TERO WPA - Amended (5-10).pdf

January 2009 Session

Workforce Protection Act

As Amended by CLB10-04 (April 2010 Session)

JANUARY 2009 CROW TRIBAL LEGISLATURE

BILL NO. CLB09-01

INTRODUCED BY CARL E. VENNE, CHAIRMAN

CROW TRIBAL EXECUTIVE BRANCH

A BILL FOR AN ACT ENTITLED:

“AN ACT TO ESTABLISH A CROW NATION WORKFORCE PROTECTION ACT”

WHEREAS, the Crow Nation has the inherent sovereign right to promote, regulate and enforce employment laws for the benefit of its members and all employees within tribal jurisdiction; and

WHEREAS, increased employment and training opportunities for members of the Crow Nation will improve economic conditions on the Crow Reservation and advance important self-governance interests; and

WHEREAS, the Crow Nation has an interest in prohibiting discrimination in employment, protecting employees' wages, providing leave for family, medical, and cultural events, and protecting employees' health and safety; and

WHEREAS, the Crow Nation recognizes the importance of tribal employment, and thereby recognizes the

Crow Tribal Employment Rights Office to implement and enforce all tribal employment laws; and

WHEREAS, the interests of the Crow Nation and all employees within tribal jurisdiction will be served by adopting a Workforce Protection Act, NOW, THEREFORE, BE IT ENACTED BY THE CROW TRIBAL LEGISLATURE:

Section 1. That Resolutions 92-27, 2000-52 and CLB02-24 are hereby rescinded.

Section 2. That the Act attached hereto and incorporated herein by reference, is approved and shall be codified in the Crow Law and Order Code by adding Title 17, Crow Tribal Self-Government – Employment and

Contracting.

Section 3. Upon enactment by the Crow Tribal Legislature and approval by the Chairman of the

Executive Branch, this Act shall become effective on April 1, 2009.

TABLE OF CONTENTS

Chapter 1. General Provisions

Part 1. Policy, Purpose, and Definitions

Chapter 2. Crow Tribal Employment Rights Commission

Part 1. Members, Qualifications, Quorum

Part 2. Powers of the Commission

Chapter 3. Director of the Crow Tribal Employment Rights Office

Part 1. TERO Director

Part 2. Powers and Duties of TERO Director

Part 3. Intergovernmental Relationships

Chapter 4. Indian Preference in Employment and Contracting

Part 1. Indian Preference in Employment

Part 2. Indian Preference in Contracting

Part 3. Oil and Gas Development

Chapter 5. Permits and Fees

Part 1. Permits

Part 2. TERO Fees

Part 3. Exempt Employers and Entities

Part 4. Fee Collection and Expenditure

Chapter 6. Compliance Plan, Notice, and Contracts

Part 1. Compliance Plan

Part 2. Notice

Part 3. Contracts

Part 4. Agricultural Leases

Chapter 7. Crow Tribal Right to Work Act

Part 1. Policy

Part 2. Unions

Chapter 8. Prohibition of Employment Discrimination

Part 1. Prohibited Discrimination

Chapter 9. Employee Wage and Hour

Part 1. Minimum Wage and Overtime

Part 2. Minimum Wage and Projects Subject to the Federal Davis-Bacon Act

Chapter 10. Family, Medical, and Cultural Leave

Part 1. Family, Medical, and Cultural Leave

Chapter 11. Occupational Safety and Health

Part 1. Occupational Safety and Health of Employees

Chapter 12. Mine Safety and Health

Part 1. Mine Safety and Health of Employees

Chapter 13. Enforcement

As Amended by CLB10-04 (April 2010 Session)

Part 1. General Provisions

Part 2. Compliance and Enforcement Procedures

Part 3. Sanctions

Part 4. Appeals

Part 5. Confiscation, Sale, and Other Enforcement Mechanisms

Part 6. Monitoring and Coordination with other Tribal, State, and Federal Laws

Part 7. Retaliation

Title 17. Crow Tribal Self-Government – Employment and Contracting

Chapter 1. General Provisions

Part 1. Policy, Purpose, and Definitions

17.1.1.1 Policy.

A. The Crow Tribe declares that it is the public policy of this Tribe to provide for the economic security and employment of its members and all Indians living on or near the

Crow Reservation to the maximum extent possible in order to promote the important interests of self-governance and to preserve and promote the Tribe’s unique cultural heritage. Economic insecurity and unemployment are serious impediments to the health, morale, and welfare of the Crow Tribe of Indians. Employment on the Crow Reservation is an important resource for Indian people. Within the Crow Reservation, Indian people have unique and special employment rights. Further, they are entitled to the protection of the laws the federal government has adopted to combat employment discrimination on or near Indian reservations.

B. All employees subject to the Crow Tribe's jurisdiction are entitled to a workplace environment that prohibits employment discrimination, protects employees' wages, provides leave for family, medical, and cultural events, and protects employees' health and safety.

C. The provisions of this Act are specifically found to be of an urgent and critically important nature to the health and welfare of the residents of the Crow Reservation.

Unemployment and underemployment within the boundaries of the Crow Reservation are consistently many times the national average. This pervasive unemployment and underemployment has directly contributed to serious social problems and a lower quality of life for those residing on or near the Reservation and impede the self-governance objectives of the Tribe.

D. Consequently, the Crow Tribe declares that the public good and welfare of the Tribe require the enactment of this Workforce Protection Act, enacted pursuant to its inherent sovereign and police powers, in order to increase employment of Indian people and

Indian businesses within the Crow Reservation and to protect the workforce rights of

Indian and non-Indian employees within the jurisdiction of the Crow Tribe.

17.1.1.2 Purpose.

This Act is adopted by the Crow Tribe of Indians, under its inherent sovereign and political powers, for the following purposes:

A. To promulgate tribal laws and rules for governing employment relations and contracting preference within tribal jurisdiction;

B. To establish the Crow Tribal Employment Rights Office in order to use and enforce the laws governing employment and contracting preference, and to protect the rights of all

Crow Tribal members and employees within the Tribe's jurisdiction;

C. To increase the employment of Crow Indians and other Indians;

D. To eradicate employment discrimination, protect employees' wages, provide leave for family, medical, and cultural events, and protect employees' health and safety within tribal jurisdiction;

E. To provide a fair, enforceable, and effective system of priorities in contracting or subcontracting , and the provision of supplies, services, labor and materials, where a significant part of the work will be performed on the Crow Reservation or a significant part of the supplies and materials will be furnished to a site on the Crow Reservation; and

17.1.1.3 Severability.

Should any portion of this Act be declared unenforceable by a court having jurisdiction, such action shall not affect the validity and enforceability of the remaining provisions.

17.1.1.4 Definitions.

A. "Chairman" means the Chairman of the Crow Tribal Executive Branch.

B. "Commercial Enterprise" includes any activity of any government, including the federal, state, tribal, or local governments (including any activity of the Crow Tribe) that is not a traditional governmental function and any non-governmental economic activity involving the provision of goods or services.

C. "Commission" means the Crow Tribal Employment Rights Commission established by this Act.

D. "Covered Employer" or "Employer" means any entity, company, contractor, subcontractor, corporation or other business entity doing business on the Crow

Reservation, including the Crow Tribe and its commercial enterprises, that employs for wages or other remuneration two (2) or more employees for eight (8) or more hours in any calendar week. An LLC formed under the Crow LLC Act is deemed a covered employer if it meets the requirements of this definition.

E. "Covered Entity" means any entity awarded a contract or subcontract to provide supplies, services, labor and materials, in which a significant part of the work to be performed will be performed on the Crow Reservation or a significant part of the supplies and materials to be furnished will be furnished to a site on the Crow Reservation. For purposes of this chapter, significant means more than an incidental or minimal portion of any project, but can be less than a majority of the work or materials or supplies on any one project. An

LLC formed under the Crow LLC Act is deemed a covered entity if it meets the requirements of this definition.

F. "Crow Indian" means any person enrolled as a member of the Crow Tribe.

G. "Day" means a work day, which excludes Saturdays, Sundays, and Federal holidays.

H. "Director" means the director of the Crow Tribal Employment Rights Office.

I. "EEOC" means the federal Equal Employment Opportunity Commission.

J. "Employee" means any person employed for wages or other remuneration. No immediate relative within the 2 nd degree of consanguinity or the spouse of any such

As Amended by CLB10-04 (April 2010 Session) immediate relative shall be included for purposes of this Act if such person is employed by an employer whose principal business activity is farming or ranching.

K. "Entity" means any person, partnership, corporation, joint venture, government, commercial enterprise, or any other natural or artificial person, organization, or association of persons or entities. This term is intended to be as broad and as all-encompassing as possible to ensure the statute’s full coverage overall employment and contract activities within the jurisdiction of the Crow Tribe.

L. "Indian" means a member of a federally recognized Indian tribe.

M. "Indian Certified Entity" means an entity certified by the Director to be 51% or more owned by one or more Indians and the entity is genuinely controlled by one or more

Indians.

N. "Indian living on or near the reservation" means an Indian who is a member of a federally recognized Indian tribe who is living on or near the Crow Indian Reservation. No person shall be considered an Indian living on or near the reservation unless he or she has a permanent residence on or near the Crow Reservation and has lived on or near the Crow

Reservation for at least six (6) months prior to employment on or near the Crow reservation.

O. "Necessary qualifications" mean those job-related qualifications that are essential for performing the basic responsibilities of the position, including any essential qualifications concerning education, training and job-related experience.

P. "On or near the reservation" shall mean the distance within and surrounding the Crow

Indian Reservation, which a person seeking employment could reasonably be expected to commute for a work day.

Q. "Qualified" and "Qualified to contract" means a demonstrated ability to perform the terms of a contract and may include evaluation of prior performance, safety records, prior or pending litigation or complaints regarding performance, financial stability, or similar factors which are directly relevant to a bidder’s ability to perform satisfactorily.

R. "Regulations" mean the regulations implementing this Act that are adopted by the Crow

Tribal Employment Rights Commission.

S. "Reservation" shall mean the Crow Indian Reservation and includes all land, Indian and non-Indian, within the exterior boundaries of the Crow Indian Reservation or trust land under the jurisdiction of the Crow Tribe, wherever located.

T. "TERO" means the Crow Tribal Employment Rights Office.

U. "Tribe" means the Crow Tribe of Indians.

Chapter 2. Crow Tribal Employment Rights Commission

Part 1. Members, Qualifications, Quorum

As Amended by CLB10-04 (April 2010 Session)

17.2.1.1 There is hereby created the Crow Tribal Employment Rights Commission ("Commission"), which shall be an independent commission of the Tribe.

17.2.1.2 The Commission shall be composed of seven (7) members, one from each district and one at large, nominated by the Chairman and confirmed by the Legislature. The nominated individuals shall meet the ethical standards required for judges of the Crow Tribal Court system and shall have experience or expertise in one or more of the following areas:

1. Business;

2. Energy Resource Development;

3. Construction;

4. Employment;

5. Financial Management or Law.

17.2.1.3 Commissioners shall be appointed for a term of three years; provided that, the appointments to the

Commission shall be made in such a manner that their terms shall be staggered, so that the terms of no more than two Commissioners shall terminate in any year.

17.2.1.4 The Chairman may remove a member of the Commission for inefficiency, neglect of duty, malfeasance, misfeasance, or nonfeasance in office.

17.2.1.5 The Commission shall designate one of the members of the Commission as chairman and one as vice chairman.

17.2.1.6 The Commissioners shall serve until replaced. Vacancies shall be filled in the same manner used to initially appoint and confirm commissioner.

17.2.1.7 A majority of the Commission shall constitute a quorum to transact business. When a vacancy occurs in the Commission, the remaining members may exercise all the powers of the Commission until the vacancy is filled.

17.2.1.8 Recusal of Commission Members.

A. For purposes of this section, "immediate family" means brother, sister, son, daughter, mother, father, husband, wife, step-brother, step-sister, half-brother, half-sister, or brother, sister, son, daughter, mother or father by adoption.

B. No member of the Commission shall participate in any action or decision by the

Commission directly involving himself, or a member of his immediate family, or any person, business or other entity of which he or a member of his immediate family is an employee, or in which he or a member of his immediate family has a substantial ownership interest, or with which he or a member of his immediate family has a substantial contractual relationship.

C. Nothing in this section shall preclude a Commissioner from participating in any action or decision by the Commission which:

(a) Affects a general class of persons, regardless of whether the Commissioner or a member of his immediate family is a member of the affected class;

(b) Affects the Tribe, a Tribal enterprise, or a person or entity in a contractual relationship with the Tribe or a Tribal enterprise, regardless of whether the

Commissioner is a Tribal member.

D. A Commissioner may voluntarily recuse himself and decline to participate in any action or decision by the Commission when the Commissioner, in his/her discretion, believes:

(a) that he/she cannot act fairly or without bias; or

(b) that there would be an appearance that he/she could not act fairly or without bias.

Part 2. Powers of the Commission

17.2.2.1 The Commission has the full power, jurisdiction, and authority to:

A. Take all actions necessary and appropriate to implement the provisions of this Act.

B. Formulate, adopt, amend and rescind rules, regulations and guidelines necessary to carry out the provisions of this Act. Except when an emergency exists, the Commission shall provide the public with a reasonable time for comment before promulgating any final regulations.

C. Conduct hearings in accordance with Chapter 13 herein and with such rules of practice and procedure as may be adopted by the Commission.

D. Order any relief or sanctions authorized by this Act, and to petition the Crow Tribal Court for such orders as are necessary and appropriate to enforce the decisions of the

Commission and any sanctions imposed by the Commission.

Chapter 3. Director of the Crow Tribal Employment Rights Office

Part 1. TERO Director

17.3.1.1 There shall be a Director of the TERO, who shall be an employee of the Crow Executive Branch, under the direct supervision of the Crow Tribe's Chief Executive Officer.

17.3.1.2 The Chairman of the Crow Tribal Employment Rights Commission shall participate in an advisory capacity in an annual evaluation of the TERO Director. If the Commission believes the Director is failing to properly carry out his responsibilities, it shall notify the Tribal Chairman and the TERO

Director in writing.

17.3.1.3 The Tribal Chairman shall have the authority to suspend or remove the TERO Director for inefficiency, neglect of duty, malfeasance, misfeasance, or nonfeasance.

Part 2. Powers and Duties of TERO Director

17.3.2.1 Powers and Duties.

The Director shall have the following powers and duties:

As Amended by CLB10-04 (April 2010 Session)

A. Implement and enforce the provisions of this Act, as well as any properly adopted regulations, rules, guidelines and orders promulgated by the Commission.

B. Hire staff, expend designated funds from an approved budget, obtain and expend funding from federal, state, and other sources.

C. Maintain a list of the following: (1) current covered employers and entities, (2) current employer permits and work permits issued, and (3) current Indian Certified Entities.

Maintain a record of all contracting projects subject to this Act and the TERO fees assessed for each project.

D. Determine certification of Indian Certified Entities.

E. Grant TERO permits and collect TERO fees as authorized by this Act.

F. Establish training and workforce development programs for tribal members and other

Indians to assist them in obtaining and retaining employment.

G. Maintain a list of tribal members and Indians living on or near the Crow Reservation who are available for employment and assist such persons with job placement.

H. Contract with federal and/or state entities, with the approval of the Tribal Chairman, for the provision of additional job procurement services and funding consistent with the purposes of this Act.

Part 3. Intergovernmental Relationships

17.3.3.1 The TERO, acting through the Director, is authorized to enter into cooperative relationships with federal employment rights agencies, such as the EEOC and the Office of Federal Contract

Compliance Programs (OFCCP), and with state employment rights agencies, such as the Human

Rights Commission, in order to eliminate discrimination against Indians on and off the Crow

Reservation, as well as to develop training programs for Indians. The TERO Director may also enter into cooperative relationships with federal agencies, such as the BIA, HUD, DOL, FHWA, and IHS, in order to implement any federal employment or other workforce rights, authorities, or requirements as such agency may lawfully delegate to the Tribe.

Chapter 4. Indian Preference in Employment and Contracting

Part 1. Indian Preference in Employment

17.4.1.1 All covered employers shall give preference to Indians living on or near the Crow Reservation in the hiring, promotion, training, and all other aspects of employment, provided that these individuals have the necessary qualifications. The Crow Tribal government, including all branches, divisions, and subsidiary governmental entities of the Tribe shall give preference to

Crow Tribal members in hiring, promotion, training, and all other aspects of employment, provided that the individuals are qualified.

17.4.1.1.1 Secondary preference in employment shall be given to military veterans who have received an honorable or general discharge. After the application of Indian preference, or tribal preference for the Crow Tribal government, covered employers shall give preference to veterans in hiring, As Amended by CLB10-04 (April 2010 Session) promotion, training, and other aspects of employment, provided these individuals have the necessary qualifications. Under no circumstances shall a non-Indian veteran receive preference over an Indian who possesses the necessary qualifications.

17.4.1.2 All covered employers shall comply with this statute, all rules and regulations relating to it, and all guidelines and orders of the TERO Director. This statute and its application hereby subject all covered employers to the jurisdiction of the Crow Tribe and constitutes consent to resolution of any dispute pursuant to Chapter 13 herein.

17.4.1.3 The requirements in this Part shall not apply to any direct employment by the Federal or State government or their subdivisions. However, it shall apply to all contractors or grantees of such governments and to all commercial enterprises operated by such governments so long as they are subject to the jurisdiction of the Tribe.

17.4.1.4 No covered employer shall hire a non-Indian without first providing the TERO with not less than

72 hours to locate and refer a qualified Indian; however, the Commission may, by regulation, provide for a period of less than 72 hours when required by business necessity.

17.4.1.5 All covered employers shall establish written necessary qualifications for each employment position in their work force, which shall be provided to the TERO Director and applicants or candidates upon request.

17.4.1.6 All covered employers shall include and specify an Indian employment preference policy statement in all job announcements and advertisements and employer policies covered by this Act.

17.4.1.7 All covered employers shall post in a conspicuous place on its premises for its employees and applicants an Indian preference policy notice prepared or approved by the TERO.

17.4.1.8 Any seniority system of a covered employer shall be subject to this Act. Such a seniority system shall not operate to defeat nor prevent the application of the Act, provided, however, that nothing in this Act shall be interpreted as invalidating an otherwise lawful and bona fide seniority system that is used as a selection or retention criterion with respect to any employment opportunity where the pool of applicants or candidates is exclusively composed of Indians or non-Indians.

17.4.1.9 All covered employers, except for construction contractors, shall advertise and announce all job vacancies in at least one newspaper on or near the Crow Reservation. Construction contractors, prior to starting work on the Reservation, shall publish an advertisement in at least one newspaper on or near the Crow Reservation for at least 4 days, which specifies the number of workers by craft they will need and when they estimate they will need these workers.

17.4.1.10 All covered employers shall use non-discriminatory job qualifications and selection criteria in employment subject to the requirements of this Act. No employer shall use any job qualification criteria or other personnel requirements that serve as barriers to Indian preference in employment, unless the employer can demonstrate that such criteria or requirements are required by business necessity.

17.4.1.11 Irrespective of the qualifications of any non-Indian applicant or candidate, any Indian who lives on or near the reservation who demonstrates the necessary qualifications for an employment position:

A. Shall be selected by covered employers in the case of hiring, promotion, transfer, upgrading, recall and other employment opportunities with respect to such position; and

As Amended by CLB10-04 (April 2010 Session)

B. Shall be retained by covered employers in the case of a reduction-in-force affecting a certain class of positions until all non-Indians employed in that class of positions are laid-off.

17.4.1.12 Covered employers, may, if necessary, have a core crew, which is exempt from the Indian preference requirements of this Part. A core crew is considered necessary if (1) there are unique or specialized qualifications that are essential for the operation of the business, and (2) it would place an unreasonable burden or cost on the employer to hire individuals other than its core crew.

If a core crew is necessary, such core crew shall not exceed five percent (5%) of the total employees of the employer and ten percent (10%) of the total hours of payroll. The TERO

Director may, at his or her discretion, grant an employer a larger core crew upon a satisfactory demonstration by the employer that a larger core crew is necessary due to unique or specialized positions that are essential for the operation of the business.

Part 2. Indian Preference in Contracting

17.4.2.1 All covered entities who advertise and solicit bids for projects in which a significant portion of the work will be done on or materials will be supplied to a site within the Crow Reservation shall give preference in contracting and subcontracting to Indian Certified Entities. Where a contractor or sub-contractor is selected through a competitive process, the awarding entity shall limit competition to Indian certified firms, provided that a qualified bid is received and the price of the bid is reasonable. The Commission shall issue regulations providing guidance on implementing this requirement and for implementing Indian contracting preference when the awarding entity uses a method other than competition to select a contractor or sub-contractor. Whenever feasible, the covered entity shall submit to the Director, at least six months in advance, a list of all related contracts or subcontracts contemplated to be generated by the covered entity in order to enable the

TERO Director to give Indian Certified Entities the opportunity to prepare bids for related contracts and subcontracts.

17.4.2.2 The Commission shall establish a system for certifying firms as Indian Certified entities. This system shall include detailed provisions to ensure that front companies or firms that are not truly

51% or more owned and controlled by members of the Crow Tribe or members of other federally-recognized Indian tribes are not granted Indian preference certification.

17.4.2.3 The requirements set out in this Part shall apply to contracts awarded directly by the Tribe, its branches, divisions and all subsidiary governmental entities of the Tribe, and any governmental commercial enterprises of the Tribe or its divisions or subsidiaries, except when it is determined that application of these requirements is specifically prohibited by Federal law.

17.4.2.4 The requirements set out in this Part shall not apply to contracts awarded by the Federal or State government or their subdivisions. However, they shall apply to all subcontracts awarded by a

Federal or State contractor or grantee that is subject to the jurisdiction of the Tribe, whether or not the prime contract was subject to these requirements, except when it is determined that application of these requirements to that entity is specifically prohibited by Federal law.

17.4.2.5 All covered entities shall comply with this Act and all the rules and regulations promulgated in connection with this Act, as well as all guidelines and orders of the TERO. Application for or award of any business preference under this statute, as well as contracting with the Crow Tribe, any of its related entities, or a certified entity, subjects the transaction to the jurisdiction of the

Crow Tribe and constitutes consent to resolution of any dispute pursuant to Chapter 13 herein.

As Amended by CLB10-04 (April 2010 Session)

Part 3. Oil and Gas Development

17.4.3.1 Permanent and Key Employees

Prior to commencing work on lands over which the Tribe has jurisdiction, a prospective employer engaged in oil and/or gas development and all of its sub-contractors shall identify key employees and permanent employees. Such employees may be employed on the project whether or not they are Indians. A permanent employee is one who is and has been on the employer's or sub-contractor's annual payroll or is the owner of the firm (as opposed to one who is hired on a project-by-project basis). A key employee is one who is in a top supervisory position or who performs a critical function such that an employer would risk likely financial damage or loss if that task were assigned to a person unknown to the employer. Key employees include superintendents and persons with specialized technical or other skills that are critical to the firm’s operation. The fact that an employee has worked for the employer on previous projects shall not, in and of itself, qualify that employee as a key or permanent employee, absent the presence of the other factors set out above. Any employer or sub-contractor that fills vacant employment positions in its organization immediately prior to undertaking work pursuant to a contract to take place on lands over which the Tribe has jurisdiction shall set forth evidence acceptable to the TERO Director that its actions were not intended to circumvent these requirements. Upon the approval of each key or permanent employee requested by the employer, the TERO Director shall issue a permit to that worker pursuant to Section 17.5.1.2.

17.4.3.2 Compliance Plan

A. The entity obtaining authorization from the Tribe to engage in oil and/or gas development activities on the reservation shall be responsible for compliance with the applicable provisions of this Act by all of its contractors and subcontractors.

B. No fewer than 60 days after a covered entity’s lease or other authorization to engage in oil and/or gas development has been approved (or within 60 days after enactment of this provision for entities already engaged in oil and/or gas development at the time this provision is enacted), the entity shall meet with the TERO Director to develop a

Compliance Plan for the development activity authorized by the lease or other authorizing agreement that is specifically tailored to the unique nature of that oil and/or gas development project, while still maximizing the utilization of Indian workers and

Indian-certified firms. In particular, the TERO Director shall provide the entity with the flexibility to select employees and sub-contractors with the specialized professional and technical skills it will need during certain portions of the development project. In return for such flexibility, for those positions or sub-contracts that do not require specialized professional or technical skills, the entity shall agree to employ Indians and Indian-certified firms preferentially for all positions or sub-contracts for which qualified Indians or Indian-certified firms are available and shall also agree to work with the TERO to provide for the training of Indians in those areas in which there presently is not a pool of qualified Indians. The TERO Director shall also take into account the uncertainty in the timing of various developmental activities in the oil and gas development area, since such uncertainty will affect the entity’s ability to provide firm times when it will have a need for certain employees or sub-contractors.

17.4.3.3 TERO Fees

The alternative fee arrangement under Section 17.5.2.1(B.) may apply to entities engaged in oil and/or gas development activities on lands over which the Tribe has jurisdiction depending on the nature of the project.

Chapter 5. Permits and Fees

Part 1. Permits

17.5.1.1 Employer Permits.

A. The Director shall issue an employer's permit to all covered employers who are in good standing, effective for one year from the date of issue, upon payment of an annual fee.

The annual fee is $300 for employers with less than five (5) employees; $600 for employers with less than ten (10) employees; and $1,000 for employers with ten (10) or more employees. An employer that is not in good standing with any other federally-recognized Indian tribe, a contractor's association or other professional association to which it has belonged, with any labor union with which it has had a collective bargaining agreement, or is found to be in active or current violation of federal or tribal law, may be refused an employer’s permit. Federal, state, and tribal governmental employers are not required to obtain an employer's permit.

B. All covered employers must hold an employer's permit before they are eligible to do any work or engage in any business activity within the boundaries of the Crow Reservation.

Any covered employer that fails to obtain an employer's permit, or whose employer's permit has been revoked, shall be denied the right to conduct any further business or work on the Crow Reservation. The Director shall have the right to enforce the terms of this section in Crow Tribal Court by means of an injunction or other appropriate remedy.

C. The TERO Director is authorized to refuse to issue an employer's permit or to revoke such a permit if an employer is found to have seriously or repeatedly violated the terms of this Act or any properly adopted rules, regulations, guidelines or orders pursuant thereto.

17.5.1.2 Work Permits.

A. The Director shall issue annual work permits, effective for one year from the date of issue, to all non-tribal members who are seeking employment or are employed with a covered employer.

B. The Director is authorized to deny or revoke a work permit to any person who has repeatedly failed and/or refused to comply with this Act and/or any properly adopted rules, regulations, guidelines or orders pursuant thereto.

Part 2. TERO Fees

17.5.2.1 Fees.

The following fees are assessed for the privilege of conducting business on the Crow Reservation and to raise sufficient revenue for the operation of the TERO office and the enforcement of this

Act.

A. Every covered entity with a contract totaling $1,000.00 or more shall pay a one-time project fee of three percent (3%) of the total amount of the contract. Contracts less than

$1,000.00 that are subsequently amended or enlarged to $1,000.00 or more shall pay the

As Amended by CLB10-04 (April 2010 Session)

3% project fee on the total amount of the contract. Such fee shall be paid by the entity prior to commencing work on the Reservation. However, where good cause is shown, the TERO Director may authorize the fee to be paid in installments over the course of the contract.

B. Where a proposed contract, lease, or sub-contract (or combination thereof) involves a significant, long-term project that will have a sustained positive impact on the economic development of the Crow Tribe, the Director may negotiate alternative fee terms consistent with the policy and purposes of this Act, subject to the approval of the

Chairman, and where required, the approval of the Crow Tribal Legislature.

Negotiations may take into account the entity's training programs or other capacity building programs for Crow and Indian employees, as well as the projected payroll, the value of projected subcontracts, and other economic benefits that may be realized by the

Crow Tribe and its members.

C. All covered entities who are awarded a contract by the Crow Tribal government, including all branches, offices, division, and subsidiary governmental units of the Tribe, shall as a condition of doing business on the Crow Reservation, grant their consent to the tribal entity awarding the contract to deduct the amount of the TERO fee from the total amount due to the contractor under the contract and to pay the amount directly to the

TERO prior to the commencement of work under the contract. Prior to this deduction, the tribal entity awarding the contract shall provide the contractor with a form prepared by the TERO, in which the contractor grants its consent to the deduction of the TERO fee from the amount it is entitled to receive from the tribal entity. A contractor shall not be permitted to commence work on the Crow Reservation until it has executed this form.

This provision shall not apply if application of these requirements to a tribal entity is specifically preempted or otherwise prohibited by Federal law.

D. Every covered employer, other than contractors covered under subsection A, with five (5) or more employees working on the Reservation or with gross sales on the Reservation of

$100,000 or more, shall pay a quarterly fee of three percent (3%) of the quarterly payroll for its employees working on the Reservation. This fee shall be paid within 30 days after the end of each calendar quarter.

Part 3. Exempt Employers and Entities

17.5.3.1 The permits and fees imposed in Parts 1 and 2 of this Chapter shall not apply to education, health, religious, governmental, or non-profit entities or employers. However, a reduced contracting fee of 1.5% shall apply to contractors hired by such employers.

Part 4. Fee Collection and Expenditure

17.5.4.1 Fee Collection and Expenditure.

A. The TERO fees shall be collected by the TERO Director pursuant to the regulations of the Commission. The fees shall be paid over to the Tribe's finance department and shall be credited to the TERO account up to at least $250,000.00. These funds shall be expended solely by the TERO, pursuant to a duly approved budget in order to carry out the purposes of this Act.

As Amended by CLB10-04 (April 2010 Session)

B. A matching $250,000 shall be used for training and workforce development programs.

Oversight of all funds will be by the TERO Office. The TERO Office shall prepare a quarterly report as to all training expenditures. The report shall be made available to the

Legislative Branch and Executive Branch each calendar quarter.

17.5.4.2 Monthly Statements.

The Tribe's finance department shall provide the TERO Director with a monthly statement that provides the following information:

A. The total amount of money that was in the TERO account at the beginning of the month;

B. The TERO fees that were paid into the TERO account during the month, itemized by the name of the payer, the amount paid, and the date of payment;

C. Any amounts withdrawn from the TERO account during the month; and

D. The balance in the TERO account at the end of the month.

Chapter 6. Compliance Plan, Notice, and Contracts

Part 1. Compliance Plan

17.6.1.1 All covered employers and all covered entities subject to this Act shall, no less than twenty (20) business days prior to commencing business on the Reservation, prepare a plan, acceptable to the

TERO Director, setting out how the employer or entity shall comply with the requirements of this

Act regarding Indian employment and contract preference and implementing regulations. A covered employer or entity already present on the Reservation on the effective date of this Act that has not prepared a Compliance Plan acceptable to the TERO Director, shall come into compliance with the requirements of this section within sixty (60) days of the effective date of this Act.

17.6.1.2 The payroll records of all covered employers and covered entities shall be submitted to the TERO

Director on a monthly basis. Any employer required to submit a certified payroll pursuant to federal law under the Davis-Bacon Act or state law under the Little Davis-Bacon Act, shall submit a copy of this certified payroll record to the TERO Director.

17.6.1.3 All covered employers and covered entities are required to report relevant changes regarding their employees and employment positions to the TERO Director, including but not limited to, new positions, terminations, layoffs, promotions, and retirements.

Part 2. Notice

17.6.2.1 Notice to Proposed Contractors.

Any office, division, branch, subsidiary entity, or commercial enterprise of the Tribe or any of its subsidiary entities, when issuing a notice of a proposed contract to be awarded by it or a notice involving a proposed lease, right-of-way agreement, or notice of any other proposed action that will create new employment or subcontracting opportunities on the Reservation, shall include provisions in the notice that fully inform the prospective contractor or other entity about the requirements established by the Act.

Part 3. Contracts

17.6.3.1 Contract Language Imposing TERO Requirements.

Any office, division, branch, subsidiary entity or commercial enterprise of the Tribe or any of its subsidiary entities, when awarding a contract, lease, right-of-way or entering into any other legal agreement with a party that will create new employment or subcontracting opportunities on the

Reservation, shall include provisions that impose the requirements of this Act on the contractor, lessee, right-of-way grantee, or other party, such that the legal document will fully bind the party to comply with the requirements of this Act, notwithstanding any future decision by a court that has the effect of eliminating, reducing, or putting into question the Tribe's authority to impose the requirements of this Act on said contractor pursuant to the sovereign authority of the Tribe.

17.6.3.2 Model Language.

In order to implement the requirements of Parts 2 and 3 of this Chapter, the TERO Director shall provide to the offices, divisions, branches, subsidiary entities and commercial enterprises of the

Tribe and its subsidiary entities:

A. Model language that shall be included in the notice to prospective contractors, lessees, rights-of-way grantee, or other parties who will be engaged in activity that will create new subcontracting or employment opportunities on the Reservation, informing them of the requirements established by this Act; and

B. Model language to be included in each contract, lease, right-of-way agreement, or other legal document issued by that office, division, branch, subsidiary entity or commercial enterprise of the Tribe and its subsidiary entity, imposing the requirements set out in this

Act as terms of the contract, lease, right-of-way agreement or other legal agreement being entered into with the party that will be engaged in activity that will lead to the creation of subcontracting or employment opportunities on the Reservation.

17.6.3.3 TERO Approval of Contracts Awarded by Tribal Entities.

A. Each office, division, branch, subsidiary entity or commercial enterprise of the Tribe or any of its subsidiary entities, prior to issuing notice of a contract to prospective contractors or issuing any other notice to prospective employers or entities that will lead to the creation of employment, contracting or subcontracting opportunities on the

Reservation, and prior to awarding a contract or entering into any other agreement that will lead to the creation of employment, contracting, or subcontracting opportunities on the Reservation, shall submit the proposed notice or contract to the TERO Director for his approval. The Director shall indicate his approval by signing his name at a place provided for TERO approval on the document at issue.

B. The TERO Director may petition the Crow Tribal Court to enjoin, upon good cause shown, the issuance or award of any contract or the initiation of any other activity by an office, division, branch, subsidiary entity or commercial enterprise of the Tribe or any of its subsidiary entities that will create employment, contracting, or subcontracting opportunities on the Reservation, which fail to comply with the requirements of this Act.

As Amended by CLB10-04 (April 2010 Session)

C. No employee of the Tribe shall disseminate any written information on the TERO or the

Tribe's Indian preference requirements without first obtaining the TERO Director's approval of the document.

17.6.3.4 TERO Assumption of Federal Indian Preference Enforcement.

A. If the Federal laws or regulations governing any program administered by any office, division, branch, subsidiary entity or commercial enterprise of the Tribe or any of its subsidiary entities authorize a tribe's Indian preference requirements to replace, or permit a tribe to obtain delegated authority to assume responsibility for enforcing, Indian preference requirements established by Federal law or regulations and enforced by a

Federal agency, said office, division, branch, subsidiary entity or commercial enterprise of the Tribe or any of its subsidiary entities, shall within 90 days of the effective date of this Act, in coordination with the TERO Director and the Tribe's Office of Legal

Counsel, apply for such delegated or replacement authority and request that such delegated or replacement authority be vested in the TERO.

B. If Federal law authorizes or allows tribal preference instead of Indian preference, the

Tribe will apply tribal preference.

Part 4. Agricultural Leases

17.6.4.1 Agricultural Leases.

The Bureau of Indian Affairs will be requested to put a notice in all leases of trust land owned by the Crow Tribe or Crow Indian allottees that all persons will be required to fully comply with this

Chapter 7. Crow Tribal Right to Work Act

Part 1. Policy

17.7.1.1 It is hereby declared to be the policy of the Crow Tribe that the right of persons to work shall not be denied or abridged on account of membership or non-membership in any labor union or labor organization.

17.7.1.2 Any agreement between a covered employer and any labor union or labor organization, whereby persons not members of such union or organization are denied the right to work for the employer, or whereby such membership is made a condition of employment, continuation of employment, promotion, or any other benefit by the employer, is hereby declared to be against public policy and in violation of this Act.

Part 2. Unions

17.7.2.1 No union agreement shall supersede the requirements of this Act and its rules and regulations.

Nothing herein shall constitute official recognition by the Tribe of any union or endorsement of any union activities on the reservation.

As Amended by CLB10-04 (April 2010 Session)

17.7.2.2 Employment rights shall not be abridged or denied on account of membership or non-membership in any labor union or labor organization. Further, the right of employees, by and through a labor organization, to bargain collectively shall not be abridged or denied.

17.7.2.3 No person shall be required by a covered employer to become or remain a member of any labor union or labor organization as a condition of employment or continuation of employment by such employer.

17.7.2.4 No employee shall be required to pay union dues and/or union fees as a condition of obtaining or maintaining employment within the Crow Reservation.

17.7.2.5 All covered employers who are subject to union or collective bargaining agreements shall pay wages and salaries to all non-union workers that are not less than union scale.

17.7.2.6 Any covered employer, who is subject to a collective bargaining agreement that requires it to pay monies for fringe benefits for its employees into a union fund(s), such as health and pension funds, shall offer any employee who is not a union member, the option of receiving cash wages in lieu of the amount that would otherwise have been placed into the union fund(s) on behalf of that employee.

17.7.2.7 Covered employers with collective bargaining agreements with a union are responsible for informing the union of this Act and TERO rules and regulations. Covered employers shall obtain a written agreement, approved by the TERO Director, from each union with which it has a collective bargaining agreement, providing that:

A. The union shall comply with all Indian preference laws, including this statute, all rules and regulations promulgated pursuant to it, and all guidelines and orders of the TERO;

B. The union will give absolute preference to qualified Indians in job referrals from the

TERO regardless of the position these individuals may have on any referral list the union may keep; and

C. The union will agree that the employer may pay the fringe benefits in cash to any Indian who is not a union member and who chooses not to participate in the union's fringe benefit plan.

17.7.2.8 Any future agreements between the TERO, the Tribe, and employers or unions must incorporate by reference the language of this statute and any amendments thereto. Such agreements shall be submitted to the TERO Director and the Tribe's Office of Legal Counsel for review.

17.7.2.9 The provisions of this Chapter shall not apply to a Tribal Project Labor Agreement ("TPLA") that is entered into by mutual agreement of the Tribe and a labor union for the purpose of providing valuable union-sponsored training or apprenticeship opportunities; provided, that the Tribal

Project Labor Agreement explicitly acknowledges the sovereign authority of the Tribe, and is consistent with the policy and purpose of the Act to increase employment opportunities and skills training available for tribal members.

Chapter 8. Prohibition of Employment Discrimination

Part 1. Prohibited Discrimination

As Amended by CLB10-04 (April 2010 Session)

17.8.1.1 Except in furtherance of the provisions requiring employment preference to Crow and other

Indians set out in Chapter Four of this Act, or when based upon a bona fide occupational qualification, it shall be an unlawful to do any of the following acts, wholly or partially for a discriminatory reason based on the actual or perceived: race, color, religion, national origin, sex, age, or political affiliation of any individual:

A. By a covered employer – to fail or refuse to hire, or to discharge, any individual, or otherwise to discriminate against any individual with respect to his or her compensation, terms and condition, or privileges of employment, including promotion, to discriminate in recruiting individuals for employment, or to limit, segregate, or classify his or her employees in any way which would tend to deprive them of employment opportunities;

B. By a labor organization – to exclude or to expel from its membership, or otherwise to discriminate against, any individual, or to classify, or fail or refuse to refer for employment any individual in any way, which would deprive such individual of employment opportunities, or would limit such employment opportunities, or otherwise adversely affect his or her status as an employee or as an applicant for employment;

C. By a covered employer or a labor organization – to discriminate against any individual in admission to or the employment in, any program established to provide training or retraining, including on-the-job training.

17.8.1.2 Religious Accommodation.

It shall be an unlawful discriminatory practice for a covered employer to refuse to make a reasonable accommodation for an employee’s religious observance by such actions as permitting the employee to make up work time lost due to such observance, unless such an accommodation would cause the employer undue hardship. An accommodation would cause an employer undue hardship when it would cause the employer to incur more than de minimis costs.

17.8.1.3 Discrimination…