Adam Keith, a Penn Law student, has published “Who Should Pay for the Errors of the Tribal Agent?: Why Courts Should Enforce Contractual Waivers of Tribal Immunity When an Agent Exceeds Her Authority under Tribal Law.” The article appears in the Penn Journal of Business Law. The article criticizes a recent Sixth Circuit decision on the immunity of Section 17 corporations.
Here is a snippet:
When tribal commercial organizations engage in commercial dealings, their non-tribal counterparties almost universally insist that a waiver of tribal immunity be included within any contractual agreement so as to retain their access to state and federal courts should they decide to litigate any commercial disputes against the tribal entity. In a recent case, the Sixth Circuit weakened the reliability of these waivers by ruling that the court will not enforce such a waiver when a tribal agent assents to one while possessing only apparent authority in the eyes of the tribal counterparty but not actual authority under tribal law. This comment will argue that there are three reasons that courts should enforce such waivers: because doing so is consistent with the principles associated with waivers of tribal immunity; because it will not have deleterious effects on tribal sovereignty; and because it will improve the efficiency of tribal commercial dealings with non-tribal entities.
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