Piliero Mazza & Pargament, PLLC   


Vol. 4, Issue 5  May 2002

Addressing Tribal and Alaska Native Corporation
Legal and Business Issues


The articles shown here are excerpts -- if you would like to subscribe to Tribal Advocate, please contact Susan Brock at (202) 857-1000 or at 




A R T I C L E S


GOVERNMENT CONTRACTINGDistrict Court Upholds DOD Native American Contracting Preference

LAW ENFORCEMENTNew Tribal Law Enforcement Funds Available

TRIBAL LANDConnecticut Legislation Would Extinguish Indian Land Claims

REGULATIONSASBCA Rules on Proprietary Software Issue

ON THE HILLProposed Small Business Development Legislation May Provide for Greater Funding to Tribal and Alaska Native Business Efforts

TRIBAL HOUSINGHUD Issues Final Direct Loan Guarantee Rule

ASK THE ADVOCATE:  Historically Underutilized Business Zone (HUBZone) Program




GOVERNMENT CONTRACTING

District Court Upholds DOD Native American Contracting Preference

On March 29, 2002, the United States District Court for the District of Columbia made an important ruling concerning the constitutionality of a Department of Defense provision that gives preferences to Native American-owned businesses.   The case of American Federation of Government Employees v. United States (AFGE) follows the decisions of other courts, holding that Native American preferences are not based on race, and thus a more relaxed constitutional standard applies to these preferences.

The issue in AFGE specifically dealt with Section 8014 of the Fiscal Year 2000 Defense Appropriations Act (Section 8014).  This provision prohibits funding for conversion of DOD activities or functions performed by ten or more DOD employees to contractor performance "until a most efficient and cost-effective organization analysis is completed on such activity or function" and certified to the House and Senate Committees on Appropriations.

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LAW ENFORCEMENT

New Tribal Law Enforcement Funds Available

The Department of Justice, Office of Community Oriented Policing Services (COPS) recently announced the availability of $35 million in funds under the Tribal Resources Grant Program (TRGP).  This new program is authorized under the Violent Crime Control and Law Enforcement Act of 1995, which allows funding through the DOJ to "increase deployment of law enforcement officers devoted to community policing on the streets and rural routes of this nation."

The TRGP is intended to provide funding to enhance law enforcement infrastructures and community policing efforts in tribal communities with limited resources and high rates of crime and violence.   TRGP funds may be used for several purposes including:

  • New, additional police officer positions;
  • Basic and/or specialized training for new and existing officers;
  • Training in community policing;
  • Grants management and computer training;
  • Uniforms and basic issue equipment;
  • Department-wide technology; and
  • Police vehicles.

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TRIBAL LAND

Connecticut Legislation Would Extinguish Indian Land Claims

A recent bill introduced in the Connecticut General Assembly would eliminate the rights of certain Indian tribes to make land claims on private property.   The bill seeks to resolve  controversies involving numerous lawsuits in Connecticut concerning tribal land claims.  However, the bill has been criticized by many Connecticut tribes, and its constitutionality has been called into question. 

House Bill 5072, introduced by State Representative Jefferson Davis (D-50th District), would prohibit all non-federally recognized tribes in Connecticut from making land claims on private property.   The bill cites as historical precedent a colonial-era document in the seventeenth century that gave Indians occupancy rights to territory but not legal title to the land itself.   Representative Davis has stated that the bill is designed to protect private landowners who risk losing their land to non-federally recognized tribes. 

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REGULATIONS

ASBCA Rules on Proprietary Software Issue

The Armed Services Board of Contract Appeals (ASBCA) recently issued an opinion denying a company's claim for licensing fees relating to software it submitted in conjunction with a fixed price contract.  The opinion makes clear that companies must be careful to strictly follow federal regulatory requirements to protect their property rights in such material.

In General Atronics Corporation, the ASBCA denied General Atronics Corporation's (GAC)  claim for $327,000 in software license fees due to its failure to mark the software with the restrictive legend required by the Defense Federal Acquisition Regulation Supplement (DFARS) and the absence of a licensing agreement.  GAC had included several software enhancements in a proposal to provide wireline interface hardware to the U.S. Navy.  However, the fixed price contract eventually negotiated by the parties did not include any reference to the proposed software. 

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ON THE HILL

Proposed Small Business Development Legislation May Provide for Greater Funding to Tribal and Alaska Native Business Efforts

In July 2001, Representative Tom Udall (D-NM) introduced the "Native American Small Business Development Act."  If passed, this legislation would authorize certain Small Business Development Centers (SBDCs) to apply for grant funds through the Small Business Administration (SBA) to be used exclusively for the provision of services to assist with outreach, development and enhancement of small business start-up companies owned by tribal members or Alaska Natives on Indian lands. 

This legislation was prompted by the fact that approximately 60% of Indian tribal members and Alaska Natives live on or adjacent to Indian lands, which suffer from an average 45% unemployment rate.  Additionally, studies have shown that although business counseling and technical assistance can significantly increase the survival rate of small businesses, such services are scarce and expensive on and around Indian lands.

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TRIBAL HOUSING

HUD Issues Final Direct Loan Guarantee Rule

On April 19, 2002, the U.S. Department of Housing and Urban Development issued final regulations for the Loan Guarantees for Indian Housing Program (LGIHP or Program).  The regulations make permanent a new direct guarantee procedure that is modeled on the Federal Housing Administration's single family mortgage procedures.  Under this procedure, HUD may guarantee loans for the construction, acquisition or rehabilitation of standard housing family homes that are located on trust land or land located in an area within which an Indian housing authority or tribally designated housing entity is authorized to provide housing.

The final rule adopts, in large part, the interim rule issued by HUD in September 1998.   Certain amendments were made to address statutory changes made after issuance of the interim rule relating to environmental review requirements and geographic program limitations.  Specifically, the final rule includes a provision allowing tribes to assume environmental review responsibilities that would otherwise be exercised by HUD.  Additionally, the final rule removed language restricting loan guarantee assistance to area covered by an Indian Housing Plan under the Native American Housing and Self Determination Act (NAHASDA).

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ASK THE ADVOCATE

The Tribal Advocate has received inquiries regarding the article in the March 2002 issue discussing the proposed amendments to the Historically Underutilized Business Zone (HUBZone) Program regulations and the concerns expressed by Senator John Kerry (D-Mass.), chairman of the Senate Small Business Committee.

Q:        The article in the March 2002 issue of the Tribal Advocate entitled "Proposed HUBZone Amendments Provide Increased Contracting Opportunities for Tribes" mentioned Senator Kerry's concerns regarding the proposed regulations.  Can you elaborate on these concerns?

A:         Senator Kerry has stated he disagrees with the proposed broadening of the definition of "employee" under the statute to include unpaid volunteers.  (To qualify as a HUBZone company, at least 35% of a company's employees must reside in a HUBZone.)  According Senator Kerry, this change would allow employers to qualify for HUBZone status by luring in "volunteers" with morning coffee and donuts, thereby defeating one of the purposes of the HUBZone Act, which is to provide employment opportunities for individuals in HUBZone areas.

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