Piliero Mazza & Pargament, PLLC Vol. 3, Issue 10 November/December 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


GOVERNMENT CONTRACTING OMB Proposal May Present Increased Contracting Opportunities for Native American Companies and ANCs


EMPLOYMENT/LABOR ADEA Deemed Inapplicable to Tribal Housing Employer


LAW ENFORCEMENT Ninth Circuit Allows Dual Prosecution of Non-member Indian


GAMING NIGC Proposes Environmental Regulations


COURT WATCH Court Strikes Down Tribes= Challenge to Tobacco Settlement


FEDERAL BIA Denies Federal Recognition of Two Tribes


A TRIBAL ADVOCATE SALUTE Ute Indian Tribe Contributes to Ground Zero Effort


ASK THE ADVOCATE

GOVERNMENT CONTRACTING

OMB Proposal May Present Increased Contracting Opportunities for Native American Companies and ANCs

A proposal issued earlier this month by the Office of Management and Budget (“OMB”) would move more work done by government employees to the private sector by making it easier for women and minority-owned businesses to obtain federal contracts. This proposal has surprised some conservatives who expected the Bush Administration to oppose all affirmative action measures.

At present, under a process called “direct conversion,” only certain disabled or prison organizations are eligible to receive these non-defense government contracts without competition. The proposal would broaden the eligible participants to include women-owned and minority-owned businesses.

 


EMPLOYMENT/LABOR

ADEA Deemed Inapplicable to Tribal Housing Employer

In EEOC v. Karuk Tribe Housing Authority, the Ninth Circuit Court of Appeals recently held that the Age Discrimination in Employment Act (“ADEA”) did not apply to a tribal housing authority employee. In reaching this conclusion, the Court found that an employment relationship between an Indian tribe=s housing authority and an enrolled member of the tribe who worked for the authority involved exclusive rights of tribal self-governance in purely tribal matters. Accordingly, the court ruled that this employment relationship was exempt from the ADEA.

The underlying issue in the case was whether the tribe was required to comply with a subpoena issued by the Equal Employment Opportunity Commission (“EEOC”) in relation to a discrimination charge filed by a former employee. The tribe refused to comply with the subpoena, alleging that it was immune from suit in federal court and that the EEOC did not have jurisdiction because the ADEA was not applicable.

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LAW ENFORCEMENT

Ninth Circuit Allows Dual Prosecution of Non-member Indian

The Ninth Circuit Court of Appeals recently ruled that the federal government may prosecute a non-member Indian after he has pled guilty in a tribal court, without violating the double jeopardy clause of the U.S. Constitution.

In United States v. Enas, Michael Enas, a member of the San Carlos Apache Tribe, was arrested for assault-related charges stemming from an incident that occurred on the White Mountain Apache Tribe’s reservation. Enas pled guilty and was sentenced by the White Mountain Apache Tribal Court. After he escaped from White Mountain’s custody, he was caught by federal authorities and prosecuted for the same conduct for which he had already been convicted in the Tribal Court.

Enas argued that the federal prosecution violated the U.S. Constitution=s double jeopardy clause, which generally prohibits a second prosecution for the same offense. There is an exception to the double jeopardy clause, however, where two prosecutions are carried out by separate sovereigns. For example, because state and federal governments are separate sovereigns, a person may be prosecuted for the same offense by both governments without violating the double jeopardy clause.

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GAMING

NIGC Proposes Environmental Regulations

On October 2, 2001, the National Indian Gaming Commission (“Commission”) issued proposed regulations establishing a framework for measuring tribal compliance with the Indian Gaming Regulatory Act’s (“IGRA”) requirement that tribal gaming facilities are constructed, maintained and operated in a manner that protects the environment, public health and safety.

Under this regulation, tribal governments are encouraged to assume full responsibility for the development and implementation of laws, codes, ordinances and resolutions applicable to their gaming operations. The rule requires that tribes submit an environment, public health and safety plan that sets forth the tribal government=s policies and programs for ensuring that its gaming operations do not pose a threat to the public.

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COURT WATCH

Court Strikes Down Tribes' Challenge to Tobacco Settlement

In a case entitled Table Bluff Reservation v. Phillip Morris, Inc., the Ninth Circuit Court of Appeals dismissed a complaint filed by several Indian tribes challenging the 1998 settlement agreement between the tobacco companies and 46 states over smoking-related health care costs. None of the tribes were invited to participate in the settlement negotiations.

In the master settlement agreement, the states released their claims against the tobacco companies in exchange for curtailment of certain advertising and other activities of the tobacco companies and the establishment of a fund to treat smoking-related diseases. With respect to Indian tribes, the agreement states that to the extent the agreement prohibits actions within a participating state, the prohibition applies to all geographic boundaries within the state, including Indian country and/or trust lands.

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FEDERAL

BIA Denies Federal Recognition of Two Tribes

The Bureau of Indian Affairs (“BIA”) announced in late September, 2001 that it is denying federal recognition to two Indian tribes -- the Nipmuc Nation of Massachusetts and the Duwamish Tribe of Washington. These decisions overturned prior approvals of federal recognition for these tribes under the last days of Clinton=s presidency. Thus far, the Bush Administration has issued a total of three decisions on tribal recognition petitions, all of which have been denials.

The denial of these applications represents a dramatic shift in policy from the BIA’s approval of federal recognition to six tribes during the closing days of the Clinton Administration. The two decisions made by BIA Assistant Secretary of Neal McCaleb were consistent with the recommendations made by the Branch of Acknowledgment and Research (“BAR”). The BIA’s approval of the last six applications during the Clinton Administration went against the BAR’s recommendation to deny federal recognition.

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A TRIBAL ADVOCATE SALUTE

Ute Indian Tribe Contributes to Ground Zero Effort

In the wake of the terrorist attacks in New York and Washington, D.C., many tribes have made significant contributions to the nation's rescue and clean up efforts. The Tribal Advocate would like to pay special tribute to the Ute Indian Tribe which donated 35,000 bottles of water to the rescue workers in New York City. White Rocks Spring Water, LLC, a Ute tribal enterprise, packed and transported the water from its water bottling facility in Ft. Duchesne, Utah to New York City. Ute tribal members and employees traveled with the water and personally delivered it to rescue workers.

The Tribal Advocate salutes all the tribes that have contributed to the tremendous rebuilding effort.

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ASK THE ADVOCATE

Q: Has any new legislation been introduced that would provide increased contracting or small business opportunities for tribally-owned businesses and/or Alaska Native Corporations (“ANCs”)?

A: On October 3, Senator Bond introduced the “Small Business Economic Recovery Act of 2001,” which would increase the ceiling for small business set asides for Department of Defense architectural and engineering services and construction design contracts to $300,000. The bill also requires that GSA schedule contracts, requirements or procurements valued at less than $100,000 be awarded to small businesses. (See June 2001 issue of the Tribal Advocate for article regarding GSA schedule opportunities.) Finally, the bill includes provisions for tax relief and emergency loans for purposes of raising small business working capital.

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