SHARLINE LUNDGREN and RAY LUNDGREN, wife and husband, Respondents,
UPPER SKAGIT INDIAN TRIBE, Appellant.
case involves the relationship between in rem jurisdiction,
Superior Court Civil Rule (CR) 19, and sovereign immunity.
The issue is whether the Upper Skagit Indian Tribe's
(Tribe) assertion of sovereign immunity requires dismissal of
an in rem adverse possession action to quiet title to a
disputed strip of land on the boundary of property purchased
by the Tribe. The superior court concluded that because it
had in rem jurisdiction, it could determine ownership of the
land without the Tribe's participation. An inquiry under
CR 19, as required by our cases, involves a merit-based
determination that some interest will be adversely affected
in the litigation. Where no interest is found to exist,
especially in an in rem proceeding, nonjoinder presents no
jurisdictional barriers. We find that the Tribe does not have
an interest in the disputed property; therefore, the
Tribe's sovereign immunity is no barrier here to this in
rem proceeding. The trial court properly denied the
Tribe's motion to dismiss and granted summary judgment to
the property owner. We affirm.
and Procedural History
and Ray Lundgren and the Tribe own adjacent properties in
Skagit County, Washington. A barbed wire fence runs along the
southern portion of the Tribe's land. The fence spans the
width of the Tribe's lot, with a gate approximately
halfway along the fence line. The land between the fence and
the southern boundary of the Tribe's lot is the land at
issue in this case. For ease of reference, we refer to this
land as the "disputed property."
Lundgrens bought the 10 acres of land immediately south of
the disputed property in 1981. The property had been in their
extended family since 1947, when Sharline Lundgren's
grandmother first bought the property. The Lundgrens
established that the fence on the disputed property has been
in the same location since at least 1947, and that for as
long as their property has been in the family, they have
treated the fence as the boundary line. Since 1947, the
Lundgren family exclusively has harvested timber, cleared
brush, kept the fence clear of fallen trees, and treated the
disputed property on the southern side of the fence as their
Tribe's land had been previously owned by Annabell Brown
for many decades. In 1984, she quitclaimed a 1/4 undivided
interest in the property to her son David Brown. Upon her
death, the rest of the property passed to her other children,
Paul Brown, Vivian Jennings, and Barbara Carrell. In 2013 the
Tribe bought the property from Paul Brown, Jennings, and
Carrell, receiving a statutory warranty deed. The Tribe was
evidently unaware of the fence when it purchased the
property. The Tribe's surveyors alerted the Tribe to the
presence of the fence in October 2013 while surveying the
property "in an effort to take the land into
Trust." Clerk's Papers (CP) at 115.
September 2014, the Tribe notified the Lundgrens in a letter
that the fence did not represent the boundary and that they
were asserting ownership rights to the entire property deeded
to them in 2013. The Lundgrens initiated this lawsuit in
March 2015. They asked the court to quiet title in the
disputed property to them and sought injunctive relief. The
Lundgrens moved for summary judgment, arguing they acquired
title to the disputed property by adverse possession or by
mutual recognition and acquiescence long before the Tribe
bought the land. The Tribe moved to dismiss under CR 12(b)(1)
for a lack of subject matter jurisdiction based on the
Tribe's sovereign immunity and under CR 12(b)(7),
which requires joinder of a necessary and indispensable party
under CR 19.
trial court, Judge Dave Needy denied the Tribe's motion
to dismiss. The Tribe moved for direct discretionary review
of this ruling. Judge Susan Cook later granted the
Lundgrens' motion for summary judgment, holding the
Lundgrens' "claims of title ownership by adverse
possession and mutual recognition and acquiescence is
established. Legal title to the disputed property is owned by
Plaintiffs." CP at 159. Judge Cook noted that the fence
was not hidden. Both parties recognized the fence as the
boundary line and that it had clearly been on the property
for much longer than the necessary 10 years. She noted that
the Lundgrens' labor on the property was established by
numerous witness declarations. Importantly, she stated that
"this is as clear as a case as I've had on the
bench." Verbatim Report of Proceedings (VRP) (May 7,
2015) at 20. The Tribe amended its motion for discretionary
review to seek review of both Judge Needy's and Judge
Cook's orders. We accepted direct review. See
Order, Lundgren v. Upper Skagit Indian Tribe, No.
91622-5 (Wash. Feb. 10, 2016).
superior court concluded that because it had in rem
jurisdiction, it could determine ownership of the land
without the Tribe's participation. See VRP (Apr.
24, 2015) at 24. While it recognized it could not join the
Tribe against its will, the court found the Tribe's
attempt to use CR 19 to be "contrary to common sense,
fairness, and due process for all involved." VRP (Apr.
24, 2015) at 32.
Tribe argues that dismissal is required for two reasons.
First, it argues the superior court lacks jurisdiction
because the Tribe has sovereign immunity from suit, which
neither the Tribe nor Congress has waived for quiet title
actions. See Appellant's Opening Br. at 10. The
Tribe differentiates between an in rem claim and in rem
jurisdiction, asserting that "jurisdiction in this case
can only lie if the Court has both subject matter
jurisdiction and personal jurisdiction over the claims and
parties. Thus, the mere fact of an in rem claim does
not affect or somehow avoid threshold jurisdictional
questions such as sovereign immunity." Appellant's
Reply Br. at 5. Second, it argues that even if the lower
court had in rem jurisdiction to hear the case, CR 19
requires dismissal because the Tribe is a necessary and
indispensable party that cannot be joined due to sovereign
immunity. See Appellant's Opening Br. at 24-30;
Appellant's Reply Br. at 1.
Lundgrens acknowledge that the Tribe has sovereign immunity.
Resp'ts' Br. at 6 ("The Lundgrens admit that the
Tribe is entitled to sovereign immunity."). They argue
that because the court has in rem jurisdiction over the quiet
title action, personal jurisdiction over the Tribe is
unnecessary and its immunity is irrelevant. They also assert
that because they obtained title by adverse possession before
the Tribe purchased the property, ¶t]he Tribe's
sovereign immunity does not deprive the court of jurisdiction
over land the Tribe never owned." Resp'ts' Br.
at 23. With regard to CR 19, the Lundgrens argue,
"[b]ecause the Court has in rem jurisdiction,
sovereign immunity is not a bar to jurisdiction, the Tribe is
not an indispensable party, and Civil Rule 19 does not
prevent the case from proceeding." Resp'ts' Br.
courts in Washington have jurisdiction to exercise in rem
jurisdiction to settle disputes over real
property. Quiet title actions are proceedings in
rem. Phillips v. Tompson, 73 Wash. 78, 82, 131 P.
461 (1913); see also 14 Karl B. Tegland, Washington
Practice: Civil Procedure § 5:1, at 155 (2d ed. 2009).
In such proceedings, the court has jurisdiction over the
property itself. See Tegland, supra.
Personal jurisdiction over the landowner is not required.
In re Acquisition of Land & Other Prop, by City of
Seattle, 56 Wn.2d 541, 544-45, 353 P.2d 955 (1960);
see also In re Condemnation Petition City of
Lynnwood, 118 Wn.App. 674, 679 & n.2, 77 P.3d 378
(2003) (noting that quiet title actions are proceedings in
which the court can exercise in rem jurisdiction, and that
"[c]ourts may have jurisdiction to enter judgment with
respect to property .. . located within the boundaries of the
state, even if personal jurisdiction has not been obtained
over the persons affected by the judgment").
exercising in rem jurisdiction is not necessarily deprived of
its jurisdiction by a tribe's assertion of sovereign
immunity. The United States Supreme Court has recognized this
principle. In County of Yakima v. Confederated
Tribes & Bands of Yakima Indian Nation, 502 U.S.
251, 255, 112 S.Ct. 683, 116 L.Ed.2d 687 (1992), the county
sought to foreclose property within the Yakama Indian
Reservation for failure to pay ad valorum taxes. The Yakama
Nation argued that state jurisdiction could not be asserted
over fee-patented reservation land. The Supreme Court held
that the Indian General Allotment Act allowed Yakima County
to impose ad valorum taxes on reservation land. 25 U.S.C.
§§ 334-381. The Court reached that conclusion by
characterizing the county's assertion of jurisdiction
over the land as in rem, rather than an assertion of in
personam jurisdiction over the Yakama Nation. In other words,
the Court had jurisdiction to tax on the basis of
alienability of the allotted lands, and not on the basis of
jurisdiction over tribal owners. See Anderson &
Middleton Lumber Co. v. Quinault Indian Nation, 130
Wn.2d 862, 869-72, 929 P.2d 379 (1996) (describing County
of Yakima, 502 U.S. 251).
court has similarly upheld a superior court's assertion
of in rem jurisdiction over tribally owned fee-patented land.
In Anderson, this court held that the Grays Harbor
County Superior Court had in rem jurisdiction over an action
to partition and quiet title to fee-patented lands within the
Quinault Indian Reservation. In that case, the Quinault
Indian Nation purchased a 1/6 interest in the surface estate
of fee-patented land subject to a pending suit to partition
and to a lis pendens. Relying on County of Yakima,
and noting that an action to partition and quiet title is
"a much less intrusive assertion of state jurisdiction
over reservation fee patented land" than taxing and
foreclosing fee lands, the court concluded the "Superior
Court had proper in rem jurisdiction over [the] suit to quiet
title and partition alienable and encumberable fee patented
property situated within the Quinault Indian Reservation.. ..
An action for partition of real property is a proceeding in
rem." Anderson, 130 Wn.2d at 872, 873.
Furthermore, it was
not disputed that the trial court had proper jurisdiction
over this action when it was filed. The subsequent sale of an
interest in the property to an entity enjoying sovereign
immunity (Quinault Nation) is of no consequence in this case
because the trial court's assertion of jurisdiction is
not over the entity in personam, but over the property or the
"res" in rem.
Anderson, 130 Wn.2d at 873. The court was exercising
jurisdiction over the property, not over the Quinault Indian
Nation, and thus the land was "subject to a state court
in rem action which does nothing more than divide it among
its legal owners according to their relative interests."
Anderson, 130 Wn.2d at 873. Because the court
determined there was in rem jurisdiction, it did not need to
address sovereign immunity.
on Anderson, Division One of the Court of Appeals
held that the court could exercise in rem jurisdiction in a
quiet title action in which the Stillaguamish Tribe of
Indians purchased land with notice of a pending quiet title
action. Smale v. Noretep, 150 Wn.App. 476, 208 P.3d
1180 (2009). In Smale, the Smales sought to quiet
title to property they claimed to have acquired through
adverse possession against Noretep, the non-Indian original
owner. After the Smales sued, Noretep sold the property by
statutory warranty deed to the Stillaguamish Tribe. The deed
noted the pending quiet title action, and the Smales added
the Stillaguamish Tribe as a defendant. The Stillaguamish
Tribe argued that sovereign immunity barred the action. The
Because courts exercise in rem jurisdiction over property
subject to quiet title actions, our Supreme Court has held
that transferring the disputed property to a tribal sovereign
does not bar the continued exercise of subject matter
jurisdiction over the property. Accordingly, we hold that the
superior court's continuing jurisdiction over the land
claimed by the Smales for the purposes of determining
ownership does not offend the Tribe's sovereignty.
Smale, 150 Wn.App. at 477.
court noted, "The quiet title action in
Anderson is similar to the quiet title action here
in two crucial ways: both are proceedings in rem to determine
rights in the property at issue and neither has the potential
to deprive any party of land they rightfully own."
Smale, 150 Wn.App. at 483. The Smales alleged they
acquired title to the land via adverse possession
before the original owner sold to the Stillaguamish
Tribe. If this were true, the Stillaguamish Tribe never
possessed the land and thus never had land to lose. Nor were
the Smales attempting to adversely possess against a
sovereign. The court concluded that, as in Anderson,
the doctrine of sovereign immunity did not apply and did not
bar the quiet title action. County of Yakima,
Anderson, and Smale establish the principle
that our superior courts have subject matter jurisdiction
over in rem proceedings in certain situations where claims of
sovereign immunity are asserted.
we turn to whether the Tribe must be joined to allow the
action to proceed under CR 19. The Tribe asserts that even if
the trial court had in rem jurisdiction to hear the case, CR
19 requires dismissal because the Tribe is a necessary and
indispensable party that cannot be joined due to sovereign
immunity. Appellant's Opening Br. at 24. We disagree. In
reaching our decision, we highlight the importance of CR 19
as a prudential standard that asks not whether a court has
the power to decide a case, but rather whether it
19(a) involves a three-step analysis. Auto. United Trades
Org. v. State,175 Wn.2d 214, 222-23, 285 P.3d 52
(2012). First, the court determines whether absent persons
are "necessary" for a just adjudication. If the
absentee parties are "necessary, " the court
determines whether it is feasible to order the absentee's
joinder. Joinder is generally not feasible when tribal
sovereign immunity is asserted. Auto. United Trades
Org., 175 Wn.2d at 222 (citing EqualEmp'tOpportunity Comm 'n v. Peabody W. Coal Co., 400
F.3d 774, 780-81 (9th Cir. 2005)). "If joining a
necessary party is not feasible, the court then considers
whether, 'in equity and good conscience, ' the action
should still proceed without the absentees under CR
19(b)." Auto. United Trades Org., 175 Wn.2d at
222. We have recognized that "[d]ismissal under CR
12(b)(7) for failure to join an indispensable party is a
'drastic remedy' and should be ordered only when the
defect cannot be cured and significant prejudice to the
absentees will result." Auto. United Trades