Commercial contracting with Native American tribes presents a number of complicated and unsettled questions of federal and state law. The increasing visibility of tribal entities in California real estate and business transactions highlights the need for clarity and predictability, both for the tribes and for persons contracting with them. In just the last year, two published California decisions have provided some additional direction for the creation of enforceable sovereign immunity waivers. But the developing case law does not always provide clear guidance, and in important areas, such as jurisdiction, dispute resolution, and exercise of remedies, uncertainty reigns. This article examines recent developments pertaining to contracts with Native American tribes, and briefly identifies some open questions –– with a particular emphasis on loan contracts encumbering Indian lands –– that remain as a consequence of contracting with non-private parties.
Tribal rights to Indian lands are the exclusive province of federal law. Exclusive federal authority over Indian affairs is based on three provisions of the United States Constitution: the Indian commerce clause, which gives Congress the exclusive power to control Indian commerce; the treaty clause; and the supremacy clause, which, together with extensive congressional legislation on Indian affairs, has broadly preempted state law...
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