In the Matter of the Welfare of: J.A.D., Child (A24-0317), State of Minnesota v. Patrick Junior Jordan, ...

STATE OF MINNESOTA
IN COURT OF APPEALS
A24-0317
A24-0319

In the Matter of the Welfare of: J.A.D., Child (A24-0317),

State of Minnesota,
Respondent,

vs.

Patrick Junior Jordan,
Respondent,

Lower Sioux Indian Community,
Appellant (A24-0319).

Filed September 30, 2024
Reversed and remanded
Schmidt, Judge

Redwood County District Court
File Nos. 64-JV-22-77, 64-CR-23-208

Christa Groshek, Aaron Roy, Groshek Law PA, Minneapolis, Minnesota (for respondent
J.A.D.)

Jenna M. Peterson, Redwood County Attorney, Redwood Falls, Minnesota; and

Travis J. Smith, Special Assistant County Attorney, Slayton, Minnesota (for respondent
State of Minnesota)

Joel A. Franklin, Woodbury, Minnesota (for respondent Patrick Junior Jordan)

Vanya S. Hogen, Samantha Hermsen, Lorenzo E. Gudino, Ellen Currier, Hogen Adams
PLLC, St. Paul, Minnesota (for appellant)

Greg S. Paulson, Brodeen & Paulson, PLLP, New Brighton, Minnesota (for amici curiae
Shakopee Mdewakanton Sioux Community, Fond du Lac Band of Lake Superior
Chippewa, Grand Portage Band of Lake Superior Chippewa, Leech Lake Band of Ojibwe,
Mille Lacs Band of Ojibwe, Prairie Island Indian Community, Upper Sioux Community,
and White Earth Band of Ojibwe)
Blue Bird Thomas, Shakopee Mdewakanton Sioux Community, Prior Lake, Minnesota (for
amicus curiae Shakopee Mdewakanton Sioux Community)

Sean Copeland, Fond du Lac Legal Affairs Office, Cloquet, Minnesota (for amicus curiae
Fond du Lac Band of Lake Superior Chippewa)

Joseph F. Halloran, Jacobson, Magnuson, Anderson & Halloran, P.C., St. Paul, Minnesota
(for amicus curiae Grand Portage Band of Lake Superior Chippewa)

Christopher Murray, Leech Lake Band of Ojibwe, Cass Lake, Minnesota (for amicus curiae
Leech Lake Band of Ojibwe)

Angel Daher, Department of Justice, Mille Lacs Band of Ojibwe, Onamia, Minnesota (for
amicus curiae Mille Lacs Band of Ojibwe)

Jessie Stomski Seim, Prairie Island Indian Community, Welch, Minnesota (for amicus
curiae Prairie Island Indian Community)

Leif E. Rasmussen, Rasmussen Law, Edina, Minnesota (for amicus curiae Upper Sioux
Community)

Andrea Kingbird, White Earth Band of Ojibwe, White Earth, Minnesota (for amicus curiae
White Earth Band of Ojibwe)

Robert Small, Executive Director, Minnesota County Attorney’s Association, Todd P.
Zettler, Assistant County Attorney, Shakopee, Minnesota (for amicus curiae Minnesota
County Attorney’s Association)

Considered and decided by Ross, Presiding Judge; Ede, Judge; and Schmidt, Judge.

SYLLABUS

A subpoena constitutes a “suit” for purposes of the analysis of whether a Tribe is

entitled to sovereign immunity.

2
 OPINION

SCHMIDT, Judge

In these consolidated appeals, appellant challenges two orders denying motions to

quash subpoenas served upon tribal social workers compelling their testimony at a

juvenile-delinquency proceeding (A24-0317) and a criminal trial (A24-0319). Because the

district court erred in determining that the tribal social workers were not entitled to

sovereign immunity, we reverse and remand with instructions for the district court to enter

orders quashing the subpoenas.

FACTS

The Lower Sioux Indian Community.

Appellant Lower Sioux Indian Community (Lower Sioux) is a federally recognized

Indian Tribe. See Indian Entities Recognized by and Eligible to Receive Services from the

United States Bureau of Indian Affairs, 88 Fed. Reg. 54654, 54656 (Aug. 11, 2023). Lower

Sioux Family Services—overseen by a subdivision of the Tribe—employs social workers

who provide services for all aspects of child-protection cases.

The subpoena issued in the extended juvenile jurisdiction matter (A24-0317).

Respondent State of Minnesota charged J.A.D. with multiple offenses. The matter

was designated for extended juvenile jurisdiction and the case set for trial. The state

subpoenaed several social workers from Lower Sioux Family Services to testify at trial.

Lower Sioux’s counsel contacted the Assistant Redwood County Attorney to explain the

Tribe’s objection to the subpoenas. Without addressing the objection, the prosecutor sent

an e-mail to Lower Sioux’s counsel noting that the state had reissued the subpoenas.

3
 Lower Sioux filed a motion to quash the subpoenas, arguing that the social workers

are tribal officials who share the Tribe’s unwaived sovereign immunity from suit for acts

performed within their official capacities. Each social worker provided an affidavit,

attesting that they were employed by Lower Sioux Family Services and that “[t]he only

knowledge [they] would have regarding the facts underlying the State of Minnesota’s

criminal complaint against [J.A.D.] would have been gained through [their] official

capacity.” The state opposed the motion and the district court held a hearing.

The subpoena issued in the adult criminal matter (A24-0319).

After the state charged Patrick Junior Jordan with multiple offenses, the prosecutor

subpoenaed a social worker from Lower Sioux Family Services to testify at trial. Lower

Sioux’s counsel contacted the Assistant Redwood County Attorney, explained the Tribe’s

objection to the subpoena, and informed the prosecutor that the Tribe would voluntarily

produce the witness if the state withdrew the subpoena. After the prosecutor refused to

withdraw the subpoena, Lower Sioux filed a motion to quash.

Lower Sioux again argued that the social worker is a tribal official who shares the

Tribe’s unwaived sovereign immunity from suit for acts performed within his official

capacity. The social worker’s affidavit attested that he worked for Lower Sioux Family

Services and that his knowledge about the facts in the complaint arose only from the work

he performed within his official capacity. The state opposed the motion to quash and the

district court held a hearing.

4
 The district court’s orders on the Tribe’s motions to quash.

The district court issued two, nearly identical, orders denying Lower Sioux’s

motions to quash the subpoenas. The district court noted that Lower Sioux is a federally

recognized Indian Tribe and all of the subpoenaed social workers’ knowledge underlying

the alleged crimes arose exclusively from their employment with, and job duties on behalf

of, the Tribe. The court also recognized that tribal members are generally insulated from

the application of state law while on their reservations. After discussing the relevant law,

the district court, in both orders, concluded:

In sum, Congress has abrogated sovereign immunity through
the enactment of federal criminal statutes extending to Indian
country,[1] and because that exercise of criminal jurisdiction
necessarily includes every aspect of criminal procedure
applicable to the prosecution of such crimes, when Congress
granted criminal jurisdiction under [Public Law] 280[2] to
portions of the State of Minnesota, it necessarily included a
grant of every aspect of criminal procedure necessary for the
prosecution and defense of such crimes. This would include
the power of the State, any defendant, and any grand jury to
subpoena witnesses under [Minn. R. Crim. P.] 22.

Lower Sioux appealed both orders, which we consolidated on appeal. 3

1
“Indian country” is a defined term in federal law. 18 U.S.C. § 1151 (2018).
2
Public Law 280 is codified at 18 U.S.C. § 1162 (2018).
3
Lower Sioux first filed a petition for a writ of prohibition in each case. This court denied
those petitions because the Tribe had an adequate remedy via appeal. See In re Welfare of
J.A.D. (In re Lower Sioux Indian Community), No. A24-0057 (Minn. App. Feb. 13, 2024)
(order); State v. Jordan (In re Lower Sioux Indian Community), No. A24-0211 (Minn. App.
Feb. 16, 2024) (order).

5
 ISSUES

I. Did the district court err in determining that Public Law 280 abrogated Lower
Sioux’s sovereign immunity?

II. Are subpoenas “suits” for purposes of the application of a Tribe’s sovereign
immunity?

III. Are Lower Sioux Family Services social workers tribal “officials” such that they
are entitled to sovereign immunity?

ANALYSIS

We review a district court’s decision on a motion to quash a subpoena for abuse of

discretion. In re Disciplinary Action Against Coleman, 793 N.W.2d 296, 303 (Minn.

2011). Within the abuse-of-discretion standard, this court reviews a district court’s legal

conclusions de novo. Houck v. Houck, 979 N.W.2d 907, 910 (Minn. App. 2022). The

application of sovereign immunity is a question of law that we review de novo.

Nichols v. State, 858 N.W.2d 773, 775 (Minn. 2015).

I. Public Law 280 does not abrogate sovereign immunity.

Lower Sioux argues that the district court erred in concluding that Congress

abrogated the Tribe’s sovereign immunity by enacting Public Law 280 and granting the

State of Minnesota jurisdiction over criminal matters. The state contends that the district

court properly determined that Public Law 280 abrogated sovereign immunity and argues

that Congress’s extension of criminal jurisdiction to the state into tribal land inherently

included every aspect of criminal procedure, such as the power to compel testimony from

witnesses through a subpoena.

6
 “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). Tribes are “separate sovereigns pre-

existing the Constitution” and remain a “separate people, with the power of regulating their

internal and social relations.” Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55-56 (1978)

(quotation omitted). Among the core aspects of sovereignty that Tribes possess is the

“common-law immunity from suit traditionally enjoyed by sovereign powers[,]” which is

“a necessary corollary to Indian sovereignty and self-governance.” Michigan v. Bay Mills

Indian Cmty., 572 U.S. 782, 788 (2014) (quotations omitted). Tribal sovereign immunity

applies “to suits brought by States[,]” and is “not subject to diminution by the States.” Id.

at 789. “Although Congress has plenary authority over tribes, courts will not lightly

assume that Congress in fact intends to undermine Indian self-government.” Id. at 790.

Tribes are entitled to sovereign immunity unless the Tribe has unequivocally waived

its immunity or Congress has expressly abrogated the immunity. Hegner v. Dietze,

524 N.W.2d 731, 733 (Minn. App. 1994). 4 To “abrogate sovereign immunity,” Congress

must make its intent “unmistakably clear in the language of the statute.” Fin. Oversight &

Mgmt. Bd. for P.R. v. Centro de Periodismo Investigativo, Inc., 598 U.S. 339, 346 (2023)

(quotation omitted). Courts “will not find an abrogation of tribal sovereign immunity

unless Congress has conveyed its intent to abrogate in unequivocal terms.” Lac du

4
The state appropriately conceded, and our careful review of the record confirms, that
Lower Sioux did not waive its sovereign immunity. As such, Lower Sioux is entitled to
immunity from suit unless Public Law 280 abrogated the Tribe’s sovereign immunity.

7
Flambeau Band of Lake Superior Chippewa Indians v. Coughlin, 599 U.S. 382, 385 (2023).

As the United States Supreme Court has noted, “That is a high bar.” Id.

In Public Law 280, Congress empowered certain states to exercise criminal

jurisdiction over “matters occurring within Indian country[.]” Gavle v. Little Six, Inc.,

555 N.W.2d 284, 289 (Minn. 1996) (citing 18 U.S.C. § 1162 (1994)). Minnesota is one of

six states that Congress has granted

jurisdiction over offenses committed by or against Indians in
the areas of Indian country . . . to the same extent that such
State or Territory has jurisdiction over offenses committed
elsewhere within the State or Territory, and the criminal laws
of such State or Territory shall have the same force and effect
within such Indian country as they have elsewhere within the
State or Territory[.]

18 U.S.C. § 1162. 5 Congress’s primary concern in enacting Public Law 280 was to address

“the problem of lawlessness on certain Indian reservations” by providing the states with

criminal jurisdiction over offenses committed by or against Indians on reservations.

Bryan v. Itasca County, 426 U.S. 373, 379 (1976).

But a law granting jurisdiction does not necessarily abrogate a Tribe’s

sovereign immunity or ability to assert the affirmative defense of sovereign immunity.

Blatchford v. Native Vill. of Noatak, 501 U.S. 775, 786 n.4 (1991) (“The fact that Congress

grants jurisdiction to hear a claim does not suffice to show Congress has abrogated

all defenses to that claim.”) (emphasis in original); Gavle, 555 N.W.2d at 288 (“[T]he

concept [of tribal sovereign immunity] is more properly thought of as an affirmative

5
This congressional grant of jurisdiction does not apply to the Red Lake Reservation. See
18 U.S.C. § 1162 (expressly exempting the Red Lake Reservation).

8
defense, to be asserted by a tribe, tribal official or tribal entity as a bar to a particular

lawsuit.”). Subject-matter jurisdiction and sovereign immunity are “wholly distinct”

concepts. Blatchford, 501 U.S. at 786 n.4; In re Prairie Island Dakota Sioux, 21 F.3d 302,

304-05 (8th Cir. 1994) (“[s]overeign immunity . . . is not of the same character as subject

matter jurisdiction [and is a] jurisdictional consideration separate from subject matter

jurisdiction”); Gavle, 555 N.W.2d at 288 (distinguishing jurisdiction and immunity).

Thus, while Congress, through Public Law 280, provided the State of Minnesota

with jurisdiction over criminal matters in Indian country, that grant of jurisdiction is

immaterial to the analysis of whether Congress abrogated the Tribe’s sovereign immunity.

See Three Affiliated Tribes of Fort Berthold Reservation v. Wold Eng’g, 476 U.S. 877, 892

(1986) (“We have never read Pub. L. 280 to constitute a waiver of tribal sovereign

immunity, nor found Pub. L. 280 to represent an abandonment of the federal interest in

guarding Indian self-governance.”); California ex rel. Cal. Dep’t of Fish & Game v.

Quechan Tribe of Indians, 595 F.2d 1153, 1156 (9th Cir. 1979) (“Neither the express terms

of 18 U.S.C. § 1162, nor the Congressional history of the statute, reveal any intention by

Congress for it to serve as a waiver of a Tribe’s sovereign immunity.”). Even if the

provision of jurisdiction under Public Law 280 inherently grants the state authority to

subpoena witnesses—as argued by the state in this appeal—that grant of jurisdiction and

power does not equate to an express abrogation of the Tribe’s sovereign immunity or limit

the Tribe’s ability to raise the affirmative defense of sovereign immunity.

In Gavle, for example, the Minnesota Supreme Court determined that the court had

jurisdiction to hear the civil dispute but that the tribal business entity was entitled to

9
sovereign immunity from a state court civil action. 555 N.W.2d at 290-91, 296. The court

recognized that “state court jurisdiction over tribal activities that took place within Indian

country would undermine the congressional aim of encouraging self-government and self-

determination by the dependent tribes and infringe on the right of the Indians to govern

themselves.” Id. at 289 (quotations omitted). The supreme court held that the

congressional grant of jurisdiction to the State of Minnesota in Public Law 280 did not

expressly abrogate the Tribe’s ability to assert—and the correlating duty of a state court to

recognize and respect—the affirmative defense of sovereign immunity. Id. at 289, 292-96.

This court has similarly recognized that “[w]hile Public Law 280 applies to actions

involving ‘Indians,’ this grant of jurisdiction does not apply to Indian tribes, thus

preserving the vitality of Indian sovereignty[.]” Cohen v. Little Six, Inc., 543 N.W.2d 376,

381 (Minn. App. 1996) (emphasis in original), aff’d, 561 N.W.2d 889 (Minn. 1997); see

also Diver v. Peterson, 524 N.W.2d 288, 291 (Minn. App. 1994) (“Public Law 280

certainly does not constitute a governing Act of Congress which validates . . . interference

with tribal immunity and self-government.”) (internal quotations omitted) (quoting Three

Affiliated Tribes, 476 U.S. at 892), rev. denied (Minn. Feb. 14, 1995). We have also

acknowledged that Public Law 280 “was intended to supplement tribal institutions, not

limit them,” and, thus, we concluded that “Public Law 280 has not abrogated the [T]ribe’s

sovereign immunity[.]” Diver, 524 N.W.2d at 291, 292.

Although the cited cases arose within the civil arena, the state’s ability to exercise

jurisdiction in the criminal context is no different for purposes of analyzing the defense of

sovereign immunity. In both civil and criminal circumstances, the Tribe is a sovereign

10
nation and must be so treated absent an express abrogation of sovereign immunity by

Congress or waiver by the Tribe of its sovereign immunity. Criminal cases may include

additional concerns—like the potential implication of a defendant’s Sixth Amendment

right to confront witnesses—but any such result flows from the judgment of Congress (in

not expressly abrogating sovereign immunity) or in the Tribe (in not waiving immunity).

Binding authority from the United States Supreme Court, the Minnesota Supreme Court,

and our court has recognized that Public Law 280 does not represent an express abrogation

of tribal sovereign immunity. See Three Affiliated Tribes, 476 U.S. at 892; Gavle,

555 N.W.2d at 289, 296; Diver, 524 N.W.2d at 291-92. Even if we were able, we see no

reason to deviate from those established authorities.

The state contends that the congressional grant of jurisdiction to the State of

Minnesota to enact and enforce criminal laws necessarily means the state has the power to

compel witnesses to testify. But the precise language of Public Law 280 upon which the

state relies for this assertion provides: “the criminal laws of such State or Territory shall

have the same force and effect within such Indian country as they have elsewhere within

the State or Territory[.]” 18 U.S.C. § 1162. Nothing in this language demonstrates

Congress made its intent “unmistakably clear” that the Tribes within Minnesota no longer

have sovereign immunity in state court for state initiated criminal proceedings. Coughlin,

599 U.S. at 387 (emphasis added). The United States Supreme Court has set a “high bar”

for Congress to abrogate a Tribe’s sovereign immunity. Id. at 385. The language Congress

used in Public Law 280 simply does not clear that hurdle.

11
 The foundation of the state’s argument is akin to a federal preemption analysis based

upon so-called “field preemption.” “Field preemption occurs when federal law occupies a

field of regulation so comprehensively that it has left no room for supplementary state

legislation.” Murphy v. Nat’l Collegiate Athletic Ass’n, 584 U.S. 453, 479 (2018)

(quotations omitted). In such circumstances, state laws must yield to federal law. Id.

Within a field preemption analysis, a court must determine whether the congressional act

“manifest[s] the intention to occupy the entire field” such that the only logical inference

left is that the state has no room to legislate the same subject. Kurns v. R.R. Friction Prods.

Corp., 565 U.S. 625, 631 (2012) (quotation omitted).

Here, the state essentially contends that Public Law 280 completely occupies the

field of criminal law such that the only logical inference is that Congress left no room for

a Tribe to assert sovereign immunity over any matter within any criminal proceeding

initiated by the State of Minnesota. But, unlike federal field preemption that draws

inferences from a congressional act, occupying the “field of a matter” is insufficient to

abrogate a Tribe’s sovereign immunity. Instead, Congress’s intent to abrogate tribal

sovereign immunity must be express within the language of the statute. Coughlin, 599

U.S. at 387; Martinez, 436 U.S at 59. 6 While Public Law 280 grants the State of Minnesota

6
To continue the federal preemption analogy, the analysis to determine whether Congress
intended to abrogate tribal sovereign immunity is more akin to an “express preemption”
analysis. In applying an “express preemption” analysis, courts look no further than the
plain language of the federal statute to determine if Congress preempted state law by stating
its intent to preempt “in express terms[.]” Pac. Gas & Elec. Co. v. State Energy Res.
Conservation & Dev. Comm’n, 461 U.S. 190, 203 (1983); see also CSX Transp., Inc. v.
Easterwood, 507 U.S. 658, 664 (1993) (“If the statute contains an express pre-emption

12
jurisdiction to prosecute criminal conduct on tribal land, it does not “expressly,”

“unmistakably,” “unambiguously,” and “unequivocal[ly]” abrogate tribal sovereignty.

Coughlin, 599 U.S. at 385, 387. We, therefore, conclude that the district court erred in

determining that Public Law 280 abrogates tribal sovereign immunity.

II. Subpoenas are “suits” for purposes of an analysis of whether a Tribe or tribal
official is entitled to sovereign immunity.

Among the core aspects of tribal sovereign immunity is the “common-law immunity

from suit traditionally enjoyed by sovereign powers.” Bay Mills, 572 U.S. at 788 (emphasis

added). As such, Lower Sioux and its tribal officials are entitled to sovereign immunity in

these appeals only if a subpoena constitutes a “suit.” Id.

The district court did not squarely address whether the subpoenas issued to the

Lower Sioux social workers constitute “suits.” On appeal, the parties dispute whether a

subpoena constitutes a “suit” for the purposes of a sovereign-immunity analysis. This

question has not been resolved by this court or by the Minnesota Supreme Court. The

parties, therefore, cite to persuasive, but nonbinding, authorities.

Lower Sioux relies on Alltel Communications, LLC v. DeJordy in support of its

argument that a subpoena is a “suit” for purposes of a sovereign-immunity analysis.

675 F.3d 1100 (8th Cir. 2012). In DeJordy, third-party subpoenas duces tecum were served

on the Oglala Sioux Tribe and a tribal administrator in a civil lawsuit by Alltel against

clause, the task of statutory construction must in the first instance focus on the plain
wording of the clause, which necessarily contains the best evidence of Congress’ pre-
emptive intent.”). Looking at the plain language of Public Law 280, there is no express
abrogation of the Tribe’s sovereign immunity. See 18 U.S.C. § 1162.

13
DeJordy, Alltel’s former vice president. Id. at 1101. Alltel’s complaint alleged DeJordy

breached a separation agreement by assisting the Oglala Sioux Tribe in a lawsuit filed by

the Tribe to enjoin Alltel from selling assets used to provide services on the Pine Ridge

Indian Reservation. Id. The third-party subpoenas sought documents from the Tribe and

the tribal administrator that might establish a connection between DeJordy and the Tribe’s

lawsuit against Alltel. Id. at 1102. Relying on its sovereign immunity, the Tribe moved to

quash the subpoenas. Id. The district court denied the motion and the Tribe appealed. Id.

In reversing, the Eighth Circuit Court of Appeals concluded that a third-party

subpoena “is a ‘suit’ that is subject to Indian tribal immunity.” Id. at 1105. The Eighth

Circuit noted that the United States Supreme Court had explained 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.’” Id. at 1102 (quoting Dugan

v. Rank, 372 U.S. 609, 620 (1963)). Because there was no express waiver or congressional

abrogation of sovereign immunity, the Eighth Circuit concluded that the district court erred

by denying the Tribe’s motion to quash the subpoena. Id. at 1106.

Besides the Eighth Circuit, other courts have concluded that a subpoena is a “suit”

for purposes of a tribal sovereign-immunity analysis. In Russell v. Jones, for example, the

Fifth Circuit Court of Appeals addressed circumstances of subpoenas served upon county

14
court judges in Texas. 49 F.4th 507, 510-11 (5th Cir. 2022). 7 The state judges moved to

quash the subpoenas, contending, among other theories, that the judges were entitled to

sovereign immunity. Id. at 511. The United States District Court for the Southern District

of Texas denied the motion to quash on sovereign-immunity grounds. Id. at 509, 511.

In addressing whether the third-party subpoenas were “suits” that were barred by

sovereign immunity, the Fifth Circuit determined that sovereign immunity applies to

government officials as third parties, not just as defendants. Id. at 514. The court further

noted that “sovereign immunity is an immunity from suit (including discovery), not just

liability.” Id. (emphasis in original). The circuit court also recognized that the interests

that sovereign immunity protects—the sovereign’s dignity and authority over its

prerogatives—are not diminished “when a sovereign is served with a subpoena duces

tecum instead of a complaint.” Id. at 515. The Fifth Circuit concluded that state sovereign

immunity barred the third-party subpoenas. Id. at 515, 518-19.

Similarly, in Bonnet v. Harvest (U.S.) Holdings, Inc., the Tenth Circuit addressed a

nonparty subpoena duces tecum that was served on a Tribe. 741 F.3d 1155, 1156-57 (10th

Cir. 2014). Asserting sovereign immunity, the Tribe moved to quash the subpoena. Id. at

1157. The district court denied the motion to quash and the Tribe appealed. Id.

7
The Russell decision provides a useful comparison as both tribes and states are sovereigns.
But we note that tribes are more akin to foreign nations and are not the equivalent of a state
or a county. See Gavle, 555 N.W.2d at 289 (“Indian tribes are not states; nevertheless, they
possess a kind of sovereignty superior to that of states but inferior to that of the federal
government.”) (emphasis added).

15
 In reversing, the Tenth Circuit adopted a definition of “suit” that “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 1159 (emphasis in original) (quotations

omitted). The court concluded that

tribes are immune from “suit” . . . , “suit” includes “judicial
process” . . . , and a subpoena duces tecum is a form of judicial
process[.] 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.

Id. at 1160.

The state argues that Bonnet does not support Lower Sioux’s argument because the

Ex parte Young 8 exception applies to a third-party subpoena served on a tribal official. The

state derives this argument from dicta in a footnote in Bonnet in which the Tenth Circuit

8
In Ex parte Young, the United States Supreme Court held that the State of Minnesota’s
immunity under the Eleventh Amendment—which prohibits “suits” against states—does
not bar suits seeking declaratory and injunctive relief for violations of federal law (rather
than suits seeking monetary damages) against state officers acting in their official
capacities. Ex parte Young, 209 U.S. 123, 150-68 (1908); see also U.S. Const. amend. XI
(“The Judicial power of the United States shall not be construed to extend to any suit in
law or equity, commenced or prosecuted against one of the United States by Citizens of
another State, or by Citizens or Subjects of any Foreign State.”). A later Supreme Court
case characterized the analysis of the Ex parte Young exception as “a straightforward
inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks
relief properly characterized as prospective.” Verizon Md. v. Pub. Serv. Comm’n of
Md., 535 U.S. 635, 645 (2002). Courts have applied the Ex parte Young exception within
the analysis of tribal sovereign immunity. See N. States Power Co. v. Prairie Island
Mdewakanton Sioux Indian Cmty., 991 F.2d 458, 460 (8th Cir. 1993).

16
speculated whether the Supreme Court’s definition of “suit” 9 would apply if a subpoena

were served on a tribal official, rather than on the Tribe itself. Id. at 1162 n.1. The court

reasoned that the Ex parte Young exception “proceeds on the fiction that an action against

a state official seeking only prospective injunctive relief is not an action against the state

and, as a result, is not subject to the doctrine of sovereign immunity.” Id. (quotation

omitted). But the court expressly left the question open. Id. at 1162 (“we need not decide

whether a tribal official is also immune from an appropriate federal discovery request.”).

We are not persuaded that the Ex parte Young exception applies to third-party

subpoenas served on tribal officials. While the doctrine may proceed on the “fiction”

referenced by the Tenth Circuit in Bonnet, that fiction does not dictate the application of

the exception because the Supreme Court later articulated a specific inquiry for courts to

undertake in determining whether the doctrine applies. See Verizon Md., 535 U.S. at 645.

Because there is no alleged “ongoing violation of federal law” against the tribal officials

and the third-party subpoenas here do not constitute a form of “relief properly characterized

as prospective,” the Ex parte Young exception does not apply to the subpoenas served in

these cases. Id. Instead, these subpoenas seek to compel the officials’ presence for the

purpose of providing testimony in the criminal proceedings.

The state also cites an Eighth Circuit Court of Appeals decision to contend that the

civil subpoena proceedings addressed in DeJordy are not determinative of whether the

9
See Dugan, 372 U.S. at 620 (defining “suit” as being “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”) (quotations and citation omitted).

17
subpoenas in these criminal matters constitute “suits” for purposes of sovereign immunity.

See In re Long Visitor, 523 F.2d 443 (8th Cir. 1975). In Long Visitor, the Eighth Circuit

concluded that tribal sovereign immunity did not bar subpoenas to compel testimony at

grand jury proceedings because “the extension by Congress of federal jurisdiction to crimes

committed on Indian reservations inherently includes every aspect of federal criminal

procedure applicable to the prosecution of such crimes.” Id. at 446. Although the court’s

language, on its face, appears to support the state’s argument, Long Visitor is readily

distinguishable based upon the law and the facts.

In Long Visitor, the Eighth Circuit addressed circumstances of a federal grand jury

subpoena in a federal criminal case. Id. The witnesses were not immune from the federal

grand jury subpoenas compelling their testimony because of a congressional grant of

jurisdiction to the federal government. Id. (citing 18 U.S.C. § 1153). But unlike the State

of Minnesota, the United States sits as a “superior sovereign” to tribes. See Gavle,

555 N.W.2d at 289 (“tribes . . . possess a kind of sovereignty superior to that of states but

inferior to that of the federal government.”). Tribes are “subordinate and dependent nations

possessed of all powers as such and limited only to the extent that they have expressly been

required to surrender their powers by the superior sovereign, the United States.” Id.

(quotations and brackets omitted); see also Bay Mills, 572 U.S. at 788-89 (concluding that

Tribes possess “the common-law immunity from suit traditionally enjoyed by sovereign

powers[,]” which “applies no less to suits brought by States (including in their own courts)

than to those by individuals”); Cohen, 543 N.W.2d at 380 (“By virtue of the United States

Constitution, the federal government enjoys paramount authority over Indian tribes.”).

18
Thus, Long Visitor is legally distinguishable because a congressional grant of jurisdiction

to the federal government is not equal to a congressional grant of jurisdiction to a state

government. Even though the State of Minnesota, like the federal government, has

jurisdiction to prosecute crimes occurring on some reservations, Minnesota is simply not

on equal footing compared to the United States.

Besides the federal-versus-state legal distinction, Long Visitor is factually

distinguishable. The tribal members that were subpoenaed in the federal grand jury

proceedings in Long Visitor were not tribal officials who asserted sovereign immunity as a

defense. 523 F.2d at 445. Nor were they subpoenaed to testify about facts the witnesses

gained solely within their official capacity. Id. Instead, the witnesses were subpoenaed

before a federal grand jury to provide eyewitness testimony regarding the murders they

allegedly witnessed. Id. Thus, the federal government possessed the power to subpoena

the individual tribal members for the federal grand jury proceedings. Id. at 447. Long

Visitor has no application to the legal analysis, or the application of the facts to the law,

that we must perform with regard to the subpoenas involved in these consolidated cases.

Instead, we agree with the persuasive authorities that broadly define the term “suit”

as including any adversarial or judicial process. See DeJordy, 675 F.3d at 1106; Russell,

49 F.4th at 518-19; Puerto Rico v. United States, 490 F.3d 50, 61 n.6 (1st Cir. 2007)

(“[W]here a subpoena is issued to a non-party federal government agency in conjunction

with litigation in state court, the state court may not enforce the subpoena against the

federal government due to federal sovereign immunity”); In re Elko Cnty. Grand Jury, 109

F.3d 554, 556-57 (9th Cir. 1997) (applying sovereign immunity to affirm order quashing

19
state-court subpoena served upon forest service employee to testify before grand jury);

Houston Bus. J., Inc. v. Off. of Comptroller, 86 F.3d 1208, 1211 (D.C. Cir. 1996) (“In state

court the federal government is shielded by sovereign immunity, which prevents the state

court from enforcing a subpoena.”); Edwards v. United States Dep’t of Justice, 43 F.3d

312, 317 (7th Cir. 1994) (quashing criminal defendant’s state-court subpoena served upon

Department of Justice based upon sovereign immunity); Boron Oil Co. v. Downie, 873

F.2d 67, 70-71 (4th Cir. 1989) (“Even though the government is not a party to the

underlying action, the nature of the subpoena proceeding against a federal employee to

compel him to testify about information obtained in his official capacity is inherently that

of an action against the United States[.]”).

We are also persuaded by the courts that have concluded a subpoena constitutes a

“suit” for purposes of a sovereign immunity analysis. See, e.g., DeJordy, 675 F.3d at

1105-06. In reaching that conclusion, those courts have generally analyzed whether a

judgment from the pleading—there, a subpoena—would “restrain the [Tribe] from acting,

or compel it to act.” Id. (quoting Dugan, 372 U.S. at 620). The subpoenas issued in these

cases meet that definition as they compelled the tribal social workers to appear to testify in

state criminal proceedings. And the social workers’ failure to comply with the subpoena

would have subjected the witnesses to contempt proceedings. 10 It is that compulsory

power—and the supporting availability of contempt proceedings to enforce them upon a

witness’s failure to comply—that makes subpoenas a “suit.” Because a subpoena compels

10
See Minn. R. Crim. P. 22.05. In fact, the subpoenas in this record explicitly warn that
“failure to obey a subpoena without being excused is a contempt of court.”

20
an action and can be enforced via contempt proceedings, we hold that a subpoena

constitutes a “suit” for purposes of the sovereign-immunity analysis.

III. The social workers are officials entitled to sovereign immunity.

Although we have resolved the question of whether Congress has abrogated Lower

Sioux’s sovereign immunity (it did not) and the question of whether a subpoena constitutes

a suit (it does) such that the Tribe can properly assert its sovereign immunity (it can), our

analysis is not at an end. The tribal social workers are entitled to immunity only if they

were “tribal officials acting in their official capacity and within their scope of authority.”

Hegner, 524 N.W.2d at 735 (citing Hardin v. White Mountain Apache Tribe, 779 F.2d 476,

479-80 (9th Cir. 1985)); see also Otterson v. House, 544 N.W.2d 64, 66 (Minn. App. 1996)

(“Sovereign immunity extends to tribal officials acting within their scope of authority.”),

rev. denied (Minn. Apr. 26, 1996). Although not litigated below, the state now contends

that the record presented to the district court does not support a determination that the social

workers were “officials” who acted within their “official capacity” such that they were

entitled to sovereign immunity. 11

11
Lower Sioux argues that the state forfeited this argument because the state raised the
issue for the first time on appeal. The state concedes that the issue was not litigated before
the district court but contends that it may raise this alternative argument on appeal as there
are sufficient facts in the record to consider the theory, there is legal support for the
argument, and deciding this case on the alternative grounds would not expand the relief
previously granted. We agree with the state and conclude that the issue is not forfeited.
See State v. Grunig, 660 N.W.2d 134, 137 (Minn. 2003) (“A respondent can raise
alternative arguments on appeal in defense of the underlying decision when there are
sufficient facts in the record for the appellate court to consider the alternative theories,
there is legal support for the arguments, and the alternative grounds would not expand the
relief previously granted.”); see also Minn. R. Crim. P. 29.04; State v. Larson, 389 N.W.2d

21
 The resolution of the question of whether an individual acted within their official

capacity and, therefore, is protected by sovereign immunity turns on who is the “real party

in interest.” Lewis v. Clarke, 581 U.S. 155, 163 (2017) (“The identity of the real party in

interest dictates what immunities may be available.”). Answering this question requires an

analysis of “the relief sought” and whether “the decree would operate against” the

sovereign. Native Am. Distrib. v. Seneca-Cayuga Tobacco Co., 546 F.3d 1288, 1296-97

(10th Cir. 2008). In determining who is the “real party in interest,” courts do not rely on

the characterization of the parties but “determine in the first instance whether the remedy

sought is truly against the sovereign.” Lewis, 581 U.S. at 162. This analysis is apt to our

resolution of these cases because the general rules that apply to immunity against suits for

state and federal officials also apply to sovereign immunity against suits for tribal officials.

Id. at 163-64 (“The protection offered by tribal sovereign immunity . . . is no broader than

the protection offered by state or federal sovereign immunity.”). The determinative

question is whether the suit involves an official capacity or individual capacity. Id. at 163.

Sovereign immunity does not categorically extend to an individual simply because

they are employed by the Tribe. Id. at 167-68. In line with the United States Supreme

Court’s decision in Lewis, we have previously recognized the distinction between tribal

872, 875 n.5 (Minn. 1986) (“The court may permit a respondent, without filing a cross-
appeal, to defend a decision of judgment on any ground that the law and record permit that
would not expand the relief he has been granted.”); Holen v. Minneapolis-St. Paul Metro.
Airports Comm’n, 84 N.W.2d 282, 286 (Minn. 1957) (“[A]n appellate court may base its
decision upon a theory not presented to or considered by the trial court where the question
raised for the first time on appeal is plainly decisive of the entire controversy on its merits,
and where . . . [t]here is no possible advantage or disadvantage to either party in not
having had a prior ruling by the trial court on the question.”) (emphasis in original).

22
employees and tribal officials for the purposes of whether sovereign immunity applies.

While sovereign immunity does not extend to all tribal employees, Otterson, 554 N.W.2d

at 66-67, it extends to tribal officials, Hegner, 524 N.W.2d at 735.

In Otterson, we addressed a suit against an employee of the Fond du Lac

Development Corporation, a tribally chartered, tribally owned corporate subdivision of the

Fond Du Lac Band. Id. at 65. The suit alleged the employee, a security guard, was

negligent while delivering mail off the reservation to the United States Post Office in

Cloquet, Minnesota. Id. Although the employee was acting within the scope of his

employment for the Tribe by delivering the mail to the post office, he was not entitled to

sovereign immunity because his actions did not call on him to “rely on a delegation of

tribal authority” and did “not relate to policymaking.” Id. at 66.

Unlike the employee in Otterson, the social workers involved here rely on a

delegation of tribal authority in providing the services required from their positions. For

example, the supervising social worker in the extended juvenile jurisdiction “oversee[s] all

child-protection cases; participate[s] in investigations, case management, and placement

determinations; and supervise[s] Family Services social workers in their provision of

services and referrals.” The social workers themselves “provide services and referrals for

child-protection cases, and participate in investigations, case management, and placement

determinations, among other duties and responsibilities.”

These duties, as detailed in affidavits by the social workers, distinguish the

witnesses here from individuals engaged in “ministerial” employment that this court has

determined does not warrant protection under tribal sovereign immunity. Id. at 66-67; see

23
also Olson v. Ramsey County, 509 N.W.2d 368, 371-72 (Minn. 1993) (determining that a

county social worker’s creation of a case plan “required the exercise of judgment” and

involved “professional planning at the operational level in the discharge of an assigned

governmental duty”). 12 The affidavits make it clear that the social workers here are tribal

officials and, thus, protected by sovereign immunity. See E.F.W. v. St. Stephen’s Indian

High Sch., 264 F.3d 1297, 1302-05 (10th Cir. 2001) (applying tribal sovereign immunity

to a social services employee and his supervisor). 13

The state contends that Lower Sioux did not meet its burden to demonstrate that the

social workers are tribal officials for purposes of sovereign immunity. But the affidavits

filed by the social workers were uncontested at the district court. The state presented no

argument and offered no counter evidence to demonstrate that the duties the tribal

employees performed were ministerial tasks. Instead, the undisputed—and only—

evidence before the district court demonstrated that the social workers’ duties derived as a

delegation of authority to them by a subdivision of the Tribe and required the exercise of

12
We recognize that Olson involves the application of official immunity to a Ramsey
County social worker, which is not the same as the sovereign immunity issue in these
appeals. But the general analysis regarding the duties of a social worker is persuasive for
our conclusion that the social workers’ duties here were not merely ministerial.
13
In Shakopee Mdewakanton Sioux (Dakota) Gaming Enter. v. Prescott, we reversed a
district court’s denial of a motion to quash subpoenas issued to commissioners for the
Shakopee Mdewakanton Sioux Community Gaming Commission—a regulatory arm of the
Shakopee Mdewakanton Sioux Community. Nos. A06-1880, A06-1934, 2007 WL
2769666, at *1-2 (Minn. App. Sept. 25, 2007). We held that the commissioners’ testimony
would relate only to the actions they performed within their official capacity. Id. Thus,
the commissioners were entitled to immunity and the district court abused its discretion by
not quashing the subpoenas. Id. Our holding today is consistent with Prescott, which we
cite for its persuasive value. See Minn. R. Civ. App. P. 136.01, subd. 1(c).

24
their judgment and professional planning. Put another way, the subpoenas compelled the

social workers to testify about acts they performed solely within their official capacity.

These same witnesses would not, however, be entitled to tribal sovereign immunity

if they were subpoenaed to testify as a witness regarding information obtained in their

personal capacity. Counsel for Lower Sioux conceded during oral argument that sovereign

immunity would not apply in a scenario where the state subpoenaed a tribal official to

testify in a murder trial at which the tribal official would testify only about having

witnessed the defendant pull the trigger. In that hypothetical situation, sovereign immunity

would not apply because the tribal official’s knowledge was obtained only in their personal

capacity as an eyewitness to a murder and not in their capacity as a tribal official.

Beyond a mere hypothetical, a witness subpoenaed to testify in the adult criminal

trial in these consolidated appeals 14 attested in his affidavit:

Unlike the facts underlying this case, I gained my knowledge
regarding the facts underlying Case No. 64-CR-22-79 15
through my personal capacity and not through my official
capacity or official duties as a social worker in Family
Services. Therefore, neither I nor the Lower Sioux Indian
Community will be contesting the State’s jurisdiction to
enforce a subpoena properly served on me in that matter.

Thus, counsel’s concession at argument was not based upon a mere hypothetical question

posed by the panel. The witness, and the Tribe, have recognized that there are

circumstances in which tribal sovereign immunity does not apply. The immunity would

14
In the A24-0319 matter.
15
64-CR-22-79 involves a separate criminal matter that is not at issue in these appeals.

25
not extend to a properly served subpoena upon a tribal official seeking to compel testimony

from the witness related to information that he gained only in his personal capacity. See,

e.g., Long Visitor, 523 F.2d 443 (concluding tribal members not entitled to tribal sovereign

immunity from subpoenas compelling testimony relating to information the witnesses

gained within their personal capacity—namely, allegedly witnessing the murders).

Unlike the above circumstances, the subpoenas issued in these cases sought

testimony from the social workers regarding “knowledge of facts underlying the alleged

crimes in this matter” that the witnesses obtained “exclusively from their employment with

and job duties on behalf of the Community.” That distinction makes all the difference.

Because the subpoenas seek to compel the testimony of the social workers regarding

information they obtained exclusively through their official roles, the “remedy sought is

truly against the sovereign,” and sovereign immunity applies. See Lewis, 581 U.S. at 162.

DECISION

Because Public Law 280 does not abrogate tribal sovereign immunity, subpoenas

are suits for the purposes of the sovereign-immunity analysis, and the social workers are

entitled to sovereign immunity given the subpoenas seek to compel testimony about

knowledge the employees gained exclusively within their roles as tribal officials, the

district court abused its discretion by not quashing the subpoenas. We remand with

instruction for the district court to enter an order quashing the subpoenas.

Reversed and remanded.

26