Last week’s US Supreme Court ruling in Upper Skagit Indian Tribe v. Lundgren resolved virtually nothing. Concluding that the Supreme Court of Washington had misunderstood a 1992 US Supreme Court precedent as establishing an exception to the doctrine of tribal sovereign immunity when it in fact had only construed a federal statute, the US Supreme Court sent the case back to the state high court to consider the tribal sovereign immunity question without the distortion of that misunderstanding. That would be that, at least for now, except that Chief Justice Roberts, joined by Justice Kennedy, wrote an intriguing concurrence, which, taken to its logical conclusion, broadly undermines the basis for much of the Court’s own case law involving the sovereign immunity of US states.

The Upper Skagit Non-Decision

In an effort to recover some of the land lost to settlers in the nineteenth century, in 2013 the Upper Skagit Tribe purchased a 40-acre parcel adjoining an existing reservation. A dispute arose with the owners of the neighboring parcel, the Lundgrens, because a fence did not appear to follow the property line. The Lundgrens sued the Tribe, arguing that they were entitled to the land on their side of the fence, even though a survey showed it was once considered part of the parcel the Tribe purchased. The Washington Supreme Court ruled in favor of the Lundgrens. Before reaching that decision, however, the court first held that the Upper Skagit Tribe lacked sovereign immunity.

What is that? Sovereign immunity is a principle that makes a sovereign immune to certain kinds of civil lawsuits. In the 1793 case of Chisholm v. Georgia, the US Supreme Court appeared to say that sovereign immunity was rooted in a principle of royal authority that was incompatible with post-Revolutionary republican government, but that ruling was quickly displaced by the Eleventh Amendment. Although the Eleventh Amendment does not expressly enact sovereign immunity, it has been construed by the Supreme Court as reflecting an understanding that our Constitution tacitly recognizes sovereign immunity. Such immunity extends to the federal government, states, foreign nations, and Indian tribes.

The foregoing vastly oversimplifies a complex and somewhat puzzling collection of doctrines that includes numerous qualifications and exceptions. The dispute in Upper Skagit concerned the scope of two possible exceptions.

The Washington Supreme Court thought that certain suits concerning land or other things—what lawyers call suits in rem, a legal construct in which the court exercises jurisdiction over the land or thing itself—fell outside sovereign immunity. However, as noted above, the US Supreme Court said that the state court had misunderstood a prior precedent in reaching that conclusion.

The Lundgrens pointed to another exception. They argued that traditionally “sovereigns enjoyed no immunity from actions involving immovable property located in the territory of another sovereign.” Justices Thomas and Alito agreed and, on that basis, would have affirmed the Washington Supreme Court’s ruling for the Lundgrens. However, the majority thought that the immovable property exception—which was established in cases involving sovereign immunity asserted by non-tribal defendants—might not apply or might apply differently with respect to Indian tribes. In his majority opinion, Justice Gorsuch explained why he thought it best for the state court to consider that possibility in the first instance.

Implications of the Chief Justice’s Concurrence

Chief Justice Roberts and Justice Kennedy split the difference. They joined the majority in sending the case back to the Washington Supreme Court for a determination whether there is an immovable property exception to tribal sovereign immunity. But they signaled that were the case to return to the US Supreme Court they would likely side with Justices Thomas and Alito in finding that there is such an exception and thus allowing the case against the Upper Skagit to proceed.

The Chief Justice was especially troubled by a proposal of the Solicitor General, who suggested that the Lundgrens should chop down trees or build a shed on the disputed property, thereby provoking the tribe to sue them. If seeking a remedy as a plaintiff in such a case, the tribe would have to waive its sovereign immunity. The Chief Justice objected that the law ought not to require such “brazen tactics” that “pick a fight.”

Chief Justice Roberts also expressed concern that a finding in favor of tribal sovereign immunity would leave the Lundgrens and those similarly situated with no effective remedy. That, in turn, would encourage tribes to “wield sovereign immunity as a sword and seize property with impunity, even without a colorable claim of right.”

Yet that quite sensible objection has implications beyond the Upper Skagit case and beyond the question of the proper scope of the immovable property exception to tribal sovereign immunity. After all, the very idea of sovereign immunity means that plaintiffs whose legal rights have been denied will often have no effective remedy.

Consider the 1999 Supreme Court ruling in Florida Prepaid Postsecondary Educ. Expense Bd. v. College Savings Bank. There the Court held that a state’s sovereign immunity shields it against lawsuits by private parties for violations of their patent rights and that Congress lacked the power to abrogate such immunity. Yet just as a holding of tribal immunity in Upper Skagit would invite tribal seizures of real property, so the Florida Prepaid holding invites seizures of intellectual property—a point raised by the dissenters in that case.

Indeed, the implications of the Roberts concurrence in Upper Skagit extend beyond sovereign immunity. On the same day that the Court decided Upper Skagit, it decided in Epic Systems Corp. v. Lewis that the federal Arbitration Act requires enforcement of contracts requiring individual arbitration of disputes between employees and employers to the exclusion of class litigation or arbitration. Dissenting for herself and three colleagues, Justice Ginsburg complained that where the injury to each employee is “small, scarcely of a size warranting the expense of seeking redress alone,” relief may only realistically be obtained by “concerted action” of the sort forbidden by arbitration agreements that workers must sign if they wish to be employed. In other words, just as Chief Justice Roberts and Justice Kennedy worried that the Solicitor General’s proposed alternative remedy in Upper Skagit was inadequate in practice, so four justices in Epic Systems—but notably not Roberts or Kennedy—worried that the remedy of individual arbitration would be inadequate in practice.

Is it logically impossible to reconcile the Roberts Upper Skagit concurrence and the majority opinion in Epic Systems? No. That said, however, there is at least an eyebrow-raising tension. The Chief Justice deserves plaudits for noting how a too-broad conception of sovereign immunity can deny plaintiffs their day in court when suing an Indian tribe. One can only hope that in future cases he, Justice Kennedy, and the rest of the Court will also recognize and thus act to limit the capacity of other doctrines to impede access to justice.