# Erwine v. Westbrook

> Court of Appeals for the Ninth Circuit · September 11, 2026

URL: https://www.frixlaw.com/law-library/cases/11439611

## Case

- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** September 11, 2026
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11439611. Public record. Not legal advice.