Acres Bonusing, Inc v. Lester Marston ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ACRES BONUSING, INC; JAMES No. 20-15959
RAYMOND ACRES,
Plaintiffs-Appellants, D.C. No.
v. 3:19-cv-05418-
WHO
LESTER JOHN MARSTON; RAPPORT
AND MARSTON, an association of
attorneys; DAVID JOSEPH RAPPORT; OPINION
COOPER DEMARSE; ASHLEY
BURRELL; KOSTAN LATHOURIS;
BOUTIN JONES, a California
corporation; MICHAEL E. CHASE;
DANIEL STOUDER; AMY O’NEILL;
AMELIA F. BURROUGHS; MEGHAN
YARNALL; ARLA RAMSEY; ANITA
HUFF; THOMAS FRANK; JANSSEN
MALLOY LLP, an association of
attorneys; DARCY VAUGHN,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
William Horsley Orrick, District Judge, Presiding
Argued and Submitted February 12, 2021
San Francisco, California
2 ACRES BONUSING, INC. V. MARSTON
Filed November 5, 2021
Before: Andrew D. Hurwitz and Daniel A. Bress, Circuit
Judges, and Gary Feinerman, * District Judge.
Opinion by Judge Bress;
Concurrence by Judge Feinerman
SUMMARY **
Tribal Sovereign Immunity
The panel affirmed in part and reversed in part the
district court’s dismissal on the ground of tribal sovereign
immunity and remanded for further proceedings in a RICO
action brought by Acres Bonusing, Inc., and James Acres.
Blue Lake Rancheria, a federally recognized Tribal
Nation, sued Acres and his company in Blue Lake Tribal
Court over a business dispute involving a casino gaming
system. Acres and Acres Bonusing prevailed in tribal court
but brought suit in federal court against the tribal court judge
and others. The defendants fell into two general groups. The
Blue Lake Defendants consisted of tribal officials,
employees, and casino executives and lawyers who assisted
the tribal court. The second group consisted of Blue Lake’s
outside law firms and lawyers. The district court concluded
*
The Honorable Gary Feinerman, United States District Judge for
the Northern District of Illinois, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
ACRES BONUSING, INC. V. MARSTON 3
that tribal sovereign immunity shielded all of the defendants
from suit.
Reversing in part, and following the framework set forth
in Lewis v. Clarke, 137 S. Ct. 1285 (2017), the panel held
that tribal sovereign immunity did not apply because Acres
sought money damages from the defendants in their
individual capacities, and the Tribe therefore was not the real
party in interest. The panel held that Lewis and similar Ninth
Circuit case law were not distinguishable on the ground that
the alleged tortious conduct occurred in the tribal court,
which is part of the Tribe’s inherently sovereign functions.
The panel concluded that California Court of Appeal cases
cited by the district court did not follow a proper analysis.
Affirming in part, the panel held that some of the
defendants were entitled to absolute personal immunity, and
the district court properly dismissed Acres’s claims against
them on that basis. As to the Blue Lake Defendants, the
panel held that the judge, his law clerks, and the tribal court
clerk were entitled to absolute judicial or quasi-judicial
immunity.
The panel remanded for further proceedings as to the
remaining defendants not entitled to absolute personal
immunity.
Concurring in part and concurring in the judgment,
Judge Feinerman wrote that he agreed with his colleagues on
the disposition of this appeal, and parted company with only
a certain aspect of the majority’s analysis. Judge Feinerman
wrote that a tribe is the real party in interest in a suit against
tribal officers or agents, requiring dismissal on sovereign
immunity grounds, if the judgment sought would (1) expend
itself on the public treasury or domain, or (2) interfere with
4 ACRES BONUSING, INC. V. MARSTON
the public administration, or (3) have the effect of restraining
the tribe from acting, or compelling it to act. Judge
Feinerman agreed that this test’s second component did not
apply because a retrospective monetary judgment against the
named defendants, based wholly on liability for their past
conduct, would not interfere with the Tribe’s administration
of its own affairs. Judge Feinerman, however, could not
endorse the majority’s suggestion that tribal sovereign
immunity did not apply because “[a]ny relief ordered by the
district court will not require Blue Lake to do or pay
anything.” Judge Feinerman wrote that this rationale paid
heed to the first and third components of the sovereign
immunity test but left no room for independent operation of
the second component.
COUNSEL
James Acres (argued), Encinitas, California, pro se Plaintiff-
Appellant.
Ronald H. Blumberg, Solana Beach, California, for Plaintiff-
Appellant Acres Bonusing, Inc.
George Forman (argued), Jay B. Shapiro, Margaret C.
Rosenfeld, Forman & Associates, San Rafael, California;
Allison Lenore Jones, Gordon & Rees, LLP, San Diego,
California; for Defendants-Appellees Lester Marston, Arla
Ramsey, Thomas Frank, Anita Huff, “Rapport and
Marston,” David Rapport, Cooper DeMarse, Darcy Vaughn,
Ashley Burrell and Kostan Lathouris.
ACRES BONUSING, INC. V. MARSTON 5
Debra Steel Sturmer (argued), Jerome N. Lerch, Sara P.
Douglass, Lerch Sturmer LLP, San Francisco, California, for
Defendants-Appellees Boutin Jones Inc., Michael Chase,
Daniel Stouder and Amy O’Neill.
Howard Smith (argued), Berman Berman Berman Schneider
& Lowary, LLP, Los Angeles, California, Appellees-
Defendants Janssen Malloy LLP, Megan Yarnall and
Amelia Burroughs.
OPINION
BRESS, Circuit Judge:
Blue Lake Rancheria, a federally recognized Tribal
Nation, sued Acres Bonusing, Inc. (“ABI”) and James Acres,
ABI’s owner, in Blue Lake Tribal Court over a business
dispute involving a casino gaming system. Acres and his
company prevailed. Unsatisfied, they then sued in federal
court nearly everyone involved in the tribal court case,
including the tribal court judge, his law clerks, the clerk of
the tribal court, tribal officials, and outside law firms and
lawyers that represented the Tribe. Acres sued everyone, it
seems, except the Tribe itself.
The principal question in this appeal is whether, as the
district court concluded, tribal sovereign immunity shielded
all defendants from suit. We hold that the district court erred
in that respect. Acres sought money damages from the
defendants in their individual capacities. Under Lewis v.
Clarke, 137 S. Ct. 1285 (2017), and our precedents, the Tribe
was not the real party in interest and tribal sovereign
immunity thus did not preclude this suit. Some of the
defendants, however, are entitled to absolute personal
6 ACRES BONUSING, INC. V. MARSTON
immunity, and the district court properly dismissed Acres’s
claims against them on that basis. There may yet be grounds
to dismiss what remains of this case, but the district court did
not reach these issues and we leave them to the district court
on remand.
For the reasons we now explain, we affirm in part,
reverse in part, and remand for further proceedings.
I
Because this appeal arises from the district court’s grant
of defendants’ motion to dismiss, we recite the facts as set
forth in the plaintiffs’ complaint. Nguyen v. Endologix, Inc.,
962 F.3d 405, 408 (9th Cir. 2020).
Blue Lake Rancheria (“Blue Lake” or the “Tribe”) is a
federally recognized Tribal Nation in Humboldt County,
California. The Blue Lake Tribal Court is an arm of the
Tribe. Blue Lake operates the Blue Lake Casino & Hotel
under a Class III gaming compact with the State of
California.
In 2010, the Casino purchased from ABI an “iSlot”
gaming system, “a novel iPad based gaming platform” used
for Las Vegas-style slot machine games. A dispute arose
over the performance of the system and, ultimately, whether
ABI needed to return a $250,000 deposit.
When ABI refused to return the funds, the Casino sued
ABI and Acres in Blue Lake Tribal Court for breach of
contract and fraud. Acres filed two cases in federal court to
halt the tribal court case, but those efforts were unsuccessful.
See, e.g., Acres v. Blue Lake Rancheria, 692 F. App’x 894
(9th Cir. 2017).
ACRES BONUSING, INC. V. MARSTON 7
The Casino’s tribal court case initially proceeded before
Chief Judge Lester Marston, a Blue Lake Tribal Court judge.
After Acres raised repeated claims of bias and conflicts of
interest, Chief Judge Marston recused. Justice James N.
Lambden, a retired justice from the California Court of
Appeal, replaced him. The next month, Boutin Jones, the
law firm that had been representing Blue Lake in tribal court,
withdrew. The firm of Janssen Malloy replaced them as
counsel. In July 2017, Justice Lambden granted summary
judgment to Acres. The next month, he dismissed the claims
against ABI.
Two years later, Acres and ABI filed this case in federal
court. They alleged eight causes of action against various
configurations of defendants and sought millions of dollars
in damages. Acres and ABI allege that Blue Lake officials
wrongfully pursued the tribal court case and were in a
conspiracy with Chief Judge Marston. Plaintiffs essentially
press a malicious prosecution theory, with allegations of
racketeering mixed in (the complaint alleges a violation of
the Racketeer Influenced and Corrupt Organizations Act
(RICO), 18 U.S.C. § 1961, et seq.). According to the
complaint, “Blue Lake and its confederates sought ruinous
judgments, within a court they controlled, before a judge
they suborned, on conjured claims of fraud and breach of
contract.”
The defendants fall into two general groups. The first
group, which we refer to as the Blue Lake Defendants,
consists of tribal officials, employees, and casino executives,
and lawyers who assist the tribal court (essentially, law
clerks):
• Lester Marston, Chief Judge of the Blue Lake Tribal
Court.
8 ACRES BONUSING, INC. V. MARSTON
• Arla Ramsey, CEO of the Casino, Blue Lake’s Tribal
Administrator, a judge on the tribal court, and vice-
chair of the Blue Lake Business Council.
• Thomas Frank, formerly an executive at the Casino
and the Tribe’s Director of Business Development.
Frank verified the casino’s discovery responses and
filed declarations in the tribal court case.
• Anita Huff, the Clerk of the Blue Lake Tribal Court
(as well as other roles not relevant here).
• David Rapport, described as the equivalent of the
general counsel to the Tribe, who was also associated
with Marston as sole practitioners. Rapport had no
role in the tribal court case, but he helped defend
against Acres’s earlier federal lawsuits.
• “Rapport and Marston” (R&M), described as “an
association of sole practitioners.” R&M did not
appear on behalf of Blue Lake in the tribal court case.
Plaintiffs allege that R&M had a longstanding
relationship with Blue Lake. Chief Judge Marston’s
declaration includes his resume on letterhead with
the “Law Offices of Rapport and Marston,” “Sole
Practitioners,” at the top.
• Ashley Rose Burrell, Cooper Monroe DeMarse, and
Darcy Catherine Vaughn were allegedly Associate
Judges of the Blue Lake Tribal Court. Along with
Kostan Lathouris, they supported Chief Judge
Marston by conducting legal research and preparing
draft orders, essentially functioning as part-time law
clerks for Chief Judge Marston while also
performing work for clients, including Blue Lake
ACRES BONUSING, INC. V. MARSTON 9
entities. All four were allegedly associated with
R&M.
The second group consists of Blue Lake’s outside law
firms and lawyers:
• Boutin Jones, Inc. and its lawyers Michael Chase,
Dan Stouder, and Amy O’Neill (collectively, Boutin
Jones) initially represented Blue Lake in the tribal
court case and defended Blue Lake in Acres’s earlier
federal court actions against the Tribe.
• Janssen Malloy LLP and its lawyers Megan Yarnall
and Amelia Burroughs (collectively, Janssen
Malloy) replaced Boutin Jones in the tribal court
case. Ramsey allegedly selected Janssen Malloy.
The district court dismissed the case. It held that tribal
sovereign immunity barred the claims against all defendants
because they “were acting within the scope of their tribal
authority, i.e., within the scope of their representation of
Blue Lake Casino.” In the district court’s view, tribal
sovereign immunity applied because “adjudicating this
dispute would require the court to interfere with the tribe’s
internal governance.” The court also concluded that judicial
and quasi-judicial immunity independently barred the claims
against most Blue Lake Defendants. The defendants
advanced other arguments for why Acres and ABI failed to
state claims for relief, which the district court did not
address.
10 ACRES BONUSING, INC. V. MARSTON
ABI and Acres appealed. 1
II
We review issues of tribal sovereign immunity and
personal immunity de novo. See Pistor v. Garcia, 791 F.3d
1104, 1110 (9th Cir. 2015); Olsen v. Idaho State Bd. of Med.,
363 F.3d 916, 922 (9th Cir. 2004).
A
“Indian tribes are domestic dependent nations that
exercise inherent sovereign authority over their members
and territories.” Okla. Tax Comm’n v. Citizen Band
Potawatomi Indian Tribe, 498 U.S. 505, 509 (1991)
(quotations omitted). A core attribute of sovereignty is
immunity from suit. Alden v. Maine, 527 U.S. 706, 716–17
(1999); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58
(1978). Indian tribes “remain separate sovereigns pre-
existing the Constitution” and, absent congressional action,
“retain their historic sovereign authority.” Michigan v. Bay
Mills Indian Cmty., 572 U.S. 782, 788 (2014) (quotations
omitted). “Suits against Indian tribes are thus barred by
sovereign immunity absent a clear waiver by the tribe or
congressional abrogation.” Okla. Tax Comm’n, 498 U.S. at
509.
This lawsuit is not against the Tribe or any tribal entity
(such as the Blue Lake Tribal Court or the Casino). It is
instead against tribal officers and employees and the outside
lawyers that represented the Tribe in the tribal court case and
ancillary litigation. The main question here is whether this
Acres filed a similar suit in California state court which was also
1
dismissed based on tribal sovereign immunity and personal immunity
defenses. An appeal is pending.
ACRES BONUSING, INC. V. MARSTON 11
damages suit against the defendants in their individual
capacities—based on actions relating to a tribal court case—
was properly dismissed on tribal sovereign immunity
grounds.
Tribal sovereign immunity is “quasi-jurisdictional,” in
the sense that we do not raise the issue on our own. Pistor,
791 F.3d at 1110–11. Tribal sovereign immunity “may be
forfeited where the sovereign fails to assert it and therefore
may be viewed as an affirmative defense.” Id. at 1111
(quotations and alterations omitted). But “[a]lthough
sovereign immunity is only quasi-jurisdictional in nature,
[Federal Rule of Civil Procedure] 12(b)(1) is still a proper
vehicle for invoking sovereign immunity from suit.” Id.
As a result, when a defendant timely and successfully
invokes tribal sovereign immunity, we lack subject matter
jurisdiction. See, e.g., Arizona v. Tohono O’odham Nation,
818 F.3d 549, 562–63 (9th Cir. 2016) (holding that when
tribal sovereign immunity applied, “the district court
correctly concluded that it lacked subject matter
jurisdiction”); Miller v. Wright, 705 F.3d 919, 927 (9th Cir.
2013) (holding that because the plaintiffs “failed to
successfully challenge the Tribe’s sovereign immunity, we
affirm the district court’s holding that it lacked subject
matter jurisdiction to adjudicate the claims asserted against
the Tribe”); Alvarado v. Table Mountain Rancheria, 509
F.3d 1008, 1015–16 (9th Cir. 2007) (“Sovereign immunity
limits a federal court’s subject matter jurisdiction over
actions brought against a sovereign. Similarly, tribal
immunity precludes subject matter jurisdiction in an action
against an Indian tribe.” (citations omitted)); see also Pistor,
791 F.3d at 1111 (“[A]s the tribal defendants invoked
sovereign immunity in an appropriate manner and at an
appropriate stage, i.e. in a Rule 12(b)(1) motion to dismiss,
12 ACRES BONUSING, INC. V. MARSTON
if they were entitled to tribal immunity from suit, the district
court would lack jurisdiction over the claims against them
and would be required to dismiss them from the litigation.”).
Because we may not issue a “judgment on the merits”
and assume our “substantive law-declaring power” before
first confirming we have jurisdiction, Sinochem Int’l Co. v.
Malaysia Int’l Shipping Corp., 549 U.S. 422, 431, 433
(2007) (quotations omitted), we address tribal sovereign
immunity at the outset.
B
Following the framework set forth in Lewis v. Clarke,
137 S. Ct. 1285 (2017), we hold that tribal sovereign
immunity does not bar this action for damages against
individual tribal employees and tribal agents in their
personal capacities.
In Lewis, William Clarke, a tribal employee, was driving
tribal casino patrons in a limousine when he rear-ended
Brian and Michelle Lewis’s vehicle. Id. at 1289. The
Lewises sued Clarke for negligence in Connecticut state
court. Id. Clarke argued the suit should be dismissed for
lack of subject matter jurisdiction under the doctrine of tribal
sovereign immunity because he was an employee of the
tribal Gaming Authority “acting within the scope of his
employment at the time of the accident.” Id. The
Connecticut Supreme Court agreed. Id. at 1290. But the
United States Supreme Court did not. Id. at 1288.
“The protection offered by tribal sovereign immunity,”
Lewis held, “is no broader than the protection offered by
state and federal sovereign immunity.” Id. at 1292. A suit
against a governmental official may be a suit against the
sovereign, but not always. In these contexts, courts “look to
ACRES BONUSING, INC. V. MARSTON 13
whether the sovereign is the real party in interest to
determine whether sovereign immunity bars the suit.” Id. at
1290. The critical question is “whether the remedy sought is
truly against the sovereign.” Id. (emphasis added); see also
Jamul Action Comm. v. Simermeyer, 974 F.3d 984, 994 (9th
Cir. 2020).
Whether the remedy sought is one against the sovereign
or the individual officer turns on “[t]he distinction between
individual- and official-capacity suits.” Lewis, 137 S. Ct. at
1291. An official-capacity claim, although nominally
against the official, “in fact is against the official’s office and
thus the sovereign itself.” Id. In such suits, “when officials
sued in their official capacities leave office, their successors
automatically assume their role in the litigation.” Id.Because the relief requested effectively runs against the
sovereign, the sovereign is the real party in interest, and
sovereign immunity may be an available defense. See id.Suits against officials in their personal capacities, Lewis
explained, are different. In those cases, the plaintiff “seek[s]
to impose individual liability upon a government officer for
actions taken under color of . . . law.” Id. (quoting Hafer v.
Melo, 502 U.S. 21, 25 (1991)). Then “the real party in
interest is the individual, not the sovereign.” Id. So,
although the defendants “may be able to assert personal
immunity defenses” (like the judicial immunity we discuss
below), sovereign immunity does not bar the suit. Id.Under Lewis, that same result obtains even if the
sovereign agreed to indemnify the official for any liability.
“[A]n indemnification provision cannot, as a matter of law,
extend sovereign immunity to individual employees who
would otherwise not fall under its protective cloak.” Id. at
1292. The immunity “analysis turn[s] on where the potential
legal liability l[ies], not from whence the money to pay the
14 ACRES BONUSING, INC. V. MARSTON
damages award ultimately” comes. Id. Thus, “[t]he critical
inquiry is who may be legally bound by the court’s adverse
judgment, not who will ultimately pick up the tab.” Id. at
1292–93 (emphasis added).
Significantly, Lewis then held that the general rules
governing sovereign immunity applied equally to tribal
sovereign immunity. Id. at 1291. This meant that tribal
sovereign immunity did not preclude the tort suit against
Clarke: “in a suit brought against a tribal employee in his
individual capacity, the employee, not the tribe, is the real
party in interest and the tribe’s sovereign immunity is not
implicated.” Id. at 1288. True, Clarke crashed into the
Lewises while performing his job as a tribal employee. But
that “an employee was acting within the scope of his
employment at the time the tort was committed is not, on its
own, sufficient to bar a suit against that employee on the
basis of tribal sovereign immunity.” Id.
The suit against Clarke was therefore not one against him
in his official capacity but was merely a suit for damages
based on Clarke’s personal, allegedly tortious conduct. Id.
at 1291. Tribal sovereign immunity could not apply because
“the judgment will not operate against the Tribe.” Id.
(emphasis added); see also id. at 1293 (explaining that, in
resolving the suit, “the Connecticut courts exercise no
jurisdiction over the Tribe or the [tribal] Gaming Authority,
and their judgments will not bind the Tribe or its
instrumentalities in any way”). The Connecticut Supreme
Court therefore erred in “extend[ing] sovereign immunity
for tribal employees beyond what common-law sovereign
immunity principles would recognize for either state or
federal employees.” Id. at 1291–92.
Precedents in our circuit forecast the Supreme Court’s
analysis in Lewis. Pistor v. Garcia, 791 F.3d 1104 (9th Cir.
ACRES BONUSING, INC. V. MARSTON 15
2015), contains our most substantial treatment of the tribal
sovereign immunity issue and is instructive here.
The plaintiffs in Pistor were “advantage gamblers” who
won big at an Apache tribal casino. Id. at 1108. The Chief
of the tribal police department, the General Manager of the
casino, and a Tribal Gaming Office Inspector took the
gamblers from the casino floor, handcuffed them, and
questioned them in interrogation rooms. Id. The tribal
defendants also took from plaintiffs “significant sums” of
cash and other personal property. Id. at 1108–09. The
gamblers sued the tribal defendants for damages both under
state tort law and under 42 U.S.C. § 1983 for violating their
Fourth and Fourteenth Amendment rights. Id. at 1109. We
held that tribal sovereign immunity did not bar the suit. Id.
at 1115.
Anticipating Lewis, Pistor emphasized that the same
principles that “shape state and federal sovereign immunity”
apply to tribal sovereign immunity. Id. at 1113 (quoting
Maxwell v. County of San Diego, 708 F.3d 1075, 1087–88
(9th Cir. 2013)). Pistor explained that the tribal sovereign
immunity analysis turns on whether the suit is against the
tribal official in his personal or official capacity, and thus
whether “any remedy will operate against the officers
individually, and not against the sovereign.” Id. (discussing
the “remedy-focused analysis” that applies for tribal
sovereign immunity (quotations omitted)).
Tribal sovereign immunity did not bar the gamblers’
claims in Pistor because “the defendants were sued in their
individual rather than their official capacities, as any
recovery will run against the individual tribal defendants,
rather than the tribe.” Id. at 1108. The gamblers had not
sued the Tribe itself and were not seeking money directly
from the tribal treasury. Id. at 1113–14. Again presaging
16 ACRES BONUSING, INC. V. MARSTON
Lewis, we further held that “[e]ven if the Tribe agrees to pay
for the tribal defendants’ liability,” “‘[t]he unilateral
decision to insure a government officer against liability does
not make the officer immune from that liability.’” Id. at
1114 (quoting Maxwell, 708 F.3d at 1090).
Our earlier decision in Maxwell v. County of San Diego,
708 F.3d 1075 (9th Cir. 2013), tracks Lewis and Pistor. In
Maxwell, we held that two tribal employees could not invoke
tribal sovereign immunity in a damages suit against them for
providing allegedly deficient medical care following a
shooting incident. Id. at 1087. Hearkening to the sovereign
immunity principles that apply to state and federal sovereign
immunity, we explained that the tribal paramedics “do not
enjoy tribal sovereign immunity because a remedy would
operate against them, not the tribe.” Id. Because the
plaintiffs had sued the tribal employees in their personal
capacities for money damages, tribal sovereign immunity
did not apply. Id. at 1089. 2
Applying Lewis, Pistor, and our earlier precedents to the
case before us, we conclude that tribal sovereign immunity
does not bar this suit. Acres and ABI seek money damages
against the defendants in their individual capacities. Any
relief ordered by the district court will not require Blue Lake
to do or pay anything. Because any “judgment will not
operate against the Tribe,” Lewis, 137 S. Ct. at 1291, Blue
Lake is not the real party in interest, and tribal sovereign
immunity does not apply.
2
On remand, the district court granted summary judgment to the
tribal paramedics based on qualified immunity, and this Court affirmed.
Maxwell v. County of San Diego, 714 F. App’x 641, 644 (9th Cir. 2017).
That result shows how tribal defendants in individual capacity suits can
still enjoy personal immunity defenses, an issue we take up below.
ACRES BONUSING, INC. V. MARSTON 17
The district court concluded otherwise on the theory that
“all of the defendants were functioning as the Tribe’s
officials or agents when the alleged acts were committed.”
The defendants similarly argue that “a Tribe’s sovereign
immunity extends not only to its arms, but also to tribal
officials and agents, including legal counsel, when they act
in their respective official capacities and within the scope of
the authority the Tribe lawfully may confer upon them.” But
as we explained in Pistor, “tribal defendants sued in their
individual capacities for money damages are not entitled to
sovereign immunity, even though they are sued for actions
taken in the course of their official duties.” 791 F.3d at 1112.
That is the same principle that the Supreme Court reaffirmed
two years later in Lewis. See 137 S. Ct. at 1288.
C
The defendants’ primary response to the foregoing is that
this case is different because the tortious conduct allegedly
occurred in tribal court, and tribal courts are part of the
Tribe’s inherently sovereign functions. The district court
had a similar perspective. It viewed Lewis, Pistor, and
Maxwell as distinguishable because the wrongs alleged in
those cases were “garden variety torts with no relationship
to tribal governance and administration.” It therefore
thought that “the real party in interest here is the tribe
because adjudicating this dispute would require the court to
interfere with the tribe’s internal governance.” This
reasoning, while understandable, does not comport with
Lewis, Pistor, and our other prior cases.
The district court and defendants relied most heavily on
the following passage from Maxwell:
In any suit against tribal officers, we must be
sensitive to whether “the judgment sought
18 ACRES BONUSING, INC. V. MARSTON
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.”
708 F.3d at 1088 (quoting Shermoen v. United States, 982
F.2d 1312, 1320 (9th Cir. 1992)) (alterations omitted); see
also Pistor, 791 F.3d at 1113 (same). This language was
itself a formulation of general sovereign immunity principles
from earlier Supreme Court cases, see, e.g., Pennhurst State
Sch. & Hosp. v. Halderman, 465 U.S. 89, 101 n.11 (1984);
Dugan v. Rank, 372 U.S. 609, 620 (1963), although not a
particular formulation that the Supreme Court has invoked
recently.
Defendants point specifically to the reference to
“interfer[ing] with the public administration” of the tribe.
Reading this language broadly, defendants assert that a case
against tribal officers and employees about a past tribal court
case has a relationship to tribal governance and will
therefore interfere with it.
Although the quoted excerpt caused some confusion
here, properly considered, this passage does not make the
tribal sovereign immunity analysis turn on a freestanding
assessment of whether the suit related to tribal governance
in some way. Nor did it create special rules for cases
involving “garden variety” torts. Instead, this passage is
fully consistent with the “remedy-focused analysis,”
Maxwell, 708 F.3d at 1088, that the Supreme Court validated
in Lewis.
That passage framed the inquiry in terms of whether “the
judgment sought would . . . interfere with the public
administration, or if the effect of the judgment would be to
ACRES BONUSING, INC. V. MARSTON 19
restrain the sovereign from acting, or to compel it to act.”
Maxwell, 708 F.3d at 1088 (quotations and alterations
omitted) (emphasis added); see also Lewis, 137 S. Ct. at
1291 (explaining that tribal sovereign immunity does not
apply when “the judgment will not operate against the Tribe”
(emphasis added)).
The tribal sovereign immunity inquiry thus does not
revolve around whether issues pertaining to tribal
governance would be touched on in the litigation. The
question is whether “any remedy will operate . . . against the
sovereign.” Pistor, 791 F.3d at 1113 (emphasis added). Or
as the Supreme Court put it, “[t]he critical inquiry is who
may be legally bound by the court’s adverse judgment.”
Lewis, 137 S. Ct. at 1292–93. References to “interfering
with the public administration” of the tribe can thus only be
understood in connection with the fundamental principle that
the “remedy sought” governs the tribal sovereign immunity
analysis. See id. at 1290; Maxwell, 708 F.3d at 1088. As we
recognized in Pistor, where a plaintiff sought “‘money
damages not from the tribal treasury but from the tribal
defendants personally,’” “[g]iven the limited relief sought,
the tribal defendants have not shown that ‘the judgment
would . . . interfere with tribal administration.’” 791 F.3d at
1113–14 (quoting Maxwell, 708 F.3d at 1088) (emphasis
added; alterations omitted). 3
3
Our fine colleague in concurrence suggests we have
“diminish[ed]” or even “excise[d]” the “interference” prong of the
sovereign immunity test. That is not correct. We have merely applied
that prong according to its terms, which asks whether “the judgment
sought would . . . interfere with the public administration” of the tribe.
Maxwell, 708 F.3d at 1088 (quotations and alterations omitted)
(emphasis added). That is consistent with our decision in Palomar
Pomerado Health System v. Belshe, 180 F.3d 1104 (9th Cir. 1999), on
20 ACRES BONUSING, INC. V. MARSTON
Confirming this point, neither Lewis nor our prior cases
evaluated the degree to which the suits could involve
consideration of issues that relate to tribal governance or
administration. Such an analysis would likely prove difficult
because any suit against a tribal employee for conduct in the
course of her official duties almost inevitably has some
valence to tribal governance. And if that were the test, we
would seemingly end up applying tribal sovereign immunity
whenever a tribal employee was acting within the scope of
her employment—which is precisely what the Supreme
Court in Lewis said not to do. See 137 S. Ct. at 1288.
Pistor provides a good example of why the sovereign
immunity analysis does not turn on any perceived distinction
between “garden variety torts” and ones with a “relationship
to tribal governance.” Pistor was a suit against a tribal police
chief and other tribal officials relating to the detention,
seizure, and interrogation of persons that tribal officials
claimed were engaged in unlawful gambling practices. See
791 F.3d at 1108–09. The lawful detention of persons and
seizure of property is of course a core function of the
sovereign. Cf. United States v. Lara, 541 U.S. 193, 199
(2004) (explaining that “the source of [the] power to punish”
member and nonmember Indian offenders is a part of
“inherent tribal sovereignty” (quoting United States v.
Wheeler, 435 U.S. 313, 322 (1978)). If the suit in Pistor had
which the concurrence relies. In Palomar, the plaintiff, a state political
subdivision, sued state employees seeking to enjoin their enforcement of
state regulations. Id. at 1105–07. We held that the action was really one
against the state itself because “the purpose of the injunction and other
orders [plaintiff] seeks is to ‘restrain the Government,’” such that “[t]he
result [plaintiff] seeks would ‘interfere with the public administration.’”
Id. at 1108 (emphasis added). Here, the judgment sought would not have
that effect because “any recovery will run against the individual tribal
defendants, rather than the tribe.” Pistor, 791 F.3d at 1108.
ACRES BONUSING, INC. V. MARSTON 21
gone forward, litigation over the gamblers’ claims could
well involve consideration of the tribe’s law enforcement
practices, which might in turn influence how the tribe
approached these issues going forward.
But if those were the benchmarks for tribal sovereign
immunity, Pistor should have come out the other way. Nor
do we think Pistor can be fairly described as a “garden
variety” tort case. Just as there was no “search and seizure”
exception to tribal sovereign immunity’s “remedy-focused
analysis,” there is likewise no exception for malicious
prosecution claims, even though this case (if otherwise
allowed to proceed) could touch on tribal court practices, as
the district court surmised. Instead, because plaintiffs’ suit
for damages against tribal employees and agents “will not
require action by the sovereign or disturb the sovereign’s
property,” and any “judgment will not operate against the
Tribe,” tribal sovereign immunity does not apply. Lewis,
137 S. Ct. at 1291.
Our prior decisions in Cook v. AVI Casino Enterprises,
Inc., 548 F.3d 718 (9th Cir. 2008), and Hardin v. White
Mountain Apache Tribe, 779 F.2d 476 (9th Cir. 1985), do
not compel a different conclusion. In Cook, the plaintiffs
asserted a respondeat superior theory of liability that would
have made the tribe liable for the tribal official’s actions. See
548 F.3d at 727 (“Here, Cook has sued Dodd and Purbaugh
in name but seeks recovery from the Tribe; his complaint
alleges that ACE [a tribal corporation] is vicariously liable
for all actions of Dodd and Purbaugh.”). We thus held the
suit barred by sovereign immunity because the tribe was the
real party in interest. Id. As we explained in Maxwell, the
plaintiff in Cook “had sued the individual defendants in their
official capacities in order to establish vicarious liability for
the tribe,” which meant that Cook’s invocation of tribal
22 ACRES BONUSING, INC. V. MARSTON
sovereign immunity was “consistent with the remedy-
focused analysis” that properly governs the sovereign
immunity inquiry. 708 F.3d at 1088; see also Pistor, 791
F.3d at 1113 (analogous discussion of Cook).
In Hardin, the plaintiff, who had resided on reservation
land leased from the tribe, was convicted of concealing
property stolen from a federal observatory on the
reservation. 779 F.2d at 478–79. After the tribal council
voted to exclude him from the reservation, he sued the tribe,
tribal entities, and tribal officials for injunctive relief and
damages, challenging his ejectment. Id. at 478. We held
that the tribe was protected by sovereign immunity and that
the immunity “extends to individual tribal officials acting in
their representative capacity and within the scope of their
authority.” Id. at 479.
As we explained in Maxwell, although “Hardin did not
mention the ‘remedy sought’ principle when it granted
sovereign immunity,” “it did not need to do so” because
“Hardin was in reality an official capacity suit.” 708 F.3d at
1089. The plaintiff in Hardin “did not (1) identify which
officials were sued in their individual capacities or (2) the
exact nature of the claims against them.” Id. The lack of
any such allegations and the nature of the relief sought
indicated that the tribal officials were sued in their official
capacities as part of the plaintiff’s effort to challenge his
removal from tribal lands. See id.
In short, neither Cook nor Hardin stand for the
proposition that tribal sovereign immunity turns on a
ACRES BONUSING, INC. V. MARSTON 23
freestanding inquiry into whether a suit involves a “garden
variety” tort or generally relates to tribal governance. 4
D
The defendants also heavily rely on two cases from the
California Court of Appeal cited by the district court: Brown
v. Garcia, 225 Cal. Rptr. 3d 910 (Ct. App. 2017), and Great
Western Casinos Inc. v. Morongo Band of Mission Indians,
88 Cal. Rptr. 2d 828 (Ct. App. 1999). These cases do not
change the result.
In Great Western, the plaintiff sued the tribe, the tribal
council, individual tribal members, counsel for the tribe, and
a law firm that acted as the tribe’s outside counsel, relating
to the tribe’s cancellation of a casino management
agreement. 88 Cal. Rptr. 2d 828 at 831–32. After
concluding that the tribe had not waived tribal sovereign
immunity, Great Western held that the individual defendants
were immune because the suit was “in substance against the
tribe itself.” Id. at 838.
In Great Western, the complaint “allege[d] no individual
actions by any of the tribal officials on the tribal council
named as defendants,” and instead attacked the tribal
council’s decision to terminate the casino management
agreement. Id. at 838–39; see also id. at 839 (“[I]t was the
collective action by the tribal council after the votes which
caused GWC’s alleged injuries. . . . In other words, the
4
Defendants’ reliance on Davis v. Littell, 398 F.2d 83 (9th Cir.
1968), is also inapposite. Davis involved the issue of whether the tribe
had “bestowed” on its officers the personal defense of absolute
immunity. See id. at 84–85. Whether tribal officials enjoy personal
immunities from suit is a different question from whether tribal
sovereign immunity applies. See Lewis, 137 S. Ct. at 1291.
24 ACRES BONUSING, INC. V. MARSTON
substance of the complaint’s allegations concerning the
individual Indian defendants are again in reality against the
tribe’s allegedly wrongful actions.”). Properly considered,
this aspect of Great Western simply concluded that based on
the nature of the allegations, the suit was one brought against
these tribal officials in their official capacities for actions
taken by the tribe itself, such that tribal sovereign immunity
would apply.
Great Western is less clear about its basis for granting
immunity to the non-Indian counsel and outside law firm
advising the tribe. Although Great Western stated that
counsel “in allegedly advising the tribe to wrongfully
terminate the management contract are similarly covered by
the tribe’s sovereign immunity,” the court had earlier
explained that the tribe “enjoys sufficient independent status
and control over its own laws and internal relationships to be
able to accord absolute privilege to its officers within the
areas of tribal control.” Id. at 840 (quoting Davis, 398 F.2d
at 84). To the extent Great Western held that these lawyers
were entitled to a personal immunity defense (essentially as
quasi-executive officers), that conclusion would not on its
own contravene Lewis. But to the extent Great Western
extended tribal sovereign immunity to the individual
defendants merely because they were sued for conduct
within the scope of their employment for the tribe, that
conclusion would be at odds with Lewis and not one we
could follow. See 137 S. Ct. at 1288.
The reasoning in the California Court of Appeal’s
decision in Brown, 225 Cal. Rptr. 3d at 915–17, is likewise
inconsistent with Lewis and our precedents. There, the
plaintiffs sued other members of the tribe for damages based
on allegedly defamatory statements they made in a tribal
council order. Id. at 911. The California Court of Appeal
ACRES BONUSING, INC. V. MARSTON 25
declined to follow the “remedy-focused general rule applied
in Maxwell, Pistor and Lewis” because those cases, in its
view, involved “garden variety torts with no relationship to
tribal governance and administration.” Id. at 916. For the
reasons we set forth above, that is not the proper analysis for
tribal sovereign immunity.
III
Although tribal sovereign immunity does not bar this
action, defendants may still avail themselves of personal
immunity defenses. See Lewis, 137 S. Ct. at 1291(explaining that although “sovereign immunity does not
erect a barrier against suits to impose individual and personal
liability,” “[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” (quotations omitted)); Pistor, 791 F.3d at
1112.
The district court held in the alternative that the Blue
Lake Defendants (except perhaps Ramsey and Rapport)
were entitled to absolute judicial or quasi-judicial immunity.
That determination was correct as to Chief Judge Marston,
his law clerks, and the tribal court clerk.
Tribal officials, like federal and state officials, can
invoke personal immunity defenses. In Lewis, the Supreme
Court described the availability of personal immunity
defenses in the context of discussing generally applicable
principles of individual and official capacity suits, and then
explained that “[t]here is no reason to depart from these
general rules in the context of tribal sovereign immunity.”
137 S. Ct. at 1291. Those “general rules” thus included
possible common law personal immunity defenses. See also
id. at 1292 n.2 (noting that “personal immunity defenses
26 ACRES BONUSING, INC. V. MARSTON
[are] distinct from sovereign immunity” but declining to
address Clarke’s request for personal immunity as not before
it).
Consistent with Lewis, various cases have addressed
personal immunity defenses in the context of suits against
tribal officials. See, e.g., Penn v. United States, 335 F.3d
786, 789 (8th Cir. 2003) (judicial immunity); Runs After v.
United States, 766 F.2d 347, 354–55 (8th Cir. 1985)
(legislative immunity); Oertwich v. Traditional Vill. of
Togiak, 413 F. Supp. 3d 963, 972 (D. Alaska 2019) (judicial
immunity); Grand Canyon Skywalk Dev., LLC v. Hualapai
Indian Tribe, 966 F. Supp. 2d 876, 885–86 (D. Ariz. 2013)
(legislative immunity); Sandman v. Dakota, 816 F. Supp.
448, 452 (W.D. Mich. 1992) (judicial immunity); Brunette
v. Dann, 417 F. Supp. 1382, 1386 (D. Idaho 1976) (judicial
immunity); cf. Kennerly v. United States, 721 F.2d 1252,
1259–60 (9th Cir. 1983) (assuming, without deciding, that a
Bivens or § 1983 action could be brought against tribal
officials acting in conjunction with state or federal officials,
and that “individual tribal officials would be entitled to claim
the same qualified immunity accorded state and federal
officials in section 1983 and Bivens actions”).
Turning to the Blue Lake Defendants, we start with Chief
Judge Marston. The district court correctly concluded that
Chief Judge Marston enjoys absolute judicial immunity. “A
long line of [Supreme Court] precedents acknowledges that,
generally, a judge is immune from a suit for money
damages.” Mireles v. Waco, 502 U.S. 9, 9 (1991) (per
curiam). That immunity extends to tribal court judges: “[a]
tribal court judge is entitled to the same absolute judicial
immunity that shields state and federal court judges.” Penn,
335 F.3d at 789; see also Charles A. Wright, Arthur R.
Miller & Richard D. Freer, 13D Fed. Prac. & Proc. Juris.
ACRES BONUSING, INC. V. MARSTON 27
§ 3579 (3d ed., Apr. 2021 Update); William C. Canby., Jr.,
American Indian Law in a Nutshell 77 (7th ed. 2020);
Sandman, 816 F. Supp. at 452; Brunette, 417 F. Supp. at
1386.
Courts have articulated only two circumstances in which
judicial immunity does not apply. “First, a judge is not
immune from liability for nonjudicial actions, i.e., actions
not taken in the judge’s judicial capacity. Second, a judge is
not immune for actions, though judicial in nature, taken in
the complete absence of all jurisdiction.” Mireles, 502 U.S.
at 11–12 (citations omitted). “[W]hether an act by a judge is
a ‘judicial’ one relate[s] to the nature of the act itself, i.e.,
whether it is a function normally performed by a judge, and
to the expectations of the parties, i.e., whether they dealt with
the judge in his judicial capacity.” Id. at 12 (quoting Stump
v. Sparkman, 435 U.S. 349, 362 (1978)). Because judicial
immunity is an immunity from suit and not just from
damages, it cannot be “overcome by allegations of bad faith
or malice.” Id. at 11.
We easily conclude that Chief Judge Marston is entitled
to absolute judicial immunity. Acres and ABI challenge
Chief Judge Marston’s initial decision not to recuse, his
rulings on procedural motions, his discussions about the case
with attorneys functioning as his law clerks, and his eventual
decision to recuse. These are all functions “normally
performed by a judge” and for which the defendants “dealt
with the judge in his judicial capacity.” Id. at 12. And to the
extent plaintiffs allege that Chief Judge Marston was
conspiring against them, “a conspiracy between judge and [a
party] to predetermine the outcome of a judicial proceeding,
while clearly improper, nevertheless does not pierce the
immunity extended to judges.” Ashelman v. Pope, 793 F.2d
1072, 1078 (9th Cir. 1986) (en banc).
28 ACRES BONUSING, INC. V. MARSTON
Defendant Anita Huff is also entitled to absolute
immunity. Plaintiffs allege that Huff was the Clerk of the
Blue Lake Tribal Court. Although plaintiffs allege that Huff
also performed other roles for the tribe, they challenge only
actions she took in her role as Clerk. “Court clerks have
absolute quasi-judicial immunity from damages for civil
rights violations when they perform tasks that are an integral
part of the judicial process.” Mullis v. U.S. Bankr. Court for
Dist. of Nev., 828 F.2d 1385, 1390 (9th Cir. 1987); see also
Moore v. Brewster, 96 F.3d 1240, 1244 (9th Cir. 1996);
Sindram v. Suda, 986 F.2d 1459, 1461 (D.C. Cir. 1993).
According to the plaintiffs, Huff issued an improper
summons in the tribal court case and rejected a filing from
Acres for not conforming with a tribal court rule. These
actions were an integral part of the judicial process, see
Mullis, 838 F.2d at 1390, and so Huff is entitled to absolute
immunity.
The attorneys functioning as Chief Judge Marston’s law
clerks—defendants Burrell, DeMarse, Vaughn, and
Lathouris—are also entitled to absolute immunity. We have
explained that “[t]he concern for the integrity of the judicial
process that underlies the absolute immunity of judges is
reflected in the extension of absolute immunity to certain
others who perform functions closely associated with the
judicial process.” Moore, 96 F.3d at 1244 (quotations
omitted). That includes law clerks, because “a law clerk is
probably the one participant in the judicial process whose
duties and responsibilities are most intimately connected
with the judge’s own exercise of the judicial function.” Id.(quotations omitted).
The plaintiffs allege that Burrell, DeMarse, Vaughn, and
Lathouris functioned as law clerks, drafting orders and
otherwise assisting Judge Marston. The complaint
ACRES BONUSING, INC. V. MARSTON 29
alternatively refers to three of these attorneys as Associate
Judges of the Tribal Court. Although the complaint also
asserts that these defendants performed other outside work,
that outside work does not form the basis of any of plaintiffs’
claims. Burrell, DeMarse, Vaughn, and Lathouris were thus
properly dismissed based on absolute immunity.
The complaint does not, however, allege that the
remaining Blue Lake Defendants—Ramsey, Frank, Rapport,
and R&M—performed a judicial or quasi-judicial role. At
oral argument, the Blue Lake Defendants conceded that
Ramsey, Frank, Rapport, and R&M would not be entitled to
judicial or quasi-judicial immunity. The outside counsel
defendants (Boutin Jones, Janssen Malloy, and the
individual attorneys associated with those firms) also do not
claim they are entitled to judicial immunity.
* * *
Having concluded that tribal sovereign immunity does
not bar this suit and that on this record only certain
defendants enjoy absolute personal immunity, we remand
this case to the district court. The defendants who remain in
the case are Ramsey, Frank, Rapport, “Rapport and
Marston,” Boutin Jones, Chase, Stouder, O’Neill, Janssen
Malloy, Yarnall, and Burroughs.
Various combinations of these defendants have made
other arguments for why this case or certain claims should
be dismissed. The district court has yet to rule on these
issues. On remand, the district court can consider these and
other arguments that the remaining defendants may advance,
30 ACRES BONUSING, INC. V. MARSTON
including whether defendants are otherwise immune from
suit on grounds the district court has yet to address.
All parties shall bear their own costs on appeal.
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.
FEINERMAN, District Judge, concurring in part and
concurring in the judgment in part:
I agree with my colleagues on the disposition of this
appeal, and part company with only a certain aspect of the
majority opinion’s analysis.
A tribe is the real party in interest in a suit against tribal
officers or agents, requiring dismissal on sovereign
immunity grounds, if “the judgment sought would
[1] expend itself on the public treasury or domain, or
[2] interfere with the public administration, or [3] if the
effect of the judgment would be to restrain the [tribe] from
acting, or to compel it to act.” Pistor v. Garcia, 791 F.3d
1104, 1113 (9th Cir. 2015) (quoting Maxwell v. Cnty. of San
Diego, 708 F.3d 1075, 1088 (9th Cir. 2013) (quoting
Shermoen v. United States, 982 F.2d 1312, 1320 (9th Cir.
1992))). This disjunctive, three-part test is one that we and
the Supreme Court have consistently articulated and applied
when a party invokes sovereign immunity, be it federal,
state, or tribal. See, e.g., Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 101 n.11 (1984) (“The general rule
is that a suit is against the sovereign if 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 Government from acting,
ACRES BONUSING, INC. V. MARSTON 31
or to compel it to act.”) (emphasis added) (internal quotation
marks omitted) (quoting Dugan v. Rank, 372 U.S. 609, 620
(1963)); Brown v. Gen. Servs. Admin., 425 U.S. 820, 826-27
(1976) (“A suit against an officer of the United States is one
against the United States itself . . . if 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 Government from acting,
or to compel it to act.”) (emphasis added) (internal quotation
marks and citations omitted); Dugan, 372 U.S. at 620 (“The
general rule is that a suit is against the sovereign if 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
Government from acting, or to compel it to act.”) (emphasis
added) (internal quotation marks and citations omitted);
Palomar Pomerado Health Sys. v. Belshe, 180 F.3d 1104,
1108 (9th Cir. 1999) (same) (quoting Dugan, 372 U.S. at
620); Shermoen, 982 F.2d at 1320 (same) (quoting Dugan,
372 U.S. at 620).
In holding that tribal sovereign immunity bars this suit,
the district court relied on the test’s second component—
which asks whether “the judgment sought would . . .
interfere with the public administration”—reasoning that
“adjudicating this dispute would require the court to interfere
with the tribe’s internal governance.” I agree with my
colleagues that, under the circumstances of this case, a
retrospective monetary judgment against the named
defendants, based wholly on liability for their past conduct,
would not interfere with the Tribe’s administration of its
own affairs.
That said, I cannot endorse the majority opinion’s
suggestion that “tribal sovereign immunity does not apply”
32 ACRES BONUSING, INC. V. MARSTON
because “[a]ny relief ordered by the district court will not
require Blue Lake to do or pay anything.” Slip op. at 16; see
also slip op. at 21 (“[B]ecause plaintiffs’ suit for damages
against tribal employees and agents ‘will not require action
by the sovereign or disturb the sovereign’s property,’ and
any ‘judgment will not operate against the Tribe,’ tribal
sovereign immunity does not apply.”). That rationale pays
heed to the first (“the judgment sought would expend itself
on the public treasury or domain”) and third (“the effect of
the judgment would be to restrain the [tribe] from acting, or
to compel it to act”) components of the sovereign immunity
test, but it leaves no room for independent operation of the
second (“where the judgment sought would . . . interfere
with the public administration”). Diminishing or excising
the second component in that way cannot be reconciled with
the Supreme Court’s (and our) articulation of the test in a
disjunctive manner, with three separate and independent
grounds for sovereign immunity. Nor can it be reconciled
with precedents resting sovereign immunity solely on the
ground that the suit could interfere with a sovereign’s public
administration. See Palomar Pomerado, 180 F.3d at 1108
(holding that sovereign immunity barred the suit because
“[t]he result [the plaintiff] seeks would ‘interfere with the
public administration’”). And if the second component of
the test is diminished or excised for purposes of tribal
sovereign immunity, it is as well in the federal and state
sovereign immunity context. See Santa Clara Pueblo v.
Martinez, 436 U.S. 49, 58 (1978) (“Indian tribes have long
been recognized as possessing the common-law immunity
from suit traditionally enjoyed by sovereign powers.”);
Maxwell, 708 F.3d at 1087-88 (“Tribal sovereign immunity
ACRES BONUSING, INC. V. MARSTON 33
derives from the same common law immunity principles that
shape state and federal sovereign immunity.”). 1
Although it is not necessary in this case to mark the
precise boundaries of the “interfere with the public
administration” component of the sovereign immunity test,
nor is there any need to effectively suggest that the
component is a dead letter. With these observations, I join
the judgment and all but the above-referenced aspect of the
majority opinion.
1
The majority opinion’s assertion that it neither diminishes nor
excises the second component of the sovereign immunity test is not
persuasive. The majority states that it has applied the second component
“according to its terms, which asks whether ‘the judgment sought would
. . . interfere with the public administration’ of the tribe.” Slip op. at 19
n.3. But, as noted, the majority elsewhere states that sovereign immunity
does not apply because the judgment sought would not require Blue Lake
“to do or pay anything.” Slip op. at 16. “[P]ay anything” corresponds
with the first component of the test (“expend itself on the public treasury
or domain”), while “do . . . anything” corresponds with the third
(“restrain the [tribe] from acting, or to compel it to act”). The sovereign
immunity test’s inclusion of the second component as a separate ground
for immunity must mean that there are at least some circumstances in
which immunity applies where the judgment sought would “interfere
with the public administration” in a manner not requiring the tribe (or
federal government or State) to do or pay anything.