Ordinances of the Elk Valley Rancheria, California
Last amended: 2002
Elk Valley Rancheria Ordinance No 99-32
AN ORDINANCE OF THE TRIBAL COUNCIL OF THE ELK VALLEY RANCHERIA LIMITING THE LIABILITY OF TRIBAL OFFICIALS, OFFICERS AND EMPLOYEES.
The Tribal Council of the Elk Valley Rancheria does hereby ordain as follows;
Section 1. Findings and Declarations. The Tribal Council for the Elk Valley Rancheria ("Tribe") finds and declares that:
1. The Tribe is a quasi-sovereign governmental entity that enjoys sovereign immunity from suit. The Tribe, as a governmental entity, can only act through its authorized elected officials, officers, and employees.
2. The Tribe is small with limited financial resources. It does not have substantial revenues to pay for the cost of defending lawsuits that are brought against its elected officials, officers, and employees when carrying out duties within the officials authority or the employees scope of work.
3. Likewise, the Tribe does not have the financial resources to indemnify its elected officials officers, employees and pay judgement entered against the tribe's elected officials, officers, and employees for their negligent acts committed within the course and scope of their office or employment.
4. The Tribe would be unable to attract qualified people to serve in official positions or take positions of employment with the Tribe unless, like any other governmental entity, the Tribe can limit the liability of its elected officials, officers, or employees from suits brought against them in their individual capacities for negligent acts committed while carrying out official duties or within the course or scope of their employment.
5. In lieu of indemnifying officials and employee of the Tribe, the Tribe is enacting this Ordinance, making it clear that officials and employees committing negligent acts while carrying out their official duties or acting within the course and scope of their employment enjoy sovereign immunity from suit absent an express waiver by the Tribe of such immunity.
6. The enactment of this Ordinance is necessary in order for the Tribe to be able to attract qualified personnel to serve in official capacities and key employment positions with the Tribe and to preserve meager Tribal funds that are absolutely necessary to provide essential governmental services on the Reservation.
Section 2. Adoption of New Ordinance Entitled "Limitation on Public Officials and Employees Liability". A new Ordinance entitled "Limitation on Tribal Officials and Employees Liability" is hereby added to the Elk Valley Tribal Code and shall provide as follows:
2.70 Sovereign Immunity of the Tribe.
2.80 Immunity of Elected Officers, Tribal Officials, and Tribal Employees.
2.90 Assertion of the Defense of Sovereign Immunity by Elected Officials, Tribal Officers, and Tribal Employees.
2.100 Intentional Torts and Gross Negligent Acts.
2.60 Definitions. As used in this Ordinance, the following items shall have the following meanings:
A. "Elected Official" means the Chairperson, Vice-Chairperson, Secretary-Treasurer, and Council Members of the Elk Valley Tribal Council.
B. "Tribal Council" means the Tribal Council of the Elk Valley Rancheria as established by the Constitution of the Elk Valley Rancheria.
C. "Tribal Economic Enterprise" means an enterprise wholly owned and operated by the Elk Valley Rancheria for the purpose of generating revenue to fund essential Tribal Governmental programs and services or to create employment opportunities.
D. "Tribal Employees" means a person employed by the Tribe, its agencies, departments, or economic enterprises for the purpose of providing Tribal Governmental services, programs or employment.
E. "Tribal Official" means a person who has been appointed by the Elk Valley Tribal Council to hold an office with the Tribe.
F. "Tribe" means the Elk Valley Rancheria, a quasi-sovereign governmental entity possessing inherent powers of self-government and which maintains a government-to-government relationship with the United States of America.
2.70 Sovereign Immunity of the Tribe. Except as otherwise provided by a duly enacted Ordinance of the Elk Valley Tribal Council or a Resolution of the Elk Valley Tribal Council adopted pursuant to such authorizing Ordinance, explicitly waiving the tribe's sovereign immunity from unconsented suit, the Elk Valley Rancheria:
A. Does not consent to be sued and is not subject to suit in any administrative or court proceeding; and
B. Is not liable for any act or omission of any Tribal officer, elected official, Tribal employee, or any other person, organization, or entity owned or operated by the Tribe.
2.80 Immunity of Elected Officers, Tribal Officials, and Tribal Employees. Except as other provided by Ordinance of the Elk Valley Tribal Council, a Tribal Officer, Elected Official, and Tribal Employees enjoys sovereign immunity from suit and cannot be sued without the consent of the Elk Valley Tribal Council and is not liable for any injury resulting from his/her act or omission where the act or omission was the result of the exercise of the discretion vested in him/her, whether or not such discretion be abused or is the result of negligence on the part of him or her, provided that the negligent act occurred while the Tribal Official, Tribal Officer, or Tribal Employee was carrying out the duties of his/her office, position, or employment.
2.90 Assertion of the Defense of Sovereign Immunity by Elected Officials, Tribal Officers, and Tribal Employees. Any Tribal Official, Officer, or Employee shall have the right to assert defense of sovereign immunity from suit to any law suit brought against him/her resulting from the Tribal officials, Officers, or Employees carrying out or performing their duties or obligations of their office, position, or employment with the Tribe.
2.100 Intentional Torts and Gross Negligent Acts. Notwithstanding any other Provisions of this Ordinance to the contrary, a Tribal Official, Officer, or Employee is liable to a plaintiff for any act or omission which constitutes an intentional tort including, but not limited to, assault, battery, sexual harassment, sexual battery, defamation, and intentional infliction of emotional distress, even if the act or omission constituting the intentional tort arose from and was directly related to the Tribal Officials, Officers, or Employees performance of his or her official duties or within the course and scope of their employment.
Section 3. Severability. If any court of competent jurisdiction determines that any of the provisions of this Ordinance are invalid, the remaining provisions of this Ordinance shall remain in full force and effect. The Elk Valley Tribal Council declares that it would have enacted each of the Sections of this Ordinance separately and, to that end, declares that each of the provisions of this Ordinance are severable.
Section 4. Effective Date. The provisions of this Ordinance shall take effect immediately upon their passage.
The foregoing Ordinance was adopted at a duly convened meeting of the Elk Valley Tribal Council with a quorum present held on February 24, 1999, by the following vote 5 for, 0 against, 3 absent, 0 abstaining.
|John D. Green / Tribal Chairman||Date|
|Machelle Strom / Acting Council Secretary||Date|
Ordinances of the Elk Valley Rancheria, California