Native American tribes are sovereign nations with some degree of sovereign immunity. The exact contours of that immunity are often in flux. While the Supreme Court has established the confines of tribal immunity in cases involving torts, taxation, and contracts, it has avoided determining the doctrine’s application to cases involving real property. Recently, in Upper Skagit Indian Tribe v Lundgren, the Court dismissed the common notion that prior precedent mandates an in rem versus in personam distinction but refused to answer whether tribes can claim sovereign immunity in in rem actions against tribal land. By analyzing the history of tribal sovereignty, land ownership, and immunity from suit, this Comment argues that absent explicit congressional action, tribes can claim sovereign immunity in suits involving any form of tribal property. Only tribes themselves and the legislative branch of the federal government have the constitutional authority to alter these contours.
The dissent in Upper Skagit Indian Tribe introduced a relevant legal concern: the immovable property exception to sovereign immunity. But an analogy to the historical treatment of foreign nations quickly disposes of this concern. The concurrence proposed a policy concern: the potential for sovereign immunity to be used as a sword rather than a shield. This concern is readily refuted, however. The history of sovereign immunity in the United States, especially with regard to foreign nations and Native tribes—as well as the best interest of the tribes—side with broad immunity from suit. Under this Comment’s expansive approach to tribal immunity, Congress maintains its role as the sole political branch that may adjust tribal immunity, and—more importantly—tribes maintain the right to determine their own sovereignty and invoke their own immunity, protecting land that the government has so consistently taken from them throughout this country’s history.