Title
A RESOLUTION AUTHORIZING A LIMITED CONSENT TO SUIT FOR A TRANSACTION INVOLVING CHEROKEE NATION AND ORACLE AMERICA, INC.
Body
WHEREAS, the Cherokee Nation since time immemorial has exercised the sovereign rights of self-government in behalf of the Cherokee people; and
WHEREAS, the Cherokee Nation is a federally recognized Indian Nation with a historic and continual government to government relationship with the United States of America; and
WHEREAS, being a federally recognized Indian Tribe, the Cherokee Nation enjoys sovereign immunity from suit under federal and tribal law; and
WHEREAS, the Cherokee Nation has inherent sovereign authority as well as the authority granted by its constitution and tribal law to enter into contractual agreements to benefit the Nation and the citizens thereof; and
WHEREAS, the Cherokee Nation previously entered into a contractual arrangement with Cerner Corporation to provide the Cherokee Nation’s electronic medical record services; and
WHEREAS, since that time, Oracle America, Inc. acquired Cerner Corporation and assumed the contractual obligations under that arrangement; and
WHEREAS, as part of technological advances of the electronic medical record services, the Cherokee Nation now needs its electronic medical record to be cloud-based; and
WHEREAS, Oracle America, Inc. has requested a limited consent to suit from the Nation to allow enforcement of the parties’ obligations with respect to the Cloud Services Agreement only.
BE IT RESOLVED BY THE CHEROKEE NATION, that for the sole purpose of allowing for the enforcement of the terms of the Cloud Services Agreement, attached hereto as Attachment 1 and incorporated by reference as if stated in full herein, the Council of the Cherokee Nation agrees to a limited consent to suit, only if the following conditions are met:
1. The consent is for the sole purpose of enforcement of the Agreement above; and
2. The entity seeking to bring suit against the Nation is Oracle America, Inc.; and
3. The claim is limited to breach of contract or indemnification and seeks only compensatory damages resulting from the Nation's noncompliance with the terms of the Agreement, provided the Nation's limited consent to suit in an action for compensatory damages shall be limited to damages incurred through the date of the termination of the Cloud Service Agreement; and
4. That in the event of an award of compensatory monetary damages, the award may be paid out of any of the Nation's assets, excluding real property and improvements by way of fixtures and excluding funds held in trust by the United States on behalf of the Nation, and shall not be a lien on or encumbrance upon tribal property or allow for recovery from any elected officials, officers, or employees of the Nation for monetary damages, punitive or exemplary damages, court costs, or attorney fees; and
5. The consent shall not be construed as a waiver of immunity from suit seeking attorney's fees, punitive damages, or any other form of damages from any party whatsoever, or as a waiver extended for the benefit of any entity, person, partnership, or firm whatsoever, other than Oracle as a party to the Agreement while seeking enforcement of said Cloud Service Agreement; and
6. The consent shall not be construed to authorize any action or claim against the Nation sounding in tort or any other type of claim or recovery not expressly authorized herein, for which purposes the Nation's sovereign immunity is and shall be reserved; and
7. Oracle as a party to the Agreement may not assign or transfer any rights granted by this consent; and
8. The consent shall not allow recovery from any elected official, officer, or employee of the Nation for monetary damages, punitive or exemplary damages, court costs, attorney fees, or any other damages whatsoever.
BE IT FURTHER RESOLVED that the Principal Chief is authorized to execute an agreement on behalf of the Cherokee Nation pursuant to which the Nation would not object or cause Oracle America, Inc. to object to the Cloud Service Agreement being governed by and in accordance with federal law, and to the jurisdiction of the United States District Court for the Eastern District of Oklahoma, in connect with an action by Oracle America, Inc., who has also agreed to abide by the terms of the Cloud Service Agreement, to enforce its rights under the Cloud Service Agreement.
BE IT FURTHER RESOLVED that the Principal Chief is authorized to execute an agreement on behalf of the Cherokee Nation that disclaims and expressly waives the right to commence action under the Cloud Service Agreement in any Tribal court or to exhaust Tribal court remedies and disclaims and waives the right to raise the defense of forum non conveniens in any action arising out of or relating to this Agreement.
BE IT FURTHER RESOLVED that this Resolution shall in no manner or in any respect operate or be construed to operate to waive or otherwise diminish the sovereign immunity of the Cherokee Nation, except as to allow certain actions against the Cherokee Nation as provided herein.