Piliero Mazza & Pargament, PLLC Vol. 3, Issue 7 July/August 2001
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A R T I C L E S
SOVEREIGN IMMUNITY Recent State and Federal Decisions Further Erode Tribal Sovereignty
GOVERNMENT CONTRACTING Draft Legislation Would Expand Mentor-Protégé Programs Governmentwide
GOVERNMENT CONTRACTING Indian Incentive Program Offers Potential for Increased Contracting Opportunities
Recent State and Federal Decisions Further Erode Tribal Sovereignty
Federal and state court opinions continue to erode the notion of tribal sovereign. Recently the United States Supreme Court, Ninth Circuit Court of Appeals and Maine Supreme Court issued decisions affecting issues of tribal taxation, police authority and privacy. These cases join a general trend toward the erosion of tribal sovereign immunity.
In Atkinson Trading Company, Inc. v. Shirley, the United States Supreme Court unanimously ruled that the Navajo Tribe had no authority to impose an occupancy tax on nonmember guests staying in hotel rooms located on non-Indian fee land within the Tribe's boundaries. The Court reversed the Tenth Circuit Court of Appeals, which held in favor of the Navajo Tribe by finding that the tax was permissible because tribal police, fire and medical services were available to the hotel guests. (See May issue of Tribal Advocate for more in depth description of Tenth Circuit's holding.)
Draft Legislation Would Expand Mentor-Protégé Programs Governmentwide
A bill recently introduced in the Senate Small Business Committee by Senator Christopher Bond would establish a government-wide mentor-protégé program with a broader base of eligible participants than current mentor-protégé programs, including firms located in Historically Underutilized Business Zones ("HUBZones"). Because Indian reservations, by definition, qualify as HUBZones, this draft legislation could create a wide range of new federal procurement opportunities for tribally-owned businesses.
Under the bill (S. 861), entitled AThe Governmentwide Mentor-Protégé Program Act of 2001," the Small Business Administration ("SBA") would develop a core mentor-protégé program in which any federal agency could choose to participate. If an agency participates, it would be eligible to seek reimbursement from the SBA for up to 50% of the costs incurred by the agency running the program.
Proposed IGRA Amendments May Curtail Future Indian Gaming
On Tuesday, June 19, 2001, Representatives Frank Wolf (R-VA), Christopher Shays (R-CT), Bob Riley (R-AL), Todd Tiahrt (R-KS) and Vernon Ehlers (R-MI) introduced legislation amending the Indian Regulatory Gaming Act ("IGRA") to require state legislature approval for new gaming facilities on Indian land. If passed, the bill could have wide-reaching effects on tribes that wish to engage in gaming activities in the future.
The bill is entitled the "Tribal and Local Communities Relationship Improvement Act" ("Act")and would amend IGRA to require that all tribal-state compacts entered into after the effective date of the Act be approved by the Governor and state legislature of the jurisdiction in which the casino is located. The amendment would give states a substantial increase in power over tribal gaming. Although this new requirement would not apply to gaming compacts in effect on the effective date of the Act, if such compacts are renewed or renegotiated with new terms or provisions which would result in an expansion of the gaming operations covered by the compact, the Act's provisions would apply.
Indian Incentive Program Offers Potential for Increased Contracting Opportunities
Although often overlooked, the Indian Incentive Program ("IIP" or "Program") is an effective tool for tribes to secure government contracting opportunities, and for tribally-owned companies to obtain reimbursement for subcontracting to other tribal companies. The IIP allows for the payment of funds to contractors that award subcontracts to business enterprises owned by Native Americans, Indian tribes, Alaska Natives, and Alaskan Native Corporations ("ANC"). The goal of the IIP is to encourage contracting with these minority businesses. Recent changes to the IIP have made it even easier for contractors and subcontractors to reap the benefits of the program.
The IIP was established through the Indian Financing Act of 1974. This Act provided for the reimbursement of an amount equal to 5 percent of the amount paid by a contractor to a subcontractor if the subcontractor was owned by an "Indian organization" or an "Indian-owned economic enterprise." An "Indian organization" is defined as a governing body of an Indian tribe or an entity established or recognized by an Indian tribe. An "ndian-owned economic enterprise" is defined as any Indian-owned, for-profit commercial, industrial or business activity where Indians own at least 51 percent of the enterprise. Alaska Natives qualify as "Indians" under the Act.
Regulations Issued Implementing the Indian Arts and Crafts Enforcement Act
On May 21, 2001, the Indian Arts and Crafts Board ("IACB") issued proposed regulations implementing the Indian Arts and Crafts Enforcement Act of 2000 ("IACEA" or "Act"). The proposed rule provides guidance to producers, marketers and purchasers of items marked as Indian products. As the IACEA does not specifically define the term "Indian product," the proposed rule implements the Act by clarifying this term and providing specific examples of items that may be marked as "Indian products."
ON THE HILL
McCaleb Nears Confirmation to Head of Bureau of Indian Affairs
The Senate appears to be on the verge confirming Neil McCaleb as the new Assistant Secretary for Indian Affairs at the Department of the Interior. As the Assistant Secretary for Indian Affairs, Mr. McCaleb will become the head of the Bureau of Indian Affairs. ("BIA"). At the time of this writing, no official vote has been taken on Mr. McCaleb's nomination. However, Mr. McCaleb's confirmation hearing before the Senate Indian Affairs Committee proved to be non-controversial, and Mr. McCaleb received harmonious vocal support from both Republicans and Democrats at the hearing
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