Introduction

This appeal arises from counterclaims filed in a complex commercial dispute between the Modoc Nation of Oklahoma and its affiliated economic entities (collectively, the “Tribe”) and the Softek entities and principals (“Softek”). After the Tribe sued Softek on federal and state-law theories, Softek counterclaimed against the Tribe, the Tribe’s then-Attorney General Blake Follis, General Counsel Troy LittleAxe, and LittleAxe’s law firm. The district court converted cross-motions to dismiss into cross-motions for summary judgment and denied Follis’s assertions of tribal sovereign immunity and Oklahoma official (absolute prosecutorial/quasi-judicial) immunity.

On interlocutory appeal, two threshold questions framed the case: first, whether the Tenth Circuit had jurisdiction to review an interlocutory order denying immunity; and second, whether a tribal official sued in his individual capacity can invoke either tribal sovereign immunity or state-law absolute immunity at the summary judgment stage based on the record presented.

The Tenth Circuit answers both emphatically: it holds that denials of tribal sovereign immunity and state-law immunity are immediately appealable collateral orders, and it affirms the district court on the merits, concluding that (1) tribal sovereign immunity does not extend to individual-capacity claims where the real party in interest is the official personally, and (2) Follis failed to carry his summary judgment burden to establish entitlement to absolute official immunity under Oklahoma law.

Summary of the Opinion

• Jurisdiction: The court applies the collateral order doctrine to exercise jurisdiction under 28 U.S.C. § 1291 over the interlocutory denial of tribal sovereign immunity and state-law immunity. The court denies Softek’s motion to dismiss the appeal for lack of a final judgment.
• Tribal sovereign immunity: Sovereign immunity does not bar personal-capacity suits against tribal officials. Applying Lewis v. Clarke, the court holds that Follis, sued in his individual capacity for damages, is the real party in interest; thus, tribal sovereign immunity does not apply.
• State-law official immunity: Under Oklahoma law, judicial and quasi-judicial absolute immunity protects officials when acting within their lawful authority. The court affirms the district court’s conclusion that genuine fact disputes remain and that Follis’s conclusory affidavit and limited documentation do not establish as a matter of law that all challenged acts were within the scope of his prosecutorial or quasi-judicial functions. Summary judgment on immunity was properly denied.
• Result: Motion to dismiss denied; district court’s order denying immunity affirmed.

Detailed Analysis

Precedents and Authorities Cited

• Collateral Order Doctrine and Appellate Jurisdiction
  • Ritzen Group, Inc. v. Jackson Masonry, LLC, 589 U.S. 35 (2020): Defines final decisions under § 1291; sets baseline for finality.
  • Mohawk Industries v. Carpenter, 558 U.S. 100 (2009): Explains the “small class” of collateral orders that are immediately appealable; the decision must be conclusive, resolve important questions separate from the merits, and be effectively unreviewable after final judgment.
  • Breakthrough Management Group, Inc. v. Chukchansi Economic Dev. Auth., 629 F.3d 1173 (10th Cir. 2010): Recognizes immediate appealability of orders denying tribal sovereign immunity.
  • Osage Tribal Council ex rel. Osage Tribe of Indians v. U.S. Department of Labor, 187 F.3d 1174 (10th Cir. 1999): Denial of tribal sovereign immunity is immediately appealable.
  • BNSF Railway v. Vaughn, 509 F.3d 1085 (9th Cir. 2007): Immunity is immunity from suit, not merely a defense; denial can be immediately appealed because it is effectively lost if the case proceeds.
  • Frias v. Hernandez, 142 F.4th 803 (5th Cir. 2025): Confirms collateral-order appealability of denials of state-law immunity in federal court.
  • In re Syngenta AG MIR 162 Corn Litigation, 61 F.4th 1126 (10th Cir. 2023): Party invoking appellate jurisdiction bears the burden.
  • Gardner v. Long, No. 20-4128, 2021 WL 2327814 (10th Cir. Feb. 2, 2021) (unpublished): Distinguished; there the appellant was not a tribal official and plainly lacked tribal immunity.
• Tribal Sovereign Immunity and Individual-Capacity Suits
  • Lewis v. Clarke, 581 U.S. 155 (2017): The real-party-in-interest analysis governs; tribal sovereign immunity does not protect tribal employees sued in their individual capacities for damages.
  • Native American Distributing v. Seneca-Cayuga Tobacco Co., 546 F.3d 1288 (10th Cir. 2008): Tribal immunity generally protects officials in official-capacity suits, but not where relief is sought from the officer personally.
  • Burrell v. Armijo, 456 F.3d 1159 (10th Cir. 2006): Tribal immunity does not extend to officials acting outside the scope of delegated powers.
  • Breakthrough Management, 629 F.3d at 1185 n.9: References “subordinate economic entities” in tribal commercial activities.
• Personal Official Immunity (Prosecutorial/Quasi-Judicial) Under Oklahoma Law
  • Powell v. Seay, 553 P.2d 161 (Okla. 1976): Judicial officers have absolute immunity for judicial acts; public officers have quasi-judicial immunity for discretionary acts within jurisdiction, regardless of motive; immunity does not apply when the officer exceeds lawful authority.
  • Acres Bonusing, Inc. v. Marston, 17 F.4th 901 (9th Cir. 2021): Tribal officials may invoke personal immunity defenses; clarifies distinction from sovereign immunity.
• Summary Judgment Standards and Evidentiary Burdens
  • Celotex Corp. v. Catrett, 477 U.S. 317 (1986): Moving party’s burden to identify record materials demonstrating the absence of a genuine dispute of material fact.
  • Alexander v. Oklahoma, 382 F.3d 1206 (10th Cir. 2004): De novo review of summary judgment; appropriate when no genuine dispute of material fact exists.
  • Adler v. Wal-Mart Stores, Inc., 144 F.3d 664 (10th Cir. 1998): Evidence viewed in light most favorable to nonmovant.
  • Murray v. City of Sapulpa, 45 F.3d 1417 (10th Cir. 1995): Conclusory, self-serving affidavits, without specific facts, are insufficient to carry summary judgment burdens.
• District Court Authorities the Tenth Circuit Found Persuasive
  • Phillips v. James, No. CIV‑21‑256, 2023 WL 1785774 (E.D. Okla. 2023): Real-party-in-interest analysis focuses on whether relief runs against the sovereign’s treasury or the officer personally.
  • Gregory v. United States, No. CIV‑20‑308, 2022 WL 4624693 (E.D. Okla. 2022): Uses Lewis v. Clarke to distinguish individual- vs official-capacity suits and assess factual separation of claims against the Tribe and the individual.

Legal Reasoning

1) Appellate Jurisdiction: Collateral Order Doctrine Applies

The panel begins by reaffirming that denials of immunity fall within the narrow class of immediately appealable collateral orders. The order is conclusive (further district court proceedings cannot alter the immunity ruling), the issues are distinct from the merits (immunity is a threshold protection from suit), and the rights are effectively unreviewable after final judgment (being compelled to stand trial destroys the immunity). The court therefore denies Softek’s motion to dismiss and exercises jurisdiction over both denials: tribal sovereign immunity and Oklahoma state-law personal immunity.

Notably, the court extends collateral-order review to denials of state-law immunity claims raised in federal court, aligning with the Fifth Circuit’s approach in Frias v. Hernandez. The panel also distinguishes an unpublished Tenth Circuit case where collateral order jurisdiction was declined because the appellant was plainly not a tribal official. Here, by contrast, Follis served as the Tribe’s Attorney General and the immunity claims are non-frivolous, warranting interlocutory scrutiny.

2) Tribal Sovereign Immunity: No Shield for Individual-Capacity Claims

The sovereign immunity analysis turns on capacity and the real party in interest. Following Lewis v. Clarke, the court emphasizes that suing an official in his individual capacity to impose personal liability is not a suit against the sovereign, even if the conduct occurred under color of tribal authority. The court underscores several points:

• Softek’s counterclaims seek personal damages from Follis, not relief against the Tribe’s treasury or a change in tribal policy. The real party in interest is Follis.
• The allegations include conduct both before Follis became Attorney General (2016–2017) and while he held the office (2019), and describe personal misconduct: leveraging tribal resources for a failed fantasy sports venture, using a joint line of credit for marketing, allegedly terminating employees tied to that effort, and allegedly fabricating a false narrative to retaliate against Softek. This portrait places the suit squarely in the individual-liability category.
• Arguments that subordinate tribal entities share immunity are immaterial to an individual-capacity claim and, in any event, were not preserved below.

The court also notes that the procedural posture—summary judgment rather than a motion to dismiss—does not alter the core “capacity” and “real party in interest” analysis. Whether the case is at the pleading or summary judgment stage, the question remains whether the relief runs against the official personally or the sovereign.

3) State-Law Official Immunity: Factual Disputes and Evidentiary Deficits Preclude Summary Judgment

Turning to absolute official immunity under Oklahoma law, the court frames the inquiry under Powell v. Seay. Judicial and quasi-judicial absolute immunity protects discretionary acts carried out within the official’s lawful authority, irrespective of motive. But the immunity does not attach when the official “transcended the limits of his power.” Applying that framework, the panel agrees with the district court that summary judgment is inappropriate for two independent reasons:

• Record reveals actions outside the asserted prosecutorial function: Key allegations predate Follis’s appointment as Attorney General and involve business pursuits (a fantasy sports operation) rather than adjudicative or prosecutorial functions. Later alleged acts (terminations, investigative steps) are alleged to have been part of an attempted cover-up, not exercises of lawful prosecutorial discretion.
• Evidentiary shortfall under Celotex: Follis’s affidavit is conclusory and self-serving, stating merely that all acts were within his official duties. Under Tenth Circuit authority (Murray v. City of Sapulpa), such affidavits cannot carry the movant’s burden. The documents he submitted (appointment letter, preservation letter, termination notices, investigative directive) show he held the office and performed some official acts, but they do not demonstrate that the specific challenged conduct fell within the protected ambit of judicial or quasi-judicial functions.

Because material disputes remain and the record does not compel an immunity finding as a matter of law, the denial of summary judgment on official immunity is affirmed.

Impact and Significance

• Confirming immediate appellate review of immunity denials: Parties can expect the Tenth Circuit to take interlocutory appeals from denials of both tribal sovereign immunity and state-law personal immunities when the Mohawk criteria are satisfied. This offers important procedural protection for immunity interests while preventing piecemeal litigation in non-immunity contexts.
• Reinforcing Lewis v. Clarke in tribal contexts: The decision underscores that plaintiffs can pursue damages against tribal officials in their individual capacities without encountering tribal sovereign immunity. Litigants should plead capacity clearly and target relief to the individual, not the sovereign treasury, if they intend to avoid tribal immunity.
• Evidence matters for personal immunity defenses: Officials asserting absolute prosecutorial or quasi-judicial immunity face a real evidentiary burden at summary judgment. Conclusory declarations will not suffice. Concrete, record-based showings that each challenged act was within lawful authority and tied to the judicial/prosecutorial function are essential.
• Scope-of-authority limitation is dispositive: Allegations that an official acted to advance personal commercial interests, or to cover up misconduct, are inherently difficult to square with immunity premised on judicial or quasi-judicial functions. Counsel should prepare to segregate conduct that plausibly falls within protected functions from conduct that does not.
• Subordinate tribal entities and preservation: Any claim that tribal enterprises share immunity must be preserved with record development in the district court; it will not rescue an individual-capacity defendant on appeal.
• Persuasive value in the Tenth Circuit: Though nonprecedential, the opinion is citable and signals how the court is likely to handle similar immunity and jurisdictional questions, shaping strategy in tribal commercial disputes and suits against tribal officials.

Complex Concepts Simplified

• Collateral order doctrine: A narrow exception allowing immediate appeals of certain non-final orders. An order qualifies if it conclusively decides an important issue, is separate from the case’s merits, and would be unreviewable after final judgment. Denials of immunity usually qualify because immunity protects from being sued at all, not merely from liability.
• Official-capacity vs. individual-capacity suits:
  • Official capacity: The suit is effectively against the government entity; sovereign immunity may apply.
  • Individual capacity: The suit targets the official personally for damages; sovereign immunity generally does not apply.
• Real party in interest: The person or entity that, as a practical matter, will bear the consequences of the judgment. If the judgment runs only against the individual (not the treasury), the individual is the real party in interest.
• Tribal sovereign immunity: Federally recognized tribes are immune from suit absent waiver or congressional abrogation. That immunity typically does not extend to tribal officials sued personally for damages under Lewis v. Clarke.
• Absolute prosecutorial/quasi-judicial immunity (Oklahoma): Protects judges and officials performing judicial-like functions for acts within their lawful authority, regardless of motive. It does not protect actions beyond their jurisdiction or authority.
• Summary judgment and the Celotex burden: The moving party must point to record evidence showing no genuine dispute of material fact. Conclusory, self-serving affidavits are insufficient. Courts view evidence in the light most favorable to the nonmoving party.

Conclusion

Modoc Nation v. Shah marks a clear and practical reaffirmation of two interrelated propositions. Procedurally, the Tenth Circuit confirms that denials of tribal sovereign immunity and state-law immunity are immediately appealable under the collateral order doctrine. Substantively, the court reinforces that tribal sovereign immunity does not insulate tribal officials from individual-capacity suits seeking personal damages; the real party in interest analysis governs, and capacity pleading matters.

On official immunity, the decision highlights the rigor of the movant’s burden at summary judgment: an official must tether each challenged act to a protected judicial or quasi-judicial function within lawful authority. Where the record suggests personal commercial conduct, pre-office actions, or cover-up allegations, and the movant offers only conclusory assertions, absolute immunity will not be resolved as a matter of law.

Taken together, the opinion provides a roadmap for litigants: plaintiffs can strategically frame claims to avoid sovereign immunity by targeting individual-capacity liability, while defendants seeking personal immunities must marshal concrete, role-specific evidence to prevail at the summary judgment stage. Although nonprecedential, the ruling is likely to be influential in the Tenth Circuit’s ongoing treatment of immunity issues at the intersection of tribal governance and commercial activity.