Erwine v. Westbrook

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL ERWINE, No. 25-3136

D.C. No.

Plaintiff - Appellant,

3:24-cv-00045-

MMD-CSD

v.

ZACHARY WESTBROOK; JOHN

LEONARD; MICHEL HALL; OPINION

GENE M. BURKE,

Defendants - Appellees,

and

UNITED STATES OF AMERICA,

COUNTY OF CHURCHILL,

BENJAMIN TROTTER,

Defendants.

Appeal from the United States District Court

for the District of Nevada

Miranda M. Du, District Judge, Presiding

Argued and Submitted March 11, 2026

Las Vegas, Nevada

2 ERWINE V. WESTBROOK

Filed September 11, 2026

Before: Mark J. Bennett and Gabriel P. Sanchez, Circuit

Judges, and John W. Holcomb, District Judge.*

Opinion by Judge Bennett

SUMMARY**

Tribal Immunity / Required Party

The panel reversed the district court’s dismissal of an

action brought by Michael Erwine, a former police officer

for the Washoe Tribe of Nevada and California, alleging

federal civil rights claims and a Nevada tort claim against

several of his superior officers and the Tribe’s general

counsel after Erwine was terminated from his position.

The district court concluded that the individual officers

were entitled to absolute personal immunity, and,

alternatively, that the Tribe was a required party under Fed.

R. Civ. P. 19 which could not be joined in the action on

account of its sovereign immunity.

The panel held that tribal sovereign immunity did not bar

this suit. Erwine does not seek money damages from the

tribal treasury, but rather from the tribal defendants

*

The Honorable John W. Holcomb, United States District Judge for the

Central District of California, sitting by designation.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

ERWINE V. WESTBROOK 3

personally. Because any judgment will not operate against

the Tribe, the Tribe was not the real party in interest, and

sovereign immunity did not shield the Tribal Officers from

Erwine’s claims.

The panel further held that the individual officers did not

enjoy absolute immunity. A functional approach governs

when a tribal employee raises absolute immunity as a

defense in an individual-capacity action arising under

federal law. The Tribal Officers failed to meet their burden

of showing absolute immunity was justified for the function

in question, and the district court erred in dismissing

Erwine’s federal claims on absolute immunity

grounds. Turning to Erwine’s Nevada tort claim for

intentional interference with contractual relations against the

Tribe’s general counsel, the panel concluded that a tribe’s

conferral of immunity did not, by its own force, entitle an

officer to absolute immunity in an individual-capacity suit

arising under Nevada state law.

The panel also held that the Tribe was not a required

party under Rule 19. Rule 19 sets forth a three-step inquiry,

and the parties only dispute the first step of the inquiry:

whether the Tribe is a required party. The panel held that

because the Tribe did not have a legally protected interest in

the outcome of the litigation that might be impaired in its

absence, the district court erred in determining that the Tribe

was a required party under Rule 19. Having determined that

the Tribe was not a required party, the panel did not proceed

to the remaining steps of the Rule 19 inquiry.

The panel left the Tribal Officers’ qualified immunity

defenses for the district court to consider in the first instance

on remand.

4 ERWINE V. WESTBROOK

COUNSEL

Luke A. Busby (argued), Luke Andrew Busby Ltd., Reno,

Nevada, for Plaintiff-Appellant.

Leonard R. Powell (argued) and Morgan E. Saunders, Native

American Rights Fund, Washington, D.C.; Sydney A.

Tarzwell, Native American Rights Fund, Anchorage,

Alaska; Katherine F. Parks, Thorndal Armstrong PC, Reno,

Nevada; Defendants-Appellees.

Joseph D. Nady, General Counsel, Washoe Tribe of Nevada

and California, Gardnerville, Nevada, for Amicus Curiae

The Washoe Tribe of Nevada and California.

OPINION

BENNETT, Circuit Judge:

Michael Erwine served as a police officer for the Washoe

Tribe of Nevada and California (the “Tribe”). After the

Tribe terminated Erwine from that position, he sued several

of his superior officers and the Tribe’s general counsel,

bringing federal civil rights claims and a Nevada tort claim.

Erwine did not sue the Tribe.

The district court granted the defendants’ motion to

dismiss, concluding that the individual officers are entitled

to absolute personal immunity and, alternatively, that the

Tribe is a required party under Federal Rule of Civil

Procedure 19 which cannot be joined in the action on

account of its sovereign immunity. The district court

declined to address the officers’ contentions that tribal

ERWINE V. WESTBROOK 5

sovereign immunity and qualified immunity also compelled

dismissal.

All four grounds for affirmance are before us. We reject

three and leave one for the district court to consider. We

conclude that tribal sovereign immunity does not bar this

suit, that the individual officers do not enjoy absolute

immunity, and that the Tribe is not a required party under

Rule 19. We leave the qualified immunity defenses for the

district court to consider in the first instance. Thus, we

reverse and remand.

I

Because this appeal arises from a motion to dismiss, we

recite the facts as set forth in the plaintiff’s complaint. See

Nguyen v. Endologix, Inc., 962 F.3d 405, 408 (9th Cir.

2020). The Tribe is a federally recognized Indian tribe. See

Indian Entities Recognized by and Eligible to Receive

Services from the United States Bureau of Indian Affairs, 89

Fed. Reg. 99899, 99902 (Dec. 11, 2024). Under the Indian

Self-Determination and Education Assistance Act of 1975,

25 U.S.C. § 5301 et seq., the Tribe receives funding for its

police department from the federal government via a

self-determination contract with the United States. Through

its Law and Order Code, the Tribe extends immunity to its

officers and employees against “claim[s]” seeking “to

recover damages from . . . [them], while engaged in work

assigned or controlled by the Tribe.” Washoe Tribe of

Nevada and California Law & Order Code §§ 33-20(2),

33-30-010 (2014).

Erwine began working as a police officer for the Tribe

on October 18, 2019. The Tribe terminated his employment

on March 4, 2022. That day, Erwine met with Chief of

Police Zachary Westbrook, Deputy Chief of Police John

6 ERWINE V. WESTBROOK

Leonard, Sergeant Michel Hall, and the Tribe’s general

counsel Gene Burke. Westbrook informed Erwine of the

decision and said that the Tribal Chairman had signed off on

it.

Erwine then filed an action in federal court, suing, as

relevant here, Chief Westbrook, Deputy Chief Leonard,

Sergeant Hall, and Burke (the “Tribal Officers”). Erwine

seeks money damages from those defendants in their

individual capacities, bringing claims for race discrimination

under 42 U.S.C. § 1981, conspiracy to interfere with civil

rights under 42 U.S.C. § 1985(2), and conspiracy to interfere

with civil rights under 42 U.S.C. § 1985(3). Erwine alleges

that the Tribal Officers treated him, a white employee, less

favorably than similarly situated Native American

employees, subjected him to a racially hostile work

environment, conspired to deter him from testifying in court

in connection with a lawsuit against his former employer,

and conspired to deprive him of his due process rights in his

employment and reputation.

Erwine also brings a Bivens claim for discrimination

under Davis v. Passman, 442 U.S. 228 (1979), against Chief

Westbrook, Deputy Chief Leonard, and Sergeant Hall (but

not against Burke). Finally, Erwine brings a Nevada tort

claim for intentional interference with contractual relations

against Burke. Erwine did not sue the Tribe.

The Tribal Officers moved to dismiss, asserting absolute

immunity, qualified immunity, tribal sovereign immunity,

and failure to join the Tribe as a Rule 19 required party. The

district court dismissed the claims against the Tribal

Officers. It concluded that absolute immunity bars Erwine’s

claims and, alternatively, that the Tribe is a required party

under Rule 19 but cannot be joined because of tribal

ERWINE V. WESTBROOK 7

sovereign immunity. The district court did not address the

Tribal Officers’ arguments as to sovereign immunity or

qualified immunity.

As to absolute immunity, the district court reasoned that

the Tribe, through its Code, has “immunize[d] tribal officers

and employees from demands to recover damages arising

from work they do for the Tribe.” Because the Tribal

Officers’ alleged misconduct “all fall[s] within the scope of

their official duties,” the district court determined that

absolute immunity compelled dismissal.

As to Rule 19, the district court found that the Tribe is a

required party because the proceedings implicate the Tribe’s

“sovereign interest in setting and enforcing its own

employment policies.” In the district court’s view,

evaluating Erwine’s claims would require a federal court to

undertake a “detailed review of the Washoe Tribe’s policies

as applied to the facts of Erwine’s termination,” which

“would impinge on the Washoe Tribe’s ability to govern

itself.” Based on its ruling that the Tribe cannot be joined

because of tribal sovereign immunity, the district court

exercised its discretion to dismiss the claims against the

Tribal Officers. See Klamath Irrigation Dist. v. U.S. Bureau

of Reclamation, 48 F.4th 934, 943 (9th Cir. 2022).

The district court then granted, and the clerk entered,

judgment for the Tribal Officers pursuant to Rule 54(b).

Erwine now appeals.

II

Suits against tribal officials and employees can implicate

two types of immunity defenses: sovereign immunity and

personal immunity. The Tribal Officers contend that each

shields them from Erwine’s claims.

8 ERWINE V. WESTBROOK

A

“Indian tribes,” the Supreme Court has explained,

“exercise inherent sovereign authority over their members

and territories.” Okla. Tax Comm’n v. Citizen Band

Potawatomi Indian Tribe, 498 U.S. 505, 509 (1991).

“[U]nless and ‘until Congress acts, the tribes retain’ their

historic sovereign authority.” Michigan v. Bay Mills Indian

Cmty., 572 U.S. 782, 788 (2014) (quoting United States v.

Wheeler, 435 U.S. 313, 323 (1978), superseded by statute on

other grounds as recognized in United States v. Lara, 541

U.S. 193, 207 (2004)). Among the retained aspects of tribal

sovereignty is “the common-law immunity from suit

traditionally enjoyed by sovereign powers.” Santa Clara

Pueblo v. Martinez, 436 U.S. 49, 58 (1978). “Suits against

Indian tribes are thus barred by sovereign immunity absent a

clear waiver by the tribe or congressional abrogation.” Okla.

Tax Comm’n, 498 U.S. at 509.

“[W]hen a defendant timely and successfully invokes

tribal sovereign immunity, we lack subject matter

jurisdiction.” Acres Bonusing, Inc v. Marston, 17 F.4th 901,

908 (9th Cir. 2021). And “[b]ecause we may not issue a

‘judgment on the merits’ and assume our ‘substantive law-

declaring power’ before first confirming we have

jurisdiction, we address tribal sovereign immunity at the

outset,” id. (quoting Sinochem Int’l Co. v. Malaysia Int’l

Shipping Corp., 549 U.S. 422, 431, 433 (2007)), even though

the district court declined to do so.

B

To evaluate an assertion of tribal sovereign immunity,

we apply the framework clarified by the Supreme Court in

Lewis v. Clarke, 581 U.S. 155 (2017). That case arose when

a tribal employee, in the course and scope of his tribal

ERWINE V. WESTBROOK 9

employment, rear-ended another vehicle while driving

casino patrons home from a tribal casino. See id. at 159–60.

The owners of the other vehicle brought a negligence claim

against the tribal employee in his individual capacity. See

id. at 157, 160. Invoking tribal sovereign immunity, the

employee moved to dismiss for lack of subject matter

jurisdiction. See id. at 160. The Supreme Court held that

tribal sovereign immunity did not bar the negligence claim.

See id. at 167–68.

“The protection offered by tribal sovereign immunity,”

the Court explained, “is no broader than the protection

offered by state or federal sovereign immunity.” Id. at 164.

In those contexts, courts “look to whether the sovereign is

the real party in interest to determine whether sovereign

immunity bars the suit.” Id. at 161–62. To assess whether

the sovereign is the real party in interest, a court must

determine “whether the remedy sought is truly against the

sovereign.” Id. at 162. And the answer to that question rests

on “[t]he distinction between individual- and official-

capacity suits.” Id.

“In an official-capacity claim, the relief sought is only

nominally against the official and in fact is against the

official’s office and thus the sovereign itself. This is why,

when officials sued in their official capacities leave office,

their successors automatically assume their role in the

litigation.” Id. (citations omitted). “Because the relief

requested effectively runs against the sovereign, the

sovereign is the real party in interest, and sovereign

immunity may be an available defense.” Acres Bonusing, 17

F.4th at 909.

But in suits against officials in their personal capacities,

the plaintiff “seek[s] to impose individual liability upon a

10 ERWINE V. WESTBROOK

government officer for actions taken under color of . . . law.”

Lewis, 581 U.S. at 162 (quoting Hafer v. Melo, 502 U.S. 21,

25 (1991)). “‘[O]fficers sued in their personal capacity come

to court as individuals,’ and the real party in interest is the

individual, not the sovereign.” Id. at 162–63 (alteration in

original) (quoting Hafer, 502 U.S. at 27). Thus, “sovereign

immunity ‘does not erect a barrier against suits to impose

individual and personal liability.’” Id. at 163 (quoting Hafer,

502 U.S. at 30–31).

Against this backdrop, the Supreme Court concluded

that “in a suit brought against a tribal employee in his

individual capacity, the employee, not the tribe, is the real

party in interest and the tribe’s sovereign immunity is not

implicated.” Id. at 158. “That an employee was acting

within the scope of his employment at the time the tort was

committed,” the Court underscored, “is not, on its own,

sufficient to bar a suit against that employee on the basis of

tribal sovereign immunity.” Id.

Applying those principles to the case before it—a

negligence action arising from a tort committed by a tribal

employee acting within the scope of his employment—

Lewis observed that the suit sought to recover for the

employee’s “personal actions.” Id. at 163. Because the

plaintiff did not sue the employee in his official capacity and

“the judgment w[ould] not operate against the [t]ribe,” the

Supreme Court determined that the tribe was not the real

party in interest. See id. at 163–64. Sovereign immunity

thus did not bar the suit. See id.

Our decision in Acres Bonusing followed Lewis. The

plaintiffs sought damages against tribal employees,

including a tribal court judge, his law clerks, and the clerk of

the tribal court, in their individual capacities. See Acres

ERWINE V. WESTBROOK 11

Bonusing, 17 F.4th at 905. In asserting sovereign immunity,

the tribal employees tried to distinguish Lewis by arguing

that the Court’s holding extended only to “garden variety

torts with no relationship to tribal governance and

administration.” Id. at 911. The allegedly tortious conduct

in Acres Bonusing, by contrast, occurred in tribal court. See

id. Because “tribal courts are part of [a] [t]ribe’s inherently

sovereign functions,” the tribal employees urged that

“adjudicating th[e] dispute would require the court to

interfere with the tribe’s internal governance.” Id. So, the

tribal employees argued, the tribe was indeed the real party

in interest, and the suit implicated its sovereign immunity.

Id.

We rejected that view. “[T]he tribal sovereign immunity

analysis,” we explained, does not “turn on a freestanding

assessment of whether the suit related to tribal governance

in some way.” Id. “[N]either Lewis nor our prior cases

evaluated the degree to which the suits could involve

consideration of issues that relate to tribal governance or

administration.” Id. at 912. Indeed, “[s]uch an analysis

would likely prove difficult because any suit against a tribal

employee for conduct in the course of her official duties

almost inevitably has some valence to tribal governance.”

Id. “And if that were the test, we would seemingly end up

applying tribal sovereign immunity whenever a tribal

employee was acting within the scope of her employment—

which is precisely what the Supreme Court in Lewis said not

to do.” Id.

Instead, we clarified that “[t]he question is whether ‘any

remedy will operate . . . against the sovereign.’” Id. at 911

(omission in original) (quoting Pistor v. Garcia, 791 F.3d

1104, 1113 (9th Cir. 2015)). Or, as the Supreme Court put

it, “[t]he critical inquiry is who may be legally bound by the

12 ERWINE V. WESTBROOK

court’s adverse judgment.” Lewis, 581 U.S. at 165. Thus,

when a plaintiff’s “suit for damages against tribal employees

and agents ‘will not require action by the sovereign or

disturb the sovereign’s property,’ and any ‘judgment will not

operate against the [t]ribe,’ tribal sovereign immunity does

not apply.” Acres Bonusing, 17 F.4th at 913 (quoting Lewis,

581 U.S. at 163).

Because the plaintiffs in Acres Bonusing sought money

damages against the defendants in their individual

capacities, any relief ordered would not have required the

tribe “to do or pay anything.” Id. at 910. So we concluded

that “any ‘judgment w[ould] not operate against the [t]ribe,’

[the tribe] [wa]s not the real party in interest, and tribal

sovereign immunity d[id] not apply.” Id. (quoting Lewis,

581 U.S. at 163).

The same outcome followed in Welsh v. Loudbear, 178

F.4th 484 (9th Cir. 2026). Plaintiffs there sued tribal

employees in their individual capacities and “s[ought]

damages resulting from alleged criminal acts carried out by

individuals, not [the tribe].” Id. at 489. “After Lewis,” we

explained, “the relevant inquiry when determining whether

tribal officials enjoy sovereign immunity is ‘whether the

remedy sought is truly against the sovereign.’” Id. (quoting

Lewis, 581 U.S. at 162). Because the complaint sought

“recovery only from the tribal [employees] and d[id] not

attempt to impose liability on [the tribe],” only the individual

employees could be “ordered to pay the judgment”—not the

tribe itself. Id. Thus, we determined that the tribal

employees were not entitled to invoke the tribe’s sovereign

immunity. See id. at 489–90.

ERWINE V. WESTBROOK 13

C

Applying the remedy-focused test expounded by Lewis,

Acres Bonusing, and Welsh, we conclude that tribal

sovereign immunity does not bar this suit. Like the plaintiffs

in those cases, Erwine seeks “money damages not from the

tribal treasury but from the tribal defendants personally.”

See Acres Bonusing, 17 F.4th. at 912 (quoting Pistor, 791

F.3d at 1113). Because any “judgment will not operate

against the Tribe,” Lewis, 581 U.S. at 163, the Tribe is not

the real party in interest, and sovereign immunity does not

shield the Tribal Officers from Erwine’s claims.

The Tribal Officers resist this conclusion, arguing that

the litigation will “interfere with [the] [T]ribe’s internal

governance,” because Erwine “seeks to hold [the] Tribal

[Officers] liable for tribal employment decisions central to

the operation of the Tribe’s police department and the

administration of its grievance process.” But our precedent

forecloses the Tribal Officers’ contention. We do not

evaluate the degree to which a suit relates to tribal

governance. See Acres Bonusing, 17 F.4th at 911–13. It is

instead “the ‘remedy sought’ [that] governs the tribal

sovereign immunity analysis.” Id. at 912 (quoting Lewis,

581 U.S. at 162). And under this “remedy-focused

analysis,” id. at 911 (quoting Maxwell v. County of San

Diego, 708 F.3d 1075, 1088 (9th Cir. 2013)), the Tribal

Officers are not entitled to tribal sovereign immunity.

III

Even when tribal sovereign immunity does not bar a suit,

tribal officials sued in their individual capacities may still

invoke “personal immunity defenses” such as absolute

immunity or qualified immunity. See Lewis, 581 U.S. at

163; Acres Bonusing, 17 F.4th at 915. The district court

14 ERWINE V. WESTBROOK

determined that absolute immunity bars each of Erwine’s

claims against the Tribal Officers. We review de novo

questions of personal immunity, see Acres Bonusing, 17

F.4th at 907, and we conclude that the Tribal Officers are not

protected by absolute immunity.

A

“Absolute immunity is an extraordinary attribute. Those

who act while clad in its armor cannot be held liable for

damages under any circumstances, even if they violate

clearly established federal rights, and even if they do so

intentionally or maliciously.” Brooks v. Clark County, 828

F.3d 910, 915–16 (9th Cir. 2016). As a result, the Supreme

Court has been “‘quite sparing’ in [its] recognition of

absolute immunity, and ha[s] refused to extend it any

‘further than its justification would warrant.’” Burns v.

Reed, 500 U.S. 478, 487 (1991) (first quoting Forrester v.

White, 484 U.S. 219, 224 (1988); and then quoting Harlow

v. Fitzgerald, 457 U.S. 800, 811 (1982)). Thus, “[t]he

presumption is that qualified rather than absolute immunity

is sufficient to protect government officials in the exercise

of their duties.” Id. at 486–87. And “the official seeking

absolute immunity bears the burden of showing that such

immunity is justified.” Id. at 486.

“Tribal officials, like federal and state officials, can

invoke personal immunity defenses.” Acres Bonusing, 17

F.4th at 915. In Lewis, the Supreme Court “described the

availability of personal immunity defenses in the context of

discussing generally applicable principles of individual and

official capacity suits.” Id. And the Court also explained

that “[t]here is no reason to depart from these general rules

in the context of tribal sovereign immunity.” Id. (alteration

in original) (quoting Lewis, 581 U.S. at 163). “Those

ERWINE V. WESTBROOK 15

‘general rules’ thus include[] . . . common law personal

immunity defenses.” Id.

“In determining whether particular actions of

government officials fit within a common-law tradition of

absolute immunity,” the Supreme Court has prescribed a

“functional approach.” Buckley v. Fitzsimmons, 509 U.S.

259, 269 (1993) (quoting Burns, 500 U.S. at 486). “We

consult the common law to identify those governmental

functions that were historically viewed as so important and

vulnerable to interference by means of litigation that some

form of absolute immunity from civil liability was needed to

ensure that they are performed ‘with independence and

without fear of consequences.’” Rehberg v. Paulk, 566 U.S.

356, 363 (2012) (quoting Pierson v. Ray, 386 U.S. 547, 554

(1967)). The Court has identified several functions as

protected by absolute immunity from civil liability,

including “actions taken by legislators within the legitimate

scope of legislative authority, actions taken by judges within

the legitimate scope of judicial authority, actions taken by

prosecutors in their role as advocates, and the giving of

testimony by witnesses at trial.” Id. at 363 (citations

omitted).

In Acres Bonusing, we evaluated the absolute immunity

defense raised by tribal officials under this functional

approach. See 17 F.4th at 915–16. We determined that

several officials—the tribal court judge, his law clerks, and

the clerk of the tribal court—performed judicial or

quasi-judicial functions. See id. So we affirmed the

dismissal of those defendants based on absolute immunity.

See id. at 916–17.

16 ERWINE V. WESTBROOK

B

The Tribal Officers contend that the functional approach

does not apply here. Though they concede that federal and

state officials enjoy absolute immunity only when their

“special functions require a full exemption from liability,”

they claim that “tribal immunities are broader than federal

and state immunities in many areas.” One such area, the

Tribal Officers contend, is that tribes may “bestow” absolute

immunity on tribal officials for acts taken within areas of

tribal control.

The Tribal Officers’ argument relies mainly on Davis v.

Littell, 398 F.2d 83 (9th Cir. 1968). In Davis, a former tribal

employee brought a defamation suit against his former boss,

the general counsel of the Navajo Tribe. See id. at 83–84.

The plaintiff alleged that the general counsel had “reported

to the Tribal Council his views as to the competence and

integrity of [the plaintiff]” and that, because of those

statements, the plaintiff “was discharged from office and

suffered loss of reputation.” Id. at 84–85. The district court

granted summary judgment for the general counsel, finding

him immune from liability. See id. at 84. We affirmed. See

id. at 86.

Davis began by determining “[w]hether the Navajo Tribe

enjoys sufficient independent status and control over its own

laws and internal relationships to be able to accord absolute

privilege to its officers within the areas of tribal control.” Id.

at 84. Because “tribal sovereignty has been found a

sufficient basis for extending to Indian tribes sovereign

immunity from suit,” we concluded that the tribe could

bestow immunity on its officers. Id.

We then considered whether the Navajo Tribe had, in

fact, bestowed immunity. See id. We found that it had.

ERWINE V. WESTBROOK 17

Though the Navajo Tribe’s Tribal Code did not expressly

bestow immunity on tribal officers, the Code suggested that

the immunity question should “be guided by federal or

appropriate state law.” Id. (citing Navajo Tribal Code, tit. 7,

ch. 3, § 34(C)). And both federal law and Arizona law, we

determined, recognized absolute executive immunity for

defamation. See id. at 84–85.

From there, we evaluated whether the general counsel

could claim absolute executive immunity. That question

turned on “whether [the position] encompasses public

duties, official in character.” Id. at 85. The functions of the

general counsel included providing “advice with respect to

the administration of the public affairs of the [t]ribe.” Id.

And looking to the plaintiff’s complaint, the alleged

defamation had “resulted from the manner in which [the

general counsel] reported to the Tribal Council his views as

to the competence and integrity of [the plaintiff], a

subordinate employee.” Id. Those duties, we determined,

“are precisely the duties which were regarded as requiring

the protection of privilege”—“the elimination of the

‘constant dread of retaliation’ for injury committed in the

course of duty and the allowance of ‘unflinching discharge

of (official) duties’ free from the threat of suit and charge of

malice.” Id. (quoting Gregoire v. Biddle, 177 F.2d 579, 581

(2d Cir. 1949)).

We finally considered whether Arizona courts would

honor this immunity “bestowed by a foreign sovereign in a

suit brought by an Arizona citizen.” Id. Because “the state,

in the public interest, ha[d] seen fit to formulate [the

immunity]” so as to protect its own officers, we reasoned

that it would be “inconsistent for [Arizona] to cherish the

rule for itself while denying its benefits to a sovereign which

does not possess the economic power to provide a just

18 ERWINE V. WESTBROOK

alternative.” Id. at 84–85. On that basis, we predicted that

“Arizona state courts would accord comity to an Indian tribe

geographically located within the state boundaries.” Id. at

86. Absolute immunity thus barred the assistant’s claim

against the general counsel. See id. at 83, 86.

The Tribal Officers contend that Davis resolves this case.

Their argument proceeds in several steps. At the first step,

they draw parallels between Davis and this case. Like the

assistant in Davis, Erwine is a terminated tribal employee

seeking to sue his former supervisors. Like the Navajo

Tribe, the Washoe Tribe is a sovereign that can bestow

immunity upon its officials. And based on the allegations in

the complaint, the Tribal Officers also analogize that Erwine,

like the assistant, seeks to recover damages in connection

with work assigned or controlled by the Tribe.

That much is true. Erwine’s claims turn on allegations

that the Tribal Officers supervised, reported on, and

ultimately terminated him from the tribal police force. And

Erwine alleges that the Tribal Officers acted as officers or

employees of the Tribe “at the times relevant to [the]

complaint.” Indeed, the Tribe’s amicus brief confirms that

“the actions described [in the complaint] were taken in the

performance of the [Tribal Officers’] official duties” and

“fall within the scope of work assigned or controlled by the

Tribe.”

At the next step, the Tribal Officers stress one key

difference between Davis and this case. Unlike the Navajo

Tribal Code, the Washoe Tribe’s Code expressly bestows

absolute immunity on its officers. Title 33 of the Washoe

Tribe’s Law & Order Code provides that “[t]he sovereign

immunity of the Tribe shall include but not be limited to any

lawsuit, action, claim, controversy or process, in any state,

ERWINE V. WESTBROOK 19

federal, or Tribal court, forum, or tribunal, unless such

immunity is clearly, explicitly and unequivocally waived.”

Washoe Tribe of Nevada and California Law & Order Code

§ 33-30-010 (2014). And the Code defines “[c]laim” as “any

written demand to recover damages from the Tribe or Tribal

Entity, or an officer or employee of the Tribe or Tribal

Entity, while engaged in work assigned or controlled by the

Tribe or Tribal Entity.” Id. § 33-20(2). Thus, as the Tribal

Officers see it, whether they can claim the immunity

conferred by tribal law is readily resolved in their favor

because Davis commands that result.

The district court agreed. Applying Davis, it explained

that “Title 33 of the Washoe Tribe’s Law and Order Code

bestowed absolute immunity on [the Tribal Officers] for

their alleged actions described in the [complaint]—

disciplining and ultimately firing Erwine,” and these actions

“fall[] within the scope of their official duties.” The district

court thus held that absolute immunity bars Erwine’s claims.

We disagree.

C

Davis’s conclusion that the tribal official enjoyed

absolute immunity rested on our finding that Arizona courts

would recognize the Navajo Tribe’s conferral of absolute

immunity out of comity. The Tribal Officers would have us

extend Davis. On their reading, Davis empowers a tribe to

confer absolute immunity on its officials whenever they act

within areas of tribal control—including to bar liability in

suits arising under federal and state law, even when the law

under which the cause of action arises would not recognize

that immunity.

We decline to extend Davis in this manner. Instead, we

conclude that for an immunity conferred by a tribe on its

20 ERWINE V. WESTBROOK

officials to apply, the specific immunity conferred by tribal

law must be consistent with the law under which the cause

of action arises. Thus, our analysis of Erwine’s federal civil

rights claims is somewhat different than our analysis of his

Nevada tort claim. But we reject the Tribal Officers’

assertion of absolute immunity as to both.

1

We begin with Erwine’s federal civil rights claims

against the Tribal Officers. Recall that Erwine brings claims

under 42 U.S.C. §§ 1981, 1985(2), and 1985(3) and brings a

Bivens claim for discrimination under Davis v. Passman.

“The elements of, and the defenses to, a federal cause of

action,” the Supreme Court has emphasized, “are defined by

federal law.” Howlett v. Rose, 496 U.S. 356, 375 (1990); see

also Chesapeake & Ohio Ry. Co. v. Kuhn, 284 U.S. 44, 46–

47 (1931). So determining whether an immunity defense

applies here is “a question of federal law.” Martinez v.

California, 444 U.S. 277, 284 n.8 (1980) (quoting Hampton

v. City of Chicago, 484 F.2d 602, 607 (7th Cir. 1973)).

The Supreme Court has not resolved whether, in an

individual-capacity action arising under federal law, an

Indian tribe may confer on its officials absolute immunity

from damages liability—beyond what federal law provides.

And the parties have identified no case, and we have found

none, in which a federal court of appeals concluded that a

tribe could do so.

Davis also does not guide our inquiry. In Davis, we

considered a tribal official’s immunity from only a state tort

claim; the plaintiff’s suit had no federal cause of action. See

398 F.2d at 83–84. And our holding did not purport to rest

on the basis that federal common law entitled the tribal

ERWINE V. WESTBROOK 21

official to immunity. To the contrary, our bottom-line

conclusion relied on a “prediction” about whether the

Navajo Tribe’s conferral of absolute immunity on its

officials would apply in Arizona state court. See id. at 84–

86. As the Tribal Officers concede, Davis answered this

question “on state law grounds” by making a

“prediction . . . that an Arizona court, as a matter of comity,

would likely choose to honor the immunity the Navajo

Nation had bestowed.” But the Tribal Officers do not

contend that federal law should merely recognize the Tribe’s

conferral of absolute immunity out of comity. They instead

claim that such a conferral entitles them to absolute

immunity by its own force. Because Davis did not address

whether a tribe’s immunity statute controls when a plaintiff

brings a federal cause of action, this precedent does not, as

the Tribal Officers urge, “resolve this case.”

That returns us to the proper test for evaluating an

absolute immunity defense to a federal cause of action. “We

are ‘bound not only by the holdings of [the Supreme Court’s]

decisions but also by their mode of analysis.’” United States

v. Van Alstyne, 584 F.3d 803, 813 (9th Cir. 2009) (alteration

in original) (quoting Miller v. Gammie, 335 F.3d 889, 900

(9th Cir. 2003) (en banc)). When a defendant claims

absolute immunity and no “express constitutional or

statutory enactment” provides otherwise, see Forrester, 484

U.S. at 224, the Supreme Court has instructed us to take a

“functional approach” in which we “conduct ‘a considered

inquiry into the immunity historically accorded the relevant

official at common law and the interests behind it,’” see

Rehberg, 566 U.S. at 363 (quoting Imbler v. Pachtman, 424

U.S. 409, 421 (1976)). That mode of analysis governs the

inquiry for each of Erwine’s federal claims. See Acres

Bonusing, 17 F.4th at 906, 915–16 (finding tribal official

22 ERWINE V. WESTBROOK

defendants were entitled to absolute immunity because they

performed judicial or quasi-judicial functions, when the suit

included a federal cause of action); Fry v. Melaragno, 939

F.2d 832, 834–36, 835 n.6 (9th Cir. 1991) (employing the

functional approach in a Bivens action); see also Savage v.

Maryland, 896 F.3d 260, 267–70 (4th Cir. 2018) (applying

the functional approach to claims brought under 42 U.S.C.

§§ 1981 and 1985); Runs After v. United States, 766 F.2d

347, 354–55 (8th Cir. 1985) (employing the functional

approach in an action against tribal officials under 42 U.S.C.

§ 1985).

Applying the functional approach, the Tribal Officers are

not entitled to absolute immunity. The Tribal Officers

recognize that Erwine’s claims challenge their conduct

involving “personnel management actions, including

supervising [Erwine], investigating his misconduct, and

terminating his employment.” But the Tribal Officers do not

develop, or support with authority, any argument that courts

historically recognized these functions as absolutely

immune from civil liability at common law. Nor could they.

The Supreme Court has explained that “personnel decisions”

do not give rise to absolute immunity because officials act

“in an administrative capacity” when they demote or

discharge an employee. See Forrester, 484 U.S. at 229.

Thus, under the functional approach, absolute immunity

does not bar Erwine’s federal claims against the Tribal

Officers in their individual capacities.

The Tribal Officers urge an altogether different analysis.

As noted, they contend that the functional approach does not

govern here. Their argument relies on Davis, and

specifically on our observation there that tribes as

“sovereign[s]” can “bestow” absolute immunity on their

officials. 398 F.2d at 84. Because Congress has not

ERWINE V. WESTBROOK 23

diminished tribes’ sovereign ability to confer immunity, the

Tribal Officers press that tribes retain authority to bestow

absolute immunity on their officials from any and all claims

implicating areas of tribal control. It is true that “unless and

‘until Congress acts, the tribes retain’ their historic sovereign

authority.” Bay Mills, 572 U.S. at 788 (quoting Wheeler,

435 U.S. at 323). But tribal sovereignty reflects “the power

of regulating their internal and social relations,” Santa Clara

Pueblo, 436 U.S. at 55 (quoting United States v. Kagama,

118 U.S. 375, 381–82 (1886)), including the “power to make

their own substantive law in internal matters” and “to

enforce that law in their own forums,” id. at 55–56. Retained

tribal sovereignty does not include the power to immunize

tribal employees from liability for violations of federal

law—whether in connection with suits expressly authorized

by Congress or a Bivens cause of action implied under the

Constitution.

Our conclusion on this point is reinforced by the

Supreme Court’s decision in Lewis, which teaches that a

“tribe’s sovereign immunity is not implicated” in suits

brought against tribal employees in their individual

capacities. See 581 U.S. at 158. Because a tribe’s retained

sovereignty does not shield tribal employees from liability

in individual-capacity actions, we fail to see how a tribe

could nevertheless invoke its sovereignty to enact a statute

that accomplishes the same end. Accepting the Tribal

Officers’ position would undermine Lewis’s holding by

allowing a tribe to effect indirectly through tribal law—by

bestowing absolute immunity on all its officials—what the

Court has instructed its sovereign immunity does not afford.

And the Tribal Officers provide no authority to support the

proposition that a tribe may unilaterally create a defense to a

federal cause of action for tribal officers.

24 ERWINE V. WESTBROOK

Our conclusion is also in harmony with the rule that

States cannot confer immunity on their employees so as to

shield them from liability in federal civil rights actions. See

Doe v. Dynamic Physical Therapy, LLC, 607 U.S. 11, 11

(2025) (per curiam) (“[A] State has no power to confer

immunity from federal causes of action.”). “Congress,” the

Supreme Court has explained, “surely did not intend to

assign to state courts and legislatures a conclusive role in the

formative function of defining and characterizing the

essential elements of a federal cause of action.” Howlett,

496 U.S. at 378 (quoting Wilson v. Garcia, 471 U.S. 261,

269 (1985), superseded by statute on other grounds as

recognized in Jones v. R.R. Donnelley & Sons Co., 541 U.S.

369, 378–80 (2004)). So “a state law that immunizes

government conduct otherwise subject to suit under [a

federal statute] is preempted . . . because the application of

the state immunity law would thwart the congressional

remedy.” Felder v. Casey, 487 U.S. 131, 139 (1988); see

also Martinez, 444 U.S. at 284 n.8. Tribes are, of course,

differently situated than States in our constitutional order.

But the Tribal Officers have not shown that a tribe’s retained

sovereignty empowers the tribe to do something that the

Supreme Court has said a State cannot: immunize conduct

wrongful under federal law.

The Tribal Officers also assert that “the balance of policy

considerations weighs definitively in favor of tribal absolute

immunity.” But the Supreme Court “ha[s] made it clear that

it is not our role ‘to make a freewheeling policy choice,’ and

that we do not have a license to create immunities based

solely on our view of sound policy.” Rehberg, 566 U.S. at

363 (quoting Malley v. Briggs, 475 U.S. 335, 342 (1986)).

“Instead, we conduct ‘a considered inquiry into the

immunity historically accorded the relevant official at

ERWINE V. WESTBROOK 25

common law and the interests behind it.’” Id. (quoting

Imbler, 424 U.S. at 421). Because the Tribal Officers have

not shown that courts recognized personnel management

functions as absolutely immune at common law, absolute

immunity does not apply. See Miller, 335 F.3d at 897

(“[B]eyond those functions historically recognized as

absolutely immune at common law, qualified and only

qualified immunity exists.”).

In sum, we conclude that the functional approach

governs when a tribal employee raises absolute immunity as

a defense in an individual-capacity action arising under

federal law. The Tribal Officers failed to meet their “burden

of showing that [absolute] immunity is justified for the

function in question.” See Burns, 500 U.S. at 486. Thus, the

district court erred by dismissing Erwine’s federal claims on

absolute immunity grounds.

2

We turn next to the Nevada tort claim. Erwine brings a

claim for intentional interference with contractual relations

against Burke, the Tribe’s general counsel. This claim, like

the one in Davis, does concern state tort liability regarding

acts committed in the scope of a tribal official’s

employment. But again, Davis relied on principles of comity

to “predict[]” that Arizona courts would recognize the tribal

official’s assertion of immunity, see 398 F.2d at 85–86; we

did not conclude that a state court must recognize personal

immunity defenses conferred by a tribe.

Perhaps Nevada courts would afford comity and give

effect to the Tribe’s conferral of absolute immunity on its

officials via the Tribe’s Law and Order Code. But the Tribal

Officers have not advanced such an argument. And Davis’s

conclusion that Arizona courts would recognize the Navajo

26 ERWINE V. WESTBROOK

Tribe’s conferral of absolute immunity, on the facts

presented there, does not answer the question of what

Nevada courts would do.

In Acres Bonusing, our evaluation of the tribal officials’

absolute immunity defense did not analyze separately the

plaintiffs’ federal claim and state tort claims. See 17 F.4th

at 905–06, 914–16. Relying on the functional approach, we

determined that certain tribal officials were entitled to

absolute immunity and, from there, concluded that the

district court properly dismissed all claims against them. See

id. When a plaintiff brings “state claims,” however, an

officer typically is entitled “only to state [law] immunities,”

and federal common law does not apply. See Cousins v.

Lockyer, 568 F.3d 1063, 1072 (9th Cir. 2009); Gibson v. City

of Portland, 165 F.4th 1265, 1285 n.7 (9th Cir. 2026)

(looking to state law to determine whether the defendants

were entitled to absolute immunity from state law claims);

Martinez, 444 U.S. at 282–83 (upholding a state immunity

statute as “applied to defeat a tort claim arising under state

law” because a “State’s interest in fashioning its own rules

of tort law is paramount to any discernible federal interest,

except perhaps an interest in protecting the individual citizen

from state action that is wholly arbitrary or irrational”).

Thus, we must consider whether Burke is entitled to absolute

immunity under Nevada law.

The Supreme Court of Nevada has “employ[ed] the

functional approach” to determine whether officials enjoy

absolute immunity under state law. Harrison v. Roitman,

362 P.3d 1138, 1140–43 (Nev. 2015) (en banc); see Nevada

v. Second Jud. Dist. Ct. ex rel. County of Washoe, 55 P.3d

420, 423–27 (Nev. 2002) (per curiam). Under Nevada law,

“[t]he functional approach is made up of three separate

inquiries”: (1) “whether the [person seeking immunity]

ERWINE V. WESTBROOK 27

performed functions sufficiently comparable to those of

[persons] who have traditionally been afforded absolute

immunity at common law”; (2) “whether the likelihood of

harassment or intimidation by personal liability [is]

sufficiently great to interfere with the [person’s]

performance of his or her duties”; and (3) “whether

procedural safeguards exist in the system that would

adequately protect against [illegitimate] conduct by the

[person seeking immunity].” Harrison, 362 P.3d at 1140

(alterations in original) (quoting Second Jud. Dist. Ct., 55

P.3d at 424–25). In applying the functional approach, the

Supreme Court of Nevada has relied on cases from the

Supreme Court of the United States. See, e.g., id. at 1140–

43; Second Jud. Dist. Ct., 55 P.3d at 423–27.

At oral argument, counsel made clear that Burke does not

claim any immunity under Nevada law. It is unclear,

however, whether Burke has abandoned such a claim only

for purposes of appeal. Burke did not raise in the district

court, and the district court did not consider, whether state

law immunities entitle Burke to absolute immunity.

“In general, an appellate court does not decide issues that

the trial court did not decide.” Planned Parenthood of

Greater Wash. & N. Idaho v. U.S. Dep’t of Health & Hum.

Servs., 946 F.3d 1100, 1110 (9th Cir. 2020). But there are

exceptions to this rule, including “[w]hen ‘proper resolution

is beyond any doubt,’ when ‘injustice might otherwise

result,’ and when an issue is purely legal.” Id. (quoting

Singleton v. Wulff, 428 U.S. 106, 121 (1976)). In the interest

of judicial economy, we exercise our discretion to decide in

the first instance whether Burke is entitled to absolute

immunity under Nevada law. This is a purely legal question

unaffected by further development of the factual record, and

no party has asked us to certify it to the Supreme Court of

28 ERWINE V. WESTBROOK

Nevada. Further, the Tribal Officials will not be prejudiced

by our decision to reach this issue because they had an

opportunity to brief it in their supplemental brief. See

Dream Palace v. County of Maricopa, 384 F.3d 990, 1005

(9th Cir. 2004).

Undertaking Nevada’s three-part functional approach

inquiry, we conclude Nevada courts would find that Burke

is not absolutely immune for his acts relating to Erwine’s

termination. As discussed, Burke acted in an administrative

capacity in terminating Erwine. So he did not perform

functions sufficiently comparable to those recognized as

absolutely immune at common law. See Forrester, 484 U.S.

at 229 (concluding that a judge acted in an administrative

capacity in discharging an employee and was not entitled to

absolute immunity); cf. Whitehead v. Nev. Comm’n On Jud.

Discipline, 906 P.2d 230, 250 (Nev. 1994) (explaining that

only qualified immunity applies to “functions that are

administrative or otherwise non-judicial in nature”).

As to the second consideration, absolute immunity is

“strong medicine, justified only when the danger of

[officials’ being] deflect[ed from the effective performance

of their duties] is very great.” See Forrester, 484 U.S. at 230

(alterations in original) (quoting Forrester v. White, 792

F.2d 647, 660 (7th Cir. 1986) (Posner, J., dissenting)). We

see no basis to conclude that the looming threat of liability

would interfere with tribal officials’ duties any more than it

would with those of other public officials who fire

subordinates. And the Supreme Court has recognized that

qualified immunity is enough to protect officials for their

employment decisions. See id.

Finally, on the facts as alleged, the remedies and

safeguards other than civil liability are insufficient to hold

ERWINE V. WESTBROOK 29

tribal officials accountable for misconduct in personnel

decisions. While the Tribe had a grievance process in place,

Erwine contends that Burke improperly “den[ied] him the

opportunity to file a grievance and respond to the allegations

surrounding his termination.” So this factor likewise weighs

against immunity.

We thus predict that the Supreme Court of Nevada would

determine that Burke is not entitled to absolute immunity

under Nevada law.

Having declined to invoke any state law immunities,

Burke tells us that he instead relies on “tribal immunity, as a

matter of federal law.” But his assertion that the Tribe’s own

immunity protects Burke—a tribal employee sued in his

individual capacity—from a state tort claim runs headlong

into Lewis. See 581 U.S. at 158 (“[I]n a suit brought against

a tribal employee in his individual capacity, . . . the tribe’s

sovereign immunity is not implicated.”).

We conclude that a tribe’s conferral of immunity does

not, by its own force, entitle an officer to absolute immunity

in an individual-capacity suit arising under Nevada state law.

The district court erred in holding otherwise. Thus, Erwine’s

Nevada tort claim against Burke should not have been

dismissed on absolute immunity grounds.

IV

That brings us to the Tribal Officers’ contention that the

district court properly dismissed this suit because the Tribe

is a required party under Federal Rule of Civil Procedure 19

that cannot be joined in the action on account of its sovereign

immunity. “We review a district court’s decision to dismiss

a case for failure to join a required party under Rule 19 for

abuse of discretion, and we review any legal questions

30 ERWINE V. WESTBROOK

underlying that decision de novo.” Klamath Irrigation Dist.,

48 F.4th at 943. Here too we disagree with the district

court’s analysis. We conclude that Erwine’s claims against

the Tribal Officers should proceed, and that Rule 19 does not

stand in the way.

A

A party may move to dismiss a claim under

Rule 12(b)(7) for “failure to join a party under Rule 19.”

Fed. R. Civ. P. 12(b)(7). Rule 19 sets forth a three-step

inquiry.

“First, we determine whether the absent party is

‘required’ under Rule 19(a).” Maverick Gaming LLC v.

United States, 123 F.4th 960, 972 (9th Cir. 2024). As

relevant here, this step is satisfied when “the [t]ribe has a

legally protected interest in the lawsuit that may be impaired

or impeded in the [t]ribe’s absence.” Id.; see

Fed. R. Civ. P. 19(a)(1)(B)(i).

“If the absent party is required, we then ‘determine

whether joinder of that party is feasible.’” Id. (quoting

Klamath Irrigation Dist., 48 F.4th at 943). “Rule 19(a) sets

forth three circumstances in which joinder is not feasible:

when venue is improper, when the absentee is not subject to

personal jurisdiction, and when joinder would destroy

subject matter jurisdiction.” EEOC v. Peabody W. Coal Co.,

400 F.3d 774, 779 (9th Cir. 2005) (citing

Fed. R. Civ. P. 19(a)). If joinder is not feasible, we proceed

to “determine whether, in equity and good conscience, the

action should proceed among the existing parties or should

be dismissed.” Fed. R. Civ. P. 19(b).

On appeal, the parties dispute only the first step of the

inquiry: whether the Tribe is a required party. The district

ERWINE V. WESTBROOK 31

court determined that joinder of the Tribe is required because

Erwine’s claims called for it “to evaluate the Washoe Tribe’s

employment policies at its police department and determine

whether or not they have been violated.” And, in the district

court’s view, this “detailed review of the Washoe Tribe’s

policies as applied to the facts of Erwine’s

termination . . . would impinge on the Washoe Tribe’s

ability to govern itself.”

B

The applicable principles are settled. “To come within

the bounds of Rule 19(a)(1)(B)(i), the interest of the absent

party must be a legally protected interest and not merely

some stake in the outcome of the litigation.” Jamul Action

Comm. v. Simermeyer, 974 F.3d 984, 996 (9th Cir. 2020).

The interest “must be ‘more than a financial stake.’” Diné

Citizens Against Ruining Our Env’t v. Bureau of Indian Affs.,

932 F.3d 843, 852 (9th Cir. 2019) (quoting Makah Indian

Tribe v. Verity, 910 F.2d 555, 558 (9th Cir. 1990)). While

“[t]here is no precise formula for determining whether a

particular nonparty should be joined under Rule 19(a),”

Bakia v. Los Angeles County, 687 F.2d 299, 301 (9th Cir.

1982) (per curiam), “we have emphasized the ‘practical’ and

‘fact-specific’ nature of the inquiry,” Cachil Dehe Band of

Wintun Indians of the Colusa Indian Cmty. v. California, 547

F.3d 962, 970 (9th Cir. 2008) (quoting Makah, 910 F.2d at

558).

Our case law recognizes that an Indian tribe is “a

required party to an action that seeks to vacate, invalidate, or

otherwise alter its property interests.” Welsh, 178 F.4th at

490 (collecting cases). For example, when a plaintiff seeks

injunctive relief that would impair a legally protected

interest of the tribe, we have determined that the tribe is

32 ERWINE V. WESTBROOK

indeed a required party. See, e.g., Jamul Action Comm., 974

F.3d at 990, 988, 996–98 (finding that the absent tribe had a

protected interest when the plaintiff sought to enjoin

construction on tribal land and also challenged the tribe’s

title in its land); Dawavendewa v. Salt River Project Agr.

Imp. & Power Dist., 276 F.3d 1150, 1155–57 (9th Cir. 2002)

(finding that the suit threatened to impair the absent tribe’s

contractual interests when the plaintiff sought to enjoin use

of hiring policy contained in contract to which the tribe was

a signatory); McClendon v. United States, 885 F.2d 627, 629,

633 (9th Cir. 1989) (finding that the absent tribe was a

required party to action seeking injunctive relief to enforce

lease agreement signed by the tribe). So too when the relief

sought would have “‘retroactive effects’ on rights already

enjoyed by a tribe.” Jamul Action Comm., 974 F.3d at 997

(quoting Diné Citizens, 932 F.3d at 852–53); see Diné

Citizens, 932 F.3d at 853 (finding a legally protected interest

when relief would impair the absent tribe’s existing lease,

rights-of-way, and surface mining permits); Klamath

Irrigation Dist., 48 F.4th at 938 (finding that the declaratory

relief sought would imperil the absent tribes’ water and

fishing rights).

This case is different from those in which we have found

a tribe to be a required party. Erwine seeks money damages

against the Tribal Officers in their individual capacities. But

he does not challenge any tribal contract, policy, or

sovereign act. He has not, for example, sought to enjoin

certain provisions of the Tribe’s self-determination contract

with the United States or any policies of the Tribe or its

police department. Nor has he asked for an injunction that

would overrule the Tribe’s termination decision and restore

him to the police force. So a monetary judgment in his favor

would not impair any legally protected interests of the Tribe

ERWINE V. WESTBROOK 33

itself. See Welsh, 178 F.4th at 491 (finding that the tribe was

not a required party because the plaintiffs “d[id] not seek to

reinstate the[ir] lease” with the tribe).

The Tribal Officers disagree. Invoking the district

court’s reasoning, the Tribal Officers press that the “Tribe’s

sovereignty is implicated here” because Erwine “seeks to

hold [them] liable for alleged acts they took as tribal officers

and employees while directing the operations of the tribal

police department, responding to complaints about

[Erwine]’s behavior as a tribal police officer, and

administering the Tribe’s grievance process.” But again,

Erwine seeks relief against tribal employees only in their

personal capacities. In this type of suit, a money judgment

does not implicate the Tribe’s interest in self-governance.

See Lewis, 581 U.S. at 162–63 (“‘[O]fficers sued in their

personal capacity come to court as individuals,’ and the real

party in interest is the individual, not the sovereign.”

(alteration in original) (quoting Hafer, 502 U.S. at 27)). The

Tribal Officers therefore have failed to demonstrate that the

Tribe has a legally protected interest in the action.

While Lewis did not concern dismissal under

Rule 12(b)(7), the Supreme Court’s guidance that a tribe’s

own sovereignty “is not implicated” in suits brought against

tribal employees in their individual capacities, see 581 U.S.

at 158, is nevertheless instructive. Looking to that guidance

and considering the scope of the relief sought here, we

disagree with the district court and the Tribal Officers. We

find that adjudicating Erwine’s claims would not impinge on

the Tribe’s ability to govern itself.

Taking a different tack, the Tribal Officers contend that

certain allegations in the complaint challenge conduct of the

Tribe itself, not that of individual tribal officials. But given

34 ERWINE V. WESTBROOK

the nature of the relief Erwine seeks and read in the context

of his whole complaint, the language to which the Tribal

Officers refer does not convert the Tribe into a required party

to this litigation.

Because the Tribe does not have a legally protected

interest in the outcome of the litigation that might be

impaired in its absence, the district court erred in

determining that the Tribe is a required party under Rule 19.

Having determined that the Tribe is not a required party, we

need not proceed to the remaining steps of the Rule 19

inquiry. The district court erred in dismissing Erwine’s

claims pursuant to Rule 12(b)(7).

V

The last ground urged for affirmance is qualified

immunity. The district court did not reach the Tribal

Officers’ qualified immunity defenses. As noted, we

generally “do[] not decide issues that the trial court did not

decide.” Planned Parenthood, 946 F.3d at 1110. And we

have repeatedly declined to conduct the qualified immunity

analysis in the first instance. See, e.g., Price v. Hawaii, 939

F.2d 702, 707 (9th Cir. 1991) (“[I]mmunity is an issue that

should first be addressed by the trial court.”); Hargis v.

Foster, 312 F.3d 404, 411 (9th Cir. 2002); Grenning v.

Miller-Stout, 739 F.3d 1235, 1241 (9th Cir. 2014); Fuqua v.

Raak, 120 F.4th 1346, 1357 n.7 (9th Cir. 2024).

We follow that course here, leaving the district court to

consider the Tribal Officers’ assertion of qualified immunity

on remand.

VI

Because tribal sovereign immunity does not bar this suit,

the Tribal Officers do not enjoy absolute personal immunity,

ERWINE V. WESTBROOK 35

and the Tribe is not a required party under Rule 19, the

district court erred by dismissing Erwine’s claims. We

reverse and remand for further proceedings consistent with

this opinion.

REVERSED and REMANDED.