CHAPTER 10 DISPUTE RESOLUTION, ENFORCEMENT, AND JURISDICTION
| Jurisdiction | United States |
(Nov 2014)
DISPUTE RESOLUTION, ENFORCEMENT, AND JURISDICTION
Partner
Greenberg Traurig LLP
Denver, Colorado
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JENNIFER H. WEDDLE is the Co-Chair of Greenberg Traurig's American Indian Law Practice and resident in the Denver, Colorado office. She has wide-ranging experience in Indian law, handling a variety of matters for tribal and non-tribal clients. She has a dynamic, interdisciplinary practice that centers on providing solutions for complex inter-jurisdictional problems. Much of her practice focuses in the areas of tribal jurisdiction, tribal economic development, and natural resources development on tribal lands. Jennifer also has U.S. Supreme Court experience, serving as one of the attorneys for the respondent in the important Indian Law case of Nevada v. Hicks (2001) and representing the petitioners in Ute Mountain Ute Tribe v. Padilla (2012) and Grand Canyon Skywalk Development, LLC v. Grand Canyon Resort Corporation (2013). Jennifer's work has included negotiations for mineral leasing on tribal lands, tribal employment matters, and representation of tribes before federal agencies. She has also been involved in civil litigation, working on numerous complex federal, state and tribal litigation matters, including class action tort litigation and large commercial disputes. Jennifer has broad trial and appellate litigation experience (more than 40 trials), and frequently litigates tribal jurisdictional issues. She is past Chair of the Federal Bar Association Indian Law Section and past President of the Colorado Indian Bar Association. She presently serves on the boards of directors for both the National Native American Bar Association Foundation and Colorado Open Lands. She is a graduate of the Harvard Law School and the University of Michigan.
Jennifer Weddle, Greenberg Traurig, LLP
"Energy and Mineral Development in Indian Country," Rocky Mountain Mineral Law Foundation Special Institute, Tucson, Arizona, November 7, 2014
When an energy company does business with an Indian tribe, it is not just doing business in a separate sovereign nation but with a separate sovereign nation, and thus many of the issues that apply in international transactions with sovereign states, such as sovereign immunity, the use of courts of that nation to resolve disputes, and the applicability of the laws of that nation, apply when dealing with Indian tribes. The following are the basics: Indian tribes are separate sovereign powers; the laws of the 50 states do not reach them, and the federal government, in its role as trustee for Indian people, imposes various approval requirements on business transactions in "Indian country"1 without which approvals even the most carefully drafted documents can be rendered void ab initio and the non-Indian contracting party forever barred from any recourse or recovery.
Indian tribes are independent, sovereign governments with many, but not all, of the powers normally associated with states, cities and even foreign governments. Tribes have the power to make their own laws and regulate their lands.2 Indian tribes cannot be sued unless they waive their sovereign immunity and give up the protection from lawsuits that governments normally enjoy. Indian tribes can also bar people from their lands. Indian tribes do not pay taxes to the federal or state governments. Tribes are not subject to state or local laws, such as zoning or building codes, unless Congress specifically provides that they be so subject. Long-standing
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canons of construction can require that ambiguities in contracts be interpreted in favor of Indian tribes.
Therefore, whenever a company does business with an Indian tribe, the company should be aware of the potential Indian law3 components to transactions with the tribe. Basic Indian law concerns presented in typical development contracts are summarized below.4 These topics include: (I) Understanding When The Company Is Doing Business with a Tribe; (II) Basic Contracting Issues; (III) Sovereign Immunity; (IV) Tribal Court Procedures; (V) Jurisdiction, Applicable Law and Dispute Resolution; (VI) Section 17 Corporations and Tribal Business Entities; and (VII) Authority and Signatories.
I. Understanding When a Company Is Doing Business with a Tribe
What is an Indian tribe? It is a government - "a group of Indians that is recognized as constituting a distinct and historically continuous political entity for at least some governmental purposes."5 The term "recognized," however, has a distinct and political meaning. It means that the United States government, by an official action, has recognized that particular tribe as a tribe, in essentially the same manner as it recognizes various nations as members of the world community.
Only tribes that are federally-recognized have the benefits and powers of an Indian tribe. The United States Bureau of Indian Affairs periodically publishes a list of the federally-
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recognized tribes in the Federal Register.6 There is a separate but largely similar list kept by the IRS for purposes of affirming the tax-free status of Indian tribes, and their ability as governments to issue tax-free debt. In contracting with an Indian tribe, therefore, it is crucial to verify that the tribe one is negotiating with is federally recognized and, at least in the caption of the agreement, refer to it by the name appearing on the Federal Register list. See, e.g., 79 Fed. Reg. 4748 (Jan. 29, 2014).
II. Basic Contracting Issues
A tribe that wants to do business with an energy company is likely to agree to the protections discussed below, but may demand certain modifications or restrictions. For example, although a tribe may agree to waive certain of its rights, where possible it will want to limit or restrict those waivers.
Typically, contracting begins with an industry-standard form agreement and is customized by incorporating provisions addressing issues relating to the tribal status of the other party. To be enforceable and protective of the company, any energy company contract with an Indian tribe might contain:
1. A waiver of sovereign immunity;
2. The tribe's consent to the jurisdiction of specified courts and/or agreed provision exempting the company from tribal court venue;
3. Specified governing law;
4. A waiver of exhaustion of tribal court remedies;
5. Clear remedies provisions;
6. Tribal representations that all requisite governmental approvals (whether tribal or federal) have been obtained or that none are required; and
7. Tribal representations that the person(s) signing on behalf of the tribe are appropriately authorized to do so. Evidence of that authority (such as a tribal council resolution) should also be provided.
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These provisions should be included even in form contracts.
Other provisions to consider include:
1. Arbitration;
2. Agreements not to raise issues like sovereign immunity contrary to the contract;
3. Agreement as to the inapplicability of canons of construction favoring tribes;7
4. Severability and other savings clauses; and
5. Agreed exemption from tribal taxation.
III. Sovereign Immunity
Tribes are legally considered to be independent, sovereign governments, just like a federal, state, or local government. Like other governments, they have sovereign immunity, which protects them from lawsuits.8 Unless a tribe waives its sovereign immunity, it cannot be sued if issues arise under an agreement. It is thus critical to request a tribe contracting with a company waive its sovereign immunity and do so in a manner that is clear and unequivocal.
Tribal sovereign immunity applies whether the tribe is acting on or off its reservation. It can apply as well to tribal instrumentalities and tribally-owned corporations, as well as to tribal officials.
To be effective waivers of sovereign immunity must be "clear and unequivocal."9 While courts have softened this requirement in some recent cases, the best practice is to get a full and clear waiver, whether the waiver is broad or particular. A very specific waiver is needed in order for a contract to be enforceable against a tribe in any manner, including through arbitration.
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IV. Tribal Court Procedures
A typical, and recommended, provision in tribal contracts is the waiver of the exhaustion of tribal court remedies, and the disclaimer of tribal court jurisdiction. But when it comes to remedies it may be that tribal court, being the local court where the contracting tribe is located, is the best place to seek a remedy. Provisions about jurisdiction thus often provide that, as to the exercise of remedies or the enforcement of arbitration provisions or judgments and orders, recourse may be had to any competent court, including tribal courts. Due diligence as to the courts of any particular Indian tribe is always advisable, since there is no uniform or overarching judicial system among tribes and each tribe as a sovereign nation determines the nature of its own judicial system.
Tribal courts, as a function of their being arms of a separate sovereign, are not part of the federal judicial system, and are not bound by the Full Faith and Credit clause. Tribal courts frequently extend comity, though, and some do extend reciprocal full faith and credit to judgments and orders of courts that extend full faith and credit to the tribal court.
V. Jurisdiction, Applicable Law and Dispute Resolution
As noted above, under federal law, tribes are self-governing, so their tribal courts have the right to hear any disputes involving the tribe. Many businesses prefer not to settle disputes in tribal court because they expect that the tribe would have a "home court advantage" in that forum. Also, some tribal court systems may be ill-equipped to resolve complex disputes, often handling only small family law issues and minor drug...
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