Discrimination
Erwine v. Westbrook (9th Cir., 2026): Individual-Capacity Suits Against Tribal Officials Proceed
Updated
In Erwine v. Westbrook, the Ninth Circuit reversed the dismissal of federal civil rights and state tort claims brought by a terminated tribal police officer against several of his superiors and the tribe’s general counsel. The court held that tribal sovereign immunity did not bar the suit, that the individual officers did not enjoy absolute personal immunity, and that the tribe was not a required party under Federal Rule of Civil Procedure 19. It left the officers’ qualified immunity defenses for the district court to consider on remand.
Background
Michael Erwine worked as a police officer for the Washoe Tribe of Nevada and California from October 2019 until his termination in March 2022. He sued four of his superior officers and the tribe’s general counsel in their individual capacities, but he did not sue the tribe itself.
Erwine, who is white, brought federal claims for race discrimination and civil rights conspiracy, a Bivens discrimination claim, and a Nevada tort claim for intentional interference with contractual relations. He alleged he was treated less favorably than Native American employees, subjected to a hostile work environment, and denied a grievance process.
The federal district court in Nevada dismissed the claims. It concluded the officers had absolute personal immunity and, alternatively, that the tribe was a required party under Rule 19 that could not be joined because of its sovereign immunity. The court did not reach the officers’ tribal sovereign immunity or qualified immunity arguments.
What the Court Held on Tribal Sovereign Immunity
The Ninth Circuit applied the remedy-focused test from the Supreme Court’s decision in Lewis v. Clarke. The key question is whether the remedy sought is truly against the sovereign—that is, who would be legally bound by an adverse judgment.
Because Erwine sought money damages from the officers personally, not from the tribal treasury, any judgment would not operate against the tribe. The court rejected the officers’ argument that the suit’s connection to tribal governance mattered, explaining that its precedent does not weigh the degree to which a suit relates to tribal governance.
Tribal sovereign immunity does not bar an individual-capacity suit seeking money damages from tribal officials personally, because the tribe is not the real party in interest. A functional approach governs whether those officials enjoy absolute personal immunity, and a tribe cannot, by its own law, confer immunity from a federal cause of action.
What the Court Held on Absolute Immunity
The officers argued that the tribe’s Law and Order Code bestowed absolute immunity on them, relying on the Ninth Circuit’s 1968 decision in Davis v. Littell. The court declined to extend that decision, which had rested on a prediction that Arizona courts would honor the immunity as a matter of comity.
For the federal claims, the court applied the functional approach the Supreme Court requires, which asks whether a function was historically accorded absolute immunity at common law. Personnel decisions such as supervising, investigating, and terminating an employee are administrative acts that do not qualify. The court also held that a tribe cannot unilaterally create a defense to a federal cause of action.
For the Nevada tort claim against the general counsel, the court looked to state law. Applying Nevada’s three-part functional test, it predicted that Nevada courts would find the counsel was not absolutely immune, because terminating Erwine was an administrative function.
What the Court Held on Rule 19
The parties disputed only whether the tribe was a required party under Rule 19. That step turns on whether the tribe has a legally protected interest that might be impaired in its absence—something more than a financial stake.
The court explained that Erwine did not challenge any tribal contract, policy, or sovereign act, and did not seek reinstatement or an injunction against the tribe. Because a money judgment against the officers personally would not impair any legally protected interest of the tribe, the district court erred in treating the tribe as a required party. Having found the tribe was not required, the court did not reach the remaining Rule 19 steps and reversed and remanded.
What This Means for You
This decision clarifies that tribal sovereign immunity does not shield tribal officials sued for money damages in their individual capacities, and that a tribe cannot confer absolute immunity from a federal cause of action by its own law. It also holds that a tribe is not automatically a required party under Rule 19 in such a suit. The ruling touches employment disputes, including discrimination and wrongful-termination claims, brought against tribal officials.
I write these summaries as general information about developments in California employment law. They are not legal advice and don’t create a mediator–client relationship. For guidance on a specific matter, consult a qualified attorney.