National Academies Press: OpenBook

Update of Selected Studies in Transportation Law, Volume 8, Section 3: Indian Transportation Law (2019)

Chapter: G. CONTRACTING WITH INDIAN TRIBES AND TRIBAL ENTITIES

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Suggested Citation:"G. CONTRACTING WITH INDIAN TRIBES AND TRIBAL ENTITIES." National Academies of Sciences, Engineering, and Medicine. 2019. Update of Selected Studies in Transportation Law, Volume 8, Section 3: Indian Transportation Law. Washington, DC: The National Academies Press. doi: 10.17226/25514.
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Suggested Citation:"G. CONTRACTING WITH INDIAN TRIBES AND TRIBAL ENTITIES." National Academies of Sciences, Engineering, and Medicine. 2019. Update of Selected Studies in Transportation Law, Volume 8, Section 3: Indian Transportation Law. Washington, DC: The National Academies Press. doi: 10.17226/25514.
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Suggested Citation:"G. CONTRACTING WITH INDIAN TRIBES AND TRIBAL ENTITIES." National Academies of Sciences, Engineering, and Medicine. 2019. Update of Selected Studies in Transportation Law, Volume 8, Section 3: Indian Transportation Law. Washington, DC: The National Academies Press. doi: 10.17226/25514.
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Suggested Citation:"G. CONTRACTING WITH INDIAN TRIBES AND TRIBAL ENTITIES." National Academies of Sciences, Engineering, and Medicine. 2019. Update of Selected Studies in Transportation Law, Volume 8, Section 3: Indian Transportation Law. Washington, DC: The National Academies Press. doi: 10.17226/25514.
×
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Suggested Citation:"G. CONTRACTING WITH INDIAN TRIBES AND TRIBAL ENTITIES." National Academies of Sciences, Engineering, and Medicine. 2019. Update of Selected Studies in Transportation Law, Volume 8, Section 3: Indian Transportation Law. Washington, DC: The National Academies Press. doi: 10.17226/25514.
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42 NCHRP LRD 76 may be subject to a contract suit in tribal court, limiting its hold- ing to the facts presented by this case.463 G. CONTRACTING WITH INDIAN TRIBES AND TRIBAL ENTITIES464 1. Introduction Indian tribes, as sovereign governments, operate on a gov- ernment-to-government basis with federal, state, and local gov- ernments. Tribal governments also engage in commercial activ- ities, which may include business-related contracts with federal, state, and local governments or private industry in connection with transportation projects and activities. Tribal business con- tracts with non-Indians raise three major issues: 1. Sovereign immunity; 2. What law(s) may govern a transaction between an Indian tribe and a non-Indian; and 3. How will any disputes be resolved: federal, state, or tribal courts?465 The sections below will begin with an overview of initial con- siderations to keep in mind when contracting with tribes and tribal entities followed by a discussion of each of the three major issues listed above. The final section on contracting covers re- quirements for transactions involving Indian lands. 2. Initial Considerations: What Type of Entity Is Entering the Contract and Who Has Authority to Bind That Entity? Practitioners wishing to contract with tribes or tribal enti- ties should first determine whether the contract will be with the tribe itself (including an instrumentality or agency of the tribe or a political subdivision), or with a tribally owned business.466 463 Id. at 1140 n.8. 464 See generally, Amelia A. Fogleman, Notes: Sovereign Immunity of Indian Tribes: A Proposal for Statutory Waiver for Tribal Business, 79 Va. L. Rev. 1345 (1993); Michael O’Connell, Indian Law Theme Issue: Business Transactions with Tribal Governments in Arizona, 34 Ariz. Attorney 27 (1998) (here- inafter O’Connell); John F. Petoskey, Northern Michigan: Doing Business with Michigan Indian Tribes, 76 Mich. B. J. 440 (1997) (hereinafter Petoskey); Mark A. Jarboe, Fundamental Legal Principles Affecting Business Transactions in Indian Country, 17 Hamline L. Rev. 417 (1994); 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) (hereinafter Vetter). 465 Petoskey, supra note 464, at 440. 466 Id. For example, he notes that: Michigan tribes have varying degrees of separation of power within their tribal constitutions. Some tribal constitutions concentrate tribal power in the tribal chair, while others cre- ate a representative form of government, and still others have a “general council” where all eligible tribal citizens can over- turn a decision of the “executive council.” Most Michigan tribal councils act in both legislative and executive capacities. Id. Section 18, of the Montana Constitution waived Montana’s immunity from suit in the tribal courts.455 Montana filed suit in U.S. District Court challenging tribal court jurisdiction and seeking an injunction against further proceedings. The district court granted summary judgment and injunctive relief to Montana, denying Gilham’s cross-motion for sum- mary judgment. The court held that Article II, Section 18, of the Montana Constitution did not waive immunity for suit in tribal court since it only waived Montana’s immunity in state courts.456 The Ninth Circuit decision initially noted that “any limitation on tribal court authority to entertain a suit against a State must arise from a source other than direct application of the Eleventh Amendment or congressional act.” 457 The court then concluded “that the States have retained their historic sovereign immunity from suits by individuals and that nothing in the inherent re- tained powers of tribes abrogates that immunity.”458 The court distinguished the decision in Nevada v. Hall459 (holding that sov- ereign immunity did not prevent California residents injured in an automobile accident with an employee of the University of Nevada from suing the State of Nevada in California state courts) on the basis that Gilham’s suit directly implicated the exercise of Montana’s sovereign functions, a factor not involved in Nevada v. Hall, which was simply a respondeat superior case.460 The court then turned to the issue of whether Montana had waived immunity in tribal court. The court reviewed the rationale of several decisions which found that a state’s waiver of immunity in its own courts did not constitute a waiver of its Eleventh Amendment immunity from suit in federal courts. The court then held, “[f]or similar reasons, Montana has not waived its immunity from suit in tribal court…. [I]ndeed, given the standard to find a waiver, the only reasonable construction of the language of Article II, § 18 is that Montana has consented to suit only in its own state courts. See, e.g. Holladay v. Montana, 506 F. Supp. 1317, 1321….”461 The court went on to note that “under the circumstances presented in this case, where the tribal courts lack jurisdiction because of Montana’s sovereign immunity, state court jurisdic- tion would be proper.”462 The court declined to address whether agents of a state may be sued in tribal court or whether states 455 Id. at 1135. Mont. Const. art II, § 18 provides: “State subject to suit. The state, counties, cities, towns, and all other local govern- mental entities shall have no immunity from suit for injury to a per- son or property, except as may be specifically provided by law by a 2/3 vote of each house of the legislature.” 456 Id. 457 Id. at 1136. 458 Id. at 1137. 459 440 U.S. 410, 411–12, 99 S. Ct. 1182, 1183, 59 L. Ed. 2d 416, 419-20 (1979). 460 Gilham, 133 F.3d at 1137–38. 461 Id. at 1139. 462 Id. at n.6.

NCHRP LRD 76 43 it was “a subordinate economic organization” and therefore entitled to immunity to the same extent as the tribe.472 3. Tribal Sovereign Immunity473 a. Sovereign Immunity of Tribes, Tribal Officials, and Employees Like state governments, Indian tribes are generally im- mune from suit.474 In Kiowa Tribe of Oklahoma v. Manufac- turing Technologies, Inc.,475 the Supreme Court reaffirmed the doctrine of tribal immunity in a suit for breach of contract involving off-reservation commercial conduct of a tribal en- tity. The Court noted: As a matter of federal law, an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immu- nity…. [O]ur cases have sustained tribal immunity from suit without drawing a distinction based on where the tribal activities occurred… [n]or have we yet drawn a distinction between governmental and commercial activities of a tribe [citations omitted].”476 The Court went on to express doubt as to “the wisdom of perpetuating the doctrine,” noting that “tribal immunity extends beyond what is needed to safeguard tribal self-governance” but the Court declined to revisit the case law, instead deferring to Congress.477 However, when the Supreme Court revisited tribal 472 Id. at 6–7, 480 P.2d at 657. Cf. Dixon v. Picopa Constr. Co., 160 Ariz. 251, 772 P.2d 1104 (1989), a suit in tort, where the Arizona Supreme Court found that Picopa, a corporation formed under the laws of the Salt River Pima-Maricopa Indian Community, was not a subor- dinate economic organization within the meaning of White Mountain Apache, but “has a board of directors, separate from the tribal govern- ment, which exercises full managerial control over the corporation… [and] unlike FATCO, …the tribal government does not manage the corporation.” Id. at 256, 772 P. 2d at 1109. 473 See generally, David E. Wilkins & K. Tsianina Lomawaima, Uneven Ground: American Indian Sovereignty And Federal Law 217–48 (2001); Canby, supra note 5, at 99-114; Catherine T. Struve, Tribal Immunity and Tribal Courts, 36 Ariz. St. L. J. 137 (2004); Gabriel S. Galanda, Arizona Indian Law: What You Should Know, 39 Ariz. Attorney 24 (2003); Dao Lee Bernardi- Boyle, State Corporations for Indian Reservations, 26 Am. Indian L. Rev. 41 (2001–2002); Michael P. O’Connell, 2000 Native Amer- ican Law Symposium: Citizen Suits Against Tribal Governments and Tribal Officials Under Federal Environmental Laws, 36 Tulsa L. J. 335 (2000); John F. Petoskey, Northern Michigan: Doing Busi- ness with Michigan Indian Tribes, 76 Mich. Bar Jour. 440, 441– 42 (1997); Vetter, supra note 464.; Amelia A. Fogleman, Sovereign Immunity of Indian Tribes: A Proposal for Statutory Waiver for Tribal Businesses, 79 Va. L. Rev. 1345 (1993). 474 Okla. Tax Commission v. Citizen Band, Potawatomi Indian Tribe of Okla., 498 U.S. 505, 509, 111 S. Ct. 905, 909, 112 L. Ed. 2d 112, 119-20 (1991); Turner v. United States, 248 U.S. 354, 358, 39 S. Ct. 109, 110, 63 L. Ed. 291, 294 (1919); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S. Ct. 1670, 1677. 56 L. Ed. 2d 981 (1978). 475 523 U.S. 751, 118 S. Ct. 1700, 140 L. Ed. 2d 981 (1998). 476 Id. at 754–55, 118 S. Ct at 1702, 140 L. Ed. 2d at 985. 477 Id. at 758, 118 S. Ct. at 1704, 140 L. Ed. 2d at 987. In Thomas v. Choctaw Services Enterprise, 313 F.3d 910 (5th Cir. 2002), the court of appeals held that a tribally owned enterprise was not sub- ject to liability under Title VII, the same as tribes. A tribally owned business can be structured in three ways: (1) through a federal charter under Section 17 of the IRA, (2) as a tribally chartered corporation organized under the tribe’s laws, or (3) or as a state-chartered corporation organized under a state’s laws. While tribal governments are free to establish busi- ness corporations under state corporate laws, as Petoskey points out, “because of the implied waiver of sovereign immunity and the potential lack of immunity from federal and state taxation that would result, most tribes do not use state law to create these entities, and generally use tribal or federal law, 25 U.S.C 477 [now at 25 U.S.C. § 5124], to create a federal corporation….”467 Conversely, federally chartered and tribally chartered corpora- tions “are generally immune if their charters or by-laws do not waive immunity.”468 For tribally chartered businesses the tribe’s applicable law on waiver needs to be considered and for state charted businesses applicable state law on waiver needs to be considered. Practitioners should also ensure that any individuals negoti- ating or signing contracts have the authority to bind the govern- ment or entity the individual is negotiating or signing for. Bear in mind that: tribal constitutions and other tribal laws, ordinances and resolutions usually establish the authority and limitations within which tribal governments and tribal representatives must act as a matter of tribal law, [and that] [a]bsent a valid delegation of authority under tribal law, tribal government representatives generally lack inherent author- ity to enter binding agreements on behalf of a Tribe, to waive tribal sovereign immunity, or to agree to arbitration or other dispute resolu- tion procedures.469 The need to examine the tribe’s constitution, laws, ordi- nances, and resolutions is demonstrated in White Mountain Apache Indian Tribe v. Shelley.470 The case involved an alleged breach of a road construction contract. In it, the Arizona Su- preme Court addressed the question of whether defendant Fort Apache Timber Company (FATCO) was a legal entity separate and apart from the White Mountain Apache Tribe, or part of the tribe and therefore entitled to the tribe’s immu- nity. The court examined the tribe’s constitution and deter- mined that it gave the tribe “the authority to create subordi- nate organizations for economic purposes.”471 The court then examined the “Plan of Operation” of FATCO and found that 467 Petoskey, supra note 464, at 441. 468 Id. at 442. 469 Michael P. O’Connell, 2000 Native American Law Sympo- sium: Citizen Suits Against Tribal Governments and Tribal Offi- cials Under Federal Environmental Laws, 36 Tulsa L. J. 335 (2000) at 27. 470 107 Ariz. 4, 480 P.2d 654 (1971). 471 Id. at 6, 480 P.2d at 656.

44 NCHRP LRD 76 not.485 A congressional waiver of tribal sovereign immunity “cannot be implied but must be unequivocally expressed.”486 Federal court decisions instruct that “courts should ‘tread lightly in the absence of clear indications of legislative intent’ when determining whether a particular federal statute waives tribal sovereign immunity.”487 By way of example, in Public Service Company of Colorado v. Shoshone–Banock Tribes,488 the Ninth Circuit found that the Hazardous Materials Trans- portation Act (HMTA),489 by its terms, “clearly contemplates that Indian tribes may be sued in court if they enact regula- tions that are alleged to be preempted by the HMTA…[and] therefore necessarily abrogates the tribes’ immunity from suit.”490 The Eighth Circuit has held that tribes are subject to suit in federal court under the citizen suit provisions of the Resource Conservation and Recovery Act (RCRA).491 In ad- dition, the Tenth Circuit has held that suits are authorized against tribes under the whistleblower provisions of the Safe Drinking Water Act.492 Conversely, the Eleventh Circuit has held “Congress did not unequivocally express an intent to abrogate tribal immunity from private suit under Title III of the ADA [Americans with Disabilities Act].”493 Tribal sovereign immunity may also be waived by the tribe.494 The Supreme Court’s decision in C & L Enterprises, Inc. v. Citizen Band Potawatomi Indian Tribe495 addressed the question of whether the tribe had waived its immu- nity from suit in state court when it expressly agreed to arbitrate disputes with C & L in accordance with a standard 485 Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, P.C, 476 U.S. 877, 106 S. Ct. 2305, 90L. Ed. 2d 881 (1986); Kiowa Tribe of Oklahoma v. Manufacturing Tech- nologies, Inc., 523 U.S. 751, 756, 118 S. Ct. 1700, 1703-04, 140 L. Ed. 2d 981, 986 (1998). 486 Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S. CT. 1670, 1677, 56 L. Ed. 2d 106, 115 (1978). 487 Pub. Serv. Co. of Colo. v. Shoshone-Bannock Tribes, 30 F.3d 1203, 1206 (9th Cir. filed July 27, 1994), quoting N. States Power Co. v. Prairie Island Mdewakanton Sioux Indian Cmty., 991 F.2d 458, 462 (8th Cir. 1993). 488 30 F.3d 1203 (9th Cir. 1994). 489 Pub. L. No. 93-933, 88 Stat. 2157 (1975) (codified at 49 U.S.C. §§ 5101-5127) (formerly 49 U.S.C. 1801, et. seq.) 490 Shoshone-Bannock Tribes, 30 F.3d at 1206-07. 491 Blue Legs v. U.S. Bureau of Indian Affairs, 867 F.2d 1094 (8th Cir. 1989). 492 Osage Tribal Council v. U.S. Dep’t of Labor, 187 F.3d 1174, 1181 (10th Cir. 1999). 493 Fla. Paraplegic Ass’n v. Miccosukee Tribe of Fla., 166 F.3d 1126, 1135 (11th Cir. 1999). (The Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 327, is codified at 42 USC §§12101-12213). 494 Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751, 754, 118 S. Ct. 1700, 1702, 140 L. Ed. 2d 981, 985 (1991). 495 532 U.S. 411, 121 S. Ct. 1589, 149 L. Ed. 2d 623 (2001). sovereign immunity in 2014 in Michigan v. Bay Mills Indian Community,478 it reaffirmed the doctrine of tribal sovereign im- munity holding that it extends to commercial activities off of Indian lands and can only be waived by the tribe or Congress. Tribal immunity extends to individual tribal officials act- ing in their representative capacity and within the scope of their authority.479 It does not extend to tribal officials acting outside the scope of the sovereign’s authority.480 Tribal sov- ereign immunity does not bar a suit for prospective relief against tribal officers allegedly acting in violation of federal law.481 The Ninth Circuit has held that “Tribal officials are not immune from suit to test the constitutionality of the taxes they seek to collect.”482 In addition, tribal officers may be sued if the suit is not related to official duties.483 The Supreme Court recently addressed tribal sovereign im- munity in Lewis v. Clarke.484 Lewis arose out of a car accident on an interstate involving a tribal gaming employee who was trans- porting people from the casino back to their homes. The tribal gaming employee was sued in state court in his individual ca- pacity. The tribal gaming authority employee argued that he was immune from suit because the gaming authority was an arm of the tribe and he was acting in the scope of employment at the time of the accident. Alternatively, the employee argued that he was entitled to immunity because tribal law required the gam- ing authority to indemnify him. The Supreme Court held that the employee, not the tribe, was the real party in interest in the suit and that sovereign immunity was therefore not implicated. It also held that an indemnification provision—as a matter of law—cannot extend sovereign immunity to individual employ- ees who are not otherwise entitled to sovereign immunity. The Supreme Court did not consider whether the employee was entitled to the personal immunity defense of official immunity because the argument was raised for the first time on appeal. b. Waiver of Tribal Sovereign Immunity Tribal sovereign immunity may be waived by an act of Con- gress, by the tribe, or by a tribal corporation. Tribal immunity is subject to the superior and plenary control of Congress; Con- gress may waive tribal sovereign immunity, but states may 478 134 S. Ct. 2024, 188 L. Ed. 2d 1071 (2014). 479 United States v. Oregon, 657 F.2d 1009, 1012 n.8 (9th Cir. 1981); Hardin v. White Mountain Apache Tribe, 779 F.2d 476, 479– 80 (9th Cir. 1985). 480 Tenneco Oil Co. v. The Sac and Fox Tribe of Indians, 725 F.2d 572, 574–75 (10th Cir. 1984). 481 Ariz. Pub. Serv. Co. v. Aspaas, 77 F.3d 1128, 1134 (9th Cir. filed Nov. 7, 1995). 482 Big Horn County Elec. Coop. v. Adams, 219 F.3d 944, 954 (9th Cir. 2000), quoting Burlington N. R.R. Co. v. Blackfeet Tribe Burlington, 924 F. 2d 899, 901 (Filed Jan. 22, 1991). 483 Puyallup Tribe, Inc. v. Dep’t of Game, 433 U.S. 165, 171– 73, 97 S, Ct, 2616, 2620-21, 53 L. Ed. 2d 667, 673-74 (1977). 484 581 U.S. , 137 S. Ct. 1285, 197 L. Ed. 2d 631 (2017).

NCHRP LRD 76 45 sovereign immunity by doing so.501 The initial model provided by the Interior Department for incorporating under Section 17 included a “sue and be sued” clause.502 However, a majority of courts have held that such a clause standing alone does not constitute a waiver of immunity.503 Because of this, modern Sec- tion 17 corporations may provide for limited waiver language in their charters.504 Reviewing the charter and bylaws for fed- erally chartered corporations is important to determining the extent of any waiver. Likewise, for tribally chartered businesses, the charter and bylaws as well as the tribe’s applicable law on waiver needs to be considered, and for state charted businesses the charter and bylaws and applicable state law on waiver needs to be considered. 4. Dealing with Jurisdictional Issues: Choice of Law and Forum Selection Clauses Because of the jurisdictional complexities that can arise, it is advisable to include a choice of law and forum selection clause when contracting with tribes and tribal entities. Courts have generally enforced express provisions like this.505 Take for example, the Supreme Court decision in C & L. Enters., Inc. v. Citizen Band Potawatomi Indian Tribe,506 in which the Court found that the tribe waived its immunity from suit in state court when it expressly agreed (1) to arbitrate contrac- tual disputes,507 (2) to be governed by Oklahoma law,508 and (3) to contract enforcement of any arbitration awards in any court having jurisdiction thereof.509 Vetter recommends that a written contract should at least include, in addition to an express waiver of immunity, the following: 501 Id. at 1099. See Parker Drilling Co. v. Metlakatla Indian Com- munity, 451 F. Supp. 1127, 1136 (D. Alaska 1978); see also Ransom v. St. Regis Mohawk Educ. U. Cmty. Fund, 86 N.Y.2d 553, 563, 658 N.E.2d 989, 994–95, 635 N.Y.S.2d 116, 121-22 (N.Y. 1995). Canby, supra note 5, at 110-12. 502 See Vetter, supra note 464, at 179-80, where he quotes this Department of Interior model provision as follows: [The corporation has the power] [t]o sue and to be sued in courts of competent jurisdiction within the United States; but the grant or exercise of such power to sue and be sued shall not be deemed a consent by the said Tribe [I.R.A. § 16 gov- ernment?], or by the United States to the levy of any judg- ment, lien or attachment upon the property of the Tribe other than income or chattels specially pledged or assigned. 503 Canby, supra note 5, at 111. See, e.g., Garcia v. Akwesasne Housing Auth., 268 F.3d 76, 86–87 (2d Cir. 2001); Ninigret Dev. Corp. v. Narragansett Indian Wetuomuck Housing Auth., 207 F.3d 21, 29–30 & 29 n.5 (1st Cir. 2000); Dillon v. Yankton Sioux Tribe Housing Auth., 144 F.3d 581 (8th Cir., filed May 20, 1998). 504 O’Connell, supra note 464, at 28, n.17. 505 Vetter, supra note 464, at 194. 506 532 U.S. 411 121 S. Ct. 1589, 149 L. Ed 2d 623 (2001). 507 Id. at 414, 121 S. Ct. at 1592, 149 L. Ed 2d at 628. 508 Id. at 415, 121 S. Ct. at 1593, 149 L. Ed 2d at 629. 509 Id. at 422, 121 S. Ct. at 1596, 149 L. Ed 2d at 634. contractual arbitration clause.496 The Court, while not- ing that “to relinquish its immunity, a tribe’s waiver must be ‘clear[,]’…”497 was “satisfied that the Tribe in this case has waived, with the requisite clarity, immunity from the suit C & L brought to enforce its arbitration award.”498 The Court rejected the tribe’s insistence that express words of waiver were required, citing with approval Sokaogon Gam- ing Enterprise Corp. v. Tushie-Montgomery Associates, Inc.499 in which the Seventh Circuit held that a clause re- quiring arbitration of contractual disputes and authorizing entry of judgment upon arbitral award “in any court hav- ing jurisdiction thereof” expressly waived the tribe’s immu- nity. Likewise, tribal corporations may waive immunity. As dis- cussed above, a tribally owned business may incorporate under tribal law, state law, or under Section 17 of the IRA (federally chartered). The power to incorporate under Section 17 was provided in part to enable tribes to waive sovereign immunity, thereby facilitating business transactions and fostering tribal economic development and independence;500 however, a tribe that elects to incorporate does not automatically waive its tribal 496 See id. at 414–15, 121 S. Ct. at 1592, 149 L. Ed. 2d at 629. The Tribe entered into a contract with C & L for installation of a roof on a building owned by the Tribe. The building was not on the Tribe’s reservation or on land held by the federal government in trust for the Tribe. The contract was a standard form agreement copyrighted by the American Institute of Architects, proposed by the Tribe and its architect. The arbitration clause in question provided: All claims or disputes between the Contractor and the Owner arising out of or relating to the Contract, or the breach thereof, shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association currently in effect unless the parties mutually agree otherwise…. The award rendered by the arbi- trator or arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof. The American Arbitration Association Rules provide that “Par- ties to these rules shall be deemed to have consented that judgment upon the arbitration award may be entered in any federal or state court having jurisdiction thereof.” The contract included a choice- of-law clause, providing; “The contract shall be governed by the law of the place where the Project is located.” Oklahoma has adopted a Uniform Arbitration Act, which instructs that “the making of an agreement…providing for arbitration in this state confers jurisdic- tion on the court to enforce the agreement under this act and to enter judgment on an award thereunder.” Okla. Stat. tit. 15, § 802B. The Act defines “court” as “any court of competent jurisdiction in this state.” Id. at 415, 121 S. Ct. at 1592-93, 149 L. Ed. 2d at 629. 497 Id. at 418, 121 S. Ct. at 1595, 149 L. Ed. 2d at 632, citing Okla. Tax Comm’n v. Citizen Band Potawatomi Tribe of Okla., 498 U.S. 505, 509, 111 S. Ct. 905, 909, 112 L. Ed. 1112, 1119 (1991). 498 Id. at 418, 121 S. Ct. at 1594, 149 L. Ed. 2d at 631. 499 86 F.3d 656, 660 (7th Cir. 1996). 500 American Vantage Companies, Inc. v. Table Mountain Rancheria, 292 F.3d 1091, 1098 (2002).

46 NCHRP LRD 76 writing in the American Indian Law Journal,516 provides this summary: Where a tribe brings an action in state court over an on-reservation or off-reservation matter, the state court would have jurisdiction, other requirements of jurisdiction being met.517 Where a tribe agrees in advance and in writing to state court jurisdiction in respect to an on-reservation matter, there are strong arguments that the tribe’s agreement should be binding on it as a matter of freedom of contract, as long as other requirements sufficient for the exercise of state court jurisdiction are met and there is no question as to the validity of the agreement so providing.518 When tribes engage in transactions out- side their reservations, they are subject to jurisdiction of the courts otherwise capable of exercising jurisdiction over such disputes, pro- vided the tribe has waived its sovereign immunity.519 5. Transactions that Relate to Indian Lands520 Federal law contains additional requirements for certain agreements that encumber Indian lands. 25 U.S.C. § 81 (a)- (d) provides: (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 5304(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 In- dian 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 Inte- rior or a designee of the Secretary. (c) Exception Subsection (b) 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 ap- prove an agreement or contract that is covered under subsection (b) if the Secretary (or a designee of the Secretary) determines that the agreement or contract- 516 O’Connell, Michael P. Fundamentals of Contracting by and with Indian Tribes, American Indian Law Journal: Vol. 3: Iss. 1, Article 4. (2014), https://digitalcommons.law.seattleu.edu/ailj/vol3/ iss1/4 (accessed June 16, 2018). 517 Id. at 193 n.185, citing Three Affiliated Tribes v. Wold Engineer- ing, P.C., 476 U.S. 877 (1986). See also Navajo Nation v. MacDonald, 485 P.2d 1104 (Ariz. App. 1994). 518 Id. at 193 n. 186, citing Outsource Services Management LLC v. Nooksack Business Corporation, 333 P.3d 380 (Wash. 2014). 519 Id. at 193 n.187, citing C & L Enterprises, Inc. v. Citizen Band of Potawatomi Indian Tribe of Oklahoma, 532 U.S. 411 (2001). 520 Note also that Public Law 280 does not provide Public Law 280 states with jurisdiction to adjudicate “ownership or right of possession” of trust or restricted lands. 28 U.S.C. § 1360(b). 1. Consent to the jurisdiction of specific courts or jurisdic- tions (e.g. “North Dakota state courts” or “federal court system”); 2. Agreement that the law of a specific state will be applied in interpretation and enforcement; and 3. Express consent to judicial enforcement of any arbitration award, if the agreement includes an arbitration clause.510 When writing a choice of law and forum selection clause, bear in mind that the court will need jurisdiction to hear the contract dispute. Federal courts have a limited role in civil disputes arising in Indian country. The two applicable bases for jurisdiction are federal question and diversity of citizen- ship. Claims arising under federal law may be brought under such statutes as 28 U.S.C. § 1331 or § 1343, provided all other requirements are met. Indian tribes are allowed by 28 U.S.C. § 1362 to bring suits in federal courts, but the claim must still be based on federal law.511 For purposes of diversity jurisdic- tion, Indian tribes are not citizens of any state.512 The United States Ninth Circuit Court noted in American Vantage Com- panies v. Table Mountain Rancheria513 that “[m]ost courts to have considered the question—including the First, Second, Eighth and Tenth Circuits—agree that unincorporated In- dian tribes cannot sue or be sued in diversity because they are not citizens of any state (citations omitted).” However, individual Indians, tribal entities, and tribally incorporated corporations are citizens of the state where the reservation is located for diversity purposes.514 Vetter points out that even when diversity or federal question is established, a federal forum is not assured: Even with personal and subject matter jurisdiction, a federal court may stay proceedings, or dismiss the case pending exhaustion of tribal remedies, as a matter of comity. If there is a tribal court that has, or may have, jurisdiction, the federal policy supporting tribal self- government supports deferring to tribal court, particularly on issues of tribal court jurisdiction. That rule was first enunciated in National Farmers Union Insurance Companies v. Crow Tribe, concerning fed- eral question jurisdiction, and was extended to diversity cases in Iowa Mutual Insurance Co. v. LaPlante. (citations omitted).515 Since federal jurisdiction is limited, that leaves state and trib- al court as the only available forum for many contract related disputes. As section C of this document discusses, the frame- work for determining both the regulatory and adjudicatory au- thority of tribes and states in Indian country is complex. Media- tion or arbitration clauses and choice of law and forum selection clauses seek to mitigate this complexity. Michael P. O’Connell, 510 Vetter, supra note 464, at 194. 511 Canby, supra note 5, at 247-48. 512 Standing Rock Sioux v. Dorgan, 505 F.2d 1135 (8th Cir. 1974). 513 292 F.3d 1091, 1095 (9th Cir. filed June14, 2002). 514 Vetter, supra note 464, at 190, citing Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 107 S. Ct. 971, 942 L. Ed. 2d. 10 (1987); Weeks Constr. v. Oglala Sioux Housing Auth., 797 F.2d 668 (8th Cir. 1986); Enter. Elec. Co. v. Blackfeet Tribe, 353 F. Supp. 991 (D. Mont. 1973). 515 Id.

Next: H. ACQUISITION OF INDIAN LAND FOR PUBLIC TRANSPORTATION PURPOSES »
Update of Selected Studies in Transportation Law, Volume 8, Section 3: Indian Transportation Law Get This Book
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TRB’s National Cooperative Highway Research Program (NCHRP) Legal Research Digest (LRD) 76 examines the intersection of transportation law and Indian law as it relates to federal, state, and local transportation agencies.

The LRD provides background information on Indians, tribes, and the history of the federal government’s Indian policy and Indian law and explores jurisdiction in Indian country beginning with three basic concepts (inherent tribal sovereignty, Indians and tribal membership, and Indian country).

The LRD examines basic terms for land ownership on reservations and in Indian country more generally; provides an overview of criminal jurisdiction in Indian country; explores the law related to reservation boundary disputes; the fee-to-trust process and reservation proclamations; state sovereign immunity in suits involving Indian tribes; contracting with Indian tribes and tribal entities; acquisitions of Indian lands for public transportation purposes; and federal highway and transit programs involving Indian tribes.

In addition, the LRD explores planning and project development activities, construction activities, and operation and maintenance of highways in Indian country followed by a final section on government-to-government cooperation between states and Indian tribes.

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