Appeal from Superior Court, Grays Harbor County. 92-2-00049-7. Honorable Gordon L. Godfrey, Judge.
Authored by Charles Z. Smith. Concurring: Barbara Durham, James M. Dolliver, Richard P. Guy, Charles W. Johnson, Barbara A. Madsen, Gerry L. Alexander, Philip A. Talmadge, Richard B. Sanders.
The opinion of the court was delivered by: Smith
SMITH, J. The Quinault Indian Nation appeals a decision by the Court of Appeals, Division Two, which affirmed summary judgment by the Grays Harbor County Superior Court in favor of Anderson and Middleton Lumber Company in a partition and quiet title action involving eighty acres of property located within the borders of the Quinault Indian Reservation. We affirm.
The sole question presented in this case is whether the Grays Harbor County Superior Court retained jurisdiction over an action to partition and quiet title to fee-patented lands located within the Quinault Indian Reservation filed by Anderson and Middleton Lumber Company against ten individual owners after the Quinault Indian Nation acquired the interests of the individual owners and was substituted as defendant.
Respondent Anderson and Middleton Lumber Company (A&M) filed suit on January 15, 1992 in Grays Harbor County Superior Court to partition and quiet title to an 80-acre parcel of property located within the borders of the Quinault Indian Reservation. On the same day it filed and recorded a lis pendens to provide record notice of the action. A&M owns, in fee simple, an undivided five-sixths interest in the surface estate and an undivided one-half interest in the mineral estate of the property. At the time suit was filed, the remaining one-sixth interest in the surface estate and one-half interest in the mineral estate were owned by ten individuals as tenants-in-common with A&M. The United States holds in trust for two of the ten individuals two separate one-ninth interests in the mineral estate. The complaint filed by A&M named the ten individuals as defendants, but did not name the United States as a party. All named defendants were properly served.
The property in question was formerly tribal land held in trust by the United States with federal restrictions on alienation. It acquired its fee simple status in 1958 when the United States issued a "fee patent" conveying ownership to the heirs of one Elliot Peterson. The "fee patent" was issued under the Indian General Allotment Act of 1887 (GAA) and removed all restrictions on conveyance or encumbrance of the property. A&M began purchasing interests in the property in 1965 and by 1988 had acquired its present ownership share. That ownership share, along with the fractional interest owned by the ten individuals at the time of A&M's partition action, are not in dispute in this appeal.
On or about February 24, 1992, more than one month after the lawsuit was filed, the Quinault Indian Nation (Nation) acquired by statutory warranty deeds from the ten individuals their undivided one-sixth fee interest in the surface estate of the property. The statutory warranty deeds transferring title of the surface estate to the Nation stated specifically that the transfer to the Nation was subject to the pending suit filed by A&M and the lis pendens. The Nation concedes it had actual notice of the lawsuit when it purchased its interest in the surface estate of the property.
After transferring their interest to the Nation, the ten former owners moved for their dismissal as defendants and substitution of the Quinault Nation as defendant in the lawsuit. The trial court, the Honorable Gordon Godfrey, granted the motion. It also ordered A&M to serve a copy of the order on the Nation. The Nation then filed a notice of special appearance to contest, among other things, the court's assumption of jurisdiction.
A&M then filed a motion for summary judgment. The Nation filed a motion to dismiss and a response to the motion for summary judgment, arguing that the court did not have personal or subject matter jurisdiction and that A&M had not joined the United States as an indispensable party. The trial court then granted the Nation's motion, concluding that the Nation enjoyed protection from suit under the doctrine of sovereign immunity. It issued an order dismissing the Nation as defendant and reinstating the original defendants under CR 60(b).
But on a motion for reconsideration, the trial court reversed itself and granted A&M's motion for summary judgment and ordered the surface estate of the property partitioned under RCW 7.52 et seq. The court ruled it had in rem jurisdiction over the property and personal jurisdiction over the Nation because the Nation had waived its immunity "by implication and action." It also ruled the United States was not an indispensable party to the action because the suit was to partition and quiet title to only the surface estate and not to the mineral estate.
The Nation appealed the ruling of the Superior Court. The Court of Appeals, Division Two, affirmed, holding that the trial court did have proper jurisdiction to decide the case. *fn1 Without addressing the issue of waiver, the court concluded the trial court had personal jurisdiction over the Nation, reasoning that once jurisdiction properly attached, it continued after substitution of parties. The court also agreed with the trial court that because A&M's suit was to partition and quiet title to the surface estate of the property, and not to the ...