PUBLISH UNITED STATES COURT OF APPEALS TENTH CIRCUIT

___________________ ________________ ROBERT C. BONNET , an individual; BOBBY BONNET LAND SERVICES, a sole proprietorship, Plaintiffs/Counterclaim-Defendants- Appellees, v. No. 12-4068 HARVEST (US) HOLDINGS, INC., a Delaware corporation; BRANTA EXPLORATION & PRODUCTION, LLC, a Delaware limited liability company; ELTON BLACKHAIR, an individual, Defendants/Counterclaim- Plaintiffs, and UTE ENERGY LLC, a Delaware limited company; CAMERON CUCH, an individual, Defendants.

––––––––––––––––––––––––––––––––– UTE INDIAN TRIBE OF THE UINTAH AND OURAY RESERVATION, Non-Party Movant-Appellant,

___________________ _________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH (D.C. No. 10-CV-217-CW-BCW) FILED United States Court of Appeals Tenth Circuit 

### January 28, 2014
Elisabeth A. Shumaker Clerk of Court2 ___________________ _________________ Frances C. Bassett (Thomas W. Fredericks, Jeremy J. Patterson, and Thomas McReynolds with her on the brief), Freder icks Peebles & Morgan LLP, Louisville, Colorado, for Non-Part y Movant-Appellant. Zachary E. Peterson (argued) (Lynn S. Davies and Rafael A. Seminario on the brief), Richards Brandt Miller Nelson, Salt Lake City, Utah, for Plaintiffs-Appellees.

___________________ _________________ Before GORSUCH , BALDOCK , and BACHARACH , Circuit Judges.

___________________ _________________ BALDOCK , Circuit Judge.

___________________ _________________ The issue before us is whether a subp oena duces tecum se rved on a non-party Tribe and seeking documents rele vant to a civil suit in fede ral court is itself a “suit” against the Tribe triggering trib al sovereign immunity. Exer cising jurisdiction under 28 U.S.C. § 1291, pursuant to th e collateral order doctrine, we hold the answer is yes. We therefore reverse the district court’s denial of the Tribe’s motion to quash based on tribal immunity.
I. Plaintiff Robert Bonnet is a petroleum landman who conducts business through his sole proprietorship, Bobby Bonn et Land Services; also a Plaintiff. In 2008, Plaintiffs entered into a written contract with the En ergy and Minerals Department of the Ute Indian Tribe of the Uintah and Ouray Reserva tion to serve collectively as an independent contractor and consultant. When the Tribe terminated this cont ract in April 2009, Plaintiffs, on the basis of diversity jurisdic tion, sued various companies and individuals3 (but not the Tribe) in federal court, a lleging these defendants caused the Tribe to terminate this contract prematurely. Plai ntiffs served the Tribe with a non-party subpoena duces tecum requesting documents rele vant to their suit. The Tribe moved to quash the subpoena based on the doctrine of tribal sovereign i mmunity. The district court denied the Tribe’s motion to quash based on tribal immunity, but m odified the subpoena to limit or strike requests it deemed overbro ad. Bonnet v. Harvest (US) Holdings, Inc., 2012 WL 994403, at *1 (D. Ut ah Mar. 23, 2012) (unpublished). The Tribe now appeals. In Part II of our opinion, we address whet her the Tribe, as a non-party, can appeal the district court’s denial of its mo tion to quash based on tribal immunity, notwithstanding lack of a final judgment. We hold such denial is an immediately appealable collateral order. In Part III, we address whether a subpoena duces tecum served on the Tribe and requesting documents relevant to the underlyin g civil suit in federal court is itself a “suit” against the Tr ibe triggering tribal so vereign immunity. We hold this form of judicial process is a “s uit” against the Tribe and therefore tribal immunity bars enforcement of the instant subpoena.
II. Our appellate jurisdiction depends on whethe r the district court’s denial of the Tribe’s motion to quash the subpoena based on tribal so vereign immunity is an immediately appealable order notwithstanding l ack of a final judgment. The denial of a motion to quash is generally a non-appealable interlocutory or der. United States v. Ryan, 402 U.S. 530, 532 (1971). Under the collate ral order doctrine established in Cohen v. Beneficial Indus. Loan Corp ., 337 U.S. 541 (1949), howeve r, an order is immediately4 appealable if the order (1) conclusively determ ines the disputed ques tion, (2) resolves an important issue completely separate from the merits of the case, and (3) is effectively unreviewable on appeal from a final judgment. See United States v. Leon, 132 F.3d 583, 587 (10th Cir. 1997). We have recognized th at “the denial of tribal immunity is an immediately appealable collateral order.” See, e.g., Osage Tribal C ouncil ex rel. Osage Tribe v. U.S. Dep’t of Labor, 187 F.3d 1174, 1179 (10th Cir. 1999). In Osage, we held an order denying tribal immunity meets th e Cohen requirements for an immediately appealable collateral order b ecause (1) the order conclusive ly determines the disputed question of tribal immunity, (2) tribal immunity is an importa nt issue completely separate from the merits of the case, and most importan tly, (3) the denial of tribal immunity is effectively unreviewable on appe al from a final judgment because tribal immunity is “‘an immunity from suit rather than merely a defense to lia bility,’” which is “‘effectively lost’” if the case is allowed to pro ceed. Id. (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). Osage and its progeny, however, involve ca ses where the tribe was a named party to the litigation. “[A] nonparty must indepe ndently satisfy our cr iteria for permitting a nonparty appeal.” Bode v. Clark Equip. Co., 807 F.2d 87 9, 881 (10th Cir. 1986) (citing Dietrich Corp. v. King Resources Co., 596 F.2d 422, 424 (10th Cir. 1979)). In Bode, we held we lacked appellate jurisdiction over a non-party’s appeal from an apportionment order because the apportionment order was neith er a final order nor did it satisfy the requirements of an immediately appealable collateral order under Cohen. Id. By comparison, in Dietrich, we he ld a law professor who provide d consulting services to two5 law firms in a particular case could appeal a trial court order limiting his compensation agreement with the firms even though he was neither a part y nor an attorney of record in the case. Dietrich, 596 F.2d at 424. Without much reasoning or reference, we stated that this order was a final order. We allowed th e non-party professor to appeal because his interest in the consulting contract made him “an aggrieved party [who se] property interest can be protected only by recognizing this as one of those extrao rdinary cases where a nonparty may be allowed to appeal.” Id. (citing Commercial Sec. Bank v. Walker Bank & Trust Co., 456 F.2d 1352, 1354 (10th Cir. 1972). The Tribe argues that even though it is not a party to the underlying litigation, the district court’s denial of its motion to quash based on tribal immuni ty is an immediately appealable collateral order because tribal imm unity is a jurisdictional issue. Plaintiffs concede the denial of tribal immunity gene rally satisfies the Cohen requirements and generally constitutes an immediately appealab le collateral order. They argue, however, that in order to appeal as a non-party, Dietrich requires the Tribe to al so show this is an extraordinary case where the Tribe’s property interests can only be protected by permitting a non-party appeal. Plaintiffs argue the Trib e cannot make this showing because the district court limited or struck the disc overy requests “that would significantly impact the tribal tr easury or tribal governance.” The issue of tribal immunity is indeed ju risdictional, Ramey Const. Co. v. Apache Tribe of Mescalero Reservati on, 673 F.2d 315, 31 8 (10th Cir. 1982), and a look at the precedent underlying Dietrich be lies Plaintiffs’ argument. In Walker Bank & Trust Co., 456 F.2d at 1354, the United States appeared specially, as a non-party, to argue the6 district court lacked jurisdiction to enjoin the United States from conducting a sheriff’s sale. The district court dec lined to rule on the United Stat es’ motion. The United States then appealed, again arguing the district court did not have ju risdiction to enjoin it. The plaintiffs in that case argued the United Stat es, as a non-party, c ould not appeal. We rejected this argument “by application of the classic reductio ad absurdum method.” Id. We reasoned that: “To enjoin an act, the cour t must have jurisdicti on of the [non-party] so enjoined. . . . Assuming ar guendo that the court below had no such jurisdiction,” denying the non-party an opportunity to appe al, and binding it to honor the order, “would in effect vest the court belo w with jurisdiction, by estoppel of the [non-par ty’s] appeal, where none previously exis ted. Such a result is patently absurd.” Id. As in Walker Bank & Trus t Co., the district court here exercised original jurisdiction over a non-party, th e Tribe, not to enjo in an act, but to re quire an affirmative act by enforcing a subpoena. Assuming the dist rict court had no ju risdiction to enforce Plaintiffs’ subpoena against th e Tribe because of tribal imm unity, to deny the Tribe the opportunity to appeal and thereby vest the di strict court with jurisdiction over the Tribe by estoppel where no jurisdiction previously existed would be absurd. Furthermore, the Cohen requirements are met in this case. First, the order conclusively determines the disputed question of tribal immunity. Seco nd, tribal immunity is an important issue completely separate from the merits of this case. Finally, the denial of tribal immunity is effectively unreviewable on appeal from a fina l judgment because, if the Tribe is entitled to immunity from a particular judicial process, this immunity is effec tively lost as soon as the Tribe is subjected to that process. Mo reover, given that tribal immunity is itself a7 jurisdictional issue, the district court’s de nial of tribal sovereign immunity is an immediately appealable collateral order even where the tribe is a non-party. Thus, we have jurisdiction over th is appeal and proceed.
III. We review de novo the legal question whet her the Tribe, as a non-party, is entitled to tribal immunity from a su bpoena duces tecum. See Ute Distrib. Corp. v. Ute Indian Tribe, 149 F.3d 1260, 1263 (10t h Cir. 1998). The doctrine of tribal sovereign immunity dictates a federally recognized tribe “i s subject to suit only where Congress has authorized the suit or the tribe has waived its immunity.” Kiowa Tribe v. Mfg. Techs., 523 U.S. 751, 754 (199 8). The parties do not dispute the Tribe’s entitlement to tribal immunity under this rule or that the Tribe’ s Energy and Minerals Department is indeed and arm of the Tribe. Nor do Plaintiffs argue congressional authorization or tribal waiver. Rather, the parties here dispute on ly whether a subpoena served on a non-party tribe in a civil case in federal court is a “sui t” triggering tribal sovereign immunity in the absence of congressional authorization or trib al waiver. This is an issue of first impression in this Circuit.
A. Early American jurisprudence defined a “suit” as “the prosecution of some demand in a Court of justice.” Cohens v. Virginia, 19 U.S. 264, 407 (1821). In Cohens, the Court described a suit as the instrument whereby an injured party is “put in possession of that right whereof [he] is depriv ed.” Id. Further, th e Court explained, one brings a suit against a state “for the purpose of establishing some claim against it by the8 judgment of a Court.” Id. at 408. A su bpoena, on the other ha nd, merely compels the production of evidence, which the court needs in order to fully and fairly adjudicate this underlying claim or demand. See Fed. R. Civ. P. 45. The Supreme Court has avoided deciding whether a subpoena is a “suit” ag ainst a sovereign by limiting this form of discovery on narrower grounds. See, e.g., U.S. ex rel. Touhy v. Ra gen, 340 U.S. 462, 467–68 (1951) (upholding a regulation pr ohibiting federal agency employees from releasing documents without co nsent of the agency head). Our precedent, however, leads to the logical conclusion that a subpoena duce s tecum served directly on a tribe is a “suit” triggering tribal sovereign immunity. In United States v. Murdock Mach. & En g’g Co. of Utah, 81 F.3d 922 (10th Cir. 1996), we concluded “the term ‘suit’ embodies the broad principle that the government is not subject to ‘legal proceedings, at law or in equity’ or ‘ judicial process ’ without its consent.” Id. at 931 (empha sis added) (quoting Belknap v. Schild, 161 U.S. 10, 16 (1896)). We reasoned that “[i] nterpreting the term ‘suit’ br oadly comports with the core notion of sovereign immunity that in the ab sence of governmental consent, the courts lack jurisdiction to ‘restrain the government from acting, or to comp el it to act.’” Id. (quoting Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 704 (1949)). We therefore held sovereign immunity re ndered the United Stat es immune from the automatic stays provided by Rules 401 and 601 of the Bankruptcy Act of 1898. Id. at 932. Furthermore, in Becker v. Kroll, 494 F.3d 904 (10th Cir. 20 07), we acknowledged that “‘[t]he issuance of a su bpoena initiates an adversary process that can command the production of documents and things only after judicial process is afforded .’” Id. at 9229 (emphasis added) (quoting In re Subpoena Duces Tecum, 228 F.3d 341, 348 (4th Cir. 2000)). According to binding precedent then: tribes are immune from “suit” under Kiowa, “suit” includes “judicial process” under Mu rdock, and a subpoena duces tecum is a form of judicial process under Becker. The logica l conclusion, therefore, is that a subpoena duces tecum served directly on the Tribe, regardless of whether it is a party to the underlying legal action, is a “s uit” against the Tribe, trigge ring tribal sovereign immunity.
B. Plaintiffs argue we should not apply precedent construing federal sovereign immunity to tribal immunity i ssues because tribal immunity is a separate and incongruent doctrine that the Supreme Court has recently criticized. True, “because of the peculiar ‘quasi-sovereign’ status of the Indian tribes , the Tribe’s immunity is not congruent with that which the Federal Governme nt, or the States, enjoy.” Three Affiliated Tribes of Fort Berthold Reservation v. Wold Eng’g, 476 U.S. 877, 890 (1986); see also Montana v. United States, 450 U.S. 544, 563 (1981) (“Indian tribes have lost ma ny of the attributes of sovereignty” by their inco rporation into the United States ,). Furthermore, although the Supreme Court created the doctrine of tr ibal immunity, the Court has acknowledged “there are reasons to doubt the wisdom of perpetuating the doctrine,” and that it is “‘founded upon an anachronistic fiction.’” Kiowa, 523 U.S. at 758 (quoting Oklahoma Tax Comm’n v. Citizen Band Potawatomi Indi an Tribe of Oklahoma, 498 U.S. 505, 514– 15 (1991) (Stevens, J., concurring)). The Co urt has “retained the doctrine, however, on10 the theory that Congress ha[s ] failed to abrogate it in order to promote economic development and tribal self-sufficiency.” Id. at 757. We agree that many reasons exist to do ubt the wisdom of perpetuating tribal immunity, at least as an overar ching rule. But in order to ho ld the Tribe is not immune in this case, we would have to define the same term, “suit,” to mean two different things, depending on whether judicial process is being exercised against the United States or an Indian tribe. This we are not inclined to do. Plaintiffs also argue applying tribal immunity to the inst ant case would be inconsistent with Circuit Court precedent. Plaintiffs first point us to Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140, 1154 (10t h Cir. 2011), where we stated “[t]ribal immunity is similar, although not identical, to immunity afforded to states under the Eleventh Amendment. The scope of tribal immunity, however, is more limited. ” Id. (emphasis added) (internal c itations omitted); see also TTEA v. Ysleta del Sur Pueblo, 181 F.3d 676, 680 (5th Cir. 1999) (“There is no reason that the federal common law doctrine of tribal sovereign immunity, a distinct but si milar concept, should extend further than the now-constitutionalized doctrine of state sovereign immunity.”). Plaintiffs then point us to In re Missouri Dep’t of Natural Res., 105 F.3d 434, 436 (8 th Cir. 1997), where the Eighth Circuit rejected a non-pa rty state agency’s claim of immunity from discovery subpoenas, stating, “There is si mply no authority fo r the position that the Eleventh Amendment shields g overnment entities from discovery in federal court.” Id. True, in Crowe & Dunlevy, we said trib al immunity is more limited than the immunity afforded to th e states under the Eleventh Amendm ent. We went on to explain,11 however, that this was because, unlike Eleven th Amendment immunity , “tribal immunity is a matter of federal common law, not a constitutional guarantee, [and] its scope is subject to congressional control and modificati on.” Crowe & Dunlevy, 640 F.3d at 1154. Furthermore, we are not bound by Mi ssouri DNR. Rather, under our binding precedent—namely, Murdock an d Becker—the Eleventh Am endment may well shield a state agency from discove ry in federal court. As such, applying tribal immunity to bar the instant subpoen a does not require ho lding the Tribe is en titled to any broader immunity than the States. Indeed, our holding here in no way affects Crowe & Dunlevy’s accurate statement that tribal im munity remains more limited than Eleventh Amendment immunity because Congress may ab rogate tribal immunity at any time.
C. Only the Eighth Circuit has squarely a ddressed the issue before us; however, its holding is broader than ours today. In Alltel Commc’ns, LLC v. DeJordy, 675 F.3d 1100 (8th Cir. 2012), the Eighth Circuit reversed, ba sed on tribal immunity, a district court’s denial of a motion to quash a subp oena served on a non-party tribe and a non-party tribal official. Id. at 1106. Although recognizing “the an swer to this issue is far from clear,” the Eighth Circuit held “that a federal cour t’s third-party subpoe na in private civil litigation is a ‘suit’ that is subject to Indian tr ibal immunity.” Id. at 1105. In reaching its decision, the court followed precedent from othe r circuits that construe federal sovereign immunity as covering non-party subpoenas se rved on federal officers and agencies. See id. at 1103. The Eighth Circuit recognized , however, that barring a third-party subpoena under tribal immunity is “far more unsettling”:12 Concluding that a third-party subp oena is a “suit” triggering the federal government’s sovereign immunity is significant, but it does not give the Executive Branch a “blank check” to ignore third-party subpoenas because the agency response may be judicially reviewed under the Administrative Procedure Act, 5 U.S.C. § 702. Here, the Tribe’s claim that tribal immunity confers the same grant of immunity from third-party judicial process is far mo re unsettling because the Tribe is not subject to the Administrative Procedure Act or to any comparable legislation containing a limited procedural waiver. Id. at 1104. The Eighth Circuit acknowle dged it might be conferring “greater immunity [on Indian tribes] than that enjoyed by federal officers and agencies, or by the States, whose sovereign immunity is protec ted by the Eleventh Amendment. ” Id. Nevertheless, the court concluded, “per mitting broad third-part y discovery in civil litigation threatens to contravene federal policies of tribal self -determination, economic development, and cultural autonomy that underlie the federal doctrine of tribal immunity.” Id. The court reasoned, “even if denying Alltel the disc overy it seeks in this case works some inconvenience, or even injus tice, it is too late in the day, and certainly beyond the competence of this court, to take issue with a doctrine so well-estab lished.” Id. at 1106 (internal quotation marks omitted). Although we agree with th e Eighth Circuit’s holding as to the immunity enjoyed by the Tribe itself, we need not decide whether a tribal offi cial is also immune from an appropriate federal discovery request. Ind eed, we see no reason why an Indian tribe should be able to “shut off an appropriate judicial dema nd for discovery” served on a tribal official, rather than against the Tribe itself. See Touhy, 340 U.S. at 47213 (Frankfurter, J., concurring). 1 As such, we do not share the Eighth Circuit’s apprehensions over holding that subpoena duces tecum served against the Tribe itself is a “suit” triggering tribal sovereign immunity. Accordingly, the district court’s deni al of the Tribe’s motion to quash is hereby REVERSED.

1 For example, under Ex parte Young, 209 U.S. 123 (1908), which applies with equal force against both state and tribal official s under Crowe & Dunlevy, 640 F.3d at 1154, neither a state nor a tribe would appear to be immune from a discovery request served on the appropriate agency official , rather than on the agency itself, although other privileges or protections may apply. True, the Supreme Court has held: “The gene ral rule is that a suit is against the sovereign ‘if the judgment sou ght would expend itself on the public treasury or domain, or interfere with the public administration,’ or if the effect of the judgment would be ‘to restrain the Government from acting, or to co mpel it to act.’” Du gan v. Rank, 372 U.S. 609, 620 (1963) (quoting Land v. Dollar, 330 U.S. 731, 738 (1947); Larson, 337 U.S. at 704). If a subpoena were served on a tribal official, rather than the Tribe, however, neither Dugan nor Larson woul d be triggered, as “[t]he Ex parte Young exception proceeds on the fiction that an action against a state offi cial seeking onl y prospective injunctive relief is not an action against the st ate and, as a result, is not subject to the doctrine of sovereign immunity .” Crowe & Dunlevy, 640 F. 3d at 1154 (citing Pennhurst State Sch. & Hosp. v. Halderma n, 465 U.S. 89, 10 5 (1984)). We need not decide these issues now, however, as Plaintiffs here served a Tribal agency, rather than a tribal official or state agency or official.