(dissenting). I stand with the Wampanoag Tribal Council. I would affirm the trial judge’s order and judgment because I conclude, as did the judge, that the settlement agreement does not constitute a legally sufficient waiver of the Tribe’s sovereign immunity. I fully appreciate the language in the settlement agreement, including the language that refers to future recognition of the Tribe, as well as the court’s analysis of the phrase “in the same manner, and subject to the same laws, as any other Massachusetts corporation.” Nonetheless, I dissent.
The court is correct that the Tribe need not have used “talismanic words” to waive its sovereign immunity. Ante at 12. Cases where Native American tribes have explicitly stated that disputes would be handled in a particular fomm meet the “practical, commonsense approach” to waiver. See, e.g., C & L Enters., Inc. v. Citizen Band Potawatomi Indian Tribe of Okla., 532 U.S. 411, 423 (2001) (under agreement it signed, Tribe’s clear consent to arbitration and to the enforcement of arbitral *18awards in State court constitutes waiver of sovereign immunity); Ninigret Dev. Corp. v. Narragansett Indian Wetuomuck Hous. Auth., 207 F.3d 21, 30-31 (1st Cir. 2000) (under contract, Tribe’s agreement to submit “[a]ll claims, disputes” to arbitration and that agreement “shall be specifically enforceable under prevailing arbitration law” constitutes waiver of sovereign immunity). The settlement agreement, as I read it, is not so “direct, clear, and unavoidable.” Id. at 31.
The court states, and I do not disagree, that the parties negotiating the settlement agreement were sophisticated. Ante at 12-13, 15-16 & n.15. Based in part on this assumption, the court concludes that Tribe must have contemplated the effect of the “in the same manner” language because it agreed to establish a corporation that, by implication, would have meant a change in status for the Tribe. Ante at 15-16. The court also states that it finds persuasive the fact that the settlement agreement incorporates the town’s zoning bylaws by reference (which expressly provides for judicial review and enforcement). Ante at 16-17.
However, I remain unpersuaded for two related reasons. First, at the time the settlement agreement was signed, the Tribe had not yet received Federal recognition. Therefore, it had no sovereign immunity to waive.1 Second, given the sophistication of the parties who clearly anticipated that recognition might occur in the future, it would have been very easy for the parties to have addressed the impact of such recognition in a more straightforward fashion. It would have been simple for them to have said, “The tribe waives its sovereignty immunity.” The absence of such a clear, unequivocal, explicit, “direct” and “unavoidable” statement of waiver is, in my opinion, controlling, given the importance of the rights at stake. Moreover, to read a waiver of sovereign immunity derivatively, as the court has done, reminds me somewhat of having one party’s interpretation of the fine print of a contract brought to the other party’s attention just after that party assented to the contract.2 *19Cf. State v. Narragansett Indian Tribe, 19 F.3d 685, 691 (1st Cir. 1994).
I am not convinced that the Tribe clearly, explicitly, and unequivocally waived its sovereign immunity. In addition, although it is not part of the issue before the court, I am aware of the historic relationship between Native Americans and the government, as well as their chronic disparity in bargaining power.3 Therefore, I prefer to err on the side of caution. Accordingly, I respectfully dissent.
I note that the cases cited by the parties holding that tribes have waived their sovereign immunity are cases where the tribes involved already had Federal recognition. See, e.g., C & L Enters., Inc. v. Citizen Band Potawatomi Indian Tribe of Okla., 532 U.S. 411, 414 (2001).
In C & L Enters., Inc. v. Citizen Band Potawatomi Tribe of Okla., supra at *19417-418, 423, although the United States Supreme Court held that a tribe waived its sovereign immunity where it gave clear consent to submit disputes to arbitration as well as consented to the enforcement of arbitral awards in State court, it did not explicitly overrule the holding in Pan Am. Co. v. Sycuan Band of Mission Indians, 884 F.2d 416, 419 (9th Cir. 1989), and cases cited (contract provision stating that the parties agreed to subject themselves to the jurisdiction of the rules and regulations of the American Arbitration Association not unequivocal expression of tribal consent to suit). Cf. Rosebud Sioux Tribe v. Val-U Constr. Co. of South Dakota, 50 F.3d 560, 562 (8th Cir.), cert. denied, 516 U.S. 819 (1995) (contractual clause stating, “All [disputes] shall be decided by arbitration in accordance with [rules] of the American Arbitration Association” is clear intent to waive sovereign immunity because arbitration rules state that parties to the rules consent to have judgment enter in a court). See also American Indian Agricultural Credit Consortium v. Standing Rock Sioux Tribe, 780 F.2d 1374, 1380-1381 (8th Cir. 1985) (“To derive an express waiver of sovereign immunity from a promissory note that merely alludes to ‘rights and remedies provided by law,’ that provides for attorney fees in the event of a collection action, and that contains a choice of law provision, simply asks too much”).
The commonly cited example is the sale of Manhattan Island to the Dutch for the equivalent of twenty-four dollars by Native Americans. See generally Cassidy, The Enforcement of Aboriginal Rights in Customary International Law, 4 Ind. Int’l & Comp. L. Rev. 59, 75-76 n.95 (1993).