Cash Advance and Preferred Cash Loans, Petitioners/cross-Respondents v. State of Colorado, Ex. rel. John W. Suthers…

Summary

The court held that tribal sovereign immunity applies to state judicial enforcement of investigative subpoenas and that immunity may extend to entities acting as arms of tribes. It adopted a three-factor arm-of-the-tribe inquiry, held that tribal immunity is jurisdictional and properly raised under C.R.C.P. 12(b)(1), placed the jurisdictional burden on the state by a preponderance of the evidence, and required any waiver to be explicit and unequivocal. The court affirmed the court of appeals and remanded for further proceedings concerning the entities' tribal status and the scope of permissible discovery. Justice Eid, concurring in part, would have limited the remand to the existing record, while Justice Coats, concurring in part and dissenting in part, rejected the majority's arm-of-the-tribe framework and burden allocation.