Standard Clauses in State-Tribal Agreements: The Navajo Nation Experience

11 Pages Posted: 19 Sep 2011 Last revised: 5 Oct 2012

Paul Spruhan

Navajo Nation Department of Justice

Date Written: October 4, 2012

Abstract

The paper discusses the attempts by the Navajo Nation and the States of Arizona and New Mexico to create standard contract clauses for agreements between the Nation and those states. The Nation and the States have numerous contractual relationships, primarily concerning funding for Nation programs, but also concerning law enforcement, rights-of-way grants, and other issues. Sovereignty issues on both sides have complicated the contracting process, as the Nation and the states have legislatively-mandated contract clauses that each must include in their agreements. Further, dispute resolution issues have caused friction, as each side possesses sovereign immunity but allows arbitration if enforcement of an award is brought in its own court system.

In an attempt to resolve these issues, the Nation and the states recently have established standard contract clauses that apply generally to agreements between the sovereigns. The standard clauses allow for arbitration of disputes, with enforcement against the states in state court, and against the Nation in Navajo Nation court. In the case of Arizona, the standard clauses also cover discrimination, citizenship verification, and other issues. Though all issues have not been resolved by these clauses, and it remains to be seen how such clauses will be implemented, the standard contract clause model can be useful to other tribes and states who seek efficient and consistent methods of contracting without sacrificing core principles of tribal and state sovereignty.

Keywords: Indian Law, Tribal-State Relations, Sovereign Immunity, Tribal Contracts

JEL Classification: K12

Suggested Citation

Spruhan, Paul, Standard Clauses in State-Tribal Agreements: The Navajo Nation Experience (October 4, 2012). 47 Tulsa Law Review 503 (2012) . Available at SSRN: https://ssrn.com/abstract=1930589 or http://dx.doi.org/10.2139/ssrn.1930589

Paul Spruhan (Contact Author)

Navajo Nation Department of Justice ( email )

Window Rock, AZ 86515

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