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Tribal Courts and Alternative Dispute Resolution
Mediated Settlements and Arbitration Awards in Tribal Court
By Pat Sekaquaptewa
Picture one of your clients walking through the door with a signed contract with an American Indian tribe or sub-entity. The contract contains a mediation or arbitration clause that appears to require tribal court enforcement. What law and process might you expect going forward?

Today there are more than 250 tribal courts exercising adjudicatory jurisdiction over Indian reservation-based transactions and tribal members. The civil powers of tribal courts extend to "consensual relations" with nonmembers and non-Indians, including contractual relations. Such consensual relations would include a tribal contract that contains a mediation or arbitration clause subject to enforcement in the tribal court. In most cases it may be difficult to ascertain the legal and procedural terrain going forward. Tribal statutes, rules, and common law are not readily accessible via the usual means, and in some cases custom and tradition may apply—although this is not the case in arm's-length dealings with nonmembers who insist upon the application of state or uniform laws in their contract. In any case, the tribal court process is likely to be unclear to the uninitiated. This article is intended to illuminate the process as an aid to lawyers new to the tribal courts.

Tribal Sovereign Immunity
One thing is certain: the tribal party will initially move to dismiss any enforcement action by claiming that the tribal sovereign is immune from suit. The U.S. federal government, as trustee for the tribes, supports the concept of tribal sovereign immunity in federal litigation, and the concept has applied to tribal activities both on and off the reservation, to contracts involving commercial purposes as well as to contracts involving governmental purposes, and in cases involving both tribes and sub-entities of tribes. The concept of tribal sovereign immunity also has been extended to bar claims for declaratory and injunctive relief, as well as claims for damages. The U.S. Supreme Court has held that Congress can abrogate a tribe's sovereign immunity but such an abrogation, typically contained in a statute, must be express and unequivocal. Tribes may also waive their sovereign immunity in tribal statutes, in tribal agency policy and procedures manuals, in tribal contracts, or other instruments. The U.S. Supreme Court in C&L Enters. v. Citizen Band of Potawatomi Indian Tribe of Okla., 532 U.S. 411 (2001), for example, held that a tribe that entered into a contract with an arbitration clause waived its immunity from suit. Tribal courts are unlikely to find that general waivers include suits to recover attorney fees and costs absent specific tribal statutory or council-authorized contract waivers for this purpose.

There are two means by which the nontribal party may get past the tribal sovereign immunity hurdle. First, although the "express and unequivocal" requirement is always asserted as a bar to a claim of sovereign immunity based on a close reading of the tribal statute, tribal judges do not have to follow the federal common law to find waiver. Consequently a tribal judge may be persuaded to find waiver where fair dealings or fair process cannot be achieved otherwise, for example, in effecting tribal employee grievance procedures. A number of tribes have also incorporated the provisions of the Indian Civil Rights Act, 25 U.S.C 1301 et seq., into their statutory law, which may be interpreted as a waiver to ensure procedural due process. Tribal judges are also likely to consider well-argued claims that custom and tradition require fair dealings and fair process.

Second, the U.S. Supreme Court in Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978), has held that there is an exception to the tribal sovereign immunity bar to litigation where suits are properly framed against a tribal official. However, relief is generally limited in tribal court to where a tribal official is sued for acting beyond the scope of his or her authority and to declaratory and injunctive relief. A tribal court order requiring continuing or prospective payments may be argued to qualify as "injunctive relief" as opposed to prohibited "damages" (for example, where the tribal council has preauthorized payment of tribal employee payroll).

What Law Is Applicable?
While there are a growing number of tribal statutes and court rules governing the enforcement of mediation settlements and/or arbitration awards, it is not the norm. Tribes that do have applicable provisions tend to locate them in their tribal court or judicial code, court rules, or in a stand-alone peacemaker, traditional dispute resolution, or alternative dispute resolution code. They may also appear in employment-related codes. Most alternative dispute resolution schemes are court-annexed with varying degrees of coercive mechanisms backing the traditional or hybrid mediation systems or Western-styled arbitration. Tribal schemes tend not to be as developed as their state counterparts, which may include mechanisms such as the shifting of attorney fees and costs, contempt, denial of a trial de novo, and/or dismissal of a lawsuit. Tribal schemes tend to authorize their tribal courts to enforce settlements or awards, either by equating them with a court order or by requiring a tribal judge to incorporate them into a judgment. One tribe subjected awards to judicial review of the arbitrator's factual findings requiring a showing of substantial evidence and de novo review for his law findings, but this does not appear to have been followed by other tribes.

Where tribal statutory provisions do set out a specific process, it should be respected and followed with the same diligence afforded state or federal process. Nonmember and non-Indian parties that attempt to follow tribal law in good faith will fare better in tribal court. Lawyers that make an effort to find, know, and argue tribal law will also fare better—and on the flip side avoid sanctions for arguing foreign law, absent a tribal rule allowing it, in tribal court. To obtain applicable tribal law, contact the tribal court clerk's office or the tribal secretary's office. Many tribes are also starting to post their constitutions, statutes, and common law on publicly accessible tribal Web sites.

Because tribal leaders and judges tend to view mediation and arbitration as similar to traditional authority dispute resolution processes, they are inclined to enforce settlements and awards as a matter of public policy. In the absence of tribal statutory or rule-based enforcement mechanisms, in the case of mediation, tribal courts are likely to treat a written, mediated agreement in one of two ways, depending upon the nature of the parties. In mediations between family and community members, tribal judges are likely to view a mediated settlement as incorporating tailored, quasi-tort principles, specifying the elements of specific duties owed and possibly the remedies in case of breach. In all other mediations, tribal judges are likely to view a mediated settlement like a contract and to generally apply basic rules of contract law. For example, a tribal court would look to identify, at least, the presence of an offer and acceptance of that offer, and mutual assent (on all essential material terms), and consideration. The court would also consider whether the parties possessed the requisite authority to enter into the agreement and whether the written agreement is definite in its essential terms. Given the purposes and nature of the mediation process, the terms of the agreement are likely to be liberally construed where the intent of the parties can be discerned as set out in the agreement.

Persuading the Tribal Judge
While it is not possible to accurately characterize tribal statutory and common law across over 550 tribes and their court systems, many of which are young constitutional governments with less-developed statutory infrastructure, there are some general concepts that may be helpful in making persuasive arguments to a tribal judge where the tribal law is undeveloped or unknown. Many tribes have constitutional or statutory provisions specifying the law the tribal judge is to follow. For example, a tribal judge may be required to follow, in order, the tribal constitution, bylaws, statutes, resolutions, and then custom and tradition as mandatory law before looking to persuasive foreign authority. Custom and tradition may always be argued to include concepts of fairness. When arguing foreign (state, federal, foreign to the United States, or other tribal) law, it is critical to respect the sovereignty of the tribe by focusing on the underlying rationale of the proffered rule or standard and why it is relevant and useful as an import into the tribal common law. Many tribal judges will sanction lawyers that argue that state law is theapplicable law in tribal court. Given the often underdeveloped nature of tribal statutory provisions and the increasingly complex day-to-day needs of the tribal community, tribal judges are frequently persuaded to expand the tribal common law by borrowing from foreign law on public policy grounds. This approach is frequently overlooked by lawyers new to tribal court practice.

American Indian tribes and their judicial bodies are increasingly exercising the full extent of their governmental powers, including the enforcement of arbitration awards and mediated settlements. However, they each operate under distinctive tribal constitutional and statutory law that may include a commitment to the application and reinforcement of custom and tradition. Many tribal judges view ADR solutions as in line with custom and tradition. Non-Native clients that live in or do business in Indian Country seek to maintain long-term working relationships in the tribal community. The use of tribally supported and enforced ADR actively furthers both clients' long-term interests and tribal sovereignty.

Tips on Mediation/Arbitration

The Lawyer as Dispute Resolution Manager
(1) Ask the tribal court clerk whether a traditional or alternative (mediation or arbitration) program exists and determine whether it fits your client's needs (many tribal community mediation programs are therapeutic in nature and deal with disputants in longterm relationships);

(2) Educate your client about his or her dispute resolution options, including the pros and cons of pursuing traditional or alternative dispute resolution to effect the client's objectives (in many state jurisdictions this is a requirement under the Rules of Professional Responsibility and may affect attorney fee awards and malpractice claims process); and

(3) Ask yourself whether your client will need to have an ongoing relationship with the tribe, a tribal business, tribal members, etc. If the answer is yes, then urge good-faith participation in the tribal or local traditional or ADR process.

The Lawyer as Drafter/Reviewer of Mediated Agreements
(1) Be supportive of your client and take time to understand his or her reasons for making trade-offs, particularly with tribal member clients, those married to tribe members, or those doing business on the reservation, who may highly value preserving long-term relationships with the tribe or its members;

(2) Take the time to be involved in feedback of successive drafts during the traditional/ADR process with the peacemaker, mediator, or other traditional authority or facilitator; and

(3) Make every effort not to water down deal points. The goal is to get the client what he or she wants, not to get the hypothetical deal that might have been or to resolve all uncertainties in favor of your client. People that live and work in tribal communities may very well have important differences in their values, interests, social and governmental infrastructure, information, and relationships—find out what these are.

The Lawyer as Advocate to Get the Agreement/Award Enforced
(1) Obtain a copy of the tribal court establishment or judicial code and court rules from the court clerk or tribal secretary to determine whether tribal statutory provisions govern the mediation or arbitration process;

(2) Obtain a copy of any peacemaker, traditional dispute resolution, or ADR codes or rules;

(3) Respect and follow any applicable tribal law like you would any federal or state law;

(4) In the absence of relevant tribal statutory law or rules, use ABA models or commercial standards like JAMS rules—but always explain why they are a useful model to follow in the tribal jurisdiction—for example, that they are more consistent with custom and tradition than adversarial court process;

(5) Always make tribal public policy arguments (for example, how custom and tradition include basic fairness concepts) as to why the tribal judge should import foreign process or standards where there is no applicable tribal law in place;

(6) Never argue that foreign law is mandatory law in the tribal jurisdiction unless U.S. federal law is expressly applicable; and

(7) Remember that many clients want to continue to live and/or do business in the tribal community.
Sekaquaptewa is executive director of the Nakwatsvewat Institute in Second Mesa, Arizona. Her e-mail is pat@nakwatsvewat.org.com.

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