Indian Preference: It’s the Law
Harold A. Monteau
The Tribal Human Resource Department (HR) of a Theoretical Tribe advertises in nation-wide media and on its website that the position of Chief Judge is open and solicits application from qualified candidates. The position announcement also states that the position is subject to Tribal and Indian Preference. Theoretical Tribe is a “compacted” tribe under P.L. 93-638, the Indian Self-determination and Education Assistance Act, meaning it has “contracted” with the United States Government to perform a functions previously carried out by the U.S. Government.
The Theoretical Tribe receives the majority of its funding for the Judicial System under a contract with the BIA and supplements the Judicial budget using Tribal funds, mostly generated from its Indian Casino and Resort.
The Theoretical Tribe HR reviews all the applicants and determines that there are no “Tribal” applicants that meet the minimum qualifications but there are three non-Tribal “Indian” candidates that meet the minimum requirements. There is also one non-Indian Candidate that meets the minimum qualifications and, in fact, exceeds the qualifications of all the candidates. The HR invites the three Indian candidates and the non-Indian candidate for interviews. HR then destroys the application records of the other 5 candidates that were not determined to meet the minimum qualifications. (Thus assuring that any investigation by the Contracting Officer or the Inspector General will be very difficult).
A Hiring Committee conducts the interview along with the HR Director, the Tribal Administrator and the Tribal Attorney. They vote after the last interview to hire the non-Indian candidate. The record of their vote is transferred to the Theoretical Tribal Council who takes official action to hire the Non-Indian Candidate. The Tribe has a written policy and/or ordinance which gives qualified “Tribal” candidates first preference, the non-Indian Spouse of a Tribal Member second preference and the third preference to qualified members of other Tribes. Has this Tribe properly followed the law (Tribal and Federal) in hiring the non-Indian Candidate? The answer is a resounding “no”.
Theoretical Tribe has not only violated their own law but has violated Federal Law and has violated the provisions for Indian Preference in the language of the Compact or Contract they signed with the BIA under P.L. 93-638.
What should have happened?
Once HR had two or more “Indian” candidates that met the minimum qualifications, it should only have set interviews with the Indian Candidates and the Non-Indian candidate should have been kindly thanked for his application and invited to apply again for other positions for which he might be qualified. Theoretical Tribe should have then selected one of the interviewed Indian candidates for the position of Chief Judge. In fact, the Theoretical Tribe is not required by the law to interview the Non-Native applicant if two or more Indian candidates met the minimum qualifications.
Theoretical Tribe did not only violate the law this time but has been doing so for years. As a result, most of its top management and executive positions have been filled by Non-Indians. This includes Chief Judge, Associate Judge, Tribal Attorney, Chief of Police, Tribal Health Director, Clinical Director and its two principle staff members assisting the Tribal Chairman.
One of the Indian candidates calls the Tribal Employment Rights Office (TERO) to inquire as to how to file a complaint, only to find out the TERO Director is a Non-Indian. I’ll note at this point that Theoretical Tribe is not at all “theoretical”. It exists and is still engaged in violations of both its own law and Federal Law. Obviously the Tribal Attorney is well aware of the violations, but for some unknown reason has not advised the Tribe that it is violating Federal Law and Self-governance Compact provisions as well as Tribal Law.
In yet another Theoretical Tribe the TERO has engaged in an effort to “encourage” compliance with Buy Indian and Indian Preference requirements in the TERO Ordinance by the Management of the Casino and Resort operation of the Tribe. Management is saying it does practice Indian Preference and hires almost any “Tribal” member that applies. Non-tribal member Indians are treated the same as everyone else. Management also states that it also practices Indian Preference in bid solicitations for businesses from which they procure all the goods and services needed in the operation. When asked what the preference is, they cannot articulate it except to say that they try to identify Indian Owned procurement sources and they are “allowed” to bid, even encouraged. When asked what percentage of variation from the low bid that Indian Preference firms are granted, they respond that “it doesn’t work like that”. This Theoretical Tribe’s TERO has also discovered that Tribal Government Managers and Administrators, not only are ignoring the Indian Preference and Buy Indian requirements that are written into the very contracts they are administering, but, do not have a clue that they are breaking Federal Law and Tribal Law each time they either ignore these requirements or deliberately choose to violate these provisions. Their best explanation is that they have “always used that non-Indian company” or because it is “convenient” to simply keep awarding the contract to the same entity. They may also claim that TERO does not apply to them, which may or may not be true depending on how the language of the TERO Ordinance was written.
The above situation begs the question of compliance with Contract/Compact requirements the Tribe agreed to when it took over various functions from the Federal Government and made a “promise” that it would adhere to Indian Preference and Buy Indian.
Section 7(b) of the Indian Self-determination and Education Assistance Act (commonly referred to as “638”) requires that any contract or subcontract entered into pursuant to the Act, the Indian Reorganization Act (which is the source for “Buy Indian” requirements) and/or any other Act authorizing contracts with Indian organizations or for the benefit of Indians “shall” require that, to the greatest extent feasible: (a) Preferences and opportunities for training and employment in connections with the administration of such contracts shall be given to “Indians”, and (b) Preference in the award of subcontracts in connection with the administration of such contracts shall be given to Indian organizations and to “Indian-owned” economic enterprises as defined in Section 3 of the Indian Financing Act of 1974 (51% Indian Majority owned).
While it is understood that Tribes are sovereign governmental entities, which under “638” may enforce their own “tribal preference” requirements, such application of its own law cannot do away with the “Indian preference” requirements in its role as a “contractor” of Federal money appropriated for the benefit of Indians. In fact, the Tribe must negotiate with the Contract Officer the inclusion of “supplemental” “Tribal Preference” requirements. The supplemental requirements cannot defeat, and in fact must further, the Indian Preference and Buy Indian requirements of Federal Law.
While Federal Law encourages Self-determination and Self-governance by Indian Tribes, the Federal Funds that are utilized in working toward these objectives come with “strings” attached. Those “strings” require that Indian Preference and Buy Indian be a part of every contract and compact.
The Contracting Officers of the Federal Agencies contracting with the Tribes are mandated to enforce these provisions. The BIA and IHS Contracting Officers appear to be doing a “minimalist” approach to enforcement. Perhaps it is time for the Inspectors General of these departments to investigate whether these Federal Officials are either negligently ignoring the law or deliberately failing to enforce the law.
The failure to enforce Indian Preference and Buy Indian encourages “self-termination” instead of self-determination.
Perhaps it is time for Congressional hearings and/or a Congressional investigation as to why Federal and Tribal Officials are not enforcing the law.
Harold A. Monteau is a Chippewa Cree attorney who resides in Albuquerque, New Mexico, and was the chairman of the National Indian Gaming Commission in the Clinton administration. He can be reached at firstname.lastname@example.org.