Acres Bonusing, Inc v. Lester Marston

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.