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)
2

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.
3

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. 
4

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.
5

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).
6

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. 
7

“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 preexisting 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.
8

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).
9

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 
10

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 selfdetermination 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 
11

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.
12

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 
13

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’ preemptive 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. 
14

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 
15

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). 
16

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 Young8 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).
17

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). 
18

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.”). 
19

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 
20

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.” 
21

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 
22

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 crossappeal, 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).
23

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 
24

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).
25

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 appeals14 attested in his affidavit:

Unlike the facts underlying this case, I gained my knowledge 

regarding the facts underlying Case No. 64-CR-22-7915

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.
26

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.