You have asked for a legal opinion regarding whether certain payments being made to
members of the Grand Ronde Confederated Tribes should be excluded as unearned income
based on need funded by an Indian Tribe as defined in 20 C.F.R. 416.1124(c)(2).
FACTUAL BACKGROUND
By letter dated July 10, 1996, the Confederated Tribes of the Grand Ronde Community
of Oregon (Confederated Tribes) announced to the Social Security Administration (SSA)
that the Tribes intended to implement a "Tribal Supplemental Security Income Program"
(hereafter Tribal SSI). The program planned to provide Tribal Elders (those age 55
or older) monthly payments of $100, retroactive to January 1, 1996. These payments
would be made from the sale of Tribal Trust timber. The Tribes cited Squire v. Capoeman,
351 U.S. 1 (1955), purportedly as authority to exclude these payments as unearned
income for purposes of Supplemental Security Income (SSI) benefits under Title XVI
of the Social Security Act (hereafter Title XVI SSI). See Letter from Ed Pearsall,
Tribal Secretary, Confederated Tribes of the Grand Ronde Community of Oregon (July
10, 1996).
In August 1996, the then-Regional Commissioner Donald N. Mings, determined that the
$100 monthly payments to Tribal Elders should be counted as unearned income for Title
XVI SSI purposes. See Memorandum from Donald N. Mings, Regional Commissioner's Office
(August 20, 1996). He concluded that the $100 payments could not be excluded as per
capita payment since they were not held in trust at some time before distribution
and that only Tribal Elders in the Confederated Tribes received the payments. Id.
Further, the payments were not "based on need" as required by 20 C.F.R. § 416.1124(c)(2).
Id. This determination was later rescinded when the Confederated Tribes clarified
that the $100 monthly payments would be made only to Tribal Elders who are eligible
for Title XVI SSI benefits. Two years later, SSA questioned whether the Tribal SSI
program is in fact a program "based on need." SSA received information that the $100
payment allegedly increased to $400 and that Tribal members other than Tribal Elders
are receiving the payments.
On July 28, 1998, Ms. Deneen Aubertin, Staff Attorney for the Confederated Tribes,
stated that the Tribes have two Tribal SSI programs "based on need": the Tribal Elder
Program, described above, and the Disability Income Program. Ms. Aubertin described
the Disability Income Program as a program that provides a monthly payment to Tribal
members between the ages of 18 and 55 who are determined to be eligible for Title
XVI SSI due to age, blindness or disability. See Letter from Deneen Aubertin, Staff
Attorney, Confederated Tribes of the Grande Ronde Community of Oregon (July 28, 1998).
This description caused confusion, and you asked us for assistance.
More recently, Ms. Aubertin clarified the Tribal SSI Program as consisting of the
Elder SSI Program, and the Disability/SSI Program (or non-Elder Program). This time
she provided documentation. The Elder SSI Program is administered under Tribal Code
§ 450, which authorizes monthly payments of $100 to Tribal members who are age 55
and older and who are receiving payments under Title XVI SSI. See Letter from Deneen
Aubertin, Staff Attorney, Confederated Tribes of the Grand Ronde Community of Oregon
(February 10, 1999). We have confirmed that the monthly payment under the Elder SSI
Program is currently $500 per month.
The Confederated Tribes have been operating the Disability/SSI Program (or non-Elder
SSI Program) since 1996 without a governing Tribal ordinance. The Disability/SSI Program
is described in a draft ordinance as a program that provides monthly payments to those
Tribal members who are between the ages 18 and 55 and are receiving Title XVI SSI
because of age, blindness or other disability. A provision within the draft ordinance
states:
Members requesting participation in the program shall be required to provide certification
[of] their eligibility for Federal Supplemental Security Income [Title XVI SSI] benefits
and information provided by the Social Security Administration in such form as shall
be required by the Executive Officer, in order to ensure income derived from the program
is not counted against any other benefit to which the participants shall be entitled.
The draft ordinance also states that Tribal members are required to: (1) complete
a Tribal application and agreement; (2) complete a document entitled "Federal Information
Release Form," and (3) attach a copy of their most recent correspondence from SSA
reflecting their eligibility to receive benefits under the Title XVI SSI program.
See Letter from Deneen Aubertin, Staff Attorney, Confederated Tribes of the Grand
Ronde Community of Oregon (February 10, 1999). Although the draft ordinance authorizes
a monthly payment of $300, this amount increased to $400 when the Confederated Tribes
enacted Tribal Resolution No. 007-98 on February 10, 1998.
The Confederated Tribes also have another program called the "Disability Income Program."
Although administered without a governing ordinance, the Disability Income Program
provides payments to Tribal members who are: (1) between the ages of 18 and 55; (2)
eligible for Disability Insurance Benefits under Title II of the Social Security Act
based on blindness or other disability; and (3) experience financial hardship, although
this is not defined. Of significance here is that those Tribal members who are receiving
monthly payments under the Disability/SSI Program (or non-Elder SSI Program) are not
eligible to receive payments under the Disability Income Program. See Letter from
Deneen Aubertin, Staff Attorney, Confederated Tribes of the Grand Ronde Community
of Oregon (February 10, 1999). We have confirmed that the monthly payment under the
Disability Income Program is $400.
DISCUSSION
Section 1612(b)(6) of the Social Security Act, 42 U.S.C.A. § 1382a(b)(6), authorizes
SSA to exclude from countable income any "assistance, furnished to or on behalf of
[an individual] (and spouse), which is based on need and furnished by any state or
political subdivision of a State." The implementing regulation states that SSA does
not count as unearned income:
Assistance based on need which is wholly funded by a State or one of its political
subdivisions (For the purposes of this rule, an Indian tribe is considered a political
subdivision of a State). Assistance is based on need when it is provided under a program
which uses the amount of your income as one factor to determine your eligibility.
20 C.F.R. § 416.1124(c)(2). See also ; POMS 00830.175; Title XVI: Exclusion From Income
of Assistance Based on Need furnished by any State or Political Subdivision, Social
Security Ruling 79-10.
The documentation provided by Ms. Aubertin shows that the Elder SSI Program and the
Disability/SSI Program (or non-Elder SSI Program) are programs "based on need." They
provide supplemental income to Tribal members who are eligible for Title XVI SSI benefits.
The Title XVI SSI program uses the amount of income as a factor in determining eligibility.
See 42 U.S.C.A. § 1382a and 20 C.F.R. Part 416, Subpart K. Thus, the monthly payments
made under the Elder SSI Program and the Disability/SSI Program (or non-Elder Program)
should not be counted as unearned income for SSI purposes.