[HISTORY: Adopted by the Legislature of the Menominee Indian
Tribe 10-6-2005 by Ord. No. 05-29; amended in its entirety 7-19-2012 by Ord. No.
12-19. Subsequent amendments noted where applicable.]
This charter is issued to a tribal business to be known as "Menominee
Fuel Station."
The purpose of the chartered business shall be to manage the
operation of the Menominee Fuel Station business for the Menominee
Indian Tribe. The chartered business is to be operated solely as a
profit-making enterprise, dedicated to maximizing the financial resources
available for appropriation by the Menominee Tribal Legislature on
behalf of the Menominee people. The Menominee Fuel Station shall conduct
the following type of business: provide gasoline and diesel fuel and
other related goods and services, including but not limited to soft
drinks and refreshments, to members of the Menominee Indian Tribe,
members of other tribes and other people who wish to utilize the services
provided by the Menominee Fuel Station.
For the purpose of this charter, the following terms shall have
the following meanings:
The Constitution and Bylaws of the Tribe.
The Menominee Fuel Station, a tribal business enterprise
chartered by the Tribal Legislature to direct the fuel station of
the Tribe.
The tribal governing body elected pursuant to Section 3,
Article IV of the Constitution.
Any person included on the official roll of the Tribe.
Land held in trust for the Tribe by the Secretary of the
Interior.
The Menominee Indian Tribe of Wisconsin.
A.Â
MFS shall be managed by a five-member Board of Directors selected
by a majority vote of the Tribal Legislature for three-year terms.
One of the members will be selected from the Department of Finance
based upon the recommendation of the Financial Manager to the Tribal
Legislature. One of the selected Board members must be a member of
the Tribal Legislature, selected by the Tribal Chairperson and approved
by the Tribal Legislature, whose term will extend only as long as
his/her current term on the Tribal Legislature. The terms of the Board
of Directors will be staggered terms. In order to ensure that the
terms are staggered, the initial five members, with the exception
of the appointed Tribal Legislator, selected under this charter, will
draw for two three-year terms, one two-year term, and one one-year
term at their first regular meeting. After these initial terms expire,
all future selections will be for three-year terms. Board members
may be removed and replaced by other eligible persons when the Tribal
Legislature determines such action is in the best interests of the
Tribe. After appointment of the Board by the Legislature, the Board
shall organize itself by a set of laws which provide for the orderly
conduct of business, including but not limited to officers, meetings,
reports and other matters. The Board members shall receive payment
of $50 per meeting plus mileage reimbursement at the federal rates
for their services.
B.Â
General powers. In general, the Board of Directors shall be responsible
for establishing overall policies and objectives for the management
of the affairs and assets of MFS; however, in order to assure that
the Tribal Legislature may appropriately discharge its governmental
and sovereign functions over MFS operations, the Board of Directors
shall submit quarterly reports to the Tribal Legislature and may be
subject to more frequent periodic review and evaluation if the Tribal
Legislature determines that such review is necessary. The Board of
Directors may utilize the services of a qualified individual to operate
the day-to-day activities of the MFS.
C.Â
Conflicts of interest prohibited. In carrying out the duties of MFS,
neither the Board of Directors nor any agent or employee of MFS shall
make or participate in making decisions which involve balancing a
substantial personal interest, financial or otherwise, other than
interests held in common by all tribal members.
D.Â
Indemnification of Board of Directors and agents and employees of
MFS. Each manager, employee and agent of MFS shall be entitled, without
prejudice to any other rights he/she may have, to be reimbursed and
indemnified from assets of MFS for any of the following: all legal
and other expenses reasonably incurred by him/her in connection with
any claim, action, suit, or proceeding of whatever nature in which
he may be involved as a party or otherwise by reason of his having
served as Board of Directors, agent or employee of MFS or of any subsidiary
of MFS, whether or not wholly owned, or by reason of any action alleged
to have been taken or omitted by him as any such Manager, agent or
employee. Reimbursement and indemnification under this subsection
include amounts paid or incurred in connection with reasonable settlements
made with a view to curtailment of costs of litigation and with the
approval of the Board of Directors then in office. No such reimbursement
or indemnification shall relate to any expense incurred or settlement
made in connection with any matter arising out of the negligence or
misconduct of such Manager, agent or employee as determined by a court
of competent jurisdiction or, in the absence of such a determination,
by the Manager acting on the advice of counsel. MFS and its Board
of Directors, employees, and agents shall not be liable to anyone
for making any determination as to the existence or absence of liability,
or for making or refusing to make any payment hereunder on the basis
of such determination, or for taking or omitting to take any other
action hereunder, in reliance upon the advice of counsel.
An annual business meeting of the tribal members shall be held
in January of each year for the purposes of informing tribal members
on the operation of MFS for the past year.
A.Â
The assets described in Exhibit "A" attached hereto shall be leased
to MFS from the Tribe pursuant to a separate written agreement.[1]
[1]
Editor's Note: Exhibit "A" is included at the end of this chapter.
B.Â
Tribal property. MFS shall have no interest in tribal real property,
other than a leasehold interest pursuant to tribal law, and shall
have the right to manage and operate MFS in the manner set forth in
this charter. No tribal property, real or personal, shall be an asset
of MFS for any purpose.
C.Â
Reserve requirement. MFS will be required to establish a reserve
replacement account for replacement of capital assets. A fixed asset
is defined as an asset purchase exceeding $500. This account will
be funded annually by MFS with the transfer of funds to an interest-bearing
account in the amount of $25,000. The funds held in the account shall
not exceed $100,000. The transfer of funds will be increased annually
by 3%. Any withdrawal from this account will require Board approval.
The MFS Board will review the adequacy of the account cap of $100,000
every three years or as necessary. The MFS shall also establish a
tax reserve account. This account shall be $60,000 and will offset
monthly state tax reimbursements that the MFS must retain until reimbursement
is made from the state. This tax refund reserve fund will ensure MFS's
cash flow is not impacted while awaiting reimbursement.
A.Â
General method of operation. MFS shall be operated in an efficient,
businesslike manner in accordance with this charter.
(1)Â
The Manager shall cause the following to be achieved:
(a)Â
Oversee an established accounting system;
(b)Â
An inventory control system, including an inventory of property
taken as of the last day of business of each fiscal year of MFS, shall
be established;
(c)Â
An annual financial statement of the operations of MFS shall
be prepared and presented at the annual business meeting;
(d)Â
A proposed budget, which shall constitute a plan of operation
for MFS, shall be prepared and submitted to the Tribal Legislature
for approval prior to the beginning of each fiscal year. The budget
may be amended during the year if the Board of Directors deems it
necessary; however, any increases in the budget of MFS shall require
the approval of the Tribal Legislature; and
(e)Â
MFS shall adopt general policies which shall include, among
other appropriate matters, a statement of purpose, a statement of
policy, a statement of administrative policies, and a statement of
personnel policies.
(2)Â
The Tribe's Internal Audit Department shall have authority to conduct
an audit of MFS upon a request by the Tribal Legislature.
(3)Â
The Tribe's audit can act as the fulfillment of the audit requirement
of the Charter in place of an audit conducted by an independent certified
public accounting firm.
B.Â
Distribution of net profits. The profits of MFS shall be allocated
in the following manner: annually, an amount equal to 70% of the actual
net profits shall be disbursed by MFS to the Tribal Legislature; 30%
of actual net profits shall be retained by MFS. Net profits are arrived
at by subtracting the total expenses of MFS from the total revenue
of MFS.
C.Â
Creation of debt and encumbrance of assets. The Board of Directors
shall not be allowed to create debt or encumber assets without the
prior written approval of the Tribal Legislature.
A.Â
The Tribal Legislature hereby gives its consent to allowing MFS,
by specific written agreement with any party, to sue and be sued in
its capacity as a tribal business upon any contract, claim or obligation
arising out of its activities authorized by this charter and hereby
authorizes MFS to agree, by specific written agreement, to waive any
immunity from suit which it might otherwise have. Subject to the provisions
of this charter, MFS is authorized to pledge, mortgage, or otherwise
encumber the assets of MFS as security for debts and to acquire, sell,
lease, exchange, transfer, or assign personal property or interests
therein. In no event shall any assets of the Tribe, including tribal
forestland and other tribal land, be subject to any obligations of
MFS unless specifically authorized by the Constitution.
B.Â
This charter shall not, except as specifically provided, operate
as a partial or total waiver of the sovereign immunity of MFS. This
charter does not act as a waiver of the sovereign immunity of the
Tribe in any manner. The Tribe in no way waives or limits its sovereign
and governmental powers in regard to MFS or operations of MFS.
C.Â
MFS shall be entitled to, and the Tribe in no way waives, the exemptions
and immunities from taxation to which American Indian tribes, their
members, and their businesses are entitled by law.
If this charter is terminated by the Tribal Legislature, the
Manager shall promptly relinquish control over all assets and liabilities
of MFS to the Tribal Legislature, acting on behalf of the Tribe, or
to such other entity as the Tribal Legislature shall designate. The
Manager shall also promptly deliver all books and records of MFS to
the Tribal Legislature, acting on behalf of the Tribe, or to such
other entity as the Tribal Legislature shall designate.
A.Â
Principal place of business. The principal office of MFS shall be
located on the Menominee Indian Reservation. MFS may have such other
offices as the Board of Directors may designate and as the business
of MFS may require, subject to the approval of the Tribal Legislature.
B.Â
Duration. This charter shall remain in effect until terminated by
ordinance. If this charter is terminated, the Board of Directors shall
promptly relinquish control over the assets and liabilities of MFS
to the Tribal Legislature or to such other entity as the tribal governing
body shall designate. Upon termination pursuant to this subsection,
this charter shall be null and void.
C.Â
Cooperation between the Board of Directors and Tribal Legislature.
In the implementation of this charter, the Board of Directors and
the Tribal Legislature shall work together and cooperate in order
to promote the best interests of the Tribe.
D.Â
The Tribal Legislature shall adopt regulations and ordinances from
time to time governing the operation of fuel stations on the Menominee
Indian Reservation.
