Great Plains Lending, LLC v. Department of Banking ( 2021 )

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GREAT PLAINS LENDING, LLC, ET AL. v.
DEPARTMENT OF BANKING ET AL.
(SC 20340)
Robinson, C. J., and Mullins, Kahn, Ecker, Keller and Vertefeuille, Js.
Syllabus
The plaintiffs, G Co., C Co., and S, appealed to the trial court from the
decision of the defendant Commissioner of Banking, who ordered the
plaintiffs to cease and desist and to pay certain civil penalties in connec-
tion with the commissioner’s determination that G Co. and C Co. had
violated Connecticut’s banking and usury laws by making consumer
loans to Connecticut residents without a license to do so. G Co. and C.
Co. were created pursuant to the laws of a federally recognized Indian
tribe, of which S is the chairman. S is also the secretary and treasurer
of both G Co. and C Co. The plaintiffs had moved to dismiss the adminis-
trative proceedings initiated by the defendant Department of Banking,
claiming that G Co. and C Co. were entitled to tribal sovereign immunity
as arms of the tribe and that S shared in that immunity because his
actions were undertaken on behalf of those entities in his official capac-
ity. The commissioner denied the plaintiffs’ motion to dismiss, conclud-
ing that, because G Co. and C Co. had failed to demonstrate that they
were arms of the tribe, neither they nor S was entitled to tribal sovereign
immunity. After the commissioner issued final orders requiring, inter
alia, the plaintiffs to cease and desist from violating Connecticut law
in connection with their lending activities and S to pay a civil penalty,
the plaintiffs appealed to the trial court. The trial court determined that
G Co. and C Co. bore the burden of proving that they were arms of the
tribe entitled to tribal sovereign immunity, but the court disagreed with
the test the commissioner used to determine whether a business entity
should be considered an arm of an Indian tribe. Specifically, the test
the commissioner had applied focused on the financial relationship
between the tribe and the business entity. Instead, the trial court
employed a multifactor test that considered not only the legal or organi-
zational relationship between the tribe and the entity but also the func-
tional aspects of the entity’s financial relationship with the tribe and
the entity’s stated purpose. Under that functional test, the court deter-
mined that, although the evidence was sufficient for G Co. and C Co.
to meet most of the various factors, the plaintiffs failed to show how
the entities actually functioned in relation to their stated purpose. The
court also concluded that the viability of the claims against S depended
on whether G Co. and C Co. were arms of the tribe. Accordingly, the
court rendered judgment sustaining the appeal and remanding the case
to the commissioner for further proceedings to consider whether G Co.
and C Co. satisfied the functional test. Thereafter, the plaintiffs appealed
and the defendants cross appealed. Held:
1. The trial court correctly determined that G Co. and C Co. bore the burden
of proving, by a preponderance of the evidence, that they were entitled
to tribal sovereign immunity as arms of the tribe; allocating the burden
of proof to the entity claiming immunity was consistent with the deci-
sions of state and federal courts in arm of the tribe cases, as well as
the standard employed by this court with respect to whether a corporate
entity is entitled to assert a sovereign immunity defense as an arm of
the state, and the entity claiming arm of the tribe status likely will have
the best access to the evidence needed to assume that burden of proof.
2. The trial court applied an improper test for determining whether an entity
is entitled to sovereign immunity as an arm of the tribe by requiring
proof of how the entities functioned in relation to their stated purpose
and incorrectly determined that further proceedings were required to
determine whether G Co. was an arm of the tribe: this court concluded
that whether an entity shares a tribe’s sovereign immunity as an arm
of the tribe is a determination to be made in light of the federal laws
and policies underlying tribal sovereign immunity and in view of five
specific factors, namely, the method of the entity’s creation, the purpose
of the entity, the structure, ownership and management of the entity,
including the amount of control the tribe has over it, the tribe’s intent
with respect to sharing its sovereign immunity, and the financial relation-
ship between the tribe and the entity; in the present case, all five factors
supported the determination that G Co. was entitled, as a matter of law,
to share in the tribe’s sovereign immunity as an arm of the tribe, as the
record demonstrated that G Co. was created under tribal law and was
controlled by directors appointed by the tribe’s governing council for
the purpose of promoting tribal economic development and welfare,
and there was a significant financial relationship between the tribe and
G Co. such that withholding immunity would interfere with the tribe’s
self-governance and economic development; moreover, the minimal evi-
dence in the record, consisting only of a certificate of license, the tribal
resolution creating C Co., and certain conclusory statements contained
in the affidavit of the tribe’s vice chairman about the purpose and
structure of C Co., was insufficient to conclude that C Co. was an arm
of the tribe entitled to share in its sovereign immunity, and, accordingly
the trial court correctly concluded that further proceedings were neces-
sary to determine whether C Co. was an arm of the tribe.
3. The trial court correctly determined that S was immune from the civil
penalty imposed on him but was not immune from the order of prospec-
tive injunctive relief in connection with his actions as an official of G Co.:
tribal officials are entitled to an extension of tribal sovereign immunity
if the tribe, rather than the individual officer, is the real party in interest
and if the tribal official acted within the scope of his authority; in the
present case, the department sought relief from S only nominally because
of his policy-making role as a high ranking officer of the tribe and the
entities, rather than as a result of his personal actions taken within the
scope of his official capacity, and made only a conclusory and nominal
allegation without referring to any specific actions taken by S, such that
it was apparent that the tribe, rather than S, was the real party in interest
and that S’s actions were entirely within the scope of executing his
duties as an officer of the tribe, G Co., and C Co., and, in the absence
of any allegation that S acted beyond the scope of his authority, he
was immune from the civil penalty imposed on him; moreover, tribal
sovereign immunity does not extend to injunctive relief against tribal
officers responsible for violating state law, and, therefore, S was not
immune from the order enjoining him from violating Connecticut bank-
ing and usury laws.
Argued October 21, 2020—officially released May 20, 2021*
Procedural History
Appeal from the decision of the named defendant
ordering the plaintiffs to cease and desist and to pay
certain civil penalties and finding that the plaintiffs are
not entitled to tribal sovereign immunity, brought to
the Superior Court in the judicial district of New Britain,
where the court, Hon. Joseph M. Shortall, judge trial
referee, denied the defendants’ motion to dismiss; there-
after, the case was tried to the court, Hon. Joseph M.
Shortall, judge trial referee, who, exercising the powers
of the Superior Court, rendered judgment vacating the
orders of the named defendant that imposed certain
financial penalties on the plaintiffs and remanding the
case to the named defendant to hold an evidentiary
hearing to reconsider the issue of whether the plaintiffs
are entitled to tribal sovereign immunity, from which
the plaintiffs appealed and the defendants cross
appealed. Reversed in part; judgment directed in part;
further proceedings.
Robert A. Rosette, pro hac vice, with whom were
Linda L. Morkan and, on the brief, Jeffrey J. White
and Saba Bazzazieh, pro hac vice, for the appellants-
appellees (plaintiffs).
Clare E. Kindall, solicitor general, with whom were
John Langmaid, Joseph J. Chambers and Robert J.
Deichert, assistant attorneys general, and, on the brief,
William Tong, attorney general, for the appellees-appel-
lants (defendants).
Opinion
ROBINSON, C. J. This appeal presents three signifi-
cant issues of first impression with respect to whether
a business entity shares an Indian tribe’s sovereign
immunity as an ‘‘arm of the tribe,’’ as we consider (1)
which party bears the burden of proving the entity’s
status as an arm of the tribe, (2) the legal standard
governing that inquiry, and (3) the extent to which a
tribal officer shares in that immunity for his or her
actions in connection with the business entity. The
plaintiffs, Great Plains Lending, LLC (Great Plains),
American Web Loan, Inc., doing business as Clear Creek
Lending (Clear Creek) (collectively, entities), and John
R. Shotton, chairman of the Otoe-Missouria Tribe of
Indians (tribe), a federally recognized tribe, appeal1
from the judgment of the trial court sustaining their
administrative appeal and remanding this case to the
defendant Commissioner of Banking (commissioner)
for further proceedings with respect to the plaintiffs’
entitlement to tribal sovereign immunity in administra-
tive proceedings. On appeal, the plaintiffs claim that
the trial court should have rendered judgment in their
favor as a matter of law, insofar as it improperly (1)
allocated the burden of proving entitlement to tribal
sovereign immunity to the plaintiffs, (2) required proof
of a functioning relationship between the entities and
the tribe, and (3) failed to find Shotton immune in fur-
ther administrative proceedings. The defendants, the
commissioner and the Department of Banking (depart-
ment), cross appeal and similarly challenge the legal
standard adopted by the trial court and its decision to
remand the case for further administrative proceedings.
We conclude that the entity claiming arm of the tribe
status bears the burden of proving its entitlement to
that status under the test articulated by the United
States Court of Appeals for the Tenth Circuit in Break-
through Management Group, Inc. v. Chukchansi Gold
Casino & Resort, 629 F.3d 1173, 1187 (10th Cir. 2010)
(Breakthrough), cert. dismissed, 564 U.S. 1061, 132 S.
Ct. 64, 180 L. Ed. 2d 932 (2011). We further conclude,
as a matter of law, that Great Plains is an arm of the
tribe and that Shotton, with respect to his capacity as
an officer of Great Plains and the tribe, is entitled to
tribal sovereign immunity from civil penalties but not
injunctive relief. We also conclude, however, that there
is insufficient evidence to support a conclusion that
Clear Creek is an arm of the tribe as a matter of law,
which requires a remand to the commissioner for fur-
ther administrative proceedings. Accordingly, we
reverse in part the judgment of the trial court.
The record reveals the following undisputed facts
and procedural history. The tribe adopted the constitu-
tion of the Otoe-Missouria Tribe of Indians on February
4, 1984. In accordance with article IV, § 1, of the tribe’s
constitution, the Tribal Council (council) adopted the
Otoe-Missouria Tribe of Indians Limited Liability Com-
pany Act (LLC Act) and the Otoe-Missouria Tribe of
Indians Corporation Act (Corporation Act) on May 4,
2011. Acting pursuant to the LLC Act, the council passed
a resolution creating Great Plains on May 4, 2011. Ameri-
can Web Loan, Inc., was created in accordance with
the Corporation Act on February 10, 2010, and did busi-
ness as Clear Creek. Shotton, as chairman of the tribe,
served as secretary and treasurer of both entities.
Following an investigation by the department, the
commissioner found that the entities had violated Con-
necticut’s banking and usury laws by making small con-
sumer loans to Connecticut residents via the Internet
without a license to do so. The commissioner also found
that the interest rates on these loans exceeded those
permitted under Connecticut’s usury and banking laws.
On October 24, 2014, the commissioner issued tempo-
rary cease and desist orders to the plaintiffs, orders
that restitution be made to the Connecticut residents,
and a notice of intent to issue permanent cease and
desist orders, as well as to impose civil penalties. The
plaintiffs timely filed a motion to dismiss the administra-
tive proceedings for a lack of jurisdiction, asserting that
(1) the entities are arms of the tribe entitled to tribal
sovereign immunity, and (2) Shotton’s involvement in
the affairs of the entities was within his official capacity,
entitling him to tribal sovereign immunity, as well. On
January 6, 2015, the commissioner denied the motion
to dismiss, concluding that the administrative action of
the department was not a ‘‘suit’’ from which the plain-
tiffs enjoyed tribal sovereign immunity.
The plaintiffs filed an administrative appeal from the
denial of the motion to dismiss in the trial court pursu-
ant to the Uniform Administrative Procedure Act. See
General Statutes § 4-183. The trial court, Schuman, J.,
determined that ‘‘the better conclusion is that the tribe
possesses sovereign immunity in [an] . . . administra-
tive proceeding filed against [it] by a state commis-
sioner.’’ The court then remanded the case to the com-
missioner pursuant to § 4-183 (k) in order to determine
whether (1) the entities are ‘‘arms of the tribe’’ entitled
to tribal sovereign immunity, and (2) Shotton, as a tribal
official, shares in that immunity.
After remand, on June 14, 2017, the commissioner
again denied the plaintiffs’ motion to dismiss the admin-
istrative proceedings, concluding that the entities had
failed to demonstrate they were arms of the tribe
because ‘‘Clear Creek simply did not submit any rele-
vant evidence, and Great Plains failed to demonstrate
that its relationship with the tribe is meaningful enough
[for it] to be considered an arm of the tribe.’’ Because
the commissioner found that the entities were not arms
of the tribe, the commissioner further concluded that
Shotton was not entitled to tribal sovereign immunity.
The commissioner thereafter issued final orders requir-
ing the plaintiffs (1) to ‘‘cease and desist from violating
two specified sections of part III of chapter 668 of the
General Statutes relating to ‘small loan lending and
related activities,’ ’’2 and (2) to ‘‘pay civil penalties to
the department in the following amounts: Great Plains,
$700,000; Clear Creek, $100,000; [Shotton], $700,000.’’
Pursuant to § 4-183 (a), the plaintiffs appealed from
the commissioner’s final orders to the trial court. The
trial court, Hon. Joseph M. Shortall, judge trial referee,3
first determined that the entities bore the burden of
demonstrating that they were arms of the tribe entitled
to tribal sovereign immunity. In so concluding, the court
employed the analysis from Rocky Hill v. SecureCare
Realty, LLC, 315 Conn. 265, 105 A.3d 857 (2015), with
respect to corporate entities that claim state sovereign
immunity from suit as an ‘‘arm of the state . . . .’’
(Internal quotation marks omitted.) Id., 279. The court
then determined that the commissioner improperly
relied on the finance oriented test outlined in Sue/Perior
Concrete & Paving, Inc. v. Lewiston Golf Course Corp.,
24 N.Y.3d 538, 546–47, 25 N.E.3d 928, 2 N.Y.S.3d 15(2014) (Sue/Perior), in finding that the entities were
not arms of the tribe. Instead, the trial court deemed
the multifactor test articulated in People ex rel. Owen
v. Miami Nation Enterprises, 2 Cal. 5th 222, 236, 386
P.3d 357, 211 Cal. Rptr. 3d 837 (2016) (Miami Nation),
to be the proper legal standard. Upon review of the
record, the court concluded that, although the evidence
presented by the plaintiffs was sufficient to meet most
of the factors outlined in Miami Nation, it nevertheless
was not sufficient to establish the entities’ ultimate
status as arms of the tribe because the plaintiffs had
failed to show how the entities actually functioned in
relation to their stated purpose.4 The court further con-
cluded that Shotton’s liability ‘‘rises and falls with . . .
whether [the entities] are arms of the tribe . . . .’’
Therefore, the trial court rendered judgment sustaining
the appeal and remanded the case to the commissioner
pursuant to § 4-183 (j) in order for the plaintiffs to
‘‘submit evidence addressing these practical considera-
tions to support their claim of tribal sovereign immu-
nity.’’ This appeal and cross appeal followed.5
On appeal, the plaintiffs claim that the trial court
improperly (1) allocated to the entities the burden of
proving entitlement to tribal sovereign immunity, (2)
applied the tribal sovereign immunity test outlined in
Miami Nation, (3) failed to deem Shotton entitled to
tribal sovereign immunity, and (4) remanded the case
to the commissioner rather than concluding that they
were entitled to tribal sovereign immunity as a matter
of law. In their cross appeal, the defendants argue that
the trial court improperly (1) rejected the Sue/Perior
test used by the commissioner, (2) found that the viabil-
ity of the department’s claims against Shotton depended
on whether the entities were arms of the tribe, and (3)
remanded the case to the commissioner for further
proceedings. We address each claim in turn, setting
forth additional relevant facts and procedural history
as necessary.
I
Before we consider the parties’ claims in detail, we
note the following general principles concerning the law
of tribal sovereign immunity. A claim of tribal sovereign
immunity ‘‘implicates subject matter jurisdiction and is
therefore a basis for granting a motion to dismiss. . . .
A determination regarding a trial court’s subject matter
jurisdiction is a question of law.’’ (Internal quotation
marks omitted.) Lewis v. Clarke, 320 Conn. 706, 710,
135 A.3d 677 (2016), rev’d on other grounds, U.S.
, 137 S. Ct. 1285, 197 L. Ed. 2d 631 (2017). Accord-
ingly, ‘‘[o]ur review of the court’s ultimate legal conclu-
sion[s] and resulting [determination] of the motion to
dismiss will be de novo.’’ (Internal quotation marks
omitted.) Gold v. Rowland, 296 Conn. 186, 200, 994 A.2d
106 (2010).
Our analysis is guided by core federal Indian law
principles that are well established by the decisions of
the United States Supreme Court. ‘‘Indian tribes are
distinct, independent political communities, retaining
their original natural rights in matters of local self-
government. . . . Although no longer possessed of the
full attributes of sovereignty, they remain a separate
people, with the power of regulating their internal and
social relations.’’ (Citations omitted; internal quotation
marks omitted.) Santa Clara Pueblo v. Martinez, 436
U.S. 49, 55, 98 S. Ct. 1670, 56 L. Ed. 2d 106 (1978).
‘‘Indian tribes are ‘domestic dependent nations’ that
exercise inherent sovereign authority over their mem-
bers and territories.’’ Oklahoma Tax Commission v.
Citizen Band Potawatomi Indian Tribe, 498 U.S. 505,
509, 111 S. Ct. 905, 112 L. Ed. 2d 1112 (1991), quoting
Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17, 8 L.
Ed. 25 (1831). Given tribes’ sovereign status, they pos-
sess ‘‘common-law immunity from suit traditionally
enjoyed by sovereign powers.’’ Santa Clara Pueblo v.
Martinez, supra, 58. Such immunity extends to adminis-
trative agency actions. See, e.g., Cash Advance & Pre-
ferred Cash Loans v. State ex rel. Suthers, 242 P.3d 1099,
1104 (Colo. 2010) (‘‘tribal sovereign immunity applies to
state investigatory enforcement actions’’). Tribes retain
tribal sovereign immunity unless it is abrogated by Con-
gress or waived by the tribe. See, e.g., Michigan v. Bay
Mills Indian Community, 572 U.S. 782, 788, 134 S. Ct.
2024, 188 L. Ed. 2d 1071 (2014) (Bay Mills); Kiowa
Tribe v. Mfg. Technologies, Inc., 523 U.S. 751, 754, 118
S. Ct. 1700, 140 L. Ed. 2d 981 (1998).
Tribal sovereign immunity applies to tribal activities
that occur both inside and outside of ‘‘Indian country.’’6
See, e.g., Michigan v. Bay Mills Indian Community,
supra, 572 U.S. 790; Bassett v. Mashantucket Pequot
Tribe, 204 F.3d 343, 357 (2d Cir. 2000). Regardless of
where the tribal activity takes place, tribal sovereign
immunity applies in civil or administrative actions seek-
ing damages or injunctive relief with respect to both
the commercial and governmental conduct of the tribe.
See Kiowa Tribe v. Mfg. Technologies, Inc., supra, 523
U.S. 760; Imperial Granite Co. v. Pala Band of Mission
Indians, 940 F.2d 1269, 1271 (9th Cir. 1991); Cohen’s
Handbook of Federal Indian Law (N. Newton et al. eds.,
2012) § 7.05 [1] [a], p. 637.
In the present case, it is undisputed that the tribe
itself is entitled to tribal sovereign immunity. The dis-
puted issue is whether the plaintiffs are entitled to share
in that immunity under the doctrine that extends tribal
sovereign immunity to business entities or enterprises
that act as arms of the tribe. See, e.g., New York v.
Golden Feather Smoke Shop, Inc., Docket No. 08-CV-
3966 (CBA), 2009 WL 705815, *5 (E.D.N.Y. March 16,
2009); People ex rel. Owen v. Miami Nation Enter-
prises, supra, 2 Cal. 5th 250. Whether a business entity
is an arm of the tribe entitled to share in tribal sovereign
immunity depends not on ‘‘whether the activity may be
characterized as a business . . . but [on] whether the
entity acts as an arm of the tribe so that its activities
are properly deemed to be those of the tribe.’’ Allen v.
Gold Country Casino, 464 F.3d 1044, 1046 (9th Cir.
2006), cert. denied, 549 U.S. 1231, 127 S. Ct. 1307, 167 L.
Ed. 2d 119 (2007). Although the United States Supreme
Court has recognized that wholly owned tribal corpora-
tions may be considered arms of the tribe, that court
has not yet articulated a framework for how to make
such a determination. See Williams v. Big Picture
Loans, LLC, 929 F.3d 170, 176 (4th Cir. 2019), citing
Inyo County v. Paiute-Shoshone Indians of the Bishop
Community of the Bishop Colony, 538 U.S. 701, 704,
705 n.1, 123 S. Ct. 1887, 155 L. Ed. 2d 933 (2003).
Determining the proper framework for the arm of the
tribe inquiry is similarly an issue of first impression in
Connecticut and is the central issue in this appeal.
II
As an initial matter, the parties dispute the proper
allocation of the burden of proof in the arm of the tribe
analysis. The plaintiffs rely on the Colorado Supreme
Court’s decision in Cash Advance & Preferred Cash
Loans v. State ex rel. Suthers, supra, 242 P.3d 1099,
and contend that the trial court improperly relied on
our decision in Rocky Hill v. SecureCare Realty, LLC,
supra, 315 Conn. 265, for the proposition that the ‘‘bur-
den of proving by a preponderance of the evidence
that [the tribal entities] are entitled to tribal sovereign
immunity, i.e., the risk of nonpersuasion, is on the [enti-
ties], just as it is on corporate entities that claim entitle-
ment to the state’s sovereign immunity from suit as
‘arms of the state.’ ’’ In response, the defendants argue
that the trial court correctly relied on arm of the state
analyses, such as that in SecureCare Realty, LLC, in
concluding that the entities bore the burden of proving
their arm of the tribe status. We agree with the defen-
dants and conclude that the entity claiming arm of the
tribe status bears the burden of proving its entitlement
to that status.
Several state and federal courts have addressed the
burden of proof when determining arm of the tribe
status, and, like the trial court in the present case, they
have relied on arm of the state analyses in allocating
the burden of proof to the entity. See, e.g., Williams v.
Big Picture Loans, LLC, supra, 929 F.3d 176; People ex
rel. Owen v. Miami Nation Enterprises, supra, 2 Cal.
5th 240–44. Those courts have consistently concluded
that, although a tribe itself does not bear the ultimate
burden of proving tribal sovereign immunity, an entity
claiming to be an arm of that tribe bears the burden of
demonstrating the existence of that relationship and the
entity’s ultimate entitlement to share in tribal sovereign
immunity. See Williams v. Big Picture Loans, LLC,
supra, 177 (‘‘Unlike the tribe itself, an entity should
not be given a presumption of immunity until it has
demonstrated that it is in fact an extension of the tribe.
Once [an entity] has done so, the burden to prove that
immunity has been abrogated or waived would then fall
to the plaintiff.’’); Gristede’s Foods, Inc. v. Unkechuage
Nation, 660 F. Supp. 2d 442, 466 (E.D.N.Y. 2009) (‘‘the
burden of proof for an entity asserting immunity as an
arm of a sovereign tribe is on the entity to establish
that it is, in fact, an arm of the tribe’’); People ex rel.
Owen v. Miami Nation Enterprises, supra, 236 (‘‘an
entity asserting immunity bears the burden of showing
by a preponderance of the evidence that it is an ‘arm
of the tribe’ entitled to tribal immunity’’). Put differently,
once the entity proves by a preponderance of the evi-
dence that it is an arm of the tribe, the burden shifts
back to the party seeking to overcome tribal sovereign
immunity to prove that such immunity has been waived
or abrogated as a matter of law.7 See Williams v. Big
Picture Loans, LLC, supra, 176–77; Breakthrough Man-
agement Group, Inc. v. Chukchansi Gold Casino &
Resort, supra, 629 F.3d 1196 and n.17; Gristede’s Foods,
Inc. v. Unkechuage Nation, supra, 465; Cash Advance &
Preferred Cash Loans v. State ex rel. Suthers, supra,
242 P.3d 1113–14.
We disagree with the plaintiffs’ argument that placing
the burden of proving arm of the tribe status on the
business entity encroaches on tribal sovereignty. An
otherwise private entity seeking the benefit of tribal
sovereign immunity is distinct from the tribe itself, espe-
cially because tribal sovereign immunity ‘‘is a strong
tonic . . . .’’ People ex rel. Owen v. Miami Nation
Enterprises, supra, 2 Cal. 5th 244. Furthermore, consis-
tent with the arm of the state analysis discussed in
decisions such as Rocky Hill v. SecureCare Realty, LLC,
supra, 315 Conn. 279,8 placing the burden of proof on
the entity claiming entitlement to tribal sovereign immu-
nity as an arm of the tribe is appropriate because, prag-
matically, the entity claiming such immunity will have
the best access to the evidence necessary to prove the
existence of that relationship. See Williams v. Big Pic-
ture Loans, LLC, supra, 929 F.3d 177 (‘‘as a practical
matter, it makes sense to place the burden on [business
entities] . . . as they will likely have the best access to
the evidence needed to demonstrate immunity’’); New
York v. Golden Feather Smoke Shop, Inc., supra, 2009
WL 705815, *4 (‘‘the issue of whether an entity is an
arm of the tribe may rest on nuances in the entity’s
ownership and control structure, corporate purpose,
and relationship with the tribal government’’). Having
determined that the entities bear the burden of demon-
strating they are arms of the tribe, we next turn to
the appropriate legal standard for determining whether
they are arms of the tribe.
III
A
With respect to the standard that guides the arm of
the tribe analysis, the plaintiffs argue that the trial court
properly rejected the nine factor test articulated in Sue/
Perior Concrete & Paving, Inc. v. Lewiston Golf Course
Corp., supra, 24 N.Y.3d 546–47, but nevertheless
improperly adopted the test outlined in People ex rel.
Owen v. Miami Nation Enterprises, supra, 2 Cal. 5th
246–47. Instead, the plaintiffs assert that the trial court
should have relied on the Breakthrough test; see Break-
through Management Group, Inc. v. Chukchansi Gold
Casino & Resort, supra, 629 F.3d 1187; to determine
whether they are entitled to arm of the tribe status.
In response, the defendants argue that the trial court
improperly rejected the Sue/Perior test on which the
commissioner relied, and, alternatively, that the trial
court correctly applied the five factor test focusing on
the function of the relationship between the entity and
the tribe, as set forth in Miami Nation, in determining
that the entities are not arms of the tribe. We agree
with the plaintiffs and conclude that the Breakthrough
test governs the arm of the tribe inquiry.
A series of federal and state cases have attempted
to outline an approach to determining whether an entity
is an arm of the tribe. A review of the evolution of
that line of cases is helpful in considering the parties’
arguments in this appeal. In 2010, the United States
Court of Appeals for the Tenth Circuit outlined a six
factor test for considering arm of the tribe status in
Breakthrough Management Group, Inc. v. Chukchansi
Gold Casino & Resort, supra, 629 F.3d 1173. In Break-
through, the court identified six factors to determine
whether a relationship between a tribe and entity was
close enough to allow that entity to share the tribe’s
sovereign immunity as an arm of the tribe, namely, (1)
the method of creation of the economic entities, (2)
the purpose of those entities, (3) the structure, owner-
ship, and management of the entities, including the
amount of control the tribe has over them, (4) the tribe’s
intent with respect to sharing its sovereign immunity,
(5) ‘‘the financial relationship between the tribe and
the entities,’’ and (6) the ‘‘policies underlying tribal sov-
ereign immunity and its connection to tribal economic
development, and whether those policies are served by
granting immunity to the economic entities.’’ Id., 1187.
The Breakthrough test has been implemented by a
majority of the federal courts that have considered this
issue. See, e.g., Williams v. Big Picture Loans, LLC,
supra, 929 F.3d 177; White v. University of California,
765 F.3d 1010, 1025 (9th Cir. 2014), cert. denied sub
nom. White v. Regents of the University of California,
577 U.S. 1124, 136 S. Ct. 983, 194 L. Ed. 2d 13 (2016);
Allen v. Gold Country Casino, supra, 464 F.3d 1046–47;
Solomon v. American Web Loan, 375 F. Supp. 3d 638,
653 (E.D. Va. 2019); Johnson v. Harrah’s Kansas
Casino Corp., Docket No. 04-4142-JAR, 2006 WL 463138,
*3–8 (D. Kan. February 23, 2006). But see Somerlott
v. Cherokee Nation Distributors, Inc., 686 F.3d 1144,
1149–50 (10th Cir. 2012) (declining to apply Break-
through test when entity was incorporated under
state law).
Subsequently, in 2014, the New York Court of Appeals
articulated in Sue/Perior a slightly different version of
the nine factor test that it had originally announced in
1995. See Sue/Perior Concrete & Paving, Inc. v. Lew-
iston Golf Course Corp., supra, 24 N.Y.3d 546–47, citing
In re Ransom v. St. Regis Mohawk Education & Com-
munity Fund, Inc., 86 N.Y.2d 553, 559–60, 658 N.E.2d
989, 635 N.Y.S.2d 116 (1995).9 In its analysis, the court
focused closely on the financial relationship between
the tribe and entity. See Sue/Perior Concrete & Paving,
Inc. v. Lewiston Golf Course Corp., supra, 549–51.
In 2016, the California Supreme Court rejected the
emphasis that the New York Court of Appeals placed
on the financial relationship between the tribe and the
entity in Sue/Perior. See People ex rel. Owen v. Miami
Nation Enterprises, supra, 2 Cal. 5th 247. Miami
Nation largely follows the Breakthrough test, with two
significant differences. First, the California Supreme
Court correctly noted that the sixth factor in Break-
through, namely, whether federal Indian law policies
underlying tribal sovereign immunity and its connection
to tribal economic development are served by granting
immunity to the economic entities, overlaps signifi-
cantly with the first five factors; rather than serving as
an independent factor, such policies should color the
court’s analysis of each of the other factors. Id., 245.
Second, the California Supreme Court supplemented
the Breakthrough test by implementing a functional
inquiry when considering both the entity’s financial rela-
tionship with a tribe and the entity’s stated purpose.
The court explained: ‘‘[T]his test takes into account
both formal and functional considerations—in other
words, not only the legal or organizational relationship
between the tribe and the entity, but also the practical
operation of the entity in relation to the tribe.’’ Id., 236.
The court emphasized considering ‘‘the extent to which
the entity actually promotes tribal self-governance
. . . .’’ (Emphasis added.) Id., 245. In considering the
entity’s purpose, the court in Miami Nation went fur-
ther than considering its stated purpose by examining
the extent to which the entity was achieving that goal.
Id., 246–47. The court explained that the ‘‘fit between
[the] stated purpose and practical execution need not
be exact, but the closer the fit, the more it will weigh
in favor of immunity.’’ Id., 247. The court noted that
an entity with the stated purpose of furthering tribal
economic development could demonstrate such pur-
pose by demonstrating the jobs created for tribal mem-
bers or the revenue generated for the tribe. Id. This
factor, however, may weigh against establishing arm of
the tribe status when an entity is engaging in activities
unrelated to its stated goals or operating mainly to
enrich individuals outside of the tribe. Id. The California
court justified this additional inquiry by highlighting
that ‘‘[t]hese functional considerations illuminate the
degree to which imposition of liability on the entity
would practically impair tribal self-governance.’’ Id.,
245.
The United States Court of Appeals for the Fourth
Circuit recently declined to engage as directly with the
functional aspects of an entity’s stated purpose and
financial relationship. See Williams v. Big Picture
Loans, LLC, supra, 929 F.3d 180. The Fourth Circuit
stated that the functional analysis demands ‘‘a break-
down of exactly what percentage of the [t]ribe’s budget
went to each of [the tribal] activities [the entity’s reve-
nue had funded] and exactly what percentage of the
funding for these activities constituted [entity] revenue.
Such a requirement is at odds with policy considera-
tions of tribal self-governance and economic develop-
ment.’’ Id.We agree with the Fourth Circuit that an exacting
inquiry into the operation of tribal treasuries goes too
far. Although evidence of an entity’s stated purpose
may well include a showing of function, and such a
showing would likely strengthen an entity’s claim to
arm of the tribe status, we would not mandate this
additional functional inquiry, specifically, whether ‘‘the
entity actually promotes tribal self-governance’’; People
ex rel. Owen v. Miami Nation Enterprises, supra, 2
Cal. 5th 245; because we consider the inquiry unwork-
able and potentially inimical to the principle of self-
governance underlying tribal immunity.
First, we understand the functional inquiry pre-
scribed by Miami Nation to require an analysis of the
tribe’s finances, as opposed to those of the entity; in
essence, we understand it to ask whether the entity
serves as a successful business venture for the tribe.
This becomes a nebulous, subjective, difficult to apply
inquiry that may overlook or underestimate the value
of certain business ventures to the tribe. For example,
the inquiry might lead to the conclusion that fledgling
business entities without a steady revenue stream are
less deserving of tribal sovereign immunity than estab-
lished ventures, potentially depriving tribal business
entities of immunity during an especially vulnerable
period at the beginning of the venture. Second, to the
extent that the inquiry calls for an examination of the
finances of the tribe, rather than those of the entity
seeking the tribe’s immunity, it could lead to an
improper incursion into the financial affairs of a coordi-
nate sovereign. See Williams v. Big Picture Loans,
LLC, supra, 929 F.3d 179 (‘‘the promotion of tribal self-
governance . . . counsels against courts demanding
exacting information about the minutiae of a tribe’s
budget’’); Altheimer & Gray v. Sioux Mfg. Corp., 983
F.2d 803, 815 (7th Cir.) (‘‘economic independence is
the foundation of a tribe’s self-determination’’), cert.
denied, 510 U.S. 1019, 114 S. Ct. 621, 126 L. Ed. 2d
585 (1993).
Accordingly, like the Fourth, Ninth, and Tenth Cir-
cuits, we adopt the first five Breakthrough factors to
analyze, in light of federal Indian law and policy,
whether the entities constitute arms of the tribe for
purposes of tribal sovereign immunity. See Williams v.
Big Picture Loans, LLC, supra, 929 F.3d 177. We will
consider the extent to which granting arm of the tribe
status furthers the purposes of tribal sovereign immu-
nity throughout the following analysis. See id. Consider-
ing the five factors outlined in Breakthrough and Miami
Nation, the trial court in this case found sufficient evi-
dence to satisfy each factor but ultimately determined
that the evidence was insufficient to meet the additional
functional inquiry prescribed by Miami Nation. We
disagree with the trial court’s reasoning to the extent
that it focused on the functional aspect of the tribe’s
relationship with the entities. Reviewing the trial court’s
decision de novo, we instead conclude that Great Plains
is an arm of the tribe as a matter of law and is entitled
to tribal sovereign immunity but that there is not enough
evidence to conclude that Clear Creek is an arm of
the tribe.
B
Having identified the proper standard for determining
whether an entity is an arm of the tribe entitled to share
in tribal sovereign immunity, we now apply those five
factors to the factual record in this case and consider
each entity in turn.
1
Method of Creation
The first factor, ‘‘the method of creation’’ of the entity,
focuses on the law under which the entity was formed.
(Internal quotation marks omitted.) Williams v. Big
Picture Loans, LLC, supra, 929 F.3d 177; see, e.g.,
Breakthrough Management Group, Inc. v. Chukchansi
Gold Casino & Resort, supra, 629 F.3d 1191–92; People
ex rel. Owen v. Miami Nation Enterprises, supra, 2
Cal. 5th 245–46. Formation under tribal law weighs in
favor of immunity. See Breakthrough Management
Group, Inc. v. Chukchansi Gold Casino & Resort, supra,
1191. ‘‘The circumstances under which the entity’s for-
mation occurred, including whether the tribe initiated
or simply absorbed an operational commercial enter-
prise, are also relevant.’’ People ex rel. Owen v. Miami
Nation Enterprises, supra, 246.
Here, as described in the affidavit of Ted Grant, vice
chairman of the tribe, the tribe’s constitution grants its
council the power to ‘‘make all laws and ordinances
for the benefit of the [t]ribe.’’ It is undisputed that the
entities at issue in this case were created under tribal
law, namely, the LLC Act and the Corporation Act. The
record contains tribal resolutions creating the entities,10
along with tribal certificates of license for both entities.
Because both entities were created under tribal law on
the tribe’s own initiative, this factor weighs in favor of
tribal sovereign immunity for both entities. See Wil-
liams v. Big Picture Loans, LLC, supra, 929 F.3d 177;
Breakthrough Management Group, Inc. v. Chukchansi
Gold Casino & Resort, supra, 629 F.3d 1191–92.
2
Purpose
The second factor ‘‘incorporates both the stated pur-
pose for which the [e]ntities were created as well as
evidence related to that purpose.’’ Williams v. Big Pic-
ture Loans, LLC, supra, 929 F.3d 178; see, e.g., Break-
through Management Group, Inc. v. Chukchansi Gold
Casino & Resort, supra, 629 F.3d 1192–93. ‘‘The stated
purpose need not be purely governmental to weigh in
favor of immunity as long as it relates to broader goals of
tribal self-governance.’’ Williams v. Big Picture Loans,
LLC, supra, 178. The entity’s purpose is relevant
because ‘‘[f]ew tribes have any significant tax base.
Tribal business enterprises may be the only means by
which a tribe can raise revenues—and thus such enter-
prises may be essential to the fulfillment of the tribe’s
governmental obligations.’’ (Internal quotation marks
omitted.) People ex rel. Owen v. Miami Nation Enter-
prises, supra, 2 Cal. 5th 247–48, quoting C. Struve,
‘‘Tribal Immunity and Tribal Courts,’’ 36 Ariz. St. L.J.
137, 169 (2004).
Here, Grant describes in his affidavit the stated pur-
pose of both entities as ‘‘to advance the [t]ribe’s eco-
nomic development and to aid in addressing issues of
public health, safety, and welfare.’’ Grant’s affidavit is
consistent with and supported by the operating agree-
ment for Great Plains, which provides that the tribe
‘‘desires to form a limited liability company for the
purpose of carrying on a for-profit business and to fur-
ther the economic goals and initiatives of the [t]ribe.’’
By contrast, the record does not contain articles of
incorporation or bylaws for American Web Loan, Inc.,
doing business as Clear Creek; the only evidence of
Clear Creek’s stated purpose is the council’s resolution
creating the entity, which states its determination ‘‘that
the best interest of the [tribe] is best served by the
adoption of the Otoe-Missouria Tribe American Web
Loan Act . . . .’’
The defendants urge us to uphold the trial court’s
decision to require, consistent with the California
Supreme Court’s reasoning in Miami Nation, a further
showing of how the stated purpose is functioning in
actuality in order to satisfy this factor. They claim that
the record is insufficient to demonstrate that the entities
have achieved their purpose. However, Miami Nation
is distinguishable because, as the Fourth Circuit noted,
the evidence in that case ‘‘indicated that the tribe
received barely any revenue, and the entities could not
identify the percentage of profits from the lending oper-
ations that flowed to the tribe or how those profits
were used.’’ Williams v. Big Picture Loans, LLC, supra,
929 F.3d 181; see People ex rel. Owen v. Miami Nation
Enterprises, supra, 2 Cal. 5th 254–55. Furthermore, the
entities in Miami Nation were engaging in profit shar-
ing with apparently nontribal members, whereas the
record in the present case indicates that both entities
were created under tribal law for the sole purpose of
generating revenue for the tribe, thus promoting tribal
self-governance and economic development. See People
ex rel. Owen v. Miami Nation Enterprises, supra, 254.
The record in the present case does not indicate, and
the defendants do not allege, that proceeds from Great
Plains or Clear Creek are going to nontribal members.
Indeed, both Grant’s affidavit and the operating agree-
ment for Great Plains indicate that the tribe, as the sole
member, is the sole recipient of any profits generated
by Great Plains and that the purpose of Great Plains is
to promote tribal self-governance and economic devel-
opment. Imposing a more exacting standard that
requires the opening and examination of a tribe’s finan-
cial books and records in order to show the extent
to which a tribal business enterprise is functionally
achieving its purpose, in the absence of any indication
that such proceeds are flowing to nontribal members
or that the entities serve a purpose other than the one
asserted by the tribe, would infringe too greatly on tribal
self-governance and self-determination. See Williams
v. Big Picture Loans, LLC, supra, 929 F.3d 180 (‘‘[s]uch
a requirement [of breaking down a tribe’s budget into
percentages] is at odds with policy considerations of
tribal self-governance and economic development’’).
Because the stated purpose of Great Plains is to advance
the tribe’s ‘‘economic development to aid in addressing
issues of public health, safety, and welfare,’’ and the
record provides evidence of such purpose in the tribal
law and resolution creating Great Plains, as well as its
operating agreement, with no evidence supporting a
conclusion to the contrary, we conclude that this factor
weighs in favor of immunity for Great Plains.
The record, however, does not contain evidence of
Clear Creek’s stated purpose beyond the resolution cre-
ating American Web Loan, Inc., and Grant’s affidavit
containing a single, conclusory statement. The plaintiffs
bear the burden of establishing their arm of the tribe
status, and, without further description or documenta-
tion linking the entity’s stated purpose to the further-
ance of tribal economic development, we conclude that
there is insufficient evidence for this factor to weigh
in favor of finding Clear Creek to be an arm of the tribe.
See, e.g., Buell Industries, Inc. v. Greater New York
Mutual Ins. Co., 259 Conn. 527, 557, 791 A.2d 489 (2002)
(‘‘conclusory affidavits, even from expert witnesses, do
not provide a basis on which to deny [summary judg-
ment motions]’’ (internal quotation marks omitted));
see also id., 557–58 (because ‘‘the plaintiff properly had
the burden to establish the existence of these facts, it
cannot avoid summary judgment . . . by the mere
assertion of a conclusion’’).
3
Control
The third factor ‘‘examines the structure, ownership,
and management of the entities, ‘including the amount
of control the [t]ribe has over the entities.’ ’’ Williams
v. Big Picture Loans, LLC, supra, 929 F.3d 182, quoting
Breakthrough Management Group, Inc. v. Chukchansi
Gold Casino & Resort, supra, 629 F.3d 1191. In
determining the existence of tribal control, courts con-
sider ‘‘the entities’ formal governance structure, the
extent to which the entities are owned by the tribe, and
the day-to-day management of the entities.’’ Williams
v. Big Picture Loans, LLC, supra, 182; see People ex
rel. Owen v. Miami Nation Enterprises, supra, 2 Cal.
5th 247 (noting that control of entity does not require
control of all business minutiae). The extent to which
a tribe is actively involved in directing or overseeing
the operation of the entity will affect the extent to which
this factor weighs in favor of immunity. See People ex
rel. Owen v. Miami Nation Enterprises, supra, 247. In
considering the tribe’s control over an entity, courts
consider the totality of the circumstances to determine
whether the tribe has sufficient operational control to
render an entity an arm of the tribe.11 See Williams v.
Big Picture Loans, LLC, supra, 183 (outsourcing of
entity’s day-to-day management did not outweigh other
factors weighing in favor of immunity).
The trial court found the tribe’s control of the entities
evident from Grant’s affidavit, which provides that Shot-
ton, who is the chairman of the tribe, serves as secretary
and treasurer of both entities and is responsible for
‘‘certain oversight’’ of the entities. Grant also states that
both entities’ officers are appointed by the council and
may be removed by the council with or without cause.
The operating agreement of Great Plains further pro-
vides that its board of directors is appointed by the
council and any board member may be removed by the
council with or without cause. Because there is no
evidence that Great Plains is controlled in any way by
nontribal members and, in fact, is ultimately controlled
by tribal officials, this factor strongly weighs in favor
of finding that Great Plains is an arm of the tribe. See
id., 183–84 (concluding that this factor weighed against
entity controlled in part by nontribal members when
doing business off reservation). The record, however,
does not contain evidence beyond Grant’s affidavit of
the tribe’s control of Clear Creek or of its structure or
management. The affidavit merely describes the entity
as wholly owned by the tribe, with officers appointed
and removed by the tribal council. The affidavit does
not provide information about the actual control and
management that the tribe has over Clear Creek. With-
out further documentation or description, there is insuf-
ficient evidence in the record to determine whether this
factor weighs in favor of Clear Creek being an arm of
the tribe.
4
Tribal Intent
The fourth factor examines ‘‘solely’’ the tribe’s intent
to extend its sovereign immunity to the entities. Wil-
liams v. Big Picture Loans, LLC, supra, 929 F.3d 184.
Tribal intent is often expressly stated in the tribal ordi-
nance or articles of incorporation that create the entity,
but it can also be inferred from ‘‘the tribe’s actions or
other sources.’’ People ex rel. Owen v. Miami Nation
Enterprises, supra, 2 Cal. 5th 246. It is not appropriate
to consider the motives behind the tribe’s intent, but
only to consider whether any intent was expressed at
all. See Williams v. Big Picture Loans, LLC, supra,
184 (holding that district court improperly considered
‘‘driving force for the [t]ribe’s intent to share its immu-
nity’’ (internal quotation marks omitted)).
Here, the tribe expressly and unequivocally indicated
its intent to extend its immunity to Great Plains in the
operating agreement, which supports Grant’s statement
in his affidavit that the ‘‘[t]ribe granted [the entities]
all privileges and immunities enjoyed by the [t]ribe,
including, but not limited to, immunities from suit as
well as any [f]ederal, [s]tate, and local taxation or regu-
lation.’’ The tribe’s LLC Act, under which Great Plains
was formed, further evidences tribal intent to extend
immunity to entities created thereunder when the tribe
is the sole member, as in the present case, by providing
in relevant part: ‘‘Such [limited liability companies] . . .
shall, therefore, be entitled to all of the privileges and
immunities enjoyed by the [t]ribe, including, but not
limited to, immunities from suit in [f]ederal, [s]tate,
and [t]ribal courts and from [f]ederal, [s]tate, and local
taxation or regulation . . . .’’ Because the record
undisputedly indicates tribal intent to extend immunity
to Great Plains, this factor weighs in favor of it being
an arm of the tribe. Once again, however, the only
evidence of tribal intent to extend immunity to Clear
Creek is contained in Grant’s affidavit in a single conclu-
sory statement. Thus, without further information from
articles of incorporation, bylaws, or the tribe’s Corpora-
tion Act, there is insufficient evidence in the record for
us to conclude that this factor weighs in favor of finding
that Clear Creek is entitled to tribal sovereign immunity.
5
Financial Relationship
The fifth factor contemplates the financial relation-
ship between the tribe and the entities. See, e.g., Wil-
liams v. Big Picture Loans, LLC, supra, 929 F.3d 184;
Breakthrough Management Group, Inc. v. Chukchansi
Gold Casino & Resort, supra, 629 F.3d 1194. One rele-
vant consideration is whether a judgment against an
entity would affect the tribe’s assets, as well. See Wil-
liams v. Big Picture Loans, LLC, supra, 184. Although
direct tribal liability ‘‘is neither a threshold requirement
for immunity nor a predominant factor in the overall
analysis,’’ if a judgment against the entity would affect
the tribe’s assets, this factor will more likely weigh in
favor of immunity, even if the tribe’s liability is ‘‘formally
limited.’’ (Internal quotation marks omitted.) Id., quot-
ing People ex rel. Owen v. Miami Nation Enterprises,
supra, 2 Cal. 5th 247. Courts also examine ‘‘the extent
to which a tribe ‘depends . . . on the [entity] for reve-
nue to fund its governmental functions, its support of
tribal members, and its search for other economic
development opportunities.’ ’’ Williams v. Big Picture
Loans, LLC, supra, 184, quoting Breakthrough Manage-
ment Group, Inc. v. Chukchansi Gold Casino & Resort,
supra, 1195. ‘‘If a judgment against the entity would
significantly impact the tribal treasury, this factor will
weigh in favor of immunity even if the tribe’s liability
for an entity’s actions is formally limited.’’ Williams v.
Big Picture Loans, LLC, supra, 184.
Grant’s affidavit clearly states that both entities are
wholly owned by the tribe. Section 5.1 of the operating
agreement of Great Plains provides that ‘‘[a]ll [p]rofits
and [l]osses shall be allocated to the [t]ribe as the sole
[m]ember,’’ and § 5.2 provides that ‘‘[a]ll [c]ash [f]low
shall be distributed to the [t]ribe, at least quarterly
unless otherwise approved by the [t]ribal [c]ouncil.’’
This language clearly indicates the financial interests
of the tribe as the sole member and owner of Great
Plains. Although there is no allegation or evidence that
the profits generated by Clear Creek are being directed
anywhere other than to the tribe, the record is less
descriptive of any financial relationship between Clear
Creek and the tribe because it does not include articles
of incorporation, bylaws, or any other legal documents
governing the structure and operation of Clear Creek.
Instead of challenging the existence of the financial
relationship between the business entities and the tribe,
the defendants argue that there is not enough informa-
tion in the record to find that there is a sufficiently
significant financial relationship to establish that the
entities are arms of the tribe.12 Similarly, the trial court
concluded that, although Grant’s affidavit and the sup-
porting documents addressed this factor to a certain
extent, the record was insufficient to establish entitle-
ment to tribal sovereign immunity. The trial court based
its conclusion on the additional inquiry outlined in
Miami Nation, namely, that the evidence failed to show
that the entity actually, rather than just nominally, pro-
moted tribal self-governance.
The record does not provide a detailed accounting
of each entity’s financial records or the degree to which
each entity generates profits that support specific tribal
activities. Although such an accounting would indeed
provide clear evidence of a functioning financial rela-
tionship between the tribe and the entity, it is not a
necessary factor. See People ex rel. Owen v. Miami
Nation Enterprises, supra, 2 Cal. 5th 248 (‘‘[d]etermin-
ing whether this factor weighs in favor of immunity
requires a consideration of degree rather than a binary
decision’’). Just as a financial relationship in and of
itself is not dispositive of the tribal arm analysis, we
decline to require a sovereign to provide detailed infor-
mation about the extent to which an entity supports its
budget, when they otherwise furnish significant evi-
dence that an entity is an arm of the tribe. See id., 247(holding that whether judgment against entity would
reach tribe’s assets is relevant but ‘‘neither a threshold
requirement for immunity nor a predominant factor in
the overall analysis’’). Because the record sufficiently
demonstrates a financial relationship between the tribe
and Great Plains, and there is no evidence to the con-
trary, we conclude that this factor, although perhaps
the weakest of the five, also weighs in favor of arm of
the tribe status for Great Plains. The record does not
contain enough evidence to conclude that this factor
weighs in favor of immunity for Clear Creek because
the existence of a financial relationship is indicated
only by Grant’s conclusory affidavit stating that Clear
Creek is a wholly owned entity of the tribe. The record
does not specifically indicate whether any profits or
funds from Clear Creek are directed to the tribe,
although the fact that it is wholly owned by the tribe
could support an inference that its profits are directed
to the tribe. Without more detail on this point, however,
we cannot conclude that this factor weighs in favor of
Clear Creek being an arm of the tribe.
We have considered these factors in light of the
underlying policies supporting tribal sovereign immu-
nity, namely, the promotion of tribal self-governance
and economic development, and the ‘‘protection of the
tribe’s monies and the promotion of commercial deal-
ings between Indians and non-Indians.’’ (Internal quota-
tion marks omitted.) Williams v. Big Picture Loans,
LLC, supra, 929 F.3d 185, quoting Breakthrough Man-
agement Group, Inc. v. Chukchansi Gold Casino &
Resort, supra, 629 F.3d 1187–88. In regard to Great
Plains, the record reflects that it was created under
tribal law and is controlled by directors appointed by
the council for the purpose of promoting tribal eco-
nomic development and welfare. The record further
indicates a significant financial relationship between
the tribe and Great Plains, which leads us to conclude
that withholding tribal sovereign immunity from Great
Plains as an arm of the tribe would interfere with the
tribe’s self-governance and economic development. See
Williams v. Big Picture Loans, LLC, supra, 185 (declin-
ing to find no immunity when that conclusion, even if
made to protect tribe, would weaken tribe’s ability to
self-govern). Accordingly, we conclude that all five fac-
tors indicate that Great Plains is an arm of the tribe as
a matter of law. Because there is no indication that
Congress abrogated immunity or any claim that the
tribe has waived its immunity, we conclude that Great
Plains is entitled to tribal sovereign immunity as an arm
of the tribe. See, e.g., Santa Clara Pueblo v. Martinez,
supra, 436 U.S. 58; Williams v. Big Picture Loans, LLC,
supra, 185. We conclude, however, that the minimal
evidence in the record in regard to Clear Creek, con-
sisting of only a certificate of license, the resolution
creating American Web Loan, Inc., and Grant’s affidavit
containing conclusory statements, is insufficient to sup-
port a similar conclusion for Clear Creek. Thus, because
the record supports a conclusion of immunity as a mat-
ter of law only as to Great Plains, the trial court improp-
erly remanded the case to the commissioner for further
proceedings as to both entities, rather than directing
judgment on this point in regard to Great Plains and
remanding to the department for further proceedings
as to Clear Creek.
IV
Having determined that Great Plains is an arm of the
tribe entitled to tribal sovereign immunity, we now turn
to the issue of whether Shotton similarly shares in that
immunity.13 The defendants imposed both civil penalties
and injunctive relief against Shotton. The defendants
argue that Shotton, rather than the tribe, is the real
party in interest and that the department therefore took
action against Shotton in his individual, rather than
official capacity, precluding him from claiming immu-
nity from civil penalties or injunctive relief. The defen-
dants emphasize that the department took action
against Shotton in his individual capacity due to ‘‘his
personal participation in violations of the state’s usury
and banking laws.’’ In response, the plaintiffs argue that
the trial court correctly determined that the tribe is the
real party in interest, rendering Shotton immune from
civil penalties and injunctive relief. They contend that
the tribe is the real party in interest because the defen-
dants do not allege any specific actions taken by Shot-
ton personally in relation to the lending activities of
the entities, and they emphasize that any damages or
injunctive relief against Shotton would affect the tribe’s
treasury. We conclude that the tribe is the real party in
interest, rendering Shotton immune from civil penalties
but not injunctive relief.
The following general background principles inform
the extent to which Shotton is entitled to share in the
tribe’s immunity. Members of the tribe do not have tribal
sovereign immunity simply by virtue of their status as
members. Cohen’s Handbook of Federal Indian Law,
supra, § 7.05 [1] [a], p. 638 and n.13, citing Puyallup
Tribe, Inc. v. Dept. of Game, 433 U.S. 165, 172–73, 97
S. Ct. 2616, 53 L. Ed. 2d 667 (1977). In the absence of
tribal sovereign immunity or a federal law to the con-
trary, ‘‘Indians going beyond reservation boundaries
have generally been held subject to nondiscriminatory
state law otherwise applicable to all citizens of the
[s]tate.’’ Mescalero Apache Tribe v. Jones, 411 U.S. 145,
148–49, 93 S. Ct. 1267, 36 L. Ed. 2d 114 (1973). In
determining whether a tribal official is protected by
tribal sovereign immunity, the United States Supreme
Court has extended the doctrines governing state and
federal employee liability to the context of tribal sover-
eign immunity. See Lewis v. Clarke, supra, 137 S. Ct.
1290; see also Cohen’s Handbook of Federal Indian law,
supra, § 7.05 [1] [a], p. 638 n.18, citing Regents of the
University of California v. Doe, 519 U.S. 425, 429, 117
S. Ct. 900, 137 L. Ed. 2d 55 (1997) (sovereign immunity
bars suit against state officers to recover money from
state). Tribal officials are, therefore, entitled to an
extension of tribal sovereign immunity if two conditions
are met: (1) the tribe, rather than the individual officer,
is the real party in interest, and (2) the tribal official
acted within the scope of his or her authority. See Lewis
v. Clarke, supra, 1290–91; see also Chayoon v. Chao,
355 F.3d 141, 143 (2d Cir.) (‘‘[the plaintiff] cannot cir-
cumvent tribal immunity by merely naming officers or
employees of the [t]ribe when the complaint concerns
actions taken in [the] defendants’ official or representa-
tive capacities and the complaint does not allege they
acted outside the scope of their authority’’), cert.
denied, 543 U.S. 966, 125 S. Ct. 429, 160 L. Ed. 2d 336(2004). We address each of these conditions in turn.
A
The United States Supreme Court has drawn a distinc-
tion between individual and official capacity suits for
purposes of the immunity of tribal officers. See Lewis
v. Clarke, supra, 137 S. Ct. 1292. In Lewis, the plaintiffs
sued the defendant, a limousine driver employed by
an arm of a tribe, in his individual capacity after his
involvement in a car accident on an interstate highway
away from the reservation. Id., 1290. The defendant
asserted that he was protected by tribal sovereign
immunity because of his employment for an arm of the
tribe and that his conduct was within his official duties
as an employee, namely, driving the limousine, thus
entitling him to immunity. Id. The court disagreed with
the defendant and concluded that tribal sovereign
immunity did not extend to him because the remedy
sought by the plaintiffs in Lewis would operate against
the individual limousine driver, rather than the tribe,
as a consequence of his personal conduct that resulted
in a tort away from the reservation.14 Id., 1292–93. The
court noted that this result did not abrogate tribal sover-
eignty because the official was being sued in his per-
sonal rather than official capacity, and he was therefore
subject to the same exposure to liability as state and
federal officials under the same circumstances. Id.,
1292–93. The court highlighted the distinction between
official capacity claims when ‘‘the relief sought is only
nominally against the official and in fact is against the
official’s office and thus the sovereign itself,’’ and per-
sonal capacity claims which ‘‘seek to impose individual
liability [on] a government officer for actions taken
under color of state law.’’ (Emphasis in original; internal
quotation marks omitted.) Id., 1292. Such a distinction
is critical because the ‘‘identity of the real party in
interest dictates what immunities may be available.’’ Id.We therefore address that distinction in detail.
‘‘The general bar against [official capacity] claims
. . . does not mean that tribal officials are immunized
from [individual capacity] suits arising out of actions
they took in their official capacities . . . . Rather, it
means that tribal officials are immunized from suits
brought against them because of their official capaci-
ties—that is, because the powers they possess in those
capacities enable them to grant the plaintiffs relief on
behalf of the tribe.’’ (Citation omitted; emphasis
altered.) Native American Distributing v. Seneca-
Cayuga Tobacco Co., 546 F.3d 1288, 1296 (10th Cir.
2008). Generally, individual or ‘‘[personal capacity] suits
seek to impose personal liability [on] a government
official for [wrongful] actions [that] he takes under
color of . . . law’’ and in the course of his official
duties. Kentucky v. Graham, 473 U.S. 159, 165, 105 S.
Ct. 3099, 87 L. Ed. 2d 114 (1985). ‘‘By contrast, official
capacity suits ultimately seek to hold the entity of which
the officer is an agent liable, rather than the official
himself: they generally represent [merely] another way
of pleading an action against an entity of which an
officer is an agent.’’ (Internal quotation marks omitted.)
Pistor v. Garcia, 791 F.3d 1104, 1112 (9th Cir. 2015),
quoting Kentucky v. Graham, supra, 165–66; see Pistor
v. Garcia, supra, 1112 (focusing on plaintiffs’ suit
against individual tribal officers rather than against
tribe’s treasury).15
‘‘To identify the real, substantial party in interest, one
factor that the court examines is the substance of the
claims stated in the complaint, positing inquiries such
as . . . [whether] the actions of the state officials
[were] taken to further personal interests distinct from
the [s]tate’s interests . . . . Other factors include . . .
whether the unlawful actions of the officials were tied
inextricably to their official duties, whether the burden
of the relief would be borne by the sovereign if the
official had authorized the relief at the outset, whether
a judgment would be institutional and official in charac-
ter so as to operate against the sovereign, and whether
the official’s actions were ultra vires.’’ (Citation omitted;
internal quotation marks omitted.) Solomon v. Ameri-
can Web Loan, supra, 375 F. Supp. 3d 661.
As an example of this often subtle distinction, the
United States Court of Appeals for the Tenth Circuit
held that the tribe, rather than an individual tribal offi-
cer, was the real party in interest when it rejected a
breach of contract and civil conspiracy action against
a tribally owned entity and tribal officers. See Native
American Distributing v. Seneca-Cayuga Tobacco Co.,
supra, 546 F.3d 1290, 1297. After concluding that a cor-
porate entity was an arm of the tribe and entitled to
sovereign immunity, the court rejected the plaintiffs’
suit against the individual tribal officials for civil con-
spiracy. Id., 1296–97. In doing so, the court held that
the plaintiffs failed to state a claim against the tribal
officers in their individual capacity because there were
no allegations of specific conduct by the individuals,
including the former chief of the tribe and managers
of the entity, which would support a conclusion that
any individual had engaged in civil conspiracy. See id.,
1297 (noting that plaintiffs failed to seek money dam-
ages from officer for wrongful conduct ‘‘fairly attribut-
able to the officer himself’’ (internal quotation marks
omitted)). The court characterized the allegations in the
complaint as having been ‘‘made against the [i]ndividual
[d]efendants relat[ing] to decisions and actions taken
by them as the principal managers of [the entity], not
as individuals.’’ (Internal quotation marks omitted.) Id.,
1298. Instead, the court concluded that ‘‘[t]here [was]
simply nothing more than conclusory allegations that
a civil conspiracy exists, and this [was] not enough
. . . .’’ Id.The record in the present case is determinative of
whether the defendants are taking administrative action
against Shotton in his individual or official capacity. The
department seeks relief from Shotton and the entities
in a single proceeding. The record does not indicate, and
the defendants do not allege, that Shotton personally
engaged in any conduct giving rise to these proceedings.
Instead, it appears that the department is seeking relief
from Shotton nominally because of his official policy-
making capacity as a high ranking officer of the tribe
and an officer of the entities, rather than as a result of
his personal actions taken within the scope of his offi-
cial capacity. See id., 1297–98 (holding that tribal offi-
cials were sued in official capacity because plaintiffs
failed to allege individual conduct by officers but made
allegations against them only as ‘‘the principal managers
of [the entity]’’ (internal quotation marks omitted)); cf.
Maxwell v. San Diego, 708 F.3d 1075, 1087, 1089 (9th Cir.
2013) (tribal emergency employees were not entitled
to tribal sovereign immunity when they were sued for
personal actions resulting in gross negligence); Solo-
mon v. American Web Loan, supra, 375 F. Supp. 3d 662(holding that nontribal, corporate official who engaged
in ultra vires conduct was not entitled to tribal immu-
nity); Williams & Cochrane, LLP v. Quechan Tribe of
Fort Yuma Indian Reservation, Docket No. 3:17-cv-
01436-GPC-MDD, 2018 WL 2734946, *15–16 (S.D. Cal.
June 7, 2018) (concluding that defendants who person-
ally engaged in fraudulent conduct were not entitled to
tribal sovereign immunity). Put differently, Shotton’s
status as a high ranking official of both the tribe and
the entities is the sole reason he was a target of the
department’s administrative action; the department has
not taken action against any other officials or employ-
ees involved with the entities’ lending practices or man-
agement. This case, therefore, is distinguishable from
those cited by the defendants in which courts deemed
the tribal officers to be the real parties in interest when
sued in their individual capacity for personal conduct.16
Thus, we conclude that the tribe, rather than Shotton,
is the real party in interest with respect to the adminis-
trative action in this case.
B
We next turn to whether Shotton’s actions were
within the scope of his official authority, thus entitling
him to share in tribal sovereign immunity. See, e.g.,
Bassett v. Mashantucket Pequot Tribe, supra, 204 F.3d
359. The mere allegation that Shotton was acting in
his capacity as a corporate official of entities allegedly
violating Connecticut law does not alone establish that
he was acting outside the scope of his authority. See
Bassett v. Mashantucket Pequot Museum & Research
Center, Inc., 221 F. Supp. 2d 271, 280–81 (D. Conn.
2002) (alleging illegality of defendants’ actions was
insufficient to surmount immunity because actions
must be ‘‘ ‘manifestly or palpably beyond his author-
ity’ ’’). Here, the defendants fail to allege, let alone
prove, any actions by Shotton that are beyond the scope
of his authority as an officer of the tribe and entities
or that those actions were taken to further his personal
interests as distinct from the tribe’s interests. Indeed,
the department fails to specifically allege any actions
by Shotton personally at all. The entirety of Shotton’s
actions that allegedly violated Connecticut law took
place solely within the context of the entities’ lending
operations. The record does not indicate that Shotton
did anything outside the scope of executing his official
duties as an officer of the tribe and of the entities.17
Having concluded the tribe is the real party in interest
and that Shotton’s actions were entirely within the
scope of his duties for the tribe and the entities, we
now determine whether the tribe’s sovereign immunity
extends to each form of relief sought by the defendants
against Shotton in his capacity as an officer of Great
Plains.
‘‘In the tribal immunity context, a claim for damages
against a tribal official lies outside the scope of tribal
immunity only [when] the complaint pleads—and it is
shown—that a tribal official acted beyond the scope of
his authority to act on behalf of the [t]ribe. . . . Claim-
ants may not simply describe their claims against a
tribal official as in his individual capacity in order to
eliminate tribal immunity. . . . [A] tribal official—even
if sued in his individual capacity—is . . . stripped of
tribal immunity [only] when he acts manifestly or palpa-
bly beyond his authority . . . . [I]n order to overcome
sovereign immunity, the [plaintiff] must do more than
allege that the defendants’ conduct was in excess of
their . . . authority; [the plaintiff] also must allege or
otherwise establish facts that reasonably support those
allegations.’’ (Internal quotation marks omitted.) Drabik
v. Thomas, 184 Conn. App. 238, 247, 194 A.3d 894, cert.
denied, 330 Conn. 929, 194 A.3d 778 (2018); see also
Chayoon v. Chao, supra, 355 F.3d 143 (there is no excep-
tion to sovereign immunity when only relief sought
against tribal officials was damages).
Because the department fails to allege that Shotton
acted beyond the scope of his authority as a tribal
official, we conclude that the department’s conclusory
and nominal allegation, which does not allege specific
actions taken by Shotton, is legally insufficient to sur-
mount his immunity from civil penalties.18 See Lewis
v. Clarke, supra, 137 S. Ct. 1291.
C
The defendants contend that prospective injunctive
relief is available, notwithstanding any tribal sovereign
immunity, under Ex parte Young, 209 U.S. 123, 133, 28
S. Ct. 441, 52 L. Ed. 714 (1908), which allows plaintiffs
to seek prospective, injunctive relief against state offi-
cials for violations of federal law. In response, the plain-
tiffs argue that Shotton is entitled to share in tribal
sovereign immunity because the exception under Ex
parte Young is limited to federal causes of action and
does not extend to state causes of action against tribal
officials. The plaintiffs further contend that Ex parte
Young does not apply to Shotton because (1) any discus-
sion of alternative avenues for relief against tribal offi-
cials by the United States Supreme Court in Michigan
v. Bay Mills Indian Community, supra, 572 U.S. 782,
was dictum, and (2) Ex parte Young does not extend
to actions taken by the state against tribal officials for
violations of state law. In response, the defendants cite
the recent decision of the United States Court of
Appeals for the Second Circuit in Gingras v. Think
Finance, Inc., 922 F.3d 112, 121 (2d Cir. 2019), cert.
denied sub nom. Sequoia Capital Operations, LLC v.
Gingras, U.S. , 140 S. Ct. 856, 205 L. Ed. 2d 458(2020), and argue that Shotton is not immune from
injunctive relief for actions arising from violations of
state law. We agree with the defendants and conclude
that tribal sovereign immunity does not render Shotton
immune from the injunctive relief ordered by the depart-
ment.
The United States Supreme Court addressed a tribal
official’s entitlement to sovereign immunity from injunc-
tive relief in Michigan v. Bay Mills Indian Community,
supra, 572 U.S. 782. Relying on Ex parte Young, supra,209 U.S. 123, the court held that tribal sovereign immu-
nity does not bar suit for injunctive relief against tribal
officers responsible for unlawful conduct. Michigan v.
Bay Mills Indian Community, supra, 785, 796. Bay
Mills concerned tribal sovereign immunity in the con-
text of Indian gaming. Id., 790–93. The court held that
the Indian Gaming Regulatory Act, 25 U.S.C. § 2710 et
seq., did not abrogate tribal sovereign immunity for
gaming violations taking place away from tribal land
‘‘because states already had other ways to vindicate
state gaming law violations there.’’ Gingras v. Think
Finance, Inc., supra, 922 F.3d 122, citing Michigan v.
Bay Mills Indian Community, supra, 794–95. The court
in Bay Mills noted that ‘‘Michigan could bring suit
against tribal officials or employees (rather than the
[t]ribe itself) [when] seeking an injunction . . . .’’
Michigan v. Bay Mills Indian Community, supra, 796.
The United States Court of Appeals for the Second
Circuit, the decisions of which are particularly persua-
sive in resolving questions of federal law,19 recently
relied in part on Bay Mills and expressly concluded
that the exception to sovereign immunity announced
in Ex parte Young extended to injunctive relief to bar
tribal officials from violating state law, in addition to
federal law.20 Gingras v. Think Finance, Inc., supra,
922 F.3d 121. In Gingras, the Second Circuit empha-
sized that, in Bay Mills, the United States Supreme
Court had ‘‘made clear . . . that Michigan could still
‘resort to other mechanisms, including legal actions
against the responsible individuals’ to vindicate viola-
tions of Michigan state law.’’21 Id., quoting Michigan v.
Bay Mills Indian Community, supra, 572 U.S. 785; see
also Alabama v. PCI Gaming Authority, 801 F.3d 1278,
1290 (11th Cir. 2015) (‘‘tribal officials may be subject
to suit in federal court for violations of state law under
the fiction of Ex parte Young when their conduct occurs
outside of Indian lands’’). We agree with the Second
Circuit’s conclusion that this statement by the United
States Supreme Court was not dictum. See Gingras v.
Think Finance, Inc., supra, 122. The Second Circuit
noted that the Supreme Court had issued ‘‘[t]hree dis-
tinct opinions in Bay Mills [that] recognized the avail-
ability of Ex parte Young actions for violations of state
law.’’ Id.; see Michigan v. Bay Mills Indian Commu-
nity, supra, 796; Michigan v. Bay Mills Indian Com-
munity, supra, 809 (Sotomayor, J., concurring); Michi-
gan v. Bay Mills Indian Community, supra, 822–24
(Thomas, J., dissenting). Accordingly, we follow the
Second Circuit’s decision in Gingras and conclude that
Shotton is not entitled to tribal sovereign immunity
from suit for prospective injunctive relief.22
Application of the Ex parte Young exception repre-
sents a balanced approach that accounts for the com-
peting interests of two sovereigns, tribes and states,
and allows the state to enforce its laws against tribal
officials while ‘‘providing a neutral forum for the peace-
ful resolution of disputes between domestic sovereigns,
and it fairly holds Indian tribes acting [off reservation]
to their obligation to comply with generally applicable
state law.’’ Gingras v. Think Finance, Inc., supra, 922
F.3d 124. Without such balancing via the provision of
injunctive relief, the state would be left without any
recourse to protect its citizens from tribal activities that
run afoul of state laws. See id. Accordingly, although
Shotton is immune from the civil penalties sought to
be imposed by the department, we conclude that he is
not immune from injunctive relief prospectively
enjoining him from violating Connecticut usury and
banking laws in connection with his duties for the tribe
and the entities.
In summary, we conclude that the trial court incor-
rectly determined that further proceedings were
required to determine whether Great Plains is an arm
of the tribe. Instead, the record establishes that Great
Plains is an arm of the tribe as a matter of law and,
therefore, entitled to share in the tribe’s sovereign
immunity from administrative action. With respect to
Shotton’s individual immunity, we conclude that the
trial court correctly determined that the tribe is the real
party in interest, rendering Shotton immune from the
civil penalties imposed by the department but not its
order of prospective injunctive relief in regard to his
actions as an official of Great Plains. We further hold
that the trial court correctly concluded that further
proceedings are required to determine whether Clear
Creek is an arm of the tribe and, therefore, entitled to
immunity from the order imposing civil money penalties
against that entity, and also to determine whether Shot-
ton is entitled to tribal sovereign immunity in regard
to his actions taken as an official of Clear Creek.
The judgment is reversed insofar as the trial court
concluded that further proceedings were required to
determine whether Great Plains is an arm of the tribe
and insofar as the trial court upheld the imposition of
civil penalties against Shotton in his capacity as an
officer of Great Plains, and the case is remanded with
direction to render judgment sustaining the administra-
tive appeal in part and directing the commissioner to
dismiss the administrative proceedings against Great
Plains, to vacate the imposition of civil penalties against
Shotton in his capacity as an officer of Great Plains,
and to remand the case to the commissioner for further
proceedings to determine, in accordance with this opin-
ion, whether Clear Creek is an arm of the tribe and
whether Shotton is entitled to tribal sovereign immunity
in regard to his actions taken as an official of Clear
Creek; the judgment is affirmed in all other respects.
In this opinion the other justices concurred.
* May 20, 2021, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
The plaintiffs appealed from the judgment of the trial court to the Appel-
late Court, and we transferred the appeal to this court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-1.
2
Specifically, the commissioner ordered the plaintiffs to cease and desist
from violating General Statutes (Rev. to 2015) §§ 36a-555 (1) and (2) and
36a-573 (a). As the trial court noted, No. 16-65, §§ 19 through 36, of the 2016
Public Acts ‘‘extensively [revised] and reorganized the statutes regarding
small loan lending. The comparable prohibitions now appear in General
Statutes §§ 36a-556 and 36a-558.’’
3
Unless otherwise noted, all subsequent references to the trial court are
to Judge Shortall.
4
In requiring a functional inquiry, the trial court followed the California
Supreme Court’s observation in Miami Nation that ‘‘it is common sense
that if an entity provides a miniscule percentage of its revenue to the tribe,
and the tribe is barely involved, the entity cannot be said to stand in the
place of the tribe. Moreover, if a tribe retains only a minimal percentage of
the profits from the enterprise, it would appear that the enterprise may not
be truly controlled by the tribe.’’ (Internal quotation marks omitted.) People
ex rel. Owen v. Miami Nation Enterprises, supra, 2 Cal. 5th 249.
5
We note that a remand to an agency pursuant to § 4-183 (j) is a final
judgment for purposes of appeal. See, e.g., Tilcon Connecticut, Inc. v. Com-
missioner of Environmental Protection, 317 Conn. 628, 646–47, 119 A.3d
1158 (2015).
6
For purposes of this opinion, we note that ‘‘Indian country’’ is a ‘‘term
of art used to identify territory, specifically, lands on which tribal laws
and customs—as well as federal laws relating to Indians—are applicable.
Congress has defined Indian country as including three types of land: ‘land
within the limits of any Indian reservation,’ ‘dependent Indian communities,’
and ‘Indian allotments.’ ’’ (Footnote omitted.) R. Duncan & C. Martenson,
‘‘I Can See Clearly Now: The EPA’s Authority to Regulate Indian Country
Under the Clean Air Act,’’ 41 Wm. Mitchell L. Rev. 488, 492 (2015). ‘‘Indian
country’’ is distinct from ‘‘Indian lands,’’ which are defined as ‘‘lands within
Indian reservations and any lands held in trust or restricted status by the
United States for the benefit of a tribe or individual Indians . . . .’’ Cohen’s
Handbook of Federal Indian Law (N. Newton et al. eds., 2012) § 3.04 [1], p.
184. Finally, land not held in trust by the federal government is often referred
to as ‘‘tribal land,’’ which generally denotes direct tribal ownership of the
land rather than a relationship to the land through allotment, trust, or treaty.
Id., § 1.03 [6] [b], p. 61.
7
We disagree with the plaintiffs’ reliance on the Colorado Supreme Court’s
decision in Cash Advance & Preferred Cash Loans v. State ex rel. Suthers,
supra, 242 P.3d 1099, for the proposition that the defendants bear the burden
of proving that the entities are not arms of the tribe. In that case, the
Colorado Supreme Court held that an assertion of tribal sovereign immunity
is jurisdictional in nature and, therefore, properly raised in a motion to
dismiss. Id., 1112–13. In making that determination, the court also stated
that ‘‘the state bears the burden of proving, by a preponderance of the
evidence, that [the tribal entities] are not entitled to tribal sovereign immu-
nity.’’ Id., 1113. This statement, however, referred to the state’s obligation
to prove the existence of jurisdiction in spite of tribal sovereign immunity,
not to whether the business entities at issue in that case were arms of the
tribe in the first place. After concluding that the state bore the burden of
demonstrating jurisdiction, the court engaged in an analysis as to whether
the state had proven the waiver of tribal sovereign immunity. See id., 1114.
Significantly, the court engaged in this analysis only after determining the
proper standard to deem an entity an arm of the tribe. See id., 1109–11.
8
Although placing the burden on the entity is consistent with Connecticut’s
arm of the state analysis in Rocky Hill v. SecureCare Realty, LLC, supra,
315 Conn. 279, we note that the ultimate issue of tribal sovereign immunity
itself ‘‘differs from state [sovereign immunity] in important respects.’’ (Inter-
nal quotation marks omitted.) People ex rel. Owen v. Miami Nation Enter-
prises, supra, 2 Cal. 5th 240; see also Idaho v. Coeur d’Alene Tribe of Idaho,
521 U.S. 261, 268, 117 S. Ct. 2028, 138 L. Ed. 2d 438 (1997) (tribal immunity
is distinct from state immunity because ‘‘the plan of the [constitutional]
[c]onvention did not surrender Indian tribes’ immunity for the benefit of
the [s]tates’’); Blatchford v. Native Village of Noatak, 501 U.S. 775, 782, 111
S. Ct. 2578, 115 L. Ed. 2d 686 (1991) (‘‘Indian tribes enjoy immunity against
suits by [s]tates . . . as it would be absurd to suggest that the tribes surrend-
ered immunity in a [constitutional] convention to which they were not even
parties’’); People ex rel. Owen v. Miami Nation Enterprises, supra, 240
(noting that states have consented to suit by other states but that tribes
have never agreed to so limit their tribal sovereign immunity).
9
‘‘Although no set formula is dispositive, in determining whether a particu-
lar tribal organization is an ‘arm’ of the tribe entitled to share the tribe’s
immunity from suit, courts generally consider such factors as whether: [1]
the entity is organized under the tribe’s laws or constitution rather than
[f]ederal law; [2] the organization’s purposes are similar to or serve those
of the tribal government; [3] the organization’s governing body is comprised
mainly of tribal officials; [4] the tribe has legal title or ownership of property
used by the organization; [5] tribal officials exercise control over the adminis-
tration or accounting activities of the organization; and [6] the tribe’s govern-
ing body has power to dismiss members of the organization’s governing
body. . . . More importantly, courts will consider whether [7] the corporate
entity generates its own revenue, whether [8] a suit against the corporation
will impact the tribe’s fiscal resources, and whether [9] the subentity has the
‘power to bind or obligate the funds of the [tribe]’ . . . . The vulnerability
of the tribe’s coffers in defending a suit against the subentity indicates that
the real party in interest is the tribe.’’ (Citations omitted.) In re Ransom v.
St. Regis Mohawk Education & Community Fund, Inc., 86 N.Y. 2d 553,
559–60, 658 N.E.2d 989, 635 N.Y.S.2d 116 (1995).
10
We note that the tribal ordinance created American Web Loan, Inc.,
which is a corporate entity that does business as Clear Creek.
11
The control factor requires a balancing of various considerations. The
court in Williams noted that the outsourcing of ‘‘day-to-day management
to a [nontribal] entity . . . would not in itself weigh against immunity, given
the other evidence of [t]ribal control.’’ Williams v. Big Picture Loans, LLC,
supra, 929 F.3d 183. The court deemed the control factor to weigh in favor
of immunity, regardless of the outsourcing of day-to-day management,
because the first entity it considered was otherwise managed by tribal
members who were appointed by the council and empowered to run the
business. Id. In contrast, the Fourth Circuit held that the control factor did
not weigh in favor of immunity for the second entity it considered in Wil-
liams. Id., 183–84. The court came to this different conclusion because the
second entity was not managed by tribal members on a daily basis, the tribal
officers had little knowledge of the management practices and delegated
strategic tasks to nontribal members, and the entity conducted most of its
business off reservation with nontribal members. Id., 183. The culmination
of these facts led the court to conclude that the control factor weighed
slightly against immunity for the second entity. Id., 184.
12
Beyond arguing that the record is insufficient, the department empha-
sizes the nature of the harm in this case, namely, the high interest rates
imposed on Connecticut residents who entered into loans with the entities.
The department’s point is well taken from the perspective of its responsibility
of protecting Connecticut’s citizens from predatory financial practices. An
entity’s entitlement to tribal sovereign immunity, however, is an inquiry
distinct from the ethics of its business. Entitlement to tribal sovereign immu-
nity ‘‘cannot and does not depend on a court’s evaluation of the respectability
of the business in which a tribe has chosen to engage.’’ Williams v. Big
Picture Loans, LLC, supra, 929 F.3d 185. Congress, rather than the courts,
is responsible for abrogating tribal sovereign immunity. See, e.g., Michigan
v. Bay Mills Indian Community, supra, 572 U.S. 800.
13
We note that our discussion in this section regarding Shotton’s immunity
is applicable to his claimed immunity as an officer of both entities. However,
because there is not enough evidence in the record to conclude that Clear
Creek is an arm of the tribe, the ultimate determination of Shotton’s immunity
regarding his affiliation with Clear Creek remains a matter for the commis-
sioner to determine on remand in accordance with this opinion.
14
We note that whether there is an indemnification agreement between
a tribal employee and the tribe does not ultimately determine whether the
tribe’s sovereign immunity will extend to that individual. See Lewis v. Clarke,
supra, 137 S. Ct. 1293 (‘‘an indemnification provision cannot, as a matter
of law, extend sovereign immunity to individual employees who would
otherwise not fall under its protective cloak’’).
15
We note that the Ninth Circuit has taken a ‘‘[remedy focused]’’ approach
to determine the real party in interest, asking ‘‘whether the judgment sought
would expend itself on the public treasury or domain, or interfere with the
public administration, or if the effect of the judgment would be to restrain
the [sovereign] from acting, or to compel it to act.’’ (Internal quotation
marks omitted.) Maxwell v. San Diego, 708 F.3d 1075, 1088 (9th Cir. 2013).
Such an inquiry is consistent with the guidance provided by the United
States Supreme Court in Kentucky v. Graham, supra, 473 U.S. 159.
16
The cases cited by the defendants are distinguishable because they do
not concern actions by tribal employees acting in a leadership or policy-
making capacity for a tribal entity that renders their actions inextricably
bound with those of the entity; instead, they concern actions personally
taken by tribal employees. See Pistor v. Garcia, supra, 791 F.3d 1108–1109,
1113–14 (tribe’s chief of police was deemed unprotected by tribal sovereign
immunity when he was sued in individual capacity for unconstitutionally
detaining plaintiffs); Maxwell v. San Diego, supra, 708 F.3d 1087–89 (individ-
ual members of tribal fire department did not have immunity for gross
negligence in providing emergency medical care); JW Gaming Development,
LLC v. James, Docket No. 3:18-cv-02669-WHO, 2018 WL 4853222, *4 (N.D.
Cal. October 5, 2018) (tribal employees were unprotected by tribal sovereign
immunity when they were sued in individual capacity for fraudulent miscon-
duct resulting in damages), aff’d, 778 Fed. Appx. 545 (9th Cir. 2019), cert.
denied, U.S. , 140 S. Ct. 1297, 206 L. Ed. 2d 376 (2020); Solomon v.
American Web Loan, supra, 375 F. Supp. 3d 661–62 (tribal sovereign immu-
nity did not protect nontribal, corporate official who personally profited at
rate that exceeded tribe’s profits, did not act in interest of tribe, and was
‘‘ ‘architect’ ’’ of fraudulent lending scheme); Williams & Cochrane, LLP v.
Quechan Tribe of Fort Yuma Indian Reservation, supra, 2018 WL 2734946,
*15–16 (defendants were sued in individual capacity because they allegedly
took part in creating fraudulent lending scheme); Pennachietti v. Mansfield,
Docket No. 17-02582, 2017 WL 6311646, *2–4 (E.D. Pa. December 11, 2017)
(tribal lending manager was not entitled to tribal immunity when he was
sued in his individual capacity for usurious loans personally initiated by
him when tribal entity was not named as defendant), appeal dismissed,
Docket No. 18-1070, 2018 WL 3475602 (3d Cir. January 31, 2018).
17
We note that determining that the tribe, rather than Shotton, is the real
party in interest is consistent with our analysis in Spring v. Constantino,
168 Conn. 563, 362 A.2d 871 (1975), in which we outlined the criteria for
determining whether a suit is against the state as the real party interest:
‘‘(1) a state official has been sued; (2) the suit concerns some matter in
which that official represents the state; (3) the state is the real party against
whom relief is sought; and (4) the judgment, though nominally against the
official, will operate to control the activities of the state or subject it to
liability.’’ Id., 568.
18
We note the department describes its claim against Shotton in a conclu-
sory manner as arising from ‘‘his personal participation in violations of the
state’s usury and banking laws.’’
19
‘‘In considering claims of federal law, it is well settled that, when the
United States Supreme Court has not spoken, we find decisions of the
Second Circuit particularly persuasive.’’ Feehan v. Marcone, 331 Conn. 436,
478, 204 A.3d 666, cert. denied, U.S. , 140 S. Ct. 144, 205 L. Ed. 2d
35 (2019).
20
The plaintiffs also contend that the Ex parte Young exception is not
available to the defendants because the defendants took action against
Shotton in his individual, rather than official, capacity, rendering Bay Mills
and Ex parte Young inapplicable. However, as the Second Circuit stated in
Gingras, ‘‘the only material difference between individual and official capac-
ity suits for prospective, injunctive relief is that a judgment against the latter
is enforceable against future successive officers whereas judgments against
the former are not.’’ Gingras v. Think Finance, Inc., supra, 922 F.3d 123.
Therefore, it is irrelevant for the purposes of determining immunity from
injunctive relief whether the tribal official is being sued in his or her individ-
ual or official capacity.
21
A recent Ninth Circuit decision, Jamul Action Committee v. Simer-
meyer, 974 F.3d 984 (9th Cir. 2020), petition for cert filed sub nom. Jamul
Action Committee v. Sequoyah (U.S. May 11, 2021) (No. 20-1559), casts
some doubt on the applicability of Ex parte Young when tribal officials are
sued for injunctive relief but the nature of the relief indicates that the tribe
is the real party in interest. In Jamul Action Committee, the court held that,
although suits seeking prospective, injunctive relief against tribal officials
in their official capacity are permissible under Ex parte Young, such suits
are not permissible when a plaintiff seeks ‘‘to circumvent sovereign immunity
by naming some arbitrarily chosen governmental officer or an officer with
only general responsibility for governmental policy.’’ Id., 994. The Ninth
Circuit noted that the United States Supreme Court has limited the kind of
relief a plaintiff may seek under Ex parte Young to prevent the suit from
becoming one against the sovereign as the real party in interest. Id. For
example, the Supreme Court has not extended Ex parte Young to instances
in which plaintiffs sought to compel quiet title of a sovereign’s property,
compel payment of a sovereign’s legal obligation, or to compel specific
performance by the sovereign. Id., 994–95, citing Idaho v. Coeur d’Alene
Tribe of Idaho, 521 U.S. 261, 117 S. Ct. 2028, 138 L. Ed. 2d 438 (1997),
Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974),
and Ex parte Ayers, 123 U.S. 443, 8 S. Ct. 164, 31 L. Ed. 216 (1887). We
nevertheless find Ex parte Young applicable in this case because Jamul
Action Committee is distinguishable; enjoining Shotton’s future actions with
respect to payday lending operations does not operate against the tribe in
the same way as would compelling payment directly from tribal coffers or
surrendering tribal land. The department does not indicate the specific
conduct taken by Shotton personally but, rather, proceeds against him in
his official capacity to enjoin further unlawful practices. Such relief is appro-
priate under Ex parte Young and is consistent with the Second Circuit’s
decision in Gingras v. Think Finance, Inc., supra, 922 F.3d 112.
22
We note that ‘‘[a]n officer in an [individual capacity] action . . . may
be able to assert personal immunity defenses, such as, for example, absolute
prosecutorial immunity in certain circumstances.’’ (Emphasis in original.)
Lewis v. Clarke, supra, 137 S. Ct. 1292; see also Pearson v. Callahan, 555
U.S. 223, 231, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009) (‘‘qualified immunity
protects government officials from liability for civil damages insofar as their
conduct does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known’’ (internal quotation marks
omitted)). Here, the plaintiffs assert, for the first time on appeal, that Shotton
is entitled to qualified immunity. However, such a claim was not presented
to the commissioner or the trial court and, therefore, is not properly before
this court. See, e.g., Lewis v. Clarke, supra, 1292 n.2 (declining to address
official immunity defense that was raised for first time on appeal).