California’s First District Court of Appeal held Tuesday that a quiet title action to establish a public easement for coastal access on property owned by a Native American tribe can’t go forward, concluding that the action is barred by the tribe’s sovereign immunity.
“Congress has not abrogated tribal immunity for a suit to establish a public easement,” the court held, noting that its deference to Congress is consistent with decades of U.S. Supreme Court precedent in cases involving land acquisition and federal tribal policy.
Native American tribes are “separate sovereigns pre-existing the Constitution” and possess the common-law immunity from suit traditionally enjoyed by sovereign powers. (Michigan v. Bay Mills Indian Cmty. (2014) 572 U.S. 782, 788.) In short, the First District observed, “tribal immunity is the rule, subject only to two exceptions: when a tribe has waived its immunity or Congress has authorized the suit.”
Cher-Ae Heights Indian Community of the Trinidad Rancheria, a federally recognized tribe, purchased the coastal property at issue in this case. The tribe has applied to the federal Bureau of Indian Affairs to take the property into trust for the tribe’s benefit. Once the land is placed in trust, the federal government would hold title to it for the benefit of the tribe, and the United States is immune to quiet title actions over tribal trust land.
The plaintiffs, who use the property to access the beach for recreational purposes, claim the property’s prior owner dedicated a portion of it to public use. Their complaint sought to quiet title to a public easement to drive to and park on the property. They didn’t allege that the tribe interfered with their coastal access, but filed the complaint out of an “abundance of caution” in case the tribe decides to do so in the future.
Although tribes are generally immune to suit absent a waiver or congressional action, the plaintiffs argued that the First District should recognize an existing common law exception to sovereign immunity. They claimed that at common law, sovereigns like states and foreign governments weren’t immune to property disputes under the “immovable property” exception.
The First District rejected that contention, affirming the trial court’s dismissal of the complaint, and held that it sees no reason to depart from the decades-long practice of deferring to Congress on the issue.
It added that congressional deference is warranted “because supporting tribal land acquisition is a key feature of modern federal tribal policy, which Congress adopted after its prior policy divested tribes of millions of acres of land” — referring to late 19th century federal laws like the Dawes Act, which allowed the federal government to break up tribal lands without the tribes’ consent.
Tribal land acquisition, the court held, advances Congress’s goals of tribal self-sufficiency and economic development. “By authorizing the federal government to acquire land outside of existing reservations in trust for the benefit of a tribe, the federal scheme implicitly recognizes that tribes may acquire land for sovereign purposes beyond the borders of a reservation,” the court reasoned.
The court concluded by writing that as property disputes go, this case is “something of a non-event,” calling the plaintiffs’ concern “speculative.”
J. Bryce Kenny, who represented the plaintiffs, said he and his clients plan to appeal the case to the California Supreme Court. He added that he believes the case has good potential for review by the U.S. Supreme Court, noting that the question of whether the immovable property exception applies to tribes appears to be a matter of first impression.
Timothy Seward, who represented the tribe, said in an email that the decision “adheres to longstanding U.S. Supreme Court precedent on tribal sovereign immunity and protects the ability of federally recognized tribes to exercise their rights to acquire lands pursuant to federal law.”
“The Cher-Ae Heights Indian Community holds the land in question in its sovereign capacity, and there is no basis in controlling federal law to extend the immovable property exception to the Tribe,” Seward said.
The case is Self v. Cher-Ae Heights Indian Community of the Trinidad Rancheria, case number A158632, in the First District Court of Appeal for the state of California.
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