Piliero Mazza &
Pargament, PLLC


Vol. 2, Issue 5
May 2000


Addressing Tribal and Alaska Native Corporation
Legal and Business Issues


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are excerpts --
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A R T I C L E S


LAW ENFORCEMENT
Tribal Police Department Liability Issues



COURT WATCH
Federal Court of Appeals Holds Indian Pull-Tab Sales Subject to Federal Excise Tax



TRIBAL LAND
Land Issues: Reservation vs. Trust Status - Part 1



EMPLOYMENT
The "Indian Preference" in Hiring Does Not Permit Discrimination Based on Tribal Affiliation



FEDERAL
BIA Proposes New Indian Blood Certificate Regulations



ASK THE ADVOCATE
Possible New Contracting Opportunities for Tribes and ANCs




H O M E


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




LAW ENFORCEMENT

Tribal Police Department Liability Issues

There are several ways in which a tribe may be shielded from liability for the actions of its tribal police officers. Specifically, this article discusses sovereign immunity, the application of the Federal Tort Claims Act and liability insurance as avenues of protection against the actions of tribal police officers.

Generally, Indian tribes and tribal officials acting in their official capacity enjoy sovereign immunity from lawsuits in federal courts unless the tribe expressly waives its sovereign immunity. Therefore, unless the tribe waives its sovereign immunity, a federal court would be precluded from asserting jurisdiction over a case brought against a tribal police department, or a tribal police department employee who is a member of the tribe. Any such suit should be filed in a tribal court.




COURT WATCH

Federal Court of Appeals Holds Indian Pull-Tab Sales Subject to Federal Excise Tax


The Tenth Circuit Court of Appeals held this month that the sale of pull-tabs by the Chickasaw Nation ("Nation") is subject to federal wagering and occupational excise taxes.

Among its many business activities, the Nation sells "pull-tabs," which are cards with several windows covered with tabs. To play the game, the player pulls the tab from the window and checks the symbols contained therein to see if he has won. The Nation purchases tickets in series of 24,000 tickets. Each series contains a set number of winning tickets which are distributed randomly throughout the tickets.

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TRIBAL LAND

Land Issues: Reservation vs. Trust Status - Part 1

Both reservation lands and lands held in trust for Indian tribes by the United States are considered "Indian Country." As a result, there is no practical difference between these lands for purposes of Indian governance and jurisdiction. However, federal agencies can draw a distinction between trust and reservation lands for purposes of the administration of federal programs. Therefore, tribes that currently hold trust land may want to consider applying to have those lands proclaimed reservation lands.


For purposes of governance and jurisdiction, there is no distinction between reservation and trust lands because all of these lands are collectively considered to be "Indian Country." Under the doctrine of sovereign immunity, Indians have general legal authority and jurisdiction in Indian Country. However, the United States Congress can place any limitations on tribal authority that it sees fit. For land to be considered Indian Country, it is not necessary for the land to have been designated officially as a "reservation." Rather, courts have held that the test is whether the land has been "validly set apart for the use of the Indians." Lands held in trust by the United States for Indian tribes meet this definition and are therefore considered to be "Indian Country."

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EMPLOYMENT

The "Indian Preference" in Hiring Does Not Permit Discrimination Based on Tribal Affiliation

A number of federal statutes and regulations contain provisions authorizing certain employers to give hiring preferences to members of Indian tribes. Probably the most significant of these laws is Title VII of the Civil Rights Act of 1964, which authorizes certain employers to extend preferential treatment to Indians. The preference was intended to compensate Indians for the effects of past and present unjust treatment. There are two prerequisites for this provision to apply: (1) the employer exercising the preference must be "on or near" an Indian reservation; and (2) the Indian to whom preferential treatment is given must be living "on or near" an Indian reservation.

Title VII expressly excludes Indian tribes from its definition of "employer" under the statute. Thus, an Indian tribe cannot be sued for employment discrimination under Title VII. However, a plaintiff could argue that a different result should apply where the employer is not an Indian tribe itself, but rather a commercial business owned by a tribe. Arguments have been made that Title VII should apply to such employers, particularly if the business is located off-reservation. Thus, the "Indian preference" may be relevant to certain tribal employers which operate commercial businesses.

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FEDERAL

BIA Proposes New Indian Blood Certificate Regulations

The Bureau of Indian Affairs ("BIA") has proposed new regulations providing the requirements and standards for filing, processing, and issuing a Certificate of Degree of Indian or Alaska Native Blood ("CDIB").

A CDIB certifies that an individual possesses a specific degree of Indian blood of a federally recognized Indian or Alaska Native tribe or tribes. CDIBs are issued so that individuals may establish their eligibility for those programs and services based upon their status as American Indians or Alaska Natives. However, a CDIB does not establish membership in a federally recognized Indian tribe and does not prevent an Indian tribe from making a separate and independent determination of blood degree for tribal purposes.


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ASK THE ADVOCATE

Possible New Contracting Opportunities for Tribes and ANCs

Many tribes and ANCs have inquired regarding the application and effect of the FAIR Act and OMB Circular A-76, and whether these provisions will provide any new contracting opportunities for Indian and Alaska Native Concerns. The following are answers to the most frequently asked questions regarding this issue:

Q. What is the FAIR Act?

A. The FAIR Act refers to the Federal Activities Inventory Reform Act of 1998, a law that is creating unprecedented numbers of contracting opportunities for contractors. It requires that all federal agencies submit annual reports to Congress and make available to the public an inventory of commercial activities to determine whether they should be performed by the government or contractors. Executive agencies began complying with the law in 1999 and published commercial activities inventories which may be the subject of competitions in accordance with Office of Management and Budget ("OMB") Circular A-76. Each agency's list identifies a wide array of contracting opportunities for outsourcing.

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