CHAPTER 25-1
General Provisions

25-1-1 Short Title.

This Title shall be known as the “Prairie Band Potawatomi Nation Limited Liability Company Code.”

25-1-2 Purposes; Sovereign Immunity.

(A)    The purpose of this Code is to provide for economic development of the Prairie Band Potawatomi Nation and its Members by:

(1)    Providing the legal framework for organizing individually-owned business entities in order to expand the private business sector on the Reservation; and

(2)    Authorizing the formation of wholly-owned Tribal business entities for managing the Nation’s economic activities separate from the general affairs of its Tribal Council, with the ability to enter into legally-binding contracts and commercial relationships without the need for formal Tribal Council action.

(B)    By the adoption of this Code, the Nation does not waive its sovereign immunity or consent to suit in any court, federal, tribal or state, and neither the adoption of this Code, nor the incorporation of any limited liability company hereunder, shall be construed to be a waiver of the sovereign immunity of the Nation or a consent to suit against the Nation in any court.

25-1-3 Scope.

This Code shall apply to all limited liability companies organized under its provisions or which elect to accept the provisions of this Code.

25-1-4 Applicable Law.

The companies organized and created under this Code shall be subject to this Code, and all other laws of the Nation. By organizing and creating a company under this Code, the company and its Owners shall be considered to have entered into a consensual relationship with the Nation and agree to be subject to the full extent of the Nation’s legislative, regulatory and adjudicatory jurisdiction. Unless displaced by particular provisions of this Code or other Tribal law, the principles of law and equity supplement this Code.

25-1-5 Definitions.

Terms used in this Code have the following meaning:

(A)    “Articles of Organization” means the articles filed under Section 25-2-1 and those articles as amended or restated.

(B)    “Corporation” means a domestic corporation for profit organized under the law of the Nation or a foreign corporation formed under the laws of any other jurisdiction.

(C)    “Distribution” means a direct or indirect transfer by a limited liability company of money or other property to or for the benefit of its Owners in respect of their interests.

(D)    “Entity” includes an individual, a general partnership, limited partnership, a domestic or foreign limited liability company, a trust, an estate, an association, a corporation or any other legal or commercial entity.

(E)    “Foreign” refers to limited liability companies, corporations and limited partnerships organized under the laws of a jurisdiction other than the Nation.

(F)    “Limited Liability Company” or “Domestic Limited Liability Company” means an organization formed under this Code, except as provided for in Section 25-8-1(A).

(G)    “Limited Liability Company Interest” or “Interest in the Limited Liability Company” or “Owner’s Interest” means an Owner’s rights in the limited liability company, including rights to distributions, profits and losses, and to participate in management, as specified in the Operating Agreement.

(H)    “LLC” means a limited liability company.

(I)    “Majority in Interest” means an Owner or Owners holding more than fifty percent (50%) of the total voting interests in the limited liability company excluding any interest which is not to be counted as voting on a matter as described elsewhere in this Code.

(J)    “Manager” or “Managers” means the person(s) or entity(ies) designated to manage the LLC pursuant to the Articles of Organization and Operating Agreement.

(K)    “Nation” means the Prairie Band Potawatomi Nation.

(L)    “Office of the Secretary” means the Office of the Secretary of the Tribal Council as provided by Article VIII, Section 3 of the Tribal Constitution, or that individual’s designee.

(M)    “Operating Agreement” means an agreement in writing among all of the Owners as to the conduct of the business of a limited liability company and its relationships with its Owners.

(N)    “Organizer(s)” means the person(s) or entity(ies) which signs and delivers the Articles of Organization for filing to the Office of the Secretary.

(O)    “Owner” means a Person that is a member of a limited liability company or has ownership interest in a limited liability company. The term does not include a person that has dissociated as a member under Section 25-3-7.

(P)    “Person” includes a natural person, Tribal Entity and an organization such as a general partnership, limited partnership, a domestic or foreign limited liability company, a trust, an estate, an association, or a corporation.

(Q)    “Reservation” means all lands under the jurisdiction of the Nation, including all lands within the boundaries of the Nation’s Reservation, individual Tribal member allotments, whether located on or off the Reservation, and all lands held in trust by the United States of America for the benefit of the Nation.

(R)    “State” includes a state, territory, or possession of the United States and the District of Columbia.

(S)    “Tribal Entity” includes the Nation, the Tribal Council, a general partnership, limited partnership, a domestic or foreign limited liability company, a trust, an estate, an association, a corporation, a program, a department, an administrative agency or any other legal, commercial or governmental entity of the Nation.

(T)    “Tribal Council” means the Tribal Council as established by Article IV, Section 3 of the Tribal Constitution as the governing body of the Nation.

(U)    “Tribal Constitution” means the Constitution of the Prairie Band Potawatomi Nation.

(V)    “Tribal Corporation” means a corporation wholly-owned by the Nation and duly formed pursuant to the Nation’s Business Corporation Code, Title 24, or pursuant to 25 U.S.C. Section 477.

(W)    “Tribal Court” means the Judicial Council as established by Article VI of the Tribal Constitution.

(X)    “Tribally-owned LLC” means a limited liability company wholly-owned by the Nation with the Nation as its sole Owner.

(Y)    “Trust Land” means land held in trust by the United States for the benefit of the Nation or its Members.

(Amended by PBP TC No. 2012-241, November 8, 2012.)

25-1-6 Name.

(A)    The name of a limited liability company as set forth in its Articles of Organization must contain the words “limited liability company” or end with the abbreviation “L.L.C.” or “LLC.” The name may not contain language stating or implying that the limited liability company is organized for any purpose other than that permitted under Section 25-1-9, below.

(B)    The name of a domestic LLC shall be distinguishable from any LLC or corporation previously organized under the laws of the Nation.

25-1-7 Registered Office and Registered Agent.

(A)    A limited liability company’s registered agent is the company’s agent for receiving service of process, notice, or demand required or permitted by law to be served on the company under the laws of the Nation.

(B)    Each LLC shall continuously maintain a registered office and a registered agent. The registered office may, but need not, be the same as any of its places of business. The agent may be the same person then serving in a designated office of the Nation rather than a specified person if the Nation is an Owner in the LLC of which the Nation’s officer is the appointed agent.

(C)    An LLC may change its registered office or registered agent, or both, by filing a written notice of change containing the name of its registered agent and the street address of its registered office, as changed, with the Office of the Secretary and paying the filing fee.

(D)    The registered agent of an LLC may resign as a registered agent by delivering to the Office of the Secretary for filing a written statement of resignation and the appointment by the LLC of another registered agent.

25-1-8 Nation as Owner.

(A)    The Nation shall form or become an Owner of a Tribally-owned LLC formed under this Code only upon approval of such action by the Tribal Council.

(B)    If the Nation or a Tribal Entity is an Owner of an LLC formed under this Code, any action which the Nation is required or permitted to take with respect to any vote, approval, consent, appointment, direction, or other matter shall be taken as specified in Section 25-9-4(A) of this Code or, as to actions related to the managers of a manager-managed LLC, as stated in the LLC’s Operating Agreement approved by the Tribal Council.

(C)    If the Nation is the sole Owner of an LLC formed under this Code, such Tribally-owned LLC shall possess all of the privileges and immunities of the Nation, including the Nation’s sovereign immunity from suit except to the extent otherwise provided in its Operating Agreement.

(D)    If the Nation or a Tribal Entity is an Owner with a Majority in Interest in an LLC formed under this Code, such LLC may possess the privileges and immunities of the Nation, including sovereign immunity from suit, to the extent allowed by Federal law, this Code or its Operating Agreement.

(E)    In no event shall any manager not an Owner of an LLC in which the Nation is an Owner, bind the Nation in any manner; provided that the Nation’s interest as an Owner may be bound by manager or Owner actions as stated in this Code and the Operating Agreement of the LLC.

(F)    Nothing contained in this Code shall be construed as creating any liability or waiving of sovereign immunity of the Nation in any manner; provided that the assets of the LLC in which the Nation holds an interest may be subject to liabilities and claims unless otherwise provided herein. In no event shall any action taken by the Nation as Owner concerning the exercise of any right or privilege or discharge of any duty with respect to an interest in an LLC be construed as a waiver of immunity or creation of a liability on the part of the Nation separate and apart from its interests as an Owner of the LLC.

(G)    For all Tribally-owned limited liability companies, the additional provisions of Section 25-9 of this Code shall apply.

25-1-9 Nature of Business.

A limited liability company may be organized under this Code for any lawful purpose. Unless otherwise provided in its Operating Agreement, an LLC organized and existing under this Code has the same powers as an individual to do all things necessary and convenient to carry out its business, including but not limited to all of the following:

(A)    Consent to be sued, complain and defend in its name; provided, however, that if an LLC is Tribally-owned, or wholly-owned by another entity which itself is wholly-owned by the Nation, it shall be entitled to and shall enjoy the Nation’s sovereign immunity from suit unless the Operating Agreement otherwise provides.

(B)    Purchase, take, receive, lease, or otherwise acquire and own, hold, improve, use, and otherwise deal in or with real, or personal property or any legal or equitable interest in real or personal property, wherever situated.

(C)    Sell, convey, mortgage, pledge, create a security interest in, lease, exchange, or otherwise dispose of all or any part of its property.

(D)    Lend money, property, and services to, and otherwise assist, its Owners and managers, if any.

(E)    Purchase, take, receive, subscribe for, or otherwise acquire and own, hold, vote, use, employ, sell, mortgage, lend, pledge, or otherwise dispose of and deal in and with shares or other interests in, or obligations of, any other enterprise or entity.

(F)    Make contracts and guarantees; incur liabilities; borrow money; issue notes, bonds, and other obligations; and secure any of its obligations by mortgage or pledge of all or part of its property, franchises, and income.

(G)    Lend money, invest and reinvest its funds, and receive and hold real or personal property as security for repayment.

(H)    Conduct its business, locate offices, and exercise the powers granted by this Code inside or outside of the Reservation.

(I)    Be a promoter, incorporator, partner, Owner, associate, or manager of any enterprise or entity.

(J)    Elect or appoint managers, agents, and employees, define their duties, and fix their compensation.

(K)    Pay pensions and establish pension plans, pension trusts, profit-sharing plans, and benefit or incentive plans for any or all of its current or former Owners, managers, employees, and agents.

(L)    Make donations to and otherwise devote its resources for the public welfare or for charitable, scientific, educational, humanitarian, philanthropic, or religious purposes.

(M)    Indemnify an Owner, manager, employee, officer or agent, or any other person.

(N)    Provide benefits or payments to Owners, managers, employees, and agents of the LLC, and to their estates, families, dependants or beneficiaries in recognition of the past services of the Owners, managers, employees, and agents of the LLC.

(O)    Make payments or donations, or do any other act not prohibited by law, that furthers the business of the LLC.

(P)    Transact any lawful business that the Owners or the managers find to be appropriate to promote and further the business and affairs of the limited liability company.

25-1-10 Execution of Documents.

(A)    Except as otherwise provided in this Code, any document required or permitted by this Code to be delivered for filing in accordance with Section 25-1-11 shall be executed by any of the following:

(1)    Any manager, if management of the LLC is vested in a manager or managers, or by an Owner, if management of the LLC is reserved to the Owners.

(2)    All organizers of the LLC if the LLC has not been organized. The name and address of each organizer shall be provided.

(3)    The name of the drafter of the document.

(B)    The person executing the document shall sign it and state beneath or opposite the signature the person’s name and capacity in which the person signs.

(C)    The person executing the document may do so as an attorney-in-fact. Powers of attorney relating to the executing of the document need not be shown to nor filed with the Office of the Secretary.

25-1-11 Filing.

(A)    The Office of the Secretary shall receive all filings required under this Code and maintain the records of such filings pursuant to this Section, including but not limited to the Articles of Organization, amended or restated articles, annual reports, names and addresses of registered offices and agents, and, in the case of Tribally-owned LLC’s, the Operating Agreement and amendments thereto, and other reports required by this Code.

(B)    Upon receipt of a document for filing under this Code, the Office of the Secretary shall ensure it meets the requirements herein and then shall stamp or otherwise endorse the date and time of receipt of the original, the duplicate copy, and, upon request, any additional copy received.

(C)    If the Office of the Secretary refuses to file a request, the Office shall return it to the person tendering the document for filing within five (5) business days after the date on which the document is received by the Office for filing, together with a brief written explanation of the reason for refusal.

(D)    Any document accepted by the Office of the Secretary shall be effective at the time of receipt unless a delayed effective date and/or time not more than ninety (90) days after receipt by the Office of the Secretary is specified in the document.

(E)    Fees. The Office of the Secretary shall impose a reasonable filing fee for each document filed, initially not to exceed the sum of $100.00, and an annual renewal fee initially not to exceed the sum of $25.00 during the life of the LLC. Tribal Council is authorized to make regulations providing for reasonable fees for other services not specifically stated in this code or to make changes in any and all fees for services set out in this title. These changes shall be available through the Office of the Secretary.

25-1-12 Certificate of Status.

Any person may obtain from the Office of the Secretary, upon request, a certificate of status for either a domestic or a foreign LLC.

25-1-13 Execution by Judicial Act.

Any person who is adversely affected by the failure or refusal of any person to execute and file any articles or other document to be filed under this Code may petition the Tribal Court to direct the execution and filing of the articles or other document. Nothing in this Code, however, serves to waive any aspect of the Nation’s sovereign immunity, and any waiver thereof must be provided explicitly in the LLC’s Articles of Organization and/or Operating Agreement.

25-1-14 Interstate Application.

An LLC may conduct its business, carry on its operations and have and exercise the powers granted by this Code, in any sovereign Native Nation, any state, territory, district or possession of the United States, or in any foreign jurisdiction.