Northwest Computer Supply v. Acting Deputy to the Assistant Secretary - Indian Affairs (Operations), 16 IBIA 125 (1988)

Appeal from a decision of the Acting Deputy to the Assistant Secretary--Indian Affairs (Operations) cancelling the certification of Northwest Computer Supply as an eligible enterprise under the Buy Indian Act.

Affirmed.

1. Indians: Economic Enterprises: Buy Indian Act--Indians: Federal Recognition of Indian Tribes: Generally--Indians: Indian Preference: Buy Indian Act

For purposes of eligibility under the Buy Indian Act, 25 U.S.C. § 47 (1982), an "Indian" must be a member of a Federally recognized Indian tribe or otherwise considered to be an Indian by a Federally recognized Indian tribe with which affiliation is claimed.

Appellant Northwest Computer Supply, through its owner and president, Ethel L. Scheet, seeks review of an August 10, 1987, decision of the Acting Deputy to the Assistant Secretary--Indian Affairs (Operations) (appellee) cancelling appellant's certification as an eligible enterprise under the Buy Indian Act, 25 U.S.C. § 47 (1982), 1/ on the grounds that Scheet had not shown she was a member of a Federally recognized Indian tribe. For the reasons discussed below, the Board affirms that decision.

_______________________ 1/ All further references to the United States Code are to the 1982 edition.

IBIA 88-2-A

Background

The Buy Indian Act provides: "So far as may be practicable Indian labor shall be employed, and purchases of the products of Indian industry may be made in open market in the discretion of the Secretary of the Interior."

The Bureau of Indian Affairs (BIA) policy concerning procurement pursuant to the Buy Indian Act, in effect at the time of appellee's decision, is set out at 20 BIAM 2.1 (1979). In relevant part, it provides:

It is the Bureau's policy that all purchases or contracts be made or entered into with qualified Indian contractors to the maximum extent practicable and to contact non-Indian contractors only after it has been determined that there are no qualified Indian contractors within the normal competitive area that can fill and are interested in filling the procurement requirement.

Under this policy, the following words or phrases have the meaning shown.

1. Indian. Indian means a person who is a member of an Indian tribe or otherwise considered to be an Indian by the tribe with which affiliation is claimed.

2. Indian Contractor. Indian contractor is a legal entity which is 100% Indian owned and controlled. [2/]

On October 23, 1986, Scheet submitted to the Contracting Officer, Billings Area Office, BIA (Contracting Officer), an application for certification of appellant as an eligible enterprise under the Buy Indian Act. The application showed that Scheet was the sole owner of appellant and that she claimed tribal affiliation with the Little Shell Tribe of Chippewa Indians of Montana. 3/ As proof that she was Indian, Scheet submitted a certification from the Tribal Operations Officer, Turtle Mountain Agency, BIA, dated October 15, 1986, stating that she was affiliated with the "Landless Chippewa Indians of Montana" and the Turtle Mountain Band of Chippewa Indians, and that she possessed 9/32 degree of Indian blood of the two groups. On November 25, 1986, the Contracting Officer notified Scheet ___________________________ 2/ On Jan. 20, 1988, BIA published a notice of change in policy, revising the definition of "Indian contractor" to require only 51% Indian ownership. The notice reiterates the basic policy statement and the definition of "Indian" found in 20 BIAM 2.1. It further states:

"[T]he Bureau believes it is in the best interest of the public to have an opportunity to comment on and codify this policy in the Code of Federal Regulations. Accordingly, the public will have an opportunity to comment on proposed regulations for the Buy Indian Act program which are being prepared for publication." 53 FR 1522 (Jan. 20, 1988).

3/ The Little Shell Tribe of Chippewa Indians of Montana has submitted a petition for Federal acknowledgment pursuant to 25 CFR Part 83.

IBIA 88-2-A

that appellant qualified as an Indian economic enterprise and was therefore eligible to contract

under the Buy Indian Act.

Between February and May, 1987, Scheet unsuccessfully sought to be awarded contracts under the Buy Indian Act. On June 16, 1987, the Contracting Officer notified her that appellant's certification under the Buy Indian Act had been cancelled because Scheet had not provided documentation that she was an enrolled member of a Federally recognized Indian tribe.

By letter of July 10, 1987, appellant filed an appeal with the BIA Central Office in Washington. In a decision dated August 10, 1987, appellee affirmed the Contracting Officer's decision. Appellee stated:

25 U.S.C. § 13 (the Snyder Act, November 2, 1921) [4/] is the basic authority under which the Secretary of the Interior provides services to Federally recognized Indians and Indian entities. Although our policy on the Buy Indian Act does not specifically address Federally recognized tribes, we are bound by the Snyder Act in the method by which we obligate monies appropriated by Congress. Therefore, due to the fact that your Company is not owned by a member of a Federally recognized Indian tribe, we are unable to certify you as eligible to receive a contract awarded under the authority of the Buy Indian Act.

Appellant's notice of appeal to the Board was received by the Board on October 14, 1987. Only appellee filed a brief on appeal.

Contentions of the Parties

In its notice of appeal, appellant states that the only issue it is appealing...