The SBA 8(a) program: business development leads to success for Alaskan-owned business; the legal aspects of 8(a) and its benefits to Native corporations.

• Author: DeVore, Jon M.

In a March 25, 2005, Washington Post article, Congressman Tom Davis (R-VA) reportedly stated, "The purpose of federal procurement is to make sure taxpayers are getting their dollars worth." Recently, some SBA 8(a) participants have undergone intense scrutiny that has received both national media attention and the attention of administrators and suppliers within the Federal Procurement System. In 2006, 213 Alaska small businesses were authorized to participate in the U.S. Small Business Administration Minority Enterprise Business Development Program, also known as the SBA 8(a) Program. Every single one of these 213 small businesses would agree with Congressman Davis' statement, and each one would assert that the SBA 8(a) Program ensures that American taxpayers are getting their dollars worth while creating economic opportunities for small businesses.

HISTORY OF ANCSA AND THE DEVELOPMENT OF ANCs

Alaska is unique in many ways, one of which is that Alaska Natives own most firms that participate in the SBA 8(a) Program in Alaska, generally through their Alaska Native Corporations or "ANCs." Alaska's history and the legal context of ANCs are essential in understanding why ANCs have certain privileges in the SBA 8(a) Program.

This history and context begins with the unique government-Indian relationship. This relationship exists due to three fundamental legal bases: (i) "Article I, sec. 8, clause 3 [of the United States Constitution] provides Congress with the power to 'regulate Commerce ... with the Indian Tribes.'" Morton v. Mancari, 417 U.S. 535, 552 (1974).; (ii) the federal government has a "permanent trust relationship" with and to Native Americans. See Report of the Task Force on Indian Economic Development of the U.S. Dept. of the Interior (July 1986) at page 240; (iii) the willful and abhorrent treatment of Indians over the centuries that have placed Native Americans in a state of coerced dependency and this relationship was forced upon them. See Cobell v. Babbitt, 91 E Supp. 2d 1, 7 (D.D.C. 7999), aff'd. 240 F.3d 1081.

For these reasons, the United States has a long history of special treatment of Alaska Natives and other Native Americans. For more than 200 years, Congress has enacted laws pertaining only to Indians and to persons dealing with Indians and has justified these laws as necessary to fulfill the country's special obligation to its Native people and their descendants. See AFGE vs United States, 195 F. Supp. 2d 4, 78-20 (D.C. 2002), aff'd 330 F3d 513 (D.C. Cir.), cert. denied, 540 U.S. 1088 (2003).

In 1971, Congress passed the Alaska Native Land Claims Settlement Act or ANCSA. ANCSA established ANCs in part to resolve historical land disputes and facilitate entrance into the Western...