Towards Tribal Sovereignty and Judicial Efficiency: Ordering the Defenses of Tribal Sovereign Immunity and Exhaustion of Tribal Remedies

In 1985, the Narragansett Indian Tribe (“Tribe”) created the Narragansett Indian Wetuornuck Housing Authority (“Authority”). The Authority, which acts on the Tribe’s behalf in its housing development and operations, entered into a contract with the Ninigret Development Corporation for the construction of a low-income housing development. After construction began, disputes developed over how to proceed with the construction. When conciliation efforts failed, the Authority cancelled the contract. The Narragansett Tribal Council, the governing body of the Tribe, followed the forum selection clause in the contract and notified the disputants that it would hold a hearing to resolve the dispute. Ninigret refused to appear at the hearing, and the Tribal Council found that Ninigret had failed to fulfill its contractual obligations and had incurred liability for the costs to fix the problems encountered in the construction of the housing development. Ninigret ignored the Tribal Council’s decision and the available appeals and sued the Authority in federal court for breach of contract. The Authority moved to dismiss the claims for want of jurisdiction, claiming that as a tribal agency it was entitled to tribal sovereign immunity, and that the Tribal Council should have jurisdiction in the case pursuant to the exhaustion of tribal remedies doctrine (“tribal exhaustion”). The district court interpreted the forum selection clause, ruled the clause enforceable, and dismissed Ninigret’s claims because the appellant had failed to follow the provisions of the clause. Ninigret appealed. The First Circuit, in Ninigret Development Corp. v. Narragansett Indian Wetuomuck Housing Authority, determined that the district court properly exercised its jurisdiction by hearing the tribe’s sovereign immunity defense and interpreting the forum selection clause before invoking tribal exhaustion.