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Welcome, this site is offered to provide free information regarding the various issues confronting tribal employers. Whether the question is the application of tribal, state or federal employment law, a discussion about Indian preference, suggestions regarding policy and procedure, and much more, this site provides some of those answers.

To locate a discussion regarding a wide variety of topics that impact tribal employers, utilize the Site Navigation list to your left and locate the topic of interest. Click on the topic and the Site will bring you to the desired discussion.

If you want to offer analysis, forms, ordinances, updates, cases, or any other tribal employment items please feel free to click on the Contact Us page and send an e-mail with your contribution.

Whether federal employment laws apply to tribally owned on reservation governments and business enterprises is a confusing issue. This section provides a framework for the discussion.

Remember, every situation is unique and therefore you cannot rely on the information provided by this site in specific circumstances. You need to consult with legal counsel to discuss these complex issues before drawing any conclusions regarding your issue.

As the Site discusses in the Tribal Sovereignty section, there are numerous ways to enhance the chance that federal law applies to on reservation tribally owned governments and business enterprises. Whether the tribe is accepting federal money, a signatory to a compact or other agreement, or making promises to follow federal law, these choices enhance the argument that federal law applies to tribal operations. The following discussion assumes you take these exceptions into account when deciding whether federal law applies.

If the law is not explicit, how do you figure out which federal laws may apply to tribal employers?

Title VII of the Civil Rights Act and the Americans with Disabilities Act ("ADA") both specifically address whether they apply to on-reservation tribally owned entities. Both Title VII and the ADA specifically state that they do not apply to tribes. That question is more fully addressed elsewhere in this site. This section provides a framework for the analysis when the statutes in question do not state whether they apply to tribal entities.  More...
Which federal laws specifically do not apply to tribal employers? Some federal laws specifically exempt Indian tribes from the definition of employer, and therefore, remove tribes from the statute's coverage. Two employment statutes that exempt tribes are Title VII and the ADA

Employment issues for gaming tribes

Tribes engaging in gaming confront a number of unique issues in the employment arena. This section touches on a couple of those issues.  More...

Tribal employers oftentimes publish the rules that comprise the employer-employee relationship. There are some unique provisions that tribes include in their handbooks that may not be included in non-tribal handbooks. A good handbook can help insulate the tribe from claims, liability and increase the efficiency of tribal employees :

Employers document their relationship with employees in a number of different ways and one of the most popular ways is through an employee handbook. Employee handbooks contain policy, rules, organizational charts, telephone numbers, and a variety of other components. Some employers create an employee handbook as well as a policy and procedure manual and some employers combine these documents. The best approach is determined by the employer's goals, nature of government or enterprise, the number of employees, and the maturity of the organization.

A. Employee Handbooks .

Tribal employers are presented with unique challenges and therefore the employee handbook often times addresses these issues. Tribal employers should consider including many things non tribal employers incorporate into their employee handbooks, and because tribal employers confront unique challenges, tribal employers should consider supplementing their employee handbooks with these additional provisions:

 1 . Consent to tribal jurisdiction . The Courts agree that tribal employers are able to exercise adjudicatory jurisdiction over tribal member employees, however for non tribal and non Indian employees jurisdiction can be exercised if there is a consensual commercial relationship between the employer and employee. One way to enhance the likelihood that a court will find a consensual commercial relationship between tribal employer and non Indian employee is to obtain the employee's consent to the tribal court's jurisdiction by including consent in the employee handbook. Sample language of consent follows:

As an employee of the Spirit Lake Tribe (the "Tribe"), I consent to the exclusive jurisdiction of the Tribe's Grievance Process, these Handbook rules and the Tribal Court for any and all disputes in connection with my employment with the Tribe. I also consent to the application of Tribe's law, both substantive and procedural, regarding any and all proceedings, matters and things relating to my employment relationship with the Tribe.

Of course any use of form language must be edited to fit the particular circumstances presented and reviewed by legal counsel; however obtaining consent from employees to the exercise of the tribe's judicial system may minimize disputes regarding what forum is appropriate for dispute resolution.

2. Definition of Sovereignty and Sovereign immunity . Another unique aspect of tribal employment law is the role of sovereignty. Tribal employers may be protected by the cloak of sovereignty and the defense of sovereign immunity if an employee attempts to assert a claim against the tribal employer without the consent of the tribe. In the Tribal Sovereignty section of this site, there is a discussion of some of the ways a tribe can waive its sovereign immunity, and that discussion serves as a backdrop for this discussion. If the tribe has not waived its immunity, it can be a good practice to define sovereignty in the employee handbook and by providing this information to employees at the beginning of the employer-employee relationship; it reduces the effectiveness of an employee later arguing that she was not aware of the sovereignty defense. Sample language may include the following :

The tribe is a separate sovereign nation existing within the borders of the United States of America . One aspect of the tribe's sovereign status is its immunity from certain law suits. Accordingly, the tribe cannot be sued in any court without its consent. Nothing in this handbook constitutes, or should be interpreted as constituting, a waiver of the tribe's sovereign immunity.

3. Tribal history and culture . Your employees will be more effective if they understand and appreciate their employer. By providing employees a better understanding of the tribe through the inclusion of information in the employee handbook, the tribe is better preparing its employees to serve their employers effectively. Moreover, oftentimes employees can be the tribes' best advocates to the surrounding community. These employee advocates will be more effective if they possess some insight on the tribe's history and culture.

4. Role of tradition and custom . Since employee handbooks memorialize the rules between employers and employees, if the tribal employer utilizes tradition and custom in its decision making regarding hiring, firing, promoting and retaining employees, the role of tradition and custom should be defined. It will be difficult to define how tradition and custom will impact every decision, however, at a minimum, it is a good practice to provide employees with notice that tradition and custom has and will play a role in the employer's decision making.

5. How the government works . Working for a government is different from other employers. By working for tribal governments, you are working for the tribal members whom are the beneficiaries of tribal programs and services. Including information in the employee handbook regarding governmental processes will provide a greater understanding of government operations to tribal employees. That greater understanding may increase employee effectiveness.

6. Incorporation of traditional dispute resolution mechanisms . Many employers give some due process to their employees through grievance procedures, peer review, oversight committees, and a variety of other ways. Tribes have been resolving disputes for a long time and tribes have utilized traditional dispute resolution techniques that have been successful. However, in most tribal employee handbooks, those tribal traditional dispute resolution processes have not been utilized. Tribes should consider tailoring their dispute resolution techniques to their own circumstances.  Whether the tribe utilizes talking circles, peacemakers, family group counseling, elder guidance or another technique with roots in tribal history and custom is a question for the tribe.

7.  Modification of the Handbook .  Employers change policy from time to time and therefore a good practice is tell your employees that changes will be encountered. Consider telling your employees that the handbook may be changed at any time:

The tribe reserves the right to revise, supplement, modify and rescind any policies or portion of the handbook from time to time as it deems appropriate, in its sole discretion.

8. Employment at-will .  To avoid making unintended promises, consider memorializing the tribe's at-will policy if that is the policy of the tribe:

Employment with the tribe is voluntary and therefore employees are free to resign at will at any time with or without cause or reason. Likewise, the tribe may terminate the employment relationship at will at any time with or without notice and for cause or for any reason deemed appropriate by the tribe. This policy is commonly referred to as employment at-will.

9.  Nepotism .  Consider implementing a nepotism policy:

The employment of immediate family members in the same area of an organization may cause serious conflicts and problems with favoritism and employee morale. In addition to claims of partiality in treatment at work, personal conflicts from outside the work environment can be carried over into day to day working relationships. For purposes of this policy an immediate family member is defined as the spouse, parent, sibling, or child of an employee or a person involved in a dating relationship with the employee. Immediate family members of current employees may not occupy a position where they will be the immediate supervisor or immediate subordinate of their relative. Immediate supervisor is defined as the first level over an employee.

Amato, P. R. "The Impact of Divorce on Men and Wom