Piliero Mazza &
Pargament, PLLC


Vol. 2, Issue 1
January 2000


Addressing Tribal and Alaska Native Corporation
Legal and Business Issues


The articles shown here
are excerpts --
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A R T I C L E S


BUSINESS
ANCs and Tribally-Owned Concerns Should Review
Their E-Mail Policies




COURT WATCH
Tribal Court
Jurisdiction Over
Contractual Disputes




EMPLOYMENT/LABOR
National Labor
Relations Board
Considering Enlarging
Jurisdiction Over
On-Reservation Businesses




GAMING
National Indian Gaming Commission Proposes New Classification Procedure



ASK THE ADVOCATE
Indian Employment
Tax Credit




BUSINESS
Imposing Restrictions
on Key Employees




ON THE HILL
Senate Passes
Indian Legislation;
House Less Active




LEGISLATION
FY2000 Funding
for Indian Programs





H O M E


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




BUSINESS

ANCs and Tribally-Owned Concerns Should Review Their E-Mail Policies

Electronic mail has become a fact of life in the workplace. While its use can have distinct benefits for a company, it can also create as many problems. As Alaska Native Corporations ("ANCs") and tribes continue to enter into more business ventures, including off-reservation, it becomes increasingly important to develop policies and procedures to help protect those ventures from lawsuits. Establishing effective policies governing the dissemination of e-mail in the workplace may provide some such protection. We discuss below some of the considerations that should go into the development of such policies.

One of the primary difficulties with e-mail is that most users view it as they would a telephone conversation, and do not fully appreciate the fact that, in effect, it involves the creation of a document. In fact, even after the "delete" key is pushed, e-mail is not necessarily destroyed. Rather, it is often moved to undisclosed locations on a hard drive, and subject to retrieval. In the context of a lawsuit involving the company, an e-mail database may reveal evidence that is not only damaging to the company’s legal position, but also extremely embarrassing.


The transmission of data electronically increases the likelihood of inadvertent disclosure of confidential information.




COURT WATCH

Tribal Court Jurisdiction Over Contractual Disputes

As discussed in the October 1999 issues of the Tribal Advocate, the National Labor Relations Board ("NLRB" or "Board") has previously exempted tribally-owned, on-reservation businesses from its jurisdiction. However, the Generel Counsel to the NLRB recently asked the Board to change its position and assert jurisdiction over on-reservation businesses, specifically a tribally-owned casino. The General Counsel has the authority to determine what cases are argued before the Board and to present arguments before the Board on behalf of the fovernment. The Board is made up of five members who possess the ultimate authority with regard to the cases presented to them for decision.

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GAMING

National Indian Gaming Commission Proposes New Classification Procedure

The National Indian Gaming Commission ("NGIC") has proposed new regulations establishing a formal process for the classification of Class II games under the Indian Gaming Regulatory Act ("IGRA"). Currently, the classification process is advisory only; however, the proposed regulations provide for a mandatory administrative process for making such classification determinations.

Under the proposed regulations, tribes will be required to apply for classifications on all Class II games they wish to continue playing after the effective date of the final rule and any new games they wish to introduce after the final rule is implemented. Tribes will be required to submit applications for classification decisions on games currently played within six months of the effective date of the final rule and will be permitted to continue playing the games pending the classification decision. However, games introduced after the implementation of the final rule will not be permitted in the casino until a classification decision has been rendered by the NGIC.

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ASK THE ADVOCATE

Indian Employment Tax Credit
 
A subscriber recently asked the Tribal Advocate whether any tax credits are available to employers who employ Native Americans. In answering this question, we conferred with Howard Niad, a certified public accountant, who provided the following response:

The Internal Revenue Code now provides an Indian employment credit to an employer for any taxable year equal to 20 percent of the excess of qualified wages and employee health insurance costs paid or incurred during a taxable year over qualified wages and employee health insurance costs paid or incurred by the employer (or any predecessor) during calendar year 1993 (base year).

Qualified wages are wages paid or incurred by an employer for services performed by a qualified employee. Qualified wages exclude wages attributable to service rendered during the one-year perod beginning with the day the individual begins work for the employer if any portion of such wages is taken into account in determining the credit under Internal Revenue Code section 51 (Work Opportunity Tax Credit).

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BUSINESS

Imposing Restrictions on Key Employees

In today's federal contracting environment, there is intense competition for fewer, more lucrative federal contracts. The importance of past performance as an evaluation factor has channeled competitive efforts, in part, toward searching for incumbent program managers and other key employees that have successfully managed the work in the past and have first-hand knowledge of the agency's needs. The knowledge and experience that these key employees possess can mean the difference between winning and losing a contract.

Accordingly, federal contractors are becoming increasingly reliant on written agreement with proposal writers and other key employees not only to protect against the unauthorized disclosure of the valuable information they possess, but also to prevent them from working for a competitor during the procurement process. Tribes and ANCs participating in the Small Business Administration's Section 8(a) program through companies incorporated under state law should consider the advisability of requiring such contracts for key employees or consultants.

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ON THE HILL

Senate Passes Indian Legislation; House Less Active

The Senate Committee on Indian Affairs considered and approved several bills designed to benefit American Indians and Indian tribes during the 1999 session of Congress. Much of the activity on Indian issues happened as a result of the efforts of Senator Ben Nighthorse Campbell (R-CO), the Chairman of the Indian Affairs Committee and the only American Indian currently serving in either house of Congress. Some of these bills have already passed the Senate, in most cases unanimously, demonstrating a bipartisan commitment in the Senate to addressing the needs of American Indians.

Among the bills passed by the Senate were Senator Campbell's Native American Business Development, Trade Promotion, and Tourism Act (S.401) and the Indian Tribal Regulatory Reform and Business Development Act (S.614). Both bills are designed to promote tribal self-sufficiency and prosperity by encouraging and supporting business and economic development by tribes and on tribal lands. The two bills collectively would provide financial and technical support, administrative services, and regulatory reform and relief to enhance the ability of tribes to create and sustain successful business enterprises.

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LEGISLATION

House Passes Interior Appropriations Bill

On July 15, 1999, the House of Representatives passed H.R.2466, the FY 2000 appropriations bill for the Department of the Interior by a vote of 377-47. This measure includes funding for the Bureau of Indian Affairs and for most Indian programs. Funding for Indian programs was provided as follows:


Operation of Indian Programs: $1.63 billion
Construction, repair, improvement, and maintenance of Indian facilities/acquisition of lands: $126 million
Indian land and water claims settlements/Miscellaneous payments to Indians: $25.9 million
Indian Guaranteed Loan Program account $4.5 million
Federal trust programs for Indians $90 million
Indian land consolidation pilot program $5 million
Indian health services $2.09 billion
Indian health facilities $312.5 million
Salaries and expenses of Office of Navajo and Hopi Indian Relocation $13.4 million


As this issue of the Tribal Advocate went to print, the Senate was considering its version of the Interior appropriations bill. In the next issue, we will provide details from the Senate bill and report on any other developments regarding funding for Indian programs.

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