Construction professionals at work

Over the past year, I’ve had some dealings with construction companies and suppliers being hired to furnish labor and/or materials to Indian Tribes or on Tribal Land, and am finding that there is a bit of a boom in construction of casinos and other establishments for Indian Tribes.  With the boom, non-Indian contractors and suppliers are faced with some pretty complex legal questions about what rights they have in the event they are unpaid or something goes wrong. Since tribal land is much, much different from ordinary land, and Indian tribes have what is called “sovereign immunity” from United States’ laws, these legal questions can get very hairy.

Edward Rubacha, an Arizona attorney with Jennings, Haug & Cunningham, LLP, wrote a very good article on these issues in “Construction Contracts with Indian Tribes or on Tribal Land.”  I highly recommend it to anyone who is thinking about contracting to perform work with an Indian business or on Indian Land.  I used it very heavily in researching this short blog post, which focuses on the narrow question of whether a contractor or supplier can file a mechanic’s lien against Indian Tribal Land.

I was inspired to write this post after receiving an email this afternoon from a Washington construction company who asked whether Washington’s Revised Code “regarding materialmen’s liens and other requirements apply on tribal land for residential construction.”

The short answer to this question is easy:   No.

The long answer to this question is very complex, as there are a hundred different issues that can come up in determining what extend of “lien rights” a contractor or supplier could have on a construction project performed either on tribal land or off tribal land (i.e. on regular private land) for a tribe!

Here is a breakdown of the two biggest issues regarding lien rights contracting with Indian tribes:

1)  Sovereign Immunity.  First and foremost, Indian tribes have “sovereign immunity” from the laws of the United State and the laws of each state.  You cannot sue an Indian tribe in state or federal court because the courts simply cannot exercise jurisdiction over it. The only way to get around this is if the Indian Tribe voluntarily waives its immunity.

2) The land is not state land, and therefore, not subject to the state’s mechanic’s lien laws.  Here is how Mr. Rubacha summed up this point:

Given this protection, and perhaps, more importantly, ownership of the land by the federal government, state mechanic’s lien laws have no application to reservation land or to trust lands held by Native American allottees. These anti-alienation principles apply likewise to land held in fee by Native American tribes or tribal entities. It could be argued that state mechanic’s lien laws do not even apply to lands off the reservation owned in fee simple by Native American tribes, given the sovereign immunity principles…If the tribal owner of the property has sovereign immunity, then how can the prospective plaintiff name that entity to enforce a mechanic’s lien properly recorded against the property?

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