HO-CHUNK NATION CODE (HCC)

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TITLE 4 – CHILDREN, FAMILY AND ELDER WELFARE

SECTION 17 –GENERAL WELFARE EXCLUSION ORDINANCE

ENACTED BY LEGISLATURE: April 28, 2020

LAST AMENDED: September 21, 2021

CITE AS: 4 HCC § 17

TABLE OF CONTENTS

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24.

25.

Authority

Findings

Purpose

Goals

General

Definitions

Ratification of Prior Acts; Intent of Legislation

General Welfare Doctrine; Rules of Construction

Non-Resource Designation

Federal Trust Obligations; Executive Orders

Indian General Welfare Benefits (Code Section 139E)

Safe Harbor Program

Programs Meeting the General Test

Purpose

Eligibility and Application Procedures

Limited Use of Assistance; Substantiation

Limitation on Payments; Annual Budgeting

Forfeiture of General Welfare Assistance

Programs not Limited to Means Testing

Privacy, Information Sharing

Government-to-Government Relationships; Executive Order

Other Tax Exemptions

Garnishments

Governing Law

Severability

1. Authority.

a. Article V, Section 2(a) of the Constitution of the Ho-Chunk Nation (“Constitution”)

grants the Legislature the power to make laws, including codes, ordinances, resolutions, and

statutes.

b. Article V, Section 2(b) of the Constitution grants the Legislature the power to establish

Executive Departments, and to delegate legislative powers to the Executive Branch to be

administered by such Departments, in accordance with the law; any Department established by

the Legislature shall be administered by the Executive; the Legislature reserves the power to

review any action taken by virtue of such delegated power.

c. Article V, Section 2(d) of the Constitution grants the Legislature the power to authorize

expenditures by law and appropriate funds to the various Departments in an annual budget.

d. Article V, Section 2(i) of the Constitution grants the Legislature the power to negotiate

and enter into treaties, compacts, contracts, and agreements with other governments,

organizations, or individuals.

e. Article V, Section 2(s) of the Constitution grants the Legislature the power to promote

public health, education, charity, and such other services as may contribute to the social

advancement of the members of the Ho-Chunk Nation.

2. Findings. The Legislature of the Ho-Chunk Nation states the following findings:

a. Overcrowding, homelessness, home affordability, homeowner’s

maintenance/responsibility, credit/fiscal responsibility and access to financing continue to be

critical problems faced by Tribal Members.

b. It is a high priority of the Nation and its government to address the housing needs all

tribal members who have acted as the principal keepers of traditions and culture, which the

Nation generously recognizes and appreciates.

c. Federal housing programs have generally proven inadequate and poorly designed from

the perspective of the material, cultural, and social needs of the Nation and its Tribal members.

The needs of the Nation require the expenditure of resources to provide housing programs thus

allowing Tribal members the opportunity to realize a safe, and affordable, and pleasant home

environment.

d. The use of gaming revenues to provide adequate housing is deemed a priority.

3. Purpose. This Act establishes the Ho-Chunk Nation's Housing for the General Welfare of

Veterans, Elders and Non-Elders to be administered by the Department of Housing. The Act sets

forth the regulatory scope and authority of home ownership terms which the Nation provides for

the benefit of Ho-Chunk Nation members, and the necessary organizational policies which are

administered under the Department of Housing.

4. Goals. The goals of the Housing for the General Welfare of Veterans, Elders and Non-Elders

are as follows:

a. Establish a system to ensure Ho-Chunk Nation Veterans, Elders and Non-Elders who

are proved to be financially responsible are served the earliest.

b. Ensure fair administrative guidelines, educational and counseling assistance to assist

Ho-Chunk Nation members with achieving home ownership.

c. Establish a fair and consistent enforcement policy to cooperatively resolve issues with

regard to payment delinquencies and other defaults in order to avoid legal remedies if possible,

yet protect the Nation’s financial interests.

5. General. This Ordinance shall be known as the Ho-Chunk Nation General Welfare Ordinance.

a. Purpose – The first purpose of this Ordinance is to memorialize the procedures used by

the Nation to determine what services or programs are needed to promote public health, safety

and other basic need services for the promotion of the general welfare of the Nation such as

sewer, water, electrical service / power, infrastructure, housing, public sanitation services, public

education and other such functions that support the long historical and cultural general welfare of

the Nation. The second purpose of this Ordinance is to establish basic guidelines and procedures

for programs to follow in ensuring compliance with the general welfare doctrine and Internal

Revenue Code Section 139E.

b. Intent - The Ho-Chunk Nation ("Nation"), a federally recognized Indian Nation,

exercises its inherent rights of sovereignty to promote the general welfare of the Nation, its selfdetermination, culture, and tradition, by providing general welfare assistance, including Indian

general welfare benefits within the meaning of Internal Revenue Code Section 139E. Both the

United States Congress, through its enactment of the Tribal General Welfare Exclusion Act of

2014, and the Internal Revenue Service, through its traditional application of the general welfare

doctrine, have long recognized the sovereign right of Indian tribal governments to provide

financial assistance to individuals under certain circumstances on a non-taxable basis. This

Ordinance is intended to affirm the Nation’s inherent sovereign rights to promote the general

welfare of the Nation and provide qualifying assistance and program benefits on a tax free basis.

In this regard, the Constitution of the Nation confirms the sovereign duty and responsibility of

the Ho-Chunk Nation to maintain the culture and independence of its members, to encourage the

economic well-being of its members, and to promote the rights of its members and their common

welfare. The Assistance authorized by this Ordinance is intended to qualify for tax free treatment

to the fullest extent permitted at law. Without limitation, the following benefits shall be treated

as non-taxable hereunder:

(1) Benefits that satisfy the requirements for exemption under Code Section

139E;

(2) Benefits that are provided under an IRS Safe Harbor Program;

(3) Benefits that qualify for exclusion under the IRS General Test; or

(4) Benefits that meet another express exemption under the Internal Revenue

Code, such as the exemption provided for tribal medical expenses under Internal Revenue

Code Section 139D, or that meet other recognized exemptions including, for, example,

resource or land-based exemptions under 25 U.S.C. Sections 117a-b, 1407 and 1408.

6. Definitions. In construing the provisions of this Ordinance, the following words and

phrases shall have the meanings designated in this section unless a different meaning is expressly

provided or the context provides otherwise.

a. “Assistance” Any Program benefits or payments that qualify for tax free treatment

under the General Welfare Exclusion.

b. “Beneficiary” Any person or persons entitled to receive Assistance in accordance with

specific Program guidelines. Programs designed to qualify for exemption under Code Section

139E may benefit Members, spouses of a Member, and/or Dependents of a Member. Programs

designed to meet the Safe Harbor may benefit any Member or Qualified Nonmember.

c. “Code” means the Internal Revenue Code of 1986, as amended.

d. “Compensation” for services should reflect that qualifying Programs are not disguised

employment. However, this shall not prevent the Nation from structuring Programs with

community service ties so long as such ties are consistent with the General Welfare Exclusion.

For example, Programs similar to the Workforce Investment Act may include tax free

Assistance.

e. “Constitution” means the Constitution of the Ho-Chunk Nation.

f. ”General Welfare Exclusion” Assistance shall be treated as non-taxable so long as it

satisfies the requirements for exclusion under Code Section 139E, it is provided under a Safe

Harbor Program, or it meets the General Test.

g. “General Test” – Assistance will be treated as meeting the General Test under the

General Welfare Exclusion if the benefits are: (1) paid by or on behalf of an Indian Nation (2)

under a social benefit program, (3) based on either needs of the Indian community itself or upon

individual needs of the recipient (which need not be financial in nature), and (4) are not

Compensation for services or per capita payments.

h. “Lavish” or “Extravagant” Except as otherwise required for compliance with final

guidance issued under Code Section 139E following consultation, lavish and extravagant shall be

determined by the Tribal Legislature in its sole discretion based on all facts and circumstances,

taking into account needs unique to the Nation as well as the social purpose being served by the

particular Assistance at hand.

i. “Ordinance” means the General Welfare Ordinance.

j. “Pay” or “paid” or “payment” means pay or reimburse in whole or in part.

k. “Program” or “Approved Program” means any program established by or under

authority of the Tribal Legislature, including any program authorized through the annual budget

process, to provide Assistance hereunder. A program shall not fail to be treated as an Indian

tribal government Program solely by reason of the Program being established by tribal custom or

government practice.

l. “Promotion of the general welfare” or “Social benefit” should reflect a goal or goals

established by and in the sole discretion of the Tribal Legislature for the promotion of the general

welfare of the Nation, for example, in furtherance of tribal self-determination, culture and

tradition.

m. “Qualified Nonmember” means a spouse, former spouse, legally recognized domestic

partner or former domestic partner, ancestor, descendant, or Dependent of a member of the

Nation. Individual Tribal Programs may, but are not required to, cover Qualified nonmembers.

n. “Reservation” means the reservation of the Ho-Chunk Nation or, if the context so

permits, any other Indian reservation as defined in Internal Revenue Code Section 162(j).

o. “Safe Harbor Program” shall refer to a Program that meets the safe harbor

requirements set forth herein and IRS Revenue Procedure 2014-35, as the same may hereafter be

amended. Need shall be presumed for Assistance provided under a Safe Harbor Program.

p. “Service area” has the same meaning as in 25 C.F.R. Section 20.100.

q. “Service unit area” means an area designated for purposes of administration of Indian

Health Service programs under 42 C.F.R. Section 136.21(l).

r. “Self-determination” should be construed broadly to reflect traditional health,

education and welfare programs as well as unique cultural and traditional based programs and

economic development. See, e.g., PLR 199924026 (tax free business grants in part to promote on

reservation employment).

s. “Spouse” shall be determined in accordance with Tribal laws, customs and traditions.

t. “Tribal Legislature” or “Legislature” means the Ho-Chunk Nation Tribal Legislature.

7. Ratification of Prior Acts; Intent of Legislation. This Ordinance does not establish a new

program or programs. This Ordinance is intended to memorialize and confirm existing

procedures used in the administration of general welfare assistance programs and services and is

not to be construed as the creation of new general welfare assistance rights that previously did

not exist. Assistance provided prior to the enactment of this Ordinance is hereby ratified and

confirmed as general welfare assistance pursuant to the authority of the Tribal Constitution. It is

intended to establish a framework to improve the coordination of general welfare doctrine

compliance. Programs and services referred to herein must be authorized by independent action

of the Legislature or its designees.

8. General Welfare Doctrine; Rules of Construction. The Internal Revenue Service has

historically recognized that payments by a Tribal government to Tribal Members under a

legislatively provided social benefit program for the promotion of the general welfare of the

Nation are excludable from the gross income of those Tribal Members who receive said

payments. On December 5, 2011, the United States Treasury Department and IRS published

Notice 2011-94 as part of an initiative to conduct consultation on ways to improve guidance on

tribal general welfare matters. Notice 2011-94 invited comments from tribal governments

concerning the application of the general welfare exclusion to Indian tribal government

programs. The Nation participated in that process through comments and supported similar

efforts by the National Congress of American Indians, the United South and Eastern Nations,

Inc., the California Association of Tribal Governments and the Affiliated Nations of the

Northwest Indians, all seeking clarity with regard to the sovereign right of Nations to provide tax

free assistance based on non-financial need criteria including the preservation of culture and

tradition. On December 5, 2012, the IRS and Treasury Department issued Notice 2012-75

proposing new guidance and providing interim relief under the general welfare exclusion for

Programs that meet designated safe harbor rules. The Nation asserted all protections provided

under the proposed rule and made certain operational changes to Programs where possible to

secure additional Member protections under the interim relief. On June 3, 2014, the Treasury

Department issued final guidance in the form of Revenue Procedure 2014-35 confirming that

IRS will not tax Member Assistance that meets designated IRS safe harbor requirements. In

September of 2014, Nations and tribal organizations worked with the United States Congress to

clarify that Bills then pending in the House (H.R. 3043) and in the Senate (S.B. 1507) were in

fact intended to expand tribal general welfare exclusion rights and build upon the safe harbor and

general test relief previously recognized by the IRS. On September 17, 2014, Senators Moran

and Heitkamp, co-sponsors of S.B. 1507, engaged in a colloquy with the Chairman of the Senate

Finance Committee, Senator Wyden, on the Congressional Record of the Senate confirming their

understanding and intent that:

a. IRS would apply S.B. 1507 “no less favorable than the safe harbor approach provided

for in Revenue Procedure 2014-35, and that in no event will IRS require an individualized

determination of financial need where a tribal Program meets all other requirements of new

section 139E as added by the bill.”

b. The bill requires that “any ambiguities in new Code section 139E shall resolved by the

IRS in favor of Indian Tribal governments and deference shall be given to Indian Tribal

governments for programs administered and authorized by the Nation to benefit the general

welfare of the Tribal community.”

c. It “would be contrary to the intent of Congress” if IRS were to “take the occasion of

passage of H.R. 3043 or S. 1507 to retrench, narrow or possibly withdraw the administrative

guidance provided in Rev. Prc. 2014-35 after enactment of the bill.”

d. The Congressional intent “is to expand rather than restrict the safe harbor provisions in

Rev. Proc. 2014-35.”

e. “The purpose of this legislation is to further empower Tribal self-determination.”

f. “Tribal governments have a long history of providing critical benefits to Tribal

Members, and these programs are fundamental to the sovereignty and cultural integrity of

Nations. Nations, and not the IRS, are in the best position to determine the needs of their

members and provide for the general welfare of their tribal citizens and communities.”

On September 18, 2014, the Tribal General Welfare Exclusion Act of 2014 passed both houses

of Congress, and was signed into law on September 29, 2014. The Tribal Legislature now

expressly embraces the forgoing principles as an integral part of this Ordinance and as guiding

principles in construing the Nation’s compliance with Code Section 139E, the Safe Harbor

Rules, and the General Test. The assistance payments and services authorized by this Ordinance

are intended to qualify for favorable tax treatment under the general welfare doctrine to the

fullest extent permitted by law and shall be construed accordingly.

9. Non-Resource Designation. General welfare services and payments hereunder are paid from

assets of Tribal government; all payments are based on budget availability of the Tribal

government, and the Tribal government does not guarantee any payments hereunder. Benefits

paid hereunder on the basis of need shall not be treated as a resource of the Member for any

purpose. The Legislature reserves the right to cancel, adjust, modify or revoke any benefits that

are treated as a resource of the Tribal Member.

10. Federal Trust Obligations; Executive Orders. The Nation reserves the right to provide

Assistance including circumstances where federal funding is insufficient to operate federal

programs designed to benefit Tribal Members and when federal funding is insufficient to

adequately and consistently fulfill federal trust obligations. The Nation’s adoption of Approved

Programs is not intended to relieve or diminish the federal government of its funding and trust

responsibilities. Nothing herein shall waive the Nation’s right to seek funding shortfalls or to

enforce the trust rights of the Nation and its members. The Nation shall be entitled to

government-to-government consultation and coordination rights in regard to this Ordinance.

11. Indian General Welfare Benefits (Code Section 139E). Programs that meet the following

criteria for exemption under Code Section 139E shall be treated as non-taxable Assistance under

the General Welfare Exclusion without the applicant having to demonstrate individual need.

a. General Criteria for Qualification under Code Section 139E: Each payment made or

service provided to or on behalf of a Member (or any Spouse or Dependent of the Member)

pursuant to a Program under this Ordinance shall be treated as non-taxable Assistance under the

General Welfare Exclusion so long as the following criteria are met:

(1) The Program is administered under specified guidelines and does not

discriminate in favor of the members of the governing body of the Nation;

(2) Program benefits are available to any Tribal Member who meets such

guidelines;

(3) Program benefits are for the “promotion of the general welfare”;

(4) Program benefits are not Lavish or Extravagant; and

(5) Program benefits are not Compensation for services.

b. Ceremonial Activities: Any items of cultural significance, reimbursement of costs, or

cash honorarium for participation in cultural or ceremonial activities for the transmission of

tribal culture shall not be treated as Compensation for services.

c. Special Effective Dates: Code Section 139E is effective for Assistance in taxable years

for which the period of limitations on a refund or credit under Code Section 6511 has not

expired. If the period of limitation on a refund or credit resulting from the application of Code

Section 139E (a) would otherwise expire before the one-year period beginning on the date of the

enactment of Code Section 139E, a refund or credit (to the extent attributed thereto) may be

made or allowed if a claim is filed before the close of such one-year period.

12. Safe Harbor Programs. Programs that meet the following general criteria for safe harbor

treatment, and provide qualifying safe harbor benefits, shall be treated as non-taxable Assistance

under the General Welfare Exclusion without the applicant having to demonstrate individual

need:

a. General Criteria for Safe Harbor Treatment: Each Safe Harbor Program shall satisfy

the following general criteria:

(1) The benefit is provided under a specific Approved Program of the Nation;

(2) The Program has written guidelines specifying how individuals may qualify

for the benefit;

(3) The benefit is available to any tribal member, Qualified Nonmember, or

identified group of Tribal Members or Qualified Nonmembers who satisfy the Program

guidelines, subject to budgetary restraints;

(4) The distribution of benefits from the Program does not discriminate in favor of

the governing body of the Nation;

(5) The benefit is not Compensation for services; and

(6) The benefit is not Lavish or Extravagant under the facts and circumstances.

b. Qualifying Safe Harbor Benefits: The following benefits may be provided under a Safe

Harbor Program. The benefits listed in the parenthetical language herein are illustrative only,

rather than an exhaustive list. Thus, a benefit may qualify for exclusion from gross income as a

Safe Harbor Program even though the benefit is not expressly described in the parenthetical

language herein, provided that it meets all other requirements of Article VI and Revenue

Procedure 2014-35 (as may be amended):

(1) Housing programs. Programs relating to principal residences and ancillary

structures that are not used in any trade or business, or for investment purposes that:

(a) Pay mortgage payments, down payments, or rent payments (including

but not limited to security deposits) for principal residences.

(b) Enhance habitability of housing, such as by remedying water, sewage,

or sanitation service, safety issues (including but not limited to mold

remediation), or heating or cooling issues.

limited to roof repair and replacement).

(d) Pay utility bills and charges (including but not limited to water,

electricity, gas, and basic communications services such as phone, internet, and

cable).

(e) Pay property taxes or make payments in lieu of taxes (PILOTs).

(2) Educational programs. Programs that:

(a) Provide students (including but not limited to post-secondary students)

transportation to and from school, tutors, and supplies (including but not limited

to clothing, backpacks, laptop computers, musical instruments, and sports

equipment) for use in school activities and extracurricular activities.

(b) Provide tuition payments for students (including but not limited to

allowances for room and board on or off campus for the student, spouse, domestic

partner, and Dependents) to attend preschool, school, college or university, online

school, educational seminars, vocational education, technical education, adult

education, continuing education, or alternative education.

parents or other relatives responsible for their care to be gainfully employed or to

pursue education.

(d) Provide job counseling and programs for which the primary objective

is job placement or training, including but not limited to allowances for expenses

for interviewing or training away from home (including but not limited to travel,

auto expenses, lodging, and food); tutoring; and appropriate clothing for a job

interview or training (including but not limited to an interview suit or a uniform

required during a period of training).

(3) Elder and disabled programs. Programs for individuals who have reached age

55 or are mentally or physically disabled (as defined under applicable law, including but

not limited to tribal government disability codes or laws) that provide:

(a) Meals through home-delivered meal programs or at a community

center or similar facility.

(b) Home care such as assistance with preparing meals or doing chores, or

day care outside the home.

(d) Improvements to adapt housing to special needs (including but not

limited to grab bars and ramps).

(4) Cultural and religious programs. Programs that:

(a) Pay expenses (including but not limited to admission fees,

transportation, food, and lodging) to attend or participate in an Indian Nation’s

cultural, social, religious, or community activities such as pow-wows, ceremonies,

and traditional dances.

(b) Pay expenses (including but not limited to admission fees,

transportation, food, and lodging) to visit sites that are culturally or historically

significant for the Nation, including but not limited to other Indian reservations.

history, and traditions (including but not limited to traditional language, music,

and dances).

(d) Pay funeral and burial expenses and expenses of hosting or attending

wakes, funerals, burials, other bereavement events, and subsequent honoring

events.

(e) Pay transportation costs and admission fees to attend educational,

social, or cultural programs offered or supported by the Nation or anther Nation.

(5) Other qualifying assistance programs. Programs that:

(a) Pay transportation costs such as rental cars, substantiated mileage, and

fares for bus, taxi, and public transportation between an Indian reservation,

service area, or service unit area and facilities that provide essential services to the

public (such as medical facilities and grocery stores).

(b) Pay for the cost of transportation, temporary meals, and lodging of a

Tribal Member or Qualified Nonmember while the individual is receiving medical

care away from home.

but not limited to victims of abuse), including but not limited to the costs of food,

clothing, shelter, transportation, auto repair bills, and similar expenses.

(d) Pay costs for temporary relocation and shelter for individuals displaced

from their homes (including but not limited to situations in which a home is

destroyed by a fire or natural disaster).

(e) Provide assistance for transportation emergencies (for example, when

stranded away from home) in the form of transportation costs, a hotel room, and

meals.

(f) Pay the cost of nonprescription drugs (including but not limited to

traditional Indian tribal medicines).

c. Compensation Safe Harbor: For Safe Harbor Programs, and subject to amendments to

Revenue Procedure 2014-35 hereafter, the Nation will presume that individual need is met for

religious leaders or spiritual officials or leaders (including but not limited to medicine men,

medicine women, and shamans) receiving the following benefits, and that the benefits do not

represent Compensation for services: benefits provided under an Indian tribal governmental

Program that are items of cultural significance that are not lavish or extravagant under the facts

and circumstances or nominal cash honoraria provided to religious or spiritual officials or leaders

(including but not limited to medicine men, medicine women, and shamans) to recognize their

participation in cultural, religious, and social events (including but not limited to pow-wows, rite

of passage ceremonies, funerals, wakes, burials, other bereavement events, and subsequent

honoring events).

d. Safe Harbor Effective Dates: Safe harbor treatment shall be afforded to any Program or

benefit that otherwise satisfies the safe harbor rule as of, or after, December 6, 2012, or for any

earlier taxable period for which the period of limitation on refund or credit under Internal

Revenue Code Section 6511 has not expired.

e. Non-Safe Harbor Programs: Nothing in this Ordinance or the IRS safe harbor guidance

shall limit the Nation's right to provide Assistance outside of the safe harbor rules.

13. Programs Meeting the General Test. Programs that do not qualify for non-taxable

treatment under Code Section 139E or under an IRS Safe Harbor, will nonetheless be treated as

non-taxable if Program benefits meet the General Test for treatment under the General Welfare

Exclusion. For purposes of the General Test only, needs must be shown in one of the following

manners:

a. Individual Needs. Certain Programs may be based on individual need, rather than an

overall need of the Nation. For those Programs, the Tribal Legislature may establish income

guidelines unique to the Nation or may use readily available income guidelines used by state or

federal programs to demonstrate individual or family need. When individual or family need must

be shown, the Program may take into account individual circumstances or extraordinary need to

overcome presumptions based on income alone.

b. Community Needs. Certain Programs may be based on community needs, which are so

important to the self-determination, culture and traditions of the Nation that Assistance may be

deemed necessary regardless of individual income or wealth. For example, states provide public

education to all citizens regardless of individual income or wealth. Some Programs may address

both individual and community-based needs. The Legislature reserves the right to require any

applicant applying for consideration based on non-financial or community-based needs to

demonstrate how the Program benefits will benefit the tribal community as a whole, including

preservation of culture, tradition and self-determination. Approval based on non-financial need

criteria is made on a facts and circumstances basis and will be guided by traditional values and

culture. A Program will be deemed to be based on community or non-financial needs if so

designated by the Legislature.

14. Purpose. All Assistance disbursed pursuant to this Ordinance shall be designed to promote

the general welfare, self-determination, culture and tradition of the Nation. The Tribal

Legislature shall establish objectives for the furtherance of the general welfare, selfdetermination, culture and tradition of the Nation and assess progress on said objectives in

connection with its budgeting and/or strategic planning process. Approved Programs shall be

renewed, established, modified, or terminated based upon the needs of the Nation as compared to

the objectives set by the Legislature from time to time hereunder. All Programs hereunder shall

provide a social benefit for the promotion of the general welfare of the Nation and be limited to

purposes consistent with treatment under this Ordinance. Such purposes may include, for

example, and not by way of limitation, assistance for medical care, food, shelter, health,

education, subsistence, housing, elder and disabled care, assistance to meet cultural, traditional

and religious needs of the Nation and its membership, and assistance to promote self-sufficiency,

self-determination, Tribal image, entrepreneurship, and the employment of Tribal Members.

Designation by the Tribal Legislature of a Program as falling under this Ordinance shall be

conclusive evidence that the Tribal Legislature, following a good faith review of Tribal needs

and goals, has determined that said Program is established to achieve a social benefit and to

promote the general welfare of the Nation.

15. Eligibility and Application Procedures. Each approved Program shall set forth the specific

eligibility rules and limitations applied to that Program. Each designated department shall

present program descriptions, which include eligibility rules and limitations, along with

application forms and procedures, for approval by the Tribal Legislature or its designee. Only

those descriptions, application forms and procedures which are approved by the Tribal

Legislature or its designee shall be in force and effect. Program guidelines may limit benefits to

an identified group of Members or Qualified Nonmembers, as applicable. All Programs may be

limited by budget availability. In the absence of specific Program guidelines to the contrary, all

Programs shall be deemed to incorporate eligibility criteria necessary for compliance with Code

Section 139E.

16. Limited Use of Assistance; Substantiation. All Assistance disbursed or provided pursuant

to this Ordinance must be used for the purpose stated in the approved Program description, and

any application for the applicable Assistance. The Nation or its designee shall keep books or

records deemed appropriate to demonstrate compliance with the Ordinance. Recipients of

benefits hereunder are responsible for maintaining books or records as may be required for

substantiation to the IRS for individual income tax purposes. In the event that Assistance

payments and/or services are used or pledged for a purpose inconsistent with the purpose set

forth in the applicable approved Program or the Member’s application, the Tribal Legislature or

designee may require the repayment of the welfare assistance payment. The Tribal Legislature or

designee is authorized to offset any other payments owed to a Tribal member if such an offset is

necessary to secure repayment of a welfare assistance payment in accordance with this Section.

17. Limitation on Payments; Annual Budgeting.

a. Limitations on Welfare Assistance Payments. The Tribal Legislature, within its annual

budgets, by resolution or by motion, may adopt guidelines establishing the maximum Assistance

payments to be made to Tribal Members for certain specified purposes or programs or may

delegate the establishment of such limitations to the program level. Such guidelines may also

include, by way of example, factors to be considered in determining whether deviations from the

general payment limitations should be permitted. Departments charged with administering

particular programs may be delegated authority to adopt program guidelines to the extent not

contrary to the overall guidelines and limitations established by the Tribal Legislature hereunder.

In no event shall Assistance be lavish or extravagant.

b. Annual Budgeting: Unfunded Program. The Tribal Legislature, through its annual

budgeting process, by resolution or by motion, shall designate those funding sources that are

available for the payment of Assistance benefits. Notwithstanding anything to the contrary, the

Assistance payments authorized hereunder shall be “unfunded” for tax purposes and no

Beneficiary shall have an interest in or right to any funds budgeted for or set aside for Assistance

payments until actually paid. Assistance benefits shall remain assets of the Nation until

distributed, and the Approved Programs shall be administered to avoid premature taxation

through the doctrines of constructive receipt and/or economic benefit.

18. Forfeiture of General Welfare Assistance.

a. Forfeiture. Notwithstanding anything herein to the contrary, Assistance benefits may

be revoked or forfeited for any Beneficiary who is found to have misapplied program funds or

to have made any misrepresentations during the application process. Assistance may also be

forfeited should said benefits be treated as a resource to the detriment of the Nation or a

Beneficiary. The Nation shall have a right of recovery with regard to any excess or improper

payments hereunder.

b. Due Process. Each program shall offer procedures that afford a Beneficiary an

opportunity to address forfeiture issues or concerns with the program director or designee.

c. Anti-Alienation. A Tribal member’s rights to apply for General Welfare assistance

payments and/or services under this Ordinance are not subject to anticipation, alienation, sale,

transfer, assignment, pledge, encumbrance, levy, attachment or garnishment by creditors.

19. Programs not Limited to Means Testing. Programs that qualify under Code Section 139E

or the IRS Safe Harbor shall not require a showing of individual need or means testing in order to

achieve non-taxable treatment under the General Welfare Exclusion. The Nation also reserves the

right to provide community-based Programs and Programs based on non-financial need under the

General Test that are not individually means tested. The Nation recognizes that means testing

can distort certain tribal cultural and community values. The Nation has participated in

consultation with the United States Treasury Department and IRS and will evaluate Programs

periodically as guidance is further developed through consultation with the Nation.

20. Privacy; Information Sharing. The Nation will maintain records regarding sensitive tribal

and tribal Member matters, including tribal customs, religion and traditions, confidential from

third party disclosures to the fullest extent permitted at law. If information is requested by IRS or

other government agencies or third parties during a compliance review or examination,

disclosures shall be limited to the extent necessary and required by law pending an effort to

address such requests through consultation and other rights under Executive Order 13175 on a

government-to-government basis. Confidential Tribal information shall not be shared in a

manner that would open up additional disclosure, for example, under information sharing

agreements the recipient may be subject to or under the Freedom of Information Act.

21. Government-to-Government Relationship; Executive Order 13175. Coordination with

IRS and the United States Treasury Department on General Welfare matters shall be grounded

on a government-to-government relationship that recognizes the unique relationship between the

federal government and the Tribal government. The federal government, as a result of its treaty

obligations and trust responsibility, has committed to providing education, housing, clean water,

and many other basic needs for Indian people. Through a conscientious shift in policy in recent

decades, the federal government has encouraged the Nation itself to provide for such needs in

partnership with the federal government and, increasingly in recent years, instead of the federal

government. Essential to the government-to-government relationship is mutual respect and

deference to Tribal governance decisions. Future consultations on General Welfare matters

should reflect these concerns and the fact that the Tribal government, through its own policy

setting process, is best situated to determine the needs of the Nation and its Members and the

appropriate policy solutions. All references to Executive Order 13175 shall include any future

amendments thereto.

22. Other Tax Exemptions. Notwithstanding anything herein to the contrary, the Nation

reserves the right to waive income limits or needs basis criteria, to the extent otherwise

applicable, for expenditures that otherwise qualify for tax exemptions including tax exemptions

under Titles 25 or 26 of the United States Code so long as the conditions for exemption are met.

Without limitation, this includes Member medical benefits exempt under Section 9021 of the

Patient Protection and Affordable Care Act of 2010 (Code Section 139D) and per capita

expenses exempt under 25 U.S.C. Sections 1407 and 1408.

23. Garnishments. Except as specifically set forth in this Section, all Assistance to which each

Tribal member is entitled is absolutely exempt from creditors and shall not be garnished, levied,

attached, or paid in any other person or entity. Except as otherwise authorized by federal law,

Assistance shall be garnished only if the Legislature designates within the Program guidelines or

procedures, or by law, that the Assistance shall be eligible for garnishment. If so designated,

then the Assistance may be garnished as follows:

(1) Types of garnishments allowed.

(i) Garnishment for child support. A parent, guardian, court-appointed trustee, child

support agency, or other individual or entity, who has lawfully provided for the

support of any minor child, may submit a court-ordered withholding order or request

the court-ordered garnishment of any responsible Tribal Member’s Assistance for the

support of the minor child. Garnishment for child support shall be effective only if

there is a valid, final, court order or judgement that is enforceable in accordance with

HCN Child Support Code (4 HCC §7), the HCN Recognition of Foreign Child

Support Orders (4 HCC §2), and the Full Faith and Credit for Child Support Orders

Act (28 U.S.C. §1738B). A maximum withholding of forty percent (40%) for current

child support and twenty percent (20%) for current child support arrears may be

withheld form the Tribal Member’s Assistance. No penalties, fees, costs or interest

associated with child support shall be withheld from and Tribal Member’s Assistance.

24. Governing Law. All rights and liabilities associated with the enactment of this Ordinance, or

the welfare assistance payments made hereunder, shall be construed and enforced according to

the laws of the Ho-Chunk Nation.

25. Severability. If any provision of this Ordinance is held to be invalid, the remainder of this

Ordinance shall not be affected.

Legislative History:

10/21/16

11/07/17

9/18/18

4/28/20

5/4/21

9/21/21

Legislature placed out for 45 Day Comment by Resolution 10-21-16D

Legislature placed out for 45 Day Comment by Resolution 11-07-17I

Legislature placed out for 45 Day Comment by Resolution 09-18-18H

Legislature enacts by Resolution 04-28-20C

Legislature placed out for 45 Day Comment by Resolution 05-04-21H

Legislature adopts amendments via Resolution 09-21-21A to Section 23.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.