Last week, in Maxwell v. County of San Diego, Case No. 10-56671, the United States Court of Appeals for Ninth Circuit ruled that certain low-ranking employees of an Indian tribe do not possess the tribe's immunity, even when acting in the scope of their tribal employment.
Maxwell involved claims against paramedics employed by the Viejas Band of Kumeyaay Indians Tribal Fire Department seeking tort damages under California law. Specifically, the plaintiffs alleged that the tribal paramedics acted with gross negligence in responding to an emergency that occurred outside of tribal lands. The tribal paramedics arrived to transport a shooting victim to an air ambulance. Plaintiffs contended that, through an unfortunate series of events, the tribal paramedics and county law enforcement officials unduly delayed the victim's evacuation, resulting in her otherwise avoidable death en route to the hospital.
At all relevant times, the tribal paramedics were operating outside of Indian Country pursuant to a mutual aid agreements with a local fire protection district. The plaintiffs in Maxwell argued that Viejas waived its sovereign immunity by virtue of its entry of a mutual aid agreement, reasoning that the state statutory authority for such mutual aid agreements specifically states tribal immunity shall be equal with non-tribal immunity where the act or omission occurs outside the tribe's jurisdiction, and further reasoning that state employees are not immune for claims of gross negligence as alleged in Maxwell so the tribal defendants should not be.
The court, applying established principles of immunity law, rejected the waiver argument because (1) the mutual aid agreements did not contain explicit and unequivocal waiver of sovereign immunity, and (2) each agreement explicitly retained the tribe's sovereign immunity. The Court reasoned that disregarding the clear language in the agreement, in favor of state statutory language to which the sovereign tribe had never agreed, to be inconsistent with the federal standard for waiving tribal sovereign immunity.
Nevertheless, in a decision that appears to be at odds with other Ninth Circuit authority, the Ninth Circuit panel held that the paramedics lacked immunity. Central to its analysis was that both paramedics were sued in their individual (not official) capacity, and the tribe was not named in the suit. Moreover, the suit sought money damages directly from the tribal employees, and not from the tribe itself.
Using what it called a "remedy-focused analysis," the court concluded that the paramedics were not protected by the tribe's immunity because any remedy resulting from the suit would operate against the paramedics, as individuals, and not the tribe. The court reasoned that, because sovereign immunity is designed to protect the sovereign, employees should not be protected by immunity for claims not implicating the interests of the sovereign. According to the court, only when a tribe is the real party in interest (the party whose rights are directly implicated by the suit) should immunity extend to the tribe's employees.
While the court did little to explain the parameters of its new remedy-focused analysis, it did acknowledge there may be circumstances where individual capacity suits against lower level tribal employees are protected by a tribe's immunity. The court recognized the need to "be sensitive to whether the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration, or if the effect of the judgment would be to restrain the [sovereign] from acting, or to compel it to act." (Slip. Op. at 11200 (quotations and citations omitted).)
The opinion raises important questions about the sorts of claims that a court applying Maxwell would deem to interfere with the tribe's sovereign interests and governance, such that immunity would attach. The court rejected the tribal paramedics' argument that liability of the tribal employees would impact the tribe's ability to hire paramedics. The court held liability under these circumstances would have minimal effect on the tribe because the tribal employees' actions were grossly negligent, took place outside tribal land, and occurred pursuant to an agreement with a non-tribal entity. The court did not explain why those factors were relevant to the individual immunity analysis, especially in light of United States Supreme Court and Ninth Circuit authority establishing that the immunity of Indian tribes themselves remains intact as to contract or tort claims, whether or not they arise from off-reservation conduct.
The court did not opine on whether suits for money damages against tribal officials performing discretionary and policymaking functions would interfere with the tribe's administration, such that the remedy would operate against the tribe, triggering immunity. Importantly, the court left in place the rule that a plaintiff cannot circumvent the tribe's immunity by suing tribal officials in name only and seeking relief against the tribe.
The tribal paramedics still have the right to seek review by the Ninth Circuit sitting en banc, and ultimately can ask the United States Supreme Court to reverse the decision. In any event, Indian entities, in assessing their risk exposure and evaluating insurance needs, should take heed of how a remedy-focused immunity analysis might impact claims against tribal officials and employees.