Pawnee Nation TERO

Pawnee Nation TERO FAQ Page

Welcome to the Pawnee Nation TERO FAQ page, where we provide essential information about our services, mission, and how we support our community and businesses.

What is TERO?

TERO stands for Tribal Employment Rights Ordinance or Office. TERO Ordinances require that all employers who operate a business on reservations give preference to qualified Indians in all aspects of employment, contracting, and other business activities. TERO Offices were established and empowered to monitor and enforce the requirements of the tribal employment rights ordinance.

What is the purpose of the TERO program?

The primary purpose of the TERO program is to enforce tribally enacted Indian Preference law to ensure that Indian/Alaska Native people gain their rightful share of employment, training, contracting, subcontracting, and business opportunities on and near reservations and native villages.

Why was the TERO Ordinance enacted?

• To address the deplorable rate of poverty, unemployment, and underemployment that exists among native people living on reservations.

• To eliminate discriminatory and historical barriers tribal members face while seeking employment and business opportunities on or near reservations.

• To ensure tribal members receive their rightful entitlements as intended and required under the Tribal and federal Indian preference employment law.

What is the legal basis for TERO?

A Tribe’s authority to enact and enforce an Indian/Native employment preference law is grounded in its inherent sovereign status. This legal doctrine is the most basic principle of Indian law and is supported by several Supreme Court decisions. Inherent sovereign powers derive from the principle that certain powers do not necessarily come from delegated powers granted by express acts of Congress but are inherent powers of a limited sovereign that have never been taken away. Tribes have a basic relationship with the federal government as sovereign powers. This is recognized in both treaties and federal statutes. The sovereignty of tribes has been limited from time to time by treaties and federal legislation; however, what has not been expressly limited remains within tribal sovereignty.

What does the TERO Ordinance do?

• SETS CONDITIONS: Mandates the tribal requirements for Indian preference that all covered employers must comply with to be eligible to perform work on reservations.

• ESTABLISHES AUTHORITY: This empowers the TERO Commission and Staff with sufficient authority to fully enforce all provisions of the TERO ordinance.

• ASSIGNS RESPONSIBILITY: Defines and describes the duties and responsibilities of TERO staff and commission.

• DELINEATES PENALTIES FOR VIOLATIONS: Spells out penalties employers may face for violations of tribal law.

• PROVIDES DUE PROCESS: It provides principles of legal fairness to all parties involved in compliance or violation dispute issues.

What are the characteristics of TERO?

The program's core characteristics provide additional and valuable insights into why the law and enforcement program is needed and applied. The following are three vital characteristics of TERO.
1. TERO is an actual act of self-determination. The decision to enact a Tribal employment rights ordinance is based on each tribe’s needs and priorities.
2. TERO programs are action-oriented. TERO offices are no-nonsense, hands-on, result-orientated, and process-driven compliance programs.
3. TEROs are systematically structured programs. Key elements of the structure include:

• LEGAL FRAMEWORK: TERO utilizes a sound and comprehensive framework that encompasses Tribal, Federal, contract, and, where applicable, State employment law.

• ADMINISTRATIVE STRUCTURE: TERO programs have a well-developed administrative structure that utilizes a thorough enforcement process.

• SYNERGISTIC PARTNERING: TERO programs apply synergistic partnering principles to relationships with employers, aiming to develop beneficial partnerships.

What is Indian preference?

Indian preference is a unique legal right that tribal members have. It entitles them to first consideration for all employment, training, contracting and subcontracting, and business opportunities that exist on and, in some cases, near reservations.

Are Indian preference and TERO new concepts?

The answer to this question is no. Indian preference first appeared in Federal regulations in 1834. Since then most new laws and regulations related to tribes and Indian people include preference provisions. Tribes initially enacted Tribal Employment Rights Ordinances (TEROs) in late 1976 and early 1977. Today, there are almost 300 Tribes and Alaska Native Villages that are covered by TERO ordinances.

Is Indian preference a violation of federal law?

The answer to this question is no. There are no federal laws that prohibit Indian Preference. Tribes are exempt from Title VII of the Civil Rights Act and several other employment laws. Numerous court cases have upheld this exemption (see Morton v. Mancari in the appendix section on the applicability of federal law, page #4 of that section). Additionally, court rulings have held that Indian preference is a political preference and not a racial preference and, as such, does not violate the dictates of federal employment law.

Is Tribal preference legal?

Yes and no. Tribal preference is not allowed on federal/state contracts or when a private employer operates on or near reservations. Many tribes have tribal/village provisions in their TERO ordinances that are inconsistent with federal law and are, therefore, not allowed on federally funded or assisted contracts. Tribes can apply tribal preference to all their own businesses and construction projects. Tribal preference is also permitted on tribal P.L. 93-638 contracts.

What is the extent of TERO jurisdiction?

TERO has jurisdiction over all employers operating within the exterior boundaries of the reservation as legally defined by treaty or legislation including ceded lands, territories, and lands where jurisdiction has not been extinguished. TERO jurisdiction covering employers working on fee land projects has been greatly reduced by the Montana v. U.S. A. case.

What is the enforcement approach to TERO?

Most of today’s TERO programs utilize a proactive approach to enforcement. TERO officers attempt to use education and synergistic partnering principles to prevent violations of tribal law and generally create mutually beneficial relationships with reservation employers.

What are the basic TERO requirements?

All covered employers operating a business within tribal/village jurisdiction must provide Indian and Native preference in employment, training, contracting, sub-contracting, and all other aspects of employment. Below are several specific examples employers are required to comply with. Employers must:

• Submit an acceptable compliance plan detailing their steps to ensure compliance with the TERO requirements. Note: TERO compliance plans are closely fashioned after those used by OFCCP for affirmative action compliance.

• Utilize the TERO skills bank for all referrals and consider Indian/ Native applicants before interviewing or hiring non-Indian/ Natives.

• Agree to hire no less than a specific number of Indians/ Natives in each job classification and cooperate (where feasible) with tribal training programs to hire a certain number of trainees.

• Eliminate all extraneous job qualification criteria or personnel requirements that may act as barriers to Indian/ Native employment. TEROs use EEOC guidelines on legal BFOQs.

• Agree to acknowledge and respect tribal religious beliefs and cultural differences and to cooperate with TERO to provide reasonable accommodations.

• All contractors claiming preference must file for certification as Indian-owned businesses.

Are there exemptions to TERO requirements?

Yes. There are several exemptions. Most TERO ordinances exempt direct employment by the Tribe, Federal, State, or other governments and their subdivisions, non-profit corporations, churches, schools, etc. However, all contractors, regardless of the source of funding, are covered by the TERO requirements. At the individual level, the only exemption allowed Is for the employer's “core crew or key person,” which is defined as:

“…a member of a contractor’s or subcontractor’s crew who is a regular, permanent employee and is a supervisor or other key position such that the employer would face a serious financial loss if that position were filled by a person who had not previously worked for the contractor.”

What are the sanctions for violation of TERO?

Violation of TERO requirements may result in severe sanctions. If It is determined that employers have willfully violated TERO requirements, tribes have the power to:

• Deny such party the right to commence business within the reservation/village.

• Impose a civil fine on such party ranging from $500 to $5000, per each violation.

• Terminate or suspend such party’s operation and deny them from doing further business within the reservation or village.

• It can order the removal of unlawfully hired non-Natives and take action to ensure future compliance. It can also order the back payment of lost wages to aggrieved Natives.

Can TERO requirements be waived?

Yes, but it is not recommended. Some ordinances contain a provision for waivers to be granted by the Tribal Council in certain critical situations. Waivers of this type are made on a project-specific basis by the tribal government. Neither the TERO Director nor the Commission can waive any provision of the TERO ordinance unless authorized by the Tribal Council. Wavier of preference requirements or fees can seriously affect the integrity of the TERO ordinance, the fee, and the tribal government itself. Additionally, several federal agencies have policies that state that if a tribe does not apply the tax on all covered employers, they will not charge the fee on projects funded by them.

Are non-Indian employers protected against unfair charges?

Yes. Employers are entitled to due process of law. Their rights are protected by both provisions in the TERO ordinance and the enforcement process and procedures used by TERO officers to ensure employer compliance. Both TERO officers and commissions are well trained to investigate and utilize the facts and merits of a case before taking action against an employer. The TERO investigative process is designed to weed out frivolous and capricious charges brought against employers.

Can sanctions imposed by the TERO Commission be appealed?

Yes. Sanctions imposed on employers by the Commission can be appealed in tribal court. Tribal court decisions can further be appealed to the federal court system.

Are TERO fees/taxes imposed on covered employers?

Most tribes impose a TERO fee on all employers doing business on reservations. The fees collected by the TERO are used to finance operational costs and program services. Services include recruiting, referrals, screening, job counseling, orientations, employee Support services, compliance, charge processing, investigations, and community awareness education sessions. It is unclear if Native Village governments can impose a fee on employers, but many federal agencies have negotiated special contracts with a tribal TERO for the services listed above. The average TERO fee is five percent.

Are TERO and other Tribal fees/taxes legal?

Yes. Tribal authority to tax is equal to that of any other government. Taxation is a basic right of a sovereign government. The power of Indian tribes to tax has been confirmed by the U.S. Supreme Court in Merrion v. Jicarlla Apache Tribe 455 U.S. 130 (1882). Taxation, licenses, and other fees are a valuable source for financing tribal governmental operations. TERO programs have the unique ability to generate their own operating income as well as contribute to the general fund of the Tribe.

Are all TERO requirements and fees/taxes the same?

No. There are over 550 (federally recognized) independent tribal nations throughout the United States. While there is much in common between tribes, each is diverse in its own community culture, needs, values, and priorities. Each tribe, therefore, makes its own legislative decisions to meet its own set of wants and needs.

Will TERO taxes/fees increase the cost of projects?

No. TERO fees range from 1% to 10%, with a national average of about 5%. The much lower Tribal taxes/fees preempt other taxes on tribal reservation projects and often result in substantial savings to contractors; most states' taxes, for example, are in the 6-10% range.

Will TERO interrupt employers' daily operations?

No. Since TERO programs practice proactive enforcement, the compliance plans signed by the TERO and employer before the commencement of work generally prevent disputes. Most TERO ordinances provide for compliance and enforcement visits to work sites during regular business hours but not to the detriment of operations. A TERO Commission’s sanction of an employer for law violations could cause a delay or shutdown of an employer's operation. With this in mind, note that TERO commissions would apply sanctions after all efforts to resolve the case have failed and the most severe circumstances and only in strict accordance with the process of Tribal law.

Contact Pawnee Nation TERO

For inquiries regarding Pawnee Nation TERO, please reach out through the contact methods provided below. We are here to assist you.

Support

918-762-3621 EXT. 260

Help

pntero@pawneenationtero.com