Charter

ARTICLE I
FORMATION AND NAME

The Lummi Indian Business Council (LIBC), the governing body of the Lummi Nation, a federally recognized Indian tribe, hereby grants this Charter establishing the Lummi Commercial Company (Company) pursuant to Article VI, Section 1(l) and (p) of the Lummi Constitution, and the Lummi Nation Code of Laws.

ARTICLE II
DURATION

The period of the Company’s duration is perpetual.

ARTICLE III
PURPOSES

The purposes for which the Company is organized are as follows:

1. To develop, maintain and operate Lummi tribal retail and commercial enterprises as delegated by the LIBC.
2. To generate revenue for the strengthening of tribal self-government.
3. To develop business expertise in the management and administration of tribal retail and commercial enterprises.
4. To enhance employment opportunities for tribal members.
5. To support tribal member entrepreneurship and businesses.

ARTICLE IV
GENERAL POWERS

The Company shall have power:

1. To manage, maintain and operate the Silver Reef Casino and affiliated holdings
2. To manage, maintain, and operate the Lummi Bay Market stores and affiliated holdings,
3. To manage, maintain, and operate other tribal retail and commercial enterprises as may be delegated by the LIBC by resolution or which the Company may develop in accordance with this Charter and applicable law;
4. To develop new lines of products and services within existing businesses;
5. To create, develop, and manage enterprises and affiliated and subsidiary entities and governing bodies;
6. To acquire businesses and other entities, subject to LIBC approval;
7. To enter into agreements, contracts or relationships with the LIBC or any government agency, tribal, federal, state or local, or with any person, partnership, corporation, or other legally formed entity, in the furtherance of the Company’s powers and purposes, including but not limited to contracts to secure financial assistance in the construction, management, maintenance or operation of any enterprise of the Company, and any such agreements or relationships may include the promise to indemnify, defend, and/or hold harmless;
8. To participate in any partnership, joint venture, trust or other enterprise and to execute any agreements required in connection therewith;
9. To purchase all equipment, property, and other assets for the purposes of the Company, provided that: (a) all assets acquired by or obtained in the name of the Lummi Nation or the LIBC shall belong to the LIBC and be managed for the benefit of the Company; and (b)title to real property or property that is to become a part of the land, shall be taken in the name of the United States in trust for the Lummi Nation.
10. To acquire, manage, own and hold funds and assets from any source for the furtherance of the Company’s powers and purposes;
11. To adopt such rules, policies and procedures regarding its enterprises as the Company deems necessary and proper, including but not limited to the governance of the Company; provided that such rules, policies, and procedures must be consistent with all applicable laws and this Charter;
12. To establish and maintain such bank accounts as may be necessary or convenient to the business of the Company;
13. To employ or appoint employees and agents of the Company and define their duties and fix their compensation for the benefit of the Company;
14. To appoint the officers of the Company from among the members of the Board of Directors;
15. The power to pledge assets owned by and held in the Company’s name or the name(s) of its subsidiaries, affiliates, or enterprises;
16. To sue and be sued, complain and defend, in its organizational name, provided that this power to waive tribal immunity shall be exercised in accordance with the mandates of Article XII;
17. To purchase and maintain insurance for its benefit and/or the benefit of its enterprises, subsidiaries, and affiliates;
18. To purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Company against any liability asserted against him and incurred by him in any such capacity or arising out of his status as such, whether or not the Company would have the power to otherwise indemnify him or her against such liability under the provisions of this section;
19. To indemnify, defend, and/or hold harmless any director, officer, employee or agent of the Company, its enterprises, affiliates, and subsidiaries, who was or is a party defendant or is threatened to be made a party defendant to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of the fact that he is or was a director, officer,  employee or agent of the Company, if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company, and with respect to any criminal action or proceeding, if he had no reasonable cause to believe his conduct was unlawful;
20.   To perform all other functions necessary to fulfill the purposes of the Company.

ARTICLE V
BYLAWS

The initial bylaws of the Company shall be adopted by the LIBC.  Thereafter, the power to alter, amend or repeal the bylaws or adopt new bylaws shall be vested in the Board of Directors of the Company, provided that, the bylaws shall not be inconsistent with this Charter, the Lummi Constitution and Bylaws, and ordinances of the Lummi Nation. The bylaws shall provide for the governance of the Board of Directors, including the frequency, scheduling, and conduct of meetings and actions. Such meetings and actions may be in-person, telephonic, electronic, or otherwise, provided that the method of meeting must provide for adequate notice and adequate opportunity for discussion. In an emergency, any action which could be required or permitted at a meeting, may be taken without a meeting if two-thirds of the Board of Directors consents in writing to such action. Such consents must be filed with the minutes of the Board.

ARTICLE VI
BOARD OF DIRECTORS

1. The business affairs of the Company shall be managed by its Board of Directors.
2. Number.  The number of directors of the Company shall be six (6).
3. Qualifications.
4.   The LIBC Treasurer shall automatically hold a seat on the Board of Directors.  The remaining five (5) members shall be selected by the LIBC.  The Board of Directors will provide a list of recommended candidates able to fulfill the position description and based on the qualifications listed below.
5.   To be eligible to serve as a director, an individual must meet the following criteria:
6. Be knowledgeable or have experience in one or more of the following areas, corporate management, business and/or finance, tribal community services and social programs, planning and development, tribal administration; or other skills, experience, formal education, or expertise as the Board of Directors shall determine is valuable and appropriate.
7. Any citizen of the Lummi Nation, whose name appears on the official tribal membership roll, shall be eligible to become a member of the Board of Directors.
8. Must be eligible for a gaming license and if appointed to the Board of Directors, a gaming license must be obtained within thirty (30) days of the date of appointment by the LIBC.
9. Must not have any outstanding debts, taxes, and/or fees and fees owed to the LIBC or any of its separately administered entities. .
11. Appointment.  The LIBC Treasurer shall be automatically appointed to the Board of Directors.  No further action, by LIBC or the Company, is necessary.  If the LIBC Treasurer position is not filled, the Company shall not be prevented from executing its duties so long as all other provisions of applicable law, this Charter, bylaws, and other policies and procedures are met.
12. General Authority. The Board of Directors shall manage the direction of the Company and in doing so may exercise all the powers of the Company except as provided by law. In the event of a vacancy or vacancies, the remaining Directors may exercise the full powers of the Board of Directors until the vacancy is filled.
13. Term.  Except for the initial Board of Directors, the term of office of the Directors shall be staggered three-year terms.  The LIBC Treasurer shall serve on the Board of Directors only while he/she is in that position.
14. Quorum.  A majority of the number of filled seats of the Board of Directors shall constitute a quorum for the transaction of business at any meeting of the Board of Directors.
15. Vacancies.  A vacancy occurring in the Board of Directors because of death, resignation, removal, or other reasons may be filled by the LIBC.  The Board of Directors will provide a list of recommended candidates.  A Director appointed to fill a vacancy shall be appointed for the unexpired term of his predecessor in office.
16. Removal.  A Director may be removed at any time for cause after an appropriate hearing.  “Cause” shall be limited to any of the following reasons:
17.   Failure to act in accordance with fiduciary duties;
18.   Failure to attend three (3) consecutive Board of Directors meetings.
19.   Abuse of office.
20.   Removal Procedure.  A written statement of any charge supporting removal may be filed against a director by a majority vote of the Board of Directors.  All such statements shall be filed with the LIBC.  An appropriate hearing shall be held at the next regularly scheduled LIBC meeting following the filing of the statement of the charge.  Removal shall be by an affirmative vote of six (6) members of the LIBC.
21.   Resignation.  Any member of the Board of Directors may resign from the Board of Directors at any time by giving written notice to the Chairman of the Board of Directors, and the acceptance of such resignation shall not be necessary to make it effective.
22.   Compensation.  Directors may be paid compensation for work on behalf of the Board of Directors.  Such compensation shall be reflective of the critical impact of Board of Directors decisions on Company profitability; and determined by the Board of Directors.   Expenses may be reimbursed consistent with LIBC expense reimbursement policies.  No other compensation shall be inferred or paid. Directors may be paid an hourly task rate to do task work assigned to them through the Board of Directors official action. The compensation for task work will be determined by the Board of Directors through a Company Resolution.
23.   Meetings to Be Open to LIBC Attendance.  All Company meetings shall be made open to attendance by LIBC members. LIBC will be provided adequate notification of such meetings.

ARTICLE VII
MANAGEMENT

The Board of Directors may retain full time positions to manage, oversee, and administer the day-to-day affairs of the Company consistent with the policies and directives of the Board of Directors.  The qualifications, duties, term, title, removal, and salary of the positions shall be determined by the Board of Directors.  The positions shall be subject to termination with or without cause and with or without notice unless the Board of Directors determines otherwise.

ARTICLE VIII
BOOKS AND RECORDS

1.   The Company shall keep correct and complete books and records of account and shall keep minutes of the proceedings of its Board of Directors.
2. The LIBC, upon written demand to the Board of Directors and appropriate CEO, stating the purpose thereof, may examine the Company’s relevant books and records of account, minutes, and records, and make copies therefrom in accordance with Title 28, the Budget and Finance Code of the Lummi Code of Laws § 28.12.040(b).
3.   Quarterly financial reports for each retail or commercial enterprise shall be submitted to the LIBC by the Secretary-Treasurer or their designee.

ARTICLE IX
AUDIT AND FISCAL YEAR

28. The Board of Directors shall cause an independent audit of the financial statements of the Company to be conducted by an independent certified public accounting firm at the close of each fiscal year.  All certified opinions and management letters shall be submitted to the Business Council. LIBC has the right to conduct or cause to be conducted its own audit of the Company in accordance with Title 28, the Budget and Finance Code of the Lummi Code of Laws § 28.12.040(b).
29. The fiscal year of the Company shall be the calendar year.

ARTICLE X
FIDUCIARY DUTIES

Every member of the Company’s governing body, and every employee or agent with duties and authority comparable to an executive (regardless of title), shall discharge his or her duties in good faith, with the same degree of care an average person would use under similar circumstances, and in a way the member, employee, or agent reasonably believes to be in the Company’s best interests.

ARTICLE XI
ANNUAL PLAN AND BUDGET

6. Annual Plan.  The Board of Directors shall develop an Annual Plan including individual annual plans for each retail or commercial enterprise delegated to the Company.  Each individual annual plan shall include a description of the activities of the enterprise, and anticipated actions, events, or circumstances that may impact the enterprise.  Prior to submission of the Company’s Annual Budget, the Annual Plan shall be approved by the Board of Directors and submitted, reviewed and approved by the LIBC in accordance with the most recent memoranda of agreement, MOA 6.d: Quarterly Reporting
7. Annual Budget.  The Board of Directors shall approve an Annual Budget, including individual annual budgets for each retail or commercial enterprise delegated to the Company.  The individual budgets and the Company’s Annual Budget shall include projected revenues and expenditures, and a projection of anticipated profit and tax distribution to the Lummi Nation as calculated using the most recent memoranda of agreement or similar documents which addresses the distribution of income and taxes to the LIBC.  The Company’s Annual Budget shall be submitted to the LIBC and reviewed and approved in accordance with the Lummi Budget and Finance Code, Title 28 of the Lummi Code of Laws.

ARTICLE XII
SOVEREIGN IMMUNITY

1.   The Company is a wholly owned enterprise of the Lummi Nation and the Company and its subsidiaries and affiliates shall be deemed to be arms or instrumentalities of the Nation and possess all the same privileges and immunities as the Nation, including but not limited to sovereign immunity. Such privileges and immunities extend to the Company’s and its subsidiaries and affiliates’ directors, officers, employees, attorneys, agents, and others whom would reasonably be expected to enjoy such privileges and immunities.  The Company shall not have any power to waive or limit the right of the LIBC to be immune from suit.
2.   The Company shall have the authority to waive its immunity and the immunity of its subsidiaries or affiliates, provided, however, that: (a) such waiver shall be effective only in the courts of the Lummi Nation or the federal courts for the Western District of Washington; (b) such waiver must be written, express, and unequivocal; and (c) such waiver must be approved by the Board of Directors.
3.   Any recovery against the Company, its subsidiaries or affiliates shall be limited to their respective assets only. No recovery or relief shall be had against the assets of the Lummi Nation, the LIBC, their agents, officers, directors, employees, attorneys or other entities, unless specifically authorized by the LIBC in a duly approved resolution.  No relief shall be had against any assets held in federal trust.
4.   The Company shall not have authority to waive or impair the privileges and immunities of the Lummi Nation, LIBC, or their affiliates, subsidiaries, enterprises, directors, officers, employees, attorneys, agents or others who would reasonably be expected to enjoy such privileges and immunities.
5.   The Company’s bylaws, policies and procedures may provide for stricter limitations on Article XII A-D.
6.   LIBC may authorize deviations from this Section XII by a duly-enacted resolution and in compliance with applicable federal and tribal law.

ARTICLE XIII
AMENDMENT OF CHARTER

Amendment of this Charter shall be approved by a two-thirds vote of the Board of Directors and by the LIBC.

ARTICLE XIV
DISSOLUTION

1. The Company may be dissolved in either of the following ways:
2.   The Board of Directors may adopt a resolution recommending that the Company be dissolved. The question of such dissolution shall be submitted to a vote of the LIBC.
3.   The LIBC may repeal this Charter and dissolve the Company.
4.   In winding up its affairs upon dissolution, the Company shall pay and discharge all debts, liabilities and obligations and distribute all its remaining property and assets, either in cash or in kind, to the LIBC.

ARTICLE XV
PRINCIPAL OFFICE

The principal office of the Company shall be located on the Lummi Reservation in Washington. Dated this 17th day of October, 2023.

  Anthony Hillaire, Chairman Lummi Indian Business Council

CERTIFICATION:

I certify that this Amended Charter for the Lummi Commercial Company was approved by the Lummi Indian Business Council pursuant to Resolution #2023-146 at a regular meeting of the Lummi Indian Business Council held on the 17^th day of October, 2023. Dated this 17th day of October, 2023.

  William Jones Jr., Secretary Lummi Indian Business Council