JANUARY 2009 CROW TRIBAL LEGISLATURE

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BILL NO. CLB09- 01

INTRODUCED BY CARL E. VENNE, CHAIRMAN

CROW TRIBAL EXECUTIVE BRANCH

A BILL FOR AN ACT ENTITLED:

"AN ACT TO ESTABLISH A CROW NATION WORKFORCE PROTECTION ACT"

WHEREAS, the Crow Nation has the inherent sovereign right to promote, regulate and

enforce employment laws for the benefit of its members and all. employees with tribal

jurisdiction; and

WHEREAS, increased employment and training opportunities for members of the Crow

Nation will improve economic conditions on the Crow Reservation and advance important self

governance interests; and

WHEREAS, the Crow Nation has an interest in prohibiting discrimination in

employment, prote<;ting employees' wages, providing leave for family, medical, and cultural

events, and protecting employees' health and safety; and

WHEREAS, the Crow Nation recognizes the importance of tribal employment, and

thereby recognizes the Crow Tribal Employment Rights Office to implement and enforce all

tribal employment laws; and

WHEREAS, the interests of the Crow Nation and all· employees within tribal jurisdiction

will be served by adopting a Workforce Protection Act,

NOW, THEREFORE, BE IT ENACTED BY THE CROW TRIBAL LEGISLATURE:

Section 1.

That Resolutions 92-27,2000-52 and CLB02-24 are hereby rescinded.

Section 2.

That the Act attached hereto and incorporated herein by reference, is

approved and shall be codified in the Crow Law and Order Code by adding Title 17, Crow Tribal

Self-Government - Employment and Contracting.

Section 3.

Upon enactment by the Crow Tribal Legislature and approval by the

Chairman of the Executive Branch, this Act shall become effective on April 1,2009.

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CERTIFICATION

I hereby certify that this Bill:

"AN ACT TO ESTABLISH A CROW NATION

WORKFORCE PROTECTION ACT," was duly passed by the Crow Tribal Legislature with

a vote of ~ in favor, -lL opposed, and -lLabstained and that a quorum was present on this

8th day of January, 2009.

Speaker of the House

Crow Tribal Legislature

ATTEST:

EXECUTIVE ACTION

Iherey

rori

Lapprove

- - - veto

this Bill: "AN ACT TO ESTABLISH A CROW NATION WORKFORCE PROTECTION

ACT" pursuant to the authority vested in the Chairman of the Crow Tribe by Article V, Section

8 of the Constitution and Bylaws of the Crow Tribe of Indians, on this

day of January,

2009.

Carl . Venne, Chairman

Crow Tribal Executive Branch

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Page 32 of32

Bill or Resolution Number ~09 -0 I. Introduced bY~w!-'\le.

Yes

Representative:

Date of VoteJ - &'. 200~

Abstained

L. Plain Bull, Sr.

C. Goes Ahead

...,/"

O. Costa

V. Crooked Ann

V""'"

M. Not Afraid

P. Alden, Jr.

B. House

E. Fighter, Sr.

C.J. Stewart

V""'"

L. Hogan, Jr.

S. Fitzpatrick, Jr.

V-

O. Half, Jr.

R. Old Crow, Sr.

W. Plainfeather

D. Wilson

J.D. Stone, Sr.

v""'"

B. Shane

Secretary ofthe House

M. Covers Up, Sr.

Speaker ofthe House

Totals:

Result of Vote: ~

P"S~

It.

Not Passed

Tabled

Veto-Override

Senator Manuel Covers Up, Sr.

Speaker of the House

Date

TABLE OF CONTENTS

Chapter 1. General Provisions

Part 1.

Policy, Purpose, and Definitions

Chapter 2. Crow Tribal Employment Rights Commission

Part 1. Members, Qualifications,Quorum

Part 2.

Powers of the Commission

Chapter 3. Director of the Crow Tribal Employment Rights Office

Part 1. TERODirector

Part 2. Powers and Duties of TERO Director

Part 3. Intergovernmental Relationships

Chapter 4. Indian Preference in Employment and Contracting

Part·1.Indian Preference in Employment

Part 2. Indian Preference in Contracting

ChapterS. Permits and Fees

Part 1. Permits

Part 2. TERO Fees

Part 3. Exempt Employers and Entities

Part 4. Fee CoUectionand Expenditure

Chapter 6. Compliance Plan, Notice, and Contracts

Part 1. Compliance Plan

Part 2. Notice

Part 3. Contracts

Part 4. Agricultural Leases

Chapter 7. Crow Tribal Right to 'York Act

Partl.Policy

Part 2. Unions

Chapter 8. Prohibition of Employment Discrimination

Part 1. Prohibited Discrimination

Chapter 9. Employee Wage and Hour

Part 1. Minimum Wage and Overtime

Part 2. Minimum Wage and Projects Subject to the Federal Davis-Bacon Act

Chapter 10. Family, Medical, and Cultural Leave

Part 1. Family, Medical, and Cultural Leave

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Chapter 11. Occupational Safety and Health

Part 1. Occupational Safety and Health of Employees

Chapter 12. Mine Safety and Health

Part 1. Mine Safety and Health of Employees

Chapter 13. Enforcement

Part 1. General Provisions

Part 2. Compliance and Enforcement Procedures

Part 3. Sanctions

Part 4. Appeals

PartS. Confiscation, Sale, and Other Enforcement Mechanisms

Part 6. Monitoring and Coordination with other Tribal, State, and Federal Laws

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Title 17. Crow Tribal Self-Government - Employment and Contracting

Chapter 1. General Provisions

Part 1. Policy, Purpose, and Definitions

17.1.1.1

17.1.1.2

Policy.

The Crow Tribe declares that it is the public policy of this Tribe to provide for the

economic security and employment of its members and all Indians living on or near the

Crow Reservation to the maximum extent possible in order to promote the important

interests of self-governance and to preserve and promote the Tribe's unique cultural

heritage. Economic insecurity and unemployment are serious impediments to the health,

morale, and welfare of the CrowTribe ofIndians. Employment on the Crow Reservation

is an important resource for Indian people. Within the Crow Reservation, Indian people

have unique and special employment rights. Further, they are entitled to the protection of

the laws. the federal government has adopted to combat employment discrimination on or

near Indian reservations.

All employees subject to the Crow Tribe's jurisdiction are entitled to a workplace

environment that prohibits employment discrimination, protects employees' wages,

provides leave for family, medical, and cultural events, and protects employees' health

and safety.

The provisions of this Act are specifically found to be of an urgent and critically

important nature to the health and welfare of the residents of the Crow Reservation.

Unemployment and underemployment within the boundaries of the Crow Reservation are

consistently many times the national average. This pervasive unemployment and

underemployment has directly contributed to serious social problems and a lower quality

of life for those residing on or near the Reservation and impede the self-governance

objectives of the Tribe.

Consequently, the Crow Tribe declares that the public good and welfare of the Tribe

require the enactment of this Workforce Protection Act, enacted pursuant to its inherent

sovereign and police powers, in order to increase employment of Indian people and

Indian businesses within the Crow Reservation and to protect the workforce rights of

Indian and non-Indian employees within the jurisdiction of the Crow Tribe.

Purpose.

This Act is adopted by the Crow Tribe of Indians, under its inherent sovereign and political

powers, for the following purposes:

To promulgate tribal laws and rules for governing employment relations and contracting

preference within tribal jurisdiction;

To establish the Crow Tribal Employment Rights Office in order to use and enforce the

laws governing employment and contracting preference, and to protect the rights of all

Crow Tribal members and employees within the Tribe's jurisdiction;

To increase the employment of Crow Indians and other Indians;

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17.1.1.3

To eradicate employment discrimination, protect employees' wages, provide leave for

family, medical, and cultural events, and protect employees' health and safety within

tribal jurisdiction;

To provide a fair, enforceable, and effective system of priorities in contracting or

subcontracting , and the provision of supplies, services, labor and materials, where a

significant part of the work will be performed on the Crow Reservation or a significant

part of the supplies and materials will be furnished to a site on the Crow Reservation; and

Severability.

Should any portion of this Act be declared unenforceable by a court having jurisdiction, such

action shall not affect the validity and enforceability of the remaining provisions.

17.1.1.4

Definitions.

"Chairman" means the Chairman of the Crow Tribal Executive Branch.

"Commercial Enterprise" includes any activity of any government, including the federal,

state, tribal, or local governments (including any activity of the Crow Tribe) that is not a

traditional governmental function and any non-governmental economic activity involving

the provision of goods or services.

"Commission" means the Crow Tribal Employment Rights Commission established by

this Act.

"Covered Employer" or "Employer" means any entity, company, contractor,

subcontractor, corporation or other business entity doing business on the Crow

Reservation, including the Crow Tribe and its commercial enterprises, that employs for

wages or other remuneration two (2) or more employees for eight (8) or more hours in

any calendar week. An LLC formed under the Crow LLC Act is deemed a covered

employer if it meets the requirements of this definition.

"Covered Entity" means any entity awarding or letting a contract or subcontract to

provide supplies, services, labor and materials, in which a significant part of the work to

be performed will be performed on the Crow Reservation or a significant part of the

supplies and materials to be furnished will be furnished to a site on the Crow Reservation.

For purposes of this chapter, significant means more than an incidental or minimal

portion of any project, but can be less than a majority of the work or materials or supplies

on anyone project. An LLC formed under the Crow LLC Act is deemed a covered entity

if it meets the requirements of this definition.

"Crow Indian" means any person enrolled as a member of the Crow Trib~.

"Day" means a work day, which excludes Saturdays, Sundays, and Federal holidays.

"Director" means the director of the Crow Tribal Employment Rights Office.

"EEOC" means the federal Equal Employment Opportunity Commission.

"Employee" means any person employed for wages or other remuneration. No

immediate relative within the 2nd degree of consanguinity or the spouse of any such

immediate relative shall be included for purposes of this Act if such person is employed

by an employer whose principal business activity is farming or ranching.

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"Entity" means any person, partnership, corporation, joint venture, government,

commercial enterprise, or any other natural or artificial person, organization, or

association of persons or entities. This term is intended to be as broad and as all

encompassing as possible to ensure the statute's full coverage overall employment and

contract activities within the jurisdiction of the Crow Tribe.

"IndilUl" means a member of a federally recognized Indian tribe.

"Indian Certified Entity" means an entity certified by the Director to be 51 % or more

owned by one or more Indians and the entity is genuinely controlled by one or more

Indians.

"Indian living on or near the reservation" means an Indian who is a member of a federally

recognized Indian tribe who is living on or near the Crow Indian Reservation. No person

shall be considered an Indian living on or near the reservation unless he or she has a

permanent residence on or near the Crow Reservation and has lived on or near the Crow

Reservation for at least six (6) months prior to employment on or near the Crow

reservation.

"Necessary qualifications" mean those job-related qualifications that are essential for

performing the basic responsibilities of the position, including any essential qualifications

concerning education, training and job-related experience.

"On or near the reservation" shall mean the distance within and surrounding the Crow

Indian Reservation, which a person seeking employment could reasonably be expected to

commute for a workday.

"Qualified" and "Qualified to contract" means a demonstrated ability to perform the

terms of a contract and may include evaluation of prior performance, safety records, prior

or pending litigation or complaints regarding performance, financial stability, or similar

factors which are directly relevant to a bidder's ability to perform satisfactorily.

"Regulations" mean the regulations implementing this Act that are adopted by the Crow

Tribal Employment Rights Commission.

"Reservation" shall mean the Crow Indian Reservation and includes all land, Indian and

non-Indian, within the exterior boundaries of the Crow Indian Reservation or trust land

under the jurisdiction of the Crow Tribe, wherever located.

"TERO" means the Crow Tribal Employment Rights Office.

"Tribe" means the Crow Tribe ofIndians.

Chapter 2. Crow Tribal Employment Rights Commission

Part 1. Members, Qualifications, Quorum

17.2.1.1

There is hereby created the Crow Tribal Employment Rights Commission ("Commission"), which

shall be an independent commission of the Tribe.

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17.2.1..2

The Commission shall be composed of seven (7) members, one from each district and one at large,

nominated by the Chairman and confirmed by the Legislature. The nominated individuals shall

meet the ethical standards required for judges of the Crow Tribal Court system and shall have

experience or expertise in one or more of the following areas:

1. Business;

2. Energy Resource Development;

3. Construction;

4. Employment;

5. Financial Management or Law.

I( I n

17.2.1.3

Commissioners shall be appointed for a term of three years; provided that, the appointments to the

Commission shall be made in such a manner that their terms shall be staggered, so that the terms

of no more than two Commissioners shall terminate in any year.

17.2.1.4

The Chairman may remove a member of the Commission for inefficiency, neglect of duty,

malfeasance, misfeasance, or nonfeasance in office.

17.2.1.5

The Commission shall designate one of the members of the Commission as chairman and one as

vice chairman.

17.2.1.6

The·Commissioners shall serve until replaced. Vacancies shall be filled in the same manner used

to initially appoint and confirm commissioner.

17.2.1.7

A majority of the Commission 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.

17.2.1.8

Res;uSal of Commission Members.

For purposes of this section, "immediate family" means brother, sister, son, daughter,

mother, father, husband, wife, step-brother, step-sister, half-brother, half-sister, or

brother, sister, son, daughter, mother or father by adoption.

No member of the Commission shall participate in any action or decision by the

Commission directly involving himself, or a member of his immediate family, or any

person, business or other entity of which he or a member of his immediate family is an

employee, or in which he or a member of his immediate family has a substantial

ownership interest, or with which he or a member of his immediate family has a

substantial contractual relationship.

Nothing in this section shall preclude a Commissioner from participating in any action or

decision by the Commission which:

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(a)

Affects a general class of persons, regardless of whether the Commissioner or a

member of his immediate family is a member of the affected class;

(b)

Affects the Tribe, a Tribal enterprise, or a person or entity in a contractual

relationship with the Tribe or a Tribal enterprise, regardless of whether the

Commissioner is a Tribal member.

A Commissioner may voluntarily recuse himself and decline to participate in any action

or decision by the Commission when the Commissioner, in his/her discretion, believes:

(a)

that he/she cannot act fairly or without bias; or

(b)

that there would be an appearance that he/she could not act fairly or without

bias.

Part 2. Powers of the Commission

17.2.2.1

The Commission has the full power, jurisdiction, and authority to:

Take all actions necessary and appropriate to implement the provisions of this Act.

Formulate, adopt, amend and rescind rules, regulations and guidelines necessary to carry

out the provisions of this Act. Except when an emergency exists, the Commission shall

provide. the public with a reasonable time for comment before promulgating any final

regulations.

Conduct hearings in accordance with Chapter 13 herein and with such rules of practice

and procedure as may be adopted by the Commission.

Order any relief or sanctions authorized by this Act, and to petition the Crow Tribal Court

for such orders as are necessary and appropriate to enforce the decisions of the

Commission and any sanctions imposed by the Commission.

Chapter 3. Director of the Crow Tribal Employment Rights Office

Part l. TERO Director

l7.3.Ll

There shall be a Director of the TERO, who shall be an employee of the Crow Executive Branch,

under the direct supervision of the Crow Tribe's Chief Execut~ve Officer.

17.3.1.2

The Chairman of the Crow Tribal Employment Rights Commission shall participate in an advisory

capacity in an annual evaluation of the TERO Director. If the Commission believes the Director is

failing to properly carry out his responsibilities, it shall notify the Tribal Chairman and the TERO

Director in writing.

17.3.1.3

The Tribal Chairman shall have the authority to suspend or remove the TERO Director for

inefficiency, neglect of duty, malfeasance, misfeasance, or nonfeasance.

Part 2. Powers and Duties of TERO Director

17.3.2.1

Powers and Duties.

The Director shall have the following powers and duties:

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Implement and enforce the provisions of this Act, as well as any properly adopted

regulations, rules, guidelines and orders promulgated by the Commission.

Hire staff, expend designated funds from an approved budget, obtain and expend funding

from federal, state, and other sources.

Maintain a list of the following: (1) current covered employers and entities, (2) current

employer permits and work permits issued, and (3) current Indian Certified Entities.

Maintain a record ()f all contracting projects subject to this Act and the TERO fees

assessed for each project.

Determine certification ofindian Certified Entities.

Grant TERO permits and collect TERO fees as authorized by this Act.

Establish training and workforce development programs for tribal members and other

Indians to assist them in obtaining and retaining employment.

Maintain a list of tribal. members and Indians living on or near the Crow Reservation who

are available for employment and assist such persons with job placement.

Contract with federal and/or state entities, with the approval of the Tribal Chairman, for

the provision of additional job procurement services and funding consistent with the

purposes of this Act.

Part 3. Intergovernmental Relationships

17.3.3.1

The TERO, acting through the Director, is authorized to enter into cooperative relationships with

federal employment rights agencies, such as the EEOC and the Office of Federal Contract

Compliance Programs (OFCCP), and with state employment rights agencies, such as the Human

Rights Commission, in order to eliminate discrimination against Indians on and off the Crow

Reservation, as well as to develop training programs for Indians. The TERO Director may also

enter into cooperative relationships with federal agencies, such as the BIA, HOO, DOL, FHWA,

and IRS, in order to implement any federal employment or other workforce rights, authorities, or

requirements as such agency may lawfully delegate to the Tribe.

Chapter 4. Indian Preference in Employment and Contracting

Part 1. Indian Preference in Employment

.17.4.1.1

All covered employers shall give preference to Indians living on or near the Crow Reservation in

the hiring, promotion, training, and all other aspects of employment, provided that these

individuals have the necessary qualifications. The Crow Tribal government, including all

branches, divisions, and subsidiary governmental entities of the Tribe shall give preference to

Crow Tribal members in hiring, promotion, training, and all other aspects of employment,

provided that the individuals are qualified.

17.4.1.2

All covered employers shall comply with this statute, all rules and regulations relating to it, and all

guidelines and orders of the TERO Director. This statute and its application hereby subject all

covered employers to the jurisdiction of the Crow Tribe and constitutes consent to resolution of

any dispute pursuant to Chapter 13 herein.

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17.4.1.3

The requirements in this Part shall not apply to any direct employment by the Federal or State

government or their subdivisions. However, it shall apply to all contractors or grantees of such

governments and to all commercial enterprises operated by such governments so long as they are

subject to the jurisdiction of the Tribe.

17.4.1.4

No covered employer shall hire a non-Indian without first providing the TERO with not less than

72 hours to locate and refer a qualified Indian; however, the Commission may, by regulation,

~rovide for a period of less than 72 hours when required by business necessity.

17.4.1.5

All covered employers shall establish written necessary qualifications for each employment

position in their work force, which shall be provided to the TERO Director and applicants or

candidates upon request.

17.4.1.6

All covered employers shall include and specify an Indian employment preference policy

statement in all job announcements and advertisements and employer policies covered by this Act.

17.4.1.7

All covered employers shall post in a conspicuous place on its premises for its employees and

applicants an Indian preference policy notice prepared or approved by the TERO.

17.4.1.8

Any seniority system of a covered employer shall be subject to this Act. Such a seniority system

shall not operate to defeat nor prevent the application o(the Act, provided, however, that nothing

in this Act shall be interpreted as invalidating an otherwise lawful and bona fide seniority system

that is used as a selection or retention criterion with respect to any employment opportunity where

the pool ofapplicants or candidates is exclusively composed oflndians or non-Indians.

17.4.1.9

All covered employers, except for construction contractors, shall advertise and announce all job

vacancies in at least one newspaper on or near the Crow Reservation. Construction contractors,

prior to starting work on the Reservation, shall publish an advertisement in at least one newspaper

on· or near the Crow Reservation for at least 4 days, which specifies the number of workers by

craft they will need and when they estimate they will need these workers.

17.4.1.10

All covered employers shall use non-discriminatory job qualifications and selection criteria in

employment subject to the requirements of this Act. No employer shall use any job qualification

criteria·or other personnel requirements that serve as barriers to Indian preference in employment,

urtless the employer can demonstrate that such criteria or requirements are required by business

necessity.

17.4.1.11

Irrespective of the qualifications of any non-Indian applicant or candidate, any Indian who lives on

or near the reservation who demonstrates the necessary qualifications for an employment position:

Shall be selected by covered employers in the case of hiring, promotion, transfer,

upgrading, recall and other employment opportunities with respect to such position; and

Shall be retained by covered employers in the case of a reduction·in-force affecting a

certain class of positions until all non-Indians employed in that class of positions are laid

off.

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17.4.1.12

Covered employers, may, if necessary, have a core crew, which is exempt from the Indian

preference requirements of this Part. A core crew is considered necessary if (1) there are unique

or specialized qualifications that are essential for the operation of the business, and (2) it would

place an unreasonable burden or cost on the employer to hire individuals other than its core crew.

If a core crew is necessary, such core crew shall not exceed five percent (5%) of the total

employees of the employer and ten percent (10%) of the total hours of payroll. The TERO

Director may, at his or her discretion, grant an employer a larger core crew upon a satisfactory

demonstration by the employer that a larger core crew is necessary due to unique or specialized

positions that are essential for the operation of the business.

Part 2. IndianPrererence in Contracting

17.4.2.1

Allcovered entities who advertise and solicit bids for projects in which a significant portion of the

work will be done on or materials will be supplied to a site within the Crow Reservation shall give

preference in contracting and subcontracting to Indian Certified Entities. Where a contractor or

sub-contractor is selected through a competitive process, the awarding entity shall limit

competition to Indian certified firms, provided that a qualified bid is received and the price of the

bid is reasonable. The Commission shall issue regulations providing guidance on implementing

this requirement and for implementing Indian contracting preference when the awarding entity

uses a method other than competition to select a contractor or sub-contractor. Whenever feasible,

the covered entity shall submit to the Director, at least six months in advance, a list of all related

contracts or subcontracts contemplated to be generated by the covered entity in order to enable the

TERO Director to give Indian Certified Entities the opportunity to prepare bids for related

contracts and subcontracts.

17.4.2.2

The Commission shall establish a system for certifying firms as Indian Certified entities. This

system shall include detailed provisions to ensure that front companies or firms that are not truly

51 % or more owned and controlled by members of the Crow Tribe or members of other federally

recognized Indian tribes are not granted Indian preference certification.

17.4.2.3

The requirements set out in this Part shall apply to contracts awarded directly by the Tribe, its

branches, divisions and all subsidiary governmental entities of the Tribe, and any governmental

commercial· enterprises of the Tribe or its divisions or subsidiaries, except when it is determined

.;, '~1

thatapp!ication of these requirements is specifically prohibited by Federal law.

17.4.2.4

The requirements set out in this Part shall not apply to contracts awarded by the Federal or State

government or their subdivisions. However, they shall apply to all subcontracts awarded by a

Federal or State contractor or grantee that is subject to the jurisdiction of the Tribe, whether or not

the prime contract was subject to these requirements, except when it is determined that application

of these requirements to that entity is specifically prohibited by Federal law.

17.4.2.5

All covered entities shall comply with this Act and all the rules and regulations promulgated in

connection with this Act, as well as all guidelines and orders of the TERO. Application for or

award of any business preference under this statute, as well as contracting with the Crow Tribe,

any of its related entities, or a certified entity, subjects the transaction to the jurisdiction of the

Crow Tribe and constitutes consent to resolution of any dispute pursuant to Chapter 13 herein.

. ,-';\

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Chapter 5. Permits and Fees

Part 1. Permits

17.5.1.1

17.5.1.2

Employer Pennits.

The Director shall issue an employer's permit to all covered employers who are in good

standing, effective for one year from the date of issue, upon payment of an annual $1 ,000

fee. An employer that is not in good standing with any other Indian tribe, a contractor's

association or other professional association to which it has belonged, with any labor

union with which it has had a collective bargaining agreement, or is found to be in active

or current violation of federal or tribal law, may be refused an employer's permit.

Federal, state, and tribal governmental employers are not required to obtain an employer's

permit.

All covered employers must hold an employer's permit before they are eligible to do any

work or engage in any business activity within the boundaries of the Crow Reservation.

Any covered employer that fails to obtain an employer's permit, or whose employer's

permit has been revoked, shall be denied the right to conduct any further business or

work on the Crow Reservation. The Director shall have the right to enforce the terms of

this section in Crow Tribal Court by means of an injunction or other appropriate remedy.

The TERO Director is authorized to refuse to issue an employer's permit or to revoke

such a permit if an employer is found to have seriously or repeatedly violated the terms of

this Act or any properly adopted rules, regulations, guidelines or orders pursuant thereto.

Work Permits.

The Director shall issue annual work permits, effective for one year from the date of

issue, to all non-tribal members who are seeking employment or are employed with a

covered employer.

The Director is authorized to deny or revoke a work permit to any person who has

repeatedly failed andlor refused to comply with this Act andlor any properly adopted

rules, regulations, guidelines or orders pursuant theret{]).

Part 2. TERO Fees

17.5.2.1

Fees.

The following fees are assessed for the privilege of conducting business on the Crow Reservation

and to raise sufficient revenue for the operation of the TERO office and the enforcement of this

Act.

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Every covered entity with a contract totaling $1,000.00 or more shall pay a one-time

project fee of three percent (3%) of the total amount of the contract. Contracts less than

$1,000.00 that are subsequently amended or enlarged to $1,000.00 or more shall pay the

3% project fee on the total amount of the contract. Such fee shall be paid by the entity

prior to commencing work on the Reservation. However, where good cause is shown,

the TERO Director may authorize the fee to be paid in installments over the course of the

contract.

Where a proposed contract, lease, or sub-contract (or combination thereot) involves a

significant, long-term project that will have a sustained positive impact on the economic

development of the Crow Tribe, the Director may negotiate alternative fee terms

consistent with the policy and purposes of this Act, subject to the approval of the

Chairman, and where required, the approval of the Crow Tribal Legislature.

Negotiations may take into account the entity's training programs or other capacity

building programs for Crow and Indian employees, as well as the projected payroll, the

value of projected subcontracts, and other economic benefits that may be realized by the

Crow Tribe and its members.

All covered entities who are awarded a contract by the Crow Tribal government,

including all branches, offices, division, and subsidiary governmental units of the Tribe,

shall as a condition of doing business on the Crow Reservation, grant their consent to the

tribal entity awarding the contract to deduct the amount of the TERO fee from the total

amount due to the contractor under the contract and to pay the amount directly to the

TERO prior to the commencement of work under the contract. Prior to this deduction,

the tribal entity awarding the contract shall provide the contractor with a form prepared

by the TERO, in which the contractor grants its consent to the deduction of the TERO fee

from the amount it is entitled to receive from the tribal entity. A contractor shall not be

permitted to commence work on the Crow Reservation until it has executed this form.

This provision shall not apply if application of these requirements to a tribal entity is

specifically preempted or otherwise prohibited by Federal law.

Every covered employer, other than contractors covered under subsection A, with five (5)

or more employees working on the Reservation or with gross sales on the Reservation of

$100,000 or more, shall pay a quarterly fee of three percent (3%) of the quarterly payroll

for its employees working on the Reservation. This fee shall be paid within 30 days after

the end of each calendar quarter.

Part 3. Exempt Employers and Entities

17.5.3.1

The permits and fees imposed in Parts 1 and 2 of this Chapter shall not apply to education, health,

religious,govemmental, ornon~profit entities or employers. However, the fees shall apply to

contractors hired by such employers.

Part 4. Fee Collection and Expenditure

17.5.4.1

Fee Collection and Expenditure.

The TERO fees shall be collected by the TERO Director pursuant to the regulations of

the Commission. The fees shall be paid over to the Tribe's finance department and shall

be credited to the TERO account up to at least $250,000.00. These funds shall be

expended solely by the TERO, pursuant to a duly approved budget in order to carry out

the purposes of this Act.

A matching $250,000 shall be used for training and workforce development programs.

Oversight of all funds will be by the TERO Office. The TERO Office shall prepare a

quarterly report as to all training expenditures. The report shall be made available to the

Legislative Branch and Executive Branch each calendar quarter.

January 2009 Session

Workforce Protection Act

Page 13 of32

17.5.4.2

MontWy Statements.

The Tribe's finance department shall provide the TERO Director with a monthly statement that

provides the following information:

The total amount of money that was in the TERO account at the beginning of the month;

The TERO fees that were paid into the TERO account during the month, itemized by the

name of the payer, the amount paid, and the date of payment;

Any amounts withdrawn from the TERO account during the month; and

The balance in the TERO account at the end of the month.

Chapter 6. Compliance Plan, Notice, and Contracts

Part 1. Compliance Plan

17.6.1.1

All covered employers and all covered entities subject to this Act shall, no less than twenty (20)

business days prior to commencing business on the Reservation, prepare a plan, acceptable to the

TERO Director, setting out how the employer or entity shall comply with the requirements of this

Act regarding Indian employment and contract preference and implementing regulations. A

covered employer or entity already present on the Reservation on the effective date of this Act that

has not prepared a Compliance Plan acceptable to the TERO Director, shall come into compliance

with the requirements of this section within sixty (60) days of the effective date of this Act.

17.6.1.2

The payroll records of all covered employers and covered entities shall be submitted to the TERO

Director on a montWy basis. Any employer required to submit a certified payroll pursuant to

federal law under the Davis-Bacon Act or state law under the Little Davis-Bacon Act, shall submit

a copy of this certified payroll record to the TERO Director.

17.6.1.3

All,<;Qvered employers and covered entities are required to report relevant changes regarding their

,employees and employment positions to the TERO Director, including but not limited to, new

positions, terminations, layoffs, promotions, and retirements.

Part 2. Notice

17.6.2.1

Notice to Proposed Contractors.

Any office, division, branch, subsidiary entity, or commercial enterprise of the Tribe or any of its

subsidiary entities, when issuing a notice of a proposed contract to be awarded by it or a notice

involving a proposed lease, right-of-way agreement, or notice of any other proposed action that

will create new employment or subcontracting opportunities on the Reservation, shall include

provisions in the notice that fully inform the prospective contractor or other entity about the

requirements established by the Act.

January 2009 Session

Workforce Protection Act

Page 14 of32

Part 3. Contracts

17.6.3.1

Contract Language Imposing TERO Requirements.

Any office, division, branch, subsidiary entity or commercial enterprise of the Tribe or any of its

subsidiary entities, when awarding a contract, lease, right-of-way or entering into any other legal

agreement with a party that will create new employment or subcontracting opportunities on the

Reservation, shall include provisions that impose the requirements of this Act on the contractor,

lessee, right-of-way grantee, or other party, such that the legal document will fully bind the party

. to comply with the requirements of this Act, notwithstanding any future decision by a court that

has the effect of eliminating, reducing, or putting into question the Tribe's authority to impose the

requirements of this Act on said contractor pursuant to the sovereign authority of the Tribe.

17.6.3.2

Model Language.

In order to implement the requirements of Parts 2 and 3 of this Chapter, the TERO Director shall

provide to the offices, divisions, branches, subsidiary entities and commercial enterprises of the

Tribe and its subsidiary entities:

17.6.3.3

Model language that shall be included in the notice to prospective contractors, lessees,

rights-of-way grantee, or other parties who will be engaged in activity that will create

new subcontracting or employment opportunities on the Reservation, informing them of

the requirements established by this Act; and

Model language to be included in each contract, lease, right-of-way agreement, or other

legal document issued by that office, division, branch, subsidiary entity or commercial

enterprise of the Tribe and its subsidiary entity, imposing the requirements set out in this

Act as terms of the contract, lease, right-of-way agreement or other legal agreement being

entered into with the party that will be engaged in activity that wi11lead to the creation of

subcontracting or employment opportunities on the Reservation.

TERO Approval of Contracts Awarded by Tribal Entities.

Each office, division, branch, subsidiary entity or commercial enterprise of the~ribe or

any of its subsidiary entities, prior to issuing notice of a contract to ,pr(j}spective

contractors or issuing any other notice to prospective employers or entities that will lead

to the creation of employment, contracting or subcontracting opportunities on the

Reservation, and prior to awarding a contract or entering into any other agreement that

will lead to the creation of employment, contracting, or subcontracting opportunities on

the Reservation, shall submit the proposed notice or contract to the TERO Director for

his approval. The Director shall indicate his approval by signing his name at a place

provided for TERO approval on the document at issue.

The TERO Director may petition the Crow Tribal Court to enjoin, upon good cause

shown, the issuance or award of any contract or the initiation of any other activity by an

office, division, branch, subsidiary entity or commercial enterprise of the Tribe or any of

its subsidiary entities that will create employment, contracting, or subcontracting

opportunities on the Reservation, which fail to comply with the requirements of this Act.

C. No employee of the Tribe shall disseminate any written information on the TERO or the

Tribe's Indian preference requirements without first obtaining the TERO Director's approval

of the document.

January 2009 Session

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Page 15 of32

17.6.3.4

TERO Assumption of Federal Indian Preference Enforcement.

If the Federal laws or regulations goveming any program administered by any office,

division, branch, subsidiary entity or commercial enterprise of the Tribe or any of its

subsidiary entities authorize a tribe's Indian preference requirements to replace, or permit

a tribe to obtain delegated authority to assume responsibility for enforcing, Indian

preference requirements established by Federal law or regulations and enforced by a

Federal agency, said office, division, branch, subsidiary entity or commercial enterprise

of the Tribe or any of its subsidiary entities, shall within 90 days of the effective date of

this Act, in coordination with the TERO Director and the Tribe's Office of Legal

Counsel, apply for such delegated or replacement authority and request that such

delegated or replacement authority be vested in the TERO.

If Federal law authorizes or allows tribal preference instead of Indian preference, the

Tribe will apply tribal preference.

Part 4. Agricultural Leases

17.6.4.1

Agricultural Leases.

The Bureau of Indian Affairs will be requested to put a notice in all leases of trust land owned by

the Crow Tribe or Crow Indian allottees that all persons will be required to fully comply with this

Act.

Chapter 7. Crow Tribal Right to Work Act

Part 1. Policy

17.7.1.1

It is hereby declared to be the policy of the Crow Tribe that the right of persons to work shall not

be denied or abridged on account of membership or non-membership in any labor union or labor

organization.

17.7.1.2

Any agreement between a covered employer and any labor union or labor organization, whereby

persons not members of such union or organization are denied the right to work for the employer,

or whereby such membership is made a condition of employment, continuation of employment,

promotion, or any other benefit by the employer, is hereby declared to be against public policy and

in violation of this Act.

, ",,"",1)"

Part 2. Unions

17.7.2.1

No union agreement shall supersede the requirements of this Act and its rules and regulations.

Nothing herein shall constitute official recognition by the Tribe of any union or endorsement of

any union activities on the reservation.

17.7.2.2

Employment rights shall not be abridged or denied on account of membership or non-membership

in any labor union or labor organization. Further, the right of employees, by and through a labor

organization, to bargain collectively shall not be abridged or denied.

January 2009 Session

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Page 16 of32

17.7.2.3

No person shall be required by a covered employer to become or remain a member of any labor

union or labor organization as a condition of employment or continuation of employment by such

employer.

17.7.2.4

No employee shall be required to pay union dues and/or union fees as a condition of obtaining or

maintaining employment within the Crow Reservation.

17.7.2.5

All covered employers who are subject to union or collective bargaining agreements shall pay

wages and salaries to all non-union workers that are not less than union scale.

17.7.2.6

Any covered employer, who is subject to a collective bargaining agreement that requires it to pay

monies for fringe benefits for its employees into a union fund(s), such as health and pension funds,

shall offer any employee who is not a union member, the option of receiving cash wages in lieu of

the amount that would otherwise have been placed into the union fund(s) on behalf of that

employee.

17.7.2.7

Covered employers with collective bargaining agreements with a union are responsible for

informing the union of this Act and TERO rules and regulations. Covered employers shall obtain

a written agreement, approved by the TERO Director, from each union with which it has a

collective bargaining agreement, providing that:

17.7.2.8

The union shall comply with all Indian preference laws, including this statute, all rules

and regulations promulgated pursuant to it, and all guidelines and orders of the TERO;

The union will give absolute preference to qualified Indians in job referrals from the

TERO regardless of the position these individuals may have on any referral list the union

may keep; and

The union will agree that the employer may pay the fringe benefits in cash to any Indian

who is not a union member and who chooses not to participate in the union's fringe

benefit plan.

Any future agreements between the TERO, the Tribe, and employers or unions must incorporate

by reference the language of this statute and any amendments thereto. Such agreements shall be

submitted to the TERO Director, and: the Tribe's Office of Legal Counsel for review.

Chapter 8. Prohibition of Employment Discrimination

Part 1. Prohibited Discrimination

17.8.1.1

Except in furtherance of the provisions requiring employment preference to Crow and other

Indians set out in Chapter Four of this Act, or when based upon a bona fide occupational

qualification, it shall be an unlawful to do any of the following acts, wholly or partially for a

discriminatory reason based on the actual or perceived: race, color, religion, national origin, sex,

age, or political affiliation of any individual:

January 2009 Session

Workforce Protection Act

Page 17 of32

By a covered employer - to fail or refuse to hire, or to discharge, any individual, or

otherwise to discriminate against any individual with respect to his or her compensation,

tenns and condition, or privileges of employment, including promotion, to discriminate in

recruiting individuals for employment, or to limit, segregate, or classify his or her

employees in any way which would tend to deprive them of employment opportunities;

17.8.1.2

By a labor organization - to exclude· or to expel from its membership, or otherwise to

discriminate against, any individual, or to classify, or fail or refuse to refer for

employment any individual in any way, which would deprive such individual of

employment opportunities, or would limit such employment opportunities, or otherwise

adversely affect his or her status as an employee or as an applicant for employment;

By a covered employer or a labor organization - to discriminate against any individual in

admission to or the employment in, any program established to provide training or

retraining, including on-the-job training.

Religious Accommodation.

It shall be an unlawful discriminatory practice for a covered employer to refuse to make a

reasonable accommodation for an employee's religious observance by such actions as permitting

the employee to make up work time lost due to such observance, unless such an accommodation

would cause the employer undue hardship. An accommodation would cause an employer undue

hardship when it would cause the employer to incur more than de minimis costs.

17.8.1.3

Discrimination based on Pregnancy.

Women affected by pregnancy, childbirth, or related medical conditions shall be treated the same

for all employment-related purposes, including receipt of benefits under fringe benefit programs,

as other persons not so affected, but similar in their ability or inability to work. This requirement

shall. include, but is not limited to, the requirement that a covered employer must treat an

employee temporarily unable to perform the functions of her job because of a pregnancy-related

condition in the same manner as it treats other temporarily disabled employees.

17.8.1.4

Discrimination based on Disability.

It shall be unlawful for a covered employer or labor organization to discriminate in any

aspect of employment against a qualified individual with a disability because of that

disability. However, covered employers may use qualification standards, tests or

selection criteria that are job-related and consistent with business necessity, and such

_.. required performance cannot be accomplished by reasonable accommodation. Nothing in

"dId, this section shall prohibit a covered employer from refusing to hire or from discharging

an individual with a disability, if the individual, because of the disability, is unable to

perform the duties or would perform the duties in a manner that would endanger the

health and safety of the individual or others or is unable to be at, remain at, or go to or

from the place where the duties of employment are to be performed.

For purposes of this Section, the term "qualified individual with a disability" shall not

include any employee or applicant who is currently engaging in the illegal use of drugs,

when the covered employer acts on the basis of such use.

Nothing in Subsection B. shall be construed to exclude as a "qualified individual with a

disability" an individual who is engaging in or who has successfully completed a

supervised drug rehabilitation program and is no longer engaging in the illegal use of

drugs, or who has otherwise been successfully rehabilitated and is no longer engaging in

such use.

It shall not be a violation of this section for a covered employer to hold an employee who

engages in the illegal use of drugs or excessive use of alcohol to the same qualification

standards for employment or job performance and behavior to which that employer holds

January 2009 Session

Workforce Protection Act

Page 18002

other employees, even if any unsatisfactory performance or behavior is related to the drug

or alcohol use of the employee.

17.8.1.5

Harassment.

It shall be unlawful employment discrimination to subject an employee or applicant to

unwelcome sexual advances, requests for sexual favors, and other verbal or physical

conduct of a sexual nature, as well as unwelcome comments, jokes, acts, and other verbal

or physical conduct related to race, color, national origin, religion, age, or disability

when:

submission to such conduct is made either explicitly or implicitly a term or

condition of an individual's employment;

submission to or rejection of such conduct by an individual is used as the basis

for employment decisions affecting such individual; or

such conduct has the purpose or effect of substantially interfering with an

individual's work performance or creating an intimidating, hostile or offensive

working environment.

A covered employer is responsible for acts of workplace harassment by its supervisory

employees when the employer, its agents, or its supervisory employees, knew or should

have known of the conduct. A covered employer may rebut apparent liability for such

acts by showing that it took immediate and appropriate corrective action upon learning of

the harassment.

Chapter 9. Employee Wage and Hour

Part 1. Minimum Wage and Overtime

17.9.1.1

17.9.1.2

Minimum Wage.

Any employee who is employed by a covered employer shall be paid an hourly, wage of

not less than $6.55 per hour. Such wage may be changed by a joint action ,res@rotion

approved by both the Executive and Legislative Branches of the Crow Tribe.

The minimum wage requirement of this Section does not apply to construction projects

which require payment of prevailing wage rates as governed by the federal Davis-Bacon

Act.

Maximum Hours.

No covered employer shall employ any of its employees for a work week longer than

forty (40) hours unless such employee receives compensation for the employee's

employment in excess of the hours above at a rate not less than one and one-half times

the regular rate at which the employee is employed.

If offered by the Crow Tribal government, employees of the Crow Tribal government or

any political subdivision of the Crow Tribal government may receive compensatory time

off, in lieu of overtime compensation, at a rate not less than one and one-half hours for

each hour of employment for which overtime compensation is required by this Chapter.

January 2009 Session

Workforce Protection Act

Page 19 of32

17.9.1.3

If compensatory time is offered to employees of the Crow Tribal government or any

political subdivision of the Crow Tribal government, any such employee may not accrue

more than 480 hours of compensatory time. Any such employee who has accrued 480

hours of compensatory time off shall, for additional overtime hours of work, be paid

overtime compensation.

Tribal employees who are authorized to accrue compensatory time off may request use of

such accrued time, and shall be permitted to use such time within a reasonable period

after making the request if the use of compensatory time does not unduly disrupt business

operations.

Exemptions.

The provisions of this Part shall not apply with respect to any employee employed in a bona fide

executive, administrative, or professional capacity, or any other exemption category outlined in

the Federal Fair Labor Standards Act (lt FLSAIt ) of 1938, Title 29 of the United States Act, section

201 et seq., as amended, and regulations concerning that Act, as promulgated by the U.S.

Department of Labor.

17.9.1.4

Private Right of Action.

Any individual aggrieved under this section may seek retroactive payment of unpaid minimum

wages or unpaid overtime compensation against a covered employer pursuant to the enforcement

provisions set out in Chapter 13 of this Act and, if applicable, subject to the limited waiver of

tribal sovereign immunity in Section 17.13.1.2.

17.9.1.5

Statute of Limitations.

Any action to secure unpaid mIDlmUffi wages or unpaid overtime compensation must be

commenced within one (1) year after the date on which such wages or overtime compensation

should have been included in an employee's paycheck.

17.9.1.6

Guidance.

For the purposes of interpreting and enforcing this Part onlY"theiIfERO Commission and the Crow

Tribal Court may look to the Federal FLSA, its regulations, and related case law for guidance;

provided however, that nothing in this Section shall be construed as an adoption by the Crow

Tribe of the Fair Labor Standards Act of 1938, Title 29 of the United States Act, sections 201 et

seq.

Part 2. Minimum Wage and Projects Subject to the Federal Davis-Bacon Act

17.9.2.1

Tribal Authority over Wage Determinations on NAHASDA Construction Projects.

The Tribe hereby asserts the authority of tribal governments pursuant to Title I, Section 104 of

P.L. 104-33 (25 U.S.C. 4114(b)(3)) to establish prevailing wage rates, in lieu of those established

by the U.S. Secretary of Labor, for laborers and mechanics employed in the development of

affordable housing under the Native American Housing Assistance and Self-Determination Act

( NAHASDA ).

January 2009 Session

Workforce Protection Act

Page 20 of32

17.9.2.2

Wage Determinations.

Except as provided in Section 17.9.2.3, the wages to be paid laborers and mechanics employed in

the development of affordable housing under NAHASDA shall be not less than those required by

the U.S. Secretary of Labor under the Davis-Bacon Act (40 U.S.C. 3142, et seq.) for the locality in

which the work is to be performed.

17.9.2.3

17.9.2.4

Wage Determination for Trainees.

If the TERO Director has certified that an employee is participating in a formal or

informal training program that will lead to journeyman status, a covered employer who is

engaged in a project under NAHASDA may pay laborers and mechanics who are not

certified as journeymen at the wage rate established by the U.S. Department of Labor

Davis-Bacon Wage Determination for a trainee at that skill level, or if an employee's skill

level has not been rated, a wage that is no less than three-fifths of the minimum wage for

a journeyman in that craft as determined by the U.S. Secretary of Labor under the Davis

Bacon Act. Wages are calculated based on the locality in which the work is to be

performed, (including any fringe benefit amounts that are included in the wage

determination by the U.S. Secretary of Labor).

For NAHASDA construction projects, every covered employer shall employ one trainee

for every three journeymen the employer employs in that craft on that project. This

provision does not alter the Indian preference requirement under Chapter 4, Part 1 of this

Act.

Fringe Benefits.

An employee, engaged in construction, shall have the option of electing to receive any amounts

included for prevailing wage fringe benefits in the form of a direct cash payment that is to be

included in the employee's paycheck, unless it is determined that application of this requirement is

specifically prohibited by Federal law. This shall include, but not be limited to, the fringe benefit

determination made by the U.S. Secretary of Labor pursuant to the Federal Davis Bacon Act or by

the Tribe under Part 2 of this Chapter. Every covered employer engaged in projects subject to the

Federal Davis-Bacon Act shall .offer this option to each employee at the time he or she is first

employed.

t;1,:it

Chapter 10. Family, Medical, and Cultural Leave

Part 1. Family, Medical, and Cultural Leave

17.10.1.1

Family. Medical. Cultural Leave Requirements.

Every employee who has been employed by the same covered employer for 12 consecutive

months is entitled to up to 12 work weeks of family, medical, or cultural leave during a 12-month

period. The following conditions apply to the leave granted under this section:

January 2009 Session

Workforce Protection Act

Page 21 of32

17.10.1.2

Family, medical, or cultural leave may be granted for the following:

the birth and care of a newborn child of an employee;

for placement with an employee of a son or daughter for adoption or foster care;

to care for an immediate family member (spouse, child, or parent) with a serious

health condition;

to take medical leave when an employee is unable to work because of a serious

health condition; or

to attend or participate in a religious or cultural activity or event (such as

cultural ceremonies and funerals).

An employee must give at least thirty (30) days notice to the covered employer of the

intended date upon which family, medical, or cultural leave will commence and

terminate, unless prevented by medical emergency from giving that notice;

The covered employer may require certification from a physician to verify the amount of

leave requested by the employee, except that an employee who in good faith relies on

treatment by prayer or spiritual means, in accordance with the tenets of a recognized

religious or spiritual practice, may submit certification from an accredited practitioner of

those healing methods; and

A covered employer and employee may negotiate for more or less leave, but both parties

must agree.

Covered employers are responsible for designating an employee's leave as family,

medical, or cultural leave pursuant to this Chapter and for providing notice to the

employee.

Paid and Unpaid Leave.

Family, medical, or cultural leave granted under this Chapter may consist of paid leave, unpaid

leave, or a combination of paid and unpaid leave, determined by the policy and procedure of each

covered employer.

17.10.1.3

Employee Benefits Protection.

L,<i

Any employee who exercises the right to family, medical, or cultural leave under this

Chapter, upon expiration of the leave, is entitled to be restored by the covered employer

to the position held by the employee when the leave commenced or to a position with

equivalent seniority status, employee benefits, pay and other terms and conditions of

employment. This section does not apply if the employer proves that the employee was

not restored as provided inthis section because of conditions unrelated to the employee's

exercise of rights under this Chapter.

During any family, medical, or cultural leave taken under this Chapter, a covered

employer shall make it possible for an employee to continue his/her employee benefits at

the employee's expense. The employer and employee may negotiate for the employer to

maintain benefits at the employer's expense for the duration of the leave.

The taking of family, medical, or cultural leave under this Chapter shall not result in the

loss of any employee benefit accrued before the date on which the leave commenced.

Nothing in this Chapter may be construed to affect or diminish the contract rights or

seniority status of any other employee of any covered employer.

January 2009 Session

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Page 22 of32

Chapter 11. Occupational Safety and Health

Part 1. Occupational Safety and Health of Employees

17.11.1.1

Duties of Employers and Employees.

17.11.1.2

Each covered employer shall:

Furnish employees with a place and condition of employment that is free from

recognized hazards that may cause or are likely to cause death or serious

physical harm to the employees;

Comply with all occupational safety and health rules promulgated or adopted by

the Tribe pursuant to this Chapter.

Each employee shall comply with all occupational safety and health rules promulgated or

adopted by this Chapter that are applicable to the actions and conduct of the employee.

Adoption of Rules of Federal Occupational Safety and Health Administration.

The rules and regulations of the Federal Occupational Safety and Health Administration

("OSHA") of the United Stated Department of Labor, including all future rules or amendments to

existing rules, promulgated pursuant to the authority granted to OSHA by the Occupational Safety

and Health Act of 1975, (29 U.S.C. sections 651 et. seq.) are hereby adopted by the Tribe to the

full extent of the Tribe's authority and apply to all covered employers within the Tribe's

jurisdiction.

17.11.1.3

Enforcement.

The TERO Director is authorized to enforce the rules adopted in Section 17.11.1.2,

pursuant to the enforcement provisions set out in Chapter 13 of this Act, to the extent his

or her authority has not been preempted by Federallaw._y_"",,~_

For any employer over whom the TERO Director's authority to enforce the requirements

of this Chapter has been preempted by Federal law, for employers who are not subject to

the jurisdiction of the Tribe, and for employers located outside the boundaries of the

Reservation that employ a significant number of tribal members, the TERO Director shall

work cooperatively with Federal and State officials responsible for enforcing

occupational safety and health requirements over such employers to ensure maximum

enforcement.

Chapter 12. Mine Safety and Health

Part 1. Mine Safety and Health of Employees

17.12.1.1

Duties of Employers and Employees.

January 2009 Session

Workforce Protection Act

Page 23 of32

Each covered employer shall comply with all mine safety and health rules promulgated or

adopted by the Tribe pursuant to this Chapter to protect the health and safety of mine

workers within tribal jurisdiction.

17.12.1.2

Each employee shall comply with all mine safety and health rules promulgated or

adopted by this Chapter that are applicable to the actions and conduct of the employee.

Adoption of Rules of Federal Mine Safety and Health Administration.

The rules and regulations of the Federal Mine Safety and Health Administration ("MSHA") of the

United Stated Department of Labor, including all future rules or amendments to existing rules,

promulgated pursuant to the authority granted to MSHA by the Federal Mine Safety and Health

Act of 1977 (p.L. 91-173) are hereby adopted by the Tribe to the full extent of the Tribe's

authority and apply to all covered employers within the Tribe's jurisdiction.

17.12.1.3

Enforcement.

The TERO Director is authorized to enforce the rules adopted in Section 17.12.1.2,

pursuant to the enforcement provisions set out in Chapter 13 of this Act, to the extent his

or her authority has not been preempted by Federal law.

For any employer over whom the TERO Director's authority to enforce the requirements

of this Chapter has been preempted by Federal law, for employers who are not subject to

the jurisdiction of the Tribe, and for employers located outside the boundaries of the

Reservation that employ a significant number of tribal members, the TERO Director shall

work cooperatively with Federal and State officials responsible for enforcing mine safety

and health requirements over such employers to ensure maximum enforcement.

Chapter 13. Enforcement

Part 1. General Provisions

17.13.1.1

Applicability.

The enforcement provisions set out in this Chapter shall be ~sedto enforce the requirements set

out in each of the Chapters of this Act, unless a specific enforcerrlent provision in contained is a

particular Chapter, in which case the latter provision shall take priority.

17.13.1.2

Limited Waiver of Tribal Sovereign Immunity.

In order to enforce the protections afforded to employees under this Act, the Crow Tribe hereby

grants a limited waiver of tribal sovereign immunity from suit to the extent necessary to

commence legal action to secure interpretation or enforcement of this Act; provided, however, that

(a) this limited waiver applies only to legal action taken to interpret or enforce the provisions of

this Act, and shall not under any circumstances apply to any legal or other action taken by any

other person or entity; (b) the relief available pursuant to this waiver shall consist of equitable and

injunctive relief and monetary damages not to exceed $5,000; and (c) in no event shall any

judgment or other relief awarded pursuant to this waiver result in the encumbrance of any Tribal

property or assets. Any such action to enforce the provisions of this Act shall be commenced in

Crow Tribal Court. Nothing herein contained is intended to confer any right upon an entity or

person who is not covered by this Act.

January 2009 Session

Workforce Protection Act

Page 24 of32

Part 2. Compliance and Enforcement Procedures

17.13.2.1

Investigations.

On his own initiative or on the basis of a complaint filed pursuant to any provision contained in

this Act, the TERO Director or any field compliance officer designated by the TERO Director may

make such public or private investigations within or without the exterior boundaries of the

Reservation as the TERO Director deems necessary to ensure compliance with that provision, to

detennine whether any covered employer or entity has violated any provision of this Act or its

implementing regulations, or to aid in prescribing rules, regulations or policies hereunder.

Separate from acting on any complaint filed, the TERO Director shall conduct regular compliance

reviews to ensure that all covered employers and entities are complying with the requirements of

this Act.

The TERO Director or any field compliance officer designated by the TERO Director may enter

the place of business or employment of any employer or entity for the purpose of such

investigation or compliance review. The TERO Director officer may, at said place of business or

employment, in a manner consistent with good safety practices and with the orderly operation of

the business activity, interview any employee or agent of the covered employer or entity, review

and copy any documents, and carry out any other activity the TERO Director or officer deems

necessary to the carrying out of the investigation or compliance review; provided that, the TERO

Director or officer shall comply with the requirements of subsection E. when reviewing or copying

any confidential documents.

For the purpose of investigations, compliance reviews, or hearings which, in the opinion of the

TERO Director or the Commission, are necessary and proper for the enforcement of this Act, the

TERO Director or the chairman of the Commission may administer oaths or affinnations,

subpoena witnesses, take evidence, and require the production of books, papers, contracts,

agreements, or other documents, records or infonnation which the TERO Director or the

Commission deems relevant or material to the inquiry.

Any State or Federal tax records, trade secrets, privileged, or confidential commercial,

financial, or employment information subpoenaed or otherwise obtained pursuant to the

provisions of this Act or u$ed:,ill1a compliance hearing or subsequent appeal to the Tribal

Court: (1) shall be confidential records of the Commission or the Court, (2) shall not be

opened to public inspection, (3) shall be used only by the TERO Director, the Commission,

parties to a compliance hearing or subsequent appeal to the court, and (4) such records shall

be used in a manner that, to the maximum extent possible consistent with the requirement of

fairness to the parties, protects the confidentiality of the documents.

January 2009 Session

Workforce Protection Act

Page 25 df32

17.13.2.2

Complaints.

Any individual, group of individuals, business or organization that believes any covered employer

or entity, (with the exception of any office, division, subsidiary entity or commercial enterprise of

the Tribe or any of its subsidiary entities, which are subject to the complaint provisions set out in

Section 17.13.2.3), or the TERO Director or staff, has violated any requirement imposed by any

part of this Act or regulations issued pursuant to it, may file a complaint with the TERO Director,

unless the complaint is against the TERO Director or staff, in which case the complaint shall be

filed directly with the chairman of the Commission. The complaint shall be in writing and shall

provide such information as is necessary to enable the TERO Director or Commission to carry out

an investigation. The TERO Director shall, within 30 days of the date on which a complaint is

filed, complete an investigation of the complaint unless the TERO Director requests and is granted

an extension by the Commission, which shall be for no more than 30 days. If upon investigation,

the TERO Director has reason to believe a violation has occurred, he shall proceed pursuant to the

provisions of this Chapter. Within 15 days after receipt of the complaint, and on a regular basis

thereafter, the TERO Director shall provide the complaining party with a written report on the

status of the complaint. If the complaint is against the TERO Director or staff, the Commission

shall appoint an independent party to conduct the investigation and to carry out the responsibilities

given to the TERO Director by this Section.

17.13.2.3

Complaints Against Offices. Divisions. Branches. Subsidiary Entities or Commercial Enterprises

of the Tribe.

Any individual who believes any office, division, branch, subsidiary entity or commercial

enterprise of the Tribe has violated any requirements imposed by this Act or regulation issued

pursuant to it regarding employment may file a complaint with the TERO Director only after the

individual has either:

filed a complaint with, and exhausted the administrative remedies provided by that office,

division, branch, subsidiary entity, or commercial enterprise of the Tribe, or

filed a complaint and 60 days have passed since filing the complaint and no meaningful

subsidiary entity, or

";dti. Joommercial enterprise of the Tribe.

~ ...",.action has been taken on the complaint by that office, division,

Upon receiving a complaint that meets the requirements of this Section, the TERO Director shall

proceed in the same manner as he would on a complaint filed pursuant to Section 17.13.2.2,

except that the TERO Director and the Commission shall give careful consideration to any written

decision on the complaint issued by the office, division, branch, subsidiary entity or commercial

enterprise of the Tribe that is the subject of the complaint.

17.13.2.4

Resolution of Violations.

A. If, after conducting an investigation or compliance review, the TERO Director has reasonable

cause to believe a violation of this Act or regulations issued pursuant to it has occurred,

(including a failure on the part of a party to comply with a subpoena or other request during

the investigation phase), the TERO Director shall notify the covered employer or entity in

writing, delivered by registered mail, specifying the alleged violations. However, the Director

may withhold the name(s) of any complaining party if he has reason to believe such party

may be subject to retaliation.

January 2009 Session

Workforce Protection Act

Page 26 of32

The TERO Director shall make a good faith effort to achieve an informal settlement of

the alleged violation by meeting with the covered employer or entity and taking other

appropriate action.

If the TERO Director is unable to achieve an informal settlement, he shall issue a formal

notice of non-compliance, which shall also advise the covered employer or entity of its

right to request a hearing. The formal notice shall set out the nature of the alleged

violation and the steps that must be taken to come into compliance. It shall provide the

covered employer or entity with a reasonable time, which shall not be less than five (5)

days from the date of receipt of such notice, to comply. If the TERO Director has reason

to believe that irreparable harm will occur during that period, the Director may require

that compliance occur in less than five (5) days.

If the party fails or refuses to comply, as provided for in the formal notice, the party may

request a hearing before the Commission, which shall be held no sooner than five (5)

days and no later than 30 days after the date for compliance set forth in the formal notice,

unless an expedited hearing is deemed necessary by the Commission to avoid irreparable

harm or is requested by the party and good cause is shown.

If a party fails or refuses to comply and does not request a hearing, the TERO Director

shall request the chairman of the Commission to convene a session of the Commission

for the purpose of imposing sanctions on the party.

Notwithstanding the other provisions of this Section, if the TERO Director has good

cause to believe that immediate remedial action is necessary to prevent irreparable harm,

which shall include, but is not limited to: loss of employment, contracting, or

subcontracting opportunities, or dangers to employees from unsafe practices, the TERO

Director may require that the party come into compliance immediately or that the party

immediately enter into a written agreement to come into compliance pursuant to a

schedule acceptable to the Director. In such cases, if the party fails or refuses to comply

and requests a hearing, the hearing shall be held within 48 hours after the party has

received notification of the hearing schedule. If the party fails or refuses to comply and

does not request a hearing, the TERO Director shall request that the chairman of the

Commission convene a session of the Commission within 48 hours to impose sanctions

on the party.

' SUutOO

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17.13.2.5

Hearing Procedures.

Any hearing held pursuant to this Chapter shall be conducted by the Commission. The

hearing shall be governed by rules of practice and procedure that are adopted by the

Commission. The Commission may consider any evidence that it deems relevant to the

hearing. The Commission shall not be bound by technical rules of evidence in the

conduct of hearings under this Act, and no informality in any proceeding, as in the

manner of taking testimony, shall invalidate any order, decision, rule or regulation made,

approved, or confirmed by the Commission. A tape recording shall be made of each

hearing. No stenographic record of the proceedings and testimony shall be required

except upon arrangement by, and at the cost of the party charged.

The TERO Director shall prosecute the alleged violation on behalf of the TERO. For the

hearing and all stages of the procedural process, as provided for in this Chapter, the

TERO Director may be represented by the Tribe's Office of Legal Counsel. If the party is

an office or subsidiary of the Tribal Government, it shall be the responsibility of that

entity to obtain legal counsel, if it so chooses, from a source other than the Tribe's Office

of Legal Counsel.

January 2009 Session

Workforce Protection Act

Page 27 of32

To avoid a conflict of interest between the Commission, which shall sit as an impartial

judicial body, and the TERO Director, who shall act as the prosecutor, the Commission

shall establish such procedures and safeguards to ensure the due process rights of all

parties are protected and that there is no improper contact or communication between the

Commission and the TERO Director during the hearing phase of the enforcement

process.

If the CommissiOIl requires legal assistance during the hearing process or at any other

phase of the enforcement process, and it would be a conflict of interest for the Tribe's

Office of Legal Counsel to provide such representation, the Commission shall retain its

own legal counsel from a source other than the Tribe's Office of Legal Counsel.

Part 3. Sanctions

17.13.3.1

Sanctions.

If, after a hearing, the Commission determines that the alleged violation of this Act or

regulations has occurred, and that the party charged has no adequate defense in law or

fact, or if a party was issued a fonnal notice of non-compliance and failed to request a

hearing, the Commission may:

January 2009 Session

Workforce Protection Act

Page 28 of32

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Deny such party the right to commence business on the Reservation;

Suspend such party's business activity within the Reservation;

Tenninate such party's business activity within the Reservation;

Deny the right of such party to conduct any further business within the

Reservation;

Impose a civil fine on such party;

Order such party to make payment of back payor other damages to any

aggrieved party;

Order such party to dismiss any employees hired in violation of the Tribe's

employment rights requirements;

Order the Tribal Treasurer to reimburse any.part}Lwho improperly paid a TERO

fee or overpaid said fee, but no interest shall he, paid in such cases; and!or

Order the party to take such other action as is necessary to ensure compliance

with this Act or to remedy any hann caused by a violation of this Act, consistent

with the requirements of the laws of the Tribe and the Indian Civil Rights Act,

25 U.S.C. 1301 et seq.

The Commission's decision shall be in writing, shall be served on the charged party by

registered mail or in person by an employee of the TERO, no later than thirty days after

the close of the hearing, or within ten (10) days after the Commission's decision to

impose sanctions where a party has not requested a hearing. Where the party's failure to

comply immediately with the Commission's orders may cause irreparable harm, the

TERO Director may move the Tribal Court, and the Court shall grant, such injunctive

relief as is necessary to preserve the rights of the beneficiaries of this Act, pending the

party's appeal or expiration of the time for appeal.

Part 4. Appeals

17.13.4.1

Appeals.

An appeal to the Tribal Court may be taken from any fmal order of the Commission by

any party adversely affected thereby, including a complainant. The appeal must be filed

in the Crow Tribal Court, with a copy to the TERO Director and any other party to the

proceeding, no later than 20 days after the party receives a copy of the Commission's

decision.

The notice of appeal shall:

Set forth the order from which appeal is taken.

Specify the grounds upon which reversal or modification of the order is sought.

Be signed by the appellant or his legal representative.

Comply with any other requirements for actions filed in the Crow Tribal Court,

as established by that court.

Except as provided elsewhere in this Chapter, the order of the Commission shall be

stayed pending the determination of the Tribal Court. The TERO Director may petition,

and for good cause shown, the Court may order the party filing the appeal to post a bond

sufficient to cover monetary damages that the Commission assessed against the party or

to assure the party's compliance with other sanctions or remedial actions imposed by the

Commission's order if that order is upheld by the court.

If a complainant files an appeal of a decision by the Commission, the Commission may

choose not to be a party to the appeal. If the Commission chooses not to be a party in

such a situation, the TERO Director shall so notify the court and the other parties.

The Tribal Court shall uphold the decision of the Commission unless it is demonstrated

that the decision of the Commission was arbitrary, capricious or in excess of the authority

of the Commission.

If, by the 20th day after t1}e..P¥t-y's receipt of either:

( lkP1fil

Notice of a decision by the Commission from which no appeal to the Tribal

Court is taken, or

Notice of a fmal decision of the Tribal Court upholding the Commission's

decision from which no appeal to the Tribal Appellate Court is taken,

And the party has failed to come into compliance with the decision of the Commission or

court, the TERO Director shall petition the court and the court shall grant such orders as

are necessary and appropriate to enforce the orders of the Commission or court and the

sanctions imposed by them, including confiscation and sale as provided for in Section

17.13.5.1.

If the order of the Commission is reversed or modified, the court shall by its mandate

specifically direct the Commission as to further action the Commission shall take in the

matter, including making and entering any order or orders in connection therewith, and

the limitations, or conditions to be contained therein.

For a claim on which an individual proves a violation of the WPA, the Tribal Court may

grant attorney's fees and costs attributable to the pursuit of the claim.

January 2009 Session

Workforce Protection Act

Page 29 of32

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Part 5. Confiscation, Sale, and Other Enforcement Mechanisms

17.13.5.1

Confiscation and Sale.

If 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, and the TERO Director believes there is a likelihood the

party will remove itself and its property from the jurisdiction of the Tribe, the TERO Director may

petition the Tribal Court to order the Tribe's police to confiscate, and hold for sale, such property

of the party as is necessary to ensure payment of said monetary damage order or to otherwise

achieve compliance with the order of the Commission or the court. Said petition shall be

accompanied by a list of property belonging to the party which the TERO Director has reason to

believe is within the jurisdiction of the court, the value of which approximates the amount of

monetary damages at issue. If the court fmds the petition to be valid, it shall order the Tribe's

police to confiscate and hold said property or as much as is available. The Tribe's 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

police to sell said property and use the proceeds to pay any outstanding monetary damages

imposed by the Commission or court and all costs incurred by the court and police in the

confiscation and sale. Any proceeds remaining shall be returned to the party.

17.13.5.2

Other Enforcement Mechanisms.

If at any stage in the enforcement process, the TERO Director has reason to believe there

is a danger that a party will remove itself or its property from the jurisdiction of the

Tribal Court, such that the Commission or the Court will not be able to collect monetary

damages or TERO fees that are (1) owed by that party pursuant to any outstanding order

of the Commission or court, or (2) which may be owed if the charges set out in any

outstanding notice of violations are upheld, the TERO Director may, in his discretion,

require the party to post a bond with the Commission in an amount sufficient to cover

possible monetary damages that may be or have been assessed against the party. If the

".",party fails or refuses to post said bond, the TERO Director may petition the Tribal Court

i.', ·fum 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.

B. If the TERO Director believes that irreparable loss of employment, contracting, or

subcontracting opportunities will occur pending a hearing requested by a party, pending a

session of the Commission where a party has failed to request a hearing, pending action by the

Tribal Court, or at any other stage of the process provided for in this Chapter, the TERO

Director may petition the Tribal Court to temporarily enjoin such actions of the party as may

be necessary to prevent the irreparable loss. Upon a showing by the TERO Director of

probable cause of success on the merits and irreparable it1jury, the court shall grant the

requested injunction for such period as may be necessary to prevent the irreparable loss.

January 2009 Session

Workforce Protection Act

Page 30 of32

When irreparable hann will occur before a matter can be brought before the Tribal Court,

the Commission is authorized to issue such cease. and desist or related orders as may be

necessary to enforce the requirements of this Act. The Tribe's police are hereby

expressly authorized and directed to enforce such cease and desist or related orders as

may from time to time be properly issued by the Commission. Such orders do not require

a judicial decree or order to render them enforceable. The police shall not be civilly

liable for enforcing such orders so long as the order is signed by the Chairman of the

Commission as a duly authorized order of the Commission. The Commission shall seek

a court order as quickly as possible. The Court may dissolve the cease and desist order or

may order such injunctive or other relief to replace the cease and desist order as it deems

appropriate.

In addition to the procedures and remedies provided for in this Act, the TERO Director is

authorized to petition the Tribal Court under any other appropriate provision of the Crow

Law & Order Code as is necessary to effect implementation of and compliance with this

Act.

Part 6. Monitoring and Coordination with other Tribal, State, and Federal Laws

17.13.6.1

If, when carrying out inspections at work sites or otherwise carrying out their responsibilities

under this Act, the TERO Director or TERO compliance officers have reason to believe that a

requirement of a Tribal, Federal, state or local law, act or regulation, other than the ones included

in this Act, may have been violated by a party, the TERO Director is authorized to document such

possible violation, to report it to the appropriate enforcement agency, 'and, to the extent that

resources permit and the TERO Director determines it to be appropriate, assist that agency to

investigate and cure the possible violation.

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January 2009 Session

Workforce Protection Act

Page 31 of32

LEGISLATIVE BRANCH OF THE

CROW TRIBAL GOVERNMENT

P.O. Box 309 - MAKAWASHA Avenue

Crow Agency, Montana 59022

Fax: (406) 638-2030

Phone: (406) 638-2023/2025/2238

crow Countty

Legislative Branch

Ea9J:.:

OFFICIAL CERTIFICATE OF DELIVERY

ArrowCree!<

Larry Plain Bull, Sr.

Oliver Costa

Carlson Goes Ahead

Big Horn:

Vallev of the Give

I, Beverly M. Shane, Secretary of the Legislative Branch ofthe Crow Tribal

Government hereby this Transitional Action do deliver a True and Correct Official copy

Of the Final Approval for the following Bill:

&1!in!

Vincent crooked Arm

Marlin D. Not Afraid

Pat Alden, Jr.

INTRODUCED BY CARL E. VENNE, CHAIRMAN

CROW TRIBAL EXECUTIVE BRANCH

Dunmore:

Black Lodge

Bruce R. House

Ertls Fighter, Sr.

Conrad J. Stewart

&:.!1!1.;,

Center Lodge

Lloyd Hogan, Jr.

Sidney Fitzpatrick, Jr.

Oliver Half, Jr.

Lodge Grass:

Valley of the Chief

Manuel Covers Up, Sr.

Speaker of the House

Rudolph K. Old Crow

Woodrow Plainfeather

"A BILL FOR AN ACT ENTITLED:

"AN ACT TO ESTABLISH A CROW NATION WORKFORCE PROTECTION ACT"

No. CLBO-Ol

Position of:

to~'

a-H1f?C

in the

£f

. . . t-._Ik--'-.----'~c....:.....~

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for the

_ --J'____

Crow Tribal Executive Branch.

Done and dated this

to~/>1 ~

2009 @

}l,f5b a.~

Mighty Few

~~!laMt

Beverly M. Shane

Secretary of the House

Jonathan D. Stone

Dana Wilson

Secretary of the House

Legislative Branch of the

Crow Tribal Government

Jackie Blacksmith,

Administrative Officer

William Old Crow

Finance Officer/Admin.

Assist.

SEAL

Sheri Chandler

Office Assist.lReceptionist

Sheila Wilkinson

Legal Assistant

Kenny Pretty On Top

Maintenance/Custodian

Sergeant at Arms

Ronald Arneson, Esq.,

Attorney At Law

Cc: file

LEGISLATIVE BRANCH OF THE

CROW -rRIBAL GOVERNMENT

P.O. Box 309 - MAKAWASHA Avenue

Crow Agency, Montana 59022

Fax: (406) 638-2030

Phone: (406) 638-2023/2025/2238

Crow Country

Legislative Branch

Pryor:

Arrow Creek

Larry Plain Bull, Sr.

Oliver Costa

Carlson Goes Ahead

Big Horn:

Valley of the Give

OFFICIAL CERTIFICATE OF DELIVERY

I, Beverly M. Shane, Secretary of the Legislative Branch of the Crow Tribal

Government hereby this Transitional Action do deliver a True and Correct Official copy

Of the Final Approval for the following Bill:

Vincent Crooked Arm

Marlin D. Not Afraid

Pat Alden, Jr.

INTRODUCED BY CARL E. VENNE, CHAIRMAN

CROW TRIBAL EXECUTIVE BRANCH

Dunmore:

Black Lodge

Bruce R. House

Ertis Fighter, Sr.

Conrad J. Stewart

Reno:

Center Lodge

Lloyd Hogan, Jr.

Sidney Fitzpatrick, Jr.

Oliver Half, Jr.

Lodge Grass:

Vallev of the Chief

Manuel Covers Up, Sr.

Speaker of the House

Rudolph K.. Old Crow

Woodrow Plainfeather

"A BILL FOR AN ACT ENTITLED:

"AN ACT TO ESTABLISH A CROW NATION WORKFORCE

PROTECTION ACT"

c::J;u:k U/~

Cc2tiLic2lerK

No. CLB09-01 to

in the

Position of:

for the

Crow Tribal Judicial Branch.

Done and dated this

Mighty Few

Beverly M. Shane

Secretary of the House

Jonathan D. Stone

Dana Wilson

_2~·_day o~'122~2009@ I '6~ a.m.~

Jackie Blacksmith,

Administrative Officer

William Old Crow

Finance Officer/Admin.

Assist.

Sheri Chandler

Office Assist.lReceptionist

Served by:

. 2·~(\~

. '

'~ j dc~~

Sheila Wilkinson

Legal Assistant

Kenny Pretty On Top

Maintenance/Custodian

Sergeant at Arms

Ronald Arneson, Esq.,

Attorney At Law

Cc: file.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.