Piliero Mazza & Pargament, PLLC     Vol. 4, Issue 2  February 2002


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


FEDERAL

 GAO Study Focuses on Native American, Alaska Native Economic Development



GOVERNMENT CONTRACTING 

Stevens Amendment May Benefit Tribes and ANCs



EMPLOYMENT

Federal Court Allows Non-Union Employees to Have Witness Present During "Investivative Hearing"


ON THE HILL

House Resources Committee Chairman to Step Down


LEGISLATION

 Indian Energy Policy Receives Increased Focus on Federal Level


ASK THE ADVOCATE



FEDERAL

GAO STUDY FOCUSES ON NATIVE AMERICAN AND ALASKA NATIVES ECONOMIC DEVELOPMENT

On December 21, 2001, the General Accounting Office (GAO) issued a study concerning the federal government's role in economic development for Native Americans and Alaska Natives (collectively Indians).  The study was conducted pursuant to the Omnibus Indian Advancement Act, which requires GAO to study federal programs that are designed to assist Indians.  While GAO's conclusions are limited, their evaluation can be of benefit to tribes and Indians that are seeking a broader knowledge of the federal programs available to them.

The GAO study focuses on three issues.  First, it sought to generally assess federal programs that are available to Indians.  Second, it attempted to determine the extent to which Indians are using these federal programs.  Third, it evaluated the agencies' own assessments of the effectiveness of their programs and provided some recommendations for improving studies regarding the effectiveness of these programs.

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GOVERNMENT CONTRACTING

Stevens Amendment May Benefit Tribes And ANCs

On January 10, 2002, President Bush signed a new law that affects Indian tribes and Alaska Native Corporations (ANC).  Specifically, Section 702 of the Department of Defense Appropriations Act for FY 2002 includes an amendment to the Alaska Native Claims Settlement Act (ANCSA) which would allow large businesses to claim credit for subcontracting with Indian tribes and ANC-owned firms, even if they are not small businesses, certified small disadvantaged businesses (SDB) or certified 8(a) firms.  The new law may enhance the marketing potential of firms owned by tribes and ANCs.

The amendment, proposed by Senator Ted Stevens (R-AK), is designed to clarify federal procurement laws for tribes and ANC-owned firms.  Although unstated, a rationale for the amendment is the conflict between ANCSA, the Small Business Act and the Federal Acquisition Regulation (FAR).  Under ANSCA, direct and indirect subsidiary corporations, joint ventures and partnerships in which ANCs own a 51% interest automatically qualify for minority status.  However, under the Small Business Act and the FAR, the subcontractor must be certified under the 8(a) or SDB programs in order for a large business to receive credit for subcontracting with a "minority" owned firm.  In other words, an ANC-owned firm's "minority" status has not provided an incentive for large businesses to subcontract with ANC-owned firms unless they are 8(a) or SDB certified.

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EMPLOYMENT

Federal Court Allows Non-Union Employees to Have Witness Present During "Investigatory Interview"

The United States Court of Appeals for the District of Columbia Circuit has issued a key decision affecting employers with non-unionized workforces who are subject to the National Labor Relations Act (NLRA).  In Epilepsy Foundation of Northeast Ohio v. National Labor Relations Board, the Court held that non-supervisory and non-managerial employees who are not union members may demand that a co-worker of their choice be present during any "investigatory interview."  Investigatory interviews are meetings in which an employer gathers information from an employee for possible disciplinary purposes.

The Court affirmed a decision issued by the National Labor Relations Board (NLRB or Board) in July 2000.  In that case, the NLRB reversed earlier decisions that had limited the right to have a co-worker present at investigatory interviews.  Prior to the July decision, only unionized employees were entitled to demand the presence of a co-worker during investigatory interviews.

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ON THE HILL

House Resources Committee Chairman to Step Down

On January 8, 2001, Representative James Hansen (R-UT), Chairman of the House Resources Committee, announced that he would leave office at the end of the 107th Congress this fall.  Representative Hansen replaced Representative Don Young (R-AK) as Chairman in January 2001. 

The House Resources Committee plays a significant role in Indian and Alaska Native affairs because it considers much of the legislation affecting these groups, including land and water claims, tribal recognition, and tribal sovereignty (See the January 2002 issue of the Tribal Advocate for a year-end summary of Native American and Alaska Native legislation).

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LEGISLATION

Legislation Highlights Focus on Indian Energy Policy

In recent years, there has been a greater focus on issues relating to the reformation of Indian energy policy, especially at the Federal level.  As the 107th Congress reconvenes for its second session, tribal energy policy is anticipated to receive increased attention. 

For many tribes, a comprehensive energy policy is more than a matter of economic interest.  To these tribes, regaining managerial control over their energy resources is a matter that goes to the heart of tribal autonomy.  Despite the fact that abundant energy is produced on many reservations, some tribes still lack adequate energy sources.  A March 2000 report issued by the Department of Energy (DOE) concluded that "household energy availability and use on Indian lands are significantly below that of non-Indian households."  The Navajo Nation provides a  good example of this problem.  It is estimated that over twenty percent of Navajo Nation tribal members do not have access to electricity, despite the fact that the Nation produces more energy than any other tribe in the United States.

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ASK THE ADVOCATE

On January 8, 2002, the United States Supreme Court issued a unanimous decision in Toyota Motor Mfg. Ky., Inc. v. Williams which may substantially limit the application of the Americans with Disabilities Act (ADA).  In response to this ruling, the Tribal Advocate has received several inquiries regarding the impact of this decision on employers.

Q:        How will the U.S. Supreme Court's recent ruling regarding the application of ADA impact employers?

A:         The ruling will likely have a positive impact on employers as it appears to substantially limit the definition of "disabled" for purposes of the ADA, thereby limiting the number of individuals who are covered under the Act.  To qualify as a person with a disability under the ADA, an individual must show that he/she suffers from a mental or physical condition that "substantially limits a major life activity."  Examples of major life activities include caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.          

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