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United States v. Encore Services, LLC

United States District Court, D. Montana, Great Falls Division

February 21, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
ENCORE SERVICES, LLC, ZACHARY BROOKE ROBERTS, MARTIN GASPER MAZZARA, and RICHARD LEE BROOME Defendants.

          ORDER

          John Johnston United States Magistrate Judge.

         I. Synopsis

         The Chippewa Cree Tribe filed a motion to quash the subpoena duces tecum the Court issued on November 22, 2016, stating that (1) the Tribe's sovereign immunity relieved them from any requirement to respond to the subpoena and (2) the subpoena was oppressive and unreasonable. (Docs. 118, 98, 100.) Defendants opposed the motion. (Doc. 124.) The Court referred the Tribe's motion to the undersigned for disposition.

         The undersigned held hearings on the Motion on January 17, 2017, and January 25, 2017. (Doc. 135.) The undersigned then ordered Defendants to submit a proposed amended subpoena. (Doc. 136.) Defendants filed the proposed amended subpoena on January 27, 2017. (Doc. 138.) The Tribe filed its response to the subpoena on February 3, 2017. (Doc. 143.) The undersigned held a status conference on February 15, 2017. (Doc. 149.) During the status conference the Tribe agreed that the proposed amended subpoena was not unreasonable or oppressive because the Tribe had previously produced the documents the subpoena requests in a civil action to which it was a party. (4:14-cv-00063-BMM). Given this admission and the fact that the undersigned finds that the Tribe waived its sovereign immunity in this case by voluntarily producing documents to the United States in this case, the Tribe's motion is granted in part and denied in part.

         II. Analysis

         Rule 17(c)(2) of the Federal Rules of Criminal Procedure states that a court may quash a subpoena if “compliance would be unreasonable or oppressive.” The Court finds that based on the Tribe's statement that it has previously produced all of the documents Defendants seek in their proposed amended subpoena, compliance with the proposed amended subpoena would not be oppressive or unreasonable. Thus, the Court may grant the Tribe's motion only if it finds that the Tribe has sovereign immunity in this matter.

         Tribes have sovereign immunity due to their status as dependant domestic nations. United States v. James, 980 F.2d 1314, 1319 (9th Cir. 1992). A tribe maintains this immunity unless it unequivocally waives it or Congress abrogates it. Id. A tribe waives its sovereign immunity in regard to producing documents relevant to a case when it voluntarily provides documents to a party. Id.

         Here, the Tribe voluntarily produced documents relevant to this case to the United States. Thus, the Court finds that the Tribe waived its sovereign immunity and must respond to a subpoena that seeks documents in its possession relevant to this case.

         For the reasons stated above the Court issues the following order:

1. The Tribe's Motion to Quash is granted in part and denied in part.
2. The Tribe must respond to the Subpoena Duces Tecum to the extent described below:

         The Tribe shall produce the following records:

         I.

A. Business committee/tribal council meeting minutes;
B. Administration/administrative committee meeting minutes;
C. Administration/administrative sub-committee meeting minutes;
D. Administration/administrative Budget committee meeting minutes;
E. Administration/administrative Budget Sub-committee meeting minutes;
F. Budget committee meeting minutes; G. Budget Sub-committee meeting minutes;
H. Executive committee meeting minutes;
I. Administration/administrative committee meeting minutes;
J. Executive session meeting minutes;
K. Administration/administrative session meeting minutes
L. Resolutions

         for any Tribe entity or organization, including First American Capital Resources LLC (FACR) and/or Plain Green, ...


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