Piliero Mazza & Pargament, PLLC Vol. 3, Issue 4 April 2001



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 Decision Makes Confidential Tribal Documents More Accessible to General Public U.S. Supreme Court to Decide Sovereign Immunity Issues


GOVERNMENT CONTRACTING DoD Indian Incentive Program To Be Expanded


GAMING National Indian Gaming Commission Issues 2001 Annual Fee Rates


COURT WATCH Court Upholds Bright Line Test for Unionization of Employees Ruling on Religious Freedom May Have Negative Impact on Native Americans


INDIAN HEALTH Funds Available for IHS Loan Repayment Program


REGULATIONS Bipartisan Legislation Addresses Concerns in Indian Schools


FEDERAL Campbell Endorses Gorton for Federal Judgeship BIA Issues Technical Amendments to Financial Assistance and Social Services Program




COURT WATCH

Supreme Court Decision Makes Confidential Tribal Documents More Accessible to General Public

On Monday March 5, 2001, the United States Supreme Court issued a unanimous decision in Department of Interior v. Klamath Water Users Protective Association, that will make tribal documents submitted to the Bureau of Indian Affairs ("BIA") more accessible to the general public. The Court's ruling granted a Freedom of Information Act ("FOIA") request for confidential documents submitted by the Klamath tribe in connection with water rights claims filed with the BIA. The FOIA request was submitted by the Klamath Water Users Protective Association ("Association"), which represents farmers in southern Oregon and the Tule Lake Irrigation District of California.

BIA originally requested the documents in connection with claims it had filed on behalf of the Klamath tribe for the purpose of allocating water rights in parts of Oregon and California. Because the BIA is responsible for administering land and water held in trust for Indian tribes, it consulted and e"changed correspondence with the Klamath tribe regarding the appropriate scope of the claims. The Association, which has interests adverse to those of the Klamath tribe, submitted a FOIA request seeking access to the correspondence between the BIA and the Klamath tribe.

 

GOVERNMENT CONTRACTING

DoD Indian Incentive Program To Be Expanded

Last year in an effort to boost the Indian Incentive Program, Congress added a provision to the Department of Defense ("DOD") authorization bill for FY2001 to allow payments to all tiers of subcontractors.  It is hoped that the e"pansion of incentive payments to include subcontractors at all levels will provide a boost for the Program, which has not been used as e"tensively as originally envisioned.

The Indian Incentive Program provides that the DOD will reimburse up to five percent of the dollar amount subcontracted to Indian organizations or Indian-owned economic enterprises, when authorized under the terms of the contract.  DOD contracts with prime contractors containing FAR Clause 52.226-1 are eligible for the incentive payments.  These contracts require contractors to use their best efforts to give Indian organizations and Indian-owned economic enterprises the maximum practicable opportunity to participate in the performance of subcontracts.  Subject to the terms and conditions of the contract, the contracting officer is required to authorize an incentive payment of five percent of the amount paid to Indian organizations or Indian-owned economic enterprises performing as subcontractors.  To obtain payment, prime contractors must submit requests for incentive payments to DOD contracting officers, and include copies of the  subcontractor's invoices as well as a calculation of the five percent rebate based on total payments under the subcontract.

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GAMING

National Indian Gaming Commission Issues 2001 Annual Fee Rates

The Indian Gaming Regulatory Act ("IGRA") provides for a system of fee assessment and payment that is self-administered by gaming operations.  Pursuant to these regulations, the National Indian Gaming Commission ("NIGC") is required to adopt and communicate assessment rates to tribes with gaming operations under their jurisdiction.

On February 27, 2001, the NIGC issued the annual fee rates for calendar year 2001.  These rates are 0% for Tier 1 and .08% for Tier 2.  The preliminary fee rate for tribes with certificates of self-regulation is 04%.  All gaming operations within the jurisdiction of the NIGC are required to report and pay any fees due by March 31, 2001.

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COURT WATCH

Court Upholds Bright Line Test for Unionization of Employees

The applicability of federal labor laws to tribal business enterprises recently has drawn much attention and has been addressed in a variety of contexts.  Indeed, tribal employees' rights to unionize under the National Labor Relations Act (the "NLRA" or the "Act"), have been addressed on several occasions by the courts and the National Labor Relations Board (the "NLRB" or the "Board"), the entity which first adjudicates disputes under the Act (See October 1999 issue of The Tribal Advocate).  In this regard, one federal court recently revisited this issue, and upheld a bright line test for determining whether employees of tribally-owned businesses may unionize.   In so doing, however, the court also preserved a possible defense for use by tribal enterprises to prevent employees from unionizing.

The NLRA generally permits employees to form unions and to bargain collectively with their employers.  While the NLRA does not contain explicit language making the Act applicable to tribes, the Act also does not expressly exempt tribes or tribal enterprises from its reach.  Rather, the NLRA specifically exempts the United States and "states and political subdivisions," which courts and the Board have traditionally interpreted to mean state governments.

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COURT WATCH

Ruling on Religious Freedom May Have Negative Impact on Native Americans

On February 7, 2001, the Federal Court of Appeals for the Fourth Circuit (which includes Virginia, Maryland, West Virginia, North Carolina and South Carolina) ruled that an inmate could not be denied access to Native American religious items solely because he was not of Native American race.  While the Court's decision in Morrison v. Garraghty may, on the surface, appear to be a victory for individuals who wish to practice their religious beliefs, the decision may actually limit the ability of Native Americans to possess religious items while incarcerated.

In Morrison, a Caucasian prisoner requested access to certain religious items to practice what he termed to be his "Native American Spirituality."  However, the prison's policy only allowed these items to be given to "bona fide Native Americans."  Because the plaintiff was not a member of a federally recognized Tribe or a blood descendant a tribal member, his request for the items was denied, and he subsequently filed suit.

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INDIAN HEALTH

Funds Available for IHS Loan Repayment Program

Approximately $12 million was appropriated in the fiscal year 2001 budget for the repayment of health profession education loans in return for full-time clinical service in Indian Health Programs.  The Indian Health Service anticipates that the funds will be used to support approximately 298 competing awards averaging $40,000 each.  Applications for the fiscal year 2001 program will be accepted and evaluated beginning March 16, and continuing until all funds have been exhausted.  Monthly deadline dates are scheduled for the Friday in the second full week of each month.  Applications are considered to be timely filed if they are either received on or before the deadline date or postmarked by the U.S. Postal Service on or before the deadline date.  Private metered postmarks are not acceptable as proof of timely mailing. Applications must be submitted on official forms that may be obtained from Jacqueline Santiago, Chief, IHS Loan Repayment Program, Twinbrook Metro Plaza, Suite 100, 12300 Twinbrook Parkway, Rockville, Maryland, 20852.

Applicants selected for the fiscal year 2001 program will be expected to begin their service period no later than September 30, 2001.

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COURT WATCH

U.S. Supreme Court to Decide Sovereign Immunity Issues

On March 19, 2001, the United States Supreme Court heard arguments in the case of C & L Enterprises, Inc. v. Citizen Band Potawatomi Indian Tribe of Oklahoma.  At issue is whether an Indian tribe waives its sovereign immunity when it enters into a contract containing an arbitration clause.  The Court's decision will resolve a conflict among the federal circuits as to the effect of such arbitration clauses.  (See Tribal Advocate article in July/August 2000 issue for a more detailed discussion of this issue.)

The case involves a contract entered into between C & L Enterprises, Inc. ("C & L") and the Citizen Band Potawatomi Tribe (the "Tribe") for construction of a foam roof on a building located on non-reservation, non-trust land owned by the Tribe.  The contract contained an arbitration clause which required that the parties submit all contract disputes to arbitration in accordance with the rules of the American Arbitration Association.

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REGULATIONS

Bipartisan Legislation Addresses Concerns in Indian Schools

On March 14th, the Senate Indian Affairs Committee held a hearing on bipartisan legislation to reform education delivery systems in Indian schools.  S. 211, the "Native American Education Improvement Act of 2001," would make changes in the Bureau of Indian Affairs ("BIA") school system for schools on or near reservations built and designed by the federal government, as well as other Tribally-run schools.  The measure is sponsored by Indian Affairs Chairman Senator Ben Nighthorse Campbell (R-CO), and its chief cosponsor is the committee=s Vice Chairman, Senator Daniel Inouye (D-HI).

Title I of the bill would amend the Education Amendments of 1978, which provides a comprehensive structure for the BIA-funded schools system.  The bill sets forth a formula for the BIA to use in allocating funding to these schools.  The formula is based on weighted student units, with e"tra weight given for certain factors, such as additional transportation costs because of isolation or the number of gifted and talented students.  Other highlights of Title I include (1) providing a mechanism for BIA schools to request facilities construction funding; (2) instituting a policy for recruiting qualified teachers at these schools; (3) providing grants for early childhood development programs to tribes and tribal organizations; and (4) requiring that all actions undertaken pursuant to the 1978 Act be done in consultation with the affected tribes.  This last provision is an attempt to maximize local Indian involvement in the schools that affect their interests.

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FEDERAL

Campbell Endorses Gorton for Federal Judgeship

Senate Indian Affairs Committee Chairman Senator Ben Nighthorse Campbell (R-CO) has joined a number of GOP senators in signing a letter to President Bush urging that former Senator Slade Gorton (R-WA) be considered for a federal judgship.  Senator Gorton lost a close reelection battle in November to Senator Maria Cantwell (D-WA).  Senator Gorton has clashed with many tribes in his years as attorney general for the state of Washington, as well as during his tenure in the Senate.  Senator John McCain (R-AZ) cited Senator Gorton's views towards tribal interests as the reason that he chose not to sign the letter endorsing Gorton=s candidacy for the bench.

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FEDERAL

BIA Issues Technical Amendments to Financial Assistance And Social Services Program

On March 15, 2001, the Bureau of Indian Affairs ([email protected]) issued an interim final rule and request for comments amending certain definitions and qualifications for eligibility for direct assistance under the Financial Assistance and Social Services Program regulations published on October 20, 2000.  These amendments were issued in an effort to correct inconsistencies between the preamble and the definitions included in the final rule and to clarify  the individuals eligible for service in Alaska.

The proposed changes include Alaska Natives within the definition of an "Indian," and include Alaska Native regions established pursuant to the Alaska Native Claims Settlement Act within the definition of a "Reservation."  Additionally, the entire State of Alaska is designated as a service area within which financial assistance and social services programs are provided. BACK TO TOP

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