Piliero Mazza &
Pargament, PLLC


Vol. 2, Issue 4
April 2000


Addressing Tribal and Alaska Native Corporation
Legal and Business Issues


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A R T I C L E S


GOVERNMENT
Campaign Contributions Give Tribes a Voice in the Political Process



GAMING
Unionization and Indian Gaming in California



BUSINESS
Affiliation Rules for Indian Tribes and ANCs General V.8(a) Program Exemptions



INTERVIEW
With Anthony J. DeLuca
Director of the Air Force Office of Small and Disadvantaged Business Utilization in Washington, D.C.




ASK THE ADVOCATE
What is a Mentor/Protégé Program?




H O M E


P U B L I C A T I O N S




GOVERNMENT

Campaign Contributions Give Tribes a Voice in the Political Process

The 2000 federal elections are promising to be among the most interesting and unpredictable in American history. Voters will elect a new President, all 435 members of the House of Representatives, and one-third of the members of the Senate. With Republicans currently holding only a razor-thin majority in the House, a shift of as few as six seats could result in the Democrats gaining the majority. Furthermore, with no incumbent on the ballot for the presidency, some proponents say that both parties have about an equal chance of capturing the White House. In fact, since it is widely believed that the next President will have the opportunity to appoint as many as three or four new Justices to the Supreme Court, the make-up of the Judicial Branch of government could also be highly influenced by the outcome of this year's elections.

By helping candidates that are supportive of tribal concerns, Indian tribes have the opportunity to ensure that their voices will be heard. In making political contributions, however, tribes should take care to ensure that they are in compliance with campaign finance laws.




GAMING

Unionization and Indian Gaming in California

On March 7, voters in California overwhelmingly approved Proposition 1A, which amends the State Constitution to permit Nevada-style gaming on Indian reservations on the condition that such gaming is conducted pursuant to a valid compact between the tribe and the State. Many predict that the passage of Proposition 1A will lead to explosive growth in Indian gaming in California.


While Proposition 1A has cleared the way for Indian gaming in California, tribes have had to pay a price. Specifically, tribes have been required to authorize union organizing activity in their casinos. In August of last year, the California Supreme Court struck down as unconstitutional Proposition 5, which would have authorized Nevada-style gaming on Indian reservations without a constitutional amendment. This legislation was strongly opposed by organized labor. (See article in September 1999 issue of the Tribal Advocate).

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BUSINESS

Affiliation Rules for Indian Tribes and ANCs General V.8(a) Program Exemptions

ANC and tribally-owned firms participating in or considering application to the 8(a) Program should be aware of the difference between the 8(a) Program affiliation rules and the general affiliation rules and the ramifications of their application on both 8(a) contracts and small business set asides. The Small Business Administration ("SBA") regulations contain two different affiliation standards with regard to ANC and tribally-owned companies. The regulations governing firms in the 8(a) Program are more lenient with regard to affiliation standards than the general regulations. Although both of these rules accord special treatment to ANC and tribally-owned companies, neither of them provide complete exemptions from the affiliation regulations.

As a general rule, the SBA regulations state that two concerns are "affiliated" with each other when either party "controls or has the power to control the other, or when a third party controls or has the power to control both." However, there is an exception to this general rule when the firms in question are owned and controlled by an Indian tribe or ANC. Under these circumstances, the firms are not considered to be affiliates of each other or of the tribe/ANC "solely because of their common ownership." (emphasis added). As indicated by the use of the word "solely," this provision does not provide an absolute exemption from the SBA's general affiliation rules. Because ownership is only one factor considered by the SBA when making an affiliation determination, it is possible that ANC and tribally-owned firms may be subject to a finding of affiliation if other general affiliation factors are present.

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INTERVIEW

Tribal Advocate Speaks with Anthony J. DeLuca
Director of the Air Force Office
of Small and Disadvantaged Business Utilization
in Washington, D.C.

On February 9, 2000, the Tribal Advocate had the pleasure of speaking with Anthony DeLuca regarding government contracting opportunities available to ANCs, tribes and Native American-owned businesses through the United States Air Force/Department of Defense. Mr. DeLuca is responsible for the leadership, management and oversight of the Small and Minority Business Program for the Department of the Air Force. He has played a significant role in the recruitment and training of Indian and ANC-owned businesses with regard to government contracting opportunities within the Air Force and the Department of Defense.

This is the second of a two-part interview with Mr. DeLuca. The first part of this interview was published in the March 2000 issue of the Tribal Advocate.

Tribal Advocate (TA): Do you see outsourcing as a viable tool for tribes and ANCs?

Tony DeLuca (DeLuca): Absolutely. The Air Force outsources work in several areas including base operating services, civil engineering, communications, custodial/janitorial services, environmental and library services.

TA:
Does the Air Force have any authority to make direct conversions to tribes or ANCs?

DeLuca: Yes. We can make direct conversions to tribes and ANCs that are participating in the Small Business Administration's 8(a) Program. In fact, we have made several direct conversions to firms in this program. This is one of the great advantages to firms that have companies in the 8(a) Program. Recently, we made a direct conversion of a $500 million/ten year contract to an ANC-owned 8(a) participant. So we are taking advantage of that authority and will continue to take advantage of it. Indeed, we are looking at other areas in which we can make direct conversions as well.

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ASK THE ADVOCATE

Q: What is a Mentor/Protégé Program?

A.
Generally, Mentor/Protégé Programs are available through government agencies and allow companies to enter into agreements for the provision of developmental assistance and support. Mentors are usually more experienced companies, while protégés are new and/or small businesses that are in need of developmental assistance.

Several government agencies are developing or have already implemented development assistance-based programs. The Department of Defense and the Small Business Administration's 8(a) Program both currently have formal mentor-protégé programs in place. Additionally, the Department of Energy recently published regulations that would make their pilot mentor/protégé program permanent.

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