Piliero Mazza & Pargament, PLLC Vol. 4, Issue 10 Nov/Dec 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
COURT WATCH: Few Native American Issues Before Supreme Court
TRIBAL RECOGNITION: Proposed Moratorium on Tribal Recognition Decisively Defeated in Senate
GOVERNMENT CONTRACTING: Contract Bundling Continues to Affect Small Business Interests
ASK THE ADVOCATE: HIPAA Compliance Deadlines
The United States Supreme Court’s October 2002 term began with the denial of many petitions involving Native American issues. These denials leave in tact some lower court decisions favorable to Indian Country, and others that are not. At the present time, the Court has only two Indian Country cases on its docket – both of which involve issues relating to the remedies available to tribes when the government breaches it trust responsibility.
The first case, Navaho Nation v. United States, involves an allegation that the Department of Interior breached its trust responsibility to the Tribe when it approved an unfavorable coal lease between the Tribe and Peabody Coal that included a 12.5 percent royalty rate. The Bureau of Indian Affairs initially approved a lease with a 20 percent royalty rate. However, after secretly meeting with a friend and lobbyist hired by Peabody, then-Secretary Donald Hodel suppressed the approved 20 percent royalty lease and told the Tribe that no decision had been reached and it should continue to negotiate with Peabody. A lease including a 12.5 percent royalty rate was eventually accepted by the Tribe under what the court deemed to be severe “economic pressure.”
As reported in the October issue of the Tribal Advocate, the Senate Indian Affairs Committee recently held a hearing to discuss the Tribal Recognition and Indian Bureau Enhancement Act of 2001 (S-1392) and the moratorium amendment proposed by Senator Christopher Dodd (D-CT) which, if passed, would have put an indefinite hold on pending tribal recognition petitions. After much debate and in the face of strong disapproval by Indian country, the proposed amendment was tabled by a vote of 80 to 15.
Although Senators Dodd and Joseph Lieberman (D-CT) supported the proposal as essential to the tremendous job of reforming the federal tribal recognition process, Indian Affairs Committee leaders Senators Daniel Inouye (D-HI) and Ben Nighthorse Campbell (R-CO) opposed the measure, stating that it was unfair and untimely. Despite their opposition to the proposed moratorium, Senators Inouye and Campbell indicated that they intend to hold further hearings on the issue of reforming the federal recognition process.
Over the past few months, the Senate Indian Affairs Committee held hearings to address issues that have arisen in Indian Country as a result of the September 11 terrorist attacks and the fallout from the United States Supreme Court decision in Nevada v. Hicks. (See Article in September 2001 issue of the Tribal Advocate.) Committee Chairman Senator Daniel Inouye (D-HI) vocalized his concerns regarding these issues and indicated his intent to bring “some sense, some order and some clarity back to law enforcement in Indian Country.”
Individuals testifying before the Committee included Monty Bengochia, Chairman of the Bishop Paiute Tribal Council; Tracy Toulou, Director of the DOJ Office of Tribal Justice; and Thomas Heffelfinger, U.S. Attorney for the District of Minnesota and Chairman of the Attorney General Advisory Committee’s Native American Issues Subcommittee.
The issues highlighted during the hearings included the abnormally high rates of violent crime against Native Americans and concerns regarding coordinated police efforts in light of potential terrorist attacks. Because U.S. Supreme Court decisions over the past few years have consistently eroded tribal sovereignty and tribal police jurisdiction over reservations, many tribes are left with little or no police protection on their reservation. Studies conducted by the DOJ have shown that Indian Country is served by only half as many police officers per capita as similarly situated rural communities. These statistics, in conjunction with the Supreme Court’s usurpation of Tribal jurisdiction over non-Indians and local law authorities’ reluctance to police reservations, have contributed to the often astronomical crime rates on reservations.
Over the past several years, contract bundling has been an issue for many small businesses. “Bundling” refers to the combination of different tasks joined together in one large contract, as opposed to having separate smaller contracts for each task. Generally, contract bundling disfavors small businesses because they are unable to compete as prime contractors due to the size of the bundled contracts.
On October 2, 2002, the SBA’s Office of Advocacy released a report indicating a significant increase in contract bundling by federal agencies over the past ten years. The statistics indicate that this increase is affecting the ability of small businesses to compete for federal contracts. For example, small businesses received only 16.7 percent of bundled federal contract dollars in fiscal year 2001, and only 20% of all federal prime contract dollars. The report also estimated that federal contract bundling results in a loss of approximately $13 billion in small business revenue annually.
ON THE HILL
After the tragedy of September 11, President Bush proposed the creation of the Department of Homeland Security (Department) to centralize federal response to terrorism threats. The Department would direct several agencies, including the Immigration and Naturalization Service, the Coast Guard and the Federal Emergency Management Agency. Ultimately, the Department is expected to employ approximately 170,000 workers under a budget of $37.5 billion. Two bills currently pending in Congress may, if passed, provide additional contracting opportunities for small and Native American owned businesses and ANCs through the Department.
The first bill, which was introduced by Representative Nydia Velázquez (D-NY) and adopted by the House of Representatives, is an amendment to the Homeland Security Act that would require the Department of Homeland Security (Department) to incorporate a twenty-three percent (23%) small business contracting goal. As an additional incentive, the amendment also requires that the annual evaluation of contracting officers include consideration of their compliance with the stated goal.
Community development financial institutions (CDFI) are an often overlooked source for expanding tribal economies. A total of $5 million was set aside from the federal CDFI Fund’s 2001 appropriation to initiate a Native American CDFI Technical Assistance (NACTA) fund.
The mission of the NACTA fund is to strengthen CDFIs that primarily serve Native American or Alaska Native populations. CDFIs are especially important in these communities because they provide loans and/or investments that can build and strengthen tribal economies and assist tribes with self-determination efforts.
ASK THE ADVOCATE
Q: What are the requirements and deadlines for compliance with HIPAA?
A: The Health Insurance Portability and Accountability Act of 1996 (HIPAA) and its implementing regulations apply to virtually all private, commercial, state, and federal entities that pay health care bills. HIPAA states that a "covered entity" may only use or disclose protected health information as permitted or required by the Privacy Rule. A "covered entity" includes a health care clearinghouse, a health plan or a health care provider that transmits any health information in electronic form in connection with a transaction covered by the Act. According to the Department of Health and Human Services, there is no explicit exclusion for tribal entities.
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