August 2007
Entering Into and Enforcing Tribal Gaming Contracts: An Overview
by Robert A. Medved
As a result of new compacts between Washington state and Washington state tribes, those tribes1 could spend between $80 million and $120 million on slot machines over the next few years.2 This article provides an overview of some of the issues encountered when entering into and enforcing contracts between a tribe or tribal entity and a nonmember of that tribe when those contracts regard tribal gaming and are executed and performed on Indian lands.3
Before entering into a tribal gaming contract, all parties should address at least three distinct but interrelated issues: (1) federal regulation of tribal gaming, (2) tribal sovereign immunity, and (3) judicial enforcement of tribal gaming contracts. Resolution of these issues should be made on a case-by-case basis and should include a review of applicable federal law, state law, and tribal law.4
Federal Regulation of Tribal Gaming
The Indian Gaming Regulatory Act
Prior to 1988, tribes were allowed to conduct gaming activities on Indian lands unhindered by state regulation. Some states attempted to assert jurisdiction over tribal gaming activities on Indian lands because of federal and state concerns over the potential for such tribal gaming activities to attract criminal elements.5 In court, the tribes successfully resisted the state’s efforts to assert jurisdiction over tribal gaming activities on Indian lands.6
In 1988, Congress addressed these concerns and attempted to resolve the conflicts between the tribes and the states by passing the Indian Gaming Regulatory Act (IGRA),7 which divides tribal gaming activities into Class I gaming, Class II gaming, and Class III gaming.
Class I gaming consists of “social games solely for prizes of minimal value or traditional forms of Indian gaming engaged in by individuals as a part of, or in connection with, tribal ceremonies or celebrations.”8 Class I gaming is “within the exclusive jurisdiction of the Indian tribes.”9
Class II gaming includes “bingo” and “card games.”10 Class II gaming does not include “banking card games” or “electronic or electromechanical facsimiles of any game of chance or slot machines of any kind.”11 The IGRA allows a tribe to engage in Class II gaming only if the tribe adopts a gaming ordinance or resolution12 approved by the National Indian Gaming Commission (NIGC).13 Class II gaming is “within the jurisdiction of the Indian tribes, but shall be subject to the provisions of [the IGRA].”14
Class III gaming includes “all forms of gaming that are not15 class I gaming or class II gaming.”16 The IGRA allows a tribe to engage in Class III gaming only if the tribe adopts a gaming ordinance or resolution17 approved by the NIGC,18 and only if such Class III gaming is “conducted in conformance with a Tribal-State compact entered into by the Indian tribe and the State” in which the Class III gaming will occur.19 The United States district courts have jurisdiction of most disputes involving Class III tribal-state compacts,20 and the tribes and states may allocate civil and criminal jurisdiction involving the licensing and regulation of Class III gaming.21
Tribal IGRA Ordinances
Class II and Class III tribal gaming ordinances address a multitude of issues, including, among other issues: (1) tribal contracting authority22 (2) tribal licensing of suppliers of gaming devices,23 (3) technical equipment standards for gaming devices,24 (4) tribal gaming commissions,25 (5) tribal gaming corporations,26 (6) tribal gaming enterprises,27 (7) tribal sovereign immunity,28 (8) tribal waiver of sovereign immunity,29 (9) tribal waiver of sovereign immunity for certain contracts,30 and (10) consent to tribal jurisdiction.31
Tribal-State IGRA Compacts
The IGRA allows Class III tribal-state compacts to address any “subjects that are directly related to the operation of gaming activities.”32 Hundreds of Class III tribal-state compacts have been approved by the Secretary of the Interior addressing a multitude of issues, including, among other issues: (1) tribal licensing of suppliers of gaming devices,33 (2) state certification of suppliers of gaming devices,34 (3) technical equipment standards for gaming devices,35 (4) sovereign immunity,36 (5) allocating jurisdiction between the tribe and the state,37 (6) providing for exclusive tribal jurisdiction,38 and (7) providing that Class III tribal-state compacts control over inconsistent tribal laws or inconsistent state laws.39
Tribal Sovereign Immunity
The Doctrine of Tribal Sovereign Immunity
Tribes are domestic dependent nations that exercise inherent sovereign authority over their members and territories40 and have the power to make their own tribal substantive law and to enforce that law in their own tribal courts.41 A corollary to tribal sovereignty is the doctrine of tribal sovereign immunity barring lawsuits against tribes.42
At one time, there was a question of whether tribal sovereign immunity applied to tribal commercial activities as well as tribal governmental activities. Another question was whether tribal sovereign immunity applied to tribal commercial activities that occurred off Indian land as well as those that occurred on Indian land. In 1998, the United States Supreme Court answered both questions as follows: “Tribes enjoy immunity from suits on contracts, whether those contracts involve governmental or commercial activities and whether they were made on or off a reservation.”43
Some courts and judges have been critical44 of tribal “sovereignty”45 and tribal “sovereign immunity”46 as doctrines that have perhaps outlived their purposes. Despite this judicial criticism, tribal sovereign immunity is routinely asserted in federal courts,47 state courts,48 and tribal courts.49
The Extension of Tribal Sovereign Immunity to Tribal Entities
Whether tribal sovereign immunity extends to tribal entities such as unincorporated tribal enterprises or tribal corporations generally depends on the degree to which the tribe and the tribal entity are related. While unincorporated tribal enterprises are generally created under tribal law,50 tribal corporations may be created under federal law,51 state law,52 or tribal law.53 Depending on whether the contracting party is a tribe or a tribal entity or both, and depending on the form and structure of a contracting tribal entity, the legal rights of all contracting parties differ greatly. Sorting out these different legal rights can be difficult. For example, one court observed that:
Because of the doctrine of tribal immunity, businesses that deal with Indian tribes do so at great financial risk. In this case appellant could only have protected itself by investigating the [tribe’s] Constitution and Bylaws, by investigating [the unincorporated tribal enterprise’s] Plan of Operation and by investigating the [tribal corporation’s] Charter. This investigation would have revealed the fact that [the unincorporated tribal enterprise] was not a subsidiary of the [tribal corporation] but, rather, was a subordinate economic organization of the [tribe] acting under its Constitution and Bylaws, and as such, was entitled to tribal immunity. Confronted with this fact, appellant only then could have taken steps to protect its interests.54
When confronted with the issue of whether tribal sovereign immunity extended to tribal corporations in a non-IGRA context, the Washington State Supreme Court could only muster a contentious plurality.55 The lead opinion suggested that “as a matter of law56 . . . tribal sovereign immunity protects tribal governmental corporations owned57 and controlled by a tribe, and created under its own tribal laws.”58 The concurring opinion would supplement the lead opinion’s three factor “bright-line rule”59 with a fourth-factor — i.e., “the purposes for which the tribe founded” the tribal corporation.60 The concurring opinion also agreed that “in some cases fact-finding may be necessary to determine whether sovereign immunity applies.”61 The dissenting opinion recognized that “Courts have adopted various factors in deciding whether corporations are tribal entities and are entitled to immunity” and then noted that the two tribal corporation petitioners themselves “recognize 11 factors as [being] relevant” to that decision.62 The dissenting opinion urged a “remand to the trial court for a factual determination of whether the corporations constitute tribal entities and are thereby protected by sovereign immunity.”63
In the context of tribal gaming, the IGRA requires tribes to “have the sole proprietary interest and responsibility for the conduct of any gaming activity,”64 and the tribe itself may administer and oversee its tribal gaming activities.65 It is not unusual, however, for a tribe to create a tribal entity (such as an unincorporated tribal enterprise66 or a tribal corporation67) to administer and oversee its tribal gaming activities. While the issue of whether tribal sovereign immunity extends to tribal entities can be contentious in cases not involving the IGRA,68 it appears that the courts are inclined to extend tribal sovereign immunity to tribal entities involved in gaming activities under the IGRA.69
Tribal Sovereign Immunity May Be Waived
Tribal sovereign immunity may be waived by contract70 but any such waiver must be “clear”71 and “unequivocal.”72 There is no bright-line test of what constitutes a “clear” or “unequivocal” express contractual waiver of tribal sovereign immunity. One tribal court remarked that “Although a waiver must be ‘unequivocally expressed,’ courts have not required valid waivers to explicitly state, ‘sovereign immunity is hereby waived,’ or any other ‘magic’ words for there to be a valid waiver.”73
In addition to the requirement that a tribal waiver of sovereign immunity by contract be “clear” and “unequivocal,” tribal waivers of sovereign immunity are generally narrowly construed and limited in scope in favor of the tribe.74 And, of course, it is assumed that any document containing language that attempts to waive tribal sovereign immunity will not also contain contradictory language that attempts to reserve tribal sovereign immunity.75
Tribal Authority Required for Waiver of Sovereign Immunity
An otherwise valid waiver of a tribe’s76 or a tribal entity’s77 sovereign immunity is ineffective if the person signing the waiver lacks tribal authority to waive the tribe’s sovereign immunity.
Tribal authority to waive sovereign immunity arises out of tribal law.78 Since tribal authority is grounded in tribal law, tribes have asserted the lack of tribal authority to waive sovereign immunity even when the waiver has been signed by such high-ranking officials as a tribal chairman, a chairman and chief executive officer of the tribal council, a tribal council, a CFO of a tribal entity, and a comptroller of a tribal entity.79 It has also been argued that even if an individual has authority to enter into a contract on behalf of a tribe or a tribal entity, that individual’s authority to contract does not include tribal authority to waive sovereign immunity.80 Accordingly, it would not be prudent to rely on the apparent authority of an individual to establish the effectiveness of a waiver of tribal sovereign immunity,81 although one court has upheld a waiver of tribal sovereign immunity based upon apparent authority.82
Tribal Sovereign Immunity and Tribal Law
Some tribal non-IGRA laws,83 tribal IGRA Class II and Class III gaming ordinances,84 and tribal-state IGRA gaming compacts85 address tribal sovereign immunity and tribal waivers of sovereign immunity. In some instances, tribal IGRA Class II and Class III gaming ordinances86 also address tribal entities and the extension of sovereign immunity to those tribal entities.
Judicial Enforcement of Tribal Contracts
Synopsis of the Courts’ Respective Jurisdictions
While parties including tribes and tribal entities may by contract consent to existing court jurisdiction,87 parties cannot by contract or stipulation create subject matter jurisdiction, even in the event where a tribal party has voluntarily waived its sovereign immunity in order to subject itself to being sued.88 The surrounding facts and circumstances particular to each commercial transaction with a tribe or a tribal entity will determine whether a federal court, a state court, or a tribal court will have subject-matter jurisdiction over a dispute arising out of that commercial transaction and whether such jurisdiction is exclusive or concurrent. Additionally, a federal court, state court, or tribal court cannot properly exercise its existing jurisdiction over a tribe unless that tribe has waived its sovereign immunity.89
Federal Court Jurisdiction and Exhaustion of Tribal Remedies
It is problematic to acquire federal court jurisdiction over a tribal gaming contract dispute since federal courts are courts of limited jurisdiction.90 As to federal-question jurisdiction,91 neither contract disputes92 nor the IGRA93 provide a basis for federal-question jurisdiction. As to federal-diversity jurisdiction,94 since tribes are not citizens of any state for purposes of diversity jurisdiction, federal diversity jurisdiction is not available when a tribe is a party to the litigation.95
When a tribal court and a federal court both have subject-matter jurisdiction over a cause of action, the federal court may dismiss or stay the federal court proceeding and require “the litigants to exhaust their tribal court remedies before a [federal] district court may evaluate the existence of a tribal court’s jurisdiction.”96 The federal courts are somewhat divided as to whether parties including tribes and tribal entities may by contract waive the tribal exhaustion doctrine.97
State Court Jurisdiction and Deferral to Tribal Courts
It is also problematic to acquire state court jurisdiction over a tribal gaming-contract dispute. As a general rule, absent a federal grant of state jurisdiction,98 state courts may not assert civil jurisdiction over disputes involving tribes and tribal entities that occur on Indian land.99 Also as a general rule, state courts may assert civil jurisdiction over disputes that occur off Indian land.100
When a tribal court and a state court have concurrent jurisdiction over a cause of action, a state court may under the principals of comity defer to the jurisdiction of the tribal court.101
Tribal Court Jurisdiction
Tribal ordinances may provide that a nonmember consents to tribal jurisdiction by entering tribal lands.102 Tribal commercial transactions with a nonmember may also result in that nonmember consenting to tribal jurisdiction because those commercial transactions involve “consensual relationships”103 between the tribe and the nonmember. In the event that commercial relationships do involve “consensual relationships,” civil jurisdiction over disputes arising out of those commercial transactions presumptively lies in an existing tribal court.104
The civil subject-matter jurisdiction of tribal courts varies in scope. While some tribal courts have broad general jurisdiction over all civil cases and controversies,105 other tribal courts may not even have jurisdiction over breach-of-contract or negligent claims.106 Furthermore, some tribes do not have tribal courts107 or have established a tribal court only recently.108
The degree to which tribes have embraced American jurisprudence varies. Jury trials are one example. While some tribal courts deny the right to a jury trial in all civil cases,109 other tribal courts provide a jury trial in civil cases but only upon motion by the party seeking the jury trial.110 Appeals from tribal trial court decisions are another example. On the one hand, some tribes have established tribal appellate courts with tribal appellate judges to consider appeals from tribal trial court decisions and require those tribal appellate judges to file their decisions with the clerk of the tribal court.111 On the other hand, some tribes allow appeals from tribal trial court decisions to be considered only by the tribal council, do not require the tribal council to file its decision, and provide that the tribal council’s decision is final.112
The quality of tribal courts seems to vary. While it has been noted that “advances in the responsibilities and competence of the [tribal] courts have been rapid and substantial,”113 some courts and judges have been critical114 of tribal courts. One federal court refused to enforce a tribal court order because the tribal court’s proceedings denied nonmember parties the “full and fair opportunity to litigate the [sovereign immunity] issue in” the tribal court.115 Another federal court was faced with, but did not decide, the issue of whether proceeding in a tribal court would be futile because of the tribal court’s alleged bias.116 One state court judge noted that none of the tribal judges were lawyers and questioned the tribal court’s lack of judicial independence.117
Judicial Enforcement and Tribal Law
Some tribal non-IGRA laws,118 tribal IGRA Class II and Class III gaming ordinances,119 and tribal-state IGRA gaming compacts120 address subject-matter jurisdiction over commercial transactions, consent to tribal jurisdiction, choice of law issues,121 and the exhaustion of tribal remedies. Another state court judge observed that it is common knowledge that tribal courts should be “avoided” and suggested that “[w]e need to move as quickly as possible to abolish all tribal courts.” (See Granite Valley Hotel Ltd. Partnership v. Jackpot Junction Bingo and Casino, 559 N.W.2d 135, 146, 183 (Minn. Ct. App. 1997)).
Conclusion
Many of the issues raised by this article have been addressed by some tribes in their tribal non-IGRA laws, tribal IGRA Class II and Class III gaming ordinances, and tribal-state IGRA gaming compacts.122 Indeed, one tribal council in its “Legislative Intent and Findings” found both “that Sovereign Immunity is vital to the functioning of the Tribe” and found also “that the waiver of the Tribes’ Immunity from suit or action is an essential element of entering into certain transactions and is, in and of itself, an exercise of the Tribes’ sovereign authority.”123 Tribal gaming contracts with tribal nonmembers seem to fall within the scope of those “certain transactions” referred to in those tribal “Legislative Intent and Findings.”
Tribal gaming revenues were $5.4 billion in fiscal year 1995, increased to $10.9 billion in fiscal year 2000,124 and increased to $22.6 billion in fiscal year 2005.125 These tribal gaming revenues make “more and more needed dollars available to meet essential” tribal needs126 such as healthcare,127 housing, and college scholarships for tribal members.128 On balance, it appears that the contracting tribes, the contracting tribal entities, and the contracting nonmembers will all benefit by entering into arms’ length, enforceable tribal gaming contracts.
Robert A. Medved graduated from the Seattle University School of Law, cum laude, and was editor in chief of the Law Review. He clerked for the Honorable Jesse W. Curtis, district judge, United States District Court, Central District of California. He is chair of the Intellectual Property Committee for the Federal Bar Association, Western District of Washington. Mr. Medved’s law practice includes over 30 years of experience in commercial and real estate transactions and in federal and state court litigation. He can be reached at 206-232-5800 or bob@ramedved.com.
NOTES
1. In this article, the terms “tribe” and “tribal” and all derivatives of those terms shall have the same meaning as the definition of “Indian tribe” provided in 25 U.S.C. § 2703(5).
2. See Deirdre Gregg, “Higher Stakes: Tribes Could Spend as Much as $120M on Additional Slot Machines for Casinos,” Puget Sound Business Journal, April 27-May 3, 2007, at 1, 69.
3. In this article, the terms “Indian country,” “Indian lands,” “Indian reservation,” and “reservation” and all derivatives of those terms shall have the same meaning as the definition of “Indian lands” provided in 25 U.S.C. § 2703(4).
4. In this article, the term “tribal law” and all derivatives of that term shall mean the amalgamation of tribal charters, codes, common law, constitutions, customs, ordinances, regulations, statutes, treaties, and the like.
5. See, e.g., S. Rep. No. 100-446, at 1-4 (1988), as reprinted in 1988 U.S.C.C.A.N. 3071, 3071-74.
6. See, e.g., California v. Cabazon Band of Indians, 480 U.S. 202 (1987).
7. 25 U.S.C. § 2701, et seq.
8. 25 U.S.C. § 2703(6).
9. 25 U.S.C. § 2710(a)(1).
10. 25 U.S.C. § 2703(7)(A).
11. 25 U.S.C. § 2703(7)(B). See, e.g., United States v. 103 Electronic Gambling Devices, 223 F.3d 1091 (9th Cir. 2000).
12. The Te-Moak Tribe of Western Shoshone Ordinance No. 93-ORD-TM-03 (1993) is an example of a tribal gaming ordinance that addresses only Class II gaming.
13. 25 U.S.C. § 2710(b)(1)(B).
14. 25 U.S.C. § 2710(a)(2).
15. See, e.g., Spokane Indian Tribe v. United States, 972 F.2d 1090 (9th Cir. 1992).
16. 25 U.S.C. § 2703(8).
17. Cherokee Code, pt. II, chs. 16, 16A, 16B, 16C, 16D and 16E (2005) are examples of a tribal gaming ordinance addressing Class I gaming, Class II gaming, and Class III gaming.
18. 25 U.S.C. § 2710(d)(1)(A).
19. 25 U.S.C. § 2710(d)(1)(C). Class III tribal-state compacts must be approved by the secretary of the interior. See 25 U.S.C. § 2710(d)(3)(B).
20. See 25 U.S.C. § 2710(d)(7)(A).
21. See 25 U.S.C. §§ 2710(d)(3)(C)(i) and 2710(d)(3)(C)(ii).
22. See, e.g., Cherokee Code, pt. II, ch. 16A, § 16A-5(e) (2005); Jamestown S’Klallam Tribal Code, tit. 7, ch. 7.15, § 7.15.01(2005).
23. See, e.g., Sault Ste. Marie Tribe of Chippewa Indians Tribal Code, ch. 42, § 42.506 (2004).
24. See, e.g., Cherokee Code, pt. II, ch. 16, § 16-4.11 (2005); Hoppa Valley Tribal Code, tit. 31, § 31.24 (2005); Sault Ste. Marie Tribe of Chippewa Indians Tribal Code, ch. 42, § 42.704(2) (2004).
25. See, e.g., Cherokee Code, pt. II, ch. 16, § 16-2.01, et seq. (2005).
26. See, e.g., Jamestown S’Klallam Tribal Code, tit. 7, ch. 7.31, § 7.31.01(2005).
27. See, e.g., Cherokee Code, pt. II, ch. 16A, § 16A-1, et seq. (2005).
28. See, e.g., Cherokee Code, pt. II, ch. 16, § 16-7.01 (2005); Hoppa Valley Tribal Code, tit. 31, § 31.49 (2005); Jamestown S’Klallam Tribal Code, tit. 7, ch. 7.31, § 7.31.01, and ch. 7.35, § 7.35.01(2005); Rosebud Sioux Tribe Law and Order Code, tit. 13, ch. 2, § 13-2-102(1) (2004).
29. See, e.g., Cherokee Code, pt. II, ch. 16, § 16-7.02 (2005). Rosebud Sioux Tribe Law and Order Code, tit. 13, ch. 2, § 13-2-102(2) (2004).
30. See, e.g., Cherokee Code, pt. II, ch. 16A, § 16A-5(h) (2005).
31. See, e.g., Cherokee Code, pt. II, ch. 16, § 16-12.12 (2005); Hoppa Valley Tribal Code, tit. 31, § 31.48 (2005); Sault Ste. Marie Tribe of Chippewa Indians Tribal Code, ch. 42, § 42.106 (2004).
32. 25 U.S.C. § 2710(d)(3)(C)(vii).
33. See, e.g., Tribal-State Compact for the Conduct of Class III Gaming Between the Chitimacha Tribe of Louisiana and the State of Louisiana (2001), § 6(D); Tribal State Gaming Compact Between the Kickapoo Tribe of Indians of The Kickapoo Reservation in Kansas and the State of Kansas (1995), § 17(A); Tribal-State Compact Between the State of California and the La Jolla Indian Reservation (2000), § 6.4.5; Salt River Pima-Maricopa Indian Community — State of Arizona Gaming Compact (1998), § 4(d); The Shoshone-Bannock Tribes and the State of Idaho Compact for Class III Gaming (2000), § 9 b.; Amended Gaming Compact Between the Turtle Mountain Band of Chippewa Indians and the State of North Dakota (1999), ch. XIX, § 19.1 A.
34. See, e.g., Tribal-State Compact for the Conduct of Class III Gaming Between the Chitimacha Tribe of Louisiana and the State of Louisiana (2001), § 6(D); Salt River Pima-Maricopa Indian Community — State of Arizona Gaming Compact (1998), § 4(d); St. Croix Chippewa Indians of Wisconsin/State of Wisconsin Gaming Compact of 1991, ch. VII, §§ B. and C.
35. See, e.g., A Compact Between the Little River Band of Ottawa Indians and the State of Michigan Providing for the Conduct of Tribal Class III Gaming by the Little River Band of Ottawa Indians (1998), § 6(A); Amended Gaming Compact Between the Turtle Mountain Band of Chippewa Indians and the State of North Dakota (1999), ch. XX, §§ 20.3 E., 20.5 and 20.6; St. Croix Chippewa Indians of Wisconsin/State of Wisconsin Gaming Compact of 1991, ch. XV, §§ B. 6., D. and E.
36. See, e.g., Tribal State Gaming Compact Between the Kickapoo Tribe of Indians of the Kickapoo Reservation in Kansas and the State of Kansas (1995), § 14(B); Winnebago Tribe of Nebraska and the State of Iowa Gaming Compact (1998), § 28(a); Amended Gaming Compact Between the Turtle Mountain Band of Chippewa Indians and the State of North Dakota (1999), ch. XVIII, § 18.1; St. Croix Chippewa Indians of Wisconsin/State of Wisconsin Gaming Compact of 1991, ch. XXIII, § A.
37. See, e.g., Tribal-State Compact for Regulation of Class III Gaming on the Mississippi Band of Choctaw Indians Reservation in Mississippi (1993), § 5.1.
38. See, e.g., Agreement Between the Crow Indian Tribe and the State of Montana Concerning Class III Gaming (1998), ch. IV. A.; Tribal State Gaming Compact Between the Kickapoo Tribe of Indians of the Kickapoo Reservation in Kansas and the State of Kansas (1995), § 14(A); Winnebago Tribe of Nebraska and the State of Iowa Gaming Compact (1998), § 20.1.
39. See, e.g., St. Croix Chippewa Indians of Wisconsin/State of Wisconsin Gaming Compact of 1991, ch. XXVI.
40. See, e.g., Oklahoma Tax Comm’n v. Citizen Band Potawatomi Indian Tribe of Okla., 498 U.S. 505, 509 (1991).
41. See, e.g., Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55-56 (1978).
42. See, e.g., Oklahoma Tax Comm’n v. Citizen Band Potawatomi Indian Tribe of Okla., 498 U.S. 505 (1991); Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering 476 U.S. 877 (1986).
43. Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc., 523 U.S. 751, 760 (1998).
44. The author expresses no opinion on this criticism but only reports the courts’ and the judges’ published statements.
45. See Granite Valley Hotel Ltd. Partnership v. Jackpot Junction Bingo and Casino, 559 N.W.2d 135, 182 (Minn. Ct. App. 1997) (Randall, P.J., concurring specially) (“Indian ‘sovereignty’ today is used principally for three reasons: (1) for the tribal government and its casino interests to shield tribal enrollees on and off the reservation from how much money [the tribe has] taken in; (2) as a shield for alleged [tribal] law breakers to attempt to avoid prosecution under applicable state and federal criminal laws. . . ; and (3) as a shield to keep [tribes] from having to answer as defendants in bona fide civil lawsuits.” (citations omitted)).
46. See, e.g., Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc., 523 U.S. 751, 758 (1998) (“At one time, the doctrine of tribal immunity from suit might have been thought necessary to protect nascent tribal governments from encroachments by States. In our interdependent and mobile society, however, trial immunity extends beyond what is needed to safeguard tribal self-governance. This is evident when tribes take part in the Nation’s commerce. Tribal enterprises now include ski resorts, gambling, and sales of cigarettes to non-Indians. In this economic context, immunity can harm those who are unaware that they are dealing with a tribe, who do not know of tribal immunity, or who have no choice in the matter, as in the case of tort victims.”); Wright v. Colville Tribal Enterprise Corporation, 159 Wash.2d 108, 114 n.3 (2006) (4-2-3 decision) (Sanders, J., lead opinion) (“The dissent correctly suggests tribal sovereign immunity may deter non-Indians from entering business transactions with tribal corporations.”).
47. See, e.g., Multimedia Games, Inc. v. WLGC Acquisition Corporation, 214 F.Supp.2d 1131 (N.D. Okla. 2001).
48. See, e.g., Rush Creek Solutions, Inc. v. Ute Mountain Ute Tribe, 107 P.3d 402 (Colo. Ct. App. 2004).
49. See, e.g., Burrell v. Armijo, 456 F.3d 1159 (10th Cir. 2006); Hockaday v. Krauk Tribal Housing Authority, 32 Indian L. Rep. 6169 (Karuk Tr. Ct. 2005); Sanders v. Cherokee Nation, 7 Okla. Trib. 532 (Cherokee 2001); Cherokee Code, pt. II, ch. 7, § 7-13 (2005).
50. See, e.g., Cherokee Code, pt. II, ch. 16A. (2005); Confederated Tribes of Warm Springs Tribal Code, ch. 605 (2001).
51. See, e.g., 25 U.S.C. § 477 and § 478-1.
52. See, e.g., Airvator, Inc. v. Turtle Mountain Manufacturing Company, 329 N.W.2d 596 (N.D. 1983).
53. See, e.g., Jamestown S’Klallam Tribal Code, tit. 11 (2005).
54. S. Unique, Ltd. v. Gila River Prim-Maricopa Indian Community, 674 P.2d 1376, 1384-85 (Ariz. Ct. App. 1983).
55. Wright v. Colville Tribal Enterprise Corporation, 159 Wash.2d 108 (2006) (4-2-3 decision).
56. Id. at 112 n.2 (Sanders, J., lead opinion).
57. Wright involved two tribal “wholly-owned” corporations. Id. at 110. Neither the lead opinion, the concurring opinion nor the dissenting opinion addressed the issue of extending tribal sovereign immunity to a corporation that is only partially-owned by the tribe.
58. Id. at 113. The lead opinion cautioned that “a tribe may waive the immunity of a tribal enterprise by incorporating under state law, rather than tribal law.” Id. at 115.
59. Id. at 114 n.3.
60. Id. at 126 (Madsen, J., concurring opinion).
61. Id. at 121.
62. Id. at 130-31 (C. Johnson, J., dissenting opinion).
63. Id. at 131.
64. 25 U.S.C. § 2710(b)(2)(A). See, e.g., 25 U.S.C. § 2710(d)(1)(A)(ii); Cherokee Code, pt. II, ch. 16, § 16-1.07 (2005).
65. See, e.g., White Mountain Apache Gaming Ordinance (2000).
66. See, e.g., Cherokee Code, pt. II, ch. 16A. (2005); Confederated Tribes of Warm Springs Tribal Code, ch. 605 (2001).
67. See, e.g., Jamestown S’Klallam Tribal Code, tit. 7, ch. 7.31, § 7.31.01 (2005).
68. See, e.g., Runyon v. Association of Village Council Presidents, 84 P.3d 437, 438 (Alaska 2004); Dixon v. Picopa Construction Company, 772 P.2d 1104 (Ariz. 1989).
69. See, e.g., Allen v. Gold Country Casino, 464 F.3d 1044 (9th Cir. 2006); Ferguson v. SMSC Gaming Enterprise, 475 F.Supp.2d 929 (D. Minn. 2007); World Touch Gaming, Inc. v. Massena Management, LLC, 117 F.Supp.2d 271 (N.D.N.Y. 2000); Filer v. Tohono O’Odham Nation Gaming Enterprise, 129 P.3d 78 (Ariz. Ct. App. 2006); Trudgeon v. Fantasy Strings Casino, 84 Cal.Rptr.2d 65 (Ct. App. 1999); Gavle v. Little Six, Inc., 555 N.W.2d 284 (Minn. 1996); Johnson v. Mohegan Tribal Gaming Enterprise, 25 Indian L. Rep. 6011 (Mashantucket Pequot Ct. App. 1996).
70. A tribe may also provide for waivers of sovereign immunity in its tribal laws. See, e.g., Cherokee Code, pt. II, ch. 16, § 16-7.03 (2005); Hockaday v. Krauk Tribal Housing Authority, 32 Indian L. Rep. 6169, 6170 (Karuk Tr. Ct. 2005).
71. See, e.g., C & L Enterprises, Inc. v. Potawatomi Indians, 532 U.S. 411 (2001); Oklahoma Tax Comm’n v. Citizen Band Potawatomi Indian Tribe of Okla., 498 U.S. 505 (1991).
72. See, e.g., Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978).
73. Martin v. Hopi Tribe, 25 Indian L. Rep. 6185, 6188 (Hopi Tribe Ct. App. 1996); see also Rosebud Sioux Tribe v. Val-U Construction Co., 50 F.3d 560, 562 (8th Cir. 1995).
74. See, e.g., Missouri River Services v. Omaha Tribe of Nebraska, 267 F.3d 848 (8th Cir. 2001); Chayoon v. Sherlock, 877 A.2d 4, 9 (Conn. Ct. App. 2005).
75. See, e.g., Calvello v. Yankton Sioux Tribe, 899 F.Supp. 431, 436 n.1 (D. S.D. 1995).
76. See, e.g., Big Valley Band of Pomo Indians v. Superior Court, 35 Cal.Rptr.3d 357 (Ct. App. 2005); Hydrothermal Energy Corporation v. Port Bidwell Indian Community Council, 216 Cal.Rptr. 59 (Ct. App. 1985).
77. See, e.g., Winnebago Tribe of Nebraska v. Kline, 297 F.Supp.2d 1291 (D. Kan. 2004); Danka Funding Company, LLC v. Sky City Casino, 747 A.2d 837 (N.J. Super. Ct. 1999).
78. See, e.g., Comanche Indian Tribe of Oklahoma v. 49, L.L.C., 391 F.3d 1129, 1131 n.3 (10th Cir. 2004); Altheimer & Gray v. Sioux Manufacturing Corporation, 983 F.2d 803, 812 (7th Cir. 1992); Hydrothermal Energy Corporation v. Port Bidwell Indian Community Council, 216 Cal.Rptr. 59, 63 (Ct. App. 1985).
79. See, e.g., Comanche Indian Tribe of Oklahoma v. 49, L.L.C., 391 F.3d 1129 (10th Cir. 2004) (Tribal Chairman); Hydrothermal Energy Corporation v. Port Bidwell Indian Community Council, 216 Cal.Rptr. 59 (Ct. App. 1985) (chairman and chief executive officer of the Tribal Council); Lobo Gambling Inc. v. Pit River Tribe of California, 2002 WL 922136 (Cal. App. 2002) (not officially published or reported) (Tribal Council); Rush Creek Solutions, Inc. v. Ute Mountain Ute Tribe, 107 P.3d 402 (Colo. Ct. App. 2004) (CFO of a tribal entity); Danka Funding Company, LLC v. Sky City Casino, 747 A.2d 837 (N.J. Super. Ct. 1999) (comptroller of a tribal entity).
80. See, e.g., World Touch Gaming, Inc. v. Massena Management, LLC, 117 F.Supp.2d 271, 276 (N.D.N.Y. 2000); Rush Creek Solutions, Inc. v. Ute Mountain Ute Tribe, 107 P.3d 402, 404, 406 (Colo. Ct. App. 2004).
81. See, e.g., Paula M. Yost, “Rush Creek v. Ute Mountain Ute Tribe: A Death Knell for Settled Tribal Immunity Law?”, 14 Indian Law Newsletter 10 (2006); World Touch Gaming, Inc. v. Massena Management, LLC, 117 F.Supp.2d 271 (N.D.N.Y. 2000).
82. See Rush Creek Solutions, Inc. v. Ute Mountain Ute Tribe, 107 P.3d 402 (Colo. Ct. App. 2004). At least one author has criticized the Rush Creek decision. See Paula M. Yost, supra n. 81.
83. See, e.g., Cherokee Code, pt. II, ch. 7, § 7-13 (2005); Rosebud Sioux Tribe Law and Order Code, tit. 4, ch. 2, § 4-24 (2004); Confederated Tribes of Warm Springs Tribal Code, ch. 30 (2001); Sault Ste. Marie Tribe of Chippewa Indians Tribal Code, ch. 44 (2004); Jamestown S’Klallam Tribal Code, tit. 22, ch. 22.01, § 22.01.02 (2005).
84. See, e.g., Cherokee Code, pt. II, ch. 16, at art. VII, ch. 16A at § 16A-5(h), and ch. 16B at § 16B-5(h) (2005); Hoppa Valley Tribal Code, tit. 31, § 31.49 (2005); Jamestown S’Klallam Tribal Code, tit. 7, ch. 7.31, § 7.31.01, and ch. 7.35, § 7.35.01 (2005); Rosebud Sioux Tribe Law and Order Code, tit. 13, ch. 2, § 13-2-102 (2004).
85. See, e.g., Tribal State Gaming Compact Between the Kickapoo Tribe of Indians of the Kickapoo Reservation in Kansas and the State of Kansas (1995), § 14(B); Winnebago Tribe of Nebraska and the State of Iowa Gaming Compact (1998), § 28(a); Amended Gaming Compact Between the Turtle Mountain Band of Chippewa Indians and the State of North Dakota (1999), ch. XVIII, § 18.1; St. Croix Chippewa Indians of Wisconsin/State of Wisconsin Gaming Compact of 1991, ch. XXIII, § A.
86. See, e.g., Cherokee Code, pt. II, ch. 16, ch. 16A, and ch. 16B (2005).
87. See, e.g., Altheimer & Gray v. Sioux Manufacturing Corporation, 983 F.2d 803, 815 (7th Cir. 1992); Rush Creek Solutions, Inc. v. Ute Mountain Ute Tribe, 107 P.3d 402, 404, 406 (Colo. Ct. App. 2004); Bradley v. Crow Tribe of Indians, 67 P.3d 306 (Mont. 2003).
88. See, e.g., Wisconsin v. Ho-Chunk Nation, 463 F.3d 655, 661 (7th Cir. 2006).
89. See, e.g., Burrell v. Armijo, 456 F.3d 1159 (10th Cir. 2006); Multimedia Games, Inc. v. WLGC Acquisition Corporation, 214 F.Supp.2d 1131 (N.D. Okla. 2001); Rush Creek Solutions, Inc. v. Ute Mountain Ute Tribe, 107 P.3d 402 (Colo. Ct. App. 2004); Sanders v. Cherokee Nation, 7 Okla. Trib. 532 (Cherokee 2001); Hockaday v. Karuk Tribal Housing Authority, 32 Indian L. Rep. 6169 (Karuk Tr. Ct. 2005); Cherokee Code, pt. II, ch. 7.
90. See, e.g., Winnebago Tribe of Nebraska v. Kline, 297 F.Supp.2d 1291, 1298 (D. Kan. 2004).
91. See 28 U.S.C. § 1331.
92. See, e.g., Peabody Coal Company v. Navajo, 373 F.3d 945, 951-52 (9th Cir. 2004).
93. See, e.g., Wisconsin v. Ho-Chunk Nation, 463 F.3d 655, 659-61, (10th Cir. 2006); Frazier v. Turning Stone Casino, 254 F.Supp.2d 295, 303-04 (N.D.N.Y. 2003).
94. See 28 U.S.C. § 1332.
95. See, e.g., Frazier v. Turning Stone Casino, 254 F.Supp.2d 295, 305 (N.D.N.Y. 2003).
96. See, e.g., Iowa Mutual Insurance Company v. LaPlante, 480 U.S. 9 (1987); National Farmers Union Insurance Companies v. Crow Tribe, 471 U.S. 845 (1985).
97. See, e.g., Larson v. Martin, 386 F.Supp.2d 1083, 1087 (N.D. Dakota 2005).
98. See, e.g., 25 U.S.C. § 2710(d)(3)(C)(ii); 28 U.S.C. § 1360.
99. See, e.g., Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering 476 U.S. 877 (1986); Kennerly v. District Court of Montana, 400 U.S. 423 (1971); Williams v. Lee, 358 U.S. 217 (1959); see also Fisher v. District Court of Montana, 424 U.S. 382 (1976); Balyeat Law, PC v. Pettit, 967 P.2d 398 (Mont. 1998); Teague v. Bad River Band of the Lake Superior Tribe of Chippewa Indians, 612 N.W.2d 709 (Wis. 2000).
100. See, e.g., Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148-49 (1973); Gavle v. Little Six, Inc., 555 N.W.2d 284 (Minn. 1996); Balyeat Law, PC v. Pettit, 967 P.2d 398 (Mont. 1998).
101. See, e.g., Gavle v. Little Six, Inc., 555 N.W.2d 284, 292 (Minn. 1996); Lemke ex rel. Teta v. Brooks, 614 N.W.2d 242, 246 (Minn. Ct. App. 2000); Granite Valley Hotel Ltd. Partnership v. Jackpot Junction Bingo and Casino, 559 N.W.2d 135, 138 (Minn. Ct. App. 1997); Teague v. Bad River Band of the Lake Superior Tribe of Chippewa Indians, 612 N.W.2d 709, 718 (Wis. 2000).
102. See, e.g., Cherokee Code, pt. II, ch. 16, § 16-12.12 (2005); Hoppa Valley Tribal Code, tit. 31, § 31.48 (2004); Sault Ste. Marie Tribe of Chippewa Indians Tribal Code, ch. 42, § 42.106 (2004).
103. See, e.g., Montana v. United States, 450 U.S. 544, 565 (1981).
104. See, e.g., Strate v. A-1 Contractors, 520 U.S. 438, 453 (1997).
105. See, e.g., Cherokee Code, pt. II, ch. 7, § 7-2(b) (2005).
106. See, e.g., Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering 476 U.S. 877, 881 (1986).
107. See, e.g., Susanville Indian Rancheria Ordinances (2003).
108. See, e.g., Attorney’s Process and Investigation Services, Inc. v. Sac and Fox Tribe of the Mississippi in Iowa, 401 F.Supp.2d 952, 955-56 (N.D. Iowa 2005).
109. See, e.g., Sault Ste. Marie Tribe of Chippewa Indians Tribal Code, ch. 81, § 81.212 (2004).
110. See, e.g., Te-Moak Tribe of Western Shoshone Ordinance No. 87-ORD-TM-03, tit. I, ch. 3, § 1-3-33 (2003).
111. See, e.g., Sault Ste. Marie Tribe of Chippewa Indians Tribal Code, ch. 82 (2004).
112. See, e.g., San Ildefonso Pueblo Code, tit. III, § 6.26 (1996).
113. See, e.g., Michael Taylor, “Modern Practice In The Indian Courts,” 10 U. Puget Sound L. Rev. 231, 273 (1987).
114. The author expresses no opinion on this criticism but only reports the courts’ and the judges’ published statements.
115. See Burrell v. Armijo, 456 F.3d 1159, 1172-73 (10th Cir. 2006) (“[T]he procedural posture leading up to the tribal court’s ruling gives this court pause. Although the first tribal judge conducted two days of evidentiary hearings, he failed to make any rulings on the parties’ pending motions after four years. . . . Further, when the [nonmember parties] returned to the tribal court, they encountered a new tribal judge who had not presided over the two days of hearings. Whether the new judge had reviewed or had any knowledge of the testimony from those hearings is unclear, but the record reflects that the first tribal judge never responded to the [nonmembers] parties’ request for a transcript of the proceedings. Without any further hearings . . . the second tribal judge issued a one-page order granting the [tribe] sovereign immunity . . . and dismissed the [nonmember parties’] claims. This one-page order contained no reference to any testimony from the evidentiary hearing, or for that matter any explanation of the tribal court’s reasoning.”).
116. See Attorney’s Process and Investigation Services, Inc. v. Sac and Fox Tribe of the Mississippi in Iowa, 401 F.Supp.2d 952, 959 (N.D. Iowa 2005) (“API asserts that [the Tribal] Council and the attorneys whom the Tribe has employed in the instant lawsuit ‘created the Tribal Court and enacted the dispute resolution provision of its Code as well as Rules of Civil Procedure and other substantive law provisions.’ API further alleges: ‘[S]ome of the substantive law provision were enacted with specific regard to API and litigation anticipated in the new Tribal Court against API.’”).
117. See Teague v. Bad River Band of the Lake Superior Tribe of Chippewa Indians, 665 N.W.2d 899, 927 (Wis. 2003) (Prosser, J., dissenting) (“How many of the current tribal judges are lawyers? None. . . . Today, Wisconsin tribal courts are more mature and sophisticated than they once were. Even so, given the structure of some tribes and bands, there are lingering concerns about judicial independence.”). See also Cohen v. Little Six, Inc., 543 N.W.2d 376, 395 (Minn. Ct. App. 1996) (Randall, J., dissenting) (“The lethal flaw of Indian tribal courts is that they are not independent autonomous bodies.”).
1 18. See, e.g., Cherokee Code, pt. II, ch. 7 (2005); Confederated Tribes of Warm Springs Tribal Code, ch. 200 (2001); Hoppa Valley Tribal Code, tit. 1 (2005); Jamestown S’Klallam Tribal Code, tit. 13 (2005); Mille Lacs Band Statutes, tit. 5 (2003); Sault Ste. Marie Tribe of Chippewa Indians Tribal Code, ch. 81 (2004); Te-Moak Tribe of Western Shoshone Ordinance No. 87-ORD-TM-03, tit. I, ch. 3 (2003).
119. See, e.g., Cherokee Code, pt. II, ch. 16, § 16-12.12 (2005); Hoppa Valley Tribal Code, tit. 31 (2005); Sault Ste. Marie Tribe of Chippewa Indians Tribal Code, ch. 42 (2004).
120. See, e.g., Tribal-State Compact for Regulation of Class III Gaming on the Mississippi Band of Choctaw Indians Reservation in Mississippi (1993), § 5; Agreement Between the Crow Indian Tribe and the State of Montana Concerning Class III Gaming (1998), ch. IV; Tribal State Gaming Compact Between the Kickapoo Tribe of Indians of The Kickapoo Reservation in Kansas and the State of Kansas (1995), § 14; Winnebago Tribe of Nebraska and the State of Iowa Gaming Compact (1998), § 20.
121. See, e.g., Cherokee Code, pt. II, ch. 7, § 7-2(d) (2005); Sault Ste. Marie Tribe of Chippewa Indians Tribal Code, ch. 81, § 81.105 (2004); Mille Lacs Band Statutes, tit. 5 (2003); Te-Moak Tribe of Western Shoshone Ordinance No. 87-ORD-TM-03, tit. I, ch. 3, § 1-3-9 and § 1-3-10 (2003). Choice of law issues can be critical to the outcome of a dispute regarding commercial transactions between a tribe or a tribal entity and a nonmember. On the one hand, some tribal commercial laws are relatively sophisticated and codify portions or all of the Uniform Commercial Code into their tribal laws. See, e.g., Mille Lacs Band Statutes, tit. 18; ch. 4, § 301 (2003) (adopting all of Minnesota’s Uniform Commercial Code and providing for exclusive jurisdiction in the tribal courts for all causes of action arising under that adopted Uniform Commercial Code); Cherokee Code, pt. II, ch. 16D, § 16D-1 (2005) (adopting Article 1 and Article 9 of the Uniform Commercial Code but only with respect to tribal gaming); Rosebud Sioux Tribe Law and Order Code, tit. 14 (2004) (codifying Articles 1, 2 and 9 of the Uniform Commercial Code). On the other hand, other tribal commercial laws address commercial transactions in a less sophisticated manner. See, e.g., Confederated Tribes of Warm Springs Tribal Code, chs. 700-730 (1971-2003); Poarch Band of Creek Indians Tribal Code (2004); Te-Moak Tribe of Western Shoshone Ordinances (2003).
122. See supra notes 22-31, 33-39, 83-86, 118-121 and accompanying text.
123. See Confederated Tribes of Warm Springs Tribal Code, ch. 30, § 30.001 (2001).
124. See National Indian Gaming Commission, Growth in Indian Gaming (undated).
125. See National Indian Gaming Commission, Tribal Gaming Revenues (undated).
126. See Philip N. Hogan, “Message From The Chairman,” Vol. II, No. 1, National Indian Gaming Commission Newsletter 2 (Spring 2007).
127. See Editorial, “Tribal Gaming Raises The Limit,” The Seattle Times, February 20, 2007, at B6.
128. See Lynda V. Maples, “Big Growth In Tribal Gambling In The Works,” The Seattle Times, February 18, 2007, at A1, A6.
