Ordinances of the Elk Valley Rancheria, California
Last amended: 2002
Elk Valley Rancheria Ordinance No. 00-18
AN ORDINANCE OF THE TRIBAL COUNCIL OF THE ELK VALLEY RANCHERIA ADOPTING AND ADDING A NEW CHAPTER TO THE ELK VALLEY TRIBAL CODE ENTITLED: USE OF GAMING REVENUES
The Tribal Council ("Tribal Council") of the Elk Valley Rancheria ("Tribe") hereby ordains as follows:
Section 1. Findings and Policy. The Tribe hereby finds and declares as follows:
1. The Tribe operates a gaming facility which produces revenues which are subject to the control of the Tribal Council.
2. Under the Indian Gaming Regulatory Act ("IGRA") 25 U.S.C. §2710 (b) (2), and Section 6 (b) of the Elk Valley Gaming ordinance of 1999, the Tribal Council may use gaming revenues:
A. To fund Tribal government operation or programs;
B. To provide for the general welfare of the Tribe and its members;
C. To promote the economic development of the Tribe;
D. To provide per capita payments to the members of the Tribe; and
E. To donate to charitable organizations.
3. Under the IGRA, the Tribal Council may use net revenue from gaming activities to make per capita payments to Tribal members, if:
A. The Tribe has prepared a plan to allocate revenue to uses authorized under this Ordinance;
B. The plan is approved by the Secretary of Interior;
C. The interests of minors and other legally incompetent persons are adequately protected and preserved and the per capita payments are distributed to the parents or legal guardian of such minors or legal incompetents in such amounts as may be necessary for the health, education or welfare of the minor or other legally incompetent person; and
D. The per capita payments are subject to Federal taxation and Tribal members are notified of their tax liability when payments are made.
4. The purpose of this Ordinance is to provide a plan for the use of gaming revenues and the rules respecting the distribution of said funds for various purposes.
5. The Tribal Council finds that the general welfare of Tribal members is best served if an amount not to exceed 30% of the tribe's share of the net revenues of the gaming enterprise are distributed per capita to Tribal members and at a minimum 70% of the revenues are used for tribal programs that benefit the members collectively.
6. No gaming revenue funds will be subject to child support, garnishment, and/or divorce settlements, only the tribal member as designated on the tribe's Tribal rolls will be entitled to payment.
Section 2. Adoption and Adding of a New Chapter to the Tribal Code Entitle "Use of Gaming Revenues." A new Chapter is hereby adopted and added to the Elk Valley Tribal Code and shall provide as follows:
1.020 Division of Net Revenue.
1.030 Per Capita Payments.
1.040 Tribal Program Funds.
1.050 Approval of Budget.
Section 1.010 Definitions. In construing the provisions of this Ordinance, the following words or phrases shall have the following meanings:
A. "Budget Ballot Committee" means a five (5) member committee consisting of Tribal members appointed by the Tribal Council to conduct an election of the budget as provided in Section 1.050.
B. "Master trust agreement" means the following trust agreement:
1. Under the trust agreement each minor is a beneficiary and the Tribal Council is the trustee.
2. The trustee is required to separately account for each beneficiary's trust assets and to notify each parent and/or legal guardian for whom it has an address of each deposit to the minor's account and provide each such parent with an annual report of the account balance.
3. The trustee is required during the term of the trust to preserve the trust assets for the benefit of the beneficiary by investing them to produce a reasonable rate of return consistent with insuring the preservation of principal. The trustee may pool trust assets of minors for investment purposes as long as the trustee accounts for each minor's individual share of trust assets and the income or capital appreciation attributable to that minor's share thereof.
4. The trustee is authorized to expend trust funds for the benefit of the beneficiary, when in the sole discretion of the trustee, such expenditure is absolutely necessary for the education, health, housing or career of the beneficiary.
a. The beneficiary or his or her parent or guardian, if the beneficiary is a minor, may file a written request with the Tribal Council to expend funds for the beneficiary during the term of the trust. The burden shall be on the applicant to demonstrate that the expenditure is absolutely necessary for the medical care, education, health, housing or career of the beneficiary to the extent no other funds are available for these purposes, including public assistance and medicaid. Funds may be used to assist in the purchase of a house or condominium for a beneficiary, only if title is taken in the beneficiary's name. Funds may not be used for rent or to meet the beneficiaries ordinary living expenses. The Tribal Council may impose conditions on the use of the money it deems necessary to insure that the expenditure benefits the beneficiary. Such conditionals may include paying the funds directly to the vendor, school, health care provider, etc., which provides goods or services to the beneficiary. Whenever per capita funds are disbursed to the parent or guardian of a minor beneficiary, the parent or guardian shall file with the Tribe, on a quarterly basis, an accounting of the expenditure of the disbursed funds, along with receipts and/or other documentation substantiating the accounting. The Tribal Council shall deny the application when the requested expenditure is not absolutely necessary for the medical care, education, health, housing or career of the beneficiary.
b. The Tribal Council shall consider the application in a closed session at its next regular meeting after the application is submitted. The Tribal Council shall provide notice of the time and place of the meeting to each parent and/or legal guardian of the beneficiary, if it knows the parent's address, and the parents reside separately. The beneficiary and each of his or her parents or legal guardians may address the Tribal Council at that time.
c. If the minor, parent(s) or legal guardian remains dissatisfied with the decision of the Tribal Council, he or she may appeal that decision to the General Council by filing a written request for an appeal with the Secretary of the Tribal Council. The written request shall include a waiver of confidentiality, because the Tribe cannot preserve confidentiality in an appeal to the General Council. The General Council shall consider the appeal at its next regular or official meeting after the appeal request is filed with the Tribal Council. Notice of the meeting shall be provided as set forth in section b. The decision of the General Council shall be final for the Tribe.
5. The trust terminates on the beneficiary's 21st birthday or upon the death of the beneficiary, if he or she dies before age 21 or on the beneficiary's 18th birthday if the beneficiary is enrolled as a full-time student and is attending or scheduled to attend in the fall semester, an accredited college or vocational school, accredited by the state where the school is located.
a. A beneficiary who is 18 years old or older may designate who will receive his or her trust assets, if he or she dies before age 21. To do so, the beneficiary must fill a notarized statement with the Treasurer of the Tribal Council ("Treasurer") containing the full name, age and address of the person or persons. The beneficiary may change the designation at any time by filing a new notarized statement.
b. Upon termination of the trust and as soon as is administratively feasible, all trust assets shall be transferred free of any restrictions or encumbrances to the beneficiary, designee(s), or tribal member parent or parents, if the beneficiary dies without designating a successor or while still a minor. If a deceased beneficiary is survived by two tribal member parents, the trust assets shall be divided equally between them, unless the Tribal Council on a referral by the treasurer finds good cause for a different division, subject to an appeal to the General Council as provided in subsection 4.c. If a beneficiary dies without designating a beneficiary and is not survived by tribal member parents, the trust assets shall be transferred in accordance with the California Probate Code. The transfer to the beneficiary shall be made in four equal installments every three months over the 12 month period following termination of the trust. The transfer shall be made in a single lump sum payment if the trust terminates as a result of the beneficiary's death.
C. "Minor" means a Tribal member under the age of 18 whose date of birth and certificate have been provided to the Tribe. A minor shall be considered an adult Tribal member, if the minor has been emancipated by a court of competent jurisdiction. An emancipated minor must file a certified copy of the court order with the Treasure. If the minor has not filed such an order with the Treasurer, he or she shall be considered a minor for all purposes under this Article, until on after the date such order is filed with the Treasurer.
D. "Minor's account" means an account in a federally insured financial institution or a financial instrument backed by the full faith and credit of the federal government or other prudent investment authorized by an investment policy for minor's trust funds adopted by resolutions of the Tribal Council opened or acquired by the Treasurer under the Master Trust Agreement. A minor's account may include funds of more than one minor which have been pooled for investment purposes provided the trustee accounts separately for each minor's share of the pooled funds.
E. "Net revenues" means gross revenues from the Elk Valley Casino/Gaming facility less amounts paid out as, or paid for, prizes, total operating expenses, and required payments on any capital advance or loan and excluding management fees.
F. "Net revenues account" means one or more accounts in a federally insured financial institution or a financial instrument backed by the full faith and credit of the federal government, at least one of which is interest bearing, into which the Treasurer deposits, or which the Treasurer purchases with net revenues exclusively. No other funds shall be deposited or used to purchase instruments in the net revenues account.
G. "Payment date" means the fifteenth day of the month following the last day of the quarter or any other date established by resolution of the Tribal Council.
H. "Per capita payment" means a payment from net revenues in any quarter to a living Tribal member who has a current address on file with the Treasurer, the amount of which is determined by dividing the total Net Revenue available for distribution by the number of Tribal members living on the payment date who have current address on file with the Treasurer or an amount approved by resolution of the Tribal Council provided the total amount distributed to Tribal members in any given year does not exceed 30% of Net Revenues. Per capital payments shall be equal in amount for each Tribal member entitled to a payment.
I. "Per capita payment account" means a separate account in a federally insure financial institution which can be used to distribute funds to Tribal members through checks, electronic fund transfers or other means.
J. "Quarter" means the following three month periods in any calendar year: January 1 to March 1, April 1 to June 30, July 1 to September 30 and October 1 to December 31.
K. "Treasurer" means the Tribal Treasurer as specified in the Constitution of the Elk Valley Rancheria or some other employee or official designated by resolution of the Tribal Council to administer Net Revenues under this Ordinance.
L. "Tribal member" means any person, regardless of age, who is an enrolled member of the Elk Valley Rancheria for the entire quarter in which a per capita payment is made.
M. "Tribal program accounts" means one or more separate accounts in a federally insured financial institution or financial instrument backed by the full faith and credit of the federal government or other approved investment under a tribal funds investment policy adopted by the Tribal Council into which the Treasurer deposits Tribal program funds.
Section 1.020 Division of Net Revenues.
A. Upon receipt of the tribe's share of Net Revenues, the Treasurer shall deposit the funds in the net revenues account.
B. By the twelfth day of the month following the last month of each quarter, or on any other date specified by the Tribal Council by resolution, the Treasurer shall prepare an accounting of the total net revenues in the Net Revenues Account. The Treasurer shall deposit that amount or percentage approved by resolution of the Tribal Council of the total Net Revenues in the Per Capita Payment Account and the designated balance in the Tribal Program Account, provided that the amount or percentage approved by the Tribal Council by resolution does not exceed 30% of the Net Revenues.
C. The Treasurer shall prepare and present to the Tribal Council at its next regular meeting a report of the accounting prepared pursuant to this Section, the balance of the Per Capita Payment and Tribal Programs Accounting, and the amount of the Per Capita Payment for the quarter or for whatever time period specified by the Tribal Council by resolution (hereafter, "the quarterly report").
Section 1.030 Per Capita Payments.
A. Within ten (10) days after BIA approval of this Ordinance, and on the same date each year thereafter ("notice date"), the Treasurer shall provide notice to Tribal members or the parents or guardians of minors or incompetent members that in order to receive Per Capita Payments the Tribal member or his or her parent or legal guardian must provide the Treasurer with a current address. The Treasurer shall be entitled to rely on the address provided by the member or other authorized instructions filed with the Treasurer. The notice shall also inform Tribal members that they may notify the Treasurer to mail their payment, automatically deposit the payment in a designated account or hold the payment at the tribal office for the member to pick up. If signed and notarized by the member or his or her legal guardian or conservator, the instructions may authorize the Treasurer to release the check to another person. The member or authorized recipient shall provide picture identification when he or she picks up the check. The Treasurer shall only release the check upon presentation of adequate identification.
B. Such notice shall be given by regular first class mail to any Tribal member for whom the Treasurer has a mailing address.
C. For a period of ten (10) days after the notice date, the notice shall be conspicuously posted in area readily visible to the general public in the tribal office and the Elk Valley Casino/Gaming Facility.
D. The notice shall be published as soon after the notice date as is possible in a newspaper of general circulation in the County of Del Norte.
Failure of any Tribal member to receive actual notice shall not give that Tribal member any right of action or claim against the Elk Valley Rancheria, its officers, agents or employees, or impose any obligation on the Elk Valley Rancheria or any of its officers, agents or employees.
E. By no later than the 15th day of the month following the last month of each quarter or on any other date specified by the Tribal Council by resolution, provided the Tribal Council has, by resolution, designated an amount or percentage for Per Capita payments, the Treasurer shall make the per capita payment for the quarter or other date specified by resolution of the Tribal Council:
1. To each Tribal member who is not a minor, by mailing checks, transferring funds, or issuing and holding checks as directed by the Tribal member in the absence of specific instruction from the Tribal member, the Treasurer shall mail the Tribal member's check to the address on file with the Treasurer;
2. To each minor by depositing the Per Capita Payment in the Minor's Account. The Treasurer shall give notice of the deposit provided in section 1.035(B).
F. A copy of the quarterly report and a notice that Per Capita Payments are subject to federal income tax shall be furnished to each member with their per capita payment. The notice shall also provide that the Treasurer will file a form 1099 with the Internal Revenue Service, if required by the Internal Revenue code. The notice shall state that beginning January 1, 1995, the Tribe withholds federal income tax from Per Capita Payments if the monthly payment exceeds $1600 or such other amount as the Internal Revenue Service (IRS) may require. Unless requested in writing to withhold a larger sum by the member, the Tribe will calculate federal withholding, using the Tables for withholding on Distributions of Indian Gaming Profits to Tribal Members provided by the IRS. The Tribe will report Per Capita Payments to the IRS on forms 1099, 1098, 5498 or W-2G and make withholding deposits with the IRS, using Form 8109.
G. When an adult tribal member is legally incompetent, the legally incompetent tribal member's per capita distribution funds shall be disbursed to the incompetent tribal member's legal guardian or conservator. Such disbursement shall be made to the incompetent tribal member's legal guardian or conservator only if a certified copy of the letters of guardianship or conservatorship of the estate have been filed with the Tribe. All per capita distribution funds disbursed to an incompetent tribal member's guardian or conservator shall be used exclusively for the health, education, or welfare of the incompetent tribal member at such times and in such amounts as are necessary. The guardian or conservator shall file with the Tribal Council, on an annual basis, an accounting of the expenditure of the per capita distribution funds, in a form substantially similar to the accounting required under the probate code of the jurisdiction in which the guardian or conservator and the incompetent adult reside. Where the Tribal Council refused to disburse the per capita distribution funds to the guardian or conservator of an incompetent tribal member on the grounds that the funds are not being used exclusively for the health, education or welfare of the incompetent tribal member, or because the guardian or conservator's accounting of the expenditure of the per capita funds is inadequate, the guardian or conservator may appeal the Tribal Council's decision pursuant to the procedures set forth in Section 1.010(B)(4)(b) and (c).
H. Only Tribal members living on the payment date and who have current addresses on file with the Treasurer are entitled to a per capita payment, payment from the minor's account or distributions of the assets of the minor's account upon termination of the trust. If a Tribal member dies after the payment date but before the Treasurer makes the per capita payment and the Treasurer has prior notice of the death, the Treasurer shall hold the Tribal member's per capita payment and dispose of it as an asset of the deceased member's estate pursuant to the California Probate Code. The Treasurer shall have no obligation to invest such payment or pay any interest thereon. If a trust beneficiary dies before his or her 21st birthday under these same circumstances, the funds shall be disbursed according to Section 1.035(F).
I. Except as provided in Section 1.030(E) above, nothing in this Ordinance is intended to vest or vests in any Tribal member or any other person any right or interest in the Elk Valley Casino/Gaming Facility, the income produced by such facility, any other tribal assets, or the income produced by such assets. The Tribal Council reserves the right to amend or repeal this Ordinance at any time and such amendment or repeal shall not represent a taking of any vested property right provided, however, that no such amendment shall be effective until it has been approved by the Secretary of the Interior in accordance with applicable federal laws.
J. If, for any reason, the Treasurer cannot perform his or her duties required by this Section, the Tribal Council shall have the authority to appoint a qualified financial officer to perform the duties of the Treasurer required by this Section until such time as the Treasurer is able to perform said duties.
K. Any Tribal member may elect, by providing written notification to the Tribal Council, to establish an irrevocable trust with the Tribal Council as the trustee and require that his or her Per Capita Payment be paid into the irrevocable trust in accordance with the Written Trust Agreement establishing the trust.
Section 1.035 Master Trust Agreement.
A. The Tribal Council shall execute a trust agreement for each minor of the Tribe designating each minor as a beneficiary and the Tribal Council as trustee.
B. Each minor who is a qualified member shall receive a maturity payment on the occurrence of either one of the following, whichever occurs first: (1) the beneficiary's eighteenth birthday or if the beneficiary has graduated from high school, obtained his/her GED or is senior in high school, obtained end of his/her senior year and/or (2) upon the death of the beneficiary if he/she dies before age eighteen, application for maturity payment shall be approved upon sufficient evidence showing eligibility to the Tribal Council.
C. Upon termination of the trust and as soon as is administratively feasible, all trust assets shall be transferred free of any restrictions or encumbrances to the beneficiary, designee(s), or Tribal member parent or parents, if the beneficiary dies without designating a successor or while still a minor. If a deceased beneficiary is survived by two Tribal member parents the trust assets shall be divided equally between them, unless the Tribal Council, on a referral by the Treasurer finds good cause for a different division. If a beneficiary dies without designating a beneficiary and if not survived by a Tribal member parent(s), the trust assets shall be transferred in accordance with the California Probate code. The transfer to the beneficiary shall be made in four equal installments every three months over the twelve (12) month period following termination of the trust. The transfer shall be made in a single lump-sum payment, if the trust terminates as a result of the beneficiary's death.
Section 1.040 Tribal Program Funds.
A. Prior to the commencement of the tribe's fiscal year or as often as once each quarter, in the discretion of the Chief Financial Officer ("CFO") for the Tribe, he or she shall prepare, in consultation with the heads of the tribal departments, a proposed budget for the funds contained in the Tribal Programs Account.
B. The proposed budget shall consist of two parts:
1. A line item budget showing in columns the individual expenditures grouped by categories with subtotals for each category, department, and/or project; and
2. A budget narrative for each expenditure or project explaining how the expenditure will achieve the stated goals.
C. The budget shall explain in both parts how other funds budgeted to the department or project will be used in combination with the Tribal Programs Account funds. It also may project expenditures that will require funds from future quarters. If a proposed budget anticipates funds from a future quarter or quarters, the budget narrative shall explain why budgeting the additional funds is necessary. The budget may anticipate accumulating funds from future quarters for a particular project or financing a project by pledging future revenues to repay borrowed funds.
D. If the Tribal Council approves a budget that anticipates or relies upon funds from a future quarter or quarters, any contracts or other commitment, including employment or or financing contracts dependent on that future funding, shall contain an express written provision, making an expenditure of funds beyond those funds available at the time of budget approval subject to the availability of funds in future quarters.
E. The permissible uses of Tribal Program Account funds shall include, but are not limited to, the following uses:
1. Health and welfare;
3. Investment Portfolio/Economic Development (money market funds, certificates of deposits, AA or better rated stocks and bonds, including investment in tribally owned businesses, etc.);
4. Tribal Infrastructures;
i. Physical infrastructure shall include construction, maintenance, and improvements to curbs, gutters, sidewalks, waterlines, sewer lines, lighting, landscaping, parking lots, equipment for fire and police department, etc.);
ii. Administrative infrastructure shall include police department, fire department, water department, sewer department, public works department, etc.);
5. Housing (new housing, rehab, emergencies, repairs, or natural disaster, etc.);
6. Social Services (i.e., housing subsidies, food subsidies, alcohol, drugs, and family counseling, etc.);
7. Land Acquisition (i.e., purchase, escrow and title fees, broker commission, taxes and insurance, maintenance - street and sewer - planning, mapping, surveying engineering, management and accounting and capitol cost);
8. General Administration (salaries and fringe benefits for Tribal staff, planning department, fiscal department, Tribal Attorney, Tribal Administration, Tribal Court, Gaming Commission, Tribal Council, etc.};
9. Charities (to be determined and approved by Resolution of the Tribal Council from time-to-time); and
10. Youth and Seniors.
F. No Tribal Programs Account funds shall be used to make payments to or on behalf of individual Tribal members, unless a specific program authorizing such payment has been approved by the Tribal Council. The approved program must include objective standards for determining eligibility for the payments and the amount of the payment. Subject to the availability equally to all Tribal members who meet the eligibility requirements, which shall not discriminate among Tribal members on the basis of race, religion, age, sex, sexual orientation, marital status, income, geographic location, or physical or mental disability.
G. The budget shall be approved in accordance with the procedure as set forth in Section 1.050 "Approval of Budget."
Section 1.050 Approval of Budget.
A. Approval by the Tribal Council.
1. The Tribal Council shall consider the proposed budget at a noticed public hearing.
2. The notice shall state the date, time, and place of the hearing, which may be a regular or special Tribal Council meeting and shall notify Tribal members where the budget is available for review for a period of ten (10) days prior to the hearing.
3. Notice shall be given as provided in Section 1.030(1)b-c.
4. At the hearing, the Tribal Council shall allow any Tribal member to submit and shall consider written or oral comments on the proposed budget.
5. After opening the hearing, the Tribal Council may continue the hearing without renoticing it.
6. After closing the hearing, the Tribal Council shall allow, approve, modify or reject the budget.
7. If the Tribal Council fails to approve the budget by a majority of the members of the Tribal Council as provided in this Subsection, then the Council shall call for a General Council meeting as provided for in Subsection B below to approve the budget.
B. Approval by the General Council.
1. The General Council shall consider the budget as further provided herein and may approve, modify or reject the budget by a majority vote at a duly called General Council meeting at which a quorum is present.
i. Not less than forty-five (45) days prior to the General Council meeting, the CFO shall give notice by first class mail of the meeting to all members who have an address on file The notice shall state the time, date, and place of the meeting and shall enclose a copy of the proposed budget.
ii. Copies of the proposed budget shall also be available at the Tribal office for any member requesting one.
2. At the General Council meeting, the CFO shall review the budget for the members, after which the Tribal Chairperson shall call for a vote on the budget. The budget shall be approved by a majority vote of those in attendance.
3. If a quorum fails to attend the General Council meeting within one hour after the time the meeting was scheduled to begin, the Chairperson shall adjourn the meeting and the Budget Ballot Committee shall mail absentee ballots to all Tribal members with instructions to mark the ballot in favor or against the proposed budget and return the ballots by mail or in person to the tribal office by 3:00 p.m. on the date not earlier than fifteen (15) days after the ballots are sent. After 3:00 p.m. on that date, the Budget Ballot Committee shall count and tabulate the ballots and announce the election results. The budget shall be approved by a majority vote of those casting ballots.
Section 3. Dispute Resolution.
The Elk Valley Tribal Court shall have jurisdiction of all disputes between the Tribe and a Tribal Member regarding the eligibility to receive, the payment of ore the investment of a Per Capita Payment arising under this Ordinance. If no Tribal Court exists to resolve the dispute, then the Elk Valley Gaming Commission shall have jurisdiction to hear and resolve the dispute under such rules of procedure that the Commission may adopt from time to time for that purpose. In the event that the Commission does not adopt any specific rules of procedure for resolving disputes arising under this Section 3 then in that event, the Commission shall apply the rules of procedure adopted by the Commission for resolving patron disputes to resolve disputes arising under this Section 3.
Section 4. No waiver of Tribal Sovereignty.
No provision of this Ordinance expressly or impliedly waives the sovereign immunity of the Elk Valley Rancheria and its officers and employees or is intended to operate as a consent to suit.
Section 5. Severability.
In the event that nay Section or provision of this Ordinance is held or determined to be invalid by any Court of competent jurisdiction, it is the intent of the Council that the remaining Sections or provisions of this Ordinance, and any amendments of this Ordinance, shall continue in full force and effect.
Section 6. Amendments.
This Ordinance may be amended at any time by the Tribal Council, when such amendment is necessary to promote the general health, safety, and welfare of the Tribe or its members. The Tribal Council expressly reserves the right to amend this Ordinance subject to the approval of this Ordinance by the Secretary of the Interior, if said approval is required by applicable federal laws.
Section 7. Repeal of Prior Ordinances.
All prior Ordinances previously enacted by the Tribal Council, which are inconsistent with the provisions of this Ordinance, are hereby repealed. If the provisions of this Ordinance conflict with the provisions of any other Ordinance, the provisions of this Ordinance shall control.
Section 8. Effective Date.
This Ordinance shall take effect immediately after its adoption by the Tribal Council and its approval by the Secretary of the Interior.
The foregoing Ordinance was adopted at a regular meeting of the Elk Valley Tribal Council held on December 6, 2000 by the following vote:
John D. Green, Chairman
Tribal Council Secretary
December 6, 2000
Ordinances of the Elk Valley Rancheria, California