WARM SPRINGS TRIBAL CODE
CHAPTER 30
WAIVER OF SOVEREIGN IMMUNITY
Table of Contents
Page
30.001
30.002
30.003
30.004
30.005
30.006
30.007
Legislative Intent and Findings.............................................................................. 1
Definitions.............................................................................................................. 1
Waiver of Sovereign Immunity. ............................................................................ 1
Form of Waiver...................................................................................................... 2
Filing with the Tribal Council, the Office of the Secretary-Treasurer, and
the Agency Superintendent ................................................................................... 2
No Suit or Action Permitted Without a Waiver of Immunity................................ 2
Existing Waivers of Immunity............................................................................... 2
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WARM SPRINGS TRIBAL CODE
CHAPTER 30
WAIVER OF SOVEREIGN IMMUNITY
30.001
Legislative Intent and Findings. It is the intent of the Tribal Council in enacting
this Chapter that the Sovereign Immunity of the Tribes be exercised, including the waiver of
such exercise, in the best interests of the Tribes and its members and in accordance with the laws
of the United States. This is a right inherent in our sovereignty, as set forth in the
DECLARATION OF SOVEREIGNTY adopted by our Tribal Leadership in 1992. The Immunity
of the Tribes from suit or action, as a sovereign government, is well established and long
recognized in judicial decisions, legislative enactments, regulations, and administrative
decisions. The Tribal Council expressly finds that Sovereign Immunity is vital to the functioning
of the Tribe, and all of its subdivisions and subordinate bodies, including Business Enterprises
established pursuant to Section 12 of the Corporate Charter of the Tribes. The Tribal Council
also recognizes that the waiver of the Tribes’ Immunity from suit or action is an essential
element of entering into certain transactions and is, in and of itself, an exercise of the Tribes’
sovereign authority. As a sovereign attribute of the Tribes’, Immunity from suit or action may
only be waived by the members of the Tribe, acting by referendum or by the Tribal Council. The
Tribal Council, as the governing body, may specifically delegate the power to waive the
Sovereign Immunity of subdivisions and subordinate bodies, but such delegation shall be limited
only to the waiver of such Sovereign Immunity of the subdivision or subordinate body, and shall
not be a waiver of the Immunity of the Tribes or any other subdivision or subordinate body of the
Tribes.
30.002
Definitions. Wherever used in this Chapter, unless a different meaning clearly
appears, "Sovereign Immunity" or "Immunity" shall mean the Immunity from suit or action of
the Tribes and its subdivisions and subordinate bodies, including Business Enterprises
established pursuant to Section 12 of the Corporate Charter of Tribes, and their agents and
employees while acting within the scope of their duties, as described by numerous court
decisions, including the Supreme Court of the United States of America in the case of Santa
Clara Pueblo v. Martinez, 436 U.S. 49 (1978).
30.003
Waiver of Sovereign Immunity. The Sovereign Immunity of the Tribes from
suit or action may be waived only by:
(1)
The members of the Tribes, at a legally conducted referendum election of the members in
accordance with Article VI of the Constitution and By-Laws of the Tribes, or Section 12
of the Corporate Charter;
(2)
The Tribal Council, in accordance with the terms of this Chapter 30 of the Warm Springs
Tribal Code; or
(3)
A subdivision or subordinate body of the Tribes, including Business Enterprises
established pursuant to Section 12 of the Corporate Charter of the Tribes, when made in
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accordance with authority specifically delegated by Resolution of the Tribal Council, and
only as to such subdivision or subordinate body.
30.004
Form of Waiver. In order to be effective, no specific form of waiver shall be
required, provided that any waiver shall:
(1)
Be included in a written Resolution, in the case of the Tribal Council or a Business
Enterprise, or in a written policy determination, if granted by any other body;
(2)
State with specificity the reasons the waiver is granted, the scope of the waiver (which
may be limited), and the reasons that granting a waiver is the only workable alternative;
(3)
Shall begin with the following statement:
THIS WAIVER OF THE SOVEREIGN IMMUNITY OF THE TRIBES FROM
SUIT OR ACTION IS ADOPTED PURSUANT TO THE TERMS OF WARM
SPRINGS TRIBAL CODE CHAPTER 30 AND SHALL BE STRICTLY
CONSTRUED AND LIMITED TO ITS SPECIFIC TERMS AND THE
SPECIFIC WAIVER GRANTED.
30.005
Filing with the Tribal Council, the Office of the Secretary-Treasurer, and the
Agency Superintendent. Not less than twenty (20) business days in advance of entering into
any waiver of Sovereign Immunity, copies of the proposed waiver, together with an explanation
of the purpose of the proposed waiver, shall be transmitted to the Tribal Council, the Office of
the Secretary-Treasurer, and the Agency Superintendent. Within two (2) business days after the
granting of any waiver of Sovereign Immunity, copies shall be transmitted to the Tribal Council,
the Office of the Secretary-Treasurer, and the Agency Superintendent. The Secretary-Treasurer
shall maintain a file of all waivers of Sovereign Immunity.
30.006
No Suit or Action Permitted Without a Waiver of Immunity. Except as
hereinafter provided in Section 30.007, no suit or action shall be allowed or maintained in any
forum, whether Tribal, State or Federal, except as may be specifically authorized in accordance
with the specific terms and provisions of a waiver of Sovereign Immunity granted in accordance
with this Chapter 30.
30.007
Existing Waivers of Immunity. Nothing contained in this Chapter shall have the
effect of invalidating an otherwise valid waiver of the Immunity of the Tribe, or any of its
subdivisions, subordinate bodies or Business Enterprises that was validly enacted in accordance
with existing law at the time of enactment.
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