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*********************************************** 
GREAT PLAINS LENDING, LLC, ET AL. v.

DEPARTMENT OF BANKING ET AL.

(SC 20340)

Robinson, C. J., and Mullins, Kahn, Ecker, Keller and Vertefeuille, Js.

Syllabus

The plaintiffs, G Co., C Co., and S, appealed to the trial court from the

decision of the defendant Commissioner of Banking, who ordered the

plaintiffs to cease and desist and to pay certain civil penalties in connection with the commissioner’s determination that G Co. and C Co. had

violated Connecticut’s banking and usury laws by making consumer

loans to Connecticut residents without a license to do so. G Co. and C.

Co. were created pursuant to the laws of a federally recognized Indian

tribe, of which S is the chairman. S is also the secretary and treasurer

of both G Co. and C Co. The plaintiffs had moved to dismiss the administrative proceedings initiated by the defendant Department of Banking,

claiming that G Co. and C Co. were entitled to tribal sovereign immunity

as arms of the tribe and that S shared in that immunity because his

actions were undertaken on behalf of those entities in his official capacity. The commissioner denied the plaintiffs’ motion to dismiss, concluding that, because G Co. and C Co. had failed to demonstrate that they

were arms of the tribe, neither they nor S was entitled to tribal sovereign

immunity. After the commissioner issued final orders requiring, inter

alia, the plaintiffs to cease and desist from violating Connecticut law

in connection with their lending activities and S to pay a civil penalty,

the plaintiffs appealed to the trial court. The trial court determined that

G Co. and C Co. bore the burden of proving that they were arms of the

tribe entitled to tribal sovereign immunity, but the court disagreed with

the test the commissioner used to determine whether a business entity

should be considered an arm of an Indian tribe. Specifically, the test

the commissioner had applied focused on the financial relationship

between the tribe and the business entity. Instead, the trial court

employed a multifactor test that considered not only the legal or organizational relationship between the tribe and the entity but also the functional aspects of the entity’s financial relationship with the tribe and

the entity’s stated purpose. Under that functional test, the court determined that, although the evidence was sufficient for G Co. and C Co.

to meet most of the various factors, the plaintiffs failed to show how

the entities actually functioned in relation to their stated purpose. The

court also concluded that the viability of the claims against S depended

on whether G Co. and C Co. were arms of the tribe. Accordingly, the

court rendered judgment sustaining the appeal and remanding the case

to the commissioner for further proceedings to consider whether G Co.

and C Co. satisfied the functional test. Thereafter, the plaintiffs appealed

and the defendants cross appealed. Held:

1. The trial court correctly determined that G Co. and C Co. bore the burden

of proving, by a preponderance of the evidence, that they were entitled

to tribal sovereign immunity as arms of the tribe; allocating the burden

of proof to the entity claiming immunity was consistent with the decisions of state and federal courts in arm of the tribe cases, as well as

the standard employed by this court with respect to whether a corporate

entity is entitled to assert a sovereign immunity defense as an arm of

the state, and the entity claiming arm of the tribe status likely will have

the best access to the evidence needed to assume that burden of proof.

2. The trial court applied an improper test for determining whether an entity

is entitled to sovereign immunity as an arm of the tribe by requiring

proof of how the entities functioned in relation to their stated purpose

and incorrectly determined that further proceedings were required to

determine whether G Co. was an arm of the tribe: this court concluded

that whether an entity shares a tribe’s sovereign immunity as an arm

of the tribe is a determination to be made in light of the federal laws

and policies underlying tribal sovereign immunity and in view of five

specific factors, namely, the method of the entity’s creation, the purpose

of the entity, the structure, ownership and management of the entity,
including the amount of control the tribe has over it, the tribe’s intent

with respect to sharing its sovereign immunity, and the financial relationship between the tribe and the entity; in the present case, all five factors

supported the determination that G Co. was entitled, as a matter of law,

to share in the tribe’s sovereign immunity as an arm of the tribe, as the

record demonstrated that G Co. was created under tribal law and was

controlled by directors appointed by the tribe’s governing council for

the purpose of promoting tribal economic development and welfare,

and there was a significant financial relationship between the tribe and

G Co. such that withholding immunity would interfere with the tribe’s

self-governance and economic development; moreover, the minimal evidence in the record, consisting only of a certificate of license, the tribal

resolution creating C Co., and certain conclusory statements contained

in the affidavit of the tribe’s vice chairman about the purpose and

structure of C Co., was insufficient to conclude that C Co. was an arm

of the tribe entitled to share in its sovereign immunity, and, accordingly

the trial court correctly concluded that further proceedings were necessary to determine whether C Co. was an arm of the tribe.

3. The trial court correctly determined that S was immune from the civil

penalty imposed on him but was not immune from the order of prospective injunctive relief in connection with his actions as an official of G Co.:

tribal officials are entitled to an extension of tribal sovereign immunity

if the tribe, rather than the individual officer, is the real party in interest

and if the tribal official acted within the scope of his authority; in the

present case, the department sought relief from S only nominally because

of his policy-making role as a high ranking officer of the tribe and the

entities, rather than as a result of his personal actions taken within the

scope of his official capacity, and made only a conclusory and nominal

allegation without referring to any specific actions taken by S, such that

it was apparent that the tribe, rather than S, was the real party in interest

and that S’s actions were entirely within the scope of executing his

duties as an officer of the tribe, G Co., and C Co., and, in the absence

of any allegation that S acted beyond the scope of his authority, he

was immune from the civil penalty imposed on him; moreover, tribal

sovereign immunity does not extend to injunctive relief against tribal

officers responsible for violating state law, and, therefore, S was not

immune from the order enjoining him from violating Connecticut banking and usury laws.

Argued October 21, 2020—officially released May 20, 2021*

Procedural History

Appeal from the decision of the named defendant

ordering the plaintiffs to cease and desist and to pay

certain civil penalties and finding that the plaintiffs are

not entitled to tribal sovereign immunity, brought to

the Superior Court in the judicial district of New Britain,

where the court, Hon. Joseph M. Shortall, judge trial

referee, denied the defendants’ motion to dismiss; thereafter, the case was tried to the court, Hon. Joseph M.

Shortall, judge trial referee, who, exercising the powers

of the Superior Court, rendered judgment vacating the

orders of the named defendant that imposed certain

financial penalties on the plaintiffs and remanding the

case to the named defendant to hold an evidentiary

hearing to reconsider the issue of whether the plaintiffs

are entitled to tribal sovereign immunity, from which

the plaintiffs appealed and the defendants cross

appealed. Reversed in part; judgment directed in part;

further proceedings.

Robert A. Rosette, pro hac vice, with whom were

Linda L. Morkan and, on the brief, Jeffrey J. White

and Saba Bazzazieh, pro hac vice, for the appellantsappellees (plaintiffs).
Clare E. Kindall, solicitor general, with whom were

John Langmaid, Joseph J. Chambers and Robert J.

Deichert, assistant attorneys general, and, on the brief,

William Tong, attorney general, for the appellees-appellants (defendants).
Opinion

ROBINSON, C. J. This appeal presents three significant issues of first impression with respect to whether

a business entity shares an Indian tribe’s sovereign

immunity as an ‘‘arm of the tribe,’’ as we consider (1)

which party bears the burden of proving the entity’s

status as an arm of the tribe, (2) the legal standard

governing that inquiry, and (3) the extent to which a

tribal officer shares in that immunity for his or her

actions in connection with the business entity. The

plaintiffs, Great Plains Lending, LLC (Great Plains),

American Web Loan, Inc., doing business as Clear Creek

Lending (Clear Creek) (collectively, entities), and John

R. Shotton, chairman of the Otoe-Missouria Tribe of

Indians (tribe), a federally recognized tribe, appeal1

from the judgment of the trial court sustaining their

administrative appeal and remanding this case to the

defendant Commissioner of Banking (commissioner)

for further proceedings with respect to the plaintiffs’

entitlement to tribal sovereign immunity in administrative proceedings. On appeal, the plaintiffs claim that

the trial court should have rendered judgment in their

favor as a matter of law, insofar as it improperly (1)

allocated the burden of proving entitlement to tribal

sovereign immunity to the plaintiffs, (2) required proof

of a functioning relationship between the entities and

the tribe, and (3) failed to find Shotton immune in further administrative proceedings. The defendants, the

commissioner and the Department of Banking (department), cross appeal and similarly challenge the legal

standard adopted by the trial court and its decision to

remand the case for further administrative proceedings.

We conclude that the entity claiming arm of the tribe

status bears the burden of proving its entitlement to

that status under the test articulated by the United

States Court of Appeals for the Tenth Circuit in Breakthrough Management Group, Inc. v. Chukchansi Gold

Casino & Resort, 629 F.3d 1173, 1187 (10th Cir. 2010)

(Breakthrough), cert. dismissed, 564 U.S. 1061, 132 S.

Ct. 64, 180 L. Ed. 2d 932 (2011). We further conclude,

as a matter of law, that Great Plains is an arm of the

tribe and that Shotton, with respect to his capacity as

an officer of Great Plains and the tribe, is entitled to

tribal sovereign immunity from civil penalties but not

injunctive relief. We also conclude, however, that there

is insufficient evidence to support a conclusion that

Clear Creek is an arm of the tribe as a matter of law,

which requires a remand to the commissioner for further administrative proceedings. Accordingly, we

reverse in part the judgment of the trial court.

The record reveals the following undisputed facts

and procedural history. The tribe adopted the constitution of the Otoe-Missouria Tribe of Indians on February

4, 1984. In accordance with article IV, § 1, of the tribe’s

constitution, the Tribal Council (council) adopted the
Otoe-Missouria Tribe of Indians Limited Liability Company Act (LLC Act) and the Otoe-Missouria Tribe of

Indians Corporation Act (Corporation Act) on May 4,

2011. Acting pursuant to the LLC Act, the council passed

a resolution creating Great Plains on May 4, 2011. American Web Loan, Inc., was created in accordance with

the Corporation Act on February 10, 2010, and did business as Clear Creek. Shotton, as chairman of the tribe,

served as secretary and treasurer of both entities.

Following an investigation by the department, the

commissioner found that the entities had violated Connecticut’s banking and usury laws by making small consumer loans to Connecticut residents via the Internet

without a license to do so. The commissioner also found

that the interest rates on these loans exceeded those

permitted under Connecticut’s usury and banking laws.

On October 24, 2014, the commissioner issued temporary cease and desist orders to the plaintiffs, orders

that restitution be made to the Connecticut residents,

and a notice of intent to issue permanent cease and

desist orders, as well as to impose civil penalties. The

plaintiffs timely filed a motion to dismiss the administrative proceedings for a lack of jurisdiction, asserting that

(1) the entities are arms of the tribe entitled to tribal

sovereign immunity, and (2) Shotton’s involvement in

the affairs of the entities was within his official capacity,

entitling him to tribal sovereign immunity, as well. On

January 6, 2015, the commissioner denied the motion

to dismiss, concluding that the administrative action of

the department was not a ‘‘suit’’ from which the plaintiffs enjoyed tribal sovereign immunity.

The plaintiffs filed an administrative appeal from the

denial of the motion to dismiss in the trial court pursuant to the Uniform Administrative Procedure Act. See

General Statutes § 4-183. The trial court, Schuman, J.,

determined that ‘‘the better conclusion is that the tribe

possesses sovereign immunity in [an] . . . administrative proceeding filed against [it] by a state commissioner.’’ The court then remanded the case to the commissioner pursuant to § 4-183 (k) in order to determine

whether (1) the entities are ‘‘arms of the tribe’’ entitled

to tribal sovereign immunity, and (2) Shotton, as a tribal

official, shares in that immunity.

After remand, on June 14, 2017, the commissioner

again denied the plaintiffs’ motion to dismiss the administrative proceedings, concluding that the entities had

failed to demonstrate they were arms of the tribe

because ‘‘Clear Creek simply did not submit any relevant evidence, and Great Plains failed to demonstrate

that its relationship with the tribe is meaningful enough

[for it] to be considered an arm of the tribe.’’ Because

the commissioner found that the entities were not arms

of the tribe, the commissioner further concluded that

Shotton was not entitled to tribal sovereign immunity.

The commissioner thereafter issued final orders requir-
ing the plaintiffs (1) to ‘‘cease and desist from violating

two specified sections of part III of chapter 668 of the

General Statutes relating to ‘small loan lending and

related activities,’ ’’2 and (2) to ‘‘pay civil penalties to

the department in the following amounts: Great Plains,

$700,000; Clear Creek, $100,000; [Shotton], $700,000.’’

Pursuant to § 4-183 (a), the plaintiffs appealed from

the commissioner’s final orders to the trial court. The

trial court, Hon. Joseph M. Shortall, judge trial referee,3

first determined that the entities bore the burden of

demonstrating that they were arms of the tribe entitled

to tribal sovereign immunity. In so concluding, the court

employed the analysis from Rocky Hill v. SecureCare

Realty, LLC, 315 Conn. 265, 105 A.3d 857 (2015), with

respect to corporate entities that claim state sovereign

immunity from suit as an ‘‘arm of the state . . . .’’

(Internal quotation marks omitted.) Id., 279. The court

then determined that the commissioner improperly

relied on the finance oriented test outlined in Sue/Perior

Concrete & Paving, Inc. v. Lewiston Golf Course Corp.,

24 N.Y.3d 538, 546–47, 25 N.E.3d 928, 2 N.Y.S.3d 15

(2014) (Sue/Perior), in finding that the entities were

not arms of the tribe. Instead, the trial court deemed

the multifactor test articulated in People ex rel. Owen

v. Miami Nation Enterprises, 2 Cal. 5th 222, 236, 386

P.3d 357, 211 Cal. Rptr. 3d 837 (2016) (Miami Nation),

to be the proper legal standard. Upon review of the

record, the court concluded that, although the evidence

presented by the plaintiffs was sufficient to meet most

of the factors outlined in Miami Nation, it nevertheless

was not sufficient to establish the entities’ ultimate

status as arms of the tribe because the plaintiffs had

failed to show how the entities actually functioned in

relation to their stated purpose.4 The court further concluded that Shotton’s liability ‘‘rises and falls with . . .

whether [the entities] are arms of the tribe . . . .’’

Therefore, the trial court rendered judgment sustaining

the appeal and remanded the case to the commissioner

pursuant to § 4-183 (j) in order for the plaintiffs to

‘‘submit evidence addressing these practical considerations to support their claim of tribal sovereign immunity.’’ This appeal and cross appeal followed.5

On appeal, the plaintiffs claim that the trial court

improperly (1) allocated to the entities the burden of

proving entitlement to tribal sovereign immunity, (2)

applied the tribal sovereign immunity test outlined in

Miami Nation, (3) failed to deem Shotton entitled to

tribal sovereign immunity, and (4) remanded the case

to the commissioner rather than concluding that they

were entitled to tribal sovereign immunity as a matter

of law. In their cross appeal, the defendants argue that

the trial court improperly (1) rejected the Sue/Perior

test used by the commissioner, (2) found that the viability of the department’s claims against Shotton depended

on whether the entities were arms of the tribe, and (3)

remanded the case to the commissioner for further
proceedings. We address each claim in turn, setting

forth additional relevant facts and procedural history

as necessary.

I

Before we consider the parties’ claims in detail, we

note the following general principles concerning the law

of tribal sovereign immunity. A claim of tribal sovereign

immunity ‘‘implicates subject matter jurisdiction and is

therefore a basis for granting a motion to dismiss. . . .

A determination regarding a trial court’s subject matter

jurisdiction is a question of law.’’ (Internal quotation

marks omitted.) Lewis v. Clarke, 320 Conn. 706, 710,

135 A.3d 677 (2016), rev’d on other grounds, U.S.

, 137 S. Ct. 1285, 197 L. Ed. 2d 631 (2017). Accordingly, ‘‘[o]ur review of the court’s ultimate legal conclusion[s] and resulting [determination] of the motion to

dismiss will be de novo.’’ (Internal quotation marks

omitted.) Gold v. Rowland, 296 Conn. 186, 200, 994 A.2d

106 (2010).

Our analysis is guided by core federal Indian law

principles that are well established by the decisions of

the United States Supreme Court. ‘‘Indian tribes are

distinct, independent political communities, retaining

their original natural rights in matters of local selfgovernment. . . . Although no longer possessed of the

full attributes of sovereignty, they remain a separate

people, with the power of regulating their internal and

social relations.’’ (Citations omitted; internal quotation

marks omitted.) Santa Clara Pueblo v. Martinez, 436

U.S. 49, 55, 98 S. Ct. 1670, 56 L. Ed. 2d 106 (1978).

‘‘Indian tribes are ‘domestic dependent nations’ that

exercise inherent sovereign authority over their members and territories.’’ Oklahoma Tax Commission v.

Citizen Band Potawatomi Indian Tribe, 498 U.S. 505,

509, 111 S. Ct. 905, 112 L. Ed. 2d 1112 (1991), quoting

Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17, 8 L.

Ed. 25 (1831). Given tribes’ sovereign status, they possess ‘‘common-law immunity from suit traditionally

enjoyed by sovereign powers.’’ Santa Clara Pueblo v.

Martinez, supra, 58. Such immunity extends to administrative agency actions. See, e.g., Cash Advance & Preferred Cash Loans v. State ex rel. Suthers, 242 P.3d 1099,

1104 (Colo. 2010) (‘‘tribal sovereign immunity applies to

state investigatory enforcement actions’’). Tribes retain

tribal sovereign immunity unless it is abrogated by Congress or waived by the tribe. See, e.g., Michigan v. Bay

Mills Indian Community, 572 U.S. 782, 788, 134 S. Ct.

2024, 188 L. Ed. 2d 1071 (2014) (Bay Mills); Kiowa

Tribe v. Mfg. Technologies, Inc., 523 U.S. 751, 754, 118

S. Ct. 1700, 140 L. Ed. 2d 981 (1998).

Tribal sovereign immunity applies to tribal activities

that occur both inside and outside of ‘‘Indian country.’’6

See, e.g., Michigan v. Bay Mills Indian Community,

supra, 572 U.S. 790; Bassett v. Mashantucket Pequot

Tribe, 204 F.3d 343, 357 (2d Cir. 2000). Regardless of
where the tribal activity takes place, tribal sovereign

immunity applies in civil or administrative actions seeking damages or injunctive relief with respect to both

the commercial and governmental conduct of the tribe.

See Kiowa Tribe v. Mfg. Technologies, Inc., supra, 523

U.S. 760; Imperial Granite Co. v. Pala Band of Mission

Indians, 940 F.2d 1269, 1271 (9th Cir. 1991); Cohen’s

Handbook of Federal Indian Law (N. Newton et al. eds.,

2012) § 7.05 [1] [a], p. 637.

In the present case, it is undisputed that the tribe

itself is entitled to tribal sovereign immunity. The disputed issue is whether the plaintiffs are entitled to share

in that immunity under the doctrine that extends tribal

sovereign immunity to business entities or enterprises

that act as arms of the tribe. See, e.g., New York v.

Golden Feather Smoke Shop, Inc., Docket No. 08-CV3966 (CBA), 2009 WL 705815, *5 (E.D.N.Y. March 16,

2009); People ex rel. Owen v. Miami Nation Enterprises, supra, 2 Cal. 5th 250. Whether a business entity

is an arm of the tribe entitled to share in tribal sovereign

immunity depends not on ‘‘whether the activity may be

characterized as a business . . . but [on] whether the

entity acts as an arm of the tribe so that its activities

are properly deemed to be those of the tribe.’’ Allen v.

Gold Country Casino, 464 F.3d 1044, 1046 (9th Cir.

2006), cert. denied, 549 U.S. 1231, 127 S. Ct. 1307, 167 L.

Ed. 2d 119 (2007). Although the United States Supreme

Court has recognized that wholly owned tribal corporations may be considered arms of the tribe, that court

has not yet articulated a framework for how to make

such a determination. See Williams v. Big Picture

Loans, LLC, 929 F.3d 170, 176 (4th Cir. 2019), citing

Inyo County v. Paiute-Shoshone Indians of the Bishop

Community of the Bishop Colony, 538 U.S. 701, 704,

705 n.1, 123 S. Ct. 1887, 155 L. Ed. 2d 933 (2003).

Determining the proper framework for the arm of the

tribe inquiry is similarly an issue of first impression in

Connecticut and is the central issue in this appeal.

II

As an initial matter, the parties dispute the proper

allocation of the burden of proof in the arm of the tribe

analysis. The plaintiffs rely on the Colorado Supreme

Court’s decision in Cash Advance & Preferred Cash

Loans v. State ex rel. Suthers, supra, 242 P.3d 1099,

and contend that the trial court improperly relied on

our decision in Rocky Hill v. SecureCare Realty, LLC,

supra, 315 Conn. 265, for the proposition that the ‘‘burden of proving by a preponderance of the evidence

that [the tribal entities] are entitled to tribal sovereign

immunity, i.e., the risk of nonpersuasion, is on the [entities], just as it is on corporate entities that claim entitlement to the state’s sovereign immunity from suit as

‘arms of the state.’ ’’ In response, the defendants argue

that the trial court correctly relied on arm of the state

analyses, such as that in SecureCare Realty, LLC, in
concluding that the entities bore the burden of proving

their arm of the tribe status. We agree with the defendants and conclude that the entity claiming arm of the

tribe status bears the burden of proving its entitlement

to that status.

Several state and federal courts have addressed the

burden of proof when determining arm of the tribe

status, and, like the trial court in the present case, they

have relied on arm of the state analyses in allocating

the burden of proof to the entity. See, e.g., Williams v.

Big Picture Loans, LLC, supra, 929 F.3d 176; People ex

rel. Owen v. Miami Nation Enterprises, supra, 2 Cal.

5th 240–44. Those courts have consistently concluded

that, although a tribe itself does not bear the ultimate

burden of proving tribal sovereign immunity, an entity

claiming to be an arm of that tribe bears the burden of

demonstrating the existence of that relationship and the

entity’s ultimate entitlement to share in tribal sovereign

immunity. See Williams v. Big Picture Loans, LLC,

supra, 177 (‘‘Unlike the tribe itself, an entity should

not be given a presumption of immunity until it has

demonstrated that it is in fact an extension of the tribe.

Once [an entity] has done so, the burden to prove that

immunity has been abrogated or waived would then fall

to the plaintiff.’’); Gristede’s Foods, Inc. v. Unkechuage

Nation, 660 F. Supp. 2d 442, 466 (E.D.N.Y. 2009) (‘‘the

burden of proof for an entity asserting immunity as an

arm of a sovereign tribe is on the entity to establish

that it is, in fact, an arm of the tribe’’); People ex rel.

Owen v. Miami Nation Enterprises, supra, 236 (‘‘an

entity asserting immunity bears the burden of showing

by a preponderance of the evidence that it is an ‘arm

of the tribe’ entitled to tribal immunity’’). Put differently,

once the entity proves by a preponderance of the evidence that it is an arm of the tribe, the burden shifts

back to the party seeking to overcome tribal sovereign

immunity to prove that such immunity has been waived

or abrogated as a matter of law.7 See Williams v. Big

Picture Loans, LLC, supra, 176–77; Breakthrough Management Group, Inc. v. Chukchansi Gold Casino &

Resort, supra, 629 F.3d 1196 and n.17; Gristede’s Foods,

Inc. v. Unkechuage Nation, supra, 465; Cash Advance &

Preferred Cash Loans v. State ex rel. Suthers, supra,

242 P.3d 1113–14.

We disagree with the plaintiffs’ argument that placing

the burden of proving arm of the tribe status on the

business entity encroaches on tribal sovereignty. An

otherwise private entity seeking the benefit of tribal

sovereign immunity is distinct from the tribe itself, especially because tribal sovereign immunity ‘‘is a strong

tonic . . . .’’ People ex rel. Owen v. Miami Nation

Enterprises, supra, 2 Cal. 5th 244. Furthermore, consistent with the arm of the state analysis discussed in

decisions such as Rocky Hill v. SecureCare Realty, LLC,

supra, 315 Conn. 279,8 placing the burden of proof on

the entity claiming entitlement to tribal sovereign immu-
nity as an arm of the tribe is appropriate because, pragmatically, the entity claiming such immunity will have

the best access to the evidence necessary to prove the

existence of that relationship. See Williams v. Big Picture Loans, LLC, supra, 929 F.3d 177 (‘‘as a practical

matter, it makes sense to place the burden on [business

entities] . . . as they will likely have the best access to

the evidence needed to demonstrate immunity’’); New

York v. Golden Feather Smoke Shop, Inc., supra, 2009

WL 705815, *4 (‘‘the issue of whether an entity is an

arm of the tribe may rest on nuances in the entity’s

ownership and control structure, corporate purpose,

and relationship with the tribal government’’). Having

determined that the entities bear the burden of demonstrating they are arms of the tribe, we next turn to

the appropriate legal standard for determining whether

they are arms of the tribe.

III

A

With respect to the standard that guides the arm of

the tribe analysis, the plaintiffs argue that the trial court

properly rejected the nine factor test articulated in Sue/

Perior Concrete & Paving, Inc. v. Lewiston Golf Course

Corp., supra, 24 N.Y.3d 546–47, but nevertheless

improperly adopted the test outlined in People ex rel.

Owen v. Miami Nation Enterprises, supra, 2 Cal. 5th

246–47. Instead, the plaintiffs assert that the trial court

should have relied on the Breakthrough test; see Breakthrough Management Group, Inc. v. Chukchansi Gold

Casino & Resort, supra, 629 F.3d 1187; to determine

whether they are entitled to arm of the tribe status.

In response, the defendants argue that the trial court

improperly rejected the Sue/Perior test on which the

commissioner relied, and, alternatively, that the trial

court correctly applied the five factor test focusing on

the function of the relationship between the entity and

the tribe, as set forth in Miami Nation, in determining

that the entities are not arms of the tribe. We agree

with the plaintiffs and conclude that the Breakthrough

test governs the arm of the tribe inquiry.

A series of federal and state cases have attempted

to outline an approach to determining whether an entity

is an arm of the tribe. A review of the evolution of

that line of cases is helpful in considering the parties’

arguments in this appeal. In 2010, the United States

Court of Appeals for the Tenth Circuit outlined a six

factor test for considering arm of the tribe status in

Breakthrough Management Group, Inc. v. Chukchansi

Gold Casino & Resort, supra, 629 F.3d 1173. In Breakthrough, the court identified six factors to determine

whether a relationship between a tribe and entity was

close enough to allow that entity to share the tribe’s

sovereign immunity as an arm of the tribe, namely, (1)

the method of creation of the economic entities, (2)

the purpose of those entities, (3) the structure, owner-
ship, and management of the entities, including the

amount of control the tribe has over them, (4) the tribe’s

intent with respect to sharing its sovereign immunity,

(5) ‘‘the financial relationship between the tribe and

the entities,’’ and (6) the ‘‘policies underlying tribal sovereign immunity and its connection to tribal economic

development, and whether those policies are served by

granting immunity to the economic entities.’’ Id., 1187.

The Breakthrough test has been implemented by a

majority of the federal courts that have considered this

issue. See, e.g., Williams v. Big Picture Loans, LLC,

supra, 929 F.3d 177; White v. University of California,

765 F.3d 1010, 1025 (9th Cir. 2014), cert. denied sub

nom. White v. Regents of the University of California,

577 U.S. 1124, 136 S. Ct. 983, 194 L. Ed. 2d 13 (2016);

Allen v. Gold Country Casino, supra, 464 F.3d 1046–47;

Solomon v. American Web Loan, 375 F. Supp. 3d 638,

653 (E.D. Va. 2019); Johnson v. Harrah’s Kansas

Casino Corp., Docket No. 04-4142-JAR, 2006 WL 463138,

*3–8 (D. Kan. February 23, 2006). But see Somerlott

v. Cherokee Nation Distributors, Inc., 686 F.3d 1144,

1149–50 (10th Cir. 2012) (declining to apply Breakthrough test when entity was incorporated under

state law).

Subsequently, in 2014, the New York Court of Appeals

articulated in Sue/Perior a slightly different version of

the nine factor test that it had originally announced in

1995. See Sue/Perior Concrete & Paving, Inc. v. Lewiston Golf Course Corp., supra, 24 N.Y.3d 546–47, citing

In re Ransom v. St. Regis Mohawk Education & Community Fund, Inc., 86 N.Y.2d 553, 559–60, 658 N.E.2d

989, 635 N.Y.S.2d 116 (1995).9

In its analysis, the court

focused closely on the financial relationship between

the tribe and entity. See Sue/Perior Concrete & Paving,

Inc. v. Lewiston Golf Course Corp., supra, 549–51.

In 2016, the California Supreme Court rejected the

emphasis that the New York Court of Appeals placed

on the financial relationship between the tribe and the

entity in Sue/Perior. See People ex rel. Owen v. Miami

Nation Enterprises, supra, 2 Cal. 5th 247. Miami

Nation largely follows the Breakthrough test, with two

significant differences. First, the California Supreme

Court correctly noted that the sixth factor in Breakthrough, namely, whether federal Indian law policies

underlying tribal sovereign immunity and its connection

to tribal economic development are served by granting

immunity to the economic entities, overlaps significantly with the first five factors; rather than serving as

an independent factor, such policies should color the

court’s analysis of each of the other factors. Id., 245.

Second, the California Supreme Court supplemented

the Breakthrough test by implementing a functional

inquiry when considering both the entity’s financial relationship with a tribe and the entity’s stated purpose.

The court explained: ‘‘[T]his test takes into account
both formal and functional considerations—in other

words, not only the legal or organizational relationship

between the tribe and the entity, but also the practical

operation of the entity in relation to the tribe.’’ Id., 236.

The court emphasized considering ‘‘the extent to which

the entity actually promotes tribal self-governance

. . . .’’ (Emphasis added.) Id., 245. In considering the

entity’s purpose, the court in Miami Nation went further than considering its stated purpose by examining

the extent to which the entity was achieving that goal.

Id., 246–47. The court explained that the ‘‘fit between

[the] stated purpose and practical execution need not

be exact, but the closer the fit, the more it will weigh

in favor of immunity.’’ Id., 247. The court noted that

an entity with the stated purpose of furthering tribal

economic development could demonstrate such purpose by demonstrating the jobs created for tribal members or the revenue generated for the tribe. Id. This

factor, however, may weigh against establishing arm of

the tribe status when an entity is engaging in activities

unrelated to its stated goals or operating mainly to

enrich individuals outside of the tribe. Id. The California

court justified this additional inquiry by highlighting

that ‘‘[t]hese functional considerations illuminate the

degree to which imposition of liability on the entity

would practically impair tribal self-governance.’’ Id.,

245.

The United States Court of Appeals for the Fourth

Circuit recently declined to engage as directly with the

functional aspects of an entity’s stated purpose and

financial relationship. See Williams v. Big Picture

Loans, LLC, supra, 929 F.3d 180. The Fourth Circuit

stated that the functional analysis demands ‘‘a breakdown of exactly what percentage of the [t]ribe’s budget

went to each of [the tribal] activities [the entity’s revenue had funded] and exactly what percentage of the

funding for these activities constituted [entity] revenue.

Such a requirement is at odds with policy considerations of tribal self-governance and economic development.’’ Id.

We agree with the Fourth Circuit that an exacting

inquiry into the operation of tribal treasuries goes too

far. Although evidence of an entity’s stated purpose

may well include a showing of function, and such a

showing would likely strengthen an entity’s claim to

arm of the tribe status, we would not mandate this

additional functional inquiry, specifically, whether ‘‘the

entity actually promotes tribal self-governance’’; People

ex rel. Owen v. Miami Nation Enterprises, supra, 2

Cal. 5th 245; because we consider the inquiry unworkable and potentially inimical to the principle of selfgovernance underlying tribal immunity.

First, we understand the functional inquiry prescribed by Miami Nation to require an analysis of the

tribe’s finances, as opposed to those of the entity; in
essence, we understand it to ask whether the entity

serves as a successful business venture for the tribe.

This becomes a nebulous, subjective, difficult to apply

inquiry that may overlook or underestimate the value

of certain business ventures to the tribe. For example,

the inquiry might lead to the conclusion that fledgling

business entities without a steady revenue stream are

less deserving of tribal sovereign immunity than established ventures, potentially depriving tribal business

entities of immunity during an especially vulnerable

period at the beginning of the venture. Second, to the

extent that the inquiry calls for an examination of the

finances of the tribe, rather than those of the entity

seeking the tribe’s immunity, it could lead to an

improper incursion into the financial affairs of a coordinate sovereign. See Williams v. Big Picture Loans,

LLC, supra, 929 F.3d 179 (‘‘the promotion of tribal selfgovernance . . . counsels against courts demanding

exacting information about the minutiae of a tribe’s

budget’’); Altheimer & Gray v. Sioux Mfg. Corp., 983

F.2d 803, 815 (7th Cir.) (‘‘economic independence is

the foundation of a tribe’s self-determination’’), cert.

denied, 510 U.S. 1019, 114 S. Ct. 621, 126 L. Ed. 2d

585 (1993).

Accordingly, like the Fourth, Ninth, and Tenth Circuits, we adopt the first five Breakthrough factors to

analyze, in light of federal Indian law and policy,

whether the entities constitute arms of the tribe for

purposes of tribal sovereign immunity. See Williams v.

Big Picture Loans, LLC, supra, 929 F.3d 177. We will

consider the extent to which granting arm of the tribe

status furthers the purposes of tribal sovereign immunity throughout the following analysis. See id. Considering the five factors outlined in Breakthrough and Miami

Nation, the trial court in this case found sufficient evidence to satisfy each factor but ultimately determined

that the evidence was insufficient to meet the additional

functional inquiry prescribed by Miami Nation. We

disagree with the trial court’s reasoning to the extent

that it focused on the functional aspect of the tribe’s

relationship with the entities. Reviewing the trial court’s

decision de novo, we instead conclude that Great Plains

is an arm of the tribe as a matter of law and is entitled

to tribal sovereign immunity but that there is not enough

evidence to conclude that Clear Creek is an arm of

the tribe.

B

Having identified the proper standard for determining

whether an entity is an arm of the tribe entitled to share

in tribal sovereign immunity, we now apply those five

factors to the factual record in this case and consider

each entity in turn.

1

Method of Creation
The first factor, ‘‘the method of creation’’ of the entity,

focuses on the law under which the entity was formed.

(Internal quotation marks omitted.) Williams v. Big

Picture Loans, LLC, supra, 929 F.3d 177; see, e.g.,

Breakthrough Management Group, Inc. v. Chukchansi

Gold Casino & Resort, supra, 629 F.3d 1191–92; People

ex rel. Owen v. Miami Nation Enterprises, supra, 2

Cal. 5th 245–46. Formation under tribal law weighs in

favor of immunity. See Breakthrough Management

Group, Inc. v.Chukchansi Gold Casino & Resort, supra,

1191. ‘‘The circumstances under which the entity’s formation occurred, including whether the tribe initiated

or simply absorbed an operational commercial enterprise, are also relevant.’’ People ex rel. Owen v. Miami

Nation Enterprises, supra, 246.

Here, as described in the affidavit of Ted Grant, vice

chairman of the tribe, the tribe’s constitution grants its

council the power to ‘‘make all laws and ordinances

for the benefit of the [t]ribe.’’ It is undisputed that the

entities at issue in this case were created under tribal

law, namely, the LLC Act and the Corporation Act. The

record contains tribal resolutions creating the entities,10

along with tribal certificates of license for both entities.

Because both entities were created under tribal law on

the tribe’s own initiative, this factor weighs in favor of

tribal sovereign immunity for both entities. See Williams v. Big Picture Loans, LLC, supra, 929 F.3d 177;

Breakthrough Management Group, Inc. v. Chukchansi

Gold Casino & Resort, supra, 629 F.3d 1191–92.

2

Purpose

The second factor ‘‘incorporates both the stated purpose for which the [e]ntities were created as well as

evidence related to that purpose.’’ Williams v. Big Picture Loans, LLC, supra, 929 F.3d 178; see, e.g., Breakthrough Management Group, Inc. v. Chukchansi Gold

Casino & Resort, supra, 629 F.3d 1192–93. ‘‘The stated

purpose need not be purely governmental to weigh in

favor of immunity as long as it relates to broader goals of

tribal self-governance.’’ Williams v. Big Picture Loans,

LLC, supra, 178. The entity’s purpose is relevant

because ‘‘[f]ew tribes have any significant tax base.

Tribal business enterprises may be the only means by

which a tribe can raise revenues—and thus such enterprises may be essential to the fulfillment of the tribe’s

governmental obligations.’’ (Internal quotation marks

omitted.) People ex rel. Owen v. Miami Nation Enterprises, supra, 2 Cal. 5th 247–48, quoting C. Struve,

‘‘Tribal Immunity and Tribal Courts,’’ 36 Ariz. St. L.J.

137, 169 (2004).

Here, Grant describes in his affidavit the stated purpose of both entities as ‘‘to advance the [t]ribe’s economic development and to aid in addressing issues of

public health, safety, and welfare.’’ Grant’s affidavit is
consistent with and supported by the operating agreement for Great Plains, which provides that the tribe

‘‘desires to form a limited liability company for the

purpose of carrying on a for-profit business and to further the economic goals and initiatives of the [t]ribe.’’

By contrast, the record does not contain articles of

incorporation or bylaws for American Web Loan, Inc.,

doing business as Clear Creek; the only evidence of

Clear Creek’s stated purpose is the council’s resolution

creating the entity, which states its determination ‘‘that

the best interest of the [tribe] is best served by the

adoption of the Otoe-Missouria Tribe American Web

Loan Act . . . .’’

The defendants urge us to uphold the trial court’s

decision to require, consistent with the California

Supreme Court’s reasoning in Miami Nation, a further

showing of how the stated purpose is functioning in

actuality in order to satisfy this factor. They claim that

the record is insufficient to demonstrate that the entities

have achieved their purpose. However, Miami Nation

is distinguishable because, as the Fourth Circuit noted,

the evidence in that case ‘‘indicated that the tribe

received barely any revenue, and the entities could not

identify the percentage of profits from the lending operations that flowed to the tribe or how those profits

were used.’’ Williams v. Big Picture Loans, LLC, supra,

929 F.3d 181; see People ex rel. Owen v. Miami Nation

Enterprises, supra, 2 Cal. 5th 254–55. Furthermore, the

entities in Miami Nation were engaging in profit sharing with apparently nontribal members, whereas the

record in the present case indicates that both entities

were created under tribal law for the sole purpose of

generating revenue for the tribe, thus promoting tribal

self-governance and economic development. See People

ex rel. Owen v. Miami Nation Enterprises, supra, 254.

The record in the present case does not indicate, and

the defendants do not allege, that proceeds from Great

Plains or Clear Creek are going to nontribal members.

Indeed, both Grant’s affidavit and the operating agreement for Great Plains indicate that the tribe, as the sole

member, is the sole recipient of any profits generated

by Great Plains and that the purpose of Great Plains is

to promote tribal self-governance and economic development. Imposing a more exacting standard that

requires the opening and examination of a tribe’s financial books and records in order to show the extent

to which a tribal business enterprise is functionally

achieving its purpose, in the absence of any indication

that such proceeds are flowing to nontribal members

or that the entities serve a purpose other than the one

asserted by the tribe, would infringe too greatly on tribal

self-governance and self-determination. See Williams

v. Big Picture Loans, LLC, supra, 929 F.3d 180 (‘‘[s]uch

a requirement [of breaking down a tribe’s budget into

percentages] is at odds with policy considerations of

tribal self-governance and economic development’’).
Because the stated purpose of Great Plains is to advance

the tribe’s ‘‘economic development to aid in addressing

issues of public health, safety, and welfare,’’ and the

record provides evidence of such purpose in the tribal

law and resolution creating Great Plains, as well as its

operating agreement, with no evidence supporting a

conclusion to the contrary, we conclude that this factor

weighs in favor of immunity for Great Plains.

The record, however, does not contain evidence of

Clear Creek’s stated purpose beyond the resolution creating American Web Loan, Inc., and Grant’s affidavit

containing a single, conclusory statement. The plaintiffs

bear the burden of establishing their arm of the tribe

status, and, without further description or documentation linking the entity’s stated purpose to the furtherance of tribal economic development, we conclude that

there is insufficient evidence for this factor to weigh

in favor of finding Clear Creek to be an arm of the tribe.

See, e.g., Buell Industries, Inc. v. Greater New York

Mutual Ins. Co., 259 Conn. 527, 557, 791 A.2d 489 (2002)

(‘‘conclusory affidavits, even from expert witnesses, do

not provide a basis on which to deny [summary judgment motions]’’ (internal quotation marks omitted));

see also id., 557–58 (because ‘‘the plaintiff properly had

the burden to establish the existence of these facts, it

cannot avoid summary judgment . . . by the mere

assertion of a conclusion’’).

3

Control

The third factor ‘‘examines the structure, ownership,

and management of the entities, ‘including the amount

of control the [t]ribe has over the entities.’ ’’ Williams

v. Big Picture Loans, LLC, supra, 929 F.3d 182, quoting

Breakthrough Management Group, Inc. v. Chukchansi

Gold Casino & Resort, supra, 629 F.3d 1191. In

determining the existence of tribal control, courts consider ‘‘the entities’ formal governance structure, the

extent to which the entities are owned by the tribe, and

the day-to-day management of the entities.’’ Williams

v. Big Picture Loans, LLC, supra, 182; see People ex

rel. Owen v. Miami Nation Enterprises, supra, 2 Cal.

5th 247 (noting that control of entity does not require

control of all business minutiae). The extent to which

a tribe is actively involved in directing or overseeing

the operation of the entity will affect the extent to which

this factor weighs in favor of immunity. See People ex

rel. Owen v. Miami Nation Enterprises, supra, 247. In

considering the tribe’s control over an entity, courts

consider the totality of the circumstances to determine

whether the tribe has sufficient operational control to

render an entity an arm of the tribe.11 See Williams v.

Big Picture Loans, LLC, supra, 183 (outsourcing of

entity’s day-to-day management did not outweigh other

factors weighing in favor of immunity).
The trial court found the tribe’s control of the entities

evident from Grant’s affidavit, which provides that Shotton, who is the chairman of the tribe, serves as secretary

and treasurer of both entities and is responsible for

‘‘certain oversight’’ of the entities. Grant also states that

both entities’ officers are appointed by the council and

may be removed by the council with or without cause.

The operating agreement of Great Plains further provides that its board of directors is appointed by the

council and any board member may be removed by the

council with or without cause. Because there is no

evidence that Great Plains is controlled in any way by

nontribal members and, in fact, is ultimately controlled

by tribal officials, this factor strongly weighs in favor

of finding that Great Plains is an arm of the tribe. See

id., 183–84 (concluding that this factor weighed against

entity controlled in part by nontribal members when

doing business off reservation). The record, however,

does not contain evidence beyond Grant’s affidavit of

the tribe’s control of Clear Creek or of its structure or

management. The affidavit merely describes the entity

as wholly owned by the tribe, with officers appointed

and removed by the tribal council. The affidavit does

not provide information about the actual control and

management that the tribe has over Clear Creek. Without further documentation or description, there is insufficient evidence in the record to determine whether this

factor weighs in favor of Clear Creek being an arm of

the tribe.

4

Tribal Intent

The fourth factor examines ‘‘solely’’ the tribe’s intent

to extend its sovereign immunity to the entities. Williams v. Big Picture Loans, LLC, supra, 929 F.3d 184.

Tribal intent is often expressly stated in the tribal ordinance or articles of incorporation that create the entity,

but it can also be inferred from ‘‘the tribe’s actions or

other sources.’’ People ex rel. Owen v. Miami Nation

Enterprises, supra, 2 Cal. 5th 246. It is not appropriate

to consider the motives behind the tribe’s intent, but

only to consider whether any intent was expressed at

all. See Williams v. Big Picture Loans, LLC, supra,

184 (holding that district court improperly considered

‘‘driving force for the [t]ribe’s intent to share its immunity’’ (internal quotation marks omitted)).

Here, the tribe expressly and unequivocally indicated

its intent to extend its immunity to Great Plains in the

operating agreement, which supports Grant’s statement

in his affidavit that the ‘‘[t]ribe granted [the entities]

all privileges and immunities enjoyed by the [t]ribe,

including, but not limited to, immunities from suit as

well as any [f]ederal, [s]tate, and local taxation or regulation.’’ The tribe’s LLC Act, under which Great Plains

was formed, further evidences tribal intent to extend
immunity to entities created thereunder when the tribe

is the sole member, as in the present case, by providing

in relevant part: ‘‘Such [limited liability companies] . . .

shall, therefore, be entitled to all of the privileges and

immunities enjoyed by the [t]ribe, including, but not

limited to, immunities from suit in [f]ederal, [s]tate,

and [t]ribal courts and from [f]ederal, [s]tate, and local

taxation or regulation . . . .’’ Because the record

undisputedly indicates tribal intent to extend immunity

to Great Plains, this factor weighs in favor of it being

an arm of the tribe. Once again, however, the only

evidence of tribal intent to extend immunity to Clear

Creek is contained in Grant’s affidavit in a single conclusory statement. Thus, without further information from

articles of incorporation, bylaws, or the tribe’s Corporation Act, there is insufficient evidence in the record for

us to conclude that this factor weighs in favor of finding

that Clear Creek is entitled to tribal sovereign immunity.

5

Financial Relationship

The fifth factor contemplates the financial relationship between the tribe and the entities. See, e.g., Williams v. Big Picture Loans, LLC, supra, 929 F.3d 184;

Breakthrough Management Group, Inc. v. Chukchansi

Gold Casino & Resort, supra, 629 F.3d 1194. One relevant consideration is whether a judgment against an

entity would affect the tribe’s assets, as well. See Williams v. Big Picture Loans, LLC, supra, 184. Although

direct tribal liability ‘‘is neither a threshold requirement

for immunity nor a predominant factor in the overall

analysis,’’ if a judgment against the entity would affect

the tribe’s assets, this factor will more likely weigh in

favor of immunity, even if the tribe’s liability is ‘‘formally

limited.’’ (Internal quotation marks omitted.) Id., quoting People ex rel. Owen v. Miami Nation Enterprises,

supra, 2 Cal. 5th 247. Courts also examine ‘‘the extent

to which a tribe ‘depends . . . on the [entity] for revenue to fund its governmental functions, its support of

tribal members, and its search for other economic

development opportunities.’ ’’ Williams v. Big Picture

Loans, LLC, supra, 184, quoting Breakthrough Management Group, Inc. v. Chukchansi Gold Casino & Resort,

supra, 1195. ‘‘If a judgment against the entity would

significantly impact the tribal treasury, this factor will

weigh in favor of immunity even if the tribe’s liability

for an entity’s actions is formally limited.’’ Williams v.

Big Picture Loans, LLC, supra, 184.

Grant’s affidavit clearly states that both entities are

wholly owned by the tribe. Section 5.1 of the operating

agreement of Great Plains provides that ‘‘[a]ll [p]rofits

and [l]osses shall be allocated to the [t]ribe as the sole

[m]ember,’’ and § 5.2 provides that ‘‘[a]ll [c]ash [f]low

shall be distributed to the [t]ribe, at least quarterly

unless otherwise approved by the [t]ribal [c]ouncil.’’

This language clearly indicates the financial interests
of the tribe as the sole member and owner of Great

Plains. Although there is no allegation or evidence that

the profits generated by Clear Creek are being directed

anywhere other than to the tribe, the record is less

descriptive of any financial relationship between Clear

Creek and the tribe because it does not include articles

of incorporation, bylaws, or any other legal documents

governing the structure and operation of Clear Creek.

Instead of challenging the existence of the financial

relationship between the business entities and the tribe,

the defendants argue that there is not enough information in the record to find that there is a sufficiently

significant financial relationship to establish that the

entities are arms of the tribe.12 Similarly, the trial court

concluded that, although Grant’s affidavit and the supporting documents addressed this factor to a certain

extent, the record was insufficient to establish entitlement to tribal sovereign immunity. The trial court based

its conclusion on the additional inquiry outlined in

Miami Nation, namely, that the evidence failed to show

that the entity actually, rather than just nominally, promoted tribal self-governance.

The record does not provide a detailed accounting

of each entity’s financial records or the degree to which

each entity generates profits that support specific tribal

activities. Although such an accounting would indeed

provide clear evidence of a functioning financial relationship between the tribe and the entity, it is not a

necessary factor. See People ex rel. Owen v. Miami

Nation Enterprises, supra, 2 Cal. 5th 248 (‘‘[d]etermining whether this factor weighs in favor of immunity

requires a consideration of degree rather than a binary

decision’’). Just as a financial relationship in and of

itself is not dispositive of the tribal arm analysis, we

decline to require a sovereign to provide detailed information about the extent to which an entity supports its

budget, when they otherwise furnish significant evidence that an entity is an arm of the tribe. See id., 247

(holding that whether judgment against entity would

reach tribe’s assets is relevant but ‘‘neither a threshold

requirement for immunity nor a predominant factor in

the overall analysis’’). Because the record sufficiently

demonstrates a financial relationship between the tribe

and Great Plains, and there is no evidence to the contrary, we conclude that this factor, although perhaps

the weakest of the five, also weighs in favor of arm of

the tribe status for Great Plains. The record does not

contain enough evidence to conclude that this factor

weighs in favor of immunity for Clear Creek because

the existence of a financial relationship is indicated

only by Grant’s conclusory affidavit stating that Clear

Creek is a wholly owned entity of the tribe. The record

does not specifically indicate whether any profits or

funds from Clear Creek are directed to the tribe,

although the fact that it is wholly owned by the tribe

could support an inference that its profits are directed
to the tribe. Without more detail on this point, however,

we cannot conclude that this factor weighs in favor of

Clear Creek being an arm of the tribe.

We have considered these factors in light of the

underlying policies supporting tribal sovereign immunity, namely, the promotion of tribal self-governance

and economic development, and the ‘‘protection of the

tribe’s monies and the promotion of commercial dealings between Indians and non-Indians.’’ (Internal quotation marks omitted.) Williams v. Big Picture Loans,

LLC, supra, 929 F.3d 185, quoting Breakthrough Management Group, Inc. v. Chukchansi Gold Casino &

Resort, supra, 629 F.3d 1187–88. In regard to Great

Plains, the record reflects that it was created under

tribal law and is controlled by directors appointed by

the council for the purpose of promoting tribal economic development and welfare. The record further

indicates a significant financial relationship between

the tribe and Great Plains, which leads us to conclude

that withholding tribal sovereign immunity from Great

Plains as an arm of the tribe would interfere with the

tribe’s self-governance and economic development. See

Williams v. Big Picture Loans, LLC, supra, 185 (declining to find no immunity when that conclusion, even if

made to protect tribe, would weaken tribe’s ability to

self-govern). Accordingly, we conclude that all five factors indicate that Great Plains is an arm of the tribe as

a matter of law. Because there is no indication that

Congress abrogated immunity or any claim that the

tribe has waived its immunity, we conclude that Great

Plains is entitled to tribal sovereign immunity as an arm

of the tribe. See, e.g., Santa Clara Pueblo v. Martinez,

supra, 436 U.S. 58; Williams v. Big Picture Loans, LLC,

supra, 185. We conclude, however, that the minimal

evidence in the record in regard to Clear Creek, consisting of only a certificate of license, the resolution

creating American Web Loan, Inc., and Grant’s affidavit

containing conclusory statements, is insufficient to support a similar conclusion for Clear Creek. Thus, because

the record supports a conclusion of immunity as a matter of law only as to Great Plains, the trial court improperly remanded the case to the commissioner for further

proceedings as to both entities, rather than directing

judgment on this point in regard to Great Plains and

remanding to the department for further proceedings

as to Clear Creek.

IV

Having determined that Great Plains is an arm of the

tribe entitled to tribal sovereign immunity, we now turn

to the issue of whether Shotton similarly shares in that

immunity.13 The defendants imposed both civil penalties

and injunctive relief against Shotton. The defendants

argue that Shotton, rather than the tribe, is the real

party in interest and that the department therefore took

action against Shotton in his individual, rather than
official capacity, precluding him from claiming immunity from civil penalties or injunctive relief. The defendants emphasize that the department took action

against Shotton in his individual capacity due to ‘‘his

personal participation in violations of the state’s usury

and banking laws.’’ In response, the plaintiffs argue that

the trial court correctly determined that the tribe is the

real party in interest, rendering Shotton immune from

civil penalties and injunctive relief. They contend that

the tribe is the real party in interest because the defendants do not allege any specific actions taken by Shotton personally in relation to the lending activities of

the entities, and they emphasize that any damages or

injunctive relief against Shotton would affect the tribe’s

treasury. We conclude that the tribe is the real party in

interest, rendering Shotton immune from civil penalties

but not injunctive relief.

The following general background principles inform

the extent to which Shotton is entitled to share in the

tribe’s immunity. Members of the tribe do not have tribal

sovereign immunity simply by virtue of their status as

members. Cohen’s Handbook of Federal Indian Law,

supra, § 7.05 [1] [a], p. 638 and n.13, citing Puyallup

Tribe, Inc. v. Dept. of Game, 433 U.S. 165, 172–73, 97

S. Ct. 2616, 53 L. Ed. 2d 667 (1977). In the absence of

tribal sovereign immunity or a federal law to the contrary, ‘‘Indians going beyond reservation boundaries

have generally been held subject to nondiscriminatory

state law otherwise applicable to all citizens of the

[s]tate.’’ Mescalero Apache Tribe v. Jones, 411 U.S. 145,

148–49, 93 S. Ct. 1267, 36 L. Ed. 2d 114 (1973). In

determining whether a tribal official is protected by

tribal sovereign immunity, the United States Supreme

Court has extended the doctrines governing state and

federal employee liability to the context of tribal sovereign immunity. See Lewis v. Clarke, supra, 137 S. Ct.

1290; see also Cohen’s Handbook of Federal Indian law,

supra, § 7.05 [1] [a], p. 638 n.18, citing Regents of the

University of California v. Doe, 519 U.S. 425, 429, 117

S. Ct. 900, 137 L. Ed. 2d 55 (1997) (sovereign immunity

bars suit against state officers to recover money from

state). Tribal officials are, therefore, entitled to an

extension of tribal sovereign immunity if two conditions

are met: (1) the tribe, rather than the individual officer,

is the real party in interest, and (2) the tribal official

acted within the scope of his or her authority. See Lewis

v. Clarke, supra, 1290–91; see also Chayoon v. Chao,

355 F.3d 141, 143 (2d Cir.) (‘‘[the plaintiff] cannot circumvent tribal immunity by merely naming officers or

employees of the [t]ribe when the complaint concerns

actions taken in [the] defendants’ official or representative capacities and the complaint does not allege they

acted outside the scope of their authority’’), cert.

denied, 543 U.S. 966, 125 S. Ct. 429, 160 L. Ed. 2d 336

(2004). We address each of these conditions in turn.

A
The United States Supreme Court has drawn a distinction between individual and official capacity suits for

purposes of the immunity of tribal officers. See Lewis

v. Clarke, supra, 137 S. Ct. 1292. In Lewis, the plaintiffs

sued the defendant, a limousine driver employed by

an arm of a tribe, in his individual capacity after his

involvement in a car accident on an interstate highway

away from the reservation. Id., 1290. The defendant

asserted that he was protected by tribal sovereign

immunity because of his employment for an arm of the

tribe and that his conduct was within his official duties

as an employee, namely, driving the limousine, thus

entitling him to immunity. Id. The court disagreed with

the defendant and concluded that tribal sovereign

immunity did not extend to him because the remedy

sought by the plaintiffs in Lewis would operate against

the individual limousine driver, rather than the tribe,

as a consequence of his personal conduct that resulted

in a tort away from the reservation.14 Id., 1292–93. The

court noted that this result did not abrogate tribal sovereignty because the official was being sued in his personal rather than official capacity, and he was therefore

subject to the same exposure to liability as state and

federal officials under the same circumstances. Id.,

1292–93. The court highlighted the distinction between

official capacity claims when ‘‘the relief sought is only

nominally against the official and in fact is against the

official’s office and thus the sovereign itself,’’ and personal capacity claims which ‘‘seek to impose individual

liability [on] a government officer for actions taken

under color of state law.’’ (Emphasis in original; internal

quotation marks omitted.) Id., 1292. Such a distinction

is critical because the ‘‘identity of the real party in

interest dictates what immunities may be available.’’ Id.

We therefore address that distinction in detail.

‘‘The general bar against [official capacity] claims

. . . does not mean that tribal officials are immunized

from [individual capacity] suits arising out of actions

they took in their official capacities . . . . Rather, it

means that tribal officials are immunized from suits

brought against them because of their official capacities—that is, because the powers they possess in those

capacities enable them to grant the plaintiffs relief on

behalf of the tribe.’’ (Citation omitted; emphasis

altered.) Native American Distributing v. SenecaCayuga Tobacco Co., 546 F.3d 1288, 1296 (10th Cir.

2008). Generally, individual or ‘‘[personal capacity] suits

seek to impose personal liability [on] a government

official for [wrongful] actions [that] he takes under

color of . . . law’’ and in the course of his official

duties. Kentucky v. Graham, 473 U.S. 159, 165, 105 S.

Ct. 3099, 87 L. Ed. 2d 114 (1985). ‘‘By contrast, official

capacity suits ultimately seek to hold the entity of which

the officer is an agent liable, rather than the official

himself: they generally represent [merely] another way

of pleading an action against an entity of which an
officer is an agent.’’ (Internal quotation marks omitted.)

Pistor v. Garcia, 791 F.3d 1104, 1112 (9th Cir. 2015),

quoting Kentucky v. Graham, supra, 165–66; see Pistor

v. Garcia, supra, 1112 (focusing on plaintiffs’ suit

against individual tribal officers rather than against

tribe’s treasury).15

‘‘To identify the real, substantial party in interest, one

factor that the court examines is the substance of the

claims stated in the complaint, positing inquiries such

as . . . [whether] the actions of the state officials

[were] taken to further personal interests distinct from

the [s]tate’s interests . . . . Other factors include . . .

whether the unlawful actions of the officials were tied

inextricably to their official duties, whether the burden

of the relief would be borne by the sovereign if the

official had authorized the relief at the outset, whether

a judgment would be institutional and official in character so as to operate against the sovereign, and whether

the official’s actions were ultra vires.’’ (Citation omitted;

internal quotation marks omitted.) Solomon v. American Web Loan, supra, 375 F. Supp. 3d 661.

As an example of this often subtle distinction, the

United States Court of Appeals for the Tenth Circuit

held that the tribe, rather than an individual tribal officer, was the real party in interest when it rejected a

breach of contract and civil conspiracy action against

a tribally owned entity and tribal officers. See Native

American Distributing v. Seneca-Cayuga Tobacco Co.,

supra, 546 F.3d 1290, 1297. After concluding that a corporate entity was an arm of the tribe and entitled to

sovereign immunity, the court rejected the plaintiffs’

suit against the individual tribal officials for civil conspiracy. Id., 1296–97. In doing so, the court held that

the plaintiffs failed to state a claim against the tribal

officers in their individual capacity because there were

no allegations of specific conduct by the individuals,

including the former chief of the tribe and managers

of the entity, which would support a conclusion that

any individual had engaged in civil conspiracy. See id.,

1297 (noting that plaintiffs failed to seek money damages from officer for wrongful conduct ‘‘fairly attributable to the officer himself’’ (internal quotation marks

omitted)). The court characterized the allegations in the

complaint as having been ‘‘made against the [i]ndividual

[d]efendants relat[ing] to decisions and actions taken

by them as the principal managers of [the entity], not

as individuals.’’ (Internal quotation marks omitted.) Id.,

1298. Instead, the court concluded that ‘‘[t]here [was]

simply nothing more than conclusory allegations that

a civil conspiracy exists, and this [was] not enough

. . . .’’ Id.

The record in the present case is determinative of

whether the defendants are taking administrative action

against Shotton in his individual or official capacity. The

department seeks relief from Shotton and the entities
in a single proceeding. The record does not indicate, and

the defendants do not allege, that Shotton personally

engaged in any conduct giving rise to these proceedings.

Instead, it appears that the department is seeking relief

from Shotton nominally because of his official policymaking capacity as a high ranking officer of the tribe

and an officer of the entities, rather than as a result of

his personal actions taken within the scope of his official capacity. See id., 1297–98 (holding that tribal officials were sued in official capacity because plaintiffs

failed to allege individual conduct by officers but made

allegations against them only as ‘‘the principal managers

of [the entity]’’ (internal quotation marks omitted)); cf.

Maxwell v. San Diego, 708 F.3d 1075, 1087, 1089 (9th Cir.

2013) (tribal emergency employees were not entitled

to tribal sovereign immunity when they were sued for

personal actions resulting in gross negligence); Solomon v. American Web Loan, supra, 375 F. Supp. 3d 662

(holding that nontribal, corporate official who engaged

in ultra vires conduct was not entitled to tribal immunity); Williams & Cochrane, LLP v. Quechan Tribe of

Fort Yuma Indian Reservation, Docket No. 3:17-cv01436-GPC-MDD, 2018 WL 2734946, *15–16 (S.D. Cal.

June 7, 2018) (concluding that defendants who personally engaged in fraudulent conduct were not entitled to

tribal sovereign immunity). Put differently, Shotton’s

status as a high ranking official of both the tribe and

the entities is the sole reason he was a target of the

department’s administrative action; the department has

not taken action against any other officials or employees involved with the entities’ lending practices or management. This case, therefore, is distinguishable from

those cited by the defendants in which courts deemed

the tribal officers to be the real parties in interest when

sued in their individual capacity for personal conduct.16

Thus, we conclude that the tribe, rather than Shotton,

is the real party in interest with respect to the administrative action in this case.

B

We next turn to whether Shotton’s actions were

within the scope of his official authority, thus entitling

him to share in tribal sovereign immunity. See, e.g.,

Bassett v. Mashantucket Pequot Tribe, supra, 204 F.3d

359. The mere allegation that Shotton was acting in

his capacity as a corporate official of entities allegedly

violating Connecticut law does not alone establish that

he was acting outside the scope of his authority. See

Bassett v. Mashantucket Pequot Museum & Research

Center, Inc., 221 F. Supp. 2d 271, 280–81 (D. Conn.

2002) (alleging illegality of defendants’ actions was

insufficient to surmount immunity because actions

must be ‘‘ ‘manifestly or palpably beyond his authority’ ’’). Here, the defendants fail to allege, let alone

prove, any actions by Shotton that are beyond the scope

of his authority as an officer of the tribe and entities

or that those actions were taken to further his personal
interests as distinct from the tribe’s interests. Indeed,

the department fails to specifically allege any actions

by Shotton personally at all. The entirety of Shotton’s

actions that allegedly violated Connecticut law took

place solely within the context of the entities’ lending

operations. The record does not indicate that Shotton

did anything outside the scope of executing his official

duties as an officer of the tribe and of the entities.17

Having concluded the tribe is the real party in interest

and that Shotton’s actions were entirely within the

scope of his duties for the tribe and the entities, we

now determine whether the tribe’s sovereign immunity

extends to each form of relief sought by the defendants

against Shotton in his capacity as an officer of Great

Plains.

‘‘In the tribal immunity context, a claim for damages

against a tribal official lies outside the scope of tribal

immunity only [when] the complaint pleads—and it is

shown—that a tribal official acted beyond the scope of

his authority to act on behalf of the [t]ribe. . . . Claimants may not simply describe their claims against a

tribal official as in his individual capacity in order to

eliminate tribal immunity. . . . [A] tribal official—even

if sued in his individual capacity—is . . . stripped of

tribal immunity [only] when he acts manifestly or palpably beyond his authority . . . . [I]n order to overcome

sovereign immunity, the [plaintiff] must do more than

allege that the defendants’ conduct was in excess of

their . . . authority; [the plaintiff] also must allege or

otherwise establish facts that reasonably support those

allegations.’’ (Internal quotation marks omitted.) Drabik

v. Thomas, 184 Conn. App. 238, 247, 194 A.3d 894, cert.

denied, 330 Conn. 929, 194 A.3d 778 (2018); see also

Chayoon v. Chao, supra, 355 F.3d 143 (there is no exception to sovereign immunity when only relief sought

against tribal officials was damages).

Because the department fails to allege that Shotton

acted beyond the scope of his authority as a tribal

official, we conclude that the department’s conclusory

and nominal allegation, which does not allege specific

actions taken by Shotton, is legally insufficient to surmount his immunity from civil penalties.18 See Lewis

v. Clarke, supra, 137 S. Ct. 1291.

C

The defendants contend that prospective injunctive

relief is available, notwithstanding any tribal sovereign

immunity, under Ex parte Young, 209 U.S. 123, 133, 28

S. Ct. 441, 52 L. Ed. 714 (1908), which allows plaintiffs

to seek prospective, injunctive relief against state officials for violations of federal law. In response, the plaintiffs argue that Shotton is entitled to share in tribal

sovereign immunity because the exception under Ex

parte Young is limited to federal causes of action and

does not extend to state causes of action against tribal
officials. The plaintiffs further contend that Ex parte

Young does not apply to Shotton because (1) any discussion of alternative avenues for relief against tribal officials by the United States Supreme Court in Michigan

v. Bay Mills Indian Community, supra, 572 U.S. 782,

was dictum, and (2) Ex parte Young does not extend

to actions taken by the state against tribal officials for

violations of state law. In response, the defendants cite

the recent decision of the United States Court of

Appeals for the Second Circuit in Gingras v. Think

Finance, Inc., 922 F.3d 112, 121 (2d Cir. 2019), cert.

denied sub nom. Sequoia Capital Operations, LLC v.

Gingras, U.S. , 140 S. Ct. 856, 205 L. Ed. 2d 458

(2020), and argue that Shotton is not immune from

injunctive relief for actions arising from violations of

state law. We agree with the defendants and conclude

that tribal sovereign immunity does not render Shotton

immune from the injunctive relief ordered by the department.

The United States Supreme Court addressed a tribal

official’s entitlement to sovereign immunity from injunctive relief in Michigan v. Bay Mills Indian Community,

supra, 572 U.S. 782. Relying on Ex parte Young, supra,

209 U.S. 123, the court held that tribal sovereign immunity does not bar suit for injunctive relief against tribal

officers responsible for unlawful conduct. Michigan v.

Bay Mills Indian Community, supra, 785, 796. Bay

Mills concerned tribal sovereign immunity in the context of Indian gaming. Id., 790–93. The court held that

the Indian Gaming Regulatory Act, 25 U.S.C. § 2710 et

seq., did not abrogate tribal sovereign immunity for

gaming violations taking place away from tribal land

‘‘because states already had other ways to vindicate

state gaming law violations there.’’ Gingras v. Think

Finance, Inc., supra, 922 F.3d 122, citing Michigan v.

Bay Mills Indian Community, supra, 794–95. The court

in Bay Mills noted that ‘‘Michigan could bring suit

against tribal officials or employees (rather than the

[t]ribe itself) [when] seeking an injunction . . . .’’

Michigan v. Bay Mills Indian Community, supra, 796.

The United States Court of Appeals for the Second

Circuit, the decisions of which are particularly persuasive in resolving questions of federal law,19 recently

relied in part on Bay Mills and expressly concluded

that the exception to sovereign immunity announced

in Ex parte Young extended to injunctive relief to bar

tribal officials from violating state law, in addition to

federal law.20 Gingras v. Think Finance, Inc., supra,

922 F.3d 121. In Gingras, the Second Circuit emphasized that, in Bay Mills, the United States Supreme

Court had ‘‘made clear . . . that Michigan could still

‘resort to other mechanisms, including legal actions

against the responsible individuals’ to vindicate violations of Michigan state law.’’21 Id., quoting Michigan v.

Bay Mills Indian Community, supra, 572 U.S. 785; see

also Alabama v. PCI Gaming Authority, 801 F.3d 1278,
1290 (11th Cir. 2015) (‘‘tribal officials may be subject

to suit in federal court for violations of state law under

the fiction of Ex parte Young when their conduct occurs

outside of Indian lands’’). We agree with the Second

Circuit’s conclusion that this statement by the United

States Supreme Court was not dictum. See Gingras v.

Think Finance, Inc., supra, 122. The Second Circuit

noted that the Supreme Court had issued ‘‘[t]hree distinct opinions in Bay Mills [that] recognized the availability of Ex parte Young actions for violations of state

law.’’ Id.; see Michigan v. Bay Mills Indian Community, supra, 796; Michigan v. Bay Mills Indian Community, supra, 809 (Sotomayor, J., concurring); Michigan v. Bay Mills Indian Community, supra, 822–24

(Thomas, J., dissenting). Accordingly, we follow the

Second Circuit’s decision in Gingras and conclude that

Shotton is not entitled to tribal sovereign immunity

from suit for prospective injunctive relief.22

Application of the Ex parte Young exception represents a balanced approach that accounts for the competing interests of two sovereigns, tribes and states,

and allows the state to enforce its laws against tribal

officials while ‘‘providing a neutral forum for the peaceful resolution of disputes between domestic sovereigns,

and it fairly holds Indian tribes acting [off reservation]

to their obligation to comply with generally applicable

state law.’’ Gingras v. Think Finance, Inc., supra, 922

F.3d 124. Without such balancing via the provision of

injunctive relief, the state would be left without any

recourse to protect its citizens from tribal activities that

run afoul of state laws. See id. Accordingly, although

Shotton is immune from the civil penalties sought to

be imposed by the department, we conclude that he is

not immune from injunctive relief prospectively

enjoining him from violating Connecticut usury and

banking laws in connection with his duties for the tribe

and the entities.

In summary, we conclude that the trial court incorrectly determined that further proceedings were

required to determine whether Great Plains is an arm

of the tribe. Instead, the record establishes that Great

Plains is an arm of the tribe as a matter of law and,

therefore, entitled to share in the tribe’s sovereign

immunity from administrative action. With respect to

Shotton’s individual immunity, we conclude that the

trial court correctly determined that the tribe is the real

party in interest, rendering Shotton immune from the

civil penalties imposed by the department but not its

order of prospective injunctive relief in regard to his

actions as an official of Great Plains. We further hold

that the trial court correctly concluded that further

proceedings are required to determine whether Clear

Creek is an arm of the tribe and, therefore, entitled to

immunity from the order imposing civil money penalties

against that entity, and also to determine whether Shotton is entitled to tribal sovereign immunity in regard
to his actions taken as an official of Clear Creek.

The judgment is reversed insofar as the trial court

concluded that further proceedings were required to

determine whether Great Plains is an arm of the tribe

and insofar as the trial court upheld the imposition of

civil penalties against Shotton in his capacity as an

officer of Great Plains, and the case is remanded with

direction to render judgment sustaining the administrative appeal in part and directing the commissioner to

dismiss the administrative proceedings against Great

Plains, to vacate the imposition of civil penalties against

Shotton in his capacity as an officer of Great Plains,

and to remand the case to the commissioner for further

proceedings to determine, in accordance with this opinion, whether Clear Creek is an arm of the tribe and

whether Shotton is entitled to tribal sovereign immunity

in regard to his actions taken as an official of Clear

Creek; the judgment is affirmed in all other respects.

In this opinion the other justices concurred.

* May 20, 2021, the date that this decision was released as a slip opinion,

is the operative date for all substantive and procedural purposes.

1 The plaintiffs appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to General

Statutes § 51-199 (c) and Practice Book § 65-1.

2 Specifically, the commissioner ordered the plaintiffs to cease and desist

from violating General Statutes (Rev. to 2015) §§ 36a-555 (1) and (2) and

36a-573 (a). As the trial court noted, No. 16-65, §§ 19 through 36, of the 2016

Public Acts ‘‘extensively [revised] and reorganized the statutes regarding

small loan lending. The comparable prohibitions now appear in General

Statutes §§ 36a-556 and 36a-558.’’

3 Unless otherwise noted, all subsequent references to the trial court are

to Judge Shortall.

4

In requiring a functional inquiry, the trial court followed the California

Supreme Court’s observation in Miami Nation that ‘‘it is common sense

that if an entity provides a miniscule percentage of its revenue to the tribe,

and the tribe is barely involved, the entity cannot be said to stand in the

place of the tribe. Moreover, if a tribe retains only a minimal percentage of

the profits from the enterprise, it would appear that the enterprise may not

be truly controlled by the tribe.’’ (Internal quotation marks omitted.) People

ex rel. Owen v. Miami Nation Enterprises, supra, 2 Cal. 5th 249.

5 We note that a remand to an agency pursuant to § 4-183 (j) is a final

judgment for purposes of appeal. See, e.g., Tilcon Connecticut, Inc. v. Commissioner of Environmental Protection, 317 Conn. 628, 646–47, 119 A.3d

1158 (2015).

6 For purposes of this opinion, we note that ‘‘Indian country’’ is a ‘‘term

of art used to identify territory, specifically, lands on which tribal laws

and customs—as well as federal laws relating to Indians—are applicable.

Congress has defined Indian country as including three types of land: ‘land

within the limits of any Indian reservation,’ ‘dependent Indian communities,’

and ‘Indian allotments.’ ’’ (Footnote omitted.) R. Duncan & C. Martenson,

‘‘I Can See Clearly Now: The EPA’s Authority to Regulate Indian Country

Under the Clean Air Act,’’ 41 Wm. Mitchell L. Rev. 488, 492 (2015). ‘‘Indian

country’’ is distinct from ‘‘Indian lands,’’ which are defined as ‘‘lands within

Indian reservations and any lands held in trust or restricted status by the

United States for the benefit of a tribe or individual Indians . . . .’’ Cohen’s

Handbook of Federal Indian Law (N. Newton et al. eds., 2012) § 3.04 [1], p.

184. Finally, land not held in trust by the federal government is often referred

to as ‘‘tribal land,’’ which generally denotes direct tribal ownership of the

land rather than a relationship to the land through allotment, trust, or treaty.

Id., § 1.03 [6] [b], p. 61.

7 We disagree with the plaintiffs’ reliance on the Colorado Supreme Court’s

decision in Cash Advance & Preferred Cash Loans v. State ex rel. Suthers,

supra, 242 P.3d 1099, for the proposition that the defendants bear the burden

of proving that the entities are not arms of the tribe. In that case, the

Colorado Supreme Court held that an assertion of tribal sovereign immunity
is jurisdictional in nature and, therefore, properly raised in a motion to

dismiss. Id., 1112–13. In making that determination, the court also stated

that ‘‘the state bears the burden of proving, by a preponderance of the

evidence, that [the tribal entities] are not entitled to tribal sovereign immunity.’’ Id., 1113. This statement, however, referred to the state’s obligation

to prove the existence of jurisdiction in spite of tribal sovereign immunity,

not to whether the business entities at issue in that case were arms of the

tribe in the first place. After concluding that the state bore the burden of

demonstrating jurisdiction, the court engaged in an analysis as to whether

the state had proven the waiver of tribal sovereign immunity. See id., 1114.

Significantly, the court engaged in this analysis only after determining the

proper standard to deem an entity an arm of the tribe. See id., 1109–11.

8 Although placing the burden on the entity is consistent with Connecticut’s

arm of the state analysis in Rocky Hill v. SecureCare Realty, LLC, supra,

315 Conn. 279, we note that the ultimate issue of tribal sovereign immunity

itself ‘‘differs from state [sovereign immunity] in important respects.’’ (Internal quotation marks omitted.) People ex rel. Owen v. Miami Nation Enterprises, supra, 2 Cal. 5th 240; see also Idaho v. Coeur d’Alene Tribe of Idaho,

521 U.S. 261, 268, 117 S. Ct. 2028, 138 L. Ed. 2d 438 (1997) (tribal immunity

is distinct from state immunity because ‘‘the plan of the [constitutional]

[c]onvention did not surrender Indian tribes’ immunity for the benefit of

the [s]tates’’); Blatchford v. Native Village of Noatak, 501 U.S. 775, 782, 111

S. Ct. 2578, 115 L. Ed. 2d 686 (1991) (‘‘Indian tribes enjoy immunity against

suits by [s]tates . . . as it would be absurd to suggest that the tribes surrendered immunity in a [constitutional] convention to which they were not even

parties’’); People ex rel. Owen v. Miami Nation Enterprises, supra, 240

(noting that states have consented to suit by other states but that tribes

have never agreed to so limit their tribal sovereign immunity).

9

‘‘Although no set formula is dispositive, in determining whether a particular tribal organization is an ‘arm’ of the tribe entitled to share the tribe’s

immunity from suit, courts generally consider such factors as whether: [1]

the entity is organized under the tribe’s laws or constitution rather than

[f]ederal law; [2] the organization’s purposes are similar to or serve those

of the tribal government; [3] the organization’s governing body is comprised

mainly of tribal officials; [4] the tribe has legal title or ownership of property

used by the organization; [5] tribal officials exercise control over the administration or accounting activities of the organization; and [6] the tribe’s governing body has power to dismiss members of the organization’s governing

body. . . . More importantly, courts will consider whether [7] the corporate

entity generates its own revenue, whether [8] a suit against the corporation

will impact the tribe’s fiscal resources, and whether [9] the subentity has the

‘power to bind or obligate the funds of the [tribe]’ . . . . The vulnerability

of the tribe’s coffers in defending a suit against the subentity indicates that

the real party in interest is the tribe.’’ (Citations omitted.) In re Ransom v.

St. Regis Mohawk Education & Community Fund, Inc., 86 N.Y. 2d 553,

559–60, 658 N.E.2d 989, 635 N.Y.S.2d 116 (1995).

10 We note that the tribal ordinance created American Web Loan, Inc.,

which is a corporate entity that does business as Clear Creek.

11 The control factor requires a balancing of various considerations. The

court in Williams noted that the outsourcing of ‘‘day-to-day management

to a [nontribal] entity . . . would not in itself weigh against immunity, given

the other evidence of [t]ribal control.’’ Williams v. Big Picture Loans, LLC,

supra, 929 F.3d 183. The court deemed the control factor to weigh in favor

of immunity, regardless of the outsourcing of day-to-day management,

because the first entity it considered was otherwise managed by tribal

members who were appointed by the council and empowered to run the

business. Id. In contrast, the Fourth Circuit held that the control factor did

not weigh in favor of immunity for the second entity it considered in Williams. Id., 183–84. The court came to this different conclusion because the

second entity was not managed by tribal members on a daily basis, the tribal

officers had little knowledge of the management practices and delegated

strategic tasks to nontribal members, and the entity conducted most of its

business off reservation with nontribal members. Id., 183. The culmination

of these facts led the court to conclude that the control factor weighed

slightly against immunity for the second entity. Id., 184.

12 Beyond arguing that the record is insufficient, the department emphasizes the nature of the harm in this case, namely, the high interest rates

imposed on Connecticut residents who entered into loans with the entities.

The department’s point is well taken from the perspective of its responsibility

of protecting Connecticut’s citizens from predatory financial practices. An
entity’s entitlement to tribal sovereign immunity, however, is an inquiry

distinct from the ethics of its business. Entitlement to tribal sovereign immunity ‘‘cannot and does not depend on a court’s evaluation of the respectability

of the business in which a tribe has chosen to engage.’’ Williams v. Big

Picture Loans, LLC, supra, 929 F.3d 185. Congress, rather than the courts,

is responsible for abrogating tribal sovereign immunity. See, e.g., Michigan

v. Bay Mills Indian Community, supra, 572 U.S. 800.

13 We note that our discussion in this section regarding Shotton’s immunity

is applicable to his claimed immunity as an officer of both entities. However,

because there is not enough evidence in the record to conclude that Clear

Creek is an arm of the tribe, the ultimate determination of Shotton’s immunity

regarding his affiliation with Clear Creek remains a matter for the commissioner to determine on remand in accordance with this opinion.

14 We note that whether there is an indemnification agreement between

a tribal employee and the tribe does not ultimately determine whether the

tribe’s sovereign immunity will extend to that individual. See Lewis v. Clarke,

supra, 137 S. Ct. 1293 (‘‘an indemnification provision cannot, as a matter

of law, extend sovereign immunity to individual employees who would

otherwise not fall under its protective cloak’’).

15 We note that the Ninth Circuit has taken a ‘‘[remedy focused]’’ approach

to determine the real party in interest, asking ‘‘whether 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 [sovereign] from acting, or to compel it to act.’’ (Internal quotation

marks omitted.) Maxwell v. San Diego, 708 F.3d 1075, 1088 (9th Cir. 2013).

Such an inquiry is consistent with the guidance provided by the United

States Supreme Court in Kentucky v. Graham, supra, 473 U.S. 159.

16 The cases cited by the defendants are distinguishable because they do

not concern actions by tribal employees acting in a leadership or policymaking capacity for a tribal entity that renders their actions inextricably

bound with those of the entity; instead, they concern actions personally

taken by tribal employees. See Pistor v. Garcia, supra, 791 F.3d 1108–1109,

1113–14 (tribe’s chief of police was deemed unprotected by tribal sovereign

immunity when he was sued in individual capacity for unconstitutionally

detaining plaintiffs); Maxwell v. San Diego, supra, 708 F.3d 1087–89 (individual members of tribal fire department did not have immunity for gross

negligence in providing emergency medical care); JW Gaming Development,

LLC v. James, Docket No. 3:18-cv-02669-WHO, 2018 WL 4853222, *4 (N.D.

Cal. October 5, 2018) (tribal employees were unprotected by tribal sovereign

immunity when they were sued in individual capacity for fraudulent misconduct resulting in damages), aff’d, 778 Fed. Appx. 545 (9th Cir. 2019), cert.

denied, U.S. , 140 S. Ct. 1297, 206 L. Ed. 2d 376 (2020); Solomon v.

American Web Loan, supra, 375 F. Supp. 3d 661–62 (tribal sovereign immunity did not protect nontribal, corporate official who personally profited at

rate that exceeded tribe’s profits, did not act in interest of tribe, and was

‘‘ ‘architect’ ’’ of fraudulent lending scheme); Williams & Cochrane, LLP v.

Quechan Tribe of Fort Yuma Indian Reservation, supra, 2018 WL 2734946,

*15–16 (defendants were sued in individual capacity because they allegedly

took part in creating fraudulent lending scheme); Pennachietti v. Mansfield,

Docket No. 17-02582, 2017 WL 6311646, *2–4 (E.D. Pa. December 11, 2017)

(tribal lending manager was not entitled to tribal immunity when he was

sued in his individual capacity for usurious loans personally initiated by

him when tribal entity was not named as defendant), appeal dismissed,

Docket No. 18-1070, 2018 WL 3475602 (3d Cir. January 31, 2018).

17 We note that determining that the tribe, rather than Shotton, is the real

party in interest is consistent with our analysis in Spring v. Constantino,

168 Conn. 563, 362 A.2d 871 (1975), in which we outlined the criteria for

determining whether a suit is against the state as the real party interest:

‘‘(1) a state official has been sued; (2) the suit concerns some matter in

which that official represents the state; (3) the state is the real party against

whom relief is sought; and (4) the judgment, though nominally against the

official, will operate to control the activities of the state or subject it to

liability.’’ Id., 568.

18 We note the department describes its claim against Shotton in a conclusory manner as arising from ‘‘his personal participation in violations of the

state’s usury and banking laws.’’

19 ‘‘In considering claims of federal law, it is well settled that, when the

United States Supreme Court has not spoken, we find decisions of the

Second Circuit particularly persuasive.’’ Feehan v. Marcone, 331 Conn. 436,

478, 204 A.3d 666, cert. denied, U.S. , 140 S. Ct. 144, 205 L. Ed. 2d
35 (2019).

20 The plaintiffs also contend that the Ex parte Young exception is not

available to the defendants because the defendants took action against

Shotton in his individual, rather than official, capacity, rendering Bay Mills

and Ex parte Young inapplicable. However, as the Second Circuit stated in

Gingras, ‘‘the only material difference between individual and official capacity suits for prospective, injunctive relief is that a judgment against the latter

is enforceable against future successive officers whereas judgments against

the former are not.’’ Gingras v. Think Finance, Inc., supra, 922 F.3d 123.

Therefore, it is irrelevant for the purposes of determining immunity from

injunctive relief whether the tribal official is being sued in his or her individual or official capacity.

21 A recent Ninth Circuit decision, Jamul Action Committee v. Simermeyer, 974 F.3d 984 (9th Cir. 2020), petition for cert filed sub nom. Jamul

Action Committee v. Sequoyah (U.S. May 11, 2021) (No. 20-1559), casts

some doubt on the applicability of Ex parte Young when tribal officials are

sued for injunctive relief but the nature of the relief indicates that the tribe

is the real party in interest. In Jamul Action Committee, the court held that,

although suits seeking prospective, injunctive relief against tribal officials

in their official capacity are permissible under Ex parte Young, such suits

are not permissible when a plaintiff seeks ‘‘to circumvent sovereign immunity

by naming some arbitrarily chosen governmental officer or an officer with

only general responsibility for governmental policy.’’ Id., 994. The Ninth

Circuit noted that the United States Supreme Court has limited the kind of

relief a plaintiff may seek under Ex parte Young to prevent the suit from

becoming one against the sovereign as the real party in interest. Id. For

example, the Supreme Court has not extended Ex parte Young to instances

in which plaintiffs sought to compel quiet title of a sovereign’s property,

compel payment of a sovereign’s legal obligation, or to compel specific

performance by the sovereign. Id., 994–95, citing Idaho v. Coeur d’Alene

Tribe of Idaho, 521 U.S. 261, 117 S. Ct. 2028, 138 L. Ed. 2d 438 (1997),

Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974),

and Ex parte Ayers, 123 U.S. 443, 8 S. Ct. 164, 31 L. Ed. 216 (1887). We

nevertheless find Ex parte Young applicable in this case because Jamul

Action Committee is distinguishable; enjoining Shotton’s future actions with

respect to payday lending operations does not operate against the tribe in

the same way as would compelling payment directly from tribal coffers or

surrendering tribal land. The department does not indicate the specific

conduct taken by Shotton personally but, rather, proceeds against him in

his official capacity to enjoin further unlawful practices. Such relief is appropriate under Ex parte Young and is consistent with the Second Circuit’s

decision in Gingras v. Think Finance, Inc., supra, 922 F.3d 112.

22 We note that ‘‘[a]n officer in an [individual capacity] action . . . may

be able to assert personal immunity defenses, such as, for example, absolute

prosecutorial immunity in certain circumstances.’’ (Emphasis in original.)

Lewis v. Clarke, supra, 137 S. Ct. 1292; see also Pearson v. Callahan, 555

U.S. 223, 231, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009) (‘‘qualified immunity

protects government officials from liability for civil damages insofar as their

conduct does not violate clearly established statutory or constitutional rights

of which a reasonable person would have known’’ (internal quotation marks

omitted)). Here, the plaintiffs assert, for the first time on appeal, that Shotton

is entitled to qualified immunity. However, such a claim was not presented

to the commissioner or the trial court and, therefore, is not properly before

this court. See, e.g., Lewis v. Clarke, supra, 1292 n.2 (declining to address

official immunity defense that was raised for first time on appeal).