Tribal Human Resources Professionals FIRST LINE REPRESENTATIVES AND ADVOCATES OF TRIBAL SOVEREIGNTY

Tribal Human Resources Professionals FIRST LINE REPRESENTATIVES AND ADVOCATES OF TRIBAL SOVEREIGNTY

What should you take from this discussion? How to be advocates for your tribal governments with both employees and regulators What role HR professionals can play to promote tribal sovereignty What information to convey that best educates employees and prospective employees about tribal sovereignty

A Mission for all of the Tribe s Employees Protecting the Tribe s Sovereignty Your Tribe s Mission To provide for the long term security of the Tribe and enhance the overall quality of life of its citizens. Your Mission HR Professionals work to fulfill the Tribe s mission by recruiting, hiring, training the Tribe s employees and professionally communicating workplace policies, procedures and information, which is an exercise of the Tribe s sovereignty and long-term security.

sov er eign ty ˈsäv(ə)rən(t)ē supreme power or authority. the authority of a state to govern itself or another state. a self-governing state. The union and exercise of all human power possessed in a state; it is a combination of all power; it is the power to do everything in a state without accountability; to make laws, to execute and to apply them: to impose and collect taxes, and, levy, contributions; to make war or peace; to form treaties of alliance or of commerce with foreign nations, and the like. Synonyms: jurisdiction, rule, supremacy, dominion, power, ascendancy, hegemony, domination, authority, control, influence

Tribal Sovereignty: the right of tribal peoples to make their own laws and be ruled by them. Williams v. Lee, 358 U.S. 217 (1959). Sovereignty has four elements with respect to US Policy. Sovereignty includes the right to self-government; that right is inherent; federal law limits a tribe s ability to exercise sovereign rights; and federal law controls the legal definition of tribal sovereignty.

Sovereignty Common Myths We gave them their Reservations. Treaties are old pieces of paper and are no longer valid. Indians receive special rights. They [American Indians] lost their land fighting against the U.S. Government. They don t pay taxes. Indians get money for being Indian.

Federal Indian Law Foundations Treaties between Foreign Powers U.S. Treaties with Choctaws and Chickasaws 1830 Treaty: The Government and people of the United States are hereby obliged to secure to the [Chickasaw Nation] the jurisdiction and government of all the persons and property that may be within their limits... the U.S. shall forever secure said [Chickasaw Nation] from, and against, all laws except such as from time to time may be enacted in their own National Councils, not inconsistent with the Constitution, Treaties, and Laws of the United States; and except such as may, and which have been enacted by Congress, to the extent that Congress under the Constitution are required to exercise a legislation over Indian Affairs. Choctaw Nation v. Oklahoma, 397 U.S. 620, 623-25 (1970). 1855 Treaty: Washington provides that [s]o far as may be compatible with the Constitution of the United States and the laws made in pursuance thereof, regulating trade and intercourse with the Indian tribes, the Choctaws and Chickasaws shall be secured in the unrestricted right of self-government, and full jurisdiction, over persons and property, within their respective limits.... Act of June 22, 1855, 11 Stat. 611, art. 7. 1866 Treaty: The Choctaws and Chickasaws agree to such legislation as Congress and the President of the United States may deem necessary for the better administration of justice and the protection of the rights of person and property within the Indian Territory: Provided, however, Such legislation shall not in anywise interfere with or annul their present tribal organization, or their respective legislatures or judiciaries, or the rights, laws, privileges, or customs of the Choctaw and Chickasaw Nations respectively. Act of April 28, 1866, 14 Stat. 769, art. 7.

Congressional Plenary Authority The doctrine that the federal government has complete authority over Indian tribes, including their internal affairs. The 1903 U.S. Supreme Court Case, Lone Wolf v. Hitchcock (187 U.S. 5330) is most often cited as the supreme articulation of plenary power. The main question at issue in Lone Wolf v. Hitchcock was: Does the United States have the power to violate treaties with Indians because of their guardianship-ward relationship? Held that the United States did not act illegally in the Kiowa land lottery of 1902. Plenary power essentially means that the US government possesses ultimate power over Indian land, even to the point of acting in direct conflict to what was stated in treaties. White also declared in his opinion that the only political check for this power would be the morality of the United States, which, he said, should be trusted to act in good faith.

Federal Limits on Tribal Sovereignty Domestic Dependent Nations The federal common law of tribal sovereignty acts to define the limits of tribal authority, but tribes may exercise all sovereign powers (1) not inconsistent with domestic dependent nation status; (2) not barred by treaty relinquishment; or (3) not abrogated by statute. Regulators Tribes have full authority of citizenry rights and territory... subject to Congress plenary authority and domestic dependent sovereignty doctrine. Congress Plenary Authority The U.S. Constitution vests Congress with authority over federal tribal policy, preempting states from interfering. Congress may act to expand or restrict the exercisable scope of tribal sovereignty within the federal system.

Congressional Plenary Authority Today Only Congress can regulate Indian tribes by passing laws that specifically apply to Indian tribes. Language must be explicit, i.e. say Indian tribes. Executive Branch agencies are delegated Congress power to enforce laws through the passing of regulations. These regulations must also specifically apply to Indian tribes and not exceed Congress authority. 10th Circuit has stated that absent any clear congressional intent, Congress does not intend its laws to apply to Indian tribes because of their retained sovereign authority.

Federal Statues of General Applicability Most federal labor and employment statutes are silent as to whether they apply to Indian tribes or Indian commercial enterprises. Silence indicates Congress did not intend to make the statute applicable to Indian tribes and thus, did not intend to abrogate tribal sovereignty. This silence has resulted in a split of legal authority as to whether these silent statutes apply to Indian tribes as employers. 10 th Circuit is generally in favor of protecting tribal sovereignty. Has found that FLSA, NLRA, and ADEA do not apply to tribes.

Examples of Federal Laws of General Applicability National Labor Relations Act NLRA NLRA does not contain language either expressly applying it to Indian tribal governments or expressly exempting such governments from its coverage; however, it does expressly exempt United States or any wholly owned government corporation, or any state or political subdivision thereof. The Chickasaw Nation sued the NLRB in 2011 and won a favorable opinion from the US Dist. Ct. for the Western District of OK. Later the NLRB ruled that due to the Nation s treaties, it had no jurisdiction over the Nation. Age Discrimination in Employment Act ADEA EEOC v. Cherokee Nation, 871 F.2d 937 (1989). The tribe s treaty-protected right to right to self-government was in conflict with the Act. The 10 th Circuit ruled that Congressional silence with regard to the application of the ADEA to Indian tribes rendered its intent ambiguous. Ambiguities are interpreted in the favor of the tribe, thus the ADEA does not apply to Indian tribes.

Communicating the Tribe s Mission, or Why Unions Shouldn t Be A Problem Explain Tribal Sovereignty and your Tribe s history to all employees. History and culture classes that incentivize the Tribe s employees to learn more. Live your Tribe s values and constantly and consistently explain those values to your Tribe s employees. Employees should buy-in to your Tribe s mission, so communicate your Tribe s wins! i.e. #s of Scholarships awarded, lives affected by medical care at your facilities, etc. Exercise fairness and maintain employee morale. Educate your employees about the Tribe s purpose economic stability for Tribal Citizens and full Citizen employment. Educate your Tribe s Citizens about your employees the gratitude goes both ways! Create dialog and mentoring opportunities to further promote good feelings.

Union Organizing Don ts: Should your team hear of union organizing happening, it is critical that supervisors and managers do not: threaten or punish employees who engage in union activity, interrogate employees regarding union activity, promise employees wage increases or other special concessions to not unionize, or spy on employee union representatives by attending union meetings or other such undercover activities. A union-free workplace is never guaranteed, but Tribes should be prepared to respond if and when union organizing efforts are taken.

Your Tribe s Employees are Government Employees Government employers have a powerful interest in maintaining authority to govern their own communities and those who work for their governments. Tribal Labor Sovereignty Act, he proposed legislation would amend the National Labor Relations Act ( NLRA ) to explicitly exclude from coverage federally recognized Indian tribes that operate tribally owned enterprises on tribal lands. Currently filibustered in Senate (need 60 votes to trigger actual vote). it can be inferred that the bill failed to advance because Democratic Senators perceived anti-union or anti-worker motivation. The purpose of this legislation is to preserve the sovereignty of Indian tribes, as governments, to adopt labor laws that are appropriate to the needs of their particular governments, which Congress recognized in 1935 when it excluded other governmental entities from coverage of the NLRA.

Tribal Sovereignty and Human Resources, some specifics: Human Resources is an extension of the Tribal Government, and thus receives the benefit of that Tribe s sovereign immunity. As such, HR must protect the Tribe s sovereign immunity from regulatory overreach and unnecessary interference in the Tribe s affairs by protection of the Tribe s information, including all employee information, from unauthorized disclosure. Only release Tribal proprietary information at the direction of your attorney(s). Scrutinize all requests for Tribal engagement from Regulators, from U.S. Departments and Agencies or State partners. Don t open the door to a waiver of your Tribe s sovereign immunity by erring on the side of compliance with data requests or regulatory overreach!

What you can do to protect sovereignty: Scrutinize all requests for Tribal Data and Employee Information, which is the Tribe s proprietary data, before authorizing release. This must be released per a formal process; gathered and sent to the employee or their designated agent (lawyer, court, etc.) by properly executing and notarizing the authorization. Regulations and Regulatory Authorities that affect the Tribe s HR Division are limited by the fact that most federal labor laws are statutes of general applicability. Your team needs: Understanding what federal laws that are adopted policies (not mandated by law) to ensure that Tribes remain a competitive employer and attractive workplace vs. Congressionally mandated compliance with a federal labor law

Last thoughts We all, as Tribal Government Employees, have a duty and obligation to our Tribe s citizens to maintain the sovereignty with vision and foresight for future generations of their citizens. TLDR: What we do today, matters in the future! Education and Communication are Key! Every level of employee needs this! You can make a difference by communicating tribal sovereignty to your employees!