CHAPTER 24-15
CORPORATIONS WHOLLY OWNED BY THE NATION

24-15-1 Scope.

Sections 24-15-1 through 24-15-9 apply to all tribal corporations wholly owned by the Nation, whether directly or as a subsidiary of another tribal corporation wholly owned by the Nation, as provided in Section 24-15-2.

24-15-2 Application.

(A)    Corporations directly owned by the Nation. The consent of the Tribal Council shall be required prior to the incorporation under this Code of any corporation to be wholly owned by the Nation. For this purpose, the incorporator shall file with the Tribal Secretary, when the incorporator files the articles of incorporation of a corporation to be wholly owned by the Nation, a certified copy of a resolution of the Tribal Council authorizing the formation of the corporation.

(B)    Corporations indirectly owned by the Nation. The consent of the board of directors of the corporation wholly owned by the Nation shall be required prior to the incorporation under this Code of a subsidiary corporation to be wholly owned by a parent corporation that is wholly owned by the Nation. For this purpose, the incorporator shall file with the Tribal Secretary, when the incorporator files the articles of incorporation of a subsidiary corporation to be wholly owned by a parent corporation that is wholly owned by the Nation, a certified copy of a resolution of the board of the parent corporation authorizing the formation of the subsidiary corporation.

(C)    Designation in articles. The articles of a corporation wholly owned, directly or indirectly, by the Nation and subject to the provisions of Sections 24-15-1 to 24-15-9 shall expressly so state and when accepting the articles for filing, the Tribal Secretary shall note that the corporation is governed by the provisions of this Code applicable to wholly owned tribal corporations.

(D)    Purpose of Corporations directly and indirectly owned by the Nation. Articles of incorporation for a corporation to be wholly owned, directly or indirectly, by the Nation shall state the purpose of the corporation that relates to the overall needs, priorities, goals, and objectives of the Nation and the Tribal government, including how the corporation will contribute to tribal economic policy and further the Tribal goals of self-determination and/or economic self-sufficiency.

24-15-3 Special Powers, Privileges and Immunities of Corporations Wholly Owned by the Nation.

(A)    Scope. The Corporations established under this Section shall be considered to be governmental instrumentalities of the Nation; and their officers and employees considered officers and employees of the Nation carrying out responsibilities imposed upon the Tribal Council for the economic advancement of the Nation and its members by the Tribal Constitution of the Prairie Band Potawatomi Nation. Such corporations, their officers and employees shall, therefore, be entitled to all of the privileges and immunities enjoyed by the Nation; including but not limited to, immunities from suit in federal and state courts, and federal and state taxation, or regulation, except as specifically set out in any Articles of Incorporation filed pursuant to Section 24-15-2. The special powers, privileges and immunities described in this section shall be available only to a corporation wholly owned, directly or indirectly, by the Nation.

(B)    Jurisdictional and tax immunities. All of the rights, privileges and immunities of the Nation concerning federal, state, or local taxes, regulations and jurisdiction are hereby conferred on all tribal corporations wholly owned, directly or indirectly, by the Nation to the same extent that the Nation would have such rights, privileges and immunities if it engaged in the activities undertaken by the corporation. Absent consent by the corporation, a corporation wholly owned, directly or indirectly, by the Nation shall not be subject to taxation by the Nation, except to the extent that such taxation is necessary and reasonably appropriate to compensate the Nation for services provided to the corporation by the Nation.

(C)    Sovereign immunity. The sovereign immunity of the Nation is hereby conferred on all tribal corporations wholly owned, directly or indirectly, by the Nation. A corporation wholly owned, directly or indirectly, by the Nation shall have the power to sue and is authorized to consent to be sued before the Tribal Court, and in all other courts of competent jurisdiction, provided, however, that:

(1)    No such consent to suit shall be effective against the corporation unless such consent is:

(a)    Explicit,

(b)    Contained in a written contract or commercial document to which the corporation is a party, and

(c)    Specifically approved by resolution of the board of directors of the corporation, and

(2)    Any recovery against such corporation shall be limited to the assets of the corporation and shall specifically exclude the assets of the Nation. Any consent to suit may be limited as to courts in which suit may be brought, to the matters that may be made the subject of the suit, to the time in which suit may be brought, to the assets or revenues of the corporation against which any judgment may be executed, and to other dispute resolution procedures or provisions.

(3)    The sovereign immunity of the Corporation or any of its officials or employees shall not extend to actions against the Corporation, its officials or employees by the Nation.

24-15-4 Board.

(A)    Appointment of directors. The Tribal Council shall retain the power to appoint the board of directors for corporations wholly owned by the Nation. For all such corporations, including subsidiary tribal corporations, the board of directors shall be compromised of members of the Tribal Council, tribal members, and individuals experienced in business and tribal government.

(B)    Removal of directors. A director of a corporation wholly owned, directly or indirectly, by the Nation may be removed with cause by the Tribal Council.

(C)    Loans to directors. A corporation wholly owned, directly or indirectly, by the Nation may not lend money to or guarantee the personal obligation of a director, officer or employee of the corporation under any circumstances.

24-15-5 Shares in Corporations Wholly Owned by the Nation; Shareholders; Voting.

(A)    Shares in wholly owned corporations. Share certificates (or transaction statements for uncertificated shares) of corporations wholly owned, directly, by the Nation shall be issued in the name of the Nation, and all such shares shall be held by and for the Nation. No member of the Nation shall have any personal ownership interest in any corporation wholly owned, directly or indirectly, by the Nation, whether by virtue of such person’s status as a member of the Nation or otherwise.

(B)    Shares. A corporation wholly owned, directly, by the Nation may not issue preferred or special shares.

(C)    Voting. A member of the Tribal Council shall be authorized to vote shares of the corporation owned by the Nation, as contemplated by Section 24-8-18 (D) of this Code, in the following manner: Each member shall have the right to vote that number of shares which is equal to a fraction of the total shares owned by the Nation. The fraction is calculated by dividing the total number of shares owned by the Nation by the number of Tribal Council members holding such office at the date on which the vote is taken. Each member of the Tribal Council shall enjoy such voting rights in the corporation as is provided by the Constitution and bylaws of the Nation to such person as a member of the Tribal Council. Such voting rights shall be enjoyed for as long as such council member remains a duly elected member of the Tribal Council. In voting the shares of a corporation wholly owned by the Nation, the members of the Tribal Council are acting not in a personal capacity but in a representative capacity on behalf of the Nation itself.

(D)    Proxies illegal. Section 24-8-20 shall not apply to any corporation wholly owned, directly or indirectly, by the Nation. Any proxy given for the voting of shares in a corporation wholly owned, directly or indirectly, by the Nation shall be void and unenforceable.

(E)    Voting trusts illegal. Section 24-8-21 shall not apply to any corporation wholly owned, directly or indirectly, by the Nation. Any voting trust agreement for any interest held in a corporation wholly owned by the Nation shall be void and unenforceable.

(F)    Shareholder control agreements illegal. Section 24-8-23 shall not apply to any corporation wholly owned, directly or indirectly, by the Nation. Any shareholder control agreement for any interest held in a corporation wholly owned, directly or indirectly, by the Nation shall be void and unenforceable.

(G)    No cumulative voting. Section 24-6-8 shall not apply to any corporation wholly owned, directly or indirectly, by the Nation.

24-15-6 Liability of Nation as Shareholder.

Neither the Nation nor any member of the Tribal Council shall be under any obligation to a corporation wholly owned, directly or indirectly, by the Nation or to the creditors of any such corporation and the Nation shall not be deemed to have waived any of the Nation’s privileges or immunities if the Nation incorporates, owns or operates a corporation, directly or indirectly.

24-15-7 Shareholder Meetings.

(A)    Annual meeting. Annual meetings of the Tribal Council, in its capacity as the shareholders of a corporation wholly owned, directly, by the Nation, shall be held at such time and at such place on the Reservation as the board of directors shall determine. If the board of directors fails to set the time and date of meeting, it shall be held on the second Tuesday in January of each year. At such annual meeting, the Tribal Council, in its capacity as the shareholders of the corporation, shall transact such business as may properly be brought before the meeting. Such meetings may be called and held in the same manner as applicable law provides for meetings of the Tribal Council.

(B)    Special meetings. Special meetings of the Tribal Council, in its capacity as the shareholders of the corporation, may be called and held for any purpose in the manner provided for the call and holding of special meetings of the Tribal Council.

(C)    Notice of meetings. The board of directors shall notify the Tribal Council of the date, time and place of the annual meeting of shareholders at least 20 days before the meeting and of any special meeting of the shareholders at least five days before the meeting. Notices shall be deemed to be effective if placed in the U.S. Mail, with proper first class postage affixed, at least 22 days (but not more than 62 days) prior to an annual meeting, and at least 7 days (but not more than 62 days) prior to a special meeting, or on the date personally delivered to the Tribal Secretary of the Tribal Council.

(D)    Time and place or shareholders’ meetings. Meetings of the shareholders of the corporation shall be held at the principal place of business or of the corporation or at such other location within the Reservation at such time and place as the board of directors shall fix.

(E)    Manner of meeting. Except as otherwise provided in these Articles, the shareholders of the corporation may conduct regular or special meetings through the use of any means and procedures which are proper for meetings of the Tribal Council.

(G)    Presiding officer. The Chairperson of the Tribal Council shall preside over any shareholders’ meeting.

24-15-8 Assets; Distribution of Income.

(A)    Assets. Subject to the contractual and sovereign rights of others, including the Nation, the corporation shall have as its corporate assets, and the authority to acquire, manage, own, use, pledge, encumber, or otherwise dispose of, the following:

(1)    All funds which the corporation may acquire by subscription, grant, gift, loan or other means,

(2)    All interests in real and personal property, whether of a tangible or intangible nature, which the corporation may acquire by subscription, grant, gift, loan, purchase, lease or other means, and

(3)    All earnings, interest, dividends, accumulations, contract rights, claims and other proceeds arising from any of the foregoing.

(B)    Distribution of net income to Nation required. All or a portion of the net income of a corporation wholly owned directly by the Nation shall be distributed to the Nation at such time as the Tribal Council may determine. The net income of any wholly owned subsidiary of such a corporation and the corporation’s share of the net income of any subsidiary of such a corporation shall be determined in accordance with generally accepted accounting principles. Upon request of the Tribal Council, the board of directors of a corporation wholly owned directly by the Nation will, if the corporation controls a subsidiary (a corporation wholly owned indirectly by the Nation), cause the subsidiary to distribute to the corporation all or such portion of the net income of the subsidiary as may be requested by the Tribal Council.

24-15-9 Voluntary dissolution; Tribal Council.

A corporation wholly owned directly by the Nation with no shares having been issued may be dissolved only by a resolution adopted by the Tribal Council. A subsidiary corporation of the Nation with no shares having been issued may be dissolved by a resolution adopted by the board of directors, with notice of such intent of to dissolve given to the Tribal Council at least thirty (30) days prior to dissolution.