The Cherokee Code: Published by Order of the Tribal Council of the Eastern Band of Cherokee Indians

Chapter 16C - Allocation and Per Capita Distribution of Gaming Net Revenue*

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*Editor's note: Ord. No. 355, ratified October 1, 2004, amended the Code by, in effect, repealing former Ch. 16C, §§ 16C-1-16C-22, and adding a new Ch. 16C. Former Ch. 16C pertained to similar subject matter, and derived from Ord. No. 349, ratified November 16, 1998; Ord. No. 528, ratified April 8, 1999; Ord. No. 686, ratified September 7, 1999;p Ord. No. 989, ratified September 7, 1999; Ord. No. 21, ratified November 24, 1999; Ord. No. 69, ratified December 2, 1999; Ord. No. 70, ratified December 2, 1999; Ord. No. 223, ratified May 16, 2000; Ord. No. 392, ratified September 18, 2000; Ord. No. 430, ratified October 25m 2000; Ord. No. 891, ratified September 28, 2001; Ord. No. 914, ratified September 24, 2001; Ord. No. 362, ratified June 18, 2002; Ord. No. 465, ratified September 6, 2002; Ord. No. 480, ratified November 18, 2002; Ord. No. 530, ratified November 18, 2002; Ord. No. 608, ratified December 5, 2002; Ord. No. 708, ratified April 23, 2003; Ord. No. 815, ratified September 23, 2003; Ord. No. 962, ratified September 8, 2003; Ord. No. 998, ratified September 30, 2003; Ord. No. 73, ratified August 4, 2004; Ord. No. 202, ratified June 28, 2004; and Ord. No. 282, ratified August 20, 2004.
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See. 16C-1. Statement of Policy.

(a) This chapter is enacted in order to promote the general welfare of the Eastern Band of Cherokee Indians and its members, to provide for fair and equitable per capita distribution to eligible enrolled members from revenues allocated by the Tribal Council from gaming activities conducted by and on behalf of the Eastern Band of Cherokee Indians; and

(b) In order to provide for long term investment of profits derived from tribal gaming activities, to be invested in a manner which will provide for the general welfare of the Tribe over a period of time longer than is presently provided in the Tribe's gaming compact with the State of North Carolina; and

(c) In order to provide for an allocation of specified amounts to the Tribe's general fund, to be used in the current operating budget of the Tribe in each fiscal year; and

(d) To provide funding for retirement of debt associated with gaming activities and the development of housing and infrastructure of the Tribe, and for the other purposes supporting the general welfare of the Tribe and its members as set forth in this chapter.

(Ord. No. 355, 10-1-2004)

Sec. 16C-2. Definitions.

For purposes of this chapter:

Act shall mean the Indian Gaming Regulatory Act, Pub. L. 100-497, 25 U.S.C. 2701 et seq.

BIA shall mean the Bureau of Indian Affairs, or the official of such agency with the duty or assigned authority to act in behalf of the agency.

Capital Improvement Program (CIP) shall mean the program established to provide funding for ongoing capital improvements of Tribal operations and programs.

Cherokee Central Schools Assistance Fund shall mean that fund established to provide funding to implement the Cherokee Central Schools Strategic Plan and the Facility Master Plan.

Cherokee Central School Board shall mean those officials elected to carry out the policies and procedures for the Cherokee Central School System.

Debt Service Sinking Fund shall mean the fund established to retire the long term debt of the TCGE which was assumed for purposes of constructing the casino facility on Highway 19.

Eligibility for disbursement shall apply to any person who is enrolled as of September 30, 1997, March 31, 1998, and each subsequent disbursement date thereafter with the Tribe, provided that person is enrolled no less than 60 days preceding a scheduled disbursement and meets all requirements of this chapter.

Endowment and Investment Funds shall mean the trust funds established pursuant to this chapter to administer funds allocated for investment and appreciation for the long term benefit of the Tribe and its members.

External investments shall mean investments that may be made by the Minors Trust Fund and the Endowment and Investment Funds which must be made under the Prudent Investor Rule, in accordance with the investments permitted to be made by such funds in this chapter, as amended or supplemented from time to time.

Equivalent degree shall mean a high school diploma, GED, degree from a vocational or technical college, or other appropriate educational institution.

Higher education shall mean college, graduate, or professional school. Higher education shall not mean secondary school.

Higher education funding program shall mean those funds established to provide funds to benefit enrolled members who attend institutions of higher education.

Infrastructure Housing Fund shall mean the fund created for the purpose of providing funds to assist in housing development as permitted to be made by this chapter, as amended or supplemented from time to time.

Interim Distribution Fund shall mean a fund into which 50 percent of Tribal net gaming proceeds are deposited monthly by Tribal Management and from which funds are distributed as per capita payments to competent adult members on an annual basis and into the Minors Trust Fund annually for minor and other legally incompetent members. This fund shall be invested only in U.S. Treasury bills and other US government obligations having a maturity no later than December 15 of the current Tribal fiscal year.

Internal investments shall mean investments that are made by allocation or distribution of funds through the Tribal budget process, with such investments limited to on-reservation assets.

Manager shall mean that person or institution retained by the Tribe to manage and oversee the investments of the Minors Trust Fund.

Members shall mean those persons who are duly recognized as enrolled members of the Eastern Band of Cherokee Indians by the Tribe.

Minor shall mean a member who has not yet reached the age of 18 years.

Minors Trust Fund shall mean a fund created by the Tribe pursuant to section 16C-6 to receive a portion of the net gaming revenues for and on behalf of enrolled minor and incompetent members of the Tribe.

Net revenues shall mean gross revenues of gaming activities less amounts paid out as prizes, less total operating expenses (including debt service and fees paid to a management contractor within the meaning of 25 U.S.C. § 2711), as audited and certified by an independent certified audit firm retained by the Tribe in accordance with generally accepted accounting principles.

Ordinance shall mean this allocation and per capita distribution chapter.

Revenue allocation plan shall mean that plan providing for the use of funds derived from Tribal gaming operations by the Tribal general fund and the endowment and investment funds and the other general welfare funds established under this chapter.

State shall mean the State of North Carolina.

Tribal Council shall mean the legislative body of the Eastern Band of Cherokee Indians.

Tribal Court shall mean the Cherokee Court established pursuant to article 7 of the Cherokee Code.

Tribal Entity shall mean only Qualla Housing Authority, Cherokee Boys Club, the Tribal Casino Gaming Enterprise, the Tribal Bingo Enterprise, the Tribal Health Enterprise, and the Eastern Band of Cherokee Indians Community Development Corporation.

Tribal management shall mean the Executive Committee and the Tribal Finance Officer, who shall be jointly responsible for calculating net revenues on a monthly basis for purposes of this chapter and for making monthly deposits of such revenues into the appropriate accounts or funds under this chapter.

Tribal shares is defined as: Total Shares = 12 months/12 shares of the competent adult + 12 months/12 shares minors + x months per deceased members (as defined in section 16C- 5(b)/12 shares).

Tribe shall mean the Eastern Band of Cherokee Indians. It does not mean individual members of the Tribe.

(Ord. No. 355, 10-1-2004)

See. 16C-3. Allocations and applications of net revenues.

In order to provide for the general welfare of the Tribe and its members, the Tribal Council shall review the income and expenses of Tribal gaming operations each year and after due consideration of the need to fund Tribal government operations and programs, shall determine the overall needs of the Tribe and its members as well as the need to promote Tribal economic development and shall then adopt a budget which will include the amount provided for allocation of available gaming funds. This budget shall include a determination of what amount shall be provided for Tribal purposes pursuant to the Indian Gaming Regulatory Act (Act). The budget shall first provide for distribution of 50 percent of net gaming revenues to Tribal members under this chapter. The remaining 50 percent of net gaming revenues shall be allocated for distribution to support Tribal government operations, enterprises or programs; provide for general welfare of the Tribe and its members; promote Tribal economic development; donate to charitable organizations; or fund operations of local government agencies; all as the Tribal Council may deem necessary or appropriate, subject to the provisions of the revenue allocation plan for the funding of the various funds established in this chapter.

(Ord. No. 355, 10-1-2004)

Sec. 16C-4. Membership and eligibility.

(a) Membership requirements. Those members, including minors and other legal incompetents, who are recognized by the Tribe as duly enrolled, and who do not fall within the specific exemptions listed in paragraph (b) below, shall be eligible for biannual allocations in the Minors Trust Fund and/or per capita payments.

(b) Ineligible members. The following are not eligible to receive per capita distributions:

(1) A former member of the Eastern Band of Cherokee Indians who has been formally and officially disenrolled by the Eastern Band of Cherokee Indians. Any person, who has been disenrolled by the Eastern Band of Cherokee Indians based on false or misleading representations in the enrollment application process, or on the knowing acceptance of financial benefits of membership in any other Indian Tribe, shall be liable in Tribal Court for repayment of all funds received from the Eastern Band of Cherokee Indians.

(2) A member of the Eastern Band of Cherokee Indians who has been convicted of theft, embezzlement, or any other crime involving unlawful taking of money or property from any gaming operation of the Eastern Band of Cherokee Indians shall be subject to a civil penalty to be established by the Cherokee Gaming Commission under its hearing procedures set forth in article VI of the Tribal Gaming Ordinance. That civil penalty shall not be less than 100 percent, or more than 200 percent, of the amount determined by the Gaming Commission to have been taken by the member. The amount of the civil penalty shall be collected from each per capita check as a debt to the Tribe until the amount is paid in full. The member shall not receive any per capita payment until the full amount of the penalty has been collected.

(3) Three strikes rule.

a. Any member of the Eastern Band who has been convicted on three separate occasions of any drug offense, or any offense for which exclusion is allowed whether or not that punishment has been imposed, shall forfeit his or her right to receive per capita distributions of net gaming proceeds. This section shall apply only to offenses that occur after the effective date of this section. The Cherokee Court shall notify the Tribal Finance Office of any person to whom this section applies.

b. Such per capita distributions shall be paid to a responsible person for support of the convicted person's minor children, if any, to the Tribe to cover any debt owed by the defendant to the Tribe, or to the convicted person's victim(s) for restitution, until such amounts are paid in full.

c. If no amounts are payable under subsection (b)(3)(B) of this section, then a convicted person to whom this section applies shall not be used in calculating the shares for per capita distribution.

(4) An enrolled member of the Eastern Band who for religious or other reasons has voluntarily signed a waiver of his or her per capita distribution shall not be eligible to receive any per capita payment during the period such a waiver remains on file with the Tribal Enrollment Office. Such a waiver may be revoked, but the revocation shall only be effective as to future per capita payments distributed 60 days or more after written revocation of the waiver is received by the Tribal Enrollment Office.

(c) Applications, written determination of eligibility. Applications for a finding of eligibility may be made at any time and shall be submitted in such form and manner as the Enrollment Office may reasonably require. In order to provide for the orderly review and consideration, applications submitted within less than 60 days of a scheduled distribution date shall not be eligible for distribution until the next scheduled distribution. At least 45 days, but no longer than 50 days before the date of a scheduled distribution date, the Enrollment Office shall publish a list of those persons found eligible for such payments.. Any applicant found not to be eligible shall be provided with a written determination of the basis for the denial by the Enrollment Office.

(d) Appeal of findings. Any person who believes that the Enrollment Office has made an erroneous determination regarding their own membership may appeal that finding in accordance with the Tribal Enrollment Ordinance, chapter 49 of this Code. The Enrollment Officer shall offer such evidence and testimony as may be appropriate to justify the finding of ineligibility.

(e) Time limit for claiming distribution.

(1) A member who is eligible for but did not receive, any distribution made before December 31, 1998, shall file a written request with the Finance Office on or before December 31, 1999.

(2) Except as otherwise provided in this section, a member who is eligible for but does not receive, a per capita distribution must make a written request to the Budget and Finance Office within 60 days of the distribution. The date of distribution is the date on which the Budget and Finance Office makes its bulk mailing of per capita checks to members of the Tribe.

(3) In circumstances where a deceased member is eligible for but does not receive a per capita distribution, the authorized representative of the deceased member's estate must make a written request to the Budget and Finance Office for the distribution within one year of the deceased member's death.

(4) Upon failure to make a request in writing within the time provided in this section, the member's entitlement to the missed distribution shall expire. Any unclaimed funds held in reserve for such claims shall be distributed to all eligible members at the next per capita distribution.

(5) The 60-day time limit expressed in this subsection does not apply to certain persons who were enrolled as members of the Tribe as infants but who were legally adopted as infants. To claim missed per capita distributions, these persons must submit a resolution to Tribal Council requesting a hearing on the matter and must:

a. Have been enrolled as a member while an infant.

b. Be living and eligible to receive per capita distributions;

c. Provide the same personal information to the Tribe that is required of all other recipients of per capita distributions;

d. Prove that they were adopted as infants;

e. Prove that they have lived their entire lives until they made the claim in a place sufficiently removed from the Qualla Boundary to preclude their contact with or knowledge of the Tribe; and

f. Prove that they were unaware of their membership in the Tribe, of their eligibility to receive distributions, and the time limit for claiming them.

If an adopted member satisfies these requirements to Council's satisfaction at the hearing, the Tribal Council may declare the person eligible to receive per capita distributions and may direct payment to that person. In these cases, the person may receive their share of distributions made since the person attained 18 years of age. However the person shall not receive more than $50,000 in unclaimed distributions. The Tribe shall not pay any more than the principal amount determined by the Tribe to be due and is not liable to pay interest or any other enhancements to the principal amount.

(f) Member must provide accurate information. Distributions are made based on the official tribal membership roll provided by the Enrollment Office to the Budget and Finance Office. Each enrolled member is responsible for providing to the Enrollment Office complete and accurate personal information including, but not limited to, name, mailing address and social security number, in a writing they have prepared. The member must keep that information current. The Tribe is not liable for a member's failure to provide the information in the manner required.

(Ord. No. 355, 10-1-2004)

Sec. 16C-5. Distribution to members.

(a) Biannual distribution. Per capita payments shall be made two times each year to all competent adult members eligible for the distribution as set forth in section 16C-4. Likewise, an appropriate share shall be set aside twice each year in the Minors Trust Fund on behalf of minor and incompetent members.

(b) Distribution for deceased members. Eligible members as defined under section 16C-4 who have passed away prior to the date of any scheduled disbursement shall be eligible to receive a pro rata share of the proposed disbursement for each and every month during the calculation period that they were alive. The Tribal Finance Office shall disburse any and all funds of the deceased Tribal member to the authorized, or court appointed, administrator for the deceased's estate.

(c) Distribution to handicapped members. Eligible minors who have a severe handicap or terminal illness may request early distribution of per capita payments through their parent or guardian in accordance with section 16C-(c)(3).

(d) Garnishment. Except as specifically set forth in this section, the per capita disbursements to which each Tribal member is entitled are absolutely exempt from creditors and shall not be garnished, attached, or paid to any other person or entity, including the Tribal Court. Per capita payments may be garnished only as follows:

(1) Garnishment for child support. A parent, guardian, court-appointed trustee, or other individual or entity, who has provided for the support of any minor Tribal member, may request the court-ordered garnishment of any responsible enrolled member's per capita distribution for the support of the minor child. Such a garnishment shall only be effective if it is ordered in compliance with subparagraph (d)(3), below.

(2) Garnishment for debts owed to the Eastern Band of Cherokee Indians. The Tribe, or a Tribal entity as defined in this chapter, may administratively garnish a member's per capita payment to reimburse the Tribe or the Tribal entity for any outstanding fees, costs, rent, judgments, user fees, or other charges owed to the Tribe or the Tribal entity. This subsection shall not apply to fees, costs, rent, judgments, user fees, or other charges owed to individual Tribal members. Such a garnishment shall only be effective if it is ordered in compliance with subparagraph (d)(3), below.

(3) Procedure. Garnishment orders may only be entered if the following minimum due process requirements have been met:

a. Garnishment of per capita is only permitted to enforce a valid, final, and enforceable court order or judgment entered after the defendant was personally served with a summons and complaint, and given an opportunity to be heard in compliance with the law of the jurisdiction granting the judgment.

b. The defendant must be given notice of the request for garnishment, either in the complaint originally served on the defendant or by a motion served on the defendant by first class mail at least ten days prior to hearing on the garnishment motion.

c. A list of garnishments must be received by the Tribal finance office no less than 30 days before a scheduled disbursement.

d. The garnished funds shall be deposited with the Tribal Court for disbursement in accordance with the court order after the time for legal review under subparagraph (d)(4) has passed.

e. After these procedures have been followed once, the garnishment order shall remain in effect for subsequent distributions until the debt is paid in full.

(4) Legal review. Funds garnished pursuant to Tribal court order shall be held by the Tribal finance office for a period of ten working days after the per capita disbursement. Upon a request within those ten days by a member whose per capita has been garnished, the office of the attorney general will review the court records to ensure there was compliance with the procedures set forth in this section. Upon discovery of a failure to comply with these procedures, the office of the attorney general will notify the court and the funds shall be held by the court in escrow until the tribal member can be given notice and an opportunity to be heard.

(e) Voluntary assignment. This subsection shall apply only to debts owed to the Tribe or to a Tribal entity listed in section 16C-2. A member who owes an obligation to the Tribe or a Tribal entity may enter into a voluntary assignment agreement for all or part of the amount of the scheduled disbursement, subject to the following limitations:

(1) The Office of the Attorney General shall develop a voluntary assignment agreement form. Voluntary assignments shall not be enforced unless they are completed on the proper form, notarized, and filed with the Tribal Finance Office at least 30 days prior to a scheduled per capita disbursement.

(2) A Tribal entity requesting a voluntary assignment shall first pay a fee of $35.00 to the Tribal Finance Office to defer the costs of administering the voluntary assignment, which fee will be charged to the member.

(3) A voluntary assignment may cover past and/or future obligations owed by the member to the Tribe or Tribal Entity. A single assignment may obligate multiple per capita distributions, such as to ensure repayment on a monthly basis of a tribally guaranteed home mortgage loan.

(4) Voluntary assignments shall remain in effect until the amount assigned is paid in full.

(5) A Tribal member who receives a Tribal guarantee of a loan to purchase, refinance, construct or improve a home under a loan guarantee program approved by the Tribal Council may assign his or her per capita in advance to the Tribal division, program or entity charted with administering the guarantee program, or have his/her per capita garnished by the Tribe or Tribal Entity under subsection (d), for repayment of the debt owed to the Tribe or the lender, maker, holder, successor or assign of the mortgage.

(f) Priorities. In the event there are multiple garnishments or assignments against a member, priority for disbursement of funds shall be as follows:

(1) Garnishment under subsection (d) for child support;

(2) Garnishment under subsection (d) for debts to the Tribe or a Tribal Entity; and

(3) Assignments under subsection (e) for debts to the Tribe or a Tribal Entity.

Within each category above, priority shall be determined by the date of the garnishment order or the grant of the assignment.

(g) Limitation on garnishment. Except as specifically set forth in subsections (d) and (e) of this section, the per capita disbursements to which each Tribal member is entitled are absolutely exempt from creditors and shall not be garnished, attached, or paid to any other person or entity, including the Tribal Court. Any resolution, ordinance, or code provision which states or implies otherwise is hereby rescinded and shall have no further force or effect.

(h) Timing for distribution. Distribution to members shall be made within 75 days of the following:

March 31st of any disbursement year following 1998 and September 30th of each disbursement year.

For purposes of the first disbursement scheduled for 1998, distribution shall be made no later than July 31, 1998. Any scheduled disbursements made in accordance with this chapter after July 31, 1998 shall be made within 75 days of the above referenced dates. The Finance Office shall calculate and disburse per capita to eligible members no later than 75 days following the first disbursement closure date and again at the close of the fiscal year. In calculating disbursement, the Finance Office shall use financial data provided by the TBE and TCGE operations management for the first biannual disbursement and shall calculate disbursements for the second biannual disbursement through a certified audit. Tribal Management shall make appropriate allocations and transfers and insure that per capita distributions are made no later than 75 days after the end of the first disbursement closure date and again at the end of the fiscal year.

(i) Certified roll of eligible members. The Tribal Enrollment Office shall deliver to Tribal Management a current certified roll of all members eligible under this chapter, and in accordance with the Tribal Enrollment Ordinance, as of March 31 and a second certified roll as of September 30 of each disbursement year. Said certification shall be submitted to the Finance Office no later than 15 days following the aforementioned dates. This roll shall also be published in the Cherokee One Feather no later than 15 days following the above dates, together with notice to promptly notify the Enrollment Office of any objections to persons listed on the roll, identification of any persons deemed to be ineligible for distribution or of the death of any person listed on the roll.

(j) Percentage of net revenue. The percentage of the net gaming revenue available for distribution to each competent adult member under this chapter shall be determined by applying the following formula: An amount shall be added which is the sum of Total Shares. Total Shares is defined as: Total Shares = 12 months/12 shares of the competent adult + 12 months/12 shares minors + x months per deceased members (as defined in section 16C-5(b)112 shares. Total shares shall then be divided into 50 percent of Net Revenues to equal the distribution per share. The distribution per share shall be multiplied by the total shares distributable to competent adult members, minors, and deceased members which shall equal no more than the Minors Trust Fund and/or per capita distribution which is required pursuant to this chapter. Anyone not on the certified roll for the biannual distribution shall have no right to any past Minors Trust Fund and/or per capita distributions. This requirement shall become effective on the date of ratification of the ordinance from which this article derives.

(k) Balance of funds. The balance of the funds after calculation of the amount to be distributed to competent adult members as set forth in section 16C-5 shall be transferred to the fund for the benefit of enrolled minor and incompetent adult members, to be allocated as set forth in section 16C-6.

(l) Improper assignments and garnishments. No per capita assignment or garnishment, except for child support or debts to the Tribe, should have been accepted by the Cherokee Court of Indian Offenses after the ratification of Ordinance No. 528 (1999) on April 14, 1999. The court improperly accepted assignments and garnishments after that date, and those assignments and garnishments are void and unenforceable by operation of law. Because members of the Tribe and the public have relied in good faith on the court's improper action, however, the Tribal Council has determined that those improper assignments and garnishments will be partially honored on a one time basis using the following procedure:

(1) The remedy provided in this subsection shall apply only to garnishments ordered by the court after April 14, 1999, and filed with the court on or before November 29, 1999. Valid garnishments or assignments of per capita ordered by the court before April 14, 1999 shall remain enforceable until paid in full. No garnishment or assignment of per capita filed after November 29, 1999 shall be valid or enforceable in any way, unless it is for child support or a debt to the Tribal government or a Tribal Entity.

(2) Garnishments for child support or tribal debts, and other garnishments ordered prior to April 14, 1999, shall be released to the court after the ten-day legal review period provided in subsection (d)(4) of this section. The Tribal finance office shall freeze all other funds subject to court garnishments or assignments pending hearing.

(3) The garnishments or assignments subject to a hearing under this subsection shall be paid only in the amount of the principal loan or debt, plus interest at a rate of 24 percent per annum (two percent per month) from the date of the loan through November 30, 1999.

(4) The Tribal Court shall conduct a hearing on each garnishment or assignment. The clerk of court shall give the debtor and creditor notice by personal service or mail at least 30 days prior to the hearing. The hearing shall be held before a judge or magistrate whose name does not appear on the original garnishment order.

(5) At the hearing, the creditor shall have the burden of proving, by clear and convincing evidence, the principal amount of the loan or debt on which the garnishment or assignment was based. The debtor shall have the right to raise defenses at the hearing. If the creditor fails to meet that burden of proof, then the judge or magistrate shall enter an order that the creditor receive nothing.

(6) At the conclusion of each hearing, the judge or magistrate shall enter an order, signed in person by that judge or magistrate, stating:

a. The principal amount of the loan or debt, if proven; and

b. The amount of interest accrued at two percent per month from the date of the loan through November 30, 1999.

In no event shall the amount ordered by the court exceed the amount of the original assignment or garnishment order.

(7) Upon receipt of the order described in subparagraph (l)(6) from the court, the finance office shall release the funds so ordered to the clerk of court for distribution to the creditor. Any balance remaining, after hearings and orders on all garnishments allegedly executed by a tribal member, shall be released to the tribal member.

(8) Orders entered pursuant to this section shall remain in effect until the allowed amount is paid in full.

(9) This subsection shall not affect the validity of garnishments for child support or Tribal debts, the validity of garnishments ordered by the court before April 14, 1999, or the validity of voluntary assignments properly filed with the finance office under former subsection (e). All such garnishments and assignments have priority over the orders entered under this subsection.

(10) This subsection is not intended to affect the contractual rights of any creditor. It is intended to provide a partial remedy for creditors whose garnishments or assignments are otherwise void and unenforceable by operation of law. For any alleged claim that remains unsatisfied after the hearing, the creditor may file a separate civil action against the debtor in the Tribal Court and pursue the judgment collection procedures provided by chapter 25, which do not include garnishment or assignment of per capita.

(11) The clerk of court shall prepare a budget amendment providing for the return of all filing fees charged to creditors for garnishments or assignments ordered after April 14, 1999 and covered by the hearing procedures of this subsection. Upon approval of that budget, the clerk shall return all such filing fees to the respective creditors. Debtors shall not be required to pay those filing fees.

(12) The Tribal Court is directed to post the following notice in a prominent location easily visible to the public in the clerk's office at all times:

NO VOLUNTARY ASSIGNMENTS OR GARNISHMENTS OF PER CAPITA PAYMENTS WILL BE ACCEPTED BY THIS COURT. PER CAPITA PAYMENTS CAN ONLY BE GARNISHED AFTER A JUDGMENT IS ENTERED BY THIS COURT FOR CHILD SUPPORT OR DEBTS OWED TO THE EASTERN BAND OF CHEROKEE INDIANS OR ITS ENTERPRISES.

(13) Nothing in this chapter shall be deemed a waiver of the sovereign immunity of the Eastern Band of Cherokee Indians, or its officers, agents, or employees acting in their official capacities. To the extent that any other tribal law may be interpreted as such a waiver of sovereign immunity for any claim or action related to distribution of per capita payments, it is hereby rescinded.

(Ord. No. 355, 10-1-2004)

Sec. 16C-6. Minors and other legal incompetents.

The interests of minor and legally incompetent members otherwise entitled to receive per capita payments shall be protected as follows:

(1) Trust Fund for enrolled minor and incompetent members.

a. Within 60 days after approval of this section by the Secretary of Interior, the Tribe shall establish a legal trust (hereinafter "the Minors Trust Fund") for the benefit of all minor members and legally incompetent members who shall be eligible for per capita payments.

b. Members of the Investment Committee shall serve as the Trustees of the Minors Trust Fund, provided that there shall be no fewer than three Trustees. The Trustees shall select an institutional Manager and such other advisors as they deem necessary, with suitable expertise and discretion to administer the Minors Trust Fund and invest its assets. The Minors Trust Fund shall be invested in a reasonable and prudent manner so as to protect the principal and seek a reasonable return.

c. The Minors Trust Fund shall be established as a "grantor" trust, under which the Tribe is the grantor and owner of the trust for the benefit of its enrolled minor and incompetent members.

d. The Minors Trust Fund shall comply with all applicable Internal Revenue Code provisions and Internal Revenue Service (IRS) regulations, revenue procedures, revenue rulings, or other guidance in force from time to time, to ensure that amounts contributed to and held in the fund shall not be taxable to the individual enrolled member until they are actually distributed, or made available for distribution pursuant to this section, to the individual enrolled member. The necessary provisions to achieve these goals shall be included in the trust documents.

e. Contingent provisions. To the extent that applicable law and IRS guidance allows the following trust provisions to be included without triggering adverse tax consequences to the individual trust beneficiaries (e.g., taxation prior to actual distribution of the trust funds), the following shall be included in, or later added by amendment to, the trust documents. To the extent that the tax consequences of including these provisions is unclear or uncertain under applicable law or IRS guidance, the Trustees of the Minors Trust Fund are authorized to request an IRS private letter ruling and to act in accordance with any IRS guidance received pursuant to such a request.

1. Prior to receiving a distribution, an enrolled member who reaches the age of 18 years must submit a high school diploma, or an equivalent degree, to the Trustees prior to receiving any funds from the Minors Trust Fund. Any minor member, who fails to submit a high school diploma or documentation of an equivalent degree, shall not be entitled to any monies held on their behalf in the Minors Trust fund until (1) the minor member has provided evidence of attaining such a degree or (2) the minor member reaches the age of 21 years, whichever occurs first. Minor members with learning disabilities or other disabilities may present a certificate of attendance showing that the student has attended a full 12 years of school and that certificate shall be deemed to be an equivalent degree for purposes of this section.

2. Enrolled members who have reached the age of 18 years may voluntarily defer distribution of all or part of the funds held on their behalf in the Minors Trust Fund at any time prior to the date they become entitled to receive those funds, by requesting such a deferral in a notarized letter filed with the Trustees of the Minors Trust Fund.

(2) Advance distributions for education.

a. It is the policy of the Tribe to provide the best possible education for enrolled members. It is the Tribe's specific goal in establishing the Minors Trust Fund to help each student fund a college education. It is recognized that some members may encounter extraordinary educational problems preventing them from being able to attend or benefit from college. In those situations, a minor may request an advance distribution to fund other urgent educational needs that cannot be funded by other sources.

b. In general, an advance distribution for educational purposes shall be requested only for attendance at a secondary school, college, graduate or professional school. However, incompetent and minor members with learning or other disabilities shall be eligible to request a distribution for special training or education in academic or non-academic programs or schools for disabled or handicapped students. For purposes of this section, "secondary school" shall mean a private school or boarding school that is a member of the National Association of Independent Schools.

c. In order to request an advance distribution from the Minors Trust Fund for educational purposes, a written request must be submitted by the parent or legal guardian, or in the case of a member who has attained age 18 without graduating from high school, by the member, to the Trustees. The funds requested may not exceed the cost of tuition, program fees, miscellaneous fees, room, board, books and equipment.

d. Any advance distribution for education shall be disbursed jointly to the parent/legal guardian (or member, age 18-21) and the school, program or other institution providing the educational services.

e. If such a request is granted, the amount disbursed shall not exceed the proportional share of the Minors Trust Fund allocated to the requesting beneficiary at the time of the request.

(3) Advance distributions to minors and incompetents for health care.

a. It is the policy of the Tribe to make funds in the Minors Trust Fund available for the benefit of minor members' unmet health care needs. In the event of unmet health care needs, a minor may request an advance distribution of his share of the trust to fund actions and services that fulfill urgent medical needs, but only when such needs cannot be met from other available personal, Tribal or other public sources.

b. In order to request an advance distribution for unmet health needs, a written request must be submitted by the parent or legal guardian to the Trustees. The funds requested may not exceed the cost of necessary medical or dental treatment that can not be met from other available personal, Tribal or other public sources.

c. In addition, a parent or legal guardian may request early disbursement of trust funds for a severely handicapped or terminally ill minor who is not likely to reach the age of 18 years. Such a request must be supported by specific documentation by both educational and medical personnel to support the representation of either the severity of the handicap or the terminal illness.

d. Any advance distributions for health care will be disbursed jointly to the member's parent/legal guardian or member (age 18-21) and the hospital or other health care institution providing the specific medical services.

e. If such a request is granted, the amount disbursed shall not exceed the proportional share of the Minors Trust Fund allocated to the requesting beneficiary at the time of the request.

(4) Decision process for advance distributions.

a. Any advance distribution for educational or health needs shall be made only in the Trustees' sole discretion. If an advance distribution is made, the beneficiary's account is thereby reduced by the amount of the advance distribution.

b. The Trustees are authorized to establish a screening committee of health and educational professionals to review and make recommendations regarding advance distribution requests. The committee is authorized to create policies and procedures by which to discharge its responsibilities. The policies and procedures must be approved by the Trustees before implementation. The ultimate decision to distribute funds, however, shall remain in the sole discretion of the Trustees.

(5) Distributions for deceased persons. Any person for whose benefit funds are held in the Minors Trust Fund who passes away shall have any funds held for their benefit disbursed in the following in order of priority:

a. If the deceased minor has a surviving spouse and/or child(ren), then the funds shall be divided and distributed equally to all such persons.

b. If the deceased minor has no surviving spouse or children, then the funds shall be divided and distributed equally to the minor's surviving parent(s), if any

c. If the deceased minor has no surviving spouse, children or parents, then the funds shall be divided and distributed equally to the minor's surviving sibling(s), if any.

d. If no spouse, children, parents, or siblings survive the deceased minor, then the deceased minor's share shall revert to the Grantor (the Tribe).

e. In no event shall the funds of a deceased minor be distributed to the minor's estate.

(6) Disbursements prior to attaining 18 years of age. Except as provided in subsections (b) or (c) of this section, no disbursements from the Minors Trust Fund shall occur until the minor has at least obtained the age of 18 years. No court order evidencing emancipation prior to attaining majority shall be accepted or acted upon to authorize a disbursement from the Minors Trust Fund.

(7) Voluntary disenrollment. No distributions whatsoever from the Trust Fund shall be made to any minor or, in the alternative to any guardian or parent of a minor or legally incompetent member, when that minor, or that minor's guardian or parent voluntarily chooses to renounce and abandon their enrollment with the Tribe. Any monies held for the minor prior to disenrollment shall be distributed equally among the other beneficiaries of the Trust Fund.

(8) Timing of disbursements. For purposes of this chapter, disbursements made from the Minors Trust Fund shall only occur at the next regularly scheduled biannual disbursement date.

(9) Effective date. This amended section shall be effective upon the date it is approved by the Secretary of the Interior. Upon approval, all funds held in the Minors Reserve Fund established under prior law for enrolled minors and incompetents shall be transferred to the Minors Trust Fund.

(10) No implied waiver. Nothing in this section or in the related trust documents shall be deemed to be a waiver of the sovereign immunity of the Eastern Band of Cherokee Indians for purpose of any access by creditors to assets in the Minors Trust Fund.

(11) Alternative provision. To the extent that applicable IRS guidance does not allow implementation of subsection (a)(5)(A), above, on a tax deferred basis, then the Trustees shall implement that subsection by establishing a taxable trust account or accounts to hold such funds as are remaining after payment of taxes until the enrolled member provides evidence of a high school diploma or equivalent degree or attains the age of 21 years.

(12) Special supplement. Beginning in fiscal year 2004 and each year thereafter, the Tribe shall set aside from non-Reserve and non-Trust Fund monies, and in a separate budget line item, an amount not to exceed $250,000. This amount shall be calculated to make up for reasonably foreseeable losses in the Minors Trust Fund principal caused by investment volatility. The set-aside monies shall be used only as follows: any person entitled to a distribution from the Minors Trust Fund who would, at the time of distribution, receive less than their full share of Minors Trust Fund principal due to losses to principal since fiscal year 2002 caused by market volatility, will be paid an amount from the set-aside funds sufficient to make up for the loss of principal. Any person who received a Reserve Fund distribution in fiscal year 2003 but who did not receive their full share of principal shall be paid the difference retroactively.

(Ord. No. 355, 10-1-2004)

Sec. 16C-7. Taxation.

All payments made to individual members are subject to federal taxation, and members receiving per capita payments shall be subject to the withholding of appropriate amounts for such tax payment in the manner and to the extent provided by applicable law.

(Ord. No. 355, 10-1-2004)

Sec. 16C-8. Technical amendments.

Technical amendments to this chapter are here with authorized whenever and wherever necessary in order to comply with language and terms established or required by the US Tax Code that would affect the intent and purpose of this chapter in order to preserve and limit taxation of per capita distributions until such distributions are received by the individual members or by their parent or legal guardian. The Tribal Council herewith approves and confirms technical language amendments proposed by tax counsel in connection with the establishment of the various funds set forth in this chapter, together with subsequent proposed technical amendments from tax counsel for the Tribe or the funds resulting from changes to the US Tax Code, federal tax regulations, court decisions or interpretations thereof.

(Ord. No. 355, 10-1-2004)

Sec. 16C-9. Revenue allocation plan.

(a) Effective October 1, 2004, the 50 percent of net gaming revenues not distributed per capita to enrolled members or the Minors Trust Fund shall be distributed to fund Tribal government operations and the general welfare funds established under this chapter as follows:

Tribal General Fund	20.00%
Endowment and Investment Funds (§ 16C-10)	8.00%
Debt Service Sinking Fund (§ 16C-14)	8.00%
Housing Infrastructure Fund (§ 16C-15)	2.00%
Higher Education Fund (§ 16C-16)	2.00%
Capital Improvement Program (§ 16C-17)	3.50%
Cherokee Central Schools Assistance Fund (§ 16C-18)	2.00%
Health Program Supplement Fund (§ 16C-19)	3.50%
Tribal Housing Improvement Program Fund (§ 16C-20)	0.25%
Tribal Housing Fund (§ 16C-21)	0.75%
TOTAL	50.00%

(b) Amendments to the foregoing allocations shall be subject to the following limitations:

(1) No more than 20 percent of net gaming revenues shall be distributed to the General Fund to fund governmental operations as determined in the annual budget process;

(2) No less than eight percent of net gaming revenues shall be distributed to the Debt Service Sinking Fund, unless the balance in that Fund exceeds the total outstanding debt of the Tribe and the Tribal Casino Gaming Enterprise;

(3) No less than eight percent of net gaming revenues shall be distributed to the Endowment and Investment Funds;

(c) Annual fund balances in the following funds shall be subject to these limitations:

(1) A fund balance not to exceed 50 percent of the annual General Fund budget shall be maintained in the General Fund to ensure cash flow continuity. Any balance in excess of that amount at the end of each fiscal year shall be distributed to the Endowment and Investment Funds;

(2) Any fund balance in excess of $2,000,000.00 in the Health Program Supplement Fund at the end of each fiscal year shall be distributed to the Cherokee Indian Hospital Authority to be reserved and invested to address future funding short falls or capital improvement needs; and

(3) Any fund balance in excess of $2,000,000.00 in the Housing Infrastructure Fund, $1,000,000.00 in the Higher Education Fund (not including the Higher Education Endowment Fund), and $1,000,000.00 in the Tribal Housing Improvement Program Fund, at the end of each fiscal year shall be distributed to the Endowment and Investment Funds.

(4) Any fund balance in excess of $500,000.00 in the Tribal Housing Fund that is not required for service of home loan guarantees by the Tribe pursuant to chapter 44A of the Cherokee Code at the end of each fiscal year shall be distributed to the Endowment and Investment Funds.

(Ord. No. 355, 10-1-2004)

Sec. 16C-10. Cherokee Endowment and Investment Funds.

(a) The Tribal Council shall create and fund separate Endowment and Investment Funds with net gaming revenues as set forth in section 16C-9. The purpose of these Funds shall be to provide a long term investment and capital appreciation vehicle for the Tribe. The goal for the first Endowment and Investment Fund shall be to accumulate and grow capital for the long term economic growth and security of the Tribe and its members. Tribal management shall make monthly deposits from net gaming revenues into this Fund.

(b) The first Endowment and Investment Fund shall be maintained with a principal value of not less than 100 million dollars, which amount shall maintained and not spent for the long term success of the Tribe, but which may be pledged as security. The minimum value of this fund shall increase annually based on the Consumer Price Index.

(c) There is hereby created a second Endowment Fund. Principal distributions from gaming revenues in excess of the amount necessary to maintain the principal of the first Endowment and Investment Fund at 100 million dollars, as required in subsection (b), shall be deposited in the second Endowment and Investment Fund.

(d) Monies deposited in the second Endowment Fund shall be used as follows: 75% of the principal shall be maintained as principal in the second Endowment Fund; 25% of the principal shall be used for the purposes in section 16C-11; 50% of the earnings from the first and second Endowment Funds shall be returned to principal of the second Endowment Fund; and 50% of the earnings from both Endowment Funds shall be used for the purposes described in section 16C-11.

(e) The first and second Endowment and In vestment Funds shall be used only for the purposes expressed in Sec. 16C-11. They shall not be used as supplements to the General Fund. The Principal Chief and Tribal Council shall review the requirements for the second Endowment and Investment Fund every two years to evaluate the need for, and adequacy of, that fund.

(Ord.. No. 355, 10-1-2004)

See. 16C-11. Investment of Endowment and Investment Funds.

Except as restricted in section 16C-10, money deposited in the Endowment and Investment Funds shall be invested in a balanced investment portfolio seeking long term gain and capital appreciation, with investments not subject to investment limitations of GASB. Such funds may also be used to purchase additional lands for the Tribe, to acquire or make loans or investments in new or ongoing business enterprises for the Tribe, to acquire or make loans or investments in additional business enterprises and/or to supplement or loan funds to existing Tribal business enterprises, to provide a tribal match for funds obtained from other sources for major infrastructure projects, and to pay off existing indebtedness of the Tribe or Tribal enterprises, but such funds shall be limited to External Investments as defined in this chapter. Any additional land purchases or any loans made to ongoing business enterprises, or loans made to additional business enterprises shall be approved by Tribal Council.

(Ord. No. 355, 10-1-2004)

Sec. 16C-12. Limitations on Investment of Endowment and Investment Funds.

No more than ten percent of the Funds may be invested in any single stock, bond, instrument, entity, company, fund or project or cumulatively.

(Ord. No. 355, 10-1-2004)

Sec. 16C-13. Trustee of Endowment and Investment Funds.

The Tribe shall appoint a Trustee for the Funds, who shall be selected by the Tribal Business Committee and approved by the Tribal Council. The Trustee shall be an individual qualified and experienced in managing and investing funds but such Trustee shall consult and work with not less than three institutional Trustees to establish a balanced portfolio for the Funds. After appointment by Tribal Council, the Trustee and Tribe shall enter into a Trust Agreement setting forth the terms and conditions of the Trust and the duties of the Trustee and provisions for removal and appointment of a substitute Trustee by the Tribe.

(Ord. No. 355, 10-1-2004)

Sec. 16C-14. Debt Service Sinking Fund.

The Tribal Council shall create and fund a separate Debt Service Sinking Fund with net gaming revenues as set forth in section 16C-9. The purpose of this Fund shall be to provide a long term investment vehicle for the Tribe to retire the long term debt incurred through the Tribal Casino Gaming Enterprise (TCGE) which was assumed for purposes of constructing the casino facility on Highway 19. The goal for the Fund shall be to accumulate and grow capital for the retirement of long term debt of the TCGE.

(1) Investment of Debt Service Sinking Fund. Money deposited in this Fund shall be invested in a balanced investment portfolio seeking long term gain and capital appreciation, with investments not subject to investment limitations of GASB.

(2) Limitations on investment of Debt Service Sinking Fund. No more than ten percent of the Fund may be invested in any single stock, bond, instrument, entity, company, fund or project. Additionally, no more than ten percent of the Fund shall be cumulatively invested in any single stock, bond, company or project.

(3) Trustee of Debt Service Sinking Fund. The Tribe shall appoint a trustee for the Fund, who shall be selected by the Tribal Business Committee and approved by the Tribal Council. The Trustee shall be an individual qualified and experienced in managing and investing funds, but such Trustee shall consult and work with the necessary institutional Trustees to establish a balanced portfolio for the Fund. After appointment by the Tribal Council, the Trustee, or Trustees, and Tribe shall enter into a Trust Agreement setting forth the terms and conditions of the Trust and the duties of the Trustee and provisions for removal and appointment of a substitute Trustee or Trustees by the Tribe.

(Ord. No. 355, 10-1-2004)

Sec. 16C-15. Housing Infrastructure Fund.

(a) The Tribal Council shall create and fund a separate Housing Infrastructure Fund with net gaming revenues as set forth in section 16C-9. The purpose of this Fund shall be to provide funding to assist Tribal members in obtaining adequate housing infrastructure, to provide contract surveying, and to provide road construction into new housing development areas and water and sewer construction into new housing development areas..

(b) The net gaming revenues provided to the Housing Infrastructure Fund under section 16C-9 shall be allocated as follows: one half of these revenues shall be used to assist members in obtaining adequate housing infrastructure; one-quarter of these revenues shall be used for contract surveying; and one-quarter of these revenues shall be used to provide road construction into new housing development areas and water and sewer construction into new housing development areas.

(c) Prior to October 1 of each fiscal year, the Principal Chief and Tribal Council shall: (1) evaluate the Housing Infrastructure Fund and the objectives it serves to determine if the objectives are being met; and (2) create and approve a plan addressing how, in the next year, the money in the fund will be expended, priorities for expenditure, and other relevant details.

(Ord. No. 355, 10-1-2004; Ord. No. 626, 2-23-2005)

Sec. 16C-16. Higher Education Fund.

The Tribal Council shall create and fund a separate Higher Education Funding Program with net gaming revenues as set forth in section 16C-9. The purpose of this Program shall be to provide funding to assist enrolled members with their higher education needs. In each fiscal year, a minimum of ten percent of the net gaming revenues that are distributed to the Higher Education Fund shall then be distributed to a Higher Education Endowment Fund. The Higher Education Committee, in conjunction with the Finance Department, shall establish the criteria for distributions from the Higher Education Endowment Fund.

(Ord. No. 355, 10-1-2004)

See. 16C-17. Capital Improvement Program (CIP).

The Tribal Council shall create and fund a separate Capital Improvement Program with net gaming revenues as set forth in section 16C-9. The purpose of this Fund shall be to provide for ongoing capital improvement of Tribal operations and programs.

(Ord. No. 355, 10-1-2004)

Sec. 16C-18. Cherokee Central School Assistance Fund.

The Tribal Council shall create and fund a Cherokee Central School Assistance Fund with net gaming revenues as set forth in section 16C-9. The purpose of this Fund shall be to implement the Cherokee Central Schools Strategic Plan and Facility Master Plan. At least 50 percent of this Fund shall be allocated toward implementing the Facility Master Plan. This Fund shall be administered by the Cherokee Central School Board.

(Ord. No. 355, 10-1-2004)

Sec. 16C-19. Health Program Supplemental Fund.

The Tribal Council shall create and fund a Health Program Supplemental Fund with net gaming revenues as set forth in section 16C-9. The purposes of this fund shall be:

(1) To purchase Medicare Part B insurance for eligible enrolled members;

(2) To assist enrolled members needing Priority 1 medical procedures not otherwise covered by the contract health services program at Cherokee Indian Hospital;

(3) To supplement funding for a wound care center to serve enrolled members;

(4) To supplement necessary dental services for enrolled members who are children;

(5) To purchase pharmaceuticals for enrolled members pursuant to guidelines to be established by the Health Board and Tribal Council as described below;

(6) To supplement funding shortfalls at the Cherokee Indian Hospital;

(7) To pay administrative expenses; and

(8) For such other health-related purposes as the Tribal Council may determine by resolution.

The health and medical division, in consultation with the Tribal health board, shall conduct a needs assessment and develop a plan for eligibility and other requirements for such programs, subject to final approval by the Tribal Council. Based on that plan, funds will be allocated to the various programs through the annual budget approval process. The Eastern Band shall be payer of last resort for all programs established to purchase medical services, and shall not be responsible for coverage except to the extent that funds are specifically appropriated by the Tribal Council.

(Ord. No. 355, 10-1-2004)

Sec. 16C-20. Tribal Housing Improvement Program Fund.

The Tribal Council shall create and fund a Tribal Housing Improvement Program with net gaming revenues as set forth in section 16C-9. The purpose of this Fund is to provide funding to alleviate the backlog of participants in the Housing Improvement Program (HIP) currently in place. This Fund shall be used in conjunction with existing HIP funding. This Fund shall be administered by the Tribal HIP Committee. Once the backlog of housing is eliminated, this program will be downgraded to an appropriate level of funding. After two years, this program shall cease.

(Ord. No. 355, 10-1-2004)

Sec. 16C-21. Tribal Housing Fund.

The Tribal Council shall create and fund a Tribal Housing Fund with net gaming revenues as set forth in section 16C-9. This fund shall be administered by the Qualla Housing Authority and shall be used to supplement the housing authority's mutual help housing program, the down payment assistance program, the tribal trailer program, and the home loan guaranty program.

(Ord. No. 355, 10-1-2004)

Sec. 16C.22. Amendments.

Except for technical amendments provided in section 16C-8, this chapter may be amended by action of the Tribal Council in a meeting at which a quorum is present by a majority vote of the Council membership.

(Ord. No. 355, 10-1-2004)

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