by Jonathan T. Howe, Esq. | June 01, 2006

Native American gaming resorts, where tribes have been granted the right by the federal government to maintain casinos, are popular destinations for meetings and events. But when booking meetings at a Native American gaming venue, bear in mind that contracts and relationships are reviewed and enforced according to the operating tribe’s law, unless you take protective measures.

Contract issues
When working with Native American properties, standard meeting contracts can be used, as long as they address legal issues specific to the tribe.

In preparing these documents, keep in mind the old concept of “the king can do no wrong,” or sovereign immunity. Under the sovereign immunity doctrine, the ruling body is free from liability unless it specifically agrees to assume a degree of legal responsibility, which can be limited. This means that when you are dealing with Native American-run properties, the tribe is considered the ruling body.

To best protect yourself and your organization, consider adding the waiver of sovereign immunity to your contract. That way, for example, if an attendee slips or falls at the property during the event, or if there is a failure by the property to meet specific contract terms, there is still a remedy that will allow the individual or the organization to defend or maintain a lawsuit with the tribe. Without this waiver, you might not have any remedy available except to the extent tribal law will allow a lawsuit.

Also, bear in mind that the U.S. Supreme Court, in addressing the issue of sovereign immunity and dispute resolution in 2001, said the specific language of the contract will prevail.

Dispute resolution
Another issue to address in the contract is where a lawsuit or dispute will be determined. Should the case be decided in a federal or state court, in a tribal court, or should it be handled by an alternative dispute resolution device such as binding mediation or arbitration?

Be sure the contract includes a very detailed choice of forum and law clause, otherwise you might be forced to exhaust all remedies with the tribal court before the case can be heard elsewhere.

Because a tribe is not considered a person for federal jurisdictional issues, cases involving federal or constitutional matters, such as discrimination, cannot be heard in a federal court.

In some cases, such as a minor contract dispute, resolving the issue in a tribal court can be faster and less expensive than other means of dispute resolution.

Other points
Another contract issue to hammer out is who has the authority to enter into an agreement on behalf of the property/tribal council. The tribal entity should have a constitution or equivalent document that authorizes or sets forth the persons who have authority to make decisions for the tribe. Make sure you know who is responsible.

For some more complicated matters, such as a major breach of contract, it might be necessary to get contract approval from the Bureau of Indian Affairs.

Another contract “must” is the ability to have access to the reservation property. Otherwise, you and your attendees might be viewed as trespassers.

Today, in some respects, dealing with tribal law is simpler than doing business as usual. Tribal law may give planners more flexibility in contract and other liability matters, as well as quicker dispute resolution. The key is knowing what the rules are, how they will be enforced and who will enforce them.