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TRIBAL DEVELOPMENT AUTHORITY
INDEX TO CHAPTERS AND SECTIONS
CHAPTER ONE
GENERAL PROVISION
Citation
Declaration of Need
and Legislative Findings
Purposes
Definitions
CHAPTER TWO
BOARD OF TRUSTEES
Tribal Development
Authority Created
Board Created - Number
Appointment of Board
Members
Qualifications of
Board Members
Term of Office
Officers
Removal of Board
Members
Compensation to be
Paid
Quorum
Duties of Officers
Meetings
CHAPTER THREE
POWERS OF THE AUTHORITY
Period of Existence
Power to Sue And Be
Sued
General Powers
Securing Financial
Assistance
Certain Property Laws
Do Not Apply
CHAPTER FOUR
ABSENTEE SHAWNEE TRIBE OF OKLAHOMA
TRIBAL DEVELOPMENT ACT OF 1988
Authority to Issue
Obligations
No Personal Liability
on Obligations
No Tribal Liability on
Obligations
Obligations are Tax
Exempt
Manner of Issuance and
Sales
Obligations are
Negotiable
Security for
Obligations
Actions to be Filed
for Record
CHAPTER FIVE
MISCELLANEOUS PROVISION
Reports
Acquisition of
Interests Prohibited
Compliance with
Federal Law
Fidelity Bonds
Property of Authority
as Public Property
No Execution on
Authority Property
Personnel Policies to
be Enacted
Judicial Notice
Special Certificate of
Incorporation
Separability of
Provision
Records and Audit
Authorization of
Appropriations
Rules Regulations and
Procedures
CHAPTER SIX
MANAGEMENT OF TRIBAL ENTERPRISES
General Management
Provisions
Achieving Independent
Status as a Tribal Enterprises
Chartering of
Independent Tribal Enterprises
CHAPTER ONE
GENERAL PROVISIONS
Section 100. Citation
This Title may be cited
as the Absentee Shawnee Tribal Development Act.
Section 101. Declaration of Need and Legislative
Findings
It is hereby declared and
found:
(a) That the health,
safety and welfare of the people of the Absentee Shawnee Tribe of Oklahoma are
enhanced by continual encouragement, development, growth and expansion of
private enterprise within the Indian country under the jurisdiction of the
Absentee Shawnee Tribe of Oklahoma. That the Indian country under the
jurisdiction of the Absentee Shawnee Tribe of Oklahoma is an economically
depressed area that need particular attention to create new jobs, stimulate
economic activity and attract private sector investment to improve the quality
of life for those within the tribal jurisdiction. It is, therefore, the purpose
of this Act to stimulate employment, business and industrial growth and to
encourage new economic activity in the Indian country under the jurisdiction of
the Absentee Shawnee Tribe by means of developing the legal and physical
infrastructure necessary for business and industry, the removal of unnecessary
governmental barriers to the creation of economic growth, providing assistance
to business and industries, providing tax incentives and utilizing to the
fullest extent tribal sovereignty and the Indian Tribal Government Tax Status
Act of 1982.
(b) That the
jurisdictional area of the Absentee Shawnee Tribe of Oklahoma is an area of
chronic and substantial economic underdevelopment, and there exists a critical
need for the development of economic and industrial activities within the
jurisdiction of the Absentee Shawnee Tribe of Oklahoma in order to address the
disproportionate and persistent unemployment rate which detrimentally affects
the tribal membership and other persons within the Tribe's jurisdiction.
(c) That active and
planned tribal participation by the Absentee Shawnee Tribe of Oklahoma in both
its business and governmental capacity in economic endeavors can have a
significant and positive impact on the long-term economic stimulation of the
local economy for both the Tribe and the local economy.
(d) That an economic
strategy maintaining a sound balance between the development of the tribe
economic and industrial opportunities -- tribal business -- within the
jurisdiction of the Absentee Shawnee Tribe of Oklahoma, and the acquisition of
land for these purposes, is essential to the prosperity, peace and welfare of
those within the tribal jurisdiction.
(e) That a critical need
exists for the Absentee Shawnee Tribe of Oklahoma to focus its considerable
energies and strengths on the development of diversified and stable economic
endeavors within the jurisdiction of the Absentee Shawnee Tribe of Oklahoma that
includes and emphasizes both the development of the Tribe as business initiator,
planner, manager of tribal enterprises and upon the tribe as government creating
the legal infrastructure necessary to support, enhance, and encourage the
creation of a heretofore nonexistent private business sector within the
jurisdiction of the Absentee Shawnee Tribe of Oklahoma.
(f) That is vital for the
Absentee Shawnee Tribe of Oklahoma to establish a focal point for the economic
development activities within the tribal structure by tribal legislation to
which the Executive Committee can delegate specific duties and with which it can
work in creating tribal enterprises and developing the legal infrastructure
necessary to support the development of a private business sector within the
jurisdiction of the Absentee Shawnee Tribe of Oklahoma.
(g) That in order to
address these identified needs and to establish a focal point through which
solutions can be analyzed, proposed and initiated, the Absentee Shawnee
Executive Committee has found it necessary in the public interest that it create
and authorize the operation of the Absentee Shawnee Tribal Development Authority
through Resolution No.L-AS-93-05.
(h) That the creation and
operation of the Authority serves an essential governmental function of the
Absentee Shawnee Tribe of Oklahoma by allowing the Tribe to address the serious
economic, social, and health problems associated with the serious unemployment
and underemployment within the jurisdiction of the Absentee Shawnee Tribe of
Oklahoma, the general lack of available tribal funds available to address theses
problems, the general lack of sufficient land base for the economic development
needs of the tribe, and the attendant impact upon the public health, Bafety, and
welfare.
(i) That the creation and
operation of the Authority addresses a situation which has not, and cannot, be
wholly relieved through the operation of private sector enterprises alone, and t
hat providing job training and relief from critical unemployment and
underemployment rates, the development of tribal revenue generating public and
private sectors, the acquisition of land by the Absentee Shawnee Tribe of
Oklahoma for development purposes and developing tribal sources of financing
economic development and land acquisition are public uses and purposes that are
essential governmental functions of the Absentee Shawnee Tribe of Oklahoma, for
which public monies can be spent and private property acquired, and are
governmental functions of tribal concern.
(j) That the necessity in
the public interest for the provisions hereinafter enacted is hereby declared as
a matter of legislative determination.
Section 102. Purposes
The Tribal Development
Authority shall be organized and operated for the purpose of:
(a) Remedying the
disproportionate unemployment rate of tribal members and other persons within
the tribal jurisdiction.
(b) Remedying the
disproportionate underemployment rate of tribal members and other persons within
the tribal jurisdiction.
(c) Providing revenues
with which the Tribe may address other pressing matters of public health,
safety, and welfare, or for other tribal purposes.
(d) Attracting private
industry to the tribal jurisdiction.
(e) Expanding the tribal
land base and economic development potential through the purchase of additional
land for tribal use.
(f) Identify, plan,
initiate, and develop tribal economic and industrial activities on behalf of the
Absentee Shawnee Tribe of Oklahoma.
(g) Act as a catalyst
within the tribal structure, working in conjunction with the tribal legislative
bodies--the Absentee Shawnee General Council and Executive Committee--to provide
for the orderly creation and temporary management of tribal business
enterprises.
(h) Make recommendations
to the Absentee Shawnee Executive Committee as to legislation for development of
tribal business enterprises.
(i) Make recommendations
to the Absentee Shawnee Executive Committee useful and necessary for the
development of private sector business enterprises within the jurisdiction of
the Tribe such as, but not limited to recommendations regarding taxation,
business licensing, finance, land acquisition, use and zoning requirements,
environmental protection, and authorized forms for business structures such as
corporations, joint ventures, partnership.
(j) Establish in
conjunction with the Absentee Shawnee Executive Committee an economic
development revolving fund.
(k) Encouraging the
creation of a Tribal tax base, the earning of income which can be used to
support essential functions of the Tribal Government, the provision of credit
through which economic activity can be encouraged.
(l) Specified Purposes:
In addition to the
general purposes expressed in Subsection (a) through (f) of this Section, the
Absentee Shawnee Tribal Development Authority is intended to be an agency of the
Absentee Shawnee Tribe of Oklahoma and, through its activities, further the
general purposes expressed as well as the following specific Tribal and Federal
purposes:
(1) the purpose of
encouraging and promoting agriculture, commerce, and industry, for creating a
fund to be known as the real estate bond payment and purchase fund to be used
for the acquisition of real property for economic development and other
purposes, including the purposes of providing land to landless members of the
Absentee Shawnee Tribe of Oklahoma and other eligible persons, for the provision
of income and the creation of a sound economic and industrial tax base for the
support of the Government of the Absentee Shawnee Tribe of Oklahoma as
guaranteed to the Absentee Shawnee Tribe of Oklahoma in the various treaties
between the United States and the Absentee Shawnee Tribe of Oklahoma and the
rights of self-government and social advancement recognized and provided for by
the laws of the United States;
(2) the purpose of
providing land and borrowing money and issuing loans for the acquisition of land
for the Absentee Shawnee Tribe of Oklahoma, other Indian Tribes and individual
Indians or groups of Indians pursuant to Section 5 of the Act of June 18, 1934,
48 Stat. 985 (25 U.S.C. 465), to Section 1 and 2 of the Act of June 26, 1936, 49
Stat. 1967 (25 U.S.C. 501, 502), the insurance of loans for such acquisitions
pursuant to the Act of April 11, 1970 (25 U.S.C. 488 et seq.) and other Federal
laws providing for the providing of Federal insurance for loans made to Indian
Tribes, individuals, or others:
(3) the purpose of
furthering Indian industry and labor and economic development within the Indian
Country as provided for in the Act of June 25, 1910, 36 Stat. 861 (25 U.S.C.
47), Section 1 of the Act of May 9, 1938, 52 Stat. 302 (25 U.S.C. 306) and other
federal laws supporting the economic development of Indian Country;
(4) the purpose of
furthering the investment of Indian tribal and individual funds as provided in
the Act of June 24, 1938, 25 Stat. 1037 (25 U.S.C. 162a);
(5) the purpose of
furthering any necessary irrigation projects within the Absentee Shawnee Tribe
of Oklahoma jurisdiction needed to make agricultural land productive to
complement the provisions of Chapter 11 of Title 25 of the United States Code;
(6) the purpose of
providing income and taxable economic and industrial base in order for the
Absentee Shawnee Tribe of Oklahoma to operate a Judicial and Law and Order
system sufficient to meet the requirements of Title II of the Act of April 11,
1968, 82 Stat. 77 (25 U.S.C. 1301 et seq.);
(7) the purpose of
providing income and taxable economic and industrial base in order for the
Absentee Shawnee Tribe of Oklahoma to further the purpose of Congress expressed
in Section 1 of the Act of April 12, 1974, 88 Stat. 77 (25 U.S.C. 1451), and
balance of said Act. (Indian Financing Act);
(8) the purpose of
providing income and taxable economic and industrial base in order for the
Absentee Shawnee Tribe of Oklahoma to further the purpose of Congress expressed
in Section 3 of the Act of Section 3 of the Act of September 30, 1976, 90 Stat.
1401 (25 U.S.C. 1602), and balance of said Act. (Health Care);
(9) the purpose of
providing income and taxable economic and industrial base in order for the
Absentee Shawnee Tribe of Oklahoma to further the purpose of Congress expressed
in Section 101 of the Act of October 17, 1978, 92 Stat. 1325 (25 U.S.C. 1802),
and balance of said Act. (Higher Education);
(10) thee purpose of
providing income and taxable economic and industrial base in order for the
Absentee Shawnee Tribe of Oklahoma to further the purpose of Congress expressed
in Section 3 of the Act of November 8, 1978, 92 Stat. 3069 (25 U.S.C. 1902), and
balance of said Act. (Child and Family Service Programs);
(11) the purpose of
providing funds for the further Tribal development of Indian owned mineral
resources pursuant to the Act of December 22, 1982, 96 Stat. 1938 (25 U.S.C.
2101 et seq.);
(12) the purpose of
providing funds for Indian Land Consolidation pursuant to the Act of January 12,
1983, 96 Stat. 2517 (25 U.S.C. 2201 et seq.);
(13) the purpose of
providing income and a taxable economic and industrial base in order for the
Absentee Shawnee Tribe of Oklahoma to further the policy of Congress expressed
in the Act of January 4, 1975, 88 Stat. 2206 (25 U.S.C. 450 et seq.) and
particularly in Section 102 of Title I of the Act (25 U.S.C. 40Sf) (Indian
Self-Determination) and the Act of November 2, 1921, 42 Stat. 208 (25 U.S.C. 13
(Snyder Act)
and the exercise of each and every essential governmental function reasonably
necessary or proper to further such purposes and policies.
Section 103. Definitions
The following terms
whenever used or referred to in this ordinance, shall have the following
respective meanings, unless a different meaning clearly appears from the
context:
(a) "Executive
Committee" means the Absentee Shawnee Executive Committee.
(b) "Claim"
means a claim for personal injury, death, property damage, or for recovery of
property arising in tort law.
(c) "Contract"
means any agreement express or implied by law for the exchange of consideration.
(d) "Immediate
family" means mother, father, sister, brother or child.
(e) "Misconduct in
office" means any one or more of the following acts:
(1) Conviction.in any
court of competent jurisdiction of a felony or other crime involving dishonesty
or moral turpitude, notwithstanding any right to appeal.
(2) Offering or
conferring upon another or soliciting or accepting from another any financial
benefit or thing of value for the recipient's decision, opinion, recommendation
vote or other exercise of discretion or an compensation for such past action.
(3) Threatening unlawful
harm to any person with the purpose of influencing another's decision, opinion,
recommendation, vote or other exercise of discretion or in retaliation for such
past action.
(4) Knowingly, with the
intent to benefit him or herself or harm another, committing an unauthorized act
under color of official action or refraining from the performance of any duty
imposed by law or by the nature of Board of Trustee membership.
(5) Use of privileged
information gained as result of Board of Trustee membership for the benefit of
him or herself or the harm of another.
(6) Knowingly withholding
information which could be necessary to the Board of Trustees for informed
decision making.
(7) Making any false
statement or knowingly providing false information to the Board of Trustees,
including but not limited to the information provided in his or her Resume and
Certificate of Eligibility.
(8) Misuse of Authority
property by unlawfully appropriating Authority assets, funds or property for his
or her own use of the use of another.
(f) "Moral
Turpitude" shall mean an act of baseness, vileness, or depravity in the
private and social duties which a man owes to his fellow men, or to society in
general, contrary to the accepted customs of the Tribe regarding justice,
honesty, modesty, or good moral character.
(g) "Neglect of
Duty" means absence without reasonable cause from four (4) consecutive
meeting of the Board of Trustees or continued failure,, over a period of four
(4) months, to fulfill any regular or special duties or responsibilities as a
member of the Board of Trustees.
(h) "Nepotism
Rule" means that the nomination or appointment of a member of the immediate
family of the nominator or appointor is prohibited.
(i)
"obligations" means any notes, bonds, interim certificates,
debentures, or other forms of obligation used by the Authority pursuant to this
ordinance.
(j) "Obligee"
includes any holder of an obligation, an agent, or trustee for any holder of an
obligation, or lessor demising to the Authority property used in connection with
a project, or any assignee or assignees of such lessor's interest or any part
thereof, and the federal government when it is a party to any contract with the
Authority in respect to a project.
(k) "Resume"
means a comprehensive summary of an individual's formal education, professional
training, prior work experience, activities, affiliations and honors which are
indicative of the person's capabilities an qualifications.
(l) "Serious
Insufficiency" means continued failure, over a period of six (6) months,
after a minimum of two (2) documented notices to adequately perform any regular
or special duties or responsibilities as a member of the Board of trustees
provided that the notice(s) given specify the standard(s) of performance
necessary and expected and the improvement(s) required to achieve such
standard(s).
(m) "Tribal
Court" means the Absentee Shawnee Tribal Court.
(n) "Tribal
Jurisdiction" means all the land within the original boundary lines of the
Absentee Shawnee Tribal reservation and any and all future additions of land
acquired within or without said boundary line by the Secretary of the Interior
or by the Tribe, except as otherwise provided by law.
CHAPTER TWO
BOARD OF TRUSTEES
Section 200. Tribal Development Authority Created
(a) Pursuant to the
authority vested in the Executive Committee of the Absentee Shawnee Tribe of
Oklahoma by Article V, Section 2. of the Constitution, and through its authority
and duty to provide for the health, safety, morals, and welfare of all persons
within the jurisdiction of the Tribe, Resolution L-AS-93-05 established and
created a public body corporate and politic known as the Absentee Shawnee Tribal
Development Authority (Authority) which shall be an agency of the Absentee
Shawnee Tribe of Oklahoma having the purposes, powers, and duties as herein or
hereafter provided by Tribal law.
(b) In any suit, action,
or proceeding involving the validity or enforcement of, or relating to any of
its contracts, the Authority shall be conclusively deemed to have become
established and authorized to transact business and exercise its powers upon
proof of the adoption of this ordinance. A copy of this ordinance, duly
certified by the Secretary of the Tribe, shall be admissible in evidence in any
suit, action, or proceeding. The Tribal Courts shall take judicial notice of the
Title.
Section 201. Board Created - Number
The affairs of the
Authority shall be managed by the Board of Trustees composed of five persons.
Section 202. Appointment of Board Members
The Board Members shall
be appointed, and may be reappointed by the Governor with the advice and consent
of the Executive Committee expressed by resolution. Advice and consent is
defined to mean confirmation. The Executive Committee is vested with the sole
authority to confirm or reject any nomination for appointment to the Board of
Trustees. The Governor has the sole authority for nominating persons for such
appointments.
When one or more
vacancies occur. on the Board of Trustees, the Governor shall submit his or her
nomination(s) for appointment to the Board to the Executive Committee within
fifteen (15) days of such vacancy or vacancies. The Executive Committee shall
have fifteen (15) days to consider the nomination(s) and either confirm or
reject the appointment(s). Upon rejection of any nomination(s), the Governor
shall submit his or her alternate nomination(s) to the Executive Committee
within fifteen (15) days of notification of the rejection. The Executive
Committee shall have fifteen (15) days to consider the alternate nominations and
either confirm or reject the appointment(s). Failure of the Governor to comply
with the time frames herein delineated shall result in his or her forfeiture of
nominating authority. In such instances, the nominating authority shall pass to
the Lieutenant Governor. A resolution of the Executive Committee signed by the
Governor, attested by the Tribal Secretary as to the appointment or
reappointment of any Board Members shall be conclusive evidence of the due and
proper appointment of the Board Member.
Section 203. Oualifications of Board Members
(a) A Board Member may be
a member or non-member of the Tribe, and not more than two Board Members at any
one time may be members of the Executive Committee provided, that the majority
of the board shall be comprised of members of the Absentee Shawnee Tribe of
Oklahoma.
(b) No person shall be
barred from serving on the Board because he is an employee of an enterprise of
the Authority or the Tribe, or has a business contractual relationship with the
Authority or the Tribe, or operates a private business within the tribal
jurisdiction. However, no such Board Member shall be entitled or permitted to
participate in or be present at any portion of a meeting (except in his capacity
as a member of the public or as an employee) or to be counted or treated as a
member of the Board, concerning any matter involving his individual rights,
obligations or status.
(c) Each Board Member
shall be at least twenty-one (21) years of age and legally capable of entering
into a binding contract.
(d) No person who has
been finally convicted in any court of competent jurisdiction of a felony or
other crime involving embezzlement, fraud, or moral turpitude shall service on
the Board of Trustees.
(e) Each Board Member
shall take an oath to support and defend the Constitution and laws of the
Absentee Shawnee Tribe of Oklahoma and shall sLgn a Certificate of Eligibility
on which the Board member shall attest: "I hereby certify that I have read
the qualifications for members of the Board of Trustees of the Absentee Shawnee
Tribal Development Authority and that I meet the qualifications prescribed by
law."
(f) Each nominee shall be
required to submit a Resume (as defined in Section 103(~K)~-of this Title) for
review by the Executive Committee at the time the individual is nominated by the
Governor for appointment to the Board.
(g) All nominations and
appointments to the Board of Trustees shall comply with the nepotism rule as set
forth in Section 103(e) of this Title.
Section 204. Term of Office
The term of office shall
be two years and staggered, and the first appointment of Board members shall be
for terms of one, two, two, one and ryears for the respective members.
Thereafter, all appointments shall be for five years beginning from the date
following the regular expiration of the particular seat on the Board, except
that in the case of a vacancy occurring prior to the expiration of a regular
term, an appointment to that seat shall be only for the length of the unexpired
term. Each member of the Board shall hold office until his successor has been
appointed.
Section 205. Officers
(a) The Board of Trustees
shall elect from among its members a Chairman, and a Vice-Chairman, and from
within its members a Secretary and a Treasurer.
(b) The officers shall
serve as officers at the pleasure of the Board of Trustees. Removal of a Trustee
from an office shall not be deemed to be a removal from the Board of trustees.
However, removal of an officer from the Board of Trustees pursuant to Section
206 of this ordinance shall constitute a removal from his office whether or not
specifically so stated in the removal proceedings.
Section 206. Removal of Board Members
A member of the Board may
be removed by the Executive Committee for serious inefficiency or neglect of
duty or for misconduct in office as defined in Section 103 (e), (g), and (1) of
this Title, but only after a hearing before the Executive Committee, and only
after the member has been given a written notice of the specific charges against
him at least fifteen days prior to the hearing. At any such hearing, the members
shall have the opportunity to be heard in person or by counsel and to present
witnesses in his behalf, In the event of removal of any Board member, a record
of the proceedings, together with the charges and finding thereon, shall be
filed with the office of the Tribal Secretary, and a certified copy thereon
filed with the Clerk of the Tribal Court. The Tribal court shall furnish a
record to the Executive Committee for such purpose upon request. Notwithstanding
the defense of sovereign immunity, any person removed from his position as a
member of the Board of Trustees may appeal such removal by filing, in the Tribal
Court only, a civil action for injunctive and declaratory relief naming the
Executive Committee as defendant. The Tribal court shall review the record of
the removal proceedings, and if prejudicial error was committed, or if no just
cause is shown therein for the removal, the Tribal court may vacate the removal
and declare that such person is still a member of the Board and the Executive
Committee shall be bound by such decision. The parties shall have the right to
appeal such court finding as in other cases, and the Tribal Court shall not
vacate the order of the Executive Committee if it determines that any error
found in the proceedings was harmless.
Section 207. Compensation to be Paid
The Board of Trustees may
receive compensation for their services at a rate commensurate with their
services and responsibilities, and reimbursement for expenses, including
traveling expenses, when incurred in the discharge of their duties. Expenses may
be advanced with the approval of the Board of Trustees. No member of the Board
of Trustees shall have his compensation reduced during his term of office,
except that if funds be unavailable for appropriation, the compensation of all
board members may be reduced proportionally to the availability of funds.
Section 208. Quorum
Three members of the
Board shall constitute a quorum.
Section 209. Duties of Officers
(a) The Chairman of the
Board of Trustees shall preside at all meetings of the Board,,. and shall
generally be responsible for the efficient and orderly functioning of the
Authority.
(b) The Vice-Chairman of
the Board of Trustees shall assume the duties of the Chairman in his absence, or
upon his neglect, failure, or refusal to undertake the duties required or
delegated to him by law.
(c) The Secretary of the
Board shall keep complete and accurate record of all meeting and actions taken
by the Board. One copy of the record of the meetings and actions taken by the
Board shall be filed in the Tribal Secretary's office.
(d) The Treasurer shall
keep full and accurate financial record, make periodic reports to the Board, and
submit completed quarterly and annual reports, in written form, to the Executive
Committee as required by Section 501 of this ordinance.
Section 210. Meetings
Regular meetings of the
Board shall be held at least once each calendar quarter on such day as may be
established by rule of the Board. Special or emergency meetings may be held upon
twenty-four (24) hours actual notice, or upon such notice as the Board may by
rule determine, and business transacted, provided that not less than a majority
of the full Board concurred in the proposed action.
CHAPTER THREE
POWERS OF THE AUTHORITY
Section 301. Period of Existence
The Authority shall have
perpetual existence and succession in its own name.
Section 302. Power to Sue and Be Sued
(a) The Authority shall
have the power to sue in any Court in its own name, and with the consent of the
Executive Committee expressed by resolution, to sue on behalf of the Absentee
Shawnee Tribe by styling the case as "the Absentee Shawnee Tribe of
Oklahoma ex rel. Absentee Shawnee Tribal Development Authority."
(b) The Authority may be
sued, in the Tribal court only, in its own name upon any contract or obligation
arising out of its activities within the tribal jurisdiction under this act and
the immunity from suit which it has as an agency of the Absentee Shawnee Tribe
of Oklahoma due to the doctrine of sovereign immunity is hereby expressly waived
for such purposes to the extent herein stated.
(c) The Authority may be
sued in the Tribal Court or in theCourt of another jurisdiction in its own name
upon any contract or obligation arising out of its activities in such other
jurisdiction, and the immunity from suit which it has as an agency of the
Absentee Shawnee Tribe of Oklahoma due to the doctrine of sovereign immunity is
hereby expressly waived for such purposes to the extent herein stated.
(d) No property of the
Authority located within the Tribal jurisdiction may be taken by attachment,
Court order, lien or otherwise to satisfy any judgement rendered in such a case
absent the consent of the General Council first obtained.
(e) Neither the Tribe nor
any of its property shall be liable for any of the debts, liabilities, or
obligations of the Authority, nor may any Court make or enforce any order
concerning execution upon or the right to possession of any Tribally owned
property assigned to the use of the Authority unless that General Council gives
its consent to such order.
Section 303. General Powers
The Authority shall have
the following powers which it may exercise consistent with the purpose for which
it is established:
(a) to adopt and use a
corporate seal.
(b) to enter into
agreements, contracts, and undertakings with any governmental agency, federal,
state, or local (including any tribe) or with any person, partnership,
corporation, and to agree to any conditions attached to federal financial
assistance.
(c) to lease property
from or to the Tribe and others for such periods as are authorized by law, and,
to hold and manage or sublease the same.
(d) to borrow or lend
money, to issue temporary or long term evidence of indebtedness, and to repay
the same. Obligations shall be issued and repaid in accordance with the
provisions of Chapter Four of this Title.
(e) to pledge the assets
and receipts of the Authority as security for debts; and to acquire, sell, lease
exchange, transfer or assign personal property or interests therein.
(f) to purchase or take
by gift any land or interest in land within or without the Tribal jurisdiction
provided that such land located within the Tribal jurisdiction shall, upon
payment of the purchase price and satisfaction of any purchase money or pre
purchase mortgage on the land, be placed in trust upon the approval of the
Secretary of the Interior for the benefit of the Absentee Shawnee Tribe of
Oklahoma and will then be assigned to the use of the Authority to the extent
provided by law, provided that the Authority may not lease Tribal land assigned
to its use for a period exceeding the term of the assignment of the land to
Authority or for a period more than authorized by federal law. For the purposes
of the subparagraph, as assignment of Tribal land to the Authority for an
indefinite term, or for no stated term shall be an assignment which is revocable
upon thirty days notice by the Executive Committee that the land is needed for
other Tribal purposes. The determination of the Executive Committee of such need
shall be final and conclusive.
(g) to undert~ake and
carry out studies and analysis of employment and job training needs within the
tribal jurisdiction, to operate economic development projects and tribal
businesses, to aid and assist private sector businesses in locating within the
Tribal jurisdiction including assistance with achieving compliance with
appropriate tribal laws and regulations.
(h) to make rules and
regulations regarding its activities pursuant to this act as the Board may deem
necessary and desirable to effectuate the powers granted by .this Title.
Provided, that all such rules and regulations shall be filed for record in the
Tribal Secretary's office and the Tribal Court Clerk's office prior to being
given any force or effect.
(i) to purchase insurance
from any stock or mutual company for any property or against any risk or
hazards, and the sovereign immunity of the Authority is hereby waived to the
limit of the scope and extent of such insurance as may be in force as to an y
claim payable by such insurance.
(j) to invest such funds
as are not required for immediate disbursements.
(k) to establish and
maintain such bank accounts as may be necessary or convenient.
(l) to employ as officers
a President, and such Vice- Presidents and Assistant Secretaries as may be
necessary or convenient, and to employ technical and maintenance personnel and
such other officers and employees, permanent or temporary, as the Authority may
require, to establish the conditions of their employment, and to delegate to
such officers and employees such powers or duties as the Authority shall deem
proper provided that all such employment must comply with the provisions of
Section 203(b) of this Title.
(m) to take such further
actions, not inconsistent with this act, as are commonly engaged in by public or
corporate bodies of this character as the Authority may deem necessary or
convenient to effectuate the purposes of the Authority.
(n) to enter into
partnerships, joint ventures, and other business arrangements with any legal
entity to effectuate the purposes of the Authority.
(o) to adopt such rules
and regulations for the government of its internal affairs as the Authority
deems necessary or appropriate, to administer or enforce this Title and its
activities thereunder, Provided that all such rules and regulations shall
be filed for record in the Tribal Secretary's office and the Tribal Court
Clerk's office prior to being given any force or effect.
(p) to operate, ·manage,
use, and control, including entering into leases as herein before provided, such
real or personal property which the Executive Committee shall assign to its use.
(q) to pay over yearly to
the tribe such percentage of its profits which, according to sound business
practices, will be available for general expenditure for purposes other than
business development, due regard being had for further expansion of Tribal
business enterprises, contingencies, bad debts, and the like.
(r) to exercise any and
all powers of a domestic corporation under the Absentee Shawnee Business
Corporation Act not inconsistent with this Title.
(s) to engage in any
lawful business.
(t) to use the name
"Shawnee Products, Inc." in any of its business activities within or
without the Tribal jurisdiction, and to incorporate or hold stock in such other
corporations as may be necessary or convenient. The name "Shawnee Products,
Inc." is hereby reserved to the use of the Authority and no other domestic
or foreign corporation may use such name within the Tribal jurisdiction.
(u) to exercise, in
conformance with Tribal law, the power of eminent domain excepting land or
interest therein held by any other agency of the Absentee Shawnee Tribe of
Oklahoma, in order to further the purposes and powers expressed in this Title.
(v) to promulgate rules
and regulations not inconsistent with other Tribal law, which rules and
regulations shall have the force of statute, and to provide penalties for the
violation thereof not in excess of Two Hundred Dollars ($200.00) for each
violation of day of violation of the Authority's rules and regulations,
concerning the following:
(1) the zoning of areas
designated as industrial or commercial areas by Tribal legislation into such
subcategories of use as may be necessary to protect the public and environment
and to further the highest and best use of the property.
(2) the protection of the
environment, both physical and human, from unacceptable hazard or risk created
by industrial and commercial activities within the Tribal jurisdiction.
(3) construction and
maintenance of industrial of industrial and commercial buildings, plants,
facilities, and all appurtenances thereunto belonging, including specifically,
but not limited to, construction and building codes, emergency procedures to be
followed in case of industrial accident or casualty, reporting requirements, and
the issuance of building permits;
(4) at such time or times
as the Tribe may have contracted the issuance of Indian Trader's Licenses
pursuant to 25 U.S.C. 261 et seq., 25 C.F.R. 251.1 et seq., the issuance and
supervision of Licensed Indian Traders within the Tribal jurisdiction.
(5) the maintenance of
worker's compensation insurance or other similar insurance to protect industrial
and commercial employees in hazardous occupations or otherwise against loss of
wages, medical bills, and other loss or damages as a result of injuries
sustained in the course of their employment;
(6) the protection of
employees, invitees, and guests of industrial and commercial establishments from
unnecessary risk of injury by providing for safety and health requirements of
industrial and commercial activities;
(7) the establishment of
minimum public liability insurance requirements necessary to protect the public
from personal injury or property damage resulting from industrial and commercial
activities;
(8) the establishment and
regulation of the banking industry within the Tribal jurisdiction;
(9) the establishment and
regulation of the insurance industry within the Tribal jurisdiction;
(10) the establishment
and regulation of other financial institutions within the Tribal jurisdiction.
provided, that such rules and regulations shall not be effective until a
certified copy or original thereof have been filed in the office of the Tribal
Court Clerk and the Tribal Secretary for at least thirty (30) days, and, Provided
further, that the Executive Committee may rescind or modify any such rules
when in their judgment it is in the best interest of the Tribe to do so.
Section 304. Securing Financial Assistance
It is the purpose and
intent of this Title to authorize the Authority to do any and all things
necessary or desirable and not prohibited to secure the financial aid or
cooperation of the Federal government or private sources of capital in the
undertaking, construction, maintenance, or operation of any project of the
Authority, subject to the limitations contained in this Title.
Section 305. Certain Property Laws Do Not Apply
No ordinance or other
enactment of the tribe with respect to the acquisition, operation, or
disposition of Tribal property shall be applicable to the Authority in its
operations pursuant to this Title, unless specifically so stated herein, or in
the ordinance in question if the Absentee Shawnee Tribal Development Authority
is specifically referred to.
CHAPTER FOUR
OBLIGATIONS
Section 401. Authority to Issue Obligations
The Authority may issue
obligations from time to time in its discretion for any of its purposes and may
also issue refunding obligations for the purposes of paying or retiring
obligations previously issued by it, provided that the Authority shall file
notice of intent to issue such obligations in the Offices of the Tribal
Secretary and that Tribal Court Clerk and at least thirty days prior to the
first issuance of any particular obligation or series of obligations. The
Authority may issue such types of obligations as it may determine, including
obligations on which the principal and interest are payable.
(a) Exclusively from the
income and revenue for the project financed with the proceeds of such
obligations, or with such income and revenues together with a grant from the
federal government, in an allowable cost, in aid of the project.
(b) Exclusively from the
income and revenues of certain designed projects whether or not they are
financed in whole or in part with the proceeds of such obligations, or
(c) From its revenues
generally, any of such obligations may be additionally secured by a pledge of
any revenues of any project or other project or other property of the Authority.
All such obligations
shall be subject to the jurisdiction of the Tribal court for enforcement of
their provisions wherever they may be physically located.
Section 402. No Personal Liability on Obligations
Neither the Board of
Trustees of the Authority, nor any person executing the obligations shall be
perBonally liable on the obligations by reason of issuance thereof.
Section 403. No Tribal Liability on Obligations
The notes and other
obligations of the Authority shall not be a debt of the Tribe as the Tribe, and
the obligations shall so state on their face.
Section 404. Obligations are Tax Exempt
Obligations of the
Authority are declared to be issued for an essential public and governmental
purpose, and to be public instrumentalities and, together with interest thereon
and income therefrom, shall be exempt from taxes imposed by the Tribe. The tax
exemption provisions of the Title shall be considered part of the security for
the repayment of obligations, and shall constitute, by virtue of this Title and
without necessity of being restated in the obligations, a contract between (a)
the Authority and the Tribe, and (b) the holders of obligations and each of
them, including all transferee of the obligations from time to time.
Section 405. Manner of Issuance and Sales
Obligations shall be
issued and sold in the following manner:
(a) Obligations of the
Authority shall be authorized by a resolution adopted by the vote of a majority
of the full Board and may be issued in one or more series.
(b) The obligations shall
bear such dates, mature at such times, bear interest at such rates, be in such
denominations, be in such form, either coupon or registered, carry such
conversion or registration privileges, have such medium or payment and at such
places, and by subject to such terms of redemption, with or without premium, as
such resolution may provide.
(c) The obligations may
be sold at public or private sale at not less than par value.
(d) In case any of the
members of the Board of Trustees of the Authority whose signatures appear on any
obligations cease to be Trustees before the delivery of such obligations, the
signatures shall, nevertheless, be valid and sufficient for all purposes, the
same as if the Trustees had remained in office until delivery.
(e) Whenever necessary,
the Authority shall comply in the issuance of its obligations with the
Securities laws of the federal government.
Section 406. Obligations are Negotiab1e
Obligations of the
Authority shall be fully negotiable unless otherwise stated on the their face.
In any suit, action or proceeding involving the Validity of enforceability of
any obligation of the Authority or the security therefore, any such obligations
by the Authority to aid in financing a project pursuant to the Title shall be
conclusively deemed to have been issued for such purpose in the absence of fraud
by the holder or with the knowledge of the holder thereof in the procurement of
the obligations, and the project for which such obligation was issued shall be
conclusively deemed to have been planned, located and carried out in accordance
with the purposes and provisions of this Title in the absence of fraud in the
procurement of such obligation or security.
Section 407. Security for Obligations
In connection with the
issuance of obligations or incurring of obligations under leases and to secure
the payment of such obligations, the Authority, subject to he limitations in the
Title, may:
(a) Pledge all or part of
its gross or net rents, fees, or revenues to which its right then exists or may
thereafter come into existence.
(b) Provide for the
powers and duties of obligee, and limit their liabilities; and provide the terms
and conditions on which such obligee may enforce and covenant or their rights
securing or relating to the obligations.
(c) Covenant against
pledging all or any part of its rents, fees and revenues or personal property to
which its title or right then exists or may thereafter come into existence or
permitting or suffering any lien on such revenues or property.
(d) Covenant with respect
to limitations on its right to sell, lease, or otherwise~dispose of any project
or any partner thereof.
(e) Covenant as to the
obligations to be issued and is to the issuance of such obligations in escrow or
otherwise, and as to the use and dispositions of the proceeds thereof.
(f) Provide for the
replacement of lost, destroyed, or mutilated obligations.
(g) Covenant against
extending the time for the payment of its obligations or interest thereon.
(h) Redeem the
obligations and covenant for their redemption and provide the terms and
conditions thereof.
(i) Covenant concerning
the rents and fees to be charged in the operation of a project or projects, the
amount to be raised each year or other period of time ·by rents, fees, and
other revenues, and as to the use rand disposition to be made thereof.
(j) Create or authorize
the creation of special funds for monies held for construction or operating
costs, debt service, reserves or other purposes, and covenant as to the use and
disposition of the monies held in such funds.
(k) Prescribe the
procedure, if any, by which the terms of any contract with holders of
obligations may be amended or abrogated, the proportion of outstanding
obligations the holders of which must consent thereto, and the manner in which
such consent may be given.
(l) Covenant as to the
use, maintenance, and replacement of its real or personal property, the
insurance to be carried thereon, the use and disposition of insurance monies.
(m) Covenant as to the
rights, liabilities, powers, and duties arising upon the breach by it of any
covenant, condition or obligation.
(n) Covenant and
prescribe as to events of default and terms and conditions upon which any or all
of its obligations may become or may be declared due before maturity, and as to
the terms and conditions upon which such declaration and its consequences may be
waived.
(o) Vest in any obligees
or any proportion of them the right to enforce the payment of the obligations or
any covenants, security or relating to the obligations.
(p) Exercise all or any
part of combination of the powers granted in this Section.
(q) Make covenants other
than, and in addition to the covenants expressly authorized in this section, or
of like or different character.
(r) Make any covenants
and do any acts and things necessary or convenient or desirable in order to
secure its obligations, or, in the absolute discretion of the Authority, tending
to make the obligations more marketable although the covenants, acts, or things
are not enumerated in this section.
Section 408. Actions to be Filed for Record
The minutes and record of
all actions of the Authority with respect to obligations issued by it shall be
filed for record in the Office of the Tribal Secretary, and the Office of the
Clerk of the Tribal Court.
CHAPTER FIVE
MISCELLANEOUS PROVISION
Section 501. Reports
The Authority shall
submit quarterly and annual reports, signed by the Chairman of the Board, to the
Executive Committee showing:
(a) A summary of the
period activities.
(b) The financial
condition of the Authority.
(c) The condition of the
properties under the Authority's management or control.
(d) A summary of any
unprofitable ventures and plans for correction.
(e) Any significate
problems and accomplishments.
(f) Plans for the future.
(g) Such other
information as the Authority or the Executive Committee shall deem pertinent.
Section 502. Acquisition of Interest Prohibited
During his tenure and for
three (3) years thereafter, no member of the Board of Trustees or executive
officer of the Authority or any other public official who exercises any
responsibilities or functions with regard to a project of the Authority, shall
voluntarily acquire any interest, direct or indirect, in any matter or in any
property included or planned to be included in any project, or in any contract
or proposed contract relating to the project; unless, prior to such acquisition,
he discloses his interest in writing to the Authority and of the Board of
Trustees, executive officer, or the public official shall not participate in any
action by the Authority relating to the property or contract in which he has an
interest. If an member of the Board of Trustees, executive officer, or the
public official involuntarily acquires any such interest, or employment, in any
such event, the person shall immediately disclose his interest in writing to the
Authority, and such disclosure shall be entered upon the minutes of the
Authority relating.to the property or contract in which he has any such
interest. Any violation of the foregoing provisions of this Section shall
constitute misconduct in office and a violation of the public trust and shall
subject the party to removal from the Board or other office held, and make such
party liable to the Authority for any and all profits of any kind or character
which he may have obtained by virtue of the violation of his trust. This section
shall not be applicable to the acquisition of any interest in obligations of the
Authority issued in connection with any project, or to the execution of
agreements by banking institutions for the deposit or handling of funds in
connection with a project or to act as trustee under any trust indenture, or to
utility service rates which are fixed or controlled by a governmental agency.
Section 503. Compliance with Federal Law
Each project developed or
operated under a contract providing for federal financial assistance shall be
developed and operated in compliance with all requirements of such contract, and
applicable federal legislation, and with all regulation and requirements set
forth from time to time by the federal government in connection with such
assistance.
Section 504. Fidelity Bonds
The Authority shall
obtain or provide for the obtaining of adequate fidelity bonds for all officers
and employees handling cash, or authorized to sign checks or obligations or to
certify vouchers.
Section 505. Property of Authority as Public Property
The property of the
Authority is declared to be public property used for essential public and
governmental purposes of the Absentee Shawnee Tribe of Oklahoma.
Section 506. No Execution on Authority Property
All property within the
Tribal jurisdiction including funds acquired or held by the Authority pursuant
to this Title shall be exempt from levy and sale by virtue of an execution, and
no execution or other judicial process shall issue against the same, nor shall
any judgment against the Authority be deemed to be a charge of lien upon such
property. However, the provisions, of this section shall not apply to or limit
the right of obligees to pursue any remedies for the enforcement of any pledge,
or lien given by the Authority on its rents, fees, or revenues, or the enforce
any purchase money mortgage upon lands purchased by the Authority with the
proceeds of the note secured by such purchase money mortgage.
Section 507. Personnel Policies to be Enacted
There shall be a
Personnel Policy Manual which shall be approved by the Board of Trustees.
Section 508. Judicial Notice
The Tribal Court Shall take judicial notice of this Title, and of all rules and
regulations of the Authority.
Section 509. Special Certificate of Incorporation
The Tribal Secretary is
directed to issue a special Certificate of Incorporation to the Authority in the
name of "Shawnee Products, Inc." in substantially the following form:
OFFICE OF THE SECRETARY
ABSENTEE SHAWNEE TRIBE OF OKLAHOMA
CERTIFICATE OF INCORPORATION
To all whom these Presents shall Come, Greetings:
WHEREAS, The
Absentee Shawnee Tribe of Oklahoma Tribal Development Act of 1993 has authorized
the Absentee Shawnee Tribal Development Authority to conduct business as
"Shawnee Products, Inc." and said Act has been filed in the office of
the Secretary of the Absentee Shawnee Tribe of Oklahoma.
NOW, THEREFORE, I, the
undersigned, Secretary of the Absentee Shawnee Tribe of Oklahoma,.by virtue of
the powers vested in me by law, do hereby issue this Certificate of
Incorporation.
IN TESTIMONY WHEREOF, I
hereunto set my hand and cause to be affixed the Great Seal of the Absentee
Shawnee Tribe of Oklahoma.
Filed at the Absentee Shawnee
Tribal Headquarters, this
_______ day of_______________
A.D., 19______.
_______________________________
Secretary
By:________________________
Section 510. Separability of Prayisions
Notwithstanding any other
evidence of the intent of the Absentee Shawnee Executive Committee, it is hereby
declared to be the intent of the Absentee Shawnee Executive Committee that if
any provision of this ordinance or the application thereof to any persons or
circumstances shall be adjusted by any court of competent jurisdiction to be
invalid, such judgment shall not affect, impair, or invalidate the remainder of
this ordinance or its application to their persons and circumstances, but shall
be confined in its operation to the provisions of this Act or the application
thereof to the persons and circumstances directly involved in the controversy in
which such judgement shall have been rendered.
Section 511. Records and Audit
The Absentee Shawnee
Tribal Development Authority shall keep records as the Absentee Shawnee
Executive Committee shall prescribe and as will facilitate an effective audit.
Section 512. Authorization of Appropriations
There is authorized to be
appropriated to carry out this Title an amount not to exceed Ten Million Dollars
($10,000,000.00).
Section 513. Rules Regulations and Procedures
The Absentee Shawnee
Executive Committee shall prescribe such rules, regulations and procedures to
carry out the provisions of this Title in any cases in which the Absentee
Shawnee Tribal Development Authority is not authorized by the terms of this
Title to prescribe its own rules on the subject.
CHAPTER SIX
MANAGEMENT OF TRIBAL ENTERPRISES
Section 601. General Management Provisions
Tribal enterprises not
separately established by legislation or organized pursuant to Tribal laws
regulating corporations, partnerships, or joint ventures shall be managed by the
Authority at the discretion of the Absentee Shawnee Executive Committee.
Section 602. Achieving Independent Status as Tribal
Enterprise
Whenever, in the
discretion of the Board of Trustees a project or enterprise of the Authority has
attained such measure of stability and profitability that it has attained the
capacity to function and grow as a separate self-sustaining entity, the Board of
Trustees shall recommend to the Absentee Shawnee Executive Committee in writing
the chartering of the entity as a Tribal enterprise independent from the
oversight of the Authority.
Section 603. Chartering of Independent Tribal
Enterprises
Upon receiving a
recommendation from the Authority that a project of the Authority be reorganized
as a separate entity the Absentee Shawnee Executive Committee shall review the
recommendation and may either:
(a) authorize the
establishment of the project as an independent Tribal enterprise by special
legislation, and enact the necessary legislation to establish that enterprise;
or
(b) authorize the
establishment of the as an independent Tribal enterprise pursuant to the general
Tribal corporation, partnership, or joint venture laws, and authorized by
legislation a person to organize such entity with such restrictions as may be
necessary or useful; or
(c) direct the Authority
to conduct further studies, or investigate other action upon such
recommendations as the Absentee Shawnee Executive Committee may deem
appropriate.
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