Piliero Mazza & Pargament, PLLC Vol. 6 , Issue 5, May 2004
Addressing Tribal and Alaska Native Corporation Legal and Business Issues
The articles shown here are excerpts -- if you'd like to subscribe to Tribal Advocate, please contact Susan Brock at (202) 857-1000 or at
A R T I C L E S
COURT WATCH - Supreme Court Ruling Affirms Broader Tribal Authority
INTERVIEW - Tribal Advocate Interview with Theresa Speake, Director, OSDBU at DOE
SMALL BUSINESS - SBA Proposed Move Towards Employee-Based Sized Standards
Supreme Court Ruling Affirms Broader Tribal Authority
The Supreme Court, in a 7-2 decision, ruled on April 19, 2004, that a tribe may prosecute non-member Indians for crimes committed on their lands. (A representative of the Tribal Advocate attended oral arguments. Please see our February 2004 issue for further details.) The Court’s ruling resolved a split between the U.S. Courts of Appeals for the Eighth and Ninth circuits. The split was created when the Eight Circuit ruled in U.S. v. Lara that a tribe prosecutes a non-member Indian only by the virtue of its congressionally delegated authority. 324 F.3d 635 (2003). The Ninth Circuit had previously held that a tribe prosecuted non-member Indians through its retained sovereign power.
In Lara, a non-tribal member was charged with and pled guilty to several violations of the Spirit Lake Tribal Code, resulting from his assault on Bureau of Indian Affairs police officers. While serving his sentence, Billy Jo Lara was indicted by a federal grand jury for the assault. He contended that the federal prosecution violated the Constitution’s guarantee against double jeopardy on the theory that the federal government and the tribe both derive their power from the same sovereign, thus both may not prosecute for the same offense. The Eighth Circuit agreed and ruled the federal prosecution was invalid and infringed on Lara’s constitutional rights. The Supreme Court accepted certiorari on the case to determine the nature of the tribe’s authority over non-member Indians.
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Tribal Adovcate Interview with Theresa Speake
The Tribal Advocate recently had the pleasure of speaking with Theresa Speake, Director of the Small and Disadvantaged Business Office and the Office of Minority Economic Impact and Diversity at the Department of Energy (DOE). Ms. Speake told us about her efforts to increase small business contracting opportunities at DOE.
TA: Can you tell us a little bit about yourself and your work at the Department of Energy?
Ms. Speake: I have worked with small, minority, and women-owned businesses for about 30 years, both in California and here in Washington. In the summer of 2001, I was appointed and confirmed in my present position at the Department of Energy by President Bush. Here, I wear several hats - Director of the Office of Minority Economic Impact, Director of the Office of Small and Disadvantaged Business Utilization, as well as an over-arching position as Director of the Office of Economic Impact and Diversity. But technically, I am still doing the same thing - making sure that there is equal access for small businesses, women-owned businesses, HUBZone businesses, tribal firms and 8(a) firms to the contracting opportunities here at the Department of Energy. We call ourselves the "conscience" of the Department of Energy.
TA: We have noticed that DOE is aggressively working to increase its awards to small businesses. How is your office involved in these efforts?
Ms. Speake: First of all, let us look at our general outreach. When I came on board in 2001, I knew that we needed to have a strong outreach program so that people know what is going on in the Department. Unfortunately, most small businesses are not aware of the contracting opportunities available to them at the federal level. So, we initiated a very massive national marketing program, advertising in trade publications, attending and holding various conferences, getting the word out to people about what is available at the Department of Energy and how they can access the information on the contracts.
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SBA Proposes Move Towards Employee-Based Size Standards
On March 19, 2004, the Small Business Administration issued proposed regulations that would significantly change the manner in which the SBA determines whether or not a business is small. Although the SBA currently uses both revenue-based and employee-based size standards, the proposed regulations would generally translate existing revenue-based size standards into employee-based ones. In addition, the proposed regulations would impose a revenue cap on certain industries. As a result, some existing small businesses may discover that, if the proposed regulations become final, they may no longer qualify as small. Conversely, firms that have outgrown their revenue-based size standards may find that they qualify as small under the new employee-based standard.
The proposed regulations would concentrate on 10 employee size standard levels, from 50 to 1,500 employees. The method for determining the number of employees would remain the same as in the current regulations. According to the SBA, the reduction in the number of different size standards from approximately 37 to 10 will simplify determinations of size and eliminate confusion to small businesses. Although the shift in size standards would result in approximately the same number of eligible small businesses as under the current revenues-based size standards, the SBA arrives at this number only after potentially ineligible firms have been subtracted from the count and newly eligible firms have been added.
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