Immunity of Tribal Officials In California
In Baugus v. Brunson (E.D.Cal. 1995) 890 F. Supp. 908, the court held a tribal security officer, who was not a member of the tribe, was not a "tribal official" entitled to immunity in a civil rights action under 42 United States Code sections 1983 and 1985.
The court stated the term "tribal official" was "virtually always used to denote those who perform some type of high-level or governing role within the tribe." (Baugus, 890 F. Supp. at 911-912.)
Defendants assert Baugus is unprecedented and is at odds with Ninth Circuit Court of Appeals authority, notably Snow v. Quinault Indian Nation (9th Cir. 1983) 709 F.2d 1319 (hereafter, Snow), Hardin v. White Mountain Apache Tribe, supra, (9th Cir. 1985) 779 F.2d 476 (hereafter, Hardin), and Davis v. Littell (9th Cir. 1968) 398 F.2d 83 (hereafter, Davis).
Snow held immunity extended to a "Tribal Revenue Clerk." (Snow, supra, 709 F.2d at 1322.)
As defendants point out, the court did not condition immunity on a showing that the clerk occupied a high-level position within the tribe.
Snow, however, was an action challenging a tax on business activities within the tribe's reservation. There was no claim that the clerk was liable in her individual capacity; she was sued only in her official capacity. (Ibid.)
The court therefore held the case came within the rule established in Larson v. Domestic & Foreign Corp. (1949) 337 U.S. 682, 688 [69 S. Ct. 1457, 1460-1461, 93 L. Ed. 1628] (hereafter, Larson) that sovereign immunity may not be avoided by nominally suing an individual when the suit is, in substance, to compel action by the sovereign. (Snow, supra, citing Larson, supra.)
Because it involved, in substance, a suit against the tribe rather than its officer, Snow cannot be read as establishing that individual immunity attaches without regard to the nature of a tribal officer's official position and duties.