Failure to Object: Tribal Waiver of Immunity by Participation in Arbitration

Authors

Christopher McMillin

Abstract

In Oglala Sioux Tribe v. C & W Enterprises, Inc. (Oglala), the U.S. Court of Appeals for the Eighth Circuit dealt with whether a tribe's affirmative participation in the arbitration process waived its sovereign immunity as to arbitration and enforcement of an arbitration award in state court. Previously, courts have maintained that the existence of an arbitration clause in a commercial contract was sufficient to waive tribal immunity, but they relied on the explicit wording of the agreement itself. In the instant decision, this precedent applied to three construction contracts that contained an explicit choice of law provision, but the real difficulty lay in a fourth construction contract that did not compel arbitration or specify where an arbitration agreement could be enforced.

Recommended Citation

Christopher McMillin, Failure to Object: Tribal Waiver of Immunity by Participation in Arbitration, 2009 J. Disp. Resol. (2009)
Available at: https://scholarship.law.missouri.edu/jdr/vol2009/iss2/11