242 P.3d 1099
Colo.2010Background
- Subpoenas issued by Colorado AG and Uniform Consumer Credit Code administrator in 2005 to Cash Advance and Preferred Cash Loans for lending activities with Colorado consumers.
- Entities Cash Advance and Preferred Cash Loans claim they are wholly owned subdivisions of the Miami Nation of Oklahoma and Santee Sioux Nation, respectively, and thus immune as arms of tribes.
- Trial court enforced subpoenas; after two years, tribal entities moved to dismiss for lack of jurisdiction; discovery and waiver issues arose during remand proceedings.
- Court of Appeals held tribal immunity applies to state investigative enforcement and mandated an eleven-factor test to determine arm status and waiver.
- Colorado Supreme Court held tribal immunity applies to state investigative actions, remanding for a three-factor arm-of-the-tribe determination (creation, ownership/operation, sovereignty impact) and addressing tribal officer immunity, waiver, and discovery scope.
- The majority affirms the Court of Appeals but refines the standards for remand; concurrences address procedural and doctrinal critiques.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Do tribal sovereign immunities apply to state investigative subpoena enforcement actions? | Cash Advance argues immunity applies; state enforcement cannot compel production. | Suthers argues immunity is not applicable to investigative enforcement actions against tribes. | Yes, tribal immunity applies; remand required to assess arm status. |
| What standard governs whether Cash Advance and Preferred Cash Loans are arms of the tribes? | Cash Advance argues Seventh-lism test should apply? (abbreviated) | State argues the eleven-factor test controls; needs broad inquiry. | Three tailored factors govern; discard eleven-factor test; remand for arm determination. |
| Do tribal officers have immunity when acting within the scope of tribal authority? | Officers should be immune if acting within authority; immunity extends to tribal actions. | State argues officers can be liable if acting under state law violations. | Tribal officers are immune when acting within their lawful authority but may be liable if outside scope. |
| Who bears the burden and scope of discovery/waiver relevant to immunity on remand? | State bears burden to show lack of immunity; discovery scope is broad. | Tribal entities may waive immunity; discovery should be tailored. | Waiver must be explicit and unequivocal; discovery scope limited to waiver relevance; state bears burden of jurisdiction. |
| Is waiver of tribal immunity recognized for information specific to immunity determination? | Court of Appeals allowed broad waiver via documentation; no explicit waiver required. | Waiver must be explicit and unequivocal per Supreme Court. | Waiver must be explicit; limited scope of waiver allowed for information directly relevant to immunity. |
Key Cases Cited
- Kiowa Tribe of Oklahoma v. Mfg. Techs., Inc., 523 U.S. 751 (U.S. 1998) (immunity extends to off-reservation activities; arms of tribe possible)
- Puyallup Tribe, Inc. v. Washington Dept. of Game, 433 U.S. 165 (U.S. 1977) (tribal immunity shields tribe from information demands by state)
- Santa Clara Pueblo v. Martinez, 436 U.S. 49 (U.S. 1978) (tribal sovereignty and scope of immunity; carve-outs for federal law)
- Three Affiliated Tribes of Ft. Berthold Reservation v. Wold Eng'g, 476 U.S. 877 (U.S. 1986) (tribal sovereignty; immunity as corollary to self-government)
- Inyo County v. Paiute-Shoshone Indians, 538 U.S. 701 (U.S. 2003) (arm-of-the-tribe recognition in context of tribal entities)