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Absentee-Shawnee Tribe of Indians of Oklahoma

 

Governmental Tort Claims Act

Section 1. Short Title

Section 2. Definitions

Section 3. Recognition of Sovereign Immunity

Section 4. Charitable Health Care Providers--Agreements With Tribe and Indian Health Services

Section 5. Liability--Scope--Exemption

Section 6. Housing of Inmates--Action Not Allowed

Section 7. Extent of Liability

Section 8. Exemptions From Liability

Section 9. Claim Founded Upon Loss Occurring from Defect or Dangerous Condition on Road, Street or Highway

Section 10. Claims--Petition--Limitation of Actions--Notice--Wrongful Death

Section 11. Notice of Approval or Denial of Claim

Section 12. Settlement or Defense of Claim--Effect of Liability Insurance

Section 13. Enforcement of Judgments

Section 14. Recovery of Payments--Limitations of Actions

Section 15. Tribe's Duty to Defend

Section 16. Constitutional or Statutory Rights, Privileges or Immunities--Violation by Employee--Defending--Indemnification--Right of Recovery--Punitive or Exemplary Damages

Section 17. Venue--Parties--Service of Process--Evidence of Insurance

Section 18. Application of Tribal Laws and Rules of Procedure

Section 19. Governmental and Proprietary Functions of Political Subdivisions--Application of Act

Section 20. Insurance

Section 21. Application of Laws

Section 22. Abrogation

Section 23. Default or Agreed Judgment, Consent Decree or Other Settlement of Litigation or Claim Against Tribe

AST GTCA Section 1
Section 1. Short Title

This act shall be known and may be cited as “The Governmental Tort Claims Act”.

Absentee Shawnee Governmental Tort Claims Act Section 1, AST GTCA Section 1

 

 

 




AST GTCA Section 2
Section 2. Definitions

As used in The Governmental Tort Claims Act:

1. “Action” means a proceeding in a court of competent jurisdiction by which one party brings a suit against another;

2. “Agency” means any board, commission, committee, department or other instrumentality or entity designated to act on behalf of the Tribe or a political subdivision;

3. “Charitable health care provider” means a person who is licensed, certified, or otherwise authorized by the laws of this Tribe to administer health care in the ordinary course of business or the practice of a profession and who provides care to a medically indigent person, as defined in paragraph 8 of this section, with no expectation of or acceptance of compensation of any kind;

4. “Claim” means any written demand presented by a claimant or the claimant's authorized representative in accordance with this act to recover money from the Tribe as compensation for an act or omission of a political subdivision or the Tribe or an employee;

5. “Claimant” means the person or the person's authorized representative who files notice of a claim in accordance with The Governmental Tort Claims Act. Only the following persons and no others may be claimants:

a. any person holding an interest in real or personal property which suffers a loss, provided that the claim of the person shall be aggregated with claims of all other persons holding an interest in the property and the claims of all other persons which are derivative of the loss, and that multiple claimants shall be considered a single claimant,

b. the individual actually involved in the accident or occurrence who suffers a loss, provided that the individual shall aggregate in the claim the losses of all other persons which are derivative of the loss, or

c. in the case of death, an administrator, special administrator or a personal representative who shall aggregate in the claim all losses of all persons which are derivative of the death;

6. “Employee” means any person who is authorized to act on behalf of a political subdivision or the Tribe whether that person is acting on a permanent or temporary basis, with or without being compensated or on a full-time or part-time basis.

a. Employee also includes:

(1) all elected or appointed officers, members of governing bodies and other persons designated to act for an agency, but the term does not mean a person or other legal entity while acting in the capacity of an independent contractor or an employee of an independent contractor,

b. For the purpose of The Governmental Tort Claims Act, the following are employees of this Tribe, regardless of the place where duties as employees are performed:

(1) physicians acting in an administrative capacity,

(2) physicians who practice medicine or act in an administrative capacity as an employee of the Tribe,

(3) physicians who provide medical care to inmates pursuant to a contract with the Tribe,

(6) any person who is licensed to practice medicine, who is under an administrative professional services contract with the Tribe under the auspices of the Oklahoma Health Care Authority Chief Medical Officer, and who is limited to performing administrative duties such as professional guidance for medical reviews, reimbursement rates, service utilization, health care delivery and benefit design for the Absentee Shawnee Tribe of Oklahoma, only while acting within the scope of such contract,

(7) licensed medical professionals under contract with the Tribe or tribal entities who provide medical care to inmates or detainees in the custody or control of law enforcement agencies,

(8) licensed mental health professionals under contract with the Tribe to provide medical care or who practice medicine or act in an administrative capacity as an employee of the Tribe,

c. Except as provided in subparagraph b of this paragraph, in no event shall the Tribe be held liable for the tortious conduct of any physician, resident physician or intern while practicing medicine or providing medical treatment to patients;

7. “Loss” means death or injury to the body or rights of a person or damage to real or personal property or rights therein;

8. “Medically indigent” means a person requiring medically necessary hospital or other health care services for the person or the dependents of the person who has no public or private third-party coverage, and whose personal resources are insufficient to provide for needed health care;

9. “Political subdivision” means:

a. for the purposes of The Governmental Tort Claims Act only, a housing authority created pursuant to the provisions of the Absentee Shawnee Tribe of Oklahoma Housing Authority Act,

b. for purposes of The Governmental Tort Claims Act only, any organization that is designated as a youth services agency,

c. for purposes of The Governmental Tort Claims Act only, any judge presiding over a drug court, as defined by the Criminal Offenses Code or Criminal Procedure Code

d. for purposes of The Governmental Tort Claims Act only, any child-placing agency licensed by the Tribe to place children in foster family homes, and all their institutions, instrumentalities or agencies;

10. “Scope of employment” means performance by an employee acting in good faith within the duties of the employee's office or employment or of tasks lawfully assigned by a competent authority including the operation or use of an agency vehicle or equipment with actual or implied consent of the supervisor of the employee, but shall not include corruption or fraud;

11. “Tribe” means the Absentee Shawnee Tribe of Indians of Oklahoma or any office, department, agency, authority, commission, board, institution, hospital, college, university, tribal corporation, economic enterprise, casino, public trust of which the Absentee Shawnee Tribe of Indians of Oklahoma is the beneficiary, or other instrumentality thereof; and

12. “Tort” means a legal wrong, independent of contract, involving violation of a duty imposed by general law or otherwise, resulting in a loss to any person, association or corporation as the proximate result of an act or omission of a political subdivision or the Tribe or an employee acting within the scope of employment.

Absentee Shawnee Governmental Tort Claims Act Section 2, AST GTCA Section 2

 

 

 




AST GTCA Section 3
Section 3. Recognition of Sovereign Immunity

A. The Absentee Shawnee Tribe of Oklahoma does hereby affirm and recognize their sovereign immunity. The Tribe, its political subdivisions, and all of their employees acting within the scope of their employment, whether performing governmental or proprietary functions, shall be immune from liability for torts.

B. The Tribe, only to the extent and in the manner provided in this act, waives its immunity and that of its political subdivisions. In so waiving immunity, it is not the intent of the Tribe to waive any rights under the Absentee Shawnee Tribe of Indians Constitution, federal law, the United States Constitution or decisions in the United States Supreme Court.

Absentee Shawnee Governmental Tort Claims Act Section 3, AST GTCA Section 3

 

 

 




AST GTCA Section 4
Section 4. Charitable Health Care Providers--Agreements With Tribe and Indian Health Services

A. 1. The Tribe's Health Services and Contract Health Division, may enter into agreements with charitable health care providers in which the provider stipulates to the Tribe that when the provider renders professional services to a medically indigent person in a free clinic or when a patient is referred from a free clinic to another charitable health care provider for medical services, such services will be provided gratuitously;

2. The Tribe shall adopt rules which specify the conditions for termination of any such agreement, and the rules shall be made a part of the agreement; and

3. A charitable health care provider, for purposes of any claim for damages arising as a result of rendering professional services to a medically indigent person, which professional services were rendered gratuitously in a free clinic, or when a patient is referred from a free clinic to another charitable health care provider for medical services, at a time when an agreement entered into by the charitable health care provider with the Tribe, pursuant to this section was in effect, shall be considered an employee of the Tribe under The Governmental Tort Claims Act.

B. The Tribe shall adopt rules on eligibility criteria for determining whether a person qualifies as a medically indigent person.

C. Any claim arising from the rendering of or failure to render professional services by a charitable health care provider brought pursuant to The Governmental Tort Claims Act shall not be considered by an insurance company in determining the rate charged for any professional liability insurance policy for health care providers nor whether to cancel any such policy.

Absentee Shawnee Governmental Tort Claims Act Section 4, AST GTCA Section 4

 

 

 




AST GTCA Section 5
Section 5. Liability--Scope--Exemption

A. The Tribe or a political subdivision shall be liable for loss resulting from its torts or the torts of its employees acting within the scope of their employment subject to the limitations and exceptions specified in this act and only where the Tribe, if a private person or entity, would be liable for money damages under the laws of this Tribe. The Tribe or a political subdivision shall not be liable under the provisions of this act for any act or omission of an employee acting outside the scope of his employment.

B. The liability of the Tribe under this act shall be exclusive and in place of all other liability of the Tribe, a political subdivision or employee at common law or otherwise.

Absentee Shawnee Governmental Tort Claims Act Section 5, AST GTCA Section 5

 

 

 




AST GTCA Section 6
Section 6. Housing of Inmates--Action Not Allowed

Nothing in the Governmental Tort Claims Act shall be construed as allowing an action or recovery against this Tribe or against any employee of this Tribe due to the housing of federal inmates or inmates from another state in facilities owned or operated by private prison contractors. If a public trust that has as its sole beneficiary a city, town or county has a facility that houses federal inmates or inmates from another state, the immunity provided for in the Governmental Tort Claims Act shall not apply to that trust.

Absentee Shawnee Governmental Tort Claims Act Section 6, AST GTCA Section 6

 

 

 




AST GTCA Section 7
Section 7. Extent of Liability

A. The total liability of the Tribe on claims within the scope of The Governmental Tort Claims Act, arising out of an accident or occurrence happening retroactively before the enactment of this Act and prospectively after the enactment of this act shall not exceed:

1. Twenty-five thousand dollars ($25,000.00) for any claim or to any claimant who has more than one claim for loss of property arising out of a single act, accident, or occurrence; provided that such liability shall only exist if appropriate insurance is available to satisfy such claim. Under no circumstances are tribal funds available to satisfy such claims;

2. Except as otherwise provided in this paragraph, two hundred fifty thousand dollars ($250,000.00) to any claimant for a claim for any other loss arising out of a single act, accident, or occurrence. Except however, the limits of said liability for the Tribe for claims arising from medical negligence shall be two hundred thousand dollars ($200,000.00) or

3. the policy limit for insurance obtained by the Tribe for any number of claims, excluding property damage as set forth in Section 7(A)1, arising out of a single occurrence or accident.

B. No award for damages in an action or any claim against the Tribe shall include punitive or exemplary damages.

C. When the amount awarded to or settled upon multiple claimants exceeds the limitations of this section, any party may apply to the district court which has jurisdiction of the cause to apportion to each claimant the claimant's proper share of the total amount as limited herein. The share apportioned to each claimant shall be in the proportion that the ratio of the award or settlement made to him bears to the aggregate awards and settlements for all claims against the Tribe arising out of the occurrence. When the amount of the aggregate losses presented by a single claimant exceeds the limits of paragraph 1 or 2 of subsection A of this section, each person suffering a loss shall be entitled to that person's proportionate share.

E. The Tribe may petition the court that all parties and actions arising out of a single accident or occurrence shall be joined as provided by law, and upon order of the court the proceedings upon good cause shown shall be continued for a reasonable time or until such joinder has been completed. The Tribe shall be allowed to interplead in any action which may impose on it any duty or liability pursuant to this act.

F. The liability of the Tribe under The Governmental Tort Claims Act shall be several from that of any other person or entity, and the Tribe shall only be liable for that percentage of total damages that corresponds to its percentage of total negligence. Nothing in this section shall be construed as increasing the liability limits imposed on the Tribe under The Governmental Tort Claims Act.

Absentee Shawnee Governmental Tort Claims Act Section 7, AST GTCA Section 7

 

 

 




AST GTCA Section 8
Section 8. Exemptions From Liability

The Tribe shall not be liable if a loss or claim results from:

1. Legislative functions;

2. Judicial, quasi-judicial, or prosecutorial functions;

3. Execution or enforcement of the lawful orders of any court;

4. Adoption or enforcement of or failure to adopt or enforce a law, whether valid or invalid, including, but not limited to, any statute, charter provision, ordinance, resolution, rule, regulation or written policy;

5. Performance of or the failure to exercise or perform any act or service which is in the discretion of the Tribe or its employees;

6. Civil disobedience, riot, insurrection or rebellion or the failure to provide, or the method of providing, police, law enforcement or fire protection;

7. Any claim based on the theory of attractive nuisance;

8. Snow or ice conditions or temporary or natural conditions on any public way or other public place due to weather conditions, unless the condition is affirmatively caused by the negligent act of the Tribe;

9. Entry upon any property where that entry is expressly or implied authorized by law;

10. Natural conditions of property of the Tribe;

11. Assessment or collection of taxes or special assessments, license or registration fees, or other fees or charges imposed by law;

12. Licensing powers or functions including, but not limited to, the issuance, denial, suspension or revocation of or failure or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authority;

13. Inspection powers or functions, including failure to make an inspection, review or approval, or making an inadequate or negligent inspection, review or approval of any property, real or personal, to determine whether the property complies with or violates any law or contains a hazard to health or safety, or fails to conform to a recognized standard;

14. Any loss to any person covered by any workers' compensation act or any employer's liability act;

15. Absence, condition, location or malfunction of any traffic or road sign, signal or warning device unless the absence, condition, location or malfunction is not corrected by the Tribe responsible within a reasonable time after actual or constructive notice or the removal or destruction of such signs, signals or warning devices by third parties, action of weather elements or as a result of traffic collision except on failure of the Tribe to correct the same within a reasonable time after actual or constructive notice. Nothing herein shall give rise to liability arising from the failure of the Tribe to initially place any of the above signs, signals or warning devices. The signs, signals and warning devices referred to herein are those used in connection with hazards normally connected with the use of roadways or public ways and do not apply to the duty to warn of special defects such as excavations or roadway obstructions;

16. Any claim which is limited or barred by any other law;

17. Misrepresentation;

18. An act or omission of an independent contractor or consultant or his employees, agents, subcontractors or suppliers or of a person other than an employee of the Tribe at the time the act or omission occurred;

19. Theft by a third person of money in the custody of an employee unless the loss was sustained because of the negligence or wrongful act or omission of the employee;

20. Participation in or practice for any interscholastic or other athletic contest sponsored or conducted by or on the property of the Tribe;

21. Provision, equipping, operation or maintenance of any prison, jail or correctional facility, or injuries resulting from the parole or escape of a prisoner or injuries by a prisoner to any other prisoner; provided, however, this provision shall not apply to claims from individuals not in the custody of the Absentee Shawnee Tribal Police Department based on accidents involving motor vehicles owned or operated by the Tribe;

22. Provision, equipping, operation or maintenance of any juvenile detention facility, or injuries resulting from the escape of a juvenile detainee, or injuries by a juvenile detainee to any other juvenile detainee;

23. Any claim or action based on the theory of manufacturer's products liability or breach of warranty, either expressed or implied;

24. Any claim or action based on the theory of indemnification or subrogation;

25. Any claim based upon an act or omission of an employee in the placement of children;

26. Acts or omissions done in conformance with then current recognized standards;

27. Maintenance of the Tribe's roads system or any portion thereof unless the claimant presents evidence which establishes either that the Tribe failed to warn of the unsafe condition or that the loss would not have occurred but for a negligent affirmative act of the Tribe;

28. Any confirmation of the existence or nonexistence of any effective financing statement on file in the office of the Secretary made in good faith by an employee of the office of the Secretary as required by the provisions the Tribal Code of Laws.

29. Any court-ordered community sentence; or

30. Remedial action and any subsequent related maintenance of property pursuant to and in compliance with an authorized environmental remediation program, order, or requirement of a federal or Tribe environmental agency.

Absentee Shawnee Governmental Tort Claims Act Section 8, AST GTCA Section 8

 

 

 




AST GTCA Section 9
Section 9. Claim Founded Upon Loss Occurring from Defect or Dangerous Condition on Road, Street or Highway

Nothing contained in this act shall be construed as allowing an action or recovery against the Tribe or any of its officers or employees on a claim or cause of action founded upon any loss occurring from a defect or dangerous condition on any road, street or highway which was in existence, whether known or unknown:

1. On November 1, 2008; or

2. When an existing facility became or becomes a part of the Tribe's Roads inventory; or

3. When an existing facility became or becomes the maintenance responsibility of the Tribe, to the extent of that responsibility as required by law.

To the extent that the Tribe is required by law to maintain a road, street, or highway within the territorial limits of a political subdivision, the political subdivision shall not be liable for any loss occurring from a defect or dangerous condition in the area required to be maintained by the Tribe.

Absentee Shawnee Governmental Tort Claims Act Section 9, AST GTCA Section 9

 

 

 




AST GTCA Section 10
Section 10. Claims--Petition--Limitation of Actions--Notice--Wrongful Death

A. Any person having a claim against the Tribe within the scope of this Act shall present a claim to the Tribe for any appropriate relief including the award of money damages.

B. Claims against the Tribe are to be presented within one (1) year of the date the loss occurs. A claim against the Tribe shall be forever barred unless notice thereof is presented within one (1) year after the loss occurs.

C. A claim against the Tribe shall be in writing and filed with the Office of the Secretary who shall immediately notify the Attorney General and the department concerned and conduct a diligent investigation of the validity of the claim within the time specified for approval or denial of claims by Section 11 of this title. A claim may be filed by certified mail with return receipt requested. A claim which is mailed shall be considered filed upon receipt by the Office of the Secretary.

D. A claim against a political subdivision shall be in writing and filed with the Office of the Secretary.

E. The written notice of claim to the Tribe shall state the date, time, place and circumstances of the claim, the identity of the departments or entities involved, the amount of compensation or other relief demanded, the name, address and telephone number of the claimant, and the name, address and telephone number of any agent authorized to settle the claim. Failure to state either the date, time, place and circumstances and amount of compensation demanded shall not invalidate the notice unless the claimant declines or refuses to furnish such information after demand by the Tribe. The time for giving written notice of claim pursuant to the provisions of this section does not include the time during which the person injured is unable due to incapacitation from the injury to give such notice, not exceeding ninety (90) days of incapacity.

F. When the claim is one for death by wrongful act or omission, notice may be presented by the personal representative within one (1) year after the death occurs. If the person for whose death the claim is made has presented notice that would have been sufficient had he lived, an action for wrongful death may be brought without any additional notice.

Absentee Shawnee Governmental Tort Claims Act Section 10, AST GTCA Section 10

 

 

 




AST GTCA Section 11
Section 11. Notice of Approval or Denial of Claim

A. A person may not initiate a suit against the Tribe unless the claim has been denied in whole or in part. A claim is deemed denied if the Tribe fails to approve the claim in its entirety within ninety (90) days, unless the Tribe has denied the claim or reached a settlement with the claimant before the expiration of that period. If the Tribe approves or denies the claim in ninety (90) days or less, the Tribe shall give notice within five (5) days of such action to the claimant at the address listed in the claim. If the Tribe fails to give the notice required by this subsection, the period for commencement of an action in subsection B of this section shall not begin until the expiration of the ninety-day period for approval. The claimant and the Tribe may continue attempts to settle a claim, however, settlement negotiations do not extend the date of denial unless agreed to in writing by the claimant and the Tribe.

B. No action for any cause arising under this Act shall be maintained unless valid notice has been given and the action is commenced within one hundred eighty (180) days after denial of the claim as set forth in this section. The claimant and the Tribe may agree in writing to extend the time to commence an action for the purpose of continuing to attempt settlement of the claim except no such extension shall be for longer than two (2) years from the date of the loss.

Absentee Shawnee Governmental Tort Claims Act Section 11, AST GTCA Section 11

 

 

 




AST GTCA Section 12
Section 12. Settlement or Defense of Claim--Effect of Liability Insurance

A. The Tribe, after conferring with authorized legal counsel, may settle or defend against a claim or suit brought against it or its employee under this act subject to any procedural requirements imposed by statute, ordinance, resolution or written policy, and may appropriate money for the payment of amounts agreed upon. When the amount of any settlement exceeds twenty-five thousand dollars ($25,000.00), and any payment required by the settlement will not be paid through an applicable contract or policy of insurance, the settlement shall not be effective until approved by the District Court of the Absentee Shawnee Tribe and entered as a judgment as provided by law.

B. If a policy or contract of liability insurance covering the Tribe or its employees is applicable, the terms of the policy govern the rights and obligations of the Tribe and the insurer with respect to the investigation, settlement, payment and defense of claims or suits against the Tribe or its employees covered by the policy. However, the insurer may not enter into a settlement for an amount which exceeds the insurance coverage without the approval of the governing body of the Tribe or its designated representative if the Tribe is insured.

C. The Tribe shall not be liable for any costs, judgments or settlements paid through an applicable contract or policy of insurance but shall be entitled to set off those payments against liability arising from the same occurrence.

D. The Tribe shall have the right of subrogation against the insurer issuing any applicable contractor policy of insurance to the monetary limit of said policy of insurance or contract, if judgment or settlement of any claim arising pursuant to this act results in the imposition of monetary liability upon the Tribe.

E. Judgments, orders, and settlements of claims shall be open public records unless sealed by the court for good cause shown.

Absentee Shawnee Governmental Tort Claims Act Section 12, AST GTCA Section 12

 

 

 




AST GTCA Section 13
Section 13. Enforcement of Judgments

A. Judgments recovered against the Tribe under the provisions of this act shall be enforced in the same manner and to the same extent as judgments are now enforced against the Tribe under the law except as herein provided.

B. If the judgment is obtained against the Tribe that has procured a contract or policy of liability or indemnity insurance protection, the holder of the judgment may use the methods of collecting the judgment which are provided by the policy or contract or law to the extent of the limits of coverage provided.

C. For the payment of any judgment obtained under the provisions of this act against a political subdivision that is a self-insurer or not fully covered by liability insurance, the manner of paying a money judgment shall be as follows. Proof of indebtedness, and evidence of any estimated tax levy or increases necessary to reimburse the sinking fund for the purposes of the and other evidence or statements which the court may require, shall be made to the court before final judgment is rendered. As an alternative to paying the money judgment out of the sinking fund at the rate of one-third (1/3) each year, the court, based on consideration of evidence and proof, may provide for the judgment to be paid over a period of not less than one (1) nor more than ten (10) years. The interest rate on any judgment when payment is extended more than three (3) years shall be at the rate prescribed by law for the first three (3) years and at the rate of six percent (6%) for each remaining year.

D. Money judgments against the Tribe not payable by insurance shall be paid in the following manner. An agency whose act or omission gave rise to the judgment may, at its discretion and upon approval of the Executive Committee of the Tribe pay a judgment or any portion thereof from any funds available to it. Provided, however, no agency shall be required to pay a judgment prior to the fiscal year next following the fiscal year in which the judgment is obtained. Any such judgment may be paid at a rate of one-third (1/3) per fiscal year from funds available for operation of the agency.

E. Nothing in this act shall be interpreted as allowing liens on Tribal property.

Absentee Shawnee Governmental Tort Claims Act Section 13, AST GTCA Section 13

 

 

 




AST GTCA Section 14
Section 14. Recovery of Payments--Limitations of Actions

The Tribe shall have the right to recover from an employee for any claim or action under this act or any other claim or action any payments made by it for any judgment or settlement, or portion thereof, and costs or fees by or on behalf of an employee's defense if it is shown that the conduct of the employee which gave rise to the claim or action was outside the scope of his employment, or if the employee fails to cooperate in good faith in the defense of the claim or action. A judgment or settlement in an action or claim under this act shall constitute a complete bar to any action by the claimant against an employee whose conduct gave rise to the claim resulting in that judgment or settlement. Nothing in this act shall be construed to authorize the Tribe to pay for any punitive or exemplary damages rendered against an employee.

Absentee Shawnee Governmental Tort Claims Act Section 14, AST GTCA Section 14

 

 

 




AST GTCA Section 15
Section 15. Tribe's Duty to Defend

When the Tribe has a duty to defend any action pursuant to the provisions of this act, it shall be the duty of the Attorney General to defend all such actions, unless an agency of the Tribe is authorized by law to employ its own attorneys, in which case said attorneys may defend such actions against the agency or the agency may request that the Attorney General defend such actions. If such a request is made, the Attorney General shall defend any such action.

Absentee Shawnee Governmental Tort Claims Act Section 15, AST GTCA Section 15

 

 

 




AST GTCA Section 16
Section 16. Constitutional or Statutory Rights, Privileges or Immunities--Violation by Employee--Defending--Indemnification--Right of Recovery--Punitive or Exemplary Damages

A. The Tribe, subject to procedural requirements imposed by this section, other applicable statute, ordinance, resolution or written policy, shall:

1. Provide a defense for any employee as defined in Section 2 of this Act when liability is sought for any violation of property rights or any rights, privileges or immunities secured by the Constitution or laws of the Tribe when alleged to have been committed by the employee while acting within the scope of employment;

2. Pay or cause to be paid any judgment entered in the courts of the United States, the State of Oklahoma, the Tribe or any other state against any employee or settlement agreed to by Tribe entered against any employee, and any costs or fees, for a violation of property rights or any rights, privileges or immunities secured by the Constitution or laws of the Tribe which occurred while the employee was acting within the scope of employment. The maximum aggregate amount of indemnification paid directly from funds of the Tribe to or on behalf of any employee pursuant to this section shall not exceed the maximum figures authorized by the provisions of Section 7, regardless of the number of persons who suffer damage, injury or death as a result of the occurrence; and

3. For any cause of action filed against an employee on or after January 1, 1990, post or cause to be posted any supersedeas or other bond ordered by the court.

B. 1. The Tribe shall not be required to indemnify any employee of Tribe under the provisions of this section, unless the employee is judicially determined to be entitled to such indemnification and a final judgment therefor is entered. The exclusive means of recovering indemnification from the Tribe shall be by filing an application for indemnification in the District Court of the Absentee Shawnee Tribe. The exclusive means of recovering indemnification from a political subdivision shall be by filing an application for indemnification in the Court where the judgment was entered. If the federal trial court cannot hear the action, such application shall be filed in the district court of the Tribe. Actions to determine entitlement to indemnification shall be tried to the court, sitting without a jury.

2. All applications for indemnification from the Tribe shall be filed in the name of the real party or parties in interest, and in no event shall any application be presented nor recovery made under the right of subrogation. Indemnification from the Tribe as provided for in this subsection shall extend only to acts or omissions occurring on or after January 1, 1984. The employee of the Tribe must file an application for indemnification within thirty (30) days of final judgment, or the right to seek indemnification shall be lost forever.

3. In order to recover indemnification from the Tribe pursuant to this subsection, the court shall determine by a preponderance of the evidence that:

a. the employee reasonably cooperated in good faith in the defense of the action upon which the judgment or settlement was awarded and for which indemnification is sought;

b. the actions or omissions upon which such a judgment or settlement has been rendered were not the result of fraudulent conduct or corruption by the employee;

c. the employee, in committing the acts or omissions upon which a judgment or settlement has been rendered was acting in good faith and within any applicable written administrative policies known to the employee at the time of the omissions or acts alleged;

d. the employee was acting within the scope of employment at the time that the acts or omissions upon which a judgment or settlement has been rendered were committed by the employee;

e. the acts or omissions of the employee upon which a judgment or settlement has been rendered were not motivated by invidious discriminatory animus directed toward race, sex, or national origin; and

f. when punitive or exemplary damages are included in the total award rendered against the employee of the Tribe, the indemnification amount sought for fees and costs does not include amounts attributable to the employee's defense against the punitive or exemplary damages in accordance with subsection D of this section.

4. A. Any indemnification judgment against the Tribe under this section shall be an encumbrance against otherwise available unencumbered monies and unallocated unencumbered monies in the appropriations of the department on whose behalf the employee to be indemnified was acting at the time of the act or omission upon which the judgment or settlement was awarded and for which indemnification was sought.

B. If sufficient unencumbered monies or unallocated unencumbered monies do not exist in the department's appropriations to pay the indemnification, the agency shall make application to the Executive Committee for full payment of the indemnification. Payment out of this fund shall be authorized if there are sufficient monies greater than the sum total of the then pending fund indemnification judgment requests, and the reserves for future tort claims.

C. The Tribe shall have the right to recover from an employee the amount expended by the Tribe to provide a defense, or pay a settlement agreed to by the employee and the Tribe, or pay the final judgment, if it is shown that the employee's conduct which gave rise to the action was fraudulent or corrupt or if the employee fails to reasonably cooperate in good faith in defense of the action.

D. The Tribe shall not, under any circumstances, be responsible to pay or indemnify employee for any punitive or exemplary damages rendered against the employee, nor to pay for any defense, judgment, settlement, costs or fees which are paid or covered by any applicable policy or contract of insurance. Where any civil rights judgment upon which indemnification under subsection B of this section is applied for by an employee of the Tribe includes an award for both actual and punitive or exemplary damages, the total amount of fees and costs for which indemnification may be allowed shall be limited to the percentage of fees and costs in the total award that the percentage of the award of actual damages bears to the total judgment awarded. It is the public policy of the Absentee Shawnee Tribe of Indians of Oklahoma that the Tribe may indemnify its employee for actual damages, fees, and costs as provided herein in any case in which the findings set out in paragraph B of this section have been determined.

E. Nothing in this section shall be construed to waive any immunities available to the Tribe. Any immunity or other bar to a civil lawsuit under tribal or federal law shall remain in effect. The fact that the Tribe may relieve an employee from all judgments, settlements, costs or fees arising from the civil lawsuit shall not, under any circumstances, be communicated to any trier of fact in the case of any trial by jury.

Absentee Shawnee Governmental Tort Claims Act Section 16, AST GTCA Section 16

 

 

 




AST GTCA Section 17
Section 17. Venue--Parties--Service of Process--Evidence of Insurance

A. Venue for actions against the Tribe within the scope of this act shall be in the District Court of the Absentee Shawnee Tribe of Indians of Oklahoma.

B. Suits instituted pursuant to the provisions of this act shall name as defendant the Tribe against which liability is sought to be established. In no instance shall an employee of the Tribe acting within the scope of his employment be named as defendant with the exception that suits based on the conduct of resident physicians and interns shall be made against the individual consistent.

C. All actions against the Tribe shall be filed in the name of the real party or parties in interest, and in no event shall any claim be presented nor recovery be made under the right of subrogation.

D. In all actions against the Tribe, service shall be perfected by mailing, by certified mail, return receipt requested, a summons and a copy of the petition to the Attorney General. Claimant shall also mail, by certified mail, return receipt requested, a copy of the summons and a copy of the petition to the Governor of the Tribe and a copy of the summons and a copy of the petition to the Office of the Secretary of the Tribe.

E. No attempt shall be made in the trial of any action brought against Tribe or employee within the scope of this act to suggest the existence of any insurance which covers in whole or in part any judgment or award which may be rendered in favor of the plaintiff.

Absentee Shawnee Governmental Tort Claims Act Section 17, AST GTCA Section 17

 

 

 




AST GTCA Section 18
Section 18. Application of Tribal Laws and Rules of Procedure

The laws and statutes of the Absentee Shawnee Tribe of Indians of Oklahoma and the Civil Procedure Code insofar as applicable and to the extent that such rules are not inconsistent with the provisions of this act, shall apply to and govern all actions brought under the provisions of this act.

Absentee Shawnee Governmental Tort Claims Act Section 18, AST GTCA Section 18

 

 

 




AST GTCA Section 19
Section 19. Governmental and Proprietary Functions of Political Subdivisions--Application of Act

The distinction existing between governmental functions and proprietary functions of political subdivisions shall not be affected by the provisions of this act; however the provisions of this act shall apply to both governmental and proprietary functions.

Absentee Shawnee Governmental Tort Claims Act Section 19, AST GTCA Section 19

 

 

 




AST GTCA Section 20
Section 20. Insurance

A. The governing body of the Tribe may:

1. Insure the Tribe against all or any part of any liability it may incur for death, injury or disability of any person or for damage to property, either real or personal;

2. Insure any employee of the Tribe against all or any part of his liability for injury or damage resulting from an act or omission in the scope of employment;

3. Insure against the expense of defending a claim against the Tribe or its employee, whether or not liability exists on such claim; or

4. Insure the Tribe or its employee against any loss, damage or liability.

The cost or premium of any such insurance is a proper expenditure of the Tribe.

As used in this subsection, “employee” means any person who has acted in behalf of the Tribe, whether that person is acting on a permanent or temporary basis with or without being compensated or on a full-time or part-time basis. Employee also includes all elected or appointed officers, members of governing bodies of the Tribe, and persons appointed, and other persons designated by a the Tribe to act in its behalf.

B. Any insurance authorized by law to be purchased, obtained or provided by a Tribe may be provided by:

1. Self-insurance, which may be, but is not required to be, funded by appropriations to establish or maintain reserves for self-insurance purposes. Any self-insurance reserve fund shall be non-fiscal and shall not be considered in computing any levy when the Tribe makes its annual estimate for needed appropriations;

2. Insurance in any insurer authorized to transact insurance in the State of Oklahoma;

3. Insurance secured in accordance with any other method provided by law; or

4. Any combination of insurance authorized by this section.

Absentee Shawnee Governmental Tort Claims Act Section 20, AST GTCA Section 20

 

 

 




AST GTCA Section 21
Section 21. Application of Laws

This act is exclusive and supersedes all laws on the same subject heretofore, and all acts or parts of acts in conflict herewith are repealed.

Absentee Shawnee Governmental Tort Claims Act Section 21, AST GTCA Section 21

 

 

 




AST GTCA Section 22
Section 22. Abrogation

Nothing in this act shall abrogate or amend in any way presently existing remedies, causes of actions or claims presently existing on behalf of individuals or citizens. This act does apply to any claim against the Tribe arising before the effective date of this act.

Absentee Shawnee Governmental Tort Claims Act Section 22, AST GTCA Section 22

 

 

 




AST GTCA Section 23
Section 23. Default or Agreed Judgment, Consent Decree or Other Settlement of Litigation or Claim Against Tribe

A. No agency, board or commission, public officer, official or employee of the Tribe shall, without the approval of the Executive Committee at regular Executive Committee Meeting, enter into any default or agreed judgment, consent decree or other settlement of any litigation or claim against this Tribe which would require a settlement expenditure in excess of two hundred fifty thousand dollars ($250,000.00) or the creation, modification or implementation of a court-ordered or legislatively authorized plan or program which would necessitate an appropriation by the Tribe in excess of two hundred fifty thousand dollars ($250,000.00). Approval of the Executive Committee pursuant to this section shall be by resolution. Any default or agreed judgment, consent decree or other settlement entered into in violation of this section shall be void.

B. The Attorney General shall be notified by any agency, department, board or commission, public officer, official or employee of this Tribe of all lawsuits against said agency, department, board or commission, public officer, official or employee that seeks relief which would impose obligations requiring an agency to request a supplemental appropriation or to request an increase in appropriations to maintain the current level of services beyond the fiscal year in which the lawsuit is filed if said lawsuit was settled in favor of the plaintiff. The Attorney General shall review any such cases and may represent the interests of the Tribe, if he considers it to be in the best interest of the Tribe to do so. Representation of multiple defendants in such actions may, at the discretion of the Attorney General, be divided with counsel for the agency, department, board or commission, public officer, official or employee of this Tribe as necessary to avoid conflicts of interest. The Attorney General may levy and collect costs, expenses of litigation and a reasonable attorney's fee for such legal services from the agency, department, board or commission, public officer, official or employee of this Tribe.

C. A copy of the service summons in all actions on claims against the Tribe shall be made on the Attorney General of this Tribe by the petitioner.

Absentee Shawnee Governmental Tort Claims Act Section 23, AST GTCA Section 23
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