Not every participant in the 8(a) Business Development Program is owned by socially and economically disadvantaged individuals. There are also a sizable number of entities that are owned by Native American tribes, Native Alaskan entities, Native Hawaiian organizations, either directly or through other entities (collectively, we’ll call them Tribally-Owned Entities). While the presumption of social disadvantage for 8(a) eligibility for members of certain ethnic and racial minorities was found unconstitutional (and is formally being removed), Tribally-Owned Entities go by a different set of rules that makes admission into the 8(a) Program easier. That does not, however, mean that these rules apply to any and all entities owned by a Native American or even where actions are supposedly taken on behalf of a Native American tribe. A company learned this the hard way in a recent SBA Office of Hearings and Appeals (OHA) decision that we’ll explore today.
It will be helpful to first note the rules for Tribally-Owned Entities with regards to the 8(a) Program. For these applicants, so long as they are at least 51% owned either by the tribe directly or through an entity that is wholly-owned by that tribe (or entity), the tribe controls the applicant concern, and the tribe itself has established that it, as a whole, is economically disadvantaged under 13 C.F.R. 124.109 (or 124.110 for Native Hawaiian entities), the Tribally-Owned Entity is generally eligible for the 8(a) Program. To be sure, there are some exceptions and quirks to the above, but, in general, that’s what is required .
In Miwok Constr. LLC, SBA No. BDPE-739 (June 1, 2026), the appellant, Miwok Construction, LLC (MC) had been certified in the 8(a) program since 2016 by virtue of apparently being a Tribally-Owned Entity owned by the Miwok Tribe. However, in 2025, SBA apparently came into the possession of information indicating that MC was not owned by the Miwok Tribe. On December 22, 2025, SBA suspended MC from the program, finding that MC was not tribally-owned and that a Sylvia Burley (Burley) (who had submitted the application for MC for the 8(a) Program) had not been authorized to do such by the tribe. MC appealed this decision, asserting that it is indeed tribally-owned, and that Burley was in fact authorized to act on behalf of the Miwok Tribe.
It will be helpful to travel back in time a bit here to understand where this all came from. Burley took the role of chairperson of the tribe back in either 1999 or 2000, and tried to implement a governing council for the tribe. In fact, throughout the 2000s, Burley and the Bureau of Indian Affairs went back and forth regarding the adoption of a tribal constitution under the Indian Reorganization Act. In 2013, a federal court concluded that the Miwok Tribe remained unorganized and lacked a duly constituted government. All the same, MC went forward with its plans to get into the 8(a) Program. MC was owned by Miwok Global, Inc., which was in turn owned by the Miwok Tribe, at least per Burley. MC got 8(a) certification in 2016.
In 2022, the BIA, however, concluded that the Miwok Tribe had never been actually organized, a conclusion upheld by the D.C. district court. The problem for MC, then, is that at the time it applied to the 8(a) Program, the Miwok Tribe was not organized and thus could not be bound by Burley. As SBA put it: “Because the Miwok Tribe was not previously organized in 2016, Ms. Burley was at best acting as a corporate promoter and could not bind the Miwok Tribe to any contracts. The law is the same for any promoter, and it would be up to the Tribe to adopt or ratify contracts signed by Ms. Burley.”
In 2024, the Miwok Tribe adopted a constitution that stated, in part, that all agreements supposedly made on behalf of the tribe prior to the constitution’s effective date were null and void. The BIA approved this constitution. In 2025, an attorney for the Miwok Tribe reached out to SBA to report that Miwok Global was not an entity of the tribe, and that the tribe had no intention of ratifying the acts of Burley. Without a tribal government at the time of the application, SBA conclude that “it is difficult to see how Ms. Burley could cause the Tribe to own at least 51% of the ownership of Miwok Global, Inc.”
As such, SBA concluded that Miwok Global, and thus MC, was not owned by the Miwok Tribe, and, indeed, that any prior agreements made on behalf of the tribe were null and void. In other words, MC was not owned by the tribe at the time of the appeal, was not owned by the tribe at the time of the 8(a) application, and was not owned by the tribe at any point between those two dates. Although MC also argued that because it was already nearly about to graduate from the 8(a) Program and thus the government had no interest in the matter, SBA rejected this argument as well, upholding the suspension of MC. MC probably came as close to meeting the requirements for the 8(a) tribal status that one could without meeting them. But the mere fact that it was made by a chairperson of a Native American tribe, presumably for the benefit of that tribe, does not mean it was tribally-owned. In this case, the simple fact that the tribe was at the time in question unorganized and thus couldn’t actually own anything was, to put it mildly, the problem. If you are involved in your tribe and are looking into this, be sure the tribe has the power to actually go this route first before doing anything further.
Questions about this post? Email us. Need legal assistance? Call us at 785-200-8919.
Looking for the latest government contracting legal news? Sign up for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook.