Kevin P. Nelson | February 14, 2018
If you are considering doing business on Tribal Land or with Tribal Entities, you need to understand that the law that applies to the business deal will likely not be Arizona law. This article addresses some important issues that arise when businesses and individuals do business with Indian Tribes or Tribal Entities on Tribal Lands. First, let’s understand what the terminology means.
As a preliminary matter, the phrase “Tribal Lands” refers to those lands over which an Indian Tribe has jurisdiction. In Arizona, the phrase “Indian Tribe” can be a reference to one of more than 20 federally recognized Indian Tribes located within the state. The phrase “Tribal Entity” generally refers to a business entity (such as a corporation, partnership or limited liability company) that is so closely related to an Indian Tribe that it possesses the same or similar legal protections that are afforded to the Indian Tribe.
Each Indian Tribe is a unique governmental entity with the authority to create and enforce its own laws and regulations. However, some individuals and businesses fail to realize the authority of such Indian Tribes until it is too late. With a slowing national economy and Indian Tribes focused on culturally appropriate economic development, it is likely that more businesses and individuals will start doing business on Tribal Lands.
How To Check For Sovereign Immunity
Indian Tribes have sovereign immunity. In other words, you cannot sue the Indian Tribe (or Tribal Entity)—even in the Tribe’s own courts—unless the Indian Tribe (or Tribal Entity) has waived its sovereign immunity. The waiver of sovereign immunity may be, and almost always is, limited to certain events or issues. Before entering into a contractual relationship with an Indian Tribe or Tribal Entity, it is important to know whether there has been proper waiver of sovereign immunity. Your attorney can find this information.
Moreover, even if an Indian Tribe or Tribal Entity has waived its sovereign immunity, and a business or individual is successful in obtaining a judgment, traditional methods of enforcing that judgment may be prohibited. For instance, an Arizona mechanic’s lien is not enforceable against property located on most Tribal Lands, and the ability to garnish a tribal member’s wages or an Indian Tribe’s or Tribal Entity’s bank account may be prohibited.
The requirements to waive sovereign immunity (“Waiver”) vary among Indian Tribes. For instance, some Indian Tribes may require a super-majority vote of its governing body before permitting a Waiver. An Indian Tribe’s Waiver, even if proper, may be overturned. And, even though a Tribal Entity may indicate that it has the authority to effectuate a Waiver, the Indian Tribe may ultimately prohibit such a Waiver.
How To Review a Native Tribe’s Governing Documents
The best resources to obtain an initial understanding of the Indian Tribe or Tribal Entity are its governing documents, as well as the Indian Tribe’s laws and regulations. A thorough review and understanding of such resources, prior to entering into a contractual relationship, will provide a better understanding of your rights and responsibilities. Governing documents may often be obtained on the internet, through sources like the Tribal Law Gateway, or by contacting the Indian Tribe or Tribal Entity.
It is also imperative that you evaluate whether the Indian Tribe or Tribal Entity has business licensing requirements, imposes taxes for doing business on Tribal Lands, or imposes hiring preferences (like the requirement to hire a Native American or Tribal member ahead of others). That information may be obtained by contacting the Indian Tribe or reviewing its governing documents. The failure to adequately evaluate these issues could result in civil liability, or worse, the ultimate termination of your project or services with limited, if any, recourse.
Anyone planning to do business on Tribal Lands should also consider cultural concerns (e.g., whether it is rude to stare someone in the eye during a conversation). There is no single resource from which you could understand those cultural concerns. It would serve you well to read about the history of the Indian Tribe you intend to do business with, travel to and spend time in the area within which you plan to do business, and speak with other successful business owners in the community.
Attorneys Who Specialize In Indian Law
Our Indian Law team has extensive experience assisting our clients (whether individuals or businesses) that do business on Indian Land.