No Immovable Property Exception: Washington Supreme Court Bars Adverse Possession Suits Against Tribes’ Off‑Reservation Lands Absent Congressional Abrogation or Tribal Waiver

Introduction

In Flying T Ranch, Inc. v. Stillaguamish Tribe of Indians, the Washington Supreme Court (en banc) addressed a question of first impression: whether a common-law “immovable property” exception permits state courts to adjudicate an adverse possession quiet-title claim against a federally recognized Indian tribe’s off-reservation fee land without congressional authorization or tribal consent. The dispute arose after the Stillaguamish Tribe purchased a parcel along the Stillaguamish River in 2021 with state and federal conservation funds dedicated to salmon recovery. Flying T Ranch, a neighboring landowner, claimed it had acquired a narrow strip of that parcel (and an adjacent county parcel later conveyed to the Tribe) by adverse possession dating back to 1962.

The trial court dismissed the action with prejudice on sovereign immunity grounds. The Court of Appeals affirmed, rejecting the claimed immovable property exception and concluding that, absent an unequivocal congressional abrogation or a clear tribal waiver, sovereign immunity barred the suit. The Washington Supreme Court affirmed the Court of Appeals, holding that neither an in rem characterization nor the purported common-law immovable property exception can overcome tribal sovereign immunity when Congress has not spoken and no tribal waiver exists.

Summary of the Opinion

Justice Madsen, writing for the Court, reaffirmed the baseline federal-law principle that Indian tribes, as domestic dependent sovereigns, are immune from suit unless (1) Congress unequivocally abrogates immunity or (2) the tribe clearly waives it. Applying that framework, the Court held:

State courts lack subject matter jurisdiction over adverse possession quiet-title claims against tribes concerning nonreservation (off-reservation) land unless Congress has abrogated immunity or the tribe has waived it.
Washington’s in rem jurisdiction over land within its borders does not supply subject matter jurisdiction to adjudicate such claims against a tribe; sovereign immunity is a jurisdictional bar.
No common-law immovable property exception applies to tribal sovereign immunity. That exception developed in the foreign-sovereign context and has neither been extended to tribes by Congress nor recognized in tribal-immunity doctrine.
Prior Washington authorities recognizing in rem proceedings against tribally owned lands (e.g., Anderson & Middleton; Smale; Lundgren) cannot be relied upon after the U.S. Supreme Court’s decision in Upper Skagit, which clarified that County of Yakima did not speak to sovereign immunity and disapproved the reliance on in rem labels to sidestep immunity.
Arguments premised on “prior-ripened adverse possession” do not circumvent sovereign immunity; a quiet title action still requires subject matter jurisdiction, and neither Congress nor the Tribe has provided it here.
Because dismissal properly rested on lack of jurisdiction (CR 12(b)), the Court did not reach joinder/indispensability arguments under CR 19.

A separate concurrence by Justice Mungia agreed with the outcome and emphasized that the immovable property exception has no application to tribes regardless of property use. The concurrence also expressly condemned the racist and white supremacist premises that underlie portions of historic federal Indian law, including the “Doctrine of Discovery,” urging courts to call out those foundations even while following controlling precedent.

Analysis

Precedents Cited and Their Influence

Santa Clara Pueblo v. Martinez (1978); Michigan v. Bay Mills Indian Community (2014); Kiowa Tribe v. Manufacturing Technologies (1998).
These cases form the modern backbone of tribal sovereign immunity doctrine. Santa Clara Pueblo requires that waivers be “unequivocally expressed.” Kiowa held that immunity extends to a tribe’s off-reservation commercial activities, emphasizing that any recalibration belongs to Congress. Bay Mills reaffirmed that the “baseline” is immunity and that abrogation must be unequivocal. The Washington Supreme Court relied on these authorities to anchor its deference-to-Congress approach and to reject judicially crafted exceptions.
Cherokee Nation v. Georgia (1831).
Cited for the proposition that tribes are “domestic dependent nations,” not foreign sovereigns. This classification underscores the Court’s refusal to import foreign-sovereign doctrines (like the immovable property exception) into tribal immunity absent congressional direction.
County of Yakima v. Confederated Tribes & Bands of Yakima Indian Nation (1992).
Previously invoked by Washington courts to support in rem proceedings, Yakima has been clarified by the U.S. Supreme Court as a statutory interpretation case about the General Allotment Act—not a sovereign immunity case. That clarification, given in Upper Skagit, undermines reliance on Yakima for any in rem exception to tribal immunity.
Upper Skagit Indian Tribe v. Lundgren (2018).
The U.S. Supreme Court vacated Washington’s Lundgren decision and explained that Yakima said nothing about sovereign immunity. It left for Washington courts to consider in the first instance arguments about an immovable property exception. Today’s decision resolves that question: no such exception applies to tribes.
Anderson & Middleton Lumber Co. v. Quinault Indian Nation (Wash. 1996); Smale v. Noretep (Wash. App. 2009); Lundgren v. Upper Skagit Indian Tribe (Wash. 2017), vacated.
These Washington cases had allowed or suggested in rem quiet title or partition actions could proceed despite tribal immunity. The present decision effectively disavows that rationale, explaining that “in rem” labels cannot create jurisdiction where sovereign immunity bars suit. Post–Upper Skagit, they are not controlling on the immunity question.
Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1605(a)(4); The Schooner Exchange (1812); Georgia v. City of Chattanooga (1924); Permanent Mission of India v. City of New York (2007); Asociacion de Reclamantes (D.C. Cir. 1984).
The FSIA codifies a foreign-sovereign immovable property exception. The Court emphasized that the FSIA does not apply to tribes and that pre-FSIA practice largely deferred to the Executive Branch, not common-law adjudication of exceptions by courts. Tribes are not foreign sovereigns, and Congress’s choice not to include them in FSIA’s scheme counsels against judicial extension of those exceptions to tribes.
Gorman v. City of Woodinville (Wash. 2012); Burlison v. United States (6th Cir. 2008).
Invoked by Flying T to argue that adverse possession can ripen before government acquisition and thereby avoid immunity-based bars. The Court distinguished both: Gorman involved a state that had waived immunity (with a statutory limitation on adverse possession claims that did not fit the facts), while Burlison addressed the federal Quiet Title Act’s text (which, unlike here, is a specific congressional waiver that expressly bars adverse possession claims against the United States). Neither case supports bypassing tribal sovereign immunity in state court.
Other tribal-immunity authorities: Cayuga Indian Nation v. Seneca County (2d Cir. 2014); Oneida Indian Nation v. Madison County (2d Cir. 2010), vacated on other grounds; Hamaatsa, Inc. v. Pueblo of San Felipe (N.M. 2016).
These decisions reject attempts to distinguish in rem from in personam suits for purposes of tribal immunity. They reinforce the Washington Supreme Court’s conclusion that property-based labels do not overcome sovereign immunity.
Statutory abrogations and definitions: Lac du Flambeau Band v. Coughlin (2023); Bodi v. Shingle Springs Band (9th Cir. 2016); C&L Enterprises, Inc. v. Citizen Band Potawatomi (2001); Weddell; Osage Tribal Council; Public Service Co. of Colorado.
Cited to illustrate that when Congress abrogates tribal immunity, it does so explicitly or with unequivocal language (e.g., bankruptcy code’s “other foreign or domestic government”), and that tribes may waive immunity in unmistakable terms (e.g., arbitration clauses). No similar statutory text or tribal waiver is present here.

Legal Reasoning

Baseline rule and separation of powers.
Tribal sovereign immunity is a matter of federal law. Courts refrain from crafting exceptions; unless Congress unequivocally abrogates or the tribe clearly waives immunity, the “baseline position” is immunity. This allocation respects Congress’s plenary role and avoids judicial recalibration in a sensitive domain of federal Indian law.
In rem labels do not create jurisdiction.
Although state courts have in rem authority over land within state borders, subject matter jurisdiction is independently required. Where a tribe invokes sovereign immunity, courts lack subject matter jurisdiction over suits “against” the tribe, even if styled as in rem. Upper Skagit foreclosed reliance on Yakima to avoid this jurisdictional bar.
No tribal analogue to the foreign-sovereign immovable property exception.
The immovable property exception developed in foreign-sovereign immunity and was ultimately codified in the FSIA. Tribes are domestic dependent nations, not foreign states; Congress did not include tribes in the FSIA’s scheme. The Court declines to graft that foreign-sovereign exception onto tribal immunity without congressional instruction.
Adverse possession cannot bypass sovereign immunity.
Even if adverse possession elements ripened before the Tribe acquired record title, the claimant still needs a quiet-title judgment to perfect and declare title. That action requires subject matter jurisdiction over a suit that necessarily implicates the Tribe’s claimed interest. Because immunity is jurisdictional and has not been waived or abrogated, the claim cannot be adjudicated in state court.
Use of the property.
While the majority assumes arguendo that property use might matter under foreign-sovereign doctrine, it emphasizes that the Tribe’s purchase with NOAA-funded conservation money to restore salmon habitat—integral to treaty-reserved fishing rights—serves a public, governmental purpose. The concurrence would go further, stating that use is irrelevant: as domestic sovereigns, tribes are not subject to any immovable property exception at all.
Process posture.
Dismissal under CR 12(b)(1) for lack of subject matter jurisdiction was proper. The Court did not reach CR 19 indispensable-party arguments because sovereign immunity disposed of the case.

Impact

The decision is a significant clarification of Washington law following the U.S. Supreme Court’s Upper Skagit decision. Its implications include:

Quiet title and adverse possession against tribes (off-reservation).
Private parties cannot maintain adverse possession or other quiet title actions in Washington courts against a tribe’s off-reservation fee lands absent an unequivocal congressional abrogation or a clear tribal waiver. The in rem framing will not suffice. Practitioners should assess whether a tribe has accepted a waiver (e.g., in a contract) or whether a federal statute supplies abrogation; otherwise, suit will be barred.
Real property enforcement more broadly.
The reasoning aligns with other courts that have rejected in rem workarounds in tax foreclosure and lien enforcement against tribally owned fee lands. While this opinion addresses adverse possession, its jurisdictional analysis signals that other in rem efforts face the same immunity barrier unless Congress has spoken.
Transactional diligence.
For non-tribal neighbors and title insurers, claims to strips or overlaps adjoining tribally owned parcels may be judicially noncognizable without tribal consent. Parties should consider negotiated boundary agreements, tribal forums, or waiver-backed dispute resolution mechanisms if a boundary conflict is foreseeable.
Legislative focus.
The Court reiterates that any recalibration—such as creating a narrow immovable property exception for tribes—is for Congress. Absent federal action, the baseline remains immunity.
Doctrinal clean-up in Washington.
To the extent older Washington cases suggested that in rem quiet title proceedings could bypass tribal immunity, this opinion, read with Upper Skagit, forecloses that path. The law in Washington now squarely rejects an in rem exception to tribal sovereign immunity.

Complex Concepts Simplified

Tribal sovereign immunity.
A legal doctrine recognizing that federally recognized Indian tribes cannot be sued unless they clearly consent or Congress unmistakably authorizes suit. It protects tribal self-governance and is a matter of federal law.
Abrogation versus waiver.
Abrogation is Congress’s decision, by statute and in unequivocal terms, to allow suits against tribes in specific contexts. Waiver is a tribe’s own clear, express agreement to be sued (for example, by contract clause).
In rem versus in personam.
In rem actions are directed at property; in personam suits are against a person or entity. Calling a case “in rem” does not avoid sovereign immunity; if adjudication requires binding a tribe’s interests, immunity still applies and deprives courts of subject matter jurisdiction.
Immovable property exception (foreign sovereign context).
A rule, codified in the FSIA, allowing courts to hear cases involving rights in real property located in the United States against foreign sovereigns. It does not apply to tribes, which are not foreign states and are governed by a different immunity framework.
Adverse possession.
A method of acquiring title by continuous, open, notorious, exclusive, hostile possession for a statutory period. Even if the elements are satisfied, a quiet title judgment is typically sought to formalize and record title—requiring jurisdiction over all interested parties, including any tribal owner.

The Concurrence: Confronting the Racist Foundations of Federal Indian Law

Justice Mungia concurred in the judgment and wrote separately to condemn the racist and white supremacist premises embedded in historic federal Indian law, including the “Doctrine of Discovery.” The concurrence emphasizes:

The immovable property exception has no place in tribal immunity analysis, regardless of the use to which a tribe puts its land.
Courts should acknowledge—explicitly and repeatedly—the racist foundations of early cases (e.g., Cherokee Nation v. Georgia; Johnson v. M’Intosh) even while constrained to follow controlling precedent on sovereign immunity.
The Washington Supreme Court has taken recent steps to repudiate such foundations (e.g., repudiation of State v. Towessnute and recognition of the harms of the Doctrine of Discovery in State v. Wallahee), and should continue to do so.

The concurrence underscores a normative judicial responsibility: to apply controlling law while calling out and disavowing the prejudiced premises from which parts of that law historically arose.

Key Takeaways

Only Congress or a tribe can open the courthouse door to suits against a tribe; courts cannot create a common-law immovable property exception for tribes.
Labeling a quiet title action “in rem” does not avoid the jurisdictional bar of tribal sovereign immunity.
Adverse possession theories—including claims that title ripened before a tribe acquired record title—do not circumvent sovereign immunity; subject matter jurisdiction remains absent without abrogation or waiver.
Prior Washington cases suggesting otherwise cannot survive Upper Skagit’s clarification and today’s holding.
The decision protects the sovereignty of tribes in the property context and channels disputes toward consensual mechanisms or congressional solutions.

Conclusion

Flying T Ranch cements a clear rule in Washington: state courts lack subject matter jurisdiction over adverse possession and analogous quiet-title claims against tribally owned off-reservation land, and there is no common-law immovable property exception to tribal sovereign immunity. The opinion aligns Washington law with modern federal doctrine, rejects in rem workarounds, and underscores deference to Congress and tribal self-determination. The concurrence importantly reminds courts to acknowledge and denounce the racist underpinnings of much early federal Indian law, even as contemporary precedent mandates robust respect for tribal sovereignty.

Case Timeline (for orientation)

1991: Flying T acquires adjacent parcel.
1995: Snohomish County acquires neighboring riverfront parcel.
2021: Stillaguamish Tribe purchases parcel with NOAA-funded conservation grant; land designated for salmon habitat restoration supporting treaty fishing rights.
2022: Flying T sues to quiet title by adverse possession to a narrow strip; County later conveys its portion to the Tribe; trial court dismisses with prejudice based on tribal immunity.
2024: Court of Appeals affirms; Washington Supreme Court grants review.
2025: Washington Supreme Court affirms; no immovable property exception; no subject matter jurisdiction absent congressional abrogation or tribal waiver.