TRIBE AS BORROWER



FINANCING ISSUES IN INDIAN COUNTRY

Burt Bruton

Greenberg Traurig, P.A.

Miami, FL

October 2005

NATIVE AMERICAN ABC’s. Here are some useful definitions and commonly used acronyms in U.S. laws pertaining to Indian tribes:

“BIA” means the Bureau of Indian Affairs, Department of the Interior.

“IGRA” means the Indian Gaming Regulatory Act, 25 U.S.C. §2701 et seq.

“Indian country” (as defined in 18 U.S.C. §1151, for purposes of Chapter 53, with certain exceptions concerning alcohol): means “(a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.”

“Indian lands” (as defined in 25 U.S.C. §81(a)) means “lands the title to which is held by the United States in trust for the benefit of an Indian tribe or lands the title to which is held by an Indian tribe subject to restriction by the United States against alienation.” (this definition varies in IGRA)

“Indian tribe” (as defined in 25 U.S.C. §450b(e)) means “any Indian tribe, band, nation, or other organized group or community of Indians, including any Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688) [43 U.S.C. § 1601 et seq.], which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.” (this definition varies in IGRA)

“IRA” means the Indian Reorganization Act of 1934.

“NIGC” means the National Indian Gaming Commission, established by IGRA within the Department of the Interior to regulate gaming by Indian tribes.

“P.L. 280” means Public Law 280, Act of August 15, 1953, ch. 503, 67 Stat. 588-90 (now codified as amended in scattered sections of Titles 18 & 28 U.S.C.)

“Secretary” means the Secretary of the Interior.

TRIBAL ORGANIZATION & AUTHORITY. When doing business with an Indian tribe, first determine the tribe’s status and its form of governmental organization.

Federally recognized tribes. From time to time the Department of the Interior publishes in the Federal Register a list of federally recognized Indian tribes; any agreement with a federally recognized tribe should identify the tribe by the name appearing in the published list (for reference, a listing dated November 21, 2003 was published in the Federal Register on December 5, 2003 in Volume 68, at Page 68180). Federally recognized Indian tribes enjoy sovereign immunity; their lands are protected by federal law, and they are eligible for special programs and services provided by the United States to Indians because of their status as Indians.

IRA §16 Tribes. Many federally recognized Indian tribes are organized under 25 U.S.C. §476, Section 16 of the Indian Reorganization Act of 1934. A tribe organized under Section 16 will be governed by a written constitution that establishes the governing body of the tribe, sets forth its powers and authority, and perhaps reserves some decision-making to the tribe as a whole. A complete copy of the tribe’s constitution and bylaws, together with all amendments, is a key document to examine when doing business with an Indian tribe organized under Section 16 of the IRA. In addition, the tribe may have adopted ordinances, resolutions or other legislation pursuant to its constitution that will affect the proposed transaction with the tribe, such as an ordinance governing its procedures for waiving its sovereign immunity.

Tribes Not Organized under IRA. The Navajo Nation, the largest tribe in the United States, is not organized under the IRA. Tribes that do not have a constitution adopted under Section 16 may instead be governed by tribal ordinances, resolutions or other instruments. These instruments must be examined carefully to determine the powers of the tribe, the identity of its decision-making body, and what procedures must be observed to authorize the tribe to enter into the proposed transaction. Some tribes may have no written organizational or governing documents, relying instead on tribal history and oral tradition for governance.

IRA §17 Corporations. Section 17 of the Indian Reorganization Act permitted Indian tribes (even if not organized under Section 16) to form corporations having charters issued by the Department of the Interior. A Section 17 corporation is a distinct but parallel legal entity whose powers, procedures and immunities may differ from those of the related tribe. The corporation’s charter and bylaws will specify its process for authorizing transactions, which may include requirements for approval by the tribe’s governing body and/or the Bureau of Indian Affairs. Many original Section 17 corporations are inactive today, owing to restrictions on corporate activities and BIA approval rights that appeared in the standard form of charter originally promulgated by the BIA; these restrictive provisions are not required by federal law, however, and some tribes have amended the charters of their Section 17 corporations to make them more effective vehicles for modern business transactions.

Other Tribal Business Organizations. Section 17 corporations are not the only form of business organization used by Indian tribes. Some tribes do business through corporations or other entities formed under tribal law or state law; parties often find themselves doing business with a tribal governmental authority, commission or other instrumentality that is essentially the tribe itself.

a) A party contracting with a business entity created under tribal law should examine the tribe’s corporation code or other law or ordinance governing the creation of the business entity, as well as the entity’s charter or bylaws or other specific governing documents. A business entity organized under tribal law may enjoy sovereign immunity if it is owned by the tribe itself. Even if the entity is privately owned by a tribal member rather than by the tribe, the tribal law governing the business entity may limit the judicial forum in which the entity may be sued.

b) When an Indian tribe does business through a state-chartered business entity, then the powers and authority of the entity would be specified by state law and the organizational documents for that entity. Unlike the tribe itself, a state-chartered entity owned by an Indian tribe would not enjoy the tribe’s sovereign immunity and would be subject to suit in a state court. Sovereign immunity issues will be raised, however, by any attempt to “pierce the corporate veil” of a tribally owned state-chartered entity.

c) A contract made with a tribal gaming commission, housing authority, land commission, development authority, utility commission or other tribal governmental instrumentality presents the same issues as a contract made directly with the tribe itself: primarily issues of sovereign immunity, power to engage in the transaction, authority to bind the entity, court jurisdiction, and remedies for breach of the contract.

Always Ask for Authority. Regardless of the particular form of tribal business organization, a party contracting with an Indian tribe or a tribally owned entity should always ask for and review the documents establishing its organization and authority to enter into the transaction. Remember that an Indian tribe is a sovereign governmental instrumentality, and familiar principles of apparent authority do not apply to the tribe and might not apply to tribally owned entities.

SOVEREIGN IMMUNITY. Federally recognized Indian tribes enjoy sovereign immunity against unconsented suit, which can be waived only by the federal government or by the tribe itself.

What is Sovereign Immunity? Sovereign immunity is an attribute of a sovereign government rooted in English common law, based on the principle that “the King can do no wrong.” Essentially, it is the sovereign’s power to prevent anyone from suing the government in court unless the government consents to the suit. This principle applies to federal and state governments in the United States, although Congress, legislatures and the courts have created numerous exceptions, particularly when the federal or state government is engaged in a proprietary or commercial activity. The sovereign immunity principle also applies to Indian tribes, which are considered “domestic dependent nations,” Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831), and their sovereignty is subordinate only to the power of Congress. A primary difference between tribal immunity and federal and state immunity, however, is that tribal immunity applies even when a tribe acts in a proprietary or commercial capacity. Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751 (1998). In addition, an Indian tribe enjoys sovereign immunity from suit without any distinction based on where the contract is made or where the cause of action arises. Id. In short, unless its sovereign immunity has been waived, an Indian tribe cannot be sued without its consent in tribal, state or federal court. United States v. U.S. Fidelity & Guaranty Co., 309 U.S. 506 (1940); Oklahoma Tax Comm’n v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505 (1991).

Who Can Waive Sovereign Immunity? Congress has plenary power over Indian affairs and has the power to waive tribal immunity. For example, Congress has waived tribal immunity from suit under the Resource Conservation and Recovery Act, the Federal Hazardous Materials Transportation Act, and the Indian Gaming Regulatory Act. Although early cases indicated that a tribe could not waive its immunity without prior congressional consent, Thebo v. Choctaw Tribe of Indians, 66 F. 372 (8th Cir. 1895), modern federal appellate cases now recognize that an Indian tribe has authority to waive its sovereign immunity independently without federal approval, United States v. Oregon, 657 F.2d 1009 (9th Cir. 1981); Merrion v. Jicarilla Apache Tribe, 617 F.2d 537 (10th Cir. 1980), affirmed, 455 U.S. 130 (1982). A waiver of tribal immunity must be an unequivocal act by the tribal government expressly consenting to suit; the tribe’s sovereign immunity “cannot be waived by officials,” United States v. U.S. Fidelity & Guaranty Co., 309 U.S. at 513. If the tribe has adopted an ordinance or regulation governing the procedures for waiving its sovereign immunity, then the recipient of the waiver must be careful to verify that all procedural requirements have been met for a valid and binding waiver by the tribal government.

Immunity Waivers in Section 17 Corporate Charters. Section 5(i) of the Interior Department’s model charter for IRA Section 17 corporations included a specific provision granting the corporate power to “sue and be sued in courts of competent jurisdiction within the United States.” This model charter clause also disclaimed any consent by the United States or the respective tribe to “the levy of any judgment, lien or attachment upon any property of the Tribe other than income or chattels specially pledged or assigned.” When dealing with a Section 17 corporation or any other tribally owned entity, a review of the entity’s governing documents is essential; for example, a slightly different version of Section 5(i) appears in the charter of The Seminole Tribe of Florida, Inc., which provided that the “sue or be sued” clause was not a consent by the corporation to any judgment, lien or attachment upon the property of the corporation. Based on that charter restriction, in Maryland Casualty Co. v. Citizens National Bank of West Hollywood, 361 F.2d 517 (5th Cir. 1966), cert. denied, 385 U.S. 918 (1966), the court rejected a judgment creditor’s attempt to garnish a bank deposit account of the tribal corporation that was not expressly assigned, even to satisfy a valid judgment against the corporation.

Subordinate Tribal Organizations. In addition to Section 17 corporations, tribal governments may create bureaus, commissions, authorities or other organizations to engage in or oversee economic activities. Courts have struggled with the question of whether the resulting tribal entity enjoys sovereign immunity as a subordinate economic instrumentality of the tribal government, or whether the entity can be sued without consent because of its distinct non-governmental character. Compare White Mountain Apache Indian Tribe v. Shelly, 480 P.2d 654 (Ariz. 1971) (tribal timber company immune), and S. Unique Ltd. v. Gila River Pima-Maricopa Indian Community, 674 P.2d 1376 (Ariz. Ct. App. 1984) (tribal farming company immune), with Dixon v. Picopa Construction Co., 772 P.2d 1104 (Ariz. 1989) (tribal construction company not immune). With respect to subordinate economic entities established by a tribe to participate in certain federal programs, federal regulations may require the entity to consent to suit. For example, the Department of Housing and Urban Development requires that if a tribe creates an Indian Housing Authority to receive federal housing assistance, then the authority must be authorized to consent to suit; the same federally required consent provision states, however, that the tribe is not liable for the debts of the authority and limits recourse against the property of the authority in certain respects. 24 CFR Part 905; R.C. Hedreen Co. v. Crow Tribal Housing Authority, 521 F. Supp. 599 (D. Mont. 1981). It is not clear, however, that the housing authority’s general authorization to consent to suit is self-operative, Smith Plumbing Co. v. Aetna Casualty & Surety Co., 720 P.2d 499 (Ariz. 1986), cert. denied, 479 U.S. 987 (1986), so a party dealing with an Indian housing authority should request the authority’s express consent to suit with respect to the particular contract in question.

Immunity Waiver Must Be Clear and Unequivocal. A tribal waiver of sovereign immunity from unconsented suit “cannot be implied but must be unequivocally expressed,” Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978). For example, the lack of an express waiver of sovereign immunity barred suit on a promissory note executed by an Indian tribe in the case of American Indian Agricultural Credit Consortium, Inc. v. Standing Rock Sioux Tribe, 780 F.2d 1374 (8th Cir. 1985), even though the note (i) was signed by the tribal chairman, (ii) was authorized by a written resolution of the tribal council, (iii) was expressly governed by District of Columbia law, (iv) provided for default interest, set-off rights and the lender’s sale of collateral “in addition to such other and further rights and remedies provided by law,” and (v) authorized the lender to collect its attorneys’ fees. Further, a tribal immunity waiver will not be implied from the inclusion of an arbitration clause in a contract, Pan American Co. v. Sycuan Band of Mission Indians, 884 F.2d 416 (9th Cir. 1989), unless the clause refers to judicial enforcement of the arbitration award, Native Village of Eyak v. GC Contractors, 658 P.2d 756 (Alaska 1983), or unless the clause incorporates a state arbitration statute that provides for judicial enforcement, Hydaburg Cooperative Association v. Hydaburg Fisheries, 826 P.2d 751 (Alaska 1992). There is no substitute for a clear contractual provision expressing the tribe’s intention to waive its sovereign immunity and to consent to suit against the tribe for the enforcement of the contract, which is often coupled with a forum selection clause (discussed below).

Limited Waivers. Sovereign immunity from unconsented suit is an important aspect of tribal sovereignty, and Indian tribes take their sovereignty seriously. Rather than grant broad or general waivers of their immunity, tribes are more willing to grant limited waivers that are customized to the particular transaction or that restrict the other party’s recourse to particular assets of the tribe or tribal entity. Such limited waivers are analogous to public financing transactions by state or local governmental authorities in which a particular revenue source is pledged as a source of repayment, rather than the general revenues of the governmental authority. The tribe may insist that its waiver of sovereign immunity include a contractual mediation or arbitration provision for the private settlement of disputes, with ultimate recourse to the courts to enforce the result of the private dispute resolution procedure.

WHAT SUBSTANTIVE LAW APPLIES? State civil laws are not generally applicable on Indian lands, unless otherwise provided by federal law.

State Laws Applied by Congress. Probably the best modern example of federal imposition of state laws in Indian country is the provision of the Indian Gaming Regulatory Act, 25 U.S.C. §2701 et seq., under which the types of gaming permitted on Indian reservations is determined by reference to gaming permitted elsewhere in the state. Another example is 25 U.S.C. §483a, which as amended in 1990 authorizes mortgages of trust lands or restricted lands owned by individual Indians, subject to BIA approval, and provides that such land “shall be subject to foreclosure or sale pursuant to the terms of such mortgage or deed of trust in accordance with the laws of the tribe which has jurisdiction over such land or, in the case where no tribal foreclosure law exists, in accordance with the laws of the State or Territory in which the land is located.”

Public Law 280. A less contemporary (and more complicated) example of a federal law applying state law to Indian country is Public Law 280, first adopted in 1953 and now codified as amended in scattered sections of Titles 18 and 28, U.S.C. P.L. 280 originally applied only in California, Minnesota (with exceptions), Nebraska, Oregon (with exceptions) and Wisconsin; Alaska (with exceptions) was added to the list in 1958.

a) State Laws and Jurisdiction. P.L. 280 purported to make the criminal laws of the listed states and territories applicable to Indian country located therein, and with respect to state civil laws P.L. 280 provided as follows (28 U.S.C. §1360(a)):

“(a) Each of the States listed in the following table shall have jurisdiction over civil causes of action between Indians or to which Indians are parties which arise in the areas of Indian country listed opposite the name of the State to the same extent that such State has jurisdiction over other civil causes of action, and those civil laws of such State that are of general application to private persons or private property shall have the same force and effect within such Indian country as they have elsewhere within the State.”

b) Additional States Opt In. P.L. 280 contained optional provisions whereby other states could choose to extend the jurisdiction of their laws to Indian tribes located there; Nevada (1955), Florida (1961), Idaho (1963) and Iowa (1967) did so without controversy as to the procedural correctness of their extension of jurisdiction. Other states have enacted legislation asserting full or partial jurisdiction over Indian reservations under P.L. 280, with varying degrees of controversy: Arizona (1967), Montana (1963), North Dakota (1963), Utah (1971), and Washington (1957 and 1963). In 1968, P.L. 280 was amended to provide that no additional states could acquire P.L. 280 jurisdiction over the objection of their affected Indian tribes. Generally speaking, Indian tribes in many states have opposed P.L. 280 as assimilationist legislation and have challenged both the scope of the law and the methods by which it was enacted in some states.

c) Exclusions. P.L. 280 contains the following exclusion provision (28 U.S.C. §1360(b)), which is the basis for extensive debate over the extent to which various state laws (such as zoning codes and other land use regulations) may apply in Indian country through the operation of P.L. 280:

“(b) Nothing in this section shall authorize the alienation, encumbrance or taxation of any real or personal property, including water rights, belonging to any Indian or any Indian tribe, band, or community that is held in trust by the United States or is subject to restriction against alienation imposed by the United States; or shall authorize regulation of the use of such property in a manner inconsistent with any Federal treaty, agreement, or statute or with any regulation made pursuant thereto; or shall deprive any Indian or any Indian tribe, band or community of any right, privilege, or immunity afforded under Federal treaty, agreement, or statute with respect to hunting, trapping, or fishing or the control, licensing, or regulation thereof.”

d) Zoning Ordinances as Impermissible Encumbrances. The long-standing position of the Department of the Interior is that P.L. 280 did not supplant federal and tribal control over reservation lands, and that reservation lands are exempt from the “encumbrance” of state and local zoning ordinances. Santa Rosa Band of Indians v. Kings County, 532 F.2d 655 (9th Cir. 1975), cert. denied, 429 U.S. 1038. Subsection (a) of 25 CFR §1.4 provides that Indian lands are exempt from any “laws, ordinances, codes, resolutions, rules or other regulations of any State or political subdivision thereof limiting, zoning or otherwise governing, regulating, or controlling the use or development of any real or personal property, including water rights,” and subsection (b) reserves to the Secretary the power to extend such state laws and ordinances to Indian lands. It is unclear, however, whether this federal regulation has any underlying statutory authority, and at least one U.S. District Court has declared the regulation unconstitutional for lack of congressional authorization. Norvell v. Sangre de Cristo Development Co., 372 F. Supp. 348 (D.N.M. 1974).

e) Application to Tribes? At least one court has distinguished the provisions of P.L. 280 regarding “civil causes of action between Indians or to which Indians are parties” from civil actions involving Indian tribes. See Parker Drilling Co. v. Metlakatla Indian Community, 451 F. Supp. 1127 (D. Alaska 1978).

f) Other Limitations on P.L. 280. In Bryan v. Itasca County, 426 U.S. 373 (1976), the Supreme Court held that P.L. 280 did not authorize states to impose taxes when they expanded their civil law jurisdiction to Indian lands under P.L. 280. But more broadly, the Bryan decision apparently limits the civil jurisdiction provisions of P.L. 280 to state laws and judicial decisions that provide rules for resolving disputes between private civil litigants, rather than state laws that “regulate” conduct, with the court emphasizing the “absence of anything remotely resembling an intention to confer general state civil regulatory control over Indian reservations,” Id. at 383-384. This conclusion might be surprising to a lender reading the plain language of P.L. 280, and the court’s analysis leaves unsettled the applicability of general state commercial laws in Indian country in P.L. 280 jurisdictions, since such laws combine elements of dispute resolution as well as regulations for commercial conduct. Generally speaking, lenders demand more certainty than available under P.L. 280 as interpreted by the Bryan case.

Uniform Commercial Code. As a state law, the Uniform Commercial Code would not apply in Indian country in a non-P.L. 280 jurisdiction, and even in a P.L. 280 jurisdiction the regulatory aspects of the UCC might not apply in Indian country under the Bryan analysis. There is no general body of federal substantive law equivalent to the Uniform Commercial Code governing sales, leasing and financing transactions with Indian tribes, raising the undesirable possibility that there may be no substantive law applicable to the transaction at all, unless the tribe has adopted a commercial law.

a) Tribal Commercial Laws. To foster commercial transactions, an Indian tribe may find it advantageous to adopt its own commercial laws to relieve creditor uncertainty over secured financing in Indian country. The Navajo Nation adopted Phase I of a tribal UCC in 1986, and the tribe operates its own filing office for financing statements. In 2001, the Seminole Tribe of Florida adopted a variation of UCC Revised Article 9 (together with relevant portions of UCC Articles 1 and 8) as its Secured Transaction Ordinance, Ordinance No. C-01-01 (August 27, 2001). Under the Seminole ordinance, the designated central filing office is the same as under the Florida UCC, the privatized Florida Secured Transaction Registry. Although Florida is a P.L. 280 jurisdiction and portions of the Florida UCC might therefore apply on the Seminole Tribe’s reservation, the Seminole Tribe’s Secured Transaction Ordinance was necessary to enable the tribe to grant security interests in tribal assets, since the scope of revised Article 9 of the Florida UCC still excludes any transfers by a government or a governmental unit.

b) Model Tribal Secured Transactions Act. In June 2005, the National Conference of Commissioners on Uniform State Laws reported the completion of a draft Model Tribal Secured Transactions Act, which is available from the NCCUSL website () and was prepared by the Liaison with Native American Tribes Committee chaired by Timothy Berg of Phoenix, Arizona. The NCCUSL Model Act is accompanied by a draft Memorandum of Understanding for a joint sovereign filing system to be entered into between the adopting tribe and the respective secretary of state in order to permit the state-maintained central UCC filing office to serve as the filing office under the Model Act when adopted by the tribe. In addition, the NCCUSL project included the preparation of a Secured Transactions Filing Regulation containing a tribal variation of the filing office administrative provisions found in Part V of Revised UCC Article 9.

c) General Incorporation of State Law. Another approach for creating a general tribal commercial law is found in Ordinance No. 95-720-1 of the Mohegan Tribe of Connecticut. Article III, Section 301 of this Mohegan Tribal ordinance adopts as substantive law: (i) law as set forth in any Mohegan Tribal ordinances or regulations, and (ii) the general statutes of the state of Connecticut and cases interpreting those statutes, except those that conflict with any written Mohegan Tribal law.

d) Federal Hints. A federal hint regarding the adoption of tribal secured transaction laws appears in the revised version of regulations governing loans made by private lenders and guaranteed or insured by the BIA pursuant to the Indian Financing Act (25 U.S.C. §1451 et seq.). Former 25 CFR §103.28(a) required lenders to file all security documents and financing statements in the appropriate county or other public office in accordance with state laws. That former regulation provided: “Security interests in personal property will be perfected in accordance with the provisions of Article 9 of the Uniform Commercial Code in states in which the code has been adopted.” As amended in 2001, however, 25 CFR §103.30(e) now requires lenders under insured and guaranteed loans to “record all mortgages and other security interests in accordance with State and local law, including the laws of any tribe that may have jurisdiction.”

e) What if the tribe has no debtor-creditor laws? A tribe’s adoption of a form of secured transaction law analogous to UCC Article 9 serves a purpose beyond the particular lending transaction between an Indian tribe and a non-Indian lender: it creates a system of ordering lien priorities versus third party creditors who are not parties to the loan documents. On the other hand, Article 9 contains only a few enforcement provisions and relies largely on state debtor-creditor laws of general application. So even if the Indian tribe has adopted a secured transactions law based on Article 9, a lender still must ask what remedies are available under tribal law (if any) for the enforcement of the loan documents. Assuming that the loan documents spell out in detail the lender’s remedies for default, one approach is for the Indian tribe to adopt the remedial provisions of the loan documents as the law of the tribe for purposes of that particular transaction. A lender should take care, however, not to include among its contractual remedies (whether or not adopted as the law of the tribe) private rights to enter or take possession of tribal lands, lest the loan documents run afoul of the federal prohibition against encumbrances on Indian lands under 25 U.S.C. §81, discussed in the following Topic.

SECTION 81 CONTRACT APPROVAL. 25 U.S.C. §81 requires the approval of the Secretary of the Interior for contracts that encumber Indian lands for a period of 7 years or more. This statute was substantially amended in 2000, as discussed in this Topic. Other contracts with Indian tribes requiring federal approval are leases of Indian lands and mortgages of leaseholds under the Indian Long-Term Leasing Act, 25 U.S.C. §415 (discussed in Topic F below), and contracts involving gaming management contracts or agreements collateral thereto under the Indian Gaming Regulatory Act, 25 U.S.C. 2701 et seq. (discussed in Topic G below).

Predecessor Versions. Under prior versions of 25 U.S.C. §81, contracts for services to Indian tribes “relative to their lands” were null and void if not properly approved by the Secretary of the Interior. Under that former statute, an unapproved contract would be void even if the reason that approval was not obtained was that Bureau of Indian Affairs officials opined that BIA approval was unnecessary. Barona Group of Capitan Band of Mission Indians v. American Mgmt. & Amusement, 840 F.2d 1394 (9th Cir. 1987), cert. dismissed, 487 U.S. 1247 (1988).

Statute Revised in 2000. Section 81 was substantially revised by the Indian Tribal Economic Development and Contract Encouragement Act of 2000, Public Law 106-179. As amended, Section 81 no longer contains the former provision “relative to Indian lands,” making reliance on cases construing that provision dangerous. The revised statute also expressly provides for determinations by the Secretary that contract approval is not required. As revised in 2000, Section 81 reads as follows:

§81. Contracts and agreements with Indian tribes

(a) Definitions

In this section:

(1) The term “Indian lands” means lands the title to which is held by the United States in trust for an Indian tribe or lands the title to which is held by an Indian tribe subject to a restriction by the United States against alienation.

(2) The term “Indian tribe” has the meaning given that term in section 450b(e) of this title.

(3) The term “Secretary” means the Secretary of the Interior.

(b) Approval

No agreement or contract with an Indian tribe that encumbers Indian lands for a period of 7 or more years shall be valid unless that agreement or contract bears the approval of the Secretary of the Interior or a designee of the Secretary.

(c) Exception

Subsection (b) of this section shall not apply to any agreement or contract that the Secretary (or a designee of the Secretary) determines is not covered under that subsection.

(d) Unapproved agreements

The Secretary (or a designee of the Secretary) shall refuse to approve an agreement or contract that is covered under subsection (b) of this section if the Secretary (or a designee of the Secretary) determines that the agreement or contract--

(1) violates Federal law; or

(2) does not include a provision that--

(A) provides for remedies in the case of a breach of the agreement or contract;

(B) references a tribal code, ordinance, or ruling of a court of competent jurisdiction that discloses the right of the Indian tribe to assert sovereign immunity as a defense in an action brought against the Indian tribe; or

(C) includes an express waiver of the right of the Indian tribe to assert sovereign immunity as a defense in an action brought against the Indian tribe (including a waiver that limits the nature of relief that may be provided or the jurisdiction of a court with respect to such an action).

(e) Regulations

Not later than 180 days after March 14, 2000, the Secretary shall issue regulations for identifying types of agreements or contracts that are not covered under subsection (b) of this section.

(f) Construction

Nothing in this section shall be construed to--

(1) require the Secretary to approve a contract for legal services by an attorney;

(2) amend or repeal the authority of the National Indian Gaming Commission under the Indian Gaming Regulatory Act (25 U.S.C. 2701 et seq.); or

(3) alter or amend any ordinance, resolution or charter of an Indian tribe that requires approval by the Secretary of any action by that Indian tribe.

July 2001 Regulations. The regulations required by amended Section 81 appear in 25 CFR Part 84, adopted in July 2001. Key provisions:

a) “Encumber” means to attach a claim, lien, charge, right of entry or liability to real property (referred to generally as “encumbrances”). Encumbrances covered by Part 84 may include leasehold mortgages, easements, and other contracts or agreements that by their terms could give to a third party exclusive or nearly exclusive proprietary control over tribal land.

b) Section 81 approval is not required for contracts or agreements that do not convey exclusive or nearly exclusive proprietary control over tribal lands for a period of seven years or more.

c) Section 81 approval is not required for non-mineral leases and leasehold mortgages that are otherwise reviewed and approved by the Secretary under 25 CFR Part 162, or for subleases and assignments of leases that are exempt from approval by the Secretary under that part.

d) Section 81 approval is not required for leases of tribal land that are exempt from approval by the Secretary under 25 U.S.C. §415 or 25 U.S.C. §477.

e) Section 81 approval is not required for contracts or agreements that are subject to approval by the National Indian Gaming Commission under IGRA, 25 U.S.C. §2701 et seq. and the Commission’s regulations.

LEASING OF INDIAN LANDS; LEASEHOLD MORTGAGES.

Indian Long-Term Leasing Act. Generally speaking, Indian lands may not be alienated without federal approval, but federal law permits long-term leases of Indian lands and mortgages against the leasehold interests created thereby, subject to certain statutory and regulatory restrictions. In general, leases of Indian lands under Section 415 for business purposes require approval by the Secretary of the Interior and may have a maximum term of 25 years, with one 25-year renewal term, although Section 415 contains many exceptions permitting longer terms (and is amended regularly to add more exceptions) for particular tribes or reservations. With the exceptions excerpted, Section 415 looks like this:

§415. Leases of restricted lands

(a) Authorized purposes; term; approval by Secretary

Any restricted Indian lands, whether tribally, or individually owned, may be leased by the Indian owners, with the approval of the Secretary of the Interior, for public, religious, educational, recreational, residential, or business purposes, including the development or utilization of natural resources in connection with operations under such leases, for grazing purposes, and for those farming purposes which require the making of a substantial investment in the improvement of the land for the production of specialized crops as determined by said Secretary. All leases so granted shall be for a term of not to exceed twenty-five years, except leases of land located ... [lengthy list of exceptions omitted] ... , which may be for a term of not to exceed ninety-nine years, and except leases of land for grazing purposes which may be for a term of not to exceed ten years. Leases for public, religious, educational, recreational, residential, or business purposes (except leases the initial term of which extends for more than seventy-four years) with the consent of both parties may include provisions authorizing their renewal for one additional term of not to exceed twenty-five years, and all leases and renewals shall be made under such terms and regulations as may be prescribed by the Secretary of the Interior. Prior to approval of any lease or extension of any existing lease pursuant to this section, the Secretary of the Interior shall first satisfy himself that adequate consideration has been given to the relationship between the use of the leased lands and the use of neighboring lands; the height, quality, and safety of any structures or other facilities to be constructed on such lands; the availability of police and fire protection and other services; the availability of judicial forums for all criminal and civil causes arising on the leased lands; and the effect on the environment of the uses to which the leased lands will be subject.

Other Tribal Exceptions. Other subsections of the Indian Long-Term Leasing Act contain special exceptions for the lands of particular tribes. For example, Subsection 415(b) provides that certain leases by the Tulalip Tribes under Subsection 415(a) do not require approval by the Secretary if the lease is executed pursuant to tribal regulations approved by the Secretary. Subsection 415(c) contains provisions particular to leases of Hopi partitioned lands, Subsection 415(e) contains provisions governing leases of restricted lands for the Navajo Nation, and Subsection 415(g) contains special provisions for leases of tribally-owned land by the Assiniboine and Sioux Tribes of the Fort Peck Reservation. Elsewhere in Title 25, Section 403a-2 permits the Tulalip Tribes, with the approval of the Secretary, to sell or to mortgage tribal lands even if held in trust by the United State or otherwise restricted against alienation. The point here is that the exceptions sometimes swallow the rule, and that when you are dealing with any particular tribe, the best practice is to search through all of Title 25 for particular exceptions applicable to that tribe.

Leasing Regulations. The Bureau of Indian Affairs regulations implementing the Indian Long-Term Leasing Act appear in 25 CFR Part 162. As noted above, leases approved by the BIA under Part 162 are now exempt from the approval requirements of 25 U.S.C. §81. Subpart B of Part 162 contains detailed regulations for agricultural leases, while Subpart F covers non-agricultural leases. Subparts C and D are “reserved” for residential and business leases respectively, so check for publication of the pending business lease regulations, and proceed under the non-agricultural lease regulations if the business lease regulations have not been published. Highlights of Part 162 for non-agricultural leases and leasehold mortgages:

a) What law governs the lease? Leases of tribal land are governed by federal law and by tribal laws that are not inconsistent with federal law. 25 CFR §162.109(b) provides that the federal regulations in Part 162 may be superseded or modified by tribal laws under certain specified conditions. 25 CFR §162.109(c) provides that state law MAY apply to lease disputes or define the remedies available to the Indian landowners in the event of a lease violation by the tenant, IF the lease so provides and the Indian landowners have expressly agreed to the application of state law. 25 CFR §162.612(c) provides that a lease may provide for lease disputes to be resolved in tribal court or any other court of competent jurisdiction or through arbitration or some other alternative dispute resolution method. This regulation cautions that the BIA may not be bound by decisions made in such forums, but the BIA will defer to ongoing proceedings, as appropriate, in deciding whether to cancel the lease or exercise other remedies under the regulations.

b) What provisions are required in the lease? 25 CFR §162.604 provides that the form of all leases must be approved by the Secretary, and that leases will not be approved at less than the present fair annual rent (with exceptions for tribal member homesites and for religious, educational, recreational or other public purposes). The lessee may be required to provide insurance for any improvements on the leased premises, and to maintain liability insurance and other insurance to protect the landowner’s interest. Other lease provisions required under 25 CFR §162.604 include:

➢ Unless otherwise provided by the BIA, the lessee must provide a surety bond to assure performance of the lessee’s obligations under the lease, including payment of not less than one year’s rent (unless paid in advance) and the estimated cost of any improvements to be constructed by the lessee.

➢ The lease must contain provisions as to the dates rent shall become due and payable, and the lease must specify whether the rent is to be paid directly to the landowner or to the BIA.

➢ Except with the approval of the Secretary, no lease can provide for payment of the rent in advance of the beginning of the annual use period for which such rent is paid.

➢ The lessee must agree not to use the leased premises (or cause the premises to be used) for any unlawful conduct or purpose.

➢ The lease must contain a provision stating that nothing contained in the lease will operate to delay or prevent a termination of federal trust responsibilities with respect to the land by the issuance of a fee patent or otherwise during the term of the lease; however, such termination will not serve to abrogate the lease; the owners of the land and the lessee and the lessee’s surety or sureties will be notified of any such change in the status of the leased land.

➢ The lease must contain a provision stating that while the leased premises are in trust or restricted status, all of the lessee’s obligations under the lease (and the obligations of the lessee’s sureties) are to the United States as well as to the owner of the land.

➢ The lease cannot give the lessee a preference right to future leases or contain any renewal provisions except as permitted in Part 162.

➢ If the leased lands are individually owned, certain additional lease provisions are required under 25 CFR §162.604(h).

c) How long can the lease term be? The Indian Long-Term Leasing Act specifies the maximum permitted duration for certain leases, as discussed above. Generally speaking, the maximum lease term is 25 years with one 25-year renewal option, but some tribes are authorized to lease for 99-year terms. The statute is riddled with exceptions and must be checked for the particular tribe. In addition to the statutory maximum lease durations, the general rule in the regulations is that approved leases shall be limited to the minimum duration, commensurate with the purpose of the lease, that will allow the highest economic return to the owner consistent with prudent management and conservation practices. 25 CFR §162.607 also provides that, unless the rent is based primarily on a percentage of the income produced by the leased land, the rents payable under the lease are subject to periodic review, at not less than five-year intervals, to reconsider the equities involved and the economic conditions at the time, and possible adjustment of the rent by the Secretary or by the land owners with the Secretary’s approval.

d) Are subleases, assignments or mortgages permitted? 25 CFR §162.610 provides that subleases, assignments, amendments or encumbrances of the lease require approval by the Secretary and the written consent of all parties to the lease, including the surety or sureties, except for the following:

➢ With the consent of the Secretary, the lease may contain a provision authorizing the lessee to sublet the premises in whole or in part without further approval. The sublease cannot, however, relieve the sublessor from any liability or diminish the supervisory authority of the Secretary provided for under the approved lease. For a ground lease of Indian lands for a commercial shopping center, for example, it would be essential to include such a blanket exemption to avoid BIA approval of each and every retail sublease.

➢ With the consent of the Secretary, the lease may contain a provision authorizing the lessee to encumber the leasehold estate for the purpose of borrowing capital for the development and improvement of the leased premises. The mortgage or trust deed instrument must be approved by the Secretary, and the Secretary’s written approval is usually affixed to the instrument when recorded.

➢ If there is a sale or foreclosure under the approved encumbrance and the lender is the purchaser, then the lender may assign the purchased leasehold without the approval of the Secretary or the consent of the other lease parties, provided that the assignee accepts and agrees in writing to be bound by all the provisions of the lease.

➢ If there is a sale or foreclosure under the approved encumbrance and the lender is not the purchaser, then the approval of the Secretary is required for any assignment of the purchased leasehold and the assignee will be bound by the terms of the lease and must assume in writing all obligations under the lease.

➢ With the consent of the Secretary, a lease of tribal land to individual tribal members or to tribal housing authorities may contain provisions permitting assignment of the lease without further consent or approval by the Secretary, where a lending institution or an agency of the United States, makes, insures or guarantees a construction loan for housing for Indians on the leased premises, the leasehold was pledged to secure the loan, and the lender obtained the leasehold in foreclosure or otherwise.

➢ With the consent of the Secretary, the housing leases described in the preceding paragraph may contain provisions permitting the lessee to assign the lease without further consent or approval.

e) What if the lessee violates the lease? 25 CFR §162.614 provides that the lease must specify the rate at which interest will accrue on overdue rent payments, and the lease may impose late payment penalties if the rent is not paid by a specified date. 25 CFR §162.612 provides that a lease of tribal land may grant the tribe certain negotiated remedies in the event of a lease violation, including the power to terminate the lease. Such negotiated remedies are in addition to the BIA’s power to cancel the lease under 25 CFR §162.619(c) in the event of a violation. The BIA’s exercise of this latter remedy is to be done in consultation with the Indian landowners and in consideration of other available remedies set forth in the lease. The regulations require the BIA to notify the lessee and the lessee’s sureties if the BIA determines that the lease has been violated, and the lessee has certain rights to appeal a cancellation decision.

f) What about mechanics’ liens? In the case of Red Mountain Machinery Co. v. Grace Investment Co., 29 F.3d 1408 (9th Cir. 1994), a materials supplier sought to foreclose a mechanic’s lien against a shopping center developer’s leasehold interest in land leased from a federally recognized tribe. The tribal land lease specifically provided that Arizona law would apply to controversies related to the project, and the lease was approved under 25 U.S.C. §415(a) by the BIA acting under delegated authority from the Secretary of the Interior. The trial court ruled that federal law pre-empted the application of the Arizona mechanic’s lien law, but the Ninth Circuit reversed, holding that Arizona state law applied because the Secretary of the Interior had already balanced competing federal, state and tribal interests and had approved the applicability of the Arizona mechanic’s lien law when approving the lease containing that governing law provision. In support of this pat conclusion based on the BIA lease approval, the court also emphasized that the application of the state lien law provision was consistent with the strong federal interest in promoting economic development on Indian lands. 29 F.3d at 1412.

GAMING MANAGEMENT CONTRACTS.

Indian Gaming Regulatory Act. The Indian Gaming Regulatory Act, 25 U.S.C. §2701 et seq. (“IGRA”), established the National Indian Gaming Commission (“NIGC”) to regulate gaming conducted on Indian lands. Section 2711 of IGRA governs gaming management contracts, and subsection 2711(h) transfers to the NIGC the authority of the Secretary of the Interior under Section 81 relating to gaming management contracts regulated under IGRA (recall that contracts within the scope of Section 81 are void if they do not receive the requisite federal approval). 25 CFR §533.7 provides that management contracts that have not been approved by the Secretary of the Interior or by the Chairman of the NIGC in accordance with 12 CFR Part 553 are void.

Management Contracts. As defined in 25 CFR §502.15, a “management contract” means “any contract, subcontract, or collateral agreement between an Indian Tribe and a contractor or between a contractor and a subcontractor if such contract or subcontract provides for the management of all or part of a gaming operation.” In the view of the NIGC, “management” with respect to a gaming operation involves planning, organizing, directing, coordinating and controlling; the performance of any of these activities under an agreement may constitute “management” for the purposes of determining whether an agreement is a gaming management contract requiring NIGC approval. See NIGC Bulletin No. 94.5. Regulations promulgated by NIGC under IGRA provide detailed requirements for the contents of a gaming management contract, including background checks on the owners and personnel of the management company, and are generally beyond the scope of this paper.

Collateral Agreements. Under Section 2711(a), a gaming management contract requiring NIGC approval includes “all collateral agreements to such contract that relate to the gaming activity.” As defined in 25 CFR §502.5, a “collateral agreement” means “any contract, whether or not in writing, that is related, either directly or indirectly, to a management contract, or to any rights, duties or obligations created between a tribe (or any of its members, entities, or organizations) and a management contractor or subcontractor (or any person or entity related to a management contractor or subcontractor).” Examples of “collateral agreements” requiring NIGC approval may include a land purchase agreement between a tribal gaming authority and a casino developer, Catskill Development, L.L.C. v. Park Place Entertainment Corp., 217 F. Supp.2d 423 (S.D.N.Y. 2002), or a combination of consulting agreement, construction and term loan agreement and participation agreement between a tribe and casino manager, U.S. ex rel. Bernard v. Casino Magic Corp., 293 F.3d 419 (8th Cir. 2002).

Stay Out of the Casino. Because an unapproved gaming management contract or collateral agreement is void and unenforceable, the key NIGC concept for a party contracting with an Indian tribe is this: keep your contract out of the tribe’s casino business. To avoid inadvertently creating a management contract, excise from your agreement any provisions purporting to affect the tribe’s gaming operations in any way. Take the additional precautions of expressly disclaiming any power or authority over tribal casino or gaming issues, and including a representation by the tribe that your agreement is not a management contract or a collateral agreement as defined in IGRA and the NIGC regulations.

JURISDICTIONAL CLAUSES. Contracts between Indian tribes and non-Indians routinely contain enforceable provisions whereby the parties submit themselves to the jurisdiction of particular tribunals for the resolution of disputes and enforcement of the contract. Accordingly, the following discussion ignores the jurisdictional issues presented by tort claims in which there is no consensual submission to the jurisdiction of any particular court.

Federal court jurisdiction. Even if an Indian tribe has waived its sovereign immunity and has agreed to submit to personal jurisdiction in a federal court, these agreements are not sufficient alone to create subject matter jurisdiction in a federal court, in the absence of a federal question or diversity of citizenship. See, e.g., Weeks Construction, Inc. v. Oglala Sioux Housing Authority, 797 F.2d 668 (8th Cir. 1986); Enterprise Electric Co. v. Blackfeet Tribe of Indians, 353 F. Supp. 991 (D. Mont. 1973). Furthermore, federal diversity jurisdiction may not be available against an Indian tribe, inasmuch as a tribe is neither a citizen of any state nor a foreign state, Standing Rock Sioux Indian Tribe v. Dorgan, 505 F.2d 1135 (8th Cir. 1974), in contrast to a corporation organized by an Indian tribe under IRA §17, R.C. Hedreen Co. v. Crow Tribal Housing Authority, 521 F. Supp. 599 (D. Mont. 1981); Parker Drilling Co. v. Metlakatla Indian Community, 451 F. Supp. 1127 (D. Alaska 1978).

State court jurisdiction. An Indian tribe’s waiver of sovereign immunity and its submission to personal jurisdiction in a state court of general jurisdiction would be sufficient to create subject matter jurisdiction in a P.L. 280 jurisdiction, notwithstanding the limitations on P.L. 280 created by the Supreme Court in Bryan v. Itasca County, 426 U.S. 373 (1976) (discussed above in Topic D). See Houghtaling v. Seminole Tribe of Florida, 611 So.2d 1235 (Fla. 1993) (holding that P.L. 280 did not waive tribal immunity from suit, and that Florida courts lack subject matter jurisdiction over the Seminole Tribe unless it has consented to suit). Even when there is an express waiver of sovereign immunity, however, the state court’s subject matter jurisdiction is limited to the scope of the waiver. Maryland Casualty Co. v. Citizens National Bank of West Hollywood, 361 F.2d 517 (5th Cir. 1966) (IRA §17 corporation’s waiver of sovereign immunity was limited to certain pledged collateral, so court had no jurisdiction for third party’s attempted garnishment of an unpledged corporate bank account).

Tribal court jurisdiction. The commercial sophistication of tribal courts varies widely, and some tribes have no court system at all. Often tribal courts may exercise personal jurisdiction over non-Indians or non-members only with their consent (a limitation derived from model tribal ordinances formerly promulgated by the Interior Department under the IRA), but in most commercial disputes, the contract contains some provision regarding consensual personal jurisdiction. Most tribal courts have subject matter jurisdiction over civil actions of all types. Generally speaking, however, non-Indians are apprehensive about resolving contractual disputes in tribal court; objective reasons for this apprehension may include the fact that most tribal court decisions are not reported (although selected tribal court decisions appear in the Indian Law Reporter), and the fact that tribal courts therefore do not have an extensive “common law” to guide decision-making, in comparison to state courts. Another reason for apprehension may be the lack of applicable substantive law, since many tribes have not adopted commercial laws of general application, such as the Uniform Commercial Code (as discussed in Topic D(3) above). If there is no tribal court with jurisdiction over the dispute, then resorting to state court does not infringe on tribal self-government, as discussed below. See Fisher v. District Court, 424 U.S. 382 (1976); Bad Horse v. Bad Horse, 517 P.2d 893 (Mont. 1974), cert. denied, 419 U.S. 847 (1974).

Infringement Issues. In the leading case of Williams v. Lee, 358 U.S. 217 (1959), the Supreme Court held that absent governing acts of Congress, action by an Arizona state court would not be permitted to infringe on “the right of reservation Indians to make their own laws and be ruled by them.” Id. at 220. This policy against infringement is an attribute of tribal sovereignty and is the basis for a split of authority regarding whether a state court may enforce a post-judgment remedy on an Indian reservation. For example, in Joe v. Marcum, 621 F.2d 358 (10th Cir. 1980), the Tenth Circuit held that a New Mexico state court could enter a judgment against an Indian on a debt incurred off the reservation, but had no jurisdiction to garnish wages he earned on the reservation, because applicable Navajo tribal law did not provide for a garnishment remedy. On the other hand, in Little Horn Bank v. Stops, 555 P.2d 211 (Mont. 1976), the Montana supreme court held that a county sheriff could enforce a state court’s writ of execution against property and wages on a reservation pursuant to a state court judgment rendered against an Indian on a debt incurred off the reservation, and that there was no infringement on tribal self-government because Crow tribal law did not provide any method for attaching property of a debtor to honor a state court judgment. In Annis v. Dewey County Bank, 335 F. Supp. 133 (D.S.D. 1971), a federal district court enjoined a county sheriff from attaching an Indian’s livestock located on a reservation to enforce a state court judgment rendered on a note and security agreement executed off the reservation, holding that South Dakota state officials had no jurisdiction to enforce the state court judgment on the reservation; the federal court then rendered judgment for the creditor on its pendant counterclaim for the secured debt and ordered federal marshals to seize and sell the collateral.

Exhaustion of Tribal Court Remedies. In addition to the infringement doctrine, a state or federal court, under the doctrines of comity and exhaustion of tribal remedies, may defer to tribal court jurisdiction or may require a plaintiff to exhaust its remedies in tribal court before bringing an action in the state or federal court. See, e.g., Iowa Mutual Insurance Co. v. LaPlante, 480 U.S. 9 (1987); National Farmers Union Insurance Cos. v. Crow Tribe, 471 U.S. 845 (1985). Non-Indian parties routinely request Indian tribes to waive the exhaustion doctrine, as noted below.

Waivers of tribal court jurisdiction. Sometimes non-Indian parties and their counsel attempt to avoid tribal court by including waivers in the contract documents executed by the Indian tribe. Such provisions may purport to (i) waive any right of the tribe to have any dispute, controversy, suit, action or proceeding arising under the contract heard in any tribal forum, (ii) waive any right of the tribe to the exercise of jurisdiction by any tribal forum over any such dispute, including any proceeding to determine the scope of its own jurisdiction, (iii) waive any requirement for exhaustion of any remedies available in any tribal forum regarding any such dispute, and (iv) obligate the tribe (in its governmental capacity) to prohibit any tribal forum from exercising jurisdiction over any such dispute. A key difficulty with this insulting strategy is that a state or federal court applying the Iowa Mutual and National Farmers Union exhaustion doctrines in such a dispute may permit that insulted tribal court to make the initial determination of the scope of its own jurisdiction, including the validity and enforceability of the tribal forum waiver provisions (such as the waiver described in (ii) above). See Ninigret Development Corp. v. Narragansett Indian Wetuomuck Housing Authority, 297 F.3d 21 (1st Cir. 2000) (tribal court gets first opportunity to construe forum selection clause in contract).

Arbitration clauses. One way to avoid insulting a prospective tribal forum is to include in the contract an arbitration provision for dispute resolution between the tribe and the non-Indian party. By agreeing to arbitration in a neutral private forum, each party avoids objecting to the other’s preferred judicial forum on the grounds of perceived favoritism or prejudice. Generally speaking, arbitration clauses are enforceable in contracts with Indian tribes, provided that the clause is coupled with a waiver of tribal sovereign immunity for the enforcement of the arbitration award in a court of competent jurisdiction.

SUMMARY. Here is a brief checklist of the contractual provisions discussed above that should be considered in a financing transaction involving an Indian tribe:

➢ Understand exactly who you are dealing with: a federally recognized Indian tribe? A tribal governmental authority or entity? A business entity owned or controlled by an Indian tribe?

➢ Review the governing documents of the tribe or the tribal authority or entity.

➢ Obtain official approval of the contract by the governing body of the tribe or tribal authority, as disclosed by that review.

➢ Obtain an express waiver of tribal immunity from suit, even if the tribe’s waiver limits recourse to particular assets.

➢ Submit to personal jurisdiction of specified courts.

➢ Obtain tribal waiver of exhaustion of tribal court remedies; consider other waivers relating to tribal court jurisdiction.

➢ Specify the substantive law that will govern the interpretation and enforcement of lease or contract; consider tribal adoption of particular contractual provisions or specific state laws as tribal laws.

➢ Consider private arbitration provisions; include express tribal consent to judicial enforcement of arbitration award.

➢ Specify particular remedies; beware of contractual rights of entry or other remedies on Indian lands that may be “encumbrances” violating Section 81.

➢ If the transaction involves a lease of Indian lands or a leasehold mortgage, determine federal limitations on leasing for that particular tribe; check for issuance of new business leasing regulations under 25 CFR Part 162(D).

➢ Avoid contractual provisions purporting to affect the conduct or management of tribal gaming activities, lest the contract be void as a gaming management contract or collateral agreement not approved by NIGC.

➢ Obtain any necessary federal approval of the contract (leases, leasehold mortgages, Section 81 encumbrances, gaming management contracts, or agreements collateral to management contracts).

FURTHER READING:

William C. Canby, Jr., Judge, Ninth Circuit, American Indian Law in a Nutshell (West 4th ed. 2004)

John S. Clifford, Application of Article 9 to Secured Transactions in Indian Country, 28 UCC Law J. 297 (1995).

Philip P. Frickey, Congressional Intent, Practical Reasoning, and the Dynamic Nature of Federal Indian Law, 78 Calif. L. Rev. 1137 (1990).

Carole E. Goldberg, Public Law 280: The Limits of State Jurisdiction over Reservation Indians, 22 UCLA L. Rev. 535 (1975).

Robert Laurence, The Enforcement of Judgments Across Indian Reservation Boundaries: Full Faith and Credit, Comity and the Indian Civil Rights Act, 69 Or. L. Rev. 589 (1990).

Neil J. Newton, Federal Power Over Indians: Its Sources, Scope, and Limitations, 132 U. Pa. L. Rev. 195 (1984).

Frank Pommersheim & Terry Pechota, Tribal Immunity, Tribal Courts, and the Federal System: Emerging Contours and Frontiers, 31 S. Dakota L. Rev. 553 (1986).

Frank R. Pommersheim, The Crucible of Sovereignty: Analyzing Issues of Tribal Jurisdiction, 31 Ariz. L. Rev. 329 (1989).

Laurie Reynolds, Adjudication in Indian Country: The Confusing Parameters of State, Federal, and Tribal Jurisdiction, 38 Wm. & Mary L. Rev. 539 (1997).

William V. Vetter, Doing Business with Indians and the Three “S”es: Secretarial Approval, Sovereign Immunity and Subject Matter Jurisdiction, 36 Ariz. L. Rev. 169 (1994).

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download