Lorenzo E. Gudino, Who, What, Where, and How: The Fundamental Elements for Contracts Implicating Tribal Sovereign Immunity, 2022 Wis. L. Rev. 239 (2022).
Abstract
This Essay addresses the problems created by courts’ failure to spell out the exact parameters required for contractual provisions regarding tribal sovereign immunity. As a companion to the Restatement, this Essay seeks to develop a simpler framework to craft effective contract language for all tribes and their business partners to employ. Other articles offer model contractual provisions for waivers of tribal sovereign immunity. This Essay touches on these approaches and suggestions for drafting effective provisions. This Essay, however, takes a different approach by discussing the four key components of any tribal sovereign immunity contract provision with guidance from the Restatement. Like the foundational “five ‘W’s” of journalism, this Essay emphasizes four key questions contract drafters need to ask: Who is immune from suit? What is the tribe waiving or not waiving? Where will dispute resolution take place? How will enforcement of the provision or waiver occur? Each question is a fundamental element that effective contract provisions for tribal sovereign immunity require.
