Piliero Mazza &
Pargament, PLLC


Vol. 2, Issue 7
July/August 2000


Addressing Tribal and Alaska Native Corporation
Legal and Business Issues


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A R T I C L E S


LITIGATION
Briefing Completed in Challenge to Direct Conversion Under Section 8014



BUSINESS
Arbitration Clauses in Contracts to Which Tribes Are Parties May Constitute Waivers of Sovereign Immunity



EMPLOYMENT/LABOR
Update: Case Still Pending Regarding NLRB Jurisdiction Over Indian-Owned Casinos



EMPLOYMENT
Implications of the Family and Medical Leave Act on Tribal Employers



GAMING
National Council of Legislators Issues Report Addressing Indian Gaming



Comment Period Extended for Proposed CDIB Rule




H O M E


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




LITIGATION

Briefing Completed in Challenge to Direct Conversion Under Section 8014

In the June 2000 edition of the Tribal Advocate, we reported on the complaint filed by the American Federation of Government Employees, AFL-CIO ("AFGE"), against the U.S. Air Force ("USAF"). In the complaint, AFGE asked the U.S. District Court for the District of Columbia to declare Section 8014 of the Department of Defense's ("DOD") Appropriations Act unconstitutional and issue a preliminary injunction against the USAF enjoining it from authorizing any direct conversions pursuant to this provision, including the proposed direct conversion to Chugach.

Section 8014 requires that the DOD engage in cost comparisons before outsourcing certain work, but provides an exception for firms that are least 51% owned by Native Americans. The gist of the AFGE's complaint is that the exception for Native American owned-businesses is unconstitutional because it is not narrowly tailored to serve a compelling government interest as required by the Supreme Court in Adarand v Pena. (For an explanation of the A-76 process see the article entitled "A-76 Contracting Opportunities for Tribes and ANCs" in the June 2000 issue of the Tribal Advocate.)




BUSINESS

Arbitration Clauses in Contracts to Which Tribes Are Parties May Constitute Waivers of Sovereign Immunity


Indian tribes occupy a unique position in this nation's federal judicial system. Tribes are considered "domestic dependent nations," and retain inherent powers of self-government. Accordingly, both the United States Congress and the courts have sought to protect tribes' political autonomy by recognizing their immunity from law suits.

Indeed, absent congressional or tribal consent, state and federal courts have no jurisdiction over Indian tribes – only consent affords the courts jurisdiction to adjudicate claims brought by, or initiated against, tribes. Moreover, the United State Supreme Court has explicitly held that a waiver of sovereign immunity cannot be implied, but must be unequivocally and explicitly expressed.

The determination of whether a waiver of sovereign immunity is explicit, however, is a difficult one, and courts scrutinize tribes' actions in order to ascertain whether such actions clearly indicate an assent to fall under the jurisdiction of the courts. In this regard, courts have scrutinized arbitration clauses in contracts entered into by tribes in order to determine whether such clauses constitute waivers of immunity.

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EMPLOYMENT/LABOR

Update: Case Still Pending Regarding NLRB Jurisdiction Over Indian-Owned Casinos


As we reported in the January 2000 issue of the Tribal Advocate, the General Counsel of the National Labor Relations Board has taken the position that the NLRB should assert jurisdiction over commercial businesses owned by Indian tribes, even if such businesses are located on reservation lands.

The NLRB's General Counsel has taken this position in a case which is currently pending before the NLRB. The case involves the San Miguel Indian Bingo and Casino, which is situated on reservation land of the San Miguel Band of Mission Indians ("the Tribe") in California. The Tribe permitted representatives of the Communications Workers of America ("CWA") to enter its property to solicit casino employees for union membership. However, the Tribe denied access to another union, the Hotel Employees and Restaurant Employees International Union ("HERE"). HERE filed charges with the NLRB alleging that the Tribe had violated the NLRA by denying it access to its property and employees.

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EMPLOYMENT

Implications of the Family and Medical Leave Act on Tribal Employers

The Family and Medical Leave Act ("FMLA" or "Act") became effective in 1993. The Act gives employees the right to take up to 12 weeks of unpaid leave in a 12-month period for specific reasons including the serious health condition of the employee or family member or the birth or adoption of a child. The Act applies to private employers with more than fifty (50) employees and public employers regardless of the number of employees. This article addresses whether the FMLA is applicable to tribal employers and provides an overview of the Act's requirements.

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GAMING

National Council of Legislators Issues Report Addressing Indian Gaming

The Public Sector Gaming Study Commission ("PSGSC"), which was formed by the National Council of Legislators from Gaming States ("NCLGS"), recently published a report, entitled Gambling Policy and the Role of the State ("the Report"), addressing both state and tribal gaming issues. In an important section of the Report, the PSGSC discussed the complex issues involved in Indian tribal gaming.

The Report notes that regulation of Indian gaming is one of the limited gaming issues that is properly regulated by the federal government. That federal regulation was enacted through the 1988 passage of the Indian Gaming Regulatory Act ("IGRA"), which determined the circumstances under which tribes should be allowed to operate gaming facilities and established a process for states and tribes to negotiate gaming compacts. IGRA requires states to negotiate in "good faith" about the scope of gaming and how it will be regulated.

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Comment Period Extended for Proposed CDIB Rule

On April 18, 2000, the Bureau of Indian Affairs ("BIA") issued a proposed rule establishing the procedure for the issuance of a Certificate of Degree of Indian or Alaska Native Blood ("CDIB"). (See May 2000 issue of the Tribal Advocate) On June 20, 2000, the BIA extended the deadline for comments to the proposed rule from July 17, 2000 to August 16, 2000. An additional public consultation session was also held on June 29, 2000 in Reno, Nevada to discuss the proposed rule. For further information regarding the proposed rule or comments made at the public consultation contact Karen Ketcher, Branch of Tribal Operations, Eastern Oklahoma Region, Department of the Interior, Bureau of Indian Affairs, 101 North 5th Street, Muskogee, OK 74401.

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