.See, e.g.., Breakthrough Mgmt. Grp., Inc. v. Chukchansi Gold Casino & Resort, 629 F.3d 1173, 1187-88 (10th Cir. 2010) (laying out "arm of the tribe" multifactor test in seminal federal case); Great Plains Lending, LLC v. Dep't of Banking, 339 Conn. 112, 259 A.3d 1128, 1140-42 (2021) (discussing "a series of federal and state cases" that have attempted to outline how to determine if an entity is an arm of the tribe).Okla. Tax Comm’n v. Chickasaw Nation, 515 U.S. 450, 466, 115 S.Ct. 2214, 132 L.Ed.2d 400 (1995).
We reject the Trustee defendants' contention that we should not rely upon Bay Mills because the Supreme Court's statements about states bringing suits against officials of Native American nations to enforce state law were purportedly mere dicta. Initially, both the United States Court of Appeals for the Second Circuit and the Connecticut Supreme Court have analyzed the relevant language in Bay Mills and concluded that it was not dicta (see Gingras v Think Fin., Inc., 922 F.3d 112; Great Plains Lending, LLC v Department of Banking, 339 Conn 112, 155, 259 A.3d 1128, 1156), although at least one other court has concluded that the same language in Bay Mills was dicta (see Save the Val., LLC v Santa Ynez Band of Chumash Indians, 2015 WL 12552060, *4, 2015 U.S. Dist LEXIS 181545, *9-10 [CD Cal, No. CV 15-02463-RGK (MANx)]). However, we need not decide whether the relevant language in Bay Mills was dicta (see generally Seminole Tribe of Fla. v Florida, 517 U.S. 44, 67 ["When an opinion issues for the Court, it is not only the result but also those portions of the opinion necessary to that result by which we are bound"]).
Plaintiffs, as the parties seeking to invoke sovereign immunity, bear the burden of establishing tribal status by a preponderance of the evidence. See Gristede's Foods, 660 F.Supp.2d at 465; City of New York v. Golden Feather Smoke Shop, 2009 WL 705815, at *4 (E.D.N.Y. Mar. 19, 2009); Great Plains Lending, LLC v. Dep't of Banking, 339 Conn. 112, 123 (2021).
Because application of the reasonable possibility standard that we adopted in this opinion is fact intensive, we conclude that the case must be remanded to the commission for further proceedings. See, e.g., Great Plains Lending, LLC v. Dept. of Banking, 339 Conn. 112, 131–32, 143, 157, 259 A.3d 1128 (2021) (remand to Banking Commissioner for further proceedings was required to determine whether plaintiff was entitled to status as "arm of the tribe" for purposes of tribal sovereign immunity because minimal evidence in administrative record was insufficient to permit court to apply newly adopted standard as matter of law); Ann Howard's Apricots Restaurant, Inc. v. Commission on Human Rights & Opportunities, 237 Conn. 209, 233, 676 A.2d 844 (1996) (remanding for further proceedings in which complainant would have opportunity to present additional admissible evidence). We reach this conclusion for three reasons.
The "opening and examination of a tribe's financial books and records ... in the absence of any indication that ... proceeds are flowing to nontribal members or that the entities serve a purpose other than the one asserted by the tribe, would infringe too greatly on tribal self-governance and self-determination." Great Plains Lending, LLC v. Dep't of Banking , 339 Conn. 112, 135, 259 A.3d 1128, 1144-45 (2021) (citing Williams , 929 F.3d at 180 ). A&S returns one hundred percent of its profits to the Tribes, which amounted to nearly $185,000 over a three- to four-month period the District Court examined.
Further, as the respondent argues, the underlying grounds for dismissal enumerated in Practice Book §§ 23-24 and 23-29 —e.g., lack of jurisdiction, res judicata, mootness, and ripeness—present pure questions of law. See, e.g., U.S. Bank National Assn. v. Rothermel , 339 Conn. 366, 373, 260 A.3d 1187 (2021) (mootness implicates court's subject matter jurisdiction and, thus, is question of law); Great Plains Lending, LLC v. Dept. of Banking , 339 Conn. 112, 120, 259 A.3d 1128 (2021) (determination regarding trial court's subject matter jurisdiction is question of law); Francis v. Board of Pardons & Paroles , 338 Conn. 347, 359, 258 A.3d 71 (2021) (issues regarding justiciability, namely, ripeness, raise question of law); Weiss v. Weiss , 297 Conn. 446, 458, 998 A.2d 766 (2010) (applicability of res judicata and collateral estoppel presents question of law); see also footnotes 5 and 6 of this opinion. Practice Book § 23-29 provides: "The judicial authority may, at any time, upon its own motion or upon motion of the respondent, dismiss the petition, or any count thereof, if it determines that:
(Citation omitted; internal quotation marks omitted.) Great Plains Lending, LLC v. Dept. of Banking , 339 Conn. 112, 120, 259 A.3d 1128 (2021). "Whether an action is moot implicates a court's subject matter jurisdiction ....