Self v. Cher-AE Heights Indian Community etc.

Filed 1/26/21
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

JASON SELF et al., A158632
Plaintiffs and Appellants,
v.
CHER-AE HEIGHTS INDIAN (Humboldt County Superior Court
COMMUNITY OF THE TRINIDAD No. DR190353)
RANCHERIA,
Defendant and Respondent.

The question in this case is whether sovereign immunity bars a
quiet title action to establish a public easement for coastal access on
property owned by an Indian tribe. We hold that the tribe’s sovereign
immunity bars the action. Congress has not abrogated tribal immunity
for a suit to establish a public easement. The plaintiffs fail to persuade
us that a common law exception to sovereign immunity for “immovable
property” applies here. Consistent with decades of Supreme Court
precedent, we defer to Congress to decide whether to impose such a
limit, particularly given the importance of land acquisition to federal
tribal policy. We affirm the trial court’s dismissal of the suit.

1
 BACKGROUND
A.
As “ ‘separate sovereigns pre-existing the Constitution,’ ” Indian
tribes possess the “ ‘common-law immunity from suit traditionally
enjoyed by sovereign powers.’ ” (Michigan v. Bay Mills Indian Cmty.
(2014) 572 U.S. 782, 788 (Bay Mills).) Tribes are domestic dependent
nations subject to Congress’s plenary authority. (Ibid.) Tribal
immunity is part and parcel of Indian sovereignty and self-governance.
(Ibid.) It protects tribes from the financial burdens of defending
against suits, encourages economic development and self-sufficiency,
and furthers tribal self-governance. (People v. Miami Nation
Enterprises (2016) 2 Cal.5th 222, 235 (Miami Nation).)
Because it is a matter of federal law, tribal immunity is “not
subject to diminution by the States.” (Bay Mills, supra, 572 U.S. at p
789.) Tribes enjoy immunity from suit regardless of whether their
activities are commercial in nature or whether their activities take
place on a reservation. (Id. at p. 790; Kiowa Tribe of Oklahoma v.
Manufacturing Technologies, Inc. (1998) 523 U.S. 751, 758-760
(Kiowa).) The United States Supreme Court has “time and again . . .
dismissed any suit against a tribe absent congressional authorization
(or a waiver).” (Bay Mills, supra, 572 U.S. at p. 789.) In so doing, the
court has deferred to Congress to determine the nature and limits of
tribal immunity because it is Congress’s job, not the courts’, to weigh
competing policies and create exceptions to tribal immunity. (Id. at pp.
800-801.)

2
 In short, tribal immunity is the rule, subject only to two
exceptions: when a tribe has waived its immunity or Congress has
authorized the suit. (Bay Mills, supra, 572 U.S. at pp. 789-791.)
B.
Defendant Cher-Ae Heights Indian Community of the Trinidad
Rancheria (“Tribe”) is a federally recognized Indian tribe. (See 84
Fed.Reg. 1200-01, 1201 (Feb. 1, 2019).) It purchased the coastal
property at issue in fee simple absolute. The Tribe has applied to the
federal Bureau of Indian Affairs (“Bureau”) to take the property into
trust for the benefit of the Tribe. (See 25 U.S.C. § 5108.) Some
background on the administrative process is helpful to understanding
the parties’ arguments.1
As part of the trust acquisition process, federal law requires a
review of the Tribe’s title and sets forth a process for resolving title
issues. (See 25 C.F.R. § 151.13.) If the federal government approves
the Tribe’s trust application, interested parties may appeal that
decision. (See 25 C.F.R. § 151.12(d); see also, e.g., Crest-Dehesa-Granite
Hills-Harbison Canyon Subregional Planning Group v. Acting Pacific

1 We take judicial notice of facts related to the process appearing
in three documents attached to the Tribe’s request to the trial court for
judicial notice: (1) A December 21, 2019, letter from the Acting
Regional Director of the Bureau to the Coastal Commission indicating
that the proposed trust acquisition is consistent with the California
Coastal Act; (2) a March 11, 2019, letter from the Coastal Commission
to the Regional Director of the Bureau concurring with the Bureau’s
consistency determination; and (3) the Coastal Commission’s Adopted
Staff Report concerning the Bureau’s consistency determination. (See
Evid. Code, § 452, subd. (c); see also Banning Ranch Conservancy v.
City of Newport Beach (2012) 211 Cal.App.4th 1209, 1225, fn. 6 [taking
judicial notice of Coastal Commission determination and staff report].)
3
Regional Director, Bureau of Indian Affairs (IBIA 2015) 61 IBIA 208,
214-215 [remanding decision to take tribal property into trust due to
failure to address adjacent property owners’ concerns regarding
easement rights].) Federal law also includes a mechanism for
obtaining a right of way over tribal trust lands, with the consent of the
tribe. (25 U.S.C. §§ 323, 324; 25 C.F.R. § 169.101.)
Because the Tribe’s proposed trust acquisition involves coastal
property, the federal Coastal Zone Management Act imposes additional
requirements. Each federal agency whose activity affects a coastal
zone must certify that the activity is consistent to the maximum extent
practicable with the state’s coastal management policies. (See 16
U.S.C. § 1456(c); see also 15 C.F.R. § 930.36.) The state may concur or
object to the federal consistency determination as part of a public
process. (16 U.S.C. § 1456(c)(3)(A); 15 C.F.R. §§ 930.35, 930.39, 930.41,
930.42, 930.43.)
Here, the Bureau determined the Tribe’s proposal is consistent
with state coastal policies, including public access requirements in the
state Coastal Act. (See Pub. Resources Code, § 30210 [“maximum
access … and recreational opportunities shall be provided for all the
people consistent with public safety needs and the need to protect
public rights, rights of private property owners, and natural resource
areas from overuse”]; see also, e.g., Pub. Resources Code, §§ 30211,
30212, 30214.)
Our Coastal Commission—the agency primarily responsible for
implementing the Coastal Act (see Pub. Resources Code, § 30330)—
concurred with the Bureau’s determination. After securing
commitments from the Tribe to protect coastal access and coordinate

4
with the state on future development projects, the Commission
concluded that the Tribe’s proposal “would not interfere with the
public’s right to access the sea” and would be consistent with public
access policies.
In the future, if the Tribe violates the state’s coastal access
policies, the Coastal Commission may request that the Bureau take
appropriate remedial action. (See 15 C.F.R. § 930.45(b)(1); see also 16
U.S.C. § 1456(c)(3)(A) [requiring new consistency review for future
development projects that require federal permits].)
C.
According to the complaint, plaintiff Jason Self uses the Tribe’s
coastal property to access the beach for recreational purposes and for
his kayaking business. Plaintiff Thomas Lindquist also uses the
property to access the beach for recreation. They allege that the prior
owner of the property dedicated a portion of it to public use, either
expressly or impliedly, between 1967 and 1972. (See Civ. Code, § 1009,
subd. (b) [limiting implied dedications of public easements to those
established prior to March 4, 1972].) The complaint seeks to quiet title
to a public easement for vehicle access and parking on the property.
Self and Lindquist do not allege that the Tribe has interfered
with their coastal access or that it plans to do so. They worry that the
Tribe might do so in the future, and they filed this case out of “an
abundance of caution.” Once the land is placed in trust, the federal
government would hold title to it for the benefit of the Tribe. (See 25
U.S.C. § 5108.) The United States is immune to actions to quiet title to
Indian trust land. (28 U.S.C. § 2409a(a).)

5
 In the trial court, the Tribe entered a special appearance and,
citing sovereign immunity, moved to quash service of process and to
dismiss the complaint for lack of subject matter jurisdiction. The trial
court granted the motion and dismissed the case with prejudice.2
DISCUSSION
A.
It is settled that an Indian tribe is immune to suit in the absence
of waiver or congressional abrogation of the tribe’s immunity. (Bay
Mills, supra, 572 U.S. at pp. 788-790; Kiowa, supra, 523 U.S. at p. 754.)
Self and Lindquist do not argue either exception applies here.
Ordinarily, then, we must affirm the trial court’s dismissal. (Bay Mills,
supra, 572 U.S. at p. 791 (“Unless Congress has authorized Michigan’s
suit, our precedents demand that it be dismissed.”)
Self and Lindquist argue that we should recognize an existing
common law exception to sovereign immunity. They contend that, at
common law, sovereigns such as states and foreign governments were
not immune to property disputes, under the immovable property
exception. The United States Supreme Court has never applied such
an exception to a tribe and recently declined to decide the question in

2 Self and Lindquist assert that the trial court abused its
discretion in denying judicial notice of documents relating to gambling
revenues of Indian tribes. We find no error in the court’s conclusion
that the materials are irrelevant. We deny as irrelevant Self and
Lindquist’s request that we take judicial notice of the same documents,
as well as the Tribe’s request for judicial notice of a Petition for Writ of
Administrative Mandamus in Humboldt County Superior Court Case
No. CV190327 and a 1997 report by the Advisory Council on California
Indian Policy.
6
Upper Skagit Indian Tribe v. Lundgren (2018) __ U.S. __, __ [138 S.Ct.
1649, 1652] (Upper Skagit).)
We review the immunity issue de novo. (Miami Nation, supra, 2
Cal.5th at p. 250.)
B.
Self and Lindquist are correct that states and foreign sovereigns
are not immune to suits regarding real property located outside of their
territorial boundaries. We are not persuaded, however, that a common
law exception extends to tribes or that we should depart from the
standard practice of deferring to Congress to determine limits on tribal
immunity.
1.
In State of Georgia v. City of Chattanooga (1924) 264 U.S. 472,
479-480 (Chattanooga), the Supreme Court held that when a state
purchases real property in another state, it is not immune to suit over
rights to the property. Georgia had purchased land for a railroad yard
in Chattanooga, Tennessee. (Id. at p. 478.) It sued to enjoin the city
from condemning a right of way though the property, arguing that it
had never consented to suit in Tennessee courts. (Id. at p. 479.) The
Supreme Court held Georgia’s foray into the Tennessee railroad
business was a private undertaking, not a sovereign one: “Having
acquired land in another State for the purpose of using it in a private
capacity, Georgia can claim no sovereign immunity or privilege in
respect to its expropriation.” (Id. at pp. 479-480.) “Land acquired by
one State in another State is held subject to the laws of the latter and
to all the incidents of private ownership.” (Id. at p. 480.)

7
 Simply because this rule applies to states, however, does not
mean it also applies to tribes. The Supreme Court has “often noted . . .
that the immunity possessed by Indian tribes is not coextensive with
that of the States.” (Kiowa, supra, 523 U.S. at p. 756.) Self and
Lindquist acknowledge that, unlike tribal immunity, state sovereign
immunity turns on the nature of the constitutional compact as
informed by the Eleventh Amendment. (See Franchise Tax Board of
Cal. v. Hyatt (2019) __ U.S. __, __ [139 S.Ct. 1485, 1497-1498].) Tribes,
who were not parties to that compact, did not surrender any aspect of
their sovereignty as part of the constitutional plan. (See Bay
Mills, supra, 572 U.S. at pp. 789-790.) Tribes retain a “special brand of
sovereignty,” and both its nature and extent “rests in the hands of
Congress.” (Id., at p. 800.)
Indeed, in contrast to Chattanooga, the Supreme Court has not
limited tribal immunity to traditional sovereign activities, as opposed
to private commercial ventures. In Oklahoma Tax Commission v.
Citizen Band of Potawatomi Indian Tribe of Oklahoma (1991) 498 U.S.
505, 510 (Potawatomi), the Supreme Court rejected an argument that a
tribe’s off-reservation cigarette sales were too removed from the tribe’s
sovereign interests to be covered by tribal immunity. Instead the court
deferred to Congress to make those kinds of judgments, pointing to
Congress’s policy objectives of promoting tribal self-governance, self-
sufficiency, and economic development. (Ibid.) Land acquisition,
moreover, has a far stronger nexus to tribes’ sovereign interests than
cigarette sales. As we explain below, after Indian tribes lost millions of
acres of reservation land due to calamitous federal policies enacted in

8
the late 19th century, Congress made land acquisition a central feature
of its tribal policy.
Upper Skagit does not help Self and Lindquist. In his concurring
opinion, Chief Justice Roberts stated that the immovable property rule
applies to states (citing Chattanooga) but reserved the question of
whether it applies to tribes. (Upper Skagit, supra, __ U.S. at pp. __
[138 S.Ct. at pp. 1655-1656] (conc. opn. of Roberts, C.J.)). Justice
Thomas would have applied it to tribes but only found support for that
position from Justice Alito. (Id. at pp. __ [138 S.Ct. at pp. 1661-1663]
(dis. opn. of Thomas, J.).) The majority opinion does not reach the
question. (Id. at pp. 1653-1654.)
2.
Self and Lindquist fare no better with foreign sovereign
immunity. They note that Chief Justice Marshall’s opinion in The
Schooner Exchange v. McFaddon (1812) 11 U.S. 116 (Schooner
Exchange) articulated a common law immovable property exception for
foreign sovereigns, albeit in dicta. (Id. at p. 145 [“A prince, by
acquiring private property in a foreign country, may possibly be
considered as subjecting that property to the territorial jurisdiction; he
may be considered as so far laying down the prince, and assuming the
character of a private individual.”].) They also point to a statute: the
Foreign Sovereign Immunities Act includes an exception for immovable
property (28 U.S.C. 1605(a)(4)), which was intended to codify “an
exception to sovereign immunity recognized by international practice.”
(Permanent Mission of India to the United Nations v. City of New York
(2007) 551 U.S. 193, 200.)

9
 Neither the dicta in Schooner Exchange nor the Foreign
Sovereign Immunities Act establishes that a common law exception
applies to foreign sovereigns. Schooner Exchange concerned a French
warship, not real property; the court held that United States courts
lack jurisdiction over the warship. (Schooner Exchange, supra, 11 U.S.
at p. 147.) Thereafter, courts interpreted Schooner Exchange to
establish “virtually absolute immunity” for foreign sovereigns.
(Verlinden B.V. v. Central Bank of Nigeria (1983) 461 U.S. 480, 486
(Verlinden B.V.).) For the next 164 years, foreign sovereigns were
generally immune to suit. (Ibid.) This was a matter of comity, rather
than a constitutional restriction, and courts deferred to the executive
branch (specifically, the State Department) when deciding whether to
assert jurisdiction over a foreign sovereign. (Id. at pp. 486-487.) At
least some of these cases involved real property owned by a foreign
sovereign. (E.g., Knocklong Corp. v. Kingdom of Afghanistan (Nassau
Cty. Ct. 1957) 167 N.Y.S.2d 285, 286-287 [granting motion to dismiss
suit based on sovereign immunity of the Kingdom of Afghanistan, as
“ ‘suggest[ed]’ ” by amicus curiae State Department, in an action
challenging title to real property].) When this case-by-case practice
proved problematic, Congress passed the Foreign Sovereign
Immunities Act in 1976. (Verlinden B.V., supra, 461 U.S. at pp. 487-
488.) In short, the common law does not seem to have driven foreign
sovereign immunity. Rather, the courts deferred to the political
branches—first the executive branch and then Congress after the
Foreign Sovereign Immunities Act.
Even if there were a common law exception to foreign sovereign
immunity, Self and Lindquist do not explain why we should extend it to

10
tribes. Tribes are not foreign sovereigns; “the relation of the Indians to
the United States is marked by peculiar and cardinal distinctions
which exist nowhere else.” (Cherokee Nation v. Georgia (1831) 30 U.S.
1, 16; see also id. at p. 18 [noting that Article III, section 8 of the
United States Constitution refers separately to “foreign nations” and
“the Indian tribes”].) The Supreme Court has rejected the notion that
tribal sovereign immunity must be congruent with foreign sovereign
immunity. (Bay Mills, supra, 572 U.S. at pp. 797-798.) Tribes enjoy
immunity for commercial activities (Kiowa, supra, 523 U.S. at p. 758),
notwithstanding the fact that Congress has denied it to foreign
sovereigns. (28 U.S.C. § 1605(a)(2).) In fact, the Supreme Court has
pointed to the Foreign Sovereign Immunities Act as an example of its
deference to Congress on both foreign and tribal immunity: “In both
fields, Congress is in a position to weigh and accommodate the
competing policy concerns and reliance interests.” (Kiowa, supra, 523
U.S. at p. 759.)
3.
Even assuming a common law exception applies to states and
foreign sovereigns, there are at least three additional reasons
counselling us to defer to Congress to decide whether it should apply to
tribes.
a.
Deferring to Congress on tribal immunity has been the Supreme
Court’s standard practice for decades. The court has acknowledged
that it has the authority to limit tribal immunity, but it has pointedly
refused to impose limits, despite its own skepticism about the doctrine’s
merits and somewhat hazy origins. (Kiowa, supra, 523 U.S. at pp. 756-

11
757 [tribal immunity developed “almost by accident” and “with little
analysis”]; id. at pp. 758-759.) Self and Lindquist recycle arguments
that the Court has rejected in other cases: immunity could leave them
with no effective judicial remedy (Potawatomi, supra, 498 U.S. at p.
514); tribal immunity should not be more broad than that of other
sovereigns (see Bay Mills, supra, 572 U.S. at p. 800); tribes should not
enjoy immunity for commercial activities. (E.g., Potawatomi, supra,
498 U.S. at p. 510.) For decades, the Supreme Court has set aside
these and other concerns, treated tribal sovereign immunity as settled
law, and deferred to Congress for the “simple reason[][that] it is
fundamentally Congress’s job, not ours, to determine whether or how to
limit sovereign immunity.” (Bay Mills, supra, 572 U.S. at p. 800.) We
see no reason to depart from this practice.
b.
We should also defer to Congress 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. Deference is particularly appropriate when Congress has
been active in the subject matter at issue. (See Bay Mills, supra, 572
U.S. at pp. 802-803; Kiowa, supra, 523 U.S. at pp. 758-759.)
In the late 19th century, the federal government abandoned its
policy of supporting Indian self-governance and control of Indian lands
and instead adopted a policy “to extinguish tribal sovereignty, erase
reservation boundaries, and force assimilation of Indians into the
society at large.” (County of Yakima v. Confederated Tribes and Bands
of the Yakima Indian Nation (1992) 502 U.S. 251, 253-254 (County of
Yakima).) The Dawes Act of 1887 (24 Stat. 388) – “which empowered

12
the President to allot most tribal lands nationwide without the consent
of the Indian nations involved” (County of Yakima, supra, 502 U.S. at p.
254) and permitted the sale to non-Indians of surplus lands located on
Indian reservations – devastated tribes, aggravated their poverty, and
resulted in 90 million acres of tribal land passing to non-Indians. (Bay
Mills, supra, 572 U.S. at pp. 811-813 (conc. opn. of Sotomayor, J.).)
Congress abruptly ended this approach with the enactment of the
Indian Reorganization Act (48 Stat. 984) in 1934 and returned to the
policy of supporting tribal self-determination and self-governance.
(County of Yakima, supra, 502 U.S. at p. 255.) Given the massive loss
of tribal lands in the preceding decades, Congress authorized the
federal government to restore surplus lands to tribes. (Ibid.) Congress
also authorized the government to acquire land both within and outside
existing reservations “for the purpose of providing land for Indians.”
(48 Stat. 985; see 25 U.S.C. § 5108; County of Yakima, supra, 502 U.S.
at p. 255.) The same provision empowers the federal government to
take land into trust for the benefit of a tribe, as the Tribe has requested
here. (See 25 U.S.C. § 5108.) Federal regulations establish an
administrative process for addressing title concerns when the Bureau
takes land into trust (25 C.F.R. § 151.13) as well as for obtaining
easements over trust lands (25 C.F.R. § 169.101; see also 25 U.S.C. §§
323, 324).
The Indian Reorganization Act advances tribes’ sovereign
interests by helping them restore land they lost. And regardless of
whether a particular tribe lost land, tribal land acquisition generally
advances Congress’s goals of tribal self-sufficiency and economic
development. By authorizing the federal government to acquire land

13
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. (See 25 U.S.C.
§ 5108; 25 C.F.R. § 151.3(a).) This further distinguishes tribal land
acquisition from that of states and foreign sovereigns.
Decades after the enactment of the Indian Reorganization Act,
Congress considered whether sovereign immunity should protect trust
lands. In 1972, Congress waived the federal government’s sovereign
immunity in title disputes over real property under the Quiet Title Act.
(28 U.S.C. § 2409a; see Block v. North Dakota (1983) 461 U.S. 273, 275-
276.) But it retained immunity for property that the government holds
in trust for Indian tribes. (28 U.S.C. § 2409a(a).) The Justice
Department, which proposed the exception for Indian lands, observed
that “Indians . . . have often surrendered claims to vast tracks of land”
and proposed the exclusion because “[t]he Federal Government’s trust
responsibility for Indian lands is the result of solemn obligations
entered into by the United States Government.” (See H.R. Rep. No.
1539, 92d Cong., 2d Sess. (1972), reprinted in 1972 U.S. Code Cong. &
Admin. News, pp. 4547, 4556-67, written testimony from Mitchell
Melich, Solicitor, U.S. Dept. of Interior.) Congress adopted the
exclusion notwithstanding testimony that title disputes arise on Indian
lands just like they do on federal lands covered by the bill’s waiver of
immunity. (Dispute of Titles on Public Lands, Hearings before Sen.
Com. on Interior and Insular Affairs, Subcom. on Public Lands, on Sen.
No. 216, Sen. No. 579, and Sen. No. 721, 92nd Cong., 1st. Sess., at pp.
58-60 (Sept. 30, 1971), testimony of Thomas E. McKnight.)

14
 Congress has also addressed the sovereign immunity of Indian
tribes themselves in connection with tribal land. Just eight months
after the Supreme Court issued its decision in Upper Skagit, supra, __
U.S. __ [138 S.Ct. 1649], Congress reaffirmed its approval of tribal
immunity in the context of a statute that, among other things,
authorizes Indian tribes to grant rights of way over their land for
energy resource development. (Pub.L. No.115-325, Title I, §§ 103(a),
105(d) (Dec. 18, 2018) 132 Stat. 4447, 4454, codified at 25 U.S.C. §
3504(i) [“Nothing in this section waives the sovereign immunity of an
Indian tribe.”])
Further, Congress has abrogated tribal immunity in targeted
circumstances involving disputes over property. For example, the
Indian Depredation Act authorizes suits against tribes that seized or
destroyed property without just cause or provocation. (See Act of Mar.
3, 1891, ch. 538, 26 Stat. 851; see also Hamilton v. United States (1907)
42 Ct.Cl. 282, 287 [dismissing case for lack of jurisdiction because
Indian Depredation Act did not authorize suit where tribe took
claimant’s real property pursuant to tribal law].) A 1958 statute
waives tribal immunity and authorized the Hopi or Navajo Tribes to
“commence or defend” a quiet title action against one another or any
other tribe with an interest in specified tribal lands that had been the
subject of a long-running dispute. (See Act of July 22, 1958, Pub.L. No.
85-547, 72 Stat. 403; Hamilton v. Nakai (9th Cir. 1971) 453 F.2d 152,
158-159 [Indian tribes enjoyed sovereign immunity in quiet title suit
absent waiver of immunity in Pub.L. No. 85-547]; see also Act of
December 22, 1974, Pub.L. No. 93-531, § 8(a), 88 Stat. 1712, 1715
[either the Navajo or Hopi “tribe . . . is . . . hereby authorized to

15
commence or defend . . . an action against the other tribe and any other
tribe . . ., for the purpose of . . . quieting title” to specified lands].)
This history weighs strongly in favor of deferring to Congress to
weigh the relevant policy concerns of an immovable property rule in
light of the government’s solemn obligations to tribes, the importance of
tribal land acquisition in federal policy, and Congress’s practice of
selectively addressing tribal immunity issues in property disputes.
c.
Finally, the facts of this case make it a poor vehicle for extending
the immovable property rule to tribes.
As far as property disputes go, this is something of a non-event.
We do not discount the public’s interest in coastal access. But when
considering adopting a common law rule that would broadly abrogate
tribal immunity in a wide variety of property disputes, it is worth
noting that Self and Lindquist do not claim an ownership interest in
the property. They allege no injury. They are attempting to establish a
public easement for coastal access based on their concern that,
sometime after the federal government takes the property into trust,
the Tribe might interfere with access. The concern is speculative. And,
as this case illustrates, Congress has created a detailed process for
protecting public interests such as coastal access. (See, e.g., 16 U.S.C. §
1456(c).) California worked with the Bureau and the Tribe in that
process. The state secured assurances from the Tribe to preserve
coastal access. It determined that access is adequately protected, and
it has remedies if there are problems in the future.

16
 We have considered Self and Lindquist’s remaining arguments
and find them to be without merit.3
DISPOSITION
The judgment is affirmed.

3We are not persuaded by the Tribe’s argument, embraced by our
colleague, that federal law preempts state quiet title actions. It is not
enough that such actions could complicate the federal trust process.
(See Virginia Uranium, Inc. v. Warren (2019) __ U.S. __, __, 139 S.Ct.
1894, 1901.) The Tribe points to no constitutional text or federal
statute that displaces or conflicts with state law. (Ibid.)
17
 _______________________
BURNS, J.

I concur:

____________________________
SIMONS, ACTING P.J.

A158632

18
Reardon, J., Concurring.
I concur in the judgment and write to outline a narrow, but
important, distinction in my reasoning which reaches the same result
as does the majority. In essence, the question undergirding this
litigation is whether tribal sovereign immunity to litigation, as
originally understood, includes an exception for the litigation of
disputes over title to real (immovable) property or not. My view is that
it does contain such an exception, which Congress may but has not
eliminated. The majority reasons that it does not contain such an
exception, though Congress could but has not added one.1 Nonetheless,
we agree on the importance of the tribal interests involved and the
federal government’s manifest policy to encourage the expansion of
tribal property interests and, thereby, tribal self-sufficiency. Further,
we agree that substantial deference is owed congressional action in this
area.
However, I believe that, once a tribe petitions to bring land
within federal trust, the nuanced scheme created by Congress for the
consideration of such petitions preempts this litigation. By different
routes, we reach the same result: plaintiffs’ action was properly
dismissed by the trial court.
Does the doctrine of tribal sovereign immunity act as a bar to a
state court action to imply an easement over nonreservation real
property owned by an Indian tribe? The plaintiffs, seeking to impose

The majority cites to instances in which Congress has reinforced
1

the notion of tribal sovereign immunity. (Maj. opn. ante, at pp. 12–16.)
However, none of these pertain to nontrust land owned by a tribe
within the territorial limits of another sovereign, as presented by these
facts.
1
the easement on behalf of the public in general, would have us answer
this question in the negative. They argue that, whatever the
provenance and scope of tribal sovereign immunity, it does not pertain
to immovable property. Consequently, they contend the doctrine does
not bar an in rem action to impose an easement on property within the
state of California.
The “immovable property exception” to state sovereign immunity
was, in essence, recognized by the United States Supreme Court in
Georgia v. Chattanooga (1924) 264 U.S. 472, 480. (Upper Skagit Indian
Tribe v. Lundgren (2018) __U.S.__ [138 S.Ct. 1649, 1660] (dis. opn. of
Thomas, J., joined by Alito, J.) (Upper Skagit).) The immovable
property exception to foreign nation sovereign immunity has been
codified by Congress in the Foreign Sovereign Immunities Act of 1976
(FSIA). (28 U.S.C. § 1605(a)(4); Permanent Mission of India to the UN
v. City of New York (2007) 551 U.S. 193, 200 [FSIA codified the “ ‘pre-
existing’ ” immovable property exception to sovereign immunity].)
However, recently, the high court declined to decide whether such an
exception exists as to tribal sovereign immunity, instead remanding to
the state court of Washington for determination of that issue in the
first instance. (Upper Skagit, at pp. __ [138 S.Ct. at pp. 1653–1654].)
Justice Thomas dissented from the majority’s determination not
to rule on the question. (Upper Skagit, supra, __U.S.__ at pp.__ [138
S.Ct. at pp. 1656–1657].) He then went on, at length, to explain why he
believed the immovable property exception applied to tribal sovereign
immunity, as it does to other types of immunity. (Id. at pp. __ [138
S.Ct. at pp. 1657–1663].) His reasoning makes sense, and I adopt it
here without full recitation.
2
 Suffice to say, when one sovereign owns land of another
sovereign, the second sovereign generally retains the authority to
adjudicate disputes respecting that land, at least with regard to
questions like the one before us over title. (Upper Skagit, supra,
__U.S.__ at p. __ [138 S.Ct. at p. 1662] [“ ‘the title to, and the
disposition of real property, must be exclusively subject to the laws of
the country where it is situated’ ”].) Thus, the second sovereign’s
authority over issues of title to land within its boundaries supersedes
the first sovereign’s privilege to preclude a judicial challenge to the fact
and scope of its ownership of that land.2 Quite obviously, the tribe’s
assertion of sovereign immunity to suit would operate to undermine the
very foundation of the state’s sovereignty. Congress could endorse such
a result, but it has not, either explicitly or implicitly.
The federal Constitution does not speak to Indian tribal
immunity. (See Kiowa Tribe of Oklahoma v. Manufacturing Techs.
(1998) 523 U.S. 751, 759.) Thus, whether its inherent scope is derived
from common law or natural law, it does not derive from the
Constitution. Congress with its plenary authority over Indian affairs
could modify its scope and could presumably extend tribal immunity to
immovable property. (Michigan v. Bay Mills Indian Community (2014)
572 U.S. 782, 788.) That decision would be a political one, necessarily
accounting for the interests of the federal government, the tribes and

2 As noted by the majority, tribes are different from states and
foreign nations, and the scope of their sovereign immunity is not
necessarily the same. Whether this is a principle of limitation or
aggrandizement is not clear. That is, is tribal sovereign immunity
inherently greater or less than that afforded to states and foreign
nations? The answer may well be neither, just different.
3
the states. Congress has not done so. However, it has done something
strikingly similar that, I believe, leads to the same result.
Pursuant to the Indian Reorganization Act of 1934 (25 U.S.C. §
5108), “The Secretary of the Interior is . . . authorized . . . to acquire . . .
any interest in lands . . . for the purpose of providing land for Indians.
[¶] . . . [¶] Title to any lands or rights acquired . . . shall be taken in the
name of the United States in trust for the Indian tribe or individual
Indian for which the land is acquired, and such lands or rights shall be
exempt from State and local taxation.” Such acquisitions are
implemented according to 25 Code of Federal Regulations part 151.1 et
seq. (2021), including a written request for approval of acquisition by
the tribe (25 C.F.R. § 151.9 (2021)), and notification to the state and
local governments affected of the request with an opportunity to
respond (25 C.F.R. § 151.10 (2021)).
In evaluating requests, the Secretary of the Interior must
consider, inter alia, the need of the tribe for additional land; the
purposes for which the land will be used; if the land will be used for
business purposes, the anticipated economic benefits; the location of the
land relative to state boundaries and the tribe’s reservation boundaries;
the impact on state and local governments of the removal of the land
from regulatory jurisdiction and tax rolls; and (importantly here)
jurisdictional problems and potential conflicts of land use which may
arise. (25 C.F.R. §§ 151.10–151.11 (2021).) The decision to grant or
deny the request is subject to judicial and, in some instances,
administrative review. (25 C.F.R. § 151.12 (2021).) Also, before
approval, the Secretary of the Interior shall notify the applicant of any
liens, encumbrances, or infirmities in title and may require their
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elimination before approval, but shall require their removal if they
render title to the land unmarketable. (25 C.F.R. § 151.13(b) (2021).)
As noted in the majority opinion, where, as here, coastal land is
involved, the Federal Coastal Zone Management Act of 1972 provides
an additional layer of state input and public participation. (16 U.S.C. §
1456, et seq.) I need not repeat that thorough explication. Suffice to
say, the federal statutory construct is thorough and intricately balances
various interests—federal, state, tribal and public. It would seem
contrary to that construct, once a tribe petitions to bring land within
the trust, to permit the tribe to be subjected to all manner of state
lawsuits relative to the land, at least as to questions of title. Indeed,
plaintiffs now seek to impose an encumbrance on the land—an
encumbrance that could impede the granting of the tribe’s petition.
As Justice O’Connor wrote: “Our cases reveal a ‘ “trend . . . away
from the idea of inherent Indian sovereignty as a[n independent] bar to
state jurisdiction and toward reliance on federal pre-emption.” ’
[Citations.] Yet considerations of tribal sovereignty, and the federal
interests in promoting Indian self-governance and autonomy, if not of
themselves sufficient to ‘pre-empt’ state regulation, nevertheless form
an important backdrop against which the applicable treaties and
federal statutes must be read. [Citations.] Accordingly, we have
formulated a comprehensive pre-emption inquiry in the Indian law
context which examines not only the congressional plan, but also ‘the
nature of the state, federal, and tribal interests at stake, an inquiry
designed to determine whether, in the specific context, the exercise of
state authority would violate federal law.’ ” (Three Affiliated Tribes of
Fort Berthold Reservation v. Wold Engineering (1986) 476 U.S. 877,
5
884; Agua Caliente Band of Cahuilla Indians v. Superior Court (2006)
40 Cal.4th 239, 248 [noting this trend].)
Here, the property in question was purchased by the tribe in
2000. However, the purported public access supporting the implication
of an easement is alleged to have existed since at least 1967. Not until
the tribe petitioned to have the land brought into trust did plaintiffs
seek the declaration of an easement. I have noted the strong state
interest in adjudicating issues of title to land within the state. Indeed,
the state courts provide a forum for these plaintiffs, or anyone else, to
bring an action to quiet title in an easement on the property.
However, once the tribe petitions to bring the land into trust, the
tribe’s interest in the acquisition of land—an interest shared by the
federal government—comes to the fore. At that juncture, Congress has
established a structure for the assertion and balancing of these various
interests as it concerns questions of title. This seems to be a classic
case of federal field preemption, precluding plaintiffs’ suit.3 Albeit, the
field in question is a narrow one: where a tribe has petitioned to bring
land within the federal trust. I recognize that Congress did not
explicitly preempt state court actions such as this. But, preemption
need not be explicit, as long as congressional intent is clear. (Viva!
Internat. Voice for Animals v. Adidas Promotional Retail Operations,
Inc., supra, 41 Cal.4th at pp. 936–940.) Congress has provided an
alternative forum for plaintiffs, such as these, to be heard. That is,
even without a declared easement, the plaintiffs’ interest in continued

3Alternatively, the specific facts here raise the possibility of
obstacle preemption. (Viva! Internat. Voice for Animals v. Adidas
Promotional Retail Operations, Inc. (2007) 41 Cal.4th 929, 936–940.)
6
access will be considered. The statutory scheme for tribal petitions
contemplates the possibility of existing encumbrances. However, to
allow any number of potential parties to seek to impose encumbrances
on the subject land once the petitioning process has begun is, to my
mind, clearly against congressional intent. On that basis, I would
affirm the ruling below.

_________________________
Reardon, J.*

*Judge of the Superior Court of Alameda County, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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Humboldt County Superior Court, Case No. DR190353

Trial Judge: The Honorable Kelly L. Neel

J. Bryce Kenny for Plaintiffs and Appellants

Hobbs, Straus, Dean & Walker, Timothy C. Seward, for Respondent.

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