With assistance from the attorneys on both sides, Appalachian State University
successfully entered into a contract with members of an Indian reservation.  Re
the indemnification clause, our attorney suggested--and their attorney
agreed--to the following statement:

To the extent permitted by and consistent with North Carolina law, the
University will indemnify and hold ______ harmless from any and all losses,
claims, liabilities, damages, costs and expenses which arise out of the acts or
omissions of the University, its agents, or employees in connection with this
Agreement or by any breach or default in the perfomrance of the obligations of
the University hereunder.  The parties agree that nothing in this Agreement
constitutes a waiver of sovereign immunity, and that the University's
obligations in this paragraph shall be limited to the extent and manner of
recovery provided in North Carolina's State Tort Claims Act, N.C.G.S. § 143-291,
et. seq.

Our attorney further agreed to allow the inclusion of the Indian reservation's
sovereign immunity clause: "Nothing in this Agreement shall be deemed, construed
or lead any person or entity to infer that the __________ has waived its
sovereign immunity."  Our attorney stated that the Indian reservation would not
waive its sovereign immunity, and by agreement with the indemnification
paragraph (above), neither would our university/university system/State of NC.
He saw "no problem with two sovereigns entering into a contract in which neither
waives its immunity."

Although the Indian reservation had requested all legal actions to be
adjudicated in their court, their attorney agreed to strike the paragraph
because of the N.C. General Statute, which provides that "any provision in a
contract entered into in North Carolina that requires the prosecution of any
action or the arbitration of any dispute that arises from the contract to be
instituted or heard in another state is against public policy and is void and
unenforceable."

Hope this helps.

"Small, Janice" wrote:

> Dear Research Administration listers:
> We have been presented a contract from one of the Indian tribes in our
> state.  One of the clauses deals with Sovereign Immunity and states, "The
> XXXX Tribe, by entering into this agreement, does not waive its sovereign
> immunity from suit.  The laws of the XXX Tribe shall govern this Agreement."
> We have asked them to delete this clause, which they say they cannot do and
> our university cannot sign the contract as long as it contains that wording.
> The contract is for an important project and involves a sizeable budget, so
> we would really like to work this out if we can.  Can anyone suggest to me
> some compromise wording that might be acceptable to both our university and
> the tribe?  Thanks very much for your help.
> Jan Small
>
> **********************************************
> Jan Small
> Coordinator of Sponsored Programs
> University of South Dakota
> 414 East Clark Street
> Vermillion, SD  57069
> Phone (605) 677-5370; FAX (605) 677-6387
> email: xxxxxx@usd.edu
> ************************************************
>
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