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Indian Nations Law Update - October 2012

October 11, 2012

Godfrey & Kahn to Hold Annual Corporate Counsel Seminar November 1, 2012
Godfrey & Kahn will hold its 2012 Corporate Counsel Symposium from 1:30 - 6:30 p.m. at Pier Wisconsin at Discovery World (Pilot Room), 500 N Harbor Drive, Milwaukee, WI. This annual symposium addresses current issues and challenges facing in-house attorneys. The event is complimentary and has been approved by the Wisconsin Board of Examiners for 3.0 CLE/EPR credits, including one hour of Ethics credit. To register for more information, click here.

Ninth Circuit Holds Tribal Emergency Responders May Be Sued Individually for Acts Within Their Employment
In Maxwell v. County of San Diego, 2012 WL 4017462 (9th Cir. 2012), Lowell Bruce shot and killed his wife, Kristin Maxwell. Kristin's survivors sued multiple defendants including the Viejas Band of Kumeyaay Indians (Tribe) Tribal Fire Department and two paramedics, Avi and Felber, employed by the Tribe, alleging gross negligence in their response to an emergency call. The Ninth Circuit rejected the plaintiffs' argument that the Tribe implicitly waived its sovereign immunity by responding to the emergency call but allowed the suit to proceed against Avi and Felber because the plaintiffs sought money damages from them personally:

Tribal sovereign immunity derives from the same common law immunity principles that shape state and federal sovereign immunity. Normally, a suit like this one - brought against individual officers in their individual capacities - does not implicate sovereign immunity. The plaintiff seeks money damages not from the state treasury, but from the officer[s] personally. Due to the essential nature and effect of the relief sought, the sovereign is not the real, substantial party in interest." (Citations and quotations omitted.)

The court acknowledged that the result might be different where the defendants sued individually are high tribal officials and "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." In denying that these circumstances were present, the court noted that "this case concerns allegedly grossly negligent acts committed outside tribal land pursuant to an agreement with a non-tribal entity. In this context, denying tribal sovereign immunity to individual employees sued as individuals will have a minimal effect, if any, on the tribe's hiring ability."

Many courts have held that tribal officers and employees are covered by their tribe's sovereign immunity so long as they have acted within the scope of their official duties. The Maxwell decision draws a sharp distinction between the "scope of official duties" doctrine and the "remedy sought" doctrine. That a tribal official may have acted within the scope of his or her duties may provide no protection if no relief is sought from the tribe.

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