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IN THIS ISSUE
Pressure on ANC's 8(a) Program
BIA Host Tribal Consultation on Carcieri
Law & Order Act of 2009
Health Care Reform and Impact on Indian Health Care
 
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WASHINGTON UPDATE
Shadow President Obama 
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NCAI June 2009 Niagara Falls
 
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PRESSURE ON ANCs 8(a) PROGRAM
 
On July 16, 2009 the Senate Ad Hoc Subcommittee on Contracting Oversight, of the Committee on Homeland Security & Government Affairs, Chaired by Senator Claire McCaskill (D-Mo) held a hearing to review "preference given Alaska native Corporations in federal procurement ...that has become a vehicle for avoiding competition and passing through to large, non-native contractors.." as  announced in the notice of the hearing.  In 2006, a GAO report was released, that called the ANC provisions an "open checkbook".  The Hearing was called to "examine new findings from federal auditors and explore potential abuses in the award, management, and oversight of these contract vehicles".
 
Present for the entire two hour hearing, were both Alaskan Senators, Murkowski, and Begich, who defended the ANCs and the need for the scholarships and other funding provided by the 8(a) government contracting program.  Senators, Akaka (D-Hi), and Tester (D-MT), also appeared and spoke on behalf of the ANCs and the program.  Unfortunately, both the Chair, and the ranking member Senator Susan Collins (R-ME), were critical of the use of the ANC and Native American preference to undermine competition.  Senator Collins saw three issues Congress must consider: 1) Do the statutory advantages of the ANC program need to be re-examined within the context of a more competitive, fair, and transparent overall 8 (a) program? 2) Should the ANCs continue to receive an exemption from the cap on awards of sole-source contracts to 8(a) program participants- a cap that for most 8(a) participants stands at $3.5 million for non-manufacturing contracts and $5.5 million for manufacturing awards? 3) Should ANC's continue to be exempt from the limitation on subsidiaries applicable to other 8(a) participants, which permits their indefinite participation in the program?
 
Despite well informed testimony by NCAI, AFN and NACA (Native American Contractors Association) defending the preference for ANCs and the need for developing business and the monies the 8(a) program has brought to Native Alaskan communities, Senator McCaskill, was not persuaded, that the current program promoted the interest of the federal government and controlled costs.  In her closing statement she framed the issue suggesting that the Inspector General's report had raised serious questions about whether certain ANC 8(a) corporations had out grown the program and stifled competition to the point that the Federal Government was not getting the most cost effective services.  She wants reforms  that limit the ability of ANCs to use their preference for 8(a) corporations that grow to a certain size.  
 
McCaskill recently released legislative amendments to the 8(a) program that would; 1)
Eliminate entirely the Native sole source preferences for DOD contracts and replace it with a set-aside program only for "economically disadvantaged Indian Tribes" for 8(a) awards above the competitive thresholds ($3.5 million or $5.5 million) at DOD;  2) Grant DOD contracting officers discretion to choose between a regular 8(a) set-aside and a Native 8(a) Set-Aside. future legislation or rulemaking.  Last word was that McCaskill has withdrawn the amendments and has agreed to work with interested parties on resolving the committee's concerns. 

  
See Senate Committee's web site for copies of testimony and transcript of hearing. 
 
Click here
                                                             
 

        Larry Echo Hawk 

 Assistent Sec. of Indian Affairs, Larry Echo Hawk
 
BIA HOST TRIBAL CONSULTATIONS ON IMPACT OF CARCIERI DECISION
 
The BIA has held three Tribal Leader Consultations on the Supreme Court decision, Carcieri v. Salaza, 129 S. Ct. 1058 (February 29, 2009), the last one held on July 8, 2009 in the Washington, DC area.  The government panel included, the new Assistant Secretary of Indian Affairs, Larry Echo Hawk, the new Solicitor of the Department of the Interior, Hilary Tompkins, George Skibine, the Acting Principal Deputy Assistant Secretary, Jerry Gidner, the Director of the BIA, Vicki Forrest, the Deputy Director of Trust Services, Darren Pete, the Congressional Liaison, for BIA, and Paul Hart, the Acting Director of the Office of Indian Gaming.
 
The panel presented questions to the Tribal leaders with questions on how to address the impact on land into trust applications of the court's opinion that interpreted the phrase "Indian tribe now under Federal jurisdiction" to mean only those tribes under the Federal jurisdiction when the IRA was passed in 1934.  Assistant Secretary Echo Hawk express that the Department of the Interior is "committed to supporting the ability of all federally recognized tribes to have lands acquired in trust" and asked for the views of the tribes on the issue.  The government panel submitted two possible options, a legislative or regulatory fix.  They asked if the Tribes preferred a retroactive or prospective fix, (or both) to confirm the right of all federally recognized tribes to protect already acquired land and/or to acquire land in trust.
 
At the Tribal consultation in the Washington Area, there was a general agreement to address the impact of the Carcieri through a legislation that provided both a retroactive and prospective fix to the land in trust issues.  At the end Assistant Secretary Echo Hawk, reiterated the government's intention to support fix to a decision that might impact land in trust applications, but warned the participants, that the strategy on a legislative fix needs to be carefully consider, and that it would take time to consider the options and plan an approach.  He was concerned that proposed amendments to the IRA, might have risks, therefore the Department would proceed cautiously and continue to work with Congressional Committees and Tribal representatives on appropriate language.  
                                 
 
Senate Indian Affairs Committee 
 
LAW & ORDER ACT OF 2009- DEPARTMENT OF JUSTICE VOWS TO ADDRESS DORGAN'S CONCERNS
 
On June 25, 2009, Chairman, Bryon Dorgan (D-ND), held a hearing of the Senate Indian Affairs Committee on his revised Tribal Law & Order Act (S. 797).  At the hearing he confronted the witnesses, who included the recently appointed, Associate Attorney General, Tom Perrelli, and the Assistant Secretary of Indian Affairs, Larry Echo Hawk  with his growing concern of the inadequacies of the BIA to address the criminal justice needs in Indian Country.  He raised many issues, including the deplorable conditions of many of the adult detention facilities, the need for youth detention, the staggering crime rates, and lack of adequate programs and access to funding.   Chairman Dorgan said he knows that there are future plans to address some of the problems, but he was interested in what could be done now.  He specifically asked Mr. Perrelli to get back to the Committee with the reason the monies that had been appropriated for at least 50 additional FBI agents in Indian Country had resulted in only 14 new positions.  He questioned the overall commitment of the Department of the Interior to intervene in the growing crime rates, and do what was necessary to address the known public safety problems.
 
In response Associate Attorney General Tom Perrelli vowed to review existing programs and to report back to the committee.  He stressed his commitment to focus DOJ attention on the escalating public safety problems in Indian Country and that he considered public safety in Indian Country one of his top priorities.  He emphasized the need for further support for Tribal Courts, probation and youth programs.  In his formal written presentation he provided details of the various existing grant programs and some that were recently created through the stimulus funding.  Panelist were questioned by the other members of the committee including Senator Tester who was particularly concerned about technical problems in the online grant application process that worked to the disadvantage of Tribal communities in remote rural areas.
 
To view the hearing Web cast or read the transcripts:
 
Click here
  

HEALTH CARE REFORM AND CONSEQUENCES FOR THE INDIAN HEALTH CARE SYSTEM
           
Long time supporter of Indian Health Care, Congressman Nick Rahall, Chairman of the House Natural Resources Committee announced he will be submitting amendments to America's Affordable Health Care Act of 2009, that would protect Indian Health Care of Choice.  Unfortunately the current legislation does not preserve the unique Indian Health Care system, and may inadvertently cause harm to many programs. 
 
To review a summary of Congressman Rahall's amendment:
 
Click here
   
 
Thank you for reading our July 2009 newsletter.  This spring and early summer has been an interesting time here in  Washington for those of us working with Tribal communities and interest, because of the new administration and the need  to complete stimulus  funding applications and follow the variety of issues that pertain to Native issues and economic recovery. Please let us know any areas of interest you would like us to add in future issues. 
 
 
We look forward to hearing from you,
 
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 The Native Law & Policy Journal (NLPJ) is published by Walker Law LLC, a law firm that provides law and government representation services to those connected to Native American issues, including, Tribal entities, commercial businesses, government contractors, non-profit organizations and those individuals who are a part or otherwise  connected to Native American communities.  The NLPJ's mission is to inform Native Americans and those interested in the development and preservation of the culture about legislative and regulatory issues that could impact their interests.   Elizabeth T. Walker,  edits the Newsletter.   However,  this publication is for informational purposes only and does not constitute legal advice. Transmission of the information is not intended to create, an attorney-client relationship between the sender and receiver.