Chapter 5.25
PER CAPITA AND GENERAL WELFARE TRUSTS
Sections:
5.25.010 Findings and purpose.
5.25.030 Health, education and welfare payments.
5.25.010 Findings and purpose.
(1) Use of Gaming Revenues. The Tulalip Tribes (the “Tribes”) operates a gaming facility that provides revenues which, pursuant to the Indian Gaming Regulatory Act (“IGRA”), may be used:
(a) To provide per capita payments to members of the Tribes;
(b) To fund government operations or programs of the Tribes;
(c) To provide for the general welfare of the Tribes and its members;
(d) To promote the economic development of the Tribes; and
(e) To donate to charitable organizations.
(2) Gaming Allocation Plan. The Board of Directors of the Tulalip Tribes has approved a gaming allocation plan, which calls for per capita distributions from Class II and III IGRA regulated gaming revenues, pursuant to Section 11(b)(3) of the IGRA, 25 U.S.C. 2710(b)(3).
(3) Per Capita Distribution Requirements. Under the Tribes’ gaming allocation plan, the Tribes may use net revenues from Class II and III gaming activities to make per capita payments to Tribal members, if:
(a) The Tribes has prepared a plan to allocate revenues to uses under subsection (1) of this section;
(b) The gaming allocation plan is approved by the Secretary of the Interior;
(c) The interests of minors and other legally incompetent persons who are entitled to receive any per capita payments are adequately protected and preserved and the per capita payments are disbursed 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) General Welfare. General welfare payments were established by the Tribes in 2020 to assist tribal members with various life costs including adding general welfare payments to the non-IGRA subtrust accounts of minors and legally incompetent persons for future life costs.
(5) Establishment of Trusts. The purpose of this chapter is to establish and implement trusts for the protection and preservation of the interests of minors and other legally incompetent persons with regard to per capita and general welfare distributions called for herein. [Res. 2023-119; Res. 2016-383; Ord. 126 § 1, 8-6-2004 (Res. 2004-233)].
5.25.020 Definitions.
For purposes of this chapter:
(1) “Beneficiary” shall mean any individual who is entitled to receive a payment from trusts established by this chapter. Beneficiaries of an IGRA trust or non-IGRA subtrust must be members of the Tribes. Each beneficiary of an IGRA trust must also be a minor or legal incompetent at the time of the establishment of a trust interest for the beneficiary, and all contributions to the trust with respect to that beneficiary are made for the period that the beneficiary is a minor or legal incompetent.
(2) “Board of Directors” consists of the elected governing body of the Tribes.
(3) “IGRA trust” is a trust that an Indian tribe establishes under IGRA to receive and invest per capita payments for its members who are minors or legal incompetents pending distribution of the trust assets to those members after they attain the age of majority or cease to be legal incompetents.
(4) “IGRA trust contribution” shall refer to any per capita payment, or portion thereof, that is required to be deposited into an IGRA trust pursuant to the gaming allocation plan.
(5) “Legal incompetent” or “legally incompetent” shall, consistent with 25 CFR Section 290.2, mean an individual who is eligible to participate in a per capita payment under the Tribes’ gaming allocation plan or general welfare payment, and who has been declared to be under a legal disability, other than being a minor, by a court of competent jurisdiction.
(6) “Member” shall mean a member of the Tulalip Tribes who meets the requirements established by applicable Tribal law for enrollment in the Tribes and is listed on the Tribal rolls.
(7) “Minor” shall, consistent with 25 CFR Section 290.2, mean an individual who is eligible to participate in a per capita payment under the Tribes’ gaming allocation plan or general welfare payment, and who has not reached the age of 18 years.
(8) “Minors Trust Account Committee” shall be designated by the Board of Directors. The Committee shall review and make a recommendation to the Board for the following requests: requests for more than the maximum annual benefit or for the trust to be distributed in a lump sum; issues of minors not receiving benefits from their parent/guardian; distributions regarding health; and contested distributions from the trust accounts of a deceased minor or legal incompetent.
(9) “Non-IGRA subtrust” shall mean a subtrust established by the trustee in order to separately account for contributions and earnings thereon which are made on behalf of a beneficiary and which are derived from sources that are not regulated by IGRA, including, without limitation, those benefits set forth in 25 U.S.C. 117a, 117b, 403a, 415, 1407, and 1408. Except as otherwise provided herein, non-IGRA subtrusts shall be administered in the same manner as IGRA trusts.
(10) “Per capita payment” shall, consistent with 25 CFR Section 290.2, mean the distribution of money or other thing of value to all members of the Tribes, or to identified groups of members, which is paid directly from the net revenues of any Tribal gaming activity. This definition does not apply to payments which have been set aside by the Tribes for special purposes or programs, such as payments made for social welfare, medical assistance, education, housing or other similar, specifically identified needs. In no event shall the term include compensation for services.
(11) “Tax free deferred stipend program” are funds deriving from the tax free deferred stipend for general welfare program that are received in trust at 100 percent of that program’s rate and equal to the amount received by the parent or guardian of a minor for current needs. At the time of deposit the Tulalip Tribes will inform the trust company that this money is nontaxable.
(12) “Treasurer” means the Treasurer of the Tribes.
(13) “Tribes” shall refer to the Tulalip Tribes, which qualifies as an “Indian tribe” within the meaning of IGRA, 25 U.S.C. 2703(5).
(14) “Trust” shall refer to any trust or trusts established pursuant to TTC 5.25.050. Except as expressly provided to the contrary with regard to a specific trust or portion thereof, all trusts established herein are IGRA trusts or non-IGRA subtrusts.
(15) “Trustee” shall mean the person, entity, or committee appointed to serve as the trustee to any trusts established pursuant to TTC 5.25.050(1), and any successors pursuant to TTC 5.25.050(11). The Board shall establish minimum qualifications for the trustee. [Res. 2023-119; Res. 2016-383; Ord. 126 § 2, 8-6-2004 (Res. 2004-233)].
5.25.030 Health, education and welfare payments.
(1) Gaming Allocation Plan. The gaming allocation plan shall allow for disbursement of per capita funds necessary for the day-to-day health, education or welfare of a minor or other legally incompetent member, as called for in TTC 5.25.010(3)(c), and as may be required for compliance with IGRA; provided, that once an IGRA trust contribution is deposited into trust, no disbursement of trust assets shall be made to a minor before the minor satisfies the disbursement requirements of TTC 5.25.050(2)(a). Disbursement of trust assets to a legally incompetent member for health, education or welfare payments are governed by TTC 5.25.050(2)(b). Any election procedures authorized by the gaming allocation plan which would allow per capita payments to be used for health, education or welfare assistance in lieu of becoming an IGRA trust contribution: (a) shall contain limitations on the amount available for health, education and welfare assistance, (b) shall contain restrictions designed to prevent premature taxation under the IRS principles of economic benefit and constructive receipt, to the extent then applicable, and (c) shall require the parent or guardian to maintain adequate records to verify that expenditures of the disbursement were for the health, education or welfare of the minor or legally incompetent member. A parent or guardian who fails to meet the requirements for receiving health, education or welfare payments herein shall be responsible for reimbursing the trust any amounts which would have otherwise been treated as IGRA trust contributions, and shall be subject to such further remedies as are provided in TTC 5.25.050(2)(a)(ii) and (b)(ii).
(2) Trust Distributions. Any per capita payments not applied toward a health, education or welfare assistance through the gaming allocation plan health, education or welfare distribution policy, as set forth in subsection (1) of this section, shall be placed into trust and shall thereafter be subject to the distribution restrictions set forth in TTC 5.25.050(2)(a)(i) and (ii) as applied to minors, or TTC 5.25.050(2)(b)(ii) as applied to legally incompetent members. [Res. 2023-119; Res. 2016-383; Ord. 126 § 3, 8-6-2004 (Res. 2004-233)].
5.25.040 Taxation.
(1) Grantor Trusts. The Tribes shall be treated as the grantor and owner of any trusts established herein.
(2) IGRA Trust Taxation. The beneficiaries of an IGRA trust will not be required to include per capita payments received by the trust, and any earnings on the per capita payments, in gross income until the taxable year that the beneficiaries actually or constructively receive the amounts under Section 451 and the regulations thereunder.
(3) Non-IGRA Trust Taxation. Nothing herein shall alter or waive any exemption from taxation or resource inclusion to which the Tribes or any member may be entitled at law with regard to non-IGRA subtrusts established hereunder, which are derived from nongaming revenues, including, without limitation, those benefits set forth in 25 U.S.C. 117a, 117b, 403a, 415, 1407, and 1408. [Res. 2023-119; Res. 2016-383; Ord. 126 § 4, 8-6-2004 (Res. 2004-233)].
5.25.050 Trusts.
(1) Establishment of Trusts.
(a) The Tribes hereby shall deposit with the trustee in trust all IGRA trust contributions to which a minor or other legally incompetent member may become entitled to receive in trust pursuant to the Tribes’ gaming allocation plan, which amounts shall become the principal of the trust to be held, administered and disposed of by trustee as provided in this chapter.
(b) The trust hereby established shall be irrevocable.
(c) The trust is intended to be a grantor trust, of which the Tribes is the grantor, within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Internal Revenue Code of 1986, as amended, and shall be construed accordingly.
(d) The principal of the trust, and any earnings thereon, shall be held separate and apart from other funds of the Tribes and, except as provided in subsection (3) of this section, shall be used exclusively for the uses and purposes of trust beneficiaries. Trust beneficiaries shall have no preferred claim on, or any beneficial ownership interest in, any assets of the trust. Any rights created under this chapter shall be mere unsecured contractual rights of beneficiaries against the Tribes.
(e) A beneficiary’s trust funds may be combined in a single trust with the trust funds of other beneficiaries (separately accounted for), or may be maintained through separate trusts or subtrusts.
(f) The Tribes, in its sole discretion, may at any time, or from time to time, make additional deposits of cash or other property in trust with trustee to augment the principal to be held, administered and disposed of by trustee as provided in this chapter. Neither trustee nor any trust beneficiary shall have any right to compel such additional deposits except as may otherwise be provided in the gaming allocation plan.
(g) The trusts established hereunder are valid under applicable law, and all of the material terms and provisions of the trust are enforceable under said laws.
(h) The Tribes, in its sole discretion, may at any time, or from time to time, make deposits of cash or other property in trust on behalf of beneficiaries which are not derived from gaming revenues, including, without limitation, from sources governed by 25 U.S.C. 117a, 117b, 403a, 415, 1407 and 1408. Such deposits, and earnings thereon, shall be maintained and accounted for as separate non-IGRA subtrusts.
(2) Payments to Trust Beneficiaries – Health, Education and Welfare Provisions. Trust benefits shall be paid to beneficiaries as follows:
(a) Minors.
(i) General Rule. The trustee shall commence distribution of trust benefits to a minor beneficiary after completion of an approved financial education class and within 30 days following the later of: (A) his or her attainment of the age of 18, or (B) the date he or she receives a high school diploma or GED. Benefits which are postponed as a result of the minor beneficiary not having received his or her high school diploma or GED shall be paid in any event within 30 days following his or her attainment of the age of 22.
(ii) Health and Welfare Hardship Payments. Trust benefits shall not be available for early disbursement unless the minor has: (A) a terminal medical condition, or (B) a documented serious medical condition requiring long-term care. If a guardian or parent makes a request for disbursement herein, it shall not be approved unless it is accompanied by a full written explanation of the circumstances that justify the disbursement. Failure to provide the aforementioned information to the Tribes upon request shall be grounds for the Tribes to discontinue per capita payments to the guardian or parent, and for the trustee to cease further disbursements to the guardian or parent. A guardian or parent who fails to use proceeds distributed under this section for the health, education or welfare of the beneficiary shall be required to reimburse such distributions through deposit into the trust. The Tribes may apply per capita payments owed to the guardian or parent to restore the trust for any such improper distribution.
(b) Legal Incompetents.
(i) General Rule. The trustee shall commence distribution of trust benefits of a legal incompetent within 30 days following the date the beneficiary is no longer legally incompetent.
(ii) Health, Education and Welfare Payments. To provide for the day-to-day health, education or welfare of a legally incompetent member, a parent or guardian may make requests for disbursement from the trust to provide for the health, education and welfare of the legal incompetent. If a guardian or parent makes a request for a disbursement from the trust, it shall not be approved unless it is accompanied by a full written explanation of the circumstances that justify the disbursement. The parent or guardian making such a request shall also have the responsibility for maintaining adequate records to verify that expenditures of the disbursement were for the health, education or welfare of the legal incompetent. Failure to provide the aforementioned information to the Tribes or court with jurisdiction over the guardianship upon request shall be grounds for the Tribes to discontinue per capita payments to the guardian or parent, and for the trustee to cease further disbursements to the guardian or parent. A guardian or parent who fails to use trust proceeds distributed under this section for the health, education or welfare of the beneficiary shall be required to reimburse such distributions through deposit into the trust. The Tribes may apply per capita payments owed to the guardian or parent to restore the trust for any such improper distribution.
(c) Form of Distribution. Trust benefits shall be paid in annual installments in accordance with the minors trust policy beginning in the first year of 25 percent of the balance of the minor trust account, the second year distribution will be 33 percent of the trust account balance, the third year will be 50 percent of the trust account balance (maximum annual benefit), the fourth year shall be the remaining account balance. The Board of Directors pending a recommendation of the Minors Trust Account Committee, in its discretion, but pursuant to uniform and nondiscriminatory guidelines designed to promote the health, education or welfare of beneficiaries, may also waive the maximum annual benefit limitations for any beneficiary who otherwise meets the criteria for full benefit payments hereunder. The trustee shall make provisions for the reporting and withholding of any taxes that may be required to be withheld with respect to the payment of benefits pursuant to the terms of the trust, and the trustee shall be responsible for ensuring that amounts so withheld are paid to the appropriate taxing authorities and that any reports necessitated by any distribution or withholding hereunder are filed with the appropriate authorities.
(d) Use of Tribal Funds. The Tribes may make payment of benefits directly to trust beneficiaries as they become due under the terms of this chapter. The Tribes shall notify the trustee of its decision to make payment of benefits directly prior to the time amounts are payable to beneficiary. In addition, if the principal of the trust, and any earnings thereon, are not sufficient to make payments of benefits in accordance with the terms of this chapter, the Tribes shall make the balance of each such payment as it falls due. Trustee shall notify the Tribes where principal and earnings are not sufficient.
(e) IGRA Tax Notice. The trustee shall ensure that the beneficiary of a distribution from any IGRA trust is provided a notice of tax liability as required by 25 U.S.C. 2710(b)(3)(D).
(f) Intestate Succession. If a minor or legal incompetent (the “deceased beneficiary”) dies before his or her trust account is fully paid, the then-remaining trust benefits shall become payable to the first successor beneficiary or beneficiaries who so qualify in the following order of preference: (i) the individual(s) designated by the minor beneficiary if they reached the age of majority unless they have a child(ren) after signing the beneficiary designation form, then the child(ren) shall inherit; (ii) to the deceased beneficiary’s spouse, if any, as of the date of his or her death; or (iii) if no spouse is then living or qualifies as a beneficiary hereunder, to the deceased beneficiary’s issue, including any legally adopted child or children, in equal shares by right of representation; or (iv) if no spouse or issue, including any legally adopted child or children, is then living or qualifies as a beneficiary hereunder, to the deceased beneficiary’s parents, in equal shares by right of representation; or (v) if no spouse, issue, or parent is then living or qualifies as a beneficiary hereunder, to the deceased beneficiary’s sibling or siblings, in equal shares by right of representation; or (vi) if no spouse, issue, parent, or sibling is then living or qualifies as a beneficiary hereunder, to the deceased beneficiary’s grandparents, in equal shares by right of representation; or (vii) if no spouse, issue, parent, sibling, or grandparent is then living or qualifies as a beneficiary, all remaining trust benefits shall be paid to the Tribes. A successor beneficiary shall have no greater rights or claim on trust assets than were held by the deceased beneficiary as of the date of his or her death. Trust benefits will not be disbursed for at least three months after the passing of the deceased beneficiary. Any trust benefits which become payable to a beneficiary who is not a minor or legal incompetent shall be paid in a single lump sum after review, approval, and processing by the Board or its designee. If the beneficiary is also a minor or legal incompetent, the trust benefits shall be retained in trust pursuant to all terms and conditions of this chapter, including, without limitation, the distribution restrictions of this section.
(i) Variance. If the parent(s), guardian(s), or an immediate family member(s) of the deceased have evidence of extenuating circumstances which justify a variance to the succession of funds, then they may request a variance to the succession through the appeal process in the minor’s trust policy.
(ii) Contributing to the Death of the Deceased. If a successor heir committed a wrongdoing that is directly related to the death of the individual from whom they would inherit under this chapter, and they are criminally or civilly convicted in a court of law of the wrongdoing shall be considered and if found to be a contributing factor the successor shall be barred from receiving any inheritance. If a successor heir is criminally charged for contributing to the death of the deceased beneficiary prior to the trust benefits being distributed the benefits will be held pending outcome of the criminal matter.
(3) Responsibility Regarding Payments to Trust Beneficiary When the Tribes Is Insolvent.
(a) The trustee shall cease payment of benefits to trust beneficiaries if the Tribes is insolvent. The Tribes shall be considered “insolvent” for purposes of this chapter if (i) the Tribes becomes subject to a pending proceeding as a debtor under the United States Bankruptcy Code, or (ii) the Courts of the Tribes determine both that the Tribes’ liabilities exceed its assets, and, as a result, the Tribes is unable to meet its financial obligations, through credit or otherwise, without concessions from the Tribes’ general creditors.
(b) Any assets held by the trust will be subject to the claims of the Tribes’ general creditors under Federal and other applicable law in the event of insolvency, as defined in subsection (3)(a) of this section.
(i) The Treasurer of the Tribes shall have the duty to inform the trustee in writing of the Tribes’ insolvency. If a person claiming to be a creditor of the Tribes alleges in writing to the trustee that the Tribes has become insolvent, the trustee shall determine whether the Tribes is insolvent and, pending such determination, the trustee shall discontinue payment of benefits to trust beneficiaries.
(ii) Unless the trustee has actual knowledge of the Tribes’ insolvency, or has received notice from the Tribes or a person claiming to be a creditor alleging that the Tribes is insolvent, the trustee shall have no duty to inquire whether the Tribes is insolvent. The trustee may in all events rely on such evidence concerning the Tribes’ solvency as may be furnished to it and that provides the trustee with a reasonable basis for making a determination concerning the Tribes’ solvency.
(iii) If at any time the trustee has determined that the Tribes is insolvent, the trustee shall discontinue payments to trust beneficiaries and the trustee shall hold the assets of the trust for the benefit of the Tribes’ general creditors; provided, that (A) nothing in this chapter shall in any way diminish any rights of trust beneficiaries to pursue their rights as general creditors of the Tribes with respect to benefits due under the trust, the gaming allocation plan or otherwise, and (B) nothing herein shall enhance or grant independent claim rights to the Tribes’ general creditors that they otherwise would not have against the Tribes or its assets.
(iv) The trustee shall resume the payment of benefits to trust beneficiaries in accordance with subsection (2) of this section only after the trustee has determined that the Tribes is not insolvent (or is no longer insolvent) or after the legal claims of general creditors are satisfied (through payment or dismissal).
(c) Provided that there are sufficient assets, if the trustee discontinues the payment of benefits from the trust pursuant to subsection (3)(b) of this section and subsequently resumes such payments, the first payment following such discontinuance shall include the aggregate amount of all payments due to trust beneficiaries for the period of such discontinuance, less the aggregate amount of any payments made to trust beneficiaries by the Tribes in lieu of the payments provided for hereunder during any such period of discontinuance.
(d) In the event that any payments hereunder are discontinued (and not made up under subsection (3)(c) of this section or otherwise) the trust beneficiaries shall have (to the extent permitted under applicable law) a continuing claim against the Tribes for the remaining benefits due under the trust and/or the gaming allocation plan.
(4) Payments to the Tribes. Except as provided in subsection (3) of this section, the Tribes shall have no right or power to direct the trustee to return to the Tribes or to divert to others any of the trust assets before all payment of benefits have been made to trust beneficiaries pursuant to the terms of the trust and the gaming allocation plan.
(5) Investment Authority.
(a) In no event may trustee invest in securities (including stock or rights to acquire stock or obligations issued to acquire stock) or obligations issued by the Tribes, other than a de minimis amount held in common investment vehicles in which trustee invests. All rights associated with assets of the trust shall be exercised by trustee or the person designated by trustee, and shall in no event be exercisable by or rest with trust beneficiaries.
(b) In the investment, administration, and distribution of the trust fund, the trustee, subject to the duty to apply the proceeds and avails of the trust to the purposes specified in the gaming allocation plan and this chapter and subject to the restrictions of applicable law, may perform every act in the management of the trust that individuals may perform in the management of like property owned by them free of any trust, and exercise every power with respect to each item of property in the trust, real and personal, which individual owners of like property can exercise.
(c) The Board may designate an investment manager to direct the trustee regarding the management, acquisition and distribution of all or part of the assets of the trust. The trustee shall be under no duty or obligation to review any investments to be acquired, held or disposed of pursuant to such directions, nor make any recommendations with respect to the disposition or continued retention of any such investment or the exercise or nonexercise of any such investment powers. The trustee shall have no liability or responsibility for acting pursuant to the directions of, or for failing to act in the absence of any directions from, the investment manager.
(d) The Board may further adopt an investment policy, from time to time, which may allow the parent or guardian of a beneficiary to direct the trustee regarding the investment of all or part of the trust assets attributable to that beneficiary; provided, that said investment direction shall be limited to investment selections or fund options approved and authorized by the Board, consistent with the purposes of this chapter. The trustee shall be under no duty or obligation to review any investment directions called for herein. However, the trustee shall retain investment authority not otherwise assumed by a parent or guardian hereunder. Any investment policy approved by the Board, as the same may be amended from time to time, shall specify the investment or fund options available, the frequency of changes in investment selections, and the procedures for implementing such elections and changes. A parent or guardian electing to direct investments as provided herein assumes all responsibility for the selections and changes made. The Board retains authority to terminate, modify, or rescind any investment policy allowing investment direction hereunder if it determines, in its sole discretion, that such action is in the best interests of beneficiaries and consistent with the purposes of this chapter.
(e) The Tribes shall have the right at any time and from time to time, in its sole discretion, to substitute assets of equal fair market value for any asset held in the trust. This right is exercisable by the Tribes in a nonfiduciary capacity without the approval or consent of any person in a fiduciary capacity.
(6) Disposition of Income. During the term of this trust, all income received by the trust, net of expenses and taxes, shall be accumulated and reinvested.
(7) Accounting by Trustee – Beneficiary Statements.
(a) Trustee shall keep accurate and detailed records of all investments, receipts, disbursements, and all other transactions required to be made in accordance with this chapter and the gaming allocation plan, including such specific records as shall be agreed upon in writing between the Tribes and/or the Treasurer, and trustee. Within a reasonable period following the close of each calendar year and within 30 days after the removal or resignation of trustee, trustee shall, upon request, deliver to the Treasurer a written account of its administration of the trust during such year or during the period from the close of the last preceding year to the date of such removal or resignation, setting forth all investments, receipts, disbursements and other transactions effected by it, including a description of all securities and investments purchased and sold with the cost or net proceeds of such purchases or sales (accrued interest paid or receivable being shown separately), and showing all cash, securities and other property held in the trust at the end of such year or as of the date of such removal or resignation, as the case may be.
(b) The trustee shall maintain separate accounts and records as necessary to account for any non-IGRA subtrusts, including historic principal contributed, principal distributions taken, and earnings/losses on such accounts as may be necessary to account for and retain the tax character of those contributions.
(c) Within 30 days following the end of each calendar year, or such shorter period, such as each calendar month or quarter, as shall be designated by the Board (the “reporting period”), the trustee shall distribute account balance statements with regard to each beneficiary, detailing the contributions, distributions, investment performance and all other account activity with regard to the beneficiary’s account occurring in the reporting period just ended. Account statements shall also be available to parents or guardians upon request.
(8) Responsibility of Trustee.
(a) Trustee shall act with the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims; provided, however, that the trustee shall incur no liability to any person for any action taken pursuant to a direction, request or approval given by the Tribes which is contemplated by, and in conformity with, the terms of the gaming allocation plan or this chapter. In the event of a dispute concerning the gaming allocation plan or this chapter, the trustee may apply to the Tulalip Tribal Court to resolve the dispute.
(b) If trustee undertakes or defends any litigation arising in connection with this trust, the Tribes agrees to indemnify the trustee against the trustee’s costs, expenses and liabilities (including, without limitation, attorneys’ fees and expenses) relating thereto and to be primarily liable for such payments; provided, that the Tribes shall be under no obligation to indemnify the trustee for its own negligence or willful misconduct; and provided further, that all litigation actions and defenses for which the Tribes owes a duty of indemnity shall be coordinated through and authorized by the Tribes’ Office of the Reservation Attorney, or successor thereto.
(c) Trustee may hire agents, accountants, actuaries, investment advisors, financial consultants or other professionals to assist it in performing any of its duties or obligations hereunder; provided, that expense reimbursement shall be subject to subsection (9) of this section.
(d) Trustee shall have, without exclusion, all powers conferred on trustees by applicable law, unless expressly provided otherwise herein; provided, however, that if an insurance policy is held as an asset of the trust, trustee shall have no power to name a beneficiary of the policy other than the trust, to assign the policy (as distinct from conversion of the policy to a different form) other than to a successor trustee, or to loan to any person the proceeds of any borrowing against such policy.
(e) Notwithstanding any powers granted to trustee pursuant to this trust agreement or to applicable law, trustee shall not have any power that could give this trust the objective of carrying on a business and dividing the gains therefrom, within the meaning of Section 301.7701-2 of the Procedure and Administrative Regulations promulgated pursuant to the Internal Revenue Code.
(9) Compensation and Expenses of Trustee. The Tribes shall pay all administrative and trustee’s fees and expenses, in accordance with a fee agreement approved by the Board.
(10) Resignation and Removal of Trustee.
(a) A trustee may resign at any time by written notice to the Tribes, which shall be effective 30 days after receipt of such notice unless the Tribes and trustee agree otherwise.
(b) A trustee may be removed by the Tribes on 30 days’ notice or upon shorter notice accepted by trustee and a trustee may be removed without notice for cause.
(c) Upon resignation or removal of trustee and appointment of a successor trustee, all assets shall subsequently be transferred to the successor trustee. The transfer shall be completed within 30 days after receipt of notice of resignation, removal or transfer, unless the Tribes extends the time limit.
(d) If trustee resigns or is removed, a successor shall be appointed, in accordance with subsection (11) of this section, by the effective date of resignation or removal under subsection (10)(a) or (b) of this section. If no such appointment has been made, trustee may apply to the Tulalip Tribal Court for appointment of a successor or for instructions. All expenses of trustee in connection with the proceeding shall be allowed as administrative expenses of the trust.
(11) Appointment of Successor.
(a) If trustee resigns or is removed in accordance with subsection (10)(a) or (b) of this section, the Tribes may appoint a successor who satisfies the requirements of TTC 5.25.020(14). The appointment shall be effective when accepted in writing by the new trustee, who shall have all rights and powers of the former trustee, including ownership rights in the trust assets. The former trustee shall execute any instrument necessary reasonably requested by the Tribes or the successor trustee to evidence the transfer.
(b) The successor trustee need not examine the records and acts of any prior trustee and may retain or dispose of existing trust assets as provided herein. The successor trustee shall not be responsible for and the Tribes shall indemnify and defend the successor trustee from any claim or liability resulting from any action or inaction of any prior trustee or from any other past event, or any condition existing at the time it becomes successor trustee.
(12) Amendment or Termination.
(a) This chapter may be amended by resolution of the Board. Notwithstanding the foregoing, no such amendment shall conflict with the terms of the gaming allocation plan or shall make the trust revocable.
(b) The trust shall not terminate until the date on which trust beneficiaries are no longer entitled to benefits pursuant to the terms of the gaming allocation plan. Upon termination of the trust any assets remaining in the trust shall be returned to the Tribes.
(13) Miscellaneous.
(a) Any provision of this chapter prohibited by law shall be ineffective to the extent of any such prohibition, without invalidating the remaining provisions hereof.
(b) Benefits payable to trust beneficiaries under this chapter may not be anticipated, assigned (either at law or in equity), alienated, pledged, encumbered or subjected to attachment, garnishment, levy, execution or other legal or equitable process.
(c) This trust shall be governed by and construed in accordance with the laws of the Tulalip Tribes.
(d) Nothing herein shall be deemed a waiver of sovereign immunity. Nor shall anything herein be construed to grant general creditors of the Tribes a right to assets not otherwise available to them at law or in equity.
(14) Effective Date. The effective date of the trust(s) set forth herein shall be September 1, 2004; provided, that the commencement of contributions, investment and elections may be postponed until the first per capita distribution period following proper coordination of initial trust, investment and other administrative responsibilities. [Res. 2023-119; Res. 2016-383; Ord. 126 § 5, 8-6-2004 (Res. 2004-233)].
5.25.060 Dispute resolution.
(1) Disputes Over Trust Administration and Disbursements.
(a) Initial Claim. Any individual who disagrees with the manner in which a trust is administered or in which a disbursement issue is processed shall present a written claim to the trustee, setting forth in detail: (i) the act or omission which is the subject of his or her disagreement, (ii) all individuals or accounts impacted by the act or omission, (iii) the support (legal or otherwise) for said disagreement, (iv) a summary of informal attempts that have been made to resolve the claim and the outcome of those results, and (v) an explanation of the specific relief being sought. The trustee shall respond to a properly submitted claim within 30 days after receiving the written claim letter, containing all required information as set forth above. If the trustee does not respond, the claim shall be deemed denied and the claimant may proceed to the next level of review.
(b) Appeal. A claimant who remains dissatisfied after exhausting the claim procedures set forth in subsection (1)(a) of this section may submit a written request for appeal, before the Minors Trust Account Committee. The Committee shall make a recommendation to the Board of Directors who shall decide all disputes arising out of or relating to trust administration and disbursements. The Committee is granted discretion to construe and interpret this chapter. All individuals aggrieved by a decision or event involving trust administration or disbursements shall first exhaust all claim and appeal rights offered by the trustee. A majority of the panel shall constitute a quorum and decisions shall be made by a majority of the panel. A claimant must submit their appeal in writing to the Enrollment Director no more than 30 days after the date of the decision or event being contested. Failure to do so shall be treated as a consent to the prior decision or event.
(c) Judicial Review. The decision of the dispute resolution panel shall be final and not subject to judicial review.
(2) Disputes Over Gaming Allocation Plan. Any dispute arising out of the gaming allocation plan must be resolved through the dispute resolution procedures set forth in the gaming allocation plan, as the same may be amended from time to time. [Res. 2023-119; Res. 2016-383; Ord. 126 § 6, 8-6-2004 (Res. 2004-233)].