TITLE 10 EMPLOYMENT AND CONTRACTING
CHAPTER 10-1 TRIBAL EMPLOYMENT RIGHTS
10-1-1 Declaration of Policy
As a guide to the interpretation and application of this Chapter, the public policy of the Confederated Tribes of the Colville Reservation is declared to be as follows:
Like land, water, and minerals, jobs, subcontracts, leases and contracts on or near the Colville Reservation are an important resource for Indian people and Indians must use their rights to obtain their rightful share of such opportunities as they become available. Indians have unique employment rights, subcontract and contract rights and the Colville Tribal Government has the inherent sovereign power to pass laws to implement and enforce those special rights on behalf of Indians. Indians are also entitled to the protection of the laws that the Federal Government has adopted to combat employment discrimination, and tribal governments can and should play a role in the enforcement of those laws. The Confederated Tribes of the Colville Reservation believes it is important to establish an employment rights program and office in order to optimize the aforementioned laws and powers to increase employment of Indian workers and businesses and to eradicate discrimination against Indians.
(a) "Employee" means any person employed for remuneration.
(b) "Employer" means any person, partnership, corporation, or other entity that employs, for wages, two or more employees.
(c) "Covered Employer" means any employer employing two or more employees who during who during any 20 day period spend, cumulatively, 16 or more hours performing work within the Colville Reservation lands and territories.
(d) "Entity" means any person, partnership, corporation, joint venture, government, governmental enterprise, or any other natural or artificial person or organization. The term "entity" is intended to be as broad and encompassing as possible to ensure this Chapter's jurisdiction, and the term shall be so interpreted by the Commission and the courts.
(e) "Council" means the Business Council of the Confederated Tribes of the Colville Reservation.
(f) "Commission" means the Colville Tribal Employment Rights Commission established by this Chapter.
(g) "Commercial Enterprise" means any activity by the Confederated Tribes of the Colville Reservation or of the federal or state governments that is not a traditional government function as defined by the Internal Revenue Service.
(h) "Indian Contractor" shall mean a firm which qualifies for Indian contract preference certification under this Chapter.
(i) "Indian" means any member of a federally-recognized Indian Tribe, Band, or Nation.
(j) "Local Indian" means any Indian who resides within the lands and territories of the Colville Reservation, or within thirty-five miles of said lands and territories; provided, that Indians residing on the Spokane Indian Reservation shall not be considered local Indians.
(k) "Director" means the director of the Tribal Employment Rights Office.
(l) "TERO" means the Tribal Employment Rights Office.
(m)"Covered Employer" means any employer employing two or more employees who during any 20 consecutive day period, spend, cumulatively, 16 or more hours performing work within the lands and territories of the Colville Reservation.
10-1-3 Indian Preference in Employment
All covered employers, for all employment occurring within the lands and territories of the Colville Reservation, shall give preference to Indians meeting threshold requirements of the job, with the first preference to local Indians, in all hiring, promotion, training, layoffs, and all other aspects of employment. Such employers shall comply with this Chapter and the rules, regulations, guidelines, and orders duly and lawfully adopted pursuant to it which set forth the specific obligations of employers in regard to Indian preference. This Chapter shall not apply to direct employment by the Confederated Tribes of the Colville Reservation, by the federal, state, or other governments or their subdivisions; provided, it shall apply to all contractors or grantees of such governments and to all proprietary or commercial enterprises operated by such governments; and provided further, it shall apply to all tribal governmental corporations organized under CTC Chapter 7-1, federal corporations organized under 25 USC 477 and any employment not covered by the Tribes' Plan of Operations.
10-1-4 Indian Preference in Contracting
All entities awarding contracts or subcontracts for supplies, services, labor and/or materials in an amount of $5,000 or more where the majority of the work on the contract or subcontract will occur within the lands and territories of the Colville Reservation, shall give preference in contracting and subcontracting to qualified entities that are certified by the Commission as 51% or more Indian owned and controlled. These requirements shall not apply to the award of contracts awarded directly by the Colville Business Council or by the federal or state government or their subdivisions and shall not apply to entities subject to the provisions of CTC Chapter 10-3. These requirements shall apply to all subcontracts awarded by a tribal, federal, or state direct contractor or grantee, whether or not the prime contract was subject to these requirements unless the subcontract is subject to the provisions of CTC Chapter 10-3. All covered entities shall comply with the rules, regulations, guidelines, and orders of the Commission which set forth the specific obligations of such entities in regard to Indian preference in contracting and subcontracting. The Commission by regulation shall establish a system for certifying firms as Indian preference eligible.
Any covered employer who has a collective bargaining agreement with one or more unions shall obtain written agreement from such union(s) stating that the union shall comply with Indian preference laws, and with this Chapter and rules, regulations and guidelines of the Confederated Tribes of the Colville Reservation. Such agreement shall be subject to the approval of the Director.
10-1-6 Commission; Members; Compensation: Quorum
(a) There is created a Colville Tribal Employment Rights Commission.
(b) The Commission shall be composed of four (4) appointed members, one residing in each reservation political district, and one alternate member. Commission members shall be appointed by the Colville Business Council. The Commission shall designate one of such commissioners as Commission chairman. Commissioners shall serve for a two year term.
(c) For carrying out their duties members of the Commission shall be entitled to receive, upon presentation of proper vouchers, such mileage and per diem payments as are in effect for members of the Colville Business Council. Such payments shall be limited by a budget approved by the Colville Business Council.
(d) Three Commissioners shall constitute a quorum to transact business. When a vacancy occurs in the Commission, the remaining members may exercise all the powers of the Commission until the vacancy is filled.
10-1-7 Powers of the Commission
The Commission has the full power, jurisdiction, and authority to:
(a) To carry out the provisions of this Chapter, and propose regulations pursuant to Chapter 2-4 of the Colville Tribal Code, and submit the proposals to the Colville Business Council for their action.
(b) Hold administrative hearings and issue findings and orders pursuant to CTC Chapter 2-4.
(c) To hear appeals from the actions of the Director.
10-1-8 Director; Qualifications; Staff; Duties
(a) The Colville Business Council shall have exclusive authority to appoint, direct, suspend, or remove the Director of the TERO Program, pursuant to Resolution # or Pursuant to the policies and procedures of the Colville Tribal Plan of Operations.
(b) The Director shall have such administrative ability, education, and training as the Council determines.
(c) The Director shall have the authority to hire staff, to expend funds appropriated by the Colville Business Council, and to obtain and expend funding from federal, state, or other sources to carry out the purposes of this Chapter, subject to approval by the Colville Business Council.
(d) The Director shall propose, recommend, draft, and administer the policies, authorities, and duties authorized by this Chapter and by the Commission.
10-1-9 Authority of Director
The Director shall have the authority to carry out the day-to-day operations of the TERO, to enforce this Chapter, to employ and supervise staff for the TERO pursuant to the tribal plan of operations, and such other authority as is convenient or necessary to the efficient administration of this Chapter.
(a) Assist the Commission to propose, adoption, amendment, and recision of rules, regulations, or guidelines.
(b) To assess sanctions pursuant to Section 10-1-15 and represent the TERO at hearings and appeals before the Commission, the Colville Business Council, and any court or other adjudicatory body.
10-1-10 Intergovernmental Relationships
The Commission acting by regulation not inconsistent with this Chapter is authorized to enter into cooperative relationships with federal employment rights agencies, such as Equal Employment Opportunity Commission (EEOC), and Office of Federal Contract Compliance Program (OFCCP), in order to eliminate discrimination against Indians on and off the Colville Reservation.
10-1-11 Employment Rights Fee
An employment rights fee, to pay for the operation of the Commission and the Tribal Employment Rights Office's services, is imposed as follows:
(a) Every covered employer with a construction contract in the sum of $5,000 or more shall pay a onetime fee of 2% of the total amount of the contract. Such fee shall be paid by the employer prior to commencing work on the Colville Reservation. However, where good cause is shown, the Director, with the approval of the Commission, may authorize a construction contractor to pay said fee in installments over the course of the contract.
(b) Every covered employer, other than construction contractors, with two (2) or more employees working on the Colville Reservation shall pay a quarterly fee of 2% of his employees quarterly payroll which shall be paid within 30 days after the end of each quarter. This fee shall not apply to educational, health, governmental, or nonprofit employers; however, it shall apply to all contracts let by educational, health, governmental or non-profit employers to non-educational, non-health, non-governmental, or for-profit employers.
(c) The Director shall be responsible for collecting said fees pursuant to any rules and regulations adopted by the Colville Business Council. Said fees shall be paid to the Colville tribal finance department and shall be credited to the TERO Administration line item in the general fund of the Confederated Tribes of the Colville Reservation.
Any person, group of persons, or organization including any employee of the TERO that believes any covered employer or entity, has violated any requirements imposed by this Chapter or regulations adopted under it may file a complaint with the TERO. The Complaint shall be in writing, shall be signed under oath by the Complainant, and shall provide such information as is necessary to enable the Director to carry out an investigation. The Director shall investigate every complaint filed. If upon investigation, the Director has reason to believe a violation of this Chapter or regulations adopted under it has occurred, and the TERO has jurisdiction over the complaint, the Director shall proceed pursuant to the provisions of Section 10-1-15. Within 20 days after receipt of the complaint, and on a regular basis thereafter, the Director shall provide the complaining party with a written report on the status of the complaint.
The Director, or any field compliance officer- employed by the Director, shall make such investigations as the Director or the Commission deems necessary to determine whether any covered employer or other covered entity has violated any provision of this Chapter or any rule or order hereunder, or to aid in prescribing rules, regulations, and guidelines hereunder. The Director or a field compliance officer may enter, during business hours, the place of business or employment of any employer for the purpose of such reports as the Director deems necessary to monitor compliance with the requirements of this Chapter or any rule of order hereunder.
10-1-14 Power to Require Testimony & Production of Records
For the purpose of investigations or hearings which, in the opinion of the Commission, are necessary and proper for the enforcement of this Chapter, the Commission may administer oaths or affirmation, subpoena witnesses, take evidence, and require, by citation, the production of books, papers, contracts, agreements, or other documents, records or information which the Commission deems relevant or material to the inquiry.
(a) When, after conducting an investigation, initiated by a complaint pursuant to Section 10-1-12 or a self-initiated investigation pursuant to Section 10-1-13, the Director has reason to believe a violation of this Chapter or regulations issued pursuant to it has occurred, the Director shall notify the covered employer or entity in writing specifying the alleged violations. The Director may withhold the name(s) of the complaining party only if there is clear and convincing reason to believe such party shall be subject to retaliation. The Director shall seek to achieve an informal settlement of the alleged violation. If no informal settlement is reached, the Director shall issue a formal Notice of Noncompliance, which shall also advise the covered employer or entity of all rights to appeal the Notice.
(b) The formal Notice shall set out in writing the nature of the alleged violation and the steps that must be taken to come into compliance. The Notice shall provide the employer or entity with a reasonable time, which in no event shall be less than five days from the date of receipt of such Notice, to comply. If the Director has reason to believe irreparable harm will occur during that period, the Director may require that compliance occur within fewer than five days. The Notice shall also state the range of penalties available to the TERO for the alleged violations. If the party fails or refuses to comply, the Director shall assess a penalty against the covered employer. The Notice shall contain a statement of the rights of the covered employer to appeal the penalty in a hearing before the Commission which shall be held in compliance with Chapter 2-4 of the Colville Tribal Code. If a party fails or refuses to comply with the Notice and does not request a hearing before the Commission, the Director may proceed pursuant to subsection 10-1-15(e).
(c) If the covered employer requests a hearing pursuant to subsection 10-1-15(b), and the Director can show that there is good cause to believe that there is a danger that the employer requesting the hearing will remove itself or its property from the jurisdiction of the Tribes prior to the hearing, the Director may request that the Commission require the covered employer post a bond with the Commission in an amount sufficient to cover possible monetary damages that may be assessed at the hearing. If the Commission orders that a bond be posted and the covered employer does not post the bond, the Director may proceed pursuant to subsection 10-1-15(e). The Director may also petition the Colville Tribal Court for such interim and injunctive relief as is appropriate to protect the rights of the TERO and other parties during the pendency of the complaint and hearing proceedings.
(d) Any hearing held pursuant to subsection 10-1-15(b) shall be conducted by the Commission. Conduct of the hearing shall be governed by Chapter 2-4 of the Colville Tribal Code. The Director shall have the burden of proof by the preponderance of the evidence that the covered employer has violated this Chapter or the regulations adopted under it.
(e) If after a hearing held pursuant to CTC Chapter 2-4, the Commission determines that the violation alleged by the Director occurred and that the party charged has no adequate defense in law or fact, or if no hearing is requested, the Commission may assess any or all of the following penalties against the covered employer; provided, that the Commission may not assess any penalty greater than that requested by the Director in the written Notice of Violation.
The Commission's decision shall be in writing, shall be served on the covered employer by registered mail, or in person, no later than thirty days after the close of the hearing provided in subsection 10-1-15(e). Where the party's failure to comply immediately with the Commission's orders may cause irreparable harm the Director may request that the Colville Tribal Court grant such injunctive relief as necessary to preserve the rights of the beneficiaries of this Chapter, pending any appeal or expiration of the time for appeal.
(a) An appeal to the Colville Tribal Court may be taken from any final order of the Commission by any party adversely affected thereby. Said appeal must be filed no later than 20 days after the party receives a copy of the Commission's decision. The appeal shall be conducted pursuant to the provisions of CTC Chapter 2-4 governing Colville Tribal Court appeals of the orders of an administrative body; provided, that where this Chapter applies a specific rule or procedure, the specific rule or procedure shall govern over the general rules set out in Chapter 2-4.
Any appeal must:
Except as provided below or in subsection 10-1-16(b), the order of the Commission shall abate pending the determination of the Colville Tribal Court. However, for good cause shown, any party to an order of the Commission may petition the Court for an order requiring the party requesting a hearing to post a bond sufficient to cover monetary costs or damages that the Commission assessed against a party, or to assure the party's compliance with other sanctions or remedial actions imposed by the Commission's Order. If the Order of the Commission is reversed or modified, the Court shall by its mandate specifically direct the Commission as to further action in the matter.
(b) If at any stage in the fee assessment enforcement process, the Director has good reason to believe there is a danger that a party will remove itself or its property from the jurisdiction of the Colville Tribal Court, such that the Commission or the Court will not be able to collect monetary damages or TERO fees that are: (a) owed pursuant to any outstanding order of the Director, Commission or Court; or (b) which may be owed if the charges set out in an outstanding Notice of Violation is upheld; the Director may petition the Colville Tribal Court pursuant to the rules and procedures of the Court to attach property to secure compliance or for such other relief as is necessary and appropriate to protect the rights of the TERO Commission and other affected parties.
10-1-17 Confiscation and Sale
(a) If, 21 days after a decision by the Commission pursuant to subsection 10-1-15(e) no appeal has been filed, or after a final decision by the Colville Tribal Courts on an appeal from a decision by the Commission a party has failed to pay monetary damages imposed on it or otherwise failed to comply with an order of the Commission or the Court, the Commission may petition the Court to order the Tribal police to seize, and hold for sale, such property of the party as is necessary to ensure payment of said monetary damages or to otherwise achieve compliance. Said petition shall be accompanied by a list of property belonging to the party which the Commission has reason to believe is within the jurisdiction of the Colville Tribal Court. If the Court finds the petition to be valid, it shall order the Tribal police to confiscate and hold said property or as much of it as is available and necessary to secure compliance. The Tribal police shall deliver in person or by certified mail, a Notice to the party informing it of the confiscation and of its right to redeem said property by coming into compliance with the order outstanding against it. If 30 days after confiscation the party has not come into compliance, the Court shall order the Chief of Police to sell said property and use the proceeds to pay any outstanding monetary damages imposed by the Commission and all costs incurred by the Court and police in the confiscation and sale. Any proceeds remaining shall be returned to the party from whom the property was confiscated.
(b) Where a covered employer has failed to pay monetary damages imposed on it as set out in Subsection 10-1-17(a) above, and the covered employer is owed funds by any entity within the jurisdiction of the Colville Tribes, the Director may petition the Colville Tribal Court to order that the above described funds be paid over to the registry of the Court and a hearing held to determine whether the above described funds may be paid to the Commission to pay the funds due and owing to the Commission. Upon finding that the Commission is owed unpaid funds, the Court may issue an order paying these funds out of the above described funds. Provided, that this section shall not be construed as a waiver of the sovereign immunity of any Colville tribal entity.
10-1-18 Indian Preference - General Provisions
The Colville Tribal Employment Rights Chapter requires the preferential employment of Indians and Indian-owned firms by all contract awarding entities and employers operating within the lands and territories of the Colville Reservation except as provided by this Chapter.
The obligation of all employers to comply with the Colville Tribal Employment Rights Chapter requirements shall be made known to all existing and future employers. All bid announcements issued by any Tribal, Federal, State, or other private or public entity for work-within the jurisdiction of the Confederated Tribes shall contain a statement that the successful bidder will be obligated to comply with these regulations and that a bidder may contact the TERO to obtain additional information. Those Tribal and other offices responsible for issuing business permits for the Reservation or otherwise engaged in activities involving contact with prospective employers on the Reservation shall be responsible for informing such prospective employers of their obligations under these Regulations.
10-1-20 General Requirements [RESERVED]
(a) Each covered employer or entity subject to the provisions of this Chapter shall submit to the Director an acceptable compliance utilization plan indicating how it will comply with this Chapter, before a covered employer or entity may commence work within the lands and territories of the Colville Reservation.
(b) A covered employer shall be required to establish hiring goals and timetables that specify the number of Indians a covered employer must hire, by craft or skill level.
(c) Each covered employer shall establish or participate in such training programs, as are determined appropriate by regulations under this Chapter in order to increase the pool of qualified Indian workers on the Colville Reservation.
(d) No covered employer may hire a non-Indian to fill a vacancy until the tribal hiring hall has certified that no qualified Indian is available to fill the vacancy or until 72 hours have passed from the date covered employer notified the Tribal hiring hall of the vacancy.
(e) No covered employer shall use qualification criteria or other personnel requirements as barriers to Indian employment unless the employer can demonstrate that such criteria or requirements are required by business necessity. In developing regulations to implement this requirement, the Commission shall follow the Equal Employment Opportunity Commission (EEOC), guidelines on these matters to the extent that they are appropriate. The Commission shall have the right to impose by regulation its own requirements in addition to or in lieu of EEOC guidelines when necessary to address unique qualification problems confronting Indians.
(f) Agreements with unions may be made to insure union compliance with this Chapter. Such agreements shall in no way constitute recognition or endorsement of any union.
(g) Impose contract and subcontract preference requirements, with a first preference to local Indian firms, and establish and operate a system for certifying firms as eligible for Indian preference and local Indian preferences.
10-1-21 Submission of Compliance Plan
Each covered employer, contractor, or subcontractor intending to engage in business activity on the reservation, prior to the time it commences work on the reservation, must submit a contracting, subcontracting, employment, and/or training plan to the TERO. Covered employers, contractors, or subcontractors shall not commence work on the reservation until an acceptable plan for implementing their obligations under this Chapter has been approved by the TERO.
(a)Employment and Training Plan
The employment and training plan shall show the number of man-hours, by craft and skill category, needed on the project. The employer shall also identify those persons it wishes to have approved as permanent and key employees and shall provide all data needed by the TERO to verify the status of those employees. All non-permanent key positions shall be subject to the Indian preference provisions of this Chapter unless the TERO has determined in writing that there is no qualified local or non-local Indian for that position. The plan shall also describe how the employer will participate in the Tribes' training programs.
(b) Contracting and Subcontracting Plan
A required contracting and subcontracting plan shall indicate all contracts and subcontracts that will be entered into and the projected dollar amounts thereof. If the entity has already selected a contractor or subcontractor to perform any contract or subcontract work, it shall list the name of that contractor or subcontractor and indicate whether or not it is a contractor or subcontractor certified as Indian preference eligible by the TERO. If the contractor or subcontractor is not certified as Indian preference eligible, the entity shall further indicate why each certified contractor or subcontractor, if any registered with the TERO, that was technically qualified to perform the work was not selected. The plan shall also indicate how the entity intends to comply with the contracting and subcontracting provisions of this Chapter when awarding all contracts and subcontracts not yet awarded at the time the plan is submitted.
(a)Tribal Hiring Hall
An employer may recruit and hire workers from whatever sources are available to him and by whatever process the employer so chooses, except as provided in subsection (b) the employer may not employ a non-local Indian or non-Indian until the employer has given the Colville Tribal Employment Rights Office 72 hours to locate and refer a qualified local or non-local Indian.
(b)Permanent and Key Employees
Prior to commencing work on the Colville Reservation a prospective employer and all contractor and subcontractors shall identify key, regular, permanent employees. Such key employees may be employed on the project whether or not they are local or non-local Indians. A regular, permanent employee is one who is and has been on the employer's or contractor's or subcontractor's annual payroll for a period of one year continuously, or is an owner of the firm. An employee who is hired on a project-by-project basis shall not be considered a key employee.
A key employee is one who is in a top supervisory position or performs a critical function such that an employer would risk likely financial damage or loss if that task were assigned to a person unknown to the employer. The fact that an employee had worked for the employer on previous projects shall not qualify that employee as a regular, permanent employee, provided that exceptions for superintendents and other key personnel who are not permanent, regular employees may be granted by the TERO Director on a case-by-case basis. Any employer or contractor filling vacant employment positions in its organization immediately prior to undertaking work pursuant to a contract to take place on the Colville Reservation shall set forth evidence acceptable to the TERO Director that its actions were not intended to circumvent these requirements. Upon its approval of each key or permanent regular employee requested by the employer, the TERO shall issue a permit to that worker.
(c) Work Permits
Any non-Indian or local non-local Indian found to be employed by a covered employer who does not have a valid work permit shall be summarily removed from the job and the employer shall be subject to such additional sanctions as are imposed by this Chapter or regulations under it. In imposing sanctions under this section, the Director shall consider such factors as:
No local Indian worker shall be terminated except for disciplinary or job abandonment reasons so long as a non-local Indian or non-Indian worker in the same craft is still employed. Further, if the employer lays off by crews, qualified local Indians shall be transferred to crews that will be retained, so long as there are non-local Indians or non-Indians in the same craft employed on the crews that are to be retained.
An employer, contractor, or subcontractor having a collective bargaining agreement with one or more labor unions must obtain written agreement from said unions indicating that they will comply with Indian preference requirements while working in the Colville Reservation. Specifically, the contractor may make initial job referral requests to the union. However, if the union does not have a qualified local Indian worker on any of its out-of-work lists, the union shall contact the TERO. If the TERO can identify a qualified local Indian worker, that worker shall be referred through the union hiring hall to the job site. The union may not refer a non-local or non-Indian until it has so contacted the TERO. Before referring the non-local Indian to the job site, the union shall request and the TERO shall issue a work permit for that worker.
No Indian worker shall be required to travel to a site off the reservation to be processed by the union hiring hall. Such processing shall be done off the reservation by telephone or mail.
Any Indian worker who does not wish to become a member of the union shall be granted a temporary permit for the duration of the project. Said worker shall pay all union dues but shall not be required to pay an initiation fee or contribute to standard benefits or programs from which they would derive no benefit.
(a) All covered employers shall participate in training programs to assist Indians become qualified in the various job classifications used by the employer. Employers engaged in construction shall participate in the Tribe's BAT certified training program or a union apprenticeship program, the Tribe shall make best effort to share the costs of such training programs but employers may also be required to share part of the cost. Employers with collective bargaining agreements with unions may use apprenticeship programs, so long as they obtain agreement from the unions to use only Indian apprentices on the project.
(b)Both the Tribe and the employer shall share the responsibility and cost of providing cultural synergy training for employers and employees. Employers may be required to integrate culturally appropriate employee assistance programs as necessary for the employer to retain Indian employees and for Indian employees to optimize all opportunities afforded by the enterprise or project specialized programs may be initiated by the employer or the Director but must be mutually agreed upon and beneficial to both the employees and employers.
10-1-24 Job Qualifications, Accommodation, Personnel Requirements, and Religious Accommodations
An employer may not use any job qualification criteria or personnel requirements which serve as barriers to the employment of Indians and which are not required by business necessity. The burden shall be on the employer to demonstrate that such criterion or requirement is required by business necessity. If the employer fails to meet this burden, it will be required to eliminate the criterion or personnel requirement at issue. Employers shall also make reasonable accommodation to the religious beliefs and cultural traditions of Indian workers. In implementing these requirements, the Commission shall be guided by the principles established by the EEOC Guidelines, particularly 29 CFR Parts 1604-1607, as amended. However, the Commission reserves the right to go beyond the EEOC principles in order to address employment barriers that are unique to Indians.
Where the Commission and employer are unable to reach agreement on the matters covered in this section, a hearing shall be held, as provided for in this Chapter. The TERO Director shall make a determination on the issues and shall order such actions as he deems necessary to bring the employer into compliance with this section. The employer may appeal the decision of the TERO Director under this Chapter.
The employer shall give local Indians preferential consideration for all promotion opportunities and shall encourage local Indians to seek such opportunities.
10-1-26 Summer Students
Local Indians shall be given preference in the hiring of summer student help. Local Indians shall include students whose permanent residence is within the lands of the Colville Tribes but who are temporarily away from the Reservation attending school; for this section only.
No employer shall punish, terminate, harass, or otherwise retaliate against any employee or person who has exercised his or her rights under this Chapter or has assisted another to do so. Further, any employer who harasses or abuses an employee of the TERO who is carrying on official duties under this Chapter may be removed from the reservation on Order of the Commission after an appropriate hearing. An employer shall be responsible for the actions of all of its employees, supervisory or otherwise, and for the action of its subcontractors and their employees in regard to prohibitions in this section.
If any employer is found responsible for retaliating against an employee or person who has exercised his or her rights under this Chapter, that employer will be required to pay Commission imposed fines and punitive damages, as deemed necessary to make the employee whole.
10-1-28 Counseling and Support Programs
The TERO, in conjunction with other Tribal and Federal offices, will provide counseling and other support services to Indians employed by covered employers to assist such Indians in retaining employment and assisting the employers in retaining Indians. Employers shall be required to cooperate with such counseling and support services.
10-1-29 Indian Preference In Contracting and Subcontracting
Every entity engaged in any business activity within the reservation, including, but not limited to, construction, minerals development, supplies, service, recreation enterprises, and retail, shall give preference to firms certified by the Tribe under this Chapter in any contract or subcontract to be awarded by it, so long as 50% or more of said contract or subcontract is to be performed on the reservation and so long as there are certified firms that are technically qualified and willing to perform the work at reasonable prices. If the entity determines that certified firms lack the qualifications to perform all of the work required under a contract or subcontract, the entity shall make a good faith effort to divide the work required into small portions so that certified firms can qualify for a portion of work.
(b) Order of Preference
The following order of preference shall apply to the award of contracts and subcontracts:
First preference shall be given to Indian preference certified firms, 51% or more of which are owned by local Indians.
If no first priority are available, preference shall be given to other Indian preference certified firms, 51% owned by other Indians.
If no Indian preference certified firms are available, Indian/non-Indian joint ventures approved by the TERO shall be given preference over wholly-non Indian owned firms or joint ventures.
(c) List of Certified Firms
An entity may obtain a list of firms certified as Indian preference eligible from the TERO office. The TERO shall identify such firms according to the order of preference set out in subsection 10-1-29 (b) of this section.
Provided, that if any requirement of these Regulations is inconsistent with the requirements of a Federal Law or regulations, the latter shall take precedence. As used in this Chapter, the terms "contract" and "subcontract" apply to all contracts, including, but not limited to, contracts for construction, supplies, services, and equipment regardless of tier unless exempted under this Chapter.
10-1-30 Responsibility for Compliance
The entity engaged in business activity shall be responsible for the compliance of all its contractors and subcontractors with these regulations. Specifically:
The entity awarding the prime construction contract shall be responsible for compliance with the requirement that preference be given in the award of the prime contract and for ensuring that the prime contractor is in compliance with the requirement that preference be given in the selection of subcontractors, provided, that when the prime contract is awarded directly by an Agency of the United States Government, the prime contractor shall be the responsible entity. Provided further, that where the entity is an Indian Housing Authority, it shall not be subject to any monetary sanctions and shall be exempt from any requirements of these Regulations that are inconsistent with the Department of Housing and Urban Development's Indian Preference regulations.
(b) Natural Resource Development (Oil, Gas, Hard Rock Minerals, Timber etc.)
The entity obtaining the authorization from the Tribes to engage in development activities on the reservation shall be responsible for compliance with this Chapter by all of its contractors and subcontractors.
(c) Direct Federal Contracts
These regulations do not apply to the award of direct prime contracts by a federal agency. However, the selected contractor shall be required to comply fully with all subcontract preference requirements.
10-1-31 Requirements in Contracting
Preference shall be given to certified firms in the award of all contracts. An entity may select its contractor in any manner or procedure it so chooses. Provided that:
(a) Competitive Award
If the entity uses competitive bidding or proposals, competition shall be limited to certified firms. If the entity is unsure if there are any qualified certified firms, it may first publish a prior invitation for certified firms to submit a Statement of Intent to respond to such a limited advertisement when published and to furnish, with the Statement of Intent, evidence sufficient to establish their technical qualifications. If the entity fails to receive any Statement of Intent from a technically/qualified certified firm; it may, after so notifying the TERO, advertise for bids or proposals without limiting competition to certified firms and may award to the low bidder. If only one certified firm submits a bid or Statement of Intent, the entity (unless otherwise prohibited by a federal law or regulation) shall award the contract to that firm so long as the firm is technically qualified and is willing to perform the work at a reasonable price.
(b) Negotiated Award
If the entity selects its contractor through negotiations or other informal process, it may not enter into a contract with a non-certified firm unless it has contacted every certified firm in the relevant field and has determined that there is no certified firm available that is technically qualified to perform the work required at a reasonable price. So long as a certified firm meets the minimum threshold qualifications, no non-certified firm may be selected.
10-1-32 Requirements in Subcontracting
(a) General Requirement
Preference shall be given in the award of all subcontracts to certified firms. The contractor may select its subcontractor in any manner it so chooses. Provided that:
If the contractor uses competitive bidding or proposals, competition shall be limited to certified firms. If the contractor is unsure if there are any qualified certified firms, it may first publish a prior invitation for certified firms to submit a Statement of Intent to respond to such a limited advertisement when published and to furnish, with the technical qualifications. If the contractor fails to receive any, after so notifying the TERO, it may advertise for bids or proposals without limiting competition to certified firms and may award to the low bid. If only one certified firm submits a bid or Statement of Intent, the contractor shall enter into negotiations with that firm and shall award the contract to that firm so long as the firm is technically qualified and is willing to perform the work at a reasonable price. If the contractor selects its subcontractor through negotiations or other informal process, it may not enter into a contract with a non-certified firm unless it has contacted every certified firm in the relevant field and has determined that there is not a certified firm available that is technically qualified to perform the work required at a reasonable price. So long as a certified firm meets the minimum threshold qualifications, no non-certified firm may be selected.
(b) Special Requirements
Entities awarding construction contracts shall comply with the following special requirements in the award of subcontracts:
10-1-33 Responsibility for Evaluating Technical Qualifications and Reasonable Price
The Entity and its contractors and subcontractors shall have the discretion to determine technical qualifications. However, if the entity determines that there are no certified firms that are technically qualified, the entity must provide to each certified firm it rejects a description, in writing, of areas in which it believes the firm is weak and steps it could take to upgrade its qualifications. If a certified firm that was disqualified on the grounds of technical qualifications believes that the disqualification was the result of an improper effort by an entity, contractor, or subcontractor, to circumvent its preference responsibilities under this Chapter, it may file a complaint with the TERO. Said complaint shall be filed within 20 days after the firm was notified of its non-qualification. The burden shall be on the complaining firm to demonstrate (a) It IS qualified, and (b) its disqualification was the result of an effort to circumvent this Chapter. If after a hearing, the complaint is found to be valid, the Commission shall impose such sanctions as deemed appropriate, including punitive damages.
(b) Reasonable Price
An entity may use any process it so chooses for determining what constitutes a reasonable price including, but not limited to, competitive bidding (open or closed), private negotiations, or the establishment of a prototype cost ceiling before bidding or negotiations commence. However, before an entity may reject all certified firms on the basis of price, it must offer one or more of the certified firms an opportunity to negotiate price. If there is only one technically qualified certified firm, an entity must enter into negotiations on price with such firm and must contract with that firm if a reasonable price can be negotiated. No entity may reject a certified firm contract with a non-certified firm at the same or higher price. Any contract modification in price that is justified is not a circumvention of this section. Any entity found to have violated this requirement by such circumvention shall be liable for treble damages for any losses suffered by a certified firm as a result of the entity's actions.
10-1-34 Operation of the Contract of Subcontract
Once an entity enters into a contract with a certified firm, the TERO will not intervene in any way in the relationship between the parties unless a certified firm demonstrates that action taken against it is intended primarily to circumvent the requirements of this Chapter.
10-1-35 Brokering and Fronts
No Indian firm shall represent that it is exercising management control of a project in order to qualify for Indian preference in the award of said contract or subcontract when in fact such management control is exercised by a non-Indian entity such that the Indian entity is acting as a front or brokering out services.
10-1-36 Certifying Firms As Indian Preference Eligible
Pursuant to its sovereign authority, the Confederated Tribes of the Colville Reservation has imposed Indian contract preference requirements as one tool for promoting the economic development of the reservation. When used properly, Indian preference in contracting can assist in the development of Indian businesses and thereby assist the Tribes and its members to achieve economic self-sufficiency. However, if the preference is abused, it will undermine this development and discredit the preference tool. Because of this, it is the policy of the Tribes to require that an applicant for Indian contract preference certification provide rigorous proof that it is a legitimate Indian-owned and controlled firm.
In evaluating an applicant, a number of specific criteria will apply. However, experience has shown that persons interested in abusing the Indian preference program are able to structure firms to get around most specific criteria. Therefore, in addition to applying the specific criteria, the reviewing body for the Tribe will evaluate a firm under the following general criterion: applying sound management principles, would the firm have been structured in the manner it is, and would the Indian owners have been given the amount of ownership and control they have been given, if there were no Indian preference program in existence? If the TERO determines that it has good reason to believe that the firm has been structured (managerially or financially) in a manner that is convoluted or inconsistent with sound business practices in order to enable the firm to qualify for Indian preference certification, the firm will be denied such certification, even if it meets the specific criteria, unless the firm is able to demonstrate beyond a reasonable doubt that it was not structured to manipulate the Indian preference criteria. The specific criteria also require that the ownership, control, and management arrangements of a firm make sense and Indian owner control 51% or more of the firm. One primary consideration in applying this criterion will be what the Indian owner(s) brought to the firm in consideration for the percentage of their ownership; and would sound business practice justify giving them the share shown on the organizational documents, were Indian preference not a consideration. For example, assume the Indian owner paid for his 51% share through a promissory note to the non-Indian owners. In the ordinary course of business, such a transaction would not occur unless the new owner brought something of value, such as managerial or technical expertise, capital, and equipment, or marketing opportunities. (The ability to qualify for Indian preference is not considered such a marketing opportunity.) Therefore, such an arrangement would be denied Indian preference certification unless some other sound business reason for the arrangement could be demonstrated.
The Indian owner(s) must be directly involved in the firm's management. While it is not required that the Indian owner(s) be the Chief Operating Officer of the firm, at least one of the Indian owners will have to be involved in the day-to-day operations of the firm on a full-time basis and in a senior level position. The Indian person(s) in this position must have the experience or expertise in the area of business the firm is engaged in (or in management generally) to make the senior level role a legitimate one. The Indian owner(s) must also have sufficient knowledge about the firm to be accountable for the firm's activities.
Certification will not be granted to a firm where one or more of the Indian owners are not involved in the day-to-day operations of the firm in the manner described above. There is virtually no benefit to the Indian community form such passive ownership. The limited two exceptions to this rule is that certification will be granted to 100% Indian-owned firms where the managers of the business is a non-Indian spouse of an Indian-and the family lives on or near the reservation. No effort will be made to distinguish between the-value contributed by a non-Indian spouse versus the Indian spouse. The family's contribution will be treated as an undivided unit. The second exception is for a more "public corporation," defined as one that is owned by 10 or more persons, 70% of which is Indian-owned, and where the Chief Executive Officer is an Indian. Joint ventures will not be granted certification as Indian preference firms. However, an Indian/non-Indian joint venture will be given preference over non-Indian firms if there is no certified Indian preference unitary firm available.
Such rigorous criteria, giving substantial discretion to the reviewing body, are necessary and appropriate for the Indian contract preference program. Neither the Tribe not the Indian community benefits from the establishment of "bogus" Indian firms, while the certification of such firms undercuts credibility of the Tribe's Indian preference program. An Indian firm or individual that is unable, on its own, to qualify as the prime contractor on a large project has other options open to it besides participating in the development of a bogus firm. For example, he or she can seek work at the subcontractor or employee level and benefit from the Tribe's requirement that preference be given to Indian subcontractors and employees. The procedural requirements for certification provide that applications shall be reviewed by the staff of the Tribe's Tribal Employment Rights Office (TERO), which shall request any additional information it believes appropriate. It will then rule on the application. The Commission shall hear any appeals from such rulings and review the application and findings, interview the principals of the firm, request additional information as appropriate, and then make a determination on whether certification should be granted. The firm will have a right of appeal to the Colville Tribal Court, which shall reverse the decision only if it finds the decision was arbitrary or capricious.
A firm shall first receive a probationary certification, to be made finial at the end of one year; or a longer period where the TERO believes such is necessary. The TERO shall have the right, at any time, either on their own initiative or upon the-filing of a complaint by any party, to conduct an investigation of a firm to determine-if its certification should be suspended or withdrawn. The TERO shall require new applications from firms that had been certified by the Tribe prior to the adoption of these criteria. If it is determined that a firm does not qualify under the new criteria, the firm will be given four months to come into compliance with the new criteria. If it fails to do so by the end of that period, its certification shall be withdrawn
10-1-37 Criteria for Indian Contract Preference Certification
To receive certification as a firm eligible for Indian preference, an applicant must satisfy all of the criteria set out in this section.
The firm must be 51% or more Indian-owned. The applicant must demonstrate the following:
Where the Indian participant can demonstrate that he or she could not pay good value for his or her 51% or more Indian ownership because the normal capital sources were closed to him or her because he or she is an Indian, that person may satisfy this requirement by demonstrating further that he or she extended his or her capital raising capability as far as possible, such that the Indian participant clearly is at risk in the business in relationship to his or her means.
(b) Management Control
The firm must be under significant Indian management and control. The firm must be able to demonstrate that:
2. No joint ventures will be certified. However, an Indian/non-Indian joint venture that otherwise satisfies the requirements of these criteria shall be given preference over wholly non-Indian firms when no certified Indian firm is available.
(c) Integrity of Structure
There must be good reason to believe that the firm was not--established solely or primarily to take advantage of the Indian preference program. In evaluating an applicant under this criterion the TERO will consider the factors set out below. The TERO shall exercise broad discretion in applying these criteria in order to preserve the integrity of the Indian preference program and in questionable cases shall deny certification.
1. History of the FirmWhether the history of the firm provides reason to believe it was established primarily to take advantage of the Indian preference program, and in particular whether the firm, a portion of the firm, or key actors in the firm originally were associated with a non-Indian-owned business that gained little of business value in terms of capital, expertise, equipment, etc., by adding ownership or by merging with an Indian firm.
2. EmployeesWhether key non-Indian employees of the applicant are former employees of a non-Indian firm with which the Indian firm is or has been affiliated, through a joint venture or other arrangement, such that there is reason to believe the non-Indian firm is controlling the applicant. Whether Indians are employed in all or most of the positions for which qualified Indians are available. A high percentage of non-Indian employees in such positions will provide reason to believe the firm was established primarily to benefit non-Indians.
3. Relative Experience and ResourcesWhether the experience, expertise, resources, etc., of the non-Indian partner(s) is so much greater than that of the Indian(s) that there is little sound business reason for the non-Indian to accept a junior role in the firm or-venture other than to be able to take advantage of the Indian preference program.
Brokers will be certified only if they are dealers who own, operate, or maintain a store, warehouse, or other establishment in which the commodities being supplied are bought, kept in stock, and sold to the public in the usual course of business; Provided, that this requirement shall not apply where the applicant demonstrates that it is customary and usual in the establishment and to keep the commodities in stock.
10-1-38 Certification Procedures
(a) Application for Certification
A firm seeking certification as an Indian preference eligible firm shall submit a completed application to the TERO on a form provided by TERO. TERO staff will be available to assist a firm in filling out the application. Within 21 days after receipt of a completed application, the staff shall review the application, request such additional information as it believes appropriate (computation of the 21-day period shall be stayed during the time any request for additional information is outstanding), conduct such investigations as it deems appropriate, and make a final written finding to certify or not to certify. The TERO may extend the processing period by an additional 21 days, by sending notification of the extension to the applicant by registered mail. Within 15 days of receipt of the TERO'S analysis and finding the applicant may request a hearing before the Commission on the application to appeal any part of the finding. The Indian principal(s) of the firm shall be present at the hearing. In addition, any person wishing to present information to the Commission shall be entitled to do so, by requesting, no less than one day prior to the hearing, an opportunity to participate. Hearings shall be conducted as provided for in CTC Chapter 2-4.
(b) Probationary Certification
An applicant granted certification shall be issued a one-year probationary certificate. During that period, the TERO staff and the Commission shall monitor the firm's activities to ensure that the firm is operating in the manner described in its application. During the probationary period, the TERO and the Commission shall have the right to request and receive such information and documents as they deem appropriate.
(c) Final Certification
At the end of any probationary period the TERO, after receiving recommendations form the TERO staff, shall either:
(d) Withdrawal of Certification
From the information provided in any required reports,, on the basis of a written grievance filed by any other firm or person, or on its own initiative, the TERO may initiate proceedings to withdraw or suspend the certification of any firm. The TERO shall prepare an analysis and finding and prior to making a finding shall send the firm notice, by registered mail, that its certification is being examined, along with the grounds therefore. A firm may appeal any finding of withdrawal or suspension of certification to the Commission which will hold a hearing, at which the TERO shall have the burden of proof by the preponderance of the evidence, to determine whether the withdrawal or suspension is justified. At the hearing, the TERO staff shall present the case for suspension or withdrawal, and the hearing shall be conducted. After the hearing, the Commission may:
(e) Firms Certified Prior to the Adoption of These Criteria
Each firm holding Indian preference certification from the Tribes prior to the effective date of this Chapter shall submit an application required under these criteria to the TERO within 30 days after the effective date of this Chapter. If the TERO determines that the firm qualifies under these new criteria, it shall, within 21 days of receipt of the application, so find. Should the TERO require additional information from the firm, computation of the 21-day period shall be stayed by written notice from the TERO for a reasonable time to permit such information to be provided. If the TERO finds that certification is denied, the firm may appeal to the Commission as set out above.
(f) Change in Status and Annual Reports
Each certified firm shall report to the TERO, in writing, any changes in its ownership or control status within 60 days after such changes have occurred. Each certified firm, on the anniversary of its receipt of permanent certification, shall update the information provided in this initial application on an Annual Report form provided by the TERO. Failure to provide information pursuant to these requirements shall constitute grounds without move for withdrawal of certification.
10-1-39 Provision for Collection of Fees
Except as provided in Section 10-1-40, all fees are due and shall be paid in full by any covered employer prior to his or her commencing work within the lands and territories of the Colville Reservation, unless other arrangements are agreed to, in writing, by the Director. Immediately upon becoming aware that a covered employer is intending to engage in work on the reservation, the Director shall mail to said employer by registered mail, a notice informing him of the nature and purpose of the fee, the percentage, the specific amount due, if known, the date due, and the possible consequences if the employer fails to comply. Said notice shall be accompanied by formal notice of fees due. If the employer fails to pay the fee by the day it commences work within the lands and territories of the Colville Reservation, interest shall begin accruing on the date at the rate of 10% per annum. Further, following the day on which the employer commences work, the Director shall send a notice to the employer by registered mail, informing him that his payment is overdue and of the consequences that will result if the tax is not paid immediately.
If the fee is not paid by the 15th day after the employer commenced work, the Director shall file a formal charge of noncompliance, and shall schedule a Commission hearing to be held in five days or as soon thereafter as the Commission can meet, and shall inform the employer of the scheduled hearing.
At the hearing, to be held whether or not the employer attends, the Commission shall determine whether or not the employer has failed to comply. IF it finds noncompliance, it shall:
(a) Impose penalties of up to ten percent of amount due.
(b) Petition the Colville Tribal Court to uphold the decision of the Commission and to enforce it through forfeiture proceedings.
Where the Director or the Commission has reasonable cause to believe that an employer will flee the jurisdiction before the procedures set out above can be completed, this may apply to any of the procedures provided in this Chapter, not withstanding the above procedures.
10-1-40 Employers with a Permanent Place of Business within the lands and territories of the Colville Reservation
An employer that the Director determines will have a permanent place of business within the lands and territories of the Colville Reservation shall pay the fee pursuant to the following procedures:
(a) On April 15, July 15, October 15, and January 15, the employer shall submit, on a form provided by the Director, information showing his total payroll for the previous quarter, accompanied by a check for an amount equal to 1/2 of 1% of the payroll for the quarter.
(b) The Director, upon receipt of a written request may authorize, in writing, an employer to submit the information and payments on a quarterly schedule other than the one set out in subsection "a", when doing so would make the schedule compatible with the employer's fiscal year structure.
10-1-41 Alternative Arrangement
The Director, upon receipt of a written request, shall authorize an employer to pay the required fees in installments over the course of the year of the contract, as appropriate, when:
(a) The total annual fee exceeds $10,000, or
(b) The employer demonstrates hardship or other good cause.
The employer shall pay interest, at the prime rate, on all amounts paid after the day he commences work within the lands and territories of the Colville Reservation when paying under an alternative arrangement.
10-1-42 Reports and Monitoring
All entities engaged in any aspect of business activity on the reservation shall submit reports and such other information as is requested by the TERO. Employees of the TERO shall have the right to make on-site inspections during regular working hours in order to monitor an entity's compliance with these Regulations. When a bona fide investigation is underway based on a complaint, employees of the TERO shall have the right to inspect and copy all relevant records of an entity, of the entity's signatory unions or subcontracts, to speak with workers on the job site, and to engage in similar investigatory activities. Workers shall not be compelled to speak with or not speak with TERO investigators. All information collected by the TERO shall be kept confidential, unless disclosure is required during a hearing or appeal as provided for in this Chapter.
10-1-43 Individual Complaint Procedures
(a) Non-Compliance by an Entity
Any Indian, group of Indians, representatives of a class of Indians, certified firm, or group of certified firms, who believe that they have been denied applicable preference due to the failure of an entity to comply with this Chapter, or who believe that they have been discriminated against by a covered entity because they are Indian may file a complaint with the TERO. Indians and certified firms may file whether or not they can show that they were personally harmed by the entity's non-compliance.
(b) Non-Compliance by the TERO
Any entity, group of entities, non-certified firms, group of non-certified firms, non-Indian worker, group of non-Indian workers or other person or entity who believes that an action of the TERO Office under this Chapter is in violation of this Chapter, or regulations adopted under it, the Colville Tribal Code, or Federal law or regulation may file a complaint with the TERO Commission. Persons may file whether or not they can show they were personally harmed by the TERO's action. A hearing on such complaint shall be heard pursuant to CTC Chapter 2-4 at which the complainant shall have the burden of proof by preponderance of the evidence.
10-1-44 Compliance and Hearing Procedures
(a) Informal Settlement
If, based on a complaint filed pursuant to 10-1-43 or on its own information, the TERO has reason to believe that an entity covered by these Regulations has failed to comply with any of these requirements, the TERO shall so notify the entity in writing, specifying the alleged violations(s). If the party so notified is a contractor or subcontractor, notice shall also be provided to the entity holding the permit or authorization under which the contractor or subcontractor is operating, and such entity shall be a party to all further negotiations, hearing, and appeals. The TERO shall then conduct an investigation of the charge and shall attempt to achieve an informal settlement of the matter. If voluntary conciliation cannot be achieved and the Director has reasonable cause to believe a party has violated this Chapter or Regulations, the Director shall proceed with the enforcement procedures as set out in this Chapter.
(b) Procedures for Hearing
All hearings before the Commission shall-be governed by CTC Chapter 2-4.
The Director or the Commission may impose any or all of the following sanctions where it finds a violation of this Chapter or Regulations, pursuant to the procedures set out in this Chapter. If after the hearing, the Commission determines that the violation alleged in subsection (a) occurred or if no hearing is requested,the Commission may:
(a) Deny such party the right to commence business within the lands and territories of the Colville Reservation;
(b) Impose a civil remedial penalty on such party in an amount not to exceed $500 for each violation;
(c) Suspend such party's operation within the lands and territories of the Colville Indian Reservation.
(d) Terminate such party's operation within the lands and territories of the Colville Indian Reservation.
(e) Deny the right of such party to conduct an further business within the lands and territories of the Colville Indian Reservation;
(f) Order such party to make payment of back pay to any aggrieved Indian;
(g) Order such party to dismiss any employees hired in violation of the Confederated Tribes of the Colville Reservation employment rights requirements.
(h) Order the party to take such other action as is necessary to ensure compliance with this or to remedy any harm caused by a violation of this Chapter. The Commission's decision shall be in writing, shall be served on the charged party by registered mail or in person, and shall be submitted no later than thirty days after the close of the hearing. Where the party's failure to comply immediately with the Commission's orders may cause irreparable harm, the Director may move the Colville Tribal Court for, and the Colville Tribal Court may grant, such injunctive relief as is necessary to preserve the rights of the beneficiaries of this Chapter, pending the party's appeal or expiration of the time for appeal.
Any entity or complaining party shall have the rights to appeal any decision of the Commission to the Colville Tribal Court, pursuant to the procedures set out in CTC Chapter 2-4.
The Director may request that an entity post a bond with the Commission pending a hearing before the Commission, and may petition the Court to require an employer to post a bond pending an appeal to the court from a decision of the Commission, upon making a written finding that any of the conditions set out below exists. The entity:
(a) has no permanent place of business within the lands and territories of the Colville Indian Reservation;
(b) the amount of the sanctions exceeds or likely will exceed $1,000; and
(c) the project on which the entity is employed will be substantially completed with 60 days, such that it may be difficult to locate property of said employer on the reservation that would be available for attachment or confiscation if the entity fails to pay any sanction imposed on it; or
(d) the entity has failed to comply with an order of the Commission or the Courts in the past, and the employer has engaged in behavior that demonstrates a blatant disregard for the authority and requirements of the Commission, such that the Director or Commission good reason to believe the entity will not comply with the orders of the Commission and/or the Court.
The Director may petition the court for attachment of property of an entity, pursuant to this Chapter, when it finds that any one of the conditions set out below exists:
(a) An entity has refused or failed to post a bond after being so ordered to do so by the Director, Commission, or Court;
(b) The Commission has good reason to believe that the entity will remove itself or its property from the jurisdiction of the Colville Tribal Employment Rights before it can complete its effort to require the entity to comply with this Chapter; or
(c) The entity has demonstrated, through its behavior an intent to disregard the requirements and orders of the Director, Commission, and/or Court.
10-1-49 Irreparable Harm
A finding of irreparable harm, such that the Director, pursuant or the Commission may petition the Court for injunctive relief, shall be made only upon a showing that damage will occur that cannot be adequately remedied through the payment of monetary damages. Such a showing shall include but is not limited to the following:
(a) That a contract or subcontract is about to or has begun work on a contractor or subcontractor entered into in violation of the provisions of this Chapter requiring contract or subcontract preference, when there is none or more Indian firms available to perform said contract or subcontract, since it is impossible to measure in monetary terms the damages suffered by an Indian firm's failure to obtain a contract or subcontract.
(b) An entity or its subcontractors is about to or has hired four or more persons in violation of the provisions of this Chapter requiring Indian employment preference, and there are Indians available to fill those positions, since it is difficult to identify the specific Indians who would fill those positions once the number of positions at issue is four or greater, making the payment of back pay difficult to achieve.
(c) An entity refuses to submit a preference plan in the time required an indicates through words or action that it intends to disregard the requirements imposed by this Chapter.
10-1-50 Pre-Hearing Procedures
(a) Review of TERO Files
The respondent (the employer or entity against whom a charge has been filed) shall have the right to review the case file of the TERO Director (the Director) by scheduling a visit to the TERO Office during regular working hours at any point after receiving notice of a hearing. However, the Director shall have the right to "sanitize" any portion of the file to protect confidential information. The file shall be sanitized in a manner that causes loss of the least amount of relevant information form the files.
(b) List of Witnesses
Ten (10) days prior to the hearing (or as soon as possible if the hearing is to be held within ten (10) days after notice), the respondent and the Director shall submit to the Commission Chairperson, a list of witnesses each intends to call at the hearing, the approximate length of their testimony, and the subject matter and relevance of their testimony. It shall indicate any witnesses that must be-subpoenaed. The Commission shall then issue the subpoenas.
(c) Pre-Hearing Interviews of Witnesses
The respondent and the Director shall have the right to interview the witnesses of the other party, prior to the hearing. The Director's witnesses shall be interviewed in the presence of the Director or his delegate. The respondent's witnesses shall be interviewed under such reasonable conditions as are established by the respondent. Either party may appeal to the Chairman of the Commission if cooperation is not forthcoming on this matter and the Chairman is empowered to require such steps as are necessary to resolve the problem.
(d) Subpoenas of Documents and Things
The respondent shall, no later than ten (10) days prior to the hearing (or as soon as possible if the hearing is noticed less than before the hearing) provide the Director with a list of items it wishes to have subpoenaed and the relevance of each. The Director shall obtain subpoenas for all relevant items listed as well as items needed by the Director. Any disputes shall be brought to the Chairman of the Commission who shall resolve such disputes.
Any request for a postponement of the hearing must be submitted in writing to the Chairperson of the Commission no fewer that three (3) days prior to the hearing. However, if the Director and respondent mutually submit a request for a postponement because there is a possibility of settling the matter, the request for a postponement may be submitted at any time.
10-1-51 Conduct of the Hearing
(a) Presiding Officer
As presiding official, the Chairperson of the Tribal Employment Rights Commission will control the proceedings. He or she will take whatever action is necessary to insure an equitable, orderly, and expeditious hearing. Parties will abide by the presiding official's ruling. The presiding official has the authority, among others, to:
The TERO Director shall represent the TERO on all charges filed by or against it, even if the charge was initiated by a complaint filed by a private individual.
The respondent shall be present for the entire hearing and he/she and his/her representative shall represent him during the proceedings.
Either party may have an attorney present as an advisor.
(e) Recording of the Hearing
The Commission shall have the hearing tape recorded in full and shall retain the tape(s) for no less than one (13 year after the hearing. The respondent shall also be permitted to tape the hearing.
(f)Prohibition Against Reprisals
All parties shall have a right to testify on their own behalf, without fear of reprisal.
10-1-52 The Decision
The Decision shall be in writing and issued within 30 days after the hearing. The decision shall consist of at least the following parts, in the following order:
(a) The facts.
(b) The finding with the legal and factual basis for the finding.
(c) The orders and/or sanctions imposed, if any.
(d) Information on the respondent's right to appeal.
(e) Information on the authority of the Commission to act if the party fails to comply with its orders or fails to appeal, and
(f) The injunctive of bonding requirements, if any, that the Commission will seek from the Court pending the completion of the appeal if an appeal is filed, or the running of the time for the appeal if no appeal is filed.