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.
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