Ninth Circuit says tribal law cannot shield employees from federal civil rights suits

Tribal law cannot be used to shield police officers, administrators and attorneys working for tribal governments from personal liability in federal civil rights lawsuits, the U.S. Court of Appeals for the Ninth Circuit ruled Friday. Federal courts have long allowed suits against tribal employees as individuals under the Supreme Court's 2017 decision in Lewis v. Clarke. What this ruling adds is narrower and pointed: a tribe cannot write its own immunity provision into tribal code and use it as a defense against a federal civil rights claim. The published opinion binds every federal court in Alaska.

Alaska has more federally recognized tribal governments than any other state. A Bureau of Indian Affairs list published Jan. 30 names 575 tribal entities nationally. Of those, 233 fall under the heading for Native entities within Alaska, about 40 percent of the total.

The ruling reverses a Nevada federal judge who had thrown out a fired tribal police officer's lawsuit. Circuit Judge Mark J. Bennett wrote for the panel, joined by Gabriel P. Sanchez and District Judge John W. Holcomb. Retained tribal sovereignty, the opinion said, does not include "the power to immunize tribal employees from liability for violations of federal law."

The Washoe Tribe of Nevada and California had adopted Law and Order Code provisions in 2014 extending immunity to officers and employees against claims seeking damages from them while engaged in work assigned or controlled by the tribe. District Judge Miranda M. Du dismissed the case on absolute immunity and, alternatively, on the tribe being a required party. The panel did not. The officers, it wrote, had offered no authority for the idea that a tribe may unilaterally create a defense to a federal cause of action.

Michael Erwine began work as a Washoe tribal police officer on Oct. 18, 2019. The tribe terminated him on March 4, 2022, at a meeting with Chief of Police Zachary Westbrook, Deputy Chief John Leonard, Sergeant Michel Hall and General Counsel Gene Burke. Erwine sued all four. Erwine, who is white, alleges he was treated less favorably than similarly situated Native American employees and that the officers conspired to deter him from testifying in a separate lawsuit. Those allegations come from his complaint and have not been tested at trial. He sought money damages from the four individuals only. He did not sue the tribe itself.

The panel applied Lewis v. Clarke, which held that a tribal employee sued personally, rather than the tribe, is the real party in interest. Erwine seeks damages from the defendants themselves rather than from the tribal treasury, the court wrote, quoting its own 2021 Acres Bonusing decision. The officers argued the case would intrude on the tribe's internal governance. The panel answered that courts do not weigh how closely a suit relates to tribal governance.

The Native American Rights Fund argued for the officers, with Sydney A. Tarzwell of its Anchorage office. The Washoe Tribe filed as a friend of the court. Commentary from the law firm Schwabe, writing about a related Alaska Supreme Court ruling, argues that limiting sovereign immunity in employment disputes could move personnel decisions into federal court rather than leaving them to tribal governance. That is their characterization, not a finding by the panel, which did not address self-determination policy.

The panel also rejected absolute immunity, holding that firing an employee is an administrative act the common law never protected. It further held the tribe is not a party that must be joined under Rule 19, the federal rule governing when an absent party must be added to a lawsuit.

The decision follows two earlier Ninth Circuit rulings: Acres Bonusing in 2021 and Welsh v. Loudbear on June 4. Acres Bonusing cut the other way for some defendants, shielding a tribal court judge, his law clerks and the court clerk because they performed judicial functions. Tribal entities themselves retain immunity.

The case now returns to the District of Nevada, where the officers' qualified immunity defenses will be considered for the first time. That doctrine shields government officials from damages unless they violated a clearly established right.