CROW TRIBAL LEGISLATURE

CROW TRIBAL LEGISLATURE

MARCH 28, 2017 SPECIAL SESSION

JOINT ACTION RESOLUTION NO. JARI7- 04

Introduced by Darrin Old Coyote, Chairman

Crow Tribal Executive Branch

JOINT ACTION RESOLUTION OF THE CROW TRIBAL LEGISLATURE AND THE

CROW TRIBAL EXECUTIVE BRANCH ENTITLED:

"RESOLUTION APPROVING THE CROW TRIBE'S LIMITED WAIVER OF

SOVEREIGN IMMUNITY IN THE CONSTRUCTION CONTRACT FOR THE CROW

IRRIGATION PROJECT RENO SIPHON IMPROVEMENTS PROJECT."

WHEREAS, the Crow Tribe is prepared to begin the bid process for the Reno Siphon

Improvements Project, Contract C5-2, in order to facilitate the rehabilitation and improvement of

the Reno Siphon and Check facilities within the Reno Unit of the Crow Irrigation Project, to

facilitate safer and more efficient and reliable delivery of irrigation water to benefit water users

within the Crow Irrigation Project; and

WHEREAS, Exhibit A in the Supplementary Conditions to the General Conditions of

the Construction Contract for construction of the Reno Siphon Improvements Project, attached

hereto and incorporated by reference, requires a limited waiver of sovereign immunity for the

limited purpose of enforcing the Owner’s obligations under the construction contract; and

WHEREAS, the Chairman of the Executive Branch has authority and responsibility

pursuant to the “enumerated powers” in Article IV, Section 3(a) of the Constitution and Bylaws

of the Crow Tribe of Indians to represent the Crow Tribe in negotiations with Federal, State and

local government and other agencies, corporation, associations, or individuals in matters of

welfare affecting the Crow Tribe, and in Section 3(k) to “negotiate limited waivers of sovereign

immunity when such a waiver is necessary for business purposes in accordance with Article V,

Section 2(f) of [the] Constitution;” and

WHEREAS, the Legislative Branch has authority and responsibility pursuant to its

“powers and duties” in Article V, Section 2(f) of the Constitution to “grant final approval or

disapproval of limited waivers of sovereign immunity by the Executive Branch of Government

when waivers are necessary for business purposes;” and

WHEREAS, the Crow Tribe, the community, and water users within the Crow Irrigation

Project will greatly benefit from the rehabilitation and improvement of the Crow Irrigation

Project from the Reno Siphon Improvements Project, and the limited waiver of sovereign

immunity required by the contracting conditions for the construction contract is necessary for the

business purpose of construction of the Reno Siphon Improvements Project;

March 28, 2017 Special Session

Resolution Approving the Crow Tribe's Limited Waiver of Sovereign Immunity in Construction Contract for the Crow

Irrigation Project Reno Siphon Improvements Project

Page | of 6

NOW THEREFORE, BE IT RESOLVED BY THE CROW TRIBAL

LEGISLATURE AND THE CROW TRIBAL EXECUTIVE BRANCH:

Section 1. That the limited waiver of sovereign immunity set forth in Exhibit A in

the Supplementary Conditions to the General Conditions of the Construction Contracts for

the Crow Tribe Water Resources Department (CTWRD) St. Xavier Construction Facility,

attached hereto and incorporated by reference, is hereby approved.

Section 2. That the approval granted herein is effective on the date of approval of

this Resolution.

[Remainder of Page Left Blank Intentionally]

March 28, 2017 Special Session

Resolution Approving the Crow Tribe's Limited Waiver of Sovereign Immunity in Construction Contract for the Crow

Irrigation Project Reno Siphon Improvements Project

Page 2 of 6

CERTIFICATION

I hereby certify that this Joint Action Resolution for the "RESOLUTION APPROVING THE

CROW TRIBE'S LIMITED WAIVER OF SOVEREIGN IMMUNITY IN THE

CONSTRUCTION CONTRACT FOR THE CROW IRRIGATION PROJECT RENO

SIPHON IMPROVEMENTS PROJECT " was duly approved by the Crow Tribal Legislature

with a vote of _17_ in favor, 0 opposed, and _0_ abstaining, and that a quorum was present on

this 28 day of March, 2017.

a

Senator Eric Birdingrownd

Speaker of the House

Crow Tribal Legislature

ATFXST:

yetllltey,

$exator Gordon Real Bird, Jt.

Secretary

Crow Tribal Legislature

EXECUTIVE ACTION

I hereby

X__ approve

veto

this Joint Action Resolution for the "RESOLUTION APPROVING THE CROW TRIBE'S

LIMITED WAIVER OF SOVEREIGN IMMUNITY IN THE CONSTRUCTION

CONTRACT FOR THE CROW IRRIGATION PROJECT RENO SIPHON

IMPROVEMENTS PROJECT " pursuant to the authority vested in the Chairman of the Crow

Tribe by Article V, Section 8 and Article IV, Section 3(k) of the Constitution and Bylaws of the

Crow Tribe of Indians on this day of , 2017.

i. at? AL?

Alvin Not Afraid, Jy4Chairmnan

Crow Tribal Executive Branch

March 28, 2017 Special Session

Resolution Approving the Crow Tribe's Limited Waiver of Sovereign Immunity in Construction Contract for the Crow

Irrigation Project Reno Siphon Improvements Project

Page 3 of 6

JAR-Resolution Approving the Crow Tribe’s Limited Waiver of Sovereign Immunity in the Construction

Contract for the Crow Irrigation Project Reno Siphon Improvements Project.

Bill or Resolution: JAR17-04 Introduced by: Chairman Darrin Old Coyote Date of Vote: 3/28/2017

Number

REPRESENTATIVE: Yes No Abstained

G. Three Irons

B. Rogers

F. White Clay

P. Hill

S. Real Bird

V. Nomee

T. Yellowtail

T. Gros Ventre

P. Alden, Jr.

E. Deputee

P. Spotted Horse, Sr.

L. DeCrane

J. Demontiney

B. Hugs

B. Good Luck

H. Male Bear, Jr.

G. Real Bird, Jr.

ye |dK |pe [oe | [pe [Pd [DK [DK [KI [PS > [Pe KO

Secretary of the House

Eric Birdinground

vd

Speaker of the House

Total: 17 0 0

Not Passed

LA L¢ ago

Senator Eric ‘Birdingrosind Date r Gordon Real Bird, Jr.

Speaker of the House Secretary of the House

Crow Tribal Legislative Branch Crow Tribal Legislative Branch

Result of Vote:

EXHIBIT A

DISPUTE RESOLUTION

AND

LIMITED WAIVER OF SOVEREIGN IMMUNITY

1.1. Arbitration. (a) Any Claim or other controversy arising under the

Agreement shall be settled by binding arbitration in accordance with the Construction

Industry Arbitration Rules of the American Arbitration Association (“AAA”) except as

otherwise modified herein, and judgment upon the award rendered by the arbitrator(s)

may be entered in a court having jurisdiction thereof as further provided in this Exhibit A.

(b) The laws of the Crow Tribe shall be the applicable law, or if not addressed

therein, the laws of the State of Montana; provided, that this stipulation does not affect

jurisdiction. The arbitrator(s) shall have authority to order specific performance and

award appropriate injunctive, declaratory or compensatory monetary relief, including

interlocutory orders to mitigate damage or prevent irreparable injury to a party, but shall

not have authority to award punitive damages or other noncompensatory damages.

(c) The arbitrators’ fees and all other costs of the arbitration shall initially be

borne equally by the parties, but ultimate responsibility for payment of such costs shall

be borne by the party against whom the award is rendered, except as the arbitrator(s)

may otherwise provide in a written decision.

(d) |The award of the arbitrator(s) shall be conclusive and binding on the

parties with respect to the matters decided, and shall be complied with by the parties. A

party may enter an award and institute Judicial Proceedings to enforce the award in

accordance with Section 1.2 of this Exhibit A. In such Judicial Proceedings, neither

party, without the consent of the other party, shall be entitled to contend that the award

should be vacated, modified or corrected.

1.2 Judicial Proceedings. (a) A party may commence court proceedings

(“Judicial Proceedings”) only to compel the other party to participate in arbitration

proceedings or to enforce an arbitration award. All Judicial Proceedings conducted

pursuant to this Exhibit A shall be initially commenced in Crow Tribal Court. Any

Judicial Proceedings conducted in Tribal Court shall be conducted in accordance with

the substantive law of the Federal Arbitration Act and the procedural law of the Crow

Tribal Court, to the extent that such procedural law is not inconsistent with the Federal

Arbitration Act and the procedures expressly provided herein.

(b) Only in the event that the Crow Tribal Court refuses to compel a party to

participate in arbitration proceedings or to enforce an arbitration award as written, or

fails to perform said functions within 60 days after commencement of Judicial

Proceedings, or such further time as the parties may mutually agree, may either party

March 28, 2017 Special Session

Resolution Approving the Crow Tribe's Limited Waiver of Sovereign Immunity in Construction Contract for the Crow

Irrigation Project Reno Siphon Improvements Project

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transfer (“remove”) the Judicial Proceedings from Crow Tribal Court to the United States

District Court for the District of Montana, or if it lacks jurisdiction, to the Montana

Twenty-Second Judicial District Court for Big Horn County, Montana.

(c) If allowed pursuant to subsection (b) above, removal of Judicial

Proceedings from Crow Tribal Court may be accomplished by filing a notice of removal

in Crow Tribal Court and filing an appropriate application in the appropriate federal or

state court (the “Deciding Forum”) in accordance with the procedural rules of that forum.

The notice of removal and application need be executed on behalf of only the removing

party, and such removal shall not be opposed or contested by the other party. Upon

removal, all proceedings in Crow Tribal Court shall be stayed pending final resolution in

the Deciding Forum, and all Tribal remedies shall be deemed exhausted. Upon final

resolution of the matter, the order or judgment of the Deciding Forum may be entered in

Crow Tribal Court.

(d) The parties waive any rights to pursue judicial proceedings related to the

Agreement in any court except as provided in this Exhibit A.

1.3. Limited Waiver of Owner’s Sovereign Immunity. The Crow Tribe of

Indians unequivocally and irrevocably grants a limited waiver of its sovereign immunity

from suit for the limited purpose of enforcing the Owner's obligations under the

Agreement by means of arbitration proceedings, Judicial Proceedings instituted for the

purpose of compelling participation in arbitration proceedings, and Judicial Proceedings

for the enforcement of arbitration awards, all in accordance with the provisions of this

Exhibit A; provided, however, that:

(a) _ this limited waiver shall only extend to the Contractor, its successors and

assigns, and no other or third parties;

(b) this limited waiver shall not apply to proceedings in any court except the

Judicial Proceedings as provided in Section 1.2 of this Exhibit A;

(c) this waiver shall extend only for a period of time until all the Owner's

obligations are satisfied under the Agreement; and

(d) the monetary relief available against the Crow Tribe of Indians pursuant to

this waiver shall be limited to amounts that are expressly due and payable pursuant to

the Agreement (including the costs of arbitration if so awarded against the Owner

pursuant to this Exhibit A), and shall not include any other indirect, consequential, tort,

punitive or noncompensatory damages. In no event shall any judgment or other relief

awarded pursuant to this limited waiver result in the encumbrance of any Tribal property

or assets which are held in trust for the Crow Tribe by the United States of America.

March 28, 2017 Special Session

Resolution Approving the Crow Tribe's Limited Waiver of Sovereign Immunity in Construction Contract for the Crow

Irrigation Project Reno Siphon Improvements Project

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Rehabilitation and Improvement of the Crow Irrigation Project

Reno Siphon Improvements Project

The scope of WORK generally consists of improvements to the Reno Siphon, Check Structure,

and Main Canal, comprised of the demolition of the existing Reno Siphon, Check, and Parshall

Flume Structures, and replacement with a new Inverted Siphon and Check Structure, as well as

cleaning and reshaping of approximately 5,000 feet of the Main Canal, as required by the

Contract Documents and General Requirements. The project is located on the Crow Reservation

in Big Horn County, Montana approximately nine (9) miles south of Crow Agency, Montana,

and is owned, operated, and maintained by the Bureau of Indian Affairs. The construction work

for the project consists generally of earthwork and steel reinforced concrete construction

associated with footings, walls, and floor slabs; structure earthwork, including excavation,

backfill, and compacted backfill; canal earthwork, including excavation and compacted

embankment construction; dewatering activities; concrete demolition and removal associated

with the existing Reno Siphon, Check, and Parshall Flume Structures; furnishing and installation

of miscellaneous metal (stoplog guides, trash rack, and all other miscellaneous metal); furnishing

and installation of reinforced concrete pipe with soil-cement bedding; furnishing material and

concrete testing services; and all other associated work. Site work to include furnishing and

installation of riprap; furnishing and installation of gravel surfacing; and seeding, fertilizing, and

mulching.

March 28, 2017 Special Session

Resolution Approving the Crow Tribe's Limited Waiver of Sovereign Immunity in Construction Contract for the Crow

Irrigation Project Reno Siphon Improvements Project

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