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Last amended: March 13, 2003
Ordinance No. 2000-002
WHEREAS, as a condition of the tribal-state compact, the Susanville Indian Rancheria has been required by the State to adopt a tort liability ordinance to resolve patron claims for money damages resulting from intentional or negligent injuries to persons or property at the Gaming Facility or in connection with the Tribe's Gaming Operation; and
WHEREAS, the Susanville Indian Rancheria Tribe [hereinafter the Tribe] is immune from suit except to the extent that immunity has been explicitly waived by this Ordinance, federal, or tribal law; and
WHEREAS, the Tribal Business Council also recognizes that the Tribe relies upon the Gaming Facility to provide funding to support essential Tribal services and functions and that unlimited liability could disrupt the provision of such essential services and functions; and
WHEREAS, the Tribal Business Council in order to provide an equitable policy, hereby adopts a Tribal Tort Ordinance which states the expressly limited circumstances under which a person may file a claim against the Gaming Operation for injuries; and
WHEREAS, this Ordinance does not constitute a general waiver of the Tribes' sovereign immunity. This Ordinance applies only to those activities undertaken by the Tribe or its employees and that occur at the Gaming Facility or by the Tribe's Gaming Operation. This Ordinance is intended to permit only those claims, which are considered actions, which are covered by the liability insurance of the Tribe. This Ordinance is to be strictly construed.
NOW, THEREFORE, BE IT RESOLVED THAT, the following is enacted as the Susanville Indian Rancheria Tribal Tort Ordinance.
Section 1. Title
This Ordinance shall be known as the Susanville Indian Rancheria Tribal Tort Ordinance.
Section 2. Definitions
Unless otherwise required by the context, the following words and phrases shall be defined as follows:
a. "Gaming Facility" means the building in which the Tribe's Class III gaming activities or gaming operations occur, or in which the business records, receipts, or other funds of the gaming operation are maintained (excluding offsite facilities primarily dedicated to storage of those records, and financial institutions), and all rooms, building, and areas, including parking lots and walkways, a principal purpose of which is to serve the activities of the Class III provisions of the Tribe's Gaming Operation.
b. "Gaming Operation" means the Susanville Indian Rancheria Gaming Enterprise, d.b.a. Susanville Casino, which is the business enterprise that offers and operates Class III Gaming Activities.
c. "Susanville Indian Rancheria" means the federally recognized Indian Tribe of that name.
d. "Susanville Indian Rancheria Tribal Business Council" means the governing body of the Susanville Indian Rancheria.
e. "Tribal Agency" includes the Tribal Business Council, Tribal Development Committee, and corporations primarily acting as instrumentalities or agencies of the Susanville Indian Rancheria, but does not include any contractor with the Susanville Indian Rancheria.
f. "Tort Claims Board" means the official committee comprised of at least one tribal member and two managerial employees to be determined by the Tribal Business Council to specifically oversee the initial stages of the tort claims process.
g. "Claim" means a petition for an award under this Ordinance. A claim may be filed with respect to any injury as defined in this ordinance and that is expressly covered by the Class III liability insurance of the Tribe and only to the extent covered by the Class III Gaming insurance policy.
h. "Person" means any individual, firm, partnership, corporation, or association.
i. "Dangerous Condition" means a physical aspect of a facility or the use thereof that constitutes an unreasonable risk to human health or safety, that is known to exist or that in the exercise of reasonable care should have been known to exist and that condition is proximately caused by the negligent acts or omissions of the Tribe in constructing or maintaining such facility. For the purposes of this subsection, a dangerous condition should have been known to exist if it is established that the condition had existed for such a period of time and was of such a nature that, in the exercise of reasonable care, such condition and its dangerous character should have been discovered. A dangerous condition shall not exist solely because the design of any facility is inadequate nor due to the mere existence of wind, water, ice or temperature by itself, or by the mere existence of a natural physical condition. Nothing in the Section shall preclude an accumulation of water, snow, or ice from being found to constitute a dangerous condition when the Tribe fails to use existing means available to it for the removal of such accumulation and when the Tribe had notice of such accumulation and reasonable time to act.
j. "Employee" means a part or full time employee or an agent of the Tribe's Gaming Operation, when acting during the course and within the scope of their employment whether with or without compensation. This term includes officers and directors of the Gaming Facility when they are acting to fulfill their duties to the Tribe's Gaming Facility. This does not include agents or representatives of the United States or of the State of California or any of their political subdivisions or any official of the Susanville Indian Rancheria Tribe acting in any capacity other than fulfilling their duties to the Gaming Facility.
k. "Injury" means death, harm to a person, or damage to or loss of property which, if inflicted by a person under California State Law or Tribal Law, would constitute a tort and which is expressly covered by the Class III Gaming liability insurance of the Tribe without regard to any deductible amount contained in the Class III Gaming insurance policy.
1. "Award" means money damages that are payable to compensate for any injury recognized under this Ordinance.
m. "Actual Damages" means the ascertainable loss of money or property sustained as a result of an injury, provided that the Class III Gaming liability insurance of the Gaming Enterprise without regard to any deductible amount contained in the Class III insurance policy covers such injury.
Section 3. Effective Date of Ordinance
This Ordinance shall become effective immediately upon approval by the Tribal Business Council.
Section 4. Limited Waiver of Sovereign Immunity
a. The sovereign immunity of the Tribe shall continue except to the extent that it is expressly waived by this Ordinance. Members of the Tribal Business Council remain immune from suit for actions taken during the course and within the scope of their duties as members of the Tribal Business Council.
b. The sovereign immunity of the Tribe is waived to the extent of the monetary policy limits of the Tribe's Class III Gaming liability insurance, and only in the following instances:
1) When the injuries alleged are proven to have been proximately caused by the wrongful or negligent acts of the Tribe or employees of the Tribe arising out of the performance of their duties during the course and within the scope of their employment at the tribal Gaming Facility or the Gaming Operation that are covered within the Tribe's Class III Gaming insurance policy;
2) When the injuries alleged are proven to have been proximately caused by the dangerous condition of any property of the Tribe's Class III Gaming Facility that are covered within the Tribe's Class III Gaming insurance policy provided the claimant establishes that the property was in a dangerous condition and defined by this Ordinance;
Section 5. Limitation on Awards
a. No rule of law imposing absolute or strict liability shall be applied in any claim for injuries under this Ordinance.
b. No award or other judgment imposing punitive, exemplary damages, or attorney's fees shall be applied in any claim for injuries under this Ordinance.
c. No award for loss of consortium shall be applied in any claim for injuries under this Ordinance.
d. No award for pain and suffering or mental anguish shall be applied except where such award does not exceed fifty percent of the actual damages sustained and provided that any such award is expressly covered by the Class III Gaming liability insurance of the Tribe without regard to any deductible amount contained in the Class III Gaming insurance policy.
Section 6. Extent of Liability
In any claim, the maximum amount of any award under this Ordinance, including damages, court costs, interest, and any other costs shall be as provided for by the terms of the Tribe's Class III Gaming insurance policy.
With respect to claims in excess of the Class III Gaming liability insurance
policy of the Tribe, the Tribe shall be entitled to assert any defense based
upon sovereign immunity which otherwise would have been available to the Tribe
or the employee of the Tribe whose act or omission gave rise to the claim, as
well as any other defenses to which the Tribe is entitled.
Section 7. Notice Requirement
a. A written notice filed with the Tort Claims Board by the claimant or the claimant's representative within 180 days after the claim accrues must precede claims brought under this Ordinance. Claims brought under this Ordinance shall be deemed to accrue on the date when the injury is sustained.
b. The notice shall contain the following:
1) The name and address of the claimant and the name and address of the claimant's attorney, if any;
2) A concise statement of the factual basis of the claim, including the date, time, place, and circumstances of the act, omission, or condition complained of;3) The name of any employee involved, if known;
4) A concise statement of the nature and the extent of the injury claimed to have been suffered;
5) A statement of the amount of monetary damages that is being requested;
c. When the claim is one for death by the negligent act or omission, the personal representative, surviving spouse, or next of kin of the deceased may present the notice.
Section 8. Disposition by Tort Claims Board Tribal Business Council as
Prerequisite: Evidence
a. Upon a claimant filing notice with the Tort Claims Board, the Board shall provide the Tribal Business Council, the tribal attorney, as well as the Tribe's Class III Gaming insurance carrier a copy of the claim. The Torts Claim Board shall make an investigation into the alleged charges. Should a member of the Board have a relationship with the claimant that is or could be viewed as a conflict of interest, that Board member shall recuse themself from participating in the investigation. Upon completion of the investigation, the Board shall file a written report to the Tribal Business Council with their assessment of the validity of the claim as well as a recommendation to the Tribal Business Council as to disposition of the claim. Nothing herein shall preclude the Tribal Business Council from intervening in this process and having the matter taken up directly by the Tribal Business Council.
b. Upon a claimant filing notice with the Tort Claims Board and the Board's submission of its investigative report to the Tribal Business Council, the Tribal Business Council may consider, ascertain, adjust, determine, compromise, and settle any claim for money damages against the Susanville Indian Rancheria. The Tribe may use arbitration, or other alternate means of dispute resolution to settle any tort claim against the Tribe.
c. In the event that the Tribal Business Council has given approval of a claim, and chooses to have the claim paid by the insurance carrier, such approval of the claim shall not be final unless and until the Tribe's Class III insurance carrier approves payment of the award. The Tribe's Class III insurance carrier decision to decline the payment of the award shall be deemed to be the final decision of the Tribal Business Council.
d. Subject to the provisions of this title relating to civil actions on tort claims against the Susanville Indian Rancheria, any such award, compromise, settlement, or determination shall be final and conclusive on all officers of the Government, except when procured by means of fraud.
e. The acceptance by the claimant of any such award, compromise, or settlement shall be final and conclusive on the claimant, and shall constitute a complete release of any claim against the Susanville Indian Rancheria and against any employees of the Tribe whose acts or omission gave rise to the claim, by reason of the same subject matter. Such a release shall be obtained from the claimant prior to the payment of the claim.
f. An action shall not be instituted upon a claim against the Susanville Indian Rancheria for money damages for injury or loss of property or personal injury or death caused by a dangerous condition on the Gaming Facility, or by the negligent or wrongful act of any employee of the Tribe's Gaming Operation while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the Tort Claims Board and his claim shall have been finally denied by the Tribal Business Council, in writing, and sent by certified or registered mail to the claimant. The failure of the Tribal Business Council to make final disposition of a claim within 180 days after it is filed with the Tort Claims Board shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section. The provisions of this subsection shall not apply to such claims as may be asserted under the Federal Rules of Civil Procedure by third party complaint, cross-claim or counterclaim.
g. Action under this section shall not be instituted for any sum in excess of the amount of the claim presented to the Tort Claims Board and Tribal Business Council, except where the increased amount is based upon newly discovered evidence not reasonably ascertainable at the time of presenting the claim to the Board or Tribal Business Council, or upon allegation and proof of intervening facts, relating to the amount of the claim.
h. Disposition of any claim by the Tribal Business Council shall not be competent evidence of liability or amount of damages.
Section 9. Exclusiveness of Remedy, Judgment as Bar
a. The remedy against the Tribe provided for in this title for injury or loss of property, or personal injury or death arising or resulting from the negligent or wrongful act or omission of any employee of the Tribe while acting within the scope of his office or employment is exclusive of any other civil action or proceeding for money damages by reason of the same subject matter against the employee whose act or omission gave rise to the claim or against the estate of such employee. Any other civil action or proceeding for money damages arising out of or relating to the same subject matter against the employee or the employee's estate is precluded without regard to when the act or omission occurred.
This section does not extend or apply to a civil action against an employee of the Tribe
i.which is brought for a violation of the Constitution of the United States, or
ii. which is brought for a violation of a statute of the United States under which such action against an individual is otherwise authorized.
Section 10. Exceptions
The provisions of this Ordinance shall not apply to:
(a) Any claim based upon an act or omission of an employee of the Tribe, exercising due care, in the execution of a tribal, federal, or state statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a tribal agency or an employee of the Tribe, whether or not the discretion involved be abused.
(b) Any claim arising in respect of the assessment or collection of any tax, or the detention of any goods or merchandise by any tribal, federal, or state official.
(c) Any claim arising outside of the Tribe's Gaming Facility or Gaming Operation.
Section 13. Miscellaneous [No sections 11-12 in original
document]
a. In constituting this Ordinance, the present tense includes the past and future tenses, and the future tense includes the present tense.
b. When reference is made to any portion of this Ordinance, the reference shall apply to amendments made hereafter.
c. All Tribal Ordinances or other laws inconsistent with this Ordinance are hereby repealed only to the extent that they are inconsistent with this Ordinance. To the extent this Ordinance provides other than any other tribal law governing tort claims against the Gaming Facility or Gaming Operation, this Ordinance shall govern.
d. Section headings shall be used only for reference to format and not in construing this Ordinance.
e. The Tribe shall make this Tort Claims Ordinance available for review upon request to patrons of the Gaming Facility.
CERTIFICATION
We, hereby certify that the Susanville Indian Rancheria Tribal Tort Ordinance was adopted by the Susanville Indian Rancheria Tribal Business Council at a duly called meeting held November 27, 2000 with a vote of 7 for, 0 against, 0 abstain.
ATTEST;
/s/
/s/
Doyle Lowry Ike
Lowry
Secretary/Treasurer
Tribal Chairman