TITLE 11: SOVEREIGN IMMUNITY
NORTHERN ARAPAHO CODE
TITLE 11. SOVEREIGN IMMUNITY
Section:
101 Authority and Citation
102 Definitions
103 Reference to Code Includes Amendments
104 Severability
105 Effective Date of Code
106 Repeal of Inconsistent Law
107 Sovereign Immunity
108 Effect and Interpretation of the Shoshone & Arapaho Law and
Order Code
109 Purchase of Liability Insurance, Limited Waiver of Sovereign
Immunity
110 No Waiver Beyond Available Coverage
111 Exclusive Jurisdiction
112 Defenses not Waived
Title 11 Sovereign Immunity Code
March 13, 2008
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Section 101 - Authority and Citation. This Code is enacted
pursuant to the inherent authority of the Northern Arapaho Tribe
to govern and to provide for the health, safety, welfare and
economic security of its people and others within the
jurisdiction of the Tribe. The Code shall be known as the
Northern Arapaho Tribe Sovereign Immunity Code, and may be cited
as 11 N.A.C. Section . (e.g. 11 N.A.C. Section 101).
Section 102 - Definitions.
(a) General Provisions. In construing the provisions of this
Code, words are to be given their ordinary meaning and usage.
The present tense may include the past and future tenses, and the
future tense may include the present. Terms of gender may
include all genders. Use of a singular or plural term may
include either or both.
(b) Terms Defined. The terms listed below shall be defined as
follows:
(i) “Employee” means a full or part time worker, performing
services for the Tribe on either a salary or wage basis and
under the control and direction of the Tribe. The term does
not include an independent contractor as defined by the
Internal Revenue Service, Circular E, Publications 15 and
15-A.
(ii) "Officer” means an officer, whether elected or
appointed, whether paid or unpaid, acting on behalf of the
Tribe. The term does not include members of the Northern
Arapaho Business Council.
(iii) "Tribal Court" means the courts of the Shoshone and
Arapaho Tribes of the Wind River Reservation, Wyoming.
(iv)“Northern Arapaho Tribe” or "Tribe" means the Northern
Arapaho Tribe of the Wind River Reservation, Wyoming, and
includes, without limitation, any branch, office,
department, agency, commission, utility, authority,
instrumentality, enterprise, or other entity of the Northern
Arapaho Tribe of the Wind River Reservation, Wyoming.
(v) “S & A LOC” means the Shoshone & and Arapaho Law and
Order Code.
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Section 103 - Reference to Code Includes Amendments. When
reference is made to any portion of this Code, the reference
shall apply to all amendments made hereafter.
Section 104 - Severability. If any part of this Code is
declared invalid by the Shoshone and Arapaho Tribal Court, all
parts of the Code not declared invalid and that are severable
from the invalid part shall remain in full force and effect. If
a part of this Code is invalid in one or more of its
applications, that part shall remain in effect as to all valid
applications that are severable from the invalid applications.
Section 105 - Effective Date of Code. This Code shall become
effective on the date of enactment by the Northern Arapaho
Business Council. Confirmations or restatements of the intent of
sections of the Shoshone and Arapaho Law & Order Code (S&A LOC or
LOC), now codified herein, do not alter those sections, which
have been effective since the date of enactment of the S&A LOC.
Section 106 - Repeal of Inconsistent Law. All ordinances,
resolutions, codes and other laws of the Tribe inconsistent with
this Code are hereby repealed. To the extent that this Code is
not consistent with any other law of the Northern Arapaho Tribe
or of the Shoshone and Arapaho Tribes, this Code shall govern.
Section 107 - Sovereign Immunity
(a) Tribal Sovereign Immunity. The Northern Arapaho Tribe is
immune from suit, except to the extent such immunity is expressly
waived by the Tribe or by operation of applicable federal law.
(b) Purposes. Tribal sovereign immunity serves important
functions, including:
(i) the preservation of limited Tribal resources for the
provision of governmental services necessary to protect and
promote the health, safety, welfare, and economic security
of Tribal members, and of residents and visitors to the Wind
River Indian Reservation; and
(ii)the preservation of the autonomous existence of the
Tribe.
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Section 108 - Effect and Interpretation of the Shoshone & Arapaho
Law and Order Code
(a) Shoshone & Arapaho Law and Order Code. Nothing in the
Shoshone & Arapaho Law and Order Code is, nor shall it be
construed to be, a waiver of the sovereign immunity of the
Northern Arapaho Tribe or of members of the Northern Arapaho
Business Council.
(i) The provision of S & A LOC 1-8-5, that sovereign
immunity is preserved except as “specifically waived by
resolution or ordinance of the Tribes specifically referring
to [sic] as such” describes only the method by which a
waiver of sovereign immunity may occur. The provision is
not itself a waiver of sovereign immunity and shall not be
interpreted as such.
(ii)The provisions of S & A LOC 1-8-5, that Tribal
“officers and employees are immune from suit for any
liability arising from the performance of their official
duties, except for gross abuse or intentional tortious
conduct,” are not, and shall not be construed to be, a
waiver of the sovereign immunity of the Northern Arapaho
Tribe or an assumption by the Tribe of any liability on
behalf of officers or employees.
(iii) Members of the Business Council of the Northern
Arapaho Tribe are not “officers” within the meaning of S & A
LOC 1-8-5, and their immunity from suit is not waived by
those Code provisions.
(iv) The provisions of S & A LOC 3-9-7, creating a
presumption of good faith, and providing that “[a]ny
person, official, institution, or agency participating in
good faith in any act required or permitted by Sections 3-9-
1 through 3-9-12 is immune form any civil or criminal
liability that might otherwise result by reason of the
action” shall be interpreted in conjunction with Section1-8-
5 to mean that good faith is presumed, and that to defeat
the good faith presumption requires a showing of gross abuse
or intentional tortious conduct;
(v) The provisions of S & A LOC 3-9-7, creating a
presumption of good faith, and providing that “[a]ny
person, official, institution, or agency participating in
good faith in any act required or permitted by Sections 3-9-
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March 13, 2008
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1 through 3-9-12 is immune form any civil or criminal
liability that might otherwise result by reason of the
action” are not, and shall not be interpreted to be, a
waiver of the sovereign immunity of the Northern Arapaho
Tribe or an assumption by the Tribe of any liability on
behalf of any person, official, institution or agency.
(b) Amendment of Law and Order Code. No addition, amendment,
modification or change of any kind to the Shoshone & Arapaho Law
and Order Code made after the effective date of this Northern
Arapaho Sovereign Immunity Code shall be, or shall be interpreted
to be, a waiver of the sovereign immunity of the Northern Arapaho
Tribe unless the intent of the Northern Arapaho Tribe to waive
sovereign immunity is expressly stated in such addition,
amendment, modification or change and is affirmatively
acknowledged by Resolution of the Northern Arapaho Business
Council adopting the LOC provisions.
(c) This enumeration of immunities shall not be construed to
waive any other immunities of the Tribe.
Section 109 - Purchase of Liability Insurance, Limited Waiver of
Sovereign Immunity
(a) Liability Insurance Coverage. The Northern Arapaho Tribe
has no general duty to obtain, but in its sole discretion may
choose to obtain, liability insurance coverage, including
coverage for all or any portion of a risk for which claims are
barred by sovereign immunity. The provisions of this Code apply
regardless of whether insurance coverage has been obtained by the
Tribe in its discretion or pursuant to a specific duty to do so.
(b) Effect of Insurance Coverage. If the Northern Arapaho
Tribe obtains insurance coverage insuring against liability which
is or could be barred by sovereign immunity, then the sovereign
immunity of the Tribe is waived to the extent of the limits of
the actually available liability coverage, subject to the
provisions of this Code including, without limitation, Section
110.
(i) Such a limited waiver of the sovereign immunity of the
Tribe is a decision made as an exercise of sovereign
authority, and shall not be construed as a relinquishment of
such authority.
(ii)This limited waiver of the sovereign immunity of the
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Tribe is permitted to advance the substantial interests of
the Tribe in protecting sovereignty, Tribal resources, and
the Tribe’s ability to allocate resources in the best
interests of its members and residents of the Wind River
Reservation.
(c) Insurer as Defendant. In all claims or actions brought
pursuant to this Code, the insurer shall be named as a party
defendant.
(d) Coverage for Claims under Federal Law. Notwithstanding the
above provisions, if the Tribe obtains coverage for the purpose
of protecting itself against potential losses under a federal law
and if that purpose of the coverage is stated as a part of or by
an amendment to the insurance policy, no waiver of sovereign
immunity permitted by this Code shall be applicable to claims
brought under the federal law except to the extent of the
liability insurance coverage actually available as to those
claims.
(e) Defense Provided by the United States. Notwithstanding any
other provision of this Code, there shall be no waiver of
sovereign immunity as to any claim of injury which is defended by
the United States as a claim deemed to be against the United
States under the Indian Self-Determination and Education
Assistance Act, the Federal Tort Claims Act, or any other federal
law.
Section 110 - No Waiver Beyond Available Coverage
(a) Waiver Only to Extent of Coverage. This Code does not
authorize waiver of sovereign immunity for any claim in excess of
actually available insurance coverage. No judgment, order or
award permitted by this Code shall exceed the limits of the
valid and collectible liability insurance policy or policies
carried by the Tribe covering each such claim and in force at the
time of such judgment, order or award.
(b) No Recovery From Tribe. Any judgment, order or award
permitted by this Code may be satisfied only pursuant to the
express terms of the policy or policies of liability insurance
and neither execution nor attachment shall issue against assets
of the Tribe in any claim or proceeding initiated under this
Code.
(c) Limits on Judgments. Notwithstanding any other provision of
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this Code, no judgment against the Tribe shall include an award
1) based upon a rule of law imposing absolute or strict
liability; 2) for exemplary or punitive damages, 3) for interest
prior to judgment or 4) for attorney’s fees.
Section 111 - Exclusive Jurisdiction
(a) Exclusive Tribal Jurisdiction. The Tribal Court shall have
exclusive jurisdiction over claims or actions of any kind allowed
pursuant to this Code.
(b) No Waiver as to Other Forums. Nothing herein shall be
construed as a waiver of the sovereign immunity of the Tribe from
any suit or action in state or federal court, before any state or
federal agency or in any other forum or context whatsoever.
(c) Tribal Law Controls. Any claim brought pursuant to the
provisions of this Code shall be determined by the Tribal Court
in accordance with the Codes of the Northern Arapaho Tribe and
the Law and Order Code of the Shoshone and Arapaho Tribe.
Section 112 - Defenses not Waived
(a) Other Defenses Retained. In any action permitted by this
Code, the limited waiver of sovereign immunity as provided herein
does not bar the Tribe from asserting any other defenses or
claims that may be available.
(b) Insurer Not Authorized to Assert Sovereign Immunity. Unless
the policy expressly provides otherwise, an insurer in not
authorized or empowered to assert a sovereign immunity defense
without the express written consent of the Northern Arapaho
Business Council.
History: 2008. Title 11. Section 101 et seq., Sovereign Immunity, was enacted
by the Northern Arapaho Tribe by resolution of the Northern Arapaho Business
Council dated March 13, 2008, Resolution No. 2008-9950.
