Piliero Mazza & Pargament, PLLC   Vol. 5, Issue 8  September 2003

Addressing Tribal and Alaska Native Corporation
Legal and Business Issues


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  A R T I C L E S


SMALL BUSINESS - The House and Senate Take Differing Approaches on Legislation to Reauthorize the Small Business Administration


COURT WATCH - Congress and the Judiciary Set to Alter the Scope of Tribal Law Enforcement Power: U.S. V. Lara and S. 578


COMING EVENTS - Senators Olympia Snowe and Tim Johnson to Speak at National Indian Business Association Conference


GOVERNMENT CONTRACTINGOMB’s Revisions to Circular A-76


COURT WATCH - A Wolf in Sheep’s Clothing - Indirect State Taxation of Tribal Fuel Purchases


SMALL BUSINESS

The House and Senate Take Differing Approaches on Legislation to Reauthorize the Small Business Administration

Both the House and Senate Small Business Committees introduced legislation in July to reauthorize programs for the Small Business Administration (SBA). However, the two pieces of legislation vary dramatically in scope. The Senate bill (S. 1375), introduced by Senator Olympia Snowe (R-ME), is more typical of reauthorization legislation, recommending spending limits and making incremental policy changes. Its House counterpart (HR. 2802), introduced by Representative Donald Manzullo (R-IL), calls for sweeping changes in programs administered by SBA. Both Committees have approved their respective bills, but written reports will most likely not be released until mid-September.

The Senate bill, entitled "The Small Business Administration Fiftieth Anniversary Reauthorization Act of 2003," would reauthorize the financial, entrepreneurial development and small business procurement programs administered by the SBA for three more years. It authorizes $34.8 billion for fiscal year 2004, $36.1 billion for 2005 and $37.4 for 2006.

The entrepreneurial development section of the bill establishes the Native American Small Business Development Program (Program) which would provide Native American small businesses additional financial assistance. Under the Program, tribal governments and colleges would be eligible for specialized business development grants. The bill would also authorize business development grants to native-owned small businesses through certain designated Small Business Development Centers and non-profit organizations.

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COURT WATCH

Congress and the Judiciary Set to Alter the Scope of Tribal Law Enforcement Power: U.S. v. Lara and S.578

The Bush Administration’s request that the Supreme Court resolve a recent Circuit Court split and the Senate’s introduction of amendments to the Homeland Security Act of 2002 (HR. 5005) could have a dramatic impact on future law enforcement efforts on tribal lands. The Administration has asked the Supreme Court to overturn an Eighth Circuit Court of Appeals ruling that would, in certain circumstances, limit the power of the federal government to prosecute Indians on lands of a tribe to which the Indian does not belong (non-member Indian). A Supreme Court ruling on this issue would likely impact legislation under consideration by the Senate that would expand the ability of Indian tribes to protect their lands from a possible terrorist attack.

In U.S. v. Lara, 324 F.3d 635 (8thCir. 2003), the Eighth Circuit ruled that the Spirit Lake Nation exercised authority over non-tribal criminal matters only to the extent of power delegated to them by Congress, and that the Nation did not constitute a separate sovereign for the purposes of the prohibition against "double jeopardy." In this case, Lara, a non-tribal member, was charged and pled guilty to several violations of the Spirit Lake Tribal Code in connection with his assault on Bureau of Indian Affairs police officers. He began serving a 155 day jail sentence as a result. During his jail term, he was also indicted by a federal grand jury for assaulting a federal officer. Lara sought to dismiss the federal charge on grounds that a second prosecution, by the same sovereign for the same crime, was precluded by the Constitution. The Eighth Circuit reviewed his claim and did not allow the subsequent federal prosecution to stand.

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COMING EVENTS

Senators Olympia Snowe and Tim Johnson to Speak at National Indian Business Association Conference

Among the many distinguished guests at this year’s 11th Annual conference taking place at the Hyatt Regency in Crystal City, Virginia on September 9-11, 2003, NIBA will honor Senators Snowe and Johnson for their tireless efforts working on behalf of Native Americans. NIBA board members from each of the Senator’s states will be there to support them. Loren "Bat" Pourier, from the Pine Ridge Reservation in South Dakota will present Senator Johnson with an award. As well, NIBA Vice President, Andrew Akins, Penobscot Tribe in Maine, will present Senator Snowe with her award.

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GOVERNMENT CONTRACTING

OMB’s Revisions to Circular A-76

On May 29, 2003, the Office of Management and Budget (OMB) issued the final revisions to OMB Circular A-76. The revised Circular A-76 is different in many ways from the draft that was originally proposed by OMB. This article summarizes the most significant revisions to the Circular and possible implications to Alaska Native Corporations (ANCs), Tribes and their subsidiaries that are marketing federal work for outsourcing.

Some significant changes to the Circular include:

1. The elimination of direct conversions;
2. Revisions to the streamlined procedures for commercial activities involving 65 or less full time employees;
3. The elimination of the 10% price differential for streamlined competitions;
4. Requirements for agencies to research and support the outsourcing decisions;
5. Standardization of the competition process between the public and the private sectors; and
6. The establishment of deadlines for award decisions.

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COURT WATCH

A Wolf in Sheep’s Clothing - Indirect State Taxation of Tribal Fuel Purchases

Federal Courts are paving the way for states to tax reservation revenues of tribal enterprises, so long as the state has some claim of jurisdiction over the transaction. Recently, in Prairie Band Potawatomi Nation v. Richards, 2003 WL 21536881 (D. Kan. 2003), the U.S. District Court for the District of Kansas denied the Prairie Band’s motion to reconsider the refusal of the tribe’s request for relief from Kansas’ motor fuel tax. The Court was not persuaded that reconsideration was justified.

In January 2003, in its original action for relief from the motor fuel tax, the Prairie Band argued that the Kansas tax, which is levied on distributors, should not apply to distributors’ sales to tribally-owned companies located on reservation lands, such as the Prairie Band’s "Nation Station," positioned conveniently near the reservation casino. Kansas law specifies that distributors bear the "legal incidence" of this tax, although they are free to pass the economic burden of the tax on to their customers. The Court denied relief to the tribe, relying on Sac and Fox Nation of Missouri v. Pierce, 213 F.3d 566 (10th Cir. 2000). In Sac and Fox, the Tenth Circuit found that the legal incidence of the Kansas fuel tax fell on the distributor. The economic burden, however, rested with the consumer.

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