Piliero Mazza & Pargament, PLLC Vol. 6, Issue 2 February 2004
Addressing Tribal and Alaska Native Corporation Legal and Business Issues
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A R T I C L E S
COURT WATCH - Supreme Court Hears Oral Arguments in Lara Case
GAMING - National Indian Gaming Commission
INTERVIEW - Tribal Advocate Speaks with Oreta Stinson, Program Manager, DOD Indian Incentive Program
REGULATIONS - SBA Announces Several Possible Initiatives for 2004
SMALL BUSINESS - SBA Office of Hearings and Appeals Finds Affiliation Despite Mentor-Protégé Relationships
Supreme Court Hears Oral Arguments in Lara Case
On January 21, 2004, the Supreme Court considered an important case concerning the extent of tribal criminal jurisdiction that could have ripple effects beyond the case at hand. The Court’s deliberations sought to establish whether an Indian tribe acts pursuant to its inherent authority or through a delegated power when it prosecutes a non-member Indian for certain crimes committed on its reservation. (See September 2003 issue for additional background). While in attendance, we witnessed spirited arguments by attorneys for both the U.S. Government and Mr. Lara.
Deputy Solicitor General Edwin Kneedler argued the U.S. Government’s position, contending that the Supreme Court should reverse the 8th Circuit Court of Appeals’ holding that a tribe exercises a congressionally delegated power when it prosecutes a non-member Indian. The Court’s decision will determine whether U.S. attorneys can validly prosecute a non-member Indian after a tribe has tried that individual in tribal court. If the Supreme Court finds that the tribal court prosecutes a non-member under a delegated power, then the Unites States will be barred from further prosecutions, otherwise the second prosecution would violate the Fifth Amendment’s Double Jeopardy Clause which basically prohibits dual prosecutions by the same sovereign power. Conversely, if the Court determines that the tribe was acting through its inherent power, the subsequent federal prosecution would stand because the tribe would be exercising its exclusive sovereign power.
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National Indian Gaming Commission
During December, the National Indian Gaming Commission (NIGC) published the annual fee rates for Tier 1 and Tier 2 gaming under its jurisdiction. The rate for Tier 1 is 0.00 percent and the Tier 2 rate is 0.635 percent for calendar year 2003. The rates apply to all assessable gross revenues under NIGC’s jurisdiction. Certified self-regulating tribes have a final fee rate for Class II of one-half the annual rate, or 0.03175 percent.
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Tribal Advocate Speaks with Oreta Stinson, Program Manager, DOD Indian Incentive Program
The Tribal Advocate recently had the pleasure of speaking with Ms. Oreta Stinson, Interim Program Manager for the Department of Defense’s Indian Incentive Program.
Tribal Advocate (TA): Ms. Stinson, can you tell us a little about yourself?
Ms. Stinson: (Stinson): I am currently the Assistant Director for Small and Disadvantaged Business Utilization in the Office of the Undersecretary of Defense for Acquisitions, Technology and Logistics. In addition to being manager of the Indian Incentive Program, I am also the program manager for the Historical Black Colleges and Universities and minority institutions program.
TA: Basically, what is the Indian Incentive Program?
Stinson: In the Indian Financing Act of 1974, Congress authorized the payment of a five percent incentive to government contractors who subcontracted or purchased supplies from Indian organizations or Indian-owned businesses. But not until 1989 did the program receive adequate funding. Today the Indian Incentive Program receives $8 million in annual funding and has expanded the definition of Indian to include Native Americans, Alaskan and Hawaiian natives.
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SBA Announces Several Possible Initiatives for 2004
On December 22, 2003, the Small Business Administration (SBA) released its Semiannual Regulatory Agenda. This agenda updates the public on regulatory measures currently being considered by the SBA. It also provides a brief overview of regulations that SBA may consider in 2004, thereby giving some insight into SBA’s possible priorities.
Several regulations, which had been previously introduced, are still in the pre-rule stage, but SBA has planned some action for them in 2004. For example, in January 2002, the SBA proposed a rule to amend the HUBZone Empowerment Contracting Program, but the proposal was subsequently withdrawn. SBA received over 1100 comments on the proposed rule and felt several comments were significant enough to warrant further investigation. SBA plans to issue an advanced notice of proposed rulemaking to address the concerns raised during the previous comment period. SBA is reluctant to go forward with any regulatory proposals for the HUBZone program until Congress finishes its work on the Small Business Reauthorization Act of 2003.
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SBA Office of Hearings and Appeals Finds Affiliation Despite Mentor-Protégé Relationships
In a recent unreported decision, the Small Business Administration’s (SBA) Office of Hearings and Appeals (OHA) found affiliation between two firms owned by family members despite an existing mentor-protégé agreement. The finding was based on the relationship existing between the two firms prior to SBA approval of the mentor-protégé agreement.
In the Size Appeal of Osirus, Inc., SBA No. SIZ-4546 (2003), OHA found that Osirus, Inc., an SBA approved protégé firm was affiliated with SelRico Services, Inc. (SelRico), its mentor. Osirus is owned by James Aleman and SelRico, an 8(a) graduate, is owned by his brother, John. Both businesses perform similar services and had worked together before entering into their mentor-protégé relationship.
SBA’s size regulations provide that the ownership interests of individuals with substantially identical business interests, such as family members, may be aggregated for purposes of determining a firm’s size status. 13 C.F.R. §121.103(a)(3). This identity of interest presumption of affiliation is rebuttable, and may be negated by evidence demonstrating the businesses in question are not closely involved. In this size appeal, however, the two businesses conducted business operations together and performed similar services. OHA determined that the two firms were affiliated under the identity of interest rule.
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