Tribes Take Note! Department of Interior is making moves (and they can benefit you!)

By Anna Hohag | anna.hohag@procopio.com

In the recent span of 30 days, the Department of Interior and the Biden Administration announced no less than 7 key policy proposals that can greatly benefit you to provide your Tribe’s input. The following is a brief overview of these moves, with links to the sources. Each of these items will be addressed in more detail here in the future, but for now, you have been informed!

1.                  Joint Secretarial Order 3403

Recognizing that the Interior and USDA will benefit by incorporating Tribal expertise and Indigenous knowledge into Federal land and resources management, the departments are urging Tribes to submit Tribal proposals and ideas on how to best manage the millions of acres of Federal lands and water that were previously owned and managed by Indian Tribes. Last November, the Interior and USDA issued Order No. 3403 a “Joint Secretarial Order on Fulfilling the Trust Responsibility to Indian Tribes in the Stewardship of Federal Lands and Waters.”

2.                  Tribal Treaty Database

In a collaboration between the Interior and Oklahoma State University, USDA is developing and regularly updating a tribal treaty rights database to better understand and fulfill treaty rights obligations. During the 2021 White House Tribal Nations Summit, President Biden announced that the Interior and 16 other federal agencies formally committed to protecting Tribal treaty rights in agency policymaking and regulatory processes, formalized in the “Memorandum of Understanding regarding Interagency Coordination and Collaboration for the Protection of Tribal Treaty Rights and Reserved Rights.” Tribes whose treaties contain federal promises that have gone unperformed are encouraged to contact the USDA Tribal Relations team.

3.                  Buy Indian Act Regulations

The BIA announced new regulations to improve implementation of the Buy Indian Act to promote economic development opportunities in Indian Country. This Act allows the Interior to set aside certain opportunities for Indian-owned and controlled businesses, and seeks to: eliminate barriers to Indian Economic Enterprises (IEEs) from competing on certain construction contracts, expand IEEs’ ability to subcontract construction work consistent with other socio-economic set-aside programs, and give greater preference to IEEs when a deviation from the Buy Indian Act is necessary. These regulations also align with the Indian Health Service providing consistency and streamlining the procurement procedures for Native-owned businesses.

4.                  Indian Affairs Appeals Regulations

The Interior also announced the forthcoming release of a proposed rule governing Appeals from Administrative Actions at 25 C.F.R. Part 2, to include when and how the Assistant Secretary – Indian Affairs (AS-IA) will take jurisdiction over an Interior Board of Indian Affairs (IBIA) action. Tribes should keep an eye out for these forthcoming updates.

5.                  Fee to Trust Regulations & Gaming Compact Regulations

On March 28, 2022 the AS-IA announced Tribal consultation sessions regarding draft amendments to the regulations governing both the fee-to-trust process and Class III gaming compacts. The proposed changes to the fee-to-trust regulations at 25 C.F.R. Part 151 are intended to clarify the Secretary’s authority to take land into trust for Tribes, reduce processing time, and establish clear decisions-making criteria, with a special focus on taking land into trust for conservation purposes. The proposed changes would build on Secretary’s Order 3400 re-delegating the authority to review and approve applications to place land into trust to the BIA regional directors. The proposed changes to the Class III gaming compact regulations at 25 C.F.R. Part 293 are intended to provide clarity on the criteria the Interior will consider when deciding whether to approve compacts by clarifying boundaries of allowable topics of negotiation, better defining key terms, and clearly outlining when the Interior must review a gaming compact.

The Department will conduct four virtual consultation sessions between May 9 and May 23 and will accept oral and written comments. Written comments should be submitted to consultation@bia.gov by 11:59 pm ET on Thursday, June 30, 2022.

6.                  Tribal Water Codes

On April 7, 2022 Secretary Haaland rescinded a nearly 50-year old moratorium on the federal approval of Tribal water codes, restoring Tribal authority to adopt water laws to regulate water use on their own lands. Tribes should keep an eye out for more information on upcoming Tribal consultations on this important issue!

7.                  Tribal Energy Development Organizations

Finally, the Interior announced its approval of the first ever Tribal Energy Development Organization (TEDO) issued to the Red Lake Band of Chippewa Indians. This makes the Tribe the first to receive such approval and will support the Tribe’s effort to develop renewable energy resources. TEDOs provide an avenue to reclaim Tribal authority by allowing Tribes to enter into and manage energy-related leases, rights-of-way and business agreements without obtaining the burdensome BIA approval for each individual lease, right-of-way, or agreement.

We encourage any Tribes, Tribal Organizations, or Native-Owned Businesses wishing to learn more about these potential opportunities to reach out to one of the many experienced attorneys in the Native American Practice Group here at Procopio. We look forward to working with you and all the potential growth for Tribes under this Indigenous-led team at the Interior and beyond!

Anna Hohag advises Tribal governments and Tribal entities on a wide variety of issues including Native American governance, intergovernmental agreements, natural and cultural resources, environmental and land use issues, housing, education, general welfare, economic development and gaming matters in Indian country. Her practice primarily focuses on Native American governments and tribal land issues, including land and natural resource planning, board governance, and tribal law and policy development.

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.

3. The IEE must manage the contract.

4. The Native person or tribal government must receive majority of the earnings from the contract.

5. 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.