IN THE

SUPREME COURT OF THE STATE OF ARIZONA

____________________________________________

HWAL’BAY BA: J ENTERPRISES, INC.,

Petitioner,

v.

HONORABLE LEE F. JANTZEN, JUDGE OF THE SUPERIOR COURT

OF THE STATE OF ARIZONA, IN AND FOR THE

COUNTY OF MOHAVE,

Respondent Judge,

and

SARA AND WILLIAM FOX,

Real Parties in Interest.

______________________________________________

No. CV-19-0123-PR

Filed February 25, 2020

______________________________________________

Appeal from the Superior Court in Mohave County

The Honorable Lee F. Jantzen, Judge

No. CV2018-00428

AFFIRMED

Order of the Court of Appeals, Division One

1 CA-SA 19-0059

Filed April 03, 2019

______________________________________________

COUNSEL:

D. Samuel Coffman (argued), Mitesh V. Patel, Vail C. Cloar, Dickinson 

Wright PLLC, Phoenix; Verrin T. Kewenvoyouma, Kewenvoyouma Law,

PLLC, Tempe, Attorneys for Hwal’Bay Ba: J Enterprises, Inc.
HWAL’BAY BA: J ENTERPRISES, INC. V. HON. JANTZEN/FOX

Opinion of the Court

2

David L. Abney (argued), Ahwatukee Legal Office, P.C., Phoenix; John P. 

Torgenson, Jon T. Drago, Torgenson Law, Phoenix, Attorneys for Sara and 

William Fox

William A. Nebeker, John M. Sticht, Koeller, Nebeker, Carlson & Haluck 

LLP, Phoenix, Attorneys for Amicus Curiae Grand Canyon Custom Tours, 

Inc.

Doreen N. McPaul, Attorney General, Navajo Nation Department of 

Justice, Window Rock; Susan B. Montgomery, Jay Tomkus, Montgomery & 

Interpreter, PLC, Phoenix; Sam Hirsch, Jenner & Block LLP, Washington,

DC, Attorneys for Amici Curiae The National Congress of American 

Indians Fund, The Inter Tribal Association of Arizona, Inc., and The Navajo 

Nation

____________________

VICE CHIEF JUSTICE TIMMER authored the Opinion of the Court, in 

which CHIEF JUSTICE BRUTINEL and JUSTICES BOLICK, GOULD, 

LOPEZ, BEENE and MONTGOMERY joined. JUSTICE BOLICK filed a

concurring opinion.

____________________

VICE CHIEF JUSTICE TIMMER, Opinion of the Court:

¶1 An Indian tribe’s “subordinate economic organization” 

serves as an “arm of the tribe” and therefore shares its sovereign immunity. 

This tort case affords us an opportunity to identify factors courts should 

examine to decide whether a tribal entity serves in that capacity. After 

doing so, we conclude the tribal entity here did not prove it is a subordinate 

economic organization entitled to share the tribe’s immunity, and the 

superior court therefore did not err by denying the entity’s motion to 

dismiss.

BACKGROUND

¶2 In April 2016, Sara Fox was seriously injured while whitewater rafting on the Colorado River through the Grand Canyon. Arizona 

holds title to the lands beneath the river, and Fox therefore suffered her 

injuries on state land. See Morgan v. Colo. River Indian Tribe, 103 Ariz. 425, 

427 (1968). The rafting boat was operated by employees of Hwal’Bay Ba: J 

Enterprises, Inc., which does business under the trade name Grand Canyon 
HWAL’BAY BA: J ENTERPRISES, INC. V. HON. JANTZEN/FOX

Opinion of the Court

3

Resort Corporation (“GCRC”). GCRC is a tribal corporation whose sole 

shareholder is the Hualapai Indian Tribe (the “Tribe”), a federally 

recognized Indian tribe. The Hualapai Reservation is contiguous to parts 

of the Colorado River.

¶3 Fox and her husband filed suit against GCRC, the Tribe, and 

unidentified “John Does” seeking compensatory and punitive damages. 

The Foxes also sued Grand Canyon Custom Tours, Inc. (“GCCT”), an 

Arizona corporation, which sold them the rafting trip in an online 

transaction. GCCT is not affiliated with the Tribe but served as GCRC’s 

booking agent. Foxes’ claims against GCCT are not before us.

¶4 The Tribe and GCRC moved to dismiss the complaint

pursuant to Rules 12(b)(2) and (5), Arizona Rules of Civil Procedure, 

arguing they possessed sovereign immunity from suit, which precluded the 

court from exercising personal jurisdiction, and they were not properly 

served. After briefing and argument, the court found that the Foxes had 

properly served both defendants. It dismissed the complaint against the 

Tribe on sovereign immunity grounds but declined to dismiss the 

complaint against GCRC, finding it not protected by sovereign immunity. 

The court denied GCRC’s request to reconsider that decision.

¶5 GCRC unsuccessfully petitioned the court of appeals for 

special action relief from the superior court’s partial denial of the motion to 

dismiss. We granted review to decide the circumstances under which a 

tribal entity enjoys sovereign immunity as a “subordinate economic 

organization” of the tribe, a recurring issue of statewide importance.

DISCUSSION

I. General principles

A. Sovereign immunity

¶6 Indian tribes, as “domestic dependent nations,” are immune 

from lawsuits in state and federal court, unless that immunity is waived by 

the tribe or abrogated by Congress. Kiowa Tribe v. Mfg. Techs., Inc., 523 U.S. 

751, 754 (1998); Okla. Tax Comm’n v. Citizen Band Potawatomi Indian Tribe, 498 

U.S. 505, 509 (1991). Sovereign immunity applies to a tribe’s commercial 

and government activities, conducted both on and off the reservation. See 
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Opinion of the Court

4

Kiowa, 523 U.S. at 760. Sovereign immunity does not shield individual tribal 

employees sued in their personal capacities, even if the tribe is obligated to 

indemnify them. See Lewis v. Clarke, 137 S. Ct. 1285, 1288 (2017).

B. Subordinate economic organizations

¶7 Sovereign immunity also applies to a subordinate economic 

organization, which is considered an arm of the tribe. White Mountain 

Apache Indian Tribe v. Shelley, 107 Ariz. 4, 7 (1971); see also Inyo Cty. v. PaiuteShoshone Indians of the Bishop Cmty. of the Bishop Colony, 538 U.S. 701, 705 n.1 

(2003) (“The United States maintains, and the County does not dispute, that 

the Corporation is an ‘arm’ of the Tribe for sovereign immunity 

purposes.”). Recognizing immunity for subordinate economic 

organizations permits tribes to conduct commercial activities through 

subordinate governmental agencies without unintentionally waiving 

sovereign immunity. See Dixon v. Picopa Constr. Co., 160 Ariz. 251, 256 

(1989); see also Shelley, 107 Ariz. at 7 (concluding “it would defeat the 

purpose of Congress in granting immunity to Indian Tribes” if subordinate 

economic organizations of a tribe were not cloaked with sovereign 

immunity).

¶8 The issue before us is whether GCRC is immune from suit as 

a subordinate economic organization of the Tribe, or, as the superior court

ruled, has no immunity because it is an entity separate and distinct from 

the Tribe. GCRC bears the burden of demonstrating its immunity by a 

preponderance of the evidence. See Williams v. Big Picture Loans, LLC, 929 

F.3d 170, 176 (4th Cir. 2019); People v. Miami Nation Enters., 386 P.3d 357, 365

(Cal. 2016). We review the superior court’s denial of GCRC’s motion to 

dismiss for an abuse of discretion, although we decide the legal issues 

underlying that ruling de novo. See Leach v. Reagan, 245 Ariz. 430, 441 ¶ 53 

(2018); Nataros v. Superior Court, 113 Ariz. 498, 499-500 (1976).

¶9 We have not established a test to identify subordinate 

economic organizations, and no nationwide consensus exists on the 

appropriate inquiry. See Miami Nation Enters., 386 P.3d at 366 (“In the 

absence of guidance from the high court, state and federal courts have 

articulated a variety of arm-of-the-tribe tests.”). Generally, courts outside 

Arizona have relied on one or more factors, such as examining an entity’s 

creation, purpose, ownership, governance, and financial relationship with 

the tribe and the tribe’s intent concerning the applicability of sovereign 

immunity. See id. at 366–67 (summarizing approaches taken by state and 
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Opinion of the Court

5

federal courts). In adopting the appropriate framework for deciding 

whether an entity is a subordinate economic organization and thus an arm 

of the tribe, we are guided by prior Arizona cases, authorities outside our 

state, and the purposes underlying sovereign immunity for Indian tribes.

¶10 This Court first addressed subordinate economic entities in 

Shelley, which concerned a breach-of-contract suit filed in superior court

against the Fort Apache Timber Company (“FATCO”). The White 

Mountain Apache Indian Tribe created FATCO as an unincorporated 

entity. Shelley, 107 Ariz. at 7. Nevertheless, the superior court ruled FATCO 

was either a corporation by estoppel or a de facto corporation, making it a

separate legal entity not entitled to share the tribe’s immunity. Id. at 5.

¶11 This Court reversed. Id. at 7–8. We examined FATCO’s

relationship with the tribe to determine whether FATCO shared the tribe’s

sovereign immunity. Id. at 5–6. The Court initially noted that the tribal 

constitution authorized the tribe to create FATCO for economic purposes. 

Id. It also relied on FATCO’s plan of operation, which provided that 

FATCO was created to serve the economic and employment interests of the 

tribe and its members, including business training, and authorized the tribe 

to establish qualifications for board members, appoint and suspend 

members, and set member salaries. Id. at 6. The plan also stated that the 

White Mountain Apache owned FATCO, all FATCO property was titled in 

the tribe’s name, and all purchases had to be made through the tribal 

purchasing agent and in compliance with tribal policies. Id. FATCO’s 

board of directors was authorized to act “for and on behalf of” the tribe in 

all phases of the business. Id. Based on these facts, the Court concluded

FATCO was “part of the tribe” and thus entitled to share its sovereign 

immunity. Id. at 7–8.

¶12 In S. Unique, Ltd. v. Gila River Pima-Maricopa Indian 

Community, 138 Ariz. 378 (App. 1983), the court of appeals addressed 

whether sovereign immunity barred a breach-of-contract claim against Gila 

River Farms (“GRF”), an unincorporated entity. Resolution of the dispute

depended on whether GRF was created and controlled by the Gila River 

Indian Community (the “Community”), which was organized for 

governmental purposes under section 16 of the Indian Reorganization 

(Wheeler-Howard) Act, 25 U.S.C. § 5123, or by the Gila River PimaMaricopa Indian Community (the “Indian Corporation”), which was 

incorporated for business or commercial purposes under section 17 of that 

Act, 25 U.S.C. § 5124, and had waived immunity from suit. Id. at 379–80, 
HWAL’BAY BA: J ENTERPRISES, INC. V. HON. JANTZEN/FOX

Opinion of the Court

6

382, 386. Relying on Shelley, the court concluded GRF was a subordinate 

economic organization of the Community, not the Indian Corporation, and 

therefore shared the Community’s sovereign immunity. Id. at 381. It cited

evidence that the Community’s constitution and bylaws authorized it to 

create subordinate organizations for economic purposes; GRF existed to 

serve the Community and its members’ economic and employment

interests; and the Community’s ownership of GRF property and managerial 

oversight made GRF “an integral part of the Community.” Id.

¶13 This Court next addressed subordinate economic entities in 

Dixon. Dixon was injured off-reservation when a truck owned by Picopa

Construction Company (“Picopa”) rear-ended her car. Dixon, 160 Ariz. at 

252. She sued Picopa, which claimed sovereign immunity due to its status 

as a tribal corporation created by the Salt River Pima-Maricopa Indian 

Community. Id. at 252–53. Contrasting the circumstances with those in 

Shelley and S. Unique, the Court concluded Picopa was not a subordinate 

economic organization of the tribe entitled to immunity. Id. at 256.

¶14 In reaching its decision, the Dixon Court cited several factors 

that differentiated Picopa from FATCO and GRF. Id. at 256–57. Unlike the 

latter entities, Picopa was incorporated, making it an “artificial individual,” 

which the tribe had imbued with authority to act “to the same extent as 

natural persons might or could do.” Id. at 258 (quoting Community 

Ordinance No. SRO-85-84 ¶ C). Picopa’s corporate status “weigh[ed] 

heavily” against characterizing it as a subordinate economic organization. 

Id. Unlike the entities in Shelley and S. Unique, Picopa was managed by a 

board of directors rather than the tribal government. Id. at 256. Picopa’s 

charter relieved the tribe from any corporate liability, and general liability 

insurance covered Picopa’s negligent acts, thereby insulating the tribe’s 

assets from Picopa’s debts and evidencing the tribe’s expectation that 

Picopa would be liable for torts. Id. at 256–57. The tribe formed Picopa for 

“business purposes” but, unlike in Shelley and S. Unique, did not declare an 

objective of promoting “general tribal or economic development.” Id. at 

257. “Most importantly,” Picopa was not created to help the tribe carry out 

its government functions. Id. “Picopa was simply a for-profit corporation 

involved in construction projects.” Id.

¶15 The Court also found that extending immunity to Picopa 

would not further several federal policies underlying sovereign immunity. 

See id. at 258–59. Extending immunity to Picopa was not necessary to 

protect tribal assets due to the existence of the limited liability clause in the 
HWAL’BAY BA: J ENTERPRISES, INC. V. HON. JANTZEN/FOX

Opinion of the Court

7

corporate charter and liability insurance. Id. at 258. Denying immunity to 

Picopa would not hinder tribal cultural autonomy and self-determination 

because Picopa was created for purely commercial reasons rather than to 

develop tribal interests, and a private lawsuit based on an off-reservation 

tort would not limit the tribe’s exercise of its powers. Id. at 258–59. Finally, 

the Court found that denying immunity to Picopa would further the federal 

government’s policy of promoting commercial dealings between Indian 

tribes and non-Indians. Id. at 259 (“Non-Indians will undoubtedly think 

long and hard before entering into business relationships with Indian 

corporations that are immune from suit.”).

¶16 Sorting through Shelley, S. Unique, Dixon, and cases outside 

Arizona, we identify and adopt six non-exclusive factors to examine in 

deciding whether an entity is a subordinate economic organization of a 

tribe, entitling it to share in the tribe’s sovereign immunity:

¶17 (1) The entity’s creation and business form. The court should 

consider who created the entity, under what authority, and the entity’s 

structural form, e.g., an unincorporated enterprise, a partnership with a 

non-Indian entity, or a corporation. Creation by the section 16

governmental organization of the tribe pursuant to its constitution weighs 

in favor of finding that the entity is a subordinate economic organization. 

See Shelley, 107 Ariz. at 5–6; S. Unique, 138 Ariz. at 381; see also Miami Nation 

Enters., 386 P.3d at 372 (stating that “whether the tribe initiated or simply 

absorbed an operational commercial enterprise” is relevant). If the entity 

was created by the tribe’s section 17 commercial corporation, which itself 

waived immunity, the entity is less likely a subordinate economic 

organization of the tribe. See S. Unique, 138 Ariz. at 383-84, 386. Also, if the 

entity is a corporation, that fact “weighs heavily” against finding it is a 

subordinate economic organization. See Dixon, 160 Ariz. at 258. This is so 

because incorporation establishes the entity as “separate and distinct” from 

the tribe, Shelley, 107 Ariz. at 5, may imply a waiver of immunity, see Dixon, 

160 Ariz. at 258, and itself furthers a policy underlying sovereign immunity 

by insulating the tribe’s assets from corporate liability, see id.

¶18 (2) The entity’s purpose. Pertinent here is whether the entity 

exists solely as a profit-making venture that merely generates revenue for

the tribe or its members, or whether it also assists the tribe in carrying out 

its governmental functions, such as promoting tribal or economic 

development, preserving cultural autonomy, or funding governmental 

services. See Dixon, 160 Ariz. at 257; Shelley, 107 Ariz. at 6; Miami Nation 
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Opinion of the Court

8

Enters., 386 P.3d at 372. If the entity’s purpose is solely to engage in 

commercial activity, this factor weighs against immunity. See Dixon, 160 

Ariz. at 257. But if the purpose is to further goals of tribal self-governance, 

even if the entity also has a commercial purpose, this factor weighs in favor 

of immunity. See id.; Shelley, 107 Ariz. at 6; S. Unique, 138 Ariz. at 381. We 

agree with the California Supreme Court that a court should examine both 

the entity’s declared purpose “and the degree to which the entity actually 

serves that purpose” to determine whether “its activities [are] sufficiently 

germane to tribal self-governance.” Miami Nation Enters., 386 P.3d at 372. 

The more the entity actually serves the tribe in carrying out governmental 

functions, the more likely the entity is a subordinate economic organization.

¶19 (3) The business relationship between the tribe and the entity. 

Under this factor, a court examines the structure, management, and 

ownership of the entity. This inquiry should illuminate the tribe’s 

ownership interest and the amount of control exercised by it over the 

entity’s affairs. “Control” does not require directing day-to-day operations 

but addresses the tribe’s involvement in the direction and control of the 

entity. See id. at 373 (citing Gavle v. Little Six, Inc., 555 N.W.2d 284, 295 

(Minn. 1996)). “Evidence that the tribe actively directs or oversees the 

operation of the entity weighs in favor of immunity; evidence that the tribe 

is a passive owner, neglects its governance roles, or otherwise exercises 

little or no control or oversight weighs against immunity.” Id.; see also 

Dixon, 160 Ariz. at 256 (stating that unlike the circumstances in Shelley and 

S. Unique, “Picopa has a board of directors, separate from the tribal 

government, which exercises full managerial control over the corporation”).

¶20 A tribe’s shared ownership of an entity suggests it is not an 

“arm of the tribe” entitled to shared immunity. See Miami Nation Enters., 

386 P.3d at 373 (agreeing “indirect ownership and control of the tribal 

corporation weighs against a finding of immunity” (citation omitted)

(internal quotation marks omitted)). Conversely, a tribe’s ownership of 

property used by the entity for its business pursuits weighs in favor of 

finding that the entity is a subordinate economic organization. See Shelley, 

107 Ariz. at 6; S. Unique, 138 Ariz. at 381.

¶21 The court should also determine whether the entity 

represents the tribe in any capacity. See Shelley, 107 Ariz. at 6 (noting 

FATCO’s board had “full authority to act for and on behalf of” the tribe in 

all phases of FATCO’s operations); S. Unique, 138 Ariz. at 381 (stating GRF’s 

board “represent[ed] the Community in all matters” (alterations accepted)). 
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Opinion of the Court

9

The more the entity represents the tribe’s interests, the more likely the entity 

serves as an arm of the tribe.

¶22 (4) The tribe’s intent to share immunity with the entity. The

court should be less inclined to conclude that an entity shares a tribe’s 

immunity if the tribe itself did not intend this result. The tribe’s intent is 

reflected not only by declarations but by actions. Thus, for example, an

entity’s obligation to indemnify and hold the tribe harmless for the entity’s 

tort liability, or the procurement of liability insurance protecting the tribe 

and the entity from the entity’s negligence, evidences the tribe’s expectation 

that the entity would be responsible for its torts. See Dixon, 160 Ariz. at 256–

57.

¶23 (5) The financial relationship between the entity and the tribe. 

The court should determine whether the tribe’s assets are protected from 

judgments entered against the entity. See id.; Miami Nation Enters., 386 P.3d 

at 373. But even if tribal assets are not directly at risk, the court must 

consider whether enforcement of any judgment against the entity would 

“effectively strike a blow against the tribal treasury” due to the tribe’s 

heavy dependence on entity revenues to fund governmental functions. See 

Miami Nation Enters., 386 P.3d at 373. “If a significant percentage of the 

entity’s revenue flows to the tribe, or if a judgment against the entity would 

significantly affect the tribal treasury, this factor will weigh in favor of 

immunity even if the entity’s liability is formally limited.” Id.

¶24 (6) Whether immunizing the entity furthers federal policies 

underlying sovereign immunity. Although policies underlying sovereign 

immunity are embedded within factors 1 through 5, the court should 

nevertheless separately consider whether recognizing sovereign immunity 

for the tribal entity would further these policies. See Dixon, 160 Ariz. at 258 

(“Tribal immunity should only apply when doing so furthers the federal 

policies behind the immunity doctrine.”).

¶25 The factors we identify today largely align with those 

identified by other courts. See, e.g., Breakthrough Mgmt. Grp., Inc. v. 

Chukchansi Gold Casino & Resort, 629 F.3d 1173, 1181 (10th Cir. 2010); Miami 

Nation Enters., 386 P.3d at 365. In considering them, the objective is to 

determine whether the entity is “part of the tribe” and serves as the tribe’s 

vehicle for conducting its affairs, thereby entitling it to share the tribe’s 

immunity. See Shelley, 107 Ariz. at 7–8. In doing so, a court should consider 

“both formal and functional considerations—in other words, not only the 
HWAL’BAY BA: J ENTERPRISES, INC. V. HON. JANTZEN/FOX

Opinion of the Court

10

legal or organizational relationship between the tribe and the entity, but 

also the practical operation of the entity in relation to the tribe.” Miami 

Nation Enters., 386 P.3d at 365. “Arm-of-the-tribe immunity must not 

become a doctrine of form over substance. The ultimate purpose of the 

inquiry is to determine ‘whether the entity acts as an arm of the tribe so that 

its activities are properly deemed to be those of the tribe.’” Id. at 375

(quoting Allen v. Gold Country Casino, 464 F.3d 1044, 1046 (9th Cir. 2006)). 

Ordinarily, therefore, an entity must produce more than its plan of 

organization, bylaws, and the like to prove its entitlement to sovereign 

immunity. Evidence demonstrating the functional relationship between 

the tribe and the entity should also be provided to demonstrate that the 

entity is—in practice and on paper—an arm of the tribe.

¶26 After considering factors 1 through 6, the court should decide 

whether they collectively weigh in favor of a finding that the entity is a 

subordinate economic organization of the tribe. If the entity has met its 

burden of showing they do, the entity is cloaked with sovereign immunity, 

unless that protection has been waived or abrogated by Congress. If not, 

the entity is not immune from suit.

II. Application to this case

¶27 On this record, we are unable to conclude that GCRC satisfied 

its burden to prove it is a subordinate economic organization of the Tribe, 

entitled to share in sovereign immunity. To prove it is an arm of the Tribe, 

GCRC provided the superior court with its plan of organization, its bylaws, 

the tribal constitution, the Tribe’s corporate charter issued under section 17 

of the Wheeler-Howard Act, and amendments to these documents. On 

paper, many attributes of the relationship between the Tribe and GCRC 

support a conclusion the latter is a subordinate economic organization of 

the former. For example, the Tribe’s constitution authorizes the tribal 

council to “manage all tribal economic affairs and enterprises” and

“establish and regulate subordinate organizations for economic and other 

purposes”; the council passed a resolution to adopt a plan of organization 

and bylaws for GCRC; the plan of organization claims sovereign immunity 

for GCRC, which it cannot waive without council permission; the Tribe 

capitalized GCRC and is authorized to make additional capital investments 

or loans; the Tribe is GCRC’s sole shareholder and cannot transfer or pledge 

its stock; the council appoints GCRC’s board of directors and can suspend 

or remove them for any reason; GCRC must make monthly reports to the 

council; and the board must get the council’s consent before making several 
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Opinion of the Court

11

business decisions, including making expenditures greater than $50,000, 

borrowing that amount, and selling “all or substantially all” of its assets.

¶28 Other evidence, however, suggests GCRC is not a 

subordinate economic organization of the Tribe. For example, GCRC is a 

tribal corporation; GCRC’s assets do not belong to the Tribe; although 

GCRC “initially” intended to “creat[e] economic development

opportunities” for the Tribe, it was “organized for the purpose of 

conducting all lawful affairs for which corporations may be organized”; 

control and operation of GCRC is vested in a board of directors, which can 

hire officers, make investment decisions, borrow funds, and enter in 

contracts; GCRC may “merge, consolidate, reorganize, [and] recapitalize” 

without tribal council participation if necessary to maintain its exemption 

from federal tax; and the Tribe is prohibited from “interfer[ing] with or 

giv[ing] orders or instructions to the officers or employees of GCRC” 

regarding day-to-day operations.

¶29 The record does not contain evidence addressing several 

significant functional attributes of the relationship between the Tribe and 

GCRC. For example, we do not know whether GCRC’s revenues fund any 

governmental functions of the Tribe or, if they do, the extent to which the 

Tribe depends on GCRC revenues for these functions. The record does not 

reflect whether GCRC’s business is confined to operating rafting trips or is 

broader in scope. We also cannot discern how GCRC contributes to the 

general tribal and economic development. Does it train Tribal members? 

Employ them? We do not know. And nothing reflects the level of control 

and oversight the Tribe actually exercises over GCRC as the plan of 

operation authorizes the Tribe to do.

¶30 In sum, on this record, we are unable to conclude that GCRC 

has carried its burden to show it is a subordinate economic organization of 

the Tribe so that a denial of immunity would “appreciably impair” the 

Tribe’s “economic development, cultural autonomy, or self-governance.” 

See Miami Nation Enters., 386 P.3d at 376. Thus, based on this record, the

superior court did not abuse its discretion by refusing to dismiss GCRC. 

GCRC may renew its request, with additional evidence to permit the court 

to apply the factors identified here and make an informed decision 

regarding whether GCRC is a subordinate economic organization of the 

Tribe. In light of our decision, we need not address the Foxes’ additional 

arguments supporting the superior court’s ruling.
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Opinion of the Court

12

CONCLUSION

¶31 Based on the record here, GCRC did not prove it is entitled to 

sovereign immunity. The superior court therefore did not err by denying 

its motion to dismiss the Foxes’ complaint against it. We affirm the superior 

court’s order.

BOLICK, J., concurring:

¶32 I concur fully in the Court’s decision but write separately to 

emphasize an essential element in the analysis that is largely missing from 

the United States Supreme Court precedents we must follow.

¶33 Plaintiff Sara Fox was grievously injured in a river-rafting 

accident that occurred on state land. Under our state Constitution, she is 

assured that the “right of action to recover damages shall never be 

abrogated.” Ariz. Const. art. 18, § 6. But by the coincidental misfortune 

that the river-rafting company whose services she procured through an 

Arizona corporate intermediary is owned by an Indian tribe, that guarantee 

may be eviscerated.

¶34 The analysis of whether a tribal enterprise is a “subordinate 

economic organization” and therefore entitled to clothe itself in tribal 

immunity is determined by reference to statutes enacted pursuant to article 

1, section 8 of the Federal Constitution, which authorizes Congress to 

“regulate commerce . . . with the Indian tribes.” But an analysis focusing 

solely on what the federal government has authorized and what tribes are 

doing pursuant to such authorization omits an important consideration: the 

constitutional authority of the states, which (along with the people) retain 

all powers not expressly delegated by the Constitution to the national 

government nor forbidden by it to the states. See U.S. Const. amend. X.

¶35 This case implicates state interests of the highest order. In our 

federal system, the states retain the police power to protect the health and 

safety of their citizens. See, e.g., Simpson v. Miller, 241 Ariz. 341, 345 ¶ 8 

(2017) (“In our federalist system of dual sovereignty, states retain certain 

antecedent powers . . . .”); Indus. Comm’n v. Navajo Cty., 64 Ariz. 172, 180 

(1946) (stating that “the police power is inalienable” (emphasis removed)). 
HWAL’BAY BA: J ENTERPRISES, INC. V. HON. JANTZEN/FOX

JUSTICE BOLICK, Concurring

13

The framers of the Arizona Constitution deemed the right to recover 

damages for injuries so fundamental that they protected it not only in article 

18, section 6, but in our Declaration of Rights as well. See Ariz. Const. art. 

2, § 31 (“No law shall be enacted in this state limiting the amount of 

damages to be recovered for causing the death or injury of any person . . . . 

”). As the Arizona Constitution is “our basic charter[] of state 

governance . . . ., we strive wherever possible to uphold [its] provisions.” 

Miller, 241 Ariz. at 341 ¶ 8 (citation omitted).

¶36 As Justice Thomas has observed, “the Constitution does not 

grant Congress power to override state law whenever that law happens to 

be applied to Indians.” Adoptive Couple v. Baby Girl, 570 U.S. 637, 666 (2013) 

(Thomas, J., concurring). Specifically, the text of the Indian Commerce 

Clause “confirms that Congress may only regulate commercial 

interactions—'commerce’—taking place with established Indian 

communities—'tribes.’ That power is far from ‘plenary.’” Id. at 660.

¶37 It is one thing to recognize immunity for a tribe exercising its 

sovereignty within its own borders or acting in its sovereign capacity in 

dealings with other sovereign governments. It is quite another to accord 

sovereign immunity when a tribe is engaged in wholly economic pursuits 

outside its jurisdiction under the cloak of independent corporate identity. 

To deny a citizen of a state recourse for injury under the laws of the state

under such circumstances is an affront to our federalist system of dual 

sovereignty. “In this economic context, immunity can harm those who are 

unaware that they are dealing with a tribe, who do not know of tribal 

immunity, or who have no choice in the matter, as in the case of tort 

victims.” Kiowa Tribe v. Mfg. Techs., Inc., 523 U.S. 751, 758 (1998); see also 

Thomas P. McLish, Tribal Sovereign Immunity: Searching for Sensible Limits, 

88 Colum. L. Rev. 173, 193 (1988) (“The current breadth with which the 

doctrine of tribal immunity is applied is inconsistent with the policies that 

underlie it, and inappropriately denies plaintiffs the ability to seek redress 

in courts of law.”).

¶38 As four members of the Supreme Court have observed, “[t]he 

problem repeats itself every time a tribe . . . harms a tort victim, breaches a 

contract, or otherwise violates state laws, and tribal immunity bars the only 

feasible legal remedy.” Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 824 

(2014) (Thomas J., joined by Scalia, Ginsburg, & Alito, J.J., dissenting). 

Given its displacement of legal protections that are central to the states’ role 

in our constitutional system and its denial of relief to innocent victims of 
HWAL’BAY BA: J ENTERPRISES, INC. V. HON. JANTZEN/FOX

JUSTICE BOLICK, Concurring

14

wrongdoing, I hope the Supreme Court will reconsider the contours of 

tribal immunity currently binding us. See id. at 814 (stating the expansion 

of tribal immunity in Kiowa was “error” and “an affront to state 

sovereignty”); Kiowa, 523 U.S. at 758 (“There are reasons to doubt the 

wisdom of perpetuating the doctrine. . . . In our interdependent and mobile 

society, . . . tribal immunity extends beyond what is needed to safeguard 

tribal self-governance.”); Kiowa, 523 U.S. at 766 (Stevens, J., dissenting) 

(“[T]he rule is unjust. It is especially so with respect to tort victims who 

have no opportunity to negotiate for a waiver of sovereign immunity.”); 

Puyallup Tribe, Inc. v. Dep’t. of Game, 433 U.S. 165, 178–79 (1977) (Blackmun, 

J., concurring) (the doctrine of tribal sovereign immunity “may well merit 

re-examination in an appropriate case”).