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A RESOLUTION AUTHORIZING THE PRINCIPAL CHIEF TO NEGOTIATE AND EXECUTE A LIMITED WAIVER OF SOVEREIGN IMMUNITY FOR MICROSOFT LANGUAGE LOCALIZATION PROJECT
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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 governmental immunity from suit under federal law; and
WHEREAS, the Cherokee Nation ("Nation") has through inherent sovereign authority and by constitution and tribal law the authority to enter into contractual agreements to benefit the Nation and the citizenry thereof; and
WHEREAS, the Cherokee Nation has entered into a contractual agreement with Microsoft Corporation ("Microsoft") to produce software solutions in the Cherokee language; and
WHEREAS, the Nation has entered into an MOU with Microsoft wherein both parties agreed to share information as needed to achieve this common goal, and both parties acknowledge that confidential information and trade secrets may be shared between the parties pursuant to the MOU; and
WHEREAS, Microsoft and the Nation desire to enter into a non-disclosure agreement that contains provisions for enforceability so that both parties may be assured that if any breaches of the NDA occur the other party will be able to limit the breach and obtain actual damages, including a reasonable attorney fee and costs.
BE IT RESOLVED BY THE CHEROKEE NATION, that for the sole purpose of allowing for enforcement of the terms of the Microsoft Non-Disclosure Agreement ("NDA"), established as set forth in Attachment 1, which is incorporated by reference and made a part of this resolution as if stated herein in full, the Cherokee Nation Council authorizes the Principal Chief to negotiate a limited waiver of sovereign immunity that would permit a suit by Microsoft against the Nation; and
BE IT FURTHER RESOLVED BY THE CHEROKEE NATION that the authorization of the Principal Chief to waive immunity from suit is limited to suits that meet all of the following requirements: (a) suit is filed in the Courts of the Cherokee Nation; and (b) suit is filed by Microsoft to enforce the NDA; and
BE IT FURTHER RESOLVED BY THE CHEROKEE NATION that the authorization of the Principal Chief to waive immunity from suit shall only extend to (a) a suit requesting an injunction to prevent the release of confidential information acquired by the Cherokee Nation pursuant to the MOU; (b) suit to recover actual damages resulting from the Nation's violation of the attached non-disclosure agreement; (c) suit to collect a reasonable attorney fee and actual costs associated with a successful claim against the Nation; and
BE IT FURTHER RESOLVED BY THE CHEROKEE NATION that in the event of an award of monetary damages, the award may be paid out of any assets of the Cherokee Nation, excluding real property and improvements by way of fixtures and excluding funds held in trust by the United States on behalf of the Cherokee Nation and shall not be a lien or encumbrance upon tribal property; and
BE IT FINALLY RESOLVED BY THE CHEROKEE NATION that the Principal Chief is authorized to negotiate and execute an agreement on behalf of the Nation that would waive the sovereign immunity of the Nation subject to the limits stated in this resolution.