Piliero Mazza &
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Vol. 2, Issue 8
September 2000


Addressing Tribal and Alaska Native Corporation
Legal and Business Issues


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A R T I C L E S


FEDERAL
BIA Proposes Liberalized Indian Contract Regulations

Final Regulations Establish Procedure for Alaska Native Veterans Allotment Applications



COURT WATCH
Tribe's Tax on Utility Struck Down



GAMING
Indian Gaming Commission Proposes New Health and Safety Regulations



LEGISLATION
Ask the Advocate




H O M E


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




FEDERAL

BIA Proposes Liberalized Indian Contract Regulations

On July14, 2000, the Bureau of Indian Affairs ("BIA") published proposed regulations clarifying which Indian contracts must be approved by the Secretary of the Interior ("the Secretary"). These regulations were promulgated pursuant to the Indian Tribal Economic Development and Contract Encouragement Act ("the Act"), which was passed by Congress in March 2000.

In 1871, Congress passed legislation (commonly referred to as "Section 81") requiring that the Secretary of the Interior approve all contracts between any person and any Indian or Indian tribe "relative to their lands." Section 81 reflected the government's paternalistic view in the late-nineteenth century that Indians and tribes were incapable of protecting themselves from fraud in their financial affairs. Over time, however, confusion arose as to exactly which contracts were covered by Section 81. Therefore, the BIA began the practice of issuing "accommodation approvals" for contracts that did not actually require approval by the Secretary but where the relevant Indian tribe requested that the contracts be approved anyway to avoid casting doubt upon the legitimacy of the contract. Ultimately, Section 81 came to be seen as an outdated relic of a paternalistic era that is inconsistent with the current policy of tribal self-determination. To address these problems, Congress passed the Indian Tribal Economic Development and Contract Encouragement Act, which revises Section 81.




FEDERAL

Final Regulations Establish Procedure for Alaska Native Veterans Allotment Applications


In the March 2000 issue, the Tribal Advocate reported on proposed regulations establishing the procedure for Alaska Native veterans to submit allotment applications. On June 30, 2000 the Bureau of Land Management ("BLM") published its final rule implementing the new regulations which become effective on July 31, 2000. These regulations were promulgated in accordance with the Alaska Native Veterans Allotment Act, which was passed by Congress in 1998.

The new regulations explain how Alaska Native veterans may apply for an allotment and outline the requirements an applicant must meet to qualify for and receive an allotment. Under the new regulations, eligible Native American veterans may receive an allotment of one or two parcels of federal land in Alaska totaling no more than 160 acres. To qualify for an allotment, the applicant must meet certain criteria.

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COURT WATCH

Tribe's Tax on Utility Struck Down


The United States Court of Appeals for the Ninth Circuit ("Court") recently affirmed a lower court's decision finding that the Crow Tribe exceeded its jurisdiction in taxing a utility property located on congressionally-granted right-of-way. The case, Big Horn County Electric Cooperation Inc. v Adams Tax Commission of the Crow Tribe, et al., is significant because it overruled a prior court decision holding that a congressionally granted right-of-way is an easement in which a tribe retains a continuing property interest. Relying on a similar case decided by the Supreme Court in 1997, the Court held that a utility's right-of-way is the equivalent of non-Indian fee land subject to limits on the Tribe's regulatory jurisdiction.

The case arose out of a 3% tax the Crow Tribe assessed on the full market value of all utility property located on tribal or trust land within the exterior boundaries of the Crow reservation. Big Horn Electric Cooperative ("Big Horn") filed suit in federal district court to enjoin imposition of the tax and argued that the Tribe had exceeded its authority in assessing the tax. The District Court agreed.

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GAMING

Indian Gaming Commission Proposes New Health and Safety Regulations

On July 24th, the National Indian Gaming Commission ("Commission") published proposed regulations in the Federal Register implementing the provisions of the Indian Gaming Regulatory Act ("IGRA") requiring that tribal gaming facilities be constructed, maintained and operated in a manner that protects the environment, public health and safety. These regulations were proposed with the cooperation of a Tribal-Commission Advisory Committee that was formed in November 1999.

The proposed regulations seek to strike a balance between the inherent authority of tribal governments and the statutory authority of the Commission. Over the past several years, the Commission has encountered a number of potential threats to the environment, public health and safety at Indian gaming facilities. Therefore, the Commission believes that the most effective means of ensuring that adequate programs are implemented on an industry-wide basis is to promulgate a rule that would be applicable to all tribal gaming facilities that are subject to IGRA.

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LEGISLATION

Ask the Advocate

Q.
In the November 1999 issue, the Tribal Advocate reported on legislation that had been introduced in Congress aimed at the collection of lawfully-imposed state sales taxes on goods sold to non-members of tribes on tribal lands. What is the status of this legislation?

A. Last year, Representatives Frank Visclosky (D-IN) and Ernest Istook (R-OK) introduced H.R.1814, which would provide priority to tribes competing for federal grants that certify that retail establishments operating on trust lands within a tribe's jurisdiction are collecting and paying all qualified state retail taxes. In addition, the Visclosky/Istook bill would provide that if a tribe "consistently and willfully" fails either (i) to pay such taxes, (ii) to make equal payments in lieu of such taxes, or (iii) to make payments pursuant to a tribe-state compact, then the governor or attorney general of that state may request that the Assistant Secretary for Indian Affairs take out of trust status that land on which the retail establishment is located.

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