[HISTORY: Adopted by the Legislature of the
Menominee Indian Tribe 8-10-1993 by Ord. No. 93-15. Amendments noted where
applicable.]
For the purpose of this Charter, the following
terms shall have the following meanings:
The Menominee Gaming Venture Corporation, a tribal business
enterprise.
The Indian Gaming Regulatory Act of 1988, 25 U.S.C. §§ 2701
to 2721 (1988), together with any amendments thereto and any regulations
adopted thereunder.
The joint venture established by the Joint Venture Agreement.
The agreement entered into by the Menominee Tribal Legislature
dated July 29, 1993, with GamePlan, Inc., for the purpose of entering
into various types of gaming contracts with other Indian tribes, a
copy of which is attached hereto.[1]
The tribal governing body elected pursuant to the Menominee
Constitution and Bylaws, Section 3, Article IV, and their successors.
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.
[1]
Editor's Note: A copy of the agreement is
on file at the office of the Tribal Chairperson.
A.
The Corporation shall be the business entity of the
Tribe, with respect to the Joint Venture Agreement, to enter into
various contracts with Indian tribes and other entities relating to
gaming enterprises owned and/or operated by such tribes or other entities,
including consulting agreements, management contracts, loan agreements,
and related agreements, in a businesslike manner which will best promote
the interests of the Tribe and its members.
B.
The MTL shall exercise all proper governmental and
sovereign functions in regard to the operations of the Corporation.
The Tribe does not waive or limit its immunity as a federally recognized
Indian tribe by means of this Charter. This Charter shall be liberally
construed in order to achieve the purposes set forth in this section.
The Directors of the Corporation shall be vested
with all powers necessary to permit the Corporation to discharge the
obligations and enforce the rights provided to the Tribe under the
Joint Venture Agreement, including, without limitation, the following:
A.
To operate the Joint Venture subject to the requirements
of the IGRA and other applicable laws and regulations.
B.
To enter into agreements, contracts, joint ventures,
and partnerships with any governmental agency or with any person,
partnership, corporation, or Indian tribe and to agree to any reasonable
conditions attached to federal financial assistance, subject to MTL
approval.
C.
To provide for the training of employees of tribes
or other entities that enter into contracts with the Joint Venture,
through agreements with other tribal businesses or subsidiary bodies
or otherwise.
D.
To hire, discharge, and supervise all labor and employees
required for the management and operation of the Corporation.
E.
To enter into contracts for maintenance, repairs,
and all other matters reasonably necessary to conduct the business
of the Corporation.
F.
To make and amend reasonable rules and regulations
concerning the use of the subject property.
G.
To lease property for such periods as are authorized
by federal or tribal law and to hold, manage, or sublease the same.
H.
To borrow money and to issue temporary or long-term evidence of indebtedness and to repay the same, subject to the limitations of § 667-8C of this Charter.
I.
To provide financing, to obtain financing, and to
grant security for such financing for the construction, equipment,
and other starting costs of gaming facilities.
J.
To pledge and otherwise encumber the assets of the Corporation as security for debts and to acquire, sell, lease, exchange, transfer, or assign personal property and interests therein, subject to approval under the conditions set forth in § 667-8C of this Charter.
K.
To purchase real and personal property and interests
therein, to take such property by gift, and to lease such property
to the extent provided by law.
L.
To conduct studies of the economic needs of the Corporation
and to prepare and execute plans to implement the conclusions of such
studies.
M.
To purchase insurance for any property or against
any risks or hazards.
N.
To invest such funds as are not required for immediate
disbursement.
O.
To establish and maintain such bank accounts as may
be necessary or convenient.
P.
To take such further actions as are commonly engaged
in by chartered bodies, as the Board of Directors may deem reasonably
necessary to effectuate the purposes of the Corporation.
Q.
To adopt such bylaws as the Board of Directors deems
reasonable.
R.
To conduct all other activities reasonably necessary
to implement the powers enumerated above or to further the business
needs of the Corporation.
S.
To appoint Directors to GamePlan, Inc., subject to
approval of the MTL.
A.
General powers. The business and affairs of the Corporation
shall be managed by its Board of Directors. The Board of Directors
will determine the manner in which it will exercise its authority
and responsibility for the management of the Corporation and the manner
and extent to which such powers will be delegated to committees of
the Board of Directors or to officers, agents, and employees of the
Corporation. In general, the Board of Directors shall be responsible
for establishing overall policies and objectives for the management
of the affairs and assets of the Corporation and for periodically
reviewing and evaluating management results.
B.
Number, tenure, nomination and qualifications of Directors.
There shall be five Directors who shall be divided into three classes,
two classes consisting of two Directors and a third class consisting
of one Director, as follows: the term of office of Directors of the
first class shall expire at the end of the annual business meeting
in 1994 and at each annual business meeting held every third year
thereafter; the term of office of Directors of the second class shall
expire at the end of the annual business meeting in 1995 and at each
annual business meeting held every third year thereafter; and the
term of office of the Director of the third class shall expire at
the end of the annual business meeting in 1996 and at each annual
business meeting held every third year thereafter.
(1)
Any vacancy occurring in the Board of Directors may
be filled until the next succeeding annual business meeting by a majority
vote of the MTL. In the event that such vacancy or vacancies create
difficulty achieving a quorum to take up necessary business, a majority
of Directors even if less than a quorum may fill such a vacancy by
appointing a temporary Director to serve as Director for one meeting.
(2)
To be considered for appointment to the Board of Directors,
a person must meet all of the requirements of the federal and tribal
law, be an enrolled Menominee and exhibit understanding of business
principles.
(3)
After each annual business meeting, MTL shall appoint
Directors to hold office for three years, to replace Directors whose
terms have expired; in addition, MTL shall appoint Directors to fill
any unexpired terms of vacant directorships.
(4)
All Directors shall be enrolled Menominee tribal members,
but no Director shall be an employee of a gaming enterprise operated
by the Corporation, by the Joint Venture, or by any tribe which has
any contract with the Corporation or the Joint Venture.
C.
Conflicts of interest prohibited. In carrying out
the duties of the Board of Directors, no member of the Board shall
make or participate in making decisions which involve balancing a
substantial personal financial interest, other than interests held
in common by all tribal members.
D.
Regular meetings. A regular meeting of the Board of
Directors shall be held immediately after, and at the same place as,
each annual business meeting. The Board of Directors may provide,
by resolution, for the holding of additional regular meetings at specified
times. No notice need be given for such annual meetings or additional
regular meetings.
E.
Special meetings. Special meetings of the Board of
Directors may be called by the Chairperson of the Board and shall
be called by the Secretary on written request of any two Directors.
The person or persons authorized to call special meetings of the Board
of Directors may fix any place for holding any special meeting of
the Board of Directors.
F.
Notice of special meetings. Notice of any special
meeting shall be given to each Director and may be given by either
of the following methods: by delivering or telephoning such notice
to a Director personally at least 72 hours before the time set for
such meeting or by mailing such notice at any post office or United
States mailbox, with postage prepaid, addressed to a Director, as
his address may appear on the books of the Corporation, at least 72
hours before the time appointed for such meeting. Whenever any notice
is required to be given to any Director under the provisions of this
Charter, a waiver thereof, signed at any time by the Director entitled
to such notice, shall be deemed equivalent to the giving of such notice.
The attendance of a Director at a meeting shall constitute a waiver
of notice of such meeting, except where a Director attends a meeting
and there objects to the transaction of any business because the meeting
is not lawfully called or convened. The business to be transacted
at any special meeting of the Board of Directors need not be specified
in the notice or waiver of notice of such meeting.
G.
Quorum. Three of the Directors then in office shall
constitute a quorum for the transaction of business at any meeting
of the Board of Directors. If less than such quorum is present at
a meeting, a majority of the Directors present may adjourn the meeting
from time to time without further notice.
[Amended 9-21-1995]
H.
Manner of acting. The act of the majority of the Directors
present at a meeting at which a quorum is present shall be the act
of the Board of Directors, unless the act of a greater number is required
by this Charter. Dissolution of the Joint Venture Agreement shall
be by a two-thirds vote of the Directors present.
I.
Compensation.
(1)
The Board of Directors may, subject to the limitations in Subsection I(2), by affirmative vote of a majority of the Directors then in office and irrespective of any personal interest of any Director, provide that the Directors shall be compensated on a reasonable basis for services to the Corporation as Directors and may establish reasonable compensation to Directors for service as officers or otherwise; such authority may be delegated to an appropriate committee. The Board of Directors shall also have authority, subject to Subsection I(2), to provide for reasonable pensions, disability or death benefits, and other benefits or payments to officers, to employees, and to their estates, families, dependents, or beneficiaries; such authority may be delegated to an appropriate committee.
(2)
Directors who are full-time employees of the Tribe
may not receive a full-time salary from the Corporation as well but
may only be compensated by the Corporation for time worked above and
beyond their normal working hours for the Tribe. The MTL may veto,
by majority vote, on a prospective basis, the compensation and benefits
plans which the Board has approved after granting the Board a ten-day
notice and opportunity to be heard on the issue.
J.
Presumption of assent. A Director who is present at
a meeting of the Board of Directors or a committee thereof at which
action on any matter is taken shall be presumed to have assented to
the action taken unless he or she objects to such action at the meeting
or unless he or she files his/her written objection to such action
with the Secretary of the Corporation within 72 hours after the adjournment
of the meeting. Such right to object shall not apply to a Director
who voted in favor of such action.
K.
Informal action. Any action required or permitted
by this Charter or by any provision of applicable law may be taken
by the Board of Directors at a meeting. Such action may also be taken
without a meeting if a consent in writing, setting forth the action
taken, is signed by all of the Directors then in office.
L.
Committees.
(1)
The Board of Directors may designate one or more committees,
including an Executive Committee which may be empowered to take temporary
actions and to act in lieu of the Board of Directors when the Board
is not in session. Each committee shall consist of no fewer than three
and no more than five Directors. The members of each committee and
the Chairperson thereof shall be designated. Such committees may exercise
any powers of the Board of Directors, as set forth in the resolution
appointing each committee, except that committees shall not be empowered
to act in respect to the distribution of profits, amendments to the
Joint Venture Agreement, execution of contracts, election of permanent
officers, or filling of vacancies on the Board of Directors or on
committees created pursuant to this section.
(2)
The Board of Directors may elect one or more of its
members as alternate members of any such committee, who may take the
place of any absent member or members at any meeting of such committee
upon request by the Chairperson of the Board, President, or the Chairperson
of such committee. The Board of Directors may also designate such
persons who are not Directors to serve as advisory members of any
committee. Such advisory members shall have no power to vote on any
matter in which the committee is exercising the power of the Board
of Directors in the management of the business and affairs of the
Corporation.
(3)
The Chairperson of each committee of the Board of
Directors shall submit a report from time to time of the activities
and actions of the committee. Such reports will be submitted as the
Board of Directors or the Chairperson of the Board of Directors may
request and shall be delivered to the Chairperson of the Board of
Directors for submission to the Board of Directors. The Chairperson
of the Executive Committee shall submit such reports and shall provide
all members of the Board of Directors with copies of minutes of all
Executive Committee meetings. In exercising his/her duties of Chairperson
of any committee, the Chairperson may request, through the Chairperson
of the Board of Directors or the Executive Director/Administrator,
such information from the officers, agents, or employees of the Corporation
as such committee may require from time to time in fulfilling its
duties.
(4)
Notice of meetings of committees of the Board of Directors shall be given in accordance with Subsection E of this section. The majority of the number of Directors on a committee shall constitute a quorum for the transaction of any business at such meeting. Committees may make rules, not inconsistent with any provisions of this Charter, for conducting committee business.
M.
Indemnification of Directors and officers. Each present,
former, and future Director and officer of the Corporation shall be
entitled, without prejudice to any other rights he may have, to be
reimbursed and indemnified from assets of the Corporation for any
of the following: all legal and other expenses reasonably incurred
by him 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 a Director or officer of the Corporation
or of any subsidiary of the Corporation, whether or not wholly owned,
or by reason of any action alleged to have been taken or omitted by
him as any such Director or officer, provided that the Corporation
need reimburse such officer's or Director's legal fees and expenses
only if those fees are incurred after the officer or Director has
requested, and the Corporation has refused to provide, legal representation
to the officer or Director at the Corporation's expense. 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 a majority
of the Directors of the Corporation then in office, other than those
involved, whether or not such majority constitutes a quorum. 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 Director or officer as determined
either by a court of competent jurisdiction or, in the absence of
such a determination, by such majority of the Directors acting on
the advice of counsel. The Corporation and its Directors, officers,
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.
N.
Recall of Directors. Directors may be recalled from
office on grounds of dishonesty, incompetence, nonparticipation in
Board matters, or other conduct seriously detrimental to the interests
of the Tribe or of the Corporation. The Menominee Tribal Legislature
may recall any Director from office upon a simple majority vote of
those present, so long as a quorum exists. The Director in question
shall receive at least 10 days' notice of any meeting at which the
Director's removal from office is to be considered. The notice shall
set forth the alleged misconduct with specificity. The Director shall
be given full opportunity to be heard at such meeting. If the Menominee
Tribal Legislature votes to recall such Director from office, the
reasons for removal shall be set forth with specificity in the minutes
of the meeting in question. Whenever a Director is recalled from office,
the Menominee Tribal Legislature shall fill the vacancy in the manner
provided in this Charter.
An annual business meeting of the tribal members
shall be held on the fourth Saturday in April for the purposes of
informing tribal members on the operation of the Corporation for the
past year. In the event of failure, through oversight or otherwise,
to hold the annual business meeting on the fourth Saturday in April,
a subsequent meeting, upon due notice, shall be held in lieu of the
regularly scheduled meeting.
A.
Number. The principal officers of the Corporation
shall be the Chairperson of the Board of Directors, the Vice Chairperson
of the Board of Directors, the Secretary, and the Treasurer. In addition,
the Board of Directors may, but need not, designate other officers
and specify their functions.
B.
Election and term of office. The officers shall be
elected annually by the Board of Directors at the next meeting of
the Board following the annual business meeting. If the election of
officers is not held at such meeting, such election shall be held
as soon as practicable thereafter. Each officer shall hold office
until his successor has been duly elected and qualified, until his
death, or until he resigns or is removed or recalled from office.
C.
Removal. Any officer or agent elected or appointed
by the Board of Directors may be removed by the Board of Directors
whenever in its judgment the best interests of the Corporation will
be served thereby. Such removal shall be without prejudice to the
contract rights, if any, of the person so removed. Election or appointment
shall not of itself create contract rights.
D.
Vacancies. A vacancy in any principal office may be
filled by the Board of Directors for the unexpired portion of the
term.
E.
Chairperson of the Board of Directors. The Chairperson
of the Board of Directors shall preside at all business meetings of
the tribal members and of the Board of Directors. The Chairperson
of the Board also shall be the chief executive officer of the Corporation
and shall have general supervision and management of the business
and affairs of the Corporation, unless the Board delegates some or
all of such functions to another officer. The Chairperson shall be
an ex officio member of all committees of the Board of Directors and
may call special meetings of the Board of Directors and of any committee
of the Board of Directors. The Chairperson shall receive reports from
Chairpersons of all committees of the Board of Directors and shall
deliver such reports to the Board of Directors and the President.
The Chairperson shall keep the Board of Directors informed as to Corporation
matters. The Chairperson of the Board may sign, with the Secretary
or any other officer of the Corporation authorized by the Board of
Directors, bonds, contracts, or other instruments which the Board
of Directors has authorized to be executed, except in cases where
the signing and execution thereof have been expressly delegated by
the Board of Directors to some other person. In general, the Chairperson
of the Board shall perform all duties incident to the office of the
chief executive officer and such other duties as may be prescribed
by the Board of Directors.
F.
Vice Chairperson of the Board of Directors. The Vice
Chairperson of the Board of Directors shall perform all such duties
usually vested in such office and such other duties as may be required
by the Chairperson or by the Board of Director to the contrary; the
Vice Chairperson of the Board shall perform the duties of the Chairperson
when the Chairperson is absent or unable to carry out his duties or
when the office is vacant.
G.
Secretary. The Secretary shall keep the minutes of
the meetings of the Board of Directors and any committee appointed
by the Board of Directors; see that all notices are duly given in
accordance with the provisions of this Charter; be custodian of the
Corporation's records and seal and see that the seal of the Corporation
is affixed to all appropriate documents; and in general perform all
duties usually vested in the office of the Secretary and such other
duties as may be assigned to him by the Chairperson or by the Board
of Directors. The Board of Directors may, in its discretion, assign
all or some of the duties set forth in this subsection to some person
other than the Secretary so long as such assignment is not inconsistent
with any other provisions of this Charter.
H.
Treasurer. If required by the Board of Directors,
the Treasurer shall give a bond for the faithful discharge of his
duties under such conditions as are determined by the Board of Directors.
The Treasurer shall have charge and custody of, and be responsible
for, all funds and securities of the Corporation; receive and give
receipts for moneys due and payable to the Corporation; deposit all
such funds in the name of the Corporation in such banks, trust companies
or other depositories as shall be selected by the Board of Directors
or the Executive Director; render such accounts, statements and inventories
as shall be required by the Executive Director or by the Board of
Directors; and in general perform all of the duties usually vested
in the office of Treasurer and such other duties as may be assigned
to him by the Executive Director or by the Board of Directors. The
Board of Directors may, in its discretion, assign all or some of the
duties set forth in this subsection to some person other than the
Treasurer so long as such assignment is not inconsistent with any
other provision of this Charter.
A.
Initial assets. The initial assets of the Corporation
shall consist of the Corporation personal property as described in
the attached Schedule of Property, which is hereby incorporated by
reference into the Charter.[1]
[1]
Editor's Note: The Schedule of Property is included at the end of this chapter.
B.
Additional assets. All income from whatever source,
including all income from the Joint Venture or payments of principal
and interest on loans made to GamePlan or to other tribes, shall constitute
additional assets of the Corporation. Additional assets of the Corporation
shall also include such other funds as are advanced, granted, given,
or loaned to the Corporation by the Tribe, by the Menominee Tribal
Legislature, or by any other entity.
C.
Tribal real property. No tribal real property shall
be an asset of the Corporation for any purpose.
A.
General method of operation. The Corporation shall
be operated in an efficient, businesslike manner in accordance with
this Charter. The Board of Directors shall, in addition to the above
guidelines, cause the following to be achieved:
(1)
An accounting system, approved by an independent certified
public accounting firm, shall be established;
(2)
An inventory of property shall be taken as of the
last day of business of each fiscal year of the Corporation;
(3)
An audit of the Corporation shall be conducted by
an independent certified public accounting firm as of the last day
of business of each fiscal year of the Corporation;
(4)
An annual financial statement of the operations of
the Corporation shall be prepared;
(5)
Monthly and annual financial statements of the Corporation
shall be prepared;
(6)
A proposed budget, which shall constitute a plan of
operation for the Corporation, shall be prepared prior to the beginning
of each fiscal year and may be amended during the year if the Board
deems it necessary;
(7)
The Corporation 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; and
(8)
The Corporation shall carry Wisconsin workers' compensation
insurance and shall comply with social security laws.
B.
Distribution of net profits. The profits of the Corporation shall be disbursed by the Corporation to MTL each month, except that the Board of Directors may retain up to 20% of actual net profits for incidental operating expenses and for establishment and maintenance of the reserve accounts pursuant to Subsection C.
C.
Reserve accounts. The Board of Directors may establish
a reserve account of up to $100,000 for the payment of salaries and
expenses. The Board of Directors may establish a capital funds reserve
account of up to $3,000,000, such funds to be used to make and/or
guarantee loans to tribes or other entities entering into contracts
with the Joint Venture. Additional funds may be retained for the reserve
accounts if approved by the MTL.
The Tribe hereby gives its consent to allowing the Corporation, 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. Subject to the provisions of this Charter, the Corporation is authorized to pledge, mortgage, or otherwise encumber its assets (see §§ 667-7 and 667-8 above) 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 forest land and other tribal land, be subject to any obligations of the Corporation. With respect to the obligations assigned to the Corporation under the Joint Venture Agreement, the Corporation shall be subject to suit in the Tribal Court of the Menominee Tribe subject to the limitations provided in Section 11 of the Joint Venture Agreement.
The Menominee Tribal Legislature shall have
the authority to make amendments to any provisions of this Charter;
provided, however, that any such action must be concurred by six of
the members Menominee Tribal Legislature at any lawfully called meeting
of the Menominee Tribal Legislature.
A.
The Menominee Tribal Legislature shall have the unilateral
right to declare this Charter terminated by the vote of at least six
members of the Menominee Tribal Legislature; provided, however, that
notice of any proposed action pursuant to this section shall be given
in the notice of the meeting at which it will be considered. Before
any action is taken pursuant to this section, the Board of Directors
shall be notified of such proposed action and shall be given a full
opportunity to be heard at the meeting at which the action is proposed.
B.
If this Charter is terminated pursuant to this section,
the Board of Directors shall promptly relinquish control over all
assets and liabilities of the Corporation to the Menominee Tribal
Legislature, acting on behalf of the Tribe, or to such other entity
as the MTL shall designate. The Board of Directors shall also promptly
deliver all books and records of the Corporation to the Menominee
Tribal Legislature, acting on behalf of the Tribe, or to such other
entity as the Menominee Tribal Legislature shall designate. Upon termination
pursuant to this section, this Charter shall be null and void.
A.
Principal place of business. The principal office
of the Corporation shall be located on the Menominee Indian Reservation.
The Corporation may have such other offices as the Board of Directors
may designate and as the business of the Corporation may require from
time to time.
B.
Agent for service of process. The Board of Directors
shall designate an agent of the Corporation for the purpose of accepting
service of process. The business address of such agent shall be the
principal office of the Corporation.
C.
Seal. The Board of Directors may provide a seal of
the Corporation.
D.
Duration. This Charter shall remain in effect in perpetuity.
If this Charter expires or is terminated, the Board of Directors shall
promptly relinquish control over the assets and liabilities of the
Corporation to the MTL, acting on behalf of the Tribe, or to such
other entity as the MTL shall designate. Upon termination, this Charter
shall be null and void.
E.
Cooperation between the Board of Directors and the
Menominee Tribal Legislature. In the implementation of this Charter,
the Board of Directors and the Menominee Tribal Legislature shall
work together and cooperate in order to promote the best interests
of the Tribe.
