January 28, 2016—Over the past several months, the Native American Contractors Association took on a monumental task and built a coalition of several Native American organizations, associations, sovereign tribal governments, and Native businesses to file an amicus curiae brief in the case of Rothe Development, Inc. v. U.S. Department of Defense on appeal at the D.C. Circuit. NACA’s brief asserts that Native American companies involved in the Small Business Administration’s 8(a) Business Development Program should not be found susceptible to the constitutional challenge brought forth by Rothe.
In the current appeal, Rothe seeks to eliminate the 8(a) Program entirely, disregarding the government-to-government relationship the U.S. has with Native Americans. “This relationship is in our Constitution,” noted Michael “Keawe” Anderson, NACA Executive Director. “Our brief demonstrates a united front in our support for a successful Program that Congress intended as a tool for economic development in our Native American communities.” Rothe raises unfounded legal arguments that would devastate Native American communities. NACA’s brief points to crucial flaws in Rothe’s allegations, giving a voice to Native American communities and businesses across the country.
History has clearly demonstrated that Indigenous communities in the United States have a special legal relationship with the federal government that “furthers the federal policy of Indian self-determination, the United States’ trust responsibility, and the promotion of economic self-sufficiency among Native American communities.” AFGE v. United States, 195 F. Supp. 2d 4, 18 (D.D.C. 2002), aff’d, 330 F.3d 513 (D.C. Cir. 2003). Numerous court decisions, treaties and the U.S. Constitution affirm this government-to-government relationship, not as a race based relationship, but as an economic and political relationship. The 8(a) program helps the U.S. government fulfill its responsibility to Native Americans, although statistics show there is still much work to be done.
The benefits Native Americans companies derive through participation in the 8(a) program flow to their own communities, which are often located in the most remote areas of the U.S. with historically underdeveloped economies. Access to government contracting has long been an accepted means to fulfill the United States’ fiduciary and trust obligations to Native Americans and the 8(a) program serves an important role in upholding these obligations.
NACA’s brief is filled with examples of how the 8(a) program upholds this obligation, illustrating that access to government contracting opportunities through the program is one of the brightest lights in the economic development of Native communities.
Christine Williams, a partner in the Anchorage office of Davis Wright Tremaine LLP, legally represented NACA in this effort. “The 8(a) program has been extremely important to Native American communities served by the organizations that have joined our brief,” said Ms. Williams. “Native Americans have endured centuries of discrimination, poverty, and neglect and the effects are still felt and seen today. Access to government contracting has long been an accepted means to fulfill the United States’ fiduciary and trust obligations to Native Americans.”
The amici curiae include:
Native American Contractors Association
Alaska Federation of Natives
Alaska Native Village Corporation Association
National Congress of American Indians
Sovereign Omaha Tribe of Nebraska
Sovereign Winnebago Tribe of Nebraska
Great Plains Tribal Chairman’s Association
ANCSA Regional Association
Native American Finance Officers Association
National Center for American Indian Enterprise Development
Cherokee Nation Businesses
U.S. Congressman Don Young (R-Alaska) has also joined the group of amici.
Formed in 2003, NACA is a 501(c) 6 trade association located in Washington, D.C. that to advocates on behalf of NACA Members – companies owned by Tribes, Alaska Native Corporations (ANCs), and Native Hawaiian Organizations (NHOs) – on issues relevant to federal contracting. NACA’s mission is to enrich self-determination through preservation and enhancement of government contracting participation based on the unique relationship between Native Americans and the federal government.