Oneida Business Committee (2020)

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Oneida Nation

Oneida Business Committee

Legislative Operating Committee

000000

PO Box 365 • Oneida, WI 54155‐0365

ONEIDA

Oneida‐nsn.gov

LEGISLATIVE OPERATING COMMITTEE MEETING AGENDA

Business Committee Conference Room-2nd Floor Norbert Hill Center

February 5, 2020

9:00 a.m.

Call to Order and Approval of the Agenda

II.

Minutes to be Approved

1. January 15, 2020 LOC Meeting Minutes (pg. 2)

III.

Current Business

1. Citations Law (pg. 4)

2. Indian Preference in Contracting Amendments (pg. 35)

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

Amendments (pg. 103)

IV.

New Submissions

1. Petition: Nancy Dallas – Funeral Home (pg. 125)

2. Petition: Nancy Dallas – Hold on Building (pg. 126)

3. Oneida Nation Emergency Planning Committee Bylaws Amendments (pg. 127)

4. Curfew Law Amendments (pg. 128)

5. Domestic Animals Law Amendments (pg. 129)

Additions

1. Land Commission Bylaws Amendments *HANDOUT (p. 130)

VI.

Administrative Updates

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

Materials and Fiscal Impact Statement Request (pg. 133)

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

Packet and Forward to Oneida Business Committee (pg. 193)

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

Approving Adoption Packet (pg. 240)

4. Boards, Committees and Commissions One-Year Evaluation Report (pg. 242)

VII.

Executive Session

VIII. Recess/Adjourn

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

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Oneida Nation

Oneida Business Committee

Legislative Operating Committee

GDDDOO

PO Box 365 • Oneida, WI 54155-0365

ONEIDA

Oneida-nsn.gov

LEGISLATIVE OPERATING COMMITTEE MEETING MINUTES

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

January 15, 2020

9:00 a.m.

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

Excused: Jennifer Webster

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

Falck, Rae Skenandore, Jameson Wilson, Rosa Laster, Bonnie Pigman, Lee Cornelius. Present via

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

Call to Order and Approval of the Agenda

David P. Jordan called the December 18, 2019, Legislative Operating Committee meeting

to order at 9:00 a.m.

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

carried unanimously.

II.

Minutes to be Approved

1. December 18, 2019

Motion by Ernest Stevens III to approve the December 18, 2019, Legislative Operating

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

seconded by Daniel Guzman King. Motion carried unanimously.

III.

Current Business

1. Citations Law (1:00-11:37)

Motion by Kirby Metoxen to accept the updated public comment review memorandum,

draft, and legislative analysis; seconded by Daniel Guzman King. Motion carried

unanimously.

Motion by Ernest Stevens to approve the Citations law fiscal impact statement request

memorandum and forward to the Finance Department requesting a fiscal impact

statement be prepared and submitted to the Legislative Operating Committee by

January 29, 2020; seconded by Kirby Metoxen. Motion carried unanimously.

2. Children’s Burial Fund Policy Amendments (11:38-22:43)

Motion by Kirby Metoxen to accept legislative analysis; seconded by Ernest Stevens

III. Motion carried unanimously.

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

Children’s Burial Fund Policy Amendments to a public meeting to be held on February

13, 2020; seconded by Ernest Stevens III. Motion carried unanimously

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

Legislative Operating Committee Meeting Minutes of January 15, 2020

Page 1 of 2

ONEIDA

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3. Oneida Food Service Code Amendments (22:43-31:40)

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

Service Code Amendments to a public meeting to be held on February 6, 2020;

seconded by Daniel Guzman King. Motion carried unanimously

4. Sanctions and Penalties Law (31:41-36:42)

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

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

by Daniel Guzman King. Motion carried unanimously.

IV.

New Submissions

1. Real Property Law Emergency Amendments (36:43-54:12)

Motion by Kirby Metoxen to add “Real Property Emergency Amendments” to the

active files list with Jennifer Webster and Ernest Stevens III as cosponsors; seconded

by Ernest Stevens III. Motion carried unanimously.

Motion by Kirby Metoxen to approve the Real Property Emergency Amendments

adoption packet and forward to the Oneida Business Committee for consideration with

adding cosponsors; seconded by Ernest Stevens III. Motion carried.

Ayes:

Ernest Stevens III, Kirby Metoxen

Abstained:

Daniel Guzman King

2. Southeast Oneida Tribal Services Advisory Board Amendments (54:18-1:04:16)

Motion by Daniel Guzman King to add the SEOTS Board bylaws to the active files list

for amendments with Daniel Guzman King as the sponsor; seconded by Ernest Stevens

III. Motion carried unanimously.

3. Tobacco Law Emergency Amendments (1:04:18-1:11:41)

Motion by Daniel Guzman King to add the Tobacco Law Emergency Amendments to

the active files list with Kirby Metoxen as the sponsor; seconded by Kirby Metoxen.

Motion carried unanimously.

For the record: Ernest Stevens III, “I support that motion, because we can’t have a

conversation if we don’t bring it there. That’s the only reason I’m supporting it.”

Additions

VI.

Administrative Items

1. E-poll Results: Vehicle Driver Certification and Fleet Management Amendments

(1:11:58-1:12:34)

Motion by Kirby Metoxen to enter the E-poll into the record from 12/18/19 to approve

the January 23, 2020 Updated public meeting for the Vehicle Driver Certification and

Fleet Management Law Amendments; seconded by Daniel Guzman King. Motion

carried unanimously.

VII.

Executive Session

VIII. Adjourn

Motion by Kirby Metoxen to adjourn at 10:13 a.m.; seconded by Ernest Stevens III. Motion

carried unanimously.

Legislative Operating Committee Meeting Minutes of January 15, 2020

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Oneida Nation

Oneida Business Committee

Legislative Operating Committee

PO Box 365 • Oneida, WI 54155-0365

Oneida-nsn.gov

Legislative Operating Committee

February 5, 2020

Citations Law

Submission Date: 5/15/19

LOC Sponsor: Jennifer Webster

Public Meeting: 11/22/19

Emergency Enacted: n/a

Summary:

This item came to the LOC as a result of the development of the amendments to the

Domestic Animals law. The development of a Citations law will ensure that the Nation provides a

consistent process for handling citations of the Nation in order to ensure equal and fair treatment to all

persons who come before the Judiciary to have their citations resolved.

5/15/19 LOC: Motion by Jennifer Webster to add the Citations Law to the active files list with Jennifer

Webster as the sponsor; seconded by Kirby Metoxen. Abstained by Ernest Stevens III and

Daniel Guzman King. Motion carried.

5/21/19:

Work Meeting. Present: Clorissa N. Santiago, Brandon Wisneski, Jennifer Falck, Eric

Boulanger, Chad Wilson, Kelly McAndrews, Wes Martin, Tsyoslake House. The purpose of

this work meeting was to review and discuss the initial draft of the Citations law with the

departments and entities that are currently involved in the handling of citations. The Oneida

Law Office, Legal Resource Center, and Oneida Police Department provided suggestions and

recommendations to the LRO staff. LRO will update the draft.

5/23/19:

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

Clorissa N. Santiago, Brandon Wisneski, Kristen Hooker. The purpose of this work meeting

was to discuss and plan for how the LOC will collaborate with the Judiciary on the development

of this Law.

6/13/19:

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

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

Prendiville, Laura Laitinen-Warren. The purpose of this work meeting was to review the draft

of the Law, and for the LOC to provide input. The LOC provided the LRO with revisions to be

made to the law, and areas that should be researched. LOC also determined that the law should

not move forward until the Judiciary has been consulted.

8/6/19:

Work Meeting. Present: Clorissa N. Santiago, Brandon Wisneski, Eric Boulanger, Lisa

Skenandore, Patricia Degrand, Kristina Denny, Kelly McAndrews. The purpose of this work

meeting was to review the proposed draft of the Law to ensure that the processes and timelines

included are realistic and can be implemented successfully.

8/29/19:

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

Daniel Guzman King, Clorissa N. Santiago, Brandon Wisneski. The purpose of this work

meeting was to review and discuss the proposed revisions to the draft of the Citations law based

on the comments collected from the Oneida Police Department, Oneida Law Office, and

Judiciary.

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10/2/19 LOC: Motion by Daniel Guzman King to accept the draft Citations law and Legislative Analysis

and defer to a work meeting for further consideration; seconded by Kirby Metoxen. Motion

carried unanimously.

10/2/19:

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

King, Jennifer Falck, Clorissa N. Santiago, Brandon Wisneski, Jameson Wilson. The purpose

of this work meeting was to review the legislative analysis and make decisions regarding the

policy considerations contained in the law.

10/16/19 LOC: Motion by Jennifer Webster approve the public meeting packet, with the updated draft and

analysis, and forward the Citation Law to a public meeting to be held on November 22, 2019;

seconded by Daniel Guzman King. Motion carried unanimously.

11/22/19:

Public Meeting Held. Present: Jennifer Webster, Daniel Guzman King, Kirby Metoxen, Ernest

Stevens III, Jennifer Falck, Clorissa N. Santiago, Brandon Wisneski, Lee Cornelius, Rae

Skenandore, Mollie Passon. There were no oral comments made during this public meeting.

12/3/19:

Public Comment Period Closed. There was one (1) submission of written comments received

during the public comment period.

12/18/19 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 Ernest

Stevens III. Motion carried unanimously.

12/18/19:

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

III, Daniel Guzman King, Jennifer Falck, Clorissa N. Santiago, Brandon Wisneski. The

purpose of this work meeting was to review and consider the public comments that were

received. LRO will update the draft based on the LOC’s considerations.

1/15/20 LOC: Motion by Kirby Metoxen to accept the updated public comment review memorandum, draft,

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

Motion by Ernest Stevens to approve the Citations law fiscal impact statement request

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

prepared and submitted to the Legislative Operating Committee by January 29, 2020;

seconded by Kirby Metoxen. Motion carried unanimously.

Next Steps:

 Approve the Citations law adoption packet and forward to the Oneida Business Committee for

consideration.

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Oneida Nation

GODODO

PO Box 365 • Oneida, WI 54155-0365

ONEIDA

On eida- nsn.gov

TO:

FROM:

DATE:

RE:

Oneida Business Committee

Legislative Operating Committee

Oneida Business Committee

David P. Jordan, LOC Chai1man

February 12, 2020

Citations Law

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

Citations law:

1. Resolution: Citations Law

Statement of Effect: Citations Law

Citations Law Legislative Analysis

Citations Law

Citations Law Fiscal Impact Statement

Overview

On May 15, 2019, the Legislative Operating Committee decided to pursue the development of a

Citations law. The purpose of the Citations law is to provide a process that governs all citations

that fall under the jurisdiction of the Oneida Nation. [8 0. C. 807. 1-1}.

This resolution adopts the Citations law which will:

• Provide how a citation action commences and who has the authority to issue a citation [8

o.c. 807.4-1, 807.4-2];

• Describe what information is required to be included on a citation [8 O.C. 807.4-3];

• Set requirements for how a citation shall be served on an individual and subsequently filed

with the court [8 O.C. 807.4-4, 807.4-5];

• Provide a process for an individual to enter into a stipulation agreement with an authorized

attorney of the Nation to settle a citation [8 0. C. 807. 5J;

• Provide a process for how an individual can contest his or her citation in comi [8 0. C.

807.6-1, 807. 6-2] ;

• Set f01ih the various timelines and procedures for citation hearings [8 O.C. 807.6-2}; and

• Clarify that this Law shall not apply to any law of the Nation which delegates hearing

authority to a hearing body other than the Oneida Judiciary. [8 0. C. 807. 7).

The Legislative Operating Committee developed the proposed amendments to the Citations law

through collaboration with representatives from the Oneida Law Office, Oneida Police

Depaiiment, Judiciary, and Legal Resource Center. The Legislative Operating Committee also

reviewed various laws of the Nation, as well as laws from other tribes.

In accordance with the Legislative Procedures Act, a public meeting on the Citations law was held

on November 22, 2019. No oral comments were provided during the public meeting. The public

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comment period was then held open until December 3, 2019. The Legislative Operating

Committee received one (1) submission of written comments during the public comment period.

All public comments received were accepted, reviewed, and considered by the Legislative

Operating Committee on December 18, 2019. Any changes made based on those comments have

been incorporated into this draft.

Requested Action

Approve the Resolution: Citations Law

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

ONEIDA

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Oneida Nation

Post Office Box 365

Phone: (920)869-2214

Oneida, WI 54155

BC Resolution # _____________

Citations 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 purpose of the Citations law (“the Law”) is to provide a process that governs all citations

that fall under the jurisdiction of the Oneida Nation; and

WHEREAS,

the Law provides how a citation action commences and who has the authority to issue a

citation; and

WHEREAS,

the Law describes what information is required to be included on a citation; and

WHEREAS,

the Law sets forth requirements for how a citation shall be served on an individual and

subsequently filed with the court; and

WHEREAS,

the Law provides a process for an individual to enter into a stipulation agreement with an

authorized attorney of the Nation to settle a citation; and

WHEREAS,

the Law provides a process for how an individual can contest his or her citation in court;

and

WHEREAS,

the Law sets forth the various timelines and procedures for citation hearings; and

WHEREAS,

the Law clarifies that this Law shall not apply to any law of the Nation which delegates

hearing authority to a hearing body other than the Oneida Judiciary; and

WHEREAS,

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

statement were developed for this Law; and

WHEREAS,

a public meeting on the Law was held on November 22, 2019, in accordance with the

Legislative Procedures Act, and the public comment period was held open until December

3, 2019; and

WHEREAS,

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

comments received on December 18, 2019; and

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BC Resolution # _______

Citations Law

Page 2 of 2

NOW THEREFORE BE IT RESOLVED, that the Citations law is hereby adopted and shall become effective

on February 26, 2020.

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Oneida Nation

Oneida Business Committee

Legislative Operating Committee

PO Box 365 • Oneida, WI 54155-0365

Oneida-nsn.gov

ONEIDA

Statement of Effect

Citations Law

Summary

This resolution adopts the Citations law which will provide a process that governs all citations that

fall under the jurisdiction of the Oneida Nation.

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

Date: February 5, 2020

Analysis by the Legislative Reference Office

This resolution adopts the proposed Citations law. The proposed Citations law will provide a

process that governs all citations that fall under the jurisdiction of the Oneida Nation. [8 O.C.

807.1-1]. It is the policy of the Nation to ensure that the consistent process for handling citations

provides equal and fair treatment to all persons who come before the Judiciary to have their

citations resolved. [8 O.C. 807.1-2].

Adoption of any legislation is required to comply with the Legislative Procedures Act (“the LPA”),

which was adopted by the General Tribal Council through resolution GTC-01-07-13-A for the

purpose of providing a standardized process for the adoption of laws of the Nation. [1 O.C. 109.11]. The Citations law complied 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].

A public meeting on the proposed Citations law was held on November 22, 2019. No oral

comments were provided during the public meeting. The public comment period was then held

open until December 3, 2019. The Legislative Operating Committee received one (1) submission

of written comments during the public comment period. All public comments received were

accepted, reviewed, and considered by the Legislative Operating Committee on December 18,

2019. Any changes made based on those comments have been incorporated into this draft.

The Citations law will become effective ten (10) business days after the adoption of this resolution

in accordance with the LPA. [1 O.C. 109.9-3].

Conclusion

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

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Analysis to Draft 4

2020 02 05

Kayanl^sla Ol$=wa>

Laws of issues/matters

CITATIONS LAW

LEGISLATIVE ANALYSIS

SECTION 1. EXECUTIVE SUMMARY

REQUESTER:

LOC

Intent of the

Proposed Law

Purpose

Affected Entities

Related Legislation

Public Meeting

Fiscal Impact

SPONSOR:

DRAFTER:

ANALYST:

Jennifer Webster

Clorissa N. Santiago

Brandon Wisneski

To establish a consistent process for citations issued for violations of laws of the

Nation, including:

 What must appear on a citation form;

 How a citation must be served;

 A process for entering into stipulation agreements to settle citations;

 A process for contesting citations in court; and

 Timelines and procedures for citation hearings.

To provide a process that governs all citations that fall under the jurisdiction of the

Oneida Nation [8 O.C. 807.1-1].

Any person issued a citation under the laws of the Nation; Agencies responsible for

enforcement and issuing citations under the laws of the Nation (Oneida Police

Department, Conservation Wardens, Oneida Environmental Health Safety and

Land Division, Licensing Department), the Nation’s Judiciary, Oneida Law Office,

GTC Legal Resource Center, Utilities Department, and Oneida Land Commission.

Domestic Animals law; Hunting, Fishing and Trapping law; All-Terrain Vehicle

law; Public Use of Tribal Land law; Recycling and Solid Waste Disposal law;

Tribal Environmental Response law; Well Abandonment law; Onsite Waste

Disposal Ordinance; Water Resources law; Emergency Management and

Homeland Security law; Tobacco law; Oneida Food Service Code; Tattoo and Body

Piercing law; Notary Act; Non Metallic Mine Reclamation law; Zoning and

Shoreland Protection law; Marriage law, Sanitation Ordinance, Rules of Civil

Procedure; Rules of Appellate Procedure, Judiciary Law Rule No. 1 – Oneida Trial

Court Rules.

A public meeting was held on November 22, 2019.

A fiscal impact statement was submitted by the Finance Dept. on January 29,

2020.

SECTION 2. LEGISLATIVE DEVELOPMENT

A. The Oneida Nation exercises its sovereignty through the enactment and enforcement of its own laws.

These laws cover a variety of topics, including health and public safety, environmental and natural

resources, and property and land. When a person violates a law of the Nation, several laws authorize

the Nation to enforce by issuing citations, fines and penalties. However, the Nation’s laws do not

include a uniform process for what happens after a citation is issued, particularly once it reaches the

Judiciary. This has led to implementation issues for individuals and entities involved in the citation

process. In some instances, it has resulted in the dismissal of cases in the Judiciary on technical grounds.

B. During the development of amendments to Domestic Animals law in 2019, the LOC worked

collaboratively with several of the Nation’s agencies. During this process, the agencies discussed the

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Analysis to Draft 4

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need to develop a more detailed procedure for the issuance and processing of citations. Rather than add

a detailed process only to the Domestic Animals law, the LOC decided to begin drafting a new Citations

law to apply to violations of any law of the Nation that authorizes citations.

C. The LOC added the proposed Citations law to the Active Files List on May 15, 2019. Since that time,

a work group of representatives from Oneida Police Department, Environmental Resource Board,

Oneida Law Office and Oneida Legal Resource Center met to work on the proposed law.

D. This proposed law applies only to citations issued by the Nation for violations of the Nation’s laws.

Officers of the Oneida Police Department are cross-deputized by the Brown County Sheriff’s

Department and also have the authority to issue citations for violation of state laws that may be heard

in Wisconsin Circuit Courts (for example, violations for operating while intoxicated).

SECTION 3. CONSULTATION AND OUTREACH

A. Representatives from the following departments or entities participated in the development of this law

and legislative analysis: Oneida Police Department, Oneida Law Office, Oneida Judiciary, Oneida

Legal Resource Center, and Oneida Environmental Resource Board.

B. The following laws were reviewed in the drafting of this analysis: Domestic Animals law; Hunting,

Fishing and Trapping law; All-Terrain Vehicle law; Public Use of Tribal Land law; Recycling and

Solid Waste Disposal law; Tribal Environmental Response law; Well Abandonment law; Onsite Waste

Disposal Ordinance; Water Resources law; Emergency Management and Homeland Security law;

Tobacco law; Oneida Food Service Code; Tattoo and Body Piercing law; Notary Act; Non Metallic

Mine Reclamation law; Zoning and Shoreland Protection law; Motor Vehicle Registration law;

Marriage law; Sanitation Ordinance; Clean Air Policy; Alcohol Beverage Licensing law; Oneida

Woodcutting Ordinance; Building Code law; Rules of Civil Procedure; Rules of Appellate Procedure,

and Judiciary Law Rule No 1 – Oneida Trial Court Rules.

SECTION 4. PROCESS

A. The amendments to this law have followed the process set forth in the Legislative Procedures Act (LPA).

B. The law was added to the Active Files List on May 15, 2019.

C. A public meeting was held on November 22, 2019. The public comment period was held open until

December 3, 2019.

C. The following work meetings were held regarding the development of this law and legislative analysis:

 May 21, 2019: Work meeting with Oneida Police Department, Oneida Law Office, Environmental

Resource Board and Legal Resource Center.

 May 23, 2019: Work meeting with LOC.

 June 13, 2019: Work meeting with LOC.

 August 6, 2019: Work meeting with Oneida Police Department, Oneida Law Office and Oneida

Judiciary clerks.

 August 29, 2019: Work meeting with LOC.

 October 2, 2019: Work meeting with LOC.

 December 18, 2019: Work meeting with LOC.

SECTION 5. CONTENTS OF THE LEGISLATION

A. Commencement of a Citation Action.

 What is a Citation? A citation is a “legal document that services as a notice or summons to appear

in a court of the Nation in response to a charge against an individual of a violation of law” [8 O.C.

807.3-1(b)]. The issuance of a citation begins a civil action in the Judiciary for violating a law of

the Nation for the purpose of collecting a fine or penalty imposed by the law [8 O.C. 807.4-1].

 Who Can Issue a Citation? An “officer” may issue a citation to any person he or she has reasonable

grounds to believe has committed a violation of a law of the Nation. For the purposes of this law,

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Analysis to Draft 4

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an “officer” is defined as “any individual authorized by a law of the Nation to issue a citation for a

violation of said law” [8 O.C. 807.3-1(g)]. For most laws of the Nation, the individual authorized

to issue a citation is an officer of the Oneida Police Department or a Conservation Warden.

 Who can Receive a Citation? A “person” who receives a citation may be an individual or a legal

entity, such as a corporation, LLC or sole proprietorship [8 O.C. 807.3-1(i)].

B. Form of Citation. This law creates a standard list of information that must be included on a citation

form when it is issued. These requirements match the information included on the current citation form

used by the Nation [8 O.C. 807.4-3].

 Identifying Information:

o Name of the officer who issued citation;

o Name, address, and date of birth of the defendant. Enrollment number and/or license

number of the defendant, if applicable.

 Information About the Alleged Violation:

o The violation alleged, the law violated, the time and place of the violation, and a description

of the violation.

 Court Hearing & Fine Information:

o A notice of when and where to appear at a citation pre-hearing and whether the pre-hearing

is mandatory;

o Provisions for payment of citation and stipulation in lieu of an appearance in Court, if

applicable. In other words, the option for individuals to pay their fine without having to

make a court appearance;

o Notice that if the defendant does not pay the citation or stipulate an agreement prior to the

pre-hearing and fails to appear in Court at the time listed on the citation, the Court may

issue a default judgment which may include any fine amount due, restitution and/or

suspension of any rights, privileges, or licensures, or any other penalty authorized by law;

o Notice that failure to satisfy a fine, restitution, or any other party of the judgment may

result in per capita attachment, wage garnishment, revocation, suspension of any rights,

privileges, licensures, and/or any other action authorized by law and/or other collection

processes available to the court.

Current Oneida Nation Citation Form – Front

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Analysis to Draft 4

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101

102

103

104

105

106

107

108

109

110

111

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Current Oneida Nation Citation Form – Back

C. Service of a Citation. When an officer issues a citation, the citation must be “served” on the individual

alleged to have violated the law [8 O.C. 807.4-4].

 Personal Service. An officer must first attempt to personally serve the citation on the defendant

(i.e. hand the citation to the defendant) or leave a copy of the citation at the defendant’s home in

the presence of a competent family member at least fourteen (14) years of age or an adult who

resides in the home of the defendant.

o Why age 14? In the state of Wisconsin, a service of summons may be left in the presence

of a competent family member at least fourteen (14) years of age if, with reasonable due

diligence, the defendant cannot be personally served [Wis. Stats 801.11]. This provision is

modeled after WI statutes.

 Mail Service. If personal service is not possible and the defendant’s address can be determined,

then mail service may be used. For service by mail, a copy of the citation may be delivered to the

defendant’s last known address by certified mail with return receipt. The certified mail return

receipt will be signed by the defendant or competent family member at least fourteen (14) years of

age or an adult who resides in the home of the defendant. The certified mail return receipt will be

filed with the Court as proof of service.

 Service by Publication. As a last resort, after a showing of due diligence that personal and mail

service are not possible, then service may be completed by publication in the Nation’s newspaper

(the Kalihwisaks). The notice must be published at least two (2) times within a 30-day period. The

notices must be published at least ten (10) days before the citation pre-hearing.

 Filing a Citation. The department of the officer who issued the citation must file the citation with

the Court along with proof of service, if applicable, at least thirty (30) days prior to the date of the

pre-hearing. Citations may be filed in person or electronically transmitted [8 O.C. 807.4-5].

o Amendments to Citations. A citation may be amended by an officer or the authorized

attorney prior to the citation pre-hearing. A copy of the amended citation must be provided

to the defendant at least five (5) days prior to the citation pre-hearing.

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119

120

Chart 1. Service of a Citation.

A person violates a

law of the Nation

PERSONAL

SERVICE

Personal service not

possible and

defendant’s address

can be determined

Officer authorized

by law to issue a

citation for the

violation

Citation personally served on

defendant or left at the

defendant’s home in presence of

competent family member

MAIL SERVICE

Mail service not

possible

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Officer writes the

citation

Copy of citation delivered

to defendant’s last known

address by certified mail

with return receipt

SERVICE BY

PUBLICATION

Return receipt filed

with court as proof

of service

May only be

used as last

resort

Notice published in Nation’s

newspaper (at least twice within

a 30‐day period and at least 10

days before the pre‐hearing

date)

D. Stipulations. An authorized attorney of the Nation is granted the discretion to seek the settlement of

the citation. This means that the Nation and the defendant can agree to a lower fine amount or other

condition to settle the case [8 O.C. 807.5].

 Who is an Authorized Attorney of the Nation? An attorney of the Nation who represents the

department or entity of the officer who issued the citation, such as the attorney for the Oneida Police

Department [8 O.C. 807.3-1]. Attorneys of the Nation work in the Oneida Law Office.

 Form of Stipulation. The stipulation, or agreement, between the Nation’s attorney and defendant

must be in writing, signed by both parties, and include the following information:

o A summary of the violation that resulted in the citation,

o The details of the stipulation including any fine, penalty, condition or payment plan the

defendant must comply with,

o A statement that the defendant admits that he or she committed the act or is entering a plea

of no contest and waives his or her right to contest the citation in Court; and

o A statement that all parties signed the agreement free of duress and coercion.

 Current Practice. It is the Nation’s current practice to offer stipulations to defendants for violations

of the Nation’s Domestic Animals law. Stipulations typically involve the Nation lowering a fine

amount. Currently, this practice is not outlined in detail in any law of the Nation.

o Comparison to State of WI. For cases in Wisconsin circuit court, stipulations are typically

handled by the prosecutor’s office. Oneida Nation does not have a prosecutor or exercise

criminal jurisdiction, so in this instance, the Nation is represented by an attorney of the

Law office who assumes these responsibilities for violations the Nation’s civil laws.

 Effect. Although offering stipulations is the current practice of the Nation, placing the process in

the law will formally establish this authority for the authorized attorneys of the Nation.

E. Citation Pre-Hearing. All citations will include a pre-hearing date with the Court which will be set at

least thirty (30) days after the citation was issued, unless stated otherwise by a law of the Nation [8

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O.C. 807.6-1]. The Judiciary’s current practice is to hold citation pre-hearings on the third Thursday of

each month.

 Mandatory Appearance. Appearance at a pre-hearing is only mandatory when a law, policy, rule

or resolution of a Nation requires a mandatory appearance for that specific violation of the law.

Most violations of the Nation’s laws do not require a mandatory appearance.

o Example: The Domestic Animals law fine, penalty and licensing fee schedule requires a

mandatory court appearance for mistreatment of animals [BC Resolution 05-08-19-D].

 Paying Fine or Penalty. If an appearance is not mandatory and the individual does not want to

contest (or challenge) the citation, the individual may pay the fine or penalty listed on the citation

before the pre-hearing date and the citation will be considered satisfied.

 Contesting a Citation. If an individual wants to contest their citation, that person can appear at the

pre-hearing to contest the citation. If an appearance at the pre-hearing isn’t mandatory, that

individual can also send a written notice to the Court with a copy to the Law Office notifying the

court that they wish to contest the citation.

 Default Judgment. If the defendant does not pay their fine or enter into a stipulation before their

pre-hearing date and fails to appear at their pre-hearing or provide notice to the court, then the court

may enter a default judgment against the defendant. In other words, if a defendant “ignores” their

citation, the court can automatically find them guilty of the violation.

o Consequences. A default judgment can include the fine amount due, restitution, suspension

of rights, privileges and licenses, or any other penalty authorized by laws of the Nation.

F. Citation Hearing. If a defendant contests that they committed the violation that resulted in the citation,

then the Court will schedule a hearing within ninety (90) days of the pre-hearing date. In other words,

if the defendant argues that they did not commit the violation or that the citation was issued

inappropriately, the defendant has an opportunity to challenge their citation at a court hearing [8 O.C.

807.6-2].

 Burden of Proof. The burden of proof at a citation hearing is “clear and convincing evidence.” This

means that the Nation must provide evidence “indicating that the [allegation] to be proved is highly

probably or reasonably certain” [see Black’s Law Dictionary].

o Current Standard of Proof. The Nation’s Rules of Civil Procedure state that the standard

of proof for all matters to be decided by the Court shall be proven by a “preponderance of

the evidence” standard, unless specified otherwise [8 O.C. 803.4-8]. “Preponderance of

the evidence” is the burden of proof in most civil trials and means that there is sufficient

evidence that there is a greater than 50% chance that the claim is true.

o Effect. This law sets a higher burden of proof than the Judiciary is currently using for

citation hearings under the laws of the Nation. This means that the Nation and its agencies

(represented by its authorized attorney) will have to meet this higher burden of proof when

a citation is challenged by a defendant. This will only apply to citation hearings. All other

hearings of the court will utilize the “clear and convincing evidence” standard unless

otherwise noted in another law of the Nation.

 Appeals. Anyone who wishes to appeal a judgment of the court may appeal to the Nation’s Court

of Appeals in accordance with the Rules of Appellate Procedure [8 O.C. 807.6-3].

o The Rules of Appellate Procedure state that a notice of appeal must be filed within thirty

(30) days after the Trial Court’s order is rendered [8 O.C. 805.5].

G. Exclusion. This law will not apply to any law of the Nation that delegates hearing authority to a hearing

body other than the Judiciary [8 O.C. 807.7]. The Oneida Land Commission retains hearing authority

for citations issued under two of the Nation’s laws. Therefore, the proposed Citations law will not apply

to citations issued under the following two laws:

 Zoning and Shoreland Protection law [6 O.C. 605].

 Non-Metallic Mining Reclamation law [4 O.C. 402].

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SECTION 6. EXISTING LEGISLATION

A. Which Laws of the Nation will the New Citations Process Apply to? Many laws of the Nation authorize

citations, fines or forfeitures for violations. The intent of the proposed Citations law is to establish a uniform

process that can apply to all of these laws without conflict. Some of these laws were updated after the

creation of the Nation’s Judiciary and conform cleanly with the process in this proposed Citations Law.

However, other laws are decades-old and conform less clearly due to changes in drafting style and the

Nation’s organizational structure over the years. The following charts provide a summary of the Nation’s

laws that authorize citations, fines, forfeitures or penalties and whether the proposed Citations law will

apply.

 Laws that Authorize Citations & Include Judiciary Appeals Process with Timelines. The

following laws of the Nation specifically authorize the issuance of citations and include a process

for contesting citations in the Judiciary Trial Court with required timelines for citations hearings.

The proposed Citations law conforms with these timeframes and adds additional process and

requirements.

o Conclusion: The proposed Citations will apply to any citations issued under the following

laws of the Nation:

Chart 2. Oneida Laws that Authorize Citations & Include Judiciary Appeals Process.

Chapter

Law

Authority to Enforce

Example Violation

304

Domestic Animals

Oneida Police

Dangerous animal;

Department and Oneida

prohibited animal; animal

Conservation

running at large.

406

Hunting,

Fishing Oneida Police

Failure possess license;

and Trapping

Department and Oneida

Failure to tag,

Conservation

Unlawfully

hunting/shooting from a

vehicle.

410

All Terrain Vehicle Oneida Police

Operating all-terrain

Department and Oneida

vehicle in a careless

Conservation

manner, on private

property without consent,

on tribal lands without

consent

Trespassing.

609

Public Use of

Oneida Police

Tribal Land

Department and Oneida

Conservation



Laws that Authorize Citations & Refer to Citations law for Judiciary Appeals Process. The

following laws of the Nation specifically authorize the issuance of citations and state that citations

will be processed in accordance with the procedure contained “in the Nation’s laws and policies

governing citations.” This refers to the proposed Citations law and Judiciary Law Rule No. 1 –

Oneida Trial Court Rules.

o Conclusion: The proposed Citations will to apply to any citations issued under the

following law of the Nation:

Chart 3. Oneida Laws that Authorize Citations & Reference Citations law.

Chapter

Law

Authority to Enforce

Example Violation

308

Curfew

Oneida Police

Minor violating curfew.

Department

225

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

Laws that Authorize “Fines, Penalties and Forfeitures” and Include Judiciary Appeals Process

with Timelines. The following laws of the Nation authorize “fines, penalties or forfeitures” and

include a process for contesting citations in the Judiciary Trial Court with required timelines for

citation hearings. The proposed Citations law conforms with these timeframes and adds additional

process and requirements.

o Conclusion: The proposed Citations law appears to apply to any citations issued under the

following laws of the Nation:

Chart 4. Laws that Authorize Fines and Include Judiciary Appeals Process w/Timelines.

Chapter Law

Authority to Enforce

Example Violation

401

Tribal

Environmental Health,

Violating a compliance

Environmental

Safety and Land Division order issued by Division

Response Law

for discharging hazardous

substance.

404

Well Abandonment

Environmental Health,

Failure to comply within

Law

Safety and Land Division ten (10) days of written

notice of violation.

407

Onsite Waste

Environmental Health,

Failure to correct on-site

Disposal Ordinance Safety and Land Division waste disposal system,

(“Environmental

constituting threat to

Specialist”)

public health.

409

Water Resources

Oneida Conservation

Failure to report

discharging substance to

waters of reservation.



Laws that Authorize Citations and Do Not Include Judiciary Appeals Process. The following

laws of the Nation specifically authorize citations but do not specify a process or timeframe for

how citations may be contested in the Judiciary. The process and timeframes included in the

Citations law will now apply to any citations issued under these laws.

o Conclusion: The proposed Citations law will apply to any citations issued under the

following law of the Nation:

Chart 5. Oneida Laws that Authorize Citations and Do Not Include Judiciary Appeals Process.

Chapter

Law

Authority to Enforce

Example Violation

Improperly dumping

405

Recycling and Solid Oneida Police

solid waste within

Waste Disposal*

Department and Oneida

reservation boundaries

Conservation

*The Recycling and Solid Waste Disposal Law is currently on the LOC’s Active Files List

for amendments.



Laws that Authorize “Fines, Penalties and Forfeitures” and Include Judiciary Appeals Process

without Timelines. The following laws of the Nation authorize “fines, penalties or forfeitures” and

state that appeals may be filed with the Judiciary, but do not specify a process or timeframe for

how those appeals will be handled. It appears that the process and timeframes included in the

Citations law will likely apply to any citations issued under these laws.

o Conclusion: The proposed Citations law appears to apply to any citations issued under the

following laws of the Nation:

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Chart 6. Oneida Laws that Authorize Fines and Include Judiciary Appeals Process w/o Timelines

Chapter Law

Authority to Enforce

Example Violation

115

Tobacco

Oneida Police

Selling tobacco products

Department

in violation of the law.

302

Emergency

Oneida Police

Willfully obstruct, hinder

Management and

Department

or delay the

Homeland Security

implementation of

emergency response.

305

Oneida Food

Environmental Health,

Selling food or food

Service Code*

Safety and Land Division products on tribal

and Licensing.

property without a

license.

Performing tattooing or

306

Tattoo and Body

Environmental Health,

Piercing

Safety and Land Division body piercing without a

license.

and Licensing.

701

Marriage

Licensing Department

False statement to obtain

a marriage license.

*The Oneida Food Service Code is currently on the LOC’s Active Files List for amendments.



Laws that Authorize “Fines, Penalties and Forfeitures” and Do Not Include Judiciary Appeals

Process. The following laws of the Nation authorize “fines, penalties and forfeitures” but do not

specify a process or timeframe for how citations may be contested in the Judiciary. It appears that

the process and timeframes included in the Citations law will likely apply to any citations issued

under these laws.

o Conclusion: The proposed Citations law appears to apply to any citations issued under the

following laws of the Nation:

Chart 7. Oneida Laws that Authorize Fines and Do Not Include Judiciary Appeals Process.

Chapter

Law

Authority to Enforce

Example Violation

Impersonating a notary

114

Notary Act

“Official designated by

public.

Oneida Business

Committee.”

408

Sanitation

Utilities Department.

Continuing Violations.

Ordinance



Laws that Authorize Citations but include Land Commission Appeals Process. The following

laws of the Nation authorize citations, but direct that any appeals be filed with the Land

Commission rather than the Nation’s Judiciary. Therefore, the following laws are excluded from

the proposed Citations law [8 O.C. 807.7-1].

o Conclusion: The proposed Citations law will not apply to citations issued under the

following laws of the nation.

Chart 8. Oneida Laws that Authorize Citations and Conflict with Proposed Citations Law

Chapter Law

Authority to Enforce

Example Violation

402

Non-Metallic Mine

Environmental

Health, Violating an order

Reclamation

Safety and Land Division requiring an operator to

or designee.

comply with the law.

605

Zoning and

Zoning Administrator.

Public Nuisance. Failure

Shoreland

to obtain land use permit

Protection

or conditional use permit.

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Laws that include Penalties but Do Not Fall Under Proposed Citations law. The following laws

of the Nation authorize various alternative penalties for violations of the law, but do not include a

citation process or Judiciary appeals process. It can be reasonably concluded that the following

laws would not fall under the jurisdiction of the proposed Citations law as currently drafted.

o Conclusion: The proposed Citations law does not appear to apply to penalties issued under

the following laws.

Chart 9. Oneida Nation Laws with Other Penalties Where Citations Law Does Not Apply.

Chapter Law

403

Oneida Woodcutting Ordinance

411

Clean Air Policy

505

Motor Vehicle Registration

507

Alcohol Beverage Licensing Law

602

Leasing Law

603

Building Code

B. Detailed Review of Laws of the Nation that Authorize Citations with Land Commission Appeals

Process. The following laws of the Nation authorize citations but direct that appeals be heard by the

Land Commission rather than the Judiciary:

 Zoning and Shoreland Protection law [6 O.C. 605]

o Purpose. The purpose of the Zoning and Shoreland Protection law includes establish a

zoning plan for tribal lands, regulate the use of lands and buildings and provide for the

administration and enforcement of this law, among other purposes [3 O.C. 304.1-1].

o Enforcement. Any person who violates any provision of this law, or who shall take any

action on or with respect to any land or structure which is not in compliance with this law,

shall be guilty of a civil infraction and shall be issued a fine in accordance with the schedule

adopted by the Oneida Business Committee upon recommendation of the Land

Commission.

o Appeals. Any person issued a fine under this law may contest the fine by attending a

hearing before the Land Commission. The fine shall specify the date, time and place of the

hearing. The hearing shall take place at least five (5) days after the fine is issued. After the

hearing, the Land Commission shall determine whether the person is responsible for the

fine, as was issued by the Zoning Administrator and may set a new date for when the fine

shall be paid.

o Conclusion. The proposed Citations law states that citation hearings shall be heard in the

Oneida Judiciary, while the Zoning and Shoreland Protection law states that fines issued

under that law must be contested at a hearing of the Oneida Land Commission. Therefore,

this law is excluded from the proposed Citations law [8 O.C. 807.7-1]. The proposed

Citations law will not apply to citations issued under the Zoning and Shoreland Protection

law.

 Non Metallic Mine Reclamation law [4 O.C. 406]

o Purpose. The purpose of the Non-Metallic Mine Reclamation law is to ensure the effective

reclamation of nonmetallic mining sites on which nonmetallic mining takes place within

the boundaries o the reservation [4 O.C. 402.1-1].

o Enforcement. The Oneida Zoning Department or designee may issue a citation to collect

fines to enforce this law, a permit issued pursuant to this law or a reclamation plan approved

under this law.

o Appeals. A person who is subject to a citation issued pursuant to this section shall have

sixty (60) days to either appeal the citation to the Land Commission or review or pay the

fine.

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Conclusion. The proposed Citations law states that citations hearings shall be heard in the

Oneida Judiciary, while the Non-Metallic Mine Reclamation Law states that appeals shall

be heard by the Land Commission. Therefore, this law is excluded from the proposed

Citations law [8 O.C. 807.7-1]. The proposed Citations law will not apply to citations

issued under the Non-Metallic Mine Reclamation law.

C. Detailed Review of Laws of the Nation that Authorize Citations. The following laws of the Nation

authorize citations, fines or forfeitures and do not conflict with the proposed Citations law. The

provisions of the proposed Citations law will likely apply to citations issued under any of the following

laws:

 Domestic Animals law [3 O.C. 304]

o Purpose. The purpose of the Domestic Animals law is to protect the health, safety, and

welfare of the community set minimum standards for treatment of animals; prohibit certain

species of animals from being brought on the reservation; regulate the keeping of livestock

on lots zoned residential, and establish consequences for damages caused by domestic

animals [3 O.C. 304.1-1].

o Enforcement. The Oneida Police Department and Oneida Conservation Wardens have the

authority to issue citations according to the fine and penalty scheduled developed in

accordance with the Domestic Animals law.

o Conclusion. The proposed Citations law does not conflict with the enforcement provisions

in the Domestic Animals law. The new requirements of the proposed Citations law will

now apply to any citations issued under the Domestic Animals law.

 Curfew law [3 O.C. 308]

o Purpose. to protect the health, safety, and welfare of persons and property within the

Reservation by regulating the activities of minors on the Reservation during certain

hours, while imposing certain obligations and responsibilities upon the parents,

guardians, and/or legal custodians of a minor for the control and supervision of that

minor [3 O.C. 308.1-1].

o Enforcement. The Oneida Police Department has the authority to enforce this law and issue

citations to the minor or minor’s parent for curfew violations in accordance with the law

[3 O.C. 308.6].

o Conclusion. The proposed Citations law does not conflict with the enforcement provisions

in the Curfew law. The new requirements of the proposed Citations law will now apply to

any citations issued under the Curfew law.

 Hunting, Fishing and Trapping law [4 O.C. 406]

o Purpose. The purpose of the Hunting, Fishing and Trapping law is to protect and conserve

wildlife on the reservation and to promote respect among sportsmen and the environment

[4 O.C. 406.1-1].

o Enforcement. The Oneida Police Department and Oneida Conservation Wardens may issue

citations to any person found in violation of the law or corresponding rules. [4 O.C. 406.54 and 406.10].

o Conclusion. The proposed Citations law does not conflict with the enforcement provisions

in the Hunting, Fishing and Trapping law. The new requirements of the proposed Citations

law will now apply to any citations issued under the Hunting, Fishing and Trapping law.

 All-Terrain Vehicle law [4 O.C. 410]

o Purpose. The purpose of the All-Terrain Vehicle law is to govern the safe use of all-terrain

vehicles within the jurisdiction of the Oneida Reservation to allow enforcement for

protection of the community members and environment [4 O.C. 410.1-1].

o Enforcement. The Oneida Police Department and Oneida Conservation Wardens are

authorized to enforce and take any appropriate action to prevent or remove a violation of

this law. Citations for violations of this law and/or orders issued pursuant to this law

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

include sanctions, fines and penalties in accordance with the fine schedule developed in

accordance with the law [4 O.C. 410.6 and 410.7].

o Conclusion. The proposed Citations law does not conflict with the enforcement provisions

in the All-Terrain Vehicle law. The new requirements of the proposed Citations law will

now apply to any citations issued under the All-Terrain Vehicle law.

Public Use of Tribal Land law [6 O.C. 609]

o Purpose. The purpose of the Public Use of Tribal Land law is to prevent improper access,

use and trespass to tribal lands [6 O.C. 609.1-1].

o Enforcement. The Oneida Police Department and Oneida Conservation Wardens are

authorized to take any appropriate action to prevent or remove a violation of this law.

Citations for violation of this law may include fines, penalties and other orders in

accordance with the citation schedule applicable to this law [6 O.C. 609.7].

o Conclusion. The proposed Citations law does not conflict with the enforcement provisions

in the Public Use of Tribal Land law. The new requirements of the proposed Citations law

will now apply to any citations issued under the Public Use of Tribal Land law.

Recycling and Solid Waste Disposal law [4 O.C. 405]

o Purpose. The purpose of the Recycling and Solid Waste Disposal law is to promote the

health, safety and welfare of residents and members of the Oneida Nation through the

establishment of standards necessary to the sanitary and environmentally sound disposal

of recyclable materials [4 O.C. 405.1-1].

o Enforcement. All Oneida Reservation Conservation Enforcement Officers and Police

Officers shall be empowered to enforce the provisions of this law. Any person who violates

a provision of this “ordinance” may be issued a citation by the Oneida Conservation

Warden(s) [4 O.C. 405.12].

o Conclusion. The proposed Citations law does not conflict with the enforcement provisions

in the Recycling and Solid Waste Disposal law. The new requirements of the proposed

Citations law will now apply to any citations issued under the Recycling and Solid Waste

Disposal law.

Tribal Environmental Response law [4 O.C. 401]

o Purpose. The purpose of the Tribal Environmental Response law is to regulate the

identification, investigation and remediation of discharges of hazardous substances to the

environment, identify sites where discharge has occurred, and eliminate contamination

from and control the threat of discharge of hazardous substances [4 O.C. 401.1-1].

o Enforcement. Any person who does not comply with a compliance order issued by the

Environmental Health, Safety and Land Division may receive a penalty in accordance with

the fine schedule. Any order issued pursuant to this law that is not complied with may be

physically enforced by the Division [4 O.C. 401.10].

o Conclusion. The proposed Citations law does not conflict with the enforcement provisions

in the Tribal Environmental Response law. The new requirements of the proposed Citations

law will now apply to citations issued under the Tribal Environmental Response law.

Onsite Waste Disposal [4 O.C. 407]

o Purpose. The purpose of the Onsite Waste Disposal law is to establish regulations to ensure

that private onsite sewage treatment systems will fulfill Oneida Tribal goals for improving

environmental health and safety [4 O.C. 407.1-2].

o Enforcement. The Environmental Specialist may issue an Administrative Enforcement

Order when a violation of any provision of this law occurs… the Order shall be given to

the party responsible for the violation and shall state the nature of the violation, possible

penalties for failure to correct, and shall state the right to contested the matter with the

Oneida Judiciary [4 O.C. 407.7-1].

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Conclusion. The proposed Citations law does not conflict with the enforcement provisions

in the Onsite Waste Disposal law. The new requirements of the proposed Citations law will

now apply to any citations issued under the Onsite Waste Disposal law.

Water Resources [4 O.C. 409]

o Purpose. The purpose of the Water Resources law is to grant necessary powers and to

organize a comprehensive program under a single tribal department for the enhancement

of the quality management and protection of all waters of the Reservation, ground and

surface, public and private [4 O.C. 409.1-2].

o Enforcement. The Oneida Conservation Department shall enforce this law, and all rules

and orders issued by the Department [4 O.C. 409.6-3].

o Conclusion. The proposed Citations law does not conflict with the enforcement provisions

in the Water Resources law. The new requirements of the proposed Citations law will now

apply to any citations issued under the Water Resources law.

Emergency Management and Homeland Security law [3 O.C. 302]

o Purpose. The purpose of the Emergency Management and Homeland Security law is to

provide for the development and execution of plans for the protection of residents, property

and the environment in an emergency or disaster [3 O.C. 302.1-1].

o Enforcement. Violators of this law may be subject to a fine of not more than two hundred

dollars ($200) per violation to be issued by the Oneida Police Department [3 O.C. 302.9].

o Conclusion. The proposed Citations law does not conflict with the enforcement provisions

in the Emergency Management and Homeland Security law. The new requirements of the

proposed Citations law will now apply to any citations issued under the Emergency

Management and Homeland Security law.

Oneida Food Service Code [3 O.C. 305]

o Purpose. The purpose of the Oneida Food Service Code is to protect and preserve the safety

of Oneida Nation citizens and others within its jurisdiction in conjunction with the most

current United States Public Health Service Food Code [3 O.C. 305.1-1].

o Enforcement. In addition to the suspension or closing down of a business that violates the

law, a food service vendor who violates any provision of the code shall forfeit not less than

five dollars ($5) nor more than five hundred dollars ($500) upon conviction. Environmental

Health, Safety and Land Division, Licensing Department and Oneida Police Department

have authority to enforce various provisions of this law.

o Conclusion. The proposed Citations law does not conflict with the enforcement provisions

in the current Oneida Food Service Code. The new requirements of the proposed Citations

law will appear to apply to any citations issued under the Oneida Food Service Code.

Tattoo and Body Piercing [3 O.C. 306]

o Purpose. The purpose of the Tattoo and Body Piercing law is to regulate tattooists, tattoo

establishments, body piercers and body piercing establishments under the jurisdiction of

the Tribe in order to protect public health and safety [3 O.C. 306.1-1].

o Enforcement. Environmental Health and Safety Division and Licensing Department [3

O.C. 306.13].

o Conclusion. The proposed Citations law does not conflict with the enforcement provisions

in the Tattoo and Body Piercing law. The new requirements of the proposed Citations law

appear to apply to any citations issued under the Tattoo and Body Piercing law.

Tobacco law [1 O.C. 115]

o Purpose. The purpose of the Tobacco law is to regulate the sale, possession and distribution

of cigarettes within the Reservation [1 O.C. 115].

o Enforcement. Violators subject to the jurisdiction of the Nation shall be subject to a fine of

not more than ten dollars ($10) per pack of un-stamped cigarettes to be issued by the Oneida

Police Department and paid to the Nation [1 O.C. 115.8-1].



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Conclusion. The proposed Citations law does not conflict with the enforcement provisions

in the Tobacco law. The new requirements of the proposed Citations law will now apply

to any citations issued under the Tobacco law.

 Marriage law [7 O.C. 701]

o Purpose. The purpose of the Marriage law is to exercise the sovereign right of the Oneida

Nation to regulate the rights and responsibilities relating to marriages [7 O.C. 701.1-1].

o Enforcement. The Department shall promulgate rules that establish a fine schedule for

persons who violate this law [7 O.C. 701.7-1].

o Conclusion. The proposed Citations law does not conflict with the enforcement provisions

in the Marriage law. The new requirements of the proposed Citations law appear to apply

to any citations issued under the Marriage law.

 Notary Act [1 O.C. 114]

o Purpose. The purpose of the Notary Act is to promote, serve and protect the public interest

and to simplify, clarify and modernize the law governing notaries [1 O.C. 114.1-2].

o Enforcement. A notary who knowingly and repeatedly performs or fails to perform

any act prohibited or mandated, respectively, by this Act shall forfeit not less than $50.00

nor more than $500.00… Any and all of the sections of this Act may be enforced by an

official designated by the Oneida Business Committee for separate issues, or for all issues

[1 O.C. 114.6-4 – 114.6-9].

o Conclusion. The proposed Citations law does not conflict with the enforcement provisions

in the Notary Act law. The new requirements of the proposed Citations law appear to apply

to any citations issued under the Notary Act.

 Sanitation Ordinance [3 O.C. 306]

o Purpose. The purpose of the Sanitation Ordinance is to assure that any water and sanitary

utilities that are developed within the jurisdiction of the Oneida Tribe shall be operated and

maintained in a manner that is fiscally responsible, responsive to customer needs,

environmentally safe and governmentally functional [4 O.C. 408].

o Enforcement. Any person who shall continue any violation beyond the time limit provided

for in sec. (b) may be assessed a fine of not more than $250.00 [4 O.C. 408.11].

o Conclusion. The proposed Citations law does not conflict with the enforcement provisions

in Sanitations Ordinance. The new requirements of the proposed Citations law appear to

apply to any citations issued under the Sanitation Ordinance law.

D. References to Other Laws. The following laws of the Nation are referenced in the Citations law. The

proposed Citations law does not conflict with any of the referenced laws.

 Garnishment law. The defendant’s failure to satisfy a fine and/or restitution may result in per

capita attachment, wage garnishment and/or other collection processes available to the Court [8

O.C. 807.6-2(d)].

 Per Capita law. The defendant’s failure to satisfy a fine and/or restitution may result in per capita

attachment, wage garnishment and/or other collection processes available to the Court [8 O.C.

807.6-2(d)].

 Rules of Appellate Procedure. Any person wishing to contest the determination of the Court may

appeal to the Nation’s Court of Appeals in accordance with the Rules of Appellate Procedure [8

O.C. 807.6-3].

E. Existing Judiciary Rules. The Oneida Business Committee recently adopted Judiciary law Rule #1 –

Oneida Trial Court Rules. This new rule, developed by the Judiciary and adopted by the Oneida

Business Committee on September 25, 2019, includes procedures for how citation hearings are held at

the Judiciary [8 O.C. 801 Judiciary law Rule #1 – 1.17 Citation Hearings].

 Conclusion. The proposed Citations law does not conflict with the citation hearing procedures in

Judiciary Law Rule No. 1 – Oneida Trial Court Rules.

Page 14 of 15

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SECTION 7. EFFECTS ON EXISTING RIGHTS, PRIVILEGES, OR OBLIGATIONS

A. Effect on Existing Rights. The proposed Citations law protects due process rights by:

 Requiring that all citations be properly noticed, including a notice of the defendant’s rights and

privileges, hearing dates and information;

 Ensuring that defendants have the right to contest their citations in the Nation’s Judiciary;

 Establish a formal process for stipulations that require defendants to acknowledge that they are

waiving their rights to contest the citation in court and sign a statement that they enter into the

agreement free of duress and coercion.

SECTION 8. ENFORCEMENT AND ACCOUNTABILITY

Enforcement. Each law of the Nation typically includes an “enforcement” section which gives

authority to a specific agency or department to enforce the law. Most laws of the Nation are enforced

by the Oneida Police Department or Conservation Wardens. For more information, see “Section 6:

Existing Legislation.”

SECTION 9. OTHER CONSIDERATIONS

A. Current Citation Data. The following data is provided for information:

 Oneida Police Department

o Nineteen (19) Domestic Animals citations issued between September 2018 - August 2019.

The most common citations were “mistreatment of animals” and “animal running at large.”

o The department did not report issuing citations under any other laws of the Nation.

Source: Email communication with OPD (9/9/19).

 Oneida Conservation Wardens

o Oneida Police Department reported that Conservation issued no citations between

September 2018 - August 2019.

o Conservation issued at least one Hunting, Fishing and Trapping citation in 2017.

Source: Email communication with OPD (9/11/19).

 Conclusion: Based on available data, the most common citations issued by the Nation involve the

Domestic Animals law or the Hunting, Fishing and Trapping law.

B. Laws in Progress that Include Citations. At the time this analysis was drafted, the LOC is actively

working on drafting or amending the following laws which include citations:

 The Oneida Food Service Code

 Recycling and Solid Waste Disposal law.

C. Fiscal Impact. Review the fiscal impact statement submitted by the Finance Department for any fiscal

impacts.

 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

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)].

Page 15 of 15

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Title 8. Judiciary - Chapter 807

Kayanl^sla Ol$=wa>

Laws of issues/matters

CITATIONS

807.1. Purpose and Policy

807.2. Adoption, Amendment, Repeal

807.3. Definitions

807.4. Commencement of a Citation Action

807.5. Stipulations

807.6. Hearing Procedure

807.7. Exclusion

807.1. Purpose and Policy

807.1-1. Purpose. The purpose of this law is to provide a process that governs all citations that fall

under the jurisdiction of the Oneida Nation.

807.1-2. Policy. It is the policy of the Nation to provide a consistent process for handling citations

of the Nation in order to ensure equal and fair treatment to all persons who come before the

Judiciary to have their citations resolved.

807.2. Adoption, Amendment, Repeal

807.2-1. This law was adopted by the Oneida Business Committee by resolution BC-__-__-__-__.

807.2-2. 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.

807.2-3. 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.

807.2-4. 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.

807.2-5. This law is adopted under authority of the Constitution of the Oneida Nation.

807.3. Definitions

807.3-1. 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) “Authorized attorney” means an attorney of the Nation who represents the department

or entity of the officer who issued the citation.

(b) “Citation” means a legal document that serves as a notice or summons to appear in a

court of the Nation in response to a charge against an individual of a violation of law.

divisions of the Nation’s Judiciary created by a law of the Nation which have been granted

jurisdiction to hear matters of citations.

(d) “Court of Appeals” means the branch of the Nation’s Judiciary delegated the authority

of final appeals within the Nation’s Judiciary, as authorized by Oneida General Tribal

Council resolution GTC-03-19-17-A.

(e) “Judiciary” means the Oneida Nation Judiciary, which is the judicial system that was

established by Oneida General Tribal Council resolution GTC-01-07-13-B, and then later

authorized to administer the judicial authorities and responsibilities of the Nation by

Oneida General Tribal Council resolution GTC-03-19-17-A.

(f) “Nation” means the Oneida Nation.

8. O.C. 807 – Page 1

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(g) “No contest” means a plea by which a defendant will accept the charged violation of

law but does not plead or admit guilt.

(h) “Officer” means an individual authorized by a law of the Nation to issue a citation for

a violation of said law.

(i) “Person” means a natural person, sole proprietorship, partnership, corporation, limited

liability company, or any other form of a legal entity.

807.4. Commencement of a Citation Action

807.4-1. Action. The issuance of a citation shall commence a civil action in the Judiciary for a

violation of a law of the Nation for the purpose of collecting a fine or penalty imposed by the law

in the name of the Nation.

807.4-2. Authority to Issue. An officer may issue a citation to any person he or she has reasonable

grounds to believe has committed a violation of a law of the Nation that expressly permits the

issuance of a citation.

807.4-3. Form of Citation. A citation shall contain the following information:

(a) The name of the officer who issued the citation.

(b) The name, address, and date of birth of the defendant.

(d) Information about the alleged violation including:

(1) the violation alleged;

(2) the law violated;

(3) the time and place of the occurrence of the violation; and

(4) a description of the violation.

(e) A notice to appear at a date, time and place for the citation pre-hearing, and a statement

as to whether the appearance at the pre-hearing is mandatory.

(f) Provisions for payment of citation and stipulation in lieu of an appearance in Court, if

applicable.

(g) Notice that if the defendant does not pay the citation or stipulate to an agreement prior

to the pre-hearing and fails to appear in Court at the time fixed in the citation or provide

written notice to the Court that he or she is contesting the citation, the Court may issue a

default judgment which may include any fine amount due, restitution and/or suspension of

any rights, privileges, or licensures, or any other penalty authorized by law.

(h) Notice that failure to satisfy a fine, restitution, or any other part of the judgment, may

result in per capita attachment, wage garnishment, revocation, suspension of any rights,

privileges, licensures, and/or any other action authorized by law and/or other collection

processes available to the Court.

(i) Any other relevant information.

807.4-4. Service of a Citation. The defendant is served with a citation when one of the following

occurs:

(a) Personal Service. The citation is provided to the defendant directly by the officer, or

a copy of the citation is left at the defendant’s home or usual place of abode by the officer:

(1) in the presence of a competent family member at least fourteen (14) years of

age who shall be informed of the contents of the citation; or

(2) in the presence of a competent adult who resides in the home or usual place of

abode of the defendant, who shall be informed of the contents of the citation.

(b) Mail Service. If personal service is not possible, and the defendant's address is known

or with reasonable diligence can be ascertained, then mail service may be used. For service

8. O.C. 807 – Page 2

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by mail, a copy of the citation may be delivered to the defendant’s last known address by

certified mail with return receipt. The certified mail return receipt shall be signed by the

defendant or a competent family member at least fourteen (14) years of age or an adult who

resides in the home of the defendant.

(1) The certified mail return receipt shall be filed with the Court as proof of service.

service were not possible, then service may be completed by publication as a last resort.

The publication shall be in the Nation’s newspaper and shall be designated as “Legal

Notice.” The department of the officer and/or authorized attorney shall publish this notice

at least two (2) times within a thirty (30) day period. The two (2) notices shall be published

a minimum of ten (10) days before the citation pre-hearing.

(1) Copies of the two (2) published notices and written report stating the facts

surrounding the failure of personal and mail service shall be filed with the Court as

proof of service.

(2) If service by publication is required and there is insufficient time for proper

service before the pre-hearing, the Court may, on its own, order different time limits

for service by publication and/or re-schedule the pre-hearing appropriately in order

to provide for fair notice and opportunity for the defendant to respond.

(3) The Court may order the defendant to reimburse the department of the officer

and/or the authorized attorney for any costs incurred from service by publication.

807.4-5. Filing of a Citation. Absent exigent circumstances, the department of the officer who

issued the citation shall file the citation with the Court along with any applicable proof of service

at least thirty (30) days prior to the date of the pre-hearing.

(a) Citations may be filed in person or electronically transmitted to the Court. Citations

that are electronically transmitted to the Court are deemed filed upon confirmation of

receipt by the Clerk of Court assigned to the branch of the Judiciary that will hear the

citation.

(b) After filing the citation with the Court, the department of the officer who issued the

citation shall forward the citation and all relevant accompanying information to the

authorized attorney. Relevant information to accompany the citation may include, but is

not limited to, a narrative by the officer and/or history of violations by the defendant.

807.4-6. Amendments to the Citation. A citation may be amended by an officer or the authorized

attorney prior to the citation pre-hearing. A copy of the amended citation shall be provided to the

defendant in accordance with section 807.4-4, and filed with the Court, at least five (5) days before

the citation pre-hearing. After the hearing, the citation may only be amended at the discretion of

the Court, upon notice to the parties and an opportunity to be heard.

807.5. Stipulations

807.5-1. Authority for Stipulations and Case Settlement. An authorized attorney of the Nation is

granted the discretion to seek the settlement of a citation.

(a) When seeking to enter into a stipulation the authorized attorney shall explain to the

defendant all provisions included in the stipulation as required by section 807.5-2(a)-(d).

807.5-2. Form of Stipulation. Any stipulation between an authorized attorney and the defendant

shall be in writing and signed. The stipulation shall include the following:

(a) A summary of the citation violation information included on the citation;

(b) The details of the stipulation including any fine, penalty, condition, or payment plan

the defendant shall comply with;

8. O.C. 807 – Page 3

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she committed the act for which the citation was issued or is entering a plea of no contest

and thereby waives his or her right to contest the citation with the Court; and

(d) A statement that all parties signed the agreement free of duress and coercion.

807.5-3. Submission of the Stipulation to the Court. If the authorized attorney and defendant reach

an agreement through the stipulation, the stipulation shall be submitted to the Court for the Court’s

approval.

(a) If the Court enters an order approving the stipulation as written, a copy of the order

shall be provided to the authorized attorney and defendant.

(b) If the Court does not enter an order approving the stipulation as written or requests

clarification, the Court shall schedule the matter for a hearing. The Court shall provide the

authorized attorney and defendant notice of the hearing date and written explanation as to

why the Court did not approve the stipulation of the parties.

807.5-4. If the authorized attorney and defendant do not reach an agreement as to a stipulation,

then the parties shall proceed with the citation hearing process.

807.5-5. Compliance with a stipulation shall be monitored by the authorized attorney. The

authorized attorney may file a motion with the Court to enforce the terms of a stipulation or file a

motion for contempt if the defendant is non-compliant with the terms of the stipulation.

807.6. Hearing Procedure

807.6-1. Citation Pre-Hearing. All citations shall include a pre-hearing date with the Court which

shall be set at least thirty (30) days after the citation was issued, unless stated otherwise by a law

of the Nation.

(a) Appearance at the pre-hearing shall be mandatory only when a law, policy, rule, or

resolution of the Nation requires a mandatory appearance for that specific violation of law.

(b) If an appearance is not mandatory, and a person does not wish to contest the citation,

a person may pay the fine and/or penalty as listed on the citation prior to the pre-hearing

date.

(1) If the person pays the fine and/or penalty as listed on the citation prior to the

pre-hearing date the citation shall be considered satisfied.

in one (1) of the following manners:

(1) appear at the pre-hearing to contest the citation; or

(2) if an appearance is not mandatory, send written notice to the Court, with a copy

to the Oneida Law Office, prior to the pre-hearing notifying the Court that the

defendant wishes to contest the citation.

(d) At the pre-hearing the Court shall accept pleas which either contest or admit committing

the act for which the citation was issued, or a plea of no contest.

(1) If the defendant admits committing the act for which the citation was issued

the Court shall provide a statement that by admitting that he or she committed the

act for which the citation was issued the defendant thereby waives his or her right

to contest the citation with the Court. The Court shall obtain an affirmative

acknowledgment from the defendant of that waiver of rights.

(e) In addition to scheduling requested hearings, the Court may also make conditional

orders at the pre-hearing which are effective until the matter is resolved.

(f) If a defendant does not appear at the pre-hearing or submit written notice that he or she

is contesting the citation when there is a non-mandatory appearance, and the defendant has

8. O.C. 807 – Page 4

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not entered into a stipulation or paid the fine and/or penalty as listed on the citation, the

Court may proceed to enter a default judgment.

(1) A default judgment may include any fine amount due, restitution, suspension

of any rights, privileges, or licensures, and/or any other penalty authorized by law.

(2) Unless otherwise noted by the Court, a defendant shall have ninety (90) days

to satisfy a default judgment by paying any fine and/or complying with any

condition or penalty ordered.

807.6-2. Citation Hearing. For all persons entering a plea contesting the fact that he or she

committed the act for which a citation was issued, the Court shall schedule a hearing as

expeditiously as possible, provided that it shall be scheduled within ninety (90) days of the date of

the pre-hearing when possible.

(a) The burden of proof at the citation hearing shall be by clear and convincing evidence.

(b) As a result of the citation hearing the Court may issue an order which includes a

determination as to the underlying violation of law as well as any fine amount, restitution,

suspension of any rights, privileges, or licensures, and/or any other penalty as authorized

by law.

punishment for contempt of court which may include fines, revocation and/or suspension

of any rights, privileges, licensures, or any other action authorized by law.

(d) The defendant’s failure to satisfy a fine and/or restitution may result in per capita

attachment, wage garnishment and/or other collection processes available to the Court.

807.6-3. Appeals of the Court’s Determinations. Any person wishing to contest the determination

of the Court may appeal to the Nation’s Court of Appeals in accordance with the Rules of Appellate

Procedure.

807.7. Exclusion

807.7-1. This law shall not apply to any law of the Nation which delegates hearing authority to a

hearing body other than the Oneida Judiciary.

End.

Adopted – BC-__-__-__-__

8. O.C. 807 – Page 5

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FINANCE ADMINISTRATION

Fiscal Impact Statement

=CJDOODO

ONEIDA

MEMORANDUM

TO:

Larry Batton, Chief Financial Officer

RaLinda Ninham-Lamberies, Assistant Chief Financial Officer

FROM:

Rae Skenandore, Financial Management Analyst

DATE:

January 28, 2020

RE:

Fiscal Impact of the Citations Law

E sf1ma te d F'1sca 1I mpacts ummary

Law: Citations Law

Draft 3

Oneida Police Department

Oneida Conservation Wardens

Oneida Environmental Health Safety and Land Division

Implementing Agency

Oneida Licensing Department

Oneida Judiciary

Oneida Utilities Department

Immediately

Estimated time to comply

Estimated Impact

Total Estimated Fiscal Impact

II.

Current Fiscal Year

No impact

Ten Year Estimate

No impact

Background

Legislative History

This is a new Law that was originally placed on the Legislative Operating Committee

Active Files List on May 15, 2019. A public meeting was held on November 22, 2019.

Summary of Content

A summary of the Law is as follows;

The purpose of this Law is to provide a process that governs citations.

The Law applies to those citations that are required to be resolved before the

Oneida Judiciary.

32 of 255

The Law defines a citation as a "legal document that services as a notice or

summons to appear in a Court of the Oneida Nation in response to a charge against an

individual for the violation of a law".

For most Laws, the authority to issue a citations is delegated to officers of the

Oneida Police Department or Oneida Conservation Wardens.

A Person is defined as "a natural person, sole proprietorship, partnership,

corporation, limited liability company (LLC), or any other form of a legal entity.

A citation must include the following:

Identifying Information;

Information About the Alleged Violation;

Court Hearing & Fine Information.

Citations must be served in one of the following manners:

Personal Service;

Mail Service;

Service by Publication.

Proof of service and the citation must be filed in writing with the Oneida

Judiciary.

Attorneys of the Oneida Law Office have the authority for Stipulations and Case

Settlement.

Stipulations must be written and signed and include the following:

A summary of the information on the citation;

The details of the stipulation;

A statement that the defendant admits that they committed the act or is

entering a plea of no contest and waives their right to contest the citation;

A statement that all parties signed free of duress and coercion.

Stipulations are submitted to the court for approval. If denied, a hearing is

scheduled.

Hearing procedure includes the following:

A Citation Pre-Hearing set at least thirty (30) days after the citation was

issued.

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

ONEIDA

33 of 255

Defendants may appear, unless a mandatory appearance is

required.

If the fine and/or penalty is paid prior to the pre-hearing, the

citation is satisfied.

If a person wishes to contest the citation, they shall:

( 1)

appear at the pre-hearing to contest the citation; or

if an appearance is not mandatory, send written notice to

(2)

the Court, with a copy to the Oneida Law Office, prior to the prehearing notifying the Court that the defendant wishes to contest the

citation.

At the pre-hearing the Court shall accept pleas which either contest

or admit committing the act for which the citation was issued, or a plea of

no contest.

The Comt may also make conditional orders at the pre-hearing.

If a defendant does not appear at the pre-hearing or submit written

notice and the defendant has not entered into a stipulation or paid the fine

and/or penalty as listed on the citation, the Court may proceed to enter a

default judgment.

(1)

A default judgment may include any fine amount due,

restitution, suspension of any rights, privileges, or licensures,

and/or any other penalty authorized by law.

(2)

Unless otherwise noted by the Court, a defendant shall have

ninety (90) days to satisfy a default judgment by paying any fine

and/or complying with any condition or penalty ordered.

If a citation is being contested, the Court shall schedule a hearing within

ninety (90) days of the pre-hearing date.

The burden of proof is clear and convincing evidence.

The Court order may include the determination and any fine

amount, restitution, suspension of any rights, privileges, or licensures,

and/or any other penalty as authorized law.

A defendant who fails to satisfy a lawful order shall be subject to

punishment for contempt of court which may include fines, revocation

and/or suspension of any rights, privileges, licensures, or any other action

authorized by law.

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

ONEIDA

34 of 255

Failure to satisfy a fine and/or restitution may result in per capita

attachment, wage garnishment and/or other collection processes available

to the Comt.

Any person wishing to contest the determination may appeal to the

Appellate Court.

III.

Methodology and Assumptions

A "Fiscal Impact Statement" means an estimate of the total identifiable fiscal year

financial effects associated with legislation and includes startup costs, personnel, office,

documentation costs, as well as an estimate of the amount of time necessary for an

agency to comply with the Law after implementation.

Finance does NOT identify the source of funding for the estimated cost or allocate any

funds to the legislation.

The analysis was completed based on the information provided as of the date of this

memo.

III.

Executive Summary of Findings

A request was sent to the areas under the General Manager, the Judiciary, and the Oneida

Police Department. Several areas stated that the Citations Law is essentially a redefinition

of process that is already in place. Therefore, there would be no additional start up,

staffing, or office costs. Affected entities are prepared to comply immediately.

III.

Financial Impact

No impact.

IV.

Recommendation

Finance does not make a recommendation in regards to course of action in this matter.

Rather, it is the purpose of this report to disclose potential financial impact of an action,

so that the Oneida Business Committee and General Tribal Council has the information

with which to render a decision.

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ONEIDA

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Oneida Nation

Oneida Business Committee

Legislative Operating Committee

PO Box 365 • Oneida, WI 54155-0365

Oneida-nsn.gov

Legislative Operating Committee

February 5, 2020

Indian Preference in Contracting Law

Amendments

Submission Date: 4/17/19

LOC Sponsor: Ernest Stevens III

Public Meeting: 12/19/19

Emergency Enacted: n/a

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

and updates that might be needed for this law.

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

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

Motion carried unanimously.

5/20/19:

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

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

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

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

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

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

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

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

6/5/19:

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

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

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

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

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

this week.

6/6/19:

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

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

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

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

the May 20 LOC work meeting.

7/25/19:

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

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

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

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

9/26/19:

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

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

Page 1 of 2

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

Purchasing, and Community Economic Development Divisions Engineering to educate and

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

proposed fine schedule.

10/21/19:

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

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

and the fine and penalty resolution with the affected entities.

10/24/19:

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

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

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

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

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

unanimously.

11/14/19:

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

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

resolution and discuss specific fine amounts for each violation.

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

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

seconded by Kirby Metoxen. Motion carried unanimously.

12/12/19:

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

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

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

resolution.

12/19/19:

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

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

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

12/30/19:

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

during the public comment period.

Next Steps:

 Accept the public comments and the public comment review memorandum and defer to a work

meeting for further consideration

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Oneida Nation

=DDDDDD=

PO Box 365 • Oneida, WI 54115-0365

ONEIDA

Oneida- nsn .gov

TO:

FROM:

DATE:

RE:

r'\

Oneida Business Committee

Legislative Operating Committee

Legislative Operating Committee (LOC)

Clarissa N. Santiago, Legislative Reference Office, Staff Attorney

February 5, 2020

Indian Preference in Contracting Law Amendments: Public Meeting Comment

Review

CAJ f

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

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

until December 30, 2019. This memorandum is submitted as a review of the oral and written

comments received within the public meeting and public comment period.

The public meeting draft, and public meeting transcript, and written comments received are

attached to this memorandum for review.

Comments 1 through 2 - Pur ose of the Law:

502.1. Purpose and Policy

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

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

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

on or near the Reservation.

Jeffrey S. House (written): Thank you Chairman Jordan and Vice-Chai1man Metoxen and

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

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

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

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

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

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

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

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

objectives of the law and cannot be over emphasized.

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

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

That equates to $89 million in government revenue, of which $33.4 million is for state and local

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

reservation.

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

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

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

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38 of 255

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

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

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

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

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

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

objectives of the law and cannot be over emphasized.

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

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

hundred and sixty (5,460) jobs according to a St. Norbe1t College Study conducted in 2018. That

equates to eighty-nine million dollars ($89,000,000) in government revenue, of which thi1ty-three

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

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

Response

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

economic impact on Brown and Outagamie Counties.

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

revision to the Law recommended based on this comment.

LOC Consideration

Comment 3 - Jurisdiction of the Nation:

502.1. Purpose and Policy

502.1-1. Pu,pose. 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 oflndian workers and businesses on projects of the Nation which occur

on or near the Reservation.

502.3. Definitions

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

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

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

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

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

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

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502.6. Application of Indian Preference to Contracts

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

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

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

(a) This law shall apply to:

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

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

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

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

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

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

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

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

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

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

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

basis" for projects off Reservation.

Response

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

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

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

of the Nation, whereby goods and services are provided on or near the Reservation. [5 0. C. 502.11, 502. 6-1 (a)(1)]. The Law defines "Reservation" as all the lands within the exterior boundaries

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

7 Stat. 566, and any lands added thereto pursuant to federal law. [5 0. C. 502.3-1 (bb)}.

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

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

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

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

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

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

within its tenitory.

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

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

persons, prope1iy, and circumstances within its tenitory.

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

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

LOC Consideration

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Comment 4- Definition of Joint Venture:

502.3. Definitions

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

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

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

business undertaking.

502.5. Certification of Entities

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

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

the required documentation for certification.

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

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

one-time or short-term partnerships but there are times when long te1m ventures make good

business sense. I would recommend language be added that long te1m joint ventures can be

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

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

Response

The commenter discusses the language refenfog to joint ventures and states that long te1m joint

ventures should also be considered in addition to one-time or shmi-termjoint ventures.

The Law provides that joint ventures seeking ce1iification as an Indian-owned business are

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

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

grouping of two (2) or more entities in a business unde1iaking. [5 O.C. 502.3-1 (v)J. Joint ventures

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

accomplishing a specific task or project. The Law then clarifies that ce1iification for a joint venture

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

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

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

applying for ce1iification on.

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

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

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

fflJODOO

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LOC Consideration

Comments 5 throu h 6 - Su

ort for Definition of Tribal Cor oration:

502.3. Definitions

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

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

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

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

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

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

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

and companies.

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

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

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

compames.

Response

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

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

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

Group is a Tribal Corporation under the Law.

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

LOC Consideration

Comment 7 - Concern with Definition of Tribal Corporation:

502.3. Definitions

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

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

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

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

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

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

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

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

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

preference.

Response

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

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

Nation.

The Law defines a "Tribal corporation" as a corporation chmiered and/or wholly owned by the

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

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

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

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

It is imp01iant to remember though that in terms of the application of this Law, a Tribal corporation

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

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

meet the criteria to be ce1iified as an Indian-owned business. The Law provides that in order to

seek ce1iification as an Indian-owned business, the following criteria shall be met by the applicant

entity:

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

(51 %) of the entity.

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

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

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

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

dissolution.

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

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

other controlling decisional authority.

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

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

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

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

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

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

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

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•

required bonding and insurance, materials and/or equipment necessary to perfo1m

applicable work.

The entity can provide past and cmTent licensing or ce1tifications, including any penalties,

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

(10) years.

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

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

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

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

LOC Consideration

Comments 8 through 9 - Certification Renewal:

502.5. Certification of Entities

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

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

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

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

bonding, or credit lines; and/or

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

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

and/or

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

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

after one (1) year unless renewed.

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

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

Office may update its records.

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

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

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

Jeffrey S. House (written): In Section 502.5-7 regm·ding Ce1tification Renewal. I would

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

502.5-5(a) requires that Ce1tified entities shall rep01i change of ownership within 10 days and

therefore would require re-ce1tification at that point. We see no benefit for Tribal Corporations to

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

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

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

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

requires that Ce1tified entities shall rep01t change of ownership within ten (10) days and therefore

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

repeatedly re-ce1tify when they are one hundred percent (100%) owned by the Oneida Nation and

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

guaranteed.

Response

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

Indian-owned business ce1tification on an annual basis, due to the fact that the Law already

requires a ce1tified entity to notify the Indian Preference Office of any changes in the ownership

or control status of the entity.

The ce1tification that an entity is an Indian owned business, and therefore is eligible for Indian

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

lapse in certification, a ce1tified entity must renew its ce1tification by providing the Indian

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

addition to the ce1tification renewal requirements required by the Law, a ce1tified entity is required

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

occunences:

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

• suspension, revocation, lapse or loss of any licensing, ce1tification, insurance, bonding, or

credit lines; and/or

• any other changes that could:

• affect an entity's eligibility for ce1tification;

• affect the financial liability of any entity, contracting patty or the Nation; and/or

• alter the status of the qualifications of the entity.

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

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

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

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

Requiring annual renewals of ce1tification ensures that the Indian Preference Office maintains up

to date information on the ce1tified entity to ensure that the certified entity continues to meet the

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

ce1tification on an annual basis, and instead relying on the notification requirements of section

505.5-5 may eliminate some time and effort spent by the Indian Preference Office in processing

renewal applications and promote greater efficiency.

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

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

shall be renewed on an annual basis by all ce1tified entities, and all ce1tified entities are

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

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

renew ce1tification on an annual basis, due to the fact that the requirements to follow the

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

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

Operating Committee makes this dete1mination then the following revision is

recommended:

502.5-6. Certification Renewal. Ce1tification is granted on an annual basis and

shall lapse after one (1) year unless renewed.

(a) To apply for a renewal certification, each ce1tified 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 repmting forms shall be

mailed to each ce1tified entity at least thi1ty (30) days prior to the expiration

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

the entity.

from the requirement to renew ce1tification on an annual basis. Ce1tification

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 ce1tification.,

(A) The Indian Preference Office shall provide the Tribal

corproation with a renewal application and annual repo1ting

fmm.

(B) The Tribal corproation shall return the renewal

application and annual reporting fmm to the Indian

Preference Office within

(X) days.

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

basis, and instead ce1tification as an Indian-owned business should remain cmTent until the

Indian Preference Office is noticed that the status of the ce1tified entity has changed in

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

Legislative Operating Committee makes this determination then the following revision is

recommended:

502.5-6. Certification Renewal. Ce1tification is granted on an rumual basis and

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

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

certification status of a ce1tified entity in accordance with the notification

requirements of section 502.5-5.

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

502.5-5 the entity shall also +e apply for a renewal of its ce1tification.,_,

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

entity shall complete and return with a renewal application and

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annual rep01iing form.:. so that the Indian Preference Office may

update its records.

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

annual reporting form to the Indian Preference Office within

(X)

days.

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

mailed to each certified entity at least thirty (3 0) days prior to the eJ(piration

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

the entity.

LOC Consideration

Comments 10 through 11 -Joint Ventures:

502.5. Certification of Entities

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

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

the required documentation for certification.

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

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

in Joint Ventures. We believe allowing joint ventures to be ce1iified as Indian Owned, assuming

each JV meets the ce1iification criteria, is a good opp01iunity for tribally owned businesses,

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

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

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

JV meets the ce1iification criteria, is a good opportunity for tribally owned businesses, enterprises,

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

Response

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

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

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

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

LOC Consideration

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Comments 12 throu h 14 - Exclusive Utilization of Cor orations:

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.

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

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

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

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

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

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

initiatives, Human Resource assistance and technical support.

502.6. Application of Indian Preference to Contracts

502.6-2. Non-Applicability of tlte Law.

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

superseded in specific situations in accordance with the following:

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

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

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

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

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

outsourcing conducted by the internal service or enterprise.

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

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

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

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

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

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

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

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

Oneida Nation.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tribe has a vested interest in seeing succeed.

Response

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

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

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

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

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

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

was moved with amendments to the Law adopted in 2013.

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

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

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

benefit of the Nation, whereby goods and services are provided on or near the Reservation. [5 0. C.

502.6-1}.

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

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

ordinary course of business. [5 0. C. 502. 6-2(b)}. In the case where an internal service or enterprise

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

business, the Nation shall exclusively utilize the internal service or enterprise. [5 0. C. 502. 62(b)(I)}. But if an internal service or enterprise is unable to fulfill some or all of the requirements

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

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

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

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

initiatives, Human Resource assistance and technical support. [5 0. C. 5 02.3-1 (u)}. An enterprise

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

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

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

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

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

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

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

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

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

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

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

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

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

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

It is also impmiant to remember that the pmpose of the Law is to provide for the maximum

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

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

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

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

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

the good or service. This could also serve as a dete1Tent for members of the Nation and other

Indians that might otherwise consider staiiing or expanding a business in the same ai·eas as a Tribal

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

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

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

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

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

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

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

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

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

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

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

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

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

businesses, unless non were available and qualified to fulfill a contract. An Oneida business was

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

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

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

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

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

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

available, and provided repmiing requirements for the Oneida Purchasing Depaiiment,

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

did not follow the policy.

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

BC-11-24-10-C through the adoption ofresolution BC-05-23-12-B titled, "Rescinding Resolution

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

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

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

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

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

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

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

unde1mined by long term negative effects of being able to obtain competitive market bidding and

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

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

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

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

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

recommended based on this comment.

LOC Consideration

Comments 15 throu h 16 - Indian Preference References in Federal Law:

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

for the Native American Housing Assistance and Self-Dete1mination Reauthorization Act, or

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

preference.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

benefit \apply with respect to the administration of the grant or p01iion of a grant."

That's it, good thing I submitted them.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

other provision of law, with respect to any grant (or p01iion of a grant) made on behalf of an Indian

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

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

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

grant)."

Another example is 25 CFR Paii 170.910 under the Tribal Transp01iation Program (TIP), which

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

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

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

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

Tehassi Hill stating "It is allowable under the Tribal Transp01iation Program (TIP) laws and

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

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

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

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

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

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

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

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

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

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

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

should the Oneida Nation.

Response

The commenter provides inf01mation on various references to Indian preference and tribal

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

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

and so too should the Oneida Nation.

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

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

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

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

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

adoption oflaws of the Nation. [1 O.C. 109.1-1}.

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

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

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

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

dollar amount of the contract. [5 0. C. 502. 6-9, 502. 6-1 OJ. After the appropriate Indian preference

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

ce1iified entity is less than the total of the apparent low bid after Indian preference is applied, then

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

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

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

this comment.

LOC Consideration

Comment 17 - A

I in Indian Preference to Contract Bids:

502.6. Application of Indian Preference to Contracts

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

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

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

businesses.

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

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

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

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

bid;

segment of a bid;

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

segment of a bid;

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

of a bid;

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

of a bid;

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

segment of a bid;

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

bid; and

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

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

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

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

Response

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

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

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

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

The Law sets forth various criteria for the ce1iification of an Indian-owned business. [5 0. C. 502. 51 (a)-(c)}. Once an entity has been ce1iified as an Indian-owned business, the entity is eligible for

an Indian preference percentage discount to be applied to its bids on both construction and nonconstruction contracts. [5 0. C. 502. 6-9, 502. 6-1 OJ. The amount of the Indian preference

percentage discount to be applied is set f01ih by the Law, and is dependent on whether the contract

is a construction or non-construction contract, and the specific dollar amount of the bid. [5 0. C.

502. 6-9, 502. 6-1 OJ. Under the Law, as long as an entity is ce1iified as an Indian-owned business,

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

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

Indian preference percentage discount that is applied to a ce1iified entity's bid to be based on any

additional scoring.

It is imp01iant to note that Indian preference is just one aspect of a greater overall scoring system

for evaluating contract bids.

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

Preference Office to ensure that the Law is being applied conectly in te1ms of how an Indian

preference percentage discount is cmTently being applied to contract bids of ce1iified entities. But

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

the Law recommended based on this comment.

LOC Consideration

Comment 18 - Com Hance Agreements:

502.7. Compliance Agreements

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

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

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

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

accordance with this law.

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

not limited to, the following information:

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

Indians that must be utilized per contract dollar; and

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

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

the Nation and/or federal or state governments.

502.8. Skills Bank and Qualified Trades Workers

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

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

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

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

or trade.

Jeffrey S. House (written): We fully supp01i the purpose of the law "of maximum utilization of

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

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

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

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

Nation includes such language for its employees.

Response

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

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

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

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

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

agreement. [5 O.C. 502. 7-1}. The compliance agreement is required to include the numerical

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

contract dollar, as well as what the compensation of qualified trades workers would be. [5 0. C.

502. 7-2]. This is required because it is a goal of the Nation to achieve one hundred percent (100%)

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

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

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

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

The Skills Bank lists the names and qualifications of the qualified trades workers. [5 0. C. 502. 82]. When a certified entity is required to fill positions in accordance with this Law, like when

required to in order to comply with numerical hiring goals of a compliance agreement, the ce1iified

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

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

worker confers recognition that he or she is eligible to receive Indian preference. [5 0. C. 502.85}. But a qualified trades worker shall only be qualified for Indian preference for employment for

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

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

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

worker.

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

preference for employment if her or she meetings the minimum qualifications for a paiiicular skill

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

LOC Consideration

Comment 19- Qualifications of Qualified Trades Workers:

502.8. Skills Bank and Qualified Trades Workers

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

application and documentation of the following:

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(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.

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

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

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

qualification such as passing a background check and drug screen.

Response

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

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

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

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

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

required to be provided by an applicant includes:

• proof of emollment or proof that the individual is a first-generation descendant of the

Nation;

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

education training related to the field;

• proof of a driver's license, including any endorsements, if applicable;

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

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

• past and cmTent licensing;

• credentials and certifications; and

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

within the past ten (10) years.

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

r'\.

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

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

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

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

Law.

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

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

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

if he or she meets the minimum qualifications for a paiticular skill or trade. [5 0. C. 502. 8-5}. This

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

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

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

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

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

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

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

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

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

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

LOC Consideration

Comment 20 - Oneida ESC Grou 's Willingness to Follow Law:

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

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

American owned companies, paiticulai·ly Oneida-owned businesses. We have a strong record of

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

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

Response

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

to the Law recommended based on this comment.

LOC Consideration

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Comments 21 through 22 - Additional Preference for Tribal Cor orations:

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

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

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

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

Tribal Corporations are valuable assets to the long-te1m economic strength of the Nation. Prudent,

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

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

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

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

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

Thank you.

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

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

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

Law.

Response

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

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

successful.

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

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

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

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

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

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

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

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

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

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

Indian businesses and workers. It is th

This text is long and has been trimmed here. Open the source document for the complete record.

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