[HISTORY: Adopted by the Tribal Council of the Nottawaseppi
Huron Band of the Potawatomi 1-18-2018 by Res. No. 01-18-18-07; amended in its entirety 4-19-2018 by Res. No. 04-19-18-08. Subsequent amendments noted where applicable.
For purposes of this Title, the following words and phrases
shall have the meanings set forth below:
A department of the tribal government that is authorized
and funded, through a Tribal Council-approved budget, to administer
and provide assistance under an approved program under this Title.
An enrolled member of the Tribe who is 18 years of age or
older or an enrolled member of the Tribe who is under 18 years of
age and who has been emancipated (i.e., whose parents' or guardians'
rights to custody, control, services and earnings has/have been terminated)
by a court of competent jurisdiction.
Any program or programs approved by the Tribal Council to
provide general welfare assistance to applicants that is intended
to qualify for treatment under the General Welfare Doctrine, as defined
herein. It includes, for example, the payment of benefits related
to housing, education, elder or disabled status, cultural and religious
programs or for other qualifying assistance, such as transportation
costs, funeral costs, and other benefits intended to improve the health
and general welfare of the Tribe and its members.
An enrolled member of the Nottawaseppi Huron Band of the
Potawatomi, or a qualified nonmember, entitled to receive general
welfare benefit payments or services pursuant to this Title.
A committee consisting of directors or managers from the
administrative entities administering approved programs under this
Title who are appointed by the Tribal Council. The Assistance Committee
is responsible for monitoring the effectiveness of approved programs
and proposing to the Tribal Council, for approval, the guidelines
for approved programs, including, but not limited to, participants'
eligibility, assistance levels, policies and procedures for approving
benefits and, if necessary, the forfeiting of such benefits.
Benefits or payments under an approved program, which are paid to or on behalf of a beneficiary pursuant to this Title, provided, that such benefit shall be owed back to the Tribe from the tribal member recipient in the event the benefit is deemed forfeited as provided for in §§ 2.3-11 and 2.3-15 of this Title.
The Internal Revenue Code of 1986, as amended.
The duly elected governing body of the Nottawaseppi Huron
Band of the Potawatomi, a federally recognized Indian tribal government.
Any person whose support and maintenance is contingent upon
the aid of such person's spouse, parent or guardian, including
any person who otherwise meets the definition of "dependent" in 26
U.S.C. § 139E(c)(2).
As used for purposes of programs covered by this Title shall
refer to the inability of an individual to care for him- or herself
due to physical or mental limitations in accordance with tribal law.
An enrolled member of the Tribe who is 50 years of age or
older.
The continuing ability of governments (including tribal governments)
to provide general welfare benefits on a tax-free basis consistent
with case law and IRS guidance predating or otherwise not relying
upon IRS Code Section 139E and the Safe Harbor rules. In general,
these rules require that benefits are:
The doctrine, as recognized by the Internal Revenue Service,
permitting a sovereign tribal government, subject to certain conditions,
to provide benefits to its members without the benefits subjecting
the recipients to federal income tax liabilities.
An individual, other than a parent, assigned by a court of
competent jurisdiction to have a legal duty and authority to provide
care, control and manage the affairs of a child or legally incompetent
adult who is an enrolled member of the Tribe.
The Tribal Member General Welfare Benefits Program Guide
including any addendum to the guidelines or any later attachments,
changes or deletions thereto after the adoption of the guidelines.
A spouse, parent, child, live-in-partner, or any other member
of the immediate family who regularly and lawfully resides in the
household of an enrolled member of the Tribe.
Tribal members and qualified nonmembers who are members of
an identified group, such as veterans, who are made eligible for benefits
under any approved program.
A person who is a parent, sibling, step-sibling, grandparent,
aunt, uncle, niece, nephew, first cousin, second cousin, or other
kinship relation recognized by the head of household.
The Tribal General Welfare Exclusion Act of 2017, codified
at 26 U.S.C. § 139E.
Shall have the meaning determined by the Tribal Council in
its sole discretion based on all facts and circumstances, taking into
account needs unique to the Tribe as well as the social purpose being
served by the particular benefit at hand, except as otherwise may
be required for compliance with final guidance issued under IRS Code
Section 139E following consultation between the Tribe and the IRS.
An individual whose mind is unsound, deranged, and/or impaired
in function as defined by a court having proper jurisdiction;
An individual who is enrolled in the Tribe.
An individual who is the biological, adoptive or step-parent
of one or more minor child(ren) who is/are enrolled members of the
Tribe and who either:
An enrolled tribal member or qualified nonmember who is eligible
to participate and receive benefits under this Title. It also includes
an "identified group," as defined above.
The twelve-consecutive-month period from January 1 through
December 31 or other plan year as adopted by the Tribal Council for
purposes of operation of such program.
An individual who is a spouse, parent, guardian, child or
dependent, or household member of a tribal member, who is not himself/herself
an enrolled member of the Tribe or identified groups of tribal members,
who are made eligible for direct or indirect benefits under any approved
program.
An approved program that meets the safe harbor requirements
set forth herein and IRS Revenue Procedure 2014-35, as the same may
hereafter be amended. Need shall be presumed for benefits provided
under a Safe Harbor program.
For purposes of this code only:
Persons who are legally married under the law of any state or
tribe, including same-sex spouses;
Persons who are in a marital-like relationship that is recognized
as a lawful civil union under the laws of any state or tribe, including
same-sex relationships; and
Persons who have one or more children in common and reside in
the same household, but only for so long as such persons continue
to reside in the same household.
The General Welfare Title as established by this document.
The balance of a participant's tribal member benefits
account, as of the applicable date.
The Nottawesppi Huron Band of the Potawatomi.
The Tribe provides benefits to participants and desires to affirm
its sovereign right to do so on a nontaxable basis, pursuant to the
General Welfare Doctrine. Both the United States Congress, through
its enactment of the Tribal General Welfare Exclusion Act of 2014,
and the Internal Revenue Service, through its traditional application
of the general welfare doctrine and subsequent guidance, has recognized
the sovereign right of Indian tribal governments to provide financial
assistance to its members under certain circumstances on a nontaxable
basis. The purpose of this Title is to establish guidelines for participation
in approved programs and tribal staff making eligibility determinations
for benefits. Further, it is the intent of the Tribal Council that
all benefits provided under this Title:
A.
Are made under an approved program;
B.
Are available to any participants who satisfy the program guidelines,
subject to budgetary restraints;
C.
Are made under an approved program that does not discriminate in
favor of members of the Tribal Council;
D.
Are not provided as compensation for goods and/or services; and
E.
Are not lavish or extravagant under the facts and circumstances,
as determined by the Tribal Council.
A.
The Tribal Council, acting as the legislative body of the Tribe and
through its duly elected members, has traditionally exercised the
Tribe's sovereign right to provide benefits in order to promote
the general welfare and best interests of the Tribe, its members and
its families;
B.
The enactment of this Title shall not be construed in a manner to
invalidate any prior acts and exercises of the sovereign authority
of the Tribe in providing benefits prior to the effective date of
this Title, and the Tribal Council hereby specifically ratifies its
prior acts providing benefits;
C.
The Tribal Council hereby further finds that all such need-based
benefits provided to promote the general welfare of the Tribe, its
members and families are, and have been, intended to reflect the sovereign
act of a legislative body under the General Welfare Doctrine; and
D.
This Title, therefore, does not create or establish new general welfare
benefit rights or any related program. It merely memorializes, confirms
and codifies existing procedures used by the Tribe in administering
its benefit programs and services, which are hereby declared to be
an inherent right of tribal sovereignty exercised by the Council.
Finally, it is intended to establish a framework to improve the coordination
and accomplishment of compliance with the General Welfare Doctrine
when providing benefits.
A.
The Internal Revenue Service recognizes that benefits to participants
under a legislatively provided approved program for the promotion
of the general welfare of the Tribe is excludable from the gross income
of those participants. In addition, the Service, in IRS Revenue Procedure
2014-35, provided for safe harbor programs under which, if approved
and in writing, need would be presumed, and benefits would be excluded.
The benefits authorized by this Title are intended to qualify for
such favorable tax treatment under the General Welfare Doctrine to
the fullest extent permitted at law. All amounts budgeted by the Tribe
for benefits shall remain general assets of the Tribe until such payments
are disbursed. Further, benefits authorized by this Title shall be
an unfunded arrangement and shall be limited to funds appropriated,
at the discretion of the Council. Finally, benefits are not subject
to information reporting by the Tribe to the Internal Revenue Service.
B.
Without limitation, the following benefits shall be treated as nontaxable
hereunder:
(1)
Benefits that satisfy the requirements for the exemption under the
Tribal General Welfare Exclusion Act of 2014, codified at IRS Code
Section 139E;
(2)
Benefits that are provided under an IRS Safe Harbor Program;
(3)
Benefits that qualify for exclusion under the IRS General Test of
General Welfare exclusion; or
(4)
Benefits that meet another express exemption under the Internal Revenue
Code, such as the exemption provided for tribal medical expenses under
Internal Revenue Code Section 139D, or that meet other recognized
exemptions, including, for example, resource or land-based exemptions
under 25 U.S.C. §§ 117a-b, 1407 and 1408.
Funding for approved programs that provide benefits to participants
is appropriated from the general fund accounts of the tribal government.
All payments to participants requesting benefits from approved programs
are subject to the availability of budgeted tribal government funds,
and the Tribe does not guarantee benefits under this Title. Benefits
are paid on the basis of need and shall not be treated as a resource
of a participant for any purpose. The Council reserves the right to
cancel, adjust, modify or revoke any such benefit that is treated
as a resource of a participant.
All the rights and liabilities associated with the enactment
of this Title, or the benefits made hereunder, shall be construed
and enforced according to the laws of the Tribe and applicable federal
law. Nothing in this Title or the related policies or procedures adopted
for its implementation, if any, shall be construed to make applicable
to the Tribe any laws or regulations:
The Tribe reserves the right to provide benefits in circumstances
where federal funding is insufficient to operate federal programs
designed to benefit participants and when federal funding is insufficient
to adequately and consistently fulfill federal trust obligations.
The Tribe's adoption of its approved programs is not intended
to relieve or diminish the federal government of its funding and trust
responsibilities. Nothing herein shall waive the Tribe's right
to seek funding shortfalls or to enforce the trust rights of the Tribe
and its members. The Tribe shall be entitled to government-to-government
consultation and coordination rights in regard to this Title with
the federal government.
The Tribal Council shall designate approved programs for which
funds will be budgeted each fiscal year, consistent with the purposes
of this Title. Each approved program shall be consistent with the
General Welfare Doctrine as to purpose, eligibility, and funding.
A.
Each approved program shall be limited to purposes consistent with
treatment under the General Welfare Doctrine.
B.
An approved program must be established and operated to promote the
general welfare of the Tribe, its members and families, including
programs designed to enhance the promotion of health, education, self-sufficiency,
self-determination, tribal image and the maintenance of culture and
tradition, entrepreneurship, and employment.
Benefits intended to qualify for General Welfare Doctrine treatment
shall be limited to enrolled members of the Tribe and qualified nonmembers.
Each approved program shall set forth the specific eligibility rules
and limitations applied to that program. The Benefit Committee shall
present program descriptions, which include eligibility rules and
limitations, along with procedures, to the Tribal Council for approval
in accordance with this Title. Only those descriptions and procedures
that are so approved by the Council shall be considered to be in force
and effect.
All benefits must be used for the purpose stated in the approved
program description. In the event that benefits are used or pledged
for a purpose inconsistent with the purpose set forth in an approved
program, the payment will be deemed forfeited. The administrative
entity responsible for the approved program under which the misused
benefit was made may take measures to secure repayment from the participant.
The administrative entity is also authorized to offset any other payments
owed to such a participant, if an offset is necessary to secure repayment
of benefits under this Title.
Programs that qualify under IRS Code Section 139E or the IRS
Safe Harbor shall not require a showing of individual need or means
testing in order to achieve nontaxable treatment under the general
welfare exclusion. The Tribe also reserves the right to provide community-based
programs and programs based on nonfinancial need under the general
test under which no individual means testing is required. The Tribe
recognizes that means testing can, in certain contexts, distort certain
tribal cultural and community values. However, the Tribe can have
some approved programs which are financial-need based in order to
help those most in need of benefits.
The Council shall adopt guidelines establishing the maximum
benefit payments to be made to participants for certain specified
purposes, based on recommendations of the Benefit Committee. Such
guidelines shall also include factors to be used in determining whether
the Council should deviate from the payment limitations in certain
circumstances and limitations with respect to the scheduled frequency
benefits.
When applicable per program requirements, the Council shall
annually designate those funding sources that are available for approved
programs as part of the annual budgeting process. Notwithstanding
anything to the contrary, the benefits authorized hereunder shall
be unfunded for tax purposes, and no participant shall have an interest
in or right to any funds budgeted for or set aside for approved programs
until paid. Benefit funds shall remain assets of the Tribe until distributed,
and the approved programs shall be administered at all times to avoid
triggering of the doctrines of constructive receipt and/or economic
benefit.
Notwithstanding anything herein to the contrary, the Benefit
Committee, acting on behalf of the Council, may forfeit benefits to
any participant who is found by the Committee to have violated the
terms of this Title, or the policies and procedures for any approved
program. The Benefit Committee may also forfeit benefits should said
benefits be treated as a resource detrimental to the Tribe or a participant.
In the event of any such forfeiture, all benefits provided to the
participant pursuant to this Title shall be deemed a loan and shall
be enforceable as such.
A participant's right to receive benefits is not subject
to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance,
attachment or garnishment by creditors of the participant.
Eligible tribal members experiencing an immediate and large
financial need that otherwise qualifies for payment or reimbursement
under any approved program shall be eligible to receive a lump sum
distribution of benefits ahead of the program's regular monthly
or other periodic funding schedule. The Tribe, or its designees, in
its discretion, shall determine when a distribution shall be made
pursuant to this Section. For these purposes, an unforeseeable hardship
or extraordinary expense may include any circumstance in which an
eligible tribal member or other beneficiary can demonstrate that he/she
requires lump sum distribution of benefits that exceed the maximum
monthly benefit available to such eligible tribal member relating
to a purpose that qualifies for payment or reimbursement under an
approved program such as expenses related to qualifying repairs or
improvements to a primary residence, medical expenses incurred by
a qualified beneficiary, payment of balance of installment loan or
annual insurance premium, or any severe financial privation resulting
from an illness or accident of the member or other qualified beneficiary,
loss of the member's primary residence or automobile due to casualty,
or other similar extraordinary and unforeseeable circumstances. The
Tribe or its designee may look to IRS Code Section 409A for additional
guidance.
A.
General. Each approved program shall be administered by the administrative
entity to which it has been assigned by the Tribal Council. All the
powers and duties conferred on each respective administrative entity
shall be exercised or performed by it in the exercise of its discretion
regardless of whether the provision conferring such power or imposing
such duty specifically refers to its discretion. All decisions of
a given administrative entity regarding an approved program, within
the scope of its authority, shall be binding and conclusive upon all
participants under the approved program.
B.
Program guidelines. Guidelines for approved programs shall be developed
by the respective department staff responsible for a given benefit
program, coordinated with the Benefit Committee, if applicable, and
approved by the Tribal Council. At a minimum, such guidelines shall
satisfy the requirements of this Title, including the following:
(1)
Indian General Welfare Benefits (IRS Code Section 139E) programs
that meet the following criteria for exemption under IRS Code Section
139E shall be treated as nontaxable benefits under the general welfare
exclusion without the participant having to demonstrate individual
need:
(a)
The program is administered under specified guidelines and does
not discriminate in favor of the members of the Tribal Council;
(b)
Program benefits are available to any tribal member who meets
such guidelines;
(c)
Program benefits are for the promotion of the general welfare;
(d)
Program benefits are not lavish or extravagant; and
(e)
Program benefits are not compensation for services.
(2)
Ceremonial activities. Any items of cultural significance, reimbursement
of costs or cash honorarium for participation in cultural or ceremonial
activities for the transmission of tribal culture shall not be treated
as compensation for services.
(3)
Safe Harbor programs. Programs that meet the following general criteria
for safe harbor treatment, and provide qualifying safe harbor benefits,
shall be treated as nontaxable benefits under the general welfare
exclusion without the participant having to demonstrate individual
need:
(a)
General criteria for Safe Harbor treatment.
[1]
The benefit is provided under a specific approved program of
the Tribe;
[2]
The program has written guidelines specifying how individuals
may qualify for the benefit;
[3]
The benefit is available to any tribal member, identified group
of tribal members, or qualified nonmember who satisfies the program
guidelines, subject to budgetary restraints;
[4]
The distribution of benefits from the program does not discriminate
in favor of the governing body of the Tribe;
[5]
The benefit is not compensation for goods or services; and
[6]
The benefit is not lavish or extravagant under the facts and
circumstances, as determined by the Tribal Council.
(b)
Specific Safe Harbors. The following benefits may be provided
under a Safe Harbor program (Note: the benefits listed in the parenthetical
language herein are for example purposes only, and are not an exhaustive
list):
[1]
Housing programs. Programs relating to principal residences
and ancillary structures that are not used in any trade or business,
or for investment purposes that:
[a]
Pay mortgage payments, down payments, or rent payments
(including, but not limited to, security deposits) for principal residences;
[b]
Enhance habitability of housing, such as by remedying
water, sewage, or sanitation service, safety issues (including, but
not limited to, mold remediation), or heating or cooling issues;
[c]
Provide basic housing repairs or rehabilitation
(including, but not limited to, roof repair and replacement);
[d]
Pay utility bills and charges (including, but not
limited to, water, electricity, gas, and basic communications services
such as phone, Internet, and cable); or
[e]
Pay property taxes or make payments in lieu of
taxes (PILOTs).
[2]
Educational programs. Programs to:
[a]
Provide students (including, but not limited to,
post-secondary students) transportation to and from school, tutors,
and supplies (including, but not limited to, clothing, backpacks,
laptop computers, musical instruments, and sports equipment) for use
in school activities and extracurricular activities;
[b]
Provide tuition payments for students (including,
but not limited to, allowances for room and board on or off campus
for the student, spouse, domestic partner, and dependents) to attend
preschool, school, college or university, online school, educational
seminars, vocational education, technical education, adult education,
continuing education, or alternative education;
[c]
Provide for the care of children away from their
homes to help their parents or other relatives responsible for their
care to be gainfully employed or to pursue education; and
[d]
Provide job counseling and programs for which the
primary objective is job placement or training, including, but not
limited to, allowances for expenses for interviewing or training away
from home (including, but not limited to, travel, auto expenses, lodging,
and food); tutoring; and appropriate clothing for a job interview
or training (including, but not limited to, an interview suit or a
uniform required during a period of training).
[3]
Elder and disabled programs. Programs for individuals who have
reached age 50 or are mentally or physically disabled (as defined
under applicable law, including but not limited to, tribal government
disability codes or laws) that provide:
[a]
Meals through home-delivered meal programs or at
a community center or similar facility;
[b]
Home care such as assistance with preparing meals
or doing chores, or day care outside the home;
[c]
Local transportation assistance; and
[d]
Improvements to adapt housing to special needs
(including, but not limited to, grab bars and ramps).
[4]
Cultural and religious programs. Programs to:
[a]
Pay expenses (including, but not limited to, admission
fees, transportation, food, and lodging) to attend or participate
in an Indian tribe's cultural, social, religious, or community
activities such as pow-wows, ceremonies, and traditional dances;
[b]
Pay expenses (including, but not limited to, admission
fees, transportation, food, and lodging) to visit sites that are culturally
or historically significant for the Tribe, including but not limited
to, other Indian reservations;
[c]
Pay the costs of receiving instruction about an
Indian tribe's culture, history, and traditions (including, but
not limited to, traditional language, music, and dances);
[d]
Pay funeral and burial expenses and expenses of
hosting or attending wakes, funerals, burials, other bereavement events,
and subsequent honoring events; and
[e]
Pay transportation costs and admission fees to
attend educational, social, or cultural programs offered or supported
by the Tribe or anther tribe.
[5]
Other qualifying benefits programs. Programs to:
[a]
Pay transportation costs such as rental cars, substantiated
mileage, and fares for bus, taxi, and public transportation between
an Indian reservation, service area, or service unit area and facilities
that provide essential services to the public (such as medical facilities
and grocery stores);
[b]
Pay for the cost of transportation, temporary meals,
and lodging of a tribal member or qualified nonmember while the individual
is receiving medical care away from home;
[c]
Provide assistance to individuals in exigent circumstances
(including, but not limited to, victims of abuse), including, but
not limited to, the costs of food, clothing, shelter, transportation,
auto repair bills, and similar expenses;
[d]
Pay costs for temporary relocation and shelter
for individuals displaced from their homes (including, but not limited
to, situations in which a home is destroyed by a fire, flood, or natural
disaster);
[e]
Provide assistance for transportation emergencies
(for example, when stranded away from home) in the form of transportation
costs, a hotel room, and meals; and
[f]
Pay the cost of nonprescription drugs (including,
but not limited to, traditional Indian tribal medicines).
Nothing in this Title or the Tribe's use of the IRS Safe
Harbor as guidance shall limit the Tribe's right to provide benefits
that differ or vary from scope or description of programs described
or included within the IRS Safe Harbor rules or guidance. The Tribe
specifically reserves the right to develop approved programs that
provide tax-free benefits under expanded authority extended to tribes
under IRS Code Section 139E and the General Test.
Notwithstanding anything herein to the contrary, the Tribe reserves
the right to provide benefits that may qualify for tax exemptions
outside of the general welfare exclusion, including tax exemptions
under Title 25 or 26 of the United States Code so long as the conditions
for exemption are met. Without limitation, this includes tribal member
medical benefits exempt under Section 9021 of the Patient Protection
and Affordable Care Act of 2010 (IRS Code Section 139D) and nongaming
per-capita expenses exempt under 25 U.S.C. Sections 1407 and 1408.
All rights and liabilities associated with the enactment of
this Title, or the benefit payments made hereunder, shall be construed
and enforced according to the laws of the Tribe. Nothing herein shall
be construed as a waiver of the Tribe's sovereign immunity.
If any provision of this General Welfare Title is held to be
invalid, the remainder of this Title shall not be affected.
