Section ADM.04.10 — Miscellaneous.

(a) Governing Law; Sovereignty. All rights and liabilities associated with the enactment of this Ordinance, or the Assistance payments made hereunder, shall be construed and enforced according to the laws of the Tribe. The Tribal Council, through the Stockbridge-Munsee Constitution, is vested with the authority and discretion to construe the terms of the Ordinance. In the event of a disagreement in interpreting the requirements of this Ordinance, the Tribal Council's decision is final. Nothing in this Ordinance or the related policies or procedures, if any, shall be construed to make applicable any laws or regulations which the Tribe is entitled to exemption from, in accordance with its sovereign status. Nothing herein shall be construed as a waiver of sovereign immunity.

(b) Dispute Resolution and Reconsideration. The Council has final authority on disputes arising under this Ordinance; however, Beneficiaries are entitled to due process rights regarding a dispute arising from this Ordinance. This due process is provided in the form of Beneficiaries petitioning the Council for reconsideration of a decision that negatively impacts them or the Assistance for which they may have applied. Any petition for reconsideration must be submitted in writing to the Tribal Secretary within 20 days of the action that impacted them negatively.

(c) Legislative History; Rules of Construction. The following subsections detail the legislative history regarding consultation and legislative efforts by tribes, tribal organizations, the United States Treasury Department and the United States Congress in relation to the Tribal General Welfare Exclusion Act of 2014 and shall be taken into account in construing the terms and application of this Ordinance:

(d) Following a series of IRS audits largely concentrated from 2003-2011 in which tribal programs were subjected to review and, in some cases, members were subjected to taxation, tribes and tribal organizations joined in efforts to secure better guidance with regard to the taxation of member benefits. In 2011, the United States Treasury Department and IRS commenced national efforts to improve guidance on tribal general welfare matters. Notice 2011-94 invited comments from tribal governments concerning the application of the Act to Indian tribal government programs. Tribes participated in that process individual and through joint comments with tribal organizations seeking clarity with regard to the sovereign right of tribes to provide tax free assistance based on non-financial need criteria including the preservation of culture and tradition. Tribes also participated in individual consultation efforts wherein IRS and Treasury acknowledged the need to address and accommodate unique tribal issues such as preservation of culture and tradition.

(e) On December 5, 2012, the IRS and Treasury Department issued Notice 2012-75 proposing new guidance and providing interim relief under the Act for Programs that meet designated safe harbor rules. On June 3, 2014, the Treasury Department issued final guidance in the form of Revenue Procedure 2014-35 confirming that IRS will not tax Member Assistance that meets designated IRS safe harbor requirements.

(f) In September of 2014, tribal representatives and tribal organizations worked with the United States Congress to clarify that Bills then pending in the House (HR 3043) and in the Senate (SB 1507) were in fact intended to expand tribal general welfare exclusion rights and build upon the safe harbor and general test relief previously recognized by the IRS and the Department of Treasury. On September 17, 2014, Senators Moran and Heitkamp, co-sponsors of SB 1507 engaged in a colloquy with the Chairman of the Senate Finance Committee, Senator Wyden, on the Congressional Record of the Senate confirming their understanding and intent that:

(1) IRS would apply SB 1507 "no less favorable than the safe harbor approach provided for in Revenue Procedure 2014-35, and that in no event will IRS require an individualized determination of financial need where a tribal Program meets all other requirements of new section 139E as added by the bill."

(2) The bill requires that "any ambiguities in new Code section 139E shall resolved by the IRS in favor of Indian tribal governments and deference shall be given to Indian tribal governments for programs administered and authorized by the Tribe to benefit the general welfare of the Tribal community."

(3) It "would be contrary to the intent of Congress" if IRS were to "take the occasion of passage of H.R. 3043 or S. 1507 to retrench, narrow or possibly withdraw the administrative guidance provided in Rev. Proc. 2014-35 after enactment of the bill."

(4) The Congressional intent "is to expand rather than restrict the safe harbor provisions in Rev. Proc. 2014-35."

(5) "The purpose of this legislation is to further empower Tribal self-determination."

(6) "Tribal governments have a long history of providing critical benefits to tribal members, and these programs are fundamental to the sovereignty and cultural integrity of tribes. Tribes, and not the IRS, are in the best position to determine the needs of their members and provide for the general welfare of their tribal citizens and communities."

(g) On September 18, 2014, the Tribal General Welfare Exclusion Act of 2014 passed both houses of Congress, and the Tribal General Welfare Exclusion Act of 2014 was signed into law on September 29, 2014. The Tribe now expressly embraces the forgoing principles as an integral part of this Ordinance and as guiding principles in construing the Tribe's compliance with the Act and this Ordinance.