RASHONNA M. RANSOM, on behalf of herself and others similarly situated v. GREATPLAINS FINANCE, LLC, doing business as Cash Advance Now

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 24-1908
_______________
RASHONNA M. RANSOM, on behalf of herself and others
similarly situated
v.
GREATPLAINS FINANCE, LLC, doing business as Cash
Advance Now; JOHN DOES 1–10
GreatPlains Finance, LLC,
Appellant
_______________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2:22-cv-01344)
District Judge: Hon. William J. Martini
_______________
Argued: June 4, 2025
Before: HARDIMAN, BIBAS, and FISHER, Circuit Judges
(Filed: August 4, 2025)

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Adam H. Charnes
K ILPATRICK TOWNSEND & STOCKTON
2001 Ross Avenue
Suite 4400
Dallas, TX 75201
Mark H. Reeves
KILPATRICK TOWNSEND & STOCKTON
1450 Greene Street
Suite 230
Augusta, GA 30901
Rob R. Smith [ARGUED]
KILPATRICK TOWNSEND & STOCKTON
1420 5th Avenue
Suite 3700
Seattle, WA 98101
Counsel for Appellant
Stephen R. Ward
C ONNER & W INTERS
15 E 5th Street
4100 First Place Tower
Tulsa, OK 74103
Counsel for Amicus Conference of Tribal Lending Commis-
sioners Supporting Appellant
Daniel Baczynski [ARGUED]
BACZYNSKI LAW
921 Sommerset Drive
West Fargo, ND 58078

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Mark H. Jensen
Yongmoon Kim
K IM L AW FIRM
411 Hackensack Avenue
Suite 701
Hackensack, NJ 07601
Counsel for Appellee
______________
OPINION OF THE COURT
_______________
BIBAS, Circuit Judge.
Governments turn money into power. In go taxes; out flow
police, pensions, and preschools. To figure out whether some-
thing is part of the government, then, often the best place to
look is whether it matches either half of government’s signa-
ture formula: Does it fund the government, and is it controlled
by the government?
This case presents a firm whose governmental status is
puzzling—a consumer lender owned by an Indian tribe. Lend-
ers are sometimes part of tribal governments. But even though
this one is mostly controlled by the tribe, a judgment against it
would not affect the tribe’s revenue. That factor often matters
more and speaks more clearly here. We thus hold that the
lender is not part of the tribe’s government and so lacks its sov-
ereign immunity.

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I. THE TRIBE CREATED GREAT P LAINS ,
WHICH LENT M ONEY TO R ANSOM
Like any government, Indian tribes need money to operate
and care for their members. But many tribes cannot raise much
money by taxing income or property; Indian reservations are
often poor, and much of their land is owned by non-Indians,
whom tribes usually cannot tax. Matthew L.M. Fletcher, In
Pursuit of Tribal Economic Development as a Substitute for
Reservation Tax Revenue, 80 N.D. L. Rev. 759, 771–74 &
nn.87, 91, 93 (2004). Many tribes thus turn to entrepreneurship
to fund their governments, from “sell[ing] cigarettes and pre-
scription drugs online” to running casinos and hotels. Michigan
v. Bay Mills Indian Cmty., 572 U.S. 782, 823 (Thomas, J., dis-
senting) (2014); id. at 785 (majority). These businesses look
like any other, with one big difference: If they count as part of
a tribe’s government, they enjoy sovereign immunity. Id. at
788–90 (majority); Kiowa Tribe of Okla. v. Mfg. Techs., Inc.,
523 U.S. 751, 754–55 (1998).
Hence this case. A tribally owned lender allegedly broke a
slew of consumer-protection laws, an aggrieved borrower sued
it, and whether her suit can proceed depends on whether the
lender counts as part of the tribe’s government.
A. The tribe created GreatPlains
The Fort Belknap Indian Community is a federally recog-
nized Indian tribe in rural Montana. Like many tribes, its tax
base is bone dry, so it has tried to raise money by starting a
string of businesses. Those businesses contribute three-quarters
of the tribe’s non-federal budget.

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To manage them, the tribe created a corporation: the Island
Mountain Development Group. Profits from the tribe’s busi-
nesses flow to Island Mountain, which sends a fifth of the
money directly to the tribe. The other four-fifths is either
reinvested in the tribe’s businesses or spent on projects for
tribal members, like housing or direct cash payments.
One of the tribe’s businesses is GreatPlains Finance, an
online consumer lender. GreatPlains was created by the tribe
as a limited-liability corporation under tribal law, is wholly
owned by it through a subsidiary, and is managed by Island
Mountain. It does not directly employ anyone; rather, it leases
all its workers from Island Mountain. And its articles of organ-
ization purport to shield it with the tribe’s sovereign immunity.
GreatPlains is one of at least eight online lenders started by
the tribe. From rural Montana, their websites reach across the
country, offering small loans at staggering interest rates. Great-
Plains’ website shows a sample loan of $500 with an annual
interest rate of 700% plus fees for late payments. Rates, Cash
Advance Now, https://perma.cc/XAD9-ZN8N. Rates this high
are illegal in most states. State Annual Percentage Rate (APR)
Caps for $500, $2,000 and $10,000 Installment Loans, Nat’l
Consumer L. Ctr., https://perma.cc/KN7M-N93N. But if tribal
sovereign immunity applies, the lenders are shielded from law-
suits. This setup is lucrative: The tribe’s lending businesses
pump out 90% of Island Mountain’s total revenue.
B. GreatPlains made a private-equity deal
What do you get when you combine high-interest lending
with immunity from suit? An attractive investment. Unsurpris-
ingly, in 2021, a non-tribal private-equity fund called Newport

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Funding lent up to $10 million to GreatPlains. The agreement
promised Newport handsome returns: 21% interest per year,
plus more fees for any untapped part of the $10 million line of
credit. And before returning any profits to Island Mountain
(and thus the tribe), GreatPlains must pay Newport first.
GreatPlains also pledged its assets as collateral and gave
Newport a security interest in them. If Island Mountain threat-
ened GreatPlains’ ability to pay back the loan or interfered with
the business, that would trigger a default. At that point, New-
port could step in to protect its interest in GreatPlains’ assets.
It could also strip the tribal servicer of its power to service
GreatPlains’ loans and transfer that role to a non-tribal firm in
Indiana. And it could take control of GreatPlains’ bank accounts,
stopping any money from being transferred or withdrawn with-
out Newport’s consent.
GreatPlains eventually fell into default. In 2023, the tribe
“discover[ed] unexplained debts and evidence of potentially
serious internal financial improprieties” at Island Mountain, so
it replaced Island Mountain’s board. App. 212. That leadership
change triggered a default, and Newport ordered GreatPlains’
bankers to block any withdrawal or funds transfer from Great-
Plains’ accounts without Newport’s written consent. Great-
Plains objected but could not stop these measures.
C. After borrowing from GreatPlains, Ransom sued it
On the other side of the country, New Jerseyan Rashonna
Ransom faced an emergency and desperately needed cash. She
found GreatPlains’ website and took out two loans, one at
652% annual interest and the other at 542%. Though she bor-
rowed only $750, she owed around $4,000 in interest. She sued

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GreatPlains, on her own behalf and for a putative class, for
breaking several New Jersey consumer-protection laws.
D. GreatPlains & Newport restructured their agreement
GreatPlains moved to dismiss, claiming tribal sovereign
immunity. The District Court disagreed. Based partly on New-
port’s post-default control of Great Plains, the court held that
the lender was not an arm of the tribe.
Newport then waived the default, restoring the tribe’s con-
trol over GreatPlains’ assets. Waiver in hand, GreatPlains
moved to reconsider. The District Court denied the motion, and
GreatPlains now appeals.
Tribal sovereign immunity is a mixed question of law and
fact. Somerlott v. Cherokee Nation Distribs., Inc., 686 F.3d
1144, 1148 (10th Cir. 2012). We review the District Court’s
factual findings for clear error and its legal conclusions on
tribal sovereign immunity and its application of law to the facts
de novo. Id.; see In re Nortel Networks, Inc., 669 F.3d 128, 137
(3d Cir. 2011).
II. W E HAVE A PPELLATE JURISDICTION
As a rule, we have jurisdiction only over appeals from final
orders. 28 U.S.C. § 1291. But an exception allows interlocutory
appeals of collateral orders—that is, orders that (1) conclu-
sively decide (2) an important issue separate from the merits
(3) that would be “effectively unreviewable” if we waited until
after the final judgment. Doe v. Coll. of N.J., 997 F.3d 489, 493
(3d Cir. 2021) (internal quotation marks omitted). Because
sovereign immunity is a right to not even be dragged through
litigation, denials of sovereign immunity are immediately

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appealable as collateral orders. P.R. Aqueduct & Sewer Auth. v.
Metcalf & Eddy, Inc., 506 U.S. 139, 143–45 (1993). Great-
Plains claims that it was wrongly denied sovereign immunity.
So we have jurisdiction to hear this appeal.
III. WE C ONSIDER A LL FACTS IN THE R ECORD
In gauging subject-matter jurisdiction, courts typically look
at the facts that existed when the plaintiff filed his complaint.
Nuveen Mun. Tr. v. WithumSmith Brown, P.C., 692 F.3d 283,
294 (3d Cir. 2012). Here, many relevant facts changed after
Ransom sued: GreatPlains borrowed from Newport and defaulted,
and Newport waived the default.
We can consider these changed facts. The time-of-filing
rule has exceptions. See OI Eur. Grp. B.V. v. Bolivarian Republic
of Venezuela, 73 F.4th 157, 170–72 (3d Cir. 2023). And sover-
eign immunity is surely one of them. “[T]he general criterion
for determining when a suit is in fact against the sovereign is
the effect of the relief sought.” Pennhurst State Sch. & Hosp.
v. Halderman, 465 U.S. 89, 107 (1984). And post-filing
changes can change that effect—for instance, if a tribe sells a
business to a private party. Plus, a sovereign can consent to suit
or withdraw its consent after a complaint is filed, thus creating
jurisdiction that did not exist at the time of filing or destroying
jurisdiction that did. Beers v. Arkansas, 61 U.S. (20 How.) 527,
529–30 (1857); Coll. Sav. Bank v. Fla. Prepaid Postsecondary
Educ. Expense Bd., 527 U.S. 666, 676 (1999).
In short, sovereign immunity depends on whether a judg-
ment would hit an unconsenting sovereign, and that can change
right up until the judgment issues. “We therefore conclude that
sovereign immunity is an ongoing inquiry rather than a

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determination to be made … at the time of filing.” Iowa Tribe
of Kan. & Neb. v. Salazar, 607 F.3d 1225, 1237 (10th Cir.
2010). So in deciding whether GreatPlains is an arm of the
tribe, we consider all facts as they stand today.
IV. W E R EVIEW BOTH DECISIONS TOGETHER
GreatPlains appeals two decisions: the denial of its motion
to dismiss and the later denial of its motion to reconsider. Nor-
mally, we would review each separately. Lazaridis v. Wehmer,
591 F.3d 666, 669–70 (3d Cir. 2010).
But here, we can consolidate our review. Start with the motion
to dismiss. Reviewing de novo, we ask whether GreatPlains is
an arm of the tribe given all the information before us, includ-
ing Newport’s waiver of default. Reich v. Loc. 30, Int’l Bhd. of
Teamsters, 6 F.3d 978, 981–82 (3d Cir. 1993). On the motion
to reconsider, we ask the same question and look at the same
facts. And though we normally review such denials for abuse
of discretion, “to the extent that the denial of reconsideration is
predicated on an issue of law,” like sovereign immunity, we
review it de novo. Max’s Seafood Cafe ex rel. Lou-Ann, Inc. v.
Quinteros, 176 F.3d 669, 673 (3d Cir. 1999). Because both appeals
ask the same question, consider the same facts, and apply the
same standard of review, we can consolidate them into a single
question: Given all the facts in the record, is GreatPlains an
arm of the tribe?
V. G REAT P LAINS IS N OT AN A RM OF THE TRIBE
It can be hard to tell where a tribe ends and a separate entity
begins. To draw that line, we adopt the Tenth Circuit’s test. On
these facts, the most important factors are how much the tribe

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controls the entity and especially whether a judgment would
immediately cut tribal revenue. Under that test, GreatPlains is
not an arm of the tribe.
A. To discern an arm of a tribe, we consider five factors
To judge whether an entity counts as an arm of a tribe, the
Tenth Circuit created a multi-factor test. This test examines:
1) how the entity was created;
2) its purpose;
3) its ownership, management, structure, and how much
the tribe controls it;
4) the tribe’s intent to give it sovereign immunity;
5) its financial relationship with the tribe; and
6) whether giving it immunity would serve tribal sovereign
immunity’s purposes.
Breakthrough Mgmt. Grp. v. Chukchansi Gold Casino & Resort,
629 F.3d 1173, 1181 (10th Cir. 2010). These factors are not
exclusive. Id.
Today, we join our sister circuits in adopting that test. See
Williams v. Big Picture Loans, LLC, 929 F.3d 170, 177 (4th
Cir. 2019); Mestek v. Lac Courte Oreilles Cmty. Health Ctr.,
72 F.4th 255, 259 (7th Cir. 2023); White v. Univ. of Cal., 765
F.3d 1010, 1025 (9th Cir. 2014). Still, some factors may matter
more than others. In practice, factors (1), (2), and (4) may be
easy to manipulate. Factors (3) and (5) may often matter more.
And factor (5) speaks best to the reasons behind tribal sover-
eign immunity.

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Most courts that follow Breakthrough’s test do not treat
factor (6), about the purposes of tribal sovereign immunity, as
its own factor. Instead, they weave it into their analysis of the
other five. E.g., Williams, 929 F.3d at 177. That leaves five
factors, with the purposes informing each factor’s importance.
Mestek, 72 F.4th at 259.
What are those purposes? Other courts have said they include
promoting tribal self-determination, cultural autonomy, and
commercial relations between Indians and non-Indians. See,
e.g., Breakthrough, 629 F.3d at 1188. But we find it less useful
to think up post hoc policy rationales and more helpful to focus
on why courts recognized the immunity in the first place: to
respect the tribe’s governance and to protect its treasury. Okla.
Tax Comm’n v. Citizen Band Potawatomi Indian Tribe, 498
U.S. 505, 509 (1991) (explaining that immunity respects tribes’
“inherent sovereign authority”); Breakthrough, 629 F.3d at
1183 (noting that one rationale for immunity was to protect
tribes’ treasuries). Respecting the tribe’s sovereignty corre-
sponds to factor (3): A suit against an entity drags the sovereign
into court only if the entity is under the sovereign’s control.
And protecting the tribe’s treasury maps on to factor (5).
Between those two factors, the effect on the tribe’s treasury
may matter more. That factor is the core of sovereign immun-
ity, shielding the fisc so governments can decide whether to
spend finite funds on healthcare, education, pensions, or satis-
fying individual legal claims. Richard H. Fallon, Jr., Of Legis-
lative Courts, Administrative Agencies, and Article III, 101
Harv. L. Rev. 915, 937 (1988) (“[S]overeign immunity rests on
the assumption that … the government should be able to weigh
for itself whether submission to a traditional lawsuit would

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harm or promote the public interest.”); Alden v. Maine, 527
U.S. 706, 750 (1999) (“Private suits against nonconsenting
[sovereigns] … may threaten [their] financial integrity ….”).
So in the analogous context of suits against government offic-
ers, courts decide whether a suit is really against the sovereign
by looking at whether a judgment would hit the public coffers.
Dugan v. Rank, 372 U.S. 609, 620 (1963); Edelman v. Jordan,
415 U.S. 651, 663 (1974). Sovereign immunity is really immun-
ity for the sovereign’s treasury, so how a judgment would affect
tribal finances may merit the most weight.
In cases like this one, any tribal-immunity test regrettably
must also serve another purpose: separating true arms of the
tribe from shams. Unscrupulous lenders can seek out tribes to
pose as figureheads, hide behind their sovereign immunity, and
break state law scot-free. Unfortunately, these rent-a-tribe
schemes do happen. Jayne Munger, Note, Crossing State
Lines: The Trojan Horse Invasion of Rent-a-Bank and Rent-a-
Tribe Schemes in Modern Usury Laws, 87 Geo. Wash. L. Rev.
468, 478–79 (2019). To reserve tribal sovereign immunity for
tribal sovereigns, our test must sift out impostors.
That may mean putting less weight on factors (1), (2), and
(4). Whenever a non-tribal business gets a tribe to pose as a
figurehead, both (1) and (4) will be met: The parties may be
sure to incorporate the business under tribal law and to note the
tribe’s intent to extend it sovereign immunity. As for factor (2),
the entity’s purpose, it may be easy to dash off a document recit-
ing that the business’s purpose is helping a tribe. See People ex
rel. Owen v. Miami Nation Enters., 386 P.3d 357, 376, 378
(Cal. 2016) (even though firm’s articles of incorporation listed
purpose to help tribe, the “vast majority” of its revenue went to

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non-tribal partners). True, the other half of factor (2), how
much the business serves that stated purpose, may prove rele-
vant. And it can be revealing if an entity flunks any of these
factors. But because these factors may come out identically for
true tribal arms and for shams, we do not find it very informa-
tive when these easily checked boxes are checked easily.
We thus apply the Breakthrough factors, emphasizing sub-
stance over form. At least on these facts, we pay particular atten-
tion to (3) and especially to (5). On each factor, GreatPlains
bears the burden of showing that it favors immunity. Bowers v.
NCAA, 475 F.3d 524, 546 n.25 (3d Cir. 2007).
B. GreatPlains is not an arm of the tribe
1. GreatPlains’ method of incorporation favors its being an
arm of the tribe. Under this factor, an entity is more likely an
arm of a tribe if it was (a) created under tribal law and (b) created
by the tribe, rather than a preexisting entity absorbed by the
tribe. Miami Nation, 386 P.3d at 372.
The District Court found that GreatPlains “was formed under
tribal law and did not exist before the Tribe created it.” App. 5.
Those factual findings were not clearly erroneous. To be sure,
Ransom concocts a theory that non-tribal firms created Great-
Plains before the tribe absorbed it. But the record shows only
that the tribe wanted to start a lender, had no experience doing
so, and thus turned to outside partners for help. Five years later,
Island Mountain ended GreatPlains’ relationship with those
partners and has run it ever since. That suggests that the tribe
used outsiders to help it get a new business off the ground, not
that outsiders had surreptitiously created the business on their

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own. Although we give this factor little weight here, it favors
immunity.
2. GreatPlains’ purpose slightly favors treating it as an
arm of the tribe. This factor asks whether the entity was created
to benefit the tribe and to help it act as a government—for instance,
by raising revenue. Breakthrough, 629 F.3d at 1192. It exam-
ines both the entity’s stated purpose and how effectively it
serves that purpose. Miami Nation, 386 P.3d at 372. Because
the stated purpose is easy to manipulate, we put more stock in
how much the entity serves it. Yet we cannot fixate on results—
say, how much money the business earned the tribe or how
many tribal jobs it created. That would make a business’s tribal
status turn on whether it happened to succeed. So to test this
factor, we will focus on both (a) GreatPlains’ stated purpose
and (b) whether it was designed to serve that purpose.
As for stated purpose, the tribal resolution creating Great-
Plains declares that it is meant to “further the economic well-
being of the members of the [Fort Belknap Indian] Commu-
nity.” App. 117. That favors immunity, though we put little
stock in it.
Is GreatPlains designed to achieve that purpose? On bal-
ance yes, though the evidence is mixed. The District Court
found otherwise, in part because GreatPlains has no employ-
ees. But that is because it leases its workers from Island Moun-
tain. By increasing demand for Island Mountain’s workers,
most of whom are tribal members, GreatPlains is designed to
create tribal jobs.
On the other hand, the District Court also saw “no indica-
tion” that GreatPlains had ever returned any profit to the tribe,

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after more than a decade in business and several changes in
management. App. 6. That fact is hard to interpret. Island
Mountain is entitled to all GreatPlains’ profits, so the business
seems designed to make money for the tribe. But it is not clear
that it ever has, and that does not seem to be a commercial acci-
dent. Charging exorbitant interest rates should be a good line
of business, and the tribe’s other lenders have earned it fistfuls
of money. GreatPlains insists that it just has not returned
money to the tribe yet, because it reinvests all profits in the
business. But it has never explained why the tribe’s other lend-
ers have earned the tribe so much money, yet GreatPlains is the
mysterious outlier. When a business repeatedly fails to achieve
its stated purpose for no clear reason, over more than a decade,
that can be evidence that it might be serving a different, unstated
purpose.
Still, those gnawing doubts cannot outweigh the solid evi-
dence listed above. This factor favors immunity here, but less
than it would otherwise.
3. Control leans toward GreatPlains’ being an arm of the
tribe. This factor asks who is really in charge. It examines the
entity’s governance, management, and ownership. Williams,
929 F.3d at 182. It also asks whether the entity’s leaders come
from the tribal government, are tribal members, or are at least
tribal appointees. Breakthrough, 629 F.3d at 1193; White, 765
F.3d at 1025. At root, the question is: Who calls the shots?
The answer is mixed. On one hand, GreatPlains is wholly
owned by the tribe and solely managed by Island Mountain,
which in turn is wholly owned and run by the tribe. Island
Mountain’s board serves as the board of GreatPlains. All board

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members are appointed and removable by the tribal council,
and all board members are members of the tribal council. In
turn, the board hires and can fire Island Mountain’s CEO, who
is a tribal member.
But the loan agreement limits the tribe’s control. If the tribe
threatens GreatPlains’ ability to pay back the loan, taxes Great-
Plains, or regulates it in a way that is adverse to Newport’s inter-
ests, then GreatPlains falls into default. That limits the tribe’s
freedom to direct GreatPlains to pursue goals other than earn-
ing money to repay Newport—say, forgoing usurious interest
rates because they are inconsistent with tribal values, or hiring
more tribal workers at higher wages because the tribe wants to
create jobs for its members. It also forces the tribe to treat
GreatPlains as an independent entity beyond the tribe’s full
control.
Of course, we understand why a lender would insist on
those terms. And a tribal business does not stop being tribal
just because it borrows money and puts up collateral. But when
that funding restricts the tribe’s freedom of action, forcing it to
put the lender’s interests ahead of all else, the conclusion is
inescapable: The tribe controls the business less.
“Less” is key. The Breakthrough factors are not binaries
but matters of degree. See Mestek, 72 F.4th at 260. Here, the
tribe still controls GreatPlains’ day-to-day management and
strategic direction, and this factor favors immunity. But its
weight is reduced by GreatPlains’ incomplete control.
4. The tribe’s intent favors immunity. The fourth factor asks
whether the tribe intended to confer its sovereign immunity on
GreatPlains. Breakthrough, 629 F.3d at 1193–94. It did.

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GreatPlains’ articles of organization declare that it “is to enjoy
the Tribe’s sovereign immunity” and that “the Tribe hereby
confers on [GreatPlains] sovereign immunity from suit to the
same extent that the Tribe would have such sovereign immun-
ity if it engaged directly in the activities undertaken by” Great-
Plains. App. 99 ¶ 7. This factor favors immunity. Yet here, it is
so easy to meet that we mostly discount it.
5. The financial relationship between the tribe and Great-
Plains weighs heavily against immunity. The last factor asks
how a judgment against the firm would affect the tribe’s finances.
It favors immunity if the tribe would be directly liable for a
judgment. Miami Nation, 386 P.3d at 373. But it is enough if
the judgment would cut into tribal revenue indirectly—say, by
taking damages out of the profits the business would otherwise
send the tribe. Id.
GreatPlains’ finances do not affect the tribe’s. It is a sepa-
rate limited liability corporation, insulating the tribe from its
liability. And the record nowhere suggests that it has ever
returned a profit to Island Mountain. So if GreatPlains must
pay a judgment, that likely will not reduce the tribe’s immedi-
ate revenue by even a penny. GreatPlains responds that, instead
of returning money to the tribe directly, it reinvests all its
profits—if any are left after Newport gets paid—in the busi-
ness. But unlike the tribe’s other lending businesses, Great-
Plains offers us no proof of its profitability at all. It has given
us no ledgers, budgets, or projections showing that it retains
any profit after paying interest to Newport, nor has it shown
that it reinvests money in tribal businesses. It has not borne its
burden of showing that an adverse judgment would harm the
tribe. That cuts decisively against immunity.

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* * * * *
GreatPlains’ method of incorporation and the tribe’s intent
favor immunity, but that shows very little. The same goes for
GreatPlains’ stated purpose. And though GreatPlains seems
mostly designed to achieve that purpose, the consistent lack of
profitability means that this factor helps GreatPlains only mar-
ginally. That leaves the two most important factors: control and
financial relationship. Control favors immunity, but only
somewhat. By contrast, here GreatPlains’ financial relation-
ship with the tribe cuts decisively against immunity. And it is
the more important factor.
Breakthrough is a five-factor test, not a one-factor test. But
at least here, factor (5) is the most important. When the other
factors are qualified and this one is resounding, it may some-
times tip the balance all on its own. That is true here: A judg-
ment against GreatPlains will not immediately eat into tribal
revenues, which GreatPlains’ more modest showings on the
other factors cannot overcome.
GreatPlains is not an arm of the tribe and so lacks the tribe’s
sovereign immunity. We will thus affirm and remand for fur-
ther proceedings.

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