On January 2, 2020, the Bureau of Indian Affairs (BIA) issued a proposed rule to create a new 25 Code of Federal Regulations (CFR) part 82 that would establish procedures for a non-federally recognized Alaska Native entity to be acknowledged as an Indian tribe by the federal government. This regulation is the first to establish a process for Alaska Native entities to be federally recognized as a tribe since the Alaska Amendment of the Indian Reorganization Act (IRA) was enacted in 1936. This proposed rule opens the door for the creation of more Alaska Native Corporations (ANCs) and tribal businesses, potentially adding opportunities for tribal businesses to increase assets through new business collaborations and acquisitions.

According to the IRA, Alaska natives not previously recognized as a tribe by the federal government can only be recognized by validating “a common bond of occupation, or association, or residence within a well-defined neighborhood, community or rural district.” This “common bond” standard differs from tribal recognition regulations in the conterminous United States because many Alaska Native entities lacked “reservations” as defined by the IRA. Had the IRA not defined “tribe” as residing on a reservation, many Alaska Native entities would have been federally recognized as tribes.

BIA’s proposed rule incorporates many of the requirements and procedures for federal acknowledgement already in place, but there are some notable changes:

  • A petitioner would no longer need to show descent from a “historical Indian Tribe” pursuant to 25 CFR part 83 (Part 83), but instead show descent from an Alaska IRA-eligible entity;
  • The start date for satisfying Part 83 would shift from 1900, which is presently used, to May 1, 1936, when the IRA was enacted; and
  • A petitioner must provide evidence of the existence of the Alaska IRA-eligible entity from 1936 onwards.

Once these petition requirements are met, the petitioner would then follow all of the criteria and procedures set forth in Part 83. Overall, these changes make petitioning for tribal federal recognition easier than ever before, since they lower evidentiary standards and establish specific criteria for acknowledgement by the federal government.

Many Alaska Native entities may want to consider the feasibility of the recordkeeping and evidentiary requirements of Part 83 and the length of time the petition process will take. While tribes that are currently federally recognized will not be affected by these new regulations, they may want to consider the possibilities this proposed rule opens up, specifically regarding new opportunities for potential small tribal business acquisitions that can necessitate novating existing government contracts and restructuring assets.

If you would like to know more about ANC and tribally owned small business government contracting, please join Peter Ford and Kathryn Hickey on March 4, 2020, in Las Vegas at the 2020 Reservation Economic Summit, where they will represent PilieroMazza at Booth 123 with Nichole Atallah and Matthew Feinberg.

Peter and Kathryn will also host a session titled “Federal Contracting Assets On the Move.” After attending, you will understand considerations for transferring federal contracts and associated assets, including data rights, internal reorganization, past performance considerations, and how to successfully novate contracts. PilieroMazza attorneys will give additional sessions on “Strategies, Tips and Tricks for Government Contract Compliance” and “The Reach of Tribal Preference and Equal Employment Opportunity Laws for Tribally Owned Entities.”

Peter Ford, the author of this Client Alert, is a Partner in the Firm’s Government Contracts Group. Kathryn Hickey is a Partner in the Firm’s Business & Corporate Law Group.

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