Imagine this…

You’ve been working on developing property for a new, soon to be bustling development in North Dakota. You have a clear contract with your general contractor, and have supplied the labor and materials set up by that contract. You even have a very reasonable payment plan as part of your contract, so the general contractor can make easy payments to you every month for an extended amount of time.

On the first payment due date, you check your incoming mail for a check but don’t see anything.

You think it might be a fluke. You’ve never worked for this general contractor before, but they seemed very professional. Surely they’ll pay you this week.

Fifteen days after your first payment due date, you realize that payment is not on the way. You’ve tried reaching out to the general contractor’s accounts payable office, only to find that the company has shut down. You draft a notice of intent to lien and send it off to the general contractor and the owner listed on your contract. You think sending the notice of intent might be all you need to spook the contractor or the owner so they will send you payment…

You wait ten days, but still don’t receive a response back from either party. You draft your mechanics lien and send it off to the county recorder.

What comes back to you is completely shocking:

“This mechanics lien cannot be recorded in this county because the property in question is tribal land.”

Why do lien rights completely vanish when work is performed on tribal land?

We’ve written before that there are very little mechanics lien rights reserved for tribal land. To put it simply, lien rights are a provision of U.S. law, defined by state statute and recorded generally by the county the work was performed in. However, tribal land refers to Native American sovereign nations, where lien rights generally do not extend to. Native American tribes have “sovereign immunity” from U.S. and states laws, and cannot be sued in state or federal court.

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While this should not necessarily discourage construction companies from working on tribal land, they should be made aware that their work is on this type of sovereign land, and understand that their lien rights do not extend to this project. Usually construction companies will be alerted if the work they are hired to do is on tribal land, but it is best to use caution and research the area if you believe it may be sovereign.

It’s not spooky if you’re prepared. Ensuring you’re working with reputable companies and doing work with secure payment plans in motion can help you avoid the need to file a mechanics lien in the long run.

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