[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
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[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.
(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
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[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
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[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
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[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
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[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:
(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.