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U.S. Code as of:
01/19/04
Section 941i. Tribal trust funds
(a) Purposes of trust funds
All funds paid pursuant to section 941c of this title, except for
payments made pursuant to section 941d(g) of this title, shall be
deposited with the Secretary in trust for the benefit of the Tribe.
Separate trust funds shall be established for the following
purposes: economic development, land acquisition, education, social
services and elderly assistance, and per capita payments. Except as
provided in this section, the Tribe, in consultation with the
Secretary, shall determine the share of settlement payments to be
deposited in each Trust Fund, and define, consistently with the
provisions of this section, the purposes of each Trust Fund and
provisions for administering each, specifically including
provisions for periodic distribution of current and accumulated
income, and for invasion and restoration of principal.
(b) Outside management option
(1) The Tribe, in consultation with and subject to the approval
of the Secretary, as set forth in this section, is authorized to
place any of the Trust Funds under professional management, outside
the Department of the Interior.
(2) If the Tribe elects to place any of the Trust Funds under
professional management outside the Department of the Interior, it
may engage a consulting or advisory firm to assist in the selection
of an independent professional investment management firm, and it
shall engage, with the approval of the Secretary, an independent
investment management firm of proven competence and experience
established in the business of counseling large endowments, trusts,
or pension funds.
(3) The Secretary shall have 45 days to approve or reject any
independent investment management firm selected by the Tribe. If
the Secretary fails to approve or reject the firm selected by the
Tribe within 45 days, the investment management firm selected by
the Tribe shall be deemed to have been approved by the Secretary.
(4) Secretarial approval of an investment management firm shall
not be unreasonably withheld, and any Secretarial disapproval of an
investment management firm shall be accompanied by a detailed
explanation setting forth the Secretary's reasons for such
disapproval.
(5)(A) For funds placed under professional management, the Tribe,
in consultation with the Secretary and its investment manager,
shall develop -
(i) current operating and long-term capital budgets; and
(ii) a plan for managing, investing, and distributing income
and principal from the Trust Funds to match the requirements of
the Tribe's operating and capital budgets.
(B) For each Trust Fund which the Tribe elects to place under
outside professional management, the investment plan shall provide
for investment of Trust Fund assets so as to serve the purposes
described in this section and in the Trust Fund provisions which
the Tribe shall establish in consultation with the Secretary and
the independent investment management firm.
(C) Distributions from each Trust Fund shall not exceed the
limits on the use of principal and income imposed by the applicable
provisions of this subchapter for that particular Trust Fund.
(D)(i) The Tribe's investment management plan shall not become
effective until approved by the Secretary.
(ii) Upon submission of the plan by the Tribe to the Secretary
for approval, the Secretary shall have 45 days to approve or reject
the plan. If the Secretary fails to approve or disapprove the plan
within 45 days, the plan shall be deemed to have been approved by
the Secretary and shall become effective immediately.
(iii) Secretarial approval of the plan shall not be unreasonably
withheld and any secretarial rejection of the plan shall be
accompanied by a detailed explanation setting forth the Secretary's
reasons for rejecting the plan.
(E) Until the selection of an established investment management
firm of proven competence and experience, the Tribe shall rely on
the management, investment, and administration of the Trust Funds
by the Secretary pursuant to the provisions of this section.
(c) Transfer of trust funds; exculpation of Secretary
Upon the Secretary's approval of the Tribe's investment
management firm and an investment management plan, all funds
previously deposited in trust funds held by the Secretary and all
funds subsequently paid into the trust funds, which are chosen for
outside management, shall be transferred to the accounts
established by an investment management firm in accordance with the
approved investment management plan. The Secretary shall be
exculpated by the Tribe from liability for any loss of principal or
interest resulting from investment decisions made by the investment
management firm. Any Trust Fund transferred to an investment
management firm shall be returned to the Secretary upon written
request of the Tribe, and the Secretary shall manage such funds for
the benefit of the Tribe.
(d) Land Acquisition Trust
(1) The Secretary shall establish and maintain a Catawba Land
Acquisition Trust Fund, and until the Tribe engages an outside firm
for investment management of this trust fund, the Secretary shall
manage, invest, and administer this trust fund. The original
principal amount of the Land Acquisition Trust Fund shall be
determined by the Tribe in consultation with the Secretary.
(2) The principal and income of the Land Acquisition Trust Fund
may be used for the purchase and development of Reservation and
non-Reservation land pursuant to the Settlement Agreement, costs
related to land acquisition, and costs of construction of
infrastructure and development of the Reservation and
non-Reservation land.
(3)(A) Upon acquisition of the maximum amount of land allowed for
expansion of the Reservation, or upon request of the Tribe and
approval of the Secretary pursuant to the Secretarial approval
provisions set forth in subsection (b)(5)(D) of this section, all
or part of the balance of this trust fund may be merged into one or
more of the Economic Development Trust Fund, the Education Trust
Fund, or the Social Services and Elderly Assistance Trust Fund.
(B) Alternatively, at the Tribe's election, the Land Acquisition
Trust Fund may remain in existence after all the Reservation land
is purchased in order to pay for the purchase of non-Reservation
land.
(4)(A) The Tribe may pledge or hypothecate the income and
principal of the Land Acquisition Trust Fund to secure loans for
the purchase of Reservation and non-Reservation lands.
(B) Following the effective date of this subchapter and before
the final annual disbursement is made as provided in section 941c
of this title, the Tribe may pledge or hypothecate up to 50 percent
of the unpaid annual installments required to be paid to this Trust
Fund, the Economic Development Trust Fund and the Social Services
and Elderly Assistance Trust Fund by section 941c of this title and
by section 5 of the Settlement Agreement, to secure loans to
finance the acquisition of Reservation or non-Reservation land or
infrastructure improvements on such lands.
(e) Economic Development Trust
(1) The Secretary shall establish and maintain a Catawba Economic
Development Trust Fund, and until the Tribe engages an outside firm
for investment management of this Trust Fund, the Secretary shall
manage, invest, and administer this Trust Fund. The original
principal amount of the Economic Development Trust Fund shall be
determined by the Tribe in consultation with the Secretary. The
principal and income of this Trust Fund may be used to support
tribal economic development activities, including but not limited
to infrastructure improvements and tribal business ventures and
commercial investments benefiting the Tribe.
(2) The Tribe, in consultation with the Secretary, may pledge or
hypothecate future income and up to 50 percent of the principal of
this Trust Fund to secure loans for economic development. In
defining the provisions for administration of this Trust Fund, and
before pledging or hypothecating future income or principal, the
Tribe and the Secretary shall agree on rules and standards for the
invasion of principal and for repayment or restoration of
principal, which shall encourage preservation of principal, and
provide that, if feasible, a portion of all profits derived from
activities funded by principal be applied to repayment of the Trust
Fund.
(3) Following the effective date of this subchapter and before
the final annual disbursement is made as provided in section 941c
of this title, the Tribe may pledge or hypothecate up to 50 percent
of the unpaid annual installments required to be paid by section
941c of this title and by section 5 of the Settlement Agreement to
secure loans to finance economic development activities of the
Tribe, including (but not limited to) infrastructure improvements
on Reservation and non-Reservation lands.
(4) If the Tribe develops sound lending guidelines approved by
the Secretary, a portion of the income from this Trust Fund may
also be used to fund a revolving credit account for loans to
support tribal businesses or business enterprises of tribal
members.
(f) Education Trust
The Secretary shall establish and maintain a Catawba Education
Trust Fund, and until the Tribe engages an outside firm for
investment management of this Trust Fund, the Secretary shall
manage, invest, and administer this Trust Fund. The original
principal amount of this Trust Fund shall be determined by the
Tribe in consultation with the Secretary; subject to the
requirement that upon completion of all payments into the Trust
Funds, an amount equal to at least 1/3 of all State, local, and
private contributions made pursuant to the Settlement Agreement
shall have been paid into the Education Trust Fund. Income from
this Trust Fund shall be distributed in a manner consistent with
the terms of the Settlement Agreement. The principal of this Trust
Fund shall not be invaded or transferred to any other Trust Fund,
nor shall it be pledged or encumbered as security.
(g) Social Services and Elderly Assistance Trust
(1) The Secretary shall establish and maintain a Catawba Social
Services and Elderly Assistance Trust Fund and, until the Tribe
engages an outside firm for investment management of this Trust
Fund, the Secretary shall manage, invest, and administer the Social
Services and Elderly Assistance Trust Fund. The original principal
amount of this Trust Fund shall be determined by the Tribe in
consultation with the Secretary.
(2) The income of this Trust Fund shall be periodically
distributed to the Tribe to support social services programs,
including (but not limited to) housing, care of elderly, or
physically or mentally disabled Members, child care, supplemental
health care, education, cultural preservation, burial and cemetery
maintenance, and operation of tribal government.
(3) The Tribe, in consultation with the Secretary, shall
establish eligibility criteria and procedures to carry out this
subsection.
(h) Per Capita Payment Trust Fund
(1) The Secretary shall establish and maintain a Catawba Per
Capita Payment Trust Fund in an amount equal to 15 percent of the
settlement funds paid pursuant to section 5 of the Settlement
Agreement. Until the Tribe engages an outside firm for investment
management of this Trust Fund, the Secretary shall manage, invest,
and administer the Catawba Per Capita Payment Trust Fund.
(2) Each person (or their estate) whose name appears on the final
base membership roll of the Tribe published by the Secretary
pursuant to section 941e(c) of this title will receive a one-time,
non-recurring payment from this Trust Fund.
(3) The amount payable to each member (!1) shall be determined by
dividing the trust principal and any accrued interest thereon by
the number of Members on the final base membership roll.
(4)(A) Subject to the provisions of this paragraph, each enrolled
member (!1) who has reached the age of 21 years on the date the
final roll is published shall receive the payment on the date of
distribution, which shall be as soon as practicable after date of
publication of the final base membership roll. Adult Members shall
be paid their pro rata share of this Trust Fund on the date of
distribution unless they elect in writing to leave their pro rata
share in the Trust Fund, in which case such share shall not be
distributed.
(B) The pro rata share of adult Members who elect not to withdraw
their payment from this Trust Fund shall be managed, invested and
administered, together with the funds of Members who have not
attained the age of 21 years on the date the final base membership
roll is published, until such Member requests in writing that their
pro rata share be distributed, at which time such Member's pro rata
share shall be paid, together with the net income of the Trust Fund
allocable to such Member's share as of the date of distribution.
(C) No member (!1) may elect to have their pro rata share managed
by this Trust Fund for a period of more than 21 years after the
date of publication of the final base membership roll.
(5)(A) Subject to the provisions of this paragraph, the pro rata
share of any Member who has not attained the age of 21 years on the
date the final base membership roll is published shall be managed,
invested and administered pursuant to the provisions of this
section until such Member has attained the age of 21 years, at
which time such Member's pro rata share shall be paid, together
with the net income of the Trust Fund allocable to such Member's
share as of the date of payment. Such Members shall be paid their
pro rata share of this Trust Fund on the date they attain 21 years
of age unless they elect in writing to leave their pro rata share
in the Trust Fund, in which case such share shall not be
distributed.
(B) The pro rata share of such Members who elect not to withdraw
their payment from this Trust Fund shall be managed, invested and
administered, together with the funds of members (!1) who have not
attained the age of 21 years on the date the final base membership
roll is published, until such Member requests in writing that their
pro rata share be distributed, at which time such Member's pro rata
share shall be paid, together with the net income of the Trust Fund
allocable to such Member's share as of the date of distribution.
(C) No Member may elect to have their pro rata share retained and
managed by this Trust Fund beyond the expiration of the period of
21 years after the date of publication of the final base membership
roll.
(6) After payments have been made to all Members entitled to
receive payments, this Trust Fund shall terminate, and any balance
remaining in this Trust Fund shall be merged into the Economic
Development Trust Fund, the Education Trust Fund, or the Social
Services and Elderly Assistance Trust Fund, as the Tribe may
determine.
(i) Duration of trust funds
Subject to the provisions of this section and with the exception
of the Catawba Per Capita Payment Trust Fund, the Trust Funds
established in accordance with this section shall continue in
existence so long as the Tribe exists and is recognized by the
United States. The principal of these Trust Funds shall not be
invaded or distributed except as expressly authorized in this
subchapter or in the Settlement Agreement.
(j) Transfer of money among trust funds
The Tribe, in consultation with the Secretary, shall have the
authority to transfer principal and accumulated income between
Trust Funds only as follows:
(1) Funds may be transferred among the Catawba Economic
Development Trust Fund, the Catawba Land Acquisition Trust Fund,
and the Catawba Social Services and Elderly Assistance Trust
Fund, and from any of those three Trust Funds into the Catawba
Education Trust Fund; except, that the mandatory share of State,
local, and private sector funds invested in the original corpus
of the Catawba Education Trust Fund shall not be transferred to
any other Trust Fund.
(2) Any Trust Fund, except for the Catawba Education Trust
Fund, may be dissolved by a vote of two-thirds of those Members
eligible to vote, and the assets in such Trust Fund shall be
transferred to the remaining Trust Funds; except, that (A) no
assets shall be transferred from any of the Trust Funds into the
Catawba Per Capita Payment Trust Fund, and (B) the mandatory
share of State, local and private funds invested in the original
corpus of the Catawba Education Trust Fund may not be transferred
or used for any non-educational purposes.
(3) The dissolution of any Trust Fund shall require the
approval of the Secretary pursuant to the Secretarial approval
provisions set forth in subsection (b)(5)(D) of this section.
(k) Trust fund accounting
(1) The Secretary shall account to the Tribe periodically, and at
least annually, for all Catawba Trust Funds being managed and
administered by the Secretary. The accounting shall -
(A) identify the assets in which the Trust Funds have been
invested during the relevant period;
(B) report income earned during the period, distinguishing
current income and capital gains;
(C) indicate dates and amounts of distributions to the Tribe,
separately distinguishing current income, accumulated income, and
distributions of principal; and
(D) identify any invasions or repayments of principal during
the relevant period and record provisions the Tribe has made for
repayment or restoration of principal.
(2)(A) Any outside investment management firm engaged by the
Tribe shall account to the Tribe and separately to the Secretary at
periodic intervals, at least quarterly. Its accounting shall -
(i) identify the assets in which the Trust Funds have been
invested during the relevant period;
(ii) report income earned during the period, separating current
income and capital gains;
(iii) indicate dates and amounts of distributions to the Tribe,
distinguishing current income, accumulated income, and
distributions of principal; and
(iv) identify any invasions or repayments of principal during
the relevant period and record provisions the Tribe has made for
repayment or restoration of principal.
(B) Prior to distributing principal from any Trust Fund, the
investment management firm shall notify the Secretary of the
proposed distribution and the Tribe's proposed use of such funds,
following procedures to be agreed upon by the investment management
firm, the Secretary, and the Tribe. The Secretary shall have 15
days within which to object in writing to any such invasion of
principal. Failure to object will be deemed approval of the
distribution.
(C) All Trust Funds held and managed by any investment management
firm shall be audited annually by a certified public accounting
firm approved by the Secretary, and a copy of the annual audit
shall be submitted to the Tribe and to the Secretary within four
months following the close of the Trust Funds' fiscal year.
(l) Replacement of investment management firm and modification of
investment management plan
The Tribe shall not replace the investment management firm
approved by the Secretary without prior written notification to the
Secretary and approval by the Secretary of any investment
management firm chosen by the Tribe as a replacement. Such
Secretarial approval shall be given or denied in accordance with
the Secretarial approval provisions contained in subsection
(b)(5)(D) of this section. The Tribe and its investment management
firm shall also notify the Secretary in writing of any revisions in
the investment management plan which materially increase investment
risk or significantly change the investment management plan, or the
agreement, made in consultation with the Secretary pursuant to
which the outside management firm was retained.
(m) Trust funds not counted for certain purposes; use as matching
funds
None of the funds, assets, income, payments, or distributions
from the Trust Funds established pursuant to this section shall at
any time affect the eligibility of the Tribe or its Members for, or
be used as a basis for denying or reducing funds to the Tribe or
its Members under any Federal, State, or local program.
Distributions from these Trust Funds may be used as matching funds,
where appropriate, for Federal grants or loans.
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