NOTE: Appendixes A through F, which were included in the Revenue
Allocation Ordinance enacted May 31, 2000, as amended, are not reproduced
in this Code. Copies may be obtained through the Grand Traverse Band
Legal Department. These appendixes are titled: Appendix A, Trust Agreement
February 18, 1998; Appendix B, IRS Private Letter Ruling, March 8,
2000; Appendix C, IRS Private Letter Ruling, November 17, 1998; Appendix
D, Deferred Per Capita Benefit Plans, Plan A and Plan B; Appendix
E, Procedures for Incarcerated Individuals; and Appendix F, Administrative
Procedures for Per Capita Emergency Loans.
[History: Revenue Allocation Ordinance adopted by Tribal
Council on December 27, 1994; as amended by Tribal Act #98-16.635,
enacted by Tribal Council in Special Session on August 31, 1998; as
amended by Tribal Council in Special Session on May 31, 2000; as amended
by Tribal Council in Special Session on June 1, 2000.]
This Revenue Allocation Ordinance (hereafter this "RAO") is
adopted pursuant to Article IV, Sections 1 (a), (h), and (j) of the
Tribal Constitution (hereafter the "Constitution") of the Grand Traverse
Band of Ottawa and Chippewa Indians (hereafter the "GTB"). Ordinance
No. 94-117, as amended 3-21-1996; 8-21-1996 [affirmed 9-6-1996]; 12-16-1997
[enacted 2-17-1998]; 6-8-1998; 11-17-1998; and 4-28-1999, is hereby
repealed. This RAO shall govern the allocation of available net revenues
from the gaming enterprises, including Turtle Creek Casino, Leelanau
Sands Casino, and any subsequent gaming enterprise of the GTB ("net
revenues"), for each fiscal year of the GTB, including per capita
distributions to qualified members of the GTB.
[History: Revenue Allocation Ordinance adopted by Tribal
Council on December 27, 1994; as amended by Tribal Act #98-16.635,
enacted by Tribal Council in Special Session on August 31, 1998; as
amended by Tribal Council in Special Session on May 31, 2000; as amended
by Tribal Council in Special Session on June 1, 2000.]
(a) The GTB retains the inherent sovereign right to determine the best
interests of its minor Tribal members by providing for their future
welfare by contributing per capita benefits into one or more trusts
to be invested, with income earned on trust principal to be accumulated
in the trust, for future distribution to those minor Tribal members.
All assets accumulated in the trust or trusts for the benefit of a
minor Tribal member shall be distributed in the manner set forth herein
at such time as the minor reaches the ages of 21, 22, 23 and 24 and
not before, except in the limited extraordinary circumstances provided
in § 1605(e)(3)(A) and (B).
Based on a survey of the GTB Tribal membership, the majority
79% of Tribal members who responded would endorse a GTB Tribal policy
of no access to the childrens' trust funds. Based on this determination
of the will of GTB Tribal membership, access to the childrens'
trust funds described in § 1605(d) shall be limited under
Tribal policy consistent with the United States Department of the
Interior regulation codified at 25 C.F.R. 290-12, Tribal Revenue Allocation
Plans, (ii). Loans to parents or guardians of children shall not be
granted or secured by the children's trust fund.
(b) The GTB has determined that it is in the best interests of minor
Tribal members that per capita payments be contributed to a minor's
irrevocable grantor trust or trust subject to the power of substitution
by the grantor Tribe. The Trust Agreement is attached hereto and incorporated
by reference as Appendix A.
The non-fiduciary power of substitution shifts the income tax
consequence to the grantor Tribe until the trust is distributed under
the terms of the trust. In 1995 the Tribe sought a private letter
ruling from the Internal Revenue Service (IRS) that such a trust did
not create taxable income in the minor per capita payments made by
the grantor Tribe.
The IRS issued a private letter ruling [PLR 114616-98] (March
8, 2000) sanctioning the above arrangement in the following language:
(1) Neither the creation of the trusts, nor the contributions of assets
to the trusts, nor the accumulation of income in the trusts will result
in taxable income for the minors or incompetent members of the GTB
using the cash method of accounting.
(2) Benefits payable from the trusts will be includable in the gross
income of the minor or incompetent members in the taxable year or
years in which the benefits are actually distributed or otherwise
made available.
(3) Provided that the circumstances surrounding the trusts' administration
indicate that the power of administration held by the GTB over the
trusts (i.e. the power to substitute assets for assets of equivalent
value) is exercisable by the GTB in a nonfiduciary capacity without
the approval or consent of a person in a fiduciary capacity, the GTB
will be treated as the owner of the trusts under Section 675 [of the
Internal Revenue Code].
(4) Assuming that the GTB is treated as the owner of the trusts under
Section 675 [of the Internal Revenue Code], the GTB, which is not
subject to federal income tax, shall not be subject to federal income
tax on the income of the trusts nor will there be any tax consequences
to the GTB upon funding of the trusts. Rev. Rul. 94-16, 1994-1C.B.
19; Rev. Rul. 67-284, 1967-2 C.B. 55.
The IRS private letter ruling [PLR 114616-98] (March 8, 2000)
is attached hereto and incorporated by reference as Appendix B.
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(c) The GTB also has determined that it is in the best interests of its
adult Tribal members who have been declared incompetent by a court
of competent jurisdiction to contribute per capita benefits into one
or more trusts to be invested, with income earned on trust principal
to be accumulated in the trust, for future distribution to those members
as necessary for the beneficiary's health, welfare or economic
security, including their support, maintenance, and education, as
provided in § 1605(f).
(d) The GTB also has determined that it is in the best interests of certain
adult Tribal members, who have adequate resources available for their
current general welfare from other sources, to provide deferred per
capita benefits for such members in lieu of current per capita benefits
to ensure that they have adequate resources to provide for their general
welfare in the future, provided that such members satisfy the eligibility
criteria for such benefits as provided in § 1605(f), and
sanctioned by an IRS private letter ruling [PLR 36099-95] (November
17, 1998) which is attached hereto and incorporated by reference as
Appendix C. The Deferred Per Capita Plans A and B are attached hereto
and incorporated by reference as Appendix D.
(e) For the per capita payment for the year of 2000, the GTB EDC shall
use the gaming revenue figures of November 1, 1999 to October 31,
2000 on a projected income basis. For the per capita payment for the
year of 2001, the GTB EDC shall use an eleven-month payment year of
November 1, 2000 to September 30, 2001. The eleven-month payment year
in the year 2001 is necessary to adjust the GTB EDC accounting year
from a calendar year to a fiscal year to coincide with the fiscal
year of the GTB Government. Thereafter, per capita payments shall
be computed on an October 1 to September 30 fiscal year.
[History: Revenue Allocation Ordinance adopted by Tribal
Council on December 27, 1994; as amended by Tribal Act #96-14.392,
enacted by Tribal Council on August 21, 1996 [and affirmed on September
6, 1996]; as amended by Tribal Act #98-16.635, enacted by Tribal Council
in Special Session on August 31, 1998; as amended by Tribal Council
in Special Session on May 31, 2000; as amended by Tribal Council in
Special Session on June 1, 2000.]
(a) Subject to § 1604 ("Use of Net Revenues; Tribal Economic
Development"), the Tribal Council hereby allocates the following schedule
of net revenues in order to provide funding for Tribal governmental
operations and programs and the long term investment program:
Tribal governmental operations and programs:
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25%
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Long term investment program:
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10%
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(1) If it deems it necessary, the Tribal Council shall have the authority
to revise and increase the percentage of net revenues allocated to
funding for Tribal governmental operations and programs, the long
term investment program or for various components thereof. Any overall
percentage increase shall be drawn from the percentage set by § 1604
("Use of Net Revenues; Tribal Economic Development"). The Tribal Council
shall not decrease the allocated percentage set by this § 1603
("Use of Net Revenues; Tribal Governmental Operations and Programs
and the Long Term Investment Program") to increase the percentage
set by § 1605 ("Use of Net Revenues; Individual Per Capita
Benefits"). Any revision of the allocated percentage herein shall
be documented by a Tribal Council resolution, a copy of which shall
be provided to the Secretary.
(2) Any net revenues allocated to funding for Tribal governmental operations
and programs that have not been encumbered as of the last date of
any fiscal year of the Tribal government may, at the Tribal Council's
discretion, be allocated to the purposes set forth in § 1604
("Use of Net Revenues; Tribal Economic Development") or be allocated
to funding for § 1603 ("Use of Net Revenues; Tribal Governmental
Operations and Programs and the Long Term Investment Program") Tribal
governmental operations and programs for the subsequent fiscal year.
(3) Any Tribal member shall have standing to raise the question of whether
the Tribal Council is following the RAO distribution formula. Such
challenges shall be brought in the Tribal Court under a cause of action
styled as "RAO Distribution Cause of Action." The elements of cause
of action shall be 1) must be a Tribal member; 2) the standards of
the RAO alleged to have been violated; and 3) factual allegations
that allege a present violation of the standards. The Tribal Court
shall fashion the remedy consistent with Tribal law and generally
accepted accounting principles (GAAP).
(b) The net revenues allocated to Tribal governmental operations and
programs shall be expended in accordance with the Tribal budget appropriation
process. The Tribal Council is the sole decision-making body as to
any actions taken upon budget reports and requests and as to the allocation
of funds designated for Tribal governmental operations and programs.
The Tribal Council or its appointed agent shall disburse the funds
allocated to Tribal governmental operations and programs in accordance
with the annual Tribal budget and the Tribal appropriation process.
Any disbursements made hereunder shall be received by the receiving
Tribal governmental operation or program and handled in a manner consistent
with the operations or programs GAAP.
(c) The net revenues to Tribal government operations and programs shall
be remitted to the Tribal Government Accounting Office by the GTB
EDC on a quarterly basis. The GTB Governmental Accounting Office and
the GTB EDC Accounting Office shall sign a schedule of prospective
payments ratified by the Tribal Council, to insure the timely transmittal
of the Tribal Governmental Operations and Program proceeds to the
GTB Governmental Accounting Office consistent with the GTB appropriation
process.
(d) The Tribal long-term investment program shall be operated pursuant
to an investment policy to be adopted by resolution of the Tribal
Council. At a minimum, this investment policy shall provide:
(1) That the net revenues allocated to investment shall be weighted toward
investments that provide for the long-term security of the GTB and
its Tribal members;
(2) A description of the types of investments made;
(3) A percentage allocation of equities and debt instruments;
(4) Investment objectives to be reviewed on a quarterly basis by the
Tribal Council or its appointed agent;
(5) A list of investments that shall be excluded due to their lack of
safety and liquidity; and
(6) A comprehensive investment plan incorporating principles of prudent
but market- based portfolio management.
Investments shall be made with nationally recognized, reputable
and safe investment companies in accordance with the GTB's goal
of the long term economic security of the Tribe and its Tribal members.
Interest earned on investments made pursuant to this § 1603
("Use of Net Revenues; Tribal Governmental Operations and Programs
and the Long Term Investment Program") shall not be used to provide
per capita benefits as defined in § 1605 ("Use of Net Revenues;
Individual Per Capita Benefits"). In accordance with the GTB's
stated policy to provide for the long term economic security of itself
and its Tribal members, a substantial portion of the interest earned
on investments made pursuant to this § 1603 shall be reinvested
at the discretion of the Tribal Council. The Tribal Council, in its
discretion, may allocate the interest earned on investments made pursuant
to this § 1603 in accordance with the provisions of IGRA
or any other applicable federal law.
(e) The Tribal Council shall publish an Annual Report and Audit of the
long-term investment fund established by this § 1603. Such
report shall contain reporting material consistent with the principles
of full disclosure and designed to inform the Tribal member to the
fullest extent possible of the growth or decline and expenditure of
the long-term investment account.
(f) Each year the Tribal Council shall develop an annual plan for investment
objective and principal Tribal uses of the long-term investment fund.
Such report shall be included in the investment report required by
§ 1603(d).
(g) By January 1, 2001, the Tribal Council shall develop a position description
of Tribal Money Manager. The position of the Tribal Money Manager
shall be established after an extensive review and consultation with
licensed, qualified money managers, certified public accountants (CPAs),
attorneys, and such other professions identified by the Tribal Council.
The Tribal Money Manager shall advise the Tribal Council on long-term
investments, monitor the long-term investment fund and report on the
long-term investment fund.
[History: Revenue Allocation Ordinance adopted by Tribal
Council on December 27, 1994; as amended by Tribal Act #96-14.392,
enacted by Tribal Council on August 21, 1996 [and affirmed on September
6, 1996]; as amended by Tribal Act #98-16.635, enacted by Tribal Council
in Special Session on August 31, 1998; as amended by Tribal Council
in Special Session on May 31, 2000; as amended by Tribal Council in
Special Session on June 1, 2000.]
(a) Subject to § 1603 ("Use of Net Revenues; Tribal Governmental
Operations and Programs and the Long Term Investment Program"), the
Tribal Council hereby allocates the following schedule of net revenues
in order to provide funding for Tribal economic development: 15% of
net revenues from gaming revenue.
(1) The GTB EDC shall be charged with administering this 15% allocation.
(2) The GTB EDC shall develop an Economic Development Plan for the expenditure
of this 15% allocation herein.
If it deems it necessary, the Tribal Council shall have the
authority to revise and increase the percentage of net revenues allocated
to funding for Tribal economic development. Any overall percentage
increase shall be drawn from the percentage set by § 1603
("Use of Net Revenues; Tribal Governmental Operations and Programs
and the Long Term Investment Program"). The Tribal Council shall not
decrease the allocated percentage set by this § 1604 to
increase the percentage set by § 1605 ("Use of Net Revenues;
Individual Per Capita Benefits"). Any revision of the allocated percentage
herein shall be documented by a Tribal Council resolution, a copy
of which shall be provided to the Secretary.
(b) The Tribal Council shall have the authority to appropriate and expend
net revenues allocated to Tribal economic development to supplement
funding for ongoing Tribal economic enterprises. Requests for supplemental
funding for the Tribal ongoing businesses and enterprises shall be
considered in accordance with GTB governmental procedures. The Tribal
Council shall thereafter allocate those net revenues designated for
Tribal economic development to the ongoing business or enterprise
as it deems necessary and reasonable.
(c) Separate accounting and audits shall be done for economic development
projects of the GTB/EDC. All enterprises and businesses are to be
treated as "stand-alone entities" in the accounting and audit statements.
(d) The GTB Economic Development Plan shall be operated pursuant to the
development policy adopted by resolution of the Tribal Council. At
a minimum, this development policy shall provide:
(1) Criteria for business plans;
(3) The Tribal Council or its appointed agent shall review developments
on a monthly basis; and
(4) Establish a minimum internal rate of return.
[History: Revenue Allocation Ordinance adopted by Tribal
Council on December 27, 1994; as amended by Tribal Act #95-13.217,
adopted by Tribal Council on March 21, 1995; as amended by Tribal
Act #98-16.635, enacted by Tribal Council in Special Session on August
31, 1998; as amended by Tribal Act #98-16.646, enacted by Tribal Council
in Special Session on October 14, 1998; as amended by Tribal Act #99-17.703,
enacted by Tribal Council in Special Session on May 3, 1999; as amended
by Tribal Council in Special Session on May 31, 2000; as amended by
Tribal Council in Special Session on June 1, 2000; as amended by Tribal
Act #06-24.1696, enacted by Tribal Council in Special Session on July
26, 2006; as amended by Tribal Act #07-25.1742, enacted by Tribal
Council on January 17, 2007; as amended by Tribal Act #08-26.1962
on September 17, 2008, as amended by Tribal Act #09-27.2125 on October
28, 2009; and as amended by Tribal motion, enacted by Tribal Council
on September 15, 2016.]
(a) In order to advance the current and long term personal health, safety
and welfare of qualified Tribal members, and subject to § 1609
("Child Support Obligations") and § 1610 ("Tribal Court
Orders"), the Tribal Council hereby allocates 50% of all net gaming
revenues, less the costs of administration of the programs provided
to be developed to implement the RAO in years 2001 through 2004, to
be divided into equal shares and provided to all qualified Tribal
members, with benefits for minor qualified Tribal members [as defined
in § 1605(e)(1) below] being provided in accordance with
the provisions of § 1605(e)(3) below, with benefits for
adult qualified Tribal members who are legally incompetent being provided
in accordance with the provisions of § 1605(f) below, and
with deferred benefits for other qualified Tribal members being provided
pursuant to Plans A or B described in Appendix D, established by the
Tribal Council in accordance with eligibility criteria set forth in
§ 1605(f) below. In accordance with 25 C.F.R. 290 Tribal
Revenue Allocation Plans (effective date April 17, 2000), and for
purposes of this RAO, "per capita benefit" shall mean those per capita
payments deposited into trusts for minors [see § 1605(e)(3)]
or other legally incompetent persons [see § 1605(f)], or
set aside for future payment under a deferred payment plan [see § 1605(g)]
to qualified Tribal members pursuant to this § 1605 ("Use
of Net Revenues; Individual Per Capita Benefits") from net revenues;
no other commonly accepted or used definition of the term "per capita
benefit" affects the use of the term herein.
(b) Per capita payments shall be paid, deposited into trusts for minors
or other legally incompetent persons, or set aside for future payment
under a deferred payment plan on a semiannual basis, coinciding with
the qualified Tribal member's calendar year.
(1) Beginning with the year 2000, per capita benefits for each calendar
year shall be paid, deposited within five business days into trusts,
or set aside for future payment on June 3 and December 3 of that payment
year.
(2) All net revenues designated for distribution as per capita benefits,
other than to minors [which shall be made in accordance with the provisions
of § 1605(e) below], to other legally incompetent persons
[which shall be made in accordance with the provisions of § 1605(g)
below] and to members participating in a deferred benefit plan established
pursuant to § 1605(f) below, shall be deposited, when received
by the GTB, into a low-risk, interest-bearing account with a federally
insured financial institution prior to distribution. For purposes
of this subsection, said deposits shall be made within five days of
the date such revenue is received by the GTB and shall be made in
accordance with the percentage allocation set forth above. Interest
earned prior to distribution on net revenues deposited in this account
shall be allocated among the per capita recipients and added to the
per capita benefits.
(c) "Qualified Tribal members" for purposes of this RAO shall mean any
individual who is duly enrolled in the GTB in accordance with Article
II of the Tribal Constitution and living as of June 1st of the benefit
year in question. A Tribal member receiving semiannual distributions
who dies before December 1st shall not be eligible for the December
payment.
(d) In addition, in order for any qualified Tribal member to be entitled
to deferred payments, the member must apply for benefits on a form
prescribed by the Tribal Council on or before such date as may be
prescribed by the Tribal Council.
(1) Consistent with Article II, Section 3, ("Membership Procedure") of
the Constitution, any "qualified Tribal member" shall have legal standing
to challenge the membership of current "qualified Tribal members"
as improperly enrolled for purposes of receiving Tribal per capita.
(2) Any person denied membership shall have the legal standing to challenge
the denial of membership before the Tribal Council on an administrative
review standard of de novo review.
(e) In order to provide for the future safety and well being of the children
of the GTB, per capita benefits for minor qualified Tribal members
shall be contributed by the Tribal Council to one or more trusts which
are grantor trusts for federal income tax purposes.
(1) A "minor qualified Tribal member" means an individual who is a qualified
Tribal member as defined in § 1605(c) except that he or
she has not reached the age of 18 as of June 3rd and December 3rd
of the benefit year in question.
(2) Per capita benefits contributed to a trust or trusts shall be invested,
with income earned on trust principal to be accumulated in the trust,
for future distribution to the minor qualified Tribal members.
(3) Providing sufficient evidence of eligibility, all assets accumulated
in the trust or trusts for the benefit of a minor qualified Tribal
member shall be distributed, upon application of the beneficiary and
the completion of financial planning education provided by the Tribe
at no cost to the minor, by the trustee or trustees or the Tribal
Council in accordance with the following schedule:
At age 19, 33% of the then principal;
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At age 20, 50% of the then principal; and
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At age 21, the remaining assets of the trust.
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(i)
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Eligibility requirements for distributions at ages 19 and 20
shall include graduation from high school or the achievement of a
GED from an accredited educational institution; provided, however,
that this requirement shall not extend to mentally disabled members
as determined by health officials.
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(ii)
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In the event a Tribal member provides sufficient proof of a
high school diploma or GED after reaching the age of 19 but before
reaching the age of 21, the date the degree was conferred shall replace
the member's birthdate as the date on which the Tribal member
is eligible for the first distribution. The first and second anniversaries
of the date the degree was conferred shall be the dates on which the
Tribal member is eligible for the second and third distribution, respectively.
In the event a Tribal member does not achieve a high school diploma
or a GED by age 21, the trust distribution shall be delayed until
ages 21, 22, and 23.
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(iii)
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Prior to the first distribution as determined in 18 GTBC § 1605,
notification of possible investment options shall be mailed to the
minor, along with notice that there are financial planning alternatives
to direct distributions.
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(A)
Prior to the time the minor beneficiary reaches the age of 21,
the Tribal Court or the trustee or trustees, in their sole discretion,
may make distributions from the trust or trusts to the parents or
legal guardians of the beneficiary to defray the unreimbursed medical
expenses in excess of $250 incurred by the beneficiary in any one
calendar year, provided that the Tribal Council concurs in the determination
made by the trustee or trustees.
(B)
Upon the petition of the parents or legal guardians of the minor
beneficiary, trust assets may be distributed to the parents or legal
guardians of such minor or minors in such amounts as from time to
time the trustee or trustees or the Tribal Court, in their sole discretion,
deem necessary for the minor's health, education or welfare.
The Tribal Court may require that the petitioning parent or legal
guardian submit receipts of expenditures made on behalf of the minor
before any disbursements are made, and shall require that the petitioning
parent or guardian account to the trustees for any expenditures made
from distributions from the trust or trusts. The Tribal Court may,
at its discretion, authorize the trustee or trustees or the Tribal
Court to establish a regular monthly distribution from the trust for
the minor.
(4) For purposes of establishing standards for access to the minors'
trust funds, the trustee, trustees or the Tribal Court shall follow
standards that, to the extent permissible, preserve the child's
estate consistent with federal and Tribal law.
(5) Based on the direction of RAO, Ordinance No. 94-117 and amendments
thereafter, and the resulting trust documents attached thereto and
incorporated by reference, the Tribal Council shall not move the minors'
trust assets from the current trust manager, Huntington National Bank
(acquirer by merger with original Trustee, Empire National Bank),
for a period of five years to the year 2006, if at all, unless Huntington
National Bank has failed to meet the "Prudent Investor Rule" as established
by the "Estates and Protected Individuals Code for the State of Michigan"
(1998 PA 386, as amended by 199 PA 52 effective 4-1-2000). In addition,
at least three bids would have to be received for consideration prior
to replacing Huntington National Bank as investment manager. In return,
Huntington National Bank commits to maintain investment management
of the children's trust at a maximum explicit rate of 22.5 basis
points or less until the expiration of this RAO in 2006.
(6) The interest of each beneficiary shall be accounted for separately
by the trustee, and a trust account statement shall be available at
least semiannually to the parent or legal guardian of the beneficiary.
(7) When the minor qualified Tribal member reaches the age of 18, said
member shall receive the subsequent semiannual per capita payment(s)
directly for that year and each year thereafter.
(8) If any assets remain at the beneficiary's death, the trust shall
terminate and the remaining trust assets (including any accrued net
income) shall be distributed in equal shares to any surviving children
of the beneficiary or to one or more trusts for the benefit of such
children, or, shall be distributed to any surviving spouse or in equal
shares to any surviving parents of the beneficiary who are members
of the GTB, or, in the absence of any surviving children, surviving
spouse, surviving parents, or surviving siblings, shall revert to
the GTB.
(9) Consistent with the USA Patriot Act [18 U.S.C. § 5381(1)
(2001); Pub. L. No. 107-56, § 326, 115 Stat 273, 317 (Oct.
26, 2110), as amended], the Grand Traverse Band shall provide Huntington
National Bank, as Trustee (and as acquirer by merger with original
Trustee, Empire National Bank), copies of Grand Traverse Band documents
sufficient to verify the identity of the beneficiary for whom the
qualified minor trust is created.
(f) In order to provide for the current and future safety and well being
of adult qualified Tribal members, who have been declared incompetent
by a court of competent jurisdiction, the per capita benefits for
such qualified Tribal members shall be contributed by the Tribal Council
to one or more trust(s) which are grantor trusts for federal income
tax purposes.
(1) It shall be the responsibility of the legal guardian for each such
qualified Tribal member to provide the Tribal Council with a letter
of authority 15 days prior to June 3rd and December 3rd of the per
capita benefits year.
(2) Per capita benefits contributed to a trust or trusts shall be invested,
with income earned on the trust principal to be accumulated in the
trust, for future distribution to the judicially declared incompetent
Tribal member.
(3) In accord with 25 U.S. 2710(b)(3)(B) of the Indian Gaming Regulatory
Act and 25 C.F.R. 290.12(3)(I)(ii)(iii)(4) and (5), Tribal Revenue
Allocation Plans, the following process and substantive standards
shall apply to the criteria for the withdrawal of funds from judicially
declared incompetent Tribal members' trust funds.
(4) The Tribal Council and Huntington National Bank as Trustee (and as
acquirer by merger with original Trustee, Empire National Bank) hereby
delegate their trust responsibility and authority in this specific
area of 25 C.F.R. 290.12(I)(ii)(iii) to the Tribal Court of the Grand
Traverse Band established under Article V of the Grand Traverse Band
Constitution.
(5) Upon the petition under the letter of authority, the legal guardian
of the judicially declared incompetent Tribal member may request the
Tribal Court to distribute trust assets to the legal guardian of the
judicially declared incompetent Tribal member in such amounts as from
time to time the Tribal Court deems necessary for the incompetent's
health, education, or welfare. The Tribal Court shall require that
the petitioning legal guardian submit receipts of expenditures made
on behalf of the incompetent before any disbursements are made from
distributions of the incompetent's trust. The Tribal Court may,
at its discretion, authorize the establishment of a regular monthly
distribution from the trust of the judicially declared incompetent
Tribal member. The Tribal Court shall be authorized to make distributions
from the trusts of the judicially declared incompetent Tribal member
to the legal guardian to defray the unreimbursed medical expense incurred
by the incompetent/beneficiary.
(6) Until the Tribal Council of the Grand Traverse Band acting in its
legislative capacity formally enacts a Probate Code, the Tribal Court
shall follow the Michigan Revised Probate Code M.C.L.A. 700.1 et al.
and the following substantive Articles: 1. General Provision; 2. Administration
and Probate of Decedents' Estates; 3. Independent Probate; 4.
Guardianship and Protective Proceedings; 5. Fiduciaries; 6. Management
of Property or Assets of Estate; 7. Claims against the Estate; and
Trust and Trust Administration as guidelines in trust issues for purposes
of establishing guidelines for access to the judicially declared incompetent
Tribal members' trust funds. The Tribal Court shall follow guidelines
that, to the extent permissible, preserve the incompetents trust funds
while providing for the best interests of the incompetents' health,
education, or welfare consistent with federal and Tribal law.
(7) The Tribal Court shall follow the case law decisions of M.C.L.A.
700.1 et al., as guidelines for deciding petitions in Tribal Court.
Decisions of the Tribal Court under this section are subject to appeal
to the Grand Traverse Band Appellate Court. The Grand Traverse Band
Appellate Court decisions are final.
(8) The interest of each judicially declared incompetent. Tribal member
shall be accounted for separately by the trustee Huntington National
Bank as Trustee (and as acquirer by merger with original Trustee,
Empire National Bank) and a trust accounting statement shall be filed
with the Tribal Court annually. The legal guardian of the judicially
declared incompetent Tribal member shall receive a trust accounting
statement from Huntington National Bank of the incompetent/beneficiaries'
trust assets once every six months.
(9) If any trust assets remain at the judicially declared incompetent/beneficiaries'
death, the trust shall terminate and the remaining trust assets (including
any accrued net income) shall be distributed in equal shares to any
surviving children or the beneficiary or to one or more trust for
the benefit of such children, or, in the absence of surviving children
shall be distributed to any surviving spouse, or in the absence of
surviving children or surviving spouse, in equal shares to any surviving
parents of the judicially declared incompetent/beneficiary, or, in
the absence of any surviving children, surviving spouse, or surviving
parents, in equal shares to any surviving siblings of the incompetent/beneficiary,
or, in the absence of any surviving children, surviving spouse, surviving
parents, or surviving siblings shall revert to the Grand Traverse
Band.
(10)
Consistent with the USA Patriot Act [18 U.S.C. § 5381(1)
(2001); Pub. L. No. 107-56, § 326, 115 Stat 273, 317 (Oct.
26, 2110), as amended], the Grand Traverse Band shall provide Huntington
National Bank, as Trustee (and as acquirer by merger with original
Trustee, Empire National Bank), copies of Grand Traverse Band documents
sufficient to verify the identity of the beneficiary for whom the
qualified incompetent trust is created.
(g) As acknowledged by the IRS private letter ruling [PLR 36099-95] (November
17, 1998) which is attached hereto and incorporated by reference as
Exhibit C in order to provide for the future well being of adult qualified
Tribal members, other than legally incompetent members, who have adequate
resources available for their current general welfare from other sources,
funds shall be set aside pursuant to GTB Plan A and B as identified
in the IRS private letter ruling [PLR 36099-95] (November 17, 1998).
A member shall be eligible for deferred per capita benefits under
either of the following circumstances:
(1) If the member has available to him or her from earnings or other
sources income of at least $25,000 for the benefit year in question,
and the Tribal Council or its designee determines that it is appropriate
and in the long term best interests of the member to receive deferred
benefits in lieu of current benefits so that there is a source of
funds available to him or her upon reaching retirement or becoming
disabled.
(2) If the adult qualified Tribal member validly elects to receive deferred
benefits under one or more plans established by the Tribal Council.
In order to qualify for deferred per capita benefits for any benefit
year, the member must timely file an application for deferred benefits
for the year containing information required by the Tribal Council.
(h) In order to further the policies and goals underlying the contribution
of per capita benefits to one or more trusts for minors and other
legally incompetent persons and to one or more deferred per capita
benefit plans for qualifying adults, it is the intent of the Tribal
Council that any benefits contributed to a trust or set aside for
future payment under a deferred per capita payment plan shall be includable
in the gross income of the member for federal income tax purposes
no earlier than the date(s), and only to the extent, that the member
is entitled to distributions from the trust or under the plan. This
Tribal Council intent has been sanctioned by the IRS in two private
letter rulings [PLR 36099-95] (November 17, 1998) and [PLR 114616-98]
(March 8, 2000). Both of these IRS private letter rulings should be
considered in construing this RAO.
(i) The GTB shall notify the member that the payments are subject to
federal income taxation in accord with the provisions of 26 U.S.C.
§ 3402, (r) "Extension of withholding to certain taxable
payments of Indian casino profits," (2)(3)(4)(5)(6)(7) and the implementation
of the IRS Code at 26 C.F.R. § 3402 (r)-1, at such time
as the benefits are paid to the member pursuant to § 1605(e),
distributed to the member from a trust or trusts pursuant to § 1605(f)
or distributed to the member pursuant to a deferred per capita benefit
plan or plans pursuant to § 1605(g).
(j) Any person enrolling in the GTB after December 1, 1994, shall not
be entitled to any back payments of per capita benefits. The first
per capita benefit to a Tribal member enrolled after December 1, 1994,
shall be on the first date for payment, deposit or set aside of per
capita benefits, if any, that may be made after his or her qualified
status is confirmed in accordance with § 1605(c).
[History: Revenue Allocation Ordinance adopted by Tribal
Council at Special Session on May 31, 2000; as amended by Tribal Council
in Special Session on June 1, 2000.]
(a) The Tribal Council shall establish an optional per capita payment
process under the General Welfare Doctrine as identified in Bannon
v. C.I.R., 99 T.C. 59, 62 (1992), that recognizes the exceptions to
I.R.C. § 61(a). Such per capita payments shall be distributed
exempt from federal income taxes consistent with the General Welfare
Doctrine recognized in the private letter ruling [PLR 199924024] (June
17, 1997). The Tribal Council shall develop appropriate procedures
to implement this § 1606 ("Per Capita Distribution; General
Welfare Doctrine").
(b) The Tribal Council shall establish additional per capita payment
standards similar to the general welfare distribution doctrine of
gaming per capita consistent with Bannon v. C.I.R. supra; and tax
exempt payments of child care; Rev. Rul. 78-170, 1978-1 C.B. 24, energy
subsidy payments; Rev. Rul. 76-144, 1976-1 C.B. 17, disaster relief;
Notice 99-3, 1999-2 I.R.B. 10, estate work payments. The Tribal Council
shall develop appropriate procedures to implement this § 1606
("Per Capita Distribution; General Welfare Doctrine").
(c) The Tribal Council is authorized to seek a private letter ruling
from the IRS that the GTB optional per capita payment standards comply
with the General Welfare Doctrine of Bannon v. C.I.R. supra, as a
tax exempt income payment under this § 1606 ("Per Capita
Distribution; General Welfare Doctrine") and applicable federal law.
[History: Revenue Allocation Ordinance adopted by Tribal
Council at Special Session on May 31, 2000; as amended by Tribal Council
in Special Session on June 1, 2000.]
(a) The Tribal Council shall establish a substantive and procedural program
that permits Tribal members to collateralize their future per capita
payments for present monetary loans. Such loans may only be negotiated
through regulated financial institutions and/or the Tribe itself and
in conformity with the procedures established by the Tribal Council.
The primary instrument for securing a loan shall be a single maturity
note attached to a credit life insurance policy for the value of the
single maturity note. The financial institution shall become the beneficiary
of the per capita payments to the value of the single maturity note
upon filing the appropriate documents with the designated Tribal official.
The filing of the single maturity note with the appropriate Tribal
officials and the Per Capita Officer, in accord with the GTB Secured
Transactions Ordinance, shall be perfected for purposes of notice
to third-party creditors. The single maturity notes shall be subject
to child support obligations and Tribal Court orders, regardless of
the sequence of filing. Nothing in such program shall create duty,
financial obligation, or liability on the part of the Tribal Court
or Tribal government to any third-party obligee.
(b) The leveraging of future per capita payments shall be operated pursuant
to a loan policy to be adopted by resolution of the Tribal Council.
At a minimum, this development policy shall provide:
(1) Qualifications for loans;
(2) Guidelines for setting interest rates;
(4) Maximum principle for loans; and
(5) Maximum fee on loans.
For purposes of the RAO, the future per capita income shall
be viewed as contingent income for leveraging transactions with regulated
financial institutions based upon the contingent income. The Administrative
Procedures for Per Capita Emergency Loans is attached hereto as Appendix
F and is incorporated by reference.
|
[History: Revenue Allocation Ordinance adopted by Tribal
Council on December 27, 1994; as amended by Tribal Act #98-16.635,
enacted by Tribal Council in Special Session on August 31, 1998; and
as amended by Tribal Council in Special Session on May 31, 2000; as
amended by Tribal Council in Special Session on June 1, 2000. As amended
by Tribal Act #06-24.1635 enacted by Tribal Council February 15, 2006.]
(a) For purposes of this RAO, the accounting principles recognized as
GAAP shall apply to issues of preparation, interpretation, and auditing
of the gaming enterprise financial statements and the computation
of net revenues. For purposes of this RAO, "available net revenues"
shall be defined as gross income of tribal gaming activities less
operating expenses less the costs of the administration of the benefit
programs provided for in § 1605 ("Use of Net Revenues; Individual
Per Capita Benefits") and less amounts needed to satisfy any obligations
of indebtedness to which tribal gaming revenues are pledged.
(b) With regard to noncompliance with GAAP, the Tribal Council shall
establish administrative procedures for a Tribal member to challenge
the application of GAAP principles by the management of the Tribal
gaming operation. Resolution of all disputes shall be determined by
qualified nonparty C.P.A.s in a written method that presents policy
accounting options on the posting, journaling, or entry of any accounting
transaction to the books of the gaming operator. The end selection
of the disputed procedure shall be made by the Tribal Council, provided
the disputed procedure is authorized by GAAP.
(c) The GTB EDC Tribal gaming operator shall publish an annual report
detailing the expenses of the gaming operation. The expenses of gaming
operation must conform with the average financial operation ratio
of five small cap public gaming companies as established by the annual
reports of the public gaming companies.
[History: Revenue Allocation Ordinance adopted by Tribal
Council on December 27, 1994; as amended by Tribal Act #98-16.635,
enacted by Tribal Council in Special Session on August 31, 1998; as
amended by Tribal Council in Special Session on May 31, 2000; as amended
by Tribal Council in Special Session on June 1, 2000.]
The Tribal Council shall establish a program to ensure that,
if the GTB has knowledge that any recipient of a per capita benefit
is delinquent with respect to a duty of support under an order issued
by the court of any state or Indian Tribe, such per capita benefit
shall be allocated to the satisfaction of such support obligation
in priority over any distribution or allocation of such benefit otherwise
provided for under this RAO. Such program shall include cooperation
with federal, state, and Tribal governments under the Uniform Reciprocal
Enforcement of Support Act, the Social Security Act, and similar statutes.
Nothing in such program shall create a duty of financial obligation
on the part of the Tribe to any support obligee or third party.
[History: Revenue Allocation Ordinance adopted by Tribal
Council on December 27, 1994; as amended by Tribal Act #98-16.635,
enacted by Tribal Council in Special Session on August 31, 1998; as
amended by Tribal Council in Special Session on May 31, 2000; as amended
by Tribal Council in Special Session on June 1, 2000.]
The Tribal Court shall establish a program to ensure that, if
the Tribal Court has knowledge that any recipient of a per capita
benefit is delinquent with respect to a valid existing GTB Tribal
Court Order establishing liability of the recipient as a result of
a Tribal Court action, then the Tribal Court shall receive satisfaction
of the Tribal Court's outstanding claim prior to distribution
of such benefit under this RAO. Nothing in such program shall create
any duty, financial obligation, or liability on the part of the Tribal
Court or the Tribal government to any third party obligee or party
obligee. Obligations from per capita trust will be paid five working
days subsequent to distribution.
[History: Revenue Allocation Ordinance adopted by Tribal
Council on December 27, 1994. As amended by Tribal Act #98-16.635,
enacted by Tribal Council in Special Session on August 31, 1998; as
amended by Tribal Act #98-16.646, enacted by Tribal Council in Special
Session on October 14, 1998; as amended by Tribal Council in Special
Session on May 31, 2000; as amended by Tribal Council in Special Session
on June 1, 2000; as amended by Tribal Act #07-25.1742, enacted by
Tribal Council on January 17, 2007; and as amended by Tribal Act #08-26.1962,
enacted by Tribal Council on September 17, 2008.]
(a) Except for the members for whom per capita benefits are being contributed
to trusts pursuant to § 1605(e), or set aside for future
payment under a deferred benefit plan pursuant to § 1605(f)
or (g), and except for the members subject to the requirements of
§ 1609 ("Child Support Obligations"), and § 1610
("Tribal Court Orders"), the per capita benefits for any qualified
Tribal member shall be mailed to the last known address of the member
on file with the GTB Tribal enrollment office unless the Tribal member
has timely filed a "Per Capita Direct Deposit Form" with the per capita
officer to receive per capita benefits in a direct deposit transaction
into the Tribal members' personal bank account. Notarization
of the Direct Deposit Form shall not be required; however, the tribal
member must obtain the signature of two witnesses prior to filing
the form with the per capita officer. The direct deposit program for
per capita benefits is strictly voluntary and Tribal members are not
obligated to enroll into the program. The burden of registration with
the GTB Tribal enrollment office is with the member to ensure that
the enrollment office has the member's correct and current address
or correct information as stated on the "Per Capita Direct Deposit
Form" including the account number and routing number of the bank
account and proper verification the Tribal members' name is on
the bank account. Nothing in such program shall create a duty of financial
obligation or liability on the part of the Tribe to any support obligee
or third party.
(b) Per capita benefits returned to the GTB as undeliverable shall be
maintained by the GTB and/or deposited into an interest-bearing escrow
account. The eligible member has until five business days before the
next scheduled distribution of benefits to claim the returned benefits.
If the returned benefits are not claimed within that time period,
the benefits revert back to the GTB per capita fund.
[History: Revenue Allocation Ordinance adopted by Tribal
Council at Special Session on May 31, 2000. As amended by Tribal Council
in Special Session on June 1, 2000.]
(a) Per Capita Officer. The Tribal Council shall develop a position description
and budget for a "Per Capita Officer" to administer and coordinate
the administration of this RAO for the benefit of individual Tribal
members. At the minimum, such Per Capita Officer shall have a bachelor's
degree in accounting or other similar professional license that demonstrates
numerical and analytical competency in the investment area. The Per
Capita Officer shall report to the Chief Financial Officer of the
Tribe. The Per Capita Officer position description shall be filled
by January 1, 2001.
(b) Financial Advisor. The Per Capita Officer shall, upon request of
a Tribal member, arrange financial counseling or advice for a Tribal
member in issues related to the expenditure of per capita funds.
[History: Revenue Allocation Ordinance adopted by Tribal
Council on December 27, 1994; as amended by Tribal Act #98-16.635,
enacted by Tribal Council in Special Session on August 31, 1998; as
amended by Tribal Council in Special Session on May 31, 2000; as amended
by Tribal Council in Special Session on June 1, 2000.]
If any section, or any part thereof, of this RAO or the application
thereof to any party, person or entity or in any circumstances shall
be held invalid for any reason whatsoever by a court of competent
jurisdiction or by the Department of the Interior, the remainder of
the section or part of this RAO shall not be affected thereby and
shall remain in full force and effect as though no section or part
thereof has been declared to be invalid.
[History: Revenue Allocation Ordinance adopted by Tribal
Council on December 27, 1994; as amended by Tribal Act #98-16.635,
enacted by Tribal Council in Special Session on August 31, 1998; as
amended by Tribal Council in Special Session on May 31, 2000; as amended
by Tribal Council in Special Session on June 1, 2000.]
Nothing in this RAO shall provide or be interpreted to provide
a waiver of the sovereign immunity from suit of the GTB or any of
its governmental officers and/or agents.
[History: Revenue Allocation Ordinance adopted by Tribal
Council on December 27, 1994; as amended by Tribal Act #98-16.635,
enacted by Tribal Council in Special Session on August 31, 1998; as
amended by Tribal Council in Special Session on May 31, 2000; as amended
by Tribal Council in Special Session on June 1, 2000.]
(a) No amendments shall be authorized prior to December 3, 2005, changing
the allocation in § 1605(a) of 50% of all net revenues for
per capita benefits or changing the definition in § 1605(c)
of "qualified Tribal members," without the consent of 60% of the registered
voters of the GTB in a special election held for the purpose of authorizing
such amendment or amendments.
(b) Prior to January 1, 2004, the Tribal Council shall prepare a comprehensive
analysis and impact study of the benefits and detriments associated
with per capita distributions. The Tribal Council shall then propose
a new Revenue Allocation Ordinance, for implementation including a
house-to-house membership survey, in the year 2005, that addresses
the issues identified in the impact study.
(c) Beginning with the year 2000, this RAO shall be reviewed by a RAO
Committee every five years to provide any further recommendations
to the Tribal Council. The RAO Committee shall be comprised of at
least seven members but not more than 12 Tribal members. The Committee
will be formed at least six months prior to the due date of the recommendation
to Tribal Council on the RAO Committee.
[History: Revenue Allocation Ordinance adopted by Tribal
Council on December 27, 1994; as amended by Tribal Act #98-16.635,
enacted by Tribal Council in Special Session on August 31, 1998; as
amended by Tribal Council in Special Session on May 31, 2000; as amended
by Tribal Council in Special Session on June 1, 2000.]
This RAO becomes effective under GTB Tribal Law upon adoption
by the Tribal Council. Per capita payments to GTB Tribal members are
subject to the approval of the Area Bureau Officer in accord with
the Tribal Revenue Allocation Plans, Department of Interior regulations
codified at 25 C.F.R. 290 et al., (April 17, 2000).
NOTE: Appendixes A through F, which were included
in the Revenue Allocation Ordinance enacted May 31, 2000, as amended,
are not reproduced in this Code. Copies may be obtained through the
Grand Traverse Band Legal Department. These appendixes are titled:
Appendix A, Trust Agreement February 18, 1998; Appendix B, IRS Private
Letter Ruling, March 8, 2000; Appendix C, IRS Private Letter Ruling,
November 17, 1998; Appendix D, Deferred Per Capita Benefit Plans,
Plan A and Plan B; Appendix E, Procedures for Incarcerated Individuals;
and Appendix F, Administrative Procedures for Per Capita Emergency
Loans.
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[History: Former Subchapter 2 - Administrative Trust Procedures
Implementing § 1605(j) of the Revenue Allocation Ordinance
- Adopted by Tribal Council by motion on October 15, 1996, and as
amended by Tribal Act #98-16.635, enacted by Tribal Council in Special
Session on August 31, 1998, was NOT included in the revised Revenue
Allocation Ordinance adopted by Tribal Council in Special Session
on May 31, 2000; as amended by Tribal Council in Special Session on
June 1, 2000.]