This chapter shall be known as the "Nottawaseppi Huron Band
of the Potawatomi Limited Liability Company Code."
[Amended 6-15-2017 by Res. No. 06-15-17-18]
A.
This chapter is enacted pursuant to the Nottawaseppi Huron Band of
the Potawatomi's inherent sovereign powers and as specifically
authorized by the Constitution of the Band.
B.
The purpose of this chapter is to provide for economic development
of the Nottawaseppi Huron Band of the Potawatomi and its members by:
(1)
Providing the legal framework for organizing individually owned business
entities in order to expand the private business sector either on
or off the Reservation; and
(2)
Authorizing the formation of wholly owned tribal business entities
for managing the Band's nongaming economic activities separate
from the general affairs of its Tribal Council, with the ability to
enter into legally binding contracts and commercial relationships,
including the ownership or formation of subsidiary entities, without
the need for formal Tribal Council action; and
(3)
Authorizing the formation of limited liability companies by individuals
or the Band for the purpose of organizing entities whose primary purpose
is the pursuit of charitable or other nonprofit purposes.
C.
By the adoption of this chapter, the Band does not waive its sovereign
immunity or consent to suit in any court, federal, tribal or state,
and neither the adoption of this chapter, nor the organization and
creation of any limited liability company hereunder, shall be construed
to be a waiver of the sovereign immunity of the Band or a consent
to suit against the Band in any court.
This chapter shall apply to all limited liability companies
organized under its provisions or which elect to accept the provisions
of this chapter.
The companies organized and created under this chapter shall
be subject to this chapter, and all other laws of the Band. By organizing
and creating a company under this chapter, the company and its owners
shall be considered to have entered into a consensual relationship
with the Band and agree to be subject to the full extent of the Band's
legislative, regulatory and adjudicatory jurisdiction. Unless displaced
by particular provisions of this chapter or other tribal law, the
principles of law and equity supplement this chapter.
Terms used in this chapter have the following meanings:
The articles filed under § 4.2-15 and those articles as amended or restated.
The Nottawaseppi Huron Band of the Potawatomi.
A domestic corporation for profit organized under the law
of the Band or a foreign corporation formed under the laws of any
other jurisdiction.
A direct or indirect transfer by a limited liability company
of money or other property to or for the benefit of its owners in
respect of their interests.
Includes an individual, a general partnership, limited partnership,
a limited liability company, a trust, an estate, an association, a
corporation, or any other legal or commercial entity, whether formed
under the law of the Band or formed under the laws of any other jurisdiction.
[Amended 6-15-2017 by Res. No.
06-15-17-18]
Refers to limited liability companies, corporations and limited
partnerships organized under the laws of a jurisdiction other than
the Band.
An organization formed under this chapter.
[Amended 7-20-2017 by Res. No. 07-20-17-08]
An owner's rights in the limited liability company,
including rights to distributions, profits and losses, and to participate
in management, as specified in the operating agreement.
A limited liability company.
An owner or owners holding more than 50% of the total voting
interests in the limited liability company excluding any interest
which is not to be counted as voting on a matter as described elsewhere
in this chapter.
The person(s) or entity(ies) designated to manage the LLC
pursuant to the articles of organization and operating agreement.
The Office of the Secretary of the Tribal Council located
on the Pine Creek Indian Reservation, or that individual's designee.
An agreement in writing among all of the owners as to the
conduct of the business of a limited liability company and its relationships
with its owners.
The person(s) or entity(ies) which signs and delivers the
articles of organization for filing to the Office of the Tribal Council
Secretary.
A person that has been admitted to membership in a limited liability company or has ownership interest in a limited liability company. The term does not include a person that has dissociated as a member under § 4.2-28.
Includes a natural person, tribal entity and an organization
such as a general partnership, limited partnership, a domestic or
foreign limited liability company, a trust, an estate, an association,
or a corporation.
All lands under the jurisdiction of the Band, including all
lands within the boundaries of the Band's Reservation and all
lands held in trust by the United States of America for the benefit
of the Band.
The individual duly elected to the position of Secretary
on the Tribal Council; or that individual's designee.
Includes a state, territory, or possession of the United
States and the District of Columbia.
The Constitution of the Nottawaseppi Huron Band of the Potawatomi.
A corporation wholly owned by the Band and duly formed pursuant
to a Section 17 charter, a band resolution, a Business Corporation
Code adopted by the Band, or other law.
The Tribal Council as established by Article IV of the Tribal Constitution as the governing body of the Band.
The Tribal Judiciary as established by Article XI of the Tribal Constitution, or any successor provisions.
Includes the Band, the Tribal Council, a general partnership,
limited partnership, a domestic or foreign limited liability company,
a trust, an estate, an association, a corporation, a program, a department,
an administrative agency or any other legal, commercial or governmental
entity of the Band.
A limited liability company wholly owned by the Band with
the Band as its sole owner.
A limited liability company wholly owned by a tribally owned
subsidiary LLC.
A limited liability company wholly owned by a tribally owned
LLC or by any other tribal entity that is wholly owned by the Band.
[Amended 6-15-2017 by Res. No.
06-15-17-18]
Land held in trust by the United States for the benefit of
the Band or its members.
A.
The name of a limited liability company as set forth in its articles of organization must contain the words "limited liability company" or end with the abbreviation "L.L.C." or "LLC." The name may not contain language stating or implying that the limited liability company is organized for any purpose other than that permitted under § 4.2-9, below.
B.
The name of a domestic LLC shall be distinguishable from any LLC
or corporation previously organized under the laws of the Band.
A.
A limited liability company's registered agent is the company's
agent for receiving service of process, notice, or demand required
or permitted by law to be served on the company under the laws of
the Band.
B.
Each LLC shall continuously maintain a registered office and a registered
agent. The registered office may, but need not, be the same as any
of its places of business. The agent may be the same person then serving
in a designated office of the Band rather than a specified person
if the Band is an owner in the LLC of which the Band's officer
is the appointed agent.
C.
An LLC may change its registered office or registered agent, or both,
by filing a written notice of change containing the name of its registered
agent and the street address of its registered office, as changed,
with the Office of the Tribal Council Secretary and paying the filing
fee.
D.
The registered agent of an LLC may resign as a registered agent by
delivering to the Office of the Tribal Council Secretary and filing
a written statement of resignation and the appointment by the LLC
of another registered agent.
A.
The Band shall form or become an owner of a tribally owned LLC formed
under this chapter only upon approval of such action by duly enacted
resolution of the Tribal Council.
B.
If the Band or a tribal entity is an owner of an LLC formed under this chapter, any action which the Band is required or permitted to take with respect to any vote, approval, consent, appointment, direction, or other matter shall be taken as specified in § 4.2-64 of this chapter or, as to actions related to the managers of a manager-managed LLC, as stated in the LLC's operating agreement approved by the Tribal Council or the governing body of the tribal entity, as the case may be.
[Amended 6-15-2017 by Res. No.
06-15-17-18]
C.
If the Band is the sole owner of an LLC formed under this chapter,
such tribally owned LLC shall possess all of the privileges and immunities
of the Band, including the Band's sovereign immunity from suit
except to the extent otherwise provided in its operating agreement.
D.
If a tribally owned LLC, of which the Band or a tribal entity is
the sole member, forms a tribally owned subsidiary LLC, of which the
tribally owned LLC or other tribal entity is the sole member, such
tribally owned subsidiary LLC shall possess all of the privileges
and immunities of the Band, including the Band's sovereign immunity
from suit except to the extent otherwise provided in its operating
agreement.
[Amended 6-15-2017 by Res. No.
06-15-17-18]
E.
If a subsidiary tribally owned LLC, of which the tribally owned LLC
is the sole member, forms a tribally owned second tier subsidiary
LLC, such tribally owned second tier subsidiary LLC shall possess
all of the privileges and immunities of the Band, including the Band's
sovereign immunity from suit except to the extent otherwise provided
in its operating agreement.
[Amended 6-15-2017 by Res. No.
06-15-17-18]
F.
If the Band or a tribal entity is an owner with a majority in interest
in an LLC formed under this chapter, such LLC may possess the privileges
and immunities of the Band, including sovereign immunity from suit,
to the extent allowed by federal law, this chapter or its operating
agreement.
G.
In no event shall any manager who is not an owner of an LLC in which
the Band is an owner, bind the Band in any manner; provided that the
Band's interest as an owner may be bound by manager or owner
actions as stated in this chapter and the operating agreement of the
LLC.
H.
Nothing contained in this chapter shall be construed as creating
any liability or waiving of sovereign immunity of the Band in any
manner; provided that the assets of the LLC in which the Band holds
an interest may be subject to liabilities and claims unless otherwise
provided herein. In no event shall any action taken by the Band as
owner concerning the exercise of any right or privilege or discharge
of any duty with respect to an interest in an LLC be construed as
a waiver of immunity or creation of a liability on the part of the
Band separate and apart from its interests as an owner of the LLC.
[Amended 6-15-2017 by Res. No. 06-15-17-18]
A limited liability company may be organized under this chapter
for any lawful purpose. Unless otherwise provided in its articles
of organization or operating agreement, an LLC organized and existing
under this chapter has the same powers as an individual to do all
things necessary and convenient to carry out its business, including
but not limited to all of the following:
A.
Consent to be sued, complain and defend in its name; provided, however,
that if an LLC is tribally owned, or wholly owned by another entity
which itself is wholly owned by the Band, it shall be entitled to
and shall enjoy the Band's sovereign immunity from suit unless
the operating agreement otherwise provides.
B.
Purchase, take, receive, lease, or otherwise acquire and own, hold,
improve, use, and otherwise deal in or with real, or personal property
or any legal or equitable interest in real or personal property, wherever
situated.
C.
Sell, convey, mortgage, pledge, create a security interest in, lease,
exchange, or otherwise dispose of all or any part of its property.
D.
Lend money, property, and services to, and otherwise assist, its
owners and managers, if any.
E.
Purchase, take, receive, subscribe for, or otherwise acquire and
own, hold, vote, use, employ, sell, mortgage, lend, pledge, or otherwise
dispose of and deal in and with shares or other interests in, or obligations
of, any other enterprise or entity.
F.
Make contracts and guarantees; incur liabilities; borrow money; issue
notes, bonds, and other obligations; and secure any of its obligations
by mortgage or pledge of all or part of its property, franchises,
and income.
G.
Lend money, invest and reinvest its funds, and receive and hold real
or personal property as security for repayment.
H.
Conduct its business, locate offices, and exercise the powers granted
by this chapter inside or outside of the Reservation.
I.
Be a promoter, incorporator, partner, owner, associate, or manager
of any enterprise or entity.
J.
Elect or appoint managers, agents, and employees, define their duties,
and fix their compensation.
K.
Pay pensions and establish pension plans, pension trusts, profit-sharing
plans, and benefit or incentive plans for any or all of its current
or former owners, managers, employees, and agents.
L.
Make donations to and otherwise devote its resources for the public
welfare or for charitable, scientific, educational, humanitarian,
philanthropic, or religious purposes.
M.
Indemnify an owner, manager, employee, officer or agent, or any other
person.
N.
Provide benefits or payments to owners, managers, employees, and
agents of the LLC, and to their estates, families, dependents or beneficiaries
in recognition of the past services of the owners, managers, employees,
and agents of the LLC.
O.
Make payments or contributions, or do any other act not prohibited
by law, that furthers the business of the LLC.
P.
Transact any lawful business that the owners or the managers find
to be appropriate to promote and further the business and affairs
of the limited liability company.
A.
Except as otherwise provided in this chapter, any document required or permitted by this chapter to be delivered for filing in accordance with § 4.2-11 shall be executed by any of the following:
(1)
Any manager, if management of the LLC is vested in a manager or managers,
or by an owner, if management of the LLC is reserved to the owners.
(2)
All organizers of the LLC if the LLC has not been organized. The
name and address of each organizer shall be provided.
(3)
The name of the drafter of the document.
B.
The person executing the document shall sign it and state beneath
or opposite the signature the person's name and capacity in which
the person signs.
C.
The person executing the document may do so as an attorney-in-fact.
Powers of attorney relating to the executing of the document need
not be shown to nor filed with the Office of the Tribal Council Secretary.
A.
The Office of the Tribal Council Secretary shall receive all filings
required under this chapter and maintain the records of such filings
pursuant to this section, including but not limited to the articles
of organization, amended or restated articles, annual reports, names
and addresses of registered offices and agents, and, in the case of
tribally owned LLC's, the operating agreement and amendments
thereto, and other reports required by this chapter.
B.
Upon receipt of a document for filing under this chapter, the Office
of the Tribal Council Secretary shall ensure it meets the requirements
herein and then shall stamp or otherwise endorse the date and time
of receipt of the original, the duplicate copy, and, upon request,
any additional copy received.
C.
If the Office of the Tribal Council Secretary refuses to file a request,
the Office shall return it to the person tendering the document for
filing within five (5) business days after the date on which the document
is received by the Office for filing, together with a brief written
explanation of the reason for refusal.
D.
Any document accepted by the Office of the Tribal Council Secretary
shall be effective at the time of receipt unless a delayed effective
date and/or time not more than ninety (90) days after receipt by the
Office of the Tribal Council Secretary is specified in the document.
E.
Fees. The Office of the Tribal Council Secretary shall impose a reasonable
filing fee for each document filed, initially not to exceed the sum
of $100, and an annual renewal fee initially not to exceed the sum
of $25 during the life of the LLC. The Tribal Council Secretary is
authorized to make regulations providing for reasonable fees for other
services not specifically stated in this chapter or to make changes
in any and all fees for services set out in this chapter. These changes
shall be available through the Office of the Tribal Council Secretary.
Any person may obtain from the Office of the Tribal Council
Secretary, upon request, a certificate of status for either a domestic
or a foreign LLC.
Any person who is adversely affected by the failure or refusal
of any person to execute and file any articles or other document to
be filed under this chapter may petition the Tribal Court to direct
the execution and filing of the articles or other document. Nothing
in this chapter, however, serves to waive any aspect of the Band's
sovereign immunity, and any waiver thereof must be provided explicitly
in the LLC's articles of organization and/or operating agreement.
An LLC may conduct its business, carry on its operations and
have and exercise the powers granted by this chapter, in any sovereign
native band, any state, territory, district or possession of the United
States, or in any foreign jurisdiction.
