[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.
A.
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.
(1)
The Tribal Court shall have original subject matter jurisdiction
over all proceedings arising under this code.
(2)
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.
B.
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.
A.
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.
B.
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:
Those dates set by the Tribal Council for the distribution
of a per-capita payment as provided for in the Gaming Revenue Allocation
Plan.
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.
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.
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.
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.
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.
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.
Any individual who is currently an enrolled member in the
Nottawaseppi Huron Band of the Potawatomi.
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.
A per-capita payment is a personal benefit provided by NHBP to an
eligible tribal member;
B.
A per-capita payment is a periodic payment, not a property right
(See RAP Section 15);
C.
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.
A.
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:
(1)
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;
(2)
Garnishments for debts owed to the Nottawaseppi Huron Band of the
Potawatomi or a tribal entity; or
(3)
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.
B.
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:
(1)
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;
(2)
Orders of garnishment in favor of NHBP or a tribal entity shall be
superior to voluntary assignments; and
(3)
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.
A.
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.
B.
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.
