Employee Laws: Reservations' Rights And Exemptions

Native American reservations are areas of land held and governed by a U.S. federal government-recognised Native American tribal nation. Due to their status as independent nations, Native American reservations are subject to tribal and federal laws, rather than state laws. However, this is not a straightforward issue, and the application of laws on reservations depends on several factors, including the type of law, the nature of the employer, and the citizenship of the individuals involved.

Tribal sovereignty

The United States Constitution mentions Native American tribes three times, with Article I, Section 8 stating that "Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes." This determined that Indian tribes were separate from federal or state governments, and that states did not have the power to regulate commerce with the tribes.

While tribal nations are considered sovereign, their sovereignty is dependent on and subordinate to the federal government, not the states. The federal government has a duty to protect the tribes, and Congress has ultimate authority regarding matters affecting the tribes.

On federal Indian reservations, federal and tribal laws apply to members of the tribe, unless Congress provides otherwise. Tribal courts have criminal jurisdiction over their members and, due to the 'Duro Fix', also over non-member Indians regarding crime on tribal land. However, tribal courts do not have jurisdiction over non-Indians, as determined by the Supreme Court in the 1978 case of Oliphant v. Suquamish Indian Tribe.

In terms of employment, the Equal Employment Opportunity Commission (EEOC) has jurisdiction over certain types of employment discrimination charges against federally recognized tribes, such as age discrimination charges under the ADEA and gender-based pay discrimination charges under the Equal Pay Act. The EEOC also has jurisdiction over private employers operating on reservations, depending on the size of the employer.

In summary, tribal sovereignty in the United States refers to the recognized authority of Indigenous tribes to govern themselves, with their sovereignty dependent on and subordinate to the federal government. On reservations, tribal and federal laws apply to members of the tribe, and tribal courts have criminal jurisdiction over tribal members and some non-member Indians. The EEOC also has jurisdiction over certain employment-related matters involving tribes and private employers on reservations.

Federal and state law

In general, tribal nations are considered "domestic dependent nations" with a degree of sovereignty that is not derived from race or ethnicity. Tribal authority on Indian land is organic and not granted by the state in which the land is located.

On federal Indian reservations, federal and tribal laws apply to members of the tribe, unless Congress provides otherwise. Tribal courts have jurisdiction over minor crimes committed by Indians on tribal lands, with sentences limited to one year in jail and a $5,000 fine. Most other crimes are handled by federal courts.

The Equal Employment Opportunity Commission (EEOC) has jurisdiction over two types of employment discrimination charges against federally recognised tribes: age discrimination charges under the ADEA by individuals aged 40 and older, and gender-based pay discrimination charges under the Equal Pay Act, unless these infringe on treaty rights or tribal sovereignty.

The EEOC does not have jurisdiction over charges of employment discrimination against federally recognised tribes if the alleged discrimination is based on race, national origin, sex, colour, religion, disability, or genetic information. However, the EEOC does have jurisdiction over private employers operating on reservations, depending on the size of the employer.

In the 1978 case of Oliphant v. Suquamish Indian Tribe, the Supreme Court ruled that tribes have no jurisdiction over non-Indians. Tribal courts maintain criminal jurisdiction over their members and, due to the Duro fix, over non-member Indians regarding crime on tribal land.

The Indian Civil Rights Act of 1968 limited tribal punishment to one year in jail and a $5,000 fine, but this was expanded by the Tribal Law and Order Act of 2010.

Treaties

The U.S. Constitution mentions Native American tribes three times, acknowledging their existence as separate from the federal government, the states, and foreign nations. The Fourteenth Amendment, Section 2, amends the apportionment of representatives in Article I, Section 2, which addresses the handling of "Indians not taxed" in the apportionment of seats in the House of Representatives.

Article I, Section 8, Clause 3 of the Constitution states that "Congress shall have the power to regulate Commerce with foreign nations, states, and with the Indian tribes", indicating that Congress has no more power over Indian nations than over individual states. The Marshall Trilogy, a set of three Supreme Court decisions in the early 19th century (Johnson v. McIntosh, 1823; Cherokee Nation v. Georgia, 1831; and Worcester v. Georgia, 1832), affirmed the legal and political standing of Indian nations.

The Indian Appropriations Act of 1871 ended the recognition of additional Native American tribes or independent nations and prohibited additional treaties. This marked a shift in the U.S. government's approach, as it now interacted with the tribes through statutes rather than treaties. Despite this, tribal sovereignty is still recognised and respected in the U.S., and the government strives for government-to-government relations with federally recognised tribes.

The concept of tribal sovereignty recognises the inherent authority of Indigenous tribes to govern themselves within the borders of the United States. Native American sovereignty and the Constitution are further clarified by three principles:

• Territorial sovereignty: Tribal authority on Indian land is organic and not granted by the states in which Indian lands are located.
• Plenary power doctrine: Congress has ultimate authority over matters affecting Indian tribes, and federal courts give greater deference to Congress on Indian matters.
• Trust relationship: The federal government has a "duty to protect" the tribes, implying the necessary legislative and executive authorities to carry out that duty.

While tribal sovereignty is respected, it is not absolute and can be limited by Congress. The Indian Civil Rights Act of 1968, for example, limited tribal punishment to a maximum of one year in jail and a $5,000 fine. This was later expanded by the Tribal Law and Order Act of 2010. Additionally, tribal nations do not have direct access to U.S. courts to bring cases against individual states, but they do enjoy immunity against many lawsuits unless a waiver is granted.

In summary, treaties played a crucial role in establishing tribal sovereignty and defining the relationship between Native American tribes and the U.S. government. While the creation of new treaties was prohibited after 1871, the U.S. government continues to recognise tribal sovereignty and strives for government-to-government relations with federally recognised tribes.

Tribal courts

Tribal sovereignty in the United States is the concept of the inherent authority of Indigenous tribes to govern themselves within the country's borders. The federal government recognises American Indian tribes as independent nations and has policy agreements with them via treaties.

In 1934, the Indian Reorganisation Act allowed Indian nations to select from a catalogue of constitutional documents that enumerated powers for tribes and tribal councils. This Act is widely considered to be the year when tribal authority, rather than US authority, gave the tribal courts legitimacy.

The 1968 Indian Civil Rights Act limited tribal punishment to one year in jail and a $5,000 fine, but this was expanded by the Tribal Law and Order Act of 2010. Tribal courts can now impose sentences of up to three years, provided proceedings are recorded and additional rights are extended to defendants.

Tribal nations do not enjoy direct access to US courts to bring cases against individual states, but as sovereign nations, they do enjoy immunity against many lawsuits unless a plaintiff is granted a waiver by the tribe or by congressional abrogation. The sovereignty extends to tribal enterprises and tribal casinos or gaming commissions.

While tribal nations possess inherent power over their internal affairs, and civil authority over non-members on fee-simple lands within its reservation, their criminal jurisdiction over non-Native persons who commit crimes in Indian Country is still being established.

Tribal employment rights

TEROs set conditions, establish authority, assign responsibility, and delineate penalties for violations. They also provide due process and ensure compliance with the TERO requirements. All covered employers operating a business within tribal/village jurisdiction are required to provide Indian and Native preference in employment, training, contracting, subcontracting, and in all other aspects of employment.

The Equal Employment Opportunity Commission (EEOC) has jurisdiction over two types of employment discrimination charges against federally recognized tribes: age discrimination charges under the ADEA by individuals age 40 and older, and gender-based pay discrimination charges under the Equal Pay Act, unless the application of these statutes would infringe on treaty rights or tribal sovereignty. The EEOC does not have jurisdiction over charges of employment discrimination against federally recognized tribes if the alleged discrimination is based on race, national origin, sex, colour, or religion (under Title VII), disability (under the ADA), or genetic information (under GINA).

However, the EEOC has jurisdiction to enforce these laws with respect to private employers operating on tribal lands. The EEOC also has jurisdiction over private employers operating on a reservation or that contract with a tribe, depending on the size of the employer.

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