Potomac Law’s Native American practice lawyers provide comprehensive counsel to Tribes and Tribally-owned entities on issues ranging from federal and state regulatory claims and litigation matters to infrastructure and regulatory projects involving energy, telecommunications/ broadband and transportation. Members of our team have significant experience providing claims, requests for equitable adjustment (REAs) and litigation support for both Tribally-owned service contractors and Tribally-owned construction contractors. These projects span many U.S. states and involve issues of Tribal sovereign immunity and federal agency subject matter authority working with Tribes on a government-to-government basis. Some of the matters have involved establishing important precedent recognizing Tribal sovereignty, including the authority to serve all areas and residents within a Reservation. The firm's attorneys also have experience with documenting, negotiating and closing commercial loans and other financing arrangements between banks, financial institutions and lenders and the Native American tribes.
Our attorneys have represented Tribes and Tribally-owned carriers in obtaining federal Eligible Telecommunications Carrier status making them eligible for Federal Communications Commission (FCC) High Cost Fund support, including in reverse auctions awarding Connect America Fund and Rural Digital Opportunity Fund grants for broadband support, and obtaining licenses for exclusive access to wireless spectrum (such as 2.5 GHz licenses under the Rural Tribal Broadband Priority Window), at times on an emergency basis such as during the COVID pandemic.
We have represented and advised Tribally-owned clients in several FCC reverse auctions, winning grant awards of millions of dollars for broadband deployment in Tribal areas, often petitioning for waivers of deadlines for some of the more demanding requirements for participation such as audited financial reports and letters of credit. We also represented an Alaska Regional Tribe in winning a grant of nearly $50 Million for broadband deployment under the Tribal Broadband Connectivity Program in 2022.
Establishing Rights for Tribally-Owned Carriers to Serve All Reservation Areas
Our attorneys have represented a Tribally-owned wireless carrier beginning in 2009 as its regulatory counsel in both its ETC petition and its participation in the General Mobility Fund reverse auction (the first FCC reverse auction designed to provide support for mobile broadband infrastructure deployment). In a landmark decision by the full FCC, the client’s ETC petition designated it as an Eligible Telecommunications Carrier throughout its 400 square mile reservation in North Dakota and South Dakota. This was the first such ETC petition to be granted to a Tribally-owned wireless carrier, and despite opposition from the incumbent telephone company, it established important precedent regarding FCC jurisdiction to designate ETCs within Tribal areas. On a petition for reconsideration, the client won an FCC ruling that redefinition of the service areas of rural telephone companies subject to FCC jurisdiction is unnecessary, and no state commission consent is required before ETC designation takes effect.
Representing Tribal Bidders in FCC Reverse Auctions
During the past 10 years, our lawyers have represented Tribally-owned broadband providers in virtually all FCC-administered reverse auctions awarding High Cost Fund support for broadband deployment in unserved/underserved areas. In 2014-2015, we represented one of the only Tribally-owned carriers to win millions of dollars of funding in the General Mobility Fund auction to provide federal funding of 3G/4G wireless infrastructure in underserved areas. This provided funding for construction of another 11 wireless towers to complement a network of 18 existing wireless towers. We guided the process through the short form and long form application process, including applying for and obtaining a temporary FCC waiver for an extension of time to obtain and file the required letter of credit to obtain funding.
Between 2018 and 2022, we also represented several Tribally-owned broadband providers in several states in the FCC-administered Connect America Fund Phase II and Rural Digital Opportunity Fund reverse auctions. One of our clients has won more than $12 Million in broadband deployment support throughout its large reservation.
Tribal Broadband Connectivity Program
We advised Tribal clients seeking grant funding under the $2 Billion Tribal Broadband Connectivity Program funded by the Bipartisan Infrastructure Law under the Biden Administration, administered by NTIA and the U.S. Department of Commerce. In November, 2022, one of our clients, a regional Tribe, won a record $49,899,000 grant for broadband infrastructure deployment in Alaska.
General Legal Advice to Tribal Entities
In representing our Tribal clients, as sovereign Tribes or their wholly owned entities, we often provide counsel on issues relating to Tribal sovereignty and tax minimization, including the opportunity to utilize available federal tax incentives, such as energy and climate tax credits. This has involved considerations as to whether the business entity should be a Tribally chartered or a BIA federally chartered (Section 17 statutory) corporation. In so doing, we are often called upon to prepare articles of incorporation, Tribal charters, and corporate bylaws. We also review and negotiate commercial loan documents with financial institutions, and agreements with commercial vendors on behalf of our Tribal clients.
In addition, we provide advice on new rules related to the availability of federal energy and climate tax credits to tribal organizations that were included in the Inflation Reduction Act of 2022, such as the Direct Pay Option that provides refundable tax credits to qualified taxpayers. Tribal organizations that operate a trade or business may also be able to claim the Employee Retention Credit for 2020 and 2021 retroactively if qualified under the rules, and we are advising clients on issues related to proper qualification and IRS review of claims.
Government Contract and Construction Law support for Tribally owned entities
Our attorneys represented a Native American contractor in a claim against its defaulted subcontractor’s surety for costs to correct and complete the subcontractor’s work on multiple federal projects. Additionally, we have provided training to multiple Native American businesses on issues related to construction, such as contract terms, change orders, and issues specifically related to Federal construction projects. We have drafted proposed change orders on various projects which were submitted to the Federal Government by several different Native American businesses. In addition, we have advised a Native American contractor on issues related to Joint Ventures and their impact on small/disadvantaged/native business set-asides. We routinely counsel Native American and Alaska Native contractors on multiple Requests for Equitable Adjustment to the Federal government, including the Department of Defense, the Department of the Navy, the National Aeronautics and Space Administration, and the United States Air Force. Our team represented an Alaska Native contractor in responding to a non-party witness subpoena in a trade secrets litigation. And we have participated in numerous protests on behalf of Alaskan Native contractors at the agency level, at the Government Accountability Office and at the U.S. Court of Federal Claims.
Tribal Energy Sovereignty
Our attorneys have advised Tribes on establishing Tribally-owned utilities, participation in the federal energy markets, and the acquisition of renewable energy generating assets to further Tribal energy sovereignty goals and to aid in Tribal economic development efforts. We have represented tribes in negotiations with local utilities over power supply and backup services, and in disputes with the local utility, as well as in filings before the Federal Energy Regulatory Commission (FERC).
Our attorneys have a deep understanding of the complex issues facing participants in one of the most highly regulated industries and have decades of experience representing all sectors of the electric power industry. We have advised Tribes on compliance with federal regulatory requirements with respect to the production and sale of electricity by Tribal utilities and have represented tribal entities in all aspects of project development, including contractual arrangements for various wholesale power marketing activities nationwide.
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