TITLE 06. EXECUTIVE AND ADMINISTRATIVE AFFAIRS

Submitted by admin on Fri, 03/02/2007 - 01:35

NORTHERN ARAPAHO CODE

TITLE 6. EXECUTIVE AND ADMINISTRATIVE AFFAIRS

Section:

101 Great Seal of the Northern Arapaho Nation 102 Certification of Public Acts or Records 103 Joint Powers

Section 101 - Great Seal of the Northern Arapaho Nation.

(a) Findings. The Northern Arapaho Tribe finds as follows:

(i): The Northern Arapaho Tribe is a federally-recognized Indian Tribe and has been identified in the federal register as the “Arapaho Tribe of the Wind River Reservation,” Wyoming. The Tribe is identified by the United States as the “Arrapahoe Nation” in the September 17, 1851, Treaty of Fort Laramie and as the “Northern Arapaho” in the May 10, 1868 Treaty.
(ii): The Tribe is commonly known as either the Northern Arapaho Tribe or the Northern Arapaho Nation.

(iii) The establishment of an official seal of the Northern Arapaho Nation would benefit the Tribe and others by helping to identify official actions taken by the Tribe.

Comment: See 62 Fed. Reg. 205 (10/23/97)for an example of the listing of the Northern Arapaho as a federally-recognized Indian Tribe. The Treaty of 1851 may be found at 11 Stat. 749 and the Treaty of 1868 may be found at 15 Stat.

655.

(b) Seal. There shall be a seal of the Northern Arapaho Nation, which shall be of the following design: the sacred circle with the four directions marked, and, in the center of the circle, a buffalo skull with two singers on either side and, near the bottom left of the circle, two eagle feathers. Letters on the seal may say either “Northern Arapaho Tribe” or “Northern Arapaho Nation” above the circle.

Comment: The seal of the Northern Arapaho Tribe is registered with the United States Patent and Trademark Office, Database of Native American Tribal Insignia, serial number 89001052 (filing date April 12, 2005).

(c) Exclusive Right to License. The Northern Arapaho Tribe, by and through its duly elected governing body, the Northern Arapaho Business Council, shall have the sole and exclusive right to copyright, trademark, license or permit the use, display, or distribution of the seal of the Northern Arapaho Nation.

Section 102 – Certification of Public Acts or Records.

The Secretary of the Northern Arapaho Business Council is responsible for maintaining certain official records of the

Northern Arapaho Tribe, including the public acts or records of the Tribe, which include the Northern Arapaho Code. The Secretary shall keep available for public inspection, during hours the Secretary’s office is regularly open for business, copies of the Northern Arapaho Code. The Secretary is authorized to certify the authenticity of the Code and other public acts or records of the Northern Arapaho Tribe as public documents of the Tribe.

Section 103 - Joint Powers.

(A): Authority to Cooperate. In exercising, performing, or carrying out any power, privilege, authority, duty, or function, the Northern Arapaho Business Council may cooperate with and assist other governing bodies or authorities of other Indian tribes, the United States, or of states. Any power, privilege or authority exercised or capable of being exercised by the Business Council may be exercised and enjoyed jointly with any other governing body having a similar power, privilege, or authority. Cooperation may be informal or subject to resolution, code, or other appropriate action and may be embodied in a written agreement. The authority to cooperate with other governing bodies may be delegated by the Business Council to an agency, department, program or other entity of the Northern Arapaho Tribe, provided that such delegation is in writing and not contrary to law.
(B): Joint Powers. Any cooperation or assistance, through a joint powers board or otherwise, and whether informal or pursuant to a resolution, code, or other written document, neither increases nor decreases the powers, privileges, or authorities of any other governing body.
(C): Continuing Responsibility. No exercise of joint powers and no agreement pursuant to this section shall relieve any participating entity of any obligation or responsibility imposed upon it by law except to the extent of actual and timely performance thereof by a joint powers board or other legal or administrative entity created by an agreement, the performance of which may be offered in satisfaction of the obligation or responsibility.
(D): Agreements; No Loss of Sovereignty. Although not required, formation of a written agreement with cooperating entities is the preferred method of forming a joint powers board.

By entering into such agreements, whether written or otherwise, the Northern Arapaho Tribe yields no sovereign authority that cannot be withdrawn by the Business Council and re-asserted directly by the Tribe.

(E) Joint Ownership or Operation.

(i): When pursuant to written agreement approved by the Business Council, two or more entities of the Northern Arapaho Tribe, or of the Tribe and any other governing body, may jointly plan, own, lease, assign, sell, create, expand, finance, and operate properties or facilities for the provision of governmental services or to generate income to support the provision of governmental services.
(ii): Any entity participating in a joint powers project may appoint a joint powers board or appoint any of the other entities participating in the project as its agent to manage the project or to manage the finances of the project. The joint powers board may create a single fiscal manager to receive monies and make disbursements for the entire project. The fiscal manager may set up any necessary sinking funds, reserve funds, escrow accounts, or building funds for the use of the project.

(iii) If an agreement does not establish a separate legal entity to conduct the joint or cooperative undertaking, an agreement may provide for an administrator or administrative board responsible for administering the joint or cooperative undertaking and for representation of participating entities on any administrative board.

(iv): Any agreement providing for the joint management of the resources of the Northern Arapaho Tribe shall specify the percentage ownership of any such resources in relation to any other resources owned or contributed by other participating entities. In the case of federal trust resources, such ownership is determined by federal law.
(F): Administration of Joint Powers Boards. The membership, terms of office, meeting schedules, and other administrative concerns of a joint powers board may be determined by agreement of the entities forming the board.

(G) Joint Business Council.

(i) Findings. The Northern Arapaho Tribe is separate and

distinct from the Eastern Shoshone Tribe. Without limitation, the Tribes each have their own separate language, culture, history, membership, tradition, voting rights, and governing bodies. Although both Tribes share common ownership in trust lands on the Wind River Reservation, and cooperate in a number of endeavors, they have never consolidated as one legal entity. The Northern Arapaho Business Council is authorized to act, and historically has acted, only in its own capacity on behalf of the Northern Arapaho Tribe and not with authority over the Eastern Shoshone Tribe. The Eastern Shoshone Business Council acts on behalf of the Shoshone Tribe and not with authority over the Northern Arapaho Tribe.

COMMENT: The Shoshone Tribe presented a “common sovereignty” theory which the U.S. District Court flatly rejected in Eastern Shoshone Tribe v. Northern Arapaho Tribe, 926 F.Supp. 1024, 1032 (D.Wyo.1996)(regarding housing). Each tribe governs itself separately by vote of the tribal membership at general council meetings or by vote of its elected business council, and a joint business council of representatives from both tribes ("JBC") deals with certain matters of common interest. Northern Arapahoe Tribe v. Hodel, 808 F.2d 741, 744 (10th Cir. 1987). Each Tribe has separate treaties with the United States (the Northern Arapaho treaties include the September 17, 1851 Treaty of Fort Laramie and the Treaty of May 10, 1868; the Shoshone treaty is the July

3, 1868, Treaty with the Eastern Band Shoshoni and Bannock). Each Tribe is listed separately among the federally-recognized tribes. See 25 C.F.R. §83.6 (b) notice oflist of federally recognized tribes, and, for example, the notice at 56862 FederalRegister Vol. 48, No. 248, Friday, December 23, 1983, Notices, at 56863.

(ii) Joint Powers Board. The joint business council is a joint powers board, the authority of which is dependent upon the separate authority of the Northern Arapaho Business Council and the Eastern Shoshone Business Council (or other authority of the Eastern Shoshone Tribe as determined by that Tribe). When the joint business council takes action, it does so as the Business Council of each Tribe acting cooperatively and in concert with each other. Actions which may be taken through the joint business council also may be taken by separate action of each Business Council when in coordination or cooperation with each other.

COMMENT: See Eastern Shoshone Tribe v. Northern Arapaho Tribe, 926 F.Supp. 1024, 1032 (D.Wyo.1996) in which the Court rejected the argument of the Shoshone Tribe that the Northern Arapaho Business Council could not act independently of the joint business council in matters affecting the reservation generally. The Northern Arapaho Tribe argued that the joint council is merely a joint powers board operating with the consent of each Tribe but without any authority independent of each Tribe. See also Northern Arapaho Tribe v. State of Wyoming,2002 WL 31961497 (D.Wyo.Feb 6, 2002, No. 00-CV0221-J), aff’d 429 F.3d 934 (10th Cir. 2005), where the Court rejected a theory

that the State was only obligated to negotiate a gaming compact with the joint business council. Wyoming had argued that the Tribe’s ”governmental decision making is subject to the approval of another Tribe [the Shoshone].” (2002 WL 31961497,p.3.)

(iii) Sovereign Authority Reserved. The Northern Arapaho Business Council is authorized to continue to act on behalf of and in the best interests of the Northern Arapaho Tribe, whether through the joint business council, any other joint powers board, or through separate resolution or other action, whether or not such action is in cooperation with the Eastern Shoshone Tribe. The Northern Arapaho Tribe reserves its right, from time immemorial, to act on its own behalf and in its own best interest.

(iv): Continued Authority. As a matter of federal law, the Northern Arapaho Tribe shares ownership of certain real property interests held in trust by the United States for the benefit of the Northern Arapaho and the Eastern Shoshone Tribe. With or without a written agreement, the Business Council is authorized to manage the shared assets of the Tribe, and the operations and administration of shared projects or efforts, through a joint powers board such as the joint business council or through direct agreement or cooperative action with the Eastern Shoshone Business Council. Matters may continue to come before the Northern Arapaho Business Council separately for consideration and action and for the concurrence, or non-concurrence, of the Eastern Shoshone Business Council without the need for any further action by the joint business council.
(v): Effect on Resolutions or Contracts. Resolutions or contracts approved by the joint business council prior to the effective date of this section are not effected by this section, except that declarations or descriptions of the nature or authority of the joint business council which are inconsistent with this section are inaccurate and of no effect on the sovereign authority or interests of the Northern Arapaho Tribe.

COMMENT: Some joint business council resolutions may incorrectly refer to that council as having some authority higher than that of each Business Council when acting in concert. For example, resolution 2008-9981 incorrectly referred to the joint business council as “the governing body duly authorized by the General Councils of each Tribe to conduct business on behalf of the Tribes.” In fact, the Northern Arapaho General Council has not delegated any authority to the joint business council and this resolution was subsequently rescinded by the Northern Arapaho Business Council.

History: 2001; 2004. Title 6. Section 101, The Great Seal of the Northern Arapaho Nation, was enacted by the Northern Arapaho Tribe by resolution of the Northern Arapaho Business Council dated October 1, 2001, Resolution No. 2001-8469. Section 102, Certification of Public Acts or Records, was enacted by the Northern Arapaho Tribe by resolution of the Northern Arapaho Business Council dated November 4, 2004, Resolution No. 20048838. Section 103, Joint Powers Act, was enacted by the Northern Arapaho Tribe by resolution of the Northern Arapaho Business Council dated September 22, 2008, Resolution No. 2008-10023.