Abstract
Indian tribes have emerged as significant contributors to the national and regional economies, notably through industries such as gaming, natural resource extraction, technology, and consumer lending. This increasing commercial activity brings with it increasing commercial disputes. Both Indian tribes and their nonmember counterparts need a fair and reliable forum to ensure that agreements are performed, loans repaid, and avoidable harms compensated. But the complex legal landscape of tribal sovereignty and jurisdiction complicates dispute resolution involving tribes. Tribes’ status as sovereign entities raises challenging issues of federal and state court jurisdiction, tribal sovereign immunity, and exhaustion of tribal remedies. Arbitration offers a potential solution, allowing parties to avoid perceived jurisdictional biases and tailor legal processes to their needs. This Article examines the interplay between arbitration and federal Indian law, focusing on the doctrines of separability, delegation, sovereign immunity, and exhaustion of tribal remedies, in the enforcement of arbitration agreements. It argues that, given current Supreme Court precedent, standard commercial arbitration agreements should be interpreted as waiving tribal sovereign immunity concerning arbitrability issues, directing disputes to arbitration rather than courts. Adopting a clear rule could enhance economic opportunities for tribes while preserving their sovereignty, while reducing uncertainty for non-Indian commercial actors, thereby fostering economic growth in Indian Country.
Creative Commons License
This work is licensed under a Creative Commons Attribution-NonCommercial-No Derivative Works 4.0 International License.
Recommended Citation
Paul F. Kirgis,
Arbitrating with Indian Tribes: Separability, Tribal Sovereign Immunity, and Exhaustion of Tribal Remedies,
55
N.M. L. Rev.
295
(2025).
Available at:
https://digitalrepository.unm.edu/nmlr/vol55/iss2/2
