[History: Enacted by Tribal Council on July 15, 2020.]
This ordinance shall be known and cited as the "Grand Traverse
Band General Welfare Ordinance."
[History: Enacted by Tribal Council on July 15, 2020.]
This ordinance is enacted by the Tribal Council pursuant to
the powers vested to it under Article IV, Section 1 of the Constitution
of the Grand Traverse Band of Ottawa and Chippewa Indians, adopted
February 24, 1988, and approved by the Secretary of the Interior on
March 29, 1988, as may be amended from time to time. Pursuant to Section
16 of the Indian Reorganization Act (P.L. 73-383, 48 Stat. 984).
[History: Enacted by Tribal Council on July 15, 2020.]
The purpose of this chapter is to establish a means of providing
assistance to Tribal members that promotes the general welfare of
the Tribe and is excludable from the gross income of those recipients.
The Internal Revenue Service in IRS Revenue Procedure 2014-35 provides
for safe harbor programs under which, if approved and in writing,
would presume need and thus exclude these benefits. Accordingly, this
chapter sets forth a framework to establish programs consistent with
IRS Revenue Procedure 2014-35 to ensure compliance with Internal Revenue
Code § 139E and the General Welfare Doctrine that allows
for the exclusion of these types of benefits from the gross income
of its recipients. The benefits authorized by this chapter are intended
to qualify for favorable tax treatment under the General Welfare Doctrine
and IRC Code § 139E to the fullest extent permitted by law.
Accordingly, all assistance provided under this chapter:
(a)
Shall be available to any recipients who qualify in accordance with
program policies, subject to budgetary restraints;
(b)
Shall be provided in a way that does not discriminate in favor of
members of the Tribal Council;
(c)
Shall not be provided as compensation for goods and/or services;
(d)
Shall not be lavish or extravagant under the facts and circumstances;
(e)
Shall be an unfunded arrangement for tax purposes and shall be limited
to funds appropriated, at the discretion of the Tribal Council. All
amounts budgeted by the Tribe for assistance purposes shall remain
general assets of the Tribe until such payments are disbursed;
(f)
Shall not be subject to information reporting by the Tribe to the
Internal Revenue Service;
(g)
Without limitation, assistance provided under this chapter shall
therefore be treated as nontaxable hereunder:
(1)
assistance that, when provided, satisfies the requirements for
the exemption under Internal Revenue Code § 139E;
(2)
assistance that is provided under an IRS safe harbor program;
(3)
assistance that, when provided, qualifies for exclusion under
the IRS General Test or General Welfare Exclusion; or
(4)
assistance that, when provided, meets another express exemption
under the Internal Revenue Code, such as the exemption provided for
Tribal medical expenses under Internal Revenue Code § 139D, or
that meets other recognized exemptions.
[History: Enacted by Tribal Council on July 15, 2020.]
(a)
This chapter is not to be construed as creating new general welfare
assistance rights. Rather, this chapter is intended to codify existing
procedures used by the Tribe to administer its general welfare assistance.
(b)
Assistance of the nature addressed in this chapter provided prior
to the enactment of this ordinance is hereby ratified and confirmed
as general welfare assistance provided pursuant to the exercise by
the Tribe of its inherent Tribal sovereignty.
[History: Enacted by Tribal Council on July 15, 2020.]
Nothing in this chapter shall be interpreted as a waiver of
the Tribe's sovereign immunity from unconsented lawsuit, or as
authorization for a claim for monetary damages against the Tribe except
as otherwise set forth herein.
[History: Enacted by Tribal Council on July 15, 2020.]
(a)
"Approved Program" means any program or action to provide general
welfare assistance that is intended to qualify for treatment under
the general welfare exclusion, which is adopted as a policy by the
Tribal Council.
(b)
"Benefits" means any assistance provided through an approved program,
including payments, which is provided pursuant to this chapter.
(c)
"General Test" means any assistance that is:
(d)
"General Welfare Exclusion" means any benefit shall be treated as
nontaxable under federal law so long as it satisfies the requirements
for exclusion under Internal Revenue Code § 139E, it is
provided under a safe harbor program, or it meets the General Test.
(e)
"Lavish" or "Extravagant" 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 assistance at hand, except
as otherwise may be required for compliance with final guidance issued
under Internal Revenue Code § 139E following consultation
between the Tribe and the Internal Revenue Service.
(f)
"Recipient" means any Tribal member entitled to receive assistance
in accordance with specific approved program requirements.
(g)
"Tribal member" means any person who is a duly enrolled member of
the Grand Traverse Band of Ottawa and Chippewa Indians.
[History: Enacted by Tribal Council on July 15, 2020.]
The Tribe does not guarantee benefits under this chapter. Benefits
shall not be treated as a resource or asset of a recipient for any
purpose, and no recipient shall have an interest in or right to any
funds budgeted for, or set aside for, approved programs until paid.
The Tribe reserves the right to cancel, adjust, modify or revoke any
benefit treated as a resource of the recipient. Approved programs
shall be administered at all times to avoid triggering of the doctrines
of "constructive receipt" and/or "economic benefit" to the extent
such doctrines are inconsistent with the purposes of this ordinance.
[History: Enacted by Tribal Council on July 15, 2020.]
(a)
All the rights and liabilities associated with the enactment of the
ordinance codified in this chapter, or the benefits made hereunder,
shall be construed and enforced according to the laws of the Grand
Traverse Band of Ottawa and Chippewa Indians and applicable federal
law.
(b)
Nothing in this chapter 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 which are otherwise inapplicable
to the Tribe.
(c)
The Tribe reserves the right to provide benefits in circumstances
where federal funding is insufficient to operate federal programs
designed to benefit recipients and when federal funding is insufficient
to adequately and consistently fulfill federal trust obligations.
(d)
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.
[History: Enacted by Tribal Council on July 15, 2020.]
(a)
The Tribal Council shall approve programs consistent with the purposes
set forth in this chapter. Each approved program shall be consistent
with the General Welfare Doctrine as to purpose, eligibility, and
funding. In the absence of specific requirements to the contrary,
all approved programs shall be deemed to incorporate eligibility criteria
that comply with Internal Revenue Code § 139E.
(b)
At a minimum, program policies submitted for review and approval
shall:
(1)
Not discriminate in favor of the members of the Tribal Council;
(2)
Ensure benefits are available to any Tribal member who meets
such policy requirements;
(3)
Provide that the benefits provided are for the promotion of
the general welfare;
(4)
Determine that the benefits are not lavish or extravagant; and
(5)
Confirm that the provision of benefits is not compensation for
services.
(a)
Eligibility for benefits shall be limited to Tribal members. Approved
programs may limit benefits to an identified group of Tribal members.
(b)
Programs comprising descriptions, including eligibility rules and
limitations, may be presented to the Tribal Council for approval in
accordance with this chapter.
(c)
Only those programs that are adopted by the Tribal Council shall
be considered to be in force and effect.
[History: Enacted by Tribal Council on July 15, 2020.]
Consistent with Internal Revenue Code § 139E and the
IRS safe harbor guidance, approved programs may be based on nonfinancial
need under the General Test that are not individually means tested.
Nonetheless, programs providing benefits where eligibility is financial-need
based may also be approved.
[History: Enacted by Tribal Council on July 15, 2020.]
A recipient's eligibility for a benefit is not subject
to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance,
attachment or garnishment by creditors of the recipient.
[History: Enacted by Tribal Council on July 15, 2020.]
For safe harbor programs, and subject to amendments to Revenue
Procedure 2014-35 hereafter, the Tribe will presume that individual
need is met for religious or spiritual leaders (including but not
limited to traditional healers) receiving the following benefits,
and that the benefits do not represent compensation for services:
(a)
Benefits provided under an Indian Tribal governmental program that
are items of cultural significance that are not lavish or extravagant
under the facts and circumstances, as determined by the Tribal Council;
or
(b)
Nominal cash honoraria provided to religious or spiritual officials
or leaders (including, but not limited to, traditional healers) to
recognize their participation in cultural, religious, and social events
(including, but not limited to, rite of passage ceremonies, funerals,
wakes, burials, other bereavement events, and subsequent honoring
events).
[History: Enacted by Tribal Council on July 15, 2020.]
(a)
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 recipient having to demonstrate individual need:
(1)
The benefit is provided under a specific approved program of
the Tribe;
(2)
The program has written policies specifying how individuals
may qualify for the benefit;
(3)
The benefit is available to any Tribal member or identified
group of Tribal members who satisfy the program policies, 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)
The following benefits may be provided under a safe harbor program.
The benefits listed in the parenthetical language herein are illustrative
only, rather than an exhaustive list. Thus, a benefit may qualify
for exclusion from gross income as a safe harbor program even though
the benefit is not expressly described in the parenthetical language
herein; provided, that it meets all other requirements of the Internal
Revenue Service Code, and Revenue Procedure 2014-35 (as may be amended):
(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 60 or are mentally or physically disabled (as defined
under applicable law, including, but not limited to, Tribal 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 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, those on 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
another tribe.
(5)
Other Qualifying Benefit 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 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 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 medicines).
[History: Enacted by Tribal Council on July 15, 2020.]
Nothing in this chapter or the IRS safe harbor guidance shall
limit the Tribe's right to provide benefits outside of the safe
harbor rules. Any changes to the safe harbor programs as a result
of the Indian General Welfare Exclusion Act of 2014 shall be immediately
incorporated, by reference, into this chapter.
