Oneida Business Committee (2020)

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Oneida Nation

Oneida Business Committee

Legislative Operating Committee

PO Box 365 • Oneida, WI 54155-0365

Oneida-nsn.gov

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ONEIDA

LEGISLATIVE OPERATING COMMITTEE MEETING AGENDA

Business Committee Conference Room-2nd Floor Norbert Hill Center

February 19, 2020

9:00 a.m.

I.

Call to Order and Approval of the Agenda

II.

Minutes to be Approved

1. February 5, 2020 LOC Meeting Minutes (pg. 2)

III.

Current Business

1. Indian Preference in Contracting Law Amendments (pg. 5)

2. Vehicle Driver Certification and Fleet Management Amendments (pg. 66)

3. Curfew Law Amendments (pg. 139)

4. Domestic Animals Law Amendments (pg. 154)

5. Tobacco Emergency Amendments (pg. 184)

6. Petition: N. Dallas – Make a Funeral Home and Petition: N. Dallas - Hold on

Building (pg. 199)

IV.

New Submissions

1. Petition: M. Debraska – Increase General Tribal Council Meeting Stipend (pg. 204)

2. Boards, Committees and Commissions Law Emergency Amendments (pg. 205)

V.

Additions

VI.

Administrative Updates

1. FY 20 First Quarterly LOC Report (pg. 206)

VII.

Executive Session

VIII. Recess/Adjourn

A good mind. A good heart. A strong fire.

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Oneida Nation

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Oneida Business Committee

Legislative Operating Committee

GDDDOO

PO Box 365 • Oneida, WI 54155-0365

ONEIDA

Oneida-nsn.gov

LEGISLATIVE OPERATING COMMITTEE MEETING MINUTES

Oneida Business Committee Conference Room-2nd Floor Norbert Hill Center

February 05, 2020

9:00 a.m.

Present: Kirby Metoxen, Jennifer Webster, Daniel Guzman King

Excused: David P. Jordan, Ernest Stevens III

Others Present: Maureen Perkins, Brandon Wisneski, Clorissa Santiago, Kristen Hooker, Jennifer

Falck, Rae Skenandore, Jameson Wilson, Leyne Orosco, Lee Cornelius. Present via

Teleconference: Arthur Elm III, Diane Hill, Michael Coleman.

I.

Call to Order and Approval of the Agenda

Kirby Metoxen called the February 5, 2020, Legislative Operating Committee meeting to

order at 9:00 a.m.

Motion by Jennifer Webster to adopt the agenda with the addition of the Oneida Land

Commission Bylaws Amendments; seconded by Daniel Guzman King. Motion carried

unanimously.

II.

Minutes to be Approved

1. January 15, 2020

Motion by Jennifer Webster to approve the January 15, 2020, Legislative Operating

Committee meeting minutes and forward to the Business Committee for consideration;

seconded by Daniel Guzman King. Motion carried unanimously.

III.

Current Business

1. Citations Law (5:46-10:14)

Motion by Jennifer Webster to approve the Citation law adoption packet and forward

to the Oneida Business Committee for consideration; seconded by Daniel Guzman

King. Motion carried unanimously.

2. Indian Preference in Contracting Amendments (10:15-14:01)

Motion by Jennifer Webster to accept the public comments and the public comment

review memorandum and defer to a work meeting for further consideration; seconded

by Daniel Guzman King. Motion carried unanimously.

3. Southeastern Wisconsin Oneida Tribal Services (SEOTS) Advisory Board Bylaws

Amendments (14:03-15:59)

Motion by Daniel Guzman King to approve forwarding the amended Southeastern

Wisconsin Oneida Tribal Services Advisory Board bylaws packet to the Oneida

Business Committee for consideration; seconded by Jennifer Webster. Motion carried

unanimously.

IV.

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New Submissions

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Legislative Operating Committee Meeting Minutes of February 05, 2020

Page 1 of 3

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1. Petition: Nancy Dallas – Funeral Home (16:01-16:53)

Motion by Jennifer Webster to add the petition: Nancy Dallas - Make a Funeral Home

to the active files list; seconded by Daniel Guzman King. Motion carried unanimously.

2. Petition: Nancy Dallas – Hold on Building (16:55-18:31)

Motion by Jennifer Webster to add the petition: Nancy Dallas - Hold on Building to

the active files list; seconded by Daniel Guzman King. Motion carried unanimously.

3. Oneida Nation Emergency Planning Committee Bylaws Amendments

(18:34-20:08)

Motion by Jennifer Webster to add the Oneida Nation Emergency Planning Committee

Bylaws Amendments to the active files list; seconded by Daniel Guzman King. Motion

carried unanimously.

4. Curfew Law Amendments (20:09-22:11)

Motion by Jennifer Webster to add the Curfew Law amendments to the active files list

for a technical amendment with Jennifer Webster as the sponsor; seconded by

Daniel Guzman King. Motion carried unanimously.

5. Domestic Animals Law Amendments (23:39-24:55)

Motion by Daniel Guzman King to add Domestic Animals amendments to the active

files list for a technical amendment with Ernest Stevens III as the sponsor; seconded by

Jennifer Webster. Motion carried unanimously.

V.

Additions

1. Oneida Land Commission Bylaws (25:00-28:26)

Motion by Daniel Guzman King to add the Oneida Land Commission Bylaws

amendments to the active files list as agreed upon in our joint meeting; seconded by

Jennifer Webster. Motion carried unanimously.

VI.

Administrative Items

1. E-poll Results: Sanctions and Penalties for Elected Officials Law – Approve

Updated Materials and Fiscal Impact Statement Request (28:38-31:27)

Motion by Jennifer Webster to enter into record the e-poll results: Sanctions and

Penalties for Elected Officials Law – Approve Updated Materials and Fiscal Impact

Statement Request; seconded by Daniel Guzman King. Motion carried unanimously.

2. E-Poll Results: Sanctions and Penalties for Elected Officials Law – Approve

Adoption Packet and Forward to Oneida Business Committee. (31:28-33:18)

Motion by Jennifer Webster to ratify the January 21, 2020, e-poll results into record;

seconded by Daniel Guzman King. Motion carried unanimously.

3. E-poll Results: Sanctions and Penalties for Elected Officials Law – Rescind Motion

Approving Adoption Packet (33:21-35:44)

Motion by Jennifer Webster to enter into the record the January 21, 2020, e-poll results

for the rescission of the January 21, 2020, LOC motion approving the Sanctions and

Penalties for elected Officials Law adoption packet and forward to the OBC for

inclusion on the tentative March 2020 GTC meeting agenda; seconded Daniel Guzman

King. Motion carried unanimously.

Legislative Operating Committee Meeting Minutes of February 5, 2020

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4. Boards, Committees, and Commissions One-Year Evaluation Report (35:5037:00)

Motion by Daniel Guzman King to accept the Boards, Committees, and Commissions

law one-year evaluation report; seconded by Jennifer Webster. Motion carried

unanimously.

VII.

Executive Session

VIII. Adjourn

Motion by Jennifer Webster to adjourn at 9:37 a.m.; seconded by Daniel Guzman King.

Motion carried unanimously.

Legislative Operating Committee Meeting Minutes of February 5, 2020

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Oneida Nation

Oneida Business Committee

Legislative Operating Committee

PO Box 365 • Oneida, WI 54155-0365

Oneida-nsn.gov

Legislative Operating Committee

February 19, 2020

Indian Preference in Contracting Law

Amendments

Submission Date: 4/17/19

LOC Sponsor: Ernest Stevens III

Public Meeting: 12/19/19

Emergency Enacted: n/a

Summary: The purpose of the amendments to this Law is to complete an overview of any amendments

and updates that might be needed for this law.

4/17/19 LOC: Motion by Jennifer Webster to add the Indian Preference in Contracting law to the active files

list with a medium priority and Ernest Stevens III as the sponsor; seconded by Kirby Metoxen.

Motion carried unanimously.

5/20/19:

Work Meeting. Present: David P. Jordan, Jennifer Webster, Daniel Guzman King, Ernest

Stevens III, Kirby Metoxen, Jennifer Falck, Clorissa N. Santiago, Brandon Wisneski, Travis

Wallenfang, Paul Stensloff, Jeff House, Cathy Bachhuber. The purpose of this work meeting

was to discuss why the law was added to the AFL and what portions of the law needed to be

addressed through amendments. The group identified potential areas for amendments and

policy considerations for the LOC. Discussed that the notes from the meeting will be compiled

and the LOC will begin making policy considerations – additional meetings to have further

discussions of those considerations and the law in general will be scheduled.

6/5/19:

Work Meeting. Present: David P. Jordan, Kirby Metoxen, Jennifer Webster, Daniel Guzman

King, Ernest Stevens III, Jennifer Falck, Clorissa N. Santiago, Brandon Wisneski. The purpose

of this work meeting was to begin considering potential amendments to the Law – based on the

discussion and suggestions from the last work meeting. The LOC did not complete an initial

review of the beginning policy considerations so an additional work meeting will be scheduled

this week.

6/6/19:

Work Meeting. Present: David P. Jordan, Kirby Metoxen, Jennifer Webster, Ernest Stevens III,

Jennifer Falck, Clorissa N. Santiago, Brandon Wisneski. The purpose of this work meeting was

to continue the discussion and consideration of potential amendments to the Law from the June

6 LOC work session – based on the discussion and suggestions for potential amendments from

the May 20 LOC work meeting.

7/25/19:

Work Meeting. Present: David P. Jordan, Jennifer Webster, Daniel Guzman King, Ernest

Stevens III, Jennifer Falck, Clorissa N. Santiago, Brandon Wisneski, Patricia Garvey, Travis

Wallenfang, Patrick Stensloff. The purpose of this work meeting was to review the law lineby-line and discuss potential amendments, as well as to review and confirm prior issues the

LOC decided to support and not support so we can move forward with amendments to this law.

9/26/19:

Work Meeting. Present: Jennifer Webster, Daniel Guzman King, Ernest Stevens III, Kirby

Metoxen, Clorissa N. Santiago, Brandon Wisneski, Travis Wallenfang, Patrick Stensloff, Paul

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Witek, Jameson Wilson. The purpose of this work meeting was for Indian Preference,

Purchasing, and Community Economic Development Divisions Engineering to educate and

discuss with the LOC on the internal spreadsheets that are used for scoring, SOPs, and a

proposed fine schedule.

10/21/19:

Work Meeting. Present: Clorissa N. Santiago, Brandon Wisneski, Travis Wallenfang, Paul

Witek. The purpose of this work meeting was to review the draft of the proposed amendments

and the fine and penalty resolution with the affected entities.

10/24/19:

Work Meeting. Present: David P. Jordan, Jennifer Webster, Ernest Stevens III, Jennifer Falck,

Clorissa N. Santiago, Brandon Wisneski. The purpose of this work meeting was for the LOC

to review the draft of the proposed amendments to the law.

11/6/19 LOC: Motion by Ernest Stevens III to approve the draft and the legislative analysis for the Indian

Preference in Contracting Law Amendments; seconded by Kirby Metoxen. Motion carried

unanimously.

11/14/19:

Work Meeting. Present: Clorissa N. Santiago, Brandon Wisneski, Travis Wallenfang, Patrick

Stensloff. The purpose of this work meeting was to review the updated draft fine and penalty

resolution and discuss specific fine amounts for each violation.

11/20/19 LOC: Motion by Ernest Stevens III to approve the public meeting packet and forward the Indian

Preference in Contracting law amendments to a public meeting on December 19, 2019;

seconded by Kirby Metoxen. Motion carried unanimously.

12/12/19:

Work Meeting. Present: David P. Jordan, Jennifer Webster, Kirby Metoxen, Jennifer Falck,

Clorissa N. Santiago, Brandon Wisneski. The purpose of this work meeting was for the LOC

to review and discuss the fine and penalty resolution. LOC directed one change be made to the

resolution.

12/19/19:

Public Meeting Held. Present: David P. Jordan, Jennifer Webster, Jennifer Falck, Clorissa N.

Santiago, Brandon Wisneski, Lee Cornelius, Jameson Wilson, Rae Skenandore, Crystal Meltz,

Amy Hacker, Jeffrey House. One (1) person gave oral comments during the public meeting.

12/30/19:

Public Comment Period Closed. Two (2) submissions of written comments were received

during the public comment period.

2/5/20 LOC:

Motion by Jennifer Webster to accept the public comments and the public comment review

memorandum and defer to a work meeting for further consideration; seconded by Daniel

Guzman King. Motion carried unanimously.

2/5/20:

Work Meeting. Present: Kirby Metoxen, Jennifer Webster, Daniel Guzman King, Clorissa N.

Santiago, Brandon Wisneski. The purpose of this work meeting was to review and consider the

public comments that were received during the public meeting and subsequent public comment

period. The LOC directed some revisions to be made to the draft based on the comments.

Next Steps:

 Accept the updated public comment review memorandum, draft, and legislative analysis.

 Approve the Indian Preference in Contracting law amendments fiscal impact statement request

memorandum and forward to the Finance Department requesting a fiscal impact statement be prepared

and submitted to the Legislative Operating Committee by March 4, 2020.

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Oneida Nation

Oneida Business Committee

Legislative Operating Committee

PO Box 365 • Oneida, WI 54115-0365

Oneida -nsn.gov

TO:

FROM:

DATE:

RE:

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ONEIDA

Legislative Operating Committee (LOC)

Clarissa N. Santiago, Legislative Reference Office, Staff Attorney

February 19, 2020

Indian Preference in Contracting Law Amendments: Public Meeting Comment

Review

CAI;

On December 19, 2019, a public meeting was held regarding the proposed amendments to the

Indian Preference in Contracting law ("the Law"). The public comment period was then held open

until December 30, 2019. On February 5, 2020, the Legislative Operating Committee reviewed

and considered all public comments that were received.

This memorandum is submitted as the Legislative Operating Committee's review of the oral and

written comments received within the public meeting and public comment period.

Comments 1 throuoh 2 - Pur ose of the Law:

502.1. Purpose and Policy

502.1-1. Purpose. The purpose of this law is to establish an Indian Preference Office and

increase economic benefits for the Nation and members of the Nation by providing for the

maximum utilization of Indian workers and businesses on projects of the Nation which occur

on or near the Reservation.

Jeffrey S. House (written): Thank you Chairman Jordan and Vice-Chairman Metoxen and

members of the Legislative Operating Committee for allowing me to comment on the drafted

amendments to the Indian Preference in Contracting law. I join you today as a representative of

Oneida ESC group, a tribal corporation that is 100% owned by the Oneida Nation. I would like to

begin my comments by highlighting the purpose of the law in Section 502.1-1; which is to establish

an Indian Preference Office and increase economic benefits for the Nation and members of the

Nation by providing for the maximum utilization oflndian workers and businesses on projects of

the Nation which occur on or near the Reservation. These two drivers: "Increase economic benefits

for the Nation" and "maximum utilization of Indian workers and businesses," I believe are the core

objectives of the law and cannot be over emphasized.

The Oneida Nation has a greater than $740 million impact on Brown and Outagamie Counties and

is responsible for more the 5,460 jobs according to a St. Norbert College Study conducted in 2018.

That equates to $89 million in government revenue, of which $33 .4 million is for state and local

government. I believe the purpose of the Law is to keep as much of impact on the Oneida Nation

reservation.

Jeffrey S. House (oral): Uhh thank you Councilwoman Webster and Chairman Jordan for

allowing me to provide this testimony. I join you today as a representative of Oneida ESC group,

a tribal corporation that is one hundred percent ( 100%) owned by the Oneida Nation.

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Thank you Jenny for reading the purpose of the Law, that’s my first, or I would like to give my

comments by highlighting the purpose of the Law. As you have stated, which is to establish an

Indian Preference Office and increase economic benefits for the Nation and members of the Nation

by providing for the maximum utilization of Indian workers and businesses on projects of the

Nation which occur on or near the Reservation. These two drivers: “Increase economic benefits

for the Nation” and “maximum utilization of Indian workers and businesses,” I believe are the core

objectives of the law and cannot be over emphasized.

The Oneida Nation has a greater than seven hundred and forty million dollar ($740,000.000)

impact on Brown and Outagamie Counties and is responsible for more than five thousand four

hundred and sixty (5,460) jobs according to a St. Norbert College Study conducted in 2018. That

equates to eighty-nine million dollars ($89,000,000) in government revenue, of which thirty-three

point four million ($33,400,000) is for state and local government. I believe the purpose of the

Law is to keep as much of impact on the Oneida Nation Reservation.

Response

The commenter highlights the purpose of the Law, and provides some statistics on the Nation’s

economic impact on Brown and Outagamie Counties.

As there are no suggestions being requested, or questions asked by this comment, there is no

revision to the Law recommended based on this comment.

LOC Consideration

The Legislative Operating Committee determined no revision to the Law was necessary based on

these comments as the commenter is providing background information.

Comment 3 – Jurisdiction of the Nation:

502.1. Purpose and Policy

502.1-1. Purpose. The purpose of this law is to establish an Indian Preference Office and

increase economic benefits for the Nation and members of the Nation by providing for the

maximum utilization of Indian workers and businesses on projects of the Nation which occur

on or near the Reservation.

502.3. Definitions

502.3-1. This section shall govern the definitions of words and phrases used within this law.

All words not defined herein shall be used in their ordinary and everyday sense.

(bb) “Reservation” means all the lands within the exterior boundaries of the

Reservation of the Oneida Nation, as created pursuant to the 1838 Treaty with the

Oneida, 7 Stat. 566, and any lands added thereto pursuant to federal law.

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502.6. Application of Indian Preference to Contracts

502.6-1. Application of the Law. Except where prohibited or limited by law or grant funding

requirements, this law shall apply to all contracts over three thousand dollars ($3,000) that

meet the requirements of (a) and/or (b) below:

(a) This law shall apply to:

(1) all contracts, subcontracts, and compliance agreements to which the

Nation is a party, and all contracts, subcontracts and compliance agreements

that are entered into on behalf of, or for the benefit of the Nation, whereby

goods and services are provided on or near the Reservation; and

Eric McLester (written): I am providing written comments in support of the proposed changes

to the Indian Preference Law. As the Agent for the Oneida Golf Enterprise, I am in full support of

the purpose of the law which is to increase "economic benefits for the Nation and members of the

Nation by providing for the maximum utilization of Indian workers and businesses on projects of

the Nation which occur on or near the Reservation." I would recommend that these economic

benefits not be limited to just on or near the Reservation, and that wording similar to the "Joint

Ventures" definition, be included that allows for economic development on a "project-specific

basis" for projects off Reservation.

Response

The commenter expresses that the Law should apply to projects off and not near the Reservation.

The Law provides that Indian preference shall be applied to all contracts, subcontracts, and

compliance agreements to which the Nation is a party, or the agreements are entered into on behalf

of the Nation, whereby goods and services are provided on or near the Reservation. [5 O.C. 502.11, 502.6-1(a)(1)]. The Law defines “Reservation” as all the lands within the exterior boundaries

of the Reservation of the Oneida Nation, as created pursuant to the 1838 Treaty with the Oneida,

7 Stat. 566, and any lands added thereto pursuant to federal law. [5 O.C. 502.3-1(bb)].

The definition of Reservation in this Law is consistent with the Constitution and Bylaws of the

Oneida Nation which provides that the jurisdiction of the Nation extends to the territory within the

present confines of the Oneida Reservation and to such other lands as may be hereafter added

thereto within or without said boundary lines under any law of the United States, except as

otherwise provided by law. [Constitution and Bylaws of the Oneida Nation, Article I]. Simply

speaking, jurisdiction is the power of a government to affect persons, property, and circumstances

within its territory.

The application of this Law is specific to projects which occur on or near the Reservation because

this is the territory where the Nation has jurisdiction, and the Nation only has the authority to affect

persons, property, and circumstances within its territory.

Since the applicability of this Law is consistent with the territorial jurisdiction of the Nation, there

is no revision to the Law recommended based on this comment.

LOC Consideration

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The Legislative Operating Committee determined there was no revision to the Law needed based

on this comment since an explanation on the Nation’s territorial jurisdiction was provided.

Comment 4 – Definition of Joint Venture:

502.3. Definitions

502.3-1. This section shall govern the definitions of words and phrases used within this law.

All words not defined herein shall be used in their ordinary and everyday sense.

(v) “Joint venture” means a one-time grouping of two (2) or more entities in a

business undertaking.

502.5. Certification of Entities

502.5-8. Joint Ventures. All joint ventures seeking certification as an Indian-owned business

shall submit documentation of the business arrangements of the joint venture in addition to

the required documentation for certification.

(a) Certification for a joint venture shall be issued on a project specific basis.

Eric McLester (written): The language referring to Joint Ventures speaks to these ventures being

one-time or short-term partnerships but there are times when long term ventures make good

business sense. I would recommend language be added that long term joint ventures can be

considered on a project. specific basis if it is makes good business sense to do so. The Tribe should

be open to every sound business opportunity and not limit or restrict new ventures.

Response

The commenter discusses the language referring to joint ventures and states that long term joint

ventures should also be considered in addition to one-time or short-term joint ventures.

The Law provides that joint ventures seeking certification as an Indian-owned business are

required to submit documentation of the business arrangements of the joint venture in addition to

the required documentation for certification. [5 O.C. 502.5-8]. Joint ventures are a one (1) time

grouping of two (2) or more entities in a business undertaking. [5 O.C. 502.3-1(v)]. Joint ventures

typically occur when two (2) or more parties agree to pool their resources for the purpose of

accomplishing a specific task or project. The Law then clarifies that certification for a joint venture

shall be issued on a project specific basis. [5 O.C. 502.5-8(a)]. The Law does not specify any

requirements as to whether joint ventures are short term business groupings or long-term business

groupings, instead it is all dependent on the term of the project for which the two (2) entities are

applying for certification on.

It was the intent of the Legislative Operating Committee that revising the Law to allow for joint

ventures of Indian-owned business would provide more opportunities for Indian-owned

businesses. Therefore, there is no revision to the Law recommended based on this comment.

LOC Consideration

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The Legislative Operating Committee determined that there was no revision to the Law needed

based on this comment as the Law does not specify any requirements as to the length of joint

ventures. The Legislative Operating Committee is hopeful that revising the Law to allow for joint

ventures of Indian-owned business will provide more opportunities for Indian-owned businesses.

Comments 5 through 6 – Support for Definition of Tribal Corporation:

502.3. Definitions

502.3-1. This section shall govern the definitions of words and phrases used within this law.

All words not defined herein shall be used in their ordinary and everyday sense.

(ee) “Tribal corporation” means a corporation chartered and/or wholly owned by

the Nation pursuant to the Constitution and Bylaws of the Oneida Nation.

Jeffrey S. House (written): Thank you for including the language, “wholly owned,” to the

definition of Tribal Corporation in Section 502.3-1(ee). Entities such as Oneida ESC Group are

now defined in the Law other than as an entity with all other non-Oneida and non-Indian businesses

and companies.

Jeffrey S. House (oral): Thank you for including the language, “wholly owned,” to the definition

of Tribal Corporation in Section 502.3-1(ee). Entities such as Oneida ESC Group are now defined

in the Law other than as an entity with all other non-Oneida and non-Indian businesses and

companies.

Response

The commenter expresses gratitude to the Legislative Operating Committee for expanding the

definition of Tribal Corporations to include corporations that are wholly owned by the Nation in

addition to those corporations that are charted by the Nation, as this clarifies that the Oneida ESC

Group is a Tribal Corporation under the Law.

There is no revision to the Law recommended based on this comment.

LOC Consideration

The Legislative Operating Committee determined there was no revision to the Law needed based

on these comments. The Legislative Operating Committee thanks the commenter for expressing

his support and gratitude for the revised definition of Tribal corporation.

Comment 7 – Concern with Definition of Tribal Corporation:

502.3. Definitions

502.3-1. This section shall govern the definitions of words and phrases used within this law.

All words not defined herein shall be used in their ordinary and everyday sense.

(ee) “Tribal corporation” means a corporation chartered and/or wholly owned by

the Nation pursuant to the Constitution and Bylaws of the Oneida Nation.

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Eric McLester (written): Regarding the Definition of Tribal Corporation, the requirement that

"a corporation chartered and/or wholly owned by the Nation pursuant to the Constitution and

Bylaws of the Oneida Nation" is again limiting to a Corporations success. Why would you limit

any Tribal investment, joint venture, partnership, etc, to only those wholly owned by the Tribe? I

would recommend the Tribe support any business venture the Tribe has a stake in to be given

preference.

Response

The commenter provides that the definition of “Tribal corporation” under the Law is limiting the

success of a Tribal corporation by requiring that a Tribal corporation be wholly owned by the

Nation.

The Law defines a “Tribal corporation” as a corporation chartered and/or wholly owned by the

Nation pursuant to the Constitution and Bylaws of the Oneida Nation. [5 O.C. 502.3-1(ee)]. To be

considered a Tribal corporation, the corporation can be chartered by the Nation, wholly owned by

the Nation, or both. So even if a corporation is not wholly owned by the Nation, but it was charted

by the Nation, that would still make it a Tribal corporation.

It is important to remember though that in terms of the application of this Law, a Tribal corporation

does not automatically receive Indian preference because it was chartered or is wholly owned by

the Nation. Instead, just like any other business or corporation, the Tribal corporation must still

meet the criteria to be certified as an Indian-owned business. The Law provides that in order to

seek certification as an Indian-owned business, the following criteria shall be met by the applicant

entity:

 There is Indian financial ownership, control and management of at least fifty-one percent

(51%) of the entity.

 Indian financial ownership is established where the Nation, members of the Nation

and/or other Indians own fifty-one percent (51%) or more of the assets and

equipment, receive fifty-one percent (51%) or more of distributed net profits, and

would receive fifty-one percent (51%) or more of the entity’s assets upon

dissolution.

 Indian control is established where the Nation, member of the Nation and/or other

Indian owner(s) maintain a minimum of fifty-one percent (51%) of voting rights or

other controlling decisional authority.

 Indian Management is established where an Indian owner(s) is directly involved in

the entity’s management, this can be shown where at least one (1) Indian owner is

directly involved in the daily operations of the entity on a full-time basis and in a

senior-level position; or at least one (1) Indian owner is responsible for the

oversight of operations, even though the daily operations are conducted by nonowner employees.

 The entity can demonstrate financial responsibility, including but not limited to, evidence

of an adequate line of credit, contributions of sufficient working capital, applicable

required bonding and insurance, materials and/or equipment necessary to perform

applicable work.

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The entity can provide past and current licensing or certifications, including any penalties,

or other punitive actions or debarments taken by any licensing body within the past ten

(10) years.

[5 O.C. 502.5-1(a)-(c)].

Therefore, as long as a Tribal corporation can meet the criteria for certification as an Indian-owned

business provided for in section 502.5-1 of the Law, the Tribal corporation would be eligible for

Indian preference. There is no revision to the Law recommended based on this comment.

LOC Consideration

The Legislative Operating Committee determined that there was no revision to the Law needed

based on this comment based on the fact that as long as a Tribal corporation can meet the criteria

for certification as an Indian-owned business provided for in section 502.5-1 of the Law, the Tribal

corporation would be eligible for Indian preference.

Comments 8 through 9 – Certification Renewal:

502.5. Certification of Entities

502.5-5. Notification Requirements. A certified entity shall report the following to the Indian

Preference Office within ten (10) business days of such an occurrence:

(a) changes in the ownership or control status of the entity;

(b) suspension, revocation, lapse or loss of any licensing, certification, insurance,

bonding, or credit lines; and/or

(c) any other changes that could:

(1) affect an entity’s eligibility for certification;

(2) affect the financial liability of any entity, contracting party or the Nation;

and/or

(3) alter the status of the qualifications of the entity.

502.5-6. Certification Renewal. Certification is granted on an annual basis and shall lapse

after one (1) year unless renewed.

(a) To apply for a renewal certification, each certified entity shall complete and

return a renewal application and annual reporting form so that the Indian Preference

Office may update its records.

(b) Annual renewal notices, applications and reporting forms shall be mailed to each

certified entity at least thirty (30) days prior to the expiration of an entity’s

certification; however, the responsibility for renewal is upon the entity.

Jeffrey S. House (written): In Section 502.5-7 regarding Certification Renewal. I would

recommend Tribal Corporations be exempt for annual renewals. The previous paragraph, Section

502.5-5(a) requires that Certified entities shall report change of ownership within 10 days and

therefore would require re-certification at that point. We see no benefit for Tribal Corporations to

have to repeatedly re-certify when they are 100% owned by the Oneida Nation and for the Indian

Preference Office to spend time, energy, and money for a renewal process that is guaranteed.

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Jeffrey S. House (oral): In Section 502.5-7 regarding Certification Renewal. I would recommend

Tribal Corporations be exempt for annual renewals. The previous paragraph, Section 502.5-5(a)

requires that Certified entities shall report change of ownership within ten (10) days and therefore

would require re-certification at that point. We see no benefit for Tribal Corporations to have to

repeatedly re-certify when they are one hundred percent (100%) owned by the Oneida Nation and

for the Indian Preference Office to spend time, energy, and money for a renewal process that is

guaranteed.

Response

The commenter requests that Tribal Corporations be exempt from the requirement to renew its

Indian-owned business certification on an annual basis, due to the fact that the Law already

requires a certified entity to notify the Indian Preference Office of any changes in the ownership

or control status of the entity.

The certification that an entity is an Indian owned business, and therefore is eligible for Indian

preference under the Law, is granted on an annual basis. [5 O.C. 502.5-6]. In order to prevent a

lapse in certification, a certified entity must renew its certification by providing the Indian

Preference Office a renewal application and annual reporting form. [5 O.C. 502.5-6(a)]. In

addition to the certification renewal requirements required by the Law, a certified entity is required

to notify the Indian Preference Office within ten (10) business days of any of the following

occurrences:

 changes in the ownership or control status of the entity;

 suspension, revocation, lapse or loss of any licensing, certification, insurance, bonding, or

credit lines; and/or

 any other changes that could:

 affect an entity’s eligibility for certification;

 affect the financial liability of any entity, contracting party or the Nation; and/or

 alter the status of the qualifications of the entity.

[5 O.C. 502.5-5(a)-(c)].

Whether to require a Tribal Corporation, or any certified entity, to renew its Indian-owned business

certification on an annual basis, or simply be required to follow the notification requirements found

in section 502.5-5 of the Law, is a policy consideration for the Legislative Operating Committee.

Requiring annual renewals of certification ensures that the Indian Preference Office maintains up

to date information on the certified entity to ensure that the certified entity continues to meet the

criteria to be certified as an Indian-owned business. Eliminating the requirement to renew

certification on an annual basis, and instead relying on the notification requirements of section

502.5-5 may eliminate some time and effort spent by the Indian Preference Office in processing

renewal applications and promote greater efficiency.

The Legislative Operating Committee may make one of the following determinations:

1. The Law should remain as currently drafted. Certification as an Indian-owned business

shall be renewed on an annual basis by all certified entities, and all certified entities are

required to follow the notification requirements provided in section 502.5-5 of the Law.

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2. The Law should be revised so that Tribal Corporations are exempt from the requirement to

renew certification on an annual basis, due to the fact that the requirements to follow the

notification requirements of section 502.5-5 should be sufficient to ensure that the Indian

Preference Office is notified of all relevant events that may occur. If the Legislative

Operating Committee makes this determination then the following revision is

recommended:

502.5-6. Certification Renewal. Certification is granted on an annual basis and

shall lapse after one (1) year unless renewed.

(a) To apply for a renewal certification, each certified entity shall complete

and return a renewal application and annual reporting form so that the

Indian Preference Office may update its records.

(b) Annual renewal notices, applications and reporting forms shall be

mailed to each certified entity at least thirty (30) days prior to the expiration

of an entity’s certification; however, the responsibility for renewal is upon

the entity.

(c) Exemption for Tribal Corporations. Tribal corporations shall be exempt

from the requirement to renew certification on an annual basis. Certification

for a Tribal corporation is granted until such a time that the Indian

Preference Office is made aware that there have been changes that may

affect the certification status of a Tribal corporation in accordance with the

notification requirements of section 502.5-5.

(1) When a Tribal corporation complies with the notification

requirements of section 502.5-5 the Tribal corporation shall also

apply for renewal of its certification.,

(A) The Indian Preference Office shall provide the Tribal

corporation with a renewal application and annual reporting

form.

(B) The Tribal corporation shall return the renewal

application and annual reporting form to the Indian

Preference Office within __(X) days.

3. The Law should be revised to eliminate the requirement to renew certification on an annual

basis, and instead certification as an Indian-owned business should remain current until the

Indian Preference Office is noticed that the status of the certified entity has changed in

accordance with the notification requirements of section 502.5-5 of the Law. If the

Legislative Operating Committee makes this determination then the following revision is

recommended:

502.5-6. Certification Renewal. Certification is granted on an annual basis and

shall lapse after one (1) year unless renewed. until such a time that the Indian

Preference Office is made aware that there have been changes that may affect the

certification status of a certified entity in accordance with the notification

requirements of section 502.5-5.

(a) When an entity complies with the notification requirements of section

502.5-5 the entity shall also To apply for a renewal of its certification.,

(1) The Indian Preference Office shall provide the each certified

entity shall complete and return with a renewal application and

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annual reporting form. so that the Indian Preference Office may

update its records.

(2) The certified entity shall return the renewal application and

annual reporting form to the Indian Preference Office within __(X)

days.

(b) Annual renewal notices, applications and reporting forms shall be

mailed to each certified entity at least thirty (30) days prior to the expiration

of an entity’s certification; however, the responsibility for renewal is upon

the entity.

LOC Consideration

The Legislative Operating Committee determined that the Law should be revised so that Tribal

corporations are exempt from the requirement to renew certification on an annual basis, due to the

fact that the requirements to follow the notification requirements of section 502.5-5 should be

sufficient to ensure that the Indian Preference Office is notified of all relevant events that may

occur.

The Legislative Operating Committee determined that the following revision should be made to

the Law:

502.5-6. Certification Renewal. Certification is granted on an annual basis and shall lapse

after one (1) year unless renewed.

(a) To apply for a renewal certification, each certified entity shall complete and

return a renewal application and annual reporting form so that the Indian Preference

Office may update its records.

(b) Annual renewal notices, applications and reporting forms shall be mailed to

each certified entity at least thirty (30) days prior to the expiration of an entity’s

certification; however, the responsibility for renewal is upon the entity.

(c) Exemption for Tribal Corporations. Tribal corporations shall be exempt from

the requirement to renew certification on an annual basis. Certification for a Tribal

corporation is granted until such a time that the Indian Preference Office is made

aware that there have been changes that may affect the certification status of a

Tribal corporation in accordance with the notification requirements of section

502.5-5.

(1) When a Tribal corporation complies with the notification requirements

of section 502.5-5 the Tribal corporation shall also apply for renewal of its

certification.,

(A) The Indian Preference Office shall provide the Tribal

corporation with a renewal application and annual reporting form.

(B) The Tribal corporation shall return the renewal application and

annual reporting form to the Indian Preference Office ten (10) days.

The Legislative Operating Committee made this decision after a discussion on whether a Tribal

corporation should be required to renew its certification as an Indian-owned business on an annual

basis. The Legislative Operating Committee discussed the benefits of requiring annual renewal of

certification, which includes ensuring that the Indian Preference Office maintains the most up to

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date information on the Tribal corporation to ensure that it continues to meet the criteria for

certification. But ultimately the efficiency of relaying on the notification requirements of section

502.5-5, and saving time and effort by no longer requiring annual certification renewal from Tribal

corporations, which should be held to a higher standard of expectations for sharing information

with the Indian Preference Office than other Indian-owned businesses, is what led the Legislative

Operating Committee to this decision on revising the Law.

Comments 10 through 11 – Joint Ventures:

502.5. Certification of Entities

502.5-8. Joint Ventures. All joint ventures seeking certification as an Indian-owned business

shall submit documentation of the business arrangements of the joint venture in addition to

the required documentation for certification.

(a) Certification for a joint venture shall be issued on a project specific basis.

Jeffrey S. House (written): We agree and applaud the Committee for Section 502.5-8 in regards

in Joint Ventures. We believe allowing joint ventures to be certified as Indian Owned, assuming

each JV meets the certification criteria, is a good opportunity for tribally owned businesses,

enterprises, and tribal corporations to increase competitive strength on a case-by-case basis.

Jeffrey S. House (oral): We agree and applaud the Committee for Section 502.5-8 in regards in

Joint Ventures. We believe allowing joint ventures to be certified as Indian Owned, assuming each

JV meets the certification criteria, is a good opportunity for tribally owned businesses, enterprises,

and tribal corporations to increase competitive strength on a case-by-case basis.

Response

The commenter commends the Legislative Operating Committee for revising the Law to allow

joint ventures of Indian-owned businesses. The Legislative Operating Committee was hopeful that

this revision to the Law would provide more opportunities for Indian-owned businesses.

There is no revision to the Law recommended based on this comment.

LOC Consideration

The Legislative Operating Committee determined there was no revision to the Law needed based

on these comments. The Legislative Operating Committee thanks the commenter for expressing

his support for this provision of the Law.

Comments 12 through 14 – Exclusive Utilization of Corporations:

502.3. Definitions

502.3-1. This section shall govern the definitions of words and phrases used within this law.

All words not defined herein shall be used in their ordinary and everyday sense.

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(n) “Enterprise” means any internal operation owned and operated by the Nation

that generates revenues through its core business functions, including but not limited

to, Oneida Gaming, Oneida Retail, and Oneida Printing.

(u) “Internal service” means any service provided for free or at cost for the Nation

and includes but is not limited to such services as certain types of advocacy or

representation, mail delivery and pick up, grant writing or assistance, tourism

initiatives, Human Resource assistance and technical support.

502.6. Application of Indian Preference to Contracts

502.6-2. Non-Applicability of the Law.

(b) Internal Services and Enterprises. The application of Indian preference shall be

superseded in specific situations in accordance with the following:

(1) The Nation shall exclusively utilize internal services and enterprises

whenever an internal service of the Nation or enterprise could or does provide

the necessary goods and services in the ordinary course of business.

(2) If an internal service or enterprise is unable to fulfill some or all of the

requirements of a contract, then the provisions of this law shall apply to any

outsourcing conducted by the internal service or enterprise.

Jeffrey S. House (written): Section 502.6-2(b)(1) states the Nation shall exclusively utilize

services and enterprises whenever an internal service of the Nation or enterprise could or does

provide the necessary goods and services in the ordinary course of business. We feel this should

include Tribal Corporations. At the very least, include the phrase “may include Tribal

Corporations.” If the purpose of the Oneida Indian Preference in Contracting is maximum

utilization of Indian businesses, why wouldn’t the Nation include language for Tribal

corporations? The Nation receives the distribution of profits, the Nation earns the economic benefit

of a growing company, and more of the economic impact of the Oneida Nation remains within the

Oneida Nation.

The Indian Preference in Contracting Law initially included Tribal Preference for corporations but

it was removed with the amendments to the law adopted by OBC Resolution 3-26-13-A.

Jeffrey S. House (oral): Section 502.6-2(b)(1) states the Nation shall exclusively utilize services

and enterprises whenever an internal service of the Nation or enterprise could or does provide the

necessary goods and services in the ordinary course of business. We feel this should include Tribal

Corporations. At the very least, include the phrase “may include Tribal Corporations.” If the

purpose of the Oneida Indian Preference in Contracting is maximum utilization of Indian

businesses, why wouldn’t the Nation include language for Tribal corporations? The Nation

receives the distribution of profits, the Nation earns the economic benefit of a growing company,

and more of the economic impact of the Oneida Nation remains within the Oneida Nation. The

Indian Preference in Contracting Law initially included Tribal Preference for corporations but it

was removed with the amendments to the law adopted by OBC Resolution 03-26-13-A.

Eric McLester (written): Where ever possible and when allowable by contracting rules and laws,

Tribal Corporations should be given sole source preference so that the businesses are supported,

and revenue and resources are invested back into Tribal investments, regardless if they are 1%

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owned or wholly owned businesses. It makes good sense to re-invest and support any business the

Tribe has a vested interest in seeing succeed.

Response

The commenters state that the Law should require the Nation to exclusively utilize Tribal

corporations if the Tribal corporation could or does provide the necessary goods and services in

the ordinary course of business. The first commenter alludes that if the purpose of the Law is to

maximize the utilization of Indian businesses, then why would the Nation not exclusively utilize

corporations as it is the Nation that earns an economic benefit from the corporation. The first

commenter also provides that the Law initially included Tribal preference for corporations but it

was moved with amendments to the Law adopted in 2013.

Indian preference is required to be applied to all contracts, subcontracts, or compliance agreements

over three thousand dollars ($3,000), except where prohibited or limited by law or grant funding

requirements, where the Nation is a party, or the contract is entered into on behalf of, or for the

benefit of the Nation, whereby goods and services are provided on or near the Reservation. [5 O.C.

502.6-1].

The Law then goes on to state that Indian preference is not applied in situations where an internal

service or enterprise of the Nation could or does provide the necessary goods and services in the

ordinary course of business. [5 O.C. 502.6-2(b)]. In the case where an internal service or enterprise

of the Nation could or does provide the necessary goods and services in the ordinary course of

business, the Nation shall exclusively utilize the internal service or enterprise. [5 O.C. 502.62(b)(1)]. But if an internal service or enterprise is unable to fulfill some or all of the requirements

of a contract, then Indian preference under this Law shall apply to any outsourcing conducted by

the internal service or enterprise. [5 O.C. 502.6-2(b)(2)]. An internal service is any service

provided for free or at cost for the Nation and includes but is not limited to such services as

advocacy or representation, mail delivery and pick up, grant writing or assistance, tourism

initiatives, Human Resource assistance and technical support. [5 O.C. 502.3-1(u)]. An enterprise

is any internal operation owned and operated by the Nation that generates revenues through its

core business functions, including but not limited to, Oneida Gaming, Oneida Retail, and Oneida

Printing. [5 O.C. 502.3-1(n)].

When discussing the application of Indian preference, it is important to remember that it is

ultimately the Nation that is a party to the contract and responsible for expending the funds for the

contract. So even if the Nation receives a portion of the distribution of the profits from a Tribal

corporation’s business, the Nation still has to expend the funds to pay the initial contract. The

exclusive utilization of internal services and enterprises when the internal service or enterprise

could or does provide the necessary goods and services can be attributed to the fact that the internal

service is providing the good or service for free or at cost for the Nation, and the Nation has direct

control over the internal service or enterprise as they are both internal operations of the Nation.

Internal services and enterprises can be distinguished from Tribal corporations based on the fact

that Tribal corporations are not providing a good or service to the Nation for free or at no cost, and

the Nation does not have direct control over the actions of the Tribal corporations.

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It is also important to remember that the purpose of the Law is to provide for the maximum

utilization of Indian workers and businesses on projects of the Nation. [5 O.C. 502.1-1]. It is the

maximum utilization of Indian workers and businesses, not the exclusive utilization of Indian

workers and businesses, that this Law aims to provide. The requirement for the exclusive

utilization of Tribal corporations could potentially block the utilization of any other privately

owned Indian business from contracting with the Nation where a Tribal corporation could provide

the good or service. This could also serve as a deterrent for members of the Nation and other

Indians that might otherwise consider starting or expanding a business in the same areas as a Tribal

corporation. The goal of the Law is not to simply drive business to corporations of the Nation. The

use of Indian workers and businesses is maximized in this Law through the application of an Indian

preference percentage discount that is applied to contract bids that provides the Indian-owned

business an advantage while still promoting competitive bidding. [5 O.C. 502.6-9, 502.6-10].

Additionally, although the comment is incorrect in the statement that the Law initially included

preference for corporations but it was removed with the amendments to the law adopted by the

Oneida Business Committee through resolution BC-03-27-13-B, it is important to note that sole

source contracting for Oneida and Indian-owned businesses was a policy that was pursued by the

Nation nearly ten (10) years ago and was ultimately unsuccessful.

The Oneida Business Committee adopted resolution BC-11-24-10-C titled, “Sole Source

Contracting for Oneida and Indian-owned Businesses” for the purpose of requiring that except

where prohibited by law or grant funding requirements, all Tribal departments, programs, and

entities shall exclusively utilize Oneida businesses first, and then certified Indian-owned

businesses, unless none were available and qualified to fulfill a contract. An Oneida business was

defined as a business which is certified by the Indian Preference Department as eligible for

receiving Indian preference, where such business is majority-owned by the Nation or by one or

more members of the Nation. This resolution required that where exactly one (1) Oneida business

is available and qualified to meet contract requirements then the contract shall be sole sourced to

that business. The resolution also addressed when there were two (2) or more Oneida businesses,

as well as situations involving Indian-owned businesses when there were no Oneida businesses

available, and provided reporting requirements for the Oneida Purchasing Department,

requirements for the negotiation of contracts, and disciplinary procedures for those employees who

did not follow the policy.

Less than two (2) years later, the Oneida Business Committee took action to rescind resolution

BC-11-24-10-C through the adoption of resolution BC-05-23-12-B titled, “Rescinding Resolution

BC-11-24-10-C Regarding Sole Source Contracting for Oneida and Indian-owned Businesses.”

This resolution highlighted that although resolution BC-11-24-10-C was adopted for the purposes

of strengthening and supporting the Indian Preference law, reconsideration of the sole source

requirement was needed for the best interests of the Nation. This resolution provided that although

the sole source requirement brought needed attention to the bidding process and created a needed

awareness of businesses owned and operated by members of the Nation, it also brought much

needed attention to bid results and the ability to obtain market priced bids. Resolution BC-05-2312-B concluded with the statement that any positive outcomes of the sole source requirement were

undermined by long term negative effects of being able to obtain competitive market bidding and

the bidding process such that rescinding resolution BC-11-24-10-C was a necessary action.

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Since the purpose of this Law is the maximum utilization, not the exclusive utilization, of Indian

workers and businesses, and the Law purposefully intends not to provide exclusive utilization, or

sole sourcing, to Oneida or Indian owned businesses based on its prior negative effects on the

Nation, and in an effort to encourage competitive bidding, there is no revision to the Law

recommended based on this comment.

LOC Consideration

The Legislative Operating Committee determined there was no revision to the Law needed based

on these comments. The Legislative Operating Committee reiterates that the purpose of this Law

is the maximum utilization, not the exclusive utilization, of Indian workers and businesses. The

Law purposefully intends not to provide exclusive utilization, or sole sourcing, to any Oneida or

Indian owned businesses – which has occurred in the past with negative effects. Instead, the Law

provides an advantage to Oneida or Indian owned businesses through the Indian preference

percentage discount that is applied to contract bids, which still encourages competitive bidding to

occur without sacrificing an Indian preference advantage.

Comments 15 through 16 – Indian Preference References in Federal Law:

Jeffrey S. House (oral): Interestingly, the Office of Native American Programs issued guidance

for the Native American Housing Assistance and Self-Determination Reauthorization Act, or

NAHASDA, of 2008 with regards to regulatory changes relating to Indian Preference and tribal

preference.

A notice issue on July 11, 2013, just three months after the OBC resolution, outlined Indian

Preference and tribal preference. The guidance, which is now Title 25 of the United States Code,

Chapter 14 Subchapter II Sec. 450e (2) - Wage and Labor Standards, states that preference in the

award of subcontracts and subgrants in connection with the administration of such contracts or

grants shall be given to Indian organizations and to Indian-owned economic enterprises as defined

in section 1452 of this title. Indian-owned economic enterprise, as defined by section 1452, means

any Indian owned as defined by the Secretary of the Interior commercial, industrial, or business

activity established or organized for the purpose of profit: Provided, that such Indian ownership

shall constitute not less than fifty-one (51) per centum of the enterprise.

The guidance on Tribal Preference further states that when an Indian Tribe has adopted a tribal

preference law, regulation, or ordinance governing preference in employment and contracting, that

Tribal Preference law will govern any preferences in employment and contracting under the Indian

Housing Block Grant program. 25 USC 4111 (k) states: “notwithstanding any other provision of

law, with respect to any grant or portion of a grant made on behalf of an Indian tribe under this

chapter that is intended to benefit a Indian tribe, the tribal employment and contract preference

laws, including regulations and tribal ordinance, adopted by the Indian tribe shall receive the

benefit \apply with respect to the administration of the grant or portion of a grant.”

That’s it, good thing I submitted them.

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Jeffrey S. House (written): Interestingly, the Office of Native American Programs (ONAP)

issued guidance for the Native American Housing Assistance and Self-Determination

Reauthorization Act (NAHASDA) of 2008 with regards to regulatory changes relating to Indian

Preference and tribal preference. A notice issue on July 11, 2013, just three months after the OBC

resolution, outlined Indian Preference and tribal preference. The guidance, which is now Title 25

of the United States Code, Chapter 14 Subchapter II Sec. 450e (2) - Wage and Labor Standards,

states that “preference in the award of subcontracts and subgrants in connection with the

administration of such contracts or grants shall be given to Indian organizations and to Indianowned economic enterprises as defined in section 1452 of this title.” Indian-owned economic

enterprise, as defined by section 1452, means any Indian owned (as defined by the Secretary of

the Interior) commercial, industrial, or business activity established or organized for the purpose

of profit: Provided, that such Indian ownership shall constitute not less than 51 per centum of the

enterprise. The guidance on Tribal Preference further states that when an Indian Tribe has adopted

a tribal preference law, regulation, or ordinance governing preference in employment and

contracting, that Tribal Preference law will govern any preferences in employment and contracting

under the Indian Housing Block Grant program. 25 USC 4111 (k) states: “notwithstanding any

other provision of law, with respect to any grant (or portion of a grant) made on behalf of an Indian

tribe under this chapter that is intended to benefit 1 Indian tribe, the tribal employment and contract

preference laws (including regulations and tribal ordinances) adopted by the Indian tribe that

receives the benefit shall apply with respect to the administration of the grant (or portion of a

grant).”

Another example is 25 CFR Part 170.910 under the Tribal Transportation Program (TTP), which

states: “Indian organizations and Indian-owned economic enterprises are entitled to a preference,

to the greatest extent feasible, in the award of contracts, subcontracts, and sub-grants for all work

performed under the TTP.” Included in this testimony is attachment A, a letter from the

Department of Interior, Bureau of Indian Affairs, Branch of Road Tony Saccoman to Chairman

Tehassi Hill stating “It is allowable under the Tribal Transportation Program (TTP) laws and

regulations (FAST Act and 25 CFR Part 170), for Tribes to complete engineering and construction

work with qualified in-house Tribal employees and/or Tribal-owned companies without

implementing the formal solicitation/bid process for those services or activities.”

This is allowed in many US Federal Acquisition Regulations (FAR), Code of Federal Regulations

(CFR), and related federal laws. For example, in 13 CFR part 124 – 8a, the US Small Business

Administration allows contracting officers to sole-source work to small disadvantaged businesses,

woman-owned businesses, veteran and service disabled veteran-owned businesses up to $9.9

million without justification and up to $22 million with justification.

There is additional language in Public Law 93-638 using the same language and these are just a

few examples. The point is the USC, FARs, and other federally mandated procurement regulations

provide for preference for tribal economic enterprises and tribally owned corporations and so too

should the Oneida Nation.

Response

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The commenter provides information on various references to Indian preference and tribal

preference within the federal laws and regulations. The commenter states that the federal

regulations provide for preference for tribal economic enterprises and tribally owned corporations

and so too should the Oneida Nation.

The Nation does indeed provide a preference to Indian-owned businesses, including Tribal

corporations, through the Indian Preference in Contracting law. The Constitution and Bylaws of

the Oneida Nation provides for the Oneida Nation’s sovereignty, and ability to promulgate and

enforce its own laws and ordinances. [Article IV, Section 1(f)]. The Legislative Procedures Act,

adopted by the General Tribal Council in 2013, further provides a process for the development and

adoption of laws of the Nation. [1 O.C. 109.1-1].

Through this Law certified Indian-owned businesses are given preference through the use of an

Indian preference percentage discount on contract bids. [5 O.C. 502.6-9, 502.6-10]. When more

than one (1) bid is received on a contract, the specific Indian preference discount is applied based

on whether the contract is a construction contract or non-construction contract, and the specific

dollar amount of the contract. [5 O.C. 502.6-9, 502.6-10]. After the appropriate Indian preference

discount has been subtracted from bids from certified Indian-owned businesses, if a bid from a

certified entity is less than the total of the apparent low bid after Indian preference is applied, then

the contract shall be awarded to the certified entity. [5 O.C. 502.6-11(a)].

Since the Nation does in fact provide preference to Indian-owned businesses, including Tribal

corporations, through the use of this Law, there is no revision to the Law recommended based on

this comment.

LOC Consideration

The Legislative Operating Committee appreciated the background and information on how federal

policies and regulations incorporate Indian preference and tribal preference, but determined that

no revision to the Law was needed based on these comments.

Comment 17 – Applying Indian Preference to Contract Bids:

502.6. Application of Indian Preference to Contracts

502.6-9. Applying Indian Preference to Non-Construction Contracts. Where more than one

(1) bid is received for a non-construction contract, an Indian preference percentage discount

of five percent (5%) shall be applied to all bids received from certified Indian-owned

businesses.

502.6-10. Applying Indian Preference to Construction Contracts. Where more than one (1)

bid is received for a construction contract, the discount applied to bids from certified Indianowned businesses shall be:

(a) ten percent (10%) of the first fifty thousand dollar ($50,000) segment of a bid;

(b) plus nine percent (9%) of the next fifty thousand dollar ($50,000) segment of a

bid;

(c) plus eight percent (8%) of the next one hundred thousand dollar ($100,000)

segment of a bid;

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(d) plus seven percent (7%) of the next one hundred thousand dollar ($100,000)

segment of a bid;

(e) plus six percent (6%) of the next one hundred thousand dollar ($100,000) segment

of a bid;

(f) plus five percent (5%) of the next one hundred thousand dollar ($100,000) segment

of a bid;

(g) plus four percent (4%) of the next five hundred thousand dollar ($500,000)

segment of a bid;

(h) plus two percent (2%) of the next one million dollar ($1,000,000) segment of a

bid; and

Jeffrey S. House (written): Although not contained in the law, we are aware that the Indian

Preference Office uses a scoring formula when evaluating qualified bidders. Tribal Corporations

should receive maximum allowable points for all construction and non-construction contracts.

Also, the law should define the qualifiers used in the scoring system.

Response

The commenter provides that he is aware that although not contained in the Law, the Indian

Preference Office uses a scoring formula when evaluating qualified bidders. The commenter then

states that the Law should define the qualifiers used in the scoring system, and that Tribal

corporations should receive the maximum allowable points for all construction and nonconstruction contracts.

The Law sets forth various criteria for the certification of an Indian-owned business. [5 O.C. 502.51(a)-(c)]. Once an entity has been certified as an Indian-owned business, the entity is eligible for

an Indian preference percentage discount to be applied to its bids on both construction and nonconstruction contracts. [5 O.C. 502.6-9, 502.6-10]. The amount of the Indian preference

percentage discount to be applied is set forth by the Law, and is dependent on whether the contract

is a construction or non-construction contract, and the specific dollar amount of the bid. [5 O.C.

502.6-9, 502.6-10]. Under the Law, as long as an entity is certified as an Indian-owned business,

then the entity should be receiving the Indian preference percentage discount that is provided by

the Law for the specific contract type and dollar amount. The Law does not qualify the amount of

Indian preference percentage discount that is applied to a certified entity’s bid to be based on any

additional scoring.

It is important to note that Indian preference is just one aspect of a greater overall scoring system

for evaluating contract bids.

Therefore, the Legislative Operating Committee should consider communicating with the Indian

Preference Office to ensure that the Law is being applied correctly in terms of how an Indian

preference percentage discount is currently being applied to contract bids of certified entities. But

since the Law is already clear on how preference is applied to contract bids, there is no revision to

the Law recommended based on this comment.

LOC Consideration

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The Legislative Operating Committee determined that there was no revision to the Law needed

based on this comment since the Law is clear on how Indian preference should be applied to

contract bids. The Legislative Operating Committee decided that communication will be sent to

the Indian Preference Office to ensure that the Law is being complied with correctly in terms of

how an Indian preference percentage discount is currently being applied to contract bids of

certified entities.

Comment 18 – Compliance Agreements:

502.7. Compliance Agreements

502.7-1. Compliance Agreements. Once a bid has been accepted, but before work commences

on any portion of a contract or subcontract, each contractor shall meet with the Indian

Preference Office to negotiate and execute a compliance agreement. All contractors and

subcontractors shall comply with the terms of any compliance agreement executed in

accordance with this law.

502.7-2. Contents of a Compliance Agreement. A compliance agreement shall include, but is

not limited to, the following information:

(a) Numerical hiring goals and timetables that specify the minimum number of

Indians that must be utilized per contract dollar; and

(b) Compensation of qualified trades workers including wage scale, salaries and other

benefits. Compensation shall be determined based on the prevailing wage scales of

the Nation and/or federal or state governments.

502.8. Skills Bank and Qualified Trades Workers

502.8-5. Placing an applicant in the Skills Bank as a qualified trades worker confers

recognition that he or she is eligible to receive Indian preference in accordance with this law.

A qualified trades worker shall be qualified for Indian preference for employment for a

particular skill or trade if he or she meets the minimum qualifications for a particular skill

or trade.

Jeffrey S. House (written): We fully support the purpose of the law “of maximum utilization of

Indian workers.” The Compliance Agreement in Section 502.7-2, (a) states that the agreement

shall include “Negotiate Numerical hiring goals and time tables that specify the minimum number

of Indians that must be utilized per contract dollar.” The Indian Preference Law should recognize

that business and contractors may have nontrade qualifications, such as possession of a valid nonprobationary driver’s license, passing a background check, and passing a drug screen. The Oneida

Nation includes such language for its employees.

Response

The commenter mentions that a compliance agreement is required to include numerical hiring

goals and timetables that specify the minimum number of Indians that must be utilized per contract

dollar, but wants to Law to recognize that businesses and contractors may have additional nontrade qualifications.

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Once a bid is accepted, but before work commences on a project, the Law requires that each

contractor meet with the Indian Preference Office to negotiate and execute a compliance

agreement. [5 O.C. 502.7-1]. The compliance agreement is required to include the numerical

hiring goals and timetables that specify the minimum number of Indians that must be utilized per

contract dollar, as well as what the compensation of qualified trades workers would be. [5 O.C.

502.7-2]. This is required because it is a goal of the Nation to achieve one hundred percent (100%)

participation of qualified trades workers on projects. [5 O.C. 502.8-1].

The Indian Preference Office is tasked with the responsibility of establishing and administering a

Skills Bank representing the official compilation of qualified trades workers eligible for Indian

preference which serves as the exclusive referral source under this list. [5 O.C. 502.8-1, 502.8-2].

The Skills Bank lists the names and qualifications of the qualified trades workers. [5 O.C. 502.82]. When a certified entity is required to fill positions in accordance with this Law, like when

required to in order to comply with numerical hiring goals of a compliance agreement, the certified

entity shall hire qualified trades workers from the Skills Bank. [5 O.C. 502.8-3].

The Law then goes on to provide that placing an applicant in the Skills Bank as a qualified trades

worker confers recognition that he or she is eligible to receive Indian preference. [5 O.C. 502.85]. But a qualified trades worker shall only be qualified for Indian preference for employment for

a particular skill or trade if he or she meets the minimum qualifications for a particular skill or

trade. [5 O.C. 502.8-5]. This provision takes in account that businesses and contractors have

additional minimum non-trade qualifications that would need to be met by a qualified trades

worker.

Since the Law already provides that a qualified trades worker is only qualified for Indian

preference for employment if he or she meets the minimum qualifications for a particular skill or

trade, there is no revision to the Law recommended based on this comment.

LOC Consideration

The Legislative Operating Committee determined that there is no revision to the Law needed based

on this comment since the Law already provides that a qualified trades worker is only qualified for

Indian preference for employment if he or she meets the minimum qualifications for a particular

skill or trade.

Comment 19 – Qualifications of Qualified Trades Workers :

502.8. Skills Bank and Qualified Trades Workers

502.8-4. In order to be added to the Skills Bank, an applicant shall submit a completed

application and documentation of the following:

(a) proof of enrollment or proof that the individual is a first-generation descendant

of the Nation;

(b) education; including degrees, diplomas, apprenticeships, internships or

continuing education training related to the field;

(c) proof of a driver’s license, including any endorsements, if applicable;

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(d) if the worker is seeking to be listed as a qualified trades worker for a specific

trade, then the worker shall provide specific information related to that trade,

including:

(1) past and current licensing;

(2) credentials and certifications; and

(3) information related to penalties or punitive actions taken by any licensing

body within the past ten (10) years.

502.8-5. Placing an applicant in the Skills Bank as a qualified trades worker confers

recognition that he or she is eligible to receive Indian preference in accordance with this law.

A qualified trades worker shall be qualified for Indian preference for employment for a

particular skill or trade if he or she meets the minimum qualifications for a particular skill

or trade.

Jeffrey S. House (written): We note that Section 8-4 (c) includes the proof of a driver’s license

but it should also state that the applicant should possess a valid non-probationary driver’s license.

Section 502.8-4 should also provide that the contractor may have additional non-trade related

qualification such as passing a background check and drug screen.

Response

The commenter states that the requirement of section 502.8-4(c) that an applicant submit proof of

a driver’s license, including any endorsements, if applicable, should instead require a nonprobationary driver’s license. The commenter also states that this section of the Law should

provide that the contractor may have additional non-trade related qualifications.

Section 502.8-4 of the Law provides what documentation an applicant is required to provide in

addition to an application in order to be added to the Nation’s Skills Bank. Documentation that is

required to be provided by an applicant includes:

 proof of enrollment or proof that the individual is a first-generation descendant of the

Nation;

 education; including degrees, diplomas, apprenticeships, internships or continuing

education training related to the field;

 proof of a driver’s license, including any endorsements, if applicable;

 if the worker is seeking to be listed as a qualified trades worker for a specific trade, then

the worker shall provide specific information related to that trade, including:

 past and current licensing;

 credentials and certifications; and

 information related to penalties or punitive actions taken by any licensing body

within the past ten (10) years.

[5 O.C. 502.8-4(a)-(d)].

Since section 502.8-4 reflect the Nation’s requirements for the documentation an applicant for the

Skills Bank is required to submit, and does not reflect the specific qualifications to be hired by a

business or contractor as a qualified trades worker, it would be unnecessary to include a statement

that the contractor may have additional non-trade related qualifications in this provision of the

Law.

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The Law does clarify that placing an applicant in the Skills Bank as a qualified trades worker

confers recognition that he or she is eligible to receive Indian preference, but a qualified trades

worker shall only be qualified for Indian preference for employment for a particular skill or trade

if he or she meets the minimum qualifications for a particular skill or trade. [5 O.C. 502.8-5]. This

provision takes in account that businesses and contractors have additional minimum non-trade

qualifications that would need to be met by a qualified trades worker.

Additionally, the commenter provides no explanation as to why a valid non-probationary driver’s

license should be specified in section 502.8-4(c) of the Law instead of its current language of a

driver’s license, which already implies the necessity of its validity.

Since the purpose of this provision of the Law is to provide the documentation that is required to

be submitted by an applicant for the Skills Bank, and the Law later clarifies that placement in the

Skills Bank means the qualified trades worker is eligible to receive Indian preference but is not

eligible for employment unless he or she meets the minimum qualifications for the skill or trade,

there is no revision to the Law recommended based on this comment.

LOC Consideration

The Legislative Operating Committee determined that there is no revision to the Law needed based

on this comment since the Law already provides that a qualified trades worker is only qualified for

Indian preference for employment if he or she meets the minimum qualifications for a particular

skill or trade.

Comment 20 – Oneida ESC Group’s Willingness to Follow Law:

Jeffrey S. House (written): Oneida ESC Group is proud to follow the Indian Preference in

Contacting Law. We work diligently in hiring qualified Indian talent, and working with Native

American owned companies, particularly Oneida-owned businesses. We have a strong record of

complying with Indian Preference in Contracting Law and working with the Indian Preference

Office and we look forward to hiring more qualified trade workers who are Oneida.

Response

The commenter states that the Oneida ESC Group will comply with the Law. There is no revision

to the Law recommended based on this comment.

LOC Consideration

The Legislative Operating Committee determined that there is no revision to the Law needed based

on this comment.

Comments 21 through 22 – Additional Preference for Tribal Corporations:

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Jeffrey S. House (written): Without adoption of some of these recommend changes, the law

provides little effective preference for Tribal Corporations when the Nation is within its rights and

obligations. Other than Indian Preference to Construction Contracts discount found in Section

502.6-10, there are no other preferences given to Tribal Corporations.

Tribal Corporations are valuable assets to the long-term economic strength of the Nation. Prudent,

effective preferences that will increase the proper use of these assets will strengthen the Nation’s

economic stability and will empower Tribal Corporations to grow and increase the economic

benefits for the Nation—a core objective of the Section 502.1-1.

Because the Nation invests in these business and corporations, the Nation should utilize them to

their fullest capacity to maximize the economic benefits and return on the Nation’s investments.

Thank you.

Eric McLester (written): The law should support and drive business back to the corporations the

Tribe has created to allow for those businesses to be as successful as possible.

Thank you for the opportunity to provide feedback on the amendments to the Indian Preference

Law.

Response

Both commenters express the belief that Tribal corporations should be given more preference

under the Law, and that business should be driven to the Tribal corporations so that they may be

successful.

The purpose of the Law is to establish an Indian Preference Office and increase economic benefits

for the Nation and members of the Nation by providing for the maximum utilization of Indian

workers and businesses on projects of the Nation which occur on or near the Reservation. [5 O.C.

502.1-1]. The policy of the Nation is to ensure that Indian preference provisions are applied fairly

in all situations and in such a way that reflects the intent of this law; and to undertake reasonable

efforts to ensure that all entities that enter into contracts with or on behalf of the Nation utilize the

labor force of Indian workers and businesses by applying Indian preference in all aspects of

fulfilling that contract, including but not limited to: hiring, training, business opportunities, labor

and/or professional services, and the supply of materials. [5 O.C. 502.1-1].

It is not the intent or purpose of this Law to treat Tribal corporations differently than other Indianowned businesses or workers. The goal of this Law is the maximum, not exclusive, utilization of

Indian businesses and workers. It is the policy that Indian preference provisions are applied fairly

in all situations.

The commenter states that “the law provides little effective preference for Tribal Corporations”

and that “Other than Indian Preference to Construction Contracts discount found in Section 502.610, there are no other preferences given to Tribal Corporations.” This comment fails to

acknowledge that Tribal corporations are being provided the full extent of preferences that are

provided by this Law, the same preferences that are provided to any certified Indian-owned

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business. The sole preference that is provided to certified Indian-owned business under this Law

is in fact the Indian preference percentage discounts on contracts. [5 O.C. 502.6-9, 502.6-10].

The response to Comments twelve (12) through fourteen (14) in this memorandum provides a

more in-depth response to the request to exclusively utilize Tribal corporations. The request to

increase business and profits of Tribal corporations through providing additional preferences not

available to other Indian owned businesses or through the exclusive use of Tribal corporations is

not consistent with the intent of this Law. The Indian preference percentage discounts on contracts

that is provided by this Law allocates a preference to Indian-owned businesses while still

encouraging competitive bids and good work ethic amongst the companies, which ensures that the

Nation is getting the best price and service for the project. Therefore, there is no revision to the

Law recommended based on this comment.

LOC Consideration

The Legislative Operating Committee determined that there is no revision to the Law needed based

on these comments. The Legislative Operating Committee reiterates that the purpose of this Law

is the maximum utilization, not the exclusive utilization, of Indian workers and businesses. The

Indian preference percentage discounts on contracts that is provided by this Law allocates a

preference to Indian-owned businesses while still encouraging competitive bids and good work

ethic amongst the companies, which ensures that the Nation is getting the best price and service

for the project.

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Title 5. Business - Chapter 502

Yukwat^nhas Ukwehu=w# Kayanl^hsla

Laws concerning the hiring of the Oneida People

INDIAN PREFERENCE IN CONTRACTING

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502.1. Purpose and Policy

502.2. Adoption, Amendment, Conflicts

502.3. Definitions

502.4. Jurisdiction

502.5. Certification of Entities

502.6. Application of Indian Preference to Contracts

502.7. Compliance Agreements

502.8. Skills Bank and Qualified Trades Workers

502.9. Investigations and Enforcement

502.1. Purpose and Policy

502.1-1. Purpose. The purpose of this law is to establish an Indian Preference Office and increase

economic benefits for the Nation and members of the Nation by providing for the maximum

utilization of Indian workers and businesses on projects of the Nation which occur on or near the

Reservation.

502.1-2. Policy. It is the policy of the Nation to ensure that Indian preference provisions are

applied fairly in all situations and in such a way that reflects the intent of this law; and to undertake

reasonable efforts to ensure that all entities that enter into contracts with or on behalf of the Nation

utilize the labor force of Indian workers and businesses by applying Indian preference in all aspects

of fulfilling that contract, including but not limited to: hiring, training, business opportunities, labor

and/or professional services, and the supply of materials.

502.2. Adoption, Amendment, Conflicts

502.2-1. This law is adopted by the Oneida Business Committee by Resolution BC-03-27-13-B

and amended by resolution BC-__-__-__-__.

502.2-2. This law may be amended or repealed by the Oneida Business Committee and/or General

Tribal Council pursuant to the procedures set out in the Legislative Procedures Act.

502.2-3. Should a provision of this law or the application thereof to any person or circumstances

be held as invalid, such invalidity shall not affect other provisions of this law which are considered

to have legal force without the invalid portions.

502.2-4. In the event of a conflict between a provision of this law and a provision of another law,

the provisions of this law shall control.

502.2-5. This law is adopted under authority of the Constitution of the Oneida Nation.

502.3. Definitions

502.3-1. This section shall govern the definitions of words and phrases used within this law. All

words not defined herein shall be used in their ordinary and everyday sense.

(a) “Agent” means one who acts relative to a fiduciary relationship to another; a person

authorized to negotiate and/or transact business on behalf of an entity.

(b) “Bid” means an offer to execute a specified job or jobs within a prescribed time and

not exceeding a proposed amount, and includes both offers that become legally binding

upon acceptance, and nonbinding or informal quotes.

(c) “Bid shopping” means the practice of divulging a contractor’s or subcontractor’s bid

to other prospective bidders before the award of a contract, in order to secure a lower bid.

(d) “Broker” means an intermediary; an independent contractor employed to negotiate

business between a buyer and seller for compensation.

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(e) “Business day” means Monday through Friday from 8:00 a.m. to 4:30 p.m., excluding

holidays recognized by the Nation.

(f) “Certification” means verification by the Indian Preference Office that an entity meets

all the requirements necessary to qualify for Indian preference in accordance with this law.

(g) “Certified entity” means an entity that has received certification as an Indian-owned

business from the Indian Preference Office.

(h) “Compliance agreement” means a binding agreement, negotiated between the Indian

Preference Office and a contractor identifying specific Indian preference-related

requirements for a project.

(i) “Construction contract” means any contract issued to build, repair, or remodel

structures, and includes subcontracts and other construction agreements.

(j) “Contractor” means one who enters into a contract.

(k) “Core work crew” means the minimum amount of the contractor’s key employees, who

perform a critical function such that an employer would risk likely financial damage or loss

if that task were assigned to a person unfamiliar with and/or untrained in the employer’s

procedures and routines, that are essential to start up and continue work on a project.

(l) “Employee” means any person that performs services and/or labor for an employer in

exchange for compensation.

(m) “Employer” means any entity, except the Nation, that controls and directs an employee

under an express or implied contract of employment and is obligated to pay salary or wages

in compensation.

(n) “Enterprise” means any internal operation owned and operated by the Nation that

generates revenues through its core business functions, including but not limited to, Oneida

Gaming, Oneida Retail, and Oneida Printing.

(o) “Entity” means any person, sole proprietor, partnership, corporation, franchise,

governmental body, or any other natural or artificial person or organization. The term is

intended to be as broad and encompassing as possible to ensure this law covers all

employment and contract activities within the jurisdiction of the Nation.

(p) “Entities of the Nation” means all programs, departments, boards, committees,

commissions and similar business units of the Nation, but shall not mean Tribal

corporations.

(q) “Front” means a business entity that is strategically structured, financed, operated or

staffed such as to unfairly take advantage of Indian preference as granted under this law.

(r) “Indian” means an enrolled member of any federally-recognized Indian tribe.

(s) “Indian-owned business” means an entity which is majority owned and managed by

an Indian.

(t) “Indian preference” means preference for Indians, regardless of tribal affiliation, in all

aspects of employment and contracting.

(u) “Internal service” means any service provided for free or at cost for the Nation and

includes but is not limited to such services as certain types of advocacy or representation,

mail delivery and pick up, grant writing or assistance, tourism initiatives, Human Resource

assistance and technical support.

(v) “Joint venture” means a one-time grouping of two (2) or more entities in a business

undertaking.

(w) “Lowest responsible bidder” means a bidder who, after any Indian preference

discounts are applied, submits the lowest bid and is considered to be fully responsible and

qualified to perform the work for which the bid is submitted.

(x) “Nation” means the Oneida Nation.

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(y) “Non-construction contract” means any contract other than a construction contract, and

includes subcontracts and other agreements.

(z) “Project” means any effort whereby the Nation or an entity of the Nation contracts for

labor and/or goods or services that will support or benefit any aspect of the Nation’s

government, holdings, infrastructure, workplace, economy or community.

(aa) “Qualified trades worker” means a skilled worker qualified to perform services for the

trade in which the person is trained, and includes general laborers.

(bb) “Reservation” means all the lands within the exterior boundaries of the Reservation of

the Oneida Nation, as created pursuant to the 1838 Treaty with the Oneida, 7 Stat. 566, and

any lands added thereto pursuant to federal law.

(cc) “Subcontractor” means a trade contractor, who is awarded a contract for the supply of

services pursuant to a construction agreement, or a junior or secondary contractor who

performs some or all of the prime contractor’s contractual obligations.

(dd) “Trial Court” means the Trial Court of the Oneida Nation Judiciary, which is the

judicial system that was established by Oneida General Tribal Council resolution GTC-0107-13-B, and then later authorized to administer the judicial authorities and responsibilities

of the Nation by Oneida General Tribal Council resolution GTC-03-19-17-A.

(ee) “Tribal corporation” means a corporation chartered and/or wholly owned by the

Nation pursuant to the Constitution and Bylaws of the Oneida Nation.

502.4. Jurisdiction

502.4-1. The Indian Preference Office shall implement, monitor, and enforce this law and other

applicable laws and policies relating to Indian preference.

502.4-2. The Trial Court shall have jurisdiction over all matters related to the interpretation and

enforcement of this law.

502.4-3. The Indian Preference Office and Trial Court shall have jurisdiction over all parties to

any contract, subcontract, or compliance agreement to which this law applies, as well as

jurisdiction over all subcontractors, employees, or other entities working with, for, or on behalf of

such a party in fulfilling such contract, subcontract or compliance agreement.

502.5. Certification of Entities

502.5-1. Criteria for Certification as an Indian-Owned Business. In order to seek certification as

an Indian-owned business the following criteria shall be met by the applicant entity:

(a) There is Indian financial ownership, control and management of at least fifty-one

percent (51%) of the entity. Evidence of both financial ownership and control shall be

embodied in the entity’s organizational documents, including, but not limited to the

documents of incorporation, stock ownership, or a partnership agreement.

(1) Indian Financial Ownership. Indian financial ownership is established where

the Nation, members of the Nation and/or other Indians own fifty-one percent

(51%) or more of the assets and equipment, receive fifty-one percent (51%) or more

of distributed net profits, and would receive fifty-one percent (51%) or more of the

entity’s assets upon dissolution.

(2) Indian Control. Indian control is established where the Nation, member of the

Nation and/or other Indian owner(s) maintain a minimum of fifty-one percent

(51%) of voting rights or other controlling decisional authority.

(3) Indian Management. Indian Management is established where an Indian

owner(s) is directly involved in the entity’s management, this can be shown where:

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(A) at least one (1) Indian owner is directly involved in the daily operations

of the entity on a full-time basis and in a senior-level position; or

(B) at least one (1) Indian owner is responsible for the oversight of

operations, even though the daily operations are conducted by non-owner

employees.

(b) The entity can demonstrate financial responsibility, including but not limited to,

evidence of an adequate line of credit, contributions of sufficient working capital,

applicable required bonding and insurance, materials and/or equipment necessary to

perform applicable work.

(c) The entity can provide past and current licensing or certifications, including any

penalties, or other punitive actions or debarments taken by any licensing body within the

past ten (10) years.

502.5-2. Application. The applicant entity shall submit a completed and signed application to the

Indian Preference Office, along with any documentation proving the entity meets the criteria for

certification of an Indian-owned business.

(a) Upon receiving an application, the Indian Preference Office may interview the

applicant and/or request additional information as may be necessary to make a

determination regarding certification.

502.5-3. Certification Determination. Within thirty (30) days of receiving the application and any

additional requested information, the Indian Preference Office shall inform the applicant of a

determination to:

(a) grant the certification;

(b) deny the certification, including a full written explanation of the reason for the denial;

or

(c) grant probationary certification for a period of up to one (1) year, if so determined by

the Indian Preference Office for reasonable and just cause.

(1) During the probationary period, the applicant shall satisfy any conditions

imposed by the Indian Preference Office.

(2) The Indian Preference Office shall monitor the activities of the applicant, and

may request and receive such information as necessary to ensure compliance with

this law.

(3) The Indian Preference Office shall either grant or deny full certification at the

end of the probationary period, or upon petition by the applicant, whichever occurs

first.

502.5-4. Once an applicant entity has been granted certification, the Indian Preference Office shall

mail a certificate to the entity. Granting an entity certification does not convey any comment

regarding the ability of the entity to perform any work nor does it guarantee that an entity has met

all the qualifications to obtain work under any particular contract where Indian preference may be

applied.

502.5-5. Notification Requirements. A certified entity shall report the following to the Indian

Preference Office within ten (10) business days of such an occurrence:

(a) changes in the ownership or control status of the entity;

(b) suspension, revocation, lapse or loss of any licensing, certification, insurance, bonding,

or credit lines; and/or

(c) any other changes that could:

(1) affect an entity’s eligibility for certification;

(2) affect the financial liability of any entity, contracting party or the Nation; and/or

(3) alter the status of the qualifications of the entity.

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502.5-6. Certification Renewal. Certification is granted on an annual basis and shall lapse after

one (1) year unless renewed.

(a) To apply for a renewal certification, each certified entity shall complete and return a

renewal application and annual reporting form so that the Indian Preference Office may

update its records.

(b) Annual renewal notices, applications and reporting forms shall be mailed to each

certified entity at least thirty (30) days prior to the expiration of an entity’s certification;

however, the responsibility for renewal is upon the entity.

(c) Exemption for Tribal Corporations. Tribal corporations shall be exempt from the

requirement to renew certification on an annual basis. Certification for a Tribal corporation

is granted until such a time that the Indian Preference Office is made aware that there have

been changes that may affect the certification status of a Tribal corporation in accordance

with the notification requirements of section 502.5-5.

(1) When a Tribal corporation complies with the notification requirements of

section 502.5-5 the Tribal corporation shall also apply for renewal of its

certification.,

(A) The Indian Preference Office shall provide the Tribal corporation with

a renewal application and annual reporting form.

(B) The Tribal corporation shall return the renewal application and annual

reporting form to the Indian Preference Office ten (10) days.

502.5-7. Open Records. In accordance with the Nation’s laws and policies governing open

records, general, non-proprietary and non-private information provided for the purposes of

acquiring certification shall be considered open records and available for public inspection.

Provided that, all information given for purposes of receiving certification, including financial

information, is subject to internal audit of the Nation.

502.5-8. Joint Ventures. All joint ventures seeking certification as an Indian-owned business shall

submit documentation of the business arrangements of the joint venture in addition to the required

documentation for certification.

(a) Certification for a joint venture shall be issued on a project specific basis.

502.5-9. Brokers, Agents and Franchises.

(a) Brokers. Brokers shall be certified as an Indian-owned business 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 not customary and usual in the area of the trade in question for a

broker to maintain an establishment and to keep commodities in stock.

(1) To qualify as an Indian-owned business, the broker shall provide conclusive

evidence that the broker is an independent contractor and not an agent of a nonIndian owned business.

(2) The broker shall also provide proof that he owes no fiduciary responsibility nor

has a fixed or permanent relationship to any one company. A broker shall hold

himself or herself out for employment to the public generally and that the

employment is not that of being a special agent for a single client.

(b) Agents. Agents who are employees of a non-Indian-owned business or who merely

represent a company, such as an insurance agent or real estate agent for a non-Indianowned business, shall not be certified as an Indian-owned business.

(c) Franchises. A franchise may be certified as an Indian-owned business if the franchisee

does not pay the franchisor a share or percentage of revenue or profits, but only

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compensates the franchisor through licensing, royalty and franchise fees as set out by

contract, and/or for services provided, such as training and advising.

502.5-10. Fronts are Prohibited. Entities shall be disqualified from certification as an Indianowned business in all situations where the entity operates as a front in order to unfairly take

advantage of Indian preference granted under this law to Indian-owned businesses.

(a) The Indian Preference Office shall not certify entities that operate solely as fronts.

(b) No entity shall manipulate its business structure or misrepresent the roles of Indian

individuals or entities in such a way as to become eligible for Indian preference in a manner

inconsistent with the purpose and intent of this law.

(c) Examples of fronts include but are not limited to:

(1) Entities that represent that they are exercising management control of a project

in order to qualify for Indian preference when in fact such management control is

exercised by a non-Indian entity;

(2) Entities where Indians have senior management titles without the correlating

responsibilities, control, or knowledge of operations; where the entity only qualifies

for certification because an Indian holds that senior management role;

(3) Entities, not including legitimate brokers, that derive profit only by providing

goods or services at an increased cost, where such goods or services could be

acquired directly on the open market and/or from the entity’s source without paying

a marked-up cost; and/or

(4) Any other situation where the Indian Preference Office determines that the

application of Indian preference would in fact predominantly or substantially

benefit non-Indians or non-Indian-owned businesses; or where Indians or Indianowned businesses only benefit by assisting the non-Indian or non-Indian-owned

business with receiving the contract.

502.6. Application of Indian Preference to Contracts

502.6-1. Application of the Law. Except where prohibited or limited by law or grant funding

requirements, this law shall apply to all contracts over three thousand dollars ($3,000) that meet

the requirements of (a) and/or (b) below:

(a) This law shall apply to:

(1) all contracts, subcontracts, and compliance agreements to which the Nation is

a party, and all contracts, subcontracts and compliance agreements that are entered

into on behalf of, or for the benefit of the Nation, whereby goods and services are

provided on or near the Reservation; and

(2) all subcontractors, employees, or other entities working with, for, on behalf of

a party to a contract, subcontract or compliance agreement as identified in (1), in

fulfilling such contract, subcontract, or compliance agreement.

(b) Tribal Corporations. This law shall apply to Tribal corporations to the extent such

corporations enter into contracts with the Nation.

502.6-2. Non-Applicability of the Law.

(a) Indian Preference in Hiring of Employees of the Nation. The standards set out in this

law shall not apply to preference as applicable to employees hired through the Nation’s

Human Resources Department or pursuant to an employment contract.

(b) Internal Services and Enterprises. The application of Indian preference shall be

superseded in specific situations in accordance with the following:

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(1) The Nation shall exclusively utilize internal services and enterprises whenever

an internal service of the Nation or enterprise could or does provide the necessary

goods and services in the ordinary course of business.

(2) If an internal service or enterprise is unable to fulfill some or all of the

requirements of a contract, then the provisions of this law shall apply to any

outsourcing conducted by the internal service or enterprise.

502.6-3. Contract Specifications Review. Prior to the posting or announcement of a contract for

any project of the Nation, the specifications for such project shall be submitted to the Indian

Preference Office.

(a) Within five (5) business days of receiving the specifications of the project the Indian

Preference Office shall, with experts identified from other entities of the Nation, review

the specifications, including bidding requirements, to ensure that there are no unnecessary

and/or unjustifiable restrictions that may:

(1) preclude certified entities from bidding or being eligible to fulfill the contract

or subcontract;

(2) disqualify qualified trades workers from employment opportunities created

under such contract or subcontract; and/or

(3) create conditions that would make bidding, compliance, or employment unduly

burdensome for qualified trades workers or certified entities.

(b) Unbundling a Contract. The Indian Preference Office may require that specific

portions of a contract be outsourced to internal services, enterprises, certified entities

and/or qualified trades workers, even if a single entity is capable of providing all of the

goods and/or services required under the contract. Provided that, such outsourcing shall

not cause undue hardship, unnecessary delay or additional expenses in completing the

project.

502.6-4. In soliciting bids, the entity offering the contract shall indicate that Indian preference

shall be applied in accordance with this law.

502.6-5. Cooperative Agreements. Within the scope of authority defined in this law, the Indian

Preference Office may enter into cooperative agreements with federal and state agencies, subject

to the approval of the Oneida Business Committee.

502.6-6. Cultural Setting of Contracts. All parties to a contract to which this law applies shall

recognize that any operations are taking place within a unique cultural setting within the Nation.

Every contractor shall make reasonable accommodations to the customs and beliefs of all Indian

workers so as to promote rather than hinder the employment of Indians.

(a) If an Indian worker wishes to attend any traditional cultural activities or ceremonies,

the worker shall provide reasonable advance notice to the contractor in requesting such

time off.

(b) Where attendance at traditional cultural activities or ceremonies requires a worker to

take time off from a regularly scheduled shift or workday, such time may be paid or unpaid,

at the discretion of the employer or as established by contract or compliance agreement.

502.6-7. Employees of the Nation. In the execution of employment duties and in accordance with

the Nation’s laws and policies governing employment, employees of the Nation shall follow this

law in following contracting and bidding procedures for the Nation or entities of the Nation.

(a) The Indian Preference Office shall establish a training process for entities of the Nation

that do contracting or bidding as a regular function of their duties.

502.6-8. Contracts and Attachments. All contracts this law applies to shall:

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(a) Stipulate that compliance with this law is required, and that violation of any portion of

this law or applicable compliance agreement may be deemed a material and substantial

breach of contract, enforceable:

(1) As set forth by the terms of the original contract for a breach of contract; and

(2) In accordance with the provisions of this law.

(b) Reference this law, and shall contain an acknowledgment clause, whereby the

contractor shall agree to the following:

(1) The contractor has read and understands the provisions of this law;

(2) The contractor understands how this law affects the contractor’s rights and

responsibilities; and

(3) The contractor agrees that the provisions of this law shall govern the

performance of the parties.

(c) Reference the Nation’s laws governing vendor licensing, and provide the contracting

parties with directions on how to access that document.

502.6-9. Applying Indian Preference to Non-Construction Contracts. Where more than one (1)

bid is received for a non-construction contract, an Indian preference percentage discount of five

percent (5%) shall be applied to all bids received from certified Indian-owned businesses.

502.6-10. Applying Indian Preference to Construction Contracts. Where more than one (1) bid

is received for a construction contract, the discount applied to bids from certified Indian-owned

businesses shall be:

(a) ten percent (10%) of the first fifty thousand dollar ($50,000) segment of a bid;

(b) plus nine percent (9%) of the next fifty thousand dollar ($50,000) segment of a bid;

(c) plus eight percent (8%) of the next one hundred thousand dollar ($100,000) segment

of a bid;

(d) plus seven percent (7%) of the next one hundred thousand dollar ($100,000) segment

of a bid;

(e) plus six percent (6%) of the next one hundred thousand dollar ($100,000) segment of

a bid;

(f) plus five percent (5%) of the next one hundred thousand dollar ($100,000) segment of

a bid;

(g) plus four percent (4%) of the next five hundred thousand dollar ($500,000) segment of

a bid;

(h) plus two percent (2%) of the next one million dollar ($1,000,000) segment of a bid;

and

(i) plus one percent (1%) of any amount over two million dollars ($2,000,000).

502.6-11. Awarding the Contract. After the appropriate discount has been subtracted from

preferred bids, the following shall be used to determine which bidder is awarded the contract:

(a) If a bid from a certified entity is less than the total of the apparent low bid after Indian

preference is applied, then the contract shall be awarded to the certified entity.

(b) If none of the certified entity bids are less than the total of the apparent low bid after

the Indian preference discount is applied, the contract shall be awarded to the lowest

responsible bidder.

(c) Bid shopping is prohibited.

502.6-12. Monitoring the Contract. Once a contract is awarded to an entity, the Indian Preference

Office shall perform the following monitoring duties:

(a) Perform on-site inspections to verify compliance with this law;

(b) Require and review weekly workforce reports;

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(c) Provide training to assist certified entities with understanding their rights and abilities

under this law; and

(d) Receive feedback from contractors regarding the performance of any certified entity

or qualified trades worker.

502.6-13. In the event that a dispute may arise regarding this law or a compliance agreement, all

affected parties shall cooperate in good faith with the Indian Preference Office toward a mutually

satisfactory resolution.

502.7. Compliance Agreements

502.7-1. Compliance Agreements. Once a bid has been accepted, but before work commences on

any portion of a contract or subcontract, each contractor shall meet with the Indian Preference

Office to negotiate and execute a compliance agreement. All contractors and subcontractors shall

comply with the terms of any compliance agreement executed in accordance with this law.

502.7-2. Contents of a Compliance Agreement. A compliance agreement shall include, but is not

limited to, the following information:

(a) Numerical hiring goals and timetables that specify the minimum number of Indians

that must be utilized per contract dollar; and

(b) Compensation of qualified trades workers including wage scale, salaries and other

benefits. Compensation shall be determined based on the prevailing wage scales of the

Nation and/or federal or state governments.

502.7-3. Term of a Compliance Agreement. Where a contract lasts for more than one (1) year,

compliance agreements shall be reviewed annually and revised as necessary to reflect changes in

hiring plans or the number of certified entities available.

502.7-4. Unless prior written consent of the Indian Preference Office has been received, a

contractor shall not deviate from an executed compliance agreement by adding or removing any

subcontracts, subcontractors or positions filled by qualified trades workers or certified entities, or

by filling a vacancy with a non-qualified trades worker or a non-certified entity.

502.7-5. Limited Waivers. The Indian Preference Office shall establish standard operating

procedures to provide for emergency conditions and situations whereby a limited waiver of

compliance may be authorized, in situations where a contractor has made a significant and

documented good faith effort to achieve compliance, or can demonstrate that compliance is not

practical for reasons other than pricing.

502.8. Skills Bank and Qualified Trades Workers

502.8-1. The Indian Preference Office shall establish and administer a Skills Bank to assist with

providing Indians and first-generation descendants with employment opportunities. The goal of

the Nation is to achieve one hundred percent (100%) participation of qualified trades workers on

projects.

(a) The Indian Preference Office shall identify, initiate, and sponsor training, internship,

and apprenticeship opportunities necessary in order to increase the pool of qualified trades

workers and to assist Indians in becoming qualified in the various job classifications used

by employers.

(b) The Indian Preference Office shall cooperate with other programs of the Nation to

provide counseling and support to assist Indians in retaining employment.

502.8-2. The Skills Bank shall be the exclusive referral source under this law, representing the

official compilation of qualified trades workers eligible for Indian preference in accordance with

this law. Skills Bank listings shall include the names and qualifications of the qualified trades

workers. The Indian Preference Office shall regularly update the Skills Bank listings.

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502.8-3. Entities required to fill positions in accordance with this law and/or a compliance

agreement under section 502.7, shall contact the Indian Preference Office prior to the

commencement of any work.

(a) Except where prohibited by law or grant funding requirements, the entity shall hire

qualified trades workers from the Skills Bank in the following order of priority:

(1) Members of the Nation;

(2) First generation descendants of the Nation; and then

(3) Members of other federally-recognized Indian tribes.

(b) If a law or grant funding requirement prohibits the hiring of qualified trades workers

in accordance with section 502.8-3(a), qualified trades workers shall be hired in accordance

with the requirements of said law or grant.

(c) If the necessary labor cannot be acquired from the Skills Bank, then a limited waiver

may be granted by the Indian Preference Office.

502.8-4. In order to be added to the Skills Bank, an applicant shall submit a completed application

and documentation of the following:

(a) proof of enrollment or proof that the individual is a first-generation descendant of the

Nation;

(b) education; including degrees, diplomas, apprenticeships, internships or continuing

education training related to the field;

(c) proof of a driver’s license, including any endorsements, if applicable;

(d) if the worker is seeking to be listed as a qualified trades worker for a specific trade,

then the worker shall provide specific information related to that trade, including:

(1) past and current licensing;

(2) credentials and certifications; and

(3) information related to penalties or punitive actions taken by any licensing body

within the past ten (10) years.

502.8-5. Placing an applicant in the Skills Bank as a qualified trades worker confers recognition

that he or she is eligible to receive Indian preference in accordance with this law. A qualified

trades worker shall be qualified for Indian preference for employment for a particular skill or trade

if he or she meets the minimum qualifications for a particular skill or trade.

502.8-6. Wage and Hour Standards, Layoffs and Terminations, Call-Backs, Promotions, Unions.

(a) Every contractor utilizing qualified trades workers shall ensure that such workers

receive equal compensation, including overtime pay, and shall have equal work standards,

that are provided to other employees. Contractors that hire qualified trades workers in

order to comply with this law, but do not utilize those workers in a manner similar to other

employees are not maintaining equal work standards.

(b) In making any layoffs or terminations, all contractors shall notify the Indian Preference

Office prior to laying off or terminating a qualified trades worker.

(1) No qualified trades worker with at least minimum qualifications for the job

classification shall be terminated or laid off so long as a non-Indian employee in

the same craft with similar skills remains employed. If the contractor lays off by

crews, qualified trades workers shall be transferred to any crew that will be retained,

as long as there are non-Indian employees in the same craft employed elsewhere

under the same contract.

(2) No contractor shall terminate or lay off any qualified trades worker pursuant to

this law, without documented good cause. The contractor shall promptly replace

the qualified trades worker with another qualified trades worker.

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(3) When a contractor begins to call back laid-off employees, that contractor shall

notify the Indian Preference Office and shall call back qualified trades workers

before bringing back other employees.

(c) Qualified trades workers and certified entities shall not be required to affiliate with

organized labor for employment under this law. The mere absence of affiliation with

organized labor shall not disqualify a qualified trades worker from employment or

contracting where that worker is otherwise qualified. A qualified trades worker shall not

be guaranteed to receive the benefits of a union contract, other than wage scales, unless the

worker elects to join the union.

502.8-7. Construction Contracts: Core Work Crew. As a condition of a construction contract

award, the contractor shall identify its core work crew, including those core work crew employees

utilized by known subcontractors. If such employees are approved by the Indian Preference Office,

they may be employed on the project without regard to Indian preference. Provided that, core

work crew employees shall at no time displace qualified trades workers and/or potential qualified

trades workers by performing work outside their trade or skill.

(a) For the purposes of employment on a project, the Indian Preference Office and the

contractor, and any subcontractor, shall negotiate the designated members of the

contractor’s core work crew.

(b) Any contractor that fills vacant positions immediately prior to undertaking work

pursuant to a contract to which this section applies shall provide evidence acceptable to the

Indian Preference Office that such actions were not intended to circumvent the provisions

of this law.

(c) A contractor shall not use extraneous qualification criteria or other personnel

requirements that prevent qualified trades workers from being employed, unless the

contractor is able to demonstrate that such criteria or requirements are required by

regulatory compliance.

502.9. Investigations and Enforcement

502.9-1. Complaints. An individual or entity may file a written complaint with the Indian

Preference Office if aggrieved by an act of non-compliance with:

(a) this law;

(b) a compliance agreement; and/or

(c) any standard operating procedure issued pursuant to this law.

502.9-2. Contents of the Complaint. A complaint shall include information that will reasonably

enable the Indian Preference Office to understand the general nature of the complaint and carry

out an investigation, such as evidence of any discriminatory practices, alleged misconduct, or other

non-compliance.

502.9-3. Complaint Investigation. Upon receipt of a complaint or after witnessing noncompliance with this law while conducting its monitoring duties, the Indian Preference Office shall

conduct an investigation.

(a) In conducting an investigation to determine if the complaint has merit, the Indian

Preference Office shall be authorized to:

(1) inspect and copy all relevant records;

(2) interview and speak to workers; and

(3) conduct inspections of the job site.

(b) Information collected during an Indian Preference Office investigation shall be kept

confidential unless disclosure is necessary or required as part of any judicial or

administrative proceeding or in accordance with a law of the Nation.

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(1) Any report or recommendation prepared by the Indian Preference Office for

use at a hearing shall be promptly released to the complainant and alleged violator.

(c) If the Indian Preference Office receives a complaint or information that an entity is

operating in a manner that is harmful to the health, safety, or welfare of the Nation or

community, the Indian Preference Office shall immediately refer the complaint or

information to the appropriate department or authority of the Nation for investigation.

(1) The referral of a complaint does not prohibit the Indian Preference Office from

its independent investigation of such complaint or information for purposes of

ensuring compliance with this law.

(2) The Indian Preference Office shall have the authority to review the results of

any other investigation conducted by another department or authority of the Nation

in accordance with the Nation’s laws and policies governing open records.

502.9-4. Alleged Violation Has No Merit. If the Indian Preference Office determines that the

alleged violation has no merit, the Indian Preference Office shall notify all parties in writing that

the complaint shall be closed.

(a) The complainant may file a complaint to contest this decision with the Nation’s Trial

Court within ten (10) business days after issuance of such notice.

(b) The Trial Court shall then conduct an in-camera inspection of the investigation

completed by the Indian Preference Office. During an in-camera inspection only a judge

may review the information obtained by the Indian Preference Office during the

investigation as this information is confidential and disclosure is not necessary.

(c) If after reviewing the Indian Preference Office’s investigation, the Trial Court

determines the alleged violation has no merit, the Trial Court shall notify all parties in

writing that the matter will be dismissed and no further appeals of the matter will be

accepted.

(d) If after reviewing the Indian Preference Office’s investigation the Trial Court

determines that there is sufficient evidence of a genuine and material issue of noncompliance, the Trial Court shall order the Indian Preference Office to take action in

accordance with section 502.9-5.

502.9-5. Alleged Violation Has Merit. If the Indian Preference Office determines that the alleged

violation has merit and there is sufficient evidence of a genuine and material issue of noncompliance, the Indian Preference Office may take action to resolve the complaint.

(a) The Indian Preference Office may take any of the following actions to resolve the

complaint:

(1) Attempt to reach an informal or formal resolution of the alleged noncompliance;

(A) If a formal resolution is reached, any agreement shall be in writing and

signed by all parties. The issue shall then remain in abeyance for the term

of the contract during which time all parties shall comply with the terms of

the written agreement. Breach of the terms of the written agreement may be

a cause of action for litigation before the Trial Court.

(2) Issue a notice of non-compliance to the entity by certified mail;

(A) The notice shall state the specific violation(s) alleged, the requirements

that must be met to ensure compliance with this law, and shall provide a

reasonable amount of time, not to exceed thirty (30) days, wherein the entity

shall provide evidence that it has taken the steps necessary to come into

compliance.

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(3) Place the entity’s certification in probationary status for a period not to exceed

six (6) months; or suspend, revoke, or deny renewal of the entity’s certification;

(A) Once certification is revoked, an entity shall not be eligible to apply for

re-certification until one (1) year has passed from the effective date of the

revocation.

(B) At any time that certification is suspended, revoked, or has lapsed, a

formerly certified entity shall not qualify for Indian preference.

(C) Where a certified entity loses certification:

(i) the contractor may be required to replace that entity with another

certified entity if the work has not begun or performance under a

contract has not commenced, unless replacement is impossible or

would cause undue hardship; or

(ii) the Indian Preference Office may authorize the contractor to

continue to utilize that entity without regard to Indian preference if

work has already begun or performance under a contract has

commenced.

(4) Issue a fine;

(A) The Indian Preference Office shall be delegated authority to develop a

fine and penalty schedule that may be imposed upon any person or entity

violating provisions of this law. The fine and penalty schedule shall be

adopted by the Oneida Business Committee through resolution.

(B) No fines or penalties may be assessed against the Nation, the Indian

Preference Office, or other department of the Nation, or employees engaged

in their official duties under this law.

(5) Re-negotiate a compliance agreement with the contractor to include additional

opportunities for qualified trades workers or certified entities; and/or

(6) Request the appropriate entity withdraw any licensing issued by the Nation.

(b) An individual or entity may contest an action taken by the Indian Preference Office by

filing a complaint with the Trial Court within ten (10) business days after the date of

issuance of the Indian Preference Office’s decision.

502.9-6. Additional Enforcement Measures. If the Indian Preference Office is unable to facilitate

a satisfactory resolution, and a notice of non-compliance or action against a certified entity’s

certification has not resulted in a successful resolution, the Indian Preference Office may file an

action with the Trial Court, seeking appropriate relief, including but not limited to:

(a) An injunction;

(b) Specific performance, including but not limited to:

(1) reinstatement of a qualified trades worker at the previous wage;

(2) immediate removal of employees hired in violation of this law; and/or

(3) employment, promotion or additional training for Indian preference-eligible

parties injured by a violation;

(c) Payment of back pay, damages, and/or costs associated with the enforcement of an

order issued by the Trial Court, including but not limited to filing fees, attorney fees, and/or

costs incurred by the Indian Preference Office in bringing an action. Provided that, no

money damages may be claimed in any suit against the Nation, the Indian Preference Office

or other departments of the Nation, or officials of the Nation or employees engaged in their

official duties under this law; and/or

(d) Any other action the Trial Court deems lawful, equitable, and necessary to ensure

compliance with this law and to alleviate or remedy any harm caused by non-compliance.

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502.9-7. Although relief granted by the Trial Court may benefit an individual qualified trades

worker, certified Indian preference entity, or other individual or entity, neither the Indian

Preference Office nor the Nation represents those individuals and/or entities in any action for noncompliance with this law.

502.9-8. Cease-and-Desist Orders. The Oneida Police Department is 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 Trial Court. Such orders shall require a decree or order to render them

enforceable. The Oneida Police Department shall not be civilly liable for enforcing such orders

so long as the Trial Court signs the order.

502.9-9. Retaliatory Action Prohibited. No entity shall punish, terminate, harass or take any other

adverse personnel or hiring action in retaliation for a party’s exercise of Indian preference rights

under this law. However, this section shall not prohibit action that can be reasonably justified as

taken in good faith based on documented employee performance.

End.

Adopted BC-03-27-13-B

Amended BC-__-__-__-__

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Title 5. Business - Chapter 502

Yukwat^nhas Ukwehu=w# Kayanl^hsla

Laws concerning the hiring of the Oneida People

INDIAN PREFERENCE IN CONTRACTING

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502.1. Purpose and Policy

502.2. Adoption, Amendment, Conflicts

502.3. Definitions

502.4. Jurisdiction

502.5. Certification of Entities

502.6. Application of Indian Preference to Contracts

502.7. Compliance Agreements

502.8. Skills Bank and Qualified Trades Workers

502.9. Investigations and Enforcement

502.1. Purpose and Policy

502.1-1. Purpose. The purpose of this law is to establish an Indian Preference Office and

increase economic benefits for the Nation and members of the Nation by providing for the

maximum utilization of Indian workers and businesses on projects of the Nation which occur on

or near the Reservation.

502.1-2. Policy. It is the policy of the Nation to ensure that Indian preference provisions are

applied fairly in all situations and in such a way that reflects the intent of this law; and to

undertake reasonable efforts to ensure that all entities that enter into contracts with or on behalf

of the Nation utilize the labor force of Indian workers and businesses by applying Indian

preference in all aspects of fulfilling that contract, including but not limited to: hiring, training,

business opportunities, labor and/or professional services, and the supply of materials.

502.2. Adoption, Amendment, Conflicts

502.2-1. This law is adopted by the Oneida Business Committee by Resolution BC-03-27-13-B

and amended by resolution BC-__-__-__-__.

502.2-2. This law may be amended or repealed by the Oneida Business Committee and/or

General Tribal Council pursuant to the procedures set out in the Legislative Procedures Act.

502.2-3. Should a provision of this law or the application thereof to any person or circumstances

be held as invalid, such invalidity shall not affect other provisions of this law which are

considered to have legal force without the invalid portions.

502.2-4. In the event of a conflict between a provision of this law and a provision of another

law, the provisions of this law shall control.

502.2-5. This law is adopted under authority of the Constitution of the Oneida Nation.

502.3. Definitions

502.3-1. This section shall govern the definitions of words and phrases used within this law. All

words not defined herein shall be used in their ordinary and everyday sense.

(a) “Agent” means one who acts relative to a fiduciary relationship to another; a person

authorized to negotiate and/or transact business on behalf of an entity.

(b) “Bid” means an offer to execute a specified job or jobs within a prescribed time and

not exceeding a proposed amount, and includes both offers that become legally binding

upon acceptance, and nonbinding or informal quotes.

(c) “Bid shopping” means the practice of divulging a contractor’s or subcontractor’s bid

to other prospective bidders before the award of a contract, in order to secure a lower bid.

(d) “Broker” means an intermediary; an independent contractor employed to negotiate

business between a buyer and seller for compensation.

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(e) “Business day” means Monday through Friday from 8:00 a.m. to 4:30 p.m.,

excluding holidays recognized by the Nation.

(f) “Certification” means verification by the Indian Preference Office that an entity

meets all the requirements necessary to qualify for Indian preference in accordance with

this law.

(g) “Certified entity” means an entity that has received certification as an Indian-owned

business from the Indian Preference Office.

(h) “Compliance agreement” means a binding agreement, negotiated between the Indian

Preference Office and a contractor identifying specific Indian preference-related

requirements for a project.

(i) “Construction contract” means any contract issued to build, repair, or remodel

structures, and includes subcontracts and other construction agreements.

(j) “Contractor” means one who enters into a contract.

(k) “Core work crew” means the minimum amount of the contractor’s key employees,

who perform a critical function such that an employer would risk likely financial damage

or loss if that task were assigned to a person unfamiliar with and/or untrained in the

employer’s procedures and routines, that are essential to start up and continue work on a

project.

(l) “Employee” means any person that performs services and/or labor for an employer in

exchange for compensation.

(m) “Employer” means any entity, except the Nation, that controls and directs an

employee under an express or implied contract of employment and is obligated to pay

salary or wages in compensation.

(n) “Enterprise” means any internal operation owned and operated by the Nation that

generates revenues through its core business functions, including but not limited to,

Oneida Gaming, Oneida Retail, and Oneida Printing.

(o) “Entity” means any person, sole proprietor, partnership, corporation, franchise,

governmental body, or any other natural or artificial person or organization. The term is

intended to be as broad and encompassing as possible to ensure this law covers all

employment and contract activities within the jurisdiction of the Nation.

(p) “Entities of the Nation” means all programs, departments, boards, committees,

commissions and similar business units of the Nation, but shall not mean Tribal

corporations.

(q) “Front” means a business entity that is strategically structured, financed, operated or

staffed such as to unfairly take advantage of Indian preference as granted under this law.

(r) “Indian” means an enrolled member of any federally-recognized Indian tribe.

(s) “Indian-owned business” means an entity which is majority owned and managed by

an Indian.

(t) “Indian preference” means preference for Indians, regardless of tribal affiliation, in all

aspects of employment and contracting.

(u) “Internal service” means any service provided for free or at cost for the Nation and

includes but is not limited to such services as certain types of advocacy or representation,

mail delivery and pick up, grant writing or assistance, tourism initiatives, Human

Resource assistance and technical support.

(v) “Joint venture” means a one-time grouping of two (2) or more entities in a business

undertaking.

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(w) “Lowest responsible bidder” means a bidder who, after any Indian preference

discounts are applied, submits the lowest bid and is considered to be fully responsible and

qualified to perform the work for which the bid is submitted.

(x) “Nation” means the Oneida Nation.

(y) “Non-construction contract” means any contract other than a construction contract,

and includes subcontracts and other agreements.

(z) “Project” means any effort whereby the Nation or an entity of the Nation contracts

for labor and/or goods or services that will support or benefit any aspect of the Nation’s

government, holdings, infrastructure, workplace, economy or community.

(aa) “Qualified trades worker” means a skilled worker qualified to perform services for

the trade in which the person is trained, and includes general laborers.

(bb) “Reservation” means all the lands within the exterior boundaries of the Reservation

of the Oneida Nation, as created pursuant to the 1838 Treaty with the Oneida, 7 Stat. 566,

and any lands added thereto pursuant to federal law.

(cc) “Subcontractor” means a trade contractor, who is awarded a contract for the supply

of services pursuant to a construction agreement, or a junior or secondary contractor who

performs some or all of the prime contractor’s contractual obligations.

(dd) “Trial Court” means the Trial Court of the Oneida Nation Judiciary, which is the

judicial system that was established by Oneida General Tribal Council resolution GTC01-07-13-B, and then later authorized to administer the judicial authorities and

responsibilities of the Nation by Oneida General Tribal Council resolution GTC-03-1917-A.

(ee) “Tribal corporation” means a corporation chartered and/or wholly owned by the

Nation pursuant to the Constitution and Bylaws of the Oneida Nation.

502.4. Jurisdiction

502.4-1. The Indian Preference Office shall implement, monitor, and enforce this law and other

applicable laws and policies relating to Indian preference.

502.4-2. The Trial Court shall have jurisdiction over all matters related to the interpretation and

enforcement of this law.

502.4-3. The Indian Preference Office and Trial Court shall have jurisdiction over all parties to

any contract, subcontract, or compliance agreement to which this law applies, as well as

jurisdiction over all subcontractors, employees, or other entities working with, for, or on behalf

of such a party in fulfilling such contract, subcontract or compliance agreement.

502.5. Certification of Entities

502.5-1. Criteria for Certification as an Indian-Owned Business. In order to seek certification

as an Indian-owned business the following criteria shall be met by the applicant entity:

(a) There is Indian financial ownership, control and management of at least fifty-one

percent (51%) of the entity. Evidence of both financial ownership and control shall be

embodied in the entity’s organizational documents, including, but not limited to the

documents of incorporation, stock ownership, or a partnership agreement.

(1) Indian Financial Ownership. Indian financial ownership is established where

the Nation, members of the Nation and/or other Indians own fifty-one percent

(51%) or more of the assets and equipment, receive fifty-one percent (51%) or

more of distributed net profits, and would receive fifty-one percent (51%) or more

of the entity’s assets upon dissolution.

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(2) Indian Control. Indian control is established where the Nation, member of

the Nation and/or other Indian owner(s) maintain a minimum of fifty-one percent

(51%) of voting rights or other controlling decisional authority.

(3) Indian Management. Indian Management is established where an Indian

owner(s) is directly involved in the entity’s management, this can be shown

where:

(A) at least one (1) Indian owner is directly involved in the daily

operations of the entity on a full-time basis and in a senior-level position;

or

(B) at least one (1) Indian owner is responsible for the oversight of

operations, even though the daily operations are conducted by non-owner

employees.

(b) The entity can demonstrate financial responsibility, including but not limited to,

evidence of an adequate line of credit, contributions of sufficient working capital,

applicable required bonding and insurance, materials and/or equipment necessary to

perform applicable work.

(c) The entity can provide past and current licensing or certifications, including any

penalties, or other punitive actions or debarments taken by any licensing body within the

past ten (10) years.

502.5-2. Application. The applicant entity shall submit a completed and signed application to

the Indian Preference Office, along with any documentation proving the entity meets the criteria

for certification of an Indian-owned business.

(a) Upon receiving an application, the Indian Preference Office may interview the

applicant and/or request additional information as may be necessary to make a

determination regarding certification.

502.5-3. Certification Determination. Within thirty (30) days of receiving the application and

any additional requested information, the Indian Preference Office shall inform the applicant of a

determination to:

(a) grant the certification;

(b) deny the certification, including a full written explanation of the reason for the

denial; or

(c) grant probationary certification for a period of up to one (1) year, if so determined by

the Indian Preference Office for reasonable and just cause.

(1) During the probationary period, the applicant shall satisfy any conditions

imposed by the Indian Preference Office.

(2) The Indian Preference Office shall monitor the activities of the applicant, and

may request and receive such information as necessary to ensure compliance with

this law.

(3) The Indian Preference Office shall either grant or deny full certification at the

end of the probationary period, or upon petition by the applicant, whichever

occurs first.

502.5-4. Once an applicant entity has been granted certification, the Indian Preference Office

shall mail a certificate to the entity. Granting an entity certification does not convey any

comment regarding the ability of the entity to perform any work nor does it guarantee that an

entity has met all the qualifications to obtain work under any particular contract where Indian

preference may be applied.

502.5-5. Notification Requirements. A certified entity shall report the following to the Indian

Preference Office within ten (10) business days of such an occurrence:

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(a) changes in the ownership or control status of the entity;

(b) suspension, revocation, lapse or loss of any licensing, certification, insurance,

bonding, or credit lines; and/or

(c) any other changes that could:

(1) affect an entity’s eligibility for certification;

(2) affect the financial liability of any entity, contracting party or the Nation;

and/or

(3) alter the status of the qualifications of the entity.

502.5-6. Certification Renewal. Certification is granted on an annual basis and shall lapse after

one (1) year unless renewed.

(a) To apply for a renewal certification, each certified entity shall complete and return a

renewal application and annual reporting form so that the Indian Preference Office may

update its records.

(b) Annual renewal notices, applications and reporting forms shall be mailed to each

certified entity at least thirty (30) days prior to the expiration of an entity’s certification;

however, the responsibility for renewal is upon the entity.

(c) Exemption for Tribal Corporations. Tribal corporations shall be exempt from the

requirement to renew certification on an annual basis. Certification for a Tribal

corporation is granted until such a time that the Indian Preference Office is made aware

that there have been changes that may affect the certification status of a Tribal

corporation in accordance with the notification requirements of section 502.5-5.

(1) When a Tribal corporation complies with the notification requirements of

section 502.5-5 the Tribal corporation shall also apply for renewal of its

certification.,

(A) The Indian Preference Office shall provide the Tribal corporation

with a renewal application and annual reporting form.

(B) The Tribal corporation shall return the renewal application and annual

reporting form to the Indian Preference Office ten (10) days.

502.5-7. Open Records. In accordance with the Nation’s laws and policies governing open

records, general, non-proprietary and non-private information provided for the purposes of

acquiring certification shall be considered open records and available for public inspection.

Provided that, all information given for purposes of receiving certification, including financial

information, is subject to internal audit of the Nation.

502.5-8. Joint Ventures. All joint ventures seeking certification as an Indian-owned business

shall submit documentation of the business arrangements of the joint venture in addition to the

required documentation for certification.

(a) Certification for a joint venture shall be issued on a project specific basis.

502.5-9. Brokers, Agents and Franchises.

(a) Brokers. Brokers shall be certified as an Indian-owned business 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 not customary and usual in the area of the trade in

question for a broker to maintain an establishment and to keep commodities in stock.

(1) To qualify as an Indian-owned business, the broker shall provide conclusive

evidence that the broker is an independent contractor and not an agent of a nonIndian owned business.

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(2) The broker shall also provide proof that he owes no fiduciary responsibility

nor has a fixed or permanent relationship to any one company. A broker shall

hold himself or herself out for employment to the public generally and that the

employment is not that of being a special agent for a single client.

(b) Agents. Agents who are employees of a non-Indian-owned business or who merely

represent a company, such as an insurance agent or real estate agent for a non-Indianowned business, shall not be certified as an Indian-owned business.

(c) Franchises. A franchise may be certified as an Indian-owned business if the

franchisee does not pay the franchisor a share or percentage of revenue or profits, but

only compensates the franchisor through licensing, royalty and franchise fees as set out

by contract, and/or for services provided, such as training and advising.

502.5-10. Fronts are Prohibited. Entities shall be disqualified from certification as an Indianowned business in all situations where the entity operates as a front in order to unfairly take

advantage of Indian preference granted under this law to Indian-owned businesses.

(a) The Indian Preference Office shall not certify entities that operate solely as fronts.

(b) No entity shall manipulate its business structure or misrepresent the roles of Indian

individuals or entities in such a way as to become eligible for Indian preference in a

manner inconsistent with the purpose and intent of this law.

(c) Examples of fronts include but are not limited to:

(1) Entities that represent that they are exercising management control of a

project in order to qualify for Indian preference when in fact such management

control is exercised by a non-Indian entity;

(2) Entities where Indians have senior management titles without the correlating

responsibilities, control, or knowledge of operations; where the entity only

qualifies for certification because an Indian holds that senior management role;

(3) Entities, not including legitimate brokers, that derive profit only by providing

goods or services at an increased cost, where such goods or services could be

acquired directly on the open market and/or from the entity’s source without

paying a marked-up cost; and/or

(4) Any other situation where the Indian Preference Office determines that the

application of Indian preference would in fact predominantly or substantially

benefit non-Indians or non-Indian-owned businesses; or where Indians or Indianowned businesses only benefit by assisting the non-Indian or non-Indian-owned

business with receiving the contract.

502.6. Application of Indian Preference to Contracts

502.6-1. Application of the Law. Except where prohibited or limited by law or grant funding

requirements, this law shall apply to all contracts over three thousand dollars ($3,000) that meet

the requirements of (a) and/or (b) below:

(a) This law shall apply to:

(1) all contracts, subcontracts, and compliance agreements to which the Nation is

a party, and all contracts, subcontracts and compliance agreements that are

entered into on behalf of, or for the benefit of the Nation, whereby goods and

services are provided on or near the Reservation; and

(2) all subcontractors, employees, or other entities working with, for, on behalf of

a party to a contract, subcontract or compliance agreement as identified in (1), in

fulfilling such contract, subcontract, or compliance agreement.

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(b) Tribal Corporations. This law shall apply to Tribal corporations to the extent such

corporations enter into contracts with the Nation.

502.6-2. Non-Applicability of the Law.

(a) Indian Preference in Hiring of Employees of the Nation. The standards set out in this

law shall not apply to preference as applicable to employees hired through the Nation’s

Human Resources Department or pursuant to an employment contract.

(b) Internal Services and Enterprises. The application of Indian preference shall be

superseded in specific situations in accordance with the following:

(1) The Nation shall exclusively utilize internal services and enterprises

whenever an internal service of the Nation or enterprise could or does provide the

necessary goods and services in the ordinary course of business.

(2) If an internal service or enterprise is unable to fulfill some or all of the

requirements of a contract, then the provisions of this law shall apply to any

outsourcing conducted by the internal service or enterprise.

502.6-3. Contract Specifications Review. Prior to the posting or announcement of a contract for

any project of the Nation, the specifications for such project shall be submitted to the Indian

Preference Office.

(a) Within five (5) business days of receiving the specifications of the project the Indian

Preference Office shall, with experts identified from other entities of the Nation, review

the specifications, including bidding requirements, to ensure that there are no

unnecessary and/or unjustifiable restrictions that may:

(1) preclude certified entities from bidding or being eligible to fulfill the contract

or subcontract;

(2) disqualify qualified trades workers from employment opportunities created

under such contract or subcontract; and/or

(3) create conditions that would make bidding, compliance, or employment

unduly burdensome for qualified trades workers or certified entities.

(b) Unbundling a Contract. The Indian Preference Office may require that specific

portions of a contract be outsourced to internal services, enterprises, certified entities

and/or qualified trades workers, even if a single entity is capable of providing all of the

goods and/or services required under the contract. Provided that, such outsourcing shall

not cause undue hardship, unnecessary delay or additional expenses in completing the

project.

502.6-4. In soliciting bids, the entity offering the contract shall indicate that Indian preference

shall be applied in accordance with this law.

502.6-5. Cooperative Agreements. Within the scope of authority defined in this law, the Indian

Preference Office may enter into cooperative agreements with federal and state agencies, subject

to the approval of the Oneida Business Committee.

502.6-6. Cultural Setting of Contracts. All parties to a contract to which this law applies shall

recognize that any operations are taking place within a unique cultural setting within the Nation.

Every contractor shall make reasonable accommodations to the customs and beliefs of all Indian

workers so as to promote rather than hinder the employment of Indians.

(a) If an Indian worker wishes to attend any traditional cultural activities or ceremonies,

the worker shall provide reasonable advance notice to the contractor in requesting such

time off.

(b) Where attendance at traditional cultural activities or ceremonies requires a worker to

take time off from a regularly scheduled shift or workday, such time may be paid or

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unpaid, at the discretion of the employer or as established by contract or compliance

agreement.

502.6-7. Employees of the Nation. In the execution of employment duties and in accordance

with the Nation’s laws and policies governing employment, employees of the Nation shall follow

this law in following contracting and bidding procedures for the Nation or entities of the Nation.

(a) The Indian Preference Office shall establish a training process for entities of the

Nation that do contracting or bidding as a regular function of their duties.

502.6-8. Contracts and Attachments. All contracts this law applies to shall:

(a) Stipulate that compliance with this law is required, and that violation of any portion

of this law or applicable compliance agreement may be deemed a material and substantial

breach of contract, enforceable:

(1) As set forth by the terms of the original contract for a breach of contract; and

(2) In accordance with the provisions of this law.

(b) Reference this law, and shall contain an acknowledgment clause, whereby the

contractor shall agree to the following:

(1) The contractor has read and understands the provisions of this law;

(2) The contractor understands how this law affects the contractor’s rights and

responsibilities; and

(3) The contractor agrees that the provisions of this law shall govern the

performance of the parties.

(c) Reference the Nation’s laws governing vendor licensing, and provide the contracting

parties with directions on how to access that document.

502.6-9. Applying Indian Preference to Non-Construction Contracts. Where more than one (1)

bid is received for a non-construction contract, an Indian preference percentage discount of five

percent (5%) shall be applied to all bids received from certified Indian-owned businesses.

502.6-10. Applying Indian Preference to Construction Contracts. Where more than one (1) bid

is received for a construction contract, the discount applied to bids from certified Indian-owned

businesses shall be:

(a) ten percent (10%) of the first fifty thousand dollar ($50,000) segment of a bid;

(b) plus nine percent (9%) of the next fifty thousand dollar ($50,000) segment of a bid;

(c) plus eight percent (8%) of the next one hundred thousand dollar ($100,000) segment

of a bid;

(d) plus seven percent (7%) of the next one hundred thousand dollar ($100,000) segment

of a bid;

(e) plus six percent (6%) of the next one hundred thousand dollar ($100,000) segment of

a bid;

(f) plus five percent (5%) of the next one hundred thousand dollar ($100,000) segment of

a bid;

(g) plus four percent (4%) of the next five hundred thousand dollar ($500,000) segment

of a bid;

(h) plus two percent (2%) of the next one million dollar ($1,000,000) segment of a bid;

and

(i) plus one percent (1%) of any amount over two million dollars ($2,000,000).

502.6-11. Awarding the Contract. After the appropriate discount has been subtracted from

preferred bids, the following shall be used to determine which bidder is awarded the contra

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