Ninth Circuit Holds Tribal Workers May Be Sued for Money Damages for Official Actions

You read that right. A troubling case for tribal governments. Here the tribal workers were operating under a public safety cooperative agreement authorized under California statute in which the tribal government expressly reserved immunity.The facts truly are tragic — and bad facts make bad law. I’d say the fact that there’s a dissent is helpful, except our dissenter doesn’t object to the immunity holding.

The opinion in Maxwell v. County of San Diego is here. An excerpt:

In short, our tribal sovereign immunity cases do not question the general rule that individual officers are liable when sued in their individual capacities. We see no reason to give tribal officers broader sovereign immunity protections than state or federal officers given that tribal sovereign immunity is coextensive with other common law immunity principles. See Santa Clara Pueblo, 436 U.S. at 58. We therefore hold that sovereign immunity does not bar the suit against the Viejas Fire paramedics as individuals. The Viejas Band is not the real party in interest. The Maxwells have sued the Viejas Fire paramedics in their individual capacities for money damages. Any damages will come from their own pockets, not the tribal treasury. See Alden, 527 U.S. at 757.

This is incredibly glib discarding of Ex parte Young should worry tribal governments everywhere.

Briefs are here:

Maxwell Opening Brief

Viejas Answer Brief

Maxwell Reply

19 thoughts on “Ninth Circuit Holds Tribal Workers May Be Sued for Money Damages for Official Actions

  1. Tuari Bigknife September 14, 2012 / 4:49 pm

    A very disturbing ruling indeed. Any Tribes or Tribal Organizations that may be interested in filing an amicus brief should contact Phil Samouris at or 619-236-1551. His firm is representing Viejas in this matter.

  2. Phil September 14, 2012 / 4:56 pm

    It would be more troubling if the court had not reversed. Then you would end up with county employees subject to suit but not the tribal employees all based on the same facts. Nonsensical

  3. Tom Murphy September 14, 2012 / 7:06 pm

    To quote the per curiam (unpublished) decision of the Ninth Circuit in a prior case: “If the Defendants were acting for the tribe within the scope
    of their authority, they are immune from Plaintiff’s suit regardless of whether the words “individual capacity” appear on the complaint. Accordingly, we vacate that portion of the district court’s order that denied the Defendants’ claim of sovereign immunity, and we remand for further proceedings on that question.” Murgia v. Reed, No. 08-15618 (9th Cir. June 30, 2009), at 4.

  4. Looking Back Woman-Suzanne Dupree September 15, 2012 / 12:19 pm

    There seems to be a lot of immunity for perps who commit crimes on 1st Nations lands, like the recent burning for the second time of the Wounded Knee Museum…

  5. Outraged Indian Lawyer September 16, 2012 / 5:48 pm

    I suggest it is “nonsensical” to strive for a uniform result-liability for county and tribal employees-even though the applicable laws are different. The county employees were sued under § 1983 for alleged constitutional torts (which requires a much greater showing of fault than simple negligence), and are protected by qualified immunity where applicable. The tribal employees were sued for simple negligence. If I read the opinion correctly, tribal officers can rely on none of the traditional doctrines which protect government employees in the performance of their official functions. Tribal first responders in the Ninth Circuit are now subject to damages for simple negligence for acts undertaken in the performance of their duties. I believe there is no other jurisdiction in the United States which subjects its ambulance paramedics (or firefighters or police officers, etc.) to this sort of liability.

    At common law, it was up to the sovereign to determine what liability its public servants could face in tort. Most state jurisdictions today will not make officials personally liable absent malice or at least gross negligence. While the result in the instant case, making the tribal and county officials equally subject to suit, may seem equitable, the decision puts tribal public servants under much greater threat of suit in the future, and puts a serious disincentive for tribes to enter into cooperating agreements with the state and municipal governments, as was the case here.

    If Indian tribal ambulance drivers will be held personally liable in tort for any negligence that occurs off the reservation, the smart ones will just stay on the res. Of course, people become emergency paramedics to save lives, and the true heroes are going to respond no matter what. Either the tribes will have to indemnify their emergency responders (effectively waiving sovereign immunity), or just accept the risk that their personnel will be driven into bankruptcy defending the inevitable lawsuits.

    The facts of this case are absolutely tragic, and my deepest sympathies go to the family of that poor woman. But the court’s willingness to subject tribal first responders to individual liability without any showing of gross negligence or bad faith will probably cost many lives in the future because of the severe interference this will cause to the tribe’s ability to provide first response services. One has to wonder whether the court is actively undermining tribal emergency services.

    I truly hope those Viejas ambulance drivers live on trust land. If they lose their homes over this, it will be an outrage.

  6. Bethany Berger September 17, 2012 / 11:27 am

    Although the opinion is sloppy for not saying this specifically, I would read the tribal employee part of the opinion to incorporate the qualified immunity discussed with regard to the county employees. As the court said, tribal immunity is based on the same principles as federal and state immunity—if the tribal employees don’t get qualified immunity, though, then it’s a lot less protective. Allowing individual capacity suits where the tribal employees clearly acted out of the scope of their authority is widely recognized. The court discussed the reasons why the county officials’ actions were not protected by qualified immunity because the case was dismissed on a Rule 56 summary judgment motion. They didn’t discuss it for the tribal employees because that count was dismissed on a 12(b)(1), lack of subject matter jurisdiction, argument. I hope the trial court will deal with whether the tribal employees were protected by qualified immunity in this case on remand. I don’t think the sky is falling here, at least not yet.

  7. Tom September 17, 2012 / 1:00 pm

    I’m with Outraged Tribal Lawyer. Tort liability against government officials and employees has always been a function of statute or something similar (i.e., sec. 1983, Bivens, tort claim acts, governmental immunity acts). There are excellent historical reasons why Indian tribes are reluctant to waive their sovereign immunity for tort claims. Appellate court judges know, however, that “individual capacity” is generally a fiction, because the liability is insured. Instead of a “remedy-based” approach, courts should take a conduct-based approach to determining whether sovereign immunity applies. I’m also curious as to how performing pursuant to a MAA is not furthering a tribal purpose; there’s always a tribal purpose.

  8. California Attorney September 18, 2012 / 1:07 pm

    Both Outraged Tribal Lawyer and Tom, as well as the attorneys on both sides who briefed this case in the Ninth Circuit, seem to be unaware of the Supreme Court’s ruling in Westfall v. Erwin, 484 U.S. 292 (1988). In that case, the Court held that ordinary negligence on the part of a federal employee could be the basis for an action under state tort law as long as the alleged negligence did not involve the making of a discretionary decision. In defense of the lawyers mentioned above, I acknowledge that most attorneys are unaware of the Westfall decision because Congress enacted a statutory fix the same year by passing the Federal Employees Liability Reform and Tort Compensation Act (commonly known as the “Westfall Act”) that added language to 28 U.S.C. § 2679(b) making an action against the United States under the Federal Tort Claims Act the exclusive remedy for alleged negligence by a federal employee. Nevertheless, the Court’s decision in Westfall is consistent with the Ninth Circuit’s decision in this case, and therefore should be reviewed very carefully by the Tribe’s attorneys before they ask for en banc review or petition for certiorari.

  9. Phil September 21, 2012 / 4:56 pm

    The ruling in this case does not cite Westfall, nor did the briefs. And Westfall contains sophisticated analysis with respect to the application of immunity to a federal employees (not Tribal employees)– analysis that went far beyond how the plaintiff captions the case, which sadly is all that mattered to the court here. Finally, as California Attorney correctly points out, Congress immediately re-took control of its employees’ personal liability by passing the Westfall Act. Indian tribes should have the same right to control when and how its employees and the tribe may be sued while they are carrying out their official duty.

  10. Oohenunpa November 23, 2012 / 2:43 am

    My tribal govt are a bunch of educated elitists who operate with near impunity because as most attys they contrive ingenious ways to do the least amount of work for the most amount of [public] money! Ethics WHERE? Tribal members need a way to invoke ‘ICRA” etc…

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