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From page 42... ... 42 NCHRP LRD 76 may be subject to a contract suit in tribal court, limiting its holding to the facts presented by this case.463 G Read the entire page →
From page 43... ... 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. Read the entire page →
From page 44... ... 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 Transportation Act (HMTA) Read the entire page →
From page 45... ... 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 Section 17 corporations may provide for limited waiver language in their charters.504 Reviewing the charter and bylaws for federally 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. Read the entire page →
From page 46... ... 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 outside their reservations, they are subject to jurisdiction of the courts otherwise capable of exercising jurisdiction over such disputes, provided 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. Read the entire page →

From page 42...

... 42 NCHRP LRD 76 may be subject to a contract suit in tribal court, limiting its holding to the facts presented by this case.463 G

Read the entire page →

From page 43...

... 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.

Read the entire page →

From page 44...

... 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 Transportation Act (HMTA)

Read the entire page →

From page 45...

... 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 Section 17 corporations may provide for limited waiver language in their charters.504 Reviewing the charter and bylaws for federally 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.

Read the entire page →

From page 46...

... 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 outside their reservations, they are subject to jurisdiction of the courts otherwise capable of exercising jurisdiction over such disputes, provided 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.

Read the entire page →

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