Bonnet v. Harvest (U.S.) Holdings, Inc., 741 F.3d 1155

Robert Bonnet (and his sole proprietorship) contracted with the Ute Indian Tribe’s Energy and Minerals Department; the Tribe later terminated the contract and Bonnet sued third parties in federal court (not the Tribe), alleging those defendants caused the termination.
Plaintiffs served a non-party subpoena duces tecum on the Tribe seeking documents relevant to the underlying suit.
The Tribe moved to quash the subpoena on grounds of tribal sovereign immunity; the district court denied the motion to quash but narrowed/struck certain requests and the Tribe appealed.
The appeal raised (1) whether a non-party tribe may immediately appeal denial of a motion to quash based on tribal immunity and (2) whether a subpoena served directly on a tribe constitutes a "suit" triggering tribal sovereign immunity.
The Tenth Circuit concluded it had appellate jurisdiction under the Cohen collateral-order doctrine and reversed the district court, holding that a subpoena duces tecum served on a tribe is a "suit" barred by tribal sovereign immunity.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether denial of a tribe's motion to quash a subpoena is immediately appealable when the tribe is a non-party	Denial of immunity generally is appealable, but Dietrich requires an extraordinary showing for non-party appeals and the Tribe failed to show unique injury because district court narrowed requests	Tribal immunity is jurisdictional; denying appeal would vest court with jurisdiction over an immune non-party—absurd; Cohen collateral-order factors are satisfied	The order is an immediately appealable collateral order; Tenth Circuit has jurisdiction to hear the appeal
Whether a subpoena duces tecum served directly on a non-party tribe is a "suit" triggering tribal sovereign immunity	Plaintiffs argued tribal immunity should not be read to bar this discovery and urged limiting analogies to federal/state sovereign immunity; cited differences in scope of tribal immunity	Tribe argued a subpoena is judicial process and, under precedent, constitutes a "suit" invoking sovereign immunity	A subpoena served on the Tribe is a "suit"/judicial process and tribal sovereign immunity bars enforcement of the subpoena

Kiowa Tribe v. Mfg. Techs., 523 U.S. 751 (tribal immunity applies absent congressional abrogation or waiver)
Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (collateral-order doctrine for immediate appealability)
United States v. Murdock Mach. & Eng’g Co. of Utah, 81 F.3d 922 (10th Cir.) ("suit" includes judicial process; sovereign immunity bars certain judicial remedies)
Becker v. Kroll, 494 F.3d 904 (10th Cir. 2007) (issuance of a subpoena initiates judicial process that can command production)
Osage Tribal Council ex rel. Osage Tribe v. U.S. Dep’t of Labor, 187 F.3d 1174 (10th Cir. 1999) (denial of tribal immunity is an immediately appealable collateral order)
Alltel Commc’ns, LLC v. DeJordy, 675 F.3d 1100 (8th Cir. 2012) (third-party subpoena to a tribe is a "suit" subject to tribal immunity)
Cohens v. Virginia, 19 U.S. 264 (early definition of "suit" as prosecution of a demand in court)
Touhy v. Ragen, 340 U.S. 462 (Supreme Court limited compelled disclosure from federal agencies via other grounds)
Ex parte Young, 209 U.S. 123 (exception allowing suits for prospective relief against officials)
Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (judicial process cannot bind sovereign absent consent)
Dugan v. Rank, 372 U.S. 609 (judgment that would expend public treasury or restrain government is against the sovereign)