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Ninth Circuit Rules That Individual Tribal Defendants May Not Be Entitled to Sovereign Immunity Protection
As a general principle in Federal Indian Law, tribal sovereign immunity extends to tribal officials acting in their representative capacities and within the scope of their authority.1 However, a recent Ninth Circuit decision clarifies that tribal defendants sued for money damages in their individual capacities are not entitled to sovereign immunity, even if their actions were taken in the course of their official duties.2
In Welsh v. Loudbear, the Ninth Circuit Court of Appeals held that three tribal officials of the Colorado River Indian Tribes (CRIT) could not invoke tribal sovereign immunity in a civil Racketeer Influenced and Corrupt Organizations (RICO) action. The Court ruled that the tribal officials were not entitled to invoke sovereign immunity because the plaintiffs sought damages resulting from alleged criminal acts carried out by the individual officials, not the tribe.
The Court affirmed a previous United States Supreme Court decision explaining that courts look to whether the sovereign is the real party in interest to determine whether sovereign immunity bars suit.3 Here, the Court reasoned that, because the tribal defendants were sued in their individual capacities for money damages, and would be personally liable for any judgment, the individual tribal officials could not claim sovereign immunity.
The Court further held that CRIT was not a necessary party to the suit because the outcome of the litigation did not affect CRIT’s real property interests or contractual rights. The suit involved a lease between the plaintiffs and CRIT, but the plaintiffs did not seek to reinstate the lease; rather they sought damages for alleged criminal acts. The Court reasoned that, even though CRIT was an interested party in the suit, it did not have an interest “impaired or impeded” by the litigation because any recovery would run against the individual tribal members, not CRIT. The Court reached this conclusion regardless of whether CRIT may ultimately indemnify its officials.
The Welsh v. Loudbear decision reinforces that courts are likely to focus on the practical legal effect of the requested relief. If a judgment only binds individual officials and not the tribe itself, tribal sovereign immunity may not bar action against those individuals. Although this case is limited to individual tribal defendants, it could have broader implications.4
Footnotes
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Hardin v. White Mountain Apache Tribe, 779 F.2d 476, 479 (9th Cir. 1985).
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Welsh v. Loudbear, No. 25-5475, 2026 WL 1614177, at *10 (9th Cir. June 4, 2026). See also Pistor v. Garcia, 791 F.3d 1104, 1112 (9th Cir. 2015) (same).
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Lewis v. Clark, 581 U.S. 155, 155-56 (2017).
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Special thanks to Emily Grambsch, rising second-year law student at University of Arizona James E. Rogers College of Law, for her assistance in preparing this article.
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