Tabled Ord. No. 799 (2011)
WHEREAS, Enrolled members of the Eastern Band of Cherokee Indians receive per capita distributions twice a year; and
WHEREAS, the Tribal law prohibits adult members from utilizing certain private contractual agreements, namely assignments, of their own present and future interests in the per capita payments except when the assignment benefits the Tribe; and
WHEREAS, this law is unfair for many tribal members who have a great need and would like to utilize an assignment agreement as a form of payment for professional services (defined as services the provision of which requires a professional license) such as legal services and funeral services but are prohibited from this otherwise legal contractual agreement; and
WHEREAS, a change in the law to allow adult tribal members full rights to make legal decisions about their interests in their per capita income as it concerns professional services is warranted when professional services are often unforeseen and significantly emergent in nature; and
WHEREAS, such a change in the law would not likely create an excessive burden on the Tribe’s budget and finance office if the assignments were allowed for true professional services and the license for the service could be attached to the assignment form provided to the budget and finance division.
NOW, THEREFORE BE IT ORDAINED by the Tribal Council of the Eastern Band of Cherokee Indians assembled, at which a quorum is present, that Chapter 16C section 16C-5 be amended to allow assignment agreements between the enrolled members for professional services provided by private businesses licensed to do business on the reservation and to read as follows:
(e) Voluntary assignment. This subsection shall apply only to debts owed to the Tribe or to a Tribal entity listed in section 16C-2 or professional services from licensed professionals doing business on tribal trust property. A member who owes an obligation to the Tribe or a Tribal entity or professional service provider may enter into a voluntary assignment agreement for all or part of the amount of the scheduled disbursement, subject to the following limitations:
(1) The Office of the Attorney General shall develop a voluntary assignment agreement form. Voluntary assignments shall not be enforced unless they are completed on the proper form, notarized, and filed with the Tribal Finance Office at least 30 days prior to a scheduled per capita disbursement.
(2) A Tribal entity or person requesting a voluntary assignment shall first pay a fee of $35.00 to the Tribal Finance Office to defer the costs of administering the voluntary assignment, which fee will be charged to the member.
(3) A voluntary assignment may cover past and/or future obligations owed by the member to the Tribe or Tribal Entity. A single assignment may obligate multiple per capita distributions, such as to ensure repayment on a monthly basis of a tribally guaranteed home mortgage loan, however a separate fee shall be administered for each per capita distribution.
(4) Voluntary assignments, unless they expressly state otherwise, convey to the Tribe or professional service provider, all present and future right, title and interest in per capita distributions, they shall remain in effect and are irrevocable until the debt for which the assignment is made is paid in full.
(5) A Tribal member who receives a Tribal guarantee of a loan to purchase, refinance, construct or improve a home under a loan guarantee program approved by the Tribal Council may assign his or her per capita in advance to the Tribal division, program or entity charged with administering the guarantee program, or have his/her per capita garnished by the Tribe or Tribal Entity under subsection (d), for repayment of the debt owed to the Tribe or the lender, maker, holder, successor or assign of the mortgage.
(f) Priorities. In the event there are multiple garnishments or assignments against a member, priority for disbursement of funds shall be as follows:
(1) Garnishment under subsection (d) for child support;
(2) Garnishment under subsection (d) for debts to the Tribe or a Tribal Entity; and
(3) Assignments under subsection (e) for debts to the Tribe or a Tribal Entity. Within each category above, priority shall be determined by the date of the garnishment order or the grant of the assignment.
(4) Assignments under subsection (e) for debts to a professional service provider. Within each category above, priority shall be determined by the date of the assignment, earlier assignments getting priority until paid.
BE IT FINALLY ORDAINED that this ordinance shall become effective when ratified by the Principal Chief and that all ordinances that are inconsistent with this law are rescinded.
– Submitted by Bruce Martin, Jr. and Bruce Martin, Sr.