Lower court opinion 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.
Interesting development, in that the State found a tribal court case adopting the infamous 11-part test cobbled together by the Colorado Court of Appeals (earlier briefs are here):
In our experience, tribal courts rarely apply a common law test in determining whether or not a tribal business entity is immune from suit. They don’t need to, given that tribal business entities are created via a document (e.g., articles of incorporation) or statute (e.g., tribal corporations code) that spells out in exacting detail the contours of immunity.
Strangely, state courts adopting these 11- or 3- or 5-part tests (or whatever) don’t spend enough time looking at the tribal statutory law, and are prone to creating common law for their own purposes.
Colorado seems to be trying to play a weird game of “gotcha!” here. Not sure how this material is relevant. Now if they had found a case from Miami Tribe or Santee Sioux tribal court, hmmm….
Here is the next round of briefs (first round was here, an additional round is expected after the holidays):
Here is Cash Advance’s brief in Colorado ex rel. Suthers v. Cash Advance — Cash Advance Opening Brief
This case involves an effort by Cash Advance and other payday loan companies to avoid state investigation/process by licensing themselves with Indian tribes (the Miami Tribe and Santee Sioux Nation), and asserting tribal sovereign immunity. Our previous posting with links to related materials is here.