CHAPTER 3 REGULATION OF EMPLOYMENT: TRIBAL EMPLOYMENT RIGHTS ORDINANCES AND THE NLRB

• Jurisdiction: United States

Indian Law and Natural Resources: The Basics and Beyond (Sep 2017)
CHAPTER 3
REGULATION OF EMPLOYMENT: TRIBAL EMPLOYMENT RIGHTS ORDINANCES AND THE NLRB
Alvina Earnhart
Partner, Fredericks Peebles & Morgan, LLP
Louisville, CO

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ALVINA L. EARNHART is an enrolled member of the Navajo Nation and a Partner in the Colorado office of Fredericks Peebles & Morgan, LLP (FPM). FPM is dedicated to the representation of American Indian tribes and organizations throughout the United States. Alvina practices in the areas of Federal Indian Law, Tribal Government, Tribal Court and Federal Court Litigation, Administrative Law, Legislation and Code Drafting, Energy and Natural Resource Law, Environmental Law, Commercial and Business Law, Wills, Trusts and Estates, and Housing and Taxation Law. Alvina has extensive experience in assisting clients with internal tribal governmental matters pertaining to administration, human resources, Tribal Employment Rights Office compliance, probate, taxation, land issues, housing, economic development, natural resource development, including oil and gas development and environmental law compliance, including NEPA, permitting and regulatory compliance under federal law, specifically concerning compliance under the Clean Air Act, Clean Water Act, Resource Conservation and Recovery Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Endangered Species Act and regulations promulgated therein. Alvina serves as General Counsel and Special Counsel to tribes advising various tribal committees, boards and commissions, drafting tribal laws, drafting policies and procedures, and assisting with tribal reorganization and/or restructuring. Alvina is of the Red House People clan, born for the Folded Arms People clan. Her maternal grandfather is of the Meadow People clan and paternal grandfather is of the Black Streak Wood People clan. She was born and raised on the Navajo Reservation in the community of Coyote Canyon, New Mexico. Alvina received her Juris Doctor from the University of Colorado and her Bachelor's degree in Political Science and American History from the University of Denver. Alvina is licensed to practice in the state of New Mexico, Cheyenne and Arapaho Courts, Yankton Sioux Tribal Court and Ute Indian Tribal Court.

I. Regulation of Employment in Indian Country

a. Tribal Employment Rights Ordinances

Lack of employment on or near Indian Reservations has plagued American Indian communities for decades. In an effort to address this problem, Indian tribes have enacted Tribal Employment Rights Ordinances ("TEROs").

TEROs are tribal laws adopted by tribal governmental bodies to regulate the employment activities of "covered employers" on the reservation or within the territory over which such tribes exercise jurisdictional authority. The definition of "covered employers" varies from tribe to tribe, but most define them as "employers that hire two (2) or more employees to engage in work on the reservation." If an employer does not meet the definition of a "covered employer" as defined by TERO, the TERO does not apply to the activities of the employer. TEROs generally do not apply to smaller employers or employers in specialized fields for work.

TEROs require that "covered employers" provide tribal and/or Indian preference in the hiring, promotion and training for on-reservation business activities. Indian preference is preference given to any enrolled member of a federally-recognized tribe. Tribal preference is preference given to a person of a particular federally-recognized tribe.

Tribes are responsible for adopting enrollment criteria for their tribal membership and such criteria is often set forth in tribal constitutions, articles of incorporation or ordinances. The criterion varies from tribe to tribe. No uniform tribal membership requirements exist. Two common requirements for membership are lineal decendency from someone named on the tribe's base membership roll or minimum tribal blood quantum. When a person is enrolled in a federally-recognized tribe, they are issued a certificate of Indian blood, tribal identification card or some other form of identification confirming that they are enrolled members of a federally-recognized tribe.

TEROs provide enrolled members of federally-recognized tribes with unique employment rights including the right to preference in employment, contracting and other business activities on and near their reservations. The right to this preference comes from two major sources:

1. Tribal Sovereign Powers: As sovereigns, tribes have the legal authority to regulate and control the employment practices of all employers conducting business on their reservations. This power enables tribal governments to require that all covered employers provide Indian preference in employment, contracting and subcontracting to qualified Indian applicants, contractors and subcontractors that can provide competitive bids and quality services or products.

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2. Federal Indian Preference Employment Law & Contracting Requirements: Federal laws require mandatory Indian preference on all federally funded contracts or grants which have been awarded to create benefits for Indian and Alaska Native people. Employers who are recipients of such awards are required by federal law, as well as by contract requirements, to provide qualified Indians/Alaska Natives with preference in all aspects of employment and contracting.

Pursuant to the Indian Self-Determination and Education Assistance Act ("ISDEA"), 25 U.S. C., § 5301 et seq., contractors administering self-determination contracts with a tribe are governed by that tribe's TERO.¹ Self-determination contracts are defined as "contracts...entered into under title I of [the ISDEA] between a tribal organization and the appropriate Secretary for the planning, conduct and administration of programs or services which are otherwise provided to Indian tribes and their members pursuant to Federal law."² Self-determination contracts are more commonly known as Public Law 93-638 contracts, which transfers federal programs for tribes out of federal control and into tribal control.

Tribal and federal courts have upheld tribal jurisdiction to enforce TEROs against businesses operating on fee land located within reservations.³ The Supreme Court has yet to address this question.

Although the Montana line of cases restricts tribal regulatory power over non-members, TEROs are supported by the Montana exceptions.⁴ The first exception allows tribes to regulate "the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealings, contracts, leases, or other arrangements."⁵ Given that the majority of employers that engage in business activities do so pursuant to a contract, lease or other arrangement they have negotiated with the Tribe, department of the Tribe or a tribal member, such employers have entered into consensual relationships with the tribe and meet the first Montana exception. Before any activity can be initiated on the reservation, employers must take the necessary steps to comply with TEROs, which often include obtaining a TERO license or entering into a Compliance Plan, which outlines how the employer will comply with TERO.

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In situations where an employer does not meet the first exception, the employer may meet the second Montana exception. The second Montana exception provides a Tribe with the right to "exercise civil authority over conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe."⁶ Although the scope of tribal adjudicative authority over non-Indians on non-Indian land remains an open question, the Supreme Court has applied the Montana analysis in cases involving the exercise of tribal judicial authority over non-Indians on non-Indian land.⁷

b. National Labor Relations Act

The National Labor Relations Act ("NLRA") ensures employees the right to self-organize, to form, join, or assist labor organizations, to bargain collectively, and to engage in other activities.⁸ The NLRA prohibits an employer from engaging in unfair labor practices.⁹ Under the NLRA, the term "employer" is defined as "any person acting as an agent of an employer, directly or indirectly, but shall not include the United States or any wholly owned Government corporation, or any Federal Reserve Bank, or any State or political subdivision thereof, or any person subject to the Railway Labor Act,¹⁰ as amended from time to time, or any labor organization (other than when acting as an employer), or anyone acting in the capacity of officer or agent of such labor organization."

The NLRA grants the National Labor Review Board ("NLRB") the power to enforce and carry out its policies "to prevent any person from engaging in any unfair labor practice affecting commerce."¹¹ The NLRB conducts elections, investigates charges, facilitates settlements, decides cases, and enforces orders.¹² Like most federal labor and employment statutes, the NLRA is silent with respect to its application to Indian tribes.

Two cases from the federal judiciary frame the analysis of whether federal employment laws, which are silent on applicability, apply to tribal employers. Those cases are the Supreme Court's Federal Power Commission v. Tuscarora Indian Nation,¹³ and the Ninth Circuit's Donovan v. Coeur d' Alene Tribal Farm.¹⁴

Tuscarora is a land condemnation case where the United States Supreme Court addressed the issue of whether the Federal Power Act ("FPA") authorized the taking of off-reservation land owned by the Tuscarora Tribe in fee simple.¹⁵ The Supreme Court determined that because the

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Tuscarora Tribe owned the fee land, the lands did not satisfy the statutory definition of...