A.
Tribally owned companies. There are hereby authorized to be created limited liability companies wholly owned by the Band, with the Band as the sole owner. Tribally owned limited liability companies shall be created by a duly adopted resolution of the Tribal Council. The organizer shall file in accordance with § 4.2-11. When the organizer files the articles of organization and the operating agreement of a tribally owned LLC, a certified copy of the resolution authorizing the formation of the LLC and approving the articles shall be included. Tribally owned LLC's shall be considered to be instrumentalities of the Band.
B.
Tribally owned subsidiary companies. There are hereby authorized to be created by resolution of the Board of Directors or by action of a manager, if the tribal entity is manager managed, of a tribally owned limited liability company, a tribal corporation, a tribal entity that is wholly owned by the Band, or of a wholly owned subsidiary of such a tribally owned LLC, tribal corporation, or other tribal entity, subsidiary LLCs to be wholly owned by the parent tribally owned LLC, parent tribal corporation or other parent tribal entity or such wholly, owned subsidiaries, which shall be instrumentalities of the Band. The organizer of such a tribally owned subsidiary LLC shall file in accordance with § 4.2-11. When the organizer files the articles of organization and the operating agreement of the tribally owned subsidiary LLC, a certified copy of a resolution of the Board of Directors of the parent tribally owned LLC or parent tribal corporation authorizing the formation of the subsidiary LLC and approving the articles shall be included. No such resolution is required if the tribally owned subsidiary LLC is manager-managed.
[Amended 6-15-2017 by Res. No.
06-15-17-18]
C.
Privileges and immunities. The limited liability companies established under § 4.2-61A and B shall be considered to be instrumentalities of the Band, and their agents and officers considered agents and officers of the Band, created for the purpose of carrying out authorities and responsibilities of the Tribal Council for economic development of the Band and the advancement of its tribal members. Such LLCs, their agents, directors, officers, managers and employees shall, therefore, be entitled to all of the privileges and immunities enjoyed by the Band, including but not limited to immunities from suit in federal, state and tribal courts and from federal, state, and local taxation or regulation, except to the extent such immunities are not conveyed to, or are expressly limited, under the terms of the articles of organization or operating agreement for any such LLC.
[Amended 6-15-2017 by Res. No.
06-15-17-18]
D.
Ownership.
(1)
No ownership interest in any LLC in which the Band is an owner may
be alienated unless approved by the Tribal Council. Further, no ownership
interest in any tribally owned subsidiary LLC may be alienated unless
approved by a duly adopted resolution of the Board of Directors of
the parent tribally owned LLC, parent tribal corporation or other
parent tribal entity, as the case may be.
[Amended 6-15-2017 by Res. No.
06-15-17-18]
(2)
All interests in any tribally owned LLC shall be held by and for
a Band, or in the case of a wholly-owned subsidiary LLC, by the parent
tribally owned LLC or parent tribal corporation. No individual member
of the Band shall have any personal ownership interest in any LLC
organized under this article, whether by virtue of such person's
status as a member of a Band, as an officer of a Band's government,
or otherwise.
E.
Project companies. Any LLC created pursuant to this article, including
subsidiary LLC's, may form or own interests or shares in partnerships,
corporations, or other limited liability companies with other governmental
or nongovernmental entities or persons under the laws of the Band
or any other jurisdiction ("project companies"); provided, however,
that the partial ownership interest in such project companies shall
not diminish or affect the privileges and immunities of the tribally
owned LLC's or tribally owned subsidiary LLC's created pursuant
to this article.
F.
Purpose of tribally owned LLC's. All tribally owned LLC's,
whether directly or indirectly owned, shall state in their operating
agreement the purpose of the LLC that relates to the overall needs,
priorities, goals, and objectives of the Band's government, including
how the LLC will contribute to tribal economic policy and further
the goals of self-determination and economic self-sufficiency.
G.
Waiver of sovereign immunity. The limited liability companies established under § 4.2-61A and B may only waive the privileges and immunities granted under § 4.2-61C in the following manner:
(1)
The articles of organization and operating agreement for an LLC may authorize suit against the LLC in federal, state and tribal courts and waive immunity from state and local taxation and regulation, without waiving the remaining privileges and immunities granted to such LCC under § 4.2-61C when such limitations on the LLC's sovereign immunity are in furtherance of a tribal business purpose; provided, however, that:
[Added 6-15-2017 by Res. No. 06-15-17-18[1]]
(a)
Any such waiver or consent to suit in the LLC's articles
or operating agreement shall in no way extend to any action against
the Band, nor shall it in any way be deemed a waiver of any of the
rights, privileges and immunities of the Band;
(b)
Any recovery against the LLC shall be limited to the assets
of the LLC (or such portion of the LLC's assets as further limited
by the waiver or consent), and the Band shall not be liable for the
payment or performance of any of the obligations of the LLC, and no
recourse shall be had against any assets or revenues of the Band in
order to satisfy the obligations of the LLC; including assets of the
Band leased, loaned, or assigned to the LLC for its use, without transfer
of title.
(2)
The LLC may specifically grant limited waivers of its immunity from
suit and consent to be sued in Tribal Court or another court of competent
jurisdiction or consent to binding arbitration pursuant to the procedures
and authorities set forth in the LLC's operating agreement; provided,
however, that:
(a)
Any such waiver or consent to suit granted pursuant to the LLC's
operating agreement shall in no way extend to any action against the
Band, nor shall it in any way be deemed a waiver of any of the rights,
privileges and immunities of the Band;
(b)
Any recovery against the LLC shall be limited to the assets
of the LLC (or such portion of the LLC's assets as further limited
by the waiver or consent) and the Band shall not be liable for the
payment or performance of any of the obligations of the LLC, and no
recourse shall be had against any assets or revenues of the Band in
order to satisfy the obligations of the LLC; including assets of the
Band leased, loaned, or assigned to the LLC for its use, without transfer
of title; and
(c)
Any waiver of the LLC's immunities granted pursuant to
the LLC's operating agreement shall be further limited or conditioned
by the terms of such waiver.
(3)
The sovereign immunity of the LLC shall not extend to actions against the LLC by the Band acting as owner, or, in the case of a subsidiary LLC created pursuant to this article, by the parent LLC acting as owner, pursuant to § 4.2-61A.
(4)
The LLC, when waiving its sovereign immunity under § 4.2-61G(2), must follow the method mandated by § 4.2-62B.
[Amended 6-15-2017 by Res. No.
06-15-17-18]
A.
Formation.
(1)
Tribally owned LLC's. The Chairperson of the Tribal Council,
pursuant to authority granted by a duly enacted resolution of the
Tribal Council, shall be the organizer of any tribally owned limited
liability company.
(2)
Subsidiaries of tribally owned LLC's. A board member of the
parent tribally owned LLC or parent tribal corporation shall be the
organizer of any tribally owned subsidiary LLC. If practicable, such
board member shall also be a member of the Band. The CEO of the parent
tribally owned LLC or manager of a tribally owned subsidiary LLC shall
be the organizer of any tribally owned second tier subsidiary LLC.
(3)
Unless a delayed effective date is specified:
(b)
The existence of a subsidiary LLC owned by a tribally owned LLC or tribal corporation begins when the articles of organization have been approved by a resolution of the directors of the parent tribally owned LLC or tribal corporation and have been filed with the Office of the Tribal Council Secretary in accordance with § 4.2-11.
(c)
The existence of a tribally owned second tier subsidiary LLC
owned by a tribally owned subsidiary begins when the articles of organization
have been approved by the CEO or manager of the tribally owned subsidiary
or CEO of the parent tribally owned LLC.
B.
Additional requirements for the articles of organization. As set forth in § 4.2-61G, tribally owned limited liability companies established under § 4.2-61A and B may grant a limited waiver of sovereign immunity in order to promote economic development through commercial transactions for which such a waiver is in furtherance of a tribal business purpose. Except to the extent an LLC's sovereign immunity is expressly limited by the articles of organization or operating agreement for such LLC, the method for granting a limited waiver of sovereign immunity through the above mentioned entities is as follows:
[Amended 6-15-2017 by Res. No.
06-15-17-18]
(1)
The sovereign immunity of a tribally owned LLC may be waived only
by:
(2)
Waivers of sovereign immunity by resolution may not be general but
must be specific and limited as to duration, grantee, transaction,
property or funds of the tribally owned LLC subject to the waiver,
court having jurisdiction and applicable law.
(3)
The board of directors may, by resolution, delegate authority to
the manager or chief executive officer of a tribal owned LLC, to grant
waivers of sovereign immunity in specific types or categories of written
contracts or commercial documents to which the LLC is a party, subject
to limitations and conditions prescribed by the board.
(4)
The board of directors may, by resolution or in the articles of organization
or operating agreement for any subsidiary LLC, delegate authority
to the manager, the chief executive officer, or other officers of
the subsidiary LLC owned by a tribally owned LLC, to grant waivers
of sovereign immunity in specific types or categories of written contracts
or other commercial documents, subject to limitations and conditions
prescribed in resolution, articles or operating agreement, as the
case may be.
A.
Management.
(1)
All tribally owned LLC's formed pursuant to § 4.2-61A of this chapter shall be managed by a board of directors in the manner described in the company's operating agreement. The qualifications, number, terms and method for selecting and removing directors of any tribally owned LLC shall be specified in the LLC's operating agreement.
(2)
All tribally owned subsidiary LLC's formed pursuant to § 4.2-61B of this chapter, including tribally owned second tier subsidiary LLC's, may be owner managed or manager managed. If manager managed, the company's operating agreement shall set forth the qualifications, number, terms and method for selecting and removing such managers. If owner managed, the LLC shall have one or more persons exercising the functions of chief executive officer.
B.
Board of directors.
(1)
Appointment of directors. The Tribal Council shall retain the power
to appoint the board of directors for LLC's wholly owned by the
Band. For all such LLC's, including subsidiary tribal corporations
which may have a board of managers, the board members shall be comprised
of members of the Tribal Council, tribal members, and/or individuals
experienced in business and tribal government.
(2)
Removal of directors. A director of an LLC wholly owned by the Band
may be removed with cause by the Tribal Council; or as specified in
the LLC's operating agreement.
(3)
Loans to directors. An LLC wholly owned, directly or indirectly,
by the Band may not lend money to or guarantee the personal obligation
of a director, officer or employee of the corporation under any circumstances.
A.
Voting.
(1)
The ownership interests in all tribally owned LLC's shall be
voted in the accordance with the Tribal Council's procedures
for voting and passing tribal resolutions.
(2)
The ownership interests in a tribally owned subsidiary LLC, including
tribally owned second tier subsidiary LLC's, shall be voted as
provided in the company's operating agreement.
A.
Distributions of income.
(1)
Subject to the Band's ultimate ownership right to all income generated by its tribally owned LLC's, a tribally owned LLC shall distribute the net income of the LLC to the Band as set forth in a dividend plan adopted in accordance with the operating agreement and duly approved by the Tribal Council, except that a tribally owned LLC may retain reserves necessary to carry on the LLC's business in a reasonably prudent manner and as recommended by the board of directors, subject to further limitations set forth in § 4.2-38 and in the operating agreement.
(2)
Subject to the parent tribally owned LLC's or parent tribal corporation's ultimate ownership right to all income generated by its subsidiary LLCs, any subsidiary LLC created pursuant to § 4.2-61B shall distribute the net income of the LLC to the parent tribally owned LLC or parent tribal corporation as set forth in a dividend plan adopted in accordance with the operating agreement, except that a tribally owned LLC may retain reserves necessary to carry on the LLC's business in a reasonably prudent manner and as recommended by the board of directors, subject to further limitations set forth in § 4.2-38 and in the operating agreement.
A.
Audit. In addition to any owner inspection rights provided in the
operating agreement of a tribally owned LLC, the Tribal Council may
at any time, by process in the manner required to be provided in the
operating agreement, require that any LLC wholly owned by the Band,
whether directly or indirectly, or an LLC in which the Band owns the
majority interest, be audited by an independent auditor hired by the
Band who shall have the absolute right to require access to all of
the LLC's records and documents necessary for such an audit.
B.
Financial, business, and planning information. In addition to any
reports to the owner required by the operating agreement, the board
of directors of each tribally owned LLC, whether owned directly or
indirectly, shall submit the following information to the Tribal Council:
(1)
Copies of any periodic financial statements (including monthly or
quarterly balance sheets, profit and loss statements, and cash flow
statements) as may be prepared in the ordinary course of business,
promptly after such statements are furnished to the LLC's board
of directors;
(2)
A full report of the business activities of the company within one
hundred twenty (120) days after the close of each fiscal year; and
(3)
A proposed annual plan for the following year, including any proposed
funding from the Band or anticipated distributions to the Band.
A.
Court actions by the Band authorized. The Band, as owner of any tribally
owned limited liability company organized pursuant to this chapter,
or in the case of a subsidiary LLC created pursuant to this article,
the parent tribally owned LLC or tribal corporation acting as owner,
may bring a civil action against the LLC, its board of directors or
its officers in the Tribal Court only pursuant to this article to:
(1)
Enjoin temporarily or permanently any action of the LLC that is an
ultra vires act outside the authority of the LLC and that is either:
(2)
An action against an LLC pursuant to this section by the Band or
by a parent LLC or corporation, acting as owner, shall not act as
a waiver of the Band's, or the parent LLC or parent corporation's
sovereign immunity from suit of any kind, including a countersuit
by the tribally owned LLC, its board of directors or its officers.
(3)
In accordance with § 4.2-61C, the sovereign immunity of the LLC shall not extend to actions against the LLC by the Band acting as owner, or, in the case of a subsidiary LLC created pursuant to this article, by the parent LLC acting as owner.
(4)
Nothing contained herein shall be construed as authorizing actions
of any kind whatsoever against the Band.
B.
Tribal approval required. The filing of any court action against a tribally owned LLC pursuant to this article must be authorized by the Band as owner in the same manner as required in § 4.2-64A for voting on any item properly coming before the Band as owner. The request for consideration of the proposed court action may be made by any member of the Tribal Council.
C.
Relief available. In any action brought under this article, the Tribal
Court may, based on clear and convincing evidence set forth in its
findings of fact and conclusions of law:
(1)
Issue a temporary restraining order, preliminary injunction, and
permanent injunctive relief pursuant to the procedures and standards
applicable in the Tribal Court, except that no bond need be posted
for any preliminary injunctive relief; or
