The following presents a list of the most questions and inquiries about Native American Preference and Tribal Employment Rights (TERO).
To access more employment and training opportunities for Native Americans and their families. To provide more business and economic opportunities for businesses owned by Native Americans. This is similar to "hire local" and "buy local" initiatives.
All employers operating within tribal jurisdiction are required to provide Indian preference in employment, training, contracting, sub-contracting.
Followings are the major provisions and requirements found in most TERO Ordinances that employers must agree:
- To ensure Native preference, employers need to submit and negotiate a detailed compliance plan of employer workforce needs.
- To utilize the TERO skills banks for all referrals and consider Native applicants before interviewing or hiring any non-Native worker.
- To negotiate with the TERO Compliance Officer(s) the specific number of Natives in each job classification and to cooperate with tribal training programs to hire a certain number of trainees.
- To eliminate all extraneous job qualification criteria or personnel requirements which may act as a barrier to Native employment. TEROs are guided by EEOC guidelines for verifying legitimate Bona-fide Occupational Qualifications (BFOQs).
- To keep in contact with the TERO office with employee problems and issues that have not been resolved through the chain of command.
- To acknowledge and respect tribal religious beliefs and cultural difference, and to cooperate with the TERO to provide reasonable accommodations.
- All employers who have collective bargaining agreements with one or more unions must secure a written agreement from their unions indicating that they will comply with TERO.
- The TERO certified worker shall be treated the same as the other employees. There will be a zero tolerance to discrimination within the boundaries of the Tulalip Reservation or Tribal projects off the Reservation.
The success of TERO programs can be directly attributed to the fact that these programs embody all of the critical elements listed above.
All contracting agencies/owners will be required to submit a contracting Agency/Owner Compliance Plan that will provide the TERO Department information regarding the project outline and total estimate.
A Compliance Plan shall constitute a binding agreement, the terms of which shall be fully enforceable by TERO. Failure to obtain or adhere to the terms of an approved Compliance Plan, or supplying false information to TERO, shall subject the non-complying party to monetary penalties of up to $1,000 per violation per day. Penalties assessed may be appealed to the TERO Commission.
The TERO office has a Native American Owned Business Registry (NAOB) in which we certify that the companies are owned by Native Americans. The TERO Code requires that you provide the opportunities to every NAOB that is qualified to do the work.
Yes, on Tribally funded projects the TERO can require Tribal member preference. This is permissible under Federal law because tribes are exempt from Title VII of the Civil Rights Act, Executive Order 11246 and most other employment rights legislation. Native American preference is permissible under some federal laws i.e., Indian Self Determination Act, Buy Indian Act.
Yes, there are several exemptions. Direct employment by Federal/State governments, schools, churches, some non-profits and individuals who are performing work on their only home are not covered by the TERO. It is important to note however, that any contract or sub-contract let by any of these entities or individuals is covered by TERO and the fee may apply.
A tribe has the authority to enact and enforce any Native American employment preference law is grounded in its inherent sovereign powers of self-government. This legal doctrine is the most basic principle of Indian law and is supported by a host of Supreme Court decisions. The jurisdiction is legally described or defined by treaty or legislation. Within the boundaries of the reservation including ceded territories and lands where jurisdiction has not been extinguished and off reservation on tribally funded projects. Preference can also be applied off of the reservation with agreements. TERO has a political preference, not a racial preference and does not violate Title VII or any other Federal Employment Law.
No. Since TERO is pro-active, the compliance plans are signed by TERO and the employer prior to the commencement of work prevents disputes. The Compliance Officers will monitor the TERO requirements by doing onsite compliance visits that would not be detrimental to business operations. TERO can sanction employers for violations which may shut down operations but only in severe disputes and in accordance with the applicable law.
No. It provides preference to bona-fide and qualified Native American businesses on projects on or near the Tulalip Tribes Indian Reservation. As with employment contracting preference is permissible or required under Federal, Tribal, State or other Local laws. Preference is not provided to the exclusion of other businesses and price and quality are still primary considerations.
Yes. The first level of protection comes from the TERO Compliance Officer who handles the charge. These officers are trained to deal with facts and merits of the case before making determinations. Beyond the TERO Commission, grievants can seek relief in Tribal Court.
Violation of TERO requirements may result in severe sanctions. If the TERO office determines that employers willfully and intentionally breached TERO requirements. The TERO may:
- Impose a remedial civil penalty not to exceed $5,000 per violation
- Order any employer to remedy the situation
- Issue a stop work or removal order
- Order the payment of back pay and/or punitive damages
- Order the payment of documented lost profits
- Any other penalties authorized under specific sections of this code
- Withhold payment until the violation is remedied
- Suspension or termination of the contract
- Debarment from contracting with the Tribes for up to one year; debarment for up to three years may be imposed for willful repeated violations. Individuals debarred from contracting may not bid or participate in any Tribal contracts as owners or employees of other companies during the period of debarment
- Denial of certification
- Suspension of certification
Yes. Sanctions imposed by the TERO Commission can be appealed in tribal court. There shall be no further appeal from a decision of the Tulalip Tribal Court.
Yes. Tribal authority to access a fee is equal to that of any government. Taxation, licenses and fees are a valuable source for financing Tribal governmental operations. Tribes therefore consider their social and economic needs and priorities and set the TERO requirements to suit them just as National, State, and other units of government do.
Many contractors pay taxes without complaint and comply with the governmental requirements of states, counties, etc, but openly oppose doing so with tribes. This "cultural discrimination" is indicative of the lack of knowledge and acceptance of the sovereign authority of the Tribe.
The Tulalip Tribes TERO fee is 1.75% of the total aggregate cost on any project over $10,000.
When TERO first appeared in the late '70s there was opposition from some and indifference from others. A great deal of progress has been made, some by direct legal action but mostly through pro-active, non-adversarial, synergistic effort. The results are Native American preference and TERO provisions, policies and procedures figure prominently in the following:
- The Civil Rights Handbook
- The Job Training and Partnership Act
- The Small Business Administration 8(a) Program
- Public Law 93-638, The Indian Education Assistance and Self-Determination Act of 1974
- HUD Regulations
- BIA Acquisition Assistance Agreement 84-1
- EEOC/TERO Contracts
- OFCCP Indian Employment Initiative
- FHWA ISTEA "Indians in Highway Construction Initiative"
- Indian Health Service
- US DOL/BAT Notice 84-1
- Indian Education Impact and Programs Under PL 81-815 (Construction) and PL 81-874 (OPS/Admin)
Since unemployment rate in Native communities remains high, tribes must take strong actions to protect the employment rights of Native American people.