You asked whether the agency should count as income $520 that claimant A~ received
from the Confederated Tribes of Grand Ronde Community of Oregon (the Tribe) as a per
capita distribution from the Tribe’s sale of timber from restricted tribal trust or
reservation lands.
Background
Agency regulations define income as “anything you receive in cash or in kind that
you can use to meet your needs for food and shelter.” 20 C.F.R. § 416.1102. They also
state that the agency does not count all income towards SSI eligibility requirements,
and acknowledge that some federal laws other than the Social Security Act (Act) provide
that the agency cannot count certain unearned income for Supplemental Security Income
(SSI) purposes. 20 C.F.R. §§ 416.1100, 416.1124. The agency identifies laws relating
to unearned income counting in 20 C.F.R. Part 416, Appendix to Subpart K. Likewise,
the agency recognizes federal statutes may require certain payments or benefits to
be excluded as resources for SSI purposes. 20 C.F.R. § 416.1210(j).
Discussion
POMS SI 00830.830.C identifies several federal laws providing that certain types of payments made to
members of Indian tribes are excluded from income and/or resources. Each of these
laws is also identified in the Appendix to Subpart K. Each of these laws, and their
potential applicability to the per capita timber payments, are discussed below.
1. Indian Judgment Funds Distribution Act – Public Law (P.L.) 93-134 and Distribution
of Indian Judgment Funds – P.L. 97-458
Both of these provisions regard distribution of funds appropriated in satisfaction
of a judgment of the Indian Claims Commission or the United States Court of Federal
Claims in favor of an Indian tribe. 25 U.S.C. § 1401 et seq. The per capita timber
payments are not judgment funds, and these federal laws do not apply to exclude the
timber payments from income or resources.
2. Per Capita Act – P.L. 98-64
The Per Capita Act concerns funds held in a trust account by the Secretary of the
Interior (Secretary) for an Indian tribe that are to be distributed per capita to
members of the tribe. 25 U.S.C. § 117a. Pursuant to the Per Capita Act, such funds
may be distributed either by the Secretary or by the tribe (with the request of the
tribe’s governing body and approval of the Secretary). 25 U.S.C. § 117a. Trust funds
distributed under the Per Capita Act are subject to 25 U.S.C. § 1407, meaning they
are not considered as income or resources for the Social Security Act’s entitlement
purposes. 25 U.S.C. §§ 117b(a), 1407.
The POMS specifically notes that “local tribal funds that a tribe distributes to individuals
on a per capita basis, but which have not been held in trust by the Secretary (e.g.,
tribally managed gaming revenues) are not excluded from income and resources under
this provision.” POMS SI 00830.830.C.3. This is consistent with the plain language of the Per Capita Act, which exempts
from income and resources only those funds that are “held in trust by the Secretary
of the Interior.” 25 U.S.C. § 117a.
The Tribe has represented by email that the revenues from timber sales subsequently
distributed as per capita timber payments are not first held in a federal tribal trust
account by the Secretary. Thus, the Per Capita Act does not exempt the Tribe’s per
capita timber payments from resources or income.
3. Alaska Native Claims Settlement Act (ANCSA) – P.L. 100-241
The ANCSA requires exclusion from income and resources of certain distributions received
by Alaska Natives and their descendants from Alaska Native Regional and Village Corporations
(ANRVCs). 43 U.S.C. § 1601 et seq. Grand Ronde tribal members are not Alaska Natives,
and the timber per capita distributions are not distributions from ANRVCs. This federal
statute does not apply.
4. Payments from Individual Interests in Trust or Restricted Lands – P.L. 103-66
Under POMS SI 00830.830.C.5, payments from individual interests in trust or restricted land are excluded
from income pursuant to P.L. 103-66. That public law amended 25 U.S.C. § 1408, which
provides that “interests of individual Indians in trust or restricted lands shall
not be considered a resource, and up to $2000 per year of income received by individual
Indians that is derived from such interests shall not be considered income.”
The recipients of the per capita timber payments do not have what could be characterized
as “interests of individual Indians in trust or restricted lands” because the recipients
do not have “individual interests” as the land from which the timber proceeds derive
is tribal trust land. Congress intended for the law to exempt income up to $2000 per
year “received by individual Indians derived from leases on individually owned or
restricted Indian lands.” H.R. 2264, Conference Report (08/04/1993), Section 13736
(emphasis added). Likewise, POMS SI 00830.850 notes that the income exempted under this section “generally comes from interests
in lands allotted to individual Indians many years ago” and that the income “generated
by those interests may be quite small” due to fractionation (that is, individual co-ownership
of Indian reservation allotment land).
Here, by the Tribe’s representation, the land from which the per capita timber payments
stem is tribal trust land, rather than individual Indian trust or restricted land.
Accordingly, this federal law does not exempt the timber per capita payments from
income.
Conclusion
The agency should count as income and resources the $520 that claimant A~received
from the Tribe as a per capita distribution from the sale of timber.