SUBPART 1
(Reserved)
SUBPART 1A
General Provisions for Tribally-Owned LLCs
[History: Tribal Act #11-29.2313, enacted by Tribal Council February 15, 2012.]
There are hereby authorized to be created limited liability companies wholly-owned by the Tribe, with the Tribe 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 Section 811. 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 LLCs shall be considered to be instrumentalities of the Tribe.
[History: Tribal Act #11-29.2313, enacted by Tribal Council February 15, 2012.]
There are hereby authorized to be created by resolution of the Board of Directors of a Tribally-owned limited liability company or of a Tribal corporation, or of a wholly-owned subsidiary of such a Tribally-owned LLC or Tribal corporation, subsidiary LLCs to be wholly-owned by the parent Tribally-owned LLC or parent Tribal corporation, which shall be instrumentalities of the Tribe. The organizer of such a Tribally-owned subsidiary LLC shall file in accordance with Section 811. 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.
[History: Tribal Act #11-29.2313, enacted by Tribal Council February 15, 2012.]
The limited liability companies established under Sections 869 and 870 shall be considered to be instrumentalities of the Tribe, and their officers and employees considered officers and employees of the Tribe, created for the purpose of carrying out authorities and responsibilities of the Tribal Council for economic development of the Tribe and the advancement of its Tribal members. Such LLCs, their directors, officers, managers and employees shall, therefore, be entitled to all of the privileges and immunities enjoyed by the Tribe, including but not limited to immunities from suit in federal, state and Tribal courts and from federal, state, and local taxation or regulation.
[History: Tribal Act #11-29.2313, enacted by Tribal Council February 15, 2012.]
(a) 
No ownership interest in any LLC in which the Tribe is an owner may be alienated unless approved by a duly adopted resolution of 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 or parent Tribal corporation.
(b) 
All interests in any Tribally-owned LLC shall be held by and for a Tribe, 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 Tribe shall have any personal ownership interest in any LLC organized under this Part 9, whether by virtue of such person's status as a member of a Tribe, as an officer of a Tribe's government, or otherwise.
[History: Tribal Act #11-29.2313, enacted by Tribal Council February 15, 2012.]
Any LLC created pursuant to this Part 9, including subsidiary LLCs, may form or own interests or shares in partnerships, corporations, or other limited liability companies with other governmental or non-governmental entities or persons under the laws of the Tribe 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 LLCs or Tribally-owned subsidiary LLCs created pursuant to this Part 9.
[History: Tribal Act #11-29.2313, enacted by Tribal Council February 15, 2012.]
All Tribally-owned LLCs, 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 Tribe's government, including how the LLC will contribute to tribal economic policy and further the goals of self-determination and economic self-sufficiency.
[History: Tribal Act #11-29.2313, enacted by Tribal Council February 15, 2012.]
(a) 
The limited liability companies established under Sections 869 and 870 may only waive the privileges and immunities granted under Section 871 in the following manner:
(1) 
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 include written language in any contract or agreement explicitly limiting said waiver to the specific dollar amount of the agreement;
(B) 
Any contract or agreement with such waiver or consent to suit language shall be reviewed and approved by an attorney representing the Tribe or the Tribally-owned LLC prior to contract execution;
(C) 
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 Tribe, nor shall it in any way be deemed a waiver of any of the rights, privileges and immunities of the Tribe;
(D) 
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 Tribe 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 Tribe in order to satisfy the obligations of the LLC; including assets of the Tribe leased, loaned, or assigned to the LLC for its use, without transfer of title; and
(E) 
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.
(b) 
The sovereign immunity of the LLC shall not extend to actions against the LLC by the Tribe acting as owner, or, in the case of a subsidiary LLC created pursuant to this Part 9, by the parent LLC acting as owner, pursuant to Section 869.
(c) 
The LLC must follow the method mandated by Section 878.
(d) 
Notwithstanding Subsection (a)(1) above, the LLC may also specifically grant a limited waiver of its immunity from suit for participation in the Small Business Administration 8a program in the manner required by federal regulations governing the program.
SUBPART 2
Special Formation Requirements for Tribally-Owned LLCs
[History: Tribal Act #11-29.2313, enacted by Tribal Council February 15, 2012.]
(a) 
Tribally-owned LLCs. The Chairperson or any other member of the Tribal Council who is not the Secretary of the Tribal Council shall be the organizer of any Tribally-owned limited liability company.
(b) 
Subsidiaries of Tribally-owned LLCs. 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 Tribe. The C.E.O. 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.
(c) 
Unless a delayed effective date is specified:
(1) 
The existence of a Tribally-owned LLC begins when the Articles of Organization have been approved by resolution of the Tribal Council in accordance with Section 869 and have been filed with the Office of the Secretary in accordance with Section 811.
(2) 
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 Secretary in accordance with Section 811.
(3) 
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 C.E.O. or manager of the Tribally-owned subsidiary or C.E.O. of the parent Tribally-owned LLC and have been filed with the Office of the Secretary in accordance with Section 811.
(4) 
The Articles of Organization of any Tribally-owned LLC or subsidiary thereof, and any amendments thereto, shall be filed with the Office of the Secretary in accordance with Section 811, and shall state at a minimum the items set forth in Section 879 below.
[History: Tribal Act #11-29.2313, enacted by Tribal Council February 15, 2012.]
(a) 
As set forth in Section 875, Tribally-owned limited liability companies established under Sections 869 and 870 may grant a limited waiver of sovereign immunity in order to promote economic development through commercial transactions for which such a waiver is necessary and beneficial to the Tribe. The method for granting a limited waiver of sovereign immunity through the above-mentioned entities is as follows:
(1) 
The sovereign immunity of a Tribally-owned LLC may be waived only by:
(A) 
A resolution adopted by the Board of Directors of the Tribally-owned LLC for the specific purpose of granting a waiver, or in the case of owner-managed Tribally-owned subsidiary LLC, by the owner's Board of Directors; and
(B) 
The language of the waiver must be explicit and state that said waiver be specifically limited to the dollar amount of the agreement; and
(C) 
The waiver must be contained in a written contract or commercial document to which the LLC is a party.
(2) 
Waivers of sovereign immunity by resolution of the Board of Directors may be granted only when necessary to secure a substantial advantage or benefit to the Tribally-owned LLC. Waivers of sovereign immunity by resolution may not be general but must be specific and limited as to duration, grantee, transaction, property, court having jurisdiction, applicable law, and shall be specifically limited to the dollar amount of the agreement.
SUBPART 3
Management of Tribally-Owned LLCs
[History: Tribal Act #11-29.2313, enacted by Tribal Council February 15, 2012.]
(a) 
All Tribally-owned LLCs formed pursuant to Section 869 of this Code 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 LLCs operating agreement, subject to requirements set forth in this Part 9.
(b) 
All Tribally-owned subsidiary LLCs formed pursuant to Section 870 of this Code, including Tribally-owned second tier subsidiary LLCs, 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.
[History: Tribal Act #11-29.2313, enacted by Tribal Council February 15, 2012.]
(a) 
Appointment of directors. The Tribal Council shall retain the power to appoint the Board of Directors for Tribally-owned LLCs wholly-owned by the Tribe. For all such LLCs, including subsidiary tribal corporations, that may have a Board of Directors, the Board of Directors shall be comprised of members of the Tribal Council, Tribal members, and/or individuals experienced in business and Tribal government. In addition to any requirements set forth in the company's operating agreement, Board Members of Tribally-owned LLCs shall meet the following requirements:
(1) 
Be at least 25 years old.
(2) 
Possess a Bachelor's Degree in a related field; or possess a high school diploma (or a general equivalency diploma) and at least five years of business, financial, legal, government contracting or industry experience; or be a currently elected Tribal Council member.
(3) 
Have no felony convictions.
(4) 
Submit to a background investigation which yields no results showing convictions involving tax evasion, tax fraud, embezzlement or moral turpitude.
(b) 
Removal of directors. A director of an LLC wholly-owned by the Tribe may be removed with or without cause by the Tribal Council; or as specified in the LLCs operating agreement.
(1) 
"Cause" shall mean any the following:
(A) 
Breach of a fiduciary duty.
(B) 
Conviction of a felony.
(C) 
Conviction of a misdemeanor that, in the determination of the Tribal Council, adversely affects the company or such Director's ability to perform his or her duties.
(D) 
Adjudication as incompetent by a court of competent jurisdiction.
(E) 
Misappropriation of corporate funds or other acts of dishonesty with respect to the company.
(F) 
Gross negligence, fraud, deceit or intentional misconduct that had a material adverse effect on the Company.
(2) 
Loans to directors. An LLC wholly-owned, directly or indirectly, by the Tribe may not lend money to or guarantee the personal obligation of a director, officer, or employee of the corporation under any circumstances.
SUBPART 4
Decisions and Voting for Tribally-Owned LLCs
[History: Tribal Act #11-29.2313, enacted by Tribal Council February 15, 2012.]
(a) 
The ownership interests in all Tribally-owned LLCs shall be voted in accordance with the Tribal Council's procedures for voting and passing Tribal resolutions.
(b) 
The ownership interests in a Tribally-owned subsidiary LLC, including Tribally-owned second tier subsidiary LLCs, shall be voted as provided in the company's operating agreement.
SUBPART 5
Distributions for Tribally-Owned LLCs
[History: Tribal Act #11-29.2313, enacted by Tribal Council February 15, 2012.]
(a) 
Subject to the Tribe's ultimate ownership right to all income generated by its Tribally-owned LLCs, a Tribally-owned LLC shall distribute the net income of the LLC to the Tribe 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 LLCs business in a reasonably prudent manner and as recommended by the Board of Directors, subject to further limitations set forth in Section 838 and in the operating agreement.
(b) 
Subject to the parent Tribally-owned LLC's or parent Tribal corporation's ultimate ownership right to all income generated by its subsidiary LLCs, a subsidiary LLC created pursuant to Section 870 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 and duly approved by its Board of Directors, except that a Tribally-owned LLC may retain reserves necessary to carry on the LLCs business in a reasonably prudent manner and as recommended by the Board of Directors, subject to further limitations set forth in Section 838 and in the operating agreement.
SUBPART 6
Additional Reports and Audits
[History: Tribal Act #11-29.2313, enacted by Tribal Council February 15, 2012.]
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 Tribe, whether directly or indirectly, or an LLC in which the Tribe owns the majority interest, be audited by an independent auditor hired by the Tribe, who shall have the absolute right to require access to all of the LLC's records and documents necessary for such an audit.
[History: Tribal Act #11-29.2313, enacted by Tribal Council February 15, 2012.]
(a) 
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 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 Tribe or anticipated distributions to the Tribe.
SUBPART 7
Actions Against Tribally-Owned LLCs
[History: Tribal Act #11-29.2313, enacted by Tribal Council February 15, 2012.]
(a) 
The Tribe, as owner of any Tribally-owned limited liability company organized pursuant to this Code, or in the case of a subsidiary LLC created pursuant to this Part 9, the parent Tribally-owned LLC or Tribal corporation acting as owner, may bring a civil action against the LLC 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:
(A) 
Unlawful; or
(B) 
Has or could cause material harm to the assets of the LLC or the Tribe if no immediate action is taken.
(C) 
Require the distribution of the LLC's surplus net income, to the extent permitted by Section 838.
(2) 
An action against an LLC pursuant to this section by the Tribe or by a parent LLC or corporation, acting as owner, shall not act as a waiver of the Tribe's, or the parent LLC's 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 Section 871, the sovereign immunity of the LLC shall not extend to actions against the LLC by a Tribe acting as owner, or, in the case of a subsidiary LLC created pursuant to this Part 9, by the parent LLC acting as owner.
(4) 
Nothing contained herein shall be construed as authorizing actions of any kind whatsoever against the Tribe.
[History: Tribal Act #11-29.2313, enacted by Tribal Council February 15, 2012.]
The filing of any court action against a Tribally-owned LLC pursuant to this Part 9 must be authorized by the Tribe as owner in the same manner as required in Section 882 for voting on any item properly coming before the Tribe as owner. The request for consideration of the proposed court action may be made by any member of the Tribal Council.
[History: Tribal Act #11-29.2313, enacted by Tribal Council February 15, 2012.]
(a) 
In any action brought under this Part 9, 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
(2) 
Order that funds of the LLC be distributed to a Tribe to the extent permitted by the operating agreement and Section 838 of this Code.