Commercial Litigation and Arbitration

Sovereign Immunity — Subpoena Is a “Suit” Precluded by Tribal Sovereign Immunity

Bonnet v. Harvest (US) Holdings, Inc.,  2014 U.S. App. LEXIS 1686 (10th Cir. Jan. 28, 2014):

The issue before us is whether a subpoena duces tecum served on a non-party Tribe and seeking documents relevant to a civil suit in federal court is itself a "suit" against the Tribe triggering tribal sovereign immunity. Exercising jurisdiction under 28 U.S.C. § 1291, pursuant to the collateral order doctrine, we hold the answer is yes. We therefore reverse the district court's denial of the Tribe's motion to quash based on tribal immunity. ***

We review de novo the legal question whether the Tribe, as a non-party, is entitled to tribal immunity from a subpoena duces tecum. See Ute Distrib. Corp. v. Ute Indian Tribe, 149 F.3d 1260, 1263 (10th Cir. 1998). The doctrine of tribal sovereign immunity dictates a federally recognized tribe "is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity." Kiowa Tribe v. Mfg. Techs., 523 U.S. 751, 754 (1998). The parties do not dispute the Tribe's entitlement to tribal immunity under this rule or that the Tribe's Energy and Minerals Department is indeed and arm of the Tribe. Nor do Plaintiffs argue congressional authorization or tribal waiver. Rather, the parties here dispute only whether a subpoena served on a non-party tribe in a civil case in federal court is a "suit" triggering tribal sovereign immunity in the absence of congressional authorization or tribal waiver. This is an issue of first impression in this Circuit.


Early American jurisprudence defined a "suit" as "the prosecution of some demand in a Court of justice." Cohens v. Virginia, 19 U.S. 264, 407 (1821). In Cohens, the Court described a suit as the instrument whereby an injured party is "put in possession of that right whereof [he] is deprived."  Id. Further, the Court explained, one brings a suit against a state "for the purpose of establishing some claim against it by the judgment of a Court." Id. at 408. A subpoena, on the other hand, merely compels the production of evidence, which the court needs in order to fully and fairly adjudicate this underlying claim or demand. See Fed. R. Civ. P. 45. The Supreme Court has avoided deciding whether a subpoena is a "suit" against a sovereign by limiting this form of discovery  on narrower grounds. See, e.g., U.S. ex rel. Touhy v. Ragen, 340 U.S. 462, 467-68 (1951) (upholding a regulation prohibiting federal agency employees from releasing documents without consent of the agency head). Our precedent, however, leads to the logical conclusion that a subpoena duces tecum served directly on a tribe is a "suit" triggering tribal sovereign immunity.

In United States v. Murdock Mach. & Eng'g Co. of Utah, 81 F.3d 922 (10th Cir. 1996), we concluded "the term 'suit' embodies the broad principle that the government is not subject to 'legal proceedings, at law or in equity' or 'judicial process' without its consent." Id. at 931 (emphasis added) (quoting Belknap v. Schild, 161 U.S. 10, 16 (1896)). We reasoned that "[i]nterpreting the term 'suit' broadly comports with the core notion of sovereign immunity that in the absence of governmental consent, the courts lack jurisdiction to 'restrain the government from acting, or to compel it to act.'" Id. (quoting Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 704 (1949)). We therefore held sovereign immunity rendered the United States immune from the automatic stays provided by Rules 401 and 601 of the Bankruptcy Act of 1898. Id. at 932. Furthermore, in Becker v. Kroll, 494 F.3d 904 (10th Cir. 2007), we acknowledged that "'[t]he issuance of a subpoena initiates an adversary process that can command the production of documents and things only after judicial process is afforded.'" Id. at 922 (emphasis added) (quoting In re Subpoena Duces Tecum, 228 F.3d 341, 348 (4th Cir. 2000)).

According to binding precedent then: tribes are immune from "suit" under Kiowa, "suit" includes "judicial process" under Murdock, and a subpoena duces tecum is a form of judicial process under Becker. The logical conclusion, therefore, is that a subpoena duces tecum served directly on the Tribe, regardless of whether it is a party to the underlying legal action, is a "suit" against the Tribe, triggering tribal sovereign immunity.

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