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Crow Nation enacts Employment Protection Law

CROW AGENCY, Mont. – In a move to protect Native and non-Native employees working on the Crow reservation, the late Chief Carl Venne signed the Tribal Workforce Protection Act into law Jan. 28.

The Crow Nation is the first tribe to enact a TWPA law, which officially goes into effect April 1. It will protect the rights to all workers on the reservation from “discrimination, harassment and disparate treatment based on race, color, gender, sexual preference, religion, national origin, or tribal affiliation,” the law reads.

Kristen Burge, deputy legal counsel for the Crow executive branch, said the TWPA applies to the more than 1,000 employees within the executive, legislative and judicial branch of the tribe, and to individuals working for private enterprises within reservation boundaries.

The Crow Nation is a member of the Council for Tribal Employment Rights whose staff played an integral role in the formation of the tribe’s TWPA.

Burge said it took nearly two years to write the law before the council unanimously approved it in January. She called it a “work in progress,” as it evolved while she worked with the tribe on making revisions to the Tribal Employment Rights Ordinance.

Tribes began enacting TERO laws in 1976 to insure qualified tribal members and other Natives are given preference when seeking jobs, in addition to training and other opportunities, on or near reservations and Native communities.

Meanwhile, a conference that Burge attended in December 2006, sponsored by CTER, alerted her to tribes that were being taken to court by the Equal Employee Opportunity Commission, individuals and corporate contractors that argue tribes’ TERO laws are discriminatory.

But she later learned not all lawsuits were TERO specific.

In San Manuel v. National Labor Relations Board, the San Manuel Band of Serrano Mission Indians were taken to court in December 2006 after preventing the UNITE HERE! union from organizing a meeting to discuss forming a union with employees of the San Manuel Indian Bingo & Casino Resort.

Three months later, the U.S. Court of Appeals ruled in favor of the NLRB, citing the tribe was defined as an employer under the National Labor Relations Act and gaming as a commercial enterprise, threatening San Manuel’s sovereignty and setting precedence for future lawsuits against tribes.

Burge said the San Manuel case is a prime example of what could go wrong when tribe’s fail to enact their own TWPA and labor laws. “It was much easier for the court to apply whatever law that they had, which was the NLRA.”

And with more tribes rapidly expanding their gaming and business enterprises, so does the need to hire qualified non-Native applicants. Burge said the non-Native employee is most likely to take a tribe to federal court.

“We don’t typically see that out here, but we’re trying to be progressive and forward thinking. We’re hoping this will put the tribe in the strongest position to protect its sovereignty.”

Burge specializes in unemployment law and is currently looking to create legislation that will cover land use regulation, tax code and labor laws for the tribe.

The need to enact labor laws comes at a crucial time for the Crow Nation. Last August, the Crow legislature approved the Many Stars Project, a partnership between the tribe and Australian-American Energy Co. to develop the first coal to liquid plant in the United States.

The $7 billion project will bring 4,000 construction jobs to the reservation and 900 permanent positions once completed in 2016.

Conrad Edwards, president/CEO of CTER, said that many tribes are under the false assumption that they are protected by the Civil Rights Act of 1964 and other affirmative action laws, or they assume that personnel, corporate and/or casino policies offer enough protection to tribes and employees.

“The most that you can get out of those policies is maybe as far up to someone getting terminated. But mostly, it’s a slap on the wrist from management.”

In fact, tribes as sovereign nations are exempt from Title VII of the Civil Rights Act of 1964, which “prohibits discrimination by covered employers on the basis of race, color, religion, sex or national origin.”

Dan Press, general counsel to CTER and partner with Van Ness Feldman law firm in Washington, D.C., said that the EEOC would back off from trying to apply federal Title VII and other affirmative action laws to tribal jurisdictions if tribes enact their own laws.

“Tribal sovereignty is terrific, but tribes need to exercise it. If tribes do it great; if they don’t someone else will do it for them.”

About 20 tribes are working with CTER to implement TWPA legislation. The Lower Sioux Indian Community of Minnesota is the second tribe to adopt the legislation, Edwards said.

CTER was formed in 1977 and represents more than 300 tribes and Alaska Villages.