Tag Archives: jurisdiction

Young v. Fitzpatrick, 11-1485 (Legal Issues)

My Case Is Focused on Sovereign Immunity and the Civil Rights Act

The legal issues in dispute in this case center on tribal sovereign immunity and the Civil Rights Act of 1866, as amended.

Sovereign Immunity

As I have written on my website, sovereign immunity is the last vestige of the divine right of kings. Back in the day, the king could do no harm and therefore could not be sued.

In England, the sovereign’s power was never as absolute as it was in France and elsewhere in the continent. In addition, it was diminished by the Magna Carta and the gradual expansion of the powers of parliament. Nonetheless, the English colonists brought the principle with them to the new world and bequeathed it to the American Indian tribes.

In modern times, the sovereign immunity of the federal government has been mostly waived by the Federal Tort Claims Act. The various states have similarly waived their sovereign immunity in most circumstances.

The Puyallup Indian tribe has, in theory, waived its sovereign immunity for certain tort claims, but the waiver is quite limited and does not include civil rights claim. The waiver is only effective in tribal court. Even if the waiver did include civil rights claims, per federal law, tribal court lacks jurisdiction to hear them.

Thus, I chose to sue in state court. I named the individual police officers in their individual capacity as the defendants. I very carefully did not name the tribe. The tribe has sovereign immunity. Whether the individual officers partake in that sovereign immunity is in dispute.

My legal theory is that they do not. An individual capacity suit goes against the individual. Any judgment would go against his or her assets. The individual’s employer’s assets would be off the table. I am not suing the employer.
The police officer’s legal theory, on the other hand, is that they and the employers are one. So long as the police officers were working in their official capacity, within the scope of their employment, they enjoy qualified immunity, which is derivative of the Tribe’s sovereign immunity.

Civil Rights Act of 1866

Congress promulgated the Civil Rights Act of 1866 to protect freed black slaves from sheriffs and other state law enforcement officers who were lynching and otherwise abusing them immediately after the civil war. The magic phrase, as amended, regarding who is subject to the law is “color of state law,” as follows:

[A]ny person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory of the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights … shall be liable to the party injured.

An Indian tribe is neither a state nor a territory. Thus, the Civil Rights Act does not ordinarily apply to an Indian tribe or their agents. Someone who is injured by tribal government ordinarily has no recourse under federal law.

The exception, of course, is when the Indian agent is operating under the color of state law. My theory is that the tribal police officers were acting under the color of state law because they were trained and certified by the Washington State Criminal Justice Training Commission. In addition, they were cross commissioned by the City of Fife, City of Tacoma, and Pierce County.

The police officer’s theory, on the other hand, is that certification, training, and cross commissioning have no legal significance and don’t constitute “color of state law.” Moreover, the police officers were acting solely within the scope of their retained inherent authority. Whatever state-based authority they had, they were not using it.

For further information on Young v. Fitzpatrick, see Supreme Court website at:  http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/11-1485.htm

For the Supreme Court supplemental briefing on my case, see: http://yalelewislaw.com/files/YoungSuppBriefPetit03Jun2013.pdf

For the Young v. Duenas Court of Appeals of the State of Washington, Division One, published Opinion, see: http://yalelewislaw.com/files/YoungWAApellCrtIPublishedOpinion.pdf


Public Law 280 on the Quinalt Reservation

A recent case from the Court of Appeals, Div. 2, State of Washington v. William Pink, Docket # 36485-9, reaffirms the scope of tribal sovereignty over criminal activity by tribal members on tribal land.

In this particular case, the state of Washington asserted criminal jurisdiction over an enrolled tribal member of the Quinault Reservation for possession of an illegal firearm on a state highway within the exterior boundaries of the Quinalt Reservation. According to the state, the fact that the crime occurred on the state highway gave the state jurisdiction to prosecute it.
The court of appeals disagreed, reasoning that the tribe had subject matter jurisdiction over the crime because it had jurisdiction over the land on which the crime occurred, per the Treaty of Olympia, which created the Reservation in 1859. The fact that the Tribe granted the state an easement for the highway did not vitiate this jurisdiction.
This decision contains a primer on state jurisdiction over Indians and Indian Reservations in Washington. This primer is worth summarizing here.
PL 280

In 1953, the US Congress passed legislation, Public Law 280, authorizing any state to assert concurrent jurisdiction over any Reservation within the territorial jurisdiction of the state, with or without tribal consent. The Washington State Legislature then elected to assert this jurisdiction but only over those Reservations that requested it.

Ten years later, in 1963, however, the Legislature elected to assert jurisidiction on the Reservation, with or without tribal consent, in eight different subject areas: 1. compulsory school attendance, 2. public assistance, 3. domestic relations, 4. mental illness, 5. juvenile delinquency, 6. adoption, 7. dependencies, 8. operation of motor vehicles on public streets.

This rather complicated set of laws was applied to the Quinalt Reservation as follows: in 1957, the Quinalt Tribe granted the State of Washington a right-of-way-easement over the Reservation so the State could build the highway.

In 1958, the Quinalt Tribe requested that the governor assert criminal and civil jurisdiction over the Reservation. A month later, in the same year, the governor obliged.

However, in 1965, the Quinalt Tribe petitioned the US Secretary of the Interior for retrocession of state jurisdiction. The Secretary granted the request.

Therefore, from 1965 through the present, the state of Washington lacks original criminal or civil jurisdiction over a tribal member for any matter arising on the Reservation. However, it does have concurrent jurisdiction over a tribal member for a matter arising on the reservation regarding one of the eight areas mentioned previously.

If this sounds complicated, it is because it is. The discussion above pertains only to tribal members and only to land within the exterior boundaries of the Reservation held in trust by the United States for the benefit of the Tribe or named tribal members.


This decision contains a good summary of how p.l. 280 applies to Indian Reservations in Washington State. It should be useful to anyone who advocates for tribal sovereignty and a cautionary tale for non-Indians who wish to do business with an Indian Tribe. If a non-tribal member wishes to do business in Indian country, that person must carefully consider not only what might go wrong, but also what remedies and what courts may be available for redress of grievances.