To mark the forty-year anniversary of the Business Law Section’s Mergers & Acquisitions Committee, Nate Cartmell and Nick Mozal, cochairs of the Committee’s M&A Jurisprudence Subcommittee, reflect on developments in M&A jurisprudence over the last forty years.

Like the other sections of the M&A Committee, the state of the practice area covered by the M&A Jurisprudence Subcommittee in 1986 could only be described as nascent. M&A itself was undergoing significant change and evolution, and it was only natural that the jurisprudence arising from those transactions would change and evolve as well. The most recurring topics covered in the cases presented at our subcommittee meetings in recent years—fiduciary duties of directors in evaluating mergers and disputes between parties about their deal agreements—looked very different forty years ago, if they existed at all. Because jurisprudence sits at the intersection of so many of the other subcommittees, the following summary is necessarily generic and high-level to avoid stepping on their toes.

Fiduciary Duty Litigation of the 1980s

Transporting back to the 1980s would find one in the maelstrom of deal litigation the outcomes of which created the cornerstone of guidance practitioners have used to guide fiduciaries and companies ever since. The Delaware Court of Chancery and Delaware Supreme Court were busy writing the opinions that remain the starting points for the M&A textbooks that students study in law school.

1986 was particularly transformative. Of the many notable developments that year, two stand out. The first came from the Delaware Supreme Court handing down its Revlon, Inc. v. MacAndrews & Forbes Holdings, Inc. decision on March 13,1986, which built on the court’s Unocal Corp. v. Mesa Petroleum Co. decision from June 1985. The second was the Delaware legislature springing into action to adopt exculpation through section 102(b)(7), essentially overturning parts of the Delaware Supreme Court’s March 1985 decision in Smith v. Van Gorkom.

So much more was to come in the following years: the “barbarians” were not yet at RJR Nabisco’s gates, and in a sign that the more things change, the more they stay the same, Paramount had not yet injected itself into the merger between Time Incorporated and Warner Communications.

Committee Beginnings

The fiduciary developments in the law into the 1990s provided such usable guidance and standards that hostile takeovers became less common. M&A generally, of course, was only picking up steam. As M&A grew and became more varied, so did the jurisprudence concerning it.

By 2002, a small group of attorneys from what was then called the ABA’s “Negotiated Acquisitions Committee” came together and, in their first Annual Survey of Judicial Developments Pertaining to Mergers and Acquisitions, described the founding of this subcommittee as follows:

The Subcommittee on Recent Judicial Developments was formed at the 2002 Annual Meeting of the American Bar Association in Washington, D.C. The primary charge of the Subcommittee on Recent Judicial Developments is to summarize, on an annual basis, significant judicial decisions in the area of mergers and acquisitions (“M&A”), and to publish that summary as a service to ABA members who practice in the M&A area.^[1]

The cochairs were Scott Whittaker (New Orleans, LA) and Jon Hirschoff (Stamford, CT), with contributors listed as Patrick Leddy (Cleveland, OH), Robert Ouellette (Columbus, OH), Mike Pittenger (Wilmington, DE), Tricia Vella (Wilmington, DE), and Arthur Wright (Dallas, TX).

The categories of cases summarized included interpretation of agreements, successor liability, and fiduciary duties.

Current Issues

Our recent Annual Surveys and meetings still cover these topics, though the most recurring issues have changed. For fiduciary challenges, mostly gone are the days of hostile acquirers asserting fiduciary challenges as a basis to enjoin target boards from taking a different deal. Instead, the fiduciary cases predominantly originate from non-acquirer stockholders seeking relief, which is increasingly either a pre-closing injunction related to governance disputes (such as compliance with a charter, bylaws, or other organizational document) or post-closing damages. The key decisions of the last decade—Corwin v. KKR Financial Holdings LLC, In re MFW Shareholders Litigation, C&J Energy Services, Inc. v. City of Miami General Employees’ Retirement Trust—arose in that context.

The topic of interpreting agreements is the one where we spend most of our ink in the annual survey and time in our meetings. This category involves disputes between parties, leading to court decisions, about the terms of the parties’ agreements. They tend to be private companies, and often private equity firms are the ones buying or selling. It seems there is no limit to contracting parties’ abilities to find something to fight about in the merger agreements, stock purchase agreements, asset purchase agreements, side letters (and on and on) to which they agreed. It gives us plenty to fill our agenda!

Our subcommittee deals with both pre-closing and post-closing cases. The pre-closing cases are usually “busted deal” cases. These cases involve one of the parties regretting their agreement and trying to get out before closing. Sometimes they arise in the context of one of the parties trying to force closing by seeking specific performance. Although material adverse effect (“MAE”) or material adverse change (“MAC”) clauses existed for many years, it was not until the In re IBP, Inc. Shareholder’s Litigation decision in 2001 that the Delaware courts started parsing them finely at the request of disputing parties. As is well known, this type of dispute exploded during the coronavirus pandemic and expanded to not just disputes over MAC clauses but interim operating covenants as well. We’ve been lucky to have plenty of jurisprudence to discuss in this area in recent years. And all M&A practitioners are lucky for the guidance set out in those decisions.

The post-closing contractual disputes between deal parties arise in a variety of contexts. These disputes primarily arise in private company sales. They include claims for contractual indemnification related to breaches of reps and warranties, fraud claims, and (increasingly) disputes over earnout provisions. Again, looking back forty years in this area, one would struggle to find much specific M&A jurisprudence on these topics until recently. But as deals of all types and sizes have become more common, so have these disputes. Just as the disputes keep coming and leading to decisions, they also lead to lessons. Each meeting we are lucky enough to have presenters discussing a decision that involves a fact pattern or contractual language worthy of lessons and consideration. We would be remiss not to mention Glenn West (Dallas, TX) and his contributions, both in his public writings and in his presentations and contributions in our meetings, in this area. And the same is true for the many jurists from Delaware who have graced us with their time and patience in answering questions at our meetings.

Navigating Issues

Our subcommittee is grateful for the continued opportunity to discuss the lessons from M&A disputes when they make their way to court. Though we do not always have the answer about what the next party should do in a similar situation, we hope that attendees feel better equipped at navigating those issues in their practices when they face them.

1. Available on Westlaw at Subcommittee on Recent Judicial Developments, Negotiated Acquisitions Committee, Annual Survey of Judicial Developments Pertaining to Mergers and Acquisitions, 58 Bus. Law. 1521 (2003). The subsequent edition in 2004 is available on the ABA website. ↑

By any measure, the Mergers & Acquisitions Committee is the most successful committee of the ABA Business Law Section.^[1] The Committee boasts more than 5,000 members—from sixty-one countries on six continents—making it the largest committee in the Section and, by far, the world’s largest forum for M&A lawyers. Committee publications and programs organized and sponsored by the Committee have generated substantial revenue and recognition for the ABA and the Business Law Section over the years.

You might think that the M&A Committee has always been a robust feature of the ABA and that the ABA established the Committee early in its history because ABA leadership knew from the outset that M&A lawyers needed a forum to discuss their deals, their practices, market trends, and legal developments. But that is not the case.

Early Beginnings

The M&A Committee was formed in 1986 under the inspiration and leadership of Pat Garrett (Houston, TX), Karl Ege (Tacoma, WA), and Vince Garrity (Philadelphia, PA), who were then members of the ABA Corporate Laws Committee. They observed that no existing committee of the ABA Business Law Section dealt directly with the legal and practice-oriented issues involved in negotiated acquisition transactions. Committee lore is that they and a few other acquisition lawyers—including Byron Egan (Dallas, TX), Joel Greenberg (New York, NY), and Leigh Walton (Nashville, TN)—met in a conference room at the Dallas–Fort Worth airport in 1986 to talk about forming a new group within the Business Law Section that would focus on transaction practice and process (rather than emphasizing statutory provisions and governmental rules and regulations) and would share their experiences helping their clients get deals done. Walton’s attendance was fortuitous (and a great win for the Committee); she attended in place of a partner of her firm who had been invited but became unavailable. More than two decades later, she became the first woman vice chair and then the first woman chair of the Committee. This grassroots beginning of the M&A Committee was and continues to be one of its great strengths.

Then Committee Chair Rick Climan (lower left) with Vice Chairs (clockwise) Byron Egan, Joel Greenberg, and Leigh Walton (Honolulu, 2006). Photo credit: Tracy Bacigalupo.

The M&A Committee originally had the unfortunate name of the Ad Hoc Committee on Consensual Combinations. It was “Ad Hoc” because it wasn’t initially approved as a committee of the Business Law Section, and the founders were not allowed to call themselves an M&A committee because the larger and more powerful Securities Regulations Committee claimed domain over M&A within the Section by virtue of its work in the area of public tender offers. In 1989, the Ad Hoc Committee on Consensual Combinations became the Committee on Negotiated Acquisitions, and Garrett became its first chair. The Committee was renamed the Mergers & Acquisitions Committee in 2008, several years after it eclipsed the Federal Regulation of Securities Committee as the largest committee of the Business Law Section.

The M&A Committee initially attracted senior lawyers practicing throughout the United States who handled mergers and acquisitions. By 1988, when Nat Doliner (Tampa, FL) attended his first meeting, thirty to forty lawyers attended Committee meetings. The Committee’s primary activity was developing a “model” stock purchase agreement that reflected generally accepted acquisition practices in the United States.

Model Documents: An Early Foundation of the M&A Committee

Deal lawyers working together to develop model documents and related explanatory commentary is a cornerstone of the M&A Committee and continues to be an important aspect of the Committee’s work.

The first publication of the M&A Committee, the Model Stock Purchase Agreement with Commentary (“MSPA”), was published in 1995 under the leadership of David Bronner (Chicago, IL), Greenberg, and an editorial subcommittee that included subsequent chairs of the Committee Rick Climan (Silicon Valley, CA) and Walton. (Climan attended his first Committee meeting in St. Louis in 1989.)

The published work included the names of all members of the M&A Committee and indicated with an asterisk whether a member had attended more than one meeting. Sixty-two names had an asterisk, so you could say that in 1995, the Committee had sixty-two active members.

The detailed explanatory commentary included with the MSPA made the publication an instant hit with practitioners and educators. It provided practical guidance explaining the rationale and authority for key provisions of the model agreement. It was not about case law or regulations but rather the stock purchase agreement itself and how the agreement provisions connected with each other. The interplay of the agreement provisions was illustrated in hypothetical scenarios included with the commentary, which were developed under Climan’s leadership. Deal lawyers sharing their experiences.

The M&A Committee also published the Manual on Acquisition Review in 1995, a companion to the MSPA that provided guidance on due diligence and substantive areas of law that may be implicated by a seller’s representations and warranties in a stock purchase agreement.

As the M&A Committee completed its work on the MSPA, it determined that the next logical project would be a model asset purchase agreement. A task force was created in 1994 (cochaired by Egan and Lawrence Tafe (Boston, MA)), which culminated in the Model Asset Purchase Agreement with Commentary being published in 2001. (Egan went on to serve two terms as vice chair of the Committee.)

The early 2000s were a period of great growth for the M&A Committee. New subcommittees and task forces were established and empowered with projects. Publications proliferated, including the following:

• The M&A Process: A Practical Guide for the Business Lawyer (2005)
• International Stock Purchase Acquisitions (2006)
• Model Joint Venture Agreement (2007)
• International Mergers and Acquisitions Due Diligence (1st ed. 2008; 2nd ed. 2022)
• Model Stock Purchase Agreement with Commentary (2nd ed. 2010)
• Model Merger Agreement for the Acquisition of a Public Company (2011)
• International Joint Ventures: A Guide for U.S. Lawyers (2013)
• Model Tender Offer Agreement (2019)

A second edition of the Model Asset Purchase Agreement with Commentary will be published in early 2026.

CLE and Other Programming

Substantive programs became a feature of M&A Committee meetings in the mid-1990s and became more regular after the MSPA was published. The Committee pioneered the use of the “mock negotiation” as a teaching tool to illustrate the real-world give-and-take of contentious M&A negotiations. The first mock negotiation presentation took place in the late 1990s before a large audience at a meeting at Opryland in Nashville, Tennessee, featuring Climan, Greenberg, Bronner, and other Committee members. Those same presenters, joined by Ege and Walton, later staged a mock negotiation presentation that was broadcast live to a large nationwide audience from a television studio in Washington, D.C. (with presenters in full TV makeup).

Then Committee Chair Leigh Walton with (from left) future Chair Wilson Chu and former Chairs (from right) Rick Climan and Joel Greenberg (2010).

During the same period, the M&A Committee launched the National Institute on Negotiating Business Acquisitions (“National Institute”), originally chaired by Garrity and featuring senior Committee members as presenters and panelists. The National Institute was presented as a separate two-day conference because of the sizable volume of substantive content that was offered. The Committee’s first National Institute was staged in New York City, and subsequent National Institute programs have been presented in Chicago, New Orleans, Miami, Las Vegas, and other locations. The twenty-eighth annual National Institute, cochaired by former Committee Chairs Climan, Greenberg, and Scott Whittaker (New Orleans, LA), took place in November 2025. All past chairs/cochairs of the National Institute served at one time as chair of the Committee.

The National Institute has been used as a forum to provide M&A Committee members—young and more seasoned—with speaking opportunities. For the past twenty years, the centerpiece of the National Institute has been a four-hour mock negotiation panel chaired by Climan and featuring other past Committee chairs.

Today, the M&A Committee sponsors and presents regular educational programs on M&A-related topics, including continuing legal education (“CLE”) programs and other presentations at its committee, subcommittee, and task force meetings and as part of Committee-sponsored webinars. Since the 1990s, the Committee has also disseminated valuable substantive content through its official newsletter, Deal Points, which is published three times a year.

Innovation and Growth

You could say that the “modern era” of the M&A Committee began under Climan’s leadership (chair from 2002 to 2006). In addition to new task forces focused on publications, Climan established the Market Trends Subcommittee, the Subcommittee on Recent Judicial Developments (which was later renamed the Jurisprudence Subcommittee), and the Private Equity Subcommittee. Under the leadership of Whittaker, who later became chair of the Committee, and Jon Hirschoff (Stamford, CT), the Subcommittee on Recent Judicial Developments took on reporting on judicial decisions affecting M&A practice. It began publishing the “Annual Survey of Judicial Developments Pertaining to Mergers and Acquisitions” in the Business Lawyer in 2003.

Discussion at M&A Committee meetings became more substantive under Climan’s leadership, with a new focus on hearing from members of the Delaware judiciary. The strength of the Committee allowed it to foster involvement of federal and state governmental officials, especially Delaware judges. Delaware Chief Justice Myron Steele was a frequent attendee and speaker at Committee meetings during Climan’s term as chair, and Climan’s videos featuring Delaware Chancery Court Judge (and later Chief Justice) Leo Strine were particularly popular with Committee members.

Then Committee Chair Scott Whittaker (far right) with (from left) former Chairs Nat Doliner, Rick Climan, Karl Ege, Leigh Walton, and Joel Greenberg (Montreal, 2016).

Wilson Chu (Dallas, TX) developed a study on “Deal Point Trends in Private Company M&A,” which he presented at a conference of the American Conference Institute (unrelated to the ABA) in March 2001. The consummate generator of good ideas, Chu subsequently shared the presentation with the M&A Committee. (Chu attended his first Committee meeting in 1997, at the suggestion of John Leopold (Montreal, Canada). Leopold, who became a member of the Committee in 1989, was the first Canadian lawyer to join. Today, there are more than 250 Canadian lawyers on the Committee’s membership roster.) Chu recalls the warm welcome he received when he joined the Committee and being impressed with the Committee’s culture, which was focused on building community rather than Committee members building their own individual brand.

Chu’s “Deal Point Trends” report was of immediate interest to M&A Committee members. With Larry Glasgow (Dallas, TX), Chu presented the report over several years until Committee Chair Climan suggested that the study be “transitioned” to the Committee. Hence, Climan established the Market Trends Subcommittee in 2004, initially cochaired by Chu and Glasgow.

Since its first private target deal points study in 2006, the Market Trends Subcommittee has published ten U.S. private target studies (the most recent in December 2025), as well as studies reporting on deal trends in strategic buyer / public target transactions and carve-out transactions and deal trends in Canadian and European private target transactions. The first public target deal points study—chaired by Keith Flaum (Silicon Valley, CA), who went on to become a vice chair of the M&A Committee—also was published in 2006.

In 2002, Climan appointed Chu chair of the M&A Committee’s Membership Subcommittee. (“One of my best decisions as chair,” Climan says.) Chu proposed that access to the deal points studies, while free of charge, be limited solely to members of the Committee. Another great idea from Chu. His plan was implemented, and, in relatively short order, membership of the Committee grew from 800 to more than 2,000. By the summer of 2008, Committee membership exceeded 3,000. It has grown steadily since then.

The M&A Committee also has long had a Technology Subcommittee to guide deal lawyers on evolving technology developments that impact their practice. From the automation of due diligence in the early days of the Subcommittee, until the present, with extensive coverage on the use of artificial intelligence in the M&A practice field, new technologies have been highlighted for members.

Other innovations suggested and introduced by M&A Committee members and leaders over the years are too numerous to mention. But one that cannot go unmentioned is Walton, as chair of the Committee, bringing the Committee to the luxurious and panoramic Montage Hotel in Laguna Beach for its stand-alone meeting in January 2012. Prior to that meeting, the stand-alone meeting was held at a different location each year (chosen by the Committee chair). The Committee has met at the Montage Laguna Beach in January of every year since then, and the success of this location has become a mark of the success of the Committee.

Women in M&A

Women have participated in the M&A Committee from its beginning and have held important leadership positions, although the number of women lawyers who actively participate often has been small. One reason for this undoubtedly is the underrepresentation of women in M&A practice generally.

Jennifer Muller (San Francisco, CA) became vice chair of the M&A Committee in 2012. Muller is an investment banker (one of the Committee’s few nonlawyer members), and she wanted to identify a project where she could have an impact while in leadership. Muller had previously been involved in a group of lawyers and nonlawyers who wanted to increase the participation and retention of women in M&A in the San Francisco Bay Area. Given that experience, one of the group members, Climan, suggested that Muller evaluate why women lawyers remained in short supply and set up a task force to do so.

Thus became the Women in M&A Task Force—formed by Mark Morton (Wilmington, DE), then chair of the M&A Committee, in 2012—which was originally cochaired by Muller and Walton. Rita-Anne O’Neill (Los Angeles, CA), the current chair of the Committee, succeeded Walton as cochair of the task force. The task force set about measuring the composition of M&A lawyers at firms as well as inclinations of law students. The first law firm and law school surveys were conducted in 2014. Muller completed the sixth round of surveys in 2024. An important, consistent finding is that the disproportionately low numbers of women M&A lawyers could be traced to women’s experiences in law schools.

Informed by the survey results, the Women in M&A Task Force set as its mission targeting law schools, creating M&A Committee meeting content, creating a social environment for women to meet and network, and measuring its results. Starting in 2012, female members of the task force visited law schools across the country to talk about their experiences as M&A lawyers.

Since 2017, efforts to encourage women law students to seek out opportunities to become M&A attorneys have been supplemented by scholarships at Harvard Law School and NYU Law School (financially supported by two Committee members who are graduates of those law schools). The scholarships cover the cost of women law students to travel to and attend M&A Committee meetings.

Former Committee Chair Rick Climan with the first class of “M&A Scholars” (New Orleans, 2017).

The Women in M&A Task Force has evolved to become a vibrant and important subcommittee of the M&A Committee, and it continues with the goal of increasing the participation and retention of women in M&A.

Committee Stature, Influence, and Recognition

As it has grown in size and stature over the years, the M&A Committee’s work and activities have had a significant impact on the nationwide practice of M&A and on M&A jurisprudence. As an early example, former Committee Chair Climan is widely credited for having added the term sandbagging to the national M&A lexicon in the 1990s, largely because of his public speaking on the topic (often with Greenberg) and his other work on behalf of the Committee. The Committee’s model document commentary and other work product have been cited numerous times by Delaware and other courts and in articles appearing in prestigious law reviews and other published sources. Educational programs sponsored by the Committee, such as the annual National Institute, draw hundreds of enthusiastic attendees and raise substantial revenues for the ABA and the Business Law Section.

The M&A Committee also continues to influence law students to become M&A lawyers. In addition to the work of the Women in M&A Subcommittee, under the leadership of Chu and Michael O’Bryan (San Francisco, CA), chair of the committee from 2021 to 2024, the Committee has since 2023 organized a “MAC Cup,” where law students compete in a mock deal negotiation competition. One hundred and sixty-five teams from ninety-five law schools applied to participate in the 2025–2026 competition. Sixty-four teams from forty-seven law schools were selected and competed in several rounds of live (Zoom) negotiations, judged by members of the Committee. The final four teams won an all-expense paid trip to Laguna Beach, California, and competed for the championship (including scholarship funds) at the Committee’s annual stand-alone meeting in January 2026.

Committee Chair Rita Anne O’Neill presenting a trophy to winners of the 2025 MAC Cup (Laguna Beach, January 2025).

It’s Really All About the People

The M&A Committee was founded on the idea that deal lawyers learn best from other deal lawyers about how to get deals done. On that foundation, the Committee has built a tradition of excellence, intellectual rigor, and scholarship, as well as innovation—and, from that, a community of friends.

In a 2010 issue of Deal Points, Walton eloquently wrote: “Most of you view the Committee as a family. We participate in this Committee not only to learn, but also to network. And when we network, we form friendships.”

We owe a debt of gratitude to past and present leaders of the M&A Committee and its subcommittees, task forces, and project teams, and active members of the Committee, for creating a forum for learning, making friends, and elevating the skills of all deal lawyers who participate on the Committee. The contributions of many have contributed immeasurably to the success of the Committee.

The M&A Committee continues to evolve with the practice and the times and is secure in its place for at least another forty years.

Chairs of the ABA Business Law Section Mergers & Acquisitions Committee:

J. Pat Garrett – 1989–1991

Karl J. Ege – 1991–1995

Vincent F. Garrity Jr. – 1995–1998

Nathaniel L. Doliner – 1998–2002

Richard E. Climan – 2002–2006

Joel I. Greenberg – 2006–2009

Leigh Walton – 2009–2012

Mark A. Morton – 2012–2015

Scott T. Whittaker – 2015–2018

Wilson Chu – 2018–2021

Michael O’Bryan – 2021–2024

Rita-Anne O’Neill (Current) – 2024–2027

1. This article was first published in the Winter 2026 issue of Deal Points, the newsletter of the ABA Business Law Section Mergers & Acquisitions Committee. It was developed following interviews with several past chairs and other longtime members of the Business Law Section M&A Committee, some of whom reviewed and provided comments on early drafts. Their input and comments are gratefully acknowledged. ↑

This article is related to a Showcase CLE program titled “Annual Review of Business Law Developments in the U.S. Supreme Court” that took place at the American Bar Association Business Law Section’s 2026 Spring Meeting. All Showcase CLE programs were recorded live and will be available for on-demand credit, free for Business Law Section members.

If you think the Supreme Court has been busy lately, you’re not wrong. October Term 2025 (October 5, 2025, through October 3, 2026) has been one of the most consequential in recent memory, and it’s not over yet. From an emergency docket that has exploded in size and controversy to landmark decisions on presidential removal power, federal preemption, and the scope of emergency economic authority, the Court is reshaping the legal landscape for businesses, regulators, and litigants alike. This program brings together two judges and two leading appellate practitioners to walk through the key developments of the Term, with an eye toward what they mean in practice and what may be coming next.

The panel discussion will open with the Supreme Court’s emergency docket, sometimes called the “interim docket” or more controversially the “shadow docket,” which has become one of the most debated features of modern Supreme Court practice. Twenty-five years ago, the emergency docket was a minuscule part of the Court’s work—typically limited to requests to stay executions of individuals on death row. But over the past fifteen years, the emergency docket has dramatically expanded both in size and importance as it has moved toward contested policy questions involving immigration, federal employees, agency funding, and transgender rights. The panelists will discuss how lower courts have responded to emergency docket rulings, and what it means for litigants and lower courts when major legal questions are resolved in expedited, minimally briefed proceedings with no oral argument.

The program then turns to the Term’s key cases. At the top of the list are two cases squarely implicating presidential power over independent agencies. In Trump v. Slaughter, the Court is considering whether the Federal Trade Commission’s statutory for-cause removal protections are unconstitutional after the president fired Commissioner Rebecca Kelly Slaughter without cause. The stakes could not be higher: the case places Humphrey’s Executor—a 1935 precedent upholding the constitutionality of independent agencies (and, indeed, the FTC specifically)—directly in the crosshairs. A decision overruling or severely limiting that precedent could raise serious questions about the structure of the administrative state, including the Federal Reserve. A companion case, Trump v. Cook, involves the president’s removal of Federal Reserve Governor Lisa Cook, purportedly for cause. While the constitutional independence of the Fed is not directly at issue in Cook, the practical implications for its day-to-day independence are very real.

The panelists will also examine Monsanto Co. v. Durnell, a significant products liability case that will address whether the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) preempts state-law failure-to-warn claims regarding glyphosate when the Environmental Protection Agency has not required such a warning. A ruling in Monsanto’s favor would give businesses a powerful new tool to invoke federal regulatory determinations as a shield against state tort liability, with implications extending well beyond herbicide litigation. And a ruling in the plaintiffs’ favor could materially limit the preemptive force of federal statutes, both under express preemption clauses and implied preemption doctrines.

Lest anyone think that civil procedure is just a box to check 1L year, federal court jurisdiction—specifically the procedural mechanics of removal from state to federal court—is receiving substantial attention this Term. In Enbridge Energy, LP v. Nessel, the Court will decide whether district courts can equitably toll the thirty-day deadline for removal, a question with immediate practical stakes for business defendants who generally prefer to litigate in federal court. The already-decided Hain Celestial Group v. Palmquist offers an important lesson in the other direction: the Court vacated a trial court victory for a baby-food manufacturer defendant because a retailer defendant had been erroneously dismissed from the case under the fraudulent-joinder doctrine, demonstrating that the Court will enforce jurisdictional limits even when extraordinary inefficiencies result.

Perhaps no decision this Term carries more immediate economic weight than Learning Resources, Inc. v. Trump, in which the Court held that the International Emergency Economic Powers Act (“IEEPA”) does not authorize the president to impose tariffs. The IEEPA tariffs are eliminated by that ruling, but the administration is already invoking alternative legal authority to reimpose some of them, and litigation over refunds of tariffs already paid promises to be complex and protracted. Those more interested in Supreme Court nerdery and less interested in the practical significance of the tariffs case will not be left disappointed: the 170 pages of opinions in Learning Resources promise a riveting exploration of the contours of the major questions doctrine. The panel will discuss the varying views on the topic and how they may shake out in future cases.

The panel will also discuss Berk v. Choy, which held that a Delaware state-law pleading requirement—that medical malpractice plaintiffs submit a merit affidavit from a medical professional—conflicts with the Federal Rules of Civil Procedure and does not apply in federal court. The decision reaffirms the supremacy of federal procedural rules in diversity cases, but its broader implication may be its impact on state anti-SLAPP statutes, which often impose procedural requirements that could similarly conflict with federal rules. Businesses that rely on anti-SLAPP protections in federal litigation will want to watch this space carefully.

The program concludes with a look at what may be coming to the Court in the near future.

Whether your primary concern is regulatory risk, litigation strategy, or simply understanding the direction of the law, this program offers a comprehensive, practitioner-focused guide to the Supreme Court’s most important work this Term.

This article is related to a Showcase CLE program titled “AI in the Trenches and on the Bench: A Business Law Toolkit for In-House, Firm, and Courtroom” that took place at the American Bar Association Business Law Section’s 2026 Spring Meeting. All Showcase CLE programs were recorded live and will be available for on-demand credit, free for Business Law Section members.

Artificial intelligence has rapidly evolved from a transformative tool to an essential component of legal practice across in-house counsel offices, law firms, and courtrooms. The AI adoption rate among US attorneys has surged in the last few years. As AI continues to reshape the legal profession, understanding the technology, mitigating risks, and ensuring compliant implementation have become critical competencies for business lawyers.

Generative artificial intelligence (“GenAI”) is a type of AI that can create new content, such as text, images, music, audio, and videos, using machine learning to learn patterns from data and then generate new content based on those patterns. Large language models (“LLMs”) represent one category of AI tools that power many legal applications. Agentic AI represents a paradigm shift toward AI systems designed for autonomous operation, as these systems perceive their environment, reason, make decisions, plan, and act to achieve complex goals with minimal human oversight, sharply contrasting with reactive systems like most generative AI, which only respond to user inputs.

The potential risks of generative AI include “hallucinations” (inaccurate or nonsensical outputs), training data bias resulting in biased outputs, privacy and security risks, and unfair competition, trade secret and intellectual property claims. The US National Institute of Standards and Technology (“NIST”) AI Risk Management Framework Playbook discusses a wide variety of other risks, such as environmental impacts on ecosystems from high resource utilization, potential for large-scale misinformation dissemination, and issues with relying on untraceable data. Beyond technical risks, practitioners must also contend with organizational challenges, including unauthorized “shadow AI” use by employees and compliance with evolving regulatory frameworks.

Ethical considerations require legal practitioners to balance innovation with professional responsibility across multiple dimensions. The duty of competence demands that lawyers understand the capabilities and limitations of AI tools they employ, while communication obligations require transparency with clients about AI use in their matters. Confidentiality concerns arise when sensitive client data is processed through third-party AI platforms, particularly when terms of service remain ambiguous about data retention and use. The duty of candor to tribunals has taken on new significance as courts grapple with AI-generated hallucinations, exemplified by high-profile sanctions in cases where lawyers submitted fabricated citations. Supervisory duties extend to ensuring that junior attorneys, paralegals, and staff use AI tools appropriately and in compliance with firm policies.

Courts have responded with divergent approaches: Some have issued standing orders prohibiting AI use in court filings entirely, with potential sanctions ranging from striking pleadings to contempt citations and case dismissal, while others have declined to adopt special AI rules, instead emphasizing that reliance on AI will not excuse otherwise sanctionable conduct. These varied judicial responses reflect ongoing uncertainty about how to balance technological advancement with the integrity of legal proceedings.

Despite these risks and varied judicial approaches, AI tools offer significant potential for enhancing legal practice when used responsibly. Use cases range from chambers research and case management to in-house contract review, legal research, document drafting, and litigation support at law firms of all sizes.

However, realizing these benefits requires robust governance frameworks. Effective risk mitigation begins with comprehensive internal AI policies that specify permitted tools, authorized tasks, and clear consequences for noncompliance. Contracts with AI vendors must address intellectual property ownership, data privacy protections, security standards, and indemnification provisions.

Given the rapid pace of technological change and regulatory development, organizations should establish regular review cycles to update policies and ensure continued alignment with legal requirements. Supervision protocols must ensure that AI outputs receive appropriate human review, while periodic audits can identify unauthorized use, assess compliance with established policies, and evaluate whether AI tools are delivering intended benefits without introducing unacceptable risks.

By combining clear policies, contractual safeguards, active supervision, and systematic auditing, legal organizations can harness AI’s capabilities while maintaining professional standards and protecting client interests.

The Joint Task Force on Model Short Form M&A Documents of the American Bar Association Business Law Section announces the publication of a model short stock purchase agreement with separate optional provisions. The model agreement and optional provisions are drafting aids for experienced mergers and acquisitions attorneys and are available for download in Word format to members of the ABA Business Law Section via the Tools section of BLS publication Business Law Today. The task force is a joint task force of the Mergers and Acquisitions Committee (the “M&A Committee”) and the Middle Market and Small Business Committee. The task force is also developing a model short asset purchase agreement as well as several related products, including a seller’s mark-up of the model short stock purchase agreement, a version of the agreement with rollover provisions, and an optional EBITDA earnout provision.

The Model Short Stock Purchase Agreement (the “Model Short SPA”) is designed for use in the acquisition of a private corporation, structured as a stock purchase, with a purchase price in the $500,000 to $10 million range (the “Sub Lower Middle-Market”). The Model Short SPA attempts to provide the basic framework (at least from the buyer’s perspective, as noted below) of a stock purchase agreement typically used in lower middle-market transactions ($10 million to $250 million) but with a length under 25 pages. The shorter document is designed to be a more appropriate starting point for a Sub Lower Middle-Market transaction and to address some of the common complaints related to Sub Lower Middle-Market transactions, including length of agreement, complexity, and cost.

Joint Task Force

The Model Short SPA was prepared by a Joint Task Force of the ABA Business Law Section comprised of members of both the Middle Market and Small Business Committee and the M&A Committee. The Joint Task Force was comprised of a wide cross-section of practitioners, from solo practitioners to lawyers practicing at international law firms, as well as lawyers practicing at law firms of every size in between. The Joint Task Force included practitioners with regular experience representing clients in Sub Lower Middle-Market transactions, some of which primarily represent buyers, some of which primarily represent sellers, and some of which regularly represent both buyers and sellers.

Disclaimer

The Joint Task Force does not hold out the Model Short SPA as “safe.” Practitioners commonly use documents that are 60 to 90 pages—or longer—for lower middle-market deals. The verbiage in longer documents is often there for good reason. Transaction documents have evolved over time, and provisions became lengthier and more complex to address ever-evolving case law or more detailed circumstances, often because someone got “burned” in a specific way (or saw a way they could get “burned”) and added language as protection. That being said, it has been the general experience of the Joint Task Force that clients buying or selling a business in the Sub Lower Middle-Market, particularly sellers, tend to think that a 60- to 90-page stock purchase agreement is simply too long, is not appropriate for the deal size, and will result in too much legal expense. The Model Short SPA seeks to respond to this complaint that Sub Lower Middle-Market transactions break down due to perceived “over-lawyering” and inappropriately long purchase documents.

However, the Model Short SPA is not intended to be a “do-it-yourself” product for nonlawyers or for lawyers with little or no experience in mergers and acquisitions (“M&A”). All deals are generally unique enough that these tools should only be used by practitioners with appropriate experience in M&A. Lawyers are reminded of the requirement of Rule 1.1 of the Model Rules of Professional Conduct (Competence), requiring lawyers to have the requisite training or to associate qualified co-counsel.

Draft Perspective and Considerations

It is the experience of the Joint Task Force that Sub Lower Middle-Market transactions are largely dominated by private equity (“PE”) buyers. PE buyers often engage in Sub Lower Middle-Market transactions as an “add-on” or “tuck-in” for a current “platform” investment. Since buyer’s counsel typically prepares the first draft of the purchase agreement (at least unless seller is conducting an auction with multiple potential buyers) the Model Short SPA has been prepared from the perspective of buyer’s counsel representing a PE platform in an “add-on” or “tuck-in” transaction. As a result, the Model Short SPA is a solidly pro-buyer agreement, probably ranking about an 8 on a scale of 1 to 10, with 1 being the most pro-seller and 10 being the most pro-buyer.

The Model Short SPA is merely a suggested starting point for buyer’s counsel and not a finished product. Effective documentation must be tailored to the client, industry, and transaction by experienced counsel. Buyer’s counsel who utilize the Model Short SPA will need to tailor the Model Short SPA to address the circumstances of the particular transaction and client, such as additional representations reflecting the business of the target company and other terms to reflect the business deal. Buyer’s counsel also may want to consider a more “friendly” approach for the target, such as dialing back the solidly pro-buyer approach of the Model Short SPA. Similarly, seller’s counsel, in responding to a draft such as the Model Short SPA, may wish to modify or add provisions to reflect the seller’s position.

The Model Short SPA is not intended to suggest what a seller should accept, or what a buyer should require or propose, in a Sub Lower Middle-Market transaction. Transaction documents are intended to be negotiated by experienced practitioners, and the Model Short SPA is no different. As a result, the Joint Task Force intends to prepare a sample mark-up reflecting possible seller’s comments to the Model Short SPA.

Base Model and Optional Provisions

The Model Short SPA includes a “base model” agreement (the “Base Model”) and a selection of optional provisions (the “Optional Provisions”) that can be added to or used in place of Base Model provisions to help the practitioner appropriately tailor the document to a particular transaction. Included with the Optional Provisions is a set of replacement provisions that converts the Base Model from an agreement with a sign and simultaneous closing structure to one with a sign and subsequent closing structure. The Optional Provisions also include a selection of provisions providing commonly negotiated limitations of liability of the selling stockholders not included in the Base Model. The Optional Provisions also include some potential tax elections, though when making tax elections, other related provisions (such as for allocation of purchase price) may also be appropriate, and both buyers and sellers should obtain tax advice before making (or deciding not to make) such elections.

Long Form Model Stock Purchase Agreement

The M&A Committee has published a model stock purchase agreement, with commentary and forms (the “Long Form SPA”), intended for transactions beyond the intended scope and size of the Model Short SPA. The Joint Task Force recognizes that the circumstances of a particular transaction may merit the inclusion of more extensive language than provided in the Model Short SPA, such as key representations and warranties. The Long Form SPA also includes extensive commentary. The Joint Task Force recommends the Long Form SPA as a complementary and invaluable resource for users of the Model Short SPA needing a “deeper dive” to address more complicated issues in a transaction.

Deal Points Studies

The Market Trends Subcommittee of the M&A Committee regularly publishes deal term studies that compile and report data from hundreds of deals within the past several years (the “Deal Points Studies”). Users of the Model Short SPA may choose to consult the Deal Points Studies when negotiating the Model Short SPA. Note, however, that the Deal Points Studies are based on deals publicly filed by public company buyers with the SEC, which are typically much larger than those targeted by the Model Short SPA. Therefore, the Deal Points Studies may be useful when identifying market trends, but users must be careful if relying on the Deal Points Studies to determine what is considered “market” for a Sub Lower Middle-Market transaction.

Extended producer responsibility (“EPR”) laws are increasingly making companies that market, distribute, and sell packaged consumer products responsible for the cost to dispose of the packaging that they place in the market. EPR packaging laws seek to improve recycling efficiency and reduce paper and plastic use by shifting the costs of packaging disposal from state and local governments to companies that market, distribute, and sell consumer products. For these companies, EPR laws can mandate membership in “producer responsibility organizations,” which require the payment of fees and impose significant reporting obligations. EPR laws also can carry per-violation penalties of tens of thousands of dollars.

California, Colorado, Maine, Maryland, Minnesota, Oregon, and Washington have enacted EPR statutes. Illinois, New Jersey, North Carolina, and other states are considering similar laws.

Below, we discuss how the new regimes work, which packaging materials are covered, where implementation stands, how enforcement will operate, opportunities to influence rulemaking, bases for potential legal challenges, and long‑term business implications.

EPR Packaging Laws Regulate Most Businesses That Sell Packaged Products

EPR laws shift financial responsibility for the disposal of used packaging materials from state and local governments to “producers.” That term is typically defined as someone who sells packaged products. Depending on the jurisdiction, this could encompass (1) the brand owner (or licensee) of the packaged product; (2) the manufacturer of the packaged product (or, in some instances, of the packaging itself); (3) the importer of the packaged product; and (4) the distributor or retailer of the packaged product. In addition, some states also specifically designate e-commerce platforms that package and ship products as the producer of the packaging.

Although definitions of “producer” can be complex, the idea behind them is straightforward: states seek to associate each package with exactly one in-state business, which they designate as the “producer” subject to EPR requirements. The selection of a single “producer” from all the businesses involved in the manufacture and use of packaging in the sale of consumer goods can, however, differ by state.

Given this wide variation, businesses selling packaged products should be attuned to potential EPR requirements and the implications for business decision-making. Likewise, manufacturers of packaging materials should consider the impact of EPR laws on their customers (i.e., companies that acquire packaging), including the fact that EPR laws may impact the demand for packaging and the types of packaging that customers purchase.

EPR Packaging Laws Cover Packaging in Any Shape or Form

EPR packaging laws generally cover consumer‑facing packaging—boxes, bags, containers, and the like—regardless of material. But the rules vary, both by state and with time, as regulators create and revise lists of covered materials. The technical and nonuniform nature of these definitions underscores the need for businesses to monitor EPR packaging laws (and implementing regulations) in their areas of operation.

For example, EPR regulations vary for food serviceware and different types of plastics. At present:

• California covers single‑use packaging and single‑use plastic food serviceware.
• Colorado covers packaging material intended for single or short-term use and paper products.
• Maine covers packaging material used to distribute products (including over the Internet).
• Maryland covers packaging and paper products.
• Minnesota covers packaging (including food packaging) and paper products.
• Oregon covers packaging, printing and writing paper, and food serviceware.
• Washington covers packaging and paper products.

Still more variation lurks beneath the surface. Although EPR laws generally use the term “packaging,” different states give that term different meanings. In California, for example, packaging “means any separable and distinct material component used for the containment, protection, handling, delivery, or presentation of goods by the producer for the user or consumer, ranging from raw materials to processed goods.”^[1] In Maine, by contrast, it “means a discrete type of material, or a category of material that includes multiple discrete types of material with similar management requirements and similar commodity values, used for the containment, protection, delivery, presentation or distribution of a product, including a product sold over the Internet, at the time that the product leaves a point of sale with or is received by the consumer of the product.”^[2]

Definitions of “packaging” may come with a host of exceptions. For example, some states exempt materials used to ship prescription drugs, medical devices, infant formula, hazardous materials, and certain printed publications.

EPR Packaging Laws Require Membership in Producer Responsibility Organizations

EPR laws seek to shift the burden of paying for the disposal of packaging from state and local governments to the businesses that manufacture, use, or sell packaging or packaged products.

Under EPR laws, companies that manufacture, distribute, or sell packaged products are subject to a number of new rules, which often include joining a state‑approved producer responsibility organization (“PRO”), paying fees to the PRO based on the amount of packaging they use, and reporting data on that packaging by material and weight, among other things. The PRO, in turn, is responsible for creating recycling or other programs to address and remediate waste from used packaging materials.

As this description suggests, both state and private actors play a role in adopting and enforcing EPR regulations. State agencies operate at a high level, setting minimum program elements and statewide lists or performance targets, and they enforce noncompliance through penalties and other sanctions. Meanwhile, private PROs like the Circular Action Alliance (“CAA”), which operates in multiple states, collect fees from producers and gather data on their use of packaging products. PROs then put the fees they collect toward programs designed to recycle packaging after consumers dispose of it.

EPR Packaging Laws Are Taking Effect Across the Country

Given the complexity of EPR packaging laws, states tend to roll them out over time. This process proceeds in several steps. First, a state establishes a regulatory framework (often through the state’s notice-and-comment rulemaking procedure). Next, the state selects one or more approved PROs. Finally, the state establishes deadlines for covered businesses to register with and pay fees to an approved PRO.

In addition, EPR laws frequently contain substantive requirements for packaging. These requirements are designed to ensure that packaging both can be recycled and is in fact recycled, with target recycling rates in some states (e.g., California) increasing over time.

Consistent with this framework, EPR packaging laws are beginning to take effect in a number of states. This process will accelerate through the rest of the decade.

• California: Rulemaking to implement the state’s EPR packaging law is in progress, and guidance about covered materials has been released. Producers must join a PRO by January 1, 2027, with escalating performance standards through 2032. During its first two years of operation, the PRO will determine the fee schedule for each producer based on factors like operating costs, the cost of completing a needs assessment, and the cost to reimburse the department. In the third year and each successive year of operation, each producer will pay an annual fee as established in the PRO plan.
• Colorado: Producers were required to join a PRO by July 1, 2025, to sell or distribute products. Fees are due in January of each following year.
• Maine: Final program rules were adopted in 2024. Producers will be required to register with the PRO, report initial data, and pay startup fees in 2026, with full implementation slated for 2027.
• Maryland: PRO registration and producer onboarding begins in 2026, with regulators to list covered materials by July 1, 2027, and the PRO to submit “responsibility” plans for producers by July 1, 2028. Those plans will be financed through reimbursements set to begin in 2028 and increase until reaching a maximum level in 2030.
• Minnesota: Producers will be subject to limited registration requirements in 2025–2026, with a PRO to begin operations in 2027–2028. Full implementation of the PRO’s stewardship plan will occur between 2029 and 2032, with substantive requirements for packaging and paper products to take effect in 2032.
• Oregon: Program implementation began on July 1, 2025. Producers must be registered with the PRO, report data, and pay fees.
• Washington: Producers must join the PRO in 2026, with rulemaking to proceed over the following years. Nonmembers cannot sell their products in Washington after March 2029.

Importantly, some of the phase-in dates above could be pushed back as regulators receive input from stakeholders. For example, California’s first rulemaking process (from 2024–2025) ended without the adoption of final regulations, requiring the state to revise the proposed regulations and begin the process anew.

EPR Packaging Laws Will Impact the Bottom Line

EPR laws have significant financial implications for companies that manufacture, distribute, or sell packaged products—from fees to reporting obligations to internal process modifications—and they carry the potential for substantial penalties and even packaging bans.

To start, covered businesses must pay PRO fees based on the amount of packaging they place in the stream of commerce—that is, use to package goods sold to consumers. These fees often are higher for hard‑to‑recycle materials and lower for readily recyclable, reusable, or compostable materials.

The levels of fees that PROs will charge in different states are still uncertain. However, some figures are available. The CAA’s 2026 Oregon fee schedule ranges from as little as $0 per pound (nonconsumer corrugated cardboard) and $0.05 per pound (paper) to more than $1.30 per pound (certain plastic containers and foamed cushioning), with most fees somewhere near the midpoint.

In light of state-by-state variation in the rules authorizing PROs to set fees, covered businesses must pay close attention to fee-setting methodologies in jurisdictions where their products are sold. Some companies may consider adjusting the makeup of packaging materials that they use to minimize compliance costs. Indeed, doing so could become a business imperative.

In Oregon, for example, businesses manufacturing, distributing, or selling packaged products face the prospect of paying approximately $100 million per year in the aggregate in PRO fees, even assuming their products are subject to low-end fees of $0.05 per pound. Every additional $0.01 per pound in fees (whether imposed through rate increases or arising from increased sales of products in hard-to-recycle packaging) would translate to over $20 million more per year in total industrywide costs.^[3]

Covered businesses also will face new obligations to record and report the volumes of packaging used in products that they sell in the applicable state, as well as the characteristics of that packaging. In order to meet these obligations, companies are required to collect and validate audit-ready data on the packaging that they use to manufacture, distribute, or sell goods in each state and the extent to which it can be recycled, reused, or composted, or otherwise satisfies state sustainability targets. Companies may need to adopt logistics systems capable of supplying this information.

Costs also may increase as businesses update their policies and procedures in accordance with new EPR requirements. Legal departments must review the evolving web of statutes and implementing regulations across different jurisdictions to ensure that their companies meet each set of requirements. The multiple layers of review in each state—including state environmental agencies and quasi-private PROs—further add to this complexity. Additional expenses could arise in working with state agencies throughout the rulemaking process to ensure that proposed regulations do not unduly burden industry. For example, during state notice-and-comment rulemaking processes, companies and industry groups might need to model the costs and benefits of proposed regulations and potential alternatives to identify methods for implementing EPR packaging laws.

Noncompliance carries the potential for significant penalties for businesses that fall under EPR laws. State environmental agencies generally have authority to enforce EPR laws, including through assessing penalties. Depending on the jurisdiction, penalties range from $1,000 for a first violation (Washington) to $100,000 per day for successive violations (Minnesota). Several states increase penalties for repeated incidents of noncompliance. Repeat noncompliance can also increase the penalty classification. In Maryland, for example, regulators may levy administrative penalties of $5,000 and $10,000 for first and second violations, respectively, followed by civil penalties of $20,000 for subsequent violations.^[4]

Finally, EPR laws often prohibit the sale of packaging (either on its own or when used to package something else) by unregistered or noncompliant businesses. In Minnesota, for example, businesses cannot “introduce” packaging into the state after January 1, 2029, absent a PRO-approved stewardship plan.^[5] Similarly, if a business violates Oregon’s PRO membership requirement, the state can “bring an action seeking to prohibit [its] sale” of packaging.^[6] Provisions like this effectively authorize regulators to obtain injunctions against the sale of packaging (or packaged goods) in violation of applicable EPR statutes, offering regulators yet another tool to enforce compliance.

Businesses Have Opportunities to Offer Input on EPR Regulations and Enforcement

The rapidly evolving EPR landscape offers ample opportunities for stakeholder input. First, the administrative rulemaking process provides regulated businesses the opportunity to inform state agencies of harmful or inefficient aspects of proposed EPR rules before they take effect. In Washington, for example, the Department of Ecology plans to begin rulemaking this year and conduct studies that will shape its PRO programs. Oregon’s Department of Environmental Quality has likewise launched a rulemaking process designed to “improve clarity, make identified corrections and provide increased consistency across the rules implementing to [sic] the Plastic Pollution and Recycling Modernization Act.”

Stakeholder input matters. For example, California’s first attempt to issue EPR rules failed, which led the state to launch a second round of rulemaking in late 2025. In January 2026, California regulators withdrew proposed EPR packaging rules to make targeted revisions focused on food and agricultural commodity packaging, and it held an additional fifteen-day public comment period. Businesses subject to EPR laws therefore may consider opportunities to participate in further rulemaking efforts in that state and elsewhere. Through this process, companies and industry groups can propose definitions to clarify the scope of covered packaging materials, offer input on timelines for implementation, discuss costs and benefits of possible fee calculation methodologies, harmonize data and labeling requirements, and ensure the creation of appropriate procedural guardrails. Businesses also can flag inefficiencies and other consequences of product definitions, vague fee schedules, rigid penalty regimes, and other issues.

Industry may also have other opportunities to participate in program design, implementation, and oversight outside the formal rulemaking process. States such as Maryland and Minnesota, for instance, have established advisory EPR councils. These bodies solicit input from the public about the effect and operation of EPR laws as they are developed and once they are in effect. The use of advisory councils to provide feedback to regulators, such as the Maryland Department of the Environment or the Minnesota Pollution Control Agency, offers another path to shape regulatory policies and practices.

More States Are Considering Future EPR Packaging Rules

State interest in EPR packaging regimes is increasing. In fact, several states are actively considering legislation to implement EPR packaging rules. States currently considering EPR legislation include the following:

• Illinois: The Extended Producer Responsibility and Recycling Refund Act (HB4064) would require producers of packaging to join a PRO that funds and implements a statewide program to reduce, reuse, recycle, and compost covered materials and meet escalating performance targets, including through fee modulation designed to incentivize recyclable, reusable, and post-consumer content packaging.
• New Jersey: The Packaging and Paper Product Stewardship Act (S673) would establish an EPR program requiring producers of packaging and paper products to join a PRO or implement their own approved plan and pay a surcharge toward recycling programs. The Act would also establish aggressive targets for recycling packaging products and create an Office of Plastics and Packaging Management to enforce these requirements.
• North Carolina: The Break Free From Plastic & Forever Chemicals Act (HB882) would establish an EPR program for certain packaging and plastics products, including creating a PRO, requiring manufacturers and distributors of packaged products to join that PRO, and enforcing the program through participation fees, reporting requirements, and potential penalties.

These proposals, if adopted, would add further complexity to the patchwork of state EPR laws and impose additional regulatory costs on covered companies.

Trade Associations Have Begun to Sue over EPR Packaging Laws

As states begin to enforce EPR packaging laws, some businesses and trade associations have launched legal challenges. For example, a lawsuit brought by the National Association of Wholesaler-Distributors challenging Oregon’s Plastic Pollution and Recycling Act presents a number of legal theories that, if successful, could serve as templates for challenges to other EPR laws.^[7] In February 2026, the court granted a preliminary injunction barring enforcement of the Act against the plaintiffs while the case proceeds to a trial scheduled for July 2026. The plaintiff’s theories include:

• Dormant Commerce Clause: The U.S. Supreme Court has inferred from the Constitution’s Commerce Clause that states cannot unduly burden interstate commerce.^[8] Under this principle (sometimes called the Dormant Commerce Clause), state laws that facially discriminate against out-of-state commerce are almost all invalid, and formally neutral laws with that effect also may be invalid, depending on the extent of the burden they impose on interstate commerce. For example, the Court in City of Philadelphia v. New Jersey held invalid a New Jersey law purporting to bar the importation of waste from other states as an attempt to “isolate [New Jersey] in the stream of interstate commerce from a problem shared by all.”^[9] To the extent EPR packaging laws disproportionately burden out-of-state commerce, they too could be subject to challenge under the Dormant Commerce Clause.

  That said, prior attempts to challenge other kinds of EPR laws on dormant-commerce-clause grounds have come up short. For example, the 2018 Second Circuit decision in VIZIO, Inc. v. Klee affirmed the dismissal of a manufacturer’s challenge to a Connecticut law requiring financial contributions to a television recycling program.^[10] The court reasoned that the law “merely affects pricing decisions,” as opposed to out-of-state conduct, and the manufacturer failed to allege that out-of-state manufacturers faced significantly greater burdens than in-state manufacturers.^[11]

• Unconstitutional Conditions: In certain contexts, “the government may not deny a benefit to a person because he exercises a constitutional right.”^[12] Yet EPR packaging laws require businesses manufacturing, distributing, or selling packaged goods to join PROs in order to continue operating, which has downsides: they must pay fees and may be required to accept other terms, including not contracting with other businesses and waiving the right to a jury trial. It could therefore be argued that EPR packaging laws violate rules barring states from coercing businesses to give up their constitutional rights.
• Due Process: States must provide fair, nonarbitrary procedures before depriving regulated entities of their liberty or property.^[13] In the 1994 case Honda Motor Co. v. Oberg, for instance, the Supreme Court rejected Oregon’s attempt to bar judicial review of punitive damages awards, holding that the bar facilitated “arbitrary” penalties without adequate procedural safeguards.^[14] In the EPR context, delegating fee-setting and enforcement responsibilities to PROs raises questions about the extent to which regulated businesses will receive a full and fair opportunity to challenge those fees. Some PROs also require members to engage in binding arbitration to resolve disputes, raising further questions about the extent to which members will be entitled to traditional procedural safeguards.
• Private Nondelegation: The private nondelegation doctrine limits the government’s authority to hand core regulatory power over to private actors.^[15] Similar principles contained in state constitutions could place barriers on delegating authority over recycling to private entities. That poses a potential problem for EPR packaging laws conferring substantial regulatory authority—including defining schedules of covered materials, setting and collecting fees, and making value judgments about the most suitable forms of packaging—on private PROs.

In granting a preliminary injunction, the court found that “serious questions go to the merits” of the Dormant Commerce Clause and the Due Process claims. The court declined to rule on the likelihood of success on the merits, applying a lower threshold that the Ninth Circuit uses in certain cases. Importantly, the injunction is limited to National Association of Wholesaler-Distributors and its members. Nonetheless, the ruling signals potential vulnerabilities in the PRO model that Oregon and other states have adopted.

In addition to the above theories being advanced in the Oregon case, some states believe that PRO coordination of recycling practices could raise antitrust concerns. Late last year, the attorneys general of Florida, Iowa, Nebraska, Montana, and Texas sent letters to environmental organizations questioning whether their efforts to increase collaboration among producers violates antitrust law.^[16] Several months later, those attorneys general were joined by four others in sending similar letters to more than eighty companies that purportedly are PRO members.^[17] To the extent states believe the collaborative efforts of environmental groups involve the adoption of coordinated rules designed to advance ideological objectives in lieu of consumer welfare, the letters raise the prospect of potential state enforcement actions against PROs or their members. Private antitrust challenges are also possible, at least to the extent that PRO rules do not reflect “clearly articulated state policy” and state agencies do not “actively supervise” the implementation of such rules.^[18]

Businesses Should Act Now to Prepare for Today’s EPR Packaging Regimes

With Oregon already enforcing EPR packaging rules and other states close behind, EPR compliance is a near‑term operational requirement and a long-term strategic imperative for companies that place covered packaging on the market, including brand owners, licensees, importers, retailers, and distributors that are deemed “producers.” Understanding the legal landscape and proactively navigating EPR regimes can preserve market access and position companies to more effectively compete.

Among other measures, regulated entities should confirm “producer” status by state and map where covered materials are manufactured, distributed, and sold; register with applicable PROs; create internal processes to collect jurisdiction-specific data on packaging attributes, material weight, recycled content, and reuse performance; and monitor legislation, rulemaking, and litigation that may affect the scope of state EPR requirements. Beyond compliance, EPR has direct business implications for pricing, product and packaging design, and supply chain governance: fee schedules and eco‑modulation can shift unit economics, and reporting obligations necessitate investments in data systems and board‑level oversight.

Early alignment of legal, sustainability, procurement, and finance functions can reduce compliance risk, lower total cost, and capture commercial advantage with more recyclable, lower‑fee packaging.

1. Cal. Pub. Res. Code § 42041(s). ↑

2. 38 Me. Rev. Stat. § 2146(1)(I). ↑

3. These calculations assume that Americans consume about 82.2 million tons of packaging per year and that Oregon consumers account for about 1.25% of that total, corresponding to the state’s share of the nation’s population. ↑

4. Md. Code Ann., Env’t § 9-2512(b). ↑

5. Minn. Stat. Ann. § 115A.1448, subdiv. 1(b). ↑

6. Or. Rev. Stat. § 459A.962(6). ↑

7. See Nat’l Ass’n of Wholesaler-Distribs. v. Or. Dep’t of Env’t Quality, No. 3:25-cv-01334 (D. Or.). ↑

8. See, e.g., Pike v. Bruce Church, Inc., 397 U.S. 137 (1970). ↑

9. 437 U.S. 617, 628–29 (1978). ↑

10. 886 F.3d 249, 252 (2d Cir. 2018). ↑

11. Id. at 257, 259–60. ↑

12. Regan v. Taxation With Representation of Wash., 461 U.S. 540, 545 (1983). ↑

13. See, e.g., Honda Motor Co. v. Oberg, 512 U.S. 415 (1994); Fuentes v. Shevin, 407 U.S. 67 (1972). ↑

14. Honda Motor Co., 512 U.S. at 432–45, ↑

15. See, e.g., A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935); Nat’l Horseman’s Benevolent & Protective Ass’n v. Black, 53 F.4th 869 (5th Cir. 2022). ↑

16. See Letter from James Uthmeier, Attorney General of Florida, et al. to Wai-Chan Chan, The Consumer Goods Forum (Oct. 29, 2025); Letter from James Uthmeier, Attorney General of Florida, et al. to Paul Nowak, Green Blue Institute (Oct. 29, 2025). ↑

17. See Letter from James Uthmeier, Attorney General of Florida, et al. to John Sullivan, Costco (Feb. 10, 2026). ↑

18. S. Motor Carriers Rate Conf., Inc. v. United States, 471 U.S. 48, 65–66 (1985). ↑

Amendments to the Delaware Limited Liability Company Act, 6 Del. C. § 18-101 et seq. (the “LLC Act”), and the Delaware Revised Uniform Limited Partnership Act, 6 Del. C. § 17-101 et seq. (the “LP Act”), have been proposed for adoption by the Delaware General Assembly in 2026. The proposed amendments to the LLC Act and LP Act include adding a definition of “certificate of registered series,” confirming that an operating agreement may establish or provide for the establishment of one or more series that are not protected series or registered series, and confirming the ability of limited partnerships and limited liability companies with series to engage in mergers, conversions, or consolidations. Additional amendments have been proposed to the LP Act regarding amendments to certificates of limited partnership and certificates of registered series, requirements for execution of certificates of amendment and certificates of correction, liability for materially false statements in a certificate authorized to be filed by the LP Act, and statements required to be included in the application for registration for foreign limited partnerships.

If adopted, the amendments to the LLC Act and LP Act are proposed to take effect on August 1, 2026.

Definition of Certificate of Registered Series

Amendments to Section 18-101(2) of the LLC Act and Section 17-101(1) of the LP Act have been proposed to add a definition of “certificate of registered series,” in light of multiple statutory references to this term. Both Delaware limited liability companies and Delaware limited partnerships can establish a registered series of such company or limited partnership. The process of establishing a registered series includes filing a certificate of registered series with the Delaware Secretary of State. The proposed definition provides that a “certificate of registered series” means the certificate and any amendments thereto referred to in Section 18-218 of the LLC Act and Section 17-221 of the LP Act.

Confirming Flexibility of Limited Liability Companies and Limited Partnerships with Series

Amendments to Section 18-218(a) of the LLC Act and Section 17-218(a) of the LP Act have been proposed to confirm that (i) a limited liability company agreement or partnership agreement may establish or provide for the establishment of one or more series that are not protected series or registered series, and (ii) the limitation on merger, conversion, and consolidation of a series in Section 18-215(a) of the LLC Act and Section 17-218(a) of the LP Act does not restrict a limited liability company or limited partnership with series from merging, converting, or consolidating pursuant to any section of the LLC Act or LP Act, as applicable, or as otherwise permitted by law.

Amendments of Certificates of Limited Partnership and Certificates of Registered Series

Amendments to Section 17-202 of the LP Act have been proposed to allow a limited amendment of a certificate of limited partnership to be made by a person who has ceased to be a general partner of the limited partnership but is shown on the certificate of limited partnership as a general partner. The proposed amendments, in the form of a new Section 17-202(d), would require the certificate of amendment to state only (i) the name of the limited partnership and (ii) that the person has ceased to be a general partner of the limited partnership. Because the amendment has the effect of amending the information required to be set forth in a certificate of limited partnership by Section 17-201(a)(3) of the LP Act, it also constitutes notice that the person has ceased to be a general partner. The proposed amendments also amend Section 17-202(c)(2) of the LP Act to clarify that, unless a certificate of amendment has already been filed pursuant to new Section 17-202(d) of the LP Act, Section 17-202(c)(2) applies any time a person has ceased to be a general partner of a limited partnership and not just upon a withdrawal of a general partner.

Similar amendments have been proposed to Section 17-221(d) of the LP Act with respect to the limited amendment of a certificate of registered series to be made by a person who has ceased to be a general partner associated with the registered series but is shown on the certificate of registered series as a general partner associated with the registered series. The proposed amendments, in the form of a new Section 17-221(d)(6), would require the certificate of amendment to state only (i) the name of the limited partnership, (ii) the name of the registered series, and (iii) that the person has ceased to be a general partner associated with the registered series. Because the amendment has the effect of amending the information required to be set forth in a certificate of registered series by Section 17-221(d) of the LP Act, it also constitutes notice that the person has ceased to be a general partner associated with the registered series. The proposed amendments also amend Section 17-221(d)(5)b. of the LP Act to clarify that, unless a certificate of amendment has already been filed pursuant to new Section 17-221(d)(6) of the LP Act, Section 17-221(d)(5)b. applies any time a person has ceased to be a general partner associated with a registered series and not just upon a withdrawal of a general partner associated with a registered series. The proposed amendments also make conforming changes to certain provisions of Section 17-221 of the LP Act by changing the word “of” to the words “associated with,” as used elsewhere in the LP Act. These changes are intended to provide a consistent approach when referring to the relationship between a general partner and a registered series of a Delaware limited partnership.

Execution of Certificates of Amendment and Certificates of Correction

Amendments to Section 17-204(a)(2) of the LP Act, which addresses execution of certificates of amendment and certificates of correction, have been proposed to clarify that the former general partner of a limited partnership that has filed a certificate of amendment of a certificate of limited partnership under Section 17-202 of the LP Act must execute a certificate of amendment authorized by new Section 17-202(d).

An additional amendment has been proposed to Section 17-204(a)(9) of the LP Act, which addresses the execution of certificates of amendment of certificates of registered series and certificates of correction of certificates of registered series. Due to the proposed amendments to Section 17-221(d) of the LP Act that allow a person who was formerly a general partner associated with a registered series to file a certificate of amendment of a certificate of registered series in certain circumstances, the proposed amendment to Section 17-204(a)(9) of the LP Act clarifies that the former general partner must execute a certificate of amendment authorized by new Section 17-221(d)(6) of the LP Act or any certificate of correction that is correcting a certificate of amendment filed pursuant to new Section 17-221(d)(6) of the LP Act.

Liability for False Statements in Certificates

The proposed amendments to Section 17-207 of the LP Act, which addresses liability for materially false statements in any certificate authorized to be filed by the LP Act, clarify that Section 17-207 of the LP Act applies to any person who executed a certificate pursuant to subchapter IX of the LP Act, whether or not such person is a general partner of the foreign limited partnership. Subchapter IX of the LP Act was previously amended to clarify that certain documents filed in the office of the secretary of state with respect to a foreign limited partnership may be executed by any person authorized to execute the document on behalf of the foreign limited partnership (which may or may not be a general partner of the foreign limited partnership).

Required Statement in Application for Registration of Foreign Limited Partnerships

The proposed amendment to Section 17-902(1) of the LP Act provides that the statement required to be included in an application for registration as a foreign limited partnership shall be made by the person who signs the application (whether or not such person is a general partner of the foreign limited partnership).

Between the end of World War II and the first term of President Donald Trump, the average tariff rate on foreign goods entering U.S. commerce hovered around 2 percent. According to geopolitical strategist Peter Zeihan, the United States maintained low tariff barriers as part of a deliberate—and ultimately successful—Cold War strategy of “bribing up” a global alliance of countries willing to contain the Communist threat posed by the Soviet Union.^[1] When the Cold War ended in 1989, however, so did the national security justification for allowing easy, low-tariff access to the American market, according to Zeihan.^[2]

Whether or not one agrees with Zeihan’s thesis, tariff burdens that once operated as marginal costs for American businesses have increased dramatically since Trump’s second term began. The average U.S. tariff rose from 2.2 percent in January 2025 to 10.91 percent in October, an increase of nearly 394 percent in under a year.^[3] In some sectors, the average tariff burden is even more pronounced.^[4] Steel and aluminum imports now face average duties of 39.8 percent, while automotive goods are subject to tariffs of about 21 percent.^[5] In antidumping cases brought by the U.S. Department of Commerce—which impose additional duties on imported goods found to be sold in the United States at unfairly low, “dumped” prices that injure U.S. industries— duty rates reaching well into triple digits are not uncommon. As tariff rates have leaped upward, costs that were once a rounding error have, for many companies, become a major factor influencing pricing, sourcing, supply‑chain structuring, and margin planning.

In this context, whether one’s competitors pay their fair share of tariffs becomes a significant—if not existential—issue for many businesses. After all, if a business is playing by the new tariff rules and their competitors are not, those competitors gain a critical pricing advantage that can cause the business to lose substantial market share and even threaten the company’s financial viability.

This is where the False Claims Act (“FCA”) comes in. The FCA is a federal statute dating back to the Civil War, when price gouging of the U.S. government by military suppliers was epidemic. The FCA allows the federal government to sue parties that knowingly submit false payment claims or otherwise avoid paying monies owed to the government and can also trigger criminal exposure under related federal criminal laws.

A key feature of the FCA is its qui tam mechanism, which grants private individuals (“relators”) the right to file an FCA claim on behalf of the government. If the case succeeds, the relator is rewarded with up to 30 percent of the government’s recovery. The FCA thus effectively deputizes private individuals and companies to help enforce the law. Yet because the Court of International Trade (“CIT”) has exclusive jurisdiction over certain civil actions “commenced by the United States,” for years a threshold procedural question has lingered: in what court may private litigant FCA claims arising from underpayment of duties/tariffs be brought—only the CIT or also federal district courts?

On June 23, 2025, the U.S. Court of Appeals for the Ninth Circuit answered this question, at least for that circuit. In Island Industries v. Sigma Corp.,^[6] the court upheld a $26 million judgment in an FCA case for evasion of antidumping duties. In so doing, it also ruled that a relator’s FCA claim based on failure to pay duties may proceed in either federal district court or the CIT. The court reasoned that the CIT’s exclusive jurisdiction provision for customs actions “commenced by the United States” does not bar a private relator from bringing an FCA claim in district court, even if the federal government later intervenes in the private action, as frequently occurs.^[7]

Island Industries also clarified that 19 U.S.C § 1592 of the Tariff Act does not displace or supersede the FCA. Instead, the court explained that the Tariff Act and the FCA overlap, so a relator may pursue an FCA claim in district court while U.S. Customs and Border Protection pursues remedies under the Tariff Act in the CIT. Courts evaluating customs-related FCA claims in other jurisdictions have reached similar conclusions.

The decision in Island Industries adds significantly to the toolkit of lawyers representing businesses that suspect their competitors may not be paying their fair share of tariffs and thereby may be gaining a competitive edge. If the Island Industries rationale is widely adopted, it will allow these lawyers to bring relator claims for tariff avoidance against their clients’ competitors in the local district court as opposed to being forced into the CIT with its specialized rules and procedures. Lawyers representing clients who are playing by the new tariff rules should therefore welcome this decision.

This article offers a framework for advising clients on how to identify, assess, and respond to potential FCA issues raised in the customs/tariff context as a relator in a private qui tam action.

It should be noted at the outset that this article does not attempt to address the specific issues raised by so-called whistleblower FCA claims brought against a company by one of its own employees. While the issues arising from an FCA whistleblower lawsuit overlap with many of those treated in this article, such actions also involve topics peculiar to whistleblower claims and so go beyond our scope.

Island Industries’ Road Map for Identifying Duty/Tariff Evasion by Competitors

The Island Industries opinion provides insight for lawyers and outlines how a relator can identify potentially unlawful duty-avoidance practices on the part of business competitors using information that market participants already possess or can easily and lawfully obtain.

In Island Industries, the relator began with a discovery that the competitor’s pricing appeared inconsistent with what antidumping duties would ordinarily require for welded outlets, the product at issue.^[8] The relator then compared the competitor’s publicly available marketing descriptions and the observable physical features of the products to the duty requirements for welded outlets under the applicable antidumping orders.^[9] This comparison indicated that the products’ advertised characteristics matched items subject to antidumping duties, even though the competitor’s customs filings classified them as duty-free.^[10] In other words, when the relator compared the readily accessible sources with the competitor’s customs filings, the relator uncovered discrepancies that suggested the duty status declared at entry did not match how the products were being marketed in the industry.^[11]

The relator also noted that the competitor publicly described the goods as welded outlets yet declared them as steel couplings on its customs forms, a classification that avoided antidumping duties.^[12] This example illustrates how competitors’ product descriptions on the internet and pricing patterns—combined with scope rulings, binding letter rulings, and the Harmonized Tariff Schedule—can be valuable sources for determining whether one’s competitors are playing by the tariff rules.

It is important to note, however, that public sources alone may not be sufficient to sustain a qui tam claim where the core allegations have already been aired publicly.^[13] Under the FCA’s public disclosure bar, 31 U.S.C. § 3730(e)(4)(A), dismissal may be required (unless opposed by the government) if “substantially the same allegations or transactions” were publicly disclosed in a qualifying federal hearing, a federal report/audit/investigation, or the news media.

Nevertheless, Island Industries demonstrates how publicly available market facts can signal duty evasion by a competitor and so produce a substantial recovery. Indeed, the relator’s investigation in Island Industries led to a $26 million judgment against the defendant, of which the relator received more than $2.7 million.

Step by Step: How to Tell If Your Client’s Competitors Are Abiding by the New Tariff Landscape

Step 1: Begin with Industry Expertise and Market Knowledge

The strongest initial indicator that something may be amiss is often a business’s own understanding of its products, including its supply chain and tariff obligations. When a competitor’s pricing or other market terms diverge in ways that cannot be justified by volume, logistics, or commercial factors, that discrepancy may warrant closer scrutiny. Certain unfair practices, when taken, can first manifest as unusual or unexplained pricing advantages. Some of the most common include: (1) misclassification, where a product is assigned an incorrect—often lower‑duty—tariff category under the Harmonized Tariff Schedule (“HTS”), the system the United States uses to classify imported goods; (2) implausible country‑of‑origin claims, where goods with a true origin in a higher‑tariff jurisdiction are declared as originating in a lower‑tariff country; and (3) undervaluation, where the declared customs value is set below the actual price paid or payable, reducing the duty base and artificially lowering tariff‑related costs.

Step 2: Identify Red Flags

Certain patterns surface repeatedly in customs‑related FCA cases. These red flags can include (1) a competitor classifying its product under an awkward or clearly inappropriate HTS code, which can lead to undeservedly low duty rates—for example, when an importer declares precision‑machined stainless‑steel valves under an HTS code intended for unprocessed steel billets, potentially bypassing the higher duties that would otherwise apply to finished industrial equipment; (2) origin declarations that do not align with known manufacturing presence, meaning the declared country‑of‑origin does not match where the product’s meaningful manufacturing actually occurs, because customs generally determines origin based on the location of the product’s substantial transformation—not where the goods were merely shipped, packaged, or lightly finished; or (3) valuation practices that seem inconsistent with industry standards.

Step 3: Collect and Preserve Reliable, Lawful Evidence

If concerns persist, the next step is gathering supporting documentation. For example, one can draw from trade data platforms (including manifest‑based shipment data), product catalogs, pricing histories, scope rulings, and (as in Island Industries) marketing materials to test whether a competitor’s public product representations and observable product characteristics are consistent with the duty treatment that the importer appears to be claiming. In some cases, import‑related information may only become available later in the process through government information requests or subpoenas, Freedom of Information Act responses, or litigation discovery.

Step 4: Evaluate Whether Key FCA Elements May Be Implicated

Once irregularities are identified, it is essential to understand whether the legal elements that underpin a customs‑related FCA theory might be present. Lawyers should look for:

• A plausible obligation to pay duties on a given product
• Indications that the competitor’s conduct was not an error and instead was a knowing or at least reckless effort to avoid duties/tariffs
• Evidence that any false statements made by the competitor would have affected duty assessment

Patterns across multiple entries, repeated misclassifications, or persistent valuation discrepancies often indicate more than one‑off clerical errors.

Step 5: Organize a Coherent Factual Narrative

As Island Industries demonstrates, a strong submission—whether to internal compliance teams, outside counsel, or when seeking the government’s intervention in a qui tam action—depends on presenting a clear account of what the competitor is doing and why it matters. Companies should thus assemble a narrative supported by documentation, trade data, scope or letter rulings, and detailed comparisons between commercial representations and importer filings, if these are available. The relator in Island Industries did precisely this by aligning publicly observable facts with the duty framework and highlighting where the two could not be reconciled.

Step 6: Engage Counsel and Consider Appropriate Next Steps

If concerns remain after an internal assessment, businesses should consult counsel experienced in customs and FCA matters. Counsel can help evaluate potential exposure, assess whether additional information is needed, and determine whether intervention by the government in a private FCA action is likely. Timing can also be important, particularly under the FCA’s first‑to‑file rule, which bars later suits alleging the same facts as a pending FCA action.^[14] Thus, early legal engagement helps ensure that next steps are taken thoughtfully and in compliance with applicable confidentiality rules.

Conclusion

Island Industries demonstrates how the qui tam, that is, private litigant provisions of the FCA can level the playing field if tariff-dodging shenanigans are giving an unfair advantage to your clients’ business competitors. This Ninth Circuit decision significantly expanded lawyers’ forum selection options for bringing private FCA claims to include the local district court and not just the CIT. Accordingly, if your business client is seeking to address unfair tariff avoidance by its competitors, the practical framework offered in this article can help you navigate the FCA’s complex private litigant provisions in order to protect your clients’ interests.

1. Peter Zeihan, Here We Go (Mar. 5, 2018). ↑

2. Id. ↑

3. Penn Wharton, Penn Wharton Budget Model: Effective Tariff Rates and Revenues (Updated January 15, 2026) (Jan. 15, 2026). ↑

4. See id. ↑

5. Id. ↑

6. Island Indus., Inc. v. Sigma Corp., No. 22‑55063 (9th Cir. Aug. 21, 2025). ↑

7. Id. at 16–17. ↑

8. See id. at 12, 26–27. ↑

9. See id. ↑

10. See id. at 14. ↑

11. See id. at 12–14. ↑

12. See id. at 12–14, 26–27. ↑

13. 31 U.S.C. § 3730(e)(4)(A). ↑

14. Id. § 3730(b)(5). ↑

Editors

§ 1. Tribal Litigation & the Third Sovereign

We have been writing this annual update of cases relevant to tribal litigation for many years. Recognizing that the average practitioner consulting this volume may not have much experience with federal Indian law, we have endeavored to provide historical context and citation to most relevant circuit and even district court cases in every volume. To target primarily those cases decided within the last year, this chapter focuses on cases decided between October 1, 2024, and October 1, 2025. The chapter begins with a Supreme Court overview and then is structured around sovereigns—Indian Tribes, the United States, and the fifty sister States.

Retired Supreme Court Justice Sandra Day O’Connor has aptly referred to tribal governments as the “third sovereign” within the United States.^[4] Much like federal and state governments, tribal governments are elaborate entities often consisting of executive, legislative, and judicial branches.^[5] Tribes are typically governed pursuant to a federal treaty, presidential executive order, tribal constitution and bylaws, and/or tribal code of laws, implemented by an executive authority such as a tribal chairperson, governor, chief, or president (similar to the United States’ president or a state’s governor) and a tribal council or senate (the legislative body). Tribal courts adjudicate most matters arising from their reservations or under tribal law.^[6]

Indian tribes are “distinct, independent political communities, retaining their original natural rights” in matters of local self-government.^[7] Thus, state laws generally “have no force” in Indian Country.^[8] While in the eyes of federal and state government, tribes no longer possess “the full attributes of sovereignty,” they remain a “separate people, with the power of regulating their internal and social relations.”^[9]

This chapter explores the repose of tribal sovereignty, federal plenary oversight of that sovereignty, and perennial state encroachment upon that sovereignty. Federal trial and appellate courts issue more than 650 written opinions in cases dealing with Indian law each year,^[10] and settle, dismiss, or resolve without opinion countless others. This chapter introduces those cases most relevant to a business litigation focused audience.

§ 2. Indian Law & the Supreme Court

§ 2.1. The 2024–2025 Term

The U.S. Supreme Court hears an average of between one and three new Indian law cases every year.^[11] During the 2024–2025 term, the Supreme Court did not decide any Indian law cases.

§ 2.2. Preview of the 2025–2026 Term

As of November 13, 2025, there are five petitions for certiorari pending before the Supreme Court on cases involving Indian law. If any new cases are granted and decided, they will be included in next year’s volume.

§ 3. The Tribal Sovereign

§ 3.1. Tribal Courts

More than half of the 574 federally recognized tribes have created their own court systems and promulgated extensive court rules and procedures to govern criminal and civil matters involving their members, businesses, and activity conducted on their lands. Notwithstanding federal restrictions on tribal adjudicatory power, tribes have extensive judicial authority. As the complexity of life on reservations has increased, so has Congress’ willingness to enhance and aid tribal courts’ adjudicatory responsibilities.

While tribal courts are similar in structure to other courts in the United States, the approximately 400 Indian courts and justice systems currently functioning throughout the country are unique in many significant ways.^[12] It cannot be overemphasized that every tribal court is different and distinct from the next.^[13] For example, the qualifications of tribal court judges vary widely depending on the court.^[14] Some tribes require tribal judges to be members of the tribe and to possess law degrees, while others do not.^[15] Some tribal courts meet regularly and have a fairly typical court calendar, while others may meet on Saturdays or only a couple days a month in order to meet the more limited needs of a court system serving a smaller population or a particularly isolated tribal community.

Tribal courts can have their own admissions rules, and counsel should not assume that because they are licensed in the state where the tribal court is located that they can automatically appear in tribal court. While many tribes allow members of the state bar to join the tribal bar, often for a nominal annual fee, the requirements vary from one tribe to another. For example, the Navajo Nation has its own bar exam that tests knowledge of Navajo tribal law as well as other requirements.^[16]

Counsel should keep this uniqueness in mind when addressing a tribal court orally or in writing. If counsel has never appeared before a particular tribal court, it would be wise to solicit common court practices from persons who regularly appear before the court.

Tribal court jurisdiction depends largely on: (1) whether the defendant is a tribal member^[17]; and (2) whether the dispute occurred in Indian Country,^[18] particularly lands held in trust by the United States for the use and benefit of a tribe or tribal member or fee lands within the boundaries of an Indian reservation.^[19] These two highly complex issues should be analyzed first in any tribal business dispute.

In the context of a tribe’s civil authority, the important distinction is between tribal members and non-members (whether or not the non-member is an Indian). Generally, tribal courts have jurisdiction over a civil suit by any party, member, or non-member against a tribal member Indian defendant for a claim arising on the reservation.^[20] Even in tribal court, claims against the tribe itself require a waiver of tribal immunity.^[21] Indian tribes also generally have regulatory authority over tribal member and non-member activities on Indian land.^[22]

In the “path-making” decision of Montana v. United States,^[23] however, the U.S. Supreme Court held that a tribal court cannot generally assert jurisdiction over a non-tribal member when the subject matter of the dispute occurs on land owned in fee by a non-member, explaining that “exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of tribes, and so cannot survive without express Congressional delegation.”^[24] To help lower courts determine when the assertion of tribal power is necessary, the Court articulated two exceptions: (1) a tribe may have civil authority over the activities of non-tribal persons who enter into consensual relations with the tribe or its members via a commercial dealing, contract, lease, or other arrangement; or (2) the tribe has civil authority over non-Indians when their actions threaten or have a direct effect upon the “political integrity, the economic security, or the health or welfare of the tribe.”^[25]

These exceptions are “limited,” and the burden rests with the tribe to establish the exception’s applicability.^[26] The first exception specifically applies to the “activities of non-members,” and the second exception is extremely difficult to prove, as it must “imperil the subsistence of the tribal community.”^[27] These exceptions have become known as the “Montana rule.”

There are new opinions issued every year on the limits of tribal court jurisdiction that are built upon Montana and its exceptions. This section highlights those most relevant.

Tix v. Tix, 758 F.Supp.3d 960 (D. Minn. 2024).

In Tix v. Tix, the court held that a tribal court had authority, under Montana’s first exception, to adjudicate a marriage dissolution proceeding where one of the parties to the marriage is a nonmember who does not reside on tribal land. In this case, the plaintiff, Kristin Tix, married Robert Tix, a member of the Prairie Island Mdewakanton Dakota Indian Community (“PIIC”). They had three children who were each enrolled members of the PIIC. During their marriage, the family did not reside on the reservation, instead residing in Edina, Minnesota. However, neither spouse was employed during the marriage. Rather, they supported themselves through Robert’s per capita payments from the PIIC. Additionally, the plaintiff, defendant and the children each received health and dental insurance through the PIIC.

The couple eventually decided that they would divorce. In February of 2022 Kristin filed for dissolution of their marriage in Hennepin County District Court. Simultaneously, Robert filed for dissolution of the marriage in the Court of the Prairie Island Mdewakanton Dakota Community (the “Tribal Court”). Despite numerous efforts by Kristin to proceed in the Hennepin County Court, the case was ultimately deferred until the Tribal Court reached its ultimate decision. The Tribal Court ultimately issued its Order for Judgment (the “Order”). The Order denied Kristin any spousal maintenance, as the PIIC Judicial Code prohibited the Tribal Court from considering Robert’s per capita payments when establishing any form of maintenance. However, the Order further provided for child support to be paid by Robert to Kristin and divided the parenting time between the two of them. While Kristin appealed the Order, she was ultimately unsuccessful.

Dissatisfied with her lack of success on appeal from the Order, Kristin filed the action at the center of this case in the Federal District Court for the District of Minnesota (the “District Court”). Her most relevant argument on appeal was that federal law, established in the Montana decision, prohibits the Tribal Court from exercising jurisdiction over a nonmember in circumstances such as these. The District Court disagreed, relying on Montana’s first exception. As provided in Montana, while generally a tribe may not regulate nonmembers on non-Indian fee land, “a tribe may regulate . . . the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements.” Montana v. United States, 450 U.S. 544, 565 (1981). The District Court found that a “consensual relationship” was in fact entered into by Kristin for purposes of Montana. While Kristin argued that this off-reservation act should not fall under the first Montana exception, the District Court disagreed. The District Court considered not only the act of marrying a PIIC member, but also the benefits that her and her children received from the PIIC. These factors made clear, to the District Court, that Kristin not only entered into a consensual relationship with a PIIC member, but also that she could reasonably anticipate that the PIIC could exercise control over the marriage dissolution.

The plaintiff relied on two cases to support her argument that the Tribal Court could not have jurisdiction over her marriage dissolution dispute. First, she referenced Sanders v. Robinson, 864 F.2d 630 (9th Cir. 1988). Sanders permitted a tribal court jurisdiction over a marriage dissolution dispute when the nonmember spouse resided on the reservation. The plaintiff argued that Sanders suggests that if the nonmember spouse did not reside on the reservation, then the tribal court jurisdiction would be improper. The District Court found this argument unpersuasive, because Sanders simply did not explore the factual scenario present in this case. Sanders dealt only with the limits of tribal courts to exercise authority over nonmembers on reservation land. Next, the plaintiff cited Hornell Brewing Co. v. Rosebud Sioux Tribal Court, 133 F.3d 1087 (8th Cir. 1998) for the proposition that Montana does not allow tribal courts to exercise jurisdiction over nonmembers for conduct occurring outside of the reservation. However, the District Court quickly dismissed this argument, as Hornell Brewing did not even involve the first Montana exception, but was rather only concerned with the second exception.

The District Court cited to only one case which supported tribal court jurisdiction over a nonmember who did not reside on the reservation, this being Turpen v. Muckleshoot Tribal Court, No. C22-0496-JCC, 2023 WL 4492250 (W.D. Wash. July 12, 2023). In Turpen, the court permitted tribal court jurisdiction over the marriage dissolution dispute between a member and nonmember of the tribe. This couple lived on the reservation prior to their marriage but resided off the reservation during the entirety of their marriage.

Based on this consensual relationship, the District Court ultimately decided that the Tribal Court’s jurisdiction over this marriage dissolution was proper based on Montana’s first exception and dismissed the plaintiff’s complaint with prejudice.

Lexington Ins. Co. v. Mueller, Nos. 23-55144, 23-55193, 2024 WL 5001815 (9th Cir. Dec. 6, 2024).

In Lexington Ins. Co. v. Mueller, the court found that Montana’s first exception permitted a tribal court to retain jurisdiction over a dispute between a nonmember owned insurance company and a tribe. In this case, Lexington Insurance Company (“Lexington”) entered into agreements with businesses run by the Cabazon Band of Cahuilla Indians (the “Cabazon Band”), a federally recognized Indian tribe. During the Covid-19 pandemic, the Cabazon Band temporarily closed their businesses. This led the Cabazon Band to submit insurance claims for these losses. When Lexington denied coverage, the Cabazon Band sued Lexington in the Cabazon Reservation Court (the “Tribal Court”). Lexington, attempting to avoid litigating in the Tribal Court, sued the Reservation Court judges in federal court, seeking injunctive relief. The district court granted in part and denied in part the defendants’ motion to dismiss and granted the defendants’ summary judgment motion.

On appeal, the court addressed whether jurisdiction would be proper in the Tribal Court. Relying on the Ninth Circuit case Lexington Ins. Co. v. Smith, 94 F.4th 870 (9th Cir. 2024), the court found that the Tribal Court does have jurisdiction to hear this dispute under the first Montana exception. The business relationship with the Cabazon Band satisfies the requirements under Montana’s first exception as the relationship is a commercial dealing directly with the Cabazon Band. This case reaffirms Lexington Ins. Co. v. Smith, as the facts of both cases were said to be indistinguishable from one another.

§ 3.2. Exhaustion of Tribal Court Review

The doctrine of exhaustion of tribal remedies reflects the ongoing tension between tribal and federal courts. If a tribal court claims jurisdiction over a non-Indian party to a civil proceeding, the party usually^[28] is required to exhaust all options in the tribal court prior to challenging tribal jurisdiction in federal district court.^[29] If tribal options are not exhausted prior to bringing suit in federal court, the federal court will likely dismiss^[30] or stay^[31] the case.

Ultimately, the question of whether a tribal court has jurisdiction over a nontribal party is one of federal law, giving rise to federal questions of subject matter jurisdiction.^[32] Thus, non-Indian parties can challenge the tribal court’s jurisdiction in federal court.^[33] Pursuant to this doctrine, a federal court will not hear a matter arising on tribal lands until the tribal court has determined the scope of its own jurisdiction and entered a final ruling.^[34] Ordinarily, a federal court should abstain from hearing the matter “until after the tribal court has had a full opportunity to determine its own jurisdiction.”^[35] And again, notwithstanding a provision that appears to vest jurisdiction with an arbitrator, several federal courts have ruled that a tribal court should be “given the first opportunity to address [its] jurisdiction and explain the basis (or lack thereof) to the parties.”^[36]

After the tribal court has ruled on the merits of the case^[37] and all appellate options have been exhausted,^[38] the non-tribal party can file suit in federal court, whereby the question of tribal jurisdiction is reviewed under a de novo standard.^[39] The federal court may look to the tribal court’s jurisdictional determination for guidance; however, that determination is not binding.^[40] If the federal court affirms the tribal court ruling, the nontribal party may not relitigate issues already determined on the merits by the tribal court.^[41]

There are several exceptions to the exhaustion doctrine. First, federal courts are not required to defer to tribal courts when an assertion of tribal jurisdiction is “motivated by a desire to harass or is conducted in bad faith . . . or where the action is patently violative of express jurisdictional prohibitions, or where exhaustion would be futile because of the lack of an adequate opportunity to challenge the court’s jurisdiction.”^[42] Second, when “it is plain that no federal grant provides for tribal governance of non-members’ conduct on land covered by Montana’s main rule,” exhaustion “would serve no purpose other than delay.”^[43] Third, where the primary issue involves an exclusively federal question, exhaustion of tribal remedies may not be mandated.^[44]

Because litigation is expensive, the question of whether the defendant is required to exhaust their tribal court remedies before challenging the jurisdiction of the tribal court is regularly litigated.^[45]

Parker v. Halftown, No. 5:24-CV-886 (BKS/TWD), 2024 WL 4651794 (N.D.N.Y. Nov. 1, 2024).

Plaintiff filed a writ of habeas corpus under the Indian Civil Rights Act of 1968 (“ICRA”) against several members of the Cayuga Nation Council in their official capacities. He alleged that the Respondents banished him from the reservation and seized his smoke shop. The Plaintiff had filed multiple actions in tribal, state, and federal court prior to the suit at issue. The Respondents motioned the District Court to dismiss for lack of subject matter jurisdiction.

The Respondents moved to dismiss the Plaintiff’s claims because the banishment was not permanent and thus did not fall under the ICRA, the Plaintiff failed to exhaust his tribal court remedies, and the Plaintiff failed to state a claim of denial of due process. The Respondents raised failure to exhaust tribal remedies because although the Plaintiff had challenged the banishment in tribal court, he raised new arguments to the District Court that had not been previously raised to the tribal court.

In 2023, the Plaintiff filed a writ of habeas corpus in tribal court alleging a “deprivation of liberty without due process of law.” The tribal court denied his petition, and he appealed to the Cayuga Nation’s Tribal Appellate Court, who affirmed the lower court’s denial. The Plaintiff did not deny that he made additional argument to the District Court, and he argued that the “tribal exhaustion principles require[d] only that he exhaust[ed] ‘jurisdictional arguments’ and that his filing of the Nation Court petition satisfied this requirement.”

The District Court determined that Plaintiff’s new arguments that the Tribal Court lacked subject matter jurisdiction and that the tribal court judges lacked partiality were subject to the exhaustion requirement. The Plaintiff argued he fell into the first and third exceptions to the tribal exhaustion doctrine—“[1] where an assertion of tribal jurisdiction is motivated by a desire to harass or is conducted in bad faith . . . or [3] where exhaustion would be futile because of the lack of an adequate opportunity to challenge the court’s jurisdiction.” The District Court held that the Plaintiff’s arguments for an exception concerned “subsequent orders that [were] irrelevant to the banishment claim.”

The Court then dismissed the banishment claims premised on the tribal court’s jurisdiction and impartiality due to failure to exhaust tribal remedies. However, the District Court allowed the claims premised on “violations of due process and the contention that the Banishment Ordinance is a bill of attainder or ex post facto law” to proceed.

Temple v. Mercier, 127 F.4th 709 (8th Cir. 2025).

The Plaintiff was a Native American cattle rancher and member of the Oglala Sioux tribe who challenged the reallocation of tribal grazing permits after he was denied due to exceeding the number of cattle. The Plaintiff filed appeals to the Board of Indian Appeals (“BIA”) and the Interior Board of Indian Appeals (“IBIA”) but was unsuccessful with the BIA and voluntarily dismissed the IBIA appeal. Plaintiff filed another suit against the grazing permit allocation committee in tribal court, and the tribal court dismissed, but the Plaintiff never appealed to the tribal supreme court.

Over two years, the BIA found hundreds of Plaintiff’s cattle grazing impermissibly. After multiple warnings, the BIA impounded Plaintiff’s cattle.

Plaintiff filed in the District of South Dakota in August of 2024 seeking a temporary restraining order against the BIA for impounding his cattle, but the district court denied and dismissed the claim, stating that Plaintiff must exhaust his tribal court remedies prior to seeking relief from the district court. Plaintiff appealed, and while the Court of Appeals dismissed several claims, it determined that exhaustion of tribal remedies was not required for Plaintiff’s surviving due process claim.

On appeal, Plaintiff argued that the district court erred in dismissing his permit allocation claim for failure to exhaust tribal remedies. The Court held that because the grazing issues were “tribal-related activities on reservation land,” the Plaintiff was required to fully exhaust his tribal court remedies to allow the tribal court the opportunity to rule on the tribal law issue. The Court of Appeals affirmed the district court’s dismissal due to failure to exhaust tribal court remedies.

Schmasow v. Little Shell Tribe of Chippewa of Mont., No. CV 24-41-BLG-SPW-TJC, 2025 WL 345824 (D. Mont. Jan. 30, 2025).

The pro se Plaintiff petitioned the District Court for a writ of habeas corpus and memorandum in support because the Little Shell Tribe of Chippewa Indians of Montana threatened to suspend her from full tribal membership and withhold federal resources if she refused to comply with their code of conduct.

The District Court laid out the Tribal Remedy Exhaustion Doctrine and stated that in order for the court to have jurisdiction, the Plaintiff must have exhausted both “detention and exhaustion.” The court noted that there was no evidence that the Plaintiff had exhausted all her tribal remedies. Because the Plaintiff failed to allege that she had exhausted her tribal court remedies, the Court denied and dismissed the petition with prejudice for lack of jurisdiction.

George v. Colville Confederated Tribes, No. 2:24-CV-00123-SAB, 2025 WL 595161 (E.D. Wash. Feb. 24, 2025).

The Plaintiff sued Colville Confederate Tribes and several of their employees in federal court alleging that they refused to certify her candidacy due to her removal as a member of the Colville Business Counsel. Plaintiff also brought claims of negligence, emotional distress, conspiracy, and breach of the implied covenant of good faith and fair dealing. The Plaintiffs had filed two previous lawsuits in the Colville Tribal Court seeking an injunction, declaratory relief, and money damages. In the first suit, the Colville Court of Appeals held that Colville Business Counsel alone decided whether individuals could remain members of the Counsel. The Colville Tribal Court dismissed her second suit.

In the present action, the Plaintiff attempted to argue that her exhaustion of tribal court remedies provided the District Court with subject matter jurisdiction to hear her claim. However, the District Court rejected her argument and held that the exhaustion of tribal remedies doctrine does not itself allow a plaintiff to assert subject matter jurisdiction. Further, “the mere presence of an Indian tribe as a party does not create a controversy that arises under federal law.”

Vipond v. DeGroat, No. 24-CV-3125, 2025 WL 713312 (D. Minn. Mar. 5, 2025).

The Plaintiff motioned the District Court for a preliminary injunction to enjoin certain activities of the Defendant, a judge on the White Earth Tribal Court. The Plaintiff was a non-tribal member who owned land in fee on the White Earth Reservation (the “Reservation”). He received a permit from the Minnesota Department of Natural Resources (“MNDNR”) to install a high-capacity water pump on his property. While his permit was processing, the Reservation passed a new ordinance that required applicants of high-capacity water pump permits to also have a tribal permit. The Plaintiff never applied for a tribal permit.

Although the Plaintiff had not yet installed the water pump, the White Earth Department of Natural Resources filed suit against him in the White Earth Tribal Court seeking a declaration that the Plaintiff must have a tribal permit to install the water pump and that his pumping would fall under the tribal ordinance.

The Plaintiff participated in these court actions but denied the tribal court’s jurisdiction over him. The lower tribal court entered a preliminary injunction against the Plaintiff but did not discuss jurisdictional issues. The Plaintiff appealed and the tribe’s appellate court remanded the case requiring the lower court to determine jurisdiction. While the lower court was determining the jurisdiction, the Plaintiff filed in District Court.

The Plaintiff sought “a declaration that the tribal court lack[ed] jurisdiction over him and lack[ed] subject matter jurisdiction to hear the tribal court case against him; a declaration that ‘when the State of Minnesota permits water pumping activity from a navigable body of water for use on non-member fee lands, the pumping activity cannot meet the second Montana exception for tribal court jurisdiction over a non-member for activities on fee lands;’ and an injunction against any further proceedings in the tribal court.” The Plaintiff also asked the federal judge to enjoin the tribal judge and the director of White Earth Department of Natural Resources, the Defendant, from “taking further actions to advance the suit in Tribal Court pending a final resolution of Plaintiff’s subject matter jurisdiction objections in this [Federal Court] action.” The Defendant filed a motion to stay the federal litigation until the exhaustion of Plaintiff’s tribal remedies.

While the District Court noted that typically the extent of tribal power does not extend to non-members, it cited to the Montana Exceptions, which allowed a tribe to “[1] regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements, [or 2] retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.” The Defendant argued that their jurisdiction over the Plaintiff fell into the second Montana exception.

The District Court first determined the issue of tribal remedy exhaustion. The court listed four exception to exhaustion: “[1] where an assertion of tribal jurisdiction is motivated by a desire to harass or is conducted in bad faith, [2] where the action is patently violative of express jurisdictional prohibitions, [3] where exhaustion would be futile because of the lack of an adequate opportunity to challenge the court’s jurisdiction, [and 4 where] it is ‘plain’ that tribal jurisdiction does not exist and the assertion of tribal jurisdiction is for ‘no purpose other than delay.’” The Eighth Circuit has held that the fourth exception was only applicable if the tribal court jurisdiction was “frivolous or obviously invalid under clearly established law.” The Plaintiff argued that the fourth factor, known as the Strate Factor, was applicable.

The District Court considered the merits of the case in order to determine whether Plaintiff must exhaust all tribal remedies. The court did not determine whether the Plaintiff fell into the second Montana exception. It held that the Plaintiff must exhaust his tribal remedies before seeking relief in the federal court system. However, it clarified that in order for Plaintiff to meet the exhaustion requirements, the tribal court must determine whether it has jurisdiction over Plaintiff and his pumping activities, and Plaintiff must seek and fail to receive a reversal from the tribal appellate court. Accordingly, the District Court denied Plaintiff’s motion and stayed the litigation pending the full exhaustion of tribal court remedies.

Musick v. Prairie Band Potawatomi Nation, No. 24-2299-DDC-TJJ, 2025 WL 1952519 (D. Kan. July 16, 2025).

The Plaintiff was stopped by tribal officers just before driving out of a casino parking lot on the reservation. The officers who pulled him over administered two breathalyzer tests, which the Plaintiff passed. The officers then arrested the Plaintiff and took him to the police station where two more breathalyzer tests were administered. The Plaintiff passed one and failed the second. However, the second breathalyzer machine was faulty, and the officers admitted they knew it was faulty. The Plaintiff filed several claims against the tribal police officials under the Kansas Tort Claims Act for violations of the Fourth and Fourteenth Amendments.

The tribal officers motioned the court to dismiss the claims for several reasons including failure to exhaust tribal remedies. The District Court agreed because it determined that the Plaintiff failed to shoulder his burden of proving he fell into an exception for the exhaustion requirement. Because Plaintiff’s claims were against the Tribe itself and the events from which the claims arose occurred on tribal land, the Plaintiff was required to exhaust his tribal remedies before pursuing relief in the District Court.

The Plaintiff also argued that the Tribe waived the exhaustion requirement and consented to suit in district court. However, the District Court disagreed because the Tribe’s Code “expressly withholds its consent to suit in any forum other than Tribal Court.” The Plaintiff then argued that because tribal officers could exercise the power of Kansas law enforcement, suit in federal court is proper. The court again disagreed because the statute granting this power to tribal officers did not contain a forum-selection clause nor could the State determine the Tribe’s consent to suit.

The Plaintiff also asserted that the Tribal Courts did not have jurisdiction over state law tort claims, but the court rejected the argument because the Plaintiff never asserted a state law claim. Further, even if he had, the state of Kanas had no authority to subject the Tribe to its laws due to the Tribe’s sovereignty. While the Tribe had adopted parts of the Kansas Tort Claims Act, it absorbed those parts of the statue into its own body of law. Thus, such a claim would not require the Tribal Court to adjudicate state law claims, but rather adjudicate tribal law claims adopted from state law.

The District Court did not determine whether the tribal court had jurisdiction, but rather only that the Tribes jurisdiction was “colorable.” The District Court dismissed the case.

§ 3.3. Tribal Sovereignty & Sovereign Immunity

An axiom in Indian law is that Indian tribes are considered domestic sovereigns.^[46] Like other sovereigns, tribes enjoy sovereign immunity.^[47] As a result, a tribe is subject to suit only where Congress has “unequivocally” authorized the suit or the tribe has “clearly” waived its immunity.^[48] The U.S. Supreme Court, in a 2008 decision, pronounced that tribal sovereign immunity “is of a unique limited character.”^[49] Unlike the immunity of foreign sovereigns, the immunity enjoyed by sovereign tribal governments is limited in scope and “centers on the land held by the tribe and on tribal members within the reservation.”^[50]

Nontribal entities must be aware that, absent a clear and unequivocal tribal immunity waiver, tribes and tribal entities may not be subject to suit should a deal go bad. With regard to contracts, “[t]ribes retain immunity from suits . . . whether those contracts involve governmental or commercial activities and whether they were made on or off a reservation.”^[51]

Tribal immunity generally shields tribes from suit for damages and requests for injunctive relief,^[52] whether in tribal, state, or federal court.^[53] Sovereign immunity has been held to bar claims against the tribe even when the tribe is acting in bad faith.^[54]

Tribes enjoy the benefit of a “strong presumption” against a waiver of their sovereign immunity.^[55] Moreover, federal courts have made clear that simply participating in litigation does not waive the tribe’s sovereign immunity.^[56] Any waiver of tribal sovereign immunity “cannot be implied but must be unequivocally expressed.”^[57]

Exactly what contract language constitutes a clear tribal immunity waiver is somewhat unclear.^[58] The Supreme Court in C & L Enterprises, Inc. v. Citizen Band Potawatomi Indian Tribe of Oklahoma^[59] ruled that the inclusion of an arbitration clause in a standard-form contract constitutes “clear” manifestation of intent to waive sovereign immunity.^[60] In C & L Enterprises, the Tribe proposed that the parties use a standard-form contract that contained an arbitration clause and a state choice-of-law clause.^[61] Although the contract did not clearly mention “immunity” or “waiver,” the Supreme Court believed the alternative dispute resolution (ADR) language manifested the tribe’s intent to waive immunity.^[62]

Finally, waivers of immunity must come from a tribe’s governing body and not from “unapproved acts of tribal officials.”^[63] Attorneys must evaluate a tribe’s structural organization to determine precisely which tribal agents have authority to properly waive tribal sovereign immunity or otherwise bind the tribal entity by contract. If attorneys do not have a working knowledge of pertinent tribal documents, they risk leaving their clients without an enforceable deal. Below are summaries from some of the most relevant sovereign immunity cases of the last year.^[64]

United Indian Health Servs., Inc./Tribal First v. Workers’ Comp. Appeals Bd., 333 Cal. Rptr. 3d 234 (2025).

In United Indian Health Services, the California Court of Appeal reversed the Workers’ Compensation Appeals Board’s denial for reconsideration of an order by the administrative judge that rejected United Indian Health Services, Inc.’s (“United Indian”) claim of tribal sovereign immunity and held that the organization actually was entitled to sovereign immunity. The court reasoned that United Indian’s “existence, purpose, and operations are central to tribal self-governance,” thus “extending tribal immunity to United Indian would further the self-governance and autonomy policies that such immunity is intended to promote.”

United Indian is a subcontractor of the California Rural Indian Health Board (“Indian Health Board”). Indian Health Board is a tribal organization, which eighteen tribes have authorized to enter into self-determination agreements with the federal government to provide health services for the tribes. After an injury, a medical assistant for United Indian filed a claim through the organization’s tribal workers’ compensation system. After a dispute arose, the employee then filed a claim with California’s workers’ compensation system. United Indian took the position that its tribal immunity meant the state’s workers’ compensation system lacked jurisdiction to adjudicate the claim. In a 2024 decision, the workers’ compensation administrative law judge (“ALJ”) rejected United Indian’s claim of sovereign immunity. The Board then denied United Indian’s reconsideration request and proceeded to adopt and incorporate the ALJ’s report. The question that then came before the California Court of Appeal was whether United Indian was entitled to sovereign immunity.

Tribal immunity may extend to an entity affiliated with an Indian tribe but is not itself a tribe. When determining whether an affiliate is an “arm of the tribe” and therefore entitled to the tribe’s immunity, courts examine five Miami Nation factors that “pertain to the relationship between the affiliate and the tribe: (1) the affiliate’s method of creation; (2) whether the tribe intended to share its immunity; (3) the affiliate’s purpose; (4) the level of control exercised by the tribe over the affiliate; and (5) the financial connection between the tribe and the affiliate.”

The court found that United Indian’s method of creation weighed somewhat in favor of sovereign immunity as several tribes established United Indian and authorized it as their local health care provider. Next, the intent factor weighed somewhat against immunity as the record contained no tribal documents stating the tribes’ intent to extend sovereign immunity to United Indian. Still, the court found that this weighed only somewhat against immunity as “tribal intent may be inferred from the tribe’s actions or other circumstances even without express statements.” After that, the purpose factor weighed in favor of immunity as United Indian’s provision of health care served a purpose central to tribal self-sufficiency and self-governance. Then, the control factor weighed in favor of immunity as the tribes participate in the management and control of United Indian regarding its bylaws and day-to-day operations. Finally, the financial relationship factor weighed in favor of immunity as subjecting United Indian to liability for state workers’ compensation claims would undercut its ability to carry out its self-governance purpose and reduce funds available for tribal health care. Ultimately, the court held that United Indian is entitled to sovereign immunity as four of the five Miami Nation factors pointed to it properly being classified as an arm of the tribe that it serves.

Maverick Gaming LLC v. United States, 123 F.4th 960 (9th Cir. 2024).

In Maverick Gaming, the Ninth Circuit affirmed a motion to dismiss and held that a tribe does not waive its sovereign immunity by intervening for the limited purpose of moving to dismiss and that said immunity meant that it could not be feasibly joined to an action. The court reasoned that the intervening tribe, the Shoalwater Bay Indian Tribe (“Tribe”), was a required party to the suit that could not be joined in the litigation due to its sovereignty, so the suit could not proceed in equity and good conscience in the Tribe’s absence.

The Indian Gaming Regulatory Act (“IGRA”) provides a regulatory scheme for the creation and administration of tribal-state gaming compacts, which allow tribes to conduct casino-style gambling. In 2019, the Washington legislature enacted a law that allowed Indian tribes to amend their gaming compacts to authorize sports betting on their land but refused to legalize sports betting for private entities. This act prompted Plaintiff, Maverick Gaming LLC, to sue alleging that Washington’s tribal-state compacts and sports betting compact amendments violated the IGRA and various U.S. Constitution provisions. The Tribe then moved to intervene in the suit for the limited purpose of filing a motion to dismiss under the theory that it was a required party that could not be joined because of its sovereign immunity. The district court agreed with the Tribe and granted the motion to intervene and the ensuing motion to dismiss. The questions relevant to sovereign and tribal immunity presented to the Ninth Circuit were whether a tribe waives its right to sovereign immunity by intervening for the limited purpose of moving to dismiss and whether the suit could equitably continue in the Tribe’s absence.

The Ninth Circuit found that the Tribe was a required party as it had a legally protected interest that may have been impaired or impeded in its absence. The court then found that the Tribe cannot be joined in the litigation as it enjoys sovereign immunity, to which it “unequivocally expressed its intent to not waive its immunity.” The court reasoned that “a tribe does not waive its sovereign immunity where, as here, it asserted its immunity defense promptly upon intervention in the suit and only ever voiced an intent to do precisely that.” Finally, the court found that the suit could not continue in good conscience in the Tribe’s absence as the litigation posed threats to the Tribe’s legal entitlements and sovereignty. For these reasons, the Ninth Circuit affirmed the district court’s dismissal.

Federated Inds. of Graton Rancheria v. Haaland, 762 F. Supp. 3d 888 (N.D. Cal. 2025).

In Federated Indians of Graton Rancheria, the United States District Court of the Northern District of California denied Plaintiff Federated Indians of Graton Rancheria’s (“Graton Rancheria”) motion for a temporary restraining order regarding Koi Nation’s request that the federal government take a parcel of land into trust. Relating to tribal sovereignty, the court examined the questions of whether Plaintiff had standing and whether a preliminary injunction was proper in the circumstances. The court found that it had subject matter jurisdiction over the case and that granting a preliminary injunction would be improper.

In 2021, Koi Nation applied to the federal government to take a parcel of land into trust for the purpose of authorizing the tribe to open a gaming facility on the land. Koi Nation has historical connections to the parcel of land in question but so does Plaintiff. Because both Graton Rancheria and Koi Nation had historical connections to the parcel, the Department of Interior (“DOI”) was required to consider the potential effects that any project would have on the ancestral remains, artifacts, and other historic properties of the land. Koi Nation’s application triggered statutory obligations under the National Historic Preservation Act (“NHPA”). Under the NHPA, once a tribe is recognized as one that may attach religious and cultural significance to historic properties potentially affected, the tribe must be given a reasonable opportunity to “identify its concerns about historic properties, advise on the identification and evaluation of historic properties . . . articulate its views on the undertaking’s effects on such properties, and participate in the resolution of adverse effects.”

The consultation process for this case “suffered from many deficiencies.” These deficiencies led the State Historic Preservation Officer (“SHPO”) to send a letter to the agency detailing concerns and requesting the Agency to reinitiate consultation. The DOI did not reinitiate consultation and, instead, published its Final Environment Impact Statement (“EIS”) acknowledging the Bureau of Indian Affair’s (“BIA”) finding of No Historic Properties Affected was appropriate for the proposed action. Plaintiffs then filed for a temporary restraining order on the grounds that Defendants violated the NHPA by failing to engage in a meaningful consultation.

The court found that Plaintiff had Article III standing as the procedural violation for failure to consult was connected to an underlying harm in the effects on Plaintiff’s sacred cultural artifacts and ancestral remains that would have been overlooked as a result of being shut out of the decision-making process. The court reasoned that the right to consultation under the NHPA exists to respect and effectuate tribal sovereignty.

The court also found that a preliminary injunction would be improper because Plaintiff failed to show a likelihood of immediate irreparable harm. The court reasoned that any possible harm to cultural artifacts or remains was too remote as the construction was not slated to occur until the beginning of 2026. Additionally, the court reasoned that the EIS proposed mitigation measures that would preserve Plaintiff’s right to be consulted if Native American remains and artifacts were discovered on the land after construction commenced—this made the harms associated with any potential changes to Plaintiff’s rights too speculative to assess. The court also found that concerns that Plaintiff would lack an adequate remedy if Koi Nation did not comply with the consultation requirements were not enough to form a basis for a finding of irreparable harm.

Muscogee (Creek) Nation v. Rollin, 119 F.4th 881 (11th Cir. 2024).

In Rollin, the Eleventh Circuit held that the district court had to conduct a claim-by-claim and defendant-by-defendant analysis to determine whether tribal officials were entitled to sovereign immunity. At the district court, Plaintiff, Muscogee (Creek) Nation, filed suit regarding the excavation and development of a burial site. After excavation of the site, the Poarch Band, a different federally recognized tribe, announced plans to develop a hotel and casino on the site. Plaintiff then sued the Poarch Band, its gaming authority, officials from both, and other defendants. The district court dismissed the complaint and held that the Poarch Band officials enjoyed sovereign immunity against all claims brought without conducting a claim-by-claim analysis. This left it up to the Eleventh Circuit to decide whether a claim-by-claim analysis was required.

The Poarch Band purchased the burial site in fee simple in 1980. In 1984, the United States accepted legal title to the majority of the site to hold it in trust for the benefit of the Poarch Band. Over the objections of the Muscogee Nation, the Poarch Band and others excavated the site; they recovered dozens of sets of human remains and associated funerary artifacts.

In 2012, Plaintiff filed this lawsuit after the Poarch Band announced plans to develop a hotel and casino on the site. The casino opened in 2014 despite the ongoing litigation. In 2020, after unsuccessful settlement negotiations, Plaintiff filed a second amended complaint alleging eleven claims under federal and state law against the Poarch Band and various other parties.

The district court granted dismissal on behalf of the Poarch Band and other defendants because it determined that the Poarch Band, its gaming authority, and officials enjoyed sovereign immunity from all claims and that the suit could not proceed without the Poarch Band defendants. Regarding sovereign immunity, the district court explained that the Poarch officials enjoyed sovereign immunity for claims that are “the functional equivalent of a quiet title action” and implicate “special sovereignty interests.” The district court decided it was warranted to apply this exception for all claims brought without analyzing whether it applied to each claim individually.

The Eleventh Circuit held that the district erred when it failed to analyze the Poarch officials’ plea for sovereign immunity in a claim-by-claim manner because “a court cannot know whether a claim is the functional equivalent of quiet title or if it implicates special sovereignty interests without examining the relief sought for that claim.” Thus, the Eleventh Circuit held that district court should have considered each claim against the Poarch officials and the relief sought to see whether the exception applied. The court then remanded this issue back to the district court as the Plaintiff’s complaint failed to attribute specific claims to specific prayers for relief, so the Eleventh Circuit was in no position, in the first instance, to decide whether the Poarch officials enjoyed sovereign immunity for each claim.

Comm’r of New York State Dep’t of Transportation v. Polite, 236 A.D.3d 82 (N.Y. App. Div. 2024).

In Polite, the Supreme Court of New York, Appellate Division, found as a matter of first impression that Native American nation officials may be sued in New York State courts for off-reservation violations of New York state law. The court reasoned that liability for these violations is justified in a theory analogous to the theory forwarded in Ex Parte Young, 209 U.S. 123, 159–160 (1908).

Plaintiff, the New York State Department of Transportation, sued Defendants, members of the Council of Trustees of the Shinnecock Indian Nation (“the Nation”), alleging violations of state highway law. Defendants claimed that the Nation owned the land with the alleged violations, so the Nation’s sovereign immunity shielded Defendants from any possible suit even though the Nation was not a party itself. Plaintiff opposed this by arguing that the land was only owned in fee simple by the Nation rather than as sovereign land of the Nation or part of the Nation’s Reservation, so this conduct was beyond reservation boundaries and thus subject to generally applicable state laws.

The court agreed with Plaintiff and held that the Nation’s officials who permitted Defendants state law violations could be sued in state court. The court reasoned that this holding was necessary as barring suits in this context would leave the state and its citizens without recourse for these violations and Native American nations and their officials would be free to violate state laws outside of reservation lands with no threat of legal consequences.

In applying rule, the court found that the causes of action brought by Plaintiff could proceed except the portions of them which sought to recover monetary damages, penalties, and interest against Defendants. The court reasoned that “actions that ‘seek to recover funds from tribal coffers or establish vicarious liability of a tribe for damages . . . are barred by tribal sovereign immunity even when nominally styled as against individual officers.’”

Finally, the court held that the Nation itself, rather than just certain officials from the Nation, was not a necessary party to the action and thus the suit was permissible even with the Nation’s absence. The court reasoned that the Nation was not a required party because Plaintiffs would have had no other effective remedy if the suit was dismissed on account of nonjoinder, the presence of Defendants in this action outweighed the risk of prejudice to the Nation, the Nation voluntarily chose to not participate in this action, and the trial court could have rendered an effective judgment in the absence of the Nation if Plaintiff ultimately prevailed on the merits.

Erwine v. Churchill Cnty., No. 3:24-CV-00045-MMD-CSD, 2025 WL 822687 (D. Nev. Mar. 13, 2025), judgment entered, No. 3:24-CV-00045-MMD-CSD, 2025 WL 1422714 (D. Nev. Apr. 23, 2025).

In Erwine, the District of Nevada dismissed claims against Washoe Tribe (“Tribe”) police officers and the Tribe’s general counsel because the Washoe Tribe was seen as a necessary party, who was entitled to sovereign immunity. The case arose from a plaintiff who was disciplined and later fired by the Tribe. Although Plaintiff sued Defendants in their individual capacities, the court found that the Tribe was a necessary party to the suit because the suit included tribal police officers in their official capacity. The court reasoned that this suit against the officers implicated the Tribe’s sovereign interests via control over its police department. As the Tribe was deemed a necessary party, the claims were thus dismissed due to the Tribe’s sovereign immunity.

Butrick v. Dine Dev. Corp., No. 3:23-CV-884-HEH, 2024 WL 4643258 (E.D. Va. Oct. 30, 2024).

In Butrick, the United States District Court for the Eastern District of Virginia dismissed Plaintiff’s claims for a lack of subject matter jurisdiction due to Defendant’s tribal immunity. The court reasoned that Plaintiff’s argument that the Family and Medical Leave Act (“FMLA”) abrogated the Defendant’s immunity was incorrect and that Defendant never waived its immunity.

Defendant, Dine Development Corporation, is a wholly owned corporation of the Navajo Nation, which is recognized as an arm of the tribe. Plaintiff alleged Defendant committed two violations of the FMLA. Additionally, Plaintiff alleged that Congress abrogated tribal immunity under the FMLA and that Defendant waived their immunity by stating that it would voluntarily comply with the FMLA in its handbook. The court rejected both arguments by holding that Congress did not unequivocally abrogate tribal immunity under the FMLA and that an Indian tribe’s voluntary compliance with a law does not automatically waive sovereign immunity or provide a cause of action beyond the remedies available to any party to a contract. For the latter holding, the court reasoned that the handbook could not serve as a waiver because it was not both (1) unambiguous and (2) indicative of where the entity may be sued.

Clark v. Haaland, No. 22-2141, 2024 WL 4763759 (10th Cir. Nov. 13, 2024).

In Clark, the Tenth Circuit affirmed dismissal of Plaintiff’s claims against Navajo Defendants because their tribal immunity rendered them outside of the district court’s jurisdiction. Plaintiffs alleged a deprivation of water rights by Navajo Defendants and other defendants. The district court then granted dismissal to claims against the Navajo Defendants due to lack of jurisdiction. The Ninth Circuit affirmed the district court by first reasoning that there was no unequivocal waiver of immunity by the Tribe nor an abrogation by Congress in this context. Next, the court reasoned that the McCarran Amendment does not provide consent to sue the Navajo Defendants but rather only to sue the United States concerning the adjudication of water rights. Finally, the court reasoned that no Ex Parte Young exception to sovereign immunity was present as Plaintiff failed to point to any nonconclusory allegations of ongoing violations of federal law by the Navajo Defendants.

§ 3.4. Tribal Corporations

A majority of non-Alaskan tribes are organized pursuant to the Indian Reorganization Act of 1934 (IRA).^[65] Under Section 16 of the IRA, a tribe may adopt a constitution and bylaws that set forth the tribe’s governmental framework and the authority given to each branch of its governing structure.^[66] A tribe may also incorporate under Section 17 of the IRA, under which the Secretary of the U.S. Department of the Interior issues the tribe a federal commercial charter.^[67]

Through Section 17 incorporation, the tribe creates a separate legal entity to divide its governmental and business activities.^[68] The Section 17 corporation has a federal charter and articles of incorporation, as well as bylaws that identify its purpose, much like a state-chartered corporation.^[69] Section 17 incorporation results in an entity that largely acts like any state-chartered corporation.^[70]

An Indian corporation may also be organized under tribal or state law.^[71] If the entity was formed under tribal law, formation likely occurred pursuant to its corporate code; but it could have also occurred by tribal resolution (i.e., specific legislation chartering the entity).^[72] Under federal common law, the corporation likely enjoys immunity from suit.^[73] However, it is unclear whether a tribal corporation’s sovereign immunity is waived through state incorporation such that the entity may be sued in state court.^[74]

Therefore, when negotiating a tribal business transaction, counsel should consult the tribe’s governmental and corporate information—for example, treaty or constitution, federal or corporate charters, tribal corporate code—which, taken together, identify the entity with which you are dealing, the authority of that entity, and any applicable legal rights and remedies.

There are comparatively few cases decided on the basis of tribal corporate formation, but tribal corporations are often able to claim immunity from suit. In addition to IRA Section 17 entities, Native Alaskan communities are organized as corporations under some unique provisions within the Alaska Native Claims Settlement Act. Below find a discussion of recent cases dealing with tribal corporations.

Ransom v. GreatPlains Fin., LLC, 148 F.4th 141 (3rd Cir. 2025).

In Ransom, Rashonna Ransom sued GreatPlains Finance, LLC (“GreatPlains”) on her own behalf and for a putative class, for violations of several New Jersey consumer-protection laws. GreatPlains, an online consumer lender created by the Fort Belknap Indian Community (“Fort Belknap”) in Montana, moved to dismiss the complaint, claiming it was entitled to tribal sovereign immunity. After a district court denied GreatPlains’ motion, GreatPlains appealed.

On appeal, the central issue was whether GreatPlains operated as an “arm of the tribe” such that it was entitled to sovereign immunity. To judge whether GreatPlains “counted[ed] as an arm of a tribe,” the Fourth Circuit considered five factors: “1) how the entity was created; 2) its purpose; 3) its ownership, management, structure, and how much the controls it; 4) the tribe’s intent to give it sovereign immunity; [and] 5) its financial relationship with the tribe[.]” In doing so, however, the court emphasized that “on these facts, the most important factors [were] how much the tribe control[led] the entity and especially whether a judgment would immediately cut tribal revenue.” Accordingly, the court “pa[id] particular attention to [factor] (3) and especially to [factor] (5).”

Based on the foregoing considerations, the court concluded that GreatPlains was not “an arm of a tribe” that was entitled to sovereign immunity. The court acknowledged that GreatPlains was created by Fort Belknap as a limited-liability corporation under tribal law, wholly owned by Fort Belknap, managed by members of Fort Belknap, and entitled to tribal immunity in its articles of incorporation. However, the court emphasized that because GreatPlains’ had never turned a profit to Fort Belknap and insulated the tribe from its liability, the financial relationship between the tribe and GreatPlains “cut[] decisively against immunity.” And because this financial determination was at “the core of sovereign immunity,” the court concluded this consideration outweighed all of the other evidence indicating that GreatPlains was entitled to sovereign immunity. As a result, the Fourth Circuit affirmed the district court’s denial of GreatPlains’ motion to dismiss.

Eggers v. Healing Lodge of the Seven Nations, No. 2:24-‍CV‍0078-‍SAB, 2025 WL 2346885 (E.D. Wash. Aug. 13, 2025).

In Eggers, Andrea L. Asan sued her former employer, The Healing Lodge of the Seven Nations (“Healing Lodge”), for violations of Title VII, the American with Disabilities Act (“ADA”), the Age Discrimination in Employment Act (“ADEA”), and various state law claims. In response, Healing Lodge, a tribal-owned non-profit incorporated in Washington, moved to dismiss the complaint, arguing it was entitled to tribal sovereign immunity.

The court granted Healing Lodge’s motion to dismiss, concluding that Healing Lodge was entitled to tribal sovereign immunity. In reaching this conclusion, the court relied on White v. University of California, 765 F.3d 1010 (9th. Cir. 2014), which outlines five factors courts consider in determining whether an entity qualifies as an “arm of a tribe” that is entitled to tribal sovereign immunity. These factors include (1) the method of creation of the economic entity; (2) its purpose; (3) its structure, ownership, and management, including the amount of control the tribe has over the entity; (4) the tribe’s intent with respect to the sharing of its sovereign immunity; and (5) the financial relationship between the tribe and the entity.

Applying the factors outlined in White, the court determined that Healing Lodge was entitled to tribal sovereign immunity. The court reached this conclusion because Healing Lodge was formed by a consortium of various tribes, served an important purpose for tribal self-determination and self-government (healthcare), demonstrated a strong preference for serving Native American communities, contained significant tribal membership within its ownership and management structure, and received federal funds under the Indian Self-Determination and Education Assistance Act (“ISDEAA”). Accordingly, the court granted Healing Lodge’s motion to dismiss Asan’s claim.

United Indian Health Servs. v. Workers’ Comp. Appeals Bd., 333 Cal. Rptr. 3d 234 (Cal. Ct. App. 2025).

In United Indian, Deborah Hemsted filed a workers’ compensation claim against her employer, United Indian Health Services (“United Indian”). In response, United Indian, a non-‍profit California corporation created by several tribes to offer healthcare services to tribal communities, argued it was entitled to tribal sovereign immunity. On appeal, the central issue was whether the California Workers’ Compensation Appeals Board (the “Board”) was correct in concluding that United Indian was not entitled to sovereign immunity under the “arm of the tribe” test set forth by the California Supreme Court in People ex. rel. Owen v. Miami Nation Enterprises, 386 P.3d 357 (Cal. 2016).

The court began by explaining that under Miami Nation, courts consider five non-‍dispositive factors to determine if a tribal affiliate should qualify as “arm of [a] tribe” that is entitled to sovereign immunity: “(1) the affiliate’s method of creation; (2) whether the tribe intended to share its immunity; (3) the affiliate’s purpose; (4) the level of control exercised by the tribe over the affiliate; and (5) the financial connection between the tribe and the affiliate.”

The court then applied Miami Nation’s factors and concluded that the Board erred in concluding that United Indian was not entitled to sovereign immunity. In reaching this conclusion, the court focused on the first, third, fourth, and fifth Miami Nation factors. As to the first factor, the court concluded that the formation of United Indian weighed in favor of sovereign immunity because it ensured that tribal services were administered and managed by tribal organizations rather than by the federal government. As to the third factor, the court determined that because United Indian provided services pursuant to the Indian Self-Determination Act, its provisions of health care services furthered tribal self-sufficiency. As to the fourth factor, the court found that the extended level of tribal involvement in the management of United Nation weighed in favor of sovereign immunity. For example, the court emphasized that under United Indian’s bylaws, each participating, federally ‍recognized tribe was entitled to select a representative to serve on the company’s Board of Directors. Finally, the court determined that the fifth factor weighed in favor of sovereign immunity because a judgment against United Indian would significantly reduce the entity’s funds.

§ 4. The Federal Sovereign

§ 4.1. Indian Country & Land into Trust

The Indian Reorganization Act (“IRA”) authorizes the Secretary of the Interior to take land into trust for the benefit of an Indian tribe’s reservation.^[75] In 2009, however, the U.S. Supreme Court issued a landmark ruling reversing the Interior’s prior interpretation of the IRA, 25 U.S.C. § 465, now located at 25 U.S.C. § 5108, and limiting the Secretary’s ability to take land into trust on behalf of tribes.^[76] Carcieri held that the Secretary may only acquire land in trust for tribes that (1) were “under federal jurisdiction” in 1934, and (2) currently enjoy federal recognition.^[77] This effectively precludes certain tribes from avoiding state tax and regulatory compliance, or conducting gaming or other economic development activities on newly acquired or reacquired lands.

Despite the Carcieri ruling, the Interior seems willing to issue final decisions on fee-to-trust applications by tribes that were recognized, restored, or reaffirmed after June 1934 on the basis that the tribe may have been under the jurisdiction of the United States in 1934 even if that recognition was not formally documented.^[78] The Interior will continue processing applications for tribes that have enjoyed uninterrupted, formal recognition since June 1934 and for tribes that can point to a non-IRA statute granting the Secretary acquisition authority.^[79] In sum, any non-Indian party looking to enter into a joint venture with a tribe to develop Indian lands not yet in trust status must pause to consider the implications of Carcieri.^[80]

In response to the Carcieri decision, in 2014, the Interior Department issued a Memorandum that provided guidance on the meaning of “under federal jurisdiction.”^[81] The Solicitor’s M-37029 Memorandum outlined a two-part test for interpreting the phrase “under federal jurisdiction.” The first part of this inquiry examines whether, before June 18, 1934, the federal government took an action or series of actions through a course of dealings or other relevant acts reflecting its obligation to, responsibility for, or authority over, an Indian tribe, bringing such tribe under federal jurisdiction.^[82] The second prong examines whether this jurisdictional status remained intact in 1934.^[83] Satisfying either prong will suffice to establish that the tribe was “under federal jurisdiction.” In a more recent decision, Confederated Tribes of Grand Ronde Community of Oregon v. Jewell, the D.C. Circuit Court of Appeals upheld the Interior’s application of the two-part test outlined in M-37029.^[84] M-37029 appears to be a non-statutory Carcieri fix.

As if Carcieri were not complicated enough, in 2012, the U.S. Supreme Court issued its opinion in Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak.^[85] In that case, a local landowner by the name of David Patchak launched a legal challenge against the Interior Secretary’s decision to take the tribe’s land into trust for the purpose of gaming. Importantly, Patchak did not allege that he had a legal interest in the land to be taken into trust. Rather, Patchak brought an action under the APA^[86] asserting that the IRA did not authorize the Department of Interior to take land into trust for the tribe. The remedy Patchak sought was for the issuance of an injunction prohibiting the Interior from taking the land into trust. The basis for the injunction, in Patchak’s opinion, was that the requirements of the IRA were to be satisfied per the Supreme Court’s opinion in Carcieri. Both the federal government and the tribe argued that only the Quiet Title Act (QTA)^[87] could grant the waiver of sovereign immunity. Under the theory advanced by the defendants, the APA waiver of sovereign immunity was negated.

The Court determined that the QTA only applies to quiet title actions where a person claims an interest in the property that conflicts with, or is superior to, the government’s claim in the property.^[88] In addition, because the exception causing the APA waiver of sovereign immunity to be negated did not apply, the Court held Patchak had standing under the APA to pursue his challenge.

The result of this decision is that any party claiming harm to property nearby proposed trust land, even damage to an “aesthetic” interest, has legal standing under the APA to bring a lawsuit. This creates considerable risk for casino developers because the statute of limitations under the APA is considerably longer than that of the QTA, creating much more time for a party to challenge Interior’s trust transaction.^[89]

The Interior Department revised its land-into-trust regulations at Part 151 in response to the Patchak decision during the Obama Administration, in late 2013.^[90] This “Patchak Patch” provides that if the Interior Secretary or Assistant Secretary approves a trust acquisition, the decision represents a “final” agency determination subject immediately to judicial review.^[91] If a Bureau of Indian Affairs (“BIA”) official issues the decision, however, the decision is subject to administrative exhaustion requirements^[92] before it becomes a “final agency action.”^[93] In this instance, parties must file an appeal of the BIA official’s decision within 30 days of its issue.^[94] If no appeal is filed within the 30-day administrative appeal period, the BIA official’s decision becomes a “final agency action.”

More recently, the BIA, to improve and streamline the tribal land acquisition application process, announced changes to land-into-trust regulations (at Part 151).^[95] Under the new rule, the BIA will now have to meet a 120-day deadline. Prior to the change, the average land acquisition application took an average of 985 days.

A brief discussion of this past year’s cases involving the taking of land into trust follow.^[96]

Ute Indian Tribe of Uintah & Ouray Rsrv. v. U.S. Dep’t of the Interior, No. 18-CV-546 (CJN), 2025 WL 1091969 (D.D.C. Feb. 13, 2025).

In Ute, the Ute Indian Tribe of the Uintah and Ouray Reservation (the “Tribe”) asked the government to restore certain land located in the Uncompahgre Reservation in Utah to tribal ownership under the Indian Reorganization Act of 1934. The government denied the Tribe’s request because it believed that the Tribe did not have compensable title to the land. The court agreed with the government’s denial of the restoration based on its interpretation of the history of the land under three acts enacted in 1880, 1894, and 1897.

The effect of the 1880 Act was to relocate the Tribe from its reservation in Colorado to an undetermined area in Utah. The Utah land would then be allotted to individual Tribe members rather than the Tribe itself, and any “unallotted land” would be sold to cover the cost of relocation and land ceded by the government in Utah. Any remaining proceeds from the sale were to be held in trust by the government. The parties disagreed, however, on whether the “unallotted land” described the land granted to the Tribe in Utah or the land ceded by the Tribe in Colorado.

In the wake of the 1880 Act, the Tribe opposed the allotment of the Utah land to individuals rather than the Tribe as a whole and the lands were never allotted. Congress then passed the 1894 Act and 1897 Act, which had the combined effect of again allotting the Utah land to individual Tribe members and releasing any unallotted land to the government on the first day of April, 1898, with no proceeds going to the Tribe.

The court began with the principle that whether a tribe has compensable title to land depends on whether the tribe would be entitled to its proceeds if it were sold. Thus, whether the tribe was entitled to restoration of the land in Utah depended on whether they were entitled to some of its proceeds. The court held that the 1880 Act did not entitle the Tribe to the proceeds of the Utah land. Instead, the court interpreted the proceeds from the “unallotted land” to mean those generated by the sale of the Colorado land ceded by the Tribe, not the unallotted land in Utah. Further, even if the “unallotted land” did include the land in Utah, any title granted to the Tribe by the 1880 Act was subsequently eliminated by the 1894 and 1897 Acts, which released such unallotted land in Utah to the government with no proceeds flowing to the Tribe.

The court held that under either interpretation, the Tribe was not entitled to the proceeds of the land and therefore did not hold compensable title over the unallotted land in Utah. Therefore, the land in the Uncompahgre Reservation did not meet the criteria for restoration to tribal ownership.

Federated Indians of Graton Rancheria v. Haaland, 762 F. Supp. 3d 888 (N.D. Cal. 2025).

In Federated Indians, Koi Nation submitted an application to the Department of the Interior (DOI) requesting that the federal government take certain land into trust so that Koi Nation could be authorized to operate a gaming facility on the land. The Federated Indians of Graton Rancheria (“Plaintiff”), whose members have historical connections to the land, sought a temporary restraining order and preliminary injunction to prevent DOI from taking the land into trust. The court denied the preliminary injunction, reaching conclusions on the standing, ripeness, and merits of the Plaintiff’s motion.

As part of the process for taking land into trust, DOI was required under section 106 of the National Historic Preservation Act (NHPA) to consult with Plaintiff regarding the potential effects of the proposed action to any historical properties or cultural artifacts on the land. Though DOI eventually reached the conclusion that no historic properties would be affected by the action, Plaintiff claimed, and the court agreed, that the section 106 consultation process appeared to be extremely deficient. During its investigation, DOI repeatedly failed to communicate with Plaintiff, leading Plaintiff to challenge the DOI finding due to a section 106 violation for a failure to consult.

The court first discussed whether Plaintiff had Article III standing to pursue the preliminary injunction. Specifically, the court analyzed whether Plaintiff’s alleged procedural injury met the injury-in-fact requirement for Article III standing. To have standing for a procedural injury, Plaintiff must allege that the injury is tied to some concrete, underlying harm. Here, the court held that Plaintiff met that burden by alleging a section 106 violation for a failure to consult. By failing to consult with Plaintiff in reaching its finding, DOI essentially shut Plaintiff out of the decision-making process and prevented it from having its voice heard with respect to the potential effects on sacred cultural artifacts and ancestral remains. The court held that there was sufficient concrete harm associated with the section 106 violation to meet the injury-in-fact requirement under Article III.

Next, the court discussed whether the alleged procedural violation was ripe for review. A federal court has authority to review an agency action only if it is a final agency action. Here, the court found that DOI’s finding that no historical properties would be affected constituted a final agency action. Though DOI argued that the agency’s action was not final because the agency may still reconsider, the court noted that it was under no legal obligation to do so. Therefore, DOI’s finding that no historical properties would be affected was ripe for review.

Finally, the court assessed the merits of the motion for a preliminary injunction. Because Plaintiff could not show a likelihood of immediate irreparable harm, the court denied the motion. Plaintiff first argued that if DOI is not enjoined from taking the land into trust, there will be damage or disturbance caused to cultural artifacts and remains on the land. The court rejected this argument, holding that Plaintiff had not introduced any evidence suggesting when this disturbance would take place if the land were taken into trust. Contrarily, Koi Nation’s plans for the gaming facility would not begin until the beginning of 2026. Therefore, any potential damage or disturbance was not sufficiently imminent.

Plaintiff’s second argument was that if DOI were not enjoined, Plaintiff would lose its right to be consulted about the disposition of remains and artifacts found on the land. The court found, however, that sufficient mitigation measures were in place to protect Plaintiff’s consultation rights. Further, the court found that any potential changes to the Plaintiff’s rights resulting from taking the land into trust were too speculative. Because Plaintiff’s alleged injuries were neither imminent nor likely, the court denied Plaintiff’s motion for a preliminary injunction.

Scotts Valley Band of Pomo Indians v. Burgum, No. 1:25-CV-00958 (TNM), 2025 WL 1178598 (D.D.C. Apr. 23, 2025) (Scotts I).

In Scotts I, the Scotts Valley Band of Pomo Indians (the “Scotts Tribe”) sued the government after it rescinded its decision to allow the Scotts Tribe to conduct gaming activities on a parcel that it recently took into trust. Separately, three other tribes had also sued the government, claiming that the Scotts Tribe should not have any rights to the land in the first place. These three tribes then sought to intervene in the Scotts Tribe’s suit against the government supporting the rescission. Additionally, the former property owner of the land taken into trust also sought to intervene because the proceeds of the sale of the land depended on gaming activity taking place on the land. The court denied all four parties’ motions to intervene.

The court noted that there are two paths to intervention under the Federal Rules of Civil Procedure. First, a party may intervene as of right if they claim an interest in a property or transaction that is the subject of the litigation. Second, the court has wide latitude to grant permissive intervention where it is in the interest of justice.

The first two tribes (the “Patwin Tribes”) sought to intervene as of right because they claimed that a casino built on the land in question would compete with their casinos, causing economic injury. Prior to this litigation, the two tribes had attempted to intervene in another action by the Scotts Tribe asking the government to reconsider its initial denial of its request to take land into trust. The court in the previous litigation had held that the tribes did not have standing to intervene because their injuries were not imminent and were too attenuated. Here, because the situation was substantially similar to the first attempt to intervene, the court denied the intervention on similar grounds. Namely, even if the government reversed its decision to rescind the gaming allowance, the Scotts Tribe would still need to seek approval for gaming activities at the federal and state level in numerous other capacities. The court held that because the prospects of opening a casino on the land depended on several key steps, the Patwin Tribes’ injury-in-fact remained far too attenuated and not sufficiently imminent to justify a finding of standing.

The third tribe (the “Auburn Tribe”) attempted to intervene by alleging similar economic injuries as the Patwin Tribes. For the same reasons, the court found that the claimed injury was not sufficiently imminent to grant standing. However, the Auburn Tribe also claimed an injury in that the government failed to consult the tribe in its taking of the land into trust. The court found that this injury was only procedural and, without an accompanying concrete harm, could not grant standing.^[97] For these reasons, the court denied each of the tribes’ motions to intervene as of right.

Lastly, the previous owner of the land (“GTL”) attempted to intervene by claiming that its economic interests were dependent on the Scotts Tribe being allowed to conduct gaming activity on the land. The court held that GTL’s injury was not redressable and therefore lacked standing to intervene. In GTL’s sale of the land to the Scotts Tribe, the proceeds of the sale were to be generated by the casino that would eventually be built on the land. However, because the government rescinded its allowance of gaming activity, GTL was left without a means of being compensated for the transaction although the land had already been transferred and taken into trust. The court held that although the allowance of gaming activity was necessary for GTL’s compensation, it was not the only condition that had to be met. As noted, the Scotts Tribe still had several administrative hurdles to clear at the federal and state levels before they could operate a casino on the land. Therefore, even if the government did reverse its rescission, the tribe would not necessarily be allowed to operate a casino and GTL would not be compensated. Because GTL’s injury was not redressable, GTL did not have standing and the court denied its motion to intervene as a matter of right.

Finally, the court considered permissive intervention for each of the parties. Because each party seemed to be disputing issues that were tangential to the claimed procedural violations of the government’s rescission by the Scotts Tribe, the court held that permissive intervention would not contribute to the just and equitable adjudication of the matter. In fact, the court held that allowing intervention would serve only to substantially complicate the matter. For these reasons, the court denied each party’s motion to intervene.

Scotts Valley Band of Pomo Indians v. Burgum, No. 1:25-CV-00958 (TNM), 2025 WL 1639901 (D.D.C. June 10, 2025) (Scotts II).

In Scotts II, the Scotts Valley Band of Pomo Indians (the “Tribe”) sought a preliminary injunction preventing the government from reconsidering its approval of a gaming facility on the Tribe’s land held in trust. Because the court found that no irreparable harm would result from the denial of such injunction, it denied the motion.

As in Scotts I, the Tribe’s land had previously been taken into trust by the government and their request to construct a gaming facility had been approved. After the government later reconsidered and suspended the approval, the Tribe initiated this lawsuit, arguing that the consideration was procedurally deficient and moving for a preliminary injunction against the suspension.

The court noted that a preliminary injunction would only be granted if, among other things, the Tribe could meet its burden of showing that irreparable harm would result in the absence of an injunction. The Tribe argued that it would suffer both monetary irreparable harm and harm to its sovereignty. The court rejected both arguments.

The Tribe argued that it would suffer monetary harm because it had already entered into various contracts in reliance on the government’s allowance of conducting gaming activities on the land. The court held that because monetary damages are not alone sufficient to show irreparable harm, the Tribe had not met its burden. Further, the Tribe’s alleged harms were merely conclusory, and the Tribe did not elaborate on how its monetary losses could not be sufficiently redressed by the time a decision was reached on the merits. Particularly important to the court’s decision was that the Tribe had entered into many of these contracts before the government had approved of the gaming activities in the first place, so the suspension of this approval could not have caused monetary harm.

Next, the Tribe argued that it would suffer an irreparable injury to its sovereignty. The court rejected this argument because the Tribe’s legal status was hardly affected by the suspension of gaming eligibility. Even after gaming activity had been approved, the Tribe was required to clear several other administrative barriers before it could operate a casino, which it had not even begun constructing. As a result, the Tribe was not engaging in any gaming activities before the suspension took effect. Even if gaming activity were not suspended, the Tribe would not be engaging in any such activity for at least a year. This led the court to find that any alleged harm to the Tribe’s sovereignty was merely theoretical and not actual or concrete.

Because theoretical harm is not sufficient to clear the irreparable harm requirement and because the alleged monetary harm was insufficient, the court denied the Tribe’s motion for a preliminary injunction.

Cow Creek Band of Umpqua Tribe of Indians v. U.S. Dep’t of the Interior, No. 24-CV-03594 (APM), 2025 WL 548316 (D.D.C. Feb. 19, 2025), dismissed sub nom. Cow Creek Band of Umpqua Tribe of Indians v. U.S. Dep’t of the Interior, No. 25-5034, 2025 WL 914195 (D.C. Cir. Mar. 24, 2025).

In Cow Creek, three Indian Tribes (the “Plaintiff Tribes”) brought a suit against the Department of the Interior (DOI) to oppose its taking of certain land into trust so that another tribe could operate a gaming facility on the land. The Plaintiff Tribes sought a preliminary injunction divesting title from the other tribe and prohibiting the tribe from operating a gaming facility. The court denied the preliminary injunction because the Plaintiff Tribes failed to show irreparable harm.

The Plaintiff Tribes first argued that they would suffer financial losses from the increased competition to their casinos caused by the new gaming facility. As a result, many tribal government services and programs would suffer due to the diminished revenue generated by their casinos. The court held that any financial losses projected by the opening of a new gaming facility were not certain to occur in the near future as the new facility was not set to be fully operational until 2029. While some gaming activity had already been taking place on the land that was taken into trust, the Plaintiff Tribes had only made conclusory allegations as to how this would impact their tribal programs and services. Because the alleged economic harm was not sufficiently imminent and its immediate results were not clearly demonstrated by the Plaintiff Tribes, they could not allege irreparable harm as a result of financial losses.

The Plaintiff Tribes next argued that they suffered irreparable harm as a result of being subjected to an unlawful review process based on unconstitutional regulations in relation to the procedure of taking land into trust. The Plaintiff Tribes relied on Axon^[98] to demonstrate that this type of injury constitutes irreparable harm. However, the court held that Axon does not support the Plaintiff Tribes’ argument because it made no conclusion about what constitutes irreparable harm and bore no resemblance to the case at issue in the first place.

Finally, the Plaintiff Tribes argued that a number of other irreparable harms would result from the operation of a new gaming facility, including injuries to their tribal employees, the environment, and public opinion. The court held that the Plaintiff Tribes’ arguments were too conclusory and speculative to be irreparable for the same reasons as its economic harm analysis and any alleged effects to the public’s perception of the historic ties to the land were without proof.

Because the Plaintiff Tribes’ alleged injuries were not sufficiently imminent and concrete, they could not constitute irreparable harm. Therefore, the court denied the motion for a preliminary injunction.

§ 4.2. Federal Approval for Reservation Activity

Due to the unique trust status of Indian lands, contracts involving those lands are subject to various forms of federal oversight. The Secretary of the Interior must approve any contract or agreement that “encumbers Indian lands for a period of seven or more years,” unless the Secretary determines that approval is not required.^[99] Federal regulations explain that “[e]ncumber means to attach a claim, lien, charge, right of entry, or liability to real property.”^[100] Encumbrances may include leasehold mortgages, easements, and other contracts or agreements that, by their terms, could give to a third party “exclusive or nearly exclusive proprietary control over tribal land.”^[101]

Per revisions to Section 81 in 2000, the Interior Secretary will not approve any contract or agreement if the document does not (1) set forth the parties’ remedies in the event of a breach; (2) disclose that the tribe can assert sovereign immunity as a defense in any action brought against it; and (3) include an express waiver of tribal immunity.^[102] Leaseholds for Indian lands, which typically run 25 years, also require secretarial approval.^[103] Failure to secure secretarial approval could render the agreement null and void.^[104] Therefore, if the transaction implicates tribal lands, counsel should analyze whether the Secretary must approve the underlying contract or lease.^[105] Regardless of whether Secretary approval is necessary, all parties should be careful as to how they draft agreements which may encumber the land.^[106] If the contract pertains to a tribal casino, the parties must also consider whether the contract should be submitted to the National Indian Gaming Commission (“NIGC”) for approval pursuant to the Indian Gaming Regulatory Act (“IGRA”).^[107] Any “management agreement” for a tribal casino or “contract collateral to such agreement” requires NIGC approval to be valid and enforceable.^[108] The NIGC has recently found that certain consulting, development, lease, and financing documents that confer management authority to the consultant, developer, landlord, or lender thereby constitute a management contract that is void unless approved by the NIGC.

Non-Indian contractors must also consider whether they need to obtain an Indian Traders License from the Bureau of Indian Affairs (“BIA”) and/or a tribal business license to properly do business with a tribe.^[109] Federal regulations do not preclude certain tribes from imposing additional fees on non-Indian contractors. Failure to obtain appropriate licenses could subject the contractor to a fine or forfeiture, if not tribal qui tam litigation.^[110]

With much tribal and media fanfare, in 2012, President Obama signed into law the Helping Expedite and Advance Responsible Tribal Homeownership (“HEARTH”) Act.^[111] As noted above, prior to the passage of this bill, under 25 U.S.C. § 415, every lease of a tribe’s lands must undergo federal review and approval by the Secretary of the Interior under a sprawling, burdensome set of regulations.^[112] The HEARTH Act changes that scheme of Indian land leasing by allowing tribes to lease their own land. The Act gives tribal governments the discretion to lease restricted lands for business, agricultural, public, religious, educational, recreational, or residential purposes without the approval of the Secretary of the Interior. Tribes are able to do so with a primary term of 25 years, and up to two renewal terms of 25 years each (or a primary term of up to 75 years if the lease is for residential, recreational, religious, or educational purposes).

There are some caveats, though. First, before any tribal government can approve a lease, the Secretary must approve the tribal regulations under which those leases are executed (and mining leases will still require the Secretary’s approval). Second, before the Secretary can approve those tribal regulations, the tribe must have implemented an environmental review process—a “tribal,” or “mini” National Environmental Policy Act—that identifies and evaluates any significant effects a proposed lease may have on the environment and allows public comment on those effects. The HEARTH Act authorizes the Interior Secretary to provide a tribe, upon the tribe’s request, with technical assistance in developing this regulatory environmental review process. HEARTH Act implementing regulations went into effect in 2013.^[113] As of November 4, 2025, the BIA lists 97 tribes whose regulations have been approved to exercise the enhanced rights of sovereignty associated with taking control over the leasing of tribal land.^[114]

The following highlights several of the more relevant cases decided in the last year.

Maverick Gaming LLC. v. United States, 123 F.4th 960 (9th. Cir. 2024).

In Maverick Gaming, Maverick Gaming LLC (“Maverick”), a casino-gaming company, challenged the Washington state legislature’s decision to preclude private entities from engaging in sports betting while simultaneously authorizing the practice on Indian lands through a variety of tribal-gaming compacts. According to Maverick, these legislative actions violated the Indian Gaming Regulatory Act (“IGRA”), the Equal Protection Clause, and the Tenth Amendment of the United States Constitution.

Although Maverick sought relief that would invalidate the gaming compacts of all tribes in Washington, the company failed to include any of these tribes as parties to the suit. Because of this, the court engaged in an extensive inquiry to determine whether the Shoalwater Bay Indian Tribe (the “Tribe”) could intervene in the case for the limited purpose of filing a motion to dismiss on account of its sovereign immunity. After concluding that the Tribe was a required party entitled to intervene, the court granted the Tribe’s motion to dismiss on the ground of tribal sovereign immunity.

But in reaching the above conclusion, the court also noted that Maverick’s suit also ran afoul of IGRA’s central purpose: to confer legal entitlements to federally recognized Indian tribes in the form of tribal-state gaming compacts. Indeed, the court noted that Maverick’s attempt to invalidate the tribal-‍state gaming compacts throughout the state of Washington could ultimately “destroy these legal entitlements” and significantly threaten the IGRA’s mission of promoting tribal economic development, tribal self-sufficiency, and strong tribal governments.

California v. U.S. Dep’t of Interior, No. 25-cv-03850-RFL, 2025 WL 2459355 (N.D. Cal. Aug. 26, 2025).

In California v. United States Department of Interior, the court granted the Koi Nation’s (“Koi”) motion to intervene in a land dispute between California and the Department of Interior (“DOI”). At the core of the dispute was California’s challenge to the DOI’s decision to take the “Shiloh Site,” a 68-acre parcel of land in California, into trust for the purpose of authorizing gaming on the parcel under the Indian Gaming Regulatory Act’s (“IGRA”) restored lands exception. Under this exception, the DOI may authorize gaming on trust land where a tribe has demonstrated a significant historical connection to the land.

According to Koi, it was entitled to intervene in the case because it had a legally protected interest in the litigation that would not be adequately represented by the DOI and other federal defendants. The court agreed. The court noted that when the DOI concluded that IGRA’s restored lands exception applied, Koi obtained a legally protected interest to engage in Class II gaming. Moreover, the court emphasized that because Koi had received approval of its gaming ordinances from the Chair of the National Indian Gaming Commission, its rights to Class II gaming had fully materialized. The court therefore concluded that Koi was entitled to intervene as of right in the land dispute between California and the DOI.

§ 4.3. Labor and Employment Law & Indian Tribes

When Indian tribes act as commercial entities and hire employees, they are not subject to the same labor and employment laws as nontribal employers. For example, state labor laws and workers’ compensation statutes are inapplicable to tribal businesses.^[115] Moreover, tribal employers may not be subject to certain federal labor and employment laws.^[116]

Tribal employers are ordinarily exempt from antidiscrimination laws. Both Title VII of the Civil Rights Act of 1964^[117] and the Americans with Disabilities Act^[118] expressly exclude Indian tribes,^[119] and state anti-discrimination laws usually do not apply to tribal employers.^[120] In addition, tribal officials are generally immune from suits arising from alleged discriminatory behavior.^[121]

The circuits remain severely split regarding the application of federal regulatory employment laws to tribal employers. The Eighth and Tenth Circuits have refused to apply to tribes such laws as the Occupational Safety and Health Act (OSHA),^[122] the Employee Retirement Income Security Act (ERISA),^[123] the Fair Labor Standards Act (FLSA),^[124] the National Labor Relations Act (NLRA),^[125] and the Age Discrimination in Employment Act (ADEA),^[126] because doing so would encroach upon well-established principles of tribal sovereignty and tribal self-governance.^[127]

Conversely, the Second, Seventh, and Ninth Circuits have applied OSHA and ERISA to tribes.^[128] Moreover, the Seventh and Ninth Circuits lean toward application of FLSA to tribes.^[129] These circuits reason that, because Indian tribes are not explicitly exempted from these statutes of general applicability, the laws accordingly govern tribal employment activity.^[130] Following this reasoning, the Department of Labor has stated that the FMLA^[131] applies to tribal employers.^[132] However, aggrieved employees may experience difficulty enforcing federal employment rights due to the doctrine of sovereign immunity.^[133] For example, the Second Circuit has held that, because Congress did not explicitly authorize suits against tribes in the language of the FMLA or the ADEA, tribal employers cannot be sued for money damages in federal court by employees under these statutes.^[134]

Questions remain concerning whether federal statutes of general applicability extend beyond the labor and employment arena where they do not affirmatively contemplate whether Indian tribes govern tribal or reservation-based activities. For example, do federal franchise laws apply in Indian Country? What about the federal Copyright Act or other federal intellectual property statutes? What about Sarbanes-Oxley? While subject to the split in circuits discussed immediately above, it is unclear in which federal jurisdictions a court would hold that such federal laws apply to tribes.^[135]

Federal courts have continued to decide cases involving the application of federal labor and employment rules to tribal employers. More generally, courts have grappled with how to apply statutes of general applicability to tribal sovereigns.

Metropolitan Life Ins. Co. v. Mundahl, No. 3:24-CV-03029-RAL, 2025 WL 2682509 (D.S.D. Sept. 19, 2025).

In Metropolitan Life Ins. Co. v. Mundahl the court found that tribal courts do not have jurisdiction to hear ERISA claims, aside from initial determinations of whether the plan in dispute is covered by the act.

Joye M. Braun (“Joye”) was an employee of the Indigenous Environmental Network, as well as a member of the Cheyenne River Sioux Tribe. As a benefit of her employment, Joye participated in a life insurance and accidental death and dismemberment plan (the “Plan”). While Joye did not designate a beneficiary for the Plan, in November of 2022 she designated her children as beneficiaries of the Plan. However, less than two weeks later, Joye died of an unexpected cardiac event. A dispute arose over whether the designation of beneficiaries made by Joye was effective as of the date of the election, or beginning the following year. The Defendant, on behalf of Joye’s estate, brought a suit in the Cheyenne River Sioux Tribal Court (the “Tribal Court”). The Plaintiff filed a suit in federal court which sought to enjoin the Defendants from proceeding in the Tribal Court.

The District Court first had to decide whether the Plan was subject to ERISA. While there was some language in an email confirming Joye’s benefit elections to the contrary, the court found that ERISA governs the Plan. The court then turned to whether they should defer to the Tribal Court’s jurisdiction. While ERISA provides federal courts with exclusive jurisdiction for certain claims, the act does provide that state courts may also have concurrent jurisdiction over certain claims. However, the court found that at no point does ERISA contemplate concurrent tribal court jurisdiction for any claims governed by ERISA. This exclusion of tribal courts from the language of ERISA led the court to find that it was Congress’ intent to exclude tribal courts as suitable forums for ERISA governed claims. Therefore, while the court acknowledged that it is generally federal policy to stay certain cases to provide tribal courts the first opportunity to determine their own jurisdiction, there are exceptions to this rule. One such exception is where the action in tribal court would be violative of an express jurisdictional prohibition. The fact that ERISA does provide such a prohibition led the court to refuse to stay the federal case.

Finally, in determining whether or not to issue injunctive relief, the District Court examined the Dataphase factors. The first factor, the likelihood of success on the merits, tends to favor injunctive relief. While the Plaintiff has not shown that they will necessarily be successful on the underlying ERISA claim, the Plaintiff has shown that they will likely be successful on the jurisdictional question discussed above. The second factor, the threat of irreparable harm, is also satisfied, as the Plaintiffs would be irreparably harmed by having to litigate in a court that lacks jurisdiction over the claim at issue in the case. Further, the third factor, balance of the equities, also favors granting the injunction, as the Defendants cannot be said to be harmed by the injunction. The Defendants are not entitled to litigate in the Tribal Court. Therefore, the court found that being prevented from doing so does is not a cognizable harm. Finally, the public interest, being the fourth and final factor of the Dataphase factors, weighs in favor of granting the injunction as it will be in the public interest to further a uniform regulatory regime. Therefore, the Plaintiff met their burden, and the court granted the preliminary injunction to prevent the Tribal Court from proceeding in this case.

Parrotta v. Island Resort & Casino, No. 2:24-CV-56, 2025 WL 643180 (W.D. Mich. Jan. 16, 2025), report and recommendation adopted, No. 2:24-CV-56, 2025 WL 640793 (W.D. Mich. Feb. 27, 2025).

In this case, the District Court held, by adopting a report and recommendation (the “Report”) issued by a magistrate judge, that while the Fair Labor Standards Act (the “FLSA”) may be applicable to tribes, the Act itself did not waive the sovereign immunity held by tribes. The Plaintiff in this case was employed as an executive chef for the Island Resort and Casino, a federally recognized tribe. The Plaintiff claimed that she was unlawfully misclassified as overtime exempt, and therefore was never paid for overtime, despite working more than forty hours per week. In 2023, the Plaintiff had a child and took maternity leave, as approved by her management team. When she returned, she was told that she would have to either quit or work a different schedule than she had previously agreed to. She resigned.

The Report first discussed the status of tribes as domestic dependent nations, and affirmed that, absent Congressional abrogation or tribal waiver, tribes retain sovereign immunity. Arms of the tribe acting on behalf of the tribe similarly retain this sovereign immunity.^[136] Applying several factors, the Report concluded that Island Resort and Casino is an arm of their tribe, thus entitled to the same sovereign immunity.

The Report then discussed the application of the FLSA to tribes. The Report found that the FLSA, being a statute of general applicability does apply to Indian tribes. While the Sixth Circuit recognizes an exception when the generally applicable statute would interfere with a tribe’s ability to govern itself, the Report found this exception not to apply to this case. In determining whether this exception applies, the Sixth Circuit utilizes the Coeur d’Alene framework. This framework will not apply the statute to the tribe if “(1) the law touches exclusive rights of self-governance in purely intramural matters; (2) the application of the law to the tribe would abrogate rights guaranteed by Indian treaties; or (3) there is proof of legislative history or some other means that Congress intended [the law] not to apply to Indians on their reservations.”^[137]

Applying this framework, the Report found no reason to apply this exception, and the Defendant failed to even contest the FLSA’s applicability to the tribe. However, the fact that the statute applies to the tribe does not determine whether the tribe may be sued for violating the statute. A statute of general applicability can apply to the tribes, and yet still fail to abrogate the tribe’s sovereign immunity. Such an abrogation may only occur when Congress has made it unmistakably clear in the statute’s language that it is doing so. Here, the FLSA includes no such clear expression. While the FLSA explicitly abrogates sovereign immunity for other agencies, it makes no such abrogation for tribes. Therefore, while the FLSA may be a statute of general applicability that applies to the tribes, a private party may not bring a civil suit to enforce the FLSA against the tribe.

Butrick v. Dine Dev. Corp., No. 3:23-CV-884-HEH, 2024 WL 4643258 (E.D. Va. Oct. 30, 2024).

In Butrick v. Dine Dev. Corp., the court found that while the Family and Medical Leave Act (the “FMLA”) is applicable to Indian tribes, the Act does not abrogate tribal sovereign immunity. In this case, the Plaintiff was employed as a contracts administrator for Dine, which is wholly owned by the Navajo Nation. The Plaintiff began her maternity leave in 2023 and returned later that year. After returning from her leave, Plaintiff was placed on a performance improvement plan, despite receiving positive reviews prior to her leave. Not long after she was terminated due to “inefficiencies” in her performance. Plaintiff brought this suit under the theory that these actions amounted to interference with her right to take maternity leave, in violation of the FMLA.

The parties conceded that the employer, Dine, was an arm of the Navajo Nation, and therefore presumably entitled to sovereign immunity. However, the Plaintiff argued that the FMLA, though silent on tribal sovereign immunity, is generally applicable and thus must allow her to bring suit against Dine. The court rejected this argument, finding that the question of whether the FMLA is applicable to tribes, and whether the tribe may be sued for violations of the Act to be entirely separate inquiries. Sovereign immunity protects tribes unless there has been a clear abrogation by Congress. Here, the text of the FMLA makes no mention of tribal sovereign immunity, as admitted by the Plaintiff. Therefore, it cannot be used to abrogate sovereign immunity.^[138]

Tribal sovereign immunity may also be waived by a tribe itself. The Plaintiff argued that the Defendant did so in their employee handbook. This handbook stated that despite its sovereign immunity, it voluntarily complies with the FMLA. The court refused to read this provision as a waiver of sovereign immunity because (1) the waiver is not explicit due to other provisions in the handbook expressly preserving sovereign immunity, and (2) the waiver does not identify where a lawsuit would be permitted to take place. Therefore, the court refused to find either an abrogation of sovereign immunity by Congress, nor a waiver of sovereign immunity by the tribe.

Eggers v. Healing Lodge of the Seven Nations, No. 2:24-CV-00078-SAB, 2025 WL 2346885 (E.D. Wash. Aug. 13, 2025).

In Eggers v. Healing Lodge of the Seven Nations, the District Court dismissed the Plaintiff’s complaint asserting violations of 42 U.S.C.§ 2000e et seq., the Americans with Disabilities Act (the “ADA”), the Age Discrimination in Employment Act (the “ADEA”), and state law claims, due to the Defendant’s sovereign immunity.

In this case, the Plaintiff previously worked as an administrative assistant for the Healing Lodge of the Seven Nations (the “Healing Lodge”), a tribal-owned nonprofit. In 2022, Plaintiff was diagnosed with lupus. While she requested special accommodations for her condition, not all of them were met. In 2023, the Plaintiff was terminated at age 65. She later brought this suit in federal court asserting that both the Healing Lodge and Stensgar, an employee of the Healing Lodge, violated 42 U.S.C. § 2000e et seq., the ADA, the ADEA, as well as state law claims.

The court applied the White factors to determine whether the Healing Lodge qualified as an arm of the tribe entitled to sovereign immunity. Specifically, the court examined several factors including: “(1) the method of creation of the economic entities; (2) their purpose; (3) their structure, ownership, and management, including the amount of control the tribe has over the entities; (4) the tribe’s intent with respect to the sharing of its sovereign immunity; and (5) the financial relationship between the tribe and the entities.” While factors weighed both in favor of and against a finding that the Healing Lodge was an arm of the tribe, the court found, on balance, that these factors favored a finding that the Healing Lodge was an arm of the tribe entitled to sovereign immunity. Based on this immunity, the claims against the Healing Lodge were dismissed.

The court also dealt with the claims against Stensgar. While Stensgar, as an employee, is not given sovereign immunity for her own actions, an employee of a tribe is given sovereign immunity against suits against them in their official capacity. The court found that in the claims against Stensgar, the tribe was the “real, substantial party in interest” and therefore the claims against Stensgar were truly claims against her in her official capacity. Thus, the court also dismissed the claims against Stensgar due to the sovereign immunity held by the tribe. Without any federal law claims, the court was left with no jurisdiction over the remaining state law claims and therefore remanded any remaining state law claims to the Spokane County Superior Court.

§ 4.4. Federal Court Jurisdiction

Federal court jurisdiction is limited to cases that invoke a federal court’s limited subject matter jurisdiction. Such cases may involve a federal question^[139] or claims that are brought involving diversity of citizenship.^[140] Litigation that arises from a deal with a federally recognized tribe, or otherwise has federal overtones, does not necessarily present a federal question that will allow a federal district court to assume jurisdiction,^[141] nor does the possibility that a tribe may invoke a federal statute in its defense confer federal court jurisdiction.^[142] Moreover, courts have generally held that a tribe is not a citizen of any state for diversity purposes and, therefore, cannot sue or be sued in federal court based on diversity jurisdiction.^[143] However courts are split on whether a business incorporated under federal statute, state law, or tribal law can qualify for diversity jurisdiction.^[144] Because the potential judicial forums for commercial litigation arising out of Indian Country are likely restricted to state or tribal court, choosing federal court as the choice of venue may not make sense.

The following highlights several of the more relevant cases decided in the last year.

Langenderfer v. Miller, No. 24-CV-06526-HSG, 2025 WL 1135086 (N.D. Cal. Apr. 16, 2025).

In Langenderfer v. Miller, the court dismissed a pro se plaintiff’s case for lack of subject matter jurisdiction. The Plaintiff’s primary argument in favor of subject matter jurisdiction was based on his membership in the Mendocino Indian Reservation, and that he entered the contract at issue in the case as a representative of the Mendocino Indian Reservation. The court presumed that this argument hinged on the assumption that a federal question is presented because he, as the plaintiff, was a member of an Indian tribe.

The court denied this as a basis for federal question subject matter jurisdiction, which would require that the claim arise under the Constitution, federal law, or a federal treaty. The court made clear that federal question jurisdiction simply does not exist whenever an Indian tribal member is involved. Rather, the contract dispute at issue in this case is simply one that arises under state law, without raising any issues of federal law.

The plaintiff also attempted to rely on 28 U.S.C. § 1362 to find that the court had jurisdiction. This was also misplaced. § 1362 provides district court’s jurisdiction over matters brought by Indian tribes, but it still requires that the matter arise under federal law. The court’s determination that this is solely a state law claim thus prohibits § 1362 from providing the court with subject matter jurisdiction over this case.

Liveious v. Caesars Ent., Inc., No. 4:24-CV-00145-TWP-KMB, 2025 WL 2022619 (S.D. Ind. July 18, 2025).

In Liveious v. Caesars Ent., Inc., the court dismissed the case for lack of subject matter jurisdiction. In this case, the plaintiff sued EBCI Holdings (“EBCIH”), a for-profit LLC whose sole member is the Eastern Band of Cherokee Indians (the “Tribe”), and CSI Operating Company, LLC (“CSI”), an LLC whose sole member is EBCIH. The plaintiff alleged negligence, wrongful death, loss of consortium and other related state law claims. The only theory of subject matter jurisdiction pled by the plaintiff was diversity jurisdiction under 28 U.S.C. § 1332. When determining the citizenship of an LLC, the court must look to the members of the LLC. Thus, both EBCIH and CSI are considered to have the same citizenship as the Tribe.

While previous decisions in the Seventh Circuit had dealt with how to determine citizenship under diversity jurisdiction for corporations chartered under tribal laws, the issue of how to determine the citizenship of an LLC whose sole member is a tribe had yet to be addressed. In the Seventh Circuit, the court had previously held that a corporation chartered under tribal law is to be treated as a citizen of a state for purposes of diversity jurisdiction.^[145] The plaintiff sought to extend this holding to include the LLCs they brought suit against in this case.

While the court admitted that they were not bound by precedent on this issue, they did note that the majority of courts that have decided the issue have found that similar defendants are not citizens of any state for purposes of diversity jurisdiction. The court joined these jurisdictions in finding that unincorporated tribal entities are not citizens of any state for the purpose of determining whether complete diversity exists. Thus, both defendants fail to be diverse from the plaintiff, as they are not citizens of any state. Since the plaintiff’s sole theory of subject matter jurisdiction was diversity jurisdiction, the court dismissed the case for a lack of such jurisdiction.

Gila River Indian Cmty. v. Schoubroek, 145 F.4th 1058 (9th Cir. 2025).

In Gila River Indian Cmty. v. Schoubroek, the court found that subject matter jurisdiction existed for the claims at issue based on federal questions jurisdiction. Here, the Gila River Indian Community (the “GRIC”) sued the defendant homeowners, alleging that their groundwater use violated their rights. Before grappling with the merits, the court first had to decide two jurisdictional issues. First, the court examined whether the district court had exclusive jurisdiction to hear the claims. Second, the court examined whether subject matter jurisdiction exists for these claims.

Here, both parties argued that the prior exclusive jurisdiction doctrine applied. The GRIC argued that the District Court for the District of Arizona had exclusive jurisdiction based on their exercise of jurisdiction since 1935. Opposing this theory, the defendants argued that the Arizona Adjudication court had exclusive jurisdiction based on their decisions since 1981. The district court had previously agreed with the GRIC and found that the district court had exclusive jurisdiction. However, the Court of Appeals, here reversed this decision, finding that neither court had exclusive jurisdiction over these claims.

Importantly, the court then took up the issue of whether subject matter jurisdiction exists for this controversy. The plaintiff argued that subject matter jurisdiction existed under 28 U.S.C. § 1362. This provision permits tribes to sue in federal court when the matter arises under federal law. In determining the scope of this grant of jurisdiction, the court examined key precedent that found § 1362 was intended to allow tribes to bring suit in federal court to protect their federally derived property rights when the United States had declined to act.^[146] Based on this understanding of § 1362, the court found that jurisdiction was proper. The United States is the entity who owns the reserved land in question, as well as the appurtenant water rights, on behalf of the GRIC. Thus, the United States could have sued to safeguard these rights for the Tribe but declined to do so. This failure to take action to protect the Tribe’s possessory water rights thus placed this within the ambit of § 1362, and thereby permits the GRIC to sue in federal court to protect these rights. Therefore, while the district court did not have exclusive jurisdiction, they were permitted to hear the dispute under § 1362.

Rosales v. Roman Cath. Bishop of San Diego, No. 24-3754, 2025 WL 1720996 (9th Cir. June 20, 2025).

In Rosales v. Roman Cath. Bishop of San Diego, the court addressed whether federal question jurisdiction provided the court with subject matter jurisdiction over the case. The court found that it did, based on the attempt by plaintiff to enjoin activity on federal trust land. In this case, the plaintiff sought an injunction to prevent construction on a disputed parcel, and all land within 100 feet. This zone encompassed federal trust land.

The district court in this case erred by exercising supplemental jurisdiction without determining first whether any claim provided original jurisdiction. Despite this mistake, the court in this case examined whether original jurisdiction would have existed under federal question jurisdiction, and found that it did. The court noted that a case may arise under federal law when either federal law creates the cause of action being asserted, or when a substantial federal issue is necessarily raised, actually disputed and capable of resolution in a federal court without disrupting the federal-state balance as approved by Congress.

Here, the complaint did not assert a claim that was created under federal law, but it did raise a federal issue that the court found satisfied the requirements for federal question jurisdiction. By seeking to enjoin activity on federal trust land using state law, a substantial federal issue arose. This scenario had previously been addressed by the Supreme Court, who explained that the question is a matter of federal law.^[147] Further, the court determined that allowing the issue to be resolved by the federal court did not disturb the balance of judicial responsibilities between the federal and state governments. The issue of tribal rights on federal trust land is one reserved for Congress; thus, it would be appropriate for a federal court to resolve a dispute relating to this matter. Therefore, despite the district court’s erroneous decision to exercise supplemental jurisdiction, the court found that they did in fact have subject matter jurisdiction through federal question jurisdiction.

Santos-Vercelli v. Moses, No. 1:25-CV-00074-DCN, 2025 WL 1332157 (D. Idaho May 7, 2025).

The court in Santos-Vercelli v. Moses found that subject matter jurisdiction did not exist to allow for what was essentially a child custody dispute to proceed in federal court. The plaintiff’s asserted claims included a real property dispute (in the form of her child), personal injury, assault, libel, slander, constitutionality of state statutes, the False Claims Act, and other civil rights. However, the court found that at its core, this case is essentially a custody proceeding, which would generally be a matter left solely to state courts.

The plaintiff argued that her constitutional rights and indigenous rights were implicated and therefore a federal forum would be the appropriate place to litigate her claims. However, the court found these claims to be lacking. Specifically, she never clearly indicated what provisions of the Constitution had been implicated. The court assumed that she claimed that her child was the property that she had been deprived of, which would be an incorrect understanding of the Fourth Amendment. Therefore, the court was unable to find a basis for federal question jurisdiction. The plaintiff also cited diversity jurisdiction as a means of gaining subject matter jurisdiction. However, both her and the defendant were domiciled in Idaho, and therefore she could not satisfy the complete diversity requirement.

Finally, the court addressed her argument that jurisdiction was proper due to alleged violations of her indigenous rights. The plaintiff referenced several specific treaties but failed to explain how those treaties created the right for her to bring these claims in federal court. The court made clear that a party simply being indigenous does not automatically grant the federal court with subject matter jurisdiction over the claims being asserted. Therefore, the court found that it lacked subject matter jurisdiction.

§ 5. The State Sovereign

With billions of dollars being exchanged in Indian Country, state government is naturally looking for a piece of the action, giving rise to tax clashes between tribes and their business partners, and states and counties. These conflicts are primarily decided under the “federal preemption doctrine,” which asks whether a state’s attempted regulation or taxation of non-Indian activities in Indian Country is preempted by federal statutes or treaties, taking into account overarching notions of tribal sovereignty.^[148]

Generally, state taxes apply to everyone “outside a tribe’s reservation” and are “federally preempted only where the state law is contrary to express federal law.”^[149] Within Indian Country, on the other hand, “the initial and frequently dispositive question in Indian tax cases is who bears the legal incidence of the tax.”^[150] When the legal incidence falls on tribes, tribal members, or tribal corporations,^[151] “[s]tates are categorically barred” from implementing the tax.^[152]

When the legal incidence falls on non-Indians, however, a more nuanced analysis applies. Although, historically, the U.S. Supreme Court asked whether any assertion of state power on Indian land would impinge on the tribal right to make its own laws and be ruled by them, in recent years, the High Court has moved away from that inherent tribal sovereignty analysis in favor of a federal preemption regime.^[153] Because Congress does not often explicitly preempt state law,^[154] the Supreme Court and the lower federal courts engage in a balancing act to determine whether tribal self-governance rights, bolstered by federal laws, preempt state laws.^[155] This balancing act weighs a state’s interest in policing non-Indian conduct against combined federal and tribal interests in regulating affairs that arise out of tribal lands within the state’s boundaries.^[156]

In New Mexico v. Mescalero Apache Tribe,^[157] the Supreme Court explained that “state jurisdiction is preempted by the operation of federal law if it interferes or is incompatible with federal and tribal interests embodied in federal law, unless the state interests at stake are sufficient to justify the assertion of state authority.”^[158] In Mescalero, the Court held that New Mexico could not impose its own fishing and hunting regulations on non-Indians on the reservation because of strong federal interests in “tribal self-sufficiency and economic development” and a lack of state interests.^[159]

When non-Indian parties operate in Indian Country, lawyers must proactively evaluate whether, or to what extent, a state or local government’s interest in policing or taxing conduct that relates to neighboring tribal lands outweighs relevant federal and tribal interests pertaining to that same conduct arising within those lands. The issues of preemption and infringement are regularly litigated in the federal courts.

Williams v. Martorello, 143 F.4th 555 (4th. Cir. 2025).

In Williams, the court considered whether a district court had erred in evaluating the lawfulness of loans issued by Matt Martorello and a group of tribal lending entities (the “Entities”) under Virginia, rather than tribal, law. According to five Virginia citizens (the “Borrowers”) who had received loans from the Entities, Martorello and the Lac Vieux Desert Band of Chippewa Indians (the “Tribe”) had established the Entities under tribal law as a means to cloak the Entities in the sovereign immunity of the Tribe, thereby precluding the enforcement of otherwise applicable usury laws capping interest rates. After the district court granted summary judgment in favor of the Borrowers, Martorello argued, among other things, that the district court erred in evaluating the lawfulness of loans issued by the Entities to the Borrowers under Virginia (and not tribal) law.

The Fourth Circuit rejected Martorello’s argument, concluding that the district court had properly applied Virginia law to evaluate the lawfulness of the loans issued to the Borrowers. In making this determination, the court determined that a White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980) analysis was inapplicable to the challenged conduct because: 1) the Entities’ lending activities were broadly marketed online and in direct mailing to consumers; 2) the Borrowers lived off the Tribe’s reservation when they applied for and made payments under the loans; 3) the Borrowers were not tribal members; and 4) the effect of the challenged lending practices were felt off the Tribe’s reservation through collection and other actions. The court therefore applied Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973) and held that because Martorello and the Entities’ “challenged conduct was clearly part of the Tribe’s off-reservation conduct subject to nondiscriminatory state regulation,” the district court properly applied Virginia law to evaluate the lawfulness of the loans issued to the Borrowers.

City of Tulsa v. O’Brien, S-2023-715, 2024 WL 5001684 (Okla. Crim. App. Dec. 5, 2024).

In City of Tulsa, the Oklahoma court of criminal appeals evaluated whether the city of Tulsa (the “City”) had jurisdiction to prosecute traffic misdemeanors that were allegedly committed by Nicholas Ryan O’Brien (“O’Brien”), a member of the Osage Nation tribe, within the concurrent boundaries of the City and the Muscogee (Creek) Nation (the “Tribe”). The court ultimately determined that the City’s jurisdiction to prosecute O’Brien was not preempted under federal law or by principles of tribal self-government. Accordingly, the court held that City could prosecute O’Brien.

In reaching the above conclusion, the court began by noting that “unless preempted by federal law, as a matter of state sovereignty, a State has jurisdiction over all of its territory, including Indian country.” But at the same time, the court also noted that “Tribes have the inherent power to regulate their own members and internal affairs through tribal self-government.” Accordingly, the court applied the following overarching principle to resolve the issue before it: “a State’s jurisdiction in Indian country may be preempted (1) by federal law under ordinary principles of federal preemption, or (ii) when the exercise of state jurisdiction would unlawfully infringe on tribal government.”

Applying the above rule, the court held that the City’s criminal jurisdiction to prosecute O’Brien was not preempted under federal law or by principles of self-government. First, the court held that neither the General Crimes Acts, Public Law 280, the Indian Civil Rights Act, the Tenth Amendment, nor Supreme Court caselaw preempted the City’s authority to prosecute O’Brien’s alleged crimes. Second, the court determined that the City’s prosecution of O’Brien was not preempted by principles of tribal self-government because the prosecution did not affect the Muscogee (Creek) Nation’s authority to regulate its own citizens for violations of tribal law, did not harm the federal interest in protecting Indians on the Creek reservation, and promoted the City’s strong sovereign interest in ensuring public safety on the roads and highways of its territory. Accordingly, the court authorized the City to proceed with its prosecution of O’Brien.

§ 6. Conclusion

Economic growth and development throughout Indian Country have spurred many businesses to engage in business dealings with tribes and tribal entities. Confusion may arise during these transactions because of the unique sovereign and jurisdictional characteristics attendant to business transactions in Indian Country. As a result, these transactions have prompted increased litigation in tribal and nontribal forums. Accordingly, counsel assisting in these transactions, or any subsequent litigation, should conduct certain due diligence with respect to the pertinent tribal organizational documents and governing laws that may collectively dictate and control the business relationship.

To maximize the client’s chances of a successful partnership with tribes and tribal entities, counsel should ensure that the transactional documents contain clear and unambiguous contractual provisions that address all rights, obligations, and remedies of the parties. Therefore, even if the deal fails, careful negotiation and drafting, and, in turn, thoughtful procedural and jurisdictional litigation practice, will allow the parties to more expeditiously litigate the merits of any dispute, without jurisdictional confusion. As business between tribes and nontribal parties continues to grow, ensuring that both sides of the transaction fully understand and respect the deal will lead to a long-lasting and beneficial business relationship for all.

1. Ed J. Hermes is a Partner at Snell & Wilmer L.L.P. and is based in the firm’s Phoenix, Arizona office. Ed is a litigator whose practice is focused on complex commercial, tax, construction, and property disputes, and disputes involving Federal Indian Law. Ed regularly appears on behalf of his clients in state, federal, and tribal courts and administrative tribunals throughout the Southwest. Having previously lived and worked in Indian Country, Ed also advises companies and economic development entities in conducting business and creating job opportunities in Indian Country. Ed is a member of the Native American Bar Association of Arizona, as well as admitted to practice law on the Navajo Nation.

   Special thanks to Snell & Wilmer L.L.P. Litigation, Investigations, and Trials attorneys Courtney Moore, Matthew Racioppo, and Michael Feeney for their assistance in drafting this chapter, as well as Snell & Wilmer L.L.P.’s 2025 summer associate class. ↑

2. Zachary Smith is an attorney in the Commercial Litigation Group at Snell & Wilmer, L.L.P. Zach has assisted in the representation of a variety of clients across multiple industries and general commercial litigation matters. ↑

3. Christian Fernandez is an attorney in the Commercial Litigation Group at Snell & Wilmer, L.L.P. Christian has assisted in the representation of a variety of clients across multiple industries, including matters involving construction litigation, real estate litigation, general commercial litigation, and white-collar crime and investigations. ↑

4. The Honorable Sandra Day O’Connor, Lessons from the Third Sovereign: Indian Tribal Courts, 33 Tulsa L.J. 1 (1997). ↑

5. Jack F. Williams, Integrating American Indian Law into the Commercial Law and Bankruptcy Curriculum, 37 Tulsa L. Rev. 557, 560 (2001). See also Frank Pommersheim, What Must Be Done to Achieve the Vision of the Twenty-First Century Tribal Judiciary, 7 Kan. J.L. & Pub. Pol’y 8, 11–12 (1997). ↑

6. Frank Pommersheim, What Must Be Done to Achieve the Vision of the Twenty-First Century Tribal Judiciary, 7 Kan. J.L. & Pub. Pol’y 8, 17 (1997). ↑

7. Worcester v. Georgia, 31 U.S. (1 Pet.) 515, 559 (1832). ↑

8. Id. ↑

9. United States v. Kagama, 118 U.S. 375, 381–82 (1886). ↑

10. Grant Christensen, A View from American Courts: The Year in Indian Law 2017, 41 Seattle U.L. Rev. 805 (2018). ↑

11. Grant Christensen, A View from American Courts: The Year in Indian Law 2017, 41 Seattle U.L. Rev. 805 (2018). ↑

12. Tribal Court Systems, U.S. Department of Interior, Indian Affairs, (last visited Nov. 4, 2025). ↑

13. Justice Systems of Indian Nations, Tribal Court Clearinghouse (last visited Nov. 4, 2025). ↑

14. B.J. Jones, Role of Indian Tribal Courts in the Justice System, Native American Monograph Series, 7 (Mar. 2000). ↑

15. Id.; Steven J. Gunn, Compacts, Confederacies, and Comity: Intertribal Enforcement of Tribal Court Orders, 34 N.M. L. Rev. 297, 306 (2004). ↑

16. Kristen Carpenter and Eli Wald, Lawyering for Groups: The Case of American Indian Tribal Attorneys, 81 Fordham L. Rev. 3085, 3159 (2013). ↑

17. See Montana v. United States, 450 U.S. 544, 566 (1981) (“Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians on their reservations . . . .” (emphasis added)); Means v. Navajo Nation, 432 F.3d 924, 930 (9th Cir. 2005) (holding that the tribe had jurisdiction over defendant because he was an Indian by political affiliation). ↑

18. Indian Country includes: (1) all land within the limits of any Indian reservation; (2) “dependent Indian communities” within the borders of the United States; and (3) all Indian allotments, including rights-of-way. 28 U.S.C. § 1151 (2000). “Although [that] definition by its terms relates only to . . . criminal jurisdiction . . . it also generally applies to questions of civil jurisdiction . . . .” Alaska v. Native Vill. of Venetie Tribal Gov’t, 522 U.S. 520, 527 (1998). ↑

19. “The ownership status of land . . . is only one factor to consider in determining whether [tribal courts have jurisdiction over non-members]. It may sometimes be a dispositive factor.” Nevada v. Hicks, 533 U.S. 353, 360 (2001) (emphasis added). ↑

20. Water Wheel Camp Recreational Area, Inc. v. LaRance, 642 F.3d 802 (9th Cir. 2011); see also Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 14 (1987) (“We have repeatedly recognized the Federal Government’s long-standing policy of encouraging tribal self-government. . . . This policy reflects the fact that Indian tribes retain ‘attributes of sovereignty over both their members and their territory . . . .’”) (quoting United States v. Mazurie, 419 U.S. 544, 557 (1975)). ↑

21. Lesperance v. Sault Ste. Marie Tribe of Chippewa Indians, 259 F. Supp. 3d 713, 716 (W.D. Mich. 2017) (a non-Indian sued the tribe in tribal court but provided notice in a letter to a customer representative and not to the tribal Secretary as required under the tribe’s waiver authority. The tribal trial court and appellate court upheld dismissal and the federal district court affirmed.). ↑

22. Water Wheel, 642 F.3d 802; Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134 (1980) (power to tax transactions on trust lands). Indian land in this context includes land owned by the tribe or its members as well as land owned in fee by the United States but held in trust for the benefit of the tribe or its members. Notably, the land beneath a navigable waterway is not “Indian land,” Montana v. United States, 450 U.S. 544 (1981); neither is land owned by the United States but with a right-of-way granted to a state for the purposes of the construction and use of a state highway, Strate v. A-1 Contractors, 520 U.S. 438 (1997). ↑

23. 450 U.S. 544 (1981). ↑

24. Id. ↑

25. Plains Commerce, 554 U.S. 316 (2008). Although Montana originally pertained to civil jurisdiction over non-Indians on non-Indian fee lands within reservation boundaries (450 U.S. at 564), the Ninth Circuit Court of Appeals has previously maintained “that the general rule of Montana applies to both Indian and non-Indian lands.” Ford Motor Company v. Todeecheene, 394 F.3d 1170, 1178–79 (9th Cir. 2005), overruled on other grounds, 488 F.3d 1215 (9th Cir. 2007). More recently, however, the Ninth Circuit has indicated a reversion to its original rule. See Water Wheel, 642 F.3d 802. ↑

26. Plains Commerce, 554 U.S. at 340. ↑

27. Id. It appears, however, that courts have become more sympathetic to the second exception as of late. See, e.g., Knighton v. Cedarville Rancheria of N. Paiute Indians, 922 F.3d 892, 905 (9th Cir.), cert. denied, 140 S. Ct. 513 (2019); Norton v. Ute Indian Tribe of the Uintah & Ouray Reservation, 862 F.3d 1236, 1246 (10th Cir. 2017). ↑

28. Exhaustion is not always required. See Nat’l Farmers Union Ins. Co. v. Crow Tribe of Indians, 471 U.S. 845, 857 n. 21 (1985) (“We do not suggest that exhaustion would be required where an assertion of tribal jurisdiction is motivated by a desire to harass or is conducted in bad faith, or where the action is patently violative of express jurisdictional prohibitions, or where exhaustion would be futile because of the lack of an adequate opportunity to challenge the court’s jurisdiction.”). ↑

29. Id. at 857. (“Until petitioners have exhausted the remedies available to them in the Tribal Court system . . . it would be premature for a federal court to consider any relief.”); Progressive Advanced Ins. Co. v. Worker, No. CV-16-08107-PCT-DJH, 2017 U.S. Dist. LEXIS 19283 (D. Ariz. February 8, 2017) (“Progressive issued an insurance policy that listed a tribal member as a named insured and covered vehicles that were kept on tribal lands . . . however Progressive never mailed anything to an address on tribal lands. To the extent that factor is dispositive, it may be that the tribal court lacks jurisdiction. But this is a question that must be answered first by the tribal courts of the Navajo Nation.”). ↑

30. Whitetail v. Spirit Lake Tribal Ct., Civ. No. 07-0042, 2007 U.S. Dist. LEXIS 87312, at *4–5 (N.D. Nov. 28, 2007). The doctrine applies even to federal habeas corpus actions filed under 25 U.S.C. § 1303. See, e.g., Valenzuela v. Silversmith, No. 11-2212, 2012 WL 5507249 (10th Cir. Nov. 14, 2012). ↑

31. See Rincon Mushroom, 490 Fed. Appx. 11, 13 (9th Cir. 2012) (“[H]old[ing] that the district court abused its discretion in dismissing the case rather than staying it.”); but see Progressive Advanced Ins. Co. v. Worker, No. CV-16-08107-PCT-DJH, 2017 U.S. Dist. LEXIS 19283 (D. Ariz. February 8, 2017) (dismissing the case); Window Rock Unified School District v. Reeves, 2017 U.S. App. LEXIS 14254 (9th Cir. August 3, 2017) (same). ↑

32. Nat’l Farmers Union, 471 U.S. at 852. ↑

33. Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 19 (1987) (“If the Tribal Appeals Court upholds the lower court’s determination that the tribal courts have jurisdiction, petitioner may challenge that ruling in the District Court.”). ↑

34. See Ford Motor Co. v. Todecheene, 474 F.3d 1196, 1197 (9th Cir. 2007), amended and superseded by 488 F.3d 1215, 1216 (9th Cir. 2007); Duncan Energy Co., Inc. v. Three Affiliated Tribes of the Fort Berthold Reservation, 27 F.3d 1294, 1300 (8th Cir. 1993); Plains Commerce Bank, 128 S. Ct. at 2726. It is unclear whether state courts must likewise abstain from hearing a matter arising on tribal lands until the tribal court has determined the scope of its own jurisdiction and entered a final ruling. In Drumm v. Brown, 245 Conn. 657, 716 A.2d 50 (Conn. 1998), the Connecticut Supreme Court held that “[o]ur analysis, which is based primarily on the three United States Supreme Court exhaustion cases, persuades us that the courts of this state must apply the exhaustion of tribal remedies doctrine.” 245 Conn. at 659. However, the Drumm Court found that exhaustion was not required in the absence of a pending action in tribal court. Id. at 684. ↑

35. Nat’l Farmers Union, 471 U.S. at 857; see, e.g., Evans v. Shoshone-Bannock Land Use Policy Comm’n, 4:12-CV-417-BLW, 2012 WL 6651194 (D. Idaho Dec. 20, 2012) (requiring plaintiff to exhaust its tribal court remedies). ↑

36. See, e.g., Bruce H. Lien Co. v. Three Affiliated Tribes, 93 F.3d 1412, 1421 (8th Cir. 1996). ↑

37. Iowa Mutual, 480 U.S. at 16. ↑

38. See id. at 17 (“At a minimum, exhaustion of tribal remedies means that tribal appellate courts must have the opportunity to review the determinations of the lower tribal courts.”); see also Whitetail v. Spirit Lake Tribal Ct., No. 07-0042, 2007 U.S. Dist. LEXIS 87312, at *4 (D.N.D. Nov. 28, 2007) (declining review of the case because the plaintiff had failed to exhaust his tribal court remedies). ↑

39. See Nat’l Farmers Union, 471 U.S. at 853 (reasoning that “a federal court may determine under § 1331 whether a tribal court has exceeded the lawful limits of its jurisdiction”). ↑

40. Iowa Mutual, 480 U.S. at 19. ↑

41. Id. (“Unless a federal court determines that the Tribal Court lacked jurisdiction . . . proper deference to the tribal court system precludes relitigation of issues raised . . . and resolved in the Tribal Courts.”). A thorough analysis of post-judgment proceedings is beyond the scope of this chapter, but there is case law on the issue. See, e.g., AT&T Corp. v. Coeur d’Alene Tribe, 295 F.3d 899, 903–04 (9th Cir. 2002); Burrell v. Armijo, 456 F.3d 1159, 1168 (10th Cir. 2006), cert. denied, 549 U.S. 1167 (2007); Brenner v. Bendigo, No. 13-0005, 2013 WL 5652457 (D.S.D. Oct. 15, 2013); Bank of America, N.A. v. Bills, No. 00-0450, 2008 WL 682399, at *5 (D. Nev. Mar. 6, 2008); First Specialty Ins. Corp. v. Confederated Tribes of Grand Ronde Community of Oregon, No. 07-0005, 2007 WL 3283699, at *4 (D. Or. Nov. 2, 2007); U.S. ex rel. Auginaush v. Medure, No. 12-0256, 2012 WL 5990274 (Minn. Ct. App. Dec. 3, 2012). ↑

42. Nat’l Farmers Union, 471 U.S. at 857 n. 21. ↑

43. Nevada v. Hicks, 533 U.S. 353, 369 (2001); Strate v. A-1 Contractors, 520 U.S. 438, 459 n. 14 (1997). ↑

44. El Paso Natural Gas v. Neztsosie, 526 U.S. 473 (1999). ↑

45. Maya Dominguez helped to research and summarize the cases in this section. Maya is a rising third-year law student at the Sandra Day O’Connor College of Law, Arizona State University, and expects to graduate in May 2026. ↑

46. 25 U.S.C. § 450 (2000). ↑

47. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 57–58 (1978). ↑

48. Tribal immunity can be abolished via federal statute. Alvarado v. Table Mountain Rancheria, 509 F.3d 1008, 1015–16 (9th Cir. 2007) (“[The] cornerstone of federal subject matter jurisdiction is statutory authorization.”); E.F.W. v. St. Stephen’s Indian High School, 264 F.3d 1297, 1302 (10th Cir. 2001) (“Tribal sovereign immunity is a matter of subject matter jurisdiction.”); McClendon v. United States, 885 F.2d 627, 629 (9th Cir. 1989) (“The issue of sovereign immunity is jurisdictional in nature.”). Tribal immunity can be voluntarily waived. Kiowa Tribe of Okla. v. Mfg. Techs., 523 U.S. 751, 755–56 (1998); Filer v. Tohono O’odham Nation Gaming Enters., 129 P.3d 78, 83 (Ariz. Ct. App. 2006) (applying for a liquor license did not waive the tribe’s sovereign immunity); Seminole Tribe of Fla. v. McCor, 903 So. 2d 353, 359–60 (Fla. Dist. Ct. App. 2005) (purchasing liability insurance is not a clear waiver of a tribe’s sovereign immunity); Furry v. Miccosukee Tribe of Indians of Fla., 685 F.3d 1224, 1234 (11th Cir. 2012) cert. denied, 133 S. Ct. 663, 184 L. Ed. 2d 462 (U.S. 2012) (tribe did not waive its immunity from private tort actions by applying for a state liquor license). ↑

49. Plains Commerce Bank v. Long Family Land & Cattle, 554 U.S. 316 (2008). ↑

50. Id. ↑

51. Kiowa Tribe, 523 U.S. at 760. The U.S. Constitution provides a basis for suits to enforce state election and campaign finance laws. The U.S. Supreme Court has yet to take a position on this matter. ↑

52. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978). ↑

53. Id.; United States v. Oregon, 657 F.2d 1009, 1013 (9th Cir. 1981); Filer, 129 P.3d at 86; Bellue v. Puyallup Tribe of Indians, No. 94-3045 (Puyallup 1994); Colville Tribal Enter. v. Orr, 5 CCAR 1 (Colville Confed. 1998). ↑

54. Miccosukee Tribe of Indians v. Tein, 2017 Fla. App. LEXIS 11442 (Fla. App. August 9, 2017) (holding that evidence of vexatious and bad faith litigation did not amount to a waiver of immunity “even where the results are deeply troubling, unjust, unfair, and inequitable”). ↑

55. In re Greektown Holdings, LLC, No. 12-12340, 2012 WL 4484933 (E.D. Mich. Sept. 27, 2012), aff’d, 728 F.3d 567 (6th Cir. 2013) (holding that for Congress to waive the tribe’s immunity the waiver must be “express, unequivocal, unmistakable, unambiguous, clearly evident in statutory language, and allow the Court to conclude with perfect confidence that Congress intended to waive sovereign immunity”). See also Demontiney v. United States ex rel. Bureau of Indian Affairs, 255 F.3d 801, 811 (9th Cir. 2001); Sanchez v. Santa Ana Golf Club, Inc., 104 P.3d 548, 551 (N.M. Ct. App. 2004) (reasoning that ambiguity within an immunity waiver should be interpreted in favor of the Tribe). ↑

56. Contour Spa at the Hard Rock, Inc. v. Seminole Tribe of Fla., 692 F.3d 1200, 1206 (11th Cir. 2012) cert. denied, 133 S. Ct. 843 (2013) (holding Indian tribe’s removal of action to federal court did not waive its sovereign immunity). But see Guidiville Rancheria of California v. United States, 2017 U.S. App. LEXIS 14394 (9th Cir. August 4, 2017) (holding that raising the issue of attorneys’ fees in the first instance was sufficient to constitute a waiver of the Tribe’s right to claim sovereign immunity when defendant subsequently claimed for fees against the tribe). ↑

57. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978) (internal quotation marks and citations omitted); see also Gilbertson v. Quinault Indian Nation, 495 F. App’x 779 (9th Cir. 2012) (holding language in the Quinault Indian Nation’s employee handbook indicating that employees were protected by Title VII was not a sufficiently clear waiver of the Nation’s sovereign immunity). ↑

58. See, e.g., Memphis Biofuels, L.L.C. v. Chickasaw Nation Indus., Inc., 585 F.3d 917 (6th Cir. 2009) (holding that the presence of a sue-and-be-sued clause in the charter of a tribal corporation, alone, was “insufficient” to waive the corporation’s immunity because it made approval by the corporation’s board of directors a prerequisite to legal action by the corporation); accord Ninigret Dev. Corp v. Narragansett Indian Wetuomuck Hous. Auth, 201 F.3d 21, 30 (1st Cir. 2000) (holding that “the enactment of such an ordinance . . . does not waive a tribe’s sovereign immunity [where the ordinance] authorize[d] the [tribal corporation] to shed its immunity ‘by contract’” because “these words would be utter surplusage if the enactment of the ordinance itself served to perfect the waiver”); cf. Rosebud Sioux Tribe v. Val-U Constr. Co., 50 F.3d 560, 562 (8th Cir. 1995) (holding that the mere presence of an arbitration provision in the agreement represented a waiver of immunity from a judgment being enforced in federal court). ↑

59. 532 U.S. 411 (2001). ↑

60. Id. at 418; see Trump Hotels and Casino Resorts Dev. Co. v. Rosow, No. X03CV034000160S, 2005 Conn. Super. LEXIS 1224, at *41 (Conn. Super. Ct. May 2, 2005) (concluding that the tribe “clearly and unequivocally waived sovereign immunity” in its contract). ↑

61. C & L Enterprises, 532 U.S. at 415–16. ↑

62. Id. at 423. ↑

63. Calvello v. Yankton Sioux Tribe, 584 N.W.2d 108, 114 (S.D. 1998) (holding that the chairman of the tribal business committee did not have authority to waive immunity); see also Sandlerin v. Seminole Tribe of Fla., 243 F.3d 1282, 1286–87 (11th Cir. 2001) (reasoning that the tribal chief did not have authority to waive the tribe’s immunity through contract where the tribal code provided procedure for effecting a waiver); Chance v. Coquille Indian Tribe, 963 P.2d 638, 639 (Or. 1998) (reasoning that the tribal corporation president did not have authority to bind the corporation to a contract waiving tribal immunity); Harris v. Lake of the Torches Resort and Casino, 363 Wis. 2d 656 (2015) (holding that a third-party workers compensation administrator lacked the authority to waive the tribe’s immunity). But see Rush Creek Solutions, Inc. v. Ute Mountain Ute Tribe, 107 P.3d 402, 407 (Colo. App. 2004) (holding that the tribal chief financial officer had apparent authority to waive immunity when the tribal law was silent). ↑

64. Blake Comeaux helped to research and summarize the cases in this section. Blake is rising third year law student at Washington University School of Law and expects to graduate in May 2026. ↑

65. 25 U.S.C. §§ 461–79 (2000). ↑

66. Id. § 476. ↑

67. Id. § 477. ↑

68. Id. ↑

69. Id. ↑

70. See Jack F. Williams, Integrating American Indian Law into the Commercial Law and Bankruptcy Curriculum, 37 Tulsa L. Rev. 557, 562–63 (2001). ↑

71. Id. at 563. ↑

72. Id. ↑

73. Native American Distrib. v. Seneca-Cayuga Tobacco Co., 546 F.3d 1288, 1295 (10th Cir. 2008) (holding that, because the tribal enterprise was not a corporation with a “sue-and-be-sued clause,” the tribal enterprise was immune from suit, as it did not explicitly waive its sovereign immunity). C.f. Grand Canyon Skywalk Dev. LLC v. Cieslak, 2015 U.S. Dist. LEXIS 73186 (D. Nev. June 5, 2015) (holding that, while sovereign immunity may protect the tribal corporation, it does not extend to an employee of the tribal corporation to allow the employee to refuse to comply with a federal subpoena). ↑

74. See Seaport Loan Products v. Lower Brule Community Development Enterprise LLC, 2013 NY slip op. 651492/12 [Sup Ct. NY County 2013] (concluding that an independent, state-incorporated, for-profit tribal enterprise that was principally operating in the financial services markets, with separate assets, liabilities, purposes, and goals could not claim immunity); Arrow Midstream Holdings v. 3 Bears Construction LLC, 873 N.W.2d 16 (N.D. 2015) (holding that a corporation wholly owned by tribal members but incorporated under state law was a non-member entity for the purposes of litigation and therefore subject to state jurisdiction). ↑

75. 25 U.S.C. § 463 (2000) (transferred to 25 U.S.C. § 5103); see TOMAC v. Norton, 433 F.3d 852, 866–67 (D.C. Cir. 2006) (upholding Congress’s delegation of power to the Secretary to acquire land in trust for the tribe under § 1300j-5). ↑

76. Carcieri v. Salazar, 555 U.S. 379 (2009). ↑

77. Id. at 386. ↑

78. Record of Decision, Trust Acquisition of, and Reservation Proclamation for the 151.87-acre Cowlitz Parcel in Clark County, Washington, for the Cowlitz Indian Tribe (Dec. 2010). The Cowlitz Indian Tribe was not federally recognized until 2002, but, in 2010, the BIA nonetheless approved a fee-to-trust application, determining that the tribe was “under Federal Jurisdiction” in 1934, even though the federal government did not believe so at that time. Id. The D.C. District Court upheld the BIA’s Record of Decision, Confederated Tribes of Grand Ronde Cmty. of Or. v. Jewell, 75 F. Supp. 3d 387 (D.D.C. 2014) and the D.C. Circuit upheld the District Court, Confederated Tribes of Grand Ronde Cmty. of Or. v. Jewell, 830 F.3d 552 (D.C. Cir. 2016); see also Record of Decision, Trust Acquisition and Reservation Proclamation for 151 Acres in the City of Taunton, Massachusetts, and 170 Acres in the Town of Mashpee, Massachusetts, for the Mashpee Wampanoag Tribe (Sept. 2015). Although the Interior Department did not federally acknowledge the Mashpee Wampanoag Tribe until 2007, Interior applied M-37029 Memorandum’s two-part test to determine that the Tribe was “under federal jurisdiction” in 1934, which provided the legal basis for the trust acquisition outlined in the 2015 Record of Decision and circumvented the Tribe’s Carcieri issues. However, the District Court of Massachusetts rejected the Secretary’s interpretation and has returned the decision to take land into trust on behalf of the Mashpee to the Secretary of Interior. Littlefield v. U.S. Dept. of Interior, 2016 U.S. Dist. LEXIS 98732 (D. Mass. July 28, 2016). ↑

79. BIA Weighs Land-Into-Trust after Supreme Court Ruling, Indianz.Com (Mar. 26, 2009) (last visited Nov. 4, 2025). ↑

80. See, e.g., Stand Up for California! v. U.S. Dep’t of the Interior, 204 F. Supp. 3d 212 (D.D.C. 2016) (challenging the Department’s fee-to-trust decision for the benefit of the North Fork Rancheria of Mono Indians on the basis that the tribe wasn’t a “federally-recognized tribe under jurisdiction” in 1934 as required under Carcieri). ↑

81. Memorandum from Hilary C. Tompkins, U.S. Dep’t of the Interior, Office of the Solicitor, to Sally Jewell, Secretary of the Interior, U.S. Dep’t of the Interior (Mar. 12, 2014) (hereinafter “M-37029 Memorandum”). ↑

82. Id. ↑

83. Id. ↑

84. 850 F.3d 552 (D.C. Cir. 2016). ↑

85. 132 S.Ct. 2199 (2012). ↑

86. 5 U.S.C. §§ 551–59. ↑

87. 28 U.S.C. § 2409a. ↑

88. The decision thus did not upset the rule that the “QTA provides the exclusive remedy for claims involving adverse title disputes with the government.” McMaster v. United States, 731 F.3d 881, 899 (9th Cir. 2013). ↑

89. The statute of limitations under the APA is six years. See, e.g., Cachil Dehe Band of Wintun Indians of Colusa Indian Cmty. v. Salazar, No. 12-3021, 2013 WL 417813, at *4 (E.D. Cal. Jan. 30, 2013) (holding that under Patchak, “federal district courts do have the power to strip the federal government of title to land taken into trust for an Indian tribe under the APA so long as the claimant does not assert an interest in the land.”). ↑

90. Land Acquisitions: Appeals of Land Acquisitions, 78 Fed. Reg. 67,928, 67,929 (Nov. 13, 2013) (codified at 25 C.F.R. pt. 151). ↑

91. See 25 C.F.R. § 2.6(c). ↑

92. See 25 C.F.R. Part 2. ↑

93. Id. ↑

94. See 25 C.F.R. § 2.9. ↑

95. Department of the Interior Bureau of Indian Affairs, Land Acquisitions (last visited Nov. 4, 2025). ↑

96. Connor O’Loughlin helped to research and summarize the cases in this section. Connor is a rising third-year law student at Georgetown University Law Center and expects to graduate in May 2026. ↑

97. But see Federated Indians of Graton Rancheria v. Haaland, 762 F. Supp. 3d 888 (N.D. Cal. 2025) (holding that a procedural violation for a failure to consult was sufficient to grant standing). ↑

98. Axon Enter., Inc. v. Fed. Trade Comm’n, 598 U.S. 175 (2023). ↑

99. 25 U.S.C. § 81 (2000) (Section 81). For a list of contracts that are exempt from secretarial approval, see 25 C.F.R. § 84.004 (2008). ↑

100. 25 C.F.R. § 84.004. ↑

101. Id. ↑

102. 25 U.S.C. § 81. ↑

103. Id. § 415. ↑

104. Id. § 81. ↑

105. The approval process for alternative energy projects on tribal lands has been particularly burdensome. See Ryan Dreveskracht, The Road to Alternative Energy in Indian Country: Is It a Dead End?, 19 Indian L. Newsl. 3 (2011). For a jurisdictional analysis of the complications created by real property transactions in Indian Country see Grant Christensen, Creating Brightline Rules for Tribal Court Jurisdiction Over Non-Indians: The Case of Trespass to Real Property, 35 Am. Indian L. Rev. 527 (2011). ↑

106. Outsource Servs. Mgmt., LLC. v. Nooksack Bus. Corp., 198 Wash. App. 1032 (2017) (tribal business defaulted on a $15 million loan secured by future profits generated from tribal land on which the tribe intended to build a casino. When the tribe subsequently used the land—not for a casino but for other revenue raising operations—the creditor sought those profits to satisfy the loan obligation. The tribe claimed that the Creditor’s attempt would unlawfully encumber their lands in violation of 25 U.S.C. 81. The court disagreed, holding that “[t]he pledged security is not a legal interest in the land itself. Nor does [creditor]’s right interfere with the tribe’s exclusive proprietary control over the land” and that “[b]ecause the tribe retains complete control over the casino building and property and can use the facilities for any purpose, there is no encumbrance for purposes of Section 81, and thus the agreements did not require preapproval.”). ↑

107. 25 U.S.C. §§ 2701–21 (1988). The jurisdictional and regulatory powers of the NIGC have received criticism in several court decisions. In October 2006, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the IGRA did not confer authority upon the NIGC to promulgate operational control regulations for Class III gaming operations. See Colo. River Indian Tribes v. Nat’l Indian Gaming Comm’n, 466 F.3d 134, 140 (D.C. Cir. 2006); Colo. River Indian Tribes v. Nat’l Indian Gaming Comm’n, 383 F. Supp. 2d 123, 137 (D.D.C. 2005). The Colorado River Indian Tribes cases are significant because some Indian tribes have interpreted the trial court’s decision to mean that the NIGC has no regulatory authority whatsoever over Class III gaming. Indeed, in the wake of the decision, several tribes advised the NIGC that they believe the decision strips the NIGC of all regulatory power over Class III gaming and therefore will not permit any NIGC auditors or other oversight into their casinos. As a result, the NIGC filed a petition for a panel rehearing in late December 2006. This petition was denied per curiam on Dec. 27, 2007. Colo. River Indian Tribes, 466 F.3d 134 (denying the motion for rehearing). ↑

108. 25 U.S.C. § 2711; First Am. Kickapoo Oper. v. Multimedia Games, Inc., 412 F.3d 1166, 1172 (10th Cir. 2005); United States v. President, 451 F.3d 44, 50 n.5 (2d Cir. 2006). ↑

109. 25 U.S.C. § 264 (1882); 25 C.F.R. §§ 140–41 (1996). “Trading” is broadly defined as “buying, selling, bartering, renting, leasing, permitting and any other transaction involving the acquisition of property or services.” 25 C.F.R. § 140.5(a)(6) (1984). For an example of tribal business license requirements, see Navajo Nation Code, 5 N.N.C. § 401, et seq. (2005). ↑

110. See 25 C.F.R. § 140.3. Dahlstrom v. Sauk-Suiattle Indian Tribe, No. C16-0052JLR, 2017 U.S. Dist. LEXIS 40654 (W.D. Wash. March 21, 2017) (a former employee brought a qui tam action against the tribe and against a medical clinic for filing false claims through the Indian Health Service (IHS)). The court barred the action against the tribe; “Like a state, a Native American tribe ‘is a sovereign that does not fall within the definition of a ‘person’ under the FCA.’” However, the court held that the medical clinic was not “an arm of the tribe” and so it was ineligible to claim sovereign immunity. ↑

111. Pub. L. No. 112-151 (2012). ↑

112. Any failure of a federal agency to complete its obligations in relation to Indian lands can be catastrophic to businesses operating under federal permits. See, e.g., Tribe v. U.S. Forest Serv., No. 13-0348, 2013 WL 5212317 (D. Idaho Sept. 12, 2013). ↑

113. 25 C.F.R. § 162. ↑

114. United States Department of the Interior, Approved Hearth Act Regulation (last visited Nov. 4, 2025). ↑

115. See, e.g., Middletown Rancheria of Pomo Indians v. Workers’ Comp. Appeals Bd., 71 Cal. Rptr. 2d 105, 114–15 (Cal. Ct. App. 1998) (holding that the Workers’ Compensation Board has no jurisdiction over tribe); Tibbets v. Leech Lake Reservation Bus. Comm’n, 397 N.W.2d 883, 890 (Minn. 1986) (holding Minnesota workers’ compensation law inapplicable to tribal employer); see generally New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 332–33 (1983) (discussing applicability of state laws to tribes). ↑

116. See generally Steven G. Biddle, Indian Law Theme Issue: Labor and Employment Issues for Tribal Employers, 34 Ariz. Att’y 16 (1998) (discussing the applicability of federal labor and employment laws to tribal employers); but see State ex rel. Indus. Comm’n v. Indian Country Enters., Inc., 944 P.2d 117 (Idaho 1997) (applying 40 U.S.C. § 290 to require the application of state workers’ compensation laws to tribal companies incorporated under state law); State ex rel. Workforce Safety & Ins. v. J.F.K. Raingutters, 733 N.W.2d 248, 253–54 (N.D. 2007) (same); Martinez v. Cities of Gold Casino, Pojoaque Pueblo, and Food Industries Self-Insurance Fund, No. 28,762, slip op. at ¶ 27 (N.M. Ct. App. filed Apr. 24, 2009) (holding that a tribal corporation waived immunity from claims brought under the Workers’ Compensation Act by voluntarily complying with other provisions of the act and submitting to the jurisdiction of the Workers’ Compensation Administration). ↑

117. 42 U.S.C. §§ 2000e–2000e-17 (1991). Bruguier v. Lac du Flambeau Band of Lake Superior Chippewa Indians, 237 F. Supp. 3d 867 (W.D. Wis. 2017) (“Title VII expressly does not authorize suits against tribes; “the term employer . . . does not include . . . an Indian tribe . . . .”). ↑

118. Id. §§ 12101–17 (1990). ↑

119. Id. §§ 2000e(b)(1), 12111(5). Additionally, discrimination based on tribal affiliation is often not considered unlawful national origin discrimination. See, e.g., E.E.O.C. v. Peabody W. Coal Co., No. 12-17780, 2014 WL 6463162 (9th Cir. Nov. 19, 2014) (discrimination based on tribal affiliation as it relates to lease agreements containing a Navajo reference in hiring provision does not constitute unlawful national origin discrimination but is a political classification and, thus, not within the scope of Title VII of the Civil Rights Act). See also Morton v. Mancari, 417 U.S. 535 (1974) (holding that the United States Department of Interior may affirmatively hire and promote American Indians because the preference is based on a political classification (membership in a federally recognized tribe) and not a racial classification and is, therefore, subject only to rational basis scrutiny to avoid constitutional challenge). ↑

120. See, e.g., Ariz. Rev. Stat. Ann. § 41-1464 (2005) (exempting tribes from Arizona’s discrimination laws). Even if a state’s antidiscrimination laws do not provide an express exemption, the doctrine of sovereign immunity will ordinarily operate to achieve the same effect. See Sanchez v. Santa Ana Golf Club, Inc., 104 P.3d 548, 554 (N.M. Ct. App. 2004) (affirming dismissal of employee’s state law discrimination claim based on tribal employer’s sovereign immunity); see also Aroostook Band of Micmacs v. Ryan, 404 F.3d 48, 67–68 (1st Cir. 2005) (discussing the probable inapplicability of state antidiscrimination laws to a tribal employer). ↑

121. See Hardin v. White Mountain Apache Tribe, 779 F.2d 476, 479 (9th Cir. 1985) (extending the tribe’s sovereign immunity to tribal officials acting in a representative capacity). ↑

122. 29 U.S.C. §§ 651–78 (1998). ↑

123. Id. §§ 1001–61. Congress amended ERISA in 2006 to apply Indian tribal commercial enterprises, but tribal governments remain exempt. 29 U.S.C. §§ 1002(32) (as amended by Pension Protection Act of 2006, 29 U.S.C. § 1002(32)). ↑

124. Id. §§ 201–19. ↑

125. Id. §§ 151–69. ↑

126. Id. §§ 621–34. ↑

127. N.L.R.B. v. Pueblo of San Juan, 276 F.3d 1186, 1200 (10th Cir. 2002) (holding NLRA inapplicable to tribes); E.E.O.C. v. Fond du Lac Heavy Equip. & Const. Co., 986 F.2d 246, 248 (8th Cir. 1993) (refusing to apply the ADEA to an Indian employed by the tribe); Donovan v. Navajo Forest Prods. Indus., 692 F.2d 709, 712 (10th Cir. 1982) (holding OSHA inapplicable to the tribe partly because enforcement “would dilute the principles of tribal sovereignty and self-government recognized in the treaty”). ↑

128. Menominee Tribal Enter. v. Solis, 601 F.3d 669 (7th Cir. 2010) (applying OSHA); Lumber Indus. Pension Fund v. Warm Springs Forest Prods. Indus., 939 F.2d 683, 683 (9th Cir. 1991) (applying ERISA); U.S. Dep’t of Labor v. OSHA Rev. Comm’n, 935 F.2d 182, 182 (9th Cir. 1991) (applying OSHA); Smart v. State Farm Ins., 868 F.2d 929, 935 (7th Cir. 1989) (stating the “argument that ERISA will interfere with the tribe’s right of self-government is over-broad,” and applying ERISA); Donovan v. Coeur d’Alene Tribal Farm, 751 F.2d 1113, 1116–17 (9th Cir. 1985) (right of self-government is too broad to defeat applicability of OSHA); see also Reich v. Mashantucket Sand & Gravel, 95 F.3d 174 (2d Cir. 1996) (following Ninth and Seventh Circuits to apply OSHA). ↑

129. See Reich v. Great Lakes Indian Fish and Wildlife Comm’n, 4 F.3d 490, 493–94 (7th Cir. 1993) (holding that the tribe’s law enforcement officers were exempt from FLSA, but noting that not all employees of tribes are exempt); Solis v. Matheson, 563 F.3d 425, 434–35 (9th Cir. 2009) (applying FLSA to retail business on tribal land because business did not involve tribal self-governance and was not protected by treaty rights). ↑

130. Reich, 4 F.3d at 493–94; Lumber Indus. Pension Fund, 939 F.2d at 683; U.S. Dept. of Labor, 935 F.2d at 182; Smart, 868 F.2d at 935; Donovan, 751 F.2d at 1113; see also Mashantucket Sand & Gravel, 95 F.3d at 174. ↑

131. 29 U.S.C. §§ 2601–54 (1993). ↑

132. The Family and Medical Leave Act of 1993, 60 Fed. Reg. 2180 (Jan. 6, 1995). ↑

133. Casino Pauma v. NLRB, 888 F.3d 1066 (9th Cir. 2018). ↑

134. Chayoon v. Chao, 355 F.3d 141, 142–43 (2d Cir. 2004); Garcia v. Akwesasne Hous. Auth., 268 F.3d 76, 84–86 (2d Cir. 2001). ↑

135. Cf. Multimedia Games, Inc. v. WLGC Acquisition Corp., 214 F. Supp. 2d 1131, 1131 (N.D. Okla. 2001) (holding that the federal Copyright Act of 1976 was inapplicable to tribes). ↑

136. White v. Univ. of California, 765 F.3d 1010, 1025 (9th Cir. 2014). ↑

137. Donovan v. Coeur d’Alene Tribal Farm, 751 F.2d 1113, 1116 (9th Cir. 1985). ↑

138. The Plaintiff attempted to use Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin, 599 U.S. 382 (2023) to broaden the definition of “public agency” to include all governmental units, including tribal governments. The court rejected this expansion by distinguishing Coughlin based on the difference in terms used. Coughlin used the term “governmental unit” which was broadly defined, while the FMLA used the term “public agency,” a term without such broad a definition. ↑

139. 28 U.S.C. § 1331 (“Federal Question: The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”). ↑

140. Id. § 1332 (“Diversity of Citizenship: The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between—(1) citizens of different states . . . .”). ↑

141. See Peabody Coal Co. v. Navajo Nation, 373 F.3d 945, 945 (9th Cir. 2004) (dismissing a complaint against the Navajo Nation that sought enforcement of an arbitration agreement for lack of federal question jurisdiction); accord, TTEA v. Ysleta Del Sur Pueblo, 181 F.3d 676, 681 (5th Cir. 1999) (“The federal courts do not have jurisdiction to entertain routine contract actions involving Indian tribes.”); Gila River Indian Cmty. v. Henningson, Durham & Richardson, 626 F.2d 708, 714–15 (9th Cir. 1980) (finding “no reason to extend the reach of the federal common law to cover all contracts entered into by Indian tribes”). See also Burlington N. & Santa Fe Ry. Co. v. Vaughn, 509 F.3d 1085, 1089 (9th Cir. 2007) (holding that a federal court may review a denial of sovereign immunity by interlocutory appeal). ↑

142. See Ysleta Del Sur Pueblo, 181 F.3d at 681 (holding that “an anticipatory federal defense is insufficient for federal jurisdiction”). ↑

143. See Payne v. Miss. Band of Choctaw Indians, 159 F. Supp. 3d 724, 726–27 (S.D. Miss. 2015); Am. Vantage Cos. v. Table Mountain Rancheria, 292 F.3d 1091, 1095 (9th Cir. 2002); Akins v. Penobscot Nation, 130 F.3d 482, 485 (1st Cir. 1997); Romanella v. Hayward, 114 F.3d 15, 16 (2d Cir. 1997); Gaines v. Ski Apache, 8 F.3d 726, 728–29 (10th Cir. 1993); Oneida Indian Nation v. Cnty. of Oneida, 464 F.2d 916, 923 (2d Cir. 1972), rev’d and remanded on other grounds, 414 U.S. 661 (1974); Standing Rock Sioux Indian Tribe v. Dorgan, 505 F.2d 1135, 1040–41 (8th Cir. 1974); Tenney v. Iowa Tribe of Kan., 243 F. Supp. 2d 1196, 1198 (D. Kan. 2003); Victor v. Grand Casino-Coushatta, No. 02-2348, 2003 U.S. Dist. LEXIS 24770, at *4 (D. La. Jan. 21, 2003); Worrall v. Mashantucket Pequot Gaming Enter., 131 F. Supp. 2d 328, 329–30 (D. Conn. 2001); Barker-Hatch v. Viejas Group Baron Long Capitan Grande Band of Digueno Mission Indians of the Viejas Group Reservation, 83 F. Supp. 2d 1155, 1157 (D. Cal. 2000); Abdo v. Fort Randall Casino, 957 F. Supp. 1111, 1112 (D.S.D. 1997); Calvello v. Yankton Sioux Tribe, 899 F. Supp. 431, 435 (D.S.D. 1995); Whiteco Metrocom Div. v. Yankton Sioux Tribe, 902 F. Supp. 199, 201 (D.S.D. 1995); Weeder v. Omaha Tribe of Neb., 864 F. Supp. 889, 898–99 (N.D. Iowa 1994); GNS, Inc. v. Winnebago Tribe, 866 F. Supp. 1185, 1191 (D. Iowa 1994). But see Cook, 548 F.3d at 723 (holding that, for diversity purposes, a tribal corporation is “a citizen of the state where it has its principal place of business”). Cf. R.J. Williams Co. v. Fort Belknap Hous. Auth., 719 F.2d 979, 982 (9th Cir. 1983) (stating that the tribal corporation had its principal place of business in Montana); R.C. Hedreen Co. v. Crow Tribal Hous. Auth., 521 F. Supp. 599, 602–03 (D. Mont. 1981) (stating that a tribal corporation had its principal place of business in Montana and “[a]ccordingly, it is a citizen of the state for purposes of diversity jurisdiction”); Parker Drilling Co. v. Metlakatla Indian Cmty., 451 F. Supp. 1127, 1138 (D. Alaska 1978) (“As [the tribal corporation’s] only major business activities, and situs, are located in Alaska, it is an Alaskan corporation for diversity purposes.”). ↑

144. See Inglish Interests LLC v. Seminole Tribe of Florida, 2011 U.S. Dist. LEXIS 6123 (M.D. Fla. January 21, 2011) (describing this split). ↑

145. Wells Fargo Bank, Nat’l Ass’n v. Lake of Torches Econ. Dev. Corp., 658 F.3d 684 (7th Cir. 2011). ↑

146. See Gila River Indian Cmty. v. Henningson, Durham & Richardson, 626 F.2d 708 (9th Cir. 1980). ↑

147. Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 15 (1987). ↑

148. White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143 (1980). ↑

149. Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148–49 (1973); Cabazon Band of Mission Indians v. Smith, 388 F.3d 691, 694–95 (9th Cir. 2004). ↑

150. Wagnon v. Prairie Band Potawatomi Nation, 546 U.S. 95, 101 (2005). ↑

151. There has been some question as to what exactly constitutes a tribally owned corporation. The general rule is that “[a] subdivision of tribal government or a corporation attached to a tribe may be so closely allied with and dependent upon the tribe that it is effectively an arm of the tribe. It is then actually a part of the tribe per se” and is nontaxable. Uniband, Inc. v. C.I.R., 140 T.C. 230, 252 (U.S. Tax Ct. 2013) (quotation omitted). Although preemption of state taxes “is most assured for tribal corporations organized pursuant to federal or tribal law,” Cohen’s Handbook of Federal Indian Law § 8.06 (2012 ed.), “the mere organization of such an entity under state law does not preclude its characterization as a tribal organization as well.” Duke v. Absentee Shawnee Tribe of Okla. Housing Auth., 199 F.3d 1123, 1125 (10th Cir. 1999). ↑

152. Wagnon v. Prairie Band Potawatomi Nation, 546 U.S. 95, 101 (2005); see also Bercier v. Kiga, 103 P.3d 232, 236 (Wash. Ct. App. 2004) (“[T]he State may not tax Indians or Indian tribes in Indian country . . . .”) (citing Wash. Admin. Code § 458-20-192(5)); Pourier v. S. D. Dept. of Revenue, 658 N.W.2d 395, 403 (S.D. 2003), aff’d in relevant part and rev’d in part on other grounds on reh’g, 674 N.W.2d 314 (S.D. 2004) (“If the legal incidence of a tax falls upon a Tribe or its members . . . the tax is unenforceable.”). See also Seminole Tribe of Florida v. Stranburg, 799 F.3d 1324, 1345–46 (11th Cir. 2015) (reaffirming the legal incidence test but determining that a gross receipts tax more properly fell on utility companies instead of the tribe and, therefore, the tax was not preempted). ↑

153. See McClanahan v. Ariz. State Tax Comm’n, 411 U.S. 164, 172-–73 (1973). ↑

154. Williams v. Lee, 358 U.S. 217, 220 (1959); but see 25 C.F.R. § 162.415(c) (“Any permanent improvements” on business leased Indian land “shall not be subject to any fee, tax, assessment, levy, or other such charge imposed by any State or political subdivision of a State, without regard to ownership of those improvements.”). See also California v. Cabazon Band of Mission Indians, 480 U.S. 202, 216 (1987) (“Decision in this case turns on whether state authority is pre-empted by the operation of federal law; and “[state] jurisdiction is pre-empted . . . if it interferes or is incompatible with federal and tribal interests reflected in federal law, unless the state interests at stake are sufficient to justify the assertion of state authority.”). ↑

155. Bracker, 448 U.S. at 143. ↑

156. Id. at 144; see also Aroostook Band of Micmacs v. Ryan, No. 03-0024, 2007 WL 2816183, at *4, *9–11 (D. Me. Sept. 27, 2007) (discussing whether federal law or state law affects the Aroostook Band, even though the tribe is exempt from state civil and criminal laws). ↑

157. New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983). ↑

158. Id. at 334. ↑

159. Id. at 344. ↑

Recently, a number of corporations have moved their state of incorporation away from Delaware.^[1] Many more are now considering doing so. The movement to leave Delaware as a state of incorporation, or “DEXIT,” initially garnered momentum following Elon Musk and Tesla’s June 2024 noisy, high-profile departure to Texas. This movement gained more steam with a July 2025 article posted online by Jai Ramaswamy, Andy Hill, and Kevin McKinley of Andreessen Horowitz arguing in favor of leaving Delaware as a state of incorporation.^[2] Most corporations considering leaving Delaware for more pro-management jurisdictions, it seems, have focused primarily on moving to Texas or Nevada. However, we believe that one nearby state, Maryland, perhaps being overlooked due to its liberal politics, provides the sort of pro-management corporation law sought by these corporations and should be considered before deciding on Texas or Nevada.

To start, Maryland is well-accepted by Wall Street as a state of incorporation for public companies, particularly in the real estate investment trust (“REIT”) sector. Over 70 percent of publicly traded REITs are incorporated or formed in Maryland.^[3] Further, many mutual funds and mutual fund complexes have also historically been incorporated in Maryland. The data demonstrates that of new initial public offerings (“IPOs”) in excess of $250 million (excluding SPACs) from 2022 through the end of the first half of 2025, most companies still selected Delaware (on average about 80 percent of IPOs per year); but Nevada and Maryland were running nearly even in second place with 5–10 percent of the IPOs on average each year.^[4] Only one other state, Florida, had two IPOs. All other states had one or none.

Why Maryland? The Maryland General Corporation Law (“MGCL”) includes a number of statutory provisions unique to Maryland that are not found in the corporation laws of any other state and that give directors of Maryland corporations protection, flexibility, leeway, and deference in decision-making—and, as a result, provide greater leverage in dealing with third parties, particularly in the context of an acquisition of control.

“Just Say No” Defense

One such provision is Maryland’s “just say no” provision. MGCL section 2‑405.1(f)(1) establishes that directors are not required to accept, recommend, or respond to acquisition proposals. This provision effectively grants directors the absolute statutory authority to decline takeover bids outright.

By contrast, in Delaware, the directors’ “just say no defense” has developed by case law; is not absolute; has seemingly ebbed and flowed in its strength over the decades; and is subject to a heightened scrutiny review, which has been rejected by statute in Maryland. (See the “Anti-Unocal” discussion below.) While Nevada similarly rejects enhanced scrutiny review in this context, Texas and Nevada grant directors only general authority to manage corporate affairs through business-judgment principles without expressly recognizing “just say no” as a statutory right.

Anti-Revlon

Maryland rejects Delaware’s Revlon duty requiring boards to maximize price when a sale becomes inevitable. Under MGCL section 2-405.1(f)(5)(ii), directors are not required to act based solely on the amount or form of consideration offered in a potential change of control. Maryland, in MGCL section 2-405.1(h), also bars courts from applying heightened scrutiny to board decisions, including those relating to acquisitions. Moreover, the statute makes these provisions the exclusive source of director duties, preventing the importation of judicially created Revlon-style obligations. The Maryland General Assembly adopted these provisions specifically to override the Maryland Court of Appeals’ suggestion of judicially created enhanced duties in a sale context in Shenker v. Laureate Education, Inc.^[5]

While there is little case law in Nevada interpreting its statute, the Nevada statute seems similarly to reject Revlon by virtue of its constituency provision, which allows directors of a Nevada corporation to consider many other constituencies, such as employees, suppliers, creditors, or customers, and put the interests of those constituencies ahead of the interests of stockholders. Constituency statutes, however, come with their own disadvantages since it may become more difficult to attract investors and raise capital if directors are permitted to place the interests of other constituencies ahead of the investor/stockholder.

By contrast, Texas has not expressly rejected Revlon by statute or caselaw in hostile takeover settings, leaving Texas’s takeover standards uncertain. Maryland, on the other hand, clearly allows boards to reject unsolicited bids and eliminates any auction duties, but at the same time remains attractive to investors and capital formation because it does not allow directors to place other constituencies ahead of stockholders in their corporate decision-making.

Anti-Unocal

Delaware applies enhanced scrutiny to defensive measures, particularly in a change in control context under the Unocal Corp. v. Mesa Petroleum Co. framework,^[6] requiring directors to reasonably identify a threat and adopt a proportionate response. Unitrin, Inc. v. American General Corp. clarifies that coercive or preclusive defenses fall outside the range of reasonableness and fail enhanced review.^[7] Accordingly, Delaware boards bear the burden of justifying the proportionality of defensive actions under Unocal.

Maryland law takes a significantly different approach by having a statutory anti-Unocal provision that ensures that all decisions, including those related to changes in control and those involving the exercise of the rights of stockholders, are reviewed solely under the lens of the business judgment rule, without any heightened scrutiny standard.

Nevada mostly rejects Unocal-style enhanced scrutiny and applies the business judgment rule. Nevada does, however, apply Unocal-style heightened scrutiny in cases involving the exercise of the voting rights of stockholders generally, and specifically with respect to the removal of directors. Texas has not yet resolved whether Unocal applies.

Unsolicited Takeovers Act

By providing directors with a unique and immediate charter-bypassing authority, Maryland’s Unsolicited Takeovers Act (“MUTA”) gives boards of certain public companies superior flexibility and speed to resist hostile takeover bids. It authorizes directors, “notwithstanding any provision in the charter or bylaws,” to adopt certain enumerated takeover defenses, including staggered board terms, supermajority removal requirements, exclusive authority to set board size, and exclusive control over filling board vacancies. Election into MUTA requires only board action, allowing swift adoption even during a takeover attempt. With these available tools at boards’ disposal, MUTA ensures that boards can establish stability at critical moments without stockholder approval.

Delaware, Texas, and Nevada allow similar defenses only if adopted in governing documents. Many of these defenses require charter amendments, necessitating stockholder approval (often unattainable as a practical matter), while some may be adopted through board-approved bylaw amendments. Only in one other state, Indiana, does any U.S. corporation law grant the board MUTA’s level of unilateral statutory authority to override the charter and bylaws.

Bylaw Allocation Authority

The balance of power between the board and stockholders often plays out on the issue of who has the power to amend or repeal corporate bylaws. Ensuring that this power resides in the board is helpful in protecting directors from activist-driven proposals and can be fundamental to stable governance. MGCL section 2-104(b)(1) permits Maryland corporations to vest exclusive authority in the board of directors to amend or repeal bylaws, thereby eliminating stockholder amendment rights if the charter or bylaws so provide. This ensures that directors, not stockholders, control foundational governance rules, which, in turn, insulates boards from campaigns that seek to mandate proxy access, special meeting rights, or other potentially destabilizing measures.

Delaware, by contrast, reserves bylaw authority primarily to stockholders, permitting concurrent board power only if expressly provided in the charter, and does not permit the elimination of this stockholder power. Texas and Nevada also authorize both directors and stockholders to adopt or amend bylaws. None of the three, however, provide Maryland’s statutory approval of exclusive board power over bylaws. Maryland, therefore, gives directors greater certainty and protection against activist pressure through bylaw proposals.

Indemnification and Exculpation

Maryland offers broad indemnification and exculpation protections for directors and officers. MGCL section 2-418 authorizes indemnification for judgments, settlements, and expenses in both third-party and derivative actions; permits advancement upon an undertaking; and extends coverage to officers, employees, and agents. Maryland’s indemnification statute permits indemnification unless the director (i) acted in bad faith; (ii) acted with active and deliberate dishonesty; (iii) received an improper personal benefit; or (iv) in a criminal case, knew that their action was unlawful. Maryland law also allows corporations to exculpate directors and officers from personal liability, subject only to two narrow exceptions: (i) where the director receives an improper personal benefit or (ii) where the director engaged in active and deliberate dishonesty. These provisions reduce litigation risk and give directors confidence to act decisively.

In comparison, Delaware’s indemnification under Delaware General Corporation Law section 145 and exculpation under section 102(b)(7) is narrower, and its officer exculpation was only recently added in 2022.

Texas’s indemnification statute permits indemnification unless the director engaged in (i) willful or intentional misconduct, (ii) breached their duty of loyalty, or (iii) committed an action not in good faith that constituted a breach of duty to the corporation. Both the “breach of duty of loyalty” prong and the “any other breach not in good faith” prong seem to provide less indemnification protection to directors of a Texas corporation than what directors of a Maryland corporation receive. Similarly, Texas’s exculpation statute allows a Texas corporation to adopt a provision in its Certificate of Formation, eliminating the liability of directors for monetary damages unless the director (i) breaches the duty of loyalty, (ii) commits an action not in good faith that either constitutes a breach of duty to the corporation or involves intentional misconduct or a knowing violation of law, (iii) receives an improper personal benefit, or (iv) is otherwise liable under another Texas statute. Thus, Texas’s exculpation exceptions are much broader and less protective of directors than those under the Maryland statute, although the new “codified business judgment rule” provisions of Senate Bill (“SB”) 29, discussed below, in circumstances in which they may apply, may limit liability for or exculpate certain directors unless that director committed (i) fraud, (ii) intentional misconduct, (iii) an ultra vires act, or (iv) a knowing violation of law.

Nevada law on exculpation is similar to that of Texas under SB 29 in that, under Nevada Revised Statutes (“NRS”) section 78.138, directors are presumed to act in good faith, on an informed basis, and with a view to the interests of the corporation—and only if that standard is rebutted and only if it is established that the director committed (i) fraud, (ii) intentional misconduct, or (iii) a knowing violation of law can a director be liable. Nevada law, however, differs from all of the other states in that this is the default law, unless the corporation’s articles provide otherwise; and it differs from Texas in that this standard applies to all Nevada corporations, not only to public corporations or certain Nevada corporations. Nevada’s indemnification statutes (NRS sections 78.7502 and 78.751) appear to be among the most permissive of the group, permitting indemnification unless the director (i) is adjudged liable pursuant to the very pro-director standard of NRS section 78.138 set forth above or (ii) either (a) is determined to have acted in good faith and not opposed to the interests of the corporation, if the case is a derivative suit, or (b) is determined to have acted in good faith, not opposed to the interests of the corporation, and had no reasonable cause to believe their conduct was unlawful with respect to any criminal case, if the case was not a derivative suit.

Texas offers indemnification and exculpation protection that is likely narrower than that offered in Maryland or Nevada regardless of which Texas exculpation provisions may apply to a particular Texas corporation. Nevada, on the other hand, likely offers greater director and officer indemnification and exculpation protection than any of the other three states.

Statutory Authorization for Stockholder Rights Plans

Maryland’s corporation statute expressly authorizes boards to adopt stockholder rights plans, providing a predictable and stable legal foundation for “poison pill” implementation and making Maryland a favored venue for their use. MGCL section 2-201(c)(1) provides that a board may, “in its sole discretion,” authorize the issuance of rights, options, or warrants to stockholders on terms it determines appropriate. Furthermore, MGCL section 2-201(c)(2)(ii) permits directors to bar a newly elected board from redeeming or modifying a poison pill for up to 180 days during a control contest. Together, these provisions provide one of the strongest statutory foundations for rights plans among all U.S. states, giving boards confidence that defenses cannot be overturned immediately after a proxy fight. Further, the board’s authority to adopt and trigger a poison pill was also recently upheld judicially in Maryland in Hartman v. Silver Star Properties REIT, Inc.^[8]

Delaware has not codified poison pill authority. Instead, the Delaware Supreme Court first upheld poison pills in Moran v. Household International, Inc., under directors’ general statutory power to issue stock.^[9] But poison pills remain subject to the enhanced scrutiny standard established by the holding in Unocal. This enhanced scrutiny requires directors to show both a reasonable threat and a proportionate response.

Nevada has a statute authorizing the adoption of poison pills, but it lacks the “sole discretion” deference granted to the directors under the Maryland statute. There is no Nevada case that has yet upheld the triggering of a poison pill under Nevada law, making Maryland’s statute and judicial position stronger. Nevada’s statute does, however, protect poison pill decisions from enhanced scrutiny, like Maryland. Texas lacks a poison pill–specific statute or case law. Instead, boards rely on their general authority to issue securities under the Texas Business Organizations Code (“Texas BOC”), with any such decision subject to common law business judgment principles and, for corporations that have opted into the SB 29 framework, the codified business judgment presumption established thereunder.

Business Combinations Statute

Maryland’s Business Combinations Act bars business combinations with an “interested stockholder” for five years after a stockholder becomes an interested stockholder unless the board approves the transaction, which is among the most restrictive time periods of any state’s anti-takeover law. An “interested stockholder” includes anyone holding 10 percent or more of voting power, a lower threshold than Delaware’s 15 percent. Even after the freeze, transactions require either approval by 80 percent of all voting power and two-thirds of disinterested shares or compliance with strict “fair price” provisions. Opt-outs are tightly restricted, preserving statutory strength.

The Delaware General Corporation Law’s section 203 imposes only a three-year freeze with broader exceptions, such as the 85 percent tender offer carve-out. Nevada’s statute limits restrictions to two years and permits easy opt-outs. Texas imposes a three-year bar but allows flexible opt-outs and requires only two-thirds disinterested stockholder approval. Maryland’s longer duration, lower thresholds, and strict opt-out rules provide boards with significantly more leverage against hostile acquirers.

Control Share Acquisition Statute

Maryland’s Control Share Acquisition Act ensures that voting rights tied to “control shares”—those acquired in excess of each of the 10 percent, 33⅓ percent, or 50 percent ownership thresholds—remain suspended absent approval by two-thirds of disinterested stockholders. Acquirers must provide disclosure, and corporations may call special meetings to decide on restoration of voting rights. If rights are denied, corporations may redeem the excess shares at fair value. This framework deters creeping accumulations and ensures proper consent before control shifts.

Delaware has not enacted a control share statute, leaving corporations to rely on alternative defensive measures. Nevada has adopted a control share statute that permits stockholders to acquire up to 20 percent before the statute applies, allowing a hostile acquirer to gain a significantly greater foothold before triggering the defensive measures than in Maryland. Nevada further allows voting rights to be restored by a simple majority of disinterested stockholders, compared to Maryland’s two-thirds supermajority requirement. Texas has not adopted a control share statute or any comparable restrictions. As a result, Maryland’s statute is the most comprehensive, as it affords boards the strongest statutory protection against creeping or stealth acquisitions.

Legislative Responsiveness

Maryland’s legislature has shown itself to be responsive in preserving the statutory intent of its corporation law even in the face of occasionally misguided judicial activism. In Shenker, the Maryland Court of Appeals (now the Supreme Court) incorrectly held that directors owed fiduciary duties other than those enumerated by the MGCL. To prevent Delaware-style judicially determined fiduciary duties from evolving in Maryland, the General Assembly amended MGCL section 2-405.1 in 2016, confirming that the standard of conduct in Maryland runs only to the corporation and that the statute is the exclusive source of the standard of conduct of directors of Maryland corporations and their obligations. The Maryland Supreme Court later upheld the standard established by these statutory amendments in Eastland Food Corp. v. Mekhaya.^[10] This demonstrates the Maryland legislature’s willingness to respond firmly to protect the integrity of the MGCL and prevent judicially created duties. Maryland’s willingness to recalibrate statutory law ensures predictability not yet tested in newly competing jurisdictions.

Delaware, by contrast, has allowed fiduciary duty law to develop almost entirely through the judiciary and case law, with less (until the recent threat of DEXIT) of a statutory scheme and rare legislative correction.

Business Courts

Historically, one of Delaware’s greatest attractions as a state of incorporation has been the sophistication, consistency, and predictability of its judiciary, most particularly, its world-renowned Court of Chancery. Comparatively, neither Texas nor Nevada has any lengthy statewide track record handling sophisticated business disputes, any long-term experience with specialized courts, or any extensive well of business and corporate case law to draw on to predict outcomes or on which businesses or litigants may rely. Texas only recently established a business court in 2024, and Nevada only has localized business courts in Las Vegas and Reno but not a statewide program. In contrast, Maryland’s Business and Technology Case Management Program has been in operation since 2003 and has generated a body of business and corporate case law over that time on which parties can rely.

Recent Texas Legislation Directed at Public Companies

In fairness, Texas did recently adopt several laws that have attracted attention, enacting a series of provisions to make the Texas BOC more attractive, particularly to public companies. In June 2025, Texas enacted Senate Bill 29 (“SB 29”), which, among other things, (i) allows certain Texas corporations to provide a presumption for the directors that they have met their duties in taking actions, (ii) allows certain Texas corporations to limit derivative actions, (iii) limits legal fees in disclosure-only securities settlements, (iv) limits the definition of books and records available for inspection, and (v) allows certain Texas corporations to obtain a preemptive judicial determination of the independence and disinterestedness of a special committee. In two other bills, Texas took aim at the public company proxy process: (1) SB 1057, which limited shareholder proposals by enacting higher thresholds for making shareholder proposals for companies incorporated in Texas or with certain other Texas connections than those established by U.S. Securities & Exchange Commission Rule 14a-8, and (2) SB 2337, which targets proxy advisors and makes it burdensome for those firms to advise shareholders of companies with Texas ties.

For public companies and companies that are able to opt-in in their governing documents (which may not be possible or practical for many Texas corporations), SB 29 purports to create a statutory presumption that the directors have met their standard of conduct under what typically might be described as the business judgment rule, that they (i) acted in good faith, (ii) on an informed basis, (iii) in furtherance of the interests of the corporation, and (iv) in obedience to the law and governing documents. This presumption may only be rebutted by fraud, intentional misconduct, an ultra vires act, or a knowing violation of law. Unlike Maryland, however, where the standard of conduct is clearly stated by statute and then the statute further presumes that all corporate directors, regardless of whether the corporation is public or private or any opt-in, have met that standard, Texas does not have a statute that articulates the fiduciary duty or standard of conduct of directors of a Texas corporation along the lines of the presumption in SB 29. The result is that there may be a mismatch in the future between what a court views as the duties of a director and the presumptions established by SB 29, meaning that the presumptions established by SB 29 may not extend to all of the elements of the duties of a director of a Texas corporation. Yet, a number of commentators have nonetheless referred to this as the codification of the business judgment rule in Texas. Moreover, as we point out, unlike Maryland, whose codified business judgment rule and presumption apply to all Maryland corporations, many, if not most, Texas corporations and their directors will likely be unable to opt-in and therefore unable to avail themselves of the statutory “business judgment rule” protections of SB 29. SB 29 also allows publicly traded Texas corporations and Texas corporations with five hundred or more stockholders that are able to opt-in to the “codified business judgment rule” to restrict stockholder derivative litigation by adopting a minimum beneficial common share ownership threshold in order to institute a derivative proceeding in an amount up to 3 percent in the certificate of formation or bylaws. SB 29 prohibits the recovery of attorney fees for derivative proceedings resulting solely in additional or amended disclosures to stockholders, placing Texas law on equal footing with recent case law in Delaware. SB 29 narrows stockholders’ statutory books and records inspection rights by excluding emails, text messages, and social media communications, unless such communications directly affect corporate action. In a novel provision, SB 29 authorizes publicly traded Texas corporations and Texas corporations that are able to opt-in to the “codified business judgment rule” to petition the Texas Business Court for an advance determination of the independence and disinterestedness of a special committee of directors formed to review and approve a transaction. Such a determination is “dispositive,” absent facts, not originally presented to the court, later being presented constituting evidence sufficient to prove that a director is not independent or disinterested (which, on some level, seems to defeat the purpose of the advance preliminary determination being dispositive).

To make a “shareholder proposal” under SB 1057, a stockholder must: (1) hold at least (i) 3 percent or (ii) $1 million in market value, of the corporation’s outstanding voting shares; (2) satisfy a six-month continuous ownership requirement preceding and through the stockholder meeting; and (3) solicit approval from holders of at least 67 percent of the corporation’s voting power on the proposal.

Texas seeks to expand protections and management authority for directors and officers through the provisions of SBs 29, 1057, and 2337; however, it is important to note that the practical impact of these provisions may be limited as many provisions apply only to public companies, or to corporations that are able to and expressly do opt-in through their governing documents.

Conclusion

As illustrated above, Maryland provides boards with greater discretion and stability in takeover-response strategies than Delaware, Nevada, or Texas. As a result, depending on what a corporation seeking to DEXIT is looking for in a new state, and what the needs and interests of its board and stockholders may be, Maryland may provide a better alternative than either Texas or Nevada and should be compared and considered before any decision on state of reincorporation is made.

1. The authors would like to thank Marshall Paul, a partner at Saul Ewing, LLP; Hirsh Ament, a partner at Venable LLP; Rew Goodenow, a partner at Parsons Behle & Latimer; and Emily Leitch, a partner at Jackson Lewis LLP, for their input. ↑

2. Jai Ramaswamy, Andy Hill, & Kevin McKinley, We’re Leaving Delaware, and We Think You Should Consider Leaving Too, Andreessen Horowitz (July 9, 2025). ↑

3. Hirsh Ament et al., Protecting REITs Under Maryland Law, JD Supra (Nov. 5, 2024). ↑

4. Gaurav Jetley & Nick Mulford, DExit: Reincorporation Data Seem to Support the Hype, Harv. L. Sch. Forum on Corp. Governance (Sep. 23, 2025). ↑

5. 983 A.2d 408 (Md. 2009). ↑

6. 493 A.2d 946 (Del. 1985). ↑

7. 651 A.2d 1361 (Del. 1995). ↑

8. No. 24-C-23-003722 (Cir. Ct. Balt. City Jan. 21, 2025). ↑

9. 500 A.2d 1346 (Del. 1985). ↑

10. 301 A.3d 308 (Md. 2023). ↑