QUESTIONS PRESENTED
You asked: (1) whether the Master Trust Document Establishing Irrevocable Inter Vivos
Trusts for the Benefit of the Minors of the Tunica-Biloxi Indians of Louisiana (Tunica-Biloxi
Tribe’s Trust or Trust) qualifies as a trust established under the Indian Gaming Regulatory
Act of 1988 (IGRA) for minor children and legally incompetent adults; and (2) if so,
whether an account created in the Tunica-Biloxi Tribe’s Trust would be exempt from
the Social Security Administration’s (agency’s or SSA’s) resource counting rules for
Supplemental Security Income (SSI) eligibility for the number holder, B~, a minor
child (NH).[10]
SHORT ANSWERS
As to your threshold question of whether the Tunica-Biloxi Tribe’s Trust qualifies
as a trust under the IGRA, we generally defer to the United States Department of the
Interior’s (DOI) determination on that issue. Under the IGRA, the Secretary of the
DOI (Secretary) has the authority to approve a Native American Indian tribe’s revenue
allocation plan (RAP) establishing a trust for minors and incompetent adults to receive
per capita payments from tribal gaming activities. Although the evidence provided
does not address whether the Secretary has approved Tunica-Biloxi Tribe’s RAP, we
have determined from publicly available DOI documents that the Secretary has approved
the RAP.
We understand that you also are concerned with whether Program Operations Manual System
(POMS) SI 01120.195, which provides instructions for evaluating IGRA trusts, applies to this matter.
Here, the Tunica-Biloxi Tribe’s Trust states that all provisions of the trust document
will be interpreted and subject to the provision of the IGRA and the Tribe’s Revenue
Distribution Plan. See Tunica-Biloxi Tribe’s Trust, Recital C.[11] The Tunica-Biloxi Tribe’s Trust states that the Tribe anticipates substantially all
trust assets will be assets the Tribe transfers pursuant to the IGRA and the Revenue
Distribution Plan. See Tunica-Biloxi Tribe’s Trust, Recital C, Section II. As such,
we believe it would be reasonable for the agency to apply SSA policy found in POMS
SI 01120.195 for trusts established under the IGRA for minor children to identify the Trust’s
grantor.
We understand your second question to be whether the assets in the Tunica-Biloxi Tribe’s
Trust should be counted as a resource to the NH under SSI resource counting rules.
In applying POMS SI 01120.195, along with SI 01120.201 and SI 01120.203, which provide instructions and exceptions for trusts established on or after January
1, 2000, we believe the agency may reasonably conclude that the assets in the Tunica-Biloxi
Tribe’s Trust are counted as the NH’s resource under SSI resource counting rules because:
(1) the Tribe is not the grantor for the Tunica-Biloxi Tribe’s Trust under the agency’s
specific policy and instructions; (2) the irrevocable Tunica-Biloxi Tribe’s Trust
was established with the NH’s assets on or after January 1, 2000, and it permits payment
to or for the NH’s benefit; and (3) the Tunica-Biloxi Tribe’s Trust does not qualify
for either the special needs trust or pooled trust exceptions. See POMS SI 01120.195, SI 01120.201, SI 01120.203.
BACKGROUND
In conjunction with this legal opinion request, we were provided with the following
documents:
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A copy of the Tunica-Biloxi Tribe’s Second Amended and Restated Master Trust Document[12] ; and
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A September 12, 2018 letter from Providence First Trust Company, indicating the NH
has an individual trust in the Tunica-Biloxi Tribe’s Trust (Provident Trust letter).
Based on this information, we understand the Tribe is a federally recognized Indian
tribe based in Louisiana that operates gaming facilities on its own lands. See Tunica-Biloxi
Tribe’s Trust, Introduction. The Tribe stated it established the Tunica-Biloxi Trust
for the orderly administration of the trust estate created for the benefit of Tribe
minors. See Tunica-Biloxi Tribe’s Trust, Recitals A. The Tribe anticipates substantially
all trust property will be assets transferred under the IGRA and the Tribe’s Revenue
Distribution Plan. See Tunica-Biloxi Tribe’s Trust, Recital C. However, the Tunica-Biloxi
Tribe’s Trust permits other persons to also transfer additional property to the Trustee
to be administered under the Trust. See Tunica-Biloxi Tribe’s Trust, Recital B.
When the NH’s interest in the Trust was established, the NH was a minor, although
currently age 19, and a purported beneficiary of the Tunica-Biloxi Tribe’s Trust.
Other than the NH’s name, Social Security Number, and birthdate, we have no other
specific information about the facts of the NH’s case, as other information was unnecessary
to evaluate the presented issue.
ANALYSIS
A. Overview of SSA Law and Policy: Trusts and Tribal Gaming Revenue under SSI
Resource Counting Rules.
SSI is a general public assistance program for aged, blind, or disabled individuals
who meet certain income and resource restrictions and other eligibility requirements.
See20 C.F.R. §§ 416.110, 416.202; see also POMS SI 01110.001 (explaining the role of resources in the SSI program). “Resources” means cash or
other liquid assets or any real or personal property that an individual (or spouse,
if any) owns and could convert to cash to be used for his or her support and maintenance.
See20 C.F.R. § 416.1201(a); see also POMS SI 01110.100B1 (resources defined). Property held in a trust may or may not be a resource for SSI
purposes. See POMS SI 01120.200A1 As addressed in more detail in section C below, the conclusion of whether assets
held in an IGRA trust are included in resources requires an identification of the
grantor of the IGRA trust. POMS SI 01120.195.
Before determining whether the Tunica-Biloxi Tribe’s Trust assets at issue in this
legal opinion request are the NH’s resources for SSI purposes under policy and instructions
in POMS SI 01120.195, we address your first question of whether the Tunica-Biloxi Tribe’s Trust establishing
a trust for minor children qualifies as an IGRA trust.
B. Question 1: Does the Tunica-Biloxi Tribe’s Trust Establish an IGRA Trust
for Minor Children and Legally Incompetent Adults?
Yes.
1. The IGRA and Governing Regulations
The IGRA “creates a framework for regulating gaming activity on Indian lands.” Michigan
v. Bay Mills Community, 134 S.Ct. 2024, 2029 (2014). A Native American Indian Tribe
may conduct gaming on its land, so long as the net revenues from the gaming are used
to:
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Fund tribal government operations or programs;
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Provide for the general welfare of the tribe or its members;
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Promote tribal economic development;
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Donate to charitable organizations; or
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Help fund operations of local government agencies.
25 U.S.C. § 2710(b)(2)(B).
To promote one or more of these five purposes, a tribe may use net revenues from class
II and class III gaming activities to make per capita payments to tribe members, subject
to four requirements:
(1) the tribe must prepare a RAP for authorized uses;
(2) the Secretary must approve the RAP;
(3) the interests of minors and other legally incompetent persons who are entitled
to receive any of the per capita payments must be protected and preserved and the
payments disbursed to the parents or legal guardians in such amounts as may be necessary
for the health, education, or welfare of the minors or other legally incompetent persons
under a plan approved by the Secretary and the governing body of the tribe; and
(4) the payments remain subject to federal taxation and the tribe notifies members
of that tax liability when the payments are made.
25 U.S.C. § 2710(b)(3), (d)(1)(A); see also 25 C.F.R. §§ 290.1 – 290.26 (regulations
setting forth the procedures for submitting, reviewing and approving tribal revenue
allocation plans for distributing net gaming revenues from tribal gaming activities;
the regulations apply to tribal revenue allocation plans adopted under the IGRA).
The IGRA designates the Secretary of DOI as the person with the authority to review
and approve a tribe’s RAP. 25 U.S.C. § 2710(b)(3)(B); 25 C.F.R. §§ 290.02, 290.5.
Thus, any Indian tribe that intends to make per capita payments to tribal members
from net gaming activities must submit a tribal RAP for DOI approval. 25 C.F.R. §
290.6; see also 20 C.F.R. § 290.7 (if the Indian tribe does not intend to make per
capita payments to tribal members, it does not need to submit a tribal RAP). The tribal
RAP is the document an Indian tribe submits that describes how the tribe will distribute
net gaming revenues. 25 C.F.R. §§ 290.02, 290.04. The tribal RAP must meet certain
criteria set forth in 25 C.F.R. § 290.12. Of significance to this legal opinion request,
the tribal RAP must protect and preserve the interests of minors and legal incompetents
who are entitled to receive per capita payments by: (1) ensuring that tribes make
per capita payments for eligible minors or incompetents to the parents or legal guardians
of these minors or incompetents at times and in such amounts as necessary for the
health, education, or welfare of the minor or incompetent; (2) establishing the criteria
for withdrawal of the funds, acceptable proof and/or receipts for accountability of
the expenditure of the funds and the circumstances for denial of the withdrawal of
the minors’ and legal incompetents’ per capita payments by the parent or legal guardian;
and (3) establishing a process, system, or forum for dispute resolution. 25 C.F.R.
§ 290.12(b)(3). Finally, of relevance here, although not required, in protecting and
preserving the interests of minor and legal incompetents who are entitled to receive
per capita payments, a tribe “may establish trust accounts with financial institutions”
for the per capita payments. 25 C.F.R. § 290.15. SSA policy refers to such trusts
established under the IGRA for minor children or legally incompetent adults as IGRA
Trusts. See POMS SI 01120.195B (“IGRA requires a tribe to protect and preserve the interests of minor children and
incompetent adults who are entitled to receive any of the per capita payments. Tribes
may establish IGRA trusts for such individuals to safeguard these payments and reduce
income tax liability for the individuals.”).
2. It Would Be Reasonable for the Agency to Apply POMS SI 01120.195 to the
Tunica-Biloxi Tribe’s Trust as an IGRA Trust.
You asked whether the Tunica-Biloxi Tribe’s Trust qualifies as an IGRA trust, but
SSA does not have the authority to determine whether a tribe’s RAP or any trust formed
under the RAP conforms to the provisions of the IGRA. As stated, the IGRA designates
the Secretary of DOI as the person with the authority to review and approve a tribe’s
RAP. 25 U.S.C. § 2710(b)(3)(B); 25 C.F.R. §§ 290.02, 290.5. Therefore, SSA defers
to the DOI regarding whether the Tribe’s RAP and any trust formed under the RAP comply
with the provisions of the IGRA. We understand your concern in this threshold question
to be whether SSA’s instructions for evaluating IGRA trusts contained in POMS SI 01120.195 apply to this matter.
Agency policy does not require any particular documentation from a tribe to establish
that a particular trust is a DOI-approved IGRA trust such that the instructions of
POMS SI 01120.195 apply. See POMS SI 01120.195C (stating IGRA trusts are trusts that an Indian tribe establishes under IGRA and that
definitions stem from regulations or other authorities issued by the DOI’s Bureau
of Indian Affairs (BIA) or the Internal Revenue Service (IRS)). Here, the Tunica-Biloxi
Tribe’s Trust does not address whether the DOI approved the Tribe’s RAP. However,
a publicly available DOI document indicates the Secretary approved the Tunica-Biloxi
Tribe’s RAP on April 14, 1994. See U.S. Dep’t of the Interior, Office of Inspector
Gen., Evaluation of the Bureau of Indian Affairs Process to Approve Tribal Gaming
Revenue Allocation Plans , 18, https://www.doioig.gov/sites/doioig.gov/files/2003-I-0055.pdf (last visited Sept. 3, 2019). Further, the Tunica-Biloxi Tribe’s Trust states that
all provisions of the trust document will be interpreted and subject to the provision
of the IGRA and the Tribe’s Revenue Distribution Plan. See Tunica-Biloxi Tribe’s Trust,
Recital C. The Tunica-Biloxi Tribe’s Trust states that the Tribe anticipates substantially
all trust assets will be assets the Tribe transfers pursuant to the IGRA and the Revenue
Distribution Plan. See Tunica-Biloxi Tribe’s Trust, Recital C, Section II.
Accordingly, it is apparent the Tunica-Biloxi Tribe’s Trust purports to be an IGRA
trust. Thus, we believe it would be reasonable for the agency to apply SSA policy
in POMS SI 01120.195 regarding trusts established under the IGRA for minor children, in combination with
resource counting policy, to the present matter to determine whether the Tunica-Biloxi
Tribe’s Trust assets should be counted as the NH’s resource for SSI purposes. See
POMS SI 01120.195B (“When a tribal member who has an IGRA trust files for [SSI], we must first determine
whether the tribe or the member is the grantor of the trust. Then we must determine
how to count assets held in the IGRA trust under our resource counting rules.”). We
now turn to your second question and to SSA’s policy and instructions to determine
whether the agency should count assets in the Tunica-Biloxi Tribe’s Trust as resources
to the NH.
C. Question 2: Should the Assets in the Tunica-Biloxi Tribe’s Trust be
Counted as a Resource to the NH, a Minor Child, Under the SSI Resource Counting
Rules?
Yes.
1. POMS SI 01120.195: SSA Policy for Evaluating Whether the IGRA Trust for Minor
Children is the NH’s Resource for SSI Eligibility.
SSA’s POMS SI 01120.195 “provides instructions for evaluating IGRA trusts established by Indian tribes for
tribal members who are minor children or incompetent adults.”[13] When a tribal member who has an IGRA trust files for SSI, the agency must determine
how to count assets held in the IGRA trust under the agency’s resource counting rules.
POMS SI 01120.195B. Agency policy instructs that the first part of this determination requires the agency
to identify the grantor of the trust. POMS SI 01120.195B. If the tribe is the grantor of the IGRA trust, the agency is to follow policy set
forth in POMS SI 01120.200 as to trusts established with the assets of third parties to determine if the trust
is a resource. POMS SI 01120.195D. If the tribe is not the grantor of the IGRA trust, the agency is to follow policy
in POMS SI 01120.201 as to trusts established with the assets of an individual to determine if the trust
is a resource. POMS SI 01120.195D. Thus, we first consider whether the Tribe is the grantor of the Tunica-Biloxi Tribe’s
Trust. [14]
2. POMS SI 01120.195.E: SSA Policy for Evaluating Who is the Grantor of an IGRA
Trust for Minor Children.
To find that an Indian tribe is the grantor of an IGRA trust, SSA’s policy in POMS
SI 01120.195 requires analysis of nine requirements.[15] See POMS SI 01120.195E. SSA treats the Indian tribe as the grantor of an IGRA trust if the trust substantially
complies with the nine requirements.[16] Id. Notably, the Tribe adopted the Second Amended and Restated Master Trust Document
on March 11, 2004, seven years before the IRS issued its safe harbor guidelines and
ten years before the SSA adopted POMS provisions based on the IRS guidelines. There
is no evidence the Tribe subsequently amended the Master Trust Document to conform
to IRS guidelines or SSA POMS provisions regarding IGRA trusts. We believe the Tunica-Biloxi
Tribe’s Trust does not meet requirements one, three, five, six, seven, and eight for
the Tribe to be the grantor of the Tunica-Biloxi Tribe’s Trust. See POMS SI 01120.195E .
Requirement 1: The Indian tribe establishes the trust for the benefit of tribe members who are minors
and legally incompetent adults and it funds the trust using only per capita payments
from gaming revenues.
The Tunica-Biloxi Tribe’s Trust Does Not Meet Requirement
1: The Tunica-Biloxi Tribe’s Trust does appear to be established for the benefit of
the Tribe’s members who are minors, as the full title of the document is Second Amended
and Restated Master Trust Document Establishing Irrevocable Inter Vivos Trusts for
the Benefit of the Minors of the Tunica-Biloxi Indians of Louisiana. Although the
Tunica-Biloxi Tribe’s Trust does not specifically define the beneficiaries as minors,
the terms of the trust highly suggest it as the trust provides a beneficiary who reaches
age 18 may withdraw a portion of the trust principal if he or she satisfies other
criteria, and further provides the beneficiary will receive all of his or her interest
at age 21. See Tunica-Biloxi Tribe’s Trust, Sections 5.1, 5.3. However, the Tunica-Biloxi
Tribe’s Trust does not provide the Tribe will fund the Trust using only per capita
payments from gaming revenues. The Tribe anticipated that “substantially all” trust
property would be assets it transferred under the IGRA and the Tribe’s Revenue Distribution
Plan. See Tunica-Biloxi Tribe’s Trust, Recitals C, Section II. The Tunica-Biloxi Tribe’s
Trust permits other persons, including the beneficiary and any third party, to also
transfer property into the Trust, subject to the Tribe’s approval. See Tunica-Biloxi
Tribe’s Trust, Recitals B, Section II. Thus, the Tunica-Biloxi Tribe’s Trust does
not substantially comply with the first requirement.
Requirement 2: The trust beneficiary is a minor or legally incompetent adult at the time the trust
(or trust account) is established.
The Tunica-Biloxi Tribe’s Trust Meets Requirement 2: The NH, born in 2000, was a minor when the Trust account was established. As discussed
in requirement one, the Tunica-Biloxi Tribe’s Trust implicitly appears to establish
a trust for minors. Thus, we believe the Tunica-Biloxi Tribe’s Trust substantially
complies with this second requirement.
Requirement 3: The trust only allows contributions while the beneficiary is still a minor or legally
incompetent.
The Tunica-Biloxi Tribe’s Trust Does Not Meet Requirement
3: The Tunica-Biloxi Tribe’s Trust does not specifically state that contributions will
only be made while a beneficiary is a minor. Although the Tunica-Biloxi Tribe’s Trust
provides a beneficiary who reaches age 18 may withdraw a portion of the trust principal
if he or she satisfies other criteria such as completion of high school, it also provides
the beneficiary will receive all of his or her interest at age 21 subject to the beneficiary’s
completion of a financial planning course. See Tunica-Biloxi Tribe’s Trust, Sections
5.1, 5.3. A trust provision addressing distribution of assets beyond age 18 only upon
satisfaction of certain other criteria, such as completion of high school, does not
affect the determination as to whether the Tribe is the grantor of the Trust. See
POMS SI 01120.195E NOTE. However, The Tunica-Biloxi Tribe’s Trust is problematic because it does not
address whether the Tribe’s per capita contributions to the Trust would cease as age
18, or continue through age 21. Thus, we believe the Tunica-Biloxi Tribe’s Trust does
not substantially comply with this third requirement.
Requirement 4: The trust instrument states that the Indian tribe is intended to be the grantor
of the trust, and grants to the Indian tribe a power or interest in the trust assets,
such as the ability to vote any shares held in trust.
The Tunica-Biloxi Tribe’s Trust Meets Requirement 4: The Tunica-Biloxi Tribe’s Trust does not state it is a grantor trust, but does indicate
the Tribe is the settlor of the trust. See Tunica-Biloxi Tribe’s Trust, Introduction.
The Tunica-Biloxi Tribe’s Trust indicates the Tribe retains the right to modify, alter,
or amend the terms of the trust. See Tunica-Biloxi Tribe’s Trust, Section 1.2. Also,
the Tribe retained a remainder beneficial interest in the trust assets if the beneficiary
were to die without parents, descendants, or siblings. See Tunica-Biloxi Tribe’s Trust,
Section 3.5. Thus, we believe the Tunica-Biloxi Tribe’s Trust substantially complies
with the fourth requirement.
Requirement 5: The Indian tribe is the owner of the trust for tax purposes and all the trust assets
and the trust principal and income are subject to claims of general creditors of the
Indian tribe under applicable federal, state, local, and tribal law.
The Tunica-Biloxi Tribe's Trust Does Not Meet Requirement
5: The Tunica-Biloxi Tribe’s Trust does not specifically state the Tribe is the owner
of the trust for tax purposes, and there is conflicting evidence whether the Tribe
contemplated that possibility. The Tunica-Biloxi Tribe’s Trust provides the Trustee
has the power to sign and file all income tax returns on behalf of the trust and to
reimburse the Tribe for any tax payments the Tribe owes for payments made to the Trust.
See Tunica-Biloxi Tribe’s Trust, Sections 7.10, 7.14. On the other hand, the evidence
includes an IRS Schedule K-1 from Providence First Trust Company to the NH identifying
the NH’s share of the trust’s interest income, dividends, and capital gains. See Providence
First letter. The Tunica-Biloxi Tribe’s Trust also does not specifically state the
trust principal and income are subject to claims of the Tribe’s general creditors
under applicable federal, state, local, and tribal laws. In fact, the Tunica-Biloxi
Tribe’s Trust is a “spend-thrift trust” and appears to contemplate only distributions
to the beneficiary or heirs, on behalf of a beneficiary, to a Trustee advisor for
services, or to the Tribe for tax reimbursement. See Tunica-Biloxi Tribe’s Trust,
Sections 3.1-3.5, 5.1-5.4, 7.1, 7.14, 8.3; see also Tunica-Biloxi Tribe’s Trust, Article
IV. The Trustee and Tribe are specifically prohibited from borrowing the principal
or income of the Trust, directly or indirectly. See Tunica-Biloxi Tribe’s Trust, Section
7.12. Thus, we believe the Tunica-Biloxi Tribe’s Trust does not substantially comply
with the fifth requirement.
Requirement 6: At all times while the trust is in effect, the principal and income of the trust
must be subject to claims of general creditors under applicable law. In addition,
the trust documents must require the trustee to cease payments to or for the benefit
of the beneficiary and must require that the trustee hold trust assets for the benefit
of the Indian tribe’s general creditors throughout any period during which the trustee
believes or has reason to believe that the Indian tribe is unable to pay its debts
as they become due, or is subject to a pending insolvency or bankruptcy proceeding.
The Tunica-Biloxi Tribe’s Trust Does Not Meet Requirement
6: The Tunica-Biloxi Tribe’s Trust does not address whether the principal and income
are subject to the Tribe’s general creditors or provide for the Trustee to cease payments
to or for the benefit of the beneficiary and hold trust assets for the benefit of
the Tribe’s general creditors throughout any period during which the Trustee believes
or has reason to believe that the Tribe is unable to pay its debts as they become
due, or is subject to a pending insolvency or bankruptcy proceeding. Instead, the
Trust indicates it is a “spendthrift trust” with no express provision for the principal
and interest of the Trust to be subject to claims of general creditors. See Tunica-Biloxi
Tribe’s Trust, Article IV. Thus, the Tunica-Biloxi Tribe’s Trust does not substantially
comply with this sixth requirement.
Requirement 7: The trust beneficiary does not have any preferred claim on or beneficial ownership
interest in any assets of the trust, and any rights created under the trust documents
must be unsecured rights. In addition, amounts payable to, or for his or her benefit,
cannot be anticipated, assigned (either at law or at equity), alienated, pledged,
encumbered or subjected to garnishment, levy, or other legal or equitable process.
The Tunica-Biloxi Tribe’s Trust Does Not Meet Requirement
7: The Tunica-Biloxi Tribe’s Trust states the Trust is a spendthrift trust and subject
to the maximum spendthrift restraint on voluntary or involuntary alienation. See Tunica-Biloxi
Tribe’s Trust, Article IV. The Tunica-Biloxi Tribe’s Trust also indicates the beneficiary
is restrained from alienating his interest. See Tunica-Biloxi Tribe’s Trust, Section
5.2. However, the Tunica-Biloxi Tribe’s Trust does not specify whether the beneficiary
has any preferred claim or beneficial ownership in trust assets or any secured rights
under the trust. The Tunica-Biloxi Tribe’s Trust also does not indicate that amounts
payable to the beneficiary or for his or her benefit cannot be anticipated, assigned,
pledged, or encumbered. Thus, we believe the Tunica-Biloxi Tribe’s Trust does not
substantially comply with this seventh requirement.
Requirement 8: Trust assets are not available to or for the benefit of the beneficiary until the
beneficiary ceases to be a minor or legal incompetent, except for the distributions
for the beneficiary’s health, education, or welfare made at the discretion of the
trustee and pursuant to the trust instrument.
The Tunica-Biloxi Tribe’s Trust Does Not Meet Requirement
8: The Tunica-Biloxi Tribe’s Trust provides for distributions to the beneficiary beginning
at the age of 18 if he or she has graduated from high school, as well as for distributions
at the Trustee’s discretion for the beneficiary’s health, education, or welfare. See
Tunica-Biloxi Tribe’s Trust, Sections 5.1, 5.3, 7.2. However, the Tunica-Biloxi Tribe’s
Trust also permits the Tribe to terminate the Trust if the Tribe considers distribution
of the trust assets to be in the beneficiary’s best interest, “considering the demonstrated
ability of the beneficiary to handle money and property wisely, and to use judgment,
prudence and discretion, and considering any other factors the [Tribe] may consider
relevant.” See Tunica-Biloxi Tribe’s Trust, Section 5.2. The Tunica-Biloxi Tribe’s
Trust also provides circumstances when the Tribe may direct the Trustee to distribute
so much of the beneficiary’s share of income and principal as the Tribe determines
is required for the beneficiary’s comfort, support, maintenance, and benefit. See
Tunica-Biloxi Tribe’s Trust, Section 9.3. Thus, the Tunica-Biloxi Tribe’s Trust would
permit the Tribe to distribute the Trust assets before the beneficiary reaches age
18 and for purposes other than the beneficiary’s health, education, or welfare. As
a result, we do not believe the Tunica-Biloxi Tribe’s Trust substantially complies
with this eighth requirement.
Requirement 9: Upon the beneficiary’s death, the beneficiary’s share must be paid to the Indian
tribe, unless the trust document provides for payment either: (1) to persons who may
inherit from the beneficiary under applicable state or tribal inheritance laws; or
(2) based on the terms of a valid will or trust of the beneficiary.
The Tunica-Biloxi Tribe’s Trust Meets Requirement 9: The Tunica-Biloxi Tribe’s Trust states that upon a beneficiary’s death, the beneficiary’s
share will be paid in the following order: (1) in proportion by root to the beneficiary’s
descendants who are also Tribal members; (2) in equal proportion to surviving siblings
who are also Tribal members or in proportion by root to a predeceased sibling’s descendants
who are also Tribal members (3) in equal proportion to surviving parents who are also
Tribal members; and (4) if there are no surviving persons as identified above, to
the Tribe. See Tunica-Biloxi Tribe’s Trust, Sections 3.1-3.5. Although we cannot locate
any Tunica-Biloxi Tribal Inheritance Code, we note that Louisiana law permits descendants,
ascendants, collaterals, and spouses to inherit through intestate succession. See
La. Civ. Code, Art. 880, et. seq. Thus, the Tunica-Biloxi Tribe’s Trust details that
upon the beneficiary’s death the Trustee may make payments to persons who may inherit
under Louisiana law. As a result, we believe the Tunica-Biloxi Tribe’s Trust substantially
complies with this ninth requirement.
Again, the Tunica-Biloxi Tribe’s Trust must substantially comply with the nine requirements
for the Tribes to be considered the grantor of the Trust. See POMS SI 01120.195E. As shown above, the Tunica-Biloxi Tribe’s Trust does not substantially comply with
requirements one, three, five, six, seven, and eight. Therefore, SSA policy for evaluating
IGRA trusts instructs that the Tribe cannot be considered the grantor of the Tunica-Biloxi
Tribe’s Trust. See id.
When a tribe is not the grantor of the IGRA trust, and a trust is established on or
after January 1, 2000, SSA follows the policy in POMS SI 01120.201 for trusts that are established with the assets of an individual. See POMS SI 01120.195D. Here, as explained above, we believe it is reasonable for the agency to find that
the Tribe is not the grantor of the Tunica-Biloxi Tribe’s Trust upon application of
specific agency policy. Thus, POMS SI 01120.201 is the appropriate instruction for determining whether the assets in the Tunica-Biloxi
Tribe’s Trust are a resource for the NH’s SSI eligibility.
3. POMS SI 01120.201: SSA Policy for Trusts Established With the Assets of an
Individual on or after January 1, 2000.
As stated, POMS SI 01120.201 contains the policy instructions for trusts established with the assets of an individual
on or after January 1, 2000. In accordance with the general trust resource counting
provisions of Section 1613(e)(3), (5) of the Social Security Act (Act) (as codified
at 42 U.S.C. § 1382b(e)), in the case of a revocable trust established with an individual’s
assets after January 1, 2000, the entire corpus (principal) of the trust is counted
as a resource to the individual. See 42 U.S.C. § 1382b(e)(3)(A); POMS SI 01120.201D1a. In the case of an irrevocable trust established with an individual’s assets after
January 1, 2000, if there are any circumstances under which payment from the trust
could be made to or for the benefit of the individual, the portion of the corpus from
which the payment could be made is counted as a resource available to the individual.
See 42 U.S.C. § 1382b(e)(3)(B); POMS SI 01120.201.D2a. The Tunica-Biloxi Tribe’s Trust indicates it is an irrevocable trust.
However, there are two exceptions to the resource counting provisions of Section 1613(e)(3)
of the Act referred to as the Medicaid trust exceptions and provided for in section
1917(d)(4)(A) and (C) of the Act (codified at 42 U.S.C. § 1396p(d)(4)(A), (C)). See
42 U.S.C. § 1382b(e)(1), (5); POMS SI 01120.203. These exceptions are commonly known as the special needs trust exception and the
pooled trust exception. See POMS SI 01120.203. Therefore, unless the Tunica-Biloxi Tribe’s Trust qualifies for one of these exceptions,
the Tunica-Biloxi Tribe’s Trust counts as the NH’s resource. Thus, we next turn to
whether one of these trust exceptions applies such that the Tunica-Biloxi Tribe’s
Trust is not counted as the NH’s resource. See POMS SI 01120.203.[17]
a. The Tunica-Biloxi Tribe’s Trust Does Not Qualify for the Special Needs Trust
Exception.
To qualify for the special needs trust exception to the resource counting provisions
of Section 1613(e) of the Act, the trust must meet the following requirements:
-
1.
The trust must contain the assets of a disabled individual under age 65;
-
2.
The trust must be established for the sole benefit of such individual through the
actions of a parent, grandparent, legal guardian, or court;[18] and
-
3.
The trust must provide that the State or States will receive all amounts in the trust
upon the death of the individual, up to an amount equal to the total medical assistance
paid on behalf of the individual under a State Medicaid plan.
See 42 U.S.C. § 1396p(d)(4)(A); POMS SI 01120.203B1.
Here, the Trust contains many different individuals’ assets and, therefore, does not
appear to meet the second requirement. Further, even if we considered the NH’s subaccount
as a separate Trust, the third requirement is not met because the Tunica-Biloxi Tribe’s
Trust contains no provision regarding reimbursement to the State up to an amount equal
to the total medical assistance paid on behalf of the individual under a State Medicaid
plan. Therefore, the Tunica-Biloxi Tribe’s Trust does not meet the special needs trust
exception to the SSI resource counting rule for trusts.
b. The Tunica-Biloxi Tribe’s Trust Does Not Qualify for the Pooled Trust
Exception.
A pooled trust is a trust that contains many different individuals’ assets, segregated
into separate subaccounts. POMS SI 01120.203D1. To qualify for the pooled trust exception under the Act, a trust must contain assets
belonging to a disabled beneficiary and must satisfy all of the following conditions:
-
1.
The trust must be established and managed by a non-profit association;
-
2.
A separate account must be maintained for each disabled beneficiary of the trust;
but, for purposes of investment and management of funds, the trust may pool these
accounts;
-
3.
Accounts in the trust must be established solely for the benefit of disabled individuals
(as defined in section 1614(a)(3) of the Act);
-
4.
Accounts in the trust must be established by the parent, grandparent, or legal guardian
of such disabled beneficiaries, by such disabled beneficiaries, or by a court; and
-
5.
The trust must provide that to the extent that any amounts are remaining in the disabled
beneficiary’s account upon the death of the beneficiary are not retained by the trust,
the trust must pay to the State the amount remaining up to an amount equal to the
total amount of medical assistance paid on behalf of the disabled beneficiary under
the State Medicaid plan.
42 U.S.C. § 1396p(d)(4)(C); POMS SI 01120.203D1.
Here, the Tunica-Biloxi Tribe’s Trust cannot satisfy the pooled trust exception because
it does not provide for State Medicaid plan reimbursement upon the death of a beneficiary.
42 U.S.C. § 1396p(d)(4)(C); POMS SI 01120.203D1. Therefore, the Tunica-Biloxi Tribe’s Trust does not meet the pooled exception to
the SSI resource counting rule for trusts.
c. The Tunica-Biloxi Tribe’s Trust Counts as a Resource to the NH.
In summary, as the Tribe is not the grantor of the Tunica-Biloxi Tribe’s Trust, SSA
policy set forth in POMS SI 01120.201 instructs that the corpus of this irrevocable Trust (the per capita portion attributable
to the NH) is counted as a resource to the NH, a minor child, for SSI resource-counting
purposes. See POMS SI 01120.195D, SI 01120.201. As explained above, the Tunica-Biloxi Tribe’s Trust for minor children does not
qualify for either the special needs trust or pooled trust exception for SSI resource
counting purposes. Had the Tunica-Biloxi Tribe’s Trust qualified for either the special
needs trust or pooled trust exception, agency policy would have required further analysis
of the regular resource counting rules to determine whether the portion of the Trust
attributable to the NH could be excluded from her resources for purposes of SSI eligibility.
Seesupra, fn. 8 (citing POMS SI 01120.203B1, SI 01120.203C1, SI 01120.203D1). We need not further analyze the Trust under the regular resource counting rules
because the portion of an irrevocable trust that permits payment to of for the benefit
of the individual is counted as a resource available to the individual if the trust
does not satisfy either the special needs trust or pooled trust exception. See 42
U.S.C. § 1382b(e)(3)(B); POMS SI 01120.201D2a .
CONCLUSION
In conclusion, as to your threshold question, we generally defer to the determination
of the DOI for questions of whether a tribe’s trust complies with the IGRA. Although
the evidence provided does not address whether the Secretary of the DOI has approved
Tunica-Biloxi Tribe’s RAP, we have determined from publicly available DOI documents
that the Secretary has approved the RAP.
We understand that you also are concerned with whether SSA’s instructions for evaluating
IGRA trusts contained in POMS SI 01120.195 apply to this matter. Based on the Tribe’s citation to the IGRA in the Tunica-Biloxi
Tribe’s Trust, we believe it would be reasonable for the agency to apply SSA policy
found in POMS SI 01120.195 for trusts established under the IGRA for minor children, in combination with resource
counting rules, to determine whether the Tunica-Biloxi Tribe’s Trust assets are the
NH’s resource under SSI resource counting rules.
As to the second question, in applying POMS SI 01120.195 and SI 01120.201, we believe the agency may reasonably conclude that the assets in the Tunica-Biloxi
Tribe’s Trust are counted as a resource to the NH under SSI resource counting rules
because: (1) the Tribe is not the grantor for the Tunica-Biloxi Tribe’s Trust under
the agency’s specific policy and instructions; (2) the irrevocable Tunica-Biloxi Tribe’s
Trust was established with the NH’s assets on or after January 1, 2000 and it permits
payment to or for the benefit of the NH; and (3) the Tunica-Biloxi Tribe’s Trust does
not qualify for either the special needs trust or pooled trust exceptions. See POMS
SI 01120.195, SI 01120.201, SI 01120.203.