[History: Tribal Act #06-24.1651, enacted by Tribal Council
on April 26, 2006.]
(a)
It shall be the Tribal Policy of the Grand Traverse Band of Ottawa
and Chippewa Indians (GTB, Tribe), acting as a government, to defend
this chapter as a reasonable interpretation of the Tribe's governmental
obligation to its members in interpreting 26 U.S.C. § 7873
consistent with existing federal law and the additional Tribal Constitutional
obligation of the Tribal government to individual Tribal members to
protect treaty rights to "fish, hunt, trap and gather food." GTB Constitution,
Article X, Section 2.
[History: Tribal Act #06-24.1651, enacted by Tribal Council
on April 26, 2006.]
(a)
The purpose of this chapter is to state the public policy of the
Tribe and to establish a method of implementing the Tribal public
policy on the scope and application of 26 U.S.C. § 7873
for purposes of Tribal employees claiming the exemption via a percentage
allocation made by the employee and verified by the GTB Human Resources
Department.
(b)
This Tribal statute is implemented pursuant to 25 U.S.C. § 476,
(Tribal constitutional organization); 25 U.S.C. § 450 et
seq. (as an act of Self-Governance); Article IV, Section 1(c) of the
Tribal Constitution (powers of the Tribal Council to make laws); and
Article XI, Section 2 of the Tribal Constitution (Land Use and Natural
Resources Conservation Plans Required).
[History: Tribal Act #06-24.1651, enacted by Tribal Council
on April 26, 2006.]
(a)
This chapter shall apply to all Tribal members and members of other
federally recognized who share in the treaty right established by
Article 13 of the 1836 Treaty of Washington, 7 Stat. 491 (March 28,
1836). Further, the case law decision and the continuing Consent Decree
in U.S. v. Michigan, 471 F. Supp. 192 (W.D. Mich. 1979), aff d as
modified, 653 F.2d 277 (6th Cir. 1981), cert denied 454 U.S. 1124
(1981), controlling the Article 13 treaty right shall be used as interpretive
authority to determine the scope of the application of 26 U.S.C. § 7873.
(b)
The scope of this chapter is strictly limited to the Tribe acting
in its capacity as a tribal government. This chapter is not intended
to, and does not, create any enforceable rights against the Tribe
as a government for monetary damages by Tribal members or third party
rights against the Tribe for monetary damages.
[History: Tribal Act #06-24.1651, enacted by Tribal Council
on April 26, 2006.]
(a)
Statutory. 26 U.S.C. § 7873; S. Rep. No. 445, 100th Cong.,
2nd Sess. (1988); H. Rep. No. 312 (part 2) 100th Cong., 2nd Session
(1988); 25 U.S.C. § 7871; 25 U.S.C. § 476; and
25 U.S.C. § 450 et seq.
(b)
Non-statutory. Notice 89-43, 1989-121.R.B. 80, Internal Revenue Manuel
Handbook No. 4231 Section 533; U.S. v. Michigan, supra; Employment
Tax Guide Indian Tribal Governments, Publication of IRS 1-877-829-5500
(ETGITG) (www.irs.gov/tribes last visited on April 18, 2006); FAQs
regarding IRC Section 7873 (Fishing Rights) http://www.irs.gov/govt/tribes/article/0,,id=102508,00.html
last visited on April 18, 2006); Hall v. Commissioner of Internal
Revenue, T.C. Memo. 1998-336, 1998 WL 646609; Warbus v. Commissioner
of Internal Revenue, 110 T.C. 279 (1998); "American Indian Law Meets
the Internal Revenue Code: Warbus v. Commissioner," 74 N. D. L. Rev.
691 (1998); IRS Priv. Ltr. Rul. 200511006 (Nov. 23, 2004); IRS Tech.
Adv. Mem. 9747004 (Jul. 25, 1997).
(c)
For purposes of this chapter, the above authority shall control interpretations
of all factual patterns that may arise in the implementation and application
of this chapter by departments of the Tribe. Departments of the Tribe
shall refer to the above authorities and shall consult with the Tribe's
Legal Department as necessary or appropriate in implementing and applying
this chapter.
[History: Tribal Act #06-24.1651, enacted by Tribal Council
on April 26, 2006.]
(a)
"Fishing rights-related activity" means any activity directly related
to harvesting, processing, or transporting fish harvested in the exercise
of a recognized fishing right of the Tribe, or to selling fish, if
substantially all the harvesting was performed by members of the Tribe.
(b)
"Income" means the weekly wages paid by the Tribe to an employee
of the "Qualified Indian entity" under 26 U.S.C. § 7873.
(c)
"Qualified Indian entity," means the Grand Traverse Band of Ottawa
and Chippewa Indians acting as a governmental entity as stated in
§ 408 of this chapter.
(d)
"Recognized fishing rights" means the Article 13 treaty right in
the Treaty of Washington and recognized in U.S. v. Michigan, supra.
(e)
"Tribe" means the Grand Traverse Band of Ottawa and Chippewa Indians.
[History: Tribal Act #06-24.1651, enacted by Tribal Council
on April 26, 2006.]
26 U.S.C. § 7873(a)(1) provides an exemption from
federal income tax on income, including wages, derived by members
of the Tribe in the exercise of a fishing rights-related activity
of the Tribe. 26 U.S.C. § 7873(a)(2) provides an exemption
from federal employment taxes, including FICA taxes, on wages paid
to members of the Tribe for services performed in a fishing rights-related
activity of the Tribe.
[History: Tribal Act #06-24.1651, enacted by Tribal Council
on April 26, 2006.]
"Fishing rights-related activity" includes any part of the physical
acts of harvesting, processing, transporting, or selling fish.
(b)
Employees of the Tribe in the category denominated in this § 407
shall be eligible to make percentage allocation in support of the
"directly related to" test and follow the procedure outlined in § 409
requiring consultation with the GTB Human Resources Department for
purposes of claiming the exemption under the provisions of 26 U.S.C.
§ 7873.
[History: Tribal Act #06-24.1651, enacted by Tribal Council
on April 26, 2006; and amended by Tribal Council in Special Session
on October 29, 2008.]
"Fishing rights-related activity" also includes the Tribal governmental
activities related to the overall structure of treaty-protected behavior
that the Tribe, as a government, engages in to protect, manage, regulate
and implement the treaty-protected fishing rights and from which Tribal
members, or members of other Tribes under Article 13 of the 1836 Treaty
of Washington, whether as Tribal governmental employees or Tribal
Councilors, derive income. See: S. Rep. No. 100 at 475 (1988) ("In
the case of...a qualified Indian entity, the bill exempts from income,
social security, and other tax, only that income "derived" from fishing
rights-related activities."). This is the "governmental and regulatory
support" test for coverage of individuals involved in these activities.
(a)
Persons eligible under this test include the following:
(1)
Conservation officers.
(2)
Environmental technicians.
(3)
Fishers biologist.
(4)
Fishers technicians.
(5)
Fishery habitat policy analysts.
(6)
Water quality biologist.
(7)
Habitat inventory and assessment technician.
(8)
Enforcement staff.
(9)
Tribal Court personnel.
(10)
Support staff, i.e., secretary, accounting, payroll.
(11)
Legislative analyst.
(12)
Information and education services.
(13)
Data analyst.
(14)
Policy analyst.
(15)
Public information staff.
(16)
Air/Water/Earth Quality Specialist.
(17)
Natural Resources Department Manager (NRD).
(18)
NRD Administrative Assistant/Program Director.
(b)
In general for purposes of this chapter, eligible persons under this
test include all employees of the qualified Indian entity/Tribe who
participate in the following Tribal categorical governmental functions
in support of "Treaty-related activities,..." includes the following:
(1)
Regulatory/Legal Department.
(2)
Conservation officers.
(3)
Environmental services.
(4)
Judicial Services.
(6)
Natural Resources and Environmental Committee.
(7)
Inter-Tribal Regulatory Bodies created at the direction of the
Consent Decree (Chippewa Ottawa Resource Authority) or at the behest
of intertribal initiatives.
(c)
Employees of the Tribe in the category denominated in this § 408
shall be eligible to make percentage allocation in support of the
"fishing rights-related activities" test and follow the procedure
outlined in § 409 requiring consultation with the GTB Human
Resources Department for purposes of claiming the exemption under
the provisions of 26 U.S.C. § 7873.
[History: Tribal Act #06-24.1651, enacted by Tribal Council
on April 26, 2006.]
(a)
The GTB Human Resources Manager, in consultation with the GTB Natural
Resources Department Manager, shall write a position description of
all positions covered, directly or indirectly, by the reach of 26
U.S.C. § 7873 under the tests stated herein in §§ 407
and 408.
(b)
The employee covered by the reach of 26 U.S.C. § 7873 and
§§ 407 and 408 of this chapter shall have the option
of concurring with the language of the position description, for the
sole purpose of the application of 26 U.S.C. § 7873, or
registering a non-concurrence.
(c)
Each employee shall be required to file an employee allocation assertion
made by the individual employee for those work duties covered by 26
U.S.C. § 7873 consistent with the Human Resources position
description for his or her position.
(d)
If the employee voluntarily concurs with the position description,
such concurrence shall be deemed consent to an explicit allocation
to be made by the GTB Human Resources Department, in consultation
with the GTB Natural Resources Department and the GTB Legal Department,
on the percentage of time eligible for an exemption under 26 U.S.C.
§ 7873.
(e)
If the employee does not voluntarily concur with the position description
and allocation made by the GTB Human Resources Department, then the
GTB Accounting Department shall treat the position as subject to federal
income taxation and federal withholding of FICA and FUTA. The GTB
Accounting Department shall then issue tax forms consistent with IRS
Notice 89-34 for the individual employee to file an independent claim
of exemption under 26 U.S.C. § 7873.
(f)
The GTB Human Resources Department shall verify the employee allocation
solely for the purpose of compliance with the verification requirements
of 26 U.S.C. § 7873(c)(1); as interpreted by the IRS in
Internal Revenue Manual Handbook No. 4231 § 553(3)(d) ("Verification
of time allocated... His employer should verify the percentage of
time he engages in fishing rights-related activities of his tribe.
The employer should also indicate that the employer is maintaining
records to support the allocation.")
[History: Tribal Act #06-24.1651, enacted by Tribal Council
on April 26, 2006.]
(a)
The GTB Accounting Department shall maintain records consistent with
this chapter.
