Waiver Of Sovereign Immunity
WARM SPRINGS TRIBAL CODE
WAIVER OF SOVEREIGN IMMUNITY
30.001 Legislative Intent and Findings. It is the intent of the Tribal Council in enacting this Chapter that the Sovereign Immunity of the Tribes be exercised, including the waiver of such exercise, in the best interests of the Tribes and its members and in accordance with the laws of the United States. This is a right inherent in our sovereignty, as set forth in the DECLARATION OF SOVEREIGNTY adopted by our Tribal Leadership in 1992. The Immunity of the Tribes from suit or action, as a sovereign government, is well established and long recognized in judicial decisions, legislative enactments, regulations, and administrative decisions. The Tribal Council expressly finds that Sovereign Immunity is vital to the functioning of the Tribe, and all of its subdivisions and subordinate bodies, including Business Enterprises established pursuant to Section 12 of the Corporate Charter of the Tribes. The Tribal Council also recognizes that the waiver of the Tribes’ Immunity from suit or action is an essential element of entering into certain transactions and is, in and of itself, an exercise of the Tribes’ sovereign authority. As a sovereign attribute of the Tribes’, Immunity from suit or action may only be waived by the members of the Tribe, acting by referendum or by the Tribal Council. The Tribal Council, as the governing body, may specifically delegate the power to waive the Sovereign Immunity of subdivisions and subordinate bodies, but such delegation shall be limited only to the waiver of such Sovereign Immunity of the subdivision or subordinate body, and shall not be a waiver of the Immunity of the Tribes or any other subdivision or subordinate body of the Tribes.
30.002 Definitions. Wherever used in this Chapter, unless a different meaning clearly appears, “Sovereign Immunity” or “Immunity” shall mean the Immunity from suit or action of the Tribes and its subdivisions and subordinate bodies, including Business Enterprises established pursuant to Section 12 of the Corporate Charter of Tribes, and their agents and employees while acting within the scope of their duties, as described by numerous court decisions, including the Supreme Court of the United States of America in the case of Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978).
30.003 Waiver of Sovereign Immunity. The Sovereign Immunity of the Tribes from suit or action may be waived only by:
- The members of the Tribes, at a legally conducted referendum election of the members in accordance with Article VI of the Constitution and By-Laws of the Tribes, or Section 12 of the Corporate Charter;
- The Tribal Council, in accordance with the terms of this Chapter 30 of the Warm Springs
Tribal Code; or
- A subdivision or subordinate body of the Tribes, including Business Enterprises established pursuant to Section 12 of the Corporate Charter of the Tribes, when made in accordance with authority specifically delegated by Resolution of the Tribal Council, and only as to such subdivision or subordinate body.
30.004 Form of Waiver. In order to be effective, no specific form of waiver shall be required, provided that any waiver shall:
- Be included in a written Resolution, in the case of the Tribal Council or a Business Enterprise, or in a written policy determination, if granted by any other body;
- State with specificity the reasons the waiver is granted, the scope of the waiver (which may be limited), and the reasons that granting a waiver is the only workable alternative;
- Shall begin with the following statement: THIS WAIVER OF THE SOVEREIGN IMMUNITY OF THE TRIBES FROM SUIT OR ACTION IS ADOPTED PURSUANT TO THE TERMS OFWARM SPRINGS TRIBAL CODE CHAPTER 30 AND SHALL BE STRICTLY CONSTRUED AND LIMITED TO ITS SPECIFIC TERMS AND THE SPECIFIC WAIVER GRANTED.
30.005 Filing with the Tribal Council, the Office of the Secretary-Treasurer, and the Agency Superintendent. Not less than three (3) business days in advance of entering into any waiver of Sovereign Immunity, copies of the proposed waiver, together with an explanation of the purpose of the proposed waiver, shall be transmitted to the Tribal Council, the Office of the Secretary-Treasurer, and the Agency Superintendent. Within two (2) business days after the granting of any waiver of Sovereign Immunity, copies shall be transmitted to the Tribal Council, the Office of the Secretary-Treasurer, and the Agency Superintendent. The Secretary-Treasurer shall maintain a file of all waivers of Sovereign Immunity.
30.006 No Suit or Action Permitted Without a Waiver of Immunity. Except as hereinafter provided in Section 30.007, no suit or action shall be allowed or maintained in any forum, whether Tribal, State or Federal, except as may be specifically authorized in accordance with the specific terms and provisions of a waiver of Sovereign Immunity granted in accordance with this Chapter 30.
30.007 Existing Waivers of Immunity. Nothing contained in this Chapter shall have the effect of invalidating an otherwise valid waiver of the Immunity of the Tribe, or any of its subdivisions, subordinate bodies or Business Enterprises that was validly enacted in accordance with existing law at the time of enactment.