Oneida Business Committee (2020)
Tribal code
Ask Donna
What actually matters in this document.
Text
1 of 213
Oneida Nation
Oneida Business Committee
Legislative Operating Committee
PO Box 365 • Oneida, WI 54155-0365
Oneida-nsn.gov
~
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.
2 of 213
Oneida Nation
~
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.
r'\.
New Submissions
OOODDD=
A good mind. A good heart. A strong fire.
Legislative Operating Committee Meeting Minutes of February 05, 2020
Page 1 of 3
ONEIDA
3 of 213
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
Page 2 of 3
4 of 213
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
Page 3 of 3
5 of 213
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
Page 1 of 2
6 of 213
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.
Page 2 of 2
7 of 213
Oneida Nation
Oneida Business Committee
Legislative Operating Committee
PO Box 365 • Oneida, WI 54115-0365
Oneida -nsn.gov
TO:
FROM:
DATE:
RE:
"
=DODOOO
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.
Page 1 of 24
A good mind. A go od heart. A strong fi re.
8 of 213
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.
Page 2 of 24
9 of 213
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
""'
000000
A good mind. A good heart. A strong fire.
Page 3 of 24
ONEIDA
10 of 213
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
Page 4 of 24
11 of 213
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.
Page 5 of 24
12 of 213
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.
""'
000000
A good mind. A good heart. A strong fire.
Page 6 of 24
ONEIDA
13 of 213
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.
Page 7 of 24
14 of 213
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.
""'
000000
A good mind. A good heart. A strong fire.
Page 8 of 24
ONEIDA
15 of 213
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
Page 9 of 24
16 of 213
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
Page 10 of 24
17 of 213
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.
Page 11 of 24
18 of 213
(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%
""'
000000
A good mind. A good heart. A strong fire.
Page 12 of 24
ONEIDA
19 of 213
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.
""'
000000
A good mind. A good heart. A strong fire.
Page 13 of 24
ONEIDA
20 of 213
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.
""'
000000
A good mind. A good heart. A strong fire.
Page 14 of 24
ONEIDA
21 of 213
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.
Page 15 of 24
22 of 213
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
""'
000000
A good mind. A good heart. A strong fire.
Page 16 of 24
ONEIDA
23 of 213
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;
Page 17 of 24
24 of 213
(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
""'
000000
A good mind. A good heart. A strong fire.
Page 18 of 24
ONEIDA
25 of 213
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.
Page 19 of 24
26 of 213
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;
Page 20 of 24
27 of 213
(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.
""'
000000
A good mind. A good heart. A strong fire.
Page 21 of 24
ONEIDA
28 of 213
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:
Page 22 of 24
29 of 213
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
""'
000000
A good mind. A good heart. A strong fire.
Page 23 of 24
ONEIDA
30 of 213
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.
""'
000000
A good mind. A good heart. A strong fire.
Page 24 of 24
ONEIDA
31 of 213
Draft 2 (Redline to Draft 1 – PM Draft)
2020 02 19
Title 5. Business - Chapter 502
Yukwat^nhas Ukwehu=w# Kayanl^hsla
Laws concerning the hiring of the Oneida People
INDIAN PREFERENCE IN CONTRACTING
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
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.
5 O.C. 502 – Page 1
32 of 213
Draft 2 (Redline to Draft 1 – PM Draft)
2020 02 19
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
69
70
71
72
73
74
75
76
77
78
79
80
81
82
83
84
85
86
(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.
5 O.C. 502 – Page 2
33 of 213
Draft 2 (Redline to Draft 1 – PM Draft)
2020 02 19
87
88
89
90
91
92
93
94
95
96
97
98
99
100
101
102
103
104
105
106
107
108
109
110
111
112
113
114
115
116
117
118
119
120
121
122
123
124
125
126
127
128
129
130
131
132
133
(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:
5 O.C. 502 – Page 3
34 of 213
Draft 2 (Redline to Draft 1 – PM Draft)
2020 02 19
134
135
136
137
138
139
140
141
142
143
144
145
146
147
148
149
150
151
152
153
154
155
156
157
158
159
160
161
162
163
164
165
166
167
168
169
170
171
172
173
174
175
176
177
178
179
180
181
(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.
5 O.C. 502 – Page 4
35 of 213
Draft 2 (Redline to Draft 1 – PM Draft)
2020 02 19
182
183
184
185
186
187
188
189
190
191
192
193
194
195
196
197
198
199
200
201
202
203
204
205
206
207
208
209
210
211
212
213
214
215
216
217
218
219
220
221
222
223
224
225
226
227
228
229
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
5 O.C. 502 – Page 5
36 of 213
Draft 2 (Redline to Draft 1 – PM Draft)
2020 02 19
230
231
232
233
234
235
236
237
238
239
240
241
242
243
244
245
246
247
248
249
250
251
252
253
254
255
256
257
258
259
260
261
262
263
264
265
266
267
268
269
270
271
272
273
274
275
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:
5 O.C. 502 – Page 6
37 of 213
Draft 2 (Redline to Draft 1 – PM Draft)
2020 02 19
276
277
278
279
280
281
282
283
284
285
286
287
288
289
290
291
292
293
294
295
296
297
298
299
300
301
302
303
304
305
306
307
308
309
310
311
312
313
314
315
316
317
318
319
320
321
(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:
5 O.C. 502 – Page 7
38 of 213
Draft 2 (Redline to Draft 1 – PM Draft)
2020 02 19
322
323
324
325
326
327
328
329
330
331
332
333
334
335
336
337
338
339
340
341
342
343
344
345
346
347
348
349
350
351
352
353
354
355
356
357
358
359
360
361
362
363
364
365
366
367
368
(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;
5 O.C. 502 – Page 8
39 of 213
Draft 2 (Redline to Draft 1 – PM Draft)
2020 02 19
369
370
371
372
373
374
375
376
377
378
379
380
381
382
383
384
385
386
387
388
389
390
391
392
393
394
395
396
397
398
399
400
401
402
403
404
405
406
407
408
409
410
411
412
413
414
415
416
(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.
5 O.C. 502 – Page 9
40 of 213
Draft 2 (Redline to Draft 1 – PM Draft)
2020 02 19
417
418
419
420
421
422
423
424
425
426
427
428
429
430
431
432
433
434
435
436
437
438
439
440
441
442
443
444
445
446
447
448
449
450
451
452
453
454
455
456
457
458
459
460
461
462
463
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.
5 O.C. 502 – Page 10
41 of 213
Draft 2 (Redline to Draft 1 – PM Draft)
2020 02 19
464
465
466
467
468
469
470
471
472
473
474
475
476
477
478
479
480
481
482
483
484
485
486
487
488
489
490
491
492
493
494
495
496
497
498
499
500
501
502
503
504
505
506
507
508
509
510
511
(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.
5 O.C. 502 – Page 11
42 of 213
Draft 2 (Redline to Draft 1 – PM Draft)
2020 02 19
512
513
514
515
516
517
518
519
520
521
522
523
524
525
526
527
528
529
530
531
532
533
534
535
536
537
538
539
540
541
542
543
544
545
546
547
548
549
550
551
552
553
554
555
556
557
558
(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.
5 O.C. 502 – Page 12
43 of 213
Draft 2 (Redline to Draft 1 – PM Draft)
2020 02 19
559
560
561
562
563
564
565
566
567
568
569
570
571
572
573
574
575
576
577
578
579
580
581
582
583
584
585
586
587
588
589
590
591
592
593
594
595
596
597
598
599
600
601
602
603
604
605
606
(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.
5 O.C. 502 – Page 13
44 of 213
Draft 2 (Redline to Draft 1 – PM Draft)
2020 02 19
607
608
609
610
611
612
613
614
615
616
617
618
619
620
621
622
623
624
625
626
627
628
629
630
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-__-__-__-__
5 O.C. 502 – Page 14
45 of 213
Draft 2
2020 02 19
Title 5. Business - Chapter 502
Yukwat^nhas Ukwehu=w# Kayanl^hsla
Laws concerning the hiring of the Oneida People
INDIAN PREFERENCE IN CONTRACTING
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
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.
5 O.C. 502 – Page 1
46 of 213
Draft 2
2020 02 19
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
69
70
71
72
73
74
75
76
77
78
79
80
81
82
83
84
(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.
5 O.C. 502 – Page 2
47 of 213
Draft 2
2020 02 19
85
86
87
88
89
90
91
92
93
94
95
96
97
98
99
100
101
102
103
104
105
106
107
108
109
110
111
112
113
114
115
116
117
118
119
120
121
122
123
124
125
126
127
128
129
130
131
(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.
5 O.C. 502 – Page 3
48 of 213
Draft 2
2020 02 19
132
133
134
135
136
137
138
139
140
141
142
143
144
145
146
147
148
149
150
151
152
153
154
155
156
157
158
159
160
161
162
163
164
165
166
167
168
169
170
171
172
173
174
175
176
177
178
179
(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:
5 O.C. 502 – Page 4
49 of 213
Draft 2
2020 02 19
180
181
182
183
184
185
186
187
188
189
190
191
192
193
194
195
196
197
198
199
200
201
202
203
204
205
206
207
208
209
210
211
212
213
214
215
216
217
218
219
220
221
222
223
224
225
226
(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.
5 O.C. 502 – Page 5
50 of 213
Draft 2
2020 02 19
227
228
229
230
231
232
233
234
235
236
237
238
239
240
241
242
243
244
245
246
247
248
249
250
251
252
253
254
255
256
257
258
259
260
261
262
263
264
265
266
267
268
269
270
271
272
273
(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.
5 O.C. 502 – Page 6
51 of 213
Draft 2
2020 02 19
274
275
276
277
278
279
280
281
282
283
284
285
286
287
288
289
290
291
292
293
294
295
296
297
298
299
300
301
302
303
304
305
306
307
308
309
310
311
312
313
314
315
316
317
318
319
320
(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
5 O.C. 502 – Page 7
52 of 213
Draft 2
2020 02 19
321
322
323
324
325
326
327
328
329
330
331
332
333
334
335
336
337
338
339
340
341
342
343
344
345
346
347
348
349
350
351
352
353
354
355
356
357
358
359
360
361
362
363
364
365
366
367
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
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.