TITLE XI. HEALTH, WELLNESS AND

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WAGANAKISING

ODAWA

TRIBAL CODE of LAW

TITLE XI. HEALTH, WELLNESS AND

EDUCATION

2024.2

WAGANAKISING ODAWA TRIBAL CODE of LAW

TABLE OF CONTENTS

TITLE XI. HEALTH, WELLNESS, AND EDUCATION....................................................... 1

Chapter 1. Health Commission................................................................................................... 1

11.101

FINDING ............................................................................................................... 1

11.102

REPEALED ........................................................................................................... 1

11.103

EFFECTIVE DATE.............................................................................................. 1

Chapter 2. Education Appeals Board (Repealed) ..................................................................... 2

11.201

PURPOSE .............................................................................................................. 2

11.202

FINDINGS ............................................................................................................. 2

11.203

REPEAL ................................................................................................................ 2

11.204

EFFECTIVE DATE.............................................................................................. 2

Chapter 3. Michelle Chingwa Education Honorarium Act ..................................................... 4

11.301

PURPOSE .............................................................................................................. 4

11.302

GENERAL WELFARE EXCLUSION ............................................................... 4

11.303

DEFINITIONS ...................................................................................................... 4

11.303

APPLICATION..................................................................................................... 6

11.304

RESTRICTIONS .................................................................................................. 9

11.305

REGULATIONS REQUIRED ............................................................................ 9

11.306

APPROPRIATIONS AUTHORIZED .............................................................. 10

11.307

SEVERABILITY ................................................................................................ 10

11.308

EFFECTIVE DATE............................................................................................ 11

Chapter 4. Aanjigin Honorarium Program Act...................................................................... 12

11.401

11.402

11.403

11.404

11.405

11.406

11.407

11.408

11.409

PURPOSE ............................................................................................................ 12

GENERAL WELFARE EXCLUSION ............................................................. 12

DEFINITIONS .................................................................................................... 12

AANJIGIN HONORARIUM PROGRAM....................................................... 13

ELIGIBLE COST ............................................................................................... 15

RESTRICTIONS ................................................................................................ 15

REGULATIONS REQUIRED .......................................................................... 16

APPROPRIATIONS AUTHORIZED .............................................................. 17

SEVERABILITY ................................................................................................ 17

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11.410

EFFECTIVE DATE............................................................................................ 17

Chapter 5. Reserved.................................................................................................................... 19

Chapter 6. Food Safety Act ....................................................................................................... 20

11.601

PURPOSE ............................................................................................................ 20

11.602

DEFINITIONS .................................................................................................... 20

11.603

APPLICATION................................................................................................... 20

11.604

RESTRICTIONS ................................................................................................ 21

11.605

REGULTIONS REQUIRED ............................................................................. 21

11.606

PROCEDURES REQUIRED ............................................................................ 22

11.607

APPROPRIATIONS AUTHORIZED .............................................................. 22

11.608

EXECUTIVE AUTHORITY ............................................................................. 22

11.609

SEVERABILITY ................................................................................................ 22

11.610

EFFECTIVE DATE............................................................................................ 23

Chapter 7. Shirley Naganashe Oldman Secondary Education Completion Honorarium ......

...................................................................................................................................... 24

11.701

PURPOSE ............................................................................................................ 24

11.702

GENERAL WELFARE EXCLUSION ............................................................. 24

11.703

DEFINITIONS .................................................................................................... 24

11.704

APPLICATION................................................................................................... 25

11.705

REGULATIONS REQUIRED .......................................................................... 25

11.706

APPROPRIATIONS AUTHORIZED .............................................................. 26

11.707

SEVERABILITY ................................................................................................ 26

11.708

EFFECTIVE DATE............................................................................................ 26

Chapter 8. Right to Breastfeed and Civil Offense for Discrimination .................................. 28

11.801

PURPOSE ............................................................................................................ 28

11.802

RIGHT TO BREASTFEED ............................................................................... 28

11.803

SEVERABILITY ................................................................................................ 29

11.804

EFFECTIVE DATE ............................................................................................ 29

Chapter 9. Vulnerable Elder and Adult or Incapacitated Adult Protection, Guardianship

and Conservatorship Statute ......................................................................................... 30

11.901

PURPOSE ............................................................................................................ 30

11.902

DEFINITIONS .................................................................................................... 30

11.903

AUTHORITY ...................................................................................................... 33

11.905

JURISDICTION ................................................................................................. 34

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11.905

11.906

11.907

11.908

11.909

11.910

11.911

11.912

11.913

11.914

11.915

11.916

11.917

11.918

11.919

11.920

11.921

11.922

11.923

11.924

DUTY TO REPORT ........................................................................................... 35

IMMUNITY FOR REPORTING ...................................................................... 36

CONFIDENTIALITY OF REPORTER and RECORDS .............................. 36

FAILURE TO REPORT; CIVIL PENALTY .................................................. 36

RETALIATION; CIVIL PENALTY ................................................................ 37

FALSE REPORT ................................................................................................ 37

HUMAN SERVICES DEPARTMENT DUTIES, RESPONSIBILITIES and

AUTHORITY ...................................................................................................... 37

LAW ENFORCEMENT DUTIES AND RESPONSIBILITIES .................... 39

PROSECUTOR’S DUTIES AND RESPONSIBILITIES ............................... 40

PETITIONS AND EMERGENCY ORDERS .................................................. 40

EMERGENCY PLACEMENT.......................................................................... 41

PETITIONS AND NON-EMERGENCY PROTECTION ORDER .............. 42

PETITION FOR FINDING OF VULNERABILITY ELDER OR ADULT as

INCAPACITATED and APPOINTMENT OF GUARDIAN OR

CONSERVATOR ............................................................................................... 43

COURT COSTS AND FEES ............................................................................. 49

ADDITIONAL REPORTING REQUIRMENTS OF GUARDIAN AND/OR

CONSERVATOR ............................................................................................... 49

RIGHTS OF VULNERABLE ELDER AND ADULT, OR

INCAPACITATED ADULT .............................................................................. 50

RESTORATION TO CAPACITY PROCEDURES ....................................... 51

TERMINATION OF GUARDIANSHIP AND CONSERVATORSHIP ....... 52

SAVING CLAUSE .............................................................................................. 52

EFFECTIVE DATE ............................................................................................ 52

Chapter 10. Fair Treatment for Benefits and Services .......................................................... 54

11.1001

PURPOSE ............................................................................................................ 54

11.1002

DEFINITIONS .................................................................................................... 54

11.1003

FAIR TREATMENT and DISCRIMINATION .............................................. 55

11.1004

TRIBAL COURT ................................................................................................ 56

11.1005

LIMITED WAIVER OF SOVEREIGN IMMUNITY .................................... 56

11.1006

REMEDIES AND DAMAGES .......................................................................... 56

11.1007

SAVINGS CLAUSE............................................................................................ 57

11.1008

EFFECTIVE DATE............................................................................................ 58

iii

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Chapter 12. Naawchigedaa Tort Claims.................................................................................. 59

11.1101

SHORT TITLE ................................................................................................... 59

11.1102

PURPOSE ............................................................................................................ 59

11.1103

JURISDICTION ................................................................................................. 59

11.1104

DEFINITIONS .................................................................................................... 59

11.1105

STATUTE OF LIMITATIONS ......................................................................... 61

11.1106

CAUSES OF ACTION ....................................................................................... 61

11.1107

DEFENSES .......................................................................................................... 69

11.1108

REMEDIES ......................................................................................................... 72

11.1109

SAVINGS CLAUSE............................................................................................ 73

11.1110

EFFECTIVE DATE............................................................................................ 73

Chapter 12. General Welfare .................................................................................................... 74

11.1201

SHORT STATUTE ............................................................................................. 74

11.1202

PURPOSE ............................................................................................................ 74

11.1203

DEFINITIONS .................................................................................................... 75

11.1204

RATIFICATION OF PRIOR ACTS; INTENT OF LEGISLATION ........... 78

11.1205

GENERAL WELFARE DOCTRINE AND IRS REVENUE PROCEDURE

2014-35/TRIBAL GENERAL WELFARE EXCLUSION OF 2014 .............. 78

11.1206

NON-RESOURCE DESIGNATION................................................................. 79

11.1207

GOVERNING LAW; SOVEREIGNTY ........................................................... 80

11.1208

FEDERAL TRUST OBLIGATIONS................................................................ 80

11.1209

TRIBAL COUNCIL APPROVED PROGRAMS ............................................ 80

11.1210

PURPOSE OF APPROVED PROGRAMS ...................................................... 81

11.1211

ELIGIBILITY AND APPLICATION PROCEDURES .................................. 81

11.1212

LIMITED USE OF ASSISTANCE PAYMENTS ............................................ 81

11.1213

11.1215

11.1216

11.1217

11.1218

11.1219

11.1220

11.1221

11.1222

PROGRAMS NOT LIMITED TO MEANS TESTING .................................. 82

ANNUAL BUDGETING: UNFUNDED PROGRAM ..................................... 82

FORFEITURE .................................................................................................... 83

ANTI-ALIENATION ......................................................................................... 83

GENERAL ........................................................................................................... 83

PROGRAM POLICIES ..................................................................................... 84

FEDERAL GOVERNMENT TRIBAL ADVISORY COMMITEE .............. 89

SEVERABILITY ................................................................................................ 89

EFFECTIVE DATE............................................................................................ 90

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11.1223

OTHER RELATED STATUTES ...................................................................... 90

Chapter 13. Waiver of Fees for Military Veterans Statute .................................................... 91

11.1301

PURPOSE ............................................................................................................ 91

11.1302

GENERAL WELFARE EXCLUSION ............................................................. 91

11.1303

DEFINITIONS .................................................................................................... 91

11.1304

WAIVER OF FEES ............................................................................................ 92

11.1305

REPORTING REQUIRED ................................................................................ 92

11.1306

SEVERABILITY ................................................................................................ 93

11.1307

EFFECTIVE DATE............................................................................................ 93

Chapter 14. Medicare Reimbursement Honorarium Act ...................................................... 94

11.1401

PURPOSE ............................................................................................................ 94

11.1402

GENERAL WELFARE EXCLUSION ............................................................. 94

11.1403

DEFINITIONS .................................................................................................... 94

11.1404

MEDICARE REIMBURSEMENT HONORARIUM PROGRAM ............... 95

11.1405

REGULATIONS REQUIRED .......................................................................... 95

11.1406

APPROPRIATIONS AUTHORIZED .............................................................. 96

11.1407

SEVERABILITY ................................................................................................ 96

11.1408

EFFECTIVE DATE............................................................................................ 97

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TITLE XI. HEALTH, WELLNESS, AND EDUCATION

Chapter 1. Health Commission

11.101 FINDING

The Duties of the original Commission are no longer applicable as those duties are now the

responsibility of the Little Traverse Bay Bands of Odawa Indians Health Department funded by

I.H.S. General Funds and Third Party billing. The department’s rules, policies, and regulations

are provided by the I.H.S. funding source.

(Source: WOS 2009-003, January 25, 2009, Section I)

11.102 REPEALED

WAGANAKISING ODAWA STATUTE 1997-004 is hereby repealed in its entirety.

(Source: WOS 2009-003, January 25, 2009, Section II)

11.103 EFFECTIVE DATE

Effective upon the signature of the Executive, or 30 days from Tribal Council approval, or if the

Executive vetoes the legislation, then upon Tribal Council override of the veto.

(Source: WOS 2009-003, January 25, 2009, Section III)

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Chapter 2. Education Appeals Board (Repealed)

11.201 PURPOSE

The purpose of this statute is to repeal the Education Appeals Board Statute, Waganakising

Odawak Statute 2009-011.

(Source: WOS 2023-021, December 1, 2023, Section I)

11.202 FINDINGS

The Education Appeals Board was established to conduct hearings for appeals of programs

administered by the Education Department such as the Higher Education Scholarship Program,

Adult Vocational Training Scholarship Program and Direct Employment Program. Due to the

enactment of the Michelle Chingwa Education Honorarium Act, Waganakising Odawak Statute

2020-003, appeals of Higher Education Scholarship decisions are now heard directly by the

Education Department. The Education Department’s Vocational and Direct Employment

Programs no longer exist in a form involving appeals. As the Education Appeals Board no

longer serves the purposes for which it was established, the Education Appeals Board Statute

should be repealed.

(Source: WOS 2023-021, December 1, 2023, Section II)

11.203 REPEAL

The Education Appeals Board Statute, Waganakising Odawak Statute 2009-011, is hereby

repealed.

(Source: WOS 2023-021, December 1, 2023, Section III)

11.204 EFFECTIVE DATE

Effective upon signature of the Executive or 30 days from Tribal Council approval, whichever

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comes first, or if the Executive vetoes the legislation, then upon Tribal Council override of the

veto.

(Source: WOS 2023-021, December 1, 2023, Section IV)

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Chapter 3. Michelle Chingwa Education Honorarium Act

11.301 PURPOSE

This Michelle Chingwa Education Honorarium Act is hereby enacted to provide a gift to

honor Tribal Citizens that are obtaining post-secondary educational opportunities and repeals and

replaces the original and amended Michelle Chingwa Education Assistance Act including WOS

2007-005, WOS 2014-010 and WOS 2018-010.

(Source: WOS 2020-003, January 28, 2020, Section I)

11.302 GENERAL WELFARE EXCLUSION

As stated by the requirements of the United States Internal Revenue Section 139E, the Michelle

Chingwa Education Honorarium meets the criteria of the United States Public Law 113-168,

Tribal General Welfare Exclusion Act of 2014 and WOS 2017-002 General Welfare Statute.

(Source: WOS 2020-003, January 28, 2020, Section II)

11.303 DEFINITIONS

“Accredited” shall apply to those post-secondary institutions of higher education,

including vocational schools, that are accredited by an agency or organization recognized

by either a domestic or foreign government or another accrediting agency that processes

validations for colleges, universities, and other institutions of higher learning.

“Citizen” shall mean an enrolled member of the Little Traverse Bay Bands of Odawa

Indians.

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“Department” shall mean the Niigandiwin Education Department that is overseen by the

Executive Branch.

“Executive” shall means the Tribal Chairperson or his/her designee.

“Executive Directive” in accordance with the WOS 2015-19, means a directive issued by

the Tribal Chairperson that establishes basic internal rules of procedure, or guidelines for

the Executive Department and employees and does not impact Tribal Citizens or entities

outside of the Executive Branch.

“GPA” shall mean a student’s Grade Point Average reported by an institution on a

student’s transcript for the academic term.

“LTBB” shall mean The Little Traverse Bay Bands of Odawa Indians.

“MCEH” shall mean the Michelle Chingwa Education Honorarium Program.

“Release of the Information Form” shall mean a form completed by the student and

provided by the LTBB Education Department that gives permission to the department for

3rd party communication with the institution.

“Student Success Plan” shall mean a plan that is designed for the student by the

Education Department that addresses financial and/or academic goals of the student

ensure student success.

“Student Success Planning Session” shall mean a meeting facilitated by the Higher

Education Specialist, the Academic Services Coordinator, and/or the Education Director

with the student which is intended to develop a plan which addresses financial and/or

academic goals and connect them to the appropriate supports and resources that are

available.

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“Tribe” or “LTBB” shall mean the Little Traverse Bay Bands of Odawa Indians.

(Source: WOS 2020-003, January 28, 2020, Section II)

11.303 APPLICATION

The program shall be administered by the Education Department.

Honorariums shall be paid directly to the student.

The program shall fund Honorariums to Tribal Citizens attending:

Accredited post-secondary institutions of higher education located within a Tribal

Reservation, the United States or a foreign country;

Tribally controlled colleges that are seeking accreditation;

Other colleges or programs approved by Tribal Resolution.

Honorariums shall be administered in the following manner:

Deadlines are established as follows:

Fall, October 15th

Winter/Spring, February 15th

Summer, June 15th

Deadlines for trimesters, quarters or non-standard terms shall be thirty

(30) days after the beginning of the session. “Non-standard Term” shall

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mean a course term that is not considered to be a semester, trimester or

quarter as defined by the United States Department of Education.

Deadlines for accelerated courses that fall within a standard term but

begin after the term begins shall be thirty (30) days after the beginning of

the session.

The Honorariums shall be granted up to the deadline for each semester, trimester,

quarter, non-standard term, or accelerated course.

Honorarium applications submitted after the deadlines shall be classified as late.

Late applications shall not be funded, but such late applications may be petitioned

to the Education Department for further review.

The Honorariums shall be calculated on a per credit hour basis with five (5)

classifications: (Credits at foreign accredited post-secondary institutions of higher

education, colleges and universities shall be calculated using the appropriate

United States credit equivalency rate).

Classifications:

Class one (1) are prior learning credit courses or courses that are

sponsored by Little Traverse Bay Bands of Odawa Indians and

provided nearly free or minimal cost to the student.

ii.

Class two (2) are Junior or community college classes.

iii.

Class three (3) are Four-year colleges or four-year degree program

classes.

iv.

Class four (4) are Graduate level courses.

Class five (5) are free courses such as the free online courses.

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The limit and level of each Honorarium classification shall be:

Set by the Executive Directive.

ii.

Credit limits should not exceed eighteen (18) credits per semester

for undergraduate courses (1,2,3, 5) or twelve (12) credits per

semester for graduate courses (class 4).

iii.

Honorarium levels for Class 1 shall assist with the cost of program

expenses plus smaller amount to cover other student expenses (i.e.

$25 per credit hour to cover travel, meals, etc.).

iv.

Honorarium levels for Class 2, 3, 4 respectively shall follow a

general ratio of 2/3/4 (i.e. Class 2, $150, Class 3, $250, Class 4,

$350) and should be raised or lowered to accommodate the budget

but an attemp should be made to keep the levels as consistent as

possible to help students plan from semester to semester.

Honorarium levels for Class 5 shall be limited to a small per credit

hour amount to cover miscellaneous expense (i.e. $15 per credit to

cover books, material, etc.).

vi.

Students enrolled in multiple level of classes, the Honorarium shall

be awarded at the appropriate level for each course or class.

To be eligible for an Honorarium the student must:

Be an enrolled Citizen of the Tribe;

Be enrolled in an educational institution or program as delineated in Section III,

(C).

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Maintain a 2.0 GPA during the course of an academic term (subject to petition).

(Source: WOS 2020-003, January 28, 2020, Section III)

11.304 RESTRICTIONS

If a student withdraws from a course, their next Honorarium shall be reduced by that

equivalent amount, unless otherwise petitioned.

Students will not be funded for a course more than twice unless the student can prove

they need to take the class over to complete a degree requirement but shall be limited to three (3)

times.

(Source: WOS 2020-003, January 28, 2020, Section IV)

11.305 REGULATIONS REQUIRED

The Department shall develop regulations for this statute for Tribal Council approval;

however, the implementation of the statute shall not be delayed by approval of regulations.

The regulations shall define any petition process. Petitions authorized by this statute shall

be heard by the Education Department.

The regulations shall require the following minimum reports to Tribal Council, and upon

request to other Tribal sub-entity:

Three (3) summary reports for each semester’s Honorariums in March, July, and

October and a year-end summary each January for all the previous year’s Honorariums.

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Each report shall contain at a minimum:

A list of names of Honorarium recipients, the type of degree sought or

earned and most recent contact information.

Number of students in each class of Honorariums

Number of semester credits in each class of Honorariums

Total dollar amount of Honorariums for each period and the year

Present Honorarium rates and predicted rates needed to meet budget for

the next cycle

Publication required. The Department shall publish the award levels for the next

Honorarium cycle in November, April, and June of each year.

(Source: WOS 2020-003, January 28, 2020, Section V)

11.306 APPROPRIATIONS AUTHORIZED

This Education Honorarium Act shall be included in the Executive budget and funded

annually with a minimum budget of one million ($1,000,000.00) dollars per fiscal year.

(Source: WOS 2020-003, January 28, 2020, Section VI)

11.307 SEVERABILITY

If any section, subsection, paragraph, sentence, phrase or portion of this Statute is, for any

reason, held invalid or unconstitutional by any court of competent jurisdiction, such portion shall

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be deemed a separate, distinct and independent provision and such holding shall not affect the

validity of the remaining portions thereof.

(Source: WOS 2020-003, January 28, 2020, Section VII)

11.308 EFFECTIVE DATE

Effective upon signature of the Executive or thirty (30) days from Tribal Council approval

whichever comes first or if the Executive vetoes the legislation, then upon Tribal Council

override of the veto.

(Source: WOS 2020-003, January 28, 2020, Section VIII)

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Chapter 4. Aanjigin Honorarium Program Act

11.401 PURPOSE

The Aanjigin (Continuous Growth) Honorarium Program Act is hereby enacted to provide a gift

to honor Tribal Citizens that are pursuing vocational education opportunities.

(Source: WOS 2021-010, July 7, 2021, Section I)

11.402 GENERAL WELFARE EXCLUSION

As stated by the requirements of the United States Internal Revenue Section 139E, the Aanjigin

Honorarium Program meets the criteria of the United States Public Law 113-168, Tribal General

Welfare Exclusion Act of 2014 and WOS 2017-002 General Welfare Statute.

(Source: WOS 2021-010, July 7, 2021, Section II)

11.403 DEFINITIONS

“Citizen” shall mean an enrolled member of the Little Traverse Bay Bands of Odawa

Indians.

“Department” shall mean the Niigaandiwin Education Department that is overseen by the

Executive Branch.

“Executive” shall means the Tribal Chairperson or his/her designee

“Individualized Employment Plan (IEP)” shall mean a plan that is designed for the

student by the Education Department that addresses financial and/or career goals of the student

ensure student success.

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“Individualized Employment Planning Session” shall mean a meeting facilitated by the

Department with the student which is intended to develop a plan which addresses the following

goals and connect them to the appropriate supports and resources that are available:

Short- & long-term employment/career goals;

Skills needed to achieve employment goals;

Barriers to achieving employment goals;

Action steps to overcome barriers & develop skills needed to achieve employment

goals.

“Industry recognized credentials” means knowledge and skill that are sought or accepted

by employers within the industry or sector.

“LTBB” mean The Little Traverse Bay Bands of Odawa Indians.

“Program” means the Aanjigin Honorarium Program.

“Release of the Information Form” shall mean a form completed by the student and

provided by the LTBB Education Department that gives permission to the department for 3rd

party communication with the institution.

“Tribe” or “LTBB” mean the Little Traverse Bay Bands of Odawa Indians.

“Vocational Training” means training that emphasizes skills and knowledge required for

a particular job function or a trade.

(Source: WOS 2021-010, July 7, 2021, Section III)

11.404 AANJIGIN HONORARIUM PROGRAM

The program will be administered by the Niigaandiwin Education Department within the

Executive Branch.

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To be eligible for an Honorarium the student must:

Be an enrolled Citizen of the Tribe;

Be enrolled in an institution that provides Technical and Vocational; Education

and Training (TVET); or participating in a program that provides Industry recognized

credentials;

Attend one or more “Individualized Employment Planning Session”;

Obtain a “Individualized Employment Plan” from the Department;

Make satisfactory progress as determined by the respective institution or program

during the course of the training. (subject to petition).

The Aanjigin Honorarium Program is a funding of last resort, and student must exhaust

other program funding before being eligible for the Aanjigin Honorarium Program funds.

The Honorariums shall be calculated based on a percentage of cost of the Technical and

Vocational Education and Training (TVET) or Industry recognized credentials program.

The Department may establish deadlines for submission of applications, if necessary.

Honorariums may be paid directly to the student, based on the individual student’s

circumstances.

Students that receive funding through the program shall be required to report progress on

their “Individualized Employment Plan” at a frequency determined by the Department, based on

program length and student progress.

The student is required to sign a “Release of the Information Form” in order to receive

program funding.

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(Source: WOS 2021-010, July 7, 2021, Section IV)

11.405 ELIGIBLE COST

The following are allowable cost to be considered in making funding determinations:

Tuition and fees;

Books and supplies for training and all related equipment;

Testing fees including, but not limited to GED, certifications, or other training

related testing fees;

Payment of allowances/stipends for actual classroom and training time including

workshops and seminars related to job readiness, resume writing, job searching, career

development, and skill development;

Mileage reimbursement, gas/transportation vouchers, lodging, and/or per diem to

support travel to training, certification, and job searching;

Utility assistance;

Entrepreneurial licensure, liability insurance and marketing materials;

Childcare assistance;

Clothing and uniforms; eyeglasses and/or prescription safety goggles.

The Department shall determine whether or not any other expense not listed by be

included in the program and eligible for funding.

(Source: WOS 2021-010, July 7, 2021, Section V)

11.406 RESTRICTIONS

A student must successfully complete their “Individualized Employment Plan” in order to

be eligible for future funding, unless they can show a valid reason not completing the plan.

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Students will not be funded for the same or similar Technical and Vocational Education

and Training (TVET) or Industry recognized credentials program more than twice, unless

required in order to maintain employment and/or credentialing.

Honorarium applications submitted after the deadlines shall be classified as late. Late

applications shall not be funded, but such late applications may be petitioned to the Education

Department for further review.

(Source: WOS 2021-010, July 7, 2021, Section VI)

11.407 REGULATIONS REQUIRED

The Department shall develop regulations for this statute for Tribal Council approval;

however, the implementation of the statute shall not be delayed by approval of regulations.

The regulations shall set forth the application process, provide an appeals process,

applicable deadlines, set standards for “satisfactory progress”, and other criteria for eligibility of

the program.

The regulations shall require the following minimum reports to Tribal Council, and upon

request to other tribal sub-entity:

Three (3) summary reports for each semester’s Honorariums in March, July, and

October and a year-end summary each January for all the previous year’s

Honorariums.

Each report shall contain at a minimum:

A list of names of Honorarium recipients, the type of training sought or

earned and most recent contact information;

Number of students that received Honorariums;

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Total dollar amount of Honorariums for each period and the year;

Present Honorarium rates and predicted rates needed to meet budget for

the next cycle.

The Department shall publish the application and any deadlines at least once a year on

the tribe’s website.

(Source: WOS 2021-010, July 7, 2021, Section VII)

11.408 APPROPRIATIONS AUTHORIZED

The Aanjigin Honorarium Program shall be included in the Executive budget and funded

annually.

(Source: WOS 2021-010, July 7, 2021, Section VIII)

11.409 SEVERABILITY

If any section, subsection, paragraph, sentence, phrase or portion of this Statute is, for any reason,

held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be

deemed a separate, distinct and independent provision and such holding shall not affect the validity

of the remaining portions thereof.

(Source: WOS 2021-010, July 7, 2021, Section IX)

11.410 EFFECTIVE DATE

Effective upon signature of the Executive or thirty (30) days from Tribal Council approval

whichever comes first or if the Executive vetoes the legislation, then upon Tribal Council

override of the veto.

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(Source: WOS 2021-010, July 7, 2021, Section X)

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Chapter 5. Reserved

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Chapter 6. Food Safety Act

11.601 PURPOSE

This Statute is hereby enacted to establish a satisfactory level of food service safety within the

Tribe’s jurisdiction with the intent of promoting Tribal entrepreneurs.

(Source: WOS 2006-010, June 28, 2006, Section I)

11.602 DEFINITIONS

“Tribe” shall mean the Little Traverse Bay Bands of Odawa Indians.

“Enterprise” shall mean any legal form of business recognized by the Tribe or established

by Tribal law.

“Food Service Facility” an establishment where food is served or sold for immediate

consumption such as a deli, takeout, or restaurant.

“Food Preparation Facility” shall mean an establishment where food is prepared for off

site sales such as a cannery or fish packing plant.

“Food Sales Facility” shall mean an establishment where food is sold for consumption off

site such as a grocery store, fish store, or vegetable stand.

(Source: WOS 2006-010, June 28, 2006, Section II)

11.603 APPLICATION

The Tribe shall have the authority to regulate food service, food sales, and food

preparation facilities owned or operated by the Tribe or the Tribe’s enterprises.

The Tribe shall have the authority to regulate food service, food sales, and food

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preparation facilities owned or operated by Tribal Member enterprises that are legal business

enterprises under the Tribe’s business codes and that are within the Tribe’s jurisdiction.

The Tribe shall have the authority to regulate food service, food sales, and food

preparation facilities of temporary nature at community activities such as jiingtamak and feasts.

The Tribe shall have the authority to establish fees that do not exceed $100 per annum for

permanent or $25 per temporary permits. Fees for Head Start, schools, and non profit

corporations shall not exceed $25 per annum or $10 per temporary permit.

The Tribe shall have the authority to inspect facilities that are licensed by this statute and

facilities that are with in Tribal jurisdiction and licensed by other jurisdictions such as portable

kitchens at jiingtamok. Inspections of facilities that are licensed under the other laws shall be in

accordance with those laws or the Tribe’s which ever best serve the Tribe. Facilities that are

open to the public shall be inspected during open hours while all other inspections shall require

reasonable notice.

(Source: WOS 2006-010, June 28, 2006, Section III)

11.604 RESTRICTIONS

All inspection violations shall require reasonable suggested solutions on the same form as

inspection violations are written.

Regulation of entrepreneurial businesses in Tribal homes shall not exceed the

requirements necessary to prevent significant health risks.

Potlucks and traditional feasts shall not be regulated.

(Source: WOS 2006-010, June 28, 2006, Section IV)

11.605 REGULTIONS REQUIRED

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The Tribal Executive shall adopt regulations to implement this statute.

The regulations concerning home businesses and temporary permits shall be those

minimally required for food safety and shall ensure those regulations are available in pamphlet

format to promote a food safety environment in these entrepreneurial facilities. The pamphlets

should include temperatures and time requirements and warnings or reasons for the regulations.

All fines and penalties other than license revocation shall not exceed $50 and should only

be used after warnings are issued.

(Source: WOS 2006-010, June 28, 2006, Section V)

11.606 PROCEDURES REQUIRED

None.

(Source: WOS 2006-010, June 28, 2006, Section VI)

11.607 APPROPRIATIONS AUTHORIZED

The Executive shall present Tribal Council with modifications to the present and future

annual Budgets to include appropriations necessary to implement this statute.

(Source: WOS 2006-010, June 28, 2006, Section VII)

11.608 EXECUTIVE AUTHORITY

The Tribal Executive is hereby mandated to implement this Act and to enforce all

approved Tribal Codes of Regulation.

(Source: WOS 2006-010, June 28, 2006, Section VIII)

11.609 SEVERABILITY

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If any section, subsection, paragraph, sentence, phrase or portion of this Statute is, for any

reason, held invalid or unconstitutional by any court of competent jurisdiction, such portion shall

be deemed a separate, distinct and independent provision and such holding shall not affect the

validity of the remaining portions thereof.

(Source: WOS 2006-010, June 28, 2006, Section IX)

11.610 EFFECTIVE DATE

Effective upon the signature of the Executive, or 30 days from submission to the Executive

branch, or if the Executive vetoes the legislation, then upon Tribal Council override of the veto.

(Source: WOS 2006-010, June 28, 2006, Section X)

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Chapter 7. Shirley Naganashe Oldman Secondary Education Completion Honorarium

11.701 PURPOSE

The Shirley Naganashe Oldman Graduate Honorarium Statute is hereby enacted to provide a gift

to honor Tribal Citizens to encourage them to continue to obtain and complete a secondary

education; and repeals and replaces WOS 2011-016 Shirley Naganashe Oldman Secondary

Education Completion Award Statute. This Statute is named in the honor of Shirley Naganashe

Oldman in recognition of her dedication in assisting Tribal Citizens to obtain their highest level

of educational goals.

(Source: WOS 2018-020, December 5, 2018, Section I)

11.702 GENERAL WELFARE EXCLUSION

As stated by the requirements of the United States Internal Revenue Section 139E, the Shirley

Naganashe Oldman Graduate Honorarium meets the criteria of the United States Public Law

113-168, Tribal General Welfare Exclusion Act of 2014 and WOS 2017-002 General Welfare

Statute.

(Source: WOS 2018-020, December 5, 2018, Section II)

11.703 DEFINITIONS

“Citizen” means an enrolled member of the Little Traverse Bay Bands of Odawa Indians.

“Department” means the Education Department located within the Executive Branch of

the Tribe.

“Executive Directive” in accordance with the WOS 2015-019, means a directive issued

by the Tribal Chairperson that establishes basic internal rules of procedure, or guidelines for

Executive departments and employees and does not impact Tribal Citizens or entities out-side of

the Executive Branch.

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“Tribe” or “LTBB” means the Little Traverse Bay Bands of Odawa Indians.

(Source: WOS 2018-020, December 5, 2018, Section III)

11.704 APPLICATION

The program shall be administered by the Department and the Department shall ensure

that students receive only one (1) honorarium from the Tribe for Secondary Education

completion.

The program shall provide honorarium to Tribal Citizens who have obtained a high

school diploma, General Equivalence Diploma (GED) or a certificate of completion for students

in Special Education programs, during the current fiscal year.

Through regulation as approved by Tribal Council, levels shall be an equal amount for

high school diploma, GED or a certificate of completion for students in Special Education

programs.

(Source: WOS 2018-020, December 5, 2018, Section IV)

11.705 REGULATIONS REQUIRED

The Department shall develop regulations for this Statute within one-hundred and eighty

(180) days of enactment of this Statute; however, the implementation of the Statute shall not be

delayed by approval of regulations.

The regulations shall define an appeal process. Appeals authorized by this Statute shall be

heard by the Education Appeals Board until another body is appointed by Statute, regulation, or

appropriate resolution.

The regulations shall require the following minimum reports to Tribal Council that

contains the following information:

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Number of students that received the honorarium.

Total dollar amount of honorarium for each year.

Present honorarium rates and predicted rates needed to meet budget for the next

cycle.

Publication required: The Executive shall set the honorarium levels for the next

honorarium cycle each academic year or more often as needed by the Executive Directive.

(Source: WOS 2018-020, December 5, 2018, Section V)

11.706 APPROPRIATIONS AUTHORIZED

This Award Statute shall be funded by the General Funds, or other funds as available and

appropriate, with a minimum budget of $5,000 per LTBBOI fiscal year.

(Source: WOS 2018-020, December 5, 2018, Section VI)

11.707 SEVERABILITY

If any section, subsection, paragraph, sentence, phrase or portion of this Statute is, for any

reason, held invalid or unconstitutional by any court of competent jurisdiction, such portion shall

be deemed a separate, distinct and independent provision and such holding shall not affect the

validity of the remaining portions thereof.

(Source: WOS 2018-020, December 5, 2018, Section VII)

11.708 EFFECTIVE DATE

Effective upon signature of the Executive or 30 days from Tribal Council approval whichever

comes first or if the Executive vetoes the legislation, then upon Tribal Council override of the

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veto.

(Source: WOS 2018-020, December 5, 2018, Section VIII)

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Chapter 8. Right to Breastfeed and Civil Offense for Discrimination

11.801 PURPOSE

Little Traverse Bay Bands of Odawa Indians (LTBB) recognizes the importance of

increasing the breastfeeding practice. The Tribe supports and promotes breastfeeding of

children to ensure that children achieve an optimal healthy condition. Breast milk provides a

better nutrition and higher immunity against diseases, is better to digest, and may increase the

children's IQ.

(Source: WOS 2012-013, August 19, 2012, Section I)

11.802 RIGHT TO BREASTFEED

A mother may breastfeed her child on any Tribal property.

Breastfeeding, prohibition of discriminatory practices. Any direct or indirect act of

exclusion, alienation, restriction, segregation, limitation, rejection, or any other act or practice of

differentiation, including denying a person the total enjoyment of goods, services, facilities,

privileges, advantages, and accommodations in any public or private place on Tribal Property

which she attends, whether it is visited by the public or used for recreation, based on the fact that

a mother is breastfeeding her child, shall constitute a discriminatory practice prohibited by this

Statute and may result in a civil infraction.

Breastfeeding Discrimination shall be prohibited on any Tribal property and shall be

deemed a civil offense.

A law officer has the authority to issue a notice of violation citation when:

When the violation is committed in the officer’s presence;

If an officer investigating the violation has reasonable cause to believe that the

alleged violation has occurred.

Breastfeeding is not a violation of the law. A mother breastfeeding her child in any place,

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whether public or private, on Tribal property shall not be deemed as indecent exposure, obscene

act or other punishable action established in the Tribe’s Criminal Code or Sex Offense Statute, or

as may be amended.

(Source: WOS 2012-013, August 19, 2012, Section II)

11.803 SEVERABILITY

If any section, subsection, paragraph, sentence, phrase or portion of this Statute is, for

any reason, held invalid or unconstitutional by any court of competent jurisdiction, such portion

shall be deemed a separate, distinct and independent provision and such holding shall not affect

the validity of the remaining portions thereof.

(Source: WOS 2012-013, August 19, 2012, Section III)

11.804 EFFECTIVE DATE

Effective upon the signature of the Executive, or 30 days from submission to the

Executive Branch, or if the Executive vetoes the legislation, then upon Tribal Council override of

the veto.

(Source: WOS 2012-013, August 19, 2012, Section IV)

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Chapter 9. Vulnerable Elder and Adult or Incapacitated Adult Protection, Guardianship

and Conservatorship Statute

11.901 PURPOSE

The purpose of this Statute is to protect Vulnerable Elders and Adults, or Incapacitated Adults

from abuse, neglect, or exploitation as defined by this Statute; and provide for services and court

action for Vulnerable Elders and Adults, or Incapacitated Adults; and appoint guardianship

and/or conservatorship for Incapacitated Adults, if necessary. This Statute repeals and replaces

any previous Adult Welfare Code, including WOS 2015-012, WOS 2005-07, repeals and

replaces WOS 2015-017 Elder and Adult Conservatorship and Guardian Statute, and repeals and

replaces WOS 2022- XXX Vulnerable Elder and Adult, or Incapacitated Adult, Protection

Statute.

(Source: WOS 2022-005, June 10, 2022, Section I, Repeals and Replaces 2005-07, 2015-012 and

2015-017)

11.902 DEFINITIONS

“Accounting” means a detailed written summary of all financial actions done by the

guardian and/or conservator on behalf of the Incapacitated Adult.

"Abuse" means

An intentional or negligent infliction of bodily injury, unreasonable confinement,

intimidation, emotional abuse or cruel punishment of a Vulnerable Elder and Adult, or

Incapacitated Adult which result in physical pain or mental anguish; or

Sexual abuse is physical contact without consent of a Vulnerable Elder and Adult,

or Incapacitated Adult with the intent to derive sexual gratification by the person making

contact. Consent may not be obtained by threat, coercion, intimidation or fraud.

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“Bond” means an insurance policy or similar instrument that is intended to protect the

Incapacitated Adult’s property should the conservator mismanage the person’s estate.

"Caretaker" means a person who is required by court of competent jurisdiction to provide

services or resources to a Vulnerable Elder and Adult, or Incapacitated Adult.

“Conservator” means a person appointed by a court of competent jurisdiction who is

responsible for the collection, management, preservation, and investment of an Incapacitated

Adult's property.

“Department” means the Little Traverse Bay Bands of Odawa Indians Department of

Human Services.

“Emergency” means a situation in which a Vulnerable Elder and Adult, or Incapacitated

Adult is immediately at risk of death or injury and is unable to consent to services to remove the

risk.

“Exploitation” means the improper or unauthorized use of a Vulnerable Elder and Adult,

or Incapacitated Adult’s funds, property or other resources or failure to use a Vulnerable Elder

and Adult, or Incapacitated Adult’s funds, property or resources as a Vulnerable Elder and Adult,

or Incapacitated Adult’s desire or for their benefit.

“Family” means any spouse, parent, child, stepparent, stepchild, grandparent,

grandchild, or significant other person or relative with whom a Vulnerable Elder and Adult, or

Incapacitated Adult which has a familial relationship, or who resides with a Vulnerable Elder

and Adult, or Incapacitated Adult.

“Guardian” means a person appointed by a court of competent jurisdiction to exercise the

duty and authority to provide care and control of an Incapacitated Adult’s personal health, safety,

and welfare, under the Tribal Court’s jurisdiction.

"Good Faith" means an honest and reasonable belief or purpose, and the lack of intent to

defraud.

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“Incapacitated Adult” means a Vulnerable Elder or Adult, because of physical or

psychological infirmities, lacks the understanding or capacity to make or communicate informed

decisions or is unable to manage property and business affairs effectively and needs a

guardianship and/or conservatorship.

"Least restrictive alternative" means whenever it is necessary to protect a Vulnerable

Elder and Adult, or Incapacitated Adult, the least restrictive method of intervention shall be used

to protect the freedom and independence of a Vulnerable Elder and Adult, or Incapacitated

Adult; the least restrictive alternative is that environment which is the most like a Vulnerable

Elder and Adult, or Incapacitated Adult’s home setting and which is most capable of supporting

the protected person's physical and mental health; and emotional well-being.

“LTBB” or “Tribe” or “Tribal” means the Little Traverse Bay Bands of Odawa Indians.

"Neglect" means the failure of someone with fiduciary or legal responsibility to provide

necessary services or resources to maintain the health or safety of a Vulnerable Elder and Adult,

on Incapacitated Adult, or self-neglect caused by the inability of the adult to provide themselves

with basic food, clothing, shelter and medical care due to mental incompetency or physical

disability.

"Party" or "interested party" means the family, caretaker, and any other person that has an

interest in the welfare of a Vulnerable Elder or Adult, or Incapacitated Adult. The Court shall

have the power to determine who is or is not a party or interested party in any court proceeding.

“Prosecutor” means the Little Traverse Bay Bands of Odawa Indians Prosecutor.

“Protective placement" means the placement of a Vulnerable Elder and Adult, or

Incapacitated Adult, in a hospital, nursing home, residential care facility, other suitable

placement, or transfer from one facility to another with consent of that person or with appropriate

legal authority.

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"Protective services" means services provided to a Vulnerable Elder and Adult, or

Incapacitated Adult, with consent or by order of appropriate legal authority which includes but is

not limited to: social services, mental and physical health examinations, home and day care, legal

assistance, guardianship, case management and any other services consistent with this Statute.

"Substantiated Report" means when there is probable cause of abuse after an

investigation conducted by the Department. The report is sent to the Tribal Prosecutor for further

steps to be taken.

“Tribe” or “Tribal” means the Little Traverse Bay Bands of Odawa Indians.

“Tribal Court” means the Little Traverse Bay Bands of Odawa Indians Tribal Court.

“Vulnerable Elder and Adult” means an Elder who is fifty-five (55) years old or older or

an Adult who is eighteen (18) years old or older and is unable to protect themselves from abuse,

neglect or exploitation due to mental incompetency or physical disability.

“Unsubstantiated Report” means when no probable cause exists after an investigation.

These reports are filed within the Department for reference as needed.

(Source: WOS 2022-005, June 10, 2022, Section II, Repeals and Replaces 2005-07, 2015-012

and 2015-017)

11.903 AUTHORITY

Pursuant to provisions of the Tribal Constitution, including Article I, B, 2. “Promote with

special care the health, educational and economic interests of all the people, especially our

children and Elders, and shall protect them from social injustice and all forms of exploitation;

and 4. “Establish and maintain within the limits of their economic capacity and development,

effect provision for securing the right to work, to education and assistance, in cases of

unemployment, old age, sickness and disablement, and in other cases of need”.

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Pursuant to provisions of the Tribal Constitution, including Article VI., C. “… the

Executive Branch to administer such funds, enforce this Constitution and laws passed

thereunder, and implement policies and procedures enacted by the Tribal Council in accordance

with Article VIII”, Article VII of the Tribal Constitution allows the Legislative Branch to

approve the creation or dissolution of Executive divisions or departments to promote and protect

the peace, health, safety, education and general welfare of Little Traverse Bay Bands of Odawa

Indians and its members.

(Source: WOS 2022-005, June 10, 2022, Section III, Repeals and Replaces 2005-07, 2015-012

and 2015-017)

11.905 JURISDICTION

The Little Traverse Bay Bands of Odawa Indians shall have jurisdiction over the

following:

A Vulnerable Elder and Adult, or Incapacitated Adult who is unable to protect

themselves from suspected abuse, neglect or exploitation due to mental incapacity or

physical disability and resides within Tribal Trust Lands;

An Incapacitated Adult, because of physical or psychological infirmities, lacks the

understanding or capacity to make or communicate informed decisions or is unable to

manage property and business affairs effectively and needs a guardianship and/or

conservatorship and resides within Tribal Trust Lands;

A person who is required by a court of competent jurisdiction to or has a

guardianship, conservatorship, fiduciary or legal responsibility to provide services or

resources and is suspected of abuse, neglect or exploitation under this Statute to a Tribal

Vulnerable Elder and Adult, or Incapacitated Adult who resides within Tribal Trust

Lands.

A person appointed by Tribal Court as a Conservator and/or Guardian.

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(Source: WOS 2022-005, June 10, 2022, Section IV, Repeals and Replaces 2005-07, 2015-012

and 2015-017)

11.905 DUTY TO REPORT

Every person has the duty to report to the Department if they suspect that a Vulnerable

Elder and Adult, or Incapacitated Adult is abused or neglected.

It is mandated by this Statute for the following to report to the Department any suspected

abuse, neglect or exploitation of a Vulnerable Elder and Adult, or Incapacitated Adult

immediately or no later than twenty-four (24) hours of obtaining the information:

Persons who either have been court appointed or have a legal responsibility to a

Vulnerable Elder and Adult, or Incapacitated Adult;

Law Enforcement;

Tribal employee(s) who provide services to Vulnerable Elder and Adult, or

Incapacitated Adult, of the following departments:

Education

Elders

Health

Housing

Human Services

Language

Elected or appointed official of the Tribe;

Reports should include a detailed summary of the actions, inactions and/or allegations of

the suspected abuse or neglect.

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Reports of suspected Vulnerable Elder and Adult, or Incapacitated Adult’s abuse are

presumed to be made in good faith.

(Source: WOS 2022-005, June 10, 2022, Section V, Repeals and Replaces 2005-07, 2015-012

and 2015-017)

11.906 IMMUNITY FOR REPORTING

A person who in good faith reports suspected abuse, neglect or exploitation as defined in this

Statute is immune from any civil or criminal statute, even if the report is unsubstantiated.

(Source: WOS 2022-005, June 10, 2022, Section VI, Repeals and Replaces 2005-07, 2015-012

and 2015-017)

11.907 CONFIDENTIALITY OF REPORTER and RECORDS

The identity of the reporter of suspected Vulnerable Elder and Adult, or Incapacitated

Adult’s abuse, neglect or exploitation, under this Statute, is confidential.

Records of investigations concerning suspected Vulnerable Elder and Adult, or

Incapacitated Adult’s abuse, neglect or exploitation shall be confidential.

(Source: WOS 2022-005, June 10, 2022, Section VII, Repeals and Replaces 2005-07, 2015-012

and 2015-017)

11.908 FAILURE TO REPORT; CIVIL PENALTY

If found responsible, after a fair hearing of the Court, that a person mandated by this Statute to

report, and that person fails to report suspected Vulnerable Elder and Adult, or Incapacitated

Adult’s abuse, neglect, or exploitation, may be subject to a civil fine not to exceed five-thousand

($5,000.00) dollars.

(Source: WOS 2022-005, June 10, 2022, Section VIII, Repeals and Replaces 2005-07, 2015-012

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and 2015-017)

11.909 RETALIATION; CIVIL PENALTY

If a person is found to have retaliated against a reporter, they may be subject to a civil fine not to

exceed five-thousand ($5,000.00) dollars. For the purposes of this Statute, "Retaliation" shall

include the following: intimidating or threatening to cause bodily harm, or causing bodily harm,

or causing bodily harm to a reporter or family of a person reporting abuse; causing the reporter

or reporter's family to be terminated, suspended or reprimanded by an employer; causing

property damage to real or personal property belonging to a reporter's family.

(Source: WOS 2022-005, June 10, 2022, Section IX, Repeals and Replaces 2005-07, 2015-012

and 2015-017)

11.910 FALSE REPORT

If found responsible, after a fair hearing of the Court, any person who makes a report of

suspected Vulnerable Elder and Adult, or Incapacitated Adult’s abuse, neglect or exploitation as

defined by this Statute knowing it to be false may be subject to a civil fine not to exceed fivethousand ($5,000.00) dollars.

(Source: WOS 2022-005, June 10, 2022, Section X, Repeals and Replaces 2005-07, 2015-012

and 2015-017)

11.911 HUMAN SERVICES DEPARTMENT DUTIES, RESPONSIBILITIES and

AUTHORITY

of:

The Department shall be responsible to initiate an investigation, upon receiving a report

a Vulnerable Elder and Adult’s abuse, or Incapacitated Adult neglect or

exploitation, or

an Incapacitated Adult in need of a Guardian and/or Conservator.

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The Department shall investigate all reports.

Abuse, Neglect or Exploitation. The Department shall initiate an investigate upon

receipt of the report of abuse, neglect or exploitation within twenty-four (24) hours, meet face to

face with the alleged victim within seventy-two (72) hours and complete the investigation with a

written report within thirty (30) consecutive days based upon:

Personal interviews with the alleged abused, neglected or exploited Vulnerable

Elder and Adult, or Incapacitated Adult, the immediate family and caretaker, suspected

abuser, employees of agencies (if involved), and any other person who may have

pertinent information;

Medical records and other evidence of abuse;

Assessments of a Vulnerable Elder and Adult, or Incapacitated Adult’s living

conditions;

Any other observations, assessments or documents that may aid in completing an

accurate report.

Based on the investigation, if the Department believes that there is evidence of

Vulnerable Elder and Adult, or Incapacitated Adult’s abuse, neglect or exploitation, the

Department will submit the report to the Prosecutor.

Based on the investigation, if the Department believes that there an Incapacitated Adult in

need of a Guardian and/or Conservator, the Department may request the Prosecutor file a petition

with Tribal Court.

The Department shall have the authority to obtain from all Tribal Governmental

Departments, Agencies and Programs information and assistance with the Department’s

investigations of suspected Vulnerable Elder and Adult, or Incapacitated Adult, abuse, neglect or

exploitation; or Incapacitated Adult in need of a Guardian and/or Conservator. This shall include

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information sharing without the need of signed releases, if it is part of an ongoing investigation

for alleged abuse or neglect.

(Source: WOS 2022-005, June 10, 2022, Section XI, Repeals and Replaces 2005-07, 2015-012

and 2015-017)

11.912 LAW ENFORCEMENT DUTIES AND RESPONSIBILITIES

Upon the request of the Department, Law Enforcement shall assist the Department in

conduct of an investigation within twenty-four (24) hours, if one or more of the following

conditions exist:

Abuse or neglect is the suspected cause of death of a Vulnerable Elder and Adult,

or Incapacitated Adult;

A Vulnerable Elder and Adult, or Incapacitated Adult, is the victim of suspected

sexual abuse or sexual exploitation;

Abuse or neglect resulting in severe physical injury to a Vulnerable Elder and

Adult, or Incapacitated Adult, that requires medical treatment or hospitalization. For the

purpose of this subsection, “severe physical injury” means brain damage, skull or bone

fracture, subdural hematoma, dislocation, sprain, internal injuries, poisoning, burns,

scalds, severe cuts, or any other physical injury that seriously impairs the health or

physical well-being of a vulnerable Tribal Elder or Vulnerable Tribal Adult, or

Incapacitated Adult.

Law Enforcement intervention is necessary for the protection of a Vulnerable

Elder and Adult, or Incapacitated Adult, Department staff, or another person involved in

the investigation; or

The alleged perpetrator of abuse, neglect or exploitation of a Vulnerable Elder

and Adult, or Incapacitated Adult, is not a person responsible for the health or welfare of

the Vulnerable Elder and Adult, or Incapacitated Adult.

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Law Enforcement shall be responsible to determine and investigate if any other criminal

acts are alleged and shall forward this information to the Prosecutor.

(Source: WOS 2022-005, June 10, 2022, Section XII, Repeals and Replaces 2005-07, 2015-012

and 2015-017)

11.913 PROSECUTOR’S DUTIES AND RESPONSIBILITIES

The Prosecutor is authorized by this Statute to petition the Court for Emergency Protection

Orders and Non-Emergency Protection Orders for the protection of Vulnerable Elders and

Adults, or Incapacitated Adult from abuse, neglect or exploitation, upon receipt of a

substantiated report of investigation from the Department.

(Source: WOS 2022-005, June 10, 2022, Section XIII, Repeals and Replaces 2005-07, 2015-012

and 2015-017)

11.914 PETITIONS AND EMERGENCY ORDERS

The Department or any concerned or interested party may file a Petition for an

Emergency Protection Order (EPO) directly with the Court of suspected Vulnerable Elder and

Adult, or Incapacitated Adult’s abuse, neglect or exploitation.

Upon filing of a Petition, the Court may issue an EPO authorizing emergency services or

protective placement either ex parte or after a hearing, if there is a showing, upon clear and

convincing evidence that:

A person is a Vulnerable Elder and Adult, or Incapacitated Adult; and

The Vulnerable Elder and Adult, or Incapacitated Adult, is at risk of immediate

abuse, neglect or exploitation.

The EPO, using the least restrictive alternative, may include:

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Specific emergency services to be provided to remediate the emergency;

Protective placement only if the evidence indicates that it is absolutely necessary;

Designation of a person or agency required to implement the order; and

A warrant for forcible entry by Tribal Law Enforcement, if requested and

documented attempts to gain voluntary access have failed.

EPO’s shall not exceed a maximum of seventy-two (72) hours excluding weekends and

holidays, and may only be renewed for an additional seventy-two (72) hours, if there is evidence

of continuing emergency.

The Court shall hold a hearing upon the filing of a Petition for an EPO or if an EPO was

issued ex parte, within seventy-two (72) hours. At the hearing, if the Vulnerable Elder or Adult,

or Incapacitated Adult, is not represented, a Guardian ad Litem shall be appointed at this time, if

it has not already been done so at the time of the filing of the Petition for an EPO.

All parties, including attorneys, are permitted to attend the hearing for an EPO. The

hearing may be done ex parte if the need arises. The sufficiency of the petition will be

determined on a totality of circumstances and goes into effect upon the immediate granting of the

order by the Court.

(Source: WOS 2022-005, June 10, 2022, Section XIV, Repeals and Replaces 2005-07, 2015-012

and 2015-017)

11.915 EMERGENCY PLACEMENT

If there is good cause to believe that an emergency exists and a Vulnerable Elder and

Adult, or Incapacitated Adult is at risk of immediate or irreparable harm upon personal

observation or by the Department’s investigation, the Department or Tribal Law Enforcement

shall immediately take steps to protect the Vulnerable Elder and Adult, or Incapacitated Adult,

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including emergency services or protective placement. A Court Order must be obtained within

twenty-four (24) hours to continue the authorization of emergency services or protective

placement.

Anyone who acts, based on reasonably good faith, pursuant to this section shall be

immune from civil and criminal suit if the suspected abuse or neglect results in an

unsubstantiated report.

(Source: WOS 2022-005, June 10, 2022, Section XV, Repeals and Replaces 2005-07, 2015-012

and 2015-017)

11.916 PETITIONS AND NON-EMERGENCY PROTECTION ORDER

The Department or any concerned or interested party may file a Petition for a NonEmergency Protection Order (NEPO) directly with the Court of suspected Vulnerable Elder and

Adult, or Incapacitated Adult’s abuse, neglect or exploitation.

Upon the filing of a Non-Emergency Protection Order (NEPO) petition, the Court may

issue an NEPO, after a hearing that shall be held within fourteen (14) consecutive days if there is

a showing, upon clear and convincing evidence

A person is a Vulnerable Elder and Adult, or Incapacitated Adult; and

The Vulnerable Elder and Adult, or Incapacitated Adult, is at risk of abuse,

neglect or exploitation.

All parties are entitled to Notice and an opportunity to be heard on the record. All

proceedings shall be open to the public, unless the Court, on its own motion or by motion of a

party, determines that by the nature of the proceedings, the proceedings are to be closed.

Judgments. The Court shall make a written determination or decision within forty-eight

(48) hours of a hearing and use the least restrictive alternative, which may include the following:

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Appointing Guardian ad Litem for the Vulnerable Elder and Adult, or

Incapacitated Adult to enter other orders for the protection of the Vulnerable Elder and

Adult, or Incapacitated Adults.

Order the Department to prepare petitions for Guardianship and/or

Conservatorship if the Vulnerable Elder or Adult is believed to be an Incapacitated Adult;

or order the Department file a request for a termination of the current Guardian and/or

Conservator for an Incapacitated Adult, and prepare petitions for a new appointment;

Removal from the place where the abuse or neglect occur(ed) including the

Vulnerable Elder and Adult, or Incapacitated Adult’s home;

Remove the abuser from the residence to prohibit further abusive acts;

Requiring any party having a fiduciary duty to the Vulnerable Elder and Adult, or

Incapacitated Adult, to account for the Vulnerable Elder and Adult, or Incapacitated

Adult’s funds and/or property.

Protective orders authority shall not exceed 180 days; Guardianship and/or

conservatorship may be temporary or permanent.

(Source: WOS 2022-005, June 10, 2022, Section XVI, Repeals and Replaces 2005-07, 2015-012

and 2015-017)

11.917 PETITION FOR FINDING OF VULNERABILITY ELDER OR ADULT as

INCAPACITATED and APPOINTMENT OF GUARDIAN OR CONSERVATOR

The Department via the Prosecutor, or any concerned or interested party may file a

petition for Finding of a Vulnerable Elder or Adult as an Incapacitated Adult and request an

Order for Appointment of Guardian or an Order for Appointment of a Conservator, or both.

The Petition will include, but not limited to, the name, age, date of birth, gender and

address of the alleged Incapacitated Adult, reasons why the need exists, petitioner’s relationship

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with the alleged Incapacitated Adult, names and addresses of immediate family of the alleged

Incapacitated Adult, the extent of the alleged Incapacitated Adult’s estate, and the names and

addresses of those who can provide testimony that the person needs a guardian or conservator.

The petitioner or Court will mail copies of the petition and notice of the hearing to all

interested persons who include the following people:

The alleged Incapacitated Adult's spouse;

If known, a person named as the alleged Incapacitated Adult's agent in a Durable

Power of Attorney or Patient Advocate Designation, or other medical or legal

representatives;

The alleged Incapacitated Adult's children (or, if the Incapacitated Adult has no

children, the Incapacitated Adult's parents); and

If there is one, the alleged Incapacitated Adult's Guardian or Conservator

appointed by a Court in another jurisdiction.

The Court shall appoint Guardian ad Litem to represent the alleged Incapacitated Adult,

unless the alleged Incapacitated Adult has his or her own attorney. The alleged Incapacitated

Adult and these interested persons are entitled to object to the appointment of a Guardian or

Conservator.

The Court may issue an Order for Appointment of Guardian or Appointment of a

Conservator, or both, after a hearing which shall be held, and there is a showing, upon clear and

convincing evidence based a detailed description of the alleged Incapacitated Adult's physical or

psychological infirmities by a physician or mental health professional and an explanation of how

and to what extent each infirmity interferes with the alleged Incapacitated Adult's ability make

decisions, on the following:

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The person lacks the understanding or capacity to make or communicate informed

decisions, and the appointment of a guardian is necessary to provide for the Incapacitated

Adult's continuing care and supervision;

The person is an adult who is unable to manage property and business affairs

effectively for reasons such as mental illness, mental deficiency, physical illness or

disability, chronic use of drugs, chronic intoxication, confinement, or disappearance, and

the person has property that will be wasted or dissipated unless the Appointment of a

Conservator is provided, or money is needed for the Incapacitated Adult's support, care,

and welfare or for those entitled to the Incapacitated Adult's support, and that the

Appointment of a Conservator is needed to obtain or provide money;

Or both, and an Appointment of a Guardian and Conservator is necessary.

If a medical evaluation is not voluntarily provided to the Court, the Court on its own

Motion may Order a medical evaluation by a physician or mental health professional. The

examination and evaluation report should contain a description of the alleged Incapacitated

Adult’s physical and mental condition, cognitive and functional abilities and limitations,

adaptive behaviors, social skills, educational and developmental potential, prognosis for

improvement and recommendation for treatment or rehabilitation as appropriate. The

professional completing the report must also state his or her opinion as to whether the alleged

Incapacitated Adult is impaired and in need of a guardian or conservator, or both, and whether

the person could meaningfully participate in the proceedings.

The Court may also weigh any of the following as evidence:

Testimony from family or friends familiar with the alleged Incapacitated Adult;

Medical and financial records relevant to the alleged Incapacitated Adult or their

ability to care for themselves;

Any other evidence the Court determines to be relevant.

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Refusal to submit to a Court Order medical evaluation can be used by the Court as

evidence of mental incapacity.

All parties are entitled to Notice and an opportunity to be heard on the record. All

proceedings shall be open to the public, unless the Court, on its own motion or by motion of a

party, determines that by the nature of the proceedings, the proceedings are to be closed. The

hearing shall be conducted in as informal a manner as may be consistent with orderly procedure.

For the Court to Order for Appointment of Guardian or Appointment of a Conservator, or

both, the Court shall make a written determination based on sufficient proof as presented to the

Court.

The Court should consider appointing the alleged Incapacitated Adult's agent in a

Durable Power of Attorney or Patient Advocate Designation, or other medical or legal

representatives of the alleged Incapacitated Adult.

Before the Judge signs an Order of Appointment and issues letters of guardianship or

conservatorship, or both, the Court shall require a written oath reflecting that the Guardian and/or

Conservator will faithfully discharge all duties assigned by the Court. The Guardian and/or

Conservator shall also sign an Acceptance of Appointment.

Appointment of a Guardian. The Court shall grant a Guardian only those powers and

only for that period of time as is necessary to provide for the demonstrated need of the

Incapacitated Adult. The Court shall design the guardianship to encourage the development of

maximum self-reliance and independence in the Incapacitated Adult. A Court Order establishing

a guardianship shall specify any limitations on the Guardian's powers and any time limits on the

guardianship. At any time, the Court may require the guardian to develop and file with the Court

a plan of care of the Incapacitated Adult.

Powers and Duties of a Guardian.

A Full Guardian is responsible for the Incapacitated Adult 's care, custody, and

supervision, including ensuring that the Incapacitated Adult has proper food and clothing,

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the Incapacitated Adult lives in a place that is appropriate for him or her, the

Incapacitated Adult's medical needs are met, and the Incapacitated Adult's property is

safe. A Limited Guardian is responsible for only those duties stated in the Court Order.

In the absence of a valid Patient Advocate Designation, the Guardian will make

the medical decisions.

The Guardian must visit the Incapacitated Adult at least quarterly or as directed

by the Court Order, but no less than once a year, the Guardian must prepare a report on

the condition of the Incapacitated Adult and file the report with the Court. The Guardian

must give copies of the report to the Incapacitated Adult and all interested persons as

defined by the Statute. The Court will review any guardianship plan, prior orders in the

case, and any accountings and previous reports or accountings, including all costs and

fees charged by the guardian.

If a Conservator is not appointed, the Guardian may take control of and manage

the Incapacitated Adult 's funds and property for the benefit of the Incapacitated Adult.

The funds or property are used for the Incapacitated Adult's support, care, and education.

Any amount not used is saved for the Incapacitated Adult's needs.

Appointment of a Conservator. The Court shall grant a Conservator only those powers

and only for that period of time as is necessary to provide for the demonstrated need of the

Incapacitated Adult. The Court shall design the conservatorship to encourage the development of

maximum self-reliance and independence in the Incapacitated Adult. A Court Order establishing

a conservatorship shall specify any limitations on the conservator's powers and any time limits

on the conservatorship.

Powers and Duties of a Conservator.

A Conservator may expend or distribute estate income or principal without court

authorization or confirmation for the support, education, care, or benefit of the

Incapacitated Adult or the Incapacitated Adult 's dependents in accordance with the

following principles:

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the action taken be in the best interest of the Incapacitated Adult,

exercising sound judgment and avoiding conflicts of interest;

the action is reasonably necessary for the support, education, care, or

benefit of the protected Incapacitated Adult or a dependent.

A Conservator shall not sell or otherwise dispose of the protected Incapacitated

Adult's principal dwelling, real property, or interest in real property or mortgage, pledge,

or cause a lien to be placed on any such property without approval of the Court. The

Court shall only approve the sale, disposal, mortgage, or pledge of or lien against the

principal dwelling, real property, or interest in real property if the Court considers

evidence of the value of the property and otherwise determines that the sale, disposal,

mortgage, pledge, or lien is in the protected Incapacitated Adult's best interest.

The Court shall require the Conservator promptly file a fiduciary bond and

provide an inventory of the Incapacitated Adult's property to the Court and deliver copies

to the Incapacitated Adult and other parties as required by the Court.

Conservators shall file at a minimum an annual report to the Court that provides

an update on the condition of the protected Incapacitated Adult and an accounting of

funds collected and funds expended on behalf of the Incapacitated Adult. The reports

shall be available for review by interested parties. The Court will review any

conservatorship plan, prior orders in the case, and any accountings and previous reports

or accountings, including all costs and fees charged by the Conservator.

Conservators shall schedule annual review hearings in conjunction with the filing

of annual reports. Any interested party may request additional hearings.

Conservators do not have power to consent to medical treatment, to choose where

an Incapacitated Adult lives, or to control day-to-day activities.

(Source: WOS 2022-005, June 10, 2022, Section XVII, Repeals and Replaces 2005-07, 2015012 and 2015-017)

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11.918 COURT COSTS AND FEES

The Court may require payment of costs and fees for filing a petition with the Court.

Costs and fees may be waived if a person is unable to pay by reason of indigence. Any costs for

filing of a petition by the Department shall be waived.

Costs and fees may be allowed for the following:

Any professional services ordered performed by the Court.

Counsel for the Incapacitated Adult when counsel is appointed by the Court.

Counsel for the petitioner and any respondent.

Other costs and fees may be allowed and paid as are allowed by law for similar

services in other cases.

The costs shall be taxed to the estate of the Incapacitated Adult, to those bound by law to

support the Incapacitated Adult, to other parties whenever it would be just and equitable to do so.

(Source: WOS 2022-005, June 10, 2022, Section XVIII, Repeals and Replaces 2005-07, 2015012 and 2015-017)

11.919 ADDITIONAL REPORTING REQUIRMENTS OF GUARDIAN AND/OR

CONSERVATOR

The Court may determine whether or not a report or accounting shows reasonable

administration of the guardianship or conservatorship, or both, whether the fiduciary is

performing his or her duties and responsibilities, and whether the fiduciary's powers should be

expanded or limited or any other modifications made.

The Court may then set a hearing on the matter.

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In addition to the usual annual reports and accountings, the Court may order additional

filing of a special report or accounting if specific circumstances require it.

The Court will require a reporting of any of the following:

Change of address of the guardian or conservator.

Change of residence or placement of the Incapacitated Adult.

Significant change in the health or impairment of the Incapacitated Adult.

The acquisition, receipt or accumulation of property or income by the

Incapacitated Adult which would cause the value of the Incapacitated Adult 's estate to

equal or exceed $10,000.

The death of the Incapacitated Adult.

A change in the circumstances of the guardian, or conservator, Incapacitated

Adult that may constitute a conflict of interest.

(Source: WOS 2022-005, June 10, 2022, Section XIX, Repeals and Replaces 2005-07, 2015-012

and 2015-017)

11.920 RIGHTS OF VULNERABLE ELDER AND ADULT, OR INCAPACITATED

ADULT

The alleged Vulnerable Elder and Adult, or Incapacitated Adult shall be informed of any

investigation as it begins, unless an emergency exists and shall have the ability to receive any

investigation reports.

Elders or Adults are presumed to possess capacity until a court of competent jurisdiction

determines otherwise.

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The alleged Vulnerable Elder and Adult, or Incapacitated Adult may refuse to allow

investigators into their home without a warrant for entry.

The alleged Vulnerable Elder and Adult, or Incapacitated Adult has the right to attend all

proceedings pertaining to the suspected abuse, neglect or exploitation, or guardians or

conservatorship unless the Court determines the Elders or adult’s health is at risk in attending

such proceedings based on medical reports and records.

The alleged Vulnerable Elder and Adult, or Incapacitated Adult has the right to receive

any documents presented to the Court at any or all court proceedings pertaining to the suspected

abuse, neglect or exploitation, or guardian or conservatorship.

The alleged Vulnerable Elder and Adult, or Incapacitated Adult has the right to

independent medical, psychological or psychiatric evaluations at their own expense.

(Source: WOS 2022-005, June 10, 2022, Section XX, Repeals and Replaces 2005-07, 2015-012

and 2015-017)

11.921 RESTORATION TO CAPACITY PROCEDURES

An adult in need of a guardian or a conservator, or both, may be restored to capacity.

Upon a petition being filed, the Court must review to determine whether probable cause

exists to warrant further proceedings. If probable cause is found, the Court shall set the petition

for hearing and may appoint an attorney for the alleged Incapacitated Adult. If probable cause

does not exist, the Court may dismiss the petition.

At the conclusion of the hearing, if the Court does not find by clear and convincing

evidence, that the alleged Incapacitated Adult is an Adult with an impairment in need of a

guardian or a conservator, or both, the Court shall order that the Adult is restored to capacity and

shall proceed to terminate the guardianship or conservatorship, or both.

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(Source: WOS 2022-005, June 10, 2022, Section XXI, Repeals and Replaces 2005-07, 2015-012

and 2015-017)

11.922 TERMINATION OF GUARDIANSHIP AND CONSERVATORSHIP

The Court at any time may enter an order summarily terminating a guardianship or a

conservatorship in any of the following circumstances:

The Incapacitated Adult is deceased.

No further need for the guardianship or conservatorship exists.

(Source: WOS 2022-005, June 10, 2022, Section XXII, Repeals and Replaces 2005-07, 2015012 and 2015-017)

11.923 SAVING CLAUSE

In the event that any phrase, provision, part, paragraph, subsection or section of this Statute is

found by a court of competent jurisdiction to violate the Constitution, laws, ordinances or

statutes of the Little Traverse Bay Bands of Odawa Indians, such phrase, provision, part,

paragraph, subsection or section shall be considered to stand alone and to be deleted from this

Statute, the entirety of the balance of the Statute to remain in full and binding force and effect.

(Source: WOS 2022-005, June 10, 2022, Section XXIII, Repeals and Replaces 2005-07, 2015012 and 2015-017)

11.924 EFFECTIVE DATE

Effective upon signature of the Executive or 30 days from Tribal Council approval whichever

comes first or if the Executive vetoes the legislation, then upon Tribal Council override of the

veto.

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(Source: WOS 2022-005, June 10, 2022, Section XXIV, Repeals and Replaces 2005-07, 2015012 and 2015-017)

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Chapter 10. Fair Treatment for Benefits and Services

11.1001

PURPOSE

The Little Traverse Bay Bands of Odawa Indians, based on traditional cultural values,

creates this Statute to ensure fair treatment and protection against discrimination in the receipt of

benefits or services offered by the Tribe and the exercise of the enforcement for violations of this

Statute.

(Source: WOS 2013-009, August 4, 2013 by Veto Override, Section I)

11.1002

DEFINITIONS

“Benefits or Services” means participation in, the benefits of, or any service, program,

activity or public accommodation provided by the Tribe.

“Employee” means an individual employed by the Little Traverse Bay Bands of Odawa

Indians including Tribal Government Administration, commercial entities, sub-entities and the

Odawa Casino Resort and ancillary enterprises and activities beginning on the first day of work

and after the employment process and issuance of a temporary gaming license.

“Malice” means the intent, without just cause or reason, to commit a wrongful act that will

result in harm to another.

“Official" means any person holding an elective or appointed office in any branch, entity,

enterprise, authority, division, department, office, commission, council, board, bureau,

committee, legislative body, agency and any establishment within the Executive, Legislative or

Judiciary branch of the Tribe including Members of the Election Board and Prosecutors.

“Reckless indifference” means conscious or reckless disregard of the consequences of

one's acts or omissions.

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“Territorial Jurisdiction of the Little Traverse Bay Bands of Odawa Indians” means “areas

referenced in Public Law 103-324, 25 USC Section 1300k-2(b)(2)(A) as the boundaries of the

reservations for the Little Traverse Bay Bands as set out in Article I, paragraphs ‘third and fourth’

of the Treaty of 1855, 11 Stat.621.” Little Traverse Bay Bands Constitution, Article V(A)(1)(a).

"Tribal Council" The Tribal Council of the Little Traverse Bay Bands of Odawa Indians.

“Tribe” means the Little Traverse Bay Bands of Odawa Indians and includes any Tribal

entity or sub-entity of the Tribe.

(Source: WOS 2013-009, August 4, 2013 by Veto Override, Section II)

11.1003

FAIR TREATMENT and DISCRIMINATION

Recognizing the traditional Odawak value of equality, mutual respect and respect for

differences, the Tribe determines fair treatment to mean not to discriminate against a person on

the ground of religion, race, color, national origin, ethnicity, age, sex, height, weight, familial

status, marital status, disability, perceived disability, sexual orientation, arrest or detention

records, or other disposition in which a conviction did not result.

Discriminate means to exclude a person from participation in, be denied the benefits of,

or be subjected to discrimination under any service, program, activity or accommodation

provided by the Tribe, unless such benefit or service is limited by the following:

law

Tribal Constitution

Tribal law

Funding

Limited to Tribal Citizens

Indian Preference in Tribal Employment Statute, WOS 2002-04, and any successor

(Source: WOS 2013-009, August 4, 2013 by Veto Override, Section III)

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11.1004

TRIBAL COURT

The Tribal Court shall have the jurisdiction to hear charges of violations of this Statute based on

fair treatment and discrimination.

(Source: WOS 2013-009, August 4, 2013 by Veto Override, Section IV)

11.1005

LIMITED WAIVER OF SOVEREIGN IMMUNITY

The Tribe clearly and expressly waives its sovereign immunity to the Equitable Remedies

as set forth in this Statute and clearly and expressly waives its sovereign immunity to

Damages as set forth within this Statute for the Tribe, officials and its employers and limits such

waiver to remedies as set forth within this Statute wherein the Tribe, officials or employees who

act beyond the scope of their duties and authority in which the actions include either acting with

malice or with reckless indifference discriminates against a person under this Statute and limits

such waiver to remedies as set forth within this Statute.

The Tribe asserts no sovereign immunity for third-parties; and limits the remedies as set

forth by this Statute.

(Source: WOS 2013-009, August 4, 2013 by Veto Override, Section V)

11.1006

REMEDIES AND DAMAGES

Any charge of violation must be filed with the Tribal Court within one-hundred and eighty

(180) days of the alleged violation.

In any action filed under this Statute, the Tribal Court may grant the remedies set forth:

Equitable Remedies. If the Tribal Court finds that violation of discrimination

occurred, its judgment must specify an appropriate remedy or remedies for that violation.

The remedies may include, but are not limited to:

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An order to cease and desist from the unlawful practices specified in the

order;

Community services or similar penalty.

Damages. If the Tribal Court finds a blatant violation of discrimination, the Tribal

Court may additionally award compensatory, punitive damages or fines as provided in this

subparagraph.

A complainant may recover compensatory damages for future pecuniary

losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment

of life, and other non-pecuniary losses.

A complainant may recover punitive damages if the complainant

demonstrates that the violation of discrimination was done with malice or with

reckless indifference to the rights of an aggrieved individual protected by this

Statute.

The total sum of compensatory, punitive damages and/or fines may not exceed

$10,000.00.

When a discriminatory practice involves the provision of a reasonable

accommodation, damages may not be awarded if demonstrated that good faith efforts were

made or the accommodation would create an undue hardship on the operation of the Tribe.

The Tribal Court may award reasonable attorney fees and costs in its discretion to

the prevailing party.

The Tribal Court may award the opposing party any penalties for frivolous claims

or any other appropriate remedies as the Tribal Court deems.

(Source: WOS 2013-009, August 4, 2013 by Veto Override, Section VI)

11.1007

SAVINGS CLAUSE

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In the event that any phrase, provision, part, paragraph, subsection or section of this

statute is found by a court of competent jurisdiction to violate the Constitution, laws or

ordinances of the Little Traverse Bay Bands of Odawa Indians, such phrase, provision, part,

paragraph, subsection or section shall be considered to stand alone and to be deleted from this

statute, the entirety of the balance of the statute to remain in full and binding force and effect.

(Source: WOS 2013-009, August 4, 2013 by Veto Override, Section VII)

11.1008

EFFECTIVE DATE

Effective upon signature of the Executive or shall be deemed enacted if not expressly vetoed by

the Executive within thirty (30) days of submission. The Tribal Council may, by an affirmative

vote of seven (7) members of the Tribal Council, override a veto by the Executive.

(Source: WOS 2013-009, August 4, 2013 by Veto Override, Section VIII)

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Chapter 12. Naawchigedaa Tort Claims

11.1101

SHORT TITLE

This Statute may be referred to as the “Torts Statute.”

(Source: WOS 2014-012, October 15, 2014, Section I)

11.1102

PURPOSE

To provide civil remedies to private persons within the jurisdiction of the Little Traverse

Bay Bands of Odawa Indians who are injured by the wrongful acts of others.

(Source: WOS 2014-012, October 15, 2014, Section II)

11.1103

JURISDICTION

The Tribe’s jurisdiction extends to persons who are Indians, tribal citizens, or who live or

work within the territorial jurisdiction of LTBB and who commit a tort or are injured by the

tortious acts of another within the territorial jurisdiction of the Little Traverse Bay Bands of

Odawa Indians, unless such claims fall within the Federal Tort Claims Act. The federal

government currently provides for the resolution of tort, malpractice and injury claims against

federally funded tribal activities under the Federal Tort Claims Act. Any such claim should be

pursued and subject to the provisions and procedures of the Federal Tort Claims Act and are not

within the jurisdiction of the Tribal Court.

(Source: WOS 2014-012, October 15, 2014, Section III)

11.1104

DEFINITIONS

“Actual damages” means the ascertainable loss of money or property sustained as the

result of a tortious act.

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“Award” means money damages that the Tribal Court determines are payable to

compensate for an injury under this Statute.

“Claim” means a petition for an award under this Statute. A claim may be filed with

respect to any injury under this Statute.

“Dangerous condition” means a physical aspect of a facility or the use thereof

constituting an unreasonable risk to human health or safety that is known or should be known to

exist upon the exercise of reasonable care.

For purposes of this subsection, a dangerous condition should be known to exist if

it is established that the condition existed for a period of time and was of a nature that in

the exercises of reasonable care, the condition and its dangerous character should have

been discovered.

A dangerous condition does not exist solely because the design of a facility is

inadequate or because of the mere existence of natural physical conditions such has wind,

water, ice, or temperature.

“Employee” means any person employed by another when acting within the course and

scope of their employment.

“Indian” means any person who is an enrolled member of a federally recognized Indian

tribe.

“Injury” means death, physical or emotional harm to a person, or damage or destruction of

property.

“LTBB” means the Little Traverse Bay Bands of Odawa Indians.

“Malice” means the intent to commit a wrongful act that will result in harm to another

without just cause.

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“Offensive” means an act by another that a person of ordinary sensitivity would find

inappropriate.

“Person” means any individual, firm, partnership, corporation, or other legally recognized

entity.

“Reckless indifference” means conscious or reckless disregard of the consequences of

one’s acts or omissions.

“Territorial jurisdiction of the Little Traverse Bay Bands of Odawa Indians” means

“areas referenced in Public Law 103-324, 25 USC Section 1300k-2(b)(2)(A) as the boundaries of

the reservations for the Little Traverse Bay Bands as set out in Article I, paragraphs ‘third and

fourth’ of the Treaty of 1855, 11 Stat. 621.” Little Traverse Bay Bands Constitution, Article

V(A)(1)(a).

“Tribal Court” means the court of the Little Traverse Bay Bands of Odawa Indians.

“Naawchigedaa” means “to set things straight” in Anishinaabemowin.

(Source: WOS 2014-012, October 15, 2014, Section IV)

11.1105

STATUTE OF LIMITATIONS

A plaintiff seeking relief under this Statute must file his or her claim with the Tribal

Court within three years of the date that the injury occurred or becomes known.

(Source: WOS 2014-012, October 15, 2014, Section V)

11.1106

CAUSES OF ACTION

In order to file a tort claim, the plaintiff must meet all requirements of one or more of the causes

of action as set out below. Plaintiffs may file multiple claims and claims with alternative theories

based on more than one cause of action.

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Intentional Torts.

Assault. An assault occurs when the defendant places the plaintiff in reasonable

apprehension of an immediate battery.

Words alone or threats of physical harm are insufficient for an assault,

unless those words or threats are accompanied by physical conduct or gestures.

In this subsection, apprehension refers to the plaintiff’s knowledge of the

defendant’s apparent ability to commit an immediate battery. It does not mean

fear.

Battery. A battery occurs when the defendant makes a harmful or offensive

contact with the plaintiff’s person.

False Imprisonment. False imprisonment occurs when the defendant commits an

act of restraint that confines the plaintiff in a bounded area.

An act of restraint can be any action, verbal or physical, that causes the

plaintiff to be confined.

A bounded area is one where the plaintiff has no reasonable means of

escape.

Intentional Infliction of Emotional Distress (IIED). IIED occurs when the

defendant engages in extreme and outrageous conduct that causes the plaintiff to suffer

severe emotional distress.

IIED can be caused intentionally by the defendant or by the defendant’s

reckless conduct.

Outrageous conduct is conduct without just cause or excuse and exceeds

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all bounds of decency. Such conduct can be proven by a showing of continuous

and repetitive conduct, conduct by a superior or someone in a supervisory

position, conduct directed at young children, the elderly, or a person who has a

medical condition that causes him or her to be particularly sensitive to such

conduct, or any other conduct that a reasonable person would consider to be

outrageous.

Trespass to Land. A trespass to land occurs when the defendant intentionally and

physically invades the land of the plaintiff.

Trespass to Chattels and Conversion.

A trespass to chattels occurs when the defendant interferes with the

personal property of the plaintiff.

A conversion occurs when there is a trespass to chattels that results in

complete destruction or loss of the personal property.

Defamation. Defamation is an act of communication that causes someone to be shamed,

ridiculed, held in contempt, lowered in the estimation of the community, or to lose

employment status or earnings or otherwise suffer a damaged reputation. The Plaintiff

must prove that there was (1) a defamatory statement of fact; (2) concerning the plaintiff;

(3) which was false; (4) which was communicated to a person or persons other than the

plaintiff; (5) with actual knowledge that the statement was false or with reckless

disregard of the statement's truth or falsity or with negligence in failing to ascertain the

truth or falsity; and (6) which caused damage.

Libel. Libel occurs where the defendant makes a defamatory statement

identifying the plaintiff and that statement is published in writing, or otherwise recorded,

that causes harm to the plaintiff’s reputation. A plaintiff’s damages are presumed in

successful libel actions.

Slander. Slander occurs where the defendant makes a defamatory statement

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identifying the plaintiff, that statement is orally made to at least one other person than the

plaintiff, and causes harm to the plaintiff’s reputation.

Damages are presumed only when the plaintiff is successful in proving

slander per se.

Slander per se occurs when the defendant makes a defamatory statement:

regarding the plaintiff’s business; that the plaintiff has committed a serious crime;

that the plaintiff displays occupational or professional incapacity; that the plaintiff

suffers from a loathsome disease; that has an immoral character.

In regular slander actions, the plaintiff must offer evidence of economic

harm suffered or harm to the health . Social harm alone is insufficient evidence of

damages.

Public Officials and Matters of Public Concern. If the plaintiff is a public

official and the statement is one of public concern, he or she must prove that the

defendant made the statement knowing it to be false or with a reckless disregard for its

accuracy in addition to the requirements under Section XI(B)(1) or (2), whichever is

applicable.

Privacy Torts.

Appropriation. An appropriation occurs when the defendant uses the plaintiff’s

name or image for a commercial purpose.

Intrusion. An intrusion occurs when the defendant invades the plaintiff’s

physical seclusion in a way that would be highly offensive to an average person and the

plaintiff is in a place where the plaintiff reasonably expects to be a private place.

False Light. The tort of false light occurs when the defendant’s conduct results in

the widespread dissemination of a major falsehood about the plaintiff that would be

offensive to an average person.

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Disclosure. A disclosure occurs when the defendant’s conduct results in the

widespread dissemination of confidential information about the plaintiff that would be

offensive to an average person.

Business Torts.

Fraud. Fraud occurs when the defendant makes a misrepresentation of a material

fact that the defendant knows or believes to be false with the intent to induce the plaintiff

to act or refrain from acting in reliance on the misrepresentation, the plaintiff justifiably

and actually relies on the misrepresentation, and the plaintiff suffers damages because of

it.

Negligent Misrepresentation. Negligent misrepresentation occurs when the

defendant makes a misrepresentation in a business or professional capacity that breaches

a duty owed to a particular plaintiff that causes the plaintiff’s justifiable reliance and

results in damage to the plaintiff.

Interference with a Business Relationship. Interference with a business

relationship occurs when the plaintiff has a valid contractual relationship with a third

party that the defendant has knowledge of and the defendant intentionally interferes with

that relationship by inducing the third party to breach or terminate the relationship and

such breach or termination causes harm to the plaintiff.

Litigation Torts.

Malicious Prosecution. Malicious Prosecution occurs when the defendant

initiates criminal proceedings against the plaintiff that terminate in favor of the plaintiff

and where the defendant had an improper purpose for initiating criminal proceedings and

lacked any reasonable probable cause.

Abuse of Process. An abuse of process occurs when the defendant maliciously or

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deliberately misuses a regularly issued civil court process that is not justified by the

underlying legal action or the abuser of process is interested only in accomplishing some

improper purpose.

Negligence.

In General. In all negligence actions, the plaintiff must prove that the defendant

owed the plaintiff a duty, the defendant breached that duty, and that the defendant’s

breach was the actual and proximate cause of the plaintiff’s injury.

Ordinary Negligence. Negligence occurs when the defendant fails to exercise the

type of care toward the plaintiff that a reasonably prudent person would exercise under

similar circumstances.

Malpractice. Malpractice occurs when a defendant-professional acts or continues

a course of conduct that does not meet the standard of professional competence in that

particular profession and causes provable damages to the plaintiff.

Premises Liability. Owners and occupiers of land may be liable when his or her

own negligence causes another person to be injured on the occupier’s premises. An

occupier’s liability for another’s injury depends on the type of person entering the land.

Trespassers. Owners and occupiers of land are only liable to known or

anticipated trespassers that are injured because of a highly dangerous and artificial

condition that the owner or occupier knew existed.

Licensees. Owners and occupiers of land are liable to licensees that are

injured because of a hidden condition on the land that the occupier knew existed.

Invitees. Owners and occupiers of land are liable to invitees that are

injured because of a hidden condition on the land that the occupier either knew

existed or could have discovered with reasonable inspection.

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Attractive Nuisance Doctrine. Owners and occupiers of land are subject

to liability for physical harm to children caused by an artificial condition on the

land if the following are met:

the place where the condition exists is one that the owner or

occupier knows or has reason to know that children are likely to trespass;

ii.

the condition is one that the owner or occupier knows or has reason

to know of and realizes or should realize will involve an unreasonable risk

of death or serious bodily harm to children;

iii.

the children, because of their youth, do not discover the condition

or realize the risk involved in intermeddling with it or in coming within

the area made dangerous by it;

iv.

the owner’s or occupier’s utility of maintaining the condition and

the burden of eliminating the danger are slight compared with the risk

involved; and

the owner or occupier fails to exercise reasonable care to eliminate

the danger or otherwise to protect the children.

Strict Liability Torts.

Abnormally Dangerous Activities. A defendant is strictly liable when he or she

is engaged in an abnormally dangerous activity that causes harm to another person. An

activity is considered to be abnormally dangerous when it creates a foreseeable risk of

serious harm even where reasonable care is exercised and that activity is uncommon in

the place where it is conducted.

Wild Animals. A defendant is strictly liable when he or she is the owner of a wild

(undomesticated) animal and that animal causes harm to another person.

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Products Liability.

A defendant is liable for an injury caused to another person when:

the defendant is a merchant who regularly deals in products of the kind

involved;

the product in question is defective;

the defect in the product existed when the product left the defendant’s

place of business; and

the plaintiff was using the product in a foreseeable manner.

A product is deemed defective when any one of the following defects exist:

Manufacturing defects exist when the product differs from all the others

that were produced at the same time in a way that makes it more dangerous than

consumers would expect.

Design defects exist when there is a safer, yet feasible, way that the

product could have been built.

Information defects exist when the product has residual risks that cannot

be designed out and consumers would not be aware of those risks without an

adequate warning.

It is not a defense that the plaintiff misused the product. Such misuse by the

plaintiff is irrelevant if it is foreseeable that consumers may use that product in that way.

Nuisance. A nuisance occurs when the plaintiff’s ability to use and enjoy his or her real

property has been disrupted to an unreasonable degree.

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(Source: WOS 2014-012, October 15, 2014, Section VI)

11.1107

DEFENSES

Affirmative Defenses to Intentional Torts.

Consent. It is a complete defense to all intentional torts when the plaintiff

consents expressly or impliedly.

Express consent occurs when the plaintiff makes a declaration of

permission for the defendant to act. However, express consent is not a defense if

the consent was obtained through fraud or duress.

Implied consent occurs based on custom or based on the defendant’s

reasonable interpretation of the plaintiff’s objective conduct that the plaintiff

consents to such action.

Any consent given by a plaintiff is limited to the scope of the consent

given. Where a defendant exceeds the scope of the plaintiff’s consent, consent is

not a valid defense.

Self-Defense. This defense applies when the defendant is faced with an imminent

threat of force or injury. The defendant may only use an amount of force that is necessary

under the circumstances.

Defense of Others. This defense applies when the defendant witnesses another

person faced with an imminent threat of force or injury. The defendant may only use an

amount of force that is necessary under the circumstances.

Defense of Property. This defense applies when the defendant is faced with an

imminent threat of damage to or loss of property. The defendant may only use an amount

of force that is necessary under the circumstances.

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Necessity. The defense of necessity only applies to torts involving property.

A defense based on public necessity applies when the defendant commits

a property tort in an emergency to protect the community as a whole or to protect

a significant group of people. This is an absolute defense to tort liability.

A defense based on private necessity applies when the defendant commits

a property tort to protect his own interest. This is not an absolute defense,

therefore, the defendant may be liable to the plaintiff for any actual damage done

to plaintiff’s property.

Affirmative Defenses to Defamation.

Consent. It is an affirmative defense to defamation if the plaintiff consents to the

defendant’s making and publishing the statement. See Section VII(A)(1).

Truth. A defendant is not liable for a defamatory statement if the statement made

is true.

Absolute Privileges. A defendant is not liable for a defamatory statement if the

defamatory statement is made to the defendant’s spouse or made by an official in the

course of official functions.

Definition. “Official” means any person who is elected or appointed that

acts on behalf of the Tribe.

Definition. “Official functions” mean any acts taken by an official within

the scope of that official’s position.

Qualified Privileges. A defendant may not be liable for a defamatory statement if

the defendant made the statement in good faith and the statement made was confined to

relevant matters.

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This privilege only applies in situations where there is a public interest in

encouraging candor (e.g., employment references).

Definition. “Good faith” in this subsection means that the defendant had a

reasonable belief that the statement made was accurate.

Affirmative Defenses to Privacy Torts.

Consent. It is an affirmative defense if the plaintiff consents to the invasion. See

Section VII(A)(1).

Defamation Privileges. A defendant is not liable for the torts of false light or

disclosure if either an absolute or qualified privilege applies. See Section VII(B)(3) and

(4).

Affirmative Defense to Negligence Torts – Comparative Negligence. A defendant can

lower his or her liability by proving that the plaintiff failed to exercise proper care for his or her

own safety.

The judge or the jury must allocate a percentage of fault to each party. The

plaintiff’s recovery must be reduced by his or her own percentage of fault.

When the percentage of fault allocated to the plaintiff is more than 50%, and that

fault is due to the plaintiff’s intoxication, the plaintiff may not recover.

Affirmative Defense to Products Liability. A defendant can lower his or liability by

proving that the plaintiff failed to take proper precautions. The rules of comparative negligence

apply; see SECTION VII(D).

Sovereign Immunity.

Tribal Immunity from Suit. LTBB, including all subordinate entities, officials

and employees are immune from suit except to the extent that the Tribal Council clearly and

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expressly waives its sovereign immunity, provided that the Tribe, subordinate entity, official or

employee of the Tribe acting within the scope of their duties or authority. If the Tribe, including

any subordinate entity, official or employee of the Tribe, who acts beyond the scope of their

duties and authority in which the tortious actions include either acting with malice or with

reckless indifference, or both, then the tortious action is not within the sovereign immunity of

the Tribe.

(Source: WOS 2014-012, October 15, 2014, Section VII)

11.1108

REMEDIES

Damages. Damages are available in any tort claim where the plaintiff can prove with

reasonable certainty monetary loss or harm suffered because of the tortious acts of the defendant.

Damages may include the following:

loss of wages;

loss of profits;

medical expenses;

pain and suffering;

loss of consortium;

loss of future earnings; and

market or rental value of destroyed property.

Restitution. Restitution is available where the plaintiff can be restored by putting the

plaintiff in a similar position as he or she was prior to the tortious act. Restitution may include

the following:

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restitution damages calculated by the defendant’s gain;

return of the plaintiff’s property;

ejectment of a trespasser from the plaintiff’s property; and

any other action or remedy as deemed appropriate to make the plaintiff whole.

Injunctions. Where monetary or restitutionary remedies will not make the plaintiff whole

again, the judge may order an injunction to prevent the defendant from continuing or repeating

the tortious behavior in the future.

(Source: WOS 2014-012, October 15, 2014, Section VIII)

11.1109

SAVINGS CLAUSE

In the event that any phrase, provision, part, paragraph, subsection or section of this

statute is found by a court of competent jurisdiction to violate the Constitution, laws or

ordinances of the Little Traverse Bay Bands of Odawa Indians, such phrase, provision, part,

paragraph, subsection or section shall be considered to stand alone and to be deleted from this

statute, the entirety of the balance of the statute to remain in full and binding force and effect.

(Source: WOS 2014-012, October 15, 2014, Section IX)

11.1110

EFFECTIVE DATE

Effective upon signature of the Executive or shall be deemed enacted if not expressly vetoed by

the Executive within thirty (30) days of submission. The Tribal Council may, by an affirmative

vote of seven (7) members of the Tribal Council, override a veto by the Executive.

(Source: WOS 2014-012, October 15, 2014, Section X)

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Chapter 12. General Welfare

11.1201

SHORT STATUTE

This Statute may be cited as the “General Welfare Statute,” and it repeals and replaces any prior

Statute or Regulation in conflict with this Statute.

(Source: WOS 2017-002, June 2, 2017, Section I)

11.1202

PURPOSE

The Tribe provides Assistance to Applicants and desires to affirm its sovereign right to

do so on a non-taxable basis, pursuant to the General Welfare Doctrine. 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 and

subsequent guidance, has recognized the sovereign right of Indian tribal governments to provide

financial assistance to its citizens under certain circumstances on a non-taxable basis.

The purpose of this Statute is to set forth the guidelines for programs that are used by

the Tribe 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 Tribe, such as

food, utilities, housing, education assistance and other such functions that support the long

historical and cultural general welfare of the Tribe.

The purpose of this Statute 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 for 1) Applicants applying for Assistance and 2) Tribal staff

making eligibility determinations for Assistance. Further, it is the intent of the Tribal Council

that all Assistance provided under this Statute:

Is made under an Approved Program;

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Is available to any Applicants who satisfy the program policies, subject to

budgetary restraints;

Is made under an Approved Program that does not discriminate in favor of

members of the Tribal Council;

Is not provided as compensation for goods and/or services; and

Is not lavish or extravagant under the facts and circumstances, as determined by

the Tribal Council.

(Source: WOS 2017-002, June 2, 2017, Section II)

11.1203

DEFINITIONS

“Administrative Entity(s)” means a department or program of the Tribal government that

is authorized and funded, through a Tribal Council approved budget, to administer and provide

Assistance under an Approved Program under this Statute.

“Applicant(s)” means an enrolled Tribal citizen or qualified non-citizen who has applied

for Assistance under this Statute. It also includes an Identified Group, as defined in subsection

M, below;

“Approved Program(s)” means any program or programs approved by the Tribal Council

to provide general welfare assistance to Applicants that is intended to qualify for treatment under

the General Welfare Doctrine, as defined herein. It includes, for example, the payment of

benefits related to housing, education, elder or disabled status, cultural and religious programs or

for other qualifying assistance, such as transportation costs, etc.

“Assistance” means any Program benefits or payments that qualify for tax free

treatment under the General Welfare Exclusion.

“Beneficiary” means any person or persons entitled to receive Assistance in accordance

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with specific Program policies and are exempted under Internal Revenue Code, Section 139E

and may benefit, including: Tribal Citizens, spouses of a Tribal Citizen, and/or dependents of a

Tribal Citizen.

“Citizen” or “Tribal citizen” means an enrolled member of Little Traverse Bay Bands of

Odawa Indians.

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

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

disguised employment. However, this shall not prevent the Tribe from structuring Programs

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

Exclusion.

“Constitution” means the Constitution of the Little Traverse Bay Bands of Odawa

Indians.

“Executive” means the Executive Branch of government under Article VIII of the

Constitution the power of which is vested in the Tribal Chairperson and the Vice-Chairperson.

“General Welfare Exclusion" means any 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.

“General Test” means any assistance will be treated as meeting the General Test under

the General Welfare Exclusion if the benefits are:

Paid by or on behalf of an Indian tribe;

Under a social benefit program;

Based on either needs of the Indian community itself or upon individual needs

of the recipient (which need not be financial in nature);

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Are not Compensation for services;

Are not gaming per capita payments as referenced in the Indian Gaming

Regulatory Act.

“Identified Group” means Tribal citizens and qualified non-citizens who are members of

an identified group, such as Elders.

"Lavish" or "Extravagant" shall have the meaning determined by the Tribal Council in

its sole discretion based on all facts and circumstances, taking into account needs unique to the

Tribe as well as the social purpose being served by the particular Assistance at hand, except as

otherwise may be required for compliance with final guidance issued under IRS Code Section

139E following consultation between the Tribe and the IRS;

“Indian Gaming Regulatory Act”, “IGRA” means the United States federal law that

establishes the jurisdictional framework that governs Indian gaming, Federal Act (Pub.L. 100–

497, 25 U.S.C. § 2701 et seq.

“Reservation” in accordance with Little Traverse Bay Bands of Odawa Indians

Constitution, Article III, Section H, means the lands within the boundaries of the reservations

for the Little Traverse Bay Bands of Odawa Indians as set out in Art I, paragraphs third and

fourth of the Treaty of 1855, 11 Stat. 621, plus any lands set out in Articles Second and Third of

the Treaty of March 28, 1836, 7 Stat. 491, in the event that the 1836 reservation is determined

to include lands which are not included within the 1855 reservation, plus any lands outside of

those boundaries which are now or in the future declared to be Little Traverse Bay Bands of

Odawa Indians reservation by the U.S. Department of Interior.

"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.

"Tribal Council" or "Council" means the Council Members of the Little Traverse

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Bay Bands of Odawa Indians.

(Source: WOS 2017-002, June 2, 2017, Section III)

11.1204

RATIFICATION OF PRIOR ACTS; INTENT OF LEGISLATION

This Statute does not establish a new program or programs. This Statute is intended to

set forth 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 Statute 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, are authorized by the

enactment of this statute in conjunction with other applicable laws.

(Source: WOS 2017-002, June 2, 2017, Section IV)

11.1205

GENERAL WELFARE DOCTRINE AND IRS REVENUE PROCEDURE

2014-35/TRIBAL GENERAL WELFARE EXCLUSION OF 2014

The Internal Revenue Service recognizes that Assistance to Applicants under a

legislatively provided Approved Program for the promotion of the general welfare of the Tribe is

excludable from the gross income of those Applicants.

In addition, the Service, in IRS Revenue Procedure 2014-35, provided for safe harbor

programs under which, if approved and in writing, need would be presumed and qualifying

benefits would be excluded.

The Assistance authorized by this Statute is intended to qualify for such favorable tax

treatment under the General Welfare Doctrine to the fullest extent permitted at law. All amounts

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budgeted by the Tribe for Assistance shall remain general assets of the Tribe until such payments

are disbursed.

Assistance authorized by this Statute shall be an unfunded arrangement and shall be

limited to funds appropriated, at the discretion of the Council.

Assistance is not subject to information reporting by the Tribe to the Internal Revenue

Service.

Without limitation, the following benefits shall be treated as non-taxable hereunder:

Benefits that satisfy the requirements for the exemption under Code Section

139E;

Benefits that qualify for exclusion under an IRS Safe Harbor Program;

Benefits that qualify for exclusion under the IRS General Test of General Welfare

exclusion; or

Benefits that meet another express exemption under the Internal Revenues 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 USC Sections 117a-b, 1407 and 1408.

(Source: WOS 2017-002, June 2, 2017, Section V)

11.1206

NON-RESOURCE DESIGNATION

Assistance to Applicants shall be made from the assets of the Tribal government and all

payments are subject to the availability of budgeted Tribal government funds.

The Tribe does not guarantee Assistance under this Statute. Assistance shall not be

treated as a resource of an Applicant for any purpose.

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(Source: WOS 2017-002, June 2, 2017, Section VI)

11.1207

GOVERNING LAW; SOVEREIGNTY

All the rights and liabilities associated with the enactment of this Statute, or the

Assistance made hereunder, shall be construed and enforced according to the laws of the Tribe

and applicable federal law.

Nothing in this Statute or the related policies or procedures adopted for its

implementation, if any, shall be construed to make applicable to the Tribe any laws or

regulations 1) which are otherwise inapplicable to the Tribe, or 2) from which the Tribe is

entitled to exemption because of its sovereign status.

(Source: WOS 2017-002, June 2, 2017, Section VII)

11.1208

FEDERAL TRUST OBLIGATIONS

The Tribe reserves the right to provide Assistance in circumstances where federal funding

is insufficient to operate federal programs designed to benefit Applicants and when federal

funding is insufficient to adequately and consistently fulfill federal trust obligations.

The Tribe’s adoption of its Approved Programs is not intended to relieve or diminish the

federal government of its funding and trust responsibilities. Nothing herein shall waive the

Tribe’s right to seek funding shortfalls or to enforce the trust rights of the Tribe and its citizens.

The Tribe shall be entitled to government-to-government consultation and coordination rights in

regard to this Statute with the federal government.

(Source: WOS 2017-002, June 2, 2017, Section VIII)

11.1209

TRIBAL COUNCIL APPROVED PROGRAMS

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The Tribal Council shall designate Approved Programs for which funds will be budgeted

each fiscal year, consistent with the purposes of this Statute. Each Approved Program shall be

consistent with the General Welfare Doctrine as to purpose, eligibility, and funding.

Tribal Council reserves the right to cancel, adjust, modify or revoke any Assistance

provided by the Tribe in accordance with the Budget Formulation Statute, including Allocation

of General Fund Balance, Supplemental Funding Process, Budget Modifications, Emergency

budgets/Recessions, and Systematic Reductions of Budgets.

(Source: WOS 2017-002, June 2, 2017, Section IX)

11.1210

PURPOSE OF APPROVED PROGRAMS

Each Approved Program shall be limited to purposes consistent with treatment under the General

Welfare Doctrine. An Approved Program must be established and operated to promote the

general welfare of the Tribe, including programs designed to enhance the promotion of health,

education, self-sufficiency, self-determination, Tribal character and the maintenance of culture

and tradition, entrepreneurship, and employment.

(Source: WOS 2017-002, June 2, 2017, Section X)

11.1211

ELIGIBILITY AND APPLICATION PROCEDURES

Assistance intended to qualify for General Welfare Doctrine treatment shall be limited to

enrolled citizens of the Tribe and qualified non-citizens. Each Approved Program shall set forth

the specific eligibility rules and limitations applied to that program. The Executive shall present

program descriptions and policies, which include eligibility rules and limitations, to the Tribal

Council for approval in accordance with this Statute. Only those descriptions and policies that

are so approved by the Council shall be considered to be in force and effect.

(Source: WOS 2017-002, June 2, 2017, Section XI)

11.1212

LIMITED USE OF ASSISTANCE PAYMENTS

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All Assistance must be used for the purpose stated in the Approved Program description and

policy. In the event that Assistance is used or pledged for a purpose inconsistent with the purpose

set forth in an Approved Program or the Applicant’s application, the payment will be deemed

forfeited. The Administrative Entity responsible for the Approved Program under which the

misused Assistance was made shall secure repayment from the Applicant. The Administrative

Entity is also authorized to offset any other payments owed to such an Applicant, if an offset is

necessary to secure repayment of Assistance under this Statute.

(Source: WOS 2017-002, June 2, 2017, Section XII)

11.1213

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 Tribe also reserves the right to provide community-based

Programs and programs based on non-financial needs under the General test so that no individual

means testing is needed. The Tribe recognizes that means testing can distort certain tribal

cultural and community values. However, the Tribe can have some programs which are financial

need based in order to help those most in need of the assistance.

(Source: WOS 2017-002, June 2, 2017, Section XIII)

11.1215

ANNUAL BUDGETING: UNFUNDED PROGRAM

When applicable per program requirements, the Council shall annually designate those funding

sources that are available for Approved Programs as part of the annual budgeting process.

Notwithstanding anything to the contrary, the Assistance authorized hereunder shall be

“unfunded” for tax purposes and no Applicant shall have an interest in or right to any funds

budgeted for or set aside for Approved Programs until paid. Assistance funds shall remain assets

of the Tribe until distributed and the Approved Programs shall be administered at all times to

avoid triggering of the doctrines of “constructive receipt” and/or “economic benefit.”

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(Source: WOS 2017-002, June 2, 2017, Section XV)

11.1216

FORFEITURE

Notwithstanding anything herein to the contrary, the Executive, acting on behalf of the Council,

may forfeit Assistance to any Applicant who is found to have violated the terms of this Statute,

or the policies and procedures for any Approved Program. The Executive may also forfeit

Assistance should said Assistance be treated as a resource detrimental to the Tribe or an

Applicant. In the event of any such forfeiture, all Assistance provided to the Applicant pursuant

to this Statute shall be deemed a loan and shall be enforceable as such. Such loans may be

subject to taxation, including any amount for the forgiveness of a loan.

(Source: WOS 2017-002, June 2, 2017, Section XVI)

11.1217

ANTI-ALIENATION

An Applicant’s right to apply for Assistance is not subject to anticipation, alienation, sale,

transfer, assignment, pledge, encumbrance, attachment or garnishment by creditors of the

Applicant.

(Source: WOS 2017-002, June 2, 2017, Section XVII)

11.1218

GENERAL

Each Approved Program shall be administered by the Administrative Entity. All the powers and

duties conferred on each respective Administrative Entity shall be exercised or performed by it in

the exercise of its discretion regardless of whether the provision conferring such power or

imposing such duty specifically refers to its discretion. All decisions of a given Administrative

Entity regarding an Approved Program, within the scope of its authority, shall be binding and

conclusive upon all Applicants under the Approved Program.

(Source: WOS 2017-002, June 2, 2017, Section XVIII)

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11.1219

PROGRAM POLICIES

Policies for Approved Programs shall be developed by the respective Department staff

responsible for a given Assistance Program, coordinated through the Executive, if applicable,

and approved by the Tribal Council. At a minimum, such policies shall satisfy the requirements

of this Statute including the following:

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:

The program is administered under specified policies and does not discriminate in

favor of the members of the Tribal Council;

Program benefits are available to any Tribal citizen who meets such policy

requirements;

Program benefits are for the promotion of the general welfare;

Program benefits are not lavish or extravagant; and

Program benefits are not compensation for services.

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.

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:

General Criteria for Safe Harbor Treatment:

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The benefit is provided under a specific approved program of the Tribe;

The program has written policies specifying how individuals may qualify

for the benefit;

The benefit is available to any Tribal citizen, identified group of Tribal

citizens, or qualified non-citizen who satisfy the program policies, subject to

budgetary restraints;

The distribution of benefits from the program does not discriminate in

favor of the governing body of the Tribe;

The benefit is not compensation for goods or services; and

The benefit is not lavish or extravagant under the facts and circumstances,

as determined by the Tribal Council.

Specific Safe Harbors: 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 the

Internal Revenue Service, and Revenue Procedure 2014-35 (as may be amended):

Housing programs. Programs relating to principal residences and ancillary

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

that—

Pay mortgage payments, down payments, or rent payments

(including but not limited to security deposits) for principal

residences;

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ii.

iii.

iv.

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;

Provide basic housing repairs or rehabilitation (including, but not

limited to, roof repair and replacement);

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

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

internet, and cable); or

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

Educational programs. Programs to –

ii.

iii.

iv.

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;

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;

Provide for the care of children away from their homes to help

their parents or other relatives responsible for their care to be

gainfully employed or to pursue education; and

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).

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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 –

ii.

iii.

iv.

Meals through home-delivered meal programs or at a community

center or similar facility;

Home care such as assistance with preparing meals or doing

chores, or day care outside the home;

Local transportation assistance; and

Improvements to adapt housing to special needs (including but not

limited to grab bars and ramps).

Cultural and religious programs. Programs to –

ii.

iii.

iv.

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

transportation, food, and lodging) to attend or participate in an

Indian tribe’s cultural, social, religious, or community activities

such as pow-wows, ceremonies, and traditional dances;

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

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

historically significant for the Tribe, including, but not limited to,

those on other Indian reservations;

Pay the costs of receiving instruction about an Indian tribe’s

culture, history, and traditions (including, but not limited to,

traditional language, music, and dances);

Pay funeral and burial expenses and expenses of hosting or

attending wakes, funerals, burials, other bereavement events, and

subsequent honoring events; and

Pay transportation costs and admission fees to attend educational,

social, or cultural programs offered or supported by the Tribe or

another tribe.

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Other qualifying assistance programs. Programs to –

ii.

iii.

iv.

vi.

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);

Pay for the cost of transportation, temporary meals, and lodging of

a Tribal citizen or Qualified Non-citizen while the individual is

receiving medical care away from home;

Provide assistance to individuals in exigent circumstances

(including, 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;

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);

Provide assistance for transportation emergencies (for example,

when stranded away from home) in the form of transportation

costs, a hotel room, and meals; and

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

traditional Indian tribal medicines).

Compensation Safe Harbor: For Safe Harbor Programs, and subject to

amendments to Revenue Procedure 2014-35 hereafter, the Tribe will presume that

individual need is met for religious leaders or spiritual officials or leaders (including but

not limited to Pipe-carriers, Firekeepers, Traditional Healers, the Drum and Singers,

Flag-carriers, and other cultural or spiritual and religious officiants.)) 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, as

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determined by the Tribal Council, or nominal cash honoraria provided to religious or

spiritual officials or leaders (including, but not limited to, Pipe-carriers, Firekeepers,

Traditional Healers, the Drum and Singers, Flag-carriers, and other cultural or spiritual

and religious officiants.) 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).

In accordance with 26 U.S. Code § 139E - Indian General Welfare Benefits, “deference

shall be given to Indian tribal governments for the programs administered and authorized

by the tribe to benefit the general welfare of the tribal community.”

Non-Safe Harbor Programs: Nothing in this Statute or the IRS safe harbor guidance shall

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

Any changes to the Safe Harbor programs as a result of the Indian General Welfare

Exclusion Act of 2014 will be immediately incorporated, by reference, into this Statute.

(Source: WOS 2017-002, June 2, 2017, Section XIX)

11.1220

FEDERAL GOVERNMENT TRIBAL ADVISORY COMMITEE

The Tribe may utilize the Treasury Tribal Advisory Committee (TTAC) to assist in making

determinations of criteria for general welfare exclusion. In accordance with the Federal Law,

Tribal General Welfare Exclusion Act of 2014, TTAC members will advise the United States

Department of Treasury Secretary on matters related to the taxation of Indians, the training of

Internal Revenue Service field agents, and the provision of training and technical assistance to

Native American financial officers.

(Source: WOS 2017-002, June 2, 2017, Section XX)

11.1221

SEVERABILITY

If any section, subsection, paragraph, sentence, phrase or portion of this Statute is, for

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any reason, held invalid or unconstitutional by any court of competent jurisdiction, such portion

shall be deemed a separate, distinct and independent provision and such holding shall not affect

the validity of the remaining portions thereof.

(Source: WOS 2017-002, June 2, 2017, Section XXI)

11.1222

EFFECTIVE DATE

Effective upon signature of the Executive or 30 days from Tribal Council approval

whichever comes first or if the Executive vetoes the legislation, then upon Tribal Council

override of the veto.

(Source: WOS 2017-002, June 2, 2017, Section XXII)

11.1223

OTHER RELATED STATUTES

See WOS 2015-016 Tribal Government Budget Formulation and Modification Statute, WOS

#2015-019 Administrative Procedures Statute, or as may be amended.

(Source: WOS 2017-002, June 2, 2017, Section XXIII)

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Chapter 13. Waiver of Fees for Military Veterans Statute

11.1301

PURPOSE

The Waiver of Fees for Military Veterans Statute is hereby enacted to honor our Little Traverse

Bay Bands of Odawa Indians Military Veterans in accordance with the Constitution, Article I, B.

Directive Principles: “Promote with special care the health, educational and economic interests

of all the people, especially our children and elders . . .”.

(Source: WOS 2021-009, July 7, 2021, Section I)

11.1302

GENERAL WELFARE EXCLUSION

As stated by the requirements of the United States Internal Revenue Section 139E, the Waiver of

Fees for Military Veterans meets the criteria of the United States Public Law 113-168, Tribal

General Welfare Exclusion Act of 2014 and WOS 2017-002 General Welfare Statute.

(Source: WOS 2021-009, July 7, 2021, Section II)

11.1303DEFINITIONS

“Citizen” shall mean an enrolled member of the Little Traverse Bay Bands of Odawa

Indians.

“Executive” shall mean the Tribal Chairperson or his/her designee

“LTBB” means The Little Traverse Bay Bands of Odawa Indians.

“Military Veteran” means a person who served in the active military, naval, or air

service, and who was discharged or released therefrom under conditions other than

dishonorable this includes United States Army, Navy, Marine Corps, Air Force, Coast

Guard service, and members of the Reserves, Air or Army National Guard.

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“Tribe” or “LTBB” means the Little Traverse Bay Bands of Odawa Indians.

(Source: WOS 2021-009, July 7, 2021, Section III)

11.1304

WAIVER OF FEES

The Executive has the authority to waive fees collected by the Executive Branch for

Military Veterans.

These fees may include, by not limited to the following:

Hunting and fishing licenses

Enrollment cards

Notarial acts

When the Executive approves a fee to be waived, the Executive shall post a notice to the

tribal website; and publish a list of fees waived annually in the tribal newspaper, or similar

means of communication.

(Source: WOS 2021-009, July 7, 2021, Section IV)

11.1305

REPORTING REQUIRED

The Executive shall report to annually to Tribal Council:

The number of Military Veterans that received a waiver of fees.

The total dollar amount of fees waived.

Tribal Council may request the Executive provide additional information, if necessary.

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(Source: WOS 2021-009, July 7, 2021, Section V)

11.1306

SEVERABILITY

If any section, subsection, paragraph, sentence, phrase or portion of this Statute is, for any reason,

held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be

deemed a separate, distinct and independent provision and such holding shall not affect the validity

of the remaining portions thereof.

(Source: WOS 2021-009, July 7, 2021, Section VI)

11.1307

EFFECTIVE DATE

Effective upon signature of the Executive or thirty (30) days from Tribal Council approval

whichever comes first or if the Executive vetoes the legislation, then upon Tribal Council

override of the veto.

(Source: WOS 2021-009, July 7, 2021, Section VII)

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Chapter 14. Medicare Reimbursement Honorarium Act

11.1401

PURPOSE

The Medicare Reimbursement Honorarium Act is hereby enacted to provide a gift to honor our

Little Traverse Bay Bands of Odawa Indians Elders in accordance with the Constitution, Article

I, B. Directive Principles: “Promote with special care the health, educational and economic

interests of all the people, especially our children and elders . . .”

(Source: WOS 2021-012, July 7, 2021, Section I)

11.1402

GENERAL WELFARE EXCLUSION

As stated by the requirements of the United States Internal Revenue Section 139E, the Medicare

Reimbursement Honorarium meets the criteria of the United State

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