[HISTORY: Adopted by the Tribal Council of the Nottawaseppi Huron Band of the Potawatomi 2-18-2016 by Res. No. 02-18-16-11. Amendments noted where applicable.]
This code is enacted by the Tribal Council pursuant to Article VI, Section 1(a), of the Nottawaseppi Huron Band of the Potawatomi (NHBP, Tribe, or Band) amended and restated Constitution, which vests the Tribal Council with power to adopt statutes which are necessary and proper to carry out the sovereign powers of the Band and to promote the health, safety, education and general welfare of the Band and its members. This code is also adopted under the authority of Article VI, Section 1(i) of the Constitution, which authorizes the Tribal Council to administer any funds within the control of the Band.
As required by the Band's Constitution and amendments thereto, the jurisdiction and sovereign powers of the Band shall, consistent with applicable federal law, extend and be exercised to the fullest extent consistent with self-determination, including without limitation, to all of the Band's territory as set forth in Article II, Section 2(a), of the Constitution, to any and all persons within the Band's territory and to all activities and matters within the Band's territory. The Band's jurisdiction shall also extend beyond its territory whenever the Band is acting pursuant to jurisdiction that is created or affirmed by rights reserved or created by treaty, statutes adopted by the Tribal Council in the exercise of the Band's inherent sovereignty, federal statute, regulation or other federal authorization, or a compact or other agreement entered into with a state or local government under applicable law.
The Tribal Court shall have original subject matter jurisdiction over all proceedings arising under this code.
The personal jurisdiction of the Tribal Court for purposes of a judgment, including recognition or entry of a judgment pursuant to Tribal Court rules, shall continue in all proceedings arising under this code.
No waiver of sovereign immunity. Nothing in this code shall be construed to provide a waiver of sovereign immunity of the Band or any of its government officers, representatives, employees, or agents.
The purpose of this code is to implement Section 12 of the Gaming Revenue Allocation Plan (RAP) by codifying a process and procedure governing garnishment of per-capita payments made by the Tribal Court.
In enacting this code, the Tribal Council affirms its intention, in authorizing the distribution of per-capita payments under the Gaming Revenue Allocation Plan, to provide monetary benefits to improve the general welfare and economic self-sufficiency of tribal member families. Accordingly, it is the Tribal Council's intention to limit the extent to which per-capita payments are subject to seizure, execution, levy, garnishment, forfeiture, lien or encumbrance for any debt before such per-capita payments are distributed to tribal members.
For purposes of this code, the definitions from the Gaming Revenue Allocation Plan shall apply unless otherwise indicated in the following definitions specific to this code:
- DISTRIBUTION DATE(S)
- Those dates set by the Tribal Council for the distribution of a per-capita payment as provided for in the Gaming Revenue Allocation Plan.
- ELIGIBLE TRIBAL MEMBER
- All living persons who are enrolled members of the Band. (See RAP Section 6A.)
- The legal process set forth in this code pursuant to which the Tribal Court may enter an order of garnishment authorizing NHBP to withhold and redirect all or a portion of a tribal member's per-capita payments for payment of a judgment in favor of:
- The federal Indian Gaming Regulatory Act of 1988, 25 U.S.C. § 2701 et seq.
- NOTTAWASEPPI HURON BAND OF THE POTAWATOMI (NHBP)
- The federally recognized Indian tribal government exercising jurisdiction over the Pine Creek Potawatomi Reservation and all lands now held or hereafter acquired by or for NHBP, or held in trust by the United States for NHBP's use and benefit.
- PER CAPITA
- The payment provided to all enrolled members of the Nottawaseppi Huron Band of the Potawatomi, which are paid pursuant to the Nottawaseppi Huron Band of the Potawatomi Gaming Revenue Allocation Plan then in effect, and in accordance with the Indian Gaming Regulatory Act, as defined herein.
- PER-CAPITA SHARE
- A tribal member's equal share of a per-capita payment prior to a reduction for any withholding or garnishment permitted by this code, but after withholding amounts required by federal income tax law.
- TRIBAL COUNCIL
- The five-member elected governing body of the Nottawaseppi Huron Band of the Potawatomi. This five-member body consists of a Chairperson, Vice Chairperson, Secretary, Treasurer, and Sergeant-at-Arms, who exercise the executive and legislative powers enumerated in the Nottawaseppi Huron Band of the Potawatomi Constitution.
- TRIBAL ENTITY
- Any of the NHBP's governmental departments, any wholly owned tribal business entities, limited liability companies, and the tribal gaming enterprises, the current enterprise hereby known as FireKeepers Casino and Hotel.
- TRIBAL MEMBER
- Any individual who is currently an enrolled member in the Nottawaseppi Huron Band of the Potawatomi.
- VOLUNTARY ASSIGNMENT
- The process by which a tribal member authorizes and provides his or her consent to withhold and redirect their per-capita payment for a debt owed to NHBP or a tribal entity.
The character of per capita is as follows:
A per-capita payment is a personal benefit provided by NHBP to an eligible tribal member;
A per-capita payment is a periodic payment, not a property right (See RAP Section 15);
A per capita share is property of NHBP until such time as a distribution is duly made and the payment of such, except as permitted in § 8.17-7 of this code, shall not be subject to seizure, execution, levy, garnishment, forfeiture, lien or encumbrance for any debt or obligation of an individual tribal member, while still in the possession of NHBP before distribution.
A distribution of a per-capita payment occurs when the per-capita payments are placed in the United States mail or otherwise transferred to a tribal member.
Except as specifically set forth in this section, the per-capita payments to which each tribal member is entitled are absolutely exempt from creditors and shall not be garnished, attached, or paid to any other person or entity, except if necessary for:
An order of garnishment issued by the Tribal Court for purposes of delinquent court-ordered child support pursuant to the Gaming Revenue Allocation Plan, Section 11, Child Support Obligations;
Garnishments for debts owed to the Nottawaseppi Huron Band of the Potawatomi or a tribal entity; or
A voluntary assignment evidenced by a writing, signed by the tribal member stating his or her consent to allow payment from his or her per-capita payment for a debt owed to NHBP or a tribal entity.
Priority of claims. All orders of garnishment shall be paid according to the order in which they were received by the Chief Financial Officer. Notwithstanding the order of receipt as provided for in this section:
An order of garnishment for delinquent court-ordered child support, which is authorized pursuant to Section 11 of the Gaming Revenue Allocation Plan, shall be superior to all other orders of garnishment regardless of priority of receipt, except as otherwise required under applicable federal law;
Orders of garnishment in favor of NHBP or a tribal entity shall be superior to voluntary assignments; and
If an order of garnishment with a higher priority is received by the Chief Financial Officer while an order of garnishment of lower priority is in effect, the Chief Financial Officer shall not withhold and redirect per-capita payments pursuant to the lower priority order until the payment in full of the higher priority order.
Nothing in this section shall restrict NHBP from obtaining security for and enforcing the payment of a debt that is owed by a tribal member to NHBP or a tribal entity through mortgages, liens, foreclosures, attachments, and other remedies.
Except those claims that are permitted in § 8.17-7 above, a per-capita share shall not be subject to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance or charge, seizure, attachment or other legal or equitable process; and any proceeding for those purposes shall not be recognized nor enforceable.
The per-capita shares held for tribal members in an irrevocable trust established under Section 8 of the Gaming Revenue Allocation Plan and any distribution of per-capita shares from that trust, which distribution is made for the benefit of a minor tribal member, shall not be subject to garnishment.
If any provision of this code, or the application thereof to any person or circumstances, shall for any reason be adjudged by a court of competent jurisdiction to be invalid, such judgment shall not affect, impair, or invalidate the remainder of this code, which shall continue in full force and effect.