CFR, Title 25, Chapter I, Subchapter N, Part 290, 290.12(b)(5) states
“It must authorize the distribution of per capita payments to members according to specific eligibility requirements and must utilize or establish a tribal court system, forum or administrative process for resolution of disputes concerning the allocation of net gaming revenues and the distribution of per capita payments.”
LTBB Tribal Constitution Article XIV, Initiative and Referendum, A.1. Initiative states:
“Initiative is the power of the Tribal members to propose laws and to enact or reject them in an election. The members of the Little Traverse Bay Bands of Odawa Indians shall have the power to adopt, by initiative, any statute, and the power to repeal or amend any statute in accordance with the provisions of the Article; provided that statutes addressing appropriations for Tribal Institutions or statutes establishing the Tribal budget shall be exempt from the initiative process.”
The Tribal Constitution prohibits addressing appropriations for Tribal Institutions or establishing a Tribal budget by Initiative. This Initiative does neither. It provides for separating certain Tribal resources by priority, specifically net gaming revenue, into one part for Per Capita Distribution leaving the remainder as a second part for use as the Tribal government shall decide. Establishing a Tribal budget is the right and duty of the Tribal Government. Moreover, Federal law requires that the Tribe utilize or establish a tribal court system, forum or administrative process for resolution of disputes concerning the allocation of net gaming revenues and the distribution of per capita payments. The Initiative process under the Tribal Constitution is one means of satisfying this Federal requirement. Determining whether the Tribal Membership wants to increase the Tribal Per Capita Payments by vote is our right.
The undersigned do hereby submit this Initiative to create a Statute entitled “Tribal Per Capita Distribution”. The Tribal Government shall number this statute as required.
WAGANIKISING ODAWAK STATUTE 2012-XXX
TRIBAL PER CAPITA DISTRIBUTION
Immediately upon enactment, this Statute supersedes all provisions, sections, clauses and language of any Tribal statute, law, ordinance, resolution, regulation, requirement, process, procedure, policy or enactment, and of any rule, procedure, policy or other requirement or process of any subsidiary of the Tribe, to include all Tribal enterprises, in force prior to the effective date of this Statute, which contradict, contravene or otherwise adversely affect or do not comply with the provisions of this Statute.
SECTION I. PURPOSE:
This statute is enacted to foster and enhance the general welfare of the Tribal Members of the Little Traverse Bay Bands of Odawa Indians (Tribe).
SECTION II. DEFINITIONS:
A. “Tribe or Tribal” means the Little Traverse Bay Bands of Odawa Indians.
“Per Capita or Per Capita Distribution/Payments” means those payments to all Tribal Members after Net Gaming Revenue is determined.
“Minor or Incompetent” means those individuals who are not 21 years of age or who are not legally competent to make decisions on their own.
“Tribal Elders” are those individuals determined to be such by statute or other legal provision.
This statute establishes the following additional definitions: that Net Gaming Revenue is a resource of the Tribal members and that allocation of Net Gaming Revenue shall be in two parts, in order by priority:
The primary allocation of Net Gaming Revenue shall be comprised of funds sufficient for payment of Per Capita distribution according to the provisions of this statute; and
The remaining or secondary allocation of Net Gaming Revenue shall be available to the Tribal Government for such purposes as the government shall determine.
SECTION III. TRIBAL PER CAPITA DISTRIBUTION.
The annual amount of the payment shall be not less than two thousand five hundred dollars ($2500.00) each year; however Tribal Council may increase this amount without Tribal Membership approval.
A trust fund shall be created into which Per Capita payments for minor Tribal Members and incompetent persons shall be deposited at the same time as general distribution is made. A process shall be created that will allow the legal parent or guardian of said minor(s) or incompetent person(s) to withdraw funds, if needed, for their health, education and welfare, including school clothes, books, medical bills, tuition and education savings. Tribal government shall provide for administration of this process no later than six (6) months from the enactment of this statute.
Tribal government shall provide for Per Capita distribution in the last month of each fiscal year. Tribal Council may provide for semi-annual Per Capita Distribution at its discretion. However, semi-annual distribution, if Tribal Council chooses to provide for such, shall take place in the sixth and twelfth month of the fiscal year. In the event of a fiscal year of other than twelve (12) months duration, Tribal Council shall provide for one (1) or two (2) distributions in a like manner.
In the fiscal year in which this Statute is enacted, Per Capita payment shall be reduced proportional to the number of whole months remaining in the fiscal year. Each fiscal year thereafter, Per Capita payment shall be at the full amount.
SECTION IV: CLAIMS OF INABILITY TO PAY THE TRIBAL PER CAPITA DISTRIBUTION.
If Tribal government is not able to pay the annual Per Capita Distribution of two thousand five hundred dollars ($2,500.00) or would like to lower that amount, Tribal government is required to commission an independent forensic audit conducted of the Tribal and all Tribal Enterprise finances. Tribal government shall not rename, redefine, or reassign the records or existence or conduct of any past, present or future business or financial activity to which the Tribe may be or may have been party to, as a means of avoiding or failing to include such activity within this requirement.
Such audit shall be conducted as described below:
The forensic audit shall be conducted by an independent financial expert known as a forensic accountant who has passed the Certified Fraud Examiners test and has been so certified, and who maintains current membership in the Association of Certified Fraud Examiners.
The forensic audit shall include, but not be limited to, a comprehensive audit of all assets, liabilities, total income and cash flow of all Tribal and Tribal Enterprise finances. The forensic audit shall include the salaries, wages and all forms of allowances or other emolument that have been paid for each position, including such positions as exist by virtue of contract for services or other such agreement.
The forensic audit shall be performed for the two prior fiscal years and the current fiscal year in which request for reduction or non-payment is made, except that further forensic audit of any prior year for which a previous forensic audit has been successfully completed shall not be required. In the event that one or more of the three years within the period described in this paragraph has been the subject of a prior forensic audit, the auditor conducting the current forensic audit shall include in the current audit all findings and responses and such other materials as s/he deems necessary and/or appropriate in the record of the current forensic audit.
The summary and findings of this forensic audit will be placed into the next annual report and provided to the Tribal Membership.
Upon completion of the forensic audit, the independent entity conducting the audit shall provide the full report of the audit, including all findings, responses, attachments, references, correspondence, appendices, and all other kinds of supporting documents, to any Tribal Member wanting a copy of the forensic audit, at no further cost to the Tribal Member. No information in any form shall be provided to the Tribal government, or any official or agent thereof, which is not also provided to Tribal members as intended above. This report shall include, but shall not be limited to, access to the audit report and all additional documents as referenced above, by commonly available and downloadable electronic means such as in portable document format (PDF) files, posted to a website to which Tribal Member access shall be unhindered, for a period of not less than one (1) year from the date of first public availability. The entire cost of the forensic audit and where those monies were taken from to pay for the forensic audit shall be reported as part of the audit report.
Tribal Council may then conduct a Referendum vote to propose lowering the Tribal Per Capita Distribution pursuant to the Tribal Constitution, including an explanation provided by Tribal government as to why they believe they cannot pay the Tribal Membership their annual Per Capita Distribution and reference the forensic audit that was conducted that substantiates this position.
SECTION V. REQUIREMENT.
A Tribal Revenue Allocation Plan is required by the United States government, and is the framework for a Per Capita distribution system.
Tribal government shall follow all applicable laws (Tribal, Federal and State) and requirements regarding the Tribal Revenue Allocation Plan. Tribal government shall submit any required and/or necessary changes to the Tribal Revenue Allocation Plan to those interested parties including the Bureau of Indian Affairs for review/approval upon passage of this Statute. This includes, but is not limited to all provisions in 25 CFR 290.12(a) – (b)(5). Tribal government shall complete this and all related, required processes within any time period prescribed by Federal law or regulations, but no later than six (6) months from the effective date of this Statute.
SECTION VI. SAVINGS CLAUSE
In the event that any phrase, provision, part, paragraph, subsection or section of this statute is found by a court of competent jurisdiction to violate the Constitution of the Little Traverse Bay Bands of Odawa Indians, such phrase, provision, part, paragraph, subsection or section shall be considered to stand alone and to be deleted from this statute, the entirety of the balance of the statute to remain in full and binding force and effect.
SECTION VII. EFFECTIVE DATE.
The effective date shall be the date on which the Tribal Election Board certifies the vote by the Tribal Membership in the affirmative.
