Piliero Mazza & Pargament, PLLC Vol. 4, Issue 1 January 2002
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ON THE HILL
Supreme Court Dismisses Most Recent Adarand Challenge
Less than one month after it heard oral arguments in the long-running case of Adarand Constructors v. Mineta, the Supreme Court dismissed the case and let the lower court opinion stand. Adarand challenged the constitutionality of the Department of Transportation's (DOT) recently-revised Disadvantaged Business Enterprise (DBE) Program. In its dismissal, the Court found that because Adarand Constructor's (Adarand) appeal challenged DOT's direct procurement program, as opposed to the DBE program at issue in the original case, the Court could not render a decision on the issue.
The case centered around a DOT program that required the inclusion of a Subcontractor Compensation Clause (SCC) in highway construction contracts awarded by DOT's Central Federal Lands Highway Division. The SCC provided for a price preference of up to 10% to prime contractors that used DBE's as subcontractors. To qualify, subcontractors were required to be certified as "disadvantaged" under the Small Business Administration's (SBA) 8(a) program, small disadvantaged business program, or another acceptable certification program.
Input Sought Regarding Indian Trust Management Issues
The Department of Interior (DOI), Bureau of Indian Affairs, Office of Special Trustee for American Indians and Office of Indian Trust Transition are currently holding tribal consultations across the country to receive input from interested parties regarding a reorganization of the DOI's trust responsibility functions to improve the management of Indian trust assets. The first two meetings were held in Albuquerque and Minneapolis in December. Additional meetings are planned in Oklahoma, South Dakota, California, Alaska and Washington, D.C., although the exact dates have not yet been set for these locations.
Supreme Court Upholds Taxation of Tribal Pull Tabs
On November 27, 2001, the U.S. Supreme Court upheld a decision in the 10th Circuit Court of Appeals allowing taxation of certain tribal gaming activities. The Court=s decision in Chickasaw Nation v. United States clarifies the circumstances under which tribes will be required to pay taxes on wagering-related activities.
The case stems from the selling of "pull-tabs" by the Chickasaw Nation and the Choctaw Nation, both of Oklahoma. Pull-tabs are similar to instant lottery tickets in that buyers receive prizes based upon the symbols on their particular cards. The Internal Revenue Service (IRS) determined that revenues derived from pull-tab sales were subject to federal excise and occupational taxes. The Tribes made partial payment of the taxes, but then brought suit to recover the funds, while the IRS brought suit seeking payment of the remainder of the taxes.
GAO Study Proposes Changes to Tribal Recognition Process
Given the maelstrom of publicity the tribal recognition process has received over the past year, the General Accounting Office (GAO) commissioned a study (GAO Study) regarding the current regulations looking for ways to improve the process. With increases in the federal funding available to recognized tribes and tribal gaming issues, tribal recognition has become an increasingly important issue within Congress.
The current tribal recognition process was established by the Bureau of Indian Affairs (BIA) in 1978. Under these regulations, an applicant tribe must submit a petition for recognition, including evidence that it meets seven specific criteria.
Congress Approves DOI Appropriations Act
On November 5, 2001, President Bush signed into law the Department of the Interior (DOI) and Related Agencies Appropriations Act for Fiscal Year 2002 (Act). The Act provides the annual funding for Indian programs, including health, education, and law enforcement services on reservations. The signing of the DOI measure marked a highlight in what has otherwise been a slow year for Native American and Alaska Native legislation.
While many DOI departments and agencies received cuts in funding from last year's levels, most Native American-related funding either remained steady or increased from the previous appropriations bill. The Bureau of Indian Affairs received $1.8 billion in funding for the upcoming fiscal year. This total represents a $600 million increase from the previous fiscal year. Of this $1.8 billion, $357.1 million has been designated for construction, maintenance and repair of Indian lands, with much of this funding earmarked for tribal school construction and maintenance. In a statement released following the bill's signing, President Bush stated that the total would keep the DOI on track to eliminate the current Native American school repair and maintenance backlog by 2006.
U.S. Supreme Court Lets State Privacy Ruling Stand
On November 13, 2001, the United States Supreme Court denied the Penobscot and Passamaquoddy Tribes= request for review of the Maine Supreme Court decision requiring the disclosure of certain documents relating to the Tribes' regulation of water resources. (See July/August issue of the Tribal Advocate for article discussing the state court opinion.)
ASK THE ADVOCATE
In the wake of the September 11 terrorist attacks, many employers are formulating emergency evacuation plans, or revisiting ones that are currently in effect. Based upon the experiences of disabled individuals in the aftermath of the terrorist attacks, many employers have expressed concerns regarding the gathering of information from disabled employees without violating the Americans with Disabilities Act (ADA). The Equal Employment Opportunity Commission (EEOC) recently issued a guidance addressing these issues which is available on its website at www.eeoc.gov, or directly from its office. Set forth below are some of the most common questions that the Tribal Advocate has received regarding this issue.
The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.
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