[History: Tribal Act #94-12.176, enacted by Tribal Council
on October 18, 1994.]
This ordinance shall be known as the Grand Traverse Band of
Ottawa and Chippewa Indians Sovereign Immunity Waiver Ordinance.
[History: Tribal Act #94-12.176, enacted by Tribal Council
on October 18, 1994.]
Unless otherwise required by the context, the following words
and phrases shall be defined as follows:
(a)
"Grand Traverse Band of Ottawa and Chippewa Indians Gaming Enterprise"
means the Grand Traverse Band Econonic Development Corporation created
by the Grand Traverse Band of Ottawa and Chippewa Indians Tribal Resolution
94-12-155 including its officers, employees and directors.
[History: Amended by Tribal Act #21-39.3331, enacted by Tribal
Council Special Session on April 28, 2021.]
(b)
"Gaming Enterprise site" means that area of the Grand Traverse Band
of Ottawa and Chippewa Indians Reservation which has been opened to
the general public for purposes of gaming or which is used by employees
of the Gaming Enterprise during the course of their employment provided
that such area is covered by the liability insurance of the Gaming
Enterprise.
(c)
"Grand Traverse Band of Ottawa and Chippewa Indians" means the federally-recognized
Indian tribe of that name.
(d)
"Grand Traverse Band of Ottawa and Chippewa Indians Tribal Council"
means the governing body of the Grand Traverse Band of Ottawa and
Chippewa Indians.
(e)
"Claim" means a petition for an award under this ordinance. A claim
may be filed with respect to any injury as defined in this ordinance
and which is expressly covered by the liability insurance of the Gaming
Enterprise without regard to any deductible amount contained in the
insurance policy.
(f)
"Person" means any individual, firm, partnership, corporation, or
association.
(g)
"Dangerous Condition" means a physical aspect of a facility or the
use thereof which constitutes an unreasonable risk to human health
or safety, which is known to exist or which in the exercise of reasonable
care should have been known to exist and which condition is proximately
caused by the negligent acts or omissions of the Gaming Enterprise
in constructing or maintaining such facility.
(1)
For the purpose of this subsection, a dangerous condition should
have been known to exist if it is established that the condition had
existed for such a period of time and was of such a nature that, in
the exercise of reasonable care, such condition and its dangerous
character should have been discovered.
(2)
A dangerous condition shall not exist solely because the design
of any facility is inadequate nor due to the mere existence of wind,
water, ice or temperature by itself, or by the mere existence of nature
physical condition.
(3)
Nothing in this section shall preclude an accumulation of water,
snow or ice from being found to constitute a dangerous condition when
the Gaming Enterprise fails to use existing means available to it
for the removal of such accumulation and when the Gaming Enterprise
had notice of such accumulation and reasonable time to act.
(h)
"Employee" means a part- or full-time employee or an agent or contractor
of the Gaming Enterprise, when acting during the course and within
the scope of their employment. This term includes officers and directors
of the Gaming Enterprise when they are acting to fulfill their duties
to the Gaming Enterprise. This does not include agents or representatives
of the United States or of the State of Michigan or any of their political
subdivisions.
(i)
"Injury" means death, harm to a person, or damage to or loss of property
which, if inflicted by a person under Michigan state law or Tribal
law, would constitute a tort and which is expressly covered by the
liability insurance of the Gaming Enterprise without regard to any
deductible amount contained in the insurance policy.
(j)
"Award" means money damages which the Tribal court determines are
payable to compensate for any injury recognized under this ordinance.
(k)
"Actual damages" means the ascertainable loss of money or property
sustained as a result of an injury, provided that such injury is covered
by the liability insurance of the Gaming Enterprise without regard
to any deductible amount contained in the insurance policy.
(l)
"Grand Traverse Band of Ottawa and Chippewa Indians Tribal Court"
means the judicial branch of the Tribe including, but not limited
to, the Grand Traverse Band Economic Development Corporation Division
and such other divisions as the Tribal Council may establish by resolution.
[History: Amended by Tribal Act #21-39.3331, enacted by Tribal
Council Special Session on April 28, 2021.]
[History: Tribal Act #94-12.176, enacted by Tribal Council
on October 18, 1994.]
This ordinance shall become effective immediately upon approval
by the Tribal Council.
[History: Tribal Act #94-12.176, enacted by Tribal Council
on October 18, 1994.]
(a)
The sovereign immunity of the Tribe shall continue except to the
extent that it is expressly waived by this ordinance. Members of the
Tribal Council remain immune from suit for actions taken during the
course and within the scope of their duties as members of the Tribal
Council.
(b)
The Grand Traverse Band Economic Development Corporation may be sued
solely in the Grand Traverse Band of Ottawa and Chippewa Indians Tribal
Court. The Tribe has not waived the immunity of the Grand Traverse
Band Economic Development Corporation from suit in state or federal
court.
[History: Amended by Tribal Act #21-39.3331, enacted by Tribal
Council Special Session on April 28, 2021; and by Tribal Act #21-39.3331,
enacted by Tribal Council Special Session on April 28, 2021]
(c)
The sovereign immunity of the Grand Traverse Band Economic Development
Corporation is waived in the following instances:
[History: Amended by Tribal Act #21-39.3331, enacted by Tribal
Council Special Session on April 28, 2021.]
(1)
Injuries proximately caused by the negligent acts or omissions
of the Grand Traverse Band Economic Development Corporation;
(2)
Injuries proximately caused by the condition of any property
of the Grand Traverse Band Economic Development Corporation provided
the claimant establishes that the property was in a dangerous condition;
(3)
Injuries proximately caused by the negligent acts or omissions
of Tribal security officers arising out of the performance of their
duties during the course and within the scope of their employment.
[History: Tribal Act #94-12.176, enacted by Tribal Council
on October 18, 1994.]
(a)
No rule of law imposing absolute or strict liability shall be applied
in any claim for injuries under this ordinance.
(b)
No award or other judgment imposing punitive or exemplary damages
shall be applied in any claim for injuries under this ordinance.
(c)
No award for loss of consortium shall be applied in any claim for
injuries under this ordinance.
(d)
No award for pain and suffering or mental anguish shall be applied
except where such award does not exceed 50% of the actual damages
sustained and provided that any such award is expressly covered by
the liability insurance of the Gaming Enterprise without regard to
any deductible amount contained in the insurance policy.
[History: Tribal Act #94-12.176, enacted by Tribal Council
on October 18, 1994; amended by Tribal Act #21-39.3331, enacted by
Tribal Council Special Session on April 28, 2021.]
Volunteers duly authorized by the Tribe or Grand Traverse Band
Economic Development Corporation, in performing any of their authorized
functions or duties or training for such functions or duties, shall
have the same degree of responsibility for their actions and enjoy
the same immunities from suit as the Grand Traverse Band Economic
Development Corporation.
[History: Tribal Act #94-12.176, enacted by Tribal Council
on October 18, 1994.]
(a)
This ordinance does not immunize employees of the Grand Traverse
Band Economic Development Corporation from individual liability for
the full measure of the recovery applicable to a claimant if it is
established that their conduct exceeded the scope of their employment
or authority.
[Amended by Tribal Act #21-39.3331, enacted by Tribal Council
Special Session on April 28, 2021.]
(b)
Claims for individual liability arising out of conduct which is found
to exceed the scope of employment and which arise on the Gaming Enterprise
site shall be heard only in the Tribal court.
[History: Tribal Act #94-12.176, enacted by Tribal Council
on October 18, 1994; amended by Tribal Act #21-39.3331, enacted by
Tribal Council Special Session on April 28, 2021.]
If the Tribal court determines that the injuries claimed arose
from an act or omission of an employee of the Gaming Enterprise which
was willful and wanton or otherwise outside the scope of employment
or authority of the Grand Traverse Band Economic Development Corporation,
then the Grand Traverse Band Economic Development Corporation may
request and the court may order the individual defendant named in
the claim to reimburse the Gaming Enterprise for such costs and attorney
fees which may have been incurred in the defense of such employee.
[History: Tribal Act #94-12.176, enacted by Tribal Council
on October 18, 1994; amended by Tribal Act #21-39.3331, enacted by
Tribal Council Special Session on April 28, 2021.]
(a)
In any claim concerning a single occurrence, the maximum amount of
any award under this ordinance, including damages, court costs, interest,
and any other costs shall be:
(1)
For any injury to one person, an amount which is in accordance
with the terms of the liability insurance policy of the Grand Traverse
Band Economic Development Corporation applicable to such claim.
(2)
For any injury to two or more persons, an amount in accordance
with the terms of the liability insurance policy of the Grand Traverse
Band Economic Development Corporation applicable to such claim.
[History: Tribal Act #94-12.176, enacted by Tribal Council
on October 18, 1994.]
(a)
Claims brought under this ordinance must be preceded by a written
notice filed with the Tribal court by the claimant or the claimant's
representative within 180 days after the claim accrues.
(b)
The notice shall contain the following:
(1)
The name and address of the claimant and the name and address
of the claimant's attorney, if any;
(2)
A concise statement of the factual basis of the claim including
the date, time, place, and circumstances of the act, omission, or
condition complained of;
(3)
The name of any Gaming Enterprise employee involved, if known;
(4)
A concise statement of the nature and the extent of the injury
claimed to have been suffered;
(5)
A statement of the amount of monetary damages that is being
requested; and
(6)
When the claim is one for death by negligent act or omission,
the notice may be presented by the personal representative, surviving
spouse, or next of kin of the deceased.
(c)
All claims must be filed along with a proof of compliance with this
subsection.
(d)
The Tribal court clerk shall, within five days of the filing, refer
all claims for less than $5,000 in actual damages to the Grand Traverse
Band Economic Development Corporation for resolution on an informal
basis.
[Amended by Tribal Act #21-39.3331, enacted by Tribal Council
Special Session on April 28, 2021.]
[History: Tribal Act #94-12.176, enacted by Tribal Council
on October 18, 1994.]
[History: Tribal Act #94-12.176, enacted by Tribal Council
on October 18, 1994.]
Any claim brought under this ordinance shall be determined by
the Tribal Court in accordance with the Tribal law and the principles
of law applicable to similar claims arising under the laws of the
State of Michigan.
[History: Tribal Act #94-12.176, enacted by Tribal Council
on October 18, 1994; amended by Tribal Act #21-39.3331, enacted by
Tribal Council Special Session on April 28, 2021.]
Neither execution nor attachment shall issue against the Grand
Traverse Band Economic Development Corporation, Gaming Enterprise,
or the Tribe in any claim for injury or proceedings initiated under
this ordinance.
[History: Tribal Act #94-12.176, enacted by Tribal Council
on October 18, 1994.]
(a)
If any part of this ordinance is invalidated by the Grand Traverse
Band of Ottawa and Chippewa Indians Tribal Court, all valid parts
that are severable from the invalid part remain in effect.
(b)
If a part of this ordinance is invalid in one or more of its applications,
that part remains in effect in all valid applications that are severable
from the invalid applications.
[History: Tribal Act #94-12.176, enacted by Tribal Council
on October 18, 1994.]
(a)
The prevailing party in a tort action shall be entitled to recover
attorney fees and expenses from the losing party.
(b)
The prevailing party's attorney fees and expenses shall then
be remitted to the Tribal government to fund the operations and costs
of the Tribal Court in accord with the rules and regulations applicable
to the Tribal budgetary process.
[History: Tribal Act #94-12.176, enacted by Tribal Council
on October 18, 1994.]
(a)
In construing this ordinance, the present tense includes the past
and future tenses, and the future tense includes the present tense.
(b)
When reference is made to any portion of this ordinance, the reference
shall apply to all amendments made hereafter.
(c)
All Tribal ordinances or other laws inconsistent with this ordinance
are hereby repealed. To the extent that this ordinance provides other
than any other Tribal law governing tort claims against the Grand
Traverse Band Economic Development Corporation, this ordinance shall
govern.
[Amended by Tribal Act #21-39.3331, enacted by Tribal Council
Special Session on April 28, 2021.]
(d)
Section headings shall be used only for reference to format and not
in construing this ordinance.
