Oneida Business Committee (2020)

Tribal code

Ask Donna

What actually matters in this document.

Text

1 of 158

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

March 18, 2020

1:30 p.m.

Call to Order and Approval of the Agenda

II.

Minutes to be Approved

1. Approve the March 4, 2020 LOC Meeting Minutes (pg. 2)

III.

Current Business

1. Indian Preference in Contracting Law Amendments (pg. 4)

2. Children’s Burial Fund Policy Amendments (pg. 63)

3. Tobacco Law Amendments (pg. 91)

4. Oneida Food Service Code Amendments (pg. 103)

IV.

New Submissions

Additions

VI.

Administrative Updates

VII.

Executive Session

VIII. Recess/Adjourn

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

2 of 158

Oneida Nation

Oneida Business Committee

Legislative Operating Committee

PO Box 365 • Oneida, WI 54155-0365

Oneida-nsn.gov

ONEIDA

LEGISLATIVE OPERATING COMMITTEE MEETING MINUTES

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

March 04, 2020

9:00 a.m.

Present: David P. Jordan, Kirby Metoxen, Ernest Stevens III, Daniel Guzman King

Excused: Jennifer Webster

Others Present: Brandon Wisneski, Clorissa N. Santiago, Kristen Hooker, Joanne House, Nicolas

Reynolds, Terry Cornelius, Jameson Wilson, Leyne Orosco, Bonnie Pigman, Mollie Passon, Lee

Cornelius.

Call to Order and Approval of the Agenda

David Jordan called the March 4, 2020, Legislative Operating Committee meeting to order

at 9:00 a.m.

Motion by Ernest Stevens III to adopt the agenda: seconded by Kirby Metoxen. Motion

carried unanimously.

II.

Minutes to be Approved

1. February 19, 2020 LOC Meeting Minutes

Motion by Kirby Metoxen to approve the February 19, 2020, Legislative Operating

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

seconded by Ernest Stevens III. Motion carried unanimously.

III.

Current Business

1. Vehicle Driver Certification and Fleet Management Amendments (:50-14:36)

Motion by Daniel Guzman King to accept the updated public comment review

memorandum, draft law and legislative analysis; seconded by Ernest Stevens III. Motion

carried unanimously.

Motion by Ernest Stevens III to approve the Vehicle Driver Certification and Fleet

Management law amendments fiscal impact statement request memorandum and forward

to the Finance Department directing that a fiscal impact statement be prepared and

submitted to the LOC by March 18, 2020; seconded by Kirby Metoxen. Motion carried

unanimously.

2. Children’s Burial Fund Amendments (14:37-21:36)

Motion by Kirby Metoxen 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

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

Legislative Operating Committee Meeting Minutes of March 04, 2020

Page 1 of 2

ONEIDA

3 of 158

3. Oneida Food Service Code Amendments (21:37-27:03)

Motion by Ernest Stevens III to accept the public comment and the public comment review

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

Guzman King. Motion carried unanimously.

4. Curfew Law Amendments (27:05-30:22)

Motion by Kirby Metoxen to approve the public meeting packet and forward the Curfew

law amendments to a public meeting to be held on April 2, 2020; seconded by Ernest

Stevens III. Motion carried unanimously.

5. Domestic Animals Law Amendments (30:23-32:15)

Motion by Kirby Metoxen to approve the public meeting packet and forward to the

Domestic Animals law amendments to a public meeting to be held on April 2, 2020;

seconded by Ernest Stevens III. Motion carried unanimously.

6. Boards, Committees and Commissions Law Emergency Amendments (32:1636:19)

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

law emergency adoption packet and forward to the Oneida Business Committee for

consideration; seconded by Ernest Stevens III. Motion carried unanimously.

7. Wellness Court Law (36:20-:54)

Motion by Daniel Guzman King to approve the article and the first community outreach

notice to be published in the March 19, 2020 Kalihwisaks edition, the second community

outreach notice to be published in the April 16, 2020 Kalihwisaks edition, and the third

community outreach notice to be published in the May 21, 2020, Kalihwisaks edition;

seconded by Kirby Metoxen. Motion carried unanimously.

IV.

New Submissions

Additions

VI.

Administrative Items

1. Consideration of Legislative Solution to Election Issues Memo (39:56-50:26)

Motion by Daniel Guzman King to approve the memorandum with the noted change and

forward to the Oneida Business Committee. Motion failed due to lack of second.

Motion by Kirby Metoxen to approve the memorandum and forward to the Oneida

Business Committee; seconded by Ernest Stevens III. Motion carried.

Ayes:

Ernest Stevens III, Kirby Metoxen

Abstained:

Daniel Guzman King

VII.

Executive Session

VIII. Adjourn

Motion by Ernest Stevens III to adjourn at 9:50 a.m.; seconded by Kirby Metoxen. Motion

carried unanimously.

Legislative Operating Committee Meeting Minutes of March 04, 2020

Page 2 of 2

4 of 158

Oneida Nation

Oneida Business Committee

Legislative Operating Committee

PO Box 365 • Oneida, WI 54155-0365

Oneida-nsn.gov

Legislative Operating Committee

March 18, 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 3

5 of 158

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.

2/19/20 LOC: Motion by Ernest Stevens III to accept the updated public comment review memorandum, draft

law and legislative analysis; seconded by Daniel Guzman King. Motion carried unanimously.

Motion by Jennifer Webster to approve the Indian Preference in Contracting Law Amendments

fiscal impact statement request memorandum and forward to the Finance Department directing

a fiscal impact statement be prepared and submitted to the LOC by March 4, 2020; seconded

by Daniel Guzman King. Motion carried unanimously.

Page 2 of 3

6 of 158

3/3/20:

Special OBC Work Session. Present: David P. Jordan, Patricia King, Tehassi Hill, Lisa

Summers, Kirby Metoxen, Daniel Guzman King, Ernest Stevens III, Clorissa N. Santiago. The

purpose of this work meeting was to discuss the Indian Preference in Contracting law

amendments and determine if and how it relates to the Oneida Business Committee’s goal of

utilizing the OESC Group.

Next Steps:

 Approve the Indian Preference in Contracting law adoption packet and forward to the Oneida Business

Committee for consideration.

 Approve the resolution “Indian Preference in Contracting Law Fine and Penalty Schedule” and

forward to the Oneida Business Committee for consideration.

Page 3 of 3

7 of 158

Oneida Nation

Oneida Business Committee

Legislative Operating Committee

PO Box 365 • Oneida, WI 54155-0365

Oneida-nsn.gov

TO:

FROM:

DATE:

RE:

GOODOO

ONEIDA

Oneida Business Committee

David P. Jordan, LOC Chairperson

April 8, 2020

Indian Preference in Contracting Law Amendments

Please find the following attached backup documentation for your consideration of the proposed

amendments to the Indian Preference in Contracting law:

Resolution: Amendments to the Indian Preference in Contracting Law

Statement of Effect: Amendments to the Indian Preference in Contracting Law

Indian Preference in Contracting Law Amendments Legislative Analysis

Indian Preference in Contracting Law Amendments (Redline)

Indian Preference in Contracting Law Amendments (Clean)

Indian Preference in Contracting Law Amendments Fiscal Impact Statement

Overview

On April 17, 2019, the LOC added the Indian Preference in Contracting law amendments to its

Active Files List. The purpose of the Indian Preference in Contracting 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 oflndian workers and businesses on projects of the Nation

which occur on or near the Reservation. [5 O.C. 502.1-1}.

This resolution adopts amendments to the Indian Preference in Contracting law which will:

• Update the definition of tribal corporation to include any corporation chartered and/or

wholly owned by the Nation [5 O.C. 502.3-1 (ee)];

• Exempt tribal corporations from the requirement to submit a ce1iification renewal

application on an annual basis [5 0. C. 502. 5-6(c)];

• Permit joint ventures to qualify for Indian Preference on a project-specific basis [5 0. C.

502.5-8};

• Raise the contract threshold for when Indian Preference is applied from one thousand five

hundred dollars ($1,500) to three thousand dollars ($3,000) [5 O.C. 502.6-1];

• Set a new time frame for the Indian Preference Office's review of contracts prior the posting

or announcement of a contract [5 O.C. 502.6-3};

• Clarify the Indian Preference Office's authority to develop a fine and penalty schedule for

violations of this law, to be approved by the Oneida Business Committee by resolution [5

O.C. 502.9-5(a)(4)(A)};

• Make additional updates and clarify language throughout the law.

Page 1 of 2

A good mind. A good heart. A st rong fire.

8 of 158

The Legislative Operating Committee developed the proposed amendments to the Indian

Preference in Contracting law through collaboration with representatives from the Nation's Indian

Preference Office, Purchasing Department, Oneida Law Office, Community and Economic

Development Division, and the Oneida ESC Group.

In accordance with the Legislative Procedures Act, a public meeting on the Indian Preference in

Contracting law was held on December 19, 2019. One (1) person provided oral comments during

the public meeting. The public comment period was then held open until December 30, 2019. The

Legislative Operating Committee received two (2) submissions of written comments during the

public comment period. All public comments received were accepted, reviewed, and considered

by the Legislative Operating Committee on February 5, 2020. Any changes made based on those

comments have been incorporated into this draft.

Requested Action

Approve the Resolution: Amendments to the Indian Preference in Contracting Law

Page 2 of 2

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

ONEIDA

9 of 158

Oneida Nation

Post Office Box 365

Phone: (920)869-2214

Oneida, WI 54155

BC Resolution # _____________

Amendments to the Indian Preference in Contracting Law

WHEREAS,

the Oneida Nation is a federally recognized Indian government and a treaty tribe

recognized by the laws of the United States of America; and

WHEREAS,

the Oneida General Tribal Council is the governing body of the Oneida Nation; and

WHEREAS,

the Oneida Business Committee has been delegated the authority of Article IV, Section 1,

of the Oneida Tribal Constitution by the Oneida General Tribal Council; and

WHEREAS,

the Indian Preference in Contracting law (‘the Law”) was adopted by the Oneida Business

Committee through resolution BC-03-27-13-B; and

WHEREAS,

the purpose of the Law is to stablish 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; and

WHEREAS,

the Legislative Operating Committee worked collaboratively with representatives from the

Nation’s Indian Preference Office, Purchasing Department, Oneida Law Office, Community

and Economic Development Division, and the Oneida ESC Group to develop the

amendments to this Law; and

WHEREAS,

the amendments to the Law update the definition of tribal corporation to now include any

corporation wholly owned by the Nation in addition to those corporations chartered by the

Nation; and

WHEREAS,

the amendments to the Law provide tribal corporations an exemption from the requirement

to submit a certification renewal application on an annual basis; and

WHEREAS,

the amendments to the Law now permit joint ventures to qualify for Indian Preference on a

project-specific basis; and

WHEREAS,

the amendments to the Law raise the contract threshold for when Indian Preference is

applied from one thousand five hundred dollars ($1,500) to three thousand dollars ($3,000);

and

WHEREAS,

the amendments to the Law set a new timeframe for the Indian Preference Office’s review

of contracts prior the posting or announcement of a contract; and

WHEREAS,

the amendments to the Law clarify the Indian Preference Office’s authority to develop a

fine and penalty schedule for violations of this law, to be approved by the Oneida Business

Committee by resolution; and

10 of 158

BC Resolution # _______

Amendments to the Indian Preference in Contracting Law

Page 2 of 2

WHEREAS,

the amendments to the Law make other minor drafting revisions; and

WHEREAS,

in accordance with the Legislative Procedures Act a legislative analysis and fiscal impact

statement were completed for the amendments to the Law; and

WHEREAS,

a public meeting on the proposed amendments to this Law was held on December 19,

2019, in accordance with the Legislative Procedures Act, and the public comment period

was held open until December 30, 2019; and

WHEREAS,

the Legislative Operating Committee accepted, reviewed, and considered the public

comments received on February 5, 2020; and

NOW THEREFORE BE IT RESOLVED, that the amendments to the Indian Preference law are hereby

adopted and shall be effective on May 8, 2020.

BE IT FINALLY RESOLVED, that the Indian Preference Office and Purchasing Department shall

implement the Law as adopted and develop and/or revise any internal processes and/or standard operating

procedures as needed to implement this Law.

11 of 158

Oneida Nation

Oneida Business Committee

Legislative Operating Committee

PO Box 365 • Oneida, WI 54155-0365

Oneida-nsn.gov

ONEIDA

Statement of Effect

Amendments to the Indian Preference in Contracting Law

Summary

This resolution adopts amendments to the Indian Preference in Contracting law.

Submitted by: Clorissa N. Santiago, Staff Attorney, Legislative Reference Office

Date: March 13, 2020

Analysis by the Legislative Reference Office

The Legislative Procedures Act (“the LPA”) was adopted by the General Tribal Council through

resolution GTC-01-07-13-A for the purpose of providing a process for the adoption of laws of the

Nation. [1 O.C. 109.1-1]. This resolution adopts amendments to the Indian Preference in

Contracting law which comply with all processes and procedures required by the LPA, including

the development of a legislative analysis, a fiscal analysis, and the opportunity for public review

during a public meeting and public comment period. [1 O.C. 109.6, 109.7, 109.8].

The Indian Preference in Contracting law was adopted by the Oneida Business Committee for the

purpose of establishing 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 amendments to the Indian Preference in Contracting law will:

 Update the definition of tribal corporation to include any corporation chartered and/or

wholly owned by the Nation [5 O.C. 502.3-1(ee)];

 Exempt tribal corporations from the requirement to submit a certification renewal

application on an annual basis [5 O.C. 502.5-6(c)];

 Permit joint ventures to qualify for Indian Preference on a project-specific basis [5 O.C.

502.5-8];

 Raise the contract threshold for when Indian Preference is applied from one thousand five

hundred dollars ($1,500) to three thousand dollars ($3,000) [5 O.C. 502.6-1];

 Set a new timeframe for the Indian Preference Office’s review of contracts prior the posting

or announcement of a contract [5 O.C. 502.6-3]; and

 Clarify the Indian Preference Office’s authority to develop a fine and penalty schedule for

violations of this law, to be approved by the Oneida Business Committee by resolution [5

O.C. 502.9-5(a)(4)(A)].

Other additional minor changes were made to the draft to update the language and ensure

compliance with drafting style and formatting requirements.

Page 1 of 2

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

12 of 158

In accordance with the LPA, a public meeting on the proposed amendments to the Indian

Preference in Contracting law was held on December 19, 2019. One (1) person provided oral

comments during the public meeting. The public comment period was then held open until

December 30, 2019. The Legislative Operating Committee received two (2) submissions of written

comments during the public comment period. All public comments received were accepted,

reviewed, and considered by the Legislative Operating Committee on February 5, 2020. Any

changes made based on those comments have been incorporated into this draft.

Conclusion

Adoption of this resolution would not conflict with any of the Nation’s laws.

Page 2 of 2

""'

000000

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

ONEIDA

13 of 158

Analysis to Draft 2 for OBC Consideration

2020 04 08

Y ukwat^nhas Ukwehu=w# Kayanl^hsla

AM ENDM ENTS TO

INDIAN PREFERENCE IN CONTRACTING LAW

LEGISLATIVE ANALYSIS

SECTION 1 . EXECUTIVE SUM M ARY

REQUESTER:

Ernie Stevens III

Intent of the

Amendments

Purpose

Affected Entities

Legislation

Public Meeting

Fiscal Impact

SPONSOR:

DRAFTER:

ANALYST:

Ernie Stevens III

Clorissa N. Santiago

Brandon Wisneski

 To update the definition of tribal corporation to include any corporation chartered

and/or wholly owned by the Nation;

 To raise the threshold to apply Indian Preference from one thousand five hundred

dollars ($1,500) to three-thousand dollars ($3,000) for any contracts entered into

by the Nation;

 To permit joint ventures to qualify for Indian Preference on a project-specific

basis;

 To exempt tribal corporations from having to submit a certification renewal

application on an annual basis;

 Set a new timeline for Indian Preference Office to review contracts;

 Clarify the Indian Preference Office’s authority to develop a fine and penalty

schedule for violations of this law, to be approved by the Oneida Business

Committee by resolution.

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].

Indian Preference Office, Purchasing Department, Oneida Judiciary, Oneida Police

Department, Oneida Licensing Department, Corporations chartered and/or wholly

owned by the Nation, and any department or entity of the Nation that enters into

projects or contracts greater than $3,000.

Open Records and Open Meetings law, Vendor Licensing law, Personnel Policies

and Procedures; Independent Contractor Policy, Travel and Expense Policy.

A public meeting was held on December 19, 2019.

A fiscal impact statement has been provided by the Finance Department.

SECTION 2 . LEGISLATIVE DEVELOPM ENT

A. The Nation’s Indian Preference in Contracting law was adopted on July 29, 1998 and most recently

amended on March 27, 2013. The purpose of this law is to increase economic benefits for the Nation

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

projects of the Nation. The Nation’s Indian Preference Office is responsible for monitoring and

enforcing Indian Preference in contracting.

B. This law was added to the LOC’s Active file List on April 17, 2019 at the request of Councilmember

Ernie Stevens III. The original intent of the amendments was to update the definition of “tribal entity.”

Since that time, a work group of representatives from relevant entities and departments have met to

Page 1 of 6

14 of 158

Analysis to Draft 2 for OBC Consideration

2020 04 08

review the law. Many of the proposed amendments reflect the feedback and suggestions of this work

group.

SECTION 3 . CONSULTATION AND OUTREACH

A. Representatives from the following departments or entities of the Nation participated in the

development of this law and legislative analysis: Indian Preference Office, Purchasing Department,

Law Office, Community and Economic Development Division, and Oneida ESC Group.

B. The following laws of the Nation were reviewed in drafting this analysis: Open Meetings and Open

Records law, Vendor Licensing law, Personnel Policies and Procedures, Independent Contractor

Policy, Travel and Expense Policy, Layoff Policy, Furlough Policy, Oneida Nation Law Enforcement

Ordinance.

SECTION 4 . PROCESS

A. Thus far, this law has followed the process set forth in the Legislative Procedures Act (LPA).

B. The law was added to the Active Files List on April 17, 2019.

C. A public meeting was held on December 19, 2019 with the public comment period held open until

December 30, 2019.

C. At the time this legislative analysis was developed, the following work meetings had been held

regarding developments of these amendments and legislative analysis:

 May 20, 2019 Work Meeting: LOC, Indian Preference, Purchasing, Oneida ESC Group.

 June 5, 2019 Work Meeting: LOC.

 June 6, 2019 Work Meeting: LOC.

 July 25, 2019 Work Meeting: LOC, Law Office, Indian Preference, Purchasing.

 September 26, 2019 Work Meeting: LOC, Indian Preference, Purchasing, Community Economic

Development.

 October 21, 2019 Work Meeting: Indian Preference, Community Economic Development.

 October 24, 2019 Work Meeting: LOC.

 November 14, 2019 Work Meeting: Indian Preference and Purchasing.

 December 12, 2019 Work Meeting: LOC.

 February 5, 2020 Work Meeting: LOC.

 March 3, 2020 Special Oneida Business Committee Work Meeting.

SECTION 5 . CONTENTS OF THE LEGISLATION

A. Definition of Tribal Corporation. The Indian Preference law applies to tribal corporations to the extent

that those corporations enter into contracts with the Oneida Nation [5 O.C. 502.6-1(b)]. Previously, the

definition of tribal corporation was “a corporation chartered by the Oneida Tribe of Indians of

Wisconsin pursuant to the Constitution and Bylaws of the Oneida Tribe.” This definition has been

updated to “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)].

 Effect. Some of the corporations owned by the Nation are chartered in other states. For example,

Oneida ESC Group is incorporated in the state of Nevada, but wholly owned by the Oneida Nation.

This updated definition clarifies that this law will apply to all of the Nation’s corporations

regardless of where they are chartered, organized or incorporated.

Page 2 of 6

15 of 158

Analysis to Draft 2 for OBC Consideration

2020 04 08

Chart 1. List of Oneida Nation Corporations.

Tribal Corporation

Oneida Airport Hotel Corporation

Bay Bancorporation

Oneida ESC Group, LLC

Oneida Golf Course Enterprise Corporation

Oneida Seven Generations Corporation.

Chartered by Oneida Nation.

Incorporated under WI Business Corporation law.

Wholly owned by Oneida Nation.

Limited liability company (LLC) organized under

Nevada law. Wholly owned by Oneida Nation.

Chartered by Oneida Nation.

Chartered by Oneida Nation. Currently in the

process of being dissolved.

B. Joint Ventures. Joint ventures will now qualify for Indian Preference on a project-specific basis.

 What is a Joint Venture? A “joint venture” is a one-time grouping of two (2) or more entities in a

business undertaking [5 O.C. 502.3-1(v)]. A joint venture is a partnership where each party jointly

undertakes a transaction for mutual profit. Each member of the joint venture contributes assets and

shares risk [Cornell Law Legal Information Institute (LII)]. For example, two companies may form

a joint venture to bid on a construction project that they otherwise would be unable to complete on

their own.

 Joint Ventures Now Eligible for Indian Preference. Previously, joint ventures were not eligible to

receive Indian Preference. These amendments will permit joint ventures to receive Indian

Preference on a project-specific basis [5 O.C. 502.5-8]. In other words, the joint venture will only

receive Indian Preference for the specific project they are bidding on. Because joint ventures are

typically a short-term partnership, any future joint venture will need to reapply for Indian

Preference each time they bid on a project.

 Effect. Entities that form joint ventures to bid on projects will now qualify for Indian Preference

provided they meet all other requirements of this law.

C. Threshold to Apply Indian Preference. Currently, the Indian Preference law applies to all of the

Nation’s contracts over $1,500 except where prohibited by law or grant funding requirements. These

amendments raise this threshold. Now, the Indian Preference law will only apply to the Nation’s

contracts over $3,000 [5 O.C. 502.6-1].

 Justification. This change was made at the recommendation of the Purchasing Department to match

the Nation’s current procurement threshold. The Nation’s procurement policy requires three bids

for any contract or purchase over $3,000. Setting both the Indian Preference and three-bid

thresholds at $3,000 will make both policies easier to implement for the Nation. Purchasing also

explained that most Indian Preference vendors bid on projects above $3,000, such as constructionrelated projects. Therefore, Purchasing Department predicts that the higher threshold will have

minimal impact on most Indian Preference vendors.

 Effect. Indian Preference will only apply to contracts greater than $3,000. Any vendors bidding on

projects between $1,500 and $2,999 will no longer receive Indian Preference.

D. New Timeline for Indian Preference Office to Review Contracts. The current Indian Preference law

already requires that projects must be submitted to the Indian Preference Office for review before being

posted or announced for bids. However, the current law does not include a timeframe for the Indian

Preference office to complete this review.

Page 3 of 6

16 of 158

Analysis to Draft 2 for OBC Consideration

2020 04 08

100

101

102

103

104

105

106

107

108

109

110

111

112



New Timeline. These amendments add a new timeline for when the Indian Preference office must

complete this review. Now, the Indian Preference Office must complete their review within five

(5) business days [5 O.C. 502.6-4]. The intent is to ensure that projects can be posted in a timely

manner.

E. Fine and Penalty Schedule for Indian Preference Violations. The current Indian Preference law

already authorizes the Indian Preference Office to develop and the Business Committee to approve a

fine and penalty schedule for violations of this law. However, no fine and penalty schedule has been

adopted.

 Changes. Previously, this law stated that fine amounts must be no less than $100 and no more than

$1,000. These amendments remove this limitation. In addition, the amendments also specify that

the fine amounts will be adopted by the Business Committee by resolution. [5 O.C. 502.9-5(a)(4)].

F. Certification Renewal Exemption for Tribal Corporations. Indian Preference certification is granted

on an annual basis and expires after one (1) year. Each year, certified entities must submit a renewal

application and reporting form to maintain their certification. This ensures that entities still meet the

requirements for Indian preference. Tribal corporations will now be exempt from having to submit a

certification renewal form on an annual basis. [5 O.C. 502.5-6(c)].

 Background: Tribal corporations are chartered and/or wholly owned by the Oneida Nation.

Compared to a private entity, tribal corporations are unlikely to experience a change in ownership

or control that would impact their Indian Preference certification status without the Nation being

aware of it. Therefore, the requirement to submit renewal forms each year has been deleted. Tribal

corporations will still be required to notify that Indian Preference Office of any occurrence that

would impact their eligibility for certification in accordance with 502.5-5.

G. Minor Drafting Changes. Minor drafting changes have been made throughout the law, such as

changing “Tribe” to “Nation” or moving the order of existing sections.

113

114

SECTION 6 . EFFECT ON EXISTING LEGISLATION

115

A. References to the Other Laws of the Nation: The following laws of the Nation are referenced in this

law. These amendments do not conflict with any of the referenced laws.

 Open Records and Open Meetings law. 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. [5 O.C. 502.5-7 and 502.9-3(c)(2)].

 Personnel Policies and Procedures. 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

[5 O.C. 502.6-7].

 Vendor Licensing. All contracts this law applies to must include reference to the Nation’s laws

governing vendor licensing and provide the contracting parties with directions on how to access

that document [5 O.C. 502.6-8(c)].

B. Other Laws that Reference Indian Preference in Contracting: The following laws of the Nation

reference Indian Preference in Contracting. These amendments do not conflict with any of the

referenced laws.

116

117

118

119

120

121

122

123

124

125

126

127

128

129

130

Page 4 of 6

17 of 158

Analysis to Draft 2 for OBC Consideration

2020 04 08

131

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



Independent Contractor Policy. “It is… the policy of the Tribe that the order of preference, as set

out in the Tribe’s Indian Preference law, be used in the selection of independent contractors” [5

O.C. 503.1-2(b)].

 Travel and Expense Policy. In regard to business expenses, “Considerations should be given to

patronizing tribally owned business and Indian Preference vendors certified by the Compliance

division” [2 O.C. 219.9-4(f)].

 Judiciary Canons of Judicial Conduct. “Nothing in these canons shall be construed as prohibiting

a Judge from affiliating with, using the facilities of, or attending events sponsored by organizations

that support Native American issues, exercise tribal or Indian Preference…” [8 O.C. 802.3.2.2].

C. Other Laws that Reference Indian Preference in Hiring: The following laws of the Nation reference

Indian Preference as it relates to the Nation’s hiring process. The standards set in this law do not apply

to preference “as applicable to employees hired through the Nation's HRD or pursuant to an

employment contract" [5 O.C. 502.6-2(a)]. The Nation’s Indian preference in hiring process is located

in Section III of the Nation’s Personnel Policies and Procedures. These amendments do not conflict

with any of the referenced laws.

 Layoff Policy. “The Oneida Tribe recognizes Indian preference in the development of layoff SOPs.

Indian preference as used in this policy shall mean a preference granted to retain the Oneida

member employee when all other things being equal with non-member employees. Provided that,

a manager may identify critical positions within the business unit which shall not be subject to

Indian Preference” [2 O.C. 207.4-1].

 Furlough Policy. “Indian preference may not be used as a consideration in identifying employees

to be furloughed” [2 O.C. 205.5-4].

 Oneida Nation Law Enforcement Ordinance. “The following positions shall be held only by

members of the Oneida Tribe: Police Chief, Assistant Chief, Police Lieutenant or Sergeant,

Conservation Director, Assistant Conservation Director… All other positions and appointments

shall be subject to the Indian Preference rules of the Oneida Tribe” [3 O.C. 301.5-3(d)].

157

158

SECTION 7 . ENFORCEM ENT AND ACCOUNTABILITY

159

A. Enforcement. The Nation’s Indian Preference Office is authorized to enforce this law [5 O.C. 502.4-1

502.9-5]. In addition, the Oneida Police Department is authorized to enforce orders issued by the Trial

Court, such as cease-and-desist orders [5 O.C. 502.9-8].

160

161

162

163

SECTION 8 . OTHER CONSIDERATIONS

164

A. Fine and Penalty Schedule. At the time this analysis was drafted, the Indian Preference Office is

developing a fine and penalty schedule for consideration by the Oneida Business Committee. The LOC

intends to bring a proposed fine and penalty schedule resolution to the Oneida Business Committee at

the time these amendments are up for adoption.

B. Fiscal Impact. A fiscal impact statement has been provided by the Finance Department.

 Under the Legislative Procedures Act, a fiscal impact statement is required for all legislation except

emergency legislation [1 O.C. 109.6-1].

 A fiscal impact statement shall be submitted by agencies as directed by the Legislative Operating

Committee and may be prepared by any agency who may receive funding if the legislation is

enacted; who may administer a program if the legislation is enacted; who may have financial

165

166

167

168

169

170

171

172

173

Page 5 of 6

18 of 158

Analysis to Draft 2 for OBC Consideration

2020 04 08

174

175

information concerning the subject matter of the legislation; or by the Finance Office, upon request

of the Legislative Operating Committee [1 O.C. 109.6-1(a and b).].

176

Page 6 of 6

19 of 158

Draft 2 for OBC Consideration (Redline to Current)

2020 04 08

Title 5. Business - Chapter 502

INDIAN PREFERENCE IN CONTRACTING

Y ukwat^nhas Ukwehu=w# Kayanl^hsla

Laws concerning the hiring of the Oneida People

502.1. Purpose and Policy

502.2. Adoption, Amendment, Conflicts

502.3. Definitions

502.4. Jurisdiction

502.5. Indian Preference Office

502.6. Certification of Entities

502.7. Application of Indian Preference

502.8. Skills Bank and Qualified Trades Workers

502.9. Compliance Agreements

502.10. Office Investigations and Enforcement

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 TribeNation and Tribal members of the Nation by providing for the

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

occur on or near the Reservation.

502.1-2. Policy. It is the policy of the Tribe:

(a) ToNation 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

(b) To to undertake reasonable efforts to ensure that all entities that enter into contracts with or on

behalf of the TribeNation 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 shall be effective immediately.amended by resolution BC-__-__-__-__.

502.2-2. This law may be amended pursuant to the procedures set out in Tribal lawor repealed by

the Oneida Business Committee and/or the Oneida 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;

5 O.C. 502 – Page 1

20 of 158

Draft 2 for OBC Consideration

2020 04 08

(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 Tribe of Indians of

Wisconsin.

502.2-6. Adoption and enforcement of this law does not waive the sovereign immunity of the

Oneida Tribe of Indians of WisconsinNation.

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) (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) (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.

bid to other prospective bidders before the award of a contract, in order to secure a lower

bid.

(d) (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.

(e) (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.

(f) Certified entity. See Entity, Certified entity

(g) “Compliance agreement” means a binding agreement, negotiated between the Indian

Preference Office and a contractor, identifying specific Indian preference-related

requirements for a Tribal project.

(h) “Construction contract” means any contract issued to build, repair or remodel

structures, and includes subcontracts and other construction agreements.

(i) “Contractor” means one who enters into a contract.

(j) “Core work crew” means the minimum amount of the contractor’s key employees that

are essential to start up and continue work on a Tribal project.

(k) “Days” means calendar days, except as otherwise provided.

(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 Oneida Tribe of Indians of Wisconsin, 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) “Entity” means any person, sole proprietor, partnership, corporation, franchise,

governmental enterprise, 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 Tribe.

(1) (g) “Certified entity” means an entity that has received certification as an Indianowned business from the Indian Preference Office.

5 O.C. 502 – Page 2

21 of 158

Draft 2 for OBC Consideration

2020 04 08

100

101

102

103

104

105

106

107

108

109

110

111

112

113

114

115

116

117

118

119

120

121

122

123

“Tribal (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” means, 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

Tribalemployment and contract activities within the jurisdiction of the Nation.

(2) (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, such as Oneida Seven Generations Corporation or Oneida Tribal Integrated

Enterprises.

(o) (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.

(p) (r) “Indian” means an enrolled member of any federally-recognized Indian tribe.

(q) (s) “Indian-owned business” means an entity which is majority owned and managed

by an Indian.

(r) (t) “Indian preference” means preference for Indians, regardless of tribal affiliation,

in all aspects of employment and contracting.

(s) (u)

“Internal service” means any service provided for free or at cost for the

TribeNation 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.

(t) (v) “Joint venture” means an entity that is fifty percent (50%) owned and managed

by an Indian.

(u) “Key employee” means a one who performs a critical function such that an employer

would risk likely financial damage-time grouping of two (2) or loss if that task were

assigned to a person unfamiliar with and/or untrainedmore entities in the employer’s

procedures and routinesa business undertaking.

(v) (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.

(w) “Office(x)

“Nation” means the Indian Preference Office or its designee.

5 O.C. 502 – Page 3

22 of 158

Draft 2 for OBC Consideration

2020 04 08

124

125

126

127

128

129

130

131

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

(x) “Oneida” means the Oneida Tribe of Indians of Wisconsin Nation.

“Outsource(y) “Non-construction contract” means to obtain goods or any contract other

than a service from a third party, instead of havingconstruction contract, and includes

subcontracts and other agreements.

(y) (z) “Project” means any effort whereby the Nation or an entity of the Nation contracts

for labor and/or goods or services be provided from within the Tribe by a Tribal entity or

Tribal enterprisethat will support or benefit any aspect of the Nation’s government,

holdings, infrastructure, workplace, economy or community.

(z) (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.

(aa) (bb)

“Reservation” means all the lands within the exterior boundaries of the

Reservation of the Oneida Tribe of Indians of WisconsinNation, as created pursuant to the

1838 Treaty with the Oneida, 7 Stat. 566, and any lands added thereto pursuant to federal

law.

(bb) “Skills Bank” means the services provided by the Office, whereby listings of qualified

trades workers are maintained and made available for those required to comply with this

law.

(cc) (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) “Trade contractor” means an entity that is awarded a contract for the supply of services

pursuant to a construction agreement, including all entities that enter into any subcontracts.

(ee) “Tribal” or “Tribe” means the Oneida Tribe of Indians of Wisconsin.

(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.

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

Oneida Tribe of Indians of WisconsinNation pursuant to the Constitution and Bylaws of

the Oneida Tribe.Nation.

(gg) “Tribal enterprise” means any internal operation owned and operated by the Tribe that

generates revenues through its core business functions, including but not limited to: Oneida

Gaming, Oneida Retail, Oneida Farm, and Oneida Printing.

(hh) Tribal entity. See Entity, Tribal entity.

(ii) “Tribal project” means any effort whereby the Tribe or a Tribal entity contracts for

labor and/or goods or services that will support or benefit any aspect of the Tribal

government, holdings, infrastructure, workplace, economy or community.

502.4. Jurisdiction

502.4-1. The Indian Preference Office shall have authority over matters relating to the

interpretationimplement, monitor, and enforcement ofenforce this law as set out within this

law.and other applicable laws and policies relating to Indian preference.

502.4-2. The Tribe’s judicial systemTrial Court shall have exclusive jurisdiction over all other

matters relatingrelated to the interpretation and enforcement of this law.

502.4-23. The Indian Preference Office and the Tribe’s judicial systemTrial 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

5 O.C. 502 – Page 4

23 of 158

Draft 2 for OBC Consideration

2020 04 08

171

172

173

174

175

176

177

178

179

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

with, for, or on behalf of such a party in fulfilling such contract, subcontract or compliance

agreement.

502.5. Certification of EntitiesIndian Preference Office

502.5-1. An Indian Preference Office is hereby createdCriteria for the purpose of implementing,

monitoring and enforcing this law and other applicable laws and policies relating to Indian

preference.

502.5-2. The Office shall have the following duties, along with other responsibilities as may be

listed throughout this law.

(a) Certification of Entities.

(1) Verify information provided by entities seekingas an Indian-Owned Business.

In order to seek certification and make determination of eligibility.

(2) Issue certification.

(b) Skills Bank. Establish and maintain a Skills Bank and actively recruit qualified trades

workers for listing in the Skills Bank.

(1) 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.

(2) Cooperate with other Tribal programs to provide counseling and support to

assist Indians in retaining employment.

following:

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

Indians that must be utilized per Tribal contract dollar.

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

other benefits. Compensation shall be determined based on the prevailing federal,

state and/or Tribal wage scales.

(d) Monitoring.

(1) Perform on-site inspections to verify compliance with this law.

(2) Require and review weekly workforce reports.

(3) Establish a mandatory training process for Tribal entities that do contracting or

bidding as a regular function of their duties.

(4) Provide training to assist certified entities with understanding their rights and

abilities under this law.

(5) Receive feedback from contractors regarding the performance of any certified

entity or qualified trades worker.

(e) Investigations. Investigate written complaints and respond to inquiries.

(f) Enforcement.

(1) Enforce compliance agreements and the provisions of this law.

(2) Create internal procedures to implement and carry out the provisions of this

law.

(3) Suspend or revoke certification of entities or remove trades workers from the

Skills Bank.

(4) Issue Notices of Noncompliance.

(5) Represent the interests of the Tribe in bringing or defending Indian preferencerelated actions before the Tribe’s judicial system relating to noncompliance with

5 O.C. 502 – Page 5

24 of 158

Draft 2 for OBC Consideration

2020 04 08

218

219

220

221

222

223

224

225

226

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

this law, a compliance agreement, or regulations or policies issued pursuant to this

law.

(6) Establish a schedule of fines in accordance with 502.10-3, and impose such

fines in accordance with 502.10-4.

502.5-3. Records. Any records created and maintained by the Office shall be made available in

accordance with applicable Tribal and federal law.

502.5-4. Within the scope of authority defined in this law, the Office may enter into cooperative

agreements with federal and state agencies, subject to the approval of the Oneida Business

Committee.

502.5-5. Prior to the posting or announcement of a contract for any Tribal project, the

specifications for such project shall be submitted to the Office.

(a) The Office shall, with experts identified from other Tribal entities, review the

specifications, including bidding requirements, to ensure that there are no unnecessary and

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; 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 Office may require that specific portions of a contract be

outsourced to internal services, Tribal 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 Tribal project.

502.6. Certification of Entities

502.6-1. Applicants seeking certification of an Indian-owned business shall submit a completed

and signed application to the Office, along with any documentation required under 502.6-4.

502.6-2. The Office may interview the following criteria shall be met by the applicant(s) and/or

request additional information as may be necessary to make a determination regarding

certification. entity:

502.6-3. Within thirty (30) days of receiving the application and any additional requested

information, the Office shall inform the applicant of a determination to:

(a) grant the certification; or

(b) deny the certification, including a full written explanation of the reason for the denial;

the Office for reasonable and just cause as identified and set out in regulations. During the

probationary period, the applicant shall satisfy any conditions imposed by the Office, and

the Office shall monitor the activities of the applicant, and may request and receive such

information as necessary to ensure compliance with this law. The Office shall either grant

or deny full certification at the end of the probationary period, or upon petition by the

applicant, whichever occurs first.

502.6-4. Certification may be granted to entities that qualify in accordance with the criteria listed

in this law. In order to receive certification, an applicant entity shall provide proof of:

5 O.C. 502 – Page 6

25 of 158

Draft 2 for OBC Consideration

2020 04 08

264

265

266

267

268

269

270

271

272

273

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

(a) (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 Tribe, TribalNation, 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 Tribe, TribalNation,

member of the Nation and/or other Indian owner(s) maintain a minimum of fiftyone 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) Financial(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.

502.6-5-2. 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;

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.

5 O.C. 502 – Page 7

26 of 158

Draft 2 for OBC Consideration

2020 04 08

309

310

311

312

313

314

315

316

317

318

319

320

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

(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.

502.6-6.5-5. 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; and/or

(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 Tribe, Nation;

and/or

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

502.5-6-7. 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.

502.6-8. Open Records. In accordance with the Open Records and Open Meetings law(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 further, that, all information given for purposes of receiving certification, including

financial information, is subject to internal audit of the TribeNation.

502.6-95-8. Joint Ventures. JointAll joint ventures shall not be certifiedseeking certification as

eligible for Indian preference even though one equal fifty percent (50%) partner is an Indian that

shares in equal financial ownership, control and direct involvement with-owned business shall

5 O.C. 502 – Page 8

27 of 158

Draft 2 for OBC Consideration

2020 04 08

356

357

358

359

360

361

362

363

364

365

366

367

368

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

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.

502.6-105-9. 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.

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.

502.6-115-10. Fronts are Prohibited. Entities shall be disqualified from certification as an Indian

preference eligibility-owned 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 Tribal

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.

5 O.C. 502 – Page 9

28 of 158

Draft 2 for OBC Consideration

2020 04 08

403

404

405

406

407

408

409

410

411

412

413

414

415

416

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

502.76. Application of Indian Preference to Contracts

502.76-1. Application of the Law. Except where prohibited or limited by law or grant funding

requirements, this law shall apply to all contracts over onethree thousand five hundred dollars

($1,500.003,000) 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

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

that are entered into on behalf of, or for the benefit of the TribeNation, 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 TribeNation.

502.76-2. Non-Applicability of the Law.

(a) TribalIndian Preference in Hiring of Employees. of the Nation. The standards set out

in this law shall not apply to preference as applicable to Tribal employees hired through

the OneidaNation’s Human Resources departmentDepartment or pursuant to an

employment contract.

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

superseded in specific situations in accordance with the following:

(1) The TribeNation shall exclusively utilize internal services and Tribal

enterprises whenever an internal service of the TribeNation or Tribal enterprise

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

business.

(2) If an internal service or Tribal 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 Tribal 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:

502.7-3.(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

5 O.C. 502 – Page 10

29 of 158

Draft 2 for OBC Consideration

2020 04 08

449

450

451

452

453

454

455

456

457

458

459

460

461

462

463

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

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.

502.7-4.6-5. 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

community of the Tribe. 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.

502.6-7-5. Tribal. Employees. of the Nation. In the execution of employment duties and in

accordance with the Tribe’s Personnel PoliciesNation’s laws and Procedures, Tribalpolicies

governing employment, employees of the Nation shall follow this law in following contracting

and bidding procedures for the TribeNation or Tribal 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.

502.7-6-8. 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 Clauseacknowledgment

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.

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:

5 O.C. 502 – Page 11

30 of 158

Draft 2 for OBC Consideration

2020 04 08

495

496

497

498

499

500

501

502

503

504

505

506

507

508

509

510

511

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

502.7-7. 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 Office toward a mutually satisfactory

resolution.

(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).

502.7-86-11. 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.

502.7-9. 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.

502.7-10. 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 $50,000 segment of a bid.

(b) plus nine percent (9%) of the next $50,000 segment of a bid.

(d) plus seven percent (7%) of the next $100,000 segment of a bid.

(e) plus six percent (6%) of the next $100,000 segment of a bid.

(f) plus five percent (5%) of the next $100,000 segment of a bid.

(g) plus four percent (4%) of the next $500,000 segment of a bid.

(h) plus two percent (2%) of the next $1,000,000 segment of a bid.

(i) plus one percent (1%) of any amount over $2,000,000.

502.7-11. Bid shopping is prohibited.

502.8. Skills Bank and Qualified Trades Workers

502.8-1. The6-12. Monitoring the Contract. Once a contract is awarded to an entity, the Indian

Preference Office shall establishperform the following monitoring duties:

(a) Perform on-site inspections to verify compliance with this law;

(b) Require and administer a Skills Bankreview weekly workforce reports;

5 O.C. 502 – Page 12

31 of 158

Draft 2 for OBC Consideration

2020 04 08

542

543

544

545

546

547

548

549

550

551

552

553

554

555

556

557

558

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

(c)

Provide training to assist with providing Indians and first generation

descendantscertified entities with employment opportunities. The goalunderstanding their

rights and abilities under this law; and

(d) Receive feedback from contractors regarding the performance of the Tribe is to achieve

one hundred percent (100%) participation ofany certified entity or qualified trades workers

on Tribal projectsworker.

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.

502.8-3. The Office shall regularly update the Skills Bank listings.

502.8-4. Entities required to fill positions in accordance with502.6-13. In the event that a dispute

may arise regarding this law and/or a compliance agreement under 502.9,, all affected parties shall

contactcooperate in good faith with the Indian Preference Office prior to the commencement of

any worktoward a mutually satisfactory resolution.

(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 Oneida Tribe.

(2) First generation descendants of Oneida Tribal members.

(3) Members of other federally-recognized Indian tribes.

(b) If a law or grant funding requirements prohibit the hiring of qualified trades workers

in accordance with 502.8-4(a), qualified trades workers shall be hired in accordance with

the requirements of said law or grant.

may be granted in accordance with 502.8-4.

502.8-5. 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

Oneida Tribe.

(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, credentials and certifications, including information

related to penalties or punitive actions taken by any licensing body within the past

ten (10) years; and

(2) any required or possessed insurance and/or bonding.

502.8-6. 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.

502.8-7. 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

5 O.C. 502 – Page 13

32 of 158

Draft 2 for OBC Consideration

2020 04 08

588

589

590

591

592

593

594

595

596

597

598

599

600

601

602

603

604

605

606

607

608

609

610

611

612

613

614

615

616

617

618

619

620

621

622

623

624

625

626

627

628

629

630

631

632

633

634

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 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 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.

502.8-8. 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 Office, they may be

employed on the Tribal 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 Tribal project, the 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

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.

502.7. Compliance Agreements

502.97-1. Compliance Agreements. All contractors and subcontractors shall comply with the

terms of any compliance agreement executed in accordance with this law. 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.

5 O.C. 502 – Page 14

33 of 158

Draft 2 for OBC Consideration

2020 04 08

635

636

637

638

639

640

641

642

643

644

645

646

647

648

649

650

651

652

653

654

655

656

657

658

659

660

661

662

663

664

665

666

667

668

669

670

671

672

673

674

675

676

677

678

679

680

681

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.

502.7-3.502.9-2. 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.

502.9-37-4. 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.

502.9-47-5. 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.

502.10. 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.

5 O.C. 502 – Page 15

34 of 158

Draft 2 for OBC Consideration

2020 04 08

682

683

684

685

686

687

688

689

690

691

692

693

694

695

696

697

698

699

700

701

702

703

704

705

706

707

708

709

710

711

712

713

714

715

716

717

718

719

720

721

722

723

724

725

726

727

728

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 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

5 O.C. 502 – Page 16

35 of 158

Draft 2 for OBC Consideration

2020 04 08

729

730

731

732

733

734

735

736

737

738

739

740

741

742

743

744

745

746

747

748

749

750

751

752

753

754

755

756

757

758

759

760

761

762

763

764

765

766

767

768

769

770

771

772

773

774

775

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

502.109-1. Office Investigations AnyComplaints. An individual or entity may file a written

complaint with the Indian Preference Office if aggrieved by a perceivedan act of noncompliance

non-compliance with:

(a) this law,;

(b) a compliance agreement, ; and/or

shall file a written complaint with the Office..

502.9-2. Contents of the Complaint. A complaint shall provide suchinclude information that will

reasonably enable the Indian Preference Office to understand the general nature of the complaint

and carry out an investigation. Wherever possible, the complainant shall provide the Office with,

such as evidence of any discriminatory practices, alleged misconduct, or other noncompliancenoncompliance.

(a)502.9-3. Complaint Investigation. Upon receipt of a complaint or after witnessing

noncompliancenon-compliance with this law while conducting its monitoring duties, the Indian

Preference Office shall conduct an investigation.

(1) If the 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 Tribe or community,

the Office shall immediately refer the complaint or information to the appropriate

Tribal department or authority for investigation.

The Office may also

independently investigate such complaint or information for purposes of ensuring

compliance with this law, and shall have the authority to review the results of any

other investigation conducted by another Tribal department or authority in

accordance with the Open Records and Open Meetings Law.

(2(a) In conducting an investigation, the 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 shall have the right to speak to workers; and to

(3) conduct inspections of the job site(s)..

(3b) Information collected during an Indian Preference Office investigation shall be kept

confidential unless disclosure is necessary or required as part of any judicial or

5 O.C. 502 – Page 17

36 of 158

Draft 2 for OBC Consideration

2020 04 08

776

777

778

779

780

781

782

783

784

785

786

787

788

789

790

791

792

793

794

795

796

797

798

799

800

801

802

803

804

805

806

807

808

809

810

811

812

813

814

815

816

817

818

819

820

821

administrative proceeding or in accordance with Tribal law. Provided that, any report or

recommendation prepared by the Office for use at a hearing shall be promptly released to

the complainant and alleged violator.a law of the Nation.

(b1) 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.

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

under.

(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 section, thelaw.

(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 issue willcomplaint shall be closed. A

(a) The complainant may appealfile a complaint to contest this decision towith the Tribe’s

judicial systemNation’s Trial Court within ten (10) business days after issuance of such

notice.

(1) The complainant’s appeal may only request the Tribe’s judicial system(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(s) may review the

information obtained by the Indian Preference Office during the investigation, as this

information is confidential and disclosure is not necessary.

(2c) If, after reviewing the Office’s investigation, the Tribe’s judicial system

determines that there is sufficient evidence of a genuine and material issue of

noncompliance, the Tribe’s judicial system shall order the Office to take action in

accordance with 502.10-4 and/or 502.10-5, as if the Office’s original investigation

had determined that sufficient evidence of a genuine and material issue of

noncompliance existed.

(3) If, after reviewing the Indian Preference Office’s investigation, the Tribe’s judicial

systemTrial Court determines the alleged violation has no merit, the Tribe’s judicial

systemTrial Court shall notify all parties in writing that the issuematter will be

closeddismissed and no further appeals of the matter will be accepted.

502.10-2. 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.

502.10-3. Fines and Fees.

(a) The Office shall establish, and the Oneida Business Committee shall approve:

(1) a schedule of fines that may be imposed upon any person or entity violating

provisions of this law. Each offense shall result in a fine of no less than one hundred

dollars ($100) nor more than one thousand dollars ($1,000); and a separate offense

5 O.C. 502 – Page 18

37 of 158

Draft 2 for OBC Consideration

2020 04 08

822

823

824

825

826

827

828

829

830

831

832

833

834

835

836

837

838

839

840

841

842

843

844

845

846

847

848

849

850

851

852

853

854

855

856

857

858

859

860

861

862

863

864

865

866

867

shall be deemed committed on each day during which a violation occurs or

continues.

(2) a schedule of penalty fees that may be imposed upon any person or entity on

all amounts due on monetary judgments not paid within at least thirty (30) days of

the initial judgment.

(b) No fines or penalty fees may be assessed against the Tribe, the Office or other Tribal

departments, or employees engaged in their official duties under this law.

502.10-4.(d) If, after anreviewing the Indian Preference Office’s investigation under

502.10-1, the Office reasonably believesTrial Court determines that there is sufficient

evidence of a genuine and material issue of noncompliancenon-compliance, 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:

(a1) Attempt to reach an informal or formal resolution of the alleged

noncompliance.non-compliance;

(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 Tribe’s judicial systemTrial

Court.

(b2) Issue a Noticenotice of Noncompliancenon-compliance to the entity by

certified mail.;

(A) The Noticenotice 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.

(c3) 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 re-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. Where a

certified entity loses certification:

(1(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

(2ii) the Indian Preference Office may authorize the contractor to

continue to utilize that entity without regard to Indian preference if

5 O.C. 502 – Page 19

38 of 158

Draft 2 for OBC Consideration

2020 04 08

868

869

870

871

872

873

874

875

876

877

878

879

880

881

882

883

884

885

886

887

888

889

890

891

892

893

894

895

896

897

898

899

900

901

902

903

904

905

906

907

908

909

910

911

912

913

914

work has already begun or performance under a contract has

commenced.

(d4) 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 as establishedor 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 502.10-3this law.

(e5) Re-negotiate a compliance agreement with the contractor to include additional

opportunities for qualified trades workers or certified entities.; and/or

(f6) Request the appropriate entity withdraw any licensing issued by the

TribeNation.

(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.

502.10-5.9-6. Additional Enforcement Measures. If the Indian Preference Office is unable to

facilitate a satisfactory resolution, and a Noticenotice of Noncompliancenon-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 Tribe’s judicial systemTrial 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.;

order issued by the Tribe’s judicial systemTrial 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

TribeNation, the Indian Preference Office or other Tribal departments of the Nation, or

Tribal officials of the Nation or employees engaged in their official duties under this law.;

and/or

(d) OtherAny other action the Tribe’s judicial systemTrial Court deems lawful, equitable,

and necessary to ensure compliance with this law and to alleviate or remedy any harm

caused by noncompliancenon-compliance.

502.10-69-7. Although relief granted by the Tribe’s judicial system under 502.10-5Trial Court

may benefit an individual qualified trades worker, certified Indian preference entity, or other

individual or entity, neither the Indian Preference Office nor the TribeNation represents those

individuals and/or entities in any action for non-compliance with this law.

502.10-79-8. Cease-and-Desist Orders. The Oneida Tribal Police areDepartment 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 Tribe’s judicial system.Trial Court. Such orders shall require

a decree or order to render them enforceable. The Oneida Tribal Police Department shall not be

civilly liable for enforcing such orders so long as the CommissionTrial Court signs the order.

5 O.C. 502 – Page 20

39 of 158

Draft 2 for OBC Consideration

2020 04 08

915

916

917

918

919

920

921

922

923

924

925

926

927

928

929

930

931

932

933

934

935

936

502.10-8. Appeals.

(a) Any appeal from an action taken by the Office shall be filed with the Tribe’s judicial

system within ten (10) business days after the date of issuance of the Office’s decision.

Any decision not appealed within the required time frame shall become final.

(b) Except as otherwise stated in this law, a party may appeal orders, rulings and judgments

of the Tribe’s judicial system in accordance with the applicable rules of appellate

procedure.

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 21

40 of 158

Draft 2 for OBC Consideration

2020 04 08

Title 5. Business - Chapter 502

Y ukwat^nhas Ukwehu=w# Kayanl^hsla

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-__-__-__-__.

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.

5 O.C. 502 – Page 1

41 of 158

Draft 2 for OBC Consideration

2020 04 08

(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.

5 O.C. 502 – Page 2

42 of 158

Draft 2 for OBC Consideration

2020 04 08

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

(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

5 O.C. 502 – Page 3

43 of 158

Draft 2 for OBC Consideration

2020 04 08

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

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:

(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.

5 O.C. 502 – Page 4

44 of 158

Draft 2 for OBC Consideration

2020 04 08

177

178

179

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

(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

(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.

5 O.C. 502 – Page 5

45 of 158

Draft 2 for OBC Consideration

2020 04 08

224

225

226

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

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.

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.

5 O.C. 502 – Page 6

46 of 158

Draft 2 for OBC Consideration

2020 04 08

269

270

271

272

273

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

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:

(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.

5 O.C. 502 – Page 7

47 of 158

Draft 2 for OBC Consideration

2020 04 08

316

317

318

319

320

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

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:

(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;

5 O.C. 502 – Page 8

48 of 158

Draft 2 for OBC Consideration

2020 04 08

362

363

364

365

366

367

368

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

(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.

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

5 O.C. 502 – Page 9

49 of 158

Draft 2 for OBC Consideration

2020 04 08

408

409

410

411

412

413

414

415

416

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

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.

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

5 O.C. 502 – Page 10

50 of 158

Draft 2 for OBC Consideration

2020 04 08

455

456

457

458

459

460

461

462

463

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

(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.

(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.

5 O.C. 502 – Page 11

51 of 158

Draft 2 for OBC Consideration

2020 04 08

501

502

503

504

505

506

507

508

509

510

511

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

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

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

5 O.C. 502 – Page 12

52 of 158

Draft 2 for OBC Consideration

2020 04 08

547

548

549

550

551

552

553

554

555

556

557

558

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

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:

(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;

5 O.C. 502 – Page 13

53 of 158

Draft 2 for OBC Consideration

2020 04 08

593

594

595

596

597

598

599

600

601

602

603

604

605

606

607

608

609

610

611

612

613

614

615

616

617

618

619

620

621

622

623

624

625

626

627

628

629

630

631

632

633

634

635

636

637

638

639

(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;

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 perfor

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.