Piliero Mazza &
Pargament, PLLC


Vol. 2, Issue 10
November/December 2000


Addressing Tribal and Alaska Native Corporation
Legal and Business Issues


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A R T I C L E S


COURT WATCH
United States Supreme Court Agrees to Hear Case Involving Jurisdiction of Tribal Court Over State Officials



EMPLOYMENT
Duty of Loyalty Provides Added Protection for Employers



COURT WATCH – TRIBAL LAND
Legal Disputes with States in Federal Court: Overcoming State Sovereign Immunity



GOVERNMENT CONTRACTING
Proposed Amendments to Hubzone Act May Benefit Tribal Enterprises and ANCs



ON THE HILL
More Funds Coming for Native American Health and Education as Interior Appropriations Bill is Signed into Law



ASK THE ADVOCATE
Special Treatment for Tribal Police Officers Under Fair Labor Standards Act




H O M E


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




COURT WATCH

United States Supreme Court Agrees to Hear Case Involving Jurisdiction of Tribal Court Over State Officials


On October 10, 2000 the United States Supreme Court agreed to hear arguments in State of Nevada, et al. v. Floyd Hicks, et al. At issue is the decision rendered by the Ninth Circuit Court of Appeals in November 1999, holding that the Fallon Paiute-Shoshone Tribal Court had jurisdiction to hear a civil action brought against state game warden officials by a tribal member for activities that occurred on tribal property.

Tribal member Floyd Hicks filed two complaints against the state officials in the Fallon Tribal Court alleging damages resulting from two searches that were conducted at his residence on August 30, 1990 and June 12, 1991. The searches were conducted pursuant to a search warrant that was issued by a local court and approved, with limitations, by the Fallon Tribal Court. The search warrant issued by the Tribal Court enabled the state officials to search Hicks' property for evidence of the possession or killing of a particular species of big horn sheep. However, the search was limited to the outside perimeter of Hicks' house and any vehicles on the premises. During the course of the searches, the state officials entered Hicks' home and confiscated two big horn sheep head trophies. Upon examination, it was determined that neither of the sheep heads taken from Hicks' home belonged to the species identified in the search warrant. The sheep heads were later returned to Hicks in a damaged condition. The complaints filed by Hicks alleged various violations of the Indian Civil Rights Act, as well as tort claims under Tribal common law.




EMPLOYMENT

Duty of Loyalty Provides Added Protection for Employers

To remain competitive, tribally-owned businesses and ANCs must be able to attract and retain high quality employees. As many business owners have come to learn the hard way, employee disloyalty can be extremely costly. In today's expanding market, there are an increasing number of employees recruiting company staff and soliciting customers for their own business ventures.

The best way for a business to protect itself from such improper conduct is to require employees to enter into written agreements as a condition of their employment. Very often, however, businesses do not have written agreements with all of their personnel. This occurs for a variety of reasons. Some businesses feel it is unnecessary to obtain written agreements from non-executive staff, such as administrative personnel. Others may decline to obtain written agreements because they fear that they may be perceived by the employees as threatening. Some companies distribute written agreements to employees, but neglect to follow-up and obtain signed copies.

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COURT WATCH – TRIBAL LAND

Legal Disputes with States in Federal Court: Overcoming State Sovereign Immunity

As the number of Indian tribes initiating legal action against states in federal courts increases, tribes filing legal actions have been forced to consider how to overcome a traditional defense employed by states – sovereign immunity.

The Eleventh Amendment of the United States Constitution affords states sovereign immunity in federal court, and specifically provides, "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another state, or by Citizens or Subjects of any Foreign State." Because Indian tribes occupy a unique position in this nation's federal judicial system, they are accorded the same status as a foreign sovereign. Thus, states traditionally have utilized the Eleventh Amendment as a shield against federal lawsuits brought by tribes.

In a recent case, Seneca Nation of Indians v. New York, the Seneca tribe sought to recover in connection with New York's seizure and occupation of tribal land. Specifically, the tribe argued that the State violated the Seneca's treaty rights, and also violated the federal Nonintercourse Act, by misappropriating tribal land. Accordingly, the tribe sought, among other things, damages and injunctive relief to prevent the State and individual owners from selling the land. The State, in turn, argued that the tribe's claims were barred by the Eleventh Amendment.

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GOVERNMENT CONTRACTING

Proposed Amendments to Hubzone Act May Benefit Tribal Enterprises and Ancs

The HUBZone program is designed to direct federal contract dollars into economically depressed urban and rural areas of the country. Under the regulations, Indian reservations are defined as HUBZone areas. In an effort to encourage businesses to move into these areas, Congress passed the HUBZone Act (the "Act"). Since its enactment in 1997, the Small Business Administration ("SBA") has been implementing the program. On March 22, 1999, the SBA began accepting applications from interested firms. However, the SBA has encountered difficulties implementing the program. This has led Congress and the SBA to propose amendments to the law and the implementing regulations. We discuss below those proposed changes that tribes and ANCS may find of most significance.

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ON THE HILL

More Funds Coming For Native American Health and Education as Interior Appropriations Bill Is Signed into Law

The normally contentious process that accompanies the annual Interior appropriations process was largely absent this year. The President signed the Fiscal Year 2001 Interior appropriations measure on October 11, 2000, following the overwhelming approval of the conference report by the House and Senate. The relative harmony that dominated the proceedings was largely the result of minimal differences between the House and Senate versions of the bill (H.R. 4578). At the signing ceremony, President Clinton praised the bipartisan leadership that led to the smooth sailing of the measure through Congress, and stated that the newly-signed law would "provide much-needed additional funding for health, education and law enforcement in our Native American communities, something that has been of particular interest to me."

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ASK THE ADVOCATE

Special Treatment for Tribal Police Officers Under Fair Labor Standards Act

Q: Does the Fair Labor Standards Act apply to Tribal Law Enforcement employers?

A: The Seventh Circuit Court of Appeals in Reich v. Great Lakes Indian Fish and Wildlife Commission, has held that the Fair Labor Standards Act ("FLSA" or "Act") applies to tribal law enforcement officers. However, no other courts have addressed this specific issue or the application of the FLSA generally to tribal employers. Additionally, as the Seventh Circuit only governs the states of Indiana, Illinois and Wisconsin, its opinion is not binding on any other jurisdictions. The Department of Labor has also taken the position that the FLSA is applicable to tribal law enforcement employers.

Given the Seventh Circuit's opinion and the position taken by the DOL, tribes should proceed cautiously with respect to the requirements of the FLSA.(See article in the November 1999 issue of the Tribal Advocate for a detailed discussion regarding the application of the FLSA to tribal employers and tribally-owned businesses.)

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