Piliero Mazza & Pargament, PLLC Vol. 3, Issue 8 September 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 Recent Supreme Court Decision Viewed as Continued Erosion of Tribal Sovereign Immunity


GAMING Indian Affairs Hearing Focuses on Potential Indian Gaming Changes


FEDERAL Tribal Advocate Bids Farewell to Tony DeLuca


INDIAN HOUSING HUD Seeking Nominations for Rule-Making Committee on NAHASDA


GOVERNMENT CONTRACTING Update on TRAC Act: Legislative Efforts Threaten to Stop Outsourcing of Government Functions


BUSINESS Court Ruling Impacts ANC Entry into Wireless Field


TRIBAL LAND McCaleb Proposes Withdrawal and Redrafting of Land Acquisition Regulations


COURT WATCH

Recent Supreme Court Decision Viewed as Continued Erosion of Tribal Sovereign Immunity

In a decision that has been seen by many tribes as a continued erosion to tribal sovereignty, the United States Supreme Court recently held that a tribal court did not have jurisdiction over claims relating to a state official's execution of a search warrant on reservation lands. The June 25, 2001 decision in Nevada v. Hicks was written by Justice Antonin Scalia.

Floyd Hicks, a member of the Fallon Paiute-Shoshone Tribes of Western Nevada, filed suit against two state game wardens alleging violations of his civil rights in the execution of a search warrant on his tribal reservation premises. The officers had obtained warrants from both the state and tribal courts to conduct a search for evidence that Mr. Hicks had unlawfully killed a California bighorn sheep while off the reservation. Mr. Hicks was later exonerated of the charges, however, the evidence confiscated from his property had been damaged while in the custody of the state officials.

Mr. Hicks brought suit against the state officials in tribal court. The officials argued that the tribal court did not have jurisdiction over them because they were investigating a crime that occurred outside the reservation. The Tribal Court, Federal District Court and Federal Court of Appeals all held that the Tribal Court had jurisdiction over the matter. However, the U.S. Supreme Court, in an opinion written by Justice Antonin Scalia, reversed these decisions and held that the Tribal Court did not have jurisdiction over Hicks' claims.

 


GAMING

Indian Affairs Hearing Focuses on Potential Indian Gaming Changes

On July 25, 2001, the Senate Indian Affairs Committee held a hearing on issues relating to the Indian Gaming Regulatory Act ("IGRA"). The hearing primarily focused on the effect of the Act, and proposed regulations recently issued by the National Indian Gaming Commission ("NIGC"), as well as other current topics relating to tribal recognition.

By way of background, IGRA was signed into law in 1988. It established statutory guidelines for Indian gaming to promote tribal economic development, self-sufficiency and government operations. The legislation also established the NIGC, an independent federal regulatory agency, to oversee and assist in regulating the Indian gaming industry pursuant to IGRA. NIGC operates on a budget of approximately $8 million per year.

Under IGRA, there are three categories of gaming activities. Class I gaming consists of traditional tribal gaming activities and is regulated by the tribes themselves. Class II gaming consists of activities such as bingo, pull-tabs and related games, and is regulated by tribes and NIGC. Class III gaming consists of casino and lottery gaming and is intended to be primarily regulated by tribal-state compacts, subject to the review of NIGC.

At the hearing, representatives of the tribal gaming community strongly emphasized and explained how gaming has strengthened tribal communities. Representatives from gaming organizations testified that the increased revenues from Indian gaming activities have resulted in increased funding for tribal health care and education programs. Keller George, president of the United South and Eastern Tribes, stated that this increased revenue allows tribes to get closer to the goals of self-sufficiency and self-determination.

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FEDERAL

Tribal Advocate Bids Farewell to Tony DeLuca

After 34 years of distinguished service with the federal government, Anthony "Tony" DeLuca is retiring. For the past eleven years, Mr. DeLuca had served as the Director of the Air Force's Office of Small and Disadvantaged Business Utilization ("OSDBU"). Mr. DeLuca's leadership has strengthened the management and oversight of the Air Force's Small and Minority Business Program. In particular, his commitment and creative thinking increased tribal business contracting opportunities within the Air Force and promoted the interests of Indians and Alaska Native Corporations. Mr. DeLuca's retirement culminates a long and distinguished career in Air Force procurement and minority small business development.

Mr. DeLuca began his Air Force career as a distinguished military graduate of Fordham University's Reserve Officer Training Corps program in 1967. He has been involved in Air Force procurement for most of his 34 years of federal government experience. In 1987, he was appointed as the first civilian competition advocate in the Office of the Assistant Secretary of the Air Force for Acquisition, a position that he held until being appointed the Air Force's OSDBU Director in 1990.

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INDIAN HOUSING

HUD Seeking Nominations for Rule-Making Committee on NAHASDA

In anticipation of implementing changes to the allocation formula for the Indian Housing Block Grant ("IHBG") Program, the Department of Housing and Urban Development ("HUD") issued a notice of its intent to establish a committee to gather information regarding necessary changes to improve the distribution of funds under the IHBG program. The notice solicits nominations for membership on the committee, which will be composed of tribal government representatives.

Under the IHBG program, HUD makes assistance available to tribes for Indian housing activities. Pursuant to the Native American Housing and Self-Determination Act of 1996 ("NAHASDA"), the amount of assistance allocated to each tribe is determined through a formula that was developed as part of the original NAHASDA negotiated rule-making process. As required by NAHASDA, HUD sought active tribal participation in the development of the rules currently in effect. Due to several recent statutory changes to the IHBG formula, HUD has decided to revisit the IHBG formula to determine whether any other changes are necessary.

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GOVERNMENT CONTRACTING

Update on TRAC Act: Legislative Efforts Threaten to Stop Outsourcing of Government Functions

The largest unions of federal government employees, and their allies in Congress, are continuing their efforts to enact legislation to prevent further privatization of work performed by government employees.

In February of this year, the Truthfulness, Responsibility, and Accountability in Contracting Act, referred to as the "TRAC" Act, was introduced in the House of Representatives (H.R. 721). This bill is a slightly revised version of a similar bill that failed last year. The bill, which has attracted over 150 co-sponsors, would suspend privatizing or outsourcing federal work until the government establishes reporting and monitoring systems to monitor the costs of contracting. The TRAC Act's supporters argue that outsourcing results in increased costs to the government, while at the same time causing a loss of jobs.

The TRAC Act is intended to freeze the privatization of any further government functions and is designed to "in-source" or return work to government employees. The Act would prohibit federal agencies from making decisions to privatize, outsource, contract out, or to conduct a study to convert the performance of the function to an outside source, otherwise known as an "A-76" conversion. (See June 2000 issue of Tribal Advocate for description of the A-76 process.) An agency could apply for permission to contract out, but permission would be granted only in extremely limited circumstances, such as to avoid "extraordinary economic harm." Furthermore, a private contractor could not receive the contract if it would conflict with an established collective bargaining agreement between the agency and a federal labor organization.

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BUSINESS

Court Ruling Impacts ANC Entry into Wireless Field

Alaska Native efforts to increase their presence in the wireless telecommunications market share were frustrated when the United States Court of Appeals for the District of Columbia Circuit held that the Federal Communications Commission ("FCC") had wrongly re-auctioned billions of dollars worth of wireless spectrum licenses held by a bankrupt company.

Last year, three Alaska Native Corporations ("ANCs") teamed with communications giant AT&T to bid for wireless spectrum licenses being re-auctioned by the FCC. The joint venture, which included the Arctic Slope Regional Corporation of Barrow, Doyon Ltd. of Fairbanks, and Sealaska Corporation of Juneau, bid $2.9 billion for 44 licenses. Those licenses would give the joint venturers rights to sell personal communications services ("PCS"), such as wireless email and Internet access, in diverse markets from New York City to the Alaskan interior.

The licenses became available for re-auction after the FCC confiscated them from Nextwave Personal Communications, Inc. ("Nextwave"), which had failed to make the agreed installment payments for the licenses. Pursuant to FCC policy, small businesses such as Nextwave are permitted to pay in installments to provide them with an opportunity to bid for wireless spectrum services. The FCC rules assume that winning bidders will use the extra time they are granted for payment in full to arrange financing. While awaiting final payment, the FCC takes out and perfects security interests in the licenses.

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TRIBAL LAND

McCaleb Proposes Withdrawal and Redrafting of Land Acquisition Regulations

On August 13, 2001, the Bureau of Indian Affairs ("BIA") delayed the effective date of the land acquisition regulations for an additional 90 days, and is soliciting comments on its proposal to withdraw the final rule and draft new regulations. This is the third delay of the implementation of the regulations since their initial publication on January 16, 2001. In response to its April request for comments on the withdrawal or amendment of the regulations, the BIA received 192 submissions from Indian tribes, state and local governments and other interested groups.

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