Checklist · Federal Indian Law

Contracting With a Tribal Entity: A Sovereign Immunity Checklist

25 U.S.C. § 81

Type: Checklist
Jurisdiction: National
Date: 2024-06-27
Topic: Federal Indian Law

Tribes are separate sovereigns, and tribal sovereign immunity bars suit on a contract — even a purely commercial, off-reservation contract — unless the tribe has waived immunity or Congress has abrogated it. That means the single most important term in any agreement with a tribe or tribal enterprise is not price, scope, or indemnity; it is the waiver clause, and a waiver is worthless unless it is express, unequivocal, properly scoped, and granted by the body the tribe's own constitution and code empower to grant it. This checklist walks a counterparty and its counsel through fifteen phases: identifying exactly who the contracting party is, running the arm-of-the-tribe analysis, negotiating and papering the waiver, confirming authority with the authorizing resolution, selecting a forum and an arbitral mechanism that will actually produce an enforceable judgment, addressing tribal court exhaustion, and understanding what assets a judgment can and cannot reach. It also covers federal approval requirements under 25 U.S.C. § 81 and the leasing statutes, security interests in Indian country, and TERO and licensing obligations. The law here is federal, but the operative rules on who may waive immunity are the tribe's own — there is no uniform national answer, and you must read the tribe's constitution, code, and charter. Used properly, this checklist turns a deal that is unenforceable on paper into one that is enforceable in fact.

Contracting With a Tribal Entity: A Sovereign Immunity Checklist

Federal Indian Law > Tribal Sovereignty | Published 27 June 2024 - Updated 10 January 2026 | UpLaw - uplaw.us

In an ordinary commercial deal, the remedy section is boilerplate. In a deal with a tribe, it is the deal. A contract with a sovereign that has not validly waived its immunity is a promise you cannot enforce — however elegant the rest of the drafting.

Keywords: tribal sovereign immunity, waiver of immunity, arm of the tribe, Kiowa, Bay Mills, C & L Enterprises, Santa Clara Pueblo, tribal council resolution, tribal exhaustion, 25 U.S.C. § 81, Secretarial approval, Indian country, IGRA, arbitration, trust land, TERO

How to use this checklist

Indian tribes are sovereigns that predate the Constitution. They are not subdivisions of the states, and tribal law is not a species of state law. One consequence dominates commercial practice: a tribe possesses common-law sovereign immunity from suit, and that immunity is not limited to governmental acts or to conduct inside Indian country. The Supreme Court said so in Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751 (1998), and — invited to overrule Kiowa sixteen years later — declined, in Michigan v. Bay Mills Indian Community, 572 U.S. 782 (2014). Immunity yields only where Congress has abrogated it or the tribe has unequivocally waived it. Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978).

For the doctrinal architecture behind these rules — the trust relationship, Montana, Public Law 280, ICRA, IGRA — read Federal Indian Law: A Comprehensive Guide to Tribal Sovereignty and Jurisdiction alongside this checklist, and use The Federal Indian Law Toolkit to find the rest of the library on the subject. What follows is the transactional discipline: fifteen phases, run in order, before you sign.

Our running example: Stonebrook Constructors, Inc., a mid-size general contractor, has been selected to build a 180-room hotel tower adjoining a casino operated by the Willow Creek Gaming Enterprise, a wholly owned instrumentality of the (fictional) Willow Creek Band. The contract is worth $64 million. Stonebrook's in-house counsel treats it like any other construction deal. That mistake will run through this document.

Phase 1 — Identify the counterparty precisely

[ ] Obtain the exact legal name of the entity that will sign, in writing, from the entity itself.
[ ] Determine its legal character: the tribe itself; a federally chartered corporation under Section 17 of the Indian Reorganization Act, 25 U.S.C. § 5124 (formerly § 477); an entity chartered under the tribe's own corporate code; a state-law corporation or LLC owned by the tribe; or a wholly separate business that merely does business on the reservation.
[ ] Get the organic documents: tribal constitution, the enterprise's charter or articles, its bylaws, and the tribal code provisions that created it.
[ ] Identify whether a Section 17 charter contains a "sue and be sued" clause — and read its precise terms and limits.
[ ] Confirm whether the signing entity, and not merely its parent, is the party bound.

Why it matters, and the traps. Immunity is entity-specific. The tribe itself is immune. A Section 17 federally chartered corporation is generally treated as sharing the tribe's immunity, though its charter may contain a "sue and be sued" clause that operates as a limited waiver — the clause's own wording governs, and many are narrower than they look. A corporation the tribe forms under state law is ordinarily a creature of state law and typically does not carry tribal immunity, which is exactly why some deals are deliberately structured that way. And an entity chartered under tribal law may or may not be an arm of the tribe. Stonebrook's counsel assumed "the casino" was the counterparty; the signature block actually named the Enterprise, whose charter said nothing about suit. Diligence discipline here is no different in kind from what you would apply in any acquisition — see Conducting Merger and Acquisition Due Diligence: A Practical Checklist — but the question you are answering is unique: is this party suable at all?

Phase 2 — Run the arm-of-the-tribe analysis

[ ] Ask: under what law was the entity created, and for what purpose?
[ ] Ask: does the tribe control its governance — appointment and removal of directors, budget, dissolution?
[ ] Ask: does the tribe intend the entity to share immunity, as shown in the charter, code, or resolutions?
[ ] Ask: does the entity's activity further tribal self-governance, economic development, or cultural purposes?
[ ] Ask: what is the financial relationship — do revenues flow to the tribe, and would a judgment reach the tribal treasury?
[ ] Document your conclusion in a memo, and assume the entity is immune unless you can prove otherwise.

Why it matters, and the traps. Courts extend tribal immunity to entities that function as "arms of the tribe," applying multi-factor tests. The Tenth Circuit's formulation in Breakthrough Management Group, Inc. v. Chukchansi Gold Casino & Resort, 629 F.3d 1173 (10th Cir. 2010), is the most-cited, and the Ninth Circuit adopted essentially the same factors in White v. University of California (9th Cir. 2014). State high courts have applied their own versions — California's, in People v. Miami Nation Enterprises (Cal. 2016), rejected immunity for online lenders whose tribal connection was largely formal. The trap runs both ways. A counterparty who assumes an "LLC" is just an LLC signs an unenforceable contract; a counterparty who assumes every tribal affiliate is immune gives away leverage it never needed to give. Do the analysis; do not guess.

Phase 3 — Internalize the default rule

[ ] Accept as your baseline: absent waiver or congressional abrogation, the entity cannot be sued anywhere — federal court, state court, or arbitration.
[ ] Note that immunity applies to off-reservation commercial conduct (Kiowa; Bay Mills).
[ ] Note that immunity is immunity from suit, not merely from liability — a substantive obligation can exist with no judicial remedy. Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505 (1991).
[ ] Note the individual-capacity carve-out: immunity does not shield a tribal employee sued personally for their own tortious conduct. Lewis v. Clarke, 581 U.S. 155 (2017).
[ ] Do not rely on "commercial activity" or "fair dealing" arguments; the Supreme Court has repeatedly rejected them.

Why it matters, and the traps. Bay Mills is the case to quote to a client who thinks a court will do equity. Michigan argued that immunity should not cover a casino operated off Indian lands in violation of a compact. The Court agreed the tribe's conduct might well be unlawful — and held the suit barred anyway, telling Michigan to take its complaint to Congress or to the bargaining table. Immunity is a jurisdictional bar that operates before the merits. If you would like the contrast with suits against federal and state governments, where statutory waivers like the Federal Tort Claims Act and the Tucker Act supply the remedy, see Suing the Government: A Guide to Damages in Administrative and Public-Entity Litigation. Tribes have no such general statute. The waiver you negotiate is the statute.

Phase 4 — Obtain an express, unequivocal, written waiver

[ ] Insist on a standalone, captioned section titled "Limited Waiver of Sovereign Immunity."
[ ] Use the words: the Enterprise "expressly and irrevocably waives its sovereign immunity from suit" for the purposes stated.
[ ] Identify the beneficiary of the waiver by name, and include successors and assigns if you may assign.
[ ] Identify the claims covered (breach, indemnity, warranty, enforcement of an award, injunctive relief).
[ ] Identify the forums in which immunity is waived.
[ ] Provide that the waiver survives termination, expiration, and rescission of the agreement.
[ ] Never accept an implied waiver, a "consent to jurisdiction" clause standing alone, or a recital that the parties "intend" the contract to be enforceable.

Why it matters, and the traps. Santa Clara Pueblo holds that a waiver "cannot be implied but must be unequivocally expressed." Courts construe waivers narrowly and resolve ambiguity in favor of immunity. A clause that says the parties submit to the jurisdiction of a named court, without waiving immunity, is a nullity: jurisdiction and immunity are different objections, and consenting to one does not dispose of the other. Conversely, C & L Enterprises, Inc. v. Citizen Band Potawatomi Indian Tribe, 532 U.S. 411 (2001), shows a waiver can be found in the structure of what the tribe agreed to: a standard-form construction contract with an AAA arbitration clause, an agreement that the award could be entered as a judgment "in any court having jurisdiction," and an Oklahoma choice-of-law clause together clearly waived immunity for a suit to enforce the award. That is the model — but do not rely on inference when you can get the words. Draft it plainly; the general drafting hygiene in The Commercial Contracts Toolkit: Drafting, Reviewing, and Enforcing Business Agreements applies, but this clause deserves its own negotiation.

Phase 5 — Confirm who has the power to waive

[ ] Read the tribal constitution: which body holds legislative power, and is waiver of immunity reserved to it?
[ ] Read the tribal code: is there a sovereign immunity ordinance specifying the form and manner of waiver?
[ ] Read the enterprise charter: does it authorize the board to waive the enterprise's immunity, and does that reach the tribe's?
[ ] Determine whether a general manager, CEO, or project director has waiver authority — usually they do not.
[ ] Determine whether any Secretarial or BIA approval is a condition of a valid waiver.
[ ] Ask tribal counsel, in writing, to identify the authority relied upon.

Why it matters, and the traps. This is where deals die. A signature is not authority. If the tribe's constitution vests waiver power in the Tribal Council and the contract was signed only by the Enterprise's CEO, the "waiver" binds no one — and the counterparty discovers this after the breach, in a motion to dismiss it cannot beat. There is no uniform rule across tribes: each nation's constitution, code, and charter set their own requirements, and some impose formalities (a specific vote threshold, a public reading, a written finding of benefit to the tribe) that an outsider would never anticipate. Read the tribe's own law. Stonebrook did not. Its waiver clause was beautiful, and its signatory had no power to grant it.

Phase 6 — Get the authorizing resolution and verify it on its own terms

[ ] Obtain a certified copy of the Tribal Council resolution approving the contract and the waiver.
[ ] Confirm the resolution's recitals match the executed contract (correct parties, correct title, correct date, correct dollar amount).
[ ] Confirm a quorum was present and the vote satisfied the required threshold.
[ ] Confirm the resolution attaches or incorporates the contract by reference, or expressly approves the waiver language.
[ ] Confirm the resolution is signed by the officers the code requires and bears the tribal seal, if used.
[ ] Obtain an opinion of tribal counsel: the entity is duly organized, the officer is authorized, the waiver is valid and enforceable under tribal law, and no further approval is required.
[ ] Confirm the resolution has not been rescinded before closing — and that the tribe's law does not permit unilateral rescission of the waiver.

Why it matters, and the traps. A resolution that approves "the construction contract" but never mentions immunity may not approve the waiver; a resolution that approves an earlier draft may not approve the executed one. Ask for the certified resolution before you sign, read it against the final document word by word, and treat any mismatch as a closing condition. The tribal-counsel opinion is not a formality: it is the one document that puts a professional on record as to the tribe's internal law, which no outside lawyer can reliably read alone. The board-authority discipline is analogous to what any dealmaker does with corporate resolutions — see Corporate Governance and Fiduciary Duties: A Comprehensive Guide for Directors and Officers — but with the sovereign, an authority defect is not curable by ratification you can compel.

Phase 7 — Scope the waiver

[ ] State whether the waiver is limited to claims arising out of this agreement (it should be).
[ ] State whether it covers the tribe as well as the enterprise, if you need both.
[ ] State the remedies available: damages, specific performance, declaratory relief, injunctive relief, attorney's fees.
[ ] Address whether consequential and punitive damages are waived or preserved.
[ ] Address any damages cap or "recourse limited to specified assets" limitation — and price the deal accordingly.
[ ] Confirm the waiver extends to enforcement, execution, and collection, not merely to the filing of suit.

Why it matters, and the traps. Tribes routinely — and legitimately — negotiate limited waivers: capped at the contract price, limited to enterprise revenues, excluding punitive damages. That is a commercial term, not an insult; treat it as one. What you must not accept is a waiver that permits you to obtain a judgment but not to enforce it. Immunity can be asserted separately against execution. If the clause says "the Enterprise waives immunity from suit" and stops, you may win a lawsuit and collect nothing. Write "immunity from suit, from arbitration, from enforcement of any award or judgment, and from execution against the assets identified in Section X." For the damages framework you are protecting, see Contract Damages: How Courts Make the Injured Party Whole.

Phase 8 — Consent to a forum, and to arbitration

[ ] Name the forum: a specified federal district court, a specified state court, or both, with a fallback if the first lacks jurisdiction.
[ ] Remember there is no automatic federal-question jurisdiction over a contract dispute with a tribe; plead a real basis (diversity, or a federal statute) or provide a state-court fallback.
[ ] Add an arbitration clause: named administrator and rules (AAA, JAMS), seat, number of arbitrators, and governing arbitration law.
[ ] State expressly that the Federal Arbitration Act, 9 U.S.C. §§ 1–16, governs the agreement to arbitrate.
[ ] Provide that the arbitrator, not a tribal court, decides arbitrability.
[ ] Consent to service of process, and name an agent.

Why it matters, and the traps. C & L Enterprises validates arbitration as the workhorse mechanism for tribal commercial deals: the tribe consented to AAA arbitration and to judgment on the award, and the Court held immunity waived for that purpose. Arbitration also avoids the tribal-court/state-court jurisdictional fight entirely. But an arbitration clause drafted by reflex will not do the job here. Draft it deliberately, using Drafting an Arbitration Clause: A Practical Checklist, and choose the forum with open eyes using Choosing a Dispute-Resolution Forum: Litigation, Arbitration, and Mediation Compared and Arbitration and ADR: A Toolkit for Choosing a Forum, Drafting Clauses, and Running a Case. The classic error is naming a federal court with no jurisdictional hook: a $64 million breach claim between an Illinois contractor and a tribal enterprise raises no federal question, and diversity jurisdiction over a tribe (which is not a citizen of any state) is doubtful. Stonebrook's clause named "the United States District Court for the district in which the Project is located," full stop. There was no way in.

Phase 9 — Waive tribal court exhaustion expressly

[ ] Add: "The parties waive any requirement of exhaustion of tribal court or tribal administrative remedies."
[ ] If the tribe will not agree, budget the time and cost of an exhaustion round in tribal court before any federal filing.
[ ] Identify the tribal court: does it exist, is it functioning, what are its rules, and is there an appellate court?
[ ] Consider whether tribal court is actually a bad forum for you — often it is a competent and cost-effective one.

Why it matters, and the traps. Under National Farmers Union Insurance Cos. v. Crow Tribe, 471 U.S. 845 (1985), and Iowa Mutual Insurance Co. v. LaPlante, 480 U.S. 9 (1987), a federal court will ordinarily abstain until the tribal court has had the first opportunity to determine its own jurisdiction — in federal-question and diversity cases alike. Exhaustion is not required where tribal jurisdiction is plainly lacking (Strate v. A-1 Contractors, 520 U.S. 438 (1997)), but litigating that takes a year. Meanwhile, whether a tribal court has civil jurisdiction over a nonmember at all runs through Montana v. United States, 450 U.S. 544 (1981), whose first exception — consensual commercial relationships with the tribe — will often be satisfied by the very contract you signed. See Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316 (2008), and Nevada v. Hicks, 533 U.S. 353 (2001), for how narrowly the exceptions are read. The practical point: decide the forum in the contract, or a court will decide it for you, slowly.

Phase 10 — Consent to award enforcement and entry of judgment

[ ] Provide that the arbitral award is final and binding.
[ ] Provide that judgment on the award may be entered in the courts named in Phase 8.
[ ] Waive immunity expressly for the confirmation proceeding and for enforcement of the resulting judgment.
[ ] Waive any argument that the award may be reviewed de novo by a tribal court.
[ ] Confirm the tribal code does not require tribal-court confirmation as a precondition to enforcement.

Why it matters, and the traps. C & L Enterprises turned on precisely this: the contract said judgment could be entered "in any court having jurisdiction." An award you cannot reduce to judgment is a very expensive advisory opinion. Once you have the award, the mechanics are the ordinary ones — see Confirming or Vacating an Arbitration Award: A Practical Checklist and, for the standards of review and why awards stick, Damages in Arbitration: What Awards Look Like and Why They Are Hard to Undo.

Phase 11 — Choose the governing law deliberately

[ ] Select the substantive law: a named state's law, tribal law, or federal law where applicable.
[ ] If you pick state law, add that it applies "without regard to conflicts principles" and, if you want it, "to the exclusion of tribal law."
[ ] If tribal law will apply in whole or part, obtain and read the tribal commercial code — do not assume it mirrors the UCC.
[ ] Confirm the tribe has not enacted a law that voids or limits waivers of immunity.
[ ] Understand that choice of law does not choose the forum, and choice of forum does not waive immunity — three separate clauses, three separate jobs.

Why it matters, and the traps. In C & L Enterprises, the Oklahoma choice-of-law clause helped establish the waiver's clarity: the tribe had agreed its contract would be governed by state law and its awards enforceable under state procedure. But a bare "governed by the laws of the State of X" clause does not waive immunity, and never has. Meanwhile, "governed by the laws of the Tribe" is a real choice with real consequences: some tribal codes adopt the UCC by reference, some have bespoke commercial codes, and some are silent on questions your deal depends on. If you agree to tribal law, read it first.

Phase 12 — Map the assets a judgment can actually reach

[ ] Identify the assets subject to execution and name them in the waiver.
[ ] Understand that land held in trust by the United States is generally not alienable or encumberable without federal approval, and is generally beyond execution.
[ ] Understand that gaming revenues are subject to the use restrictions of the Indian Gaming Regulatory Act, 25 U.S.C. § 2710(b)(2)(B), and that a tribe may resist execution against them.
[ ] Ask for a limited-recourse asset pool: an escrow, a segregated revenue account, a lockbox, or a payment-and-performance bond.
[ ] Consider a corporate guaranty from a non-immune affiliate, a letter of credit, or a surety bond as the real credit support.
[ ] Note Upper Skagit Indian Tribe v. Lundgren, 584 U.S. 554 (2018): the Supreme Court declined to endorse an in rem exception to tribal immunity and remanded on the immovable-property question — do not assume an in rem workaround.

Why it matters, and the traps. This is the phase experienced counsel care about most. A waiver plus an arbitration clause plus a confirmed judgment can still yield zero if every asset you can find is trust land or restricted revenue. The answer is not to fight sovereignty; it is to underwrite the deal to the collateral you can actually reach. On a construction project, that usually means a payment bond and a funded construction escrow — the same instincts that govern any development transaction (The Real Estate Transactions Toolkit) and any project-financed build (Developing a Renewable Energy Project: A Practical Checklist).

Phase 13 — Perfect and enforce security interests in Indian country

[ ] Determine which law governs perfection: the state's UCC Article 9, a tribal secured transactions code, or both.
[ ] Check whether the tribe has adopted a secured transactions act (many follow the Uniform Law Commission's Model Tribal Secured Transactions Act) and whether it maintains a tribal filing office.
[ ] File defensively: in the state office and in the tribal filing system where one exists.
[ ] Confirm the waiver expressly permits repossession, foreclosure, and self-help remedies, and identifies who may enter tribal land to do so.
[ ] Confirm whether federal approval is needed for any lien on trust land (25 U.S.C. §§ 81, 177).
[ ] Get an opinion on the enforceability of the security interest under tribal law.

Why it matters, and the traps. A perfected security interest is worth what you can do with it. If enforcement requires entering the reservation to seize collateral, and the tribe has not consented to that, you own a paper lien. Say so in the contract: consent to repossession, consent to entry, and a waiver of immunity for replevin and foreclosure actions in the named forum.

Phase 14 — Clear the federal approvals

[ ] Screen the agreement against 25 U.S.C. § 81: does it encumber Indian lands for seven or more years? If so, Secretarial approval is required, and an unapproved agreement is not valid.
[ ] Note that § 81 directs the Secretary to refuse approval where the agreement lacks a remedies provision and either discloses the tribe's right to assert immunity or expressly waives it — i.e., federal law itself demands you confront the issue.
[ ] Screen leases of tribal trust land under 25 U.S.C. § 415 and 25 C.F.R. Part 162; check whether the tribe has HEARTH Act leasing regulations approved by the Secretary, which allow tribal approval without individual BIA sign-off.
[ ] Screen gaming-related agreements: a "management contract" requires approval by the Chairman of the National Indian Gaming Commission under 25 U.S.C. § 2711, and an unapproved management contract is void.
[ ] Screen for NEPA and other federal environmental review triggered by federal approval or federal land — and run the site diligence in Phase I Environmental Site Assessment and All Appropriate Inquiries: A Practical Checklist.
[ ] Build approvals into the closing conditions and the schedule, not the wish list.

Why it matters, and the traps. Section 81 and the NIGC management-contract rules are validity statutes: get them wrong and the contract is void, not merely breached. Consultants who take a percentage of gaming revenue and exercise operational control have repeatedly discovered that their "consulting agreement" was an unapproved management contract, and therefore unenforceable in full. Federal approvals also take time; a BIA or NIGC review measured in months will break a schedule built on state-court assumptions.

Phase 15 — Employment, TERO, and licensing

[ ] Determine whether the tribe has a Tribal Employment Rights Ordinance (TERO): hiring preferences, a TERO fee (often a percentage of the contract), and a compliance plan.
[ ] Determine licensing: contractor licensing, vendor licensing, and — for gaming-related vendors — background investigation and licensing by the Tribal Gaming Commission.
[ ] Price the TERO fee and the preference obligations into the bid, and confirm they are not a change-order fight later.
[ ] Note that Title VII excludes Indian tribes from the definition of "employer," 42 U.S.C. § 2000e(b), and permits Indian preference for businesses on or near a reservation, 42 U.S.C. § 2000e-2(i); the ADA contains a parallel exclusion at 42 U.S.C. § 12111(5)(B)(i). Tribal employment codes may supply their own remedies.
[ ] Note that the applicability of the NLRA and some other federal labor statutes to tribal enterprises is contested and circuit-dependent (see the D.C. Circuit's San Manuel Indian Bingo & Casino v. NLRB (2007)); get current advice.
[ ] Confirm your workforce classification separately — see Classifying Workers: Employee or Independent Contractor — A Practical Checklist.

Why it matters, and the traps. Indian preference is not race discrimination in the constitutional sense; Morton v. Mancari, 417 U.S. 535 (1974), treats it as a political classification tied to the government-to-government relationship. Contractors who bid the job as if standard federal EEO rules applied, and then encounter a 5% TERO fee and a mandatory-referral hiring hall, have mispriced the work. Read the ordinance before the bid, not after the award.

Common mistakes to avoid

Treating a signature as authority. The single most common fatal error. Get the resolution.
Confusing consent to jurisdiction with waiver of immunity. They are different objections. You need both clauses.
Waiving immunity from suit but not from enforcement. A judgment you cannot execute is not a remedy.
Naming a federal court with no jurisdictional basis. Plead a hook or provide a state-court fallback.
Assuming an "LLC" or "Inc." means no immunity. Run the arm-of-the-tribe factors.
Assuming every tribal affiliate is immune. A state-chartered tribal subsidiary usually is not — and you may be giving away leverage.
Ignoring 25 U.S.C. § 81 and the NIGC management-contract rules. These are validity statutes; the sanction is voidness.
Forgetting exhaustion. Without an express waiver, expect a detour through tribal court.
Underwriting to assets you cannot reach. Trust land and restricted gaming revenue may be out of bounds. Get a bond, an escrow, or a guaranty.
Copying a waiver clause from another tribe's contract. Each nation's law differs. There is no form.
Letting the waiver die with the contract. Say it survives termination and expiration.
Negotiating sovereignty as an obstacle. It is a feature of the counterparty's legal status and a legitimate interest. Deals close when the counterparty proposes a limited waiver that protects the tribe and gives you a real remedy.

Stonebrook's ending. Eighteen months in, with $22 million in unpaid change orders, Stonebrook filed in federal court. The Enterprise moved to dismiss. The waiver had been signed by the Enterprise's CEO; the Willow Creek constitution reserved waiver of immunity to the Tribal Council by two-thirds vote; no resolution existed. The forum clause named a federal court with no jurisdictional basis over the dispute. The case was dismissed. Stonebrook's recovery came, eventually, from a negotiated settlement it entered from a position of no leverage at all — the fee it saved by not retaining Indian-law counsel at the front end was roughly 0.03% of what the omission cost.

The consolidated tribal contracting checklist

[ ] Exact legal name and legal character of the counterparty confirmed.
[ ] Organic documents obtained: constitution, code, charter, bylaws.
[ ] Arm-of-the-tribe analysis run and memorialized.
[ ] Baseline understood: immunity bars suit, including off-reservation commercial suits.
[ ] Express, unequivocal, written limited waiver of sovereign immunity drafted.
[ ] Waiver beneficiaries, claims, remedies, and any cap specified.
[ ] Waiver covers suit, arbitration, confirmation, judgment, and execution.
[ ] Waiver survives termination and is irrevocable.
[ ] Waiver authority located in the tribe's own law.
[ ] Certified authorizing resolution obtained, checked against the executed document.
[ ] Opinion of tribal counsel obtained.
[ ] Forum named, with a jurisdictional hook and a fallback.
[ ] Arbitration clause: administrator, rules, seat, arbitrability, FAA.
[ ] Tribal exhaustion expressly waived (or planned for).
[ ] Judgment-on-award consent included.
[ ] Governing law selected deliberately; tribal code read if it applies.
[ ] Executable assets identified; escrow, bond, letter of credit, or guaranty in place.
[ ] Security interests perfected under state and tribal filing systems; enforcement consented to.
[ ] 25 U.S.C. § 81 screening completed; Secretarial approval obtained if required.
[ ] Lease approvals (25 U.S.C. § 415 / HEARTH) and NIGC management-contract approval screened.
[ ] Environmental and NEPA triggers identified.
[ ] TERO, licensing, and gaming-vendor background requirements priced and scheduled.
[ ] Insurance in place — and check whether the tribe's policy contains an immunity-preserving endorsement.

Primary Authority

Cases

Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) — tribal immunity may be waived only by unequivocal expression; ICRA does not authorize suits against the tribe.
Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751 (1998) — immunity applies to off-reservation commercial conduct.
Michigan v. Bay Mills Indian Community, 572 U.S. 782 (2014) — Kiowa reaffirmed; only Congress may abrogate.
C & L Enterprises, Inc. v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 532 U.S. 411 (2001) — an arbitration clause plus judgment-on-award and state choice-of-law provisions clearly waived immunity.
Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505 (1991) — immunity from suit is distinct from substantive liability.
Lewis v. Clarke, 581 U.S. 155 (2017) — no immunity for a tribal employee sued in an individual capacity.
Upper Skagit Indian Tribe v. Lundgren, 584 U.S. 554 (2018) — no established in rem exception; question remanded.
Montana v. United States, 450 U.S. 544 (1981) — tribal civil authority over nonmembers; consensual-relationship and health-and-welfare exceptions.
National Farmers Union Insurance Cos. v. Crow Tribe, 471 U.S. 845 (1985); Iowa Mutual Insurance Co. v. LaPlante, 480 U.S. 9 (1987) — tribal exhaustion.
Strate v. A-1 Contractors, 520 U.S. 438 (1997); Nevada v. Hicks, 533 U.S. 353 (2001); Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316 (2008) — limits on tribal jurisdiction over nonmembers.
Morton v. Mancari, 417 U.S. 535 (1974) — Indian preference as a political, not racial, classification.
Breakthrough Management Group, Inc. v. Chukchansi Gold Casino & Resort, 629 F.3d 1173 (10th Cir. 2010) — the leading arm-of-the-tribe factors.

Statutes and regulations

25 U.S.C. § 81 — approval of agreements encumbering Indian lands for seven or more years; implementing rules at 25 C.F.R. Part 84.
25 U.S.C. § 177 — the Nonintercourse Act; restraints on alienation of Indian land.
25 U.S.C. § 415 and 25 C.F.R. Part 162 — leases of trust and restricted land; HEARTH Act tribal leasing regulations.
25 U.S.C. §§ 5123, 5124 (formerly §§ 476, 477) — Indian Reorganization Act §§ 16 and 17: tribal constitutions and federally chartered corporations.
Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701–2721 — including § 2710(b)(2)(B) (net revenue uses), § 2710(d) (compacts), and § 2711 (NIGC approval of management contracts).
18 U.S.C. § 1151 — definition of "Indian country."
Federal Arbitration Act, 9 U.S.C. §§ 1–16.
42 U.S.C. § 2000e(b), § 2000e-2(i); 42 U.S.C. § 12111(5)(B)(i) — tribal exclusions and Indian preference under Title VII and the ADA.

Secondary sources

Cohen's Handbook of Federal Indian Law (the standard treatise; consult the current edition).
Uniform Law Commission, Model Tribal Secured Transactions Act.
Restatement (Second) of Contracts (for the ordinary contract-law overlay); Corbin on Contracts.

Accuracy note — read this before you rely on anything above. Federally recognized tribes are separate sovereigns. Tribal law is not a branch, subset, or local variant of state law; it is the law of another government, and a tribe's own constitution, code, and charter are the controlling authority on the question you actually care about — who may waive this tribe's immunity, in what form, by what vote. There is no uniform national answer, no model waiver clause, and no substitute for reading the tribe's law, obtaining the certified authorizing resolution, and getting an opinion of tribal counsel.

The federal cases and statutes collected above are national law, but they move: the arm-of-the-tribe factors differ by circuit and by state supreme court; the reach of federal labor and employment statutes to tribal enterprises is unsettled and circuit-dependent; BIA and NIGC regulations and HEARTH Act approvals change; and IGRA compacting practice varies state by state. Confirm the current text of every statute and regulation and the current state of the case law in the relevant circuit before relying on it. Nothing here is a substitute for Indian-law counsel engaged at the front end of the deal.

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This checklist is general legal information from UpLaw (uplaw.us), not legal advice, and does not create an attorney-client relationship. Tribal law is the law of a separate sovereign and differs from tribe to tribe; federal Indian law changes over time. Verify current requirements, read the tribe's own constitution and code, and consult qualified counsel — including tribal counsel — before acting.