tribes and states all over the country. High emotions are involved, as you can imagine. I think the justices may hand the Lundgrens a narrow victory and punt this one back to the lower courts to work out the details.

My second case today also deals with a recurring dispute at the Supreme Court, and that’s the treatment of criminal defendants in state custody.

A criminal defendant by the name of Renee Sanchez-Gomez is one of four defendants who had to face pre-trial proceedings while wearing five-point shackles. That was a policy of the U.S. District Court for the Southern District of California. In that district, every criminal defendant had to wear shackles for every pre-trial proceeding.

But Sanchez-Gomez and the others argue that shackling presumes guilt. And that presumption of guilt violates their Due Process rights. They say what’s needed here is a case-by-case determination of the need for shackles.

On the other side is the United States government, represented by Assistant Solicitor General Allon Kedem. He argued that the shackling policy is a vital tool to assure everyone’s safety in the courthouse. The U.S. Marshals Service decided that. End of inquiry.

Justice Breyer dreamed up a seemingly crazy policy to test the limit of the argument:

BREYER: I’m being very hypothetical, absolutely hypothetical. I don’t believe it would ever happen. But if, by some chance, they have a policy in…. a federal court of the United States, that people will come in bound and gagged in body armor, hung upside down, okay, you’re saying even if that’s so, that person in this country has no way of challenging that order…

Kedem got to the more immediate point that this is all moot anyway. These people’s cases are over, so there’s nothing to decide.

However, the lower court here ruled in favor of Sanchez-Gomez et al on the theory that even if their particular cases were over, they may in the future be harmed by the shackling policy.

But Justices Ruth Bader Ginsburg and Anthony Kennedy weren’t buying that theory.

GINSBURG: I don’t know any decision that allows you to say, “I will commit the same offense again, therefore, the case isn’t moot.” … 

KENNEDY: … It’s very difficult for this Court, as a matter of the dignity of the law, to say that, oh, we’re going to presume there’s going to be another violation. We understand with the aliens with the families they have this strong temptation to come in anyway ….

The government’s brief brought out this idea of predicting future scofflaws in the form of people in the country illegally. This particular judicial district and four others that border Mexico have 40 percent of the total daily prisoner population under the Marshals Service custody. Many of those individuals are complete unknowns to arresting officers, and they have no idea how an agitated arrestee might behave.

Reuben Cahn represents the shackled individuals. Cahn angled to keep his clients’ case alive, despite what the justices had said about predicting crime. Listen to his exchange with Justice Elena Kagan:

CAHN: The most likely evidence that something will happen is that it has happened. The most probative evidence that something is likely to re-occur is that it already has … .

KAGAN: … But that suggests if I look at somebody and he has a very, very, very long rap sheet, I’d say, well, you know, he clearly does this every month, he’s just going to be here again, and give him a different rule from somebody who’s a first offender.

Government lawyer Kedem hit on how inefficient it would be to do a case-by-case review of every person shackled. Yet it seems unjust to treat people as though they are criminals when they haven’t been proven guilty of anything and may be innocent.

The appeals courts are split on the issue. Clarity is needed.

And that’s this week’s Legal Docket.  

(AP Photo/J. Scott Applewhite, File) FILE – In this Oct. 10, 2017, file photo, the Supreme Court in Washington is seen at sunset. 

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