Buy Indian Act: What it Can Do for YOUR Native Owned Business

By: Stephanie Conduff | Attorney | stephanie.conduff@procopio.com
Theodore J. Griswold
| Partner | ted.griswold@procopio.com

Does your Native-owned business want to get into government contracting?

Does it have some government contracts, but want to expand your business?

The Buy Indian Act is an opportunity for your Native-owned business to generate revenue and establish quality past performance.

This month government has awarded contracts to a call center and a business selling arsenic-removal treatments for water supply and irrigation systems. Each one of these companies received 100% Buy Indian Small Business Set Aside in the last two months. The Senate Indian Affairs Committee is having a listening session today at 2:45 EST in 216 Hart Senate Office Building in Washington, D.C. to better understand what can be done to empower Native-owned businesses. This signals that changes to strengthen the Buy Indian Act could be on the horizon from Congress.

The Bureau of Indian Affairs (BIA) rules state pursuant to the Buy Indian Act they must give Indian businesses first preference in procurement matters by seeking contract offers from at least two Indian Economic Enterprises (IEE). The definition of an IEE is that it is a for-profit business that is at least 51% Native owned or 51% owned by a tribal government. When the BIA has the two offers on a contract they must select one of them that is an IEE, so long as it is of a “reasonable and fair market price.” And that’s a lot of discretion when you are debating what is reasonable to government procurement officers.

The BIA may deviate from the rules only in specific circumstances, such as when no offers are received from any IEEs or when only one offer is received and it is not reasonable.

I recommend that Native businesses seek opportunities often at Federal Business Opportunities. You can set up an alert that emails you directly when an opportunity arises that matches the goods or services you provide is available.

When looking for a Buy Indian Act opportunity, teaming is encouraged, because subcontracting is permitted. And remember that least 50 percent of the subcontracted work must go to IEEs and this empowers the Native business to learn from the partnering business and build its own capacity through increased opportunities.

To be eligible under the Buy Indian Act there are the 5 requirements:

  1. The business must be an Indian Economic Enterprise (IEE). The definition of IEE is that it is a for profit business that is at least 51% Native owned or 51% owned by a tribal government.
  2. The IEE owners must be citizens of a federally recognized tribal government or Alaska Native village.
  1. The IEE must manage the contract.
  1. The Native person or tribal government must receive majority of the earnings from the contract.
  1. The Native person or tribal government must control the daily business operations.

Here is the other great news – the scope extends beyond just the BIA. To increase the economic impact of the Buy Indian Act, the rules authorize that the Department of Interior may delegate the mandate to other bureaus in the department like the National Park Service and the Bureau of Land Management. What do you make that our national parks need? Maybe you sell t-shirts? Or provide office supplies? Or pesticides? Or fire land management?

Our government has immediate contracting needs and your Native businesses can fill them today – if you seize the opportunity!

Stephanie Conduff, a citizen of the Cherokee Nation, is a member of the firm’s Real Estate and Environmental Team and a member of the Native American Law practice group. Her practice emphasizes working with tribal governments, individual Native people, and companies doing business in Indian Country. She provides advice and strategic policy analysis on national regulatory issues and advises clients of the legal and policy issues. Stephanie’s work focuses on tribal sovereignty and self-governance, tribal lands, the federal trust responsibility and working with businesses in Indian Country.

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.

Trust Doesn’t Mean Never Having to Say You’re Sorry

By: Anna Hohag | Intern | anna.hohag@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com

The first step to healing is to identify the problem of the injury. This is a simple, common sense idea that has been around since, well, forever. Some countries around the world are doing just that when it comes to implementing Indigenous policies.

Every year on May 26, Australia observes National Sorry Day, a day dedicated to reconciliation efforts between the Government and the indigenous people in Australia. Sorry Day gives people the chance to come together and move together towards healing for the Stolen Generations, their families and communities. Stolen Generations refer to Indigenous Australians who were forcibly removed from their families and communities as recently as today. Events include reconciliation walks and street marches, flag raising events (the aboriginal flag is a national symbol of Sorry Day), and speeches from community leaders, including indigenous Australian elders and educators. The Government publicly acknowledges the injury, the first step towards healing.

Similarly, Canada is in the midst of a public reconciliation movement and implementing policies reflecting that movement. Truth and reconciliation commissions are tasked with discovering and revealing past wrongdoing by a government in the hope of resolving conflict left over from the past. First Nations are being acknowledged and recognized.

Reconciliation movements in the US? None so far…

The United States has a long, tragic history of failed Indian policies since the time of contact with the indigenous peoples of this continent. Generations after Indian removal and assimilation policies—like the widely infamous “Trail of Tears” and the forceful removal of Indian children from their families and communities to Indian boarding schools—the General Allotment Act, and Termination policies, the United States has never implemented a public reconciliation policy. This type of public admission of generations of wrongdoings to Native Americans would provide absolutely essential education and awareness to the rest of the U.S. population. This would not only debunk the myriad negative misconceptions of Native people and tribes today, but would positively affect the ways in which laws and policies are made by creating a collective conscience regarding the potential effects on Indian Country. It might even correct the myriad of misleading lessons in our education system.

While there is no formal reconciliation movement, there are alternative ways that the U.S. government, using law, has recognized injustices done to Tribes by past failed policies. One example, is through the Indian Reorganization Act (IRA) of 1934.

The IRA established among many other things, an avenue for restoring a small percentage of lost tribal lands. As a result of disastrous policies like as the General Allotment Act (Dawes Act of 1887), tribal lands across the country were surveyed and divided into individual allotments for individual Indians, with the remaining tribal lands – the “surplus land”—opened up for non-Indian settlement. The result was devastating to American Indians. The General Allotment Act caused Indian land holdings to plunge from 138 million acres in 1887 to 48 million acres by 1934 when allotment ended. That’s a loss of about 90 million acres of Indian land simply at the hands of one allotment policy. Not only did the enactment of the IRA put an end to allotment, but it also provided an avenue for restoring tribal lands through the Fee-to-Trust process. Having fee simple lands transferred into federal trust status is a powerful tool for making reservations whole and protecting Indian lands for future generations. When fee lands are returned to trust, Indian nations and people begin to eliminate the checkerboard pattern of trust and fee lands and regain control of lands on the reservation.

Still Tribal governments face opposition to fee to trust transfers, with municipalities claiming that they “lose” in the transaction, by admonished tax base. But is it a loss? No, it should be considered a return to Native hands. This type of more correct understanding may be another result if the federal Government took that simple step that other countries have taken – saying it is sorry.

Anna is a citizen of the Bishop Paiute Tribe and born and raised in the Eastern Sierras in Bishop, CA. She is entering her second year of law school at the James E. Rogers College of Law at The University of Arizona. She is a Board Member on the California Indian Law Association and the 2015-2016 National NALSA Area 1 Representative. Before attending law school she worked for the Pala Band of Mission Indians as the Tribal Liaison. Anna is a recipient of the 2015 Procopio Native American Internship.

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.

Los Angeles Department of Water and Power Approves Sale of City’s Share in Navajo Generating Station

By: Nikke Alex | Intern
Theodore J. Griswold | Partner | ted.griswold@procopio.com

Last week, the Los Angeles Department of Water and Power (LADWP) Commissioners approved a sale of the city’s share of the Navajo Generating Station to the Salt River Project. As a part of the agreement, LADWP pushed for an early retirement of one of the three 750 megawatt units at NGS. However, the early retirement of the unit was not an explicit condition of the sale.

The NGS, a 2,250 megawatt coal-fired power plant, is located on the Navajo Nation near Page, Arizona. For more than 50 years, NGS has supplied electricity to customers in California, Arizona and Nevada, yet many Navajo homes lack running water and electricity. NGS also supplies electricity to pump water through the Central Arizona Project (CAP) – the largest aqueduct system in the United States. The CAP supplies water to nine tribal communities in Arizona and New Mexico. The stake holders of NGS are now the U.S. Bureau of Reclamation, Salt River Project, Arizona Public Service Company, Nevada Power Company, and Tucson Electric Power Company.

In 2013, former Los Angeles mayor, Antonio Villaraigosa, announced Los Angeles will phase out electricity supplied by coal by 2019. Currently, LADWP purchases electricity from NGS in Arizona and Intermountain Power Project in Utah. LADWP owns a 21.2% share of NGS but does not own a share of the Intermountain Power Project.

Since NGS is located on tribal land, the site lease is contingent upon Navajo Nation Council approval. In 2013, the Navajo Council and Navajo President approved a lease extension through 2044 despite community concerns regarding air quality and public health. The issues surrounding NGS have been complex. Since municipalities and cities demand energy and the CAP requires electricity to supply water to Phoenix and Tucson, the Navajo Nation lease with NGS fuels the Navajo Nation with much needed predictable revenue, and NGS helps the U.S. federal government fulfil Indian water-rights settlements. As large cities are transitioning to cleaner energy sources, utility operational plans should include a strategy to transition to cleaner energy sources in order to end reliance on the coal-fired NGS that is powered by coal extracted from Navajo lands.

Nikke Alex is a citizen of the Navajo Nation and is entering her third year at the University New Mexico School of Law. Nikke was the former Executive Director of the Black Mesa Water Coalition, an environmental justice non-profit that worked to replace coal-fired power plants with renewable energy. Nikke is a recipient of the 2015 Procopio Native American Internship.

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.