Labor & Employment Law Daily Wrap Up, COVERAGE, LIABILITY—9th Cir.: Absolute immunity does not extend to tribal officers being sued in their individual capacity, (Sep 14, 2026)

By Todd Harrison, J.D.

“Retained tribal sovereignty does not include the power to immunize tribal employees from liability for violations of federal law…”

Reversing a district court’s dismissal of a former Washoe Tribe police officer’s discrimination claims, the Ninth Circuit determined that the individual officers who were being sued were not entitled to absolute immunity and that the tribe was not a required party for Rule 19 purposes. Tribal sovereign immunity did not bar this suit because the officer was not seeking money damages from the tribal treasury, but rather from the tribal defendants personally, and thus the tribe was not the real party in interest and sovereign immunity did not shield the defendants from the officer’s claims. As to the defendants’ claims of absolute immunity, the court found they had failed to meet their burden of showing the privilege was justified for the function in question (Erwine v. Westbrook, No. 25-3136 (9th Cir. Sept. 11, 2026)).

The plaintiff in this case began working as police officer for the Washoe Tribe of Nevada and California in 2019. He was terminated from his employment on March 4, 2022.

Lawsuit. Following his termination, the officer sued four tribal police officers involved in the termination decision in their individual capacities, alleging claims for race discrimination under Section 1981 and conspiracy to interfere with civil rights under Section 1985. He contended that the defendants treated him, a white man, less favorably than similarly situated Native American employees. He also asserted a Bivens claim for discrimination against three of the defendants, and a Nevada tort claim for intentional interference with contractual relations against one defendant. He did not sue the tribe itself.

Dismissing the claims, the district court concluded that absolute immunity applied to the defendants and, in the alternative, that the tribe was a required party under Rule 19 but could not be joined because of tribal sovereign immunity. The court did address the defendants’ arguments as to sovereign immunity or qualified immunity. This appeal followed.

Tribal sovereign immunity. First, the court addressed the assertion of tribal sovereign immunity, applying the framework clarified by the Supreme Court in Lewis v. Clarke, 581 U.S. 155 (2017). “The protection offered by tribal sovereign immunity,” the Court explained, “is no broader than the protection offered by state or federal sovereign immunity.” In those contexts, courts “look to whether the sovereign is the real party in interest to determine whether sovereign immunity bars the suit.” The answer to that question lies in the distinction between individual- and official-capacity suits.

Here, the officer was seeking money damages not from the tribal treasury but from the tribal defendants personally. Because any judgment would not operate against the tribe, it was not the real party in interest and sovereign immunity did not shield the defendants from the officer’s claims, explained the court.

Absolute immunity. Even when tribal sovereign immunity does not bar a suit, tribal officials sued in their individual capacities may still invoke personal immunity defenses, such as absolute or qualified immunity. In this instance, the defendants asserted absolute immunity against the officer’s claims.

In claiming absolute immunity, the defendants relied largely on Davis v. Littell, 398 F.2d 83 (9th Cir. 1968). Like the plaintiff in Davis, the officer is a terminated tribal employee seeking to sue his former supervisors. Like the Navajo Tribe in that case, the Washoe Tribe is a sovereign that can bestow immunity upon its officials. And, based on the allegations in the complaint, the defendants also analogized that the officer is seeking to recover damages in connection with work assigned or controlled by the tribe.

“Davis’s conclusion that the tribal official enjoyed absolute immunity rested on our finding that Arizona courts would recognize the Navajo Tribe’s conferral of absolute immunity out of comity,” said the court. The defendants in this case were effectively asking for an extension of Davis’s holding, and the court declined to do so. Instead, the court determined that for an immunity conferred by a tribe on its officials to apply, the specific immunity conferred by tribal law must be consistent with the law under which the cause of action arises.

Applying a functional approach to its inquiry in this case, the court found the defendants were not entitled to absolute immunity. “Retained tribal sovereignty does not include the power to immunize tribal employees from liability for violations of federal law—whether in connection with suits expressly authorized by Congress or a Bivens cause of action implied under the Constitution,” said the court. Thus, the defendants failed to meet their burden of showing that absolute immunity was justified for the function in question.

State-law claim. Next, the court considered the officer’s Nevada tort claim and the scope of immunity. At oral argument, counsel made it clear that the defendant in question was not claiming any immunity under Nevada law. It was not clear whether he had abandoned such a claim only for purposes of this appeal. In the interest of judicial economy, the court opted to exercise its discretion to decide in the first instance whether the officer was entitled to absolute immunity under Nevada law.

Applying Nevada’s three-part functional approach inquiry, the court concluded that Nevada courts would find that the defendant did not enjoy absolute immunity for his acts relating to the officer’s termination. The defendant acted in an administrative capacity and thus did not perform functions sufficiently comparable to those recognized as absolutely immune at common law, explained the court, finding that a tribe’s conferral of immunity does not, by its own force, entitle an officer to absolute immunity in an individual-capacity suit arising under Nevada state law.

Rule 19. Turning to the defendants’ contention that the district court properly dismissed this suit because the tribe is a required party under Federal Rule of Civil Procedure 19 and that it cannot be joined in the action on account of its sovereign immunity, the court noted that the officer was seeking money damages from the defendants in their individual capacities. However, he was not challenging any tribal contract, policy, or sovereign act.

In this type of suit, explained the court, a money judgment does not implicate the tribe’s interest in self-governance. Accordingly, the defendants failed to demonstrate that the tribe has a legally protected interest in the action.

“Because the Tribe does not have a legally protected interest in the outcome of the litigation that might be impaired in its absence, the district court erred in determining that the Tribe is a required party under Rule 19,” said the court.

Qualified immunity. Finally, the defendants’ last ground for affirmance was an assertion of qualified immunity. The district court did not reach this defense, and the appellate court left this question for consideration on remand.

The case is No. 25-3136.

Judge: Bennett, M.

Attorneys: Luke A. Busby (Law Offices of Luke Andrew Busby) for Michael Erwine. Sydney Adelen Tarzwell (Native American Rights Fund) for Zachary Westbrook, John Leonard, Michel Hall and Gene M. Burke.

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