tribal sovereign immunity in California

2017(See, e.g., Oklahoma Tax Com’n v. Potawatomi Indian Tribe (1991) 498 U.S. 505, 513 (Oklahoma Tax Com’n) [“the doctrine of tribal sovereign immunity does not prevent a State from requiring Indian retailers doing business on tribal reservations to collect a state-imposed cigarette tax on their sales to nonmembers of the Tribe”14]; Colville, supra, 447 U.S. at p. 151 [“And the State may impose at least ‘minimal’ burdens on the Indian retailer to aid in enforcing and collecting the [state] tax.”]; Moe v. Confederated Salish and Kootenai Tribes of Flathead 13 Title 5 of the United States Code secti

2017(See, e.g., Oklahoma Tax Comm’n v. Potawatomi Indian Tribe (1991) 498 U.S. 505, 513 [ 112 L.Ed.2d 1112 , 111 S.Ct. 905 ] (Oklahoma Tax Comm ’n) [“the doctrine of tribal sovereign immunity does not prevent a State from requiring Indian retailers doing business on tribal reservations to collect a state-imposed cigarette tax on their sales to nonmembers of the Tribe”]; 14 Colville, supra, 447 U.S. at p. 151 [“And the State may impose at least ‘minimal’ burdens on the Indian retailer to aid in enforcing and collecting the [state] tax.”]; Moe v. Salish & Kootenai Tribes (1976) 425 U.S. 463, 483 [ 4

2024(Agua Caliente, supra, 40 Cal.4th at pp. 244-245, 259-261.) This was so because the state law that the Fair Political Practices Commission sought to judicially enforce was vitally important to preserving the integrity of California’s democratic system of governance, making the matter substantially different “from cases concerning application of sovereign 4 immunity involving a tribe’s contracts or commercial ventures, its courts and governing bodies, or tribal lands.” (Id. at pp. 260-261.) Though a three-Justice dissent criticized this creation of an exception to the doctrine of tribal soverei

2024(Agua Caliente, supra, 40 Cal.4th at pp. 244-245, 259-261.) This was so because the state law that the Fair Political Practices Commission sought to judicially enforce was vitally important to preserving the integrity of California’s democratic system of governance, making the matter substantially different “from cases concerning application of sovereign 4 immunity involving a tribe’s contracts or commercial ventures, its courts and governing bodies, or tribal lands.” (Id. at pp. 260-261.) Though a three-Justice dissent criticized this creation of an exception to the doctrine of tribal soverei

2011(Warburton/Buttner, supra, at p. 1183.) In Smith, supra, 95 Cal.App.4th 1 , the court set forth the view that an otherwise binding contract was effective to waive sovereign immunity, under the applicable tribal sovereign immunity ordinance, even where the explicit waiver was made by contract, instead of pursuant to a tribal ordinance or resolution.

2005Code, § 452, subds. (a), (b), (c); see Smith, supra, 95 Cal.App.4th at p. 7, fn. 8 [“The tribal sovereign immunity ordinance is judicially noticeable. [Citations.]”) The Tribe goes further, however.

2014(See Ameriloan, supra, 169 Cal.App.4th at p. 88 .) 4 Our opinion briefly summarized the tribal sovereign immunity doctrine, explaining, “An Indian tribe’s sovereign nation status confers an absolute immunity from suit in federal or state court, absent an express waiver of that immunity or congressional authorization to sue.” (Ameriloan, supra, 169 Cal.App.4th at p. 89 .) We then quoted the key language from the United States Supreme Court’s decision in Kiowa Tribe v. Manufacturing Tech. (1998) 523 U.S. 751 [ 118 S.Ct. 1700 , 140 L.Ed.2d 981 ] (Kiowa), which held a federally recognized Indian t

2014(See Ameriloan, supra, 169 Cal.App.4th at p. 88 .) 4 Our opinion briefly summarized the tribal sovereign immunity doctrine, explaining, “An Indian tribe’s sovereign nation status confers an absolute immunity from suit in federal or state court, absent an express waiver of that immunity or congressional authorization to sue.” (Ameriloan, supra, 169 Cal.App.4th at p. 89 .) We then quoted the key language from the United States Supreme Court’s decision in Kiowa Tribe v. Manufacturing Tech. (1998) 523 U.S. 751 [ 118 S.Ct. 1700 , 140 L.Ed.2d 981 ] (Kiowa), which held a federally recognized Indian t

2002(C & L Enterprises, supra, 532 U.S. 411 [ 121 S.Ct. 1589 ].) For the same reasons that the court in C & L Enterprises rejected the argument that to be deemed “explicit” the waiver must use the words “sovereign immunity,” we do not interpret the reference in the tribal ordinance to an “explicit” waiver to mean that a resolution must use the magic words “waiver” or “sovereign immunity.” It is unclear, however, whether the phrase “adopted pursuant to such authorizing Ordinance” means that such a resolution must also be preceded by a separate ordinance authorizing the tribal council, by resolution

2002(C & L Enterprises, supra, 532 U.S. 411 [ 121 S.Ct. 1589 ].) For the same reasons that the court in C & L Enterprises rejected the argument that to be deemed “explicit” the waiver must use the words “sovereign immunity,” we do not interpret the reference in the tribal ordinance to an “explicit” waiver to mean that a resolution must use the magic words “waiver” or “sovereign immunity.” It is unclear, however, whether the phrase “adopted pursuant to such authorizing Ordinance” means that such a resolution must also be preceded by a separate ordinance authorizing the tribal council, by resolution

2016"Indian tribes are ' "domestic dependent nations" ' that exercise 'inherent sovereign authority.' " (Michigan v. Bay Mills Indian Community (2014) 572 U.S. ___ [ 188 L.Ed.2d 1071, 1082 , 134 S.Ct. 2024, 2030 ].) "Among the core aspects of sovereignty that tribes possess . . . is the 'common-law immunity from suit traditionally enjoyed by sovereign powers.' " ( 188 L.Ed.2d at p. 1083 .) Thus, "[a]s a matter of federal law, an 3 All further rule references are to the California Rules of Court. 6 Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived i

2016"Indian tribes are ' "domestic dependent nations" ' that exercise 'inherent sovereign authority.' " (Michigan v. Bay Mills Indian Community (2014) 572 U.S. ___ [ 188 L.Ed.2d 1071, 1082 , 134 S.Ct. 2024, 2030 ].) "Among the core aspects of sovereignty that tribes possess . . . is the 'common-law immunity from suit traditionally enjoyed by sovereign powers.' " ( 188 L.Ed.2d at p. 1083 .) Thus, "[a]s a matter of federal law, an 3 All further rule references are to the California Rules of Court. 6 Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived i

2024Thus, for example, Alford emphasizes and relies upon Acres Bonusing, Inc. v. Marston (9th Cir. 2021) 17 F.4th 901, 911-914 (Acres Bonusing) (rejecting principle that the effect a judgment sought would have on the administration of tribal affairs is a matter to be considered in evaluating a tribal sovereign immunity defense) and Acres v. Marston (2021) 72 Cal.App.5th 417 , 437-439, and Novak emphasizes and relies upon Brown v. Garcia (2017) 17 Cal.App.5th 1198, 1205-1207 (finding tribal sovereign immunity applies due to effect the judgment sought would have on administration of tribal affairs).

2024(Cf. Acres Bonusing, 17 F.4th at p. 918 (conc. opn. of Feinerman, J.) [criticizing Acres Bonusing majority for “[d]iminishing or excising,” and “leav[ing] no room for independent operation of,” the principle that consideration must be given to whether a judgment sought would interfere with the administration of tribal affairs, and for “effectively suggest[ing] . . . [that principle] is a dead letter”]). 5 showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.) Among the ways in which a defendant may satisfy that initial burden is by producing evide

2024(Id. at p. 212.) The majority opinion noted that (1) on appeal, plaintiffs in the quiet title action did not persuasively explain why the appellate court should create an immovable property exception to the doctrine of tribal sovereign immunity (id. at p. 218) and (2) the facts of the case made it a poor vehicle for taking the immovable property exception present in the related doctrine of state sovereign immunity and extending that exception to the doctrine of tribal sovereign immunity (id. at p. 221; see id. at p. 216).5 A concurring opinion expressed the view that the doctrine of tribal sov

2024(Id. at p. 212.) The majority opinion noted that (1) on appeal, plaintiffs in the quiet title action did not persuasively explain why the appellate court should create an immovable property exception to the doctrine of tribal sovereign immunity (id. at p. 218) and (2) the facts of the case made it a poor vehicle for taking the immovable property exception present in the related doctrine of state sovereign immunity and extending that exception to the doctrine of tribal sovereign immunity (id. at p. 221; see id. at p. 216).5 A concurring opinion expressed the view that the doctrine of tribal sov

2024(Cf. Larson v. Domestic & Foreign Commerce Corp. (1949) 337 U.S. 682, 690 [noting in context of sovereign immunity defense that “jurisdiction of the court to hear the case may depend . . . upon the decision . . . it ultimately reaches on the merits”]; Land, supra, 339 U.S. at p. 739 [holding, in situation in which evidence needed to evaluate sovereign immunity defense had not been presented and in which such evidence partially overlapped with evidence as to the merits of plaintiffs’ claims, that trial court “has jurisdiction to determine its jurisdiction by proceeding to a decision on the meri

2024(Cf. Larson v. Domestic & Foreign Commerce Corp. (1949) 337 U.S. 682, 690 [noting in context of sovereign immunity defense that “jurisdiction of the court to hear the case may depend . . . upon the decision . . . it ultimately reaches on the merits”]; Land, supra, 339 U.S. at p. 739 [holding, in situation in which evidence needed to evaluate sovereign immunity defense had not been presented and in which such evidence partially overlapped with evidence as to the merits of plaintiffs’ claims, that trial court “has jurisdiction to determine its jurisdiction by proceeding to a decision on the meri

2024(Agua Caliente, supra, 40 Cal.4th at pp. 259-261; see Lawrence v. Barona Valley Ranch Resort & Casino (2007) 153 Cal.App.4th 1364, 1370 [“Unlike Agua Caliente, this action does not involve a state’s attempts to enforce its laws governing political processes”].) 8 holding that because the high court “did not directly address the precise issue presented in” the California decision, the appellate court would not “disregard” the California decision].) And that a decision of the Supreme Court of a sister state might support creation of an immovable property exception to tribal immunity is immateria

2024(See Truly Nolen of America v. Superior Court (2012) 208 Cal.App.4th 487, 507 [agreeing with a party that an opinion of the United States Supreme Court “implicitly disapproved the reasoning” of a California Supreme Court decision, but 4 Agua Caliente stands, in part, for the proposition that California courts may occasionally have a role in shaping the boundaries of the doctrine of tribal sovereign immunity, at least when it comes to preserving the integrity of our state’s democratic system of governance.

2024Thus, for example, Alford emphasizes and relies upon Acres Bonusing, Inc. v. Marston (9th Cir. 2021) 17 F.4th 901, 911-914 (Acres Bonusing) (rejecting principle that the effect a judgment sought would have on the administration of tribal affairs is a matter to be considered in evaluating a tribal sovereign immunity defense) and Acres v. Marston (2021) 72 Cal.App.5th 417 , 437-439, and Novak emphasizes and relies upon Brown v. Garcia (2017) 17 Cal.App.5th 1198, 1205-1207 (finding tribal sovereign immunity applies due to effect the judgment sought would have on administration of tribal affairs).

2017(See, e.g., Oklahoma Tax Comm’n v. Potawatomi Indian Tribe (1991) 498 U.S. 505, 513 [ 112 L.Ed.2d 1112 , 111 S.Ct. 905 ] (Oklahoma Tax Comm ’n) [“the doctrine of tribal sovereign immunity does not prevent a State from requiring Indian retailers doing business on tribal reservations to collect a state-imposed cigarette tax on their sales to nonmembers of the Tribe”]; 14 Colville, supra, 447 U.S. at p. 151 [“And the State may impose at least ‘minimal’ burdens on the Indian retailer to aid in enforcing and collecting the [state] tax.”]; Moe v. Salish & Kootenai Tribes (1976) 425 U.S. 463, 483 [ 4

2017(See, e.g., Oklahoma Tax Comm’n v. Potawatomi Indian Tribe (1991) 498 U.S. 505, 513 [ 112 L.Ed.2d 1112 , 111 S.Ct. 905 ] (Oklahoma Tax Comm ’n) [“the doctrine of tribal sovereign immunity does not prevent a State from requiring Indian retailers doing business on tribal reservations to collect a state-imposed cigarette tax on their sales to nonmembers of the Tribe”]; 14 Colville, supra, 447 U.S. at p. 151 [“And the State may impose at least ‘minimal’ burdens on the Indian retailer to aid in enforcing and collecting the [state] tax.”]; Moe v. Salish & Kootenai Tribes (1976) 425 U.S. 463, 483 [ 4

2017(See, e.g., Oklahoma Tax Com’n v. Potawatomi Indian Tribe (1991) 498 U.S. 505, 513 (Oklahoma Tax Com’n) [“the doctrine of tribal sovereign immunity does not prevent a State from requiring Indian retailers doing business on tribal reservations to collect a state-imposed cigarette tax on their sales to nonmembers of the Tribe”14]; Colville, supra, 447 U.S. at p. 151 [“And the State may impose at least ‘minimal’ burdens on the Indian retailer to aid in enforcing and collecting the [state] tax.”]; Moe v. Confederated Salish and Kootenai Tribes of Flathead 13 Title 5 of the United States Code secti

2017(See, e.g., Oklahoma Tax Com’n v. Potawatomi Indian Tribe (1991) 498 U.S. 505, 513 (Oklahoma Tax Com’n) [“the doctrine of tribal sovereign immunity does not prevent a State from requiring Indian retailers doing business on tribal reservations to collect a state-imposed cigarette tax on their sales to nonmembers of the Tribe”14]; Colville, supra, 447 U.S. at p. 151 [“And the State may impose at least ‘minimal’ burdens on the Indian retailer to aid in enforcing and collecting the [state] tax.”]; Moe v. Confederated Salish and Kootenai Tribes of Flathead 13 Title 5 of the United States Code secti

2016"Indian tribes are ' "domestic dependent nations" ' that exercise 'inherent sovereign authority.' " (Michigan v. Bay Mills Indian Community (2014) 572 U.S. ___ [ 188 L.Ed.2d 1071, 1082 , 134 S.Ct. 2024, 2030 ].) "Among the core aspects of sovereignty that tribes possess . . . is the 'common-law immunity from suit traditionally enjoyed by sovereign powers.' " ( 188 L.Ed.2d at p. 1083 .) Thus, "[a]s a matter of federal law, an 3 All further rule references are to the California Rules of Court. 6 Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived i

2016"Indian tribes are ' "domestic dependent nations" ' that exercise 'inherent sovereign authority.' " (Michigan v. Bay Mills Indian Community (2014) 572 U.S. ___ [ 188 L.Ed.2d 1071, 1082 , 134 S.Ct. 2024, 2030 ].) "Among the core aspects of sovereignty that tribes possess . . . is the 'common-law immunity from suit traditionally enjoyed by sovereign powers.' " ( 188 L.Ed.2d at p. 1083 .) Thus, "[a]s a matter of federal law, an 3 All further rule references are to the California Rules of Court. 6 Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived i

2016"Indian tribes are ' "domestic dependent nations" ' that exercise 'inherent sovereign authority.' " (Michigan v. Bay Mills Indian Community (2014) 572 U.S. ___ [ 188 L.Ed.2d 1071, 1082 , 134 S.Ct. 2024, 2030 ].) "Among the core aspects of sovereignty that tribes possess . . . is the 'common-law immunity from suit traditionally enjoyed by sovereign powers.' " ( 188 L.Ed.2d at p. 1083 .) Thus, "[a]s a matter of federal law, an 3 All further rule references are to the California Rules of Court. 6 Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived i

2016"Indian tribes are ' "domestic dependent nations" ' that exercise 'inherent sovereign authority.' " (Michigan v. Bay Mills Indian Community (2014) 572 U.S. ___ [ 188 L.Ed.2d 1071, 1082 , 134 S.Ct. 2024, 2030 ].) "Among the core aspects of sovereignty that tribes possess . . . is the 'common-law immunity from suit traditionally enjoyed by sovereign powers.' " ( 188 L.Ed.2d at p. 1083 .) Thus, "[a]s a matter of federal law, an 3 All further rule references are to the California Rules of Court. 6 Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived i

2014(See Agua Caliente Band of Cahuilla Indians v. Superior Court (2006) 40 Cal.4th 239, 247-248 [“‘immunity extends to entities that are arms of the tribes,’” but “‘apparently does not cover tribally chartered corporations that are completely independent of the tribe’”]; see generally Cohen’s Handbook of Federal Indian Law, supra, § 7.05[1][a] [arm-of-the-tribe analysis “considers tribal involvement in the creation and control of the entity, tribal intent to clothe the entity with immunity, and whether the entity serves tribal sovereign 7 The Court held only that the tribe did not qualify as a “p

2011(Ibid.; see Warburton/ Buttner, supra, 103 Cal.App.4th 1170, 1186-1187 .) In Smith, supra, 95 Cal.App.4th 1 , the contractual waiver of sovereign immunity was held to be sufficient in light of the contract’s adoption of California law and the arbitration method of dispute resolution, because the contract was negotiated by an authorized tribal representative, and was approved by tribal resolution.

2008(See Kiowa, supra, 523 U.S. at p. 760 [“[t]ribes enjoy immunity from suits on contracts, whether those contracts involve governmental or commercial activities and whether they were made on or off a reservation”]; see also id. at p. 755 [“[t]hough respondent asks us to confine immunity from suit to transactions on reservations and to governmental activities, our precedents have not drawn these distinctions”].) Accordingly, the trial court erred in concluding as a matter of *90 law that the doctrine of tribal sovereign immunity did not apply to the payday loan companies’ off-reservation commerci

2008(See Kiowa, supra, 523 U.S. at p. 760 [“[t]ribes enjoy immunity from suits on contracts, whether those contracts involve governmental or commercial activities and whether they were made on or off a reservation”]; see also id. at p. 755 [“[t]hough respondent asks us to confine immunity from suit to transactions on reservations and to governmental activities, our precedents have not drawn these distinctions”].) Accordingly, the trial court erred in concluding as a matter of *90 law that the doctrine of tribal sovereign immunity did not apply to the payday loan companies’ off-reservation commerci

2008However, because the trial court did not address whether the companies, which are not themselves Indian tribes, operate as “arms of the tribe” for purposes of the tribal sovereign immunity doctrine (see, e.g., Rancheria, supra, 88 Cal.App.4th at p. 389 ; Trudgeon v. Fantasy Springs Casino (1999) 71 Cal.App.4th 632, 636-637 [ 84 Cal.Rptr.2d 65 ] (Trudgeon)), we direct the trial court to conduct further proceedings to determine whether the doctrine deprives the court of subject matter jurisdiction in this case.

2008However, because the trial court did not address whether the companies, which are not themselves Indian tribes, operate as “arms of the tribe” for purposes of the tribal sovereign immunity doctrine (see, e.g., Rancheria, supra, 88 Cal.App.4th at p. 389 ; Trudgeon v. Fantasy Springs Casino (1999) 71 Cal.App.4th 632, 636-637 [ 84 Cal.Rptr.2d 65 ] (Trudgeon)), we direct the trial court to conduct further proceedings to determine whether the doctrine deprives the court of subject matter jurisdiction in this case.

2008(See Kiowa, supra, 523 U.S. at p. 760 [“[t]ribes enjoy immunity from suits on contracts, whether those contracts involve governmental or commercial activities and whether they were made on or off a reservation”]; see also id. at p. 755 [“[t]hough respondent asks us to confine immunity from suit to transactions on reservations and to governmental activities, our precedents have not drawn these distinctions”].) Accordingly, the trial court erred in concluding as a matter of *90 law that the doctrine of tribal sovereign immunity did not apply to the payday loan companies’ off-reservation commerci

2008(See Kiowa, supra, 523 U.S. at p. 760 [“[t]ribes enjoy immunity from suits on contracts, whether those contracts involve governmental or commercial activities and whether they were made on or off a reservation”]; see also id. at p. 755 [“[t]hough respondent asks us to confine immunity from suit to transactions on reservations and to governmental activities, our precedents have not drawn these distinctions”].) Accordingly, the trial court erred in concluding as a matter of *90 law that the doctrine of tribal sovereign immunity did not apply to the payday loan companies’ off-reservation commerci