Title
A RESOLUTION AUTHORIZING THE WAIVER OF SOVEREIGN IMMUNITY FOR SMARTNET HEALTH INFORMATION SHARING SYSTEM
Body
WHEREAS, the Cherokee Nation since time immemorial has exercised the sovereign rights of self-government on behalf of the Cherokee people;
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;
WHEREAS, being a federally recognized Indian Tribe, the Cherokee Nation enjoys governmental immunity from suit under federal and tribal 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 Health Department, a division of the Executive Branch of the Nation, wishes to enter into a contractual agreement, known as the SMRTNET Member Agreement, with other local hospitals, clinics, and other local health care providers to share confidential health information as needed to facilitate proper patient care; and
WHEREAS, the other parties to the SMRTNET Member Agreement have requested a limited waiver of sovereign immunity from the Nation so that the agreement may be enforced if necessary;
BE IT RESOLVED BY THE CHEROKEE NATION, that for the sole purpose of allowing for enforcement of the terms of the SMRTNET Member Agreement, 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 agrees to a limited waiver of sovereign immunity, only if all of the following conditions are met:
(1) The entity seeking to bring suit against the Nation is a party to the SMRTNET Member Agreement and the Nation did not object to the admission of such party to SMRTNET, and
(2) The claim is for breach of contract and seeks only compensatory damages resulting from Nation's noncompliance with the attached agreement, provided that Nation's waiver of sovereign immunity in an action for compensatory damages shall be limited to damages incurred prior to the date of the termination of the attached agreement, and
(3) That in the event of an award of compensatory 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.
BE IT FURTHER RESOLVED BY THE CHEROKEE NATION, that nothing herein shall be construed as a waiver of immunity from suit seeking punitive or any other form of damages or as a waiver extended for the benefit of any entity, person, partnership, or firm whatsoever, other than a party to the SMRTNET Member Agreement to whose admission to SMRTNET the Nation did not object.
BE IT FURTHER RESOLVED BY THE CHEROKEE NATION, that this waiver 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 Cherokee Nation's sovereign immunity is and shall be reserved.
BE IT FINALLY RESOLVED BY THE CHEROKEE NATION, that the Principal Chief is authorized to execute an agreement on behalf of the Nation pursuant to which the Nation would not object or cause the Cherokee Nation Health Department to object to the contract known as the SMRTNET Member Agreement being governed by and in accordance with the Laws of Oklahoma or the United States of America; to the jurisdiction of the Courts of the State of Oklahoma or the United States of America, or to the venue of any state or federal court in Oklahoma in connection with an action by a party to the SMRTNET Member Agreement to whose admission to SMRTNET the Nation did not object, to enforce its rights under the SMRTNET MEMBER AGREEMENT.