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Basics of Transactions With Indian Tribes: Choice of Entity and Drafting Issues

Kent E. Ridley, Energy and Mineral Development in Indian Country

I. DISPUTE RESOLUTION CONSIDERATIONS

(A) Tribes and their instrumentalities have sovereign immunity from suit and legal process unless they waive that immunity.

(1) Immunity applies both on and off the Indian reservation, and whether or not a governmental or commercial activity is involved. As stated this year in the U.S. Supreme Court Case of Michigan v. Bay Mills Indian Community, 572 U.S. ___, (2014):

“The question in this case is whether tribal sovereign immunity bars Michigan's suit against the Bay Mills Indian Community for opening a casino outside Indian lands. We hold that immunity protects Bay Mills from this legal action. Congress has not abrogated tribal sovereign immunity from a State's suit to enjoin gaming off a reservation or other Indian lands. And we decline to revisit our prior decisions holding that, absent such an abrogation (or a waiver), Indian tribes have immunity even when a suit arises from off-reservation commercial activity.” id. at __________ (emphasis added).

(B) Waivers of sovereign immunity are enforceable:

(1) A waiver is valid only if properly authorized.

a. Courts look to tribal law to see if the waiver of immunity has been authorized in the manner prescribed by that tribe's law. See, e.g., Dillner v. Seneca-Cyuga Tribe of Oklahoma, 2011 OK 61, 258 P. 3d 316 (Okla. 2011); Memphis Biofuels, L