Oglala Sioux Tribe Uniform Commercial Code

Chapter 44 of the Oglala Sioux Tribe Law and Order Code previously contained only the business license provisions now contained in Part 1. No substantive changes were made to the existing law – it was merely re-codified in Part 1.  Business filings are now being accepted at the OST Department of Revenue, Post Office Box 363, Pine Ridge, South Dakota 57770; 605 867-5821, ext. 249 or 226.

Chapter 44 is now a modernized business law (the “OST Business Code”) that is attractive to domestic and foreign businesses. Provisions have been added to foster local employment of attorney and lay advocates who are members of the Bar of the Oglala Sioux Tribe. Provisions have also been added to empower Lakota entrepreneurs and business owners at minimal cost reducing barriers to entry for Lakota business start-ups. Drafting notes have been added where appropriate to identify any underlying laws and to highlight drafting and/or interpretation issues. Editorial notes have also been added to the Table of Contents and where appropriate summaries and/or flow charts have been added for ease of reference.

This modernized OST Business Code is drafted for ease of use and interpretation by business owners and lawyers from all jurisdictions. It is based on a selection of underlying codes from a variety of jurisdictions, including uniform laws. Where relevant to interpretation, original references in underlying uniform laws have been preserved. The following uniform laws have been incorporated in this Chapter 44: Model Entity Transactions Act, Uniform Partnership Act of 1997, Uniform Limited Partnership Act of 2001, Uniform Limited Liability Company Act of 1996, Uniform Trade Secret Act, Uniform Transfer to Minors Act, Uniform Trust Code of 2000, Uniform Securities Act of 2005, and Uniform Electronic Transactions Act.

The following is a list of the underlying laws used as a basis to draft the OST Business Code: Blackfeet Tribal Code Consumer Protection and Truth in Lending Acts; California Corporations Code (Unincorporated Associations, Business Rights, Contracts and Obligations, Trademark Act, Fictitious Business Names, Real Estate Investment Trusts and Professional Corporations and Entities, Unfair Business Practices), Colorado Corporations Code (Art. 90 re: Definitions, Filing, Entity Names, Registered Agent, Service of Process, Foreign Entities, Delinquency and Dissolution) and Cooperative Law; Hoopa Valley Tribal Code for Corporations, Nonprofit Corporations, Business Code and Tribal Entities Code; and South Dakota Business Trust Act and Foreign Business Trust Act.

The OST Business Code is divided into 9 Parts. The American Bar Association has cited Colorado and Texas as having two of the most modern corporate laws in the United States – using a “hub & spoke” architecture. Colorado’s Article 90 was chosen as a basis for the OST Business Code because Colorado is relatively close to the Reservation and Art. 90 is easier to understand than Texas corporate law.

As a result this “hub & spoke” architecture, the OST Business Code has centralized general provisions regarding definitions, mergers, filing, names, registered agent, service of process, foreign entities and delinquency/dissolution in Part 2. The “organic statutes” (e.g., Business Corporations Act, limited liability company act, etc.) contain cross-references to these centralized general provisions so that they need not be repeated in those acts unless there are specifics that are not covered by the centralized general provisions.

A note on filing. Most states have a Secretary of State that serves as a centralized filing office for many organic statues (such as UCC filings and corporate filings). Since the Clerk of the Tribal Court maintains the most reliable legal filing system on the Reservation, the Clerk has been assigned the filing duties often performed by the Secretary of the State of a state. Further, under the Uniform Securities Act, the Clerk will be the “Administrator” unless the Tribal Council appoints another officer to be the Administrator.

The OST Business Code contains a voluntary program to encourage businesses to promote Lakota language and culture under Section 44-2-1.10. This gives companies doing business on the Reservation and companies formed under OST law a chance to give back to the community.

The OST Business Code contains provisions to stimulate employment on the Reservation. For example, foreign entities must maintain a registered agent who is a member of the Bar of the Oglala Sioux Tribe (attorney or lay advocate). In addition, under Section 44-6-1.02(a), a party to a contract that involves a person who is resident on the Reservation, or a domestic entity or a registered foreign entity may maintain an action to enforce the contract in Tribal Court. Under Section 44-6-1.03.3(I), unless the contract expressly provides otherwise, the law of the Oglala Sioux Tribe will apply to any contract if a party to the contract is a resident of the Reservation, a domestic entity or a registered foreign entity. Section 44-6-1.03.3(m) provides that any contract involving more than $100,000 or which is evidenced by a document written in the Lakota language can specify the law of the Oglala Sioux Tribe as its governing law. Under Section 44-6-1.02(b), a party to a contract that is governed by the laws of the Oglala Sioux Tribe under Section 44-6-1.03.3(m) may maintain an action in the Tribal Court to enforce such contract provided that such party registers as a foreign entity prior to filing such action. These provisions are intended to promote the use of the Tribal Court system for the efficient resolution of business contract disputes. A positive effect of this would be to increase fee revenues to the Tribal Court as well as the caseload of members of the Bar of the Oglala Sioux Tribe.

A note on service of process. In most states, the Secretary of State is appointed as a “back-up” agent for service of process in the event that the registered agent resign and is not replaced or for any other reason, the entity cannot be served through traditional means. In such cases, the OST Business Code provides that the Tribal Secretary may accept service of process.

A note on section references. Since the OST Business Code is based on the laws of several different jurisdictions, it contains a variety of internal section references and terms such as “Act”, “Article”, “Division”, “Ordinance”, “Paragraph”, “Part”, “Subdivision”, “Subparagraph”, “Subpart”, “Subsection” and “Title.” Such terms should be interpreted consistently.