Tribal self-determination in the age of scarcity

South Dakota Law Review, Fall, 2009 by Patrice H. Kunesh

(3) Federal courts, spurred by recent decisions of the United States Supreme Court, have been enforcing a requirement that a party exhaust its Tribal Court remedies for actions against the Tribe or Tribal members arising on the reservation before availing themselves of federal or state court. As with Tribal sovereign immunity, however, many potential business partners are reluctant to enter commercial transactions with the Tribe if they believe their remedy upon breach or default is limited to Tribal Court. Because of this reluctance, the Tribe finds it necessary and desirable from time to time to waive Tribal Court jurisdiction over particular commercial transactions.... (76)

C. WAIVER BY TRIBAL LAW

As illustrated in the commercial transaction law of the Sault Sainte Marie Tribe of Chippewa Indians, tribal laws and policies should be adopted in consonance with the values of the tribal community and in recognition of the Tribe's diverse governmental and commercial interests. For the most part, these tribal laws place the Tribe in a commanding role in the transaction, from establishing the terms of the waiver and the substantive and procedural laws applicable to the transaction or claim, to vesting contractual rights and prohibiting impairment of contracts. For example, the tribal law of the Seminole Tribe of Florida sets out a specific process for making a lawful, effective waiver of the Tribe's immunity from suit:

   The Seminole Tribe of Florida ... [is] immune from suit brought by
   any third-party in any state or federal court without the clear and
   unequivocal consent of the Seminole Tribe of Florida or the clear,
   express and unequivocal consent of the United States Congress. This
   immunity shall apply whether the Tribe ... is engaged in a private
   enterprise or governmental function....

      The consent of the Seminole Tribe of Florida to waive its
   immunity from suit in any state or federal court may only be
   accomplished through the clear, express and unequivocal consent of
   the Seminole Tribe of Florida pursuant to a resolution duly enacted
   by the Tribal Council of the Seminole Tribe of Florida sitting in
   legal session. Any such resolution purporting to waive sovereign
   immunity as to the Seminole Tribe of Florida ... shall specifically
   acknowledge that the Seminole Tribe of Florida is waving its
   sovereign immunity [on] a limited basis and describe the purpose
   and extent to which such waiver applies. The failure of the Tribal
   Council resolution to contain such language shall render it
   ineffective to constitute a waiver of tribal sovereign immunity.
   (77)

The Mashantucket Pequot Tribe's prescribed approach conditions subject matter jurisdiction of the tribal court on an express grant of jurisdiction and waiver of tribal immunity, and concurrent with the provision of broad civil jurisdiction over tort and employment actions, contracts and civil rights claims, the Tribe granted the court authority to provide specific relief and damages: