Employment Laws: Tribal Governments And Job Rights

The applicability of employment laws to tribal government jobs is a complex issue that depends on various factors, including the specific tribal nation, the location of the employment, and the type of employer. In the United States, there are over 500 federally recognized tribal nations, and each may have its own unique employment laws and policies. Additionally, federal, state, and tribal laws can interact in complex ways, leading to potential conflicts and exceptions.

Generally, tribal nations have the authority to regulate employment within their reservations, and this includes establishing their employment laws and policies. However, when it comes to the application of federal and state employment laws, the situation becomes more nuanced. While federal employment laws may apply to tribal employers in certain circumstances, state employment laws typically do not apply to employers operating solely within tribal nations.

The Equal Employment Opportunity Commission (EEOC) in the United States, for example, has jurisdiction over specific types of employment discrimination charges against federally recognized tribes, such as age discrimination and gender-based pay discrimination. On the other hand, state employment laws may conflict with tribal employment laws, and federal courts have considered the extent to which state laws infringe on tribal sovereignty when determining their applicability.

Furthermore, tribal nations often have their own employment preferences, such as prioritizing tribal members or spouses of tribal members in hiring, training, promotion, and lay-off decisions. These preferences can sometimes come into conflict with federal laws, such as Title VII of the Civil Rights Act, which prohibits discrimination in employment but allows private employers near reservations to give preferential treatment to Native Americans.

In conclusion, determining whether employment laws apply to tribal government jobs requires a detailed understanding of the specific tribal nation, the relevant federal and state laws, and the interactions between them. Each situation must be assessed on a case-by-case basis, considering the unique characteristics of the tribal nation and the applicable laws.

Tribal sovereignty and self-determination

The US federal government has recognised the sovereignty of Indigenous nations and affirmed their right to self-determination. This recognition stems from the understanding that the right of tribal self-government is not granted by federal or state governments but instead flows from the pre-existing sovereignty of Indigenous nations, which was limited but not eliminated by the formation of the United States.

The US Constitution, federal laws, and court decisions all play a role in shaping the relationship between the federal government and Indigenous nations. The Constitution, through the Commerce Clause and the Indian Commerce Clause, gives Congress the power to regulate commerce with Indigenous nations. Federal laws, such as the Indian Civil Rights Act, the Indian Child Protection and Family Violence Prevention Act, and the Indian Gaming Regulatory Act, directly impact Indigenous nations and their sovereignty. Court decisions, such as those related to the interpretation of treaties and the application of federal laws to Indigenous nations, also shape the legal landscape of tribal sovereignty.

Indigenous nations have their own laws, governments, and justice systems, which may differ from those of the federal government and state governments. They have the authority to make and enforce their own laws, manage their own resources, and determine their internal affairs. This includes the power to regulate economic activities, such as gaming and taxation, and to enter into agreements with other governments and entities.

The US government has a trust responsibility to Indigenous nations, which includes protecting their sovereignty, ensuring their right to self-determination, and providing support for their economic development and public safety. This trust responsibility is based on the unique history and relationship between the US government and Indigenous nations, as well as specific treaties, statutes, and court decisions.

The exercise of tribal sovereignty and self-determination can be complex, especially when it comes to criminal jurisdiction in Indigenous territories. The US Supreme Court's recent decision in Oklahoma v. Castro-Huerta has altered the understanding of state jurisdiction in Indigenous territories, introducing additional complexities for Indigenous nations and raising questions about public safety.

Overall, tribal sovereignty and self-determination are fundamental principles that shape the relationship between Indigenous nations and the US government. The US government has a responsibility to respect and support Indigenous nations' sovereignty and self-determination, while also working to address issues related to public safety and criminal jurisdiction in Indigenous territories.

Tribal Employment Rights Offices (TEROs)

TEROs are established to enforce tribally enacted Indian Preference law to ensure that Native Americans gain their rightful share of employment, training, contracting, subcontracting, and business opportunities on and near reservations and native villages. This is to address the high rates of poverty, unemployment, and underemployment that exist among native people living on reservations.

TEROs are generally applied to employers meeting certain criteria, including those employing tribal members, those with a contract with the tribal nation, those doing business with a tribal nation or on a reservation, those subject to a tribal nation's jurisdiction, or those with a certain number of employees.

TEROs always include a preference in employment, including hiring, training, promotion, layoffs, and reductions in force. The specific preference varies, with some focusing on members of a specific tribe, persons living on a reservation, Indians living on a reservation, "local" Indians, spouses, parents or children of Indians, or enrolled members of a federally recognized tribal nation.

TEROs may require employers to advise the enforcing entity of employment needs and then suggest or require a quota, known as a "compliance plan." Some tribal nations maintain "skill books," "hiring halls," or "indexes" of persons who are eligible for a preference in hiring and their qualifications. Ongoing reports to the enforcing entity are commonly required, along with a right to inspect the employer's records and operations.

TEROs may also require training in job skills for persons within the preferred class and cross-cultural training for non-Indians. They can also require a preference in contracting, with multiple tiers of preference for companies owned by a particular tribe, companies owned by Indians, and then all other companies.

TEROs may provide substantive employment requirements, such as prohibiting retaliation against "whistleblowers" and employees enforcing their rights under the TERO. Some TEROs address whether employment is "at-will" or restricted by law, and address other wage and hour regulations.

TEROs are enforced through an independent agency or commission or within a department or division of the executive branch, with the authority to conduct hearings and issue injunctions. All TEROs reviewed included a right of appeal, usually to the tribe's governing body or a tribal court. Monetary damages payable to an individual Indian and "equitable" remedies such as ordering employment, re-employment, or promotion are common remedies in TEROs.

TEROs are a true act of self-determination, with each tribe enacting a Tribal Employment Rights Ordinance based on its own needs and priorities. They are action-oriented, hands-on, result-oriented, and process-driven compliance programs with a well-developed administrative structure that utilizes a thorough enforcement process. TEROs apply synergistic partnering principles in relationships with employers to develop mutually beneficial relationships.

Tribal worker's compensation laws

The recognized Native American tribes have taken three approaches to workers' compensation laws:

• Creating their own workers' compensation commission and laws.
• Handling work-related injuries through their tort system.
• Electing to be subjected to the state workers' compensation system of the state where their reservation or business is located.

The non-recognized tribes are subject to the workers' compensation laws of the state where they are located.

When the tribe is the employer, or the private employer is a Native American, and the employees are Native Americans working within the geographical boundaries of their reservation, the tribe has total authority over how workers' compensation claims will be handled.

However, confusion arises when:

• The tribe operates a business outside the geographical boundaries of the reservation.
• The employer is the tribe or a Native American individual operating a private business within the reservation but employing non-Native Americans.
• The employer is a Native American with Native American employees working outside the reservation.

There are no absolute rules for these scenarios, and various states have approached the determination of where state sovereignty over workers' compensation ends and tribal sovereignty begins differently.

As each recognized Native American tribe can establish its own workers' compensation system, it is recommended that a non-Native American employer consults with a local attorney knowledgeable in both Native American tribal laws and state workers' compensation statutes before starting work on a reservation.

Tribal preference in employment

TEROs always include a preference in employment, including hiring, training, promotion, lay-offs and reductions in force. The specific preference varies, with alternatives including members of a specific tribe, persons living on a reservation, Indians living on a reservation, "local" Indians, spouses, parents or children of Indians, and enrolled members of a federally recognised tribal nation.

TEROs may also require an employer to advise the enforcing entity of employment needs, and then suggest or require a quota, known as a "compliance plan". Some tribal nations maintain "skill books", "hiring halls" or "indexes" of persons who are eligible for a preference in hiring and their qualifications.

TEROs may also require two types of training: job skills training for persons within the preferred class, and cross-cultural training for non-Indigenous people.

TEROs also regulate the relationship between Indian workers and unions, with right-to-work provisions being common.

Enforcement of TEROs is through an independent agency or commission, or within a department or division of the executive branch. All TEROs reviewed included a right of appeal, usually to the tribe's governing body or a tribal court.

In terms of federal law, the Indian Preference exception provided in Section 703(i) of Title VII of the Civil Rights Act of 1964 allows certain employers to exercise an employment preference for American Indians. This exception applies to businesses or enterprises on or near an Indian reservation that publicly announce an employment practice of giving preferential treatment to any individual because they are an Indian living on or near a reservation.

The U.S. 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 statutes would 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 has jurisdiction to enforce these laws with respect to private employers operating on tribal lands.

Tribal employment laws and federal law

Tribal Employment Rights Offices (TEROs) are units within tribal government structures that monitor and enforce tribal employment rights ordinances. They facilitate the employment of American Indians and Alaska Natives in businesses and industries operating within the geographical boundaries of reservations. TEROs also serve as referral and placement resources between employers and residents of reservations and negotiate Indian preference agreements.

TEROs generally define "employer" broadly. However, some TEROs focus on common employers in the area, such as construction, maintenance of interstates or other roads, mining, or energy projects. As a result, the scope of a TERO may be ambiguous or contradictory.

TEROs are applied to employers that meet specific criteria, including those that employ tribal members, have a contract with the tribal nation, do business with a tribal nation, or have a certain number of employees. TEROs always include a preference in employment, including hiring, training, promotion, layoffs, and reductions in force.

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 aged 40 and older, and gender-based pay discrimination charges under the Equal Pay Act, unless these statutes 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, religion, disability, or genetic information. However, the EEOC has jurisdiction over private employers operating on reservations or contracting with tribes, depending on the employer's size.

Tribal sovereignty is a tribe's inherent right to self-government, which is not a gift from federal or state governments but a pre-existing sovereignty limited by the formation of the United States. Tribes have a basic relationship with the federal government as sovereign powers, recognised in treaties and federal statutes. While tribal sovereignty has been limited by treaties and federal legislation, any powers not expressly limited remain within tribal sovereignty.

Tribal nations have the authority to enact and enforce Indian/Native employment preference laws based on their inherent sovereign status. This legal doctrine is supported by Supreme Court decisions and the principle that certain powers are inherent rather than delegated by Congress.

Tribal Employment Rights Ordinances (TEROs) require that all employers operating a business on reservations give preference to qualified Indians in employment, contracting, and other business activities. TEROs set conditions, establish authority, assign responsibilities, delineate penalties for violations, and provide due process.

Tribal preference is generally not allowed on federal or state contracts or when a private employer is operating on or near reservations. However, tribes can apply tribal preference on their own businesses and construction projects and on tribal P.L. 93-638 contracts.

TERO jurisdiction covers employers operating within the exterior boundaries of the reservation, including ceded lands, territories, and lands where jurisdiction has not been extinguished. However, TERO jurisdiction over employers working on fee land projects has been reduced by the Montana v. USA case.

Some federal employment laws that apply to tribal employers include the Indian Child Protection and Family Violence Prevention Act, ERISA (commercial entities), the Indian Civil Rights Act, and the Affordable Care Act.

In summary, tribal employment laws and federal law intersect in the recognition of tribal sovereignty and the authority of tribes to enact and enforce employment laws. The EEOC has jurisdiction over specific types of employment discrimination charges against federally recognised tribes, and TEROs play a crucial role in promoting employment opportunities for American Indians and Alaska Natives within reservations.

Frequently asked questions