SSI is a general public assistance program for aged, blind, or disabled individuals who meet certain income and resource restrictions and other eligibility requirements. See 20 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. See 20 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 C-A Tribes’ IGRA 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 C-A Tribes IGRA Trust establishing a trust for minor children qualifies as an IGRA trust.

 

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:

• •

  Fund tribal government operations or programs;

• •

  Provide for the general welfare of the tribe or its members;

• •

  Promote tribal economic development;

• •

  Donate to charitable organizations; or

• •

  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.”).

It Would Be Reasonable for the Agency to Apply POMS SI 01120.195 to the C-A Tribes’ IGRA Trust as an IGRA Trust.

You asked whether the C-A Tribe’s IGRA 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 Tribes’ RAP and any trust formed under the RAP complies 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 C-A Tribes’ IGRA Trust expressly states that DOI approved the Tribes’ RAP in 2002, as amended in 2005, and that subsequent amendments will be done in compliance with Section 11(b)(3) of IGRA, 25 U.S.C. § 2710(b)(3). See C-A Tribes’ IGRA Trust, Recital C. In relevant part, the referenced portion of the IGRA reads that a tribe may use gaming revenues to make per capita payments to members of the tribe only if “the plan is approved by the Secretary as adequate,” referring to the Secretary of DOI. 25 U.S.C. § 2710(b)(3)(B).

Accordingly, based on the C-A Tribes’ IGRA Trust provisions stating that DOI approved the RAP governing the Trust, 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 to the present matter to determine whether the C-A Tribes’ IGRA 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 C-A Tribes’ IGRA Trust as resources to the NH.

 

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.”^[3] 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 01120.195.B. 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 Tribes are the grantor of the C-A Tribes’ IGRA Trust.^[4]

POMS SI 01120.195E: 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.^[5] See POMS SI 01120.195E (“SSA treats the Indian tribe as the grantor of an IGRA trust if the trust substantially complies with the following requirements”). Here, the C-A Tribes’ IGRA Trust appears to meet all the requirements for the Tribes to be the grantor of the C-A Tribes’ IGRA 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 C-A Tribes’ IGRA Trust Meets Requirement 1: The C-A Tribes’ IGRA Trust clearly states that the Trust is established for the benefit of the Tribes’ members who are minors or legally competent adults and the Tribes fund the trust solely through per capita payments from gaming revenues. See C-A Tribes’ IGRA Trust, Recitals A, C. Specifically, the C-A Tribes’ IGRA Trust states its purpose to establish a trust for minor and legally incompetent members, “authorizing distributions to be placed in this Trust and derived from the per capita distribution of IGRA regulated gaming revenues….” C-A Tribes’ IGRA Trust, Recital C. Thus, the C-A Tribes’ IGRA Trust meets this 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 C-A Tribes’ IGRA Trust Meets Requirement 2: The NH, born in 2002, has been a minor at all relevant times. Indeed, the Master Trust suggests only minor or legally incompetent adults can have a trust account in the C‑A Tribes’ IGRA Trust. The Tribes stated the purpose of the C-A Tribes’ IGRA Trust is to establish a trust for minor and legally incompetent members, “authorizing distributions to be placed in this Trust and derived from the per capita distribution of IGRA regulated gaming revenues….” C-A Tribes’ IGRA Trust, Recital C. In furtherance of that purpose, the Tribes establish trust accounts for each minor child and legally incompetent adult who is a member of the Tribes. See Master Trust, Article 1.02. Thus, the C-A Tribes’ IGRA Trust meets this second requirement.

Requirement 3:The trust only allows contributions while the beneficiary is still a minor or legally incompetent.

The C-A Tribes’ IGRA Trust Meets Requirement 3: While the C-A Tribes’ IGRA Trust does not specifically state that contributions will only be made while a beneficiary is a minor, the Trusts’ provisions state that contributions are made on behalf of minors and legally incompetent adults. C-A Tribes’ IGRA Trust, Recital F. None of the C-A Tribes’ IGRA Trust provisions defines “minor” as including any individual over the age of 18. Thus, the C-A Tribes’ IGRA Trust contemplates contributions only while the beneficiary remains a minor or legally incompetent.

We note in some instances the C-A Tribe’s IGRA Trust permits the Trustee to hold assets for a beneficiary who is no longer a minor, but no Trust provision indicates the Tribe would continue contributing to the beneficiary’s trust after he or she is no longer a minor. The Master Trust states a beneficiary is not required to request trust funds at the time he or she is no longer a minor. See Master Trust, Article 3.03. If a beneficiary has not obtained a high school diploma, then Trust funds are not distributed or available to the beneficiary until age 20. See Master Agreement, Schedule 2. However, the question of when distributions must be made does not directly address how long the tribe will make per capita contributions to the Trust. Thus, a provision requiring the funds be retained beyond age 18 for individuals without a high school diploma, does not affect the determination as to whether the Tribes are the grantor of the Trust. See POMS SI 01120.195E NOTE.

Thus, we believe the C-A Tribes’ IGRA Trust meets this third requirement.

Requirement 4: The trust instrument states that it is a grantor trust and the Indian tribe is 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 C-A Tribes’ IGRA Trust Meets Requirement 4: The C-A Tribes’ IGRA Trust clearly states it is a grantor trust, the Tribes are the grantor of the trust, and the Tribes retain power or interest in the trust assets. See Master Trust, Article 2.01. Thus, the C-A Tribes’ IGRA Trust meets 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 C-A Tribes’ IGRA Meets Requirement 5: The C-A Tribes’ IGRA Trust states the Tribes are the owners of the Trust for federal income tax purposes, and that the trust principal and income are subject to the Tribes’ general creditors under applicable federal, state, local and tribal law. See Master Trust, Articles 2.01, 2.07. Thus, the C-A Tribes’ IGRA Trust meets 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 C-A Tribes’ IGRA Trust Meets Requirement 6: The C-A Tribes’ IGRA Trust specifically states that on request, the Trustee will cease payments to and for the beneficiaries’ benefit and hold the trust assets for the benefit of the Tribes’ general creditors throughout any period during which the Trustee has been notified that the Tribes are unable to pay debts as they become due, or are subject to a pending insolvency or bankruptcy proceeding. Thus, the C-A Tribes’ IGRA Trust substantially meets 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 C-A Tribes’ IGRA Trust Meets Requirement 7: The C-A Tribes’ IGRA Trust states beneficiaries have no preferred claim on, or any beneficial ownership interest in, any assets of the Trust; any rights created under the Trust are mere unsecured rights of beneficiaries against the Tribes; and any beneficiary’s balance, amounts payable to or for the benefits of beneficiaries under the Trust may not be anticipated, assigned (either at law or in equity), alienated, pledged, encumbered or subjected to the beneficiary’s creditors, bankruptcy, attachment, garnishment, levy, execution, or other legal or equitable process. See C-A Tribes’ IGRA Trust, Articles 2.06, 2.09. Thus, the C-A Tribes’ IGRA Trust meets 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 C-A Tribes’ IGRA Trust Meets Requirement 8: The C-A Tribes’ IGRA Trust states that Trust assets are not available to or for the benefit of a beneficiary until the beneficiary ceases to be a minor and meets the other applicable requirements set forth in Schedule 2, except for distributions for the health, education, or welfare of the Beneficiary made at the discretion of the Trustee. See C-A Tribes’ IGRA Trust, Article 2.05. Schedule 2 explains a beneficiary who has obtained a high school diploma can receive the trust account balance at age 18, but a beneficiary who has not obtained a high school diploma cannot access the balance until age 20. See C-A Tribes’ IGRA Trust, Schedule 2. Notably, distributions are not mandatory when the beneficiary reaches the applicable age but rather, are distributed only on the beneficiary’s request when he or she reaches the age of eligibility. See C-A Tribes’ IGRA Trust, Article 3.03. Thus, the C-A Tribes’ IGRA Trust meets 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 C-A Tribes’ IGRA Trust Meets Requirement 9: The C-A Tribes’ IGRA Trust states that upon a beneficiary’s death, the beneficiary’s share will be paid (1) to the beneficiary’s surviving spouse, if that spouse is an enrolled member of the Tribes; (2) in equal shares to any surviving children who are enrolled members of the Tribes; (3) in equal shares to surviving parents of the beneficiary who are enrolled members of the Tribes; (4) in equal shares to any surviving siblings of the beneficiary who are enrolled members of the Tribes; and (5) if there are no surviving persons as identified above, to the Tribes as Trustor. See C-A Tribes’ IGRA Trust, Article 3.05. Alternatively, if the beneficiary has a valid will or trust, then the Trustee will distribute the beneficiary’s share as directed in the will or trust. SeeId. Although the C-A Tribes of Oklahoma Law and Order Code does not specifically define the order of heirship, it permits heirship to be proven through the Tribes’ customs. See C-A Tribes’ of Oklahoma Law & Order Code, Civ. Proc. § 1105(b) (available at

civilprocedure3.html). Because the C-A Tribes’ IGRA Trust states that the Trust conforms to the IRS safe harbor guidance for treating the Trust as a tribally-owned grantor trust from which SSA policy derived (C-A Tribes’ IGRA Trust, Recitals A, C; Article 3.10), we believe it reasonable to conclude the Trust document correctly identifies the tribal custom for order of heirship. Accordingly, upon the beneficiary’s death, the beneficiary’s share can only be distributed to the Tribe, an heir under tribal inheritance law, or a devise or beneficiary under a valid will or trust. Thus, the C-A Tribes’ IGRA Trust substantially meets this ninth requirement.

Again, the C-A Tribes’ IGRA Trust must substantially satisfy the nine requirements for the Tribes to be considered the grantor of the Trust. See POMS SI 01120.195E. As shown above, the C-A Tribes’ IGRA Trust meets all of the requirements. Therefore, SSA policy for evaluating IGRA trusts instructs that the Tribes be considered the grantor of the C-A Tribes’ IGRA Trust. See id.

When a tribe is the grantor of an IGRA trust, SSA follows the policy in POMS SI 01120.200 as to trusts established with the assets of third parties to determine if the trust is a resource and if disbursements from the trust are countable income. See POMS SI 01120.195D. Here, as explained above, we believe it is reasonable for the agency to find that the Tribes are the grantor of the Trust upon application of specific agency policy. Thus, POMS SI 01120.200 is the appropriate instruction for determining whether the assets in the C-A Tribes’ IGRA Trust are a resource for purposes of the NH’s SSI eligibility. We next analyze whether the C-A Tribes’ IGRA Trust assets are the NH’s resource under the regular resource counting rules for third-party grantor trusts.

POMS SI 01120.200: SSA Policy for Trusts Established With the Assets of Third Parties.

POMS SI 01120.200 contains the policy instructions for trusts established with the assets of third parties. Under the regular resource rules, the trust principal will be a resource if the individual (1) has the legal authority to revoke or terminate the trust and use the assets to meet his or her needs for food or shelter, (2) can direct the use of the trust principal for his or her support and maintenance under the terms of the trust, or (3) can sell it. See POMS SI 01120.200D1a. For the following reasons, we believe the agency may reasonably conclude that the assets in the C-A Tribes’ IGRA Trust are not counted as a resource to the NH under SSI resource counting rules.

Addressing the first two criteria, a beneficiary of the C-A Tribes’ IGRA Trust cannot revoke or terminate his or her individual beneficiary account and use the assets to meet his or her needs for food and shelter, and the beneficiary does not have the authority to direct the use of Trust principal for his or her own support or maintenance. The C-A Tribes’ IGRA Trust specifically states that individual beneficiary trust assets are not available to or for the benefit of the beneficiary until the beneficiary ceases to be a minor, except for distributions for the health, education, or welfare of the beneficiary made at the discretion of the Trustee. See C-A Tribes’ IGRA Trust, Article 2.05. Thus, the Trustee has sole discretion to distribute funds from the individual beneficiary’s trust account and the beneficiary has no power to direct use of trust funds for his or her support and maintenance. Importantly, the C-A Tribes’ IGRA Trust also specifically states that the Trust is irrevocable. See C-A Tribes’ IGRA Trust, Article 1.04. Agency policy states that if a trust is irrevocable by its terms and under State law, and the trust beneficiary cannot control or direct the use of trust assets for his or her own support and maintenance, the trust is not a resource. See POMS SI 01120.200D2.

Addressing the third criteria, the C-A Tribes’ IGRA Trust indicates that a beneficiary cannot sell his or her beneficial interest in the Trust. Particularly, the C-A Tribes’ IGRA Trust states that the Tribes are the grantor and owner of the Trust and beneficiaries have no preferred claim on, or any beneficial ownership interest in any trust assets. See C-A Tribes’ IGRA Trust, Articles 2.01, 2.06. Additionally, the Trust states that “[a]ny Beneficiary’s trust balance, amounts payable to or for the benefit of Beneficiaries under the Trust Agreement may not be anticipated, assigned (either at law or in equity), alienated, pledged, encumbered or subjected to the Beneficiary’s creditors, bankruptcy, attachment, levy, execution, or other legal equitable process.” See C-A Tribes’ IGRA Trust, Article 2.09. Thus, a beneficiary cannot sell his or her beneficial interest in the Trust.

Based on these terms, the NH does not have the authority to revoke or terminate his individual account in the C-A Tribes’ IGRA Trust to use the assets for his own support or maintenance. Further, the NH does not have the right to sell his beneficial interest in the C-A Tribes’ IGRA Trust. Therefore, it is our opinion that the NH’s share in the C-A Tribes’ IGRA Trust principal is not the NH’s resource under the regular resource rules in POMS SI 01120.200.

CONCLUSION

In conclusion, as to your first question, we defer to the DOI’s determination that the C-A Tribes’ IGRA Trust, which provides for the establishment of a trust for minor children, complies with IGRA. Under the IGRA, the Secretary of DOI has the authority to approve an Indian tribe’s RAP establishing a trust for minors and incompetent adults to receive per capita payment from gaming activities. Thus, although you asked whether the C-A Tribes’ IGRA Trust qualifies as an IGRA trust, SSA does not make such determinations. Based on the information provided to SSA, 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 to the present matter to determine whether the C-A Tribes’ IGRA 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.”).

As to the second question, in applying SSA policy in POMS SI 01120.195 and SI 01120.200 to the C-A Tribes’ IGRA Trust, we believe the agency may reasonably conclude that the assets in the Trust are not counted as a resource to the NH under SSI resource counting rules because: (1) the Tribes are the grantor for the C-A Tribes’ IGRA Trust under the agency’s specific policy instructions; and (2) the C-A Tribes’ IGRA Trust does not qualify as a resource under regular resource counting rules for third-party trusts. See POMS SI 01120.195, SI 01120.200.