Tort Claims

WARM SPRINGS TRIBAL CODE
CHAPTER 205

TORT CLAIMS

Table of Contents

205.001 Authorization for Suit
205.002 Limitations on Liability205.003 Preservation of Other Immunities and Defenses; Vicarious Liability; Volunteers
205.004 Limitations on Forum, Damages and Claims for Relief
205.005 Suits for Performance of Duties
205.006 Tort Claims Procedures

WARM SPRINGS TRIBAL CODE
CHAPTER 205

TORT CLAIMS ORDINANCE

205.001 Authorization for Suit. The Tribes, its subordinate organization, enterprises, officer, agents, servants and employees may be sued in the Warm Springs Tribal Court or other court of competent jurisdiction only when explicitly authorized by either (1) applicable federal law, or (2) by ordinance or resolution of the Tribal Council.

205.002 Limitations on Liability. Except for contracts of insurance issued to the Tribes as named insured, any exception to the immunity of the Tribes and assumption of liability pursuant to this ordinance does not apply in circumstances in which such liability has been or is hereafter assumed by third parties, including any other governmental body or agency, nor for which the Tribes has been or is hereafter indemnified or held harmless by such parties, to the extent of such assumption or indemnification of liability. Nor does any liability assumed by the Tribes pursuant to this ordinance extend to any party or parties as third party beneficiary or otherwise, other than the party or parties to whom such liability is expressly assumed, and then only to the extent, circumstances and conditions specified thereby.

205.003 Preservation of Other Immunities and Defenses; Vicarious Liability; Volunteers.

1. Any liability of a Tribal entity or Tribal officer, employee or agent assumed pursuant to this chapter is subject to any other immunity of that Tribal entity or person and is subject to any defense which would be available to the Tribal entity or person if they were private entities and/or persons.
2. A Tribal entity is not vicariously liable for any injury or damage resulting from an act or omission of any Tribal officer, employee or agent if such party is not personally liable. Additionally, a Tribal entity is not vicariously liable for the actions or omissions of Tribal officers, employees or agents which are determined to be contrary to or without authorization or otherwise outside or beyond the course and scope of such officer’s, employee’s or agent’s authority.
3. This section does not immunize a Tribal officer, employee or agent from individual liability, not within Tribal insurance coverage, for the full measure of the recover applicable to a person in the private sector if it is established that such conduct was outside the scope of his or her employment and/or authority.
4. Volunteers duly authorized by the Tribes, or any political subdivision thereof, in performing any of their authorized functions or duties or training for such functions or duties, shall have the same degree of responsibility for their actions and enjoy the same immunities as officers and employees of the Tribes and its governmental entities performing similar work.

205.004 Limitations on Forum, Damages and Claims for Relief. The Tribes may be sued only in the Tribal Court and only with respect to any damages claim which is within the express coverage and not excluded by either commercial liability insurance carried by the tribes or an established Tribal self–insured and/or other claims program of the Tribal government, or express contractual waiver of sovereign immunity, approved and adopted pursuant to the laws of the Tribes and further subject to the following provisions and limitations:

1. No judgment, order or award pertaining to any such claims permitted hereunder shall be for more than the lesser of: (a) the sum of $100,000 for each individual claimant, but not exceeding the sum of $300,000 for each occurrence; or (b) the limits of valid and collectible liability insurance policies carried by the Tribes covering each such claim and in force at the time of such judgment including deductible amounts to the extent appropriated by the Tribal Council, nor for more than the amount of coverage provided for each such claim under established claim reserves as appropriated by the Tribal Council or otherwise established pursuant to any self–insured liability and/or other Tribal government claims program, approved and adopted pursuant to the laws of the Tribes.
2. Any such judgment, order or award may only be satisfied pursuant to the express provisions of the policy(ies) of liability insurance and/or established self–insured or government claims program of the Tribes which are in effect at the time of each such judgment order or award or special appropriation.
3. No cause of action shall lie and no judgment may be entered or awarded on any claim for punitive or exemplary damages against the Tribes, nor against any officer, employee or agent of the Tribes acting within the course and scope of the authority of such office, employment or agency.
4. Not withstanding any provisions of this subsection 205.004, there shall be no exception to the sovereign immunity of Tribal entities, officials, employees or agents from claims for injury or damage alleged to have been sustained by: (a) policy decisions or the exercise of discretion made by a Tribal official, employee or agent in the exercise of judgment or discretion vested in the entity or individual; (b) a decision made in good faith and without gross negligence in carrying out the law, except that this provision does not immunize a Tribal entity, officer, employee or agent from liability for false arrest, false imprisonment or malicious prosecution; (c) legislative or judicial action or inaction or administrative action or inaction of a legislative or judicial nature, such as adopting or failure to adopt a law or by failing to enforce a law; (d) issuance, denial, suspension or revocation of, or the failure or refusal to issue, deny, suspend or revoke, any permit, license certificate, approval, order or similar authorization, nor by the termination or reduction of benefits under a Tribal assistance program if the Tribal entity, officer, employee or agent is authorized by law to determine whether or not such authorization or benefits should be issued, denied, suspended or revoked; (e) probation, parole, furlough or release from confinement of a prisoner or other detainee or from the terms and conditions or the revocation thereof except upon a showing of gross negligence; (f) any injury or damage caused by an escaping or escaped person or prisoner, a person resisting arrest, or by a prisoner to himself or herself, or to any other prisoner, except upon showing of gross negligence; (g) the enumeration of the above immunities shall not be construed to waive any other immunities, nor to assume any liability except as explicitly provided in this chapter.

205.005 Suits for Performance of Duties. Any officer, employee or agent of the Tribes may be sued in the Warm Springs Tribal Courts to compel him/her to perform his/her non–discretionary responsibility under the laws of the United States and the Tribes.

1. Relief awarded by the Warm Springs Tribal Courts under this Section 205.005 shall be limited to declaratory or prospective mandamus or injunctive relief and in accordance with the express provisions of the laws of the United States and the Tribes establishing the responsibility for such performance.
2. No relief as provided under this Section 205.005 may be awarded by the Warm Springs Tribal Courts without actual notice to the defendant(s), nor before the time provided in this chapter for answering complaints, motions (or order to show cause).
3. This Section 205.005 shall not apply to the members and officers of the Tribal Council [and the officers of the Tribal Council] specified in Article IV, Section 11 of the Constitution when acting as such.

205.006 Tort Claims Procedures. Procedure with respect to actions authorized by this chapter.

1. Any person or party desiring to institute suit against the Tribes or any officer, employee or agent of the Tribes as authorized by this chapter shall, as a jurisdictional condition precedent to institution of such suit, provide notice to the Chairman of the Tribal Council, the Secretary–Treasurer of the Tribal Council, the Tribal Attorney and the Agency Superintendent of the Warm Springs Reservation within a period of one year immediately following the occurrence of giving rise to the claim. (a) Such notices shall be sent by registered mail, addressed to the main administrative offices of the Chairman of the Tribal Council, the Secretary–Treasurer of the Tribal Council, the Tribal Attorney and the Agency Superintendent of the Warm Springs Reservation, return receipts requested. The time of such notice shall commence to run only from the date following actual delivery of the last of four notices to be delivered as evidenced upon such receipts, and filed together with such notices with the court when [in which] such action is subsequently [to be] commenced. The Chairman of the Tribal Council, Secretary–Treasurer of the Tribal Council, the Tribal Attorney and the Agency Superintendent shall ensure the availability, during all regular office hours, of office staff personnel duly authorized to accept and receipt for delivery of such notices provided herein, and their receipt thereof shall not waive the assertion of any appropriate defense pertaining to the validity of such notice or service. (b) Such notices shall state the name of each prospective plaintiff, the identity of each prospective defendant, the nature of all claims, relief which will be sought, and the correct address, name and telephone number of each prospective plaintiff’s attorney or spokesman (if any). (i) No action shall be accepted for filing against the Tribes or any officer, employee or agent of the Tribes unless the plaintiff has filed proof of compliance with this Section 205.006 by service of the notices as required by this subsection at least thirty (30) days prior to the date on which the complaint or any other action is proposed to be filed with the [such] court. (ii) In any action against the Tribes or any officer, employee or agent of the Tribes, the time for responding to be valid service of any summons and complaint shall be sixty (60) days; to valid service of any order to show cause, not less than thirty (30) days; and to valid service of any motion, not less than twenty (20) days. Any claim against the Tribes or any Tribal entity, officer, employee or agent thereof, which is filed pursuant to this act, is deemed generally denied sixty (60) days after valid service of the complaint, unless the claimant or claimant’s attorney or counsel filing the complaint is advised of acceptance or of a specific or otherwise limited denial in writing or by responsive pleading filed before the expiration of sixty (60) days; and any such claim shall otherwise proceed in the same manner as upon the filing of such general denial thereof. These time periods may not be shortened by Rule of Court or judicial order, but shall be extended by any longer period provided by other applicable law, rule or order of court. (iii) Any person or party filing a complaint against the Tribes or any officer, employee or agent of the Tribes shall serve by registered mail, return receipt requested, a copy of the complaint together with summons duly issued, upon the Chairman of the Tribal Council, the Secretary–Treasurer of the Tribal Council, the Tribal Attorney and the Agency Superintendent of the Warm Springs Reservation. Service of summons and complaint against any officer, employee or agent of the Tribes shall be made by any means authorized under WSTC 200.175–200.215 and the rules of the Warm springs Tribal Court provided that the time for response thereto shall be as provided herein and service upon such parties shall not be affected by such required service upon the Chairman of the Tribal Council, the Secretary–Treasurer of the Tribal Council, the Secretary–Treasurer of the Tribal Council, the Tribal Attorney and the Agency Superintendent of the Warm Springs Reservation. (iv) In any action in which any claim is asserted against the Tribes or any Tribal entity thereof, upon written demand of the Tribes’ Attorney made at or before the time for answering, served upon the opposing party and filed with the court where the action is pending, the place of trial shall be changed to Warm Springs.