PilieroMazza’s Nichole Atallah, a partner in the Firm’s Labor & Employment Group, is featured in the article below “Financial Capital, Human Capital Will Be at a Premium in Indian Country in 2023,” originally published in the Summer 2023 edition of NC Magazine. Nichole is joined by Karla Bylund, owner of Soaring Bird Solutions.
Attending RES2023? Come visit Nichole and her partner Sarah Nash at Exhibit Booth 702, where they’ll be available to address your most pressing legal concerns around labor and employment laws.
Economic development is surging in Indian Country, with more and more tribes diversifying to create pathways to prosperity and independence. While business in itself is a challenging endeavor (20 percent of small businesses fail within a year, and 70 percent within five years), the unique challenges facing Indian Country, such as with persistent poverty and systemic barriers, make the road even more challenging for tribal enterprises and Native entrepreneurs.
Securing capital via a Native community development financial institution (CDFI), federal grant dollars, or investors is just the first step on the journey to profitability for Native entrepreneurs, according to employment and labor attorney Nicole Atallah.
“You need access to capital, but you also need to be able to keep the capital,” she said. “You need to grow your business, and that means you need to make sure your money is going where you want to go.”
Atallah is a partner at the Washington, D.C. law firm PilieroMazza, which has been involved with The National Center for American Indian Enterprise Development and served tribal governments and businesses for more than 30 years.
“I am very passionate about The National Center’s mission, and it is a nice synergy between what we do as lawyers and the business and advice and counsel we are able to provide Indian Country,” she said.
For new businesses — Native and non-Native alike — unanticipated regulatory hoops can eat up a lot of cash flow while creating an environment where they’re constantly reacting instead of acting.
“We live in a world of regulations and rules and taxation and fees,” Atallah said. “The best thing to do is really use the business resources available for free. There are a lot of information sources out there, and you need to dedicate time to gaining knowledge, so you don’t end up spending money on fees because you weren’t aware of something.”
For many on-reservation Native businesses, access to markets is a significant issue, as they face the challenge of starting a business to drive economic development in a community that may not have the means to support and sustain it.
A 2020 survey of Native-owned businesses by the Center for Indian Country Development in partnership with The National Center found that while there was no perceived difference in the cost of operating a business off-reservation or on-reservation or off-reservation, businesses on the reservation produced lower sales overall.
Atallah suggests that Native entrepreneurs and tribal businesses leverage opportunities to reach customers, both in and out of their communities — a feat that is becoming more and more possible, as the Federal Tribal Broadband Connectivity Program has deployed more than $1 billion into Indian Country to bridge the digital divide.
“We live in a world where your customer doesn’t have to be your next-door neighbor,” she said. “But you can still bring money into your community.”
Politics and Preference
Karla Bylund (Potawatomi) is a human resources specialist and owner of Soaring Bird Solutions, a firm in the Las Vegas area that helps tribal enterprises and small businesses with HR support and strategy.
She first came into contact with The National Center when she worked for her father’s Native owned business in the ’90s. She is a regular attendee and vendor at its annual Reservation Economic Summit (RES) conference, and she credits The National Center with helping her business thrive during the COVID pandemic.
“When COVID hit, my business dropped by 75 percent,” Bylund expressed. “The National Center did a spotlight on my business, and then business just boomed.”
Bylund has worked with tribes on large-scale tribal businesses, such as the Casino Del Sol in Tucson, Arizona and the Quinault Beach Resort and Casino in Ocean Shores, Washington; smaller businesses; and government agencies, including the Cheyenne Arapaho Housing Authority in Clinton, Oklahoma.
She says one of the biggest challenges she sees tribes face is balancing tribal politics with the needs of running a successful business.
“Sometimes, those tribal politics can interfere with the success of a business,” Bylund said. “What I often advise tribal councils and tribal boards is [that] you need to separate the tribal politics from the business, while at the same time you need to maintain your culture with your tribal preferences, your codes, and policies that are outlined in your constitution.”
Strong constitutions and ordinances are a foundation on which tribes can build employment codes, policies, and procedures. With those documented measures in place, tribal enterprises can execute long-term planning and execution toward profitability, uninterrupted by changes in government and the winds of politics.
“For instance, if you have an HR director who has [the] tribal council telling them to do something that is contradictory to the policies, they can just refer to the policy,” Bylund explained. “That is how you create balance.”
Within tribal employment codes, Bylund recommends that tribes reduce friction in the organization by spelling out exactly what its rules are for tribal preference, and who it applies to and in what circumstances.
“Tribal preference is truly a unique issue tribes face, as all other businesses follow Title VII [of the Civil Rights Act of 1964],” she said. “Tribal preference makes absolute sense — you do want to give members those opportunities. That’s one reason why tribes start businesses in the first place, she added.
Businesses in Indian Country also grapple with workforce development, as difficulty finding workers with the right skills can lead to struggles with sustainability and growth, while leaving tribal members financially stagnant.
According to a 2017 report by the Center for Indian Country Development, Native Americans are over-represented in entry-level, minimum-wage positions. Given the problems of geographic isolation, persistent poverty, lack of access to education, and systemic racism, Bylund suggests that tribal enterprises implement workforce development into their business models, ensuring that employees can expand their own economic prospects while improving their skills to match the needs of the firm.
There are several tribes that are putting substantial funding behind workforce development that others can look to. The Mississippi Band of Choctaw is building it into the workday to eliminate any challenges employees may have to getting training. The Muckleshoot Tribe in Washington state has built its program with the goal of elevating tribal members to executive positions in its enterprises, and has held annual conferences to share insights with other tribes.
“Providing opportunities for job shadowing, mentoring, tuition reimbursement, or other incentives is really critical,” Bylund said. “Creating those opportunities for tribal members to move up so they can keep them there, instead of losing them to go to another organization to get experience.”
She also recommends utilizing programs and networks designed to elevate tribal businesses and Native entrepreneurs in Indian Country, such as the RES conference.
“They open with a prayer, they bring traditional speakers — there is a real respect for the uniqueness of Indian Country, and they are not trying to force Western thought into Indian Country,” she said. “They are thinking about what are the challenges Indian Country is facing, and how do we overcome them?”
