The Tenth Circuit panel requested supplemental briefing after oral argument to address this issue:
This court has previously acknowledged that “[t]ribal sovereign immunity is deemed to be coextensive with the sovereign immunity of the United States.” Miner Elec., Inc. v. Muscogee (Creek) Nation, 505 F.3d 1007, 1011 (10th Cir.
2007) (citation omitted). Regarding the sovereign immunity of the United States, other circuits have held that where the United States is the sole shareholder of an entity incorporated under state law, the United States’ sovereign immunity does not extend to the entity. See Panama R. Co. v. Curran, 256 F. 768, 771-72 (5th Cir. 1919) (quoting Bank of the United States v. Planters’ Bank of Georgia, 22 U.S. 904, 907–08 (1824)); Salas v. United States, 234 F. 842, 844–45 (2d Cir. 1916). The parties are therefore directed to submit supplemental briefs regarding the following issues:
a) Does CND’s organization as a separate legal entity under Oklahoma’s Limited Liability Company Act preclude it from sharing in the Cherokee Nation’s sovereign immunity?
Lower court materials here.