Filed 1/21/14 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Appellant,

v.
MIAMI NATION ENTERPRISES et al.,
Defendants and Respondents. B242644
(Los Angeles County Super. Ct. No. BC373536)

APPEAL from an order of the Superior Court of Los Angeles County, Yvette M. Palazuelos, Judge. Affirmed. Uche L. Enenwali, Senior Corporati ons Counsel, and Mary Ann Smith, Deputy Commissioner, California Corporations Counsel; Kamala D. Harris, Attorney General, Sara J. Drake, Senior Assistant Attorney General, Jennifer T. Henderson, Deputy Attorney General, for Plaintiff and Appellant. Fredericks Peebles & Morg an, John Nyhan, Nicole E. Ducheneaux and Conly J. Schulte for, MNE and SFS, Inc., Defendants and Respondents.

___________________2 Applying the arm-of-the-tribe analysis as we directed in Ameriloan v. Superior
Court (2008) 169 Cal.App.4th 81 ( Ameriloan ), the trial court dismissed for lack of subject matter jurisdiction this action by the Commissioner of the California Department of Corporations against five “payda y loan” businesses owned by Miami Nation Enterprises (MNE), the economic development authority of the Miami Tribe of Oklahoma, a federally recogni zed Indian tribe, and SFS, Inc., a corporation wholly owned by the Santee Sioux Nation, also a federa lly recognized Indian tribe. Because the
two tribal entities and their cash-advance and short-term-loan businesses are sufficiently related to their respective Indian tribes to be protected from this state enforcement action
under the doctrine of tribal sove reign immunity, we affirm.
FACTUAL AND PROCED URAL BACKGROUND
1. The Commissioner’s Complaint and the In itial Ruling on the Motions To Quash Following an investigation by the Departme nt of Corporations, in August 2006 the
Commissioner 1 issued desist-and-refrain orders to Ameriloan, United Cash Loans, US Fast Cash, Preferred Cash and One Click Cash , directing them to cease their unlicensed
and unlawful loan activities in California. In June 2007, after the businesses failed to comply with the desi st-and-refrain orders, the Commiss ioner filed a complaint in the name of the People of the State of Califor nia for injunctive relief, restitution and civil penalties against Ameriloan, Unite d Cash Loans, US Fast Ca sh, Preferred Cash and One Click Cash alleging they were providing shor t-term, payday loans ov er the Internet to
California residents in violation of several provisions of the California Deferred Deposit Transaction Law (DDTL) (F in. Code, § 2300 et seq.). 2 Specifically, the complaint

1 Effective July 1, 2013 th e Department of Corpora tions and Department of Financial Institutions combined and became the Department of Business Oversight within the Business, Consumer Services and Hous ing Agency pursuant to the Governor’s Reorganization Plan (G.R.P.) No. 2 of 2012. (See Gov. Code, §§ 12080.2, 12080.5.) The Corporations Commissioner is now the Commissioner of Business Oversight.

2 “Payday loans are controversial. They typically offer about two weeks of credit, due in full on the borrower’s next payday, at annua l interest rates of ar ound 400 percent. While3 alleged the five businesses engaged in defe rred deposit transactions within California without being licensed (Fin. C ode, § 23005, subd. (a)), originat ed loans in excess of the $300 statutory maximum (Fin. Code, § 23035 , subd. (a)), charged excessive loan fees (Fin. Code, § 23036, subd. (a)), and failed to provide their customers with various required written notices (Fin. Code, § 23001, su bds. (a), (e)). The trial court granted the Commissioner’s ex parte request for a temporar y restraining order against each of the
businesses and set a date for them to show cause why th e request for a preliminary injunction should not be granted. MNE and SFS specially appear ed and moved to quash se rvice of summons and to dismiss the complaint on the ground the five pa yday loan businesses named as defendants were simply trade names (or “dba’s”) of the two tribal entities and, as wholly owned and controlled entities of their respective tribes ope rating on behalf of the tribes, they were protected from this state enforcement acti on under the doctrine of tribal sovereign

borrowers find fast relief, they are often left indebted for months, struggling to repay a loan that was marketed as a short-term solution. Proponents argue that payday loans are a useful form of credit for consumers who lack access to more conventional banking services, but opponents claim they overburden people who ar e already struggling to make ends meet.” (The Pew Charitable Trusts, Payday Lending in Amer ica, Series Summary (Oct. 2013) <http://www.pewstates.org/upl oadedFiles/PCS_Assets/2013/P ew_Payday_Lending_Series_ Summary.pdf [as of January 21 , 2014].) According to the findings of the Pew Charitable Trusts’ Payday Lending in America study, 12 million Americans take out payday loans each year, spending approximately $7.4 billion annually . The average loan is $375. The average borrower is in debt for five m onths during the year, spending $5 20 in interest to repeatedly renew the loan. Sixty-nine percent of first- time borrowers use the lo an for recurring bills, including rent or utilities; only 16 percent use th em to deal with an un expected expense such as a car repair. ( Ibid. ) In affirming the judgment of dismissal under the doctrine of tribal sovereign immunity, we obviously take no positi on in the policy debate over the general undesirability or predatory nature of on line payday loans and express no view on the merits of the Commissioner’s allegations th at the cash advance and short-term loan services offered by the tribal entities violate the DDTL.4 immunity. 3 Both tribal entities submitted declara tions describing in some detail their relationship to their respective tribes and th e economic benefits the tribes obtained from operating the businesses. In opposition, in addition to arguing the doctrine of tribal sovereign immunity did not apply to commercia l activities outside of Indian country, the Commissioner urged at the very least discovery should be permitted with respect to the jurisdictional facts articulate d in the declarations accompanying the motions to quash. On October 19, 2007 the trial court denied the motion to quash service, concluding tribal sovereign immunity did not apply to th e tribal entities’ payda y loan activities. In the same order the court granted the Commiss ioner’s request for a preliminary injunction prohibiting the five named defe ndants from engaging in un licensed, nonexempt deferred deposit transaction business, charging ex cessive fees, violating the Commissioner’s cease-and-refrain orders and destroying records.
2. Our Ameriloan Decision MNE and SFS, on behalf of the named payday loan businesses, petitioned this court for a writ of mandate vacating the trial court’s order. In Ameriloan, supra , 169 Cal.App.4th 81 we granted the petition in part and dir ected the trial court to vacate its order denying the motions to quash and gr anting the preliminary injunction and to conduct a new evidentiary heari ng to determine the applicability of the doctrine of tribal sovereign immunity in the particul ar circumstances of this action. 4

3 In addition to asserting their immunity to suit, MNE and SFS contended their businesses, utilizing automated clearing house transactions, were not subject to the provisions of the DDTL, which, by its terms, applies to transacti ons involving “personal checks”—an issue we identifie d but did not resolve in Ameriloan in light of the uncertainty as to the court’s subj ect matter jurisdiction. (See Ameriloan, supra, 169 Cal.App.4th at pp. 99-100.)

4 We had initially issued a summary de nial of MNE and SFS’s petition. The Supreme Court granted MNE and SFS’s petition for review and transferred the matter to us with directions to issue an altern ative writ and hear the matter. (See Ameriloan, supra , 169 Cal.App.4th at p. 88.)5 Our opinion briefly summarized the tr ibal sovereign immunity doctrine, explaining, “An Indian tribe’s sovereign nation status confers an absolute immunity from suit in federal or state court, absent an expr ess waiver of that immunity or congressional authorization to sue.” ( Ameriloan, supra , 169 Cal.App.4th at p. 89.) We then quoted the key language from the United States Supreme Court’s decision in Kiowa Tribe v. Manufacturing Tech. (1998) 523 U.S. 751 [118 S. Ct. 1700, 140 L.Ed.2d 981] ( Kiowa), which held a federally recogni zed Indian tribe enjoys imm unity from suit in state court even if the subject of the action is purely commercial activity that occurs on nontribal
lands. Based on Kiowa we concluded the trial court had erred in ruling as a matter of law
the doctrine of tribal sovere ign immunity did not apply to the payday loan companies’ commercial activities occurring outs ide of Indian country. ( Ameriloan, at pp. 89-90.) 5

We also held the trial court had erred in co ncluding tribal sovereign immunity had been
waived based on a “sue or be sued” clause in the resolution esta blishing MNE as an
economic subdivision of the Miami Tribe of Oklahoma or the arbitration provision contained in each of the payday loan companies’ loan agreements with consumers. ( Id. at pp. 94-96.) To decide the motion to qu ash—that is, to decide wh ether the tribal entities, operating through the named payday loan compan ies, are entitled to the benefits of tribal sovereign immunity—we explained, the trial court “must first determine whether those entities, in fact, are acti ng on behalf of federally recognized tribes.” ( Ameriloan, supra , 169 Cal.App.4th at p. 97.) “Tribal soverei gn immunity extends no t only to the Indian
tribes themselves but also to those for-profit commercial entitie s that function as ‘arms of the tribes.’ [Citations.] The doctrine, ho wever, does not ‘“cover tribally chartered

5 Relying on Kiowa, supra , 523 U.S. 751, we expl ained the question was not whether state regulatory laws, here the DD TL, apply to commercia l activities conducted outside Indian country by a trib al entity, but whether the trib al entity is protected from a government enforcement action under the do ctrine of tribal sovereign immunity. ( Ameriloan, supra , 169 Cal.App.4th at pp. 90-91; see Kiowa , at p. 755 [“[t]here is a difference between the right to demand co mpliance with state law and the means available to enforce them”].)6 corporations that are completely independent of the tribe.”’” ( Ibid .) In light of the trial court’s failure to make findings pertinent to the arm-of-the-tribe analysis, we directed it to conduct a new evidentiary hearing and to consider whether the two tribal entities are sufficiently related to their re spective tribes to be entitled to the protection of tribal sovereign immunity. “To this end, the court should consider the criteria expressed by the Courts of Appeal in Trudgeon [ v. Fantasy Springs Casino (1999)] 71 Cal.App.4th [632,] 638 and [ Redding ] Rancheria [ v. Superior Court (2001)] 88 Cal.Ap p.4th [384,] 389, including whether the tribe a nd the entities are closely linked in governing structure and characteristics and whether federal policies in tended to promote Indian tribal autonomy are furthered by extension of immunity to the business en tity. (See also Allen v. Gold Country Casino (9th Cir. 2006) 464 F.3d 1044, 1046 [the relevant question for purposes of applying tribal sovereign immunity ‘is not whether the activity may be characterized as a business, which is irrelevant under Kiowa, but whether the entity acts as an arm of the tribe so that its activities are properly de emed to be those of the tribe’].)” ( Ameriloan , at pp. 97-98.) In response to the Commissioner’s reque st to be permitted discovery into the assertion that profits from the payday loan op erations benefit the two tribes that created MNE and SFS, we observed, “w e see no reason why limited discov ery, directed solely to matters affecting the trial court’s subject matt er jurisdiction, should impact the payday loan companies’ special appearance . . . .” ( Ameriloan, supra , 169 Cal.App.4th at p. 98.) Nonetheless, because no issue relating to disc overy was raised in the petition for writ of mandate, we made no express ruling on the pe rmissible scope of any discovery when the matter returned to the trial court. ( Id. at pp. 98-99.)
3. The Parties’ Evidentiary Presentations Regarding the Arm-of-the-Tribe Issue Following our Ameriloan decision, discovery was cond ucted in the trial court, ultimately under the supervision of a discovery referee appointe d pursuant to the parties’7 stipulation under Code of Civil Procedure section 639. 6 Thereafter, MNE and SFS renewed their motion to quash service and to dismiss the action for lack of subject matter jurisdiction, submitting with the moving papers extensive su pporting documentary evidence. In response, th e Commissioner filed a motion for a preliminary injunction, which the trial court deemed an opposition to the motion to quas h. After further
consideration the trial court then conducted an evidentiary hearing on May 10, 2012.

a. Evidence from the tribal entities
i. The Miami Tribe of Oklahoma According to the tribal entities’ evidence, the Miami Tribe of Oklahoma was organized in 1936 pursuant to the Oklahoma Indian Welfare Act of 1936 (25 U.S.C. § 501) and is governed by a co nstitution and by-laws approved by the Secretary of the
Interior. Its ancestral homel ands included much of the upper Midwest (what is now Indiana, Illinois, Ohio and lower Michigan and Wisconsin), but the Miami people were forcibly removed from this ar ea in 1846 and relocated seve ral times thereafter, ultimately to “Indian Territory,” now Okla homa. Its headquarters are lo cated on land held in trust for the tribe’s benefit by the United States in rural northeastern Oklahoma, approximately
90 miles from Tulsa. The United States Sm all Business Administration has included this land within its designations of histor ically underutilized business zones. Recognizing “a critical need for the deve lopment of economic activities . . . to provide for the well-being of the citizens of the Miami Tribe,” th e tribe organized MNE as a wholly owned and controlled tribal en tity pursuant to the May 2005 Amended Miami Nation Enterprises Act. That Act specif ies MNE “shall be a subordinate economic enterprise of the Miami Tribe of Oklahoma” and provides the tribe’ s governing body, the Tribal Business Committee, has delegated its authority to MNE: “[T]he creation and

6 In a companion, nonpublished opinion we affirm the separately appealed August 12, 2011 order im posing $34,437.50 in discov ery sanctions against the Commissioner after the court denied in substa ntial part her motion to compel further responses to a second set of request s for production of documents. ( People v. MNE (Jan. 21, 2014, B236547).)8 operation of Miami Nation Enterprises serves an essential government function of the Miami Tribe of Oklahoma by allowing the Miami Tribe to provide directly for the development of tribal revenue generating ac tivities and to acquire property.” The Miami Tribe expressly provided MN E would enjoy all privileges and immunities of the tribe itself, including “the right of soverei gn immunity from uncons ented civil suit.”
MNE’s initial board of directors consisted of the members of the Tribal Business Committee; the chief of the Miami Tribe ap pointed all successor members of the MNE board with the approval of the Tribal Business Committee; the current members of the board are members of the Miami Tribe; and th e initial officers of MNE were hired by the Tribal Business Committee, including its curre nt chief executive officer. MNE Services, Inc. is a wholly owned subsidiary of MNE, created in 2008 pursuant to the Amended Miami Nation Enterprises Act. MNE Servic es, Inc. processes and approves loan applications pursuant to underwriting criteri a approved by MNE. MNE/MNE Services,
Inc. transact Internet lendi ng under the trade names Amerilo an, US Fast Cash and United Cash Loans. Their lending ac tivities are subject to tribal la ws governing interest rates,
loans and cash advance servi ces. According to supporti ng declarations, all loan applications are approved by MNE on federa l trust land under the sovereign jurisdiction of the Miami Tribe of Oklahoma; and profits from MNE/MNE Services, Inc. “directly or indirectly enable the Miami Tr ibe to fund critical governmental services to its members, such as tribal law enforcement, poverty assi stance, housing, nutritio n, preschool, elder care programs, school supplies and scholarships. . . . The cash advance business is a critical component of the Miami Tribe’s economy and governmental operations.”
ii. The Santee Sioux Nation The Santee Sioux Nation was organized under section 16 of the Indian Reorganization Act of 1934 an d is governed by a constitution approved by the Secretary
of the Interior in 2002. The Santee Sioux re servation is located in an isolated, rural region of northeastern Nebraska. (The ance stral home of the Santee Sioux is in presentday Minnesota. They were forcibly relocated first to South Dakota and then to their9 current site.) The United States Small Busi ness Administration has also included this land within its designations of histor ically underutilized business zones. Acting through its governing body, the Trib al Council, in 2005 the tribe created SFS, Inc., a wholly owned chartered tribal co rporation whose sole purpose is to generate revenue to help fund the Santee Sioux’s g overnmental operations and social welfare programs. SFS’s articles of incorporation ex pressly state it enjoys the tribe’s sovereign immunity from suit. SFS is licensed pursuant to tribal law to operate an online lending business (cash advance services and short-term loans) utilizing the trade names Preferred
Cash Loans and One Click Cash. SFS’s article s of incorporation mandate that the board of directors of SFS, which consists of the members of the Tribal Council, manage SFS; and the Tribal Council appoin ted the tribe’s business mana ger as the chief executive
officer of SFS. According to the declaration of Robert Campbell, an enrolled member of the Santee Sioux Nation, a member of the Tribal Council and the treasurer of SFS, “the loan transactions are approved and consummated in Indian lands and within the jurisdiction of the Santee Sioux Nation.” In addition, Campbe ll testified, “These cash advance services are the primary source of income for SFS.” “A ll profits earned by SF S go to the Santee Sioux to help fund its government operations and social welfare programs. . . . The Santee Sioux reservation is a severely eco nomically depressed region, and the profits generated by SFS are essential to maintaini ng a functioning government that is able to provide the essential government services to its members.”
b. The Commissioner’s evidence Without seriously questioning the close structural relationship between the Miami
Tribe of Oklahoma and MNE or the Santee Sioux Nation and SF S, the Commissioner presented evidence to demonstrate the actual cash advance services and loan activities of the named defendants were actively operated and controlled by nontriba l third parties, not
the tribes themselves or th eir tribally owned corpora tions. At the outset, the Commissioner explained the various trade na mes used by the named defendants were10 originally registered by one Sc ott Tucker to advertise and ma rket payday lending services several years before they were adopted by MNE and SFS. In July 2008 SFS and MNE entered into management agreements with a Tucker-controlled company, N.M. Service Corp. (NMS) to direct and operate their lending activities. The Commissioner conceded
MNE and SFS had final author ity under these agreements for making the loans, but contended Tucker’s management company effectively exercised that authority through advance instructions or approval parameters ; in fact, the Commissioner argued, Tucker and his company totally controlled, operated and managed the businesses as part of an interrelated network of compan ies that have common owners hip, business functions and employees and that persistently commingl e funds. According to the Commissioner’s information obtained independently from the Federal Trade Commission and other sources (that is, not through discovery in this proceeding), MNE and SFS received one percent of the gross revenues from their ca sh advance/loan busi nesses while Tucker’s company retained the “net cash fl ow of the Lending Business.” The Commissioner noted the officers, direct ors and shareholders of MNE Services and SFS are not personally liable to credito rs or claimants of the corporations for corporate actions. Consequently, neither th e Miami Tribe of Oklahoma nor the Santee Sioux Nation is potentially s ubject to liability for any misconduct in the cash advance, short-term lending businesses. The Commi ssioner also asserted MNE’s and SFS’s lending businesses regularly violated tribal laws in the areas of permissible interest rates, control of bank accounts and the commingling of funds.
4. The Trial Court’s Order Dismissing th e Commissioner’s Enforcement Action Following the evidentiary he aring, the trial court gr anted MNE and SFS’s motion to quash service of summons and dismissed the case for lack of subject matter jurisdiction. Applying th e criteria articulated in Trudgeon v. Fantasy Springs Casino,

supra , 71 Cal.App.4th 632 for determ ining whether a tribal entity functions as an arm of the tribe for purposes of tribal sovere ign immunity, as we had directed in Ameriloan , the
trial court summarized the evidence and conc luded the tribal entitie s were closely linked11 in governing structure and characteristics to th eir respective tribes. The court rejected as unpersuasive the Commissioner’s argument the payday loan businesses were not arms of
their tribes or entitled to tr ibal sovereign immunity beca use Tucker and his company completely controlled their operations and were the primary beneficiaries of the payday loan activities: “[C]ontrol of a corporation does not mean control of business minutiae;
the tribe can be enmeshed in the direction and control of the business without being involved in the actual management. . . . [The Commissioner’s] arguments go beyond governing structure and characteristics and seek a determination that sovereign immunity does not apply because the Tribes have not exercised sufficie nt control of the Defendants or have allowed third parties to extract too much money (ben efit) from the tribal entities. However, these concerns are th e Tribes’ concerns. The fact that the Defendant tribal entities may be violating the Trib es’ own laws and regulations is a matter for the Tribes
and is not a basis to determine the entities ar e not closely linked in governing structure
and characteristics.” The court also ruled the federal policies intended to promote tribal autonomy were furthered by extension of immunity to MN E and SFS and their payday loan businesses notwithstanding the Commissioner’s cont rary position based on the purportedly disproportionate benefits received by the nont ribal managers: “It is undisputed that the Tribes receive some amount of the gross re venues, which allows the Tribes to fund important services and projects for their member s. It is not the province of this court to determine that, because the Tribes did not ma ke a better deal with [the nontribal third parties] in which they secured a greater percentage of gross revenues, Indian tribal autonomy is no longer furthered. Such an interpretation would substitute this court’s analysis of the Tribes’ interests for the Trib es’ own analysis of what is in their best interests. . . . Tribal immunity cannot be defeated simply becau se third parties who operate Tribe directed/controlled businesses also benefit substantially—even perhaps substantially more th an the Tribes.” The Commissioner filed a timely notice of appeal.12 DISCUSSION
1. Standard of Review “On a motion asserting sovereign immunity as a basis for dismissing an action for lack of subject matter jurisdiction, the plaintiff bears the burden of proving by a preponderance of evidence that jurisdiction exists.” ( Campo Band of Mi ssion Indians v. Superior Court (2006) 137 Cal.App.4t h 175, 183; accord, American Property Management Corp. v. Superior Court (2012) 206 Cal.A pp.4th 491, 498 ( American Property ).) If resolution of the jurisdiction questi on depends on disputed issues of fact, we review the trial court’s findings for substantial evidence. ( Singletary v. International Brotherhood of Electrical Workers, Local 18 (2012) 212 Cal.App.4th 34, 41; see Professional Engineers in Califo rnia Government v. Kempton (2007) 40 Cal.4th 1016, 1032.) Absent conflicting extrinsic evidence , the question of subject matter jurisdiction over an action against an Indian tribe is purel y one of law, subject to de novo review. ( American Property, at p. 498; Warburton/Buttner v. Superior Court (2002) 103 Cal.App.4th 1170, 1180; see Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 449.)
2. Tribal Sovereign Immunity and the Arm-of-the-Tribe Analysis “Indian tribes are ‘domestic dependent nati ons’ that exercise inherent sovereign authority over their members and territories.” ( Oklahoma Tax Comm’n v. Potawatomi
Tribe (1991) 498 U.S. 505, 509 [111 S.Ct. 905, 112 L.Ed.2 d 1112].) The recognition of tribes as sovereigns in a government-to-government relati onship with other sovereign
nations has its source in the United States Co nstitution and is a well- established principle of federal Indian law. (See 25 U.S.C. § 3601(1), (3) [“there is a government-togovernment relationship between the United States and each Indian tribe”; “Congress, through statutes, treaties, and the exercise of administrative authorities, has recognized the self-determination, self-reliance, and inhe rent sovereignty of Indian tribes”]; see generally Judicial Council Comment, Cal. Rules of Court, rule 10.60.)13 Tribal sovereign immunity “is a necessary corollary to Indian sovereignty and self-governance.” ( Three Affiliated Tribes v. Wold Engineering (1986) 476 U.S. 877, 890 [106 S.Ct. 2305, 90 L.Ed.2d 8 81].) “[I]n the absence of fe deral authorization, tribal immunity, like all aspects of tribal sovere ignty, is privileged from diminution by the States.” ( Id . at p

. 890 ; see Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49, 58 [98 S.Ct. 1670, 56 L.Ed.2d 106] [“Indian tribes have long been recogn ized as possessing the common-law immunity from suit tr aditionally enjoyed by sovere ign powers. [Citations.] This aspect of tribal sovereignty, like all ot hers, is subject to th e superior and plenary control of Congress. But ‘w ithout congressional authorizati on,’ the ‘Indian Nations are exempt from suit.’”].) “[A]n Indian tribe is not subject to su it in a state court—even for breach of contract involving off-reservation commerc ial conduct—unless ‘Congress has authorized
the suit or the tribe has wa ived its immunity.’” ( C & L Enterprises, In c. v. Citizen Band Potawatomi Tribe of Okla. (2001) 532 U.S. 411, 414 [121 S.Ct. 1589, 149 L.Ed.2d 623]; accord, Kiowa, supra , 523 U.S. at p. 760 [tribal s overeign immunity applies without
distinction between on- and o ff-reservation or governmental or commercial activities]; see generally Cohen’s Handbook of Federal Indian Law (2012 ed.) Sovereign Immunity § 7.05[1][a] [“[t]he doctrine of tribal sove reign immunity is rooted in federal common
law and reflects the federal Constitution’s trea tment of Indian tribes as governments in the Indian commerce clause”].)
Much as Eleventh Amendm ent immunity from suit in federal court applies not only to the states themselves but also to entities that are prop erly considered arms of the state (see, e.g., Alden v. Maine (1999) 527 U.S. 706, 756 [119 S.Ct. 2240, 144 L.Ed.2d 636]; Mt. Healthy City Board of Ed. v. Doyle (1977) 429 U.S. 274, 280 [97 S.Ct. 568, 50 L.Ed.2d 471]), tribal sovereig n immunity protects not on ly a tribe itself but also subordinate governmental or commercial entities acting as arms of the tribe. ( American Property, supra , 206 Cal.App.4th at p. 500; Ameriloan, supra, 169 Cal.App.4th at p. 97; see Cohen’s Handbook of Federal Indian Law, supra , § 7.05[1][a] [tribal immunity14 “extends to entities that are arms of the tribes”]; see generally Cook v. AVI Casino Enterprises, Inc. (9th Cir. 2008) 548 F.3d 718, 727 [c omparing arm-of-the-tribe analysis to deciding whether a state inst rumentality could invoke the state’s sovereign immunity].) The United States Supreme Court has ack nowledged, but not yet analyzed, the arm-of-the-tribe concept. In Inyo County v. Paiute-Shoshone Indians of Bishop Community of Bishop Colony (2003) 538 U.S. 701, 7 05, fn. 1 [123 S.Ct. 1887, 155 L.Ed.2d 933], a federally re cognized Indian tribe and its tribally chartered, wholly owned gaming corporation asserted in a civil rights action that tribal sovereign immunity precluded a county district a ttorney from executing a search warrant and seizing casino employment records. At the outset the S upreme Court noted, “The United States [as amicus curiae] maintains, and the County does not dispute, that the Corporation is an ‘arm’ of the Tribe for sovereign immunity purposes.” The Court did not thereafter discuss the status of the gaming corporation as an arm of the tribe, resolving the case without deciding th e immunity issue. 7 However, opinions from a number of federal and state courts, including the California Supreme Court and this court in Ameriloan , have recognized the arm-of-the-tribe prong of th e tribal sovereign immunity doctrine and identified a range of factors to consider in determining whether a subordinate entity is sufficiently related to a tribe to be protec ted by tribal sovereign immunity. (See Agua Caliente Band of Cahuilla Indians v. Superior Court (2006) 40 Cal.4th 239, 247-248 [“‘immunity extends to entities th at are arms of the tribes,’” but “‘apparently does not cover tribally chartered corpor ations that are completely i ndependent of the tribe’”]; see generally Cohen’s Handbook of Federal Indian Law, supra , § 7.05[1][a] [a rm-of-the-tribe analysis “considers tribal in volvement in the creation and control of the entity, tribal intent to clothe the entity with immunity, and whether the entity serves tribal sovereign

7 The Court held only that the tribe di d not qualify as a “person” who could sue under title 42 United States Code section 1983 “to vindicate the sovereign right it here claims.” ( Inyo County v. Paiute-Shoshone Indi ans of Bishop Community of Bishop Colony, supra, 538 U.S. at p. 712.) Whether the action could be maintained under the “‘federal common law of Indian affairs’” wa s remanded for further consideration. ( Ibid .)15 interests such as economic development”]; Martin & Schwartz, The Alliance Between Payday Lenders and Tribes: Are Both Tribal Sovereignty and Consumer Protection at
Risk? (2012) 69 Wash. & Lee L.Rev. 751, 776 [ observing that “[c]ourts have articulated
numerous variations on the test for whether a tribal business enterpri se is entitled to the tribe’s immunity and identifying six “comm on factors” used in arm-of-the-tribe analysis].)
In Trudgeon v. Fantasy Springs Casino, supra , 71 Cal.App.4th 632 our colleagues
in Division Two of the Fourth District adopted a three-fact or analysis developed by the Supreme Court of Minnesota: “‘1) whether the business entity is organized for a purpose that is governmental in nature, rather than commercial; [¶] ‘2) whether the tribe and the business entity are closely linked in governmen t structure and other characteristics; and [¶] ‘3) whether federal policies intended to pr omote Indian tribal autonomy are furthered by the extension of immunity to the business entity.’” ( Id. at p. 638, quoting Gavle v. Little Six, Inc . (Minn. 1996) 555 N. W.2d 284, 294-295.) 8 Applying this test the court held sovereign immunity barre d plaintiff’s state court pers onal injury lawsuit against Cabazon Bingo, Inc., a corporation organized by the Cabazon Band of Mission Indians, a federally recognized Indian tribe, to operate a gaming a nd entertainment complex on
tribal land. 9

8 The Trudgeon court recognized whether the pu rpose of the tribal entity is governmental or commercial might no longer be germane after Kiowa . Nonetheless, the court explained: “[I]t is possible to imagine situations in which a tribal entity may engage in activities which are so far removed from tribal interests that it no longer can legitimately be seen as an exte nsion of the tribe itself. Such an entity arguab ly should not be immune, notwithstanding the fact it is organized and owned by the tribe.” ( Trudgeon v. Fantasy Springs Casino, supra , 71 Cal.App.4th at p. 639.)

9 The court suggested the claim could be pu rsued in a tribal court “which has civil jurisdiction over all disputes within reservati on boundaries” and presumed the tribal court “can and will fairly adjudicate the matter.” ( Trudgeon v. Fantasy Springs Casino, supra , 71 Cal.App.4th at p. 645.)16 In American Property, supra , 206 Cal.App.4th 491, a pane l of Division One of the Fourth District employed the se t of six factors set forth in the Tenth Circuit’s decision in Breakthrough Management Gr oup, Inc. v. Chukchansi Gold Casino & Resort (10th Cir. 2010) 629 F.3d 1173, 1181 , 1187-1188, for examining the relationship between a
subordinate economi c entity and the tribe: “‘(1) their method of creation; (2) their purpose; (3) their structure, ownership, and management, including the amount of control the tribe has over the entities; (4 ) whether the tribe intended fo r the entities to have tribal sovereign immunity; (5) the financial relati onship between the tribe and the entities; and (6) whether the purposes of tribal sovereign i mmunity are served by granting immunity to the entities.’” ( American Property, at p. 501.) Applying those factors, which it found “accurately reflect[ed] the general focus of th e applicable federal and state case law” ( ibid. ), but also quoting from several other deci sions considering the arm-of-the-tribe question including Trudgeon , the court held U.S. Grant, LLC, the owner of a historic hotel in downtown San Diego, was not an arm of the Sycuan Ba nd of the Kumeyaay Nation, a federally recognized Indian trib e, and thus not protected by the tribe’s sovereign immunity. The “dispositive fact” fo r the court was that U.S. Grant, LLC was a California limited liability company, separate d by several other layers of California limited liability companie s from the Sycuan Tribal Deve lopment Corporation (STDC), a corporation charter under Sycu an’s tribal laws. (See American Property , at pp. 495, 501, 505.) From the complex structure created to insulate STDC from a ny possible liability in connection with ownership of the hotel, th e court concluded “STDC was not primarily concerned about sovereign i mmunity with respect to th e entities that it created to facilitate its investment. . . .” ( Id . at p. 505.) The court expressly noted it was not expressing any view on whethe r STDC itself was protected by tribal sovereign immunity. ( Id. at p. 505, fn. 10.) The Colorado Supreme Court in Cash Advance and Prefe rred Loans v. Colorado
ex rel. Suthers (Colo. 2010) 242 P.3d 1099, after reviewing decisions from a number of federal courts of appeals, articulated its own variation of the arm-of-the-tribe analysis in17 considering the precise question presented by the case at bar: Are MNE, conducting a
short-term loan business under the trade na me Cash Advance, and SFS, conducting a
similar business under the trade name Preferre d Cash Loans, arms of the Miami Nation of Oklahoma and the Santee Sioux Nation, resp ectively, and therefore protected by the tribes’ sovereign immunity from state inves tigatory enforcement actions? Remanding the
matter to the trial court to re solve that question in the firs t instance, the Supreme Court identified three factors, “each of which focu ses on the relationship between the tribal entities and the tribes, to help guide the trial court’s determ ination whether the entities in this case [MNE and SFS] act as arms of th e tribes so that their activities are properly
deemed to be those of the tr ibes: (1) whether the tribes created the entities pursuant to tribal law; (2) whether the tribes own a nd operate the entities; and (3) whether the entities’ immunity protects th e tribes’ sovereignty.” ( Id . at p. 1110.)
3. The Law of the Case Doctrine Does No t Restrict the Factors Appropriately Considered in the Arm-of-the-Tribe Analysis Under the law of the case doctrine, “a matter adjudicated on a prior appeal normally will not be relitigated on a subse quent appeal in the same case.” ( Davies v.
Krasna (1975) 14 Cal. 3d 502, 507; People v. Barragan (2004) 32 Cal.4th 236, 246 [“when an appellate court ‘“states in its opini on a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout [the case’s] subseq uent progress, both in the lowe r court and upon subsequent appeal”’”].) The doctrine applies to decision s of intermediate appella te courts as well as courts of last resort ( People v. Murtishaw (2011) 51 Cal.4th 574, 589) and “even if the court that issued the opinion becomes convin ced in a subsequent consideration that the former opinion is erroneous.” ( Santa Clarita Organization for Planning the Environment v. County of Los Angeles (2007) 157 Cal.App.4th 149, 156; see Morohoshi v. Pacific
Home (2004) 34 Cal.4th 482, 491 [“‘it is only when the former rule is deemed erroneous
that the doctrine of law of the case becomes at all important’”].) The doctrine promotes finality by preventing relitigation of issues previously decided. ( George Arakelian18 Farms, Inc. v. Agricultu ral Labor Relations Bd. (1989) 49 Cal.3d 1279, 1291; see Searle v. Allstate Life Ins. Co. (1985) 38 Cal.3d 425, 434.)
In Ameriloan, supra , 169 Cal.App.4th 81 we he ld MNE and SFS’s motion to quash should be granted if the tribal entitie s and the lending busine sses they operate are sufficiently related to their re spective tribes to be protec ted by tribal immunity and specifically referred to the criteria expressed in Trudgeon v. Fantasy Springs Casino,

supra , 71 Cal.App.4th 632 for analyzing th e arm-of-the-tribe doctrine. ( Ameriloan , at p. 98.) 10 In urging us to reverse the trial c ourt’s order dismissing the case for lack of subject matter jurisdiction, the Commissioner an alyzes the evidence pr imarily in light of the six factors for evaluating the immunity question set forth in the Tenth Circuit’s
decision in Breakthrough Management Gr oup, Inc. v. Chukchansi Gold Casino & Resort,

supra, 629 F.3d 1173, as rest ated by Division One of the Fourth District in American Property, supra , 206 Cal.App.4th 491. In their re spondents’ brief MNE and SFS argue
the Commissioner’s reliance on American Property violates the law of the case doctrine, which, they assert, requires use of a “two-part test” 11 based on the analysis in Trudgeon to the exclusion of any other arm-of-the-tribe analysis. MNE and SFS misapprehend the import of our prior decision in Ameriloan . As discussed, in Ameriloan we mandated the trial court vacate its ruling that tribal sovereign immunity did not apply simply because MN E and SFS were conducting off-reservation,

10 We also cited Redding Rancheria v. Superi or Court, supra, 88 Cal.App.4th 384, a case that discusses the arm-of-the-tribe doctr ine and the factors identified as dispositive in Trudgeon : “ Trudgeon specifically held an Indian casino (a tribal corporation ) was entitled to immunity because of the importa nce of gaming in promoting tribal selfdetermination, the close link between the tribe and the casino, and the existence of federal law promoting Indian gambling.” ( Redding Rancheria , at p. 389.)

11 As discussed in footnote 8, above, Trudgeon identified three factors, not two, but questioned the continued significance of eval uating whether the purpose of the tribal entity is governmental or commercial. ( Trudgeon v. Fantasy Springs Casino, supra , 71 Cal.App.4th at p. 639.) In directing the trial court to consider the criteria expressed in Trudgeon , our Ameriloan opinion omitted any e xpress reference to that element of the arm-of-the-tribe analysis. (See Ameriloan, supra, 169 Cal.App.4th at p. 98.)19 for-profit commercial activities ( Ameriloan, supra , 169 Cal.App.4th at pp. 89-91). We also rejected the arguments th at application of tribal sove reign immunity in this case
would intrude on California’s exercise of its reserved powe rs under the Tenth Amendment ( id . at pp. 91-94) and tribal sovere ign immunity had been waived ( id. at pp. 94-96). Accordingly, under the law of th e case, as the trial court recognized when it revisited the motion to quash, the only qu estion remaining was whether MNE and SFS and the businesses they operate func tion as “arms of the tribe.” ( Id . at pp. 97-99.) Although we directed the trial court to consider the criteria expressed in Trudgeon in making that determination, nothing we said prohibited the trial court—or restricts this court in deciding the appeal now before us —from considering additional aspects of the relationship between the Miami Tribe of Ok lahoma and the Santee Sioux Nation, on the one hand, and MNE and SFS an d their payday loan businesses, on the other hand, in deciding the immunity issue. Regardless of how many nonexclusive and overlapping factors a court identifies, the relevant inqu iry is ultimately the sa me: Are the tribal entities sufficiently related to their respective tribes to be protected by tribal sovereign immunity? Ameriloan established the govern ing legal principle. It did not prescribe a precise analytic process to apply that princi ple to the facts develo ped at the evidentiary hearing we authorized.
4 . MNE and SFS Are Protected by Tr ibal Sovereign Immunity from the Commissioner’s Enforcement Action There can be little question that MNE and SFS, considered initially by themselves and without regard to the pa yday lending activities at issue in this enforcement action, function as arms of their respective tribes. In marked contrast to the situation considered
in American Property , supra , 206 Cal.App.4th 491, where th e dispositive fact was that U.S. Grant, LLC had been organized unde r California law and was separated from the STDC, an entity created under tribal law, by several other lawyers of California limited liability companies (see id . at pp. 495, 501, 505), MNE was created directly under the
Miami Tribe’s tribal law as a subordinate unit of the tribe itself to provide for its economic development. Also unlike the Sycuan Band’s rela tionship to U.S. Grant, LLC20 (see id . at p. 505), the Miami Tribe expressly in tended for MNE to be covered by tribal sovereign immunity. Like our colleagues in Division One of the Fourth District, we believe the tribe’s method and purpose for creating a subordinate economic entity are the most significant factors in determining whet her it is protected by a tribe’s sovereign immunity and should be given predominant, if not necessarily dispositive, consideration. (See American Property, at p. 501 [quoting a number of court decisions that “have considered creation of an entity under tribal law as a fact or weighing significantly in favor of a conclusion that the entity shar es in the tribe’s s overeign immunity”].) 12 Other elements of the various tests appearin g in the case law also support the trial court’s arm-of-the-tribe conclusion as app lied to MNE. As discussed, MNE’s initial
board of directors consisted of the Miami Tribe’s business committee, and the chief of the tribe has appointed all successor members of the MNE board in consultation with the business committee; all five members of the board are members of the Miami Tribe. Profits earned by MNE are utilized by the Mi ami Tribe to fund critical governmental
services to its members includi ng tribal law enforcement, poverty assistance, preschool and elder care programs. In addition, any trib al funds and other resources used to create, capitalize and operate MNE are nece ssarily at risk in its busine ss operations. That tribal assets might not be directly jeopardized if MN E were allowed to be sued does not appear to be significant since the very purpose of cr eating any subordinate co rporate entity is to create the opportunity for eco nomic gain while protectin g the tribe from potential liabilities; in the absence of a tribal guara ntee, a judgment against a corporation will never impact a tribal treasury. (Cf. Cook v. AVI Casino Enterprises, Inc., supra, 548 F.3d at p. 725 [tribal corporation “competing in the economic mainstream” protected by tribal immunity if it functions as an arm of the tribe; he re, economic benefits produced by tribal

12 Identifying the weight to be given the various factors in the arm-of-the-tribe analysis is important; for, as Judge Frank H. Easterbrook of the Seventh Circuit Court of Appeals colorfully observed in a far different c ontext, a “list of factors without a rule of decision is just a chopped salad.” ( In re Synthroid Marketing Litigation (7th Cir. 2001) 264 F.3d 712, 719.)21 corporation inure to the tribe’s benefit becau se “all capital surplus from the casino shall be deposited in the Tribe’s treasury and because the Tribe, as the sole shareholder, enjoys
all of the benefits of an in crease in the casino’s value”]; Memphis Biofuels v. Chickasaw
Nation Industries Inc. (6th Cir. 2009) 585 F.3d 917, 9 20-921 [section 17 of the Indian Reorganization Act of 1934, 25 U.S.C. § 477, authorizing incorporation of a federally chartered tribe’s business activities, “creates ‘a rms of the tribe’ that do not automatically forfeit tribal-sovereign immunity”]; but see American Property, supra , 206 Cal.App.4th at p. 506 [“due to U.S. Grant, LLC’s status as a California limited liability company, the Sycuan tribe’s assets would not be exposed by any judgment against U.S. Grant, LLC”].) In sum, the Miami Tribe of Oklahoma and MNE are closely linked through method of creation, ownership, structure, control and ot her salient characteristics; and, although the operations of MNE are commercial rather th an governmental—itself an essentially
neutral consideration after Kiowa —extension of immunity to it plainly furthers federal policies intended to promote tribal autonomy. (See Ameriloan, supra , 169 Cal.App.4th at p. 98; Trudgeon v. Fantasy Springs Casino, supra , 71 Cal.App.4th at p. 638.) As with MNE, and again unlike the Calif ornia limited liability company evaluated
in American Property , SFS is a wholly owned corporati on organized under tribal law and expressly protected from suit by the tribe’s i mmunity. Pursuant to SFS’s articles of incorporation, its board of di rectors consists of the member s of the Tribal Council, who manage SFS; and the Tribal Council appointe d the tribe’s business manager as the chief executive officer of SFS. All profits earned by SFS are used by the Santee Sioux to help fund its government operations and social welfare programs, furthering the tribe’s sovereign interest in economic development. Indeed, the ev idence before the trial court was, because the reservation is in a severely depressed region, those profits are essential to maintaining a functioning tribal government able to provide necessa ry services to the tribe’s members. Thus, the Santee Sioux an d SFS are also closely linked by virtue of SFS’s method of creation, owners hip, structure and control, a nd extension of immunity to it substantially promotes tribal autonomy.22 Although the tribes own and control MNE a nd SFS, their relationship to the cash advance and short-term loan businesses ope rated by those tribal entities under various trade names—Ameriloan, US Fast Cash, Un ited Cash Loans, One Click Cash and Preferred Cash Loans—is slightly more co mplicated. According to the Commissioner’s evidence at the hearing on the motion to quash, those name s had been registered and used to market payday lending services by Sco tt Tucker and/or his company NMS (or its predecessors) for several years prior to the entry of MNE and SFS into the short-term loan business in July 2008. More significantly, day-to-d ay operations of these fast-cash
businesses—what the trial court referre d to as “business minutiae”—have been effectively delegated pursuant to manageme nt agreements to NMS, a third-party, nontribal entity. Additionally, MNE and SFS do not particip ate in the net income from the businesses, receiving instead only a mode st percentage of the gross revenues, characterized by the Commissioner as similar to a r oyalty. Thus, the Commissioner asserts in the opening brief, “The management agreements and bank records demonstrate that SFS and MNE, doing business as the Payda y Lenders, are simply revenue-producing
businesses created to facilitate Tucker’s ordi nary for-profit payday lending business for a set fee”—disparagingly denominated as a “sham,” “rent-a-tribe” scheme by the
Commissioner. Yet the Commissioner necessarily concedes, as the evidence demonstrated, under the management agreements MNE and SFS have final decisionmaking authority to approve or disapprove any loans; advance instructions or approval parameters are established by them to allow the third-part y managers to functio n on a quick-turnaround basis. Indeed, the agreements expressly provi de that the tribal entities have “the sole proprietary interest in and re sponsibility for the conduct of the business” and that NMS’s day-to-day management of the operations is “subject to the oversight and control of” MNE and SFS, respectively. In other words, MNE and SFS are not merely passive bystanders to the challenged lending activities. A tribal entity engaged in a commercial enterprise that is otherwise23 entitled to be protected by tribal immunity does not lose that immunity simply by contracting with non-tribal members to operate the business. (See, e.g., Native American Distrib. v. Seneca-Cayuga Tobacco (10th Cir. 2008) 546 F.3d 1288, 1294 [recognizing tribal immunity protected tobacco busine ss of Seneca-Cayuga Tr ibe of Oklahoma from suit by third-party distributor notwithstanding lim ited waiver of that immunity in separate agreement with management company en gaged to operate tribal business]; Cabazon Band of Mission Indians v. County of Riverside (9th Cir. 1986) 783 F. 2d 900, 901, affd.
sub nom

. California v. Cabazon Band of Mission Indians (1987) 480 U.S. 202 [107 S.Ct. 1083, 94 L.Ed.2d 244] [noting with approv al the tribal busine ss was “operated by nonIndian professional operators, who receive a percentage of the profits”]; but cf. American Property, supra , 206 Cal.App.4th at p. 505 [designation of a nontribal entity to manage business created under state law, rather than tribal law, is a further indication that the
business should not be considered an arm of the tribe for the purpose of sovereign immunity].) 13 Similarly, whether or not the Miam i Tribe and the Santee Sioux negotiated good or poor management agreements for themselves—whether a share of net profits
would be more beneficial under the circumst ances than a percentage of gross revenues and whether they could have insisted on a higher percentage than they actually received—even if not minutiae, cannot serve as the basis to determ ine the tribal entities are not functioning as arms of their respective tribes. The recurring theme of the Commissioner’s briefing and oral argument is that online payday lenders engage in egregious, deceptive and ex ploitive practices prohibited by California law. That leitmotif is reinfo rced by the assertion MNE and SFS’s business
activities also violate tribal laws and their own organizational documents with respect to

13 In part in response to California v Cabazo n Band of Missi on Indians, supra, 480 U.S. 202, which held California lack ed authority to re gulate bingo gambling conducted by Indian tribes on Indian land with in the state, Congress enacted the Indian Gaming Act of 1988 (IGRA) “to provide a stat utory basis for the op eration and regulation of gaming by Indian tribes.” ( Seminole Tribe of Florida v. Florida (1996) 517 U.S. 44, 48 [116 S.Ct. 1114, 134 L.Ed.2d 252].) IGRA creates a cooperative federal-state-tribal scheme for regulation of gaming by federally recognized Indian tribes on Indian land.24 interest rates as well as control of bank accounts and commingling of funds. Repeated
commercial conduct the tribal entities concede violates trib al law or that is shown by uncontroverted evidence to be prohibited by the tribes as a matter of law may well be a factor properly considered in determining wh ether the entities are functioning as arms of the tribe. (Cf. Flatley v. Mauro (2006) 39 Cal.4th 299, 316.) But the record here is far from undisputed, and it would offe nd all notions of tribal sove reignty for a state court to adjudicate whether MNE or SFS is violating tribal law. Moreover, as we explained in Ameriloan, supra , 169 Cal.App.4th at pa ge 93, although we reco gnize the public policy considerations supporting the Commissioner’s efforts to protec t poor and poorly educated consumers, “‘“sovereign immunity is not a di scretionary doctrine that may be applied as a remedy depending on the equities of a given situation . . . .” Rather it presents a pure jurisdictional question.’” 14 In the end, tribal immunity does not depe nd on our evaluation of the respectability
or ethics of the business in which a tribe or tribal entity elects to engage. Absent an extraordinary set of circumstances not present here, a tribal entity functions as an arm of
the tribe if it has been formed by tribal resolution and acco rding to tribal law, for the stated purpose of tribal economic developmen t and with the clearly expressed intent by the sovereign tribe to convey its immunity to that entity , and has a governing structure both appointed by and ultimately overseen by the tribe. Such a tribal entity is immune from suit absent express waiver or congressi onal authorization. Neither third-party management of day-to-day operations nor rete ntion of only a minimal percentage of the

14 Recognizing that online payday lending businesses owned and operated by tribal entities are likely to be found i mmune to enforcement actions by state authorities, several commentators have proposed fede ral legislation to regulate the industry. (See, e.g., Note, Usury on the Reservation: Regulati on of Tribal-affiliate d Payday Lenders (2011-2012) 31 Banking & Fin. L.Rev. 1053, 1071-1077; Martin & Schwartz, The Alliance Between Payday Lenders and Tribes, supra, 69 Wash. & Lee L.Rev. at pp. 790-791; Comment, Circumventing State Consumer Protection Laws : Tribal Immunity and Internet Payday Lending (2012) 91 N.C. L. Rev. 326, 342.)25 profits from the enterprise (however that may be defined) justifies judicial negation of that inherent element of tribal sovereignty.
DISPOSITION The judgment is affirmed. MNE and SF S are to recover their costs on appeal.

PERLUSS, P. J.

We concur:

WOODS, J.

ZELON, J.