Title 5. Business - Chapter 502

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Laws concerning the hiring of the Oneida People

INDIAN PREFERENCE IN CONTRACTING

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-04-08-20-I.

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 This law may be amended or repealed by the Oneida Business Committee and/or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. However, this law specifically supersedes the

following:

(a) BC-04-03-96-A - Indian Preference Policy Rider I;

(b) BC-05-22-96-A - Technical Amendments to Rider I Policy;

(d) BC-07-29-98-B - Indian Preference Law;

(e) BC-03-27-02-A - Sections 9-14 of the Indian Preference Law; and

(f) BC-03-26-03-A - Amendment to Indian Preference Law Addendum.

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.

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(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.

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.

(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.

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(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.

(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.

5 O.C. 502 – Page 3

(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:

(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;

(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.

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

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

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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

(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.

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

5 O.C. 502 – Page 5

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.

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.

(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

5 O.C. 502 – Page 6

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:

(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.

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(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:

(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.

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;

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).

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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.

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;

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

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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.

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.

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;

(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

5 O.C. 502 – Page 10

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.

(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.

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.

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

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

5 O.C. 502 – Page 11

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.

(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.

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.

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

non-compliance, 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:

5 O.C. 502 – Page 12

(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.

(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.

(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:

5 O.C. 502 – Page 13

(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;

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.

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

non-compliance 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-04-08-20-I

5 O.C. 502 – Page 14

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.