The Court’s decision is an important reminder of the positive aspects of conducting business with Indian tribes, both on and off Indian lands. As the Court points out, tribal enterprises, including gaming, cigarette sales, ski resorts, tourism, recreation, mining, forestry, agriculture, manufacturing, retail, banking, construction, energy, telecommunications and more, continue to flourish and extend well beyond the reservation to domestic and foreign markets and lands. As tribal enterprises grow and expand, Indian tribes will continue to partner with governmental and private entities to form beneficial business relationships.

The decision also illustrates the importance of understanding and appreciating that tribal business relationships and contracts are structured and negotiated against a backdrop of tribal sovereign immunity. In the dissent’s words, “[tribal sovereign] immunity renders the tribes largely litigation-proof.” When entering into commercial relationships, whether between a tribe and a private entity, a tribe and a governmental entity, or two tribes, on or off Indian lands, the parties must be prepared to negotiate a waiver of tribal sovereign immunity or dispute resolution provision, where appropriate, to protect all interests involved.

Finally, because of the Court’s sharp divide on the ongoing viability of tribal sovereign immunity, at least as it applies to off-reservation commercial activities, it will be important to monitor the doctrine as it continues to develop in the federal courts. For example, the Court could be asked to determine the enforceability of an arbitration provision containing language expressly preserving a tribe’s sovereign immunity.