Here is the opinion. Briefs are here and here.

And here is the Court’s syllabus:

In this tribal sovereign immunity case, the Colorado Supreme Court affirms the court of appeals’ decision to remand the case to the trial court to determine whether Cash Advance and Preferred Cash Loans act as arms of the Miami Nation of Oklahoma and the Santee Sioux Nation, respectively, such that their activities are properly deemed to be those of the tribes. As an initial matter, the court holds that tribal sovereign immunity applies to judicial enforcement of state investigatory actions, including this state investigative subpoena enforcement action. Because the trial court arrived at a contrary conclusion, a remand is necessary to determine whether Cash Advance and Preferred Cash Loans are arms of their respective tribes such that their activities are properly deemed to be those of the tribes.

In determining whether Cash Advance and Preferred Cash Loans are arms of their respective tribes, the trial court shall consider the following three factors: (1) whether the tribes created the entities pursuant to tribal law; (2) whether the tribes own and operate the entities; and (3) whether the entities’ immunity protects the tribes’ sovereignty. The state bears the burden of proving, by a preponderance of the evidence, that Cash Advance and Preferred Cash Loans are not entitled to tribal sovereign immunity.

Additionally, the supreme court disagrees with the court of appeals’ determination that tribal sovereign immunity does not extend to tribal officers engaged in conduct allegedly violating state law. Instead, the appropriate determination with respect to individual tribal officers is whether they acted within the scope of their lawful authority, as defined by the tribe and limited only by federal law.The supreme court further disagrees with the court of appeals’ to the extent it would recognize a waiver of sovereign immunity that is not explicit and unequivocal. The court of appeals directed the trial court to look for a waiver of tribal sovereign immunity in a broad range of sources, including a contractual arbitration clause between Cash Advance or Preferred Cash Loans and Colorado customers. The court, however, finds it unlikely that an explicit and unequivocal waiver of tribal sovereign immunity would be found in such an arbitration clause.

Continue reading →