Indian Preference in Engineering & Construction Projects II

Indian Preference in Engineering & Construction Projects
Part II: Employment Preference

Submitted to AZRE Magazine, May 21, 2013
By Roger Owers, Ph.D., P.E., J.D.

Indian Tribes, as sovereign nations, have the general power to create and enforce their own rules to govern activities within each Tribe’s jurisdiction.  In this two-part series, we will look at one set of such rules: the preferential treatment of Indians in contracting and in employment.  In the first article, we looked at Indian preference in the context of vendor selection.  This second article examines Indian preference in the context of employment.  The emphasis in both articles will be on Indian preference in Arizona as applied in the engineering & construction industry.

If an outside funding source is funding the project (such as the federal government), then the funding agency’s rules may (but not always) govern employment preference.  However, if Tribal money is funding the project, which is quite common, then the Tribe’s preference rules will typically govern employment preference.

Both federal law and Arizona contain statutes that specifically allow Indian Tribes and businesses “on or near” an Indian reservation to give preferential employment treatment to Indians.  The phrase “on or near” an Indian reservation has been defined as businesses within a normal commute from the reservation.  Thus, many businesses can legally give preferential treatment to Indians in employment.

Like many Tribal policies, there is no “one size fits all” rule for how Tribes use Indian preference in employment.  Because each Tribe is free to establish its own rules for vendor selection, there is variety among Tribes for how this is done.  A Tribe does not have to have an Indian preference policy.

But several Tribes have Tribal Employment Rights Offices or “TERO Offices” or similar departments that oversee employment preference for that particular Tribe.  Among other things, TERO Offices ensure that Indians are afforded their share of employment and training opportunities on or near the reservation.

TERO Offices often maintain a database of Indian workers.  This database can include the Indian workers’ skill set, experience, employment history, and contact information.  TERO Offices then interface with businesses on or near a reservation to place Indian workers with such businesses.  TERO Offices can also serve as a mediator in disputes between the employee and employer.

Businesses on or near a reservation are encouraged to work closely with TERO Offices.  Businesses can inform the TERO Office about upcoming opportunities, job requirements, hours, etc.  In return, the TERO Office can help with advertising such positions within the Tribe, job fairs, and in providing qualified candidates.

Some Tribes have no formalized Indian employment preference policy in place, choosing to deal with it in an informal, relationship-based approach. But other Tribes have in place a written and published Indian employment preference policy that details their preference rules.  Tribes that issue public formal TERO ordinances include the Tohono O’Odham Nation, the Gila River Indian Community, the Yurok Tribe, and the Ho-Chunk Nation, to name but a few.

When considering how to approach a potential business opportunity in Indian Country, it is important to understand if and how the policy of Indian preference in employment and in vendor selection is applied.  Each Tribe can have its own unique set of rules, which may or may not be influenced by an outside funding agency.  Such rules will apply in preferential treatment of employment and in the Tribe’s selection of the vendor, whether a contractor, architect, engineer, or other business or professional.

Federal law authorizing this preferential treatment is found at 42 U.S.C. § 2000e-2(i) and 42 U.S.C. § 2000(e)(b).  Arizona law giving preference is found at A.R.S. § 41-1461(6) and A.R.S. § 41-1463(J).

This article is intended for general information only.  It should not be construed as legal advice with respect to any particular situation.  Readers should not act upon information contained in this article without first consulting their lawyer.

Roger S. Owers is a commercial real estate professional with Keyser LLC and is a lawyer with the Kaibab Law Offices of Roger S. Owers LLC.  Roger holds a Ph.D. in civil engineering, is a registered professional civil engineer, holds a real estate license, and is a licensed attorney.  He can be reached via e-mail at rowers@kaibabllc.com or www.kaibabllc.com.  He can also be found on LinkedIn at http://www.linkedin.com/in/rogerowers/.

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