Piliero Mazza &
Pargament, PLLC


Vol. I, Issue 8
September 1999


Addressing Tribal and Alaska Native Corporation
Legal and Business Issues


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A R T I C L E S


FEDERAL
New Land Acquisition
Regulations Proposed




BUSINESS
Tribal Businesses
Should Ensure
Copyright Protection
in Computer Technology




SMALL BUSINESS
The SBA's 8(a) Program
and Alaska Native
Corporations




INTERVIEW
Michael Anderson,
Deputy Assistant Secretary
for Indian Affairs
Department of
the Interior




ASK THE ADVOCATE
California Supreme Court Overturns Proposition 5





H O M E


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




FEDERAL

New Land Acquisition Regulations Proposed

The Department of the Interior has issued proposed regulations amending the current land acquisition application procedures. These new regulations include many of the provisions in the current regulations, however, they significantly increase the burden on tribes seeking to have "off-reservation" land placed into trust with the U.S. Government. The proposed regulations were published in the Federal Register on April 12, 1999. BIA officials informed the Tribal Advocate that the September 12, 1999 comment deadline date has been extended to October 12, 1999. Comments should be submitted to Mr. Terry Virden, Office of Trust Responsibilities, Bureau of Indian Affairs, 1849 C Street, N.W., MS-4513-MIB, Washington, D.C. 20240.

The first regulations governing the land acquisition process were published in 1980 and have not been amended since. The Department of the Interior asserts that the proposed amendments to these regulations were drafted with the intent to provide tribes and their non-Indian neighbors with a clearer understanding of the land acquisition process. However, although BIA disagrees, the proposed amendments, as written, appear to have more far-reaching and potentially negative effects on Tribes, especially with respect to off-reservation land. (See interview with Michael Anderson, Deputy Assistant Secretary of BIA for a more detailed discussion of BIA's position with respect to the proposed changes in the land acquisition regulations.)

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BUSINESS

Tribal Businesses Should Ensure Copyright
Protection in Computer Technology

More and more Indian tribes are seeking to expand their revenue base by establishing off- reservation businesses and venturing into the competitive marketplace. As such Indian-owned enterprises become more actively involved in selling products and services to the general public and to other third parties, it is increasingly important that they understand the laws that protect their proprietary interests.

In particular, it is important for Indian-owned businesses engaging in electronic commerce and other computer-related industries to understand copyright laws so that their Web sites, software programs and other works of authorship are adequately protected.

The Copyright Act, 17 U.S.C. § 102, provides that copyright protection exists in "original works of authorship fixed in any tangible medium . . . from which they can be perceived, reproduced, or otherwise communicated." Examples of "works of authorship" entitled to protection are literary works, musical works, sound recordings, and pictorial, graphic and sculptural works. Copyright protection also exists for computer programs that create new expressions of well-known routines.

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SMALL BUSINESS

The SBA's 8(a) Program and Alaska Native Corporations

THE SBA’S 8(A) PROGRAM AND ALASKA NATIVE CORPORATIONS

Many Alaska Native Corporations, Village and Regional Corporations (collectively referred to as "ANCs") and Tribes are participating in the Small Business Administration’s ("SBA") Section 8(a) Program ("the 8(a) program). However, many are missing out on the advantages this program has to offer. This article discusses briefly the benefits of the program and the eligibility criteria for ANCs.

The 8(a) program is a business development program designed to assist eligible firms by, among other things, providing the opportunity to obtain federal government contracts through other than full and open competition. ANC-owned and Tribally-owned 8(a) firms may, with some limitations, market and obtain sole-source contracts with various federal agencies so long as the firm is technically capable of performing the work at a fair market price. The agencies benefit from contracting with these firms because they are not required to utilize their often lengthy competitive procurement process. The ANCs and Tribes benefit through the possible creation of jobs for shareholders and tribal members and because any profits generated by the 8(a) firms may be used to develop tribal infrastructure or for distribution to shareholders or members.

The SBA’s 8(a) program is designed to assist businesses owned by socially and economically disadvantaged individuals. However, small businesses owned and controlled by ANCs are also eligible for participation in the 8(a) program provided they meet certain eligibility criteria. The socially disadvantaged criteria is satisfied through the SBA’s regulations which deem Indian tribes, including ANCs, to be socially disadvantaged. Thus, ANCs do not need to establish that they are socially disadvantaged. Moreover, ANCs need not establish that they are economically disadvantaged by virtue of the Alaska Native Claims Settlement Act which provides that a concern which is majority owned by an ANC shall be deemed to be an economically disadvantaged business.

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INTERVIEW

Tribal Advocate Speaks with Michael Anderson,
Deputy Assistant Secretary for Indian Affairs, Department of the Interior
Regarding the BIA's Stand on Pertinent Indian Issues


As the Deputy Assistant Secretary - Indian Affairs (DAS-IA) Mr. Anderson provides policy guidance to the Office of the Assistant Secretary - Indian Affairs and the Bureau of Indian Affairs.

He is a tribal member of the Muskogee Creek Nation.

Tribal Advocate (TA): What do you see as the major issues facing Tribes during the next century?

Mike Anderson (Anderson): The primary challenge for tribes over the next century is tribal capacity building—gaining control over their territories, natural resources and economic development, and that will be done through economic empowerment. As the President said at the meeting with the Oglala Nation at Pine Ridge, the Federal Government is there to give tribes the tools to meet those challenges, but not to dictate what those solutions are. Those solutions are best done at the local level. And so, basically, the role of the Bureau of Indian Affairs over the next one hundred years, as opposed to the last one hundred years, is to support self-determination, to end paternalism, and to support the tribes in their political and economic empowerment. So, I would say, those are the primary goals that we have for tribes over the next one hundred years.

TA: You speak of tribes gaining control over their territories and building tribal capacity through economic development. Along those lines, I’d like to discuss the proposed land acquisition regulations that were published in the Federal Register on April 12, 1999. Why was the comment deadline date extended to October 12, 1999?

Anderson: The initial due date for comments expired, I believe, July 12, 1999. However, as a result of consultations that Assistant Secretary Gover had with the Tribes in a number of regions, including Minneapolis and Albuquerque, Sacramento, and Phoenix, he agreed to extend them to October 12, 1999. I expect that October 12th will be the final date for receipt of comments. By this date, the Tribes have a fairly good understanding of the proposal, and have given excellent oral comments at the various consultation hearings and written comments.

TA: Do you expect to receive comments from non-tribal concerns?

Anderson: Yes, I expect we will be getting comments from local communities, state governments and affected citizens. Additionally, the Governor’s office of the State of South Dakota participated in one of the forums here in D.C., and I expect that we will probably receive comments from the National Governors’ Association.

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COURT WATCH

California Supreme Court Overturns Proposition 5

On August 23, 1999, the California Supreme Court dealt a serious blow to gaming on Indian reservations by overturning Proposition 5, the "Tribal Gaming and Economic Self-Sufficiency Act of 1998," which had been approved by 63% of California voters in November of 1998. See Employees International Union v. Davis, et al.. The court ruled that Proposition 5, which established a model tribal-state compact which authorized certain forms of "Class III" gaming on tribal reservations, was invalid because it conflicted with article IV, §19 of the California Constitution. That section specifically prohibits the establishment in California of casinos of the type found in Nevada and New Jersey.

Because of this constitutional prohibition on "Las Vegas" style gaming, California had long refused to negotiate tribal-state compacts with tribes seeking to conduct Class III gaming on their reservations. However, despite the state’s refusal to negotiate compacts with the tribes, a number of tribes nevertheless began conducting Class III-type gaming on their reservations.


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