Indian Preference Laws
This presentation explores the laws surrounding Indian preference in employment and contracting, including alternative sources of TERO authority, Section 7(B) and 7(D) of the Indian Self-Determination Act. It discusses the enforcement of tribal ordinances, contract provisions, and the preference requirements for wages and grants to benefit Indian individuals and organizations.
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Presentation Transcript
PRESENTATION ON THE LAW INVOLVING INDIAN PREFERENCE IN EMPLOYMENT AND CONTRACTING DANIEL PRESS AND LAURA JONES VAN NESS FELDMAN LAW FIRM dsp@vnf.com laura.jones@vnf.com .
ALTERNATIVE SOURCES OF TERO AUTHORITY 1. ENFORCING YOUR ORDINANCE BASED ON TRIBAL SOVEREIGNTY 2. CONTRACT -- BY IMPOSING THE TERO ORDINANCE THROUGH PROVISIONS IN LEASES, CONTRACTS, BID DOCUMENTS, ETC. 3. USING PROVISIONS IN SECTION 7(B) OF THE ISDA PROVIDING THAT ON ISDA PROJECTS, IF 7(B) APPPLIES AND THE TRIBE HAS AN ORDINANCE, THE TRIBAL ORDINANCE IMPLEMENTS 7(B) RATHER THAN THE AGENCY S 7(B) REGULATIONS APPLIES TO THE BIA, BIE, ANY OTHER INTERIOR DEPARTMENT AGENCY SUCH AS THE BUREAU OF RECLAMATION , IHS, FHWA AND HOUSING AUTHORITY PROJECTS 4. MOU WITH STATE HIGHWAY DEPARTMENT 5. MOU WITH EEOC GIVEN THE TERO THE FIRST RIGHT TO RESOLVE EEOC COMPLAINTS FILED ON THE RESERVATION BY AN INIDIAN 2
SECTION 7(B) OF THE INDIAN SELF- DETERMINATION ACT 25 USC 450e (B) PREFERENCE REQUIREMENTS FOR WAGES AND GRANTS ANY CONTRACT, SUBCONTRACT, GRANT OR SUBGRANT PURSUANT TO THIS SUBCHAPTER [THE ISDA], OR ANY ACT AUTHORIZING FEDERAL CONTRACTS WITH OR GRANTS TO INDIAN ORGANIZATIONS OR FOR THE BENEFIT OF INDIANS, SHALL REQUIRE THAT TO THE GREATEST EXTENT FEASIBLE (1) PREFERENCES, AND OPPORTUNITIES FOR TRAINING AND EMPLOYMENT IN CONNECTION WITH THE ADMINISTRATION OF SUCH CONTRACTS OR GRANTS SHALL BE GIVEN TO INDIANS; AND (2) PREERENCES IN THE AWARD OF SUBCONTRACTS AND SUBGRANTS IN CONNECTION WITH THE ADMINISTRATION OF SUCH CONTRACTS AND GRANTS SHALL BE GIVEN TO INDIAN ORGANIZATIONS AND TO INDIAN-OWNED ECONOMIC ENTERPRISES [DEFINED AS 51% OWNED AND CONTROLLED] 3
SECTION 7(d) of THE INDIAN SELF- DETERMINATION ACT (d) NOTWITHSTANDING SUBSECTIONS (a) AND (b) OF THIS SECTION, WITH RESPECT TO ANY SELF-DETERMINATION CONTRACT OR PORTION OF A SELF-DETERMINATION CONTRACT, THAT IS INTENDED TO BENEFIT ONE TRIBE, THE TRIBE S EMPLOYMENT OR CONTRACT PREFERENCE LAWS ADOPTED BY SUCH TRIBE SHALL GOVERN WITH RESPECT TO ADMINISTRATION OF THE CONTRACT OR PORTION OF THE CONTRACT 4
SECTION 7(d) of THE INDIAN SELF- DETERMINATION ACT OTHER AGENCIES WHOSE PROJECTS THAT ARE FOR THE BENEFIT OF INDIANS WHO ARE SUBJECT TO 7(B) BUT WHO DO NOT HAVE REGULATIONS AND TO WHOM 7(D) DOES NOT APPLY USDA, INCLUDING THE RURAL DEVELOPMENT ADMINISTRATION (RDA) ECONOMIC DEVELOPMENT ADMINISTRATION DEPARTMENT OF EDUCATION PL 815 SCHOOL CONSTRUCTION GRANTS ARMY CORPS OF ENGINEERS WATER AND SEWER GRANTS TO TRIBES 5
SECTION 703(I) OF THE 1964 CIVIL RIGHTS ACT EQUAL EMPLOYMENT OPPORTUNITY NOTHING CONTAINED IN THIS SUBCHAPTER SHALL APPLY TO ANY BUSINESS OR ENTERPRISE ON OR NEAR AN INDIAN RESERVATION WITH RESPECT TO ANY PUBLICALLY ANNOUNCED EMPLOYMENT PRACTICE OF SUCH BUSINES OR ENTERPRISE UNDER WHICH A PREFERENTIAL TREATMENT IS GIVEN TO ANY INDIVIDUAL BECAUSE HE IS AN INDIAN LIVING ON OR NEAR AN INDIAN RESERVTION 6
THE TERM EMPLOYER DOES NOT APPLY TO AN INDIAN TRIBE THIS LANGUAGE IS CONTAINED IN THE ORIGINAL TITLE VII WHICH GAVE EEOC THE AUTHORITY TO ENFORCE PROHIBITIONS ON DISCRIMINATION BASED ON RACE, COLOR, CREED, NATIONAL ORIGIN, AND SEX THIS LANGUAGE IS NOT CONTAINED IN THE AGE DISCRIMINATION ACT AND THE AMERICANS DISABILITY ACT. OVER WHICH EEOC ALSO HAS ENFORCEMENT AUTHORITY 7
THE TERM EMPLOYER DOES NOT APPLY TO AN INDIAN TRIBE COURTS HAVE RULED THAT A TRIBE MAY NOT BE SUED UNDER THE AGE DISCRIMINATION AND THE DISABILITY ACTS IF THE COMPLAINANT IS AN INDIAN. THEIR REMEDY IS IN TRIBAL COURT BUT TRIBAL ENTERPRISES MAY BE SUED UNDER THESE ACTS IF THE COMPLAINANT IS A NON-INDIAN TRIBES NEED TO ADOPT THEIR OWN ANTI- DISCRIMINATION LAWS TO PROTECT THEIR EMPLOYEES AND THEIR SOVEREIGNTY 8
ALTERNATIVE MEANS OF IMPOSING INDIAN PREFERENCE IN AWARD OF THE PRIME CONTRACT 1. LIMIT BIDDING TO INDIAN FIRMS AND AWARD IF AT LEAST ONE FIRM SUBMITS A BID. IF PRICE IS TOO HIGH, REQUIRE NEGOTIATIONS 2. LIMIT BIDDING TO INDIAN FIRMS AND AWARD IF AT LEAST TWO FIRMS SUBMIT BIDS. IF PRICE IS TOO HIGH, REQUIRE NEGOTIATIONS 3. TWO STAGE PROCESS: (1) ADVERTISE TO DETERMINE IF THERE ARE ONE OR TWO QUALIFIED FIRMS. (2) IF THERE ARE, LIMIT BIDDING TO INDIAN-OWNED FIRMS. IF NOT, OPEN BIDDING 9
ALTERNATIVE MEANS OF IMPOSING INDIAN PREFERENCE IN AWARD OF THE PRIME CONTRACT 4. OPEN BIDDING TO ALL FIRMS BUT PROVIDE A FIXED PERCENTAGE DIFFERENTIAL. IF THE LOWEST INDIAN BID IS HIGHER THAN THE LOWEST NON-INDIAN BID BUT WITHIN THE DIFFERENTIAL, AWARD TO THE INDIAN FIRM 5. SAME AS #4 BUT PROVIDE A SLIDING SCALE DEPENDING ON THE SIZE OF THE CONTRACT 10
