Tag Archives: non-tribal member

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

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Custody Dispute Between Parent & Indian Custodian

A recent case from division one, Custody of CCM, gives me the unique opportunity to blog my own case. I represented the appellants in this case. We won. CCM pitted a non-Indian father against the Indian grandparents. I had the grandparents. Thus, the facts lay in the intersection between two sometimes contradictory statutes: the U.S. Indian Child Welfare Act and Washington’s third-party custody statute. The case raised several issues: 1) Notice to the child’s Indian tribe, 2) Cure for defective notice, 3) The standard for determining where to place the child, and 4) Child support. We won on three of the four issues. In terms of notice, the court held that ICWA requires that the child’s Indian tribe needs formal notice of any custody proceeding regarding the child. Formal notice means certified mail, return receipt requested, to the proper tribal authority. If the notice is defective in any way, the Tribe gets a new trial. In terms of the placement standard, in a custody dispute between two parents, the state-law standard is best interest of the child. However, in a custody dispute between a parent and a non-parent, the standard for placing with the non-parent is much higher. The child is placed with the parent unless 1) the parent is unfit or 2) moving the child from the non-parent to the parent would cause the child actual detriment to his health and well-being. I argued that this standard didn’t apply to the grandparents because they were the Indian custodians. Since ICWA treats parents and Indian custodians the same, the standard should be the same – best interest. I still think it is a good argument, but it lost. The court held that, where federal law – ICWA – treats the parties the same, the standard for which party gets the child is the state law standard.