Piliero Mazza & Pargament, PLLC Vol. 4, Issue 3 March 2002
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
Proposed HUBZone Amendments Provide Increased Contracting Opportunities for Tribes
On January 28, 2002, the U.S. Small Business Administration (SBA) proposed amendments to the Historically Underutilized Business Zone (HUBZone) Program that could provide increased contracting opportunities for Tribes and Alaska Native Corporations (ANCs). The proposed regulations address the statutory amendments made in the Small Business Reauthorization Act of 2000 which changed the eligibility requirements for small business concerns owned by Native American Tribal Governments and expanded the definition of a HUBZone area. The rule also clarifies several regulations and proposes changes to the subcontracting limitations and non-manufacturer rule.
Court Of Appeals Upholds Tribal Right-To-Work Ordinance
On January 11, 2002, the United States Court of Appeals for the Tenth Circuit upheld a tribe's ability to enact a "right-to-work" law on tribal lands. The case, N.L.R.B. v. Pueblo of San Juan, clarifies the right of tribes to protect individuals employed on tribal lands. However, several questions remain concerning the extent to which a tribe may enforce such provisions.
The San Juan Pueblo (Pueblo) is a federally-recognized tribe located in New Mexico. In 1996, the Tribal Council enacted a "right-to-work" ordinance applying to employment activities on its tribal lands. The ordinance prohibits agreements between unions and employers requiring union membership or payment of union dues as a condition of employment. This ordinance applied to all employees on tribal land, regardless of tribal membership.
EPA Announces New Grant Program
On February 11, 2002, the Environmental Protection Agency (EPA) announced a new $25 million grant program designed to increase the efficiency of communications between states, tribes and the EPA by funding the modernization and integration of environmental data within the EPA. Approximately $2.5 million of these funds are being set aside for federally-recognized tribes.
Federal Court Upholds Tribal Court Jurisdiction
The Fifth Circuit Court of Appeals recently upheld a tribal court's right to determine its jurisdiction over claim filed by tribal members against Bank One. The case, entitled Bank One v. Shumake, involved a suit by several tribal members seeking monetary damages and injunctive relief against Bank One for fraud relating to credit agreements executed by the trial members.
The tribal members initially filed their suit in the Tribal court of the Mississippi Band of Choctaw Indians (Tribal Court). Bank One immediately filed suit in federal court to compel arbitration of the Tribal Court claims pursuant to an arbitration clause in the credit agreements. The federal court dismissed the case, holding that the Tribal Court must have the first opportunity to rule on the question of its jurisdiction under the "tribal exhaustion" doctrine. This doctrine was established by the U.S. Supreme Court in 1985, in National Farmers Union Insurance Co. v. Crow Tribe. In that case, which involved a claim for personal injuries suffered on reservation land, the Court held that the first examination of tribal court jurisdiction should take place in the tribal court, rather than a federal court. This holding was thereafter referred to as the "tribal exhaustion doctrine."
With the ever increasing use of electronic mail (e-mail) for business correspondence, some issues have arisen in the government contracting field regarding whether the validity of e-mail transactions between prospective bidders and contracting officials. Specifically, the Tribal Advocate has received an inquiry regarding the extent to which a prospective bidder can rely on e-mail correspondence received from a contracting officer with regard to a pending solicitation. As discussed below, contractors should be cautious when dealing with e-mail, as the General Accounting Office has held that the government is not bound by such correspondence.
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