Title
AN ACT AMENDING LA 23-04 RELATING TO CHEROKEE NATION SOVEREIGN IMMUNITY AND DELEGATION OF AUTHORITY TO EXECUTE WAIVER FOR BUSINESS ACTIVITIES
Body
BE IT ENACTED BY THE CHEROKEE NATION:
Section 1. Title and Codification
Example: This act shall be known as the Sovereign Immunity Act and codified as (Title) ____ (Section) ____ of the Cherokee Nation Code
Annotated.
Section 2. Purpose
To clarify Cherokee Nation Sovereign Immunity and authorize the Principal Chief to waive sovereign immunity on a limited basis for business transactions of Cherokee Nation-owned Business Entities in order to better fulfill the duties prescribed by the Cherokee Nation Constitution.
Section 3. Legislative History
None.
Section 4. Definitions
For purposes of this Title:
a) Act means an enactment of the Council as provided in the Constitution.
b) Business Entity means any business entity in which the Nation is a majority owner.
c) Nation means Cherokee Nation.
d) Resolution means an enactment of the Council as provided in the Constitution.
e) Sovereign Immunity means the preclusion of bringing suit against the government without its consent.
Section 5. Sovereign Immunity
a) The Nation is a Federally Recognized Indian Nation existing from time immemorial and retains the inherent right to preclude lawsuits under the doctrine of sovereign immunity.
b) The Nation does not consent to lawsuits in any court except by Act or Resolution.
c) The Nation has the inherent right to waive, and grant authority to waive sovereign immunity with limitations as to time, place, manner, subject, and any other restrictions desired.
Section 6. Delegation of Authority As To Business Entities.
The Principal Chief is authorized to execute a waiver of sovereign immunity and/or to agree not to raise the defense of sovereign immunity as to a Business Entity only as follows:
a) All waivers shall be in writing and signed by the Principal Chief and verified signed by the Secretary-Treasurer. A copy shall be filed and indexed in the Office of the Principal Chief and with the office of the Tribal Council. This signature authority shall not be delegated.
b) A waiver may be included in an agreement or contract containing other terms.
c) Except as provided in paragraph (e) All waivers shall contain provisions limiting:
(1) Who may bring a claim: Only parties to a contract shall be eligible to bring a claim.
(2) Type of claims allowed: Any waiver shall be limited to obligations or rights arising under a written contract or agreement in a breach of contract claim.
(3) Types of relief or damages: The waiver shall be specifically limited to an award of actual or liquidated damages under the terms of the agreement. The waiver shall not allow recovery from the Business Entity for punitive or exemplary damages. Nor shall the waiver allow recovery from any elected officials, officers or employees of the Cherokee Nation for monetary damages, punitive or exemplary damages, court costs or attorney fees.
(4) Choice of forum: Preference for jurisdiction of lawsuits pursuant to a waiver shall be filed, subject to a court asserting jurisdiction, first in Cherokee Nation courts, second in federal courts, third in state court.
(5) Choice of law: Preference of applicable law shall be prioritized as follows: Nation law first, Federal law second, and State law third.
(6) Duration of the waiver: Waivers shall be limited to the duration of the contract.
d) Any waiver granted under this section shall not be canceled, terminated, or withdrawn except by agreement of the party entitled to the waiver.
e) A waiver conforming to the minimum "sue and be sued" requirements of the Small Business Administration for participation in the 8(a) Business Development program, 13 CFR 124.109 (c)(1), as amended, is exempt from the limits of paragraph c)
f) A waiver under this Act shall only apply to contracts with involving liability or value of under five hundred thousand dollars ($500,000)
Section 7. Delegation of Authority As To Cherokee Nation.
In addition to all provisions in Section 6, any waiver of the sovereign immunity of the Cherokee Nation as a government shall be limited to:
a) Actual damages resulting from legislative action which has a material adverse effect on an Business Entity's ability to perform obligations to a party to a contract under the contract.
b) Any contractual obligation of an Business Entity in the event that the Nation terminates or dissolves the Business Entity or materially and unreasonably increases restrictions on the Business Entity's capacity to engage in its operations.
c) Declaratory judgment interpreting the scope and validity of a waiver.
Section 8. Provisions as cumulative
The provisions of this act shall be cumulative to existing law.
Section 9. Severability
The provisions of this act are severable and if any part of provision hereof shall be held void the decision of the court so holding shall not affect or impair any of the remaining parts or provisions of this act.
Section 10. Emergency declared
It being immediately necessary for the welfare of the Cherokee Nation, the Council hereby declares that an emergency exists, by reason whereof this act shall take effect and be in full force after its passage and approval.