THE CURRENT STATUS OF THE NAVAJO PREFERENCE IN EMPLOYMENT ACT

• Jurisdiction: United States

Natural Resources Development on Indian Lands
(Mar 2011)
CHAPTER 13B
THE CURRENT STATUS OF THE NAVAJO PREFERENCE IN EMPLOYMENT ACT
Paul W. Spruhan
Navajo Nation Department of Justice
Window Rock, Arizona

PAUL W. SPRUHAN is Assistant Attorney General for Human Services and Government at the Navajo Nation Department of Justice in Window Rock, Arizona. He received his A.B. in 1995 and his A.M. in 1996 from the University of Chicago. He received his J.D. in 2000 from the University of New Mexico. He graduated Order of the Coif and received an Indian law certificate. Before coming to Navajo DOJ, he was the law clerk for the Navajo Nation Supreme Court for five years. He and his wife, Bidtah Becker, have two children, and live in Fort Defiance, Arizona.

Tribes throughout the United States have laws mandating preference for Indian workers. Generally dubbed "Tribal Employment Rights Ordinances," or T.E.R.O.s, such laws require employers to follow Indian preference in their hiring, promotion, or retention, and tribes have created commission or hearing bodies to enforce such requirements.¹

The Navajo Nation's employment law is unusual, in that it mandates Navajo preference instead of Indian preference.² The Nation, through its Navajo Preference in Employment Act, requires all employers, including state governments, to hire, promote and retain qualified enrolled members of the Navajo Nation ahead of all other employees, even Indians enrolled in other tribes.³ Spouses of Navajos, whether Indian or not, are eligible for a second-tier preference if there is no qualified Navajo.⁴ Importantly, the NPEA also requires employers to fire or discipline employees, whether Navajo or not, only for "just cause."⁵

The Navajo Nation Labor Commission, an administrative hearing body made of appointed members, hears complaints alleging violations of the Act.⁶ An employee must first file a charge with the Office of Navajo Labor Relations (ONLR), an agency within the Executive Branch of the Nation that operates like the federal Equal Employment Opportunity

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Commission.⁷ ONLR itself can file its own charge when aware of alleged violations of the Act.⁸ An aggrieved employee does not have to exhaust an employer's internal grievance process before filing with ONLR.⁹ There are numerous cases from the Navajo Nation Supreme Court interpreting various provisions in the Act, creating a robust employment law within the Navajo Nation.¹⁰

The NPEA reflects the clear policy of the Navajo Nation Council, the governing body of the Nation, that Navajo society will only flourish if members of the Nation are gainfully employed. As stated in the NPEA itself, the purposes of the Act are:

(1) To provide employment opportunities for the Navajo work force;

(2) To provide training for the Navajo people;

(3) To promote the economic development of the Navajo Nation;

(4) To lessen the Navajo Nation's dependence upon off-Reservation sources of employment, income, goods, and services;

(5) To foster the economic self-sufficiency of Navajo families;

(6) To protect to health, safety, and welfare of Navajo workers; and

(7) To foster cooperative efforts with employers to assure expanded employment opportunities for the Navajo work force.¹¹

Implicit within these stated purposes is the belief that outside entities have the responsibility to utilize Navajo labor as a condition of their use of Navajo land and other resources. From the Nation's perspective, a variety of social ills plaguing the Nation derives, at least in part, from the

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endemic poverty among its members. Therefore, from the Nation's perspective, adherence by employers to the NPEA is one way to attempt to relieve the dire economic situation facing the Nation.

Despite the laudable goals of the NPEA, the Act has been...