ATT_3_MECRO_ORD_7-28-15_FINAL.pdf

RESOLUTION: NO. 123-04

DATE ENACTED: September 13, 2004

SUBJECT MATTER:

ENACTING A MAKAH EMPLOYMENT AND CONTRACTING RIGHTS ACT (MECRA)

RESOLUTION NUMBER 123-04 OF THE MAKAH TRIBAL COUNCIL

WHEREAS, the Makah Tribal Council is the governing body of the Makah Indian Tribe of the Makah Indian Reservation, Washington, by authority of the Constitution and By-Laws of the Makah Indian Tribe as approved on May 16, 1936, by the Secretary of the Interior; and

WHEREAS, by Resolution 48-80 the Makah Tribal Council adopted Ordinance No.

32-B relating to Employment Rights which was approved by the Department of the Interior; and

WHEREAS, jobs in private employment on or near the Makah Indian Reservation are an important resource of the Makah Tribe and its local residents, and Congress and the federal courts have upheld special Indian employment rights under certain circumstances; and

WHEREAS, legal questions have arisen regarding the continued enforceability of portions of the existing Makah Employment Rights Ordinance; and

WHEREAS, federal law and Article VI, Sections 1 (e), (g) and (i) of the Makah Constitution authorize enactment of a Makah Employment and Contracting Rights Act, subject to review by the Secretary of the Interior; and

WHEREAS, the Tribal Council has reviewed the Act and has determined that it is in the best interests of the Makah Indian Tribe to amend the existing Employment Rights Ordinance and enact the following Act;

NOW, THEREFORE, BE IT RESOLVED that the Makah Tribal Council hereby promulgates and enacts the following Makah Employment and Contracting Rights Act of 2004.

MAKAH

EMPLOYMENT AND CONTRACTING RIGHTS

ACT OF 2004

Relating to Employment and Contracting Rights of

Members of the Makah Indian Tribe

TABLE OF CONTENTS

1. General Provisions and Purposes 1

1.1. Title 1

1.2. Findings 1

1.3 Application of the Act 1

1.4. Effective Date 2

2. Definitions 2

3. Makah Employment and Contracting Rights Office 4

3.1. Director 4

3 .2. Powers of the Director 4

3.3. Duties of Director 5

4. Makah Employment Rights Program 6

4.1. Order of Preference in Employment 6

4.2. Compliance Agreements 6

4.3. Establishing Numerical Hiring Goals 7

4.4. Job Qualifications and Personnel Requirements 8

4.5. Training 8

4.6. Preferred Employee Hiring Hall 9

4. 7. Counseling and Support Programs 10

4.8. Preference in Contracting and Subcontracting 10

4.9. Lay-offs, Transfers, and Reinstatements 10

4.10. Promotion, Supervisory Positions 11

4.11. Summer Students 11

5. Fees 11

5 .1. Contractors and Subcontractors 11

5.2. Other Employers 11

5.3. Notice of Fees 11

5.4 Payment of Fees 11

5.5 Accounting and Rebates 12

6. Compliance by Unions 12

6.1. Union Agreements Required 12

6.2. Contents of Union Agreements 12

7. Enforcement 13

7 .1. Dispute Resolution 13 i

8. Complaint Procedure 14

8.1. Individual Complaints Procedure 14

8.2. Relief 14

9. Judicial Review 14

9 .1. Tribal Court Proceedings 14

10. Remedies and Sanctions 15

11. Notice of Act 15

11.1. Employers, Contractors, Subcontractors 15

11.2. Tribal Agencies 16

12. Inspections 16

12.1. Site Inspections 16

12.2. Records Inspections 16

13. Sovereign Immunity 16 ii

1. General Provisions and Purposes

1.1. Title. This Act shall be known as the Makah Employment and Contracting Rights Act of 2004” (MECRA), or the Act."

1.2. Findings. The Tribal Council finds:

1.2.1. That employment discrimination against Indians and other local residents persists on and near the Reservation despite a large number of Indian and non-Indian owned businesses employing skilled and non-skilled workers on and near the Reservation;

1.2.2. That contracts, subcontracts, and jobs in private

employment on or near the Reservation are an important resource to which Indians living on or near the Reservation have unique employment rights under federal and tribal law;

1.2.3. That many families living on or near the Reservation include both Indian and non-Indian local residents, whose collective contracting and employment benefit their families and the Reservation community;

1.2.4. That contracting and employment preferences may lawfully be accorded to local residents, and that the Makah Indian Reservation is an appropriate geographical area, the inhabitants of which can properly be designated as local residents for the purposes of this Act;

1.2.5. That the Tribal Councils duty to implement and protect the unique employment rights of Indians, as well as the health and welfare of the Reservation, necessitates enactment of an Employment and Contracting rights Act, which establishes an Employment and Contracting Rights Program (Program) and an Employment and Contracting Rights Office (Office) to achieve its goals and policies; and

1.2.6. The Tribal Council shall appropriate such tribal funds as are necessary and available to establish training programs to prepare Preferred Employees for job opportunities developed pursuant to this Act and the Program.

1.3. Application of the Act.

1.3 .1. Employers. This Act shall apply to all Employers located on or engaged in work on the Reservation, and to all facilities of such Employer located near the Reservation.

1.3.2. Preferences to Be Given By Employers. All Employers shall give preference to Indians in hiring, promotion, transfer, reinstatement, reduction in force, training and all other aspects of employment, contracting and subcontracting, and business opportunities, and shall at all times comply with the terms of this Act and its implementing regulations and any Compliance Agreement executed under this Act.

1.3.3. Duty of Contractors and Subcontractors of Employees. The preference requirements contained in this Act shall be binding on all Contractors and Subcontractors of Employers, regardless of tier, and shall be deemed a part of all resulting subcontract specifications.

Each Employer shall have the initial and primary responsibility for ensuring that all Contractors and Subcontractors comply with the requirements of this Act, and both the Employer and its Contractors or Subcontractors shall be subject to sanctions provided herein for violation of this Act if the Contractor or Subcontractor fails to comply.

1.3.4. Contract Disputes Excluded. Contract disputes (excluding a Compliance Agreement or Union Agreement under this Act) are contractual and are not within the scope of this Act and shall not be cause for Contractor or Subcontractor shutdown. Contract disputes shall be resolved through specified contract procedures for such disputes or through a court of competent jurisdiction.

1.3.5. Severability of Provisions. If any provision of this Act, or its application to any person or circumstance is held invalid, the remainder of the Act, or the application of the provision to other persons or circumstances is not affected.

1.4. Effective Date. This Act shall be effective from the date of its approval by the Secretary of the Interior or the Secretary's duly authorized representative.

2. Definitions

2.1. "Tribal Council" means the Makah Indian Tribal Council.

2.2. "Act" means this Makah Employment and Contracting Rights Act of 2004.

2.3. "MECRA" means the Makah Employment and Contracting Rights Act of 2004.

2.4. "Compliance Agreement" means a certification signed by an Employer and the Director that sets forth how the Employer will meet preference hiring goals and establishes that the Employer will comply fully with this Act. A Compliance Agreement must be executed prior to commencement of any portion of the contract or subcontract with the Employer.

2.5. "Director" means the Director of the Makah Employment and Contracting Rights Office and Program.

2.6. "EEOC" means the Equal Employment Opportunity Commission of the United States.

2.7. "Employer" means any person or entity located or engaged in any work, contract, or subcontract within the Reservation and that employs two or more persons. The term “Employer” does not include the United States or any of its agencies, or the Makah Indian Tribe.

The term "Employer" does not include the state of Washington or any agency of the state of Washington while directly performing work on state lands within the Reservation. The term "Employer” includes all other governments and governmental agencies, including agencies, entities, and enterprises of the Tribe, and all Contractors and Subcontractors of any government or governmental agency.

2.8. "Engaged in Work on the Reservation." An Employer is engaged in work on the Reservation if, during any portion of a business enterprise or any project, contract, or subcontract, the Employer or any of the Employers Employees spend a substantial amount of time performing work within the exterior boundaries of the Reservation on a continuing basis. The term includes Employers who are engaged in the operation of any charter boat business on the reservation, including all charter boats that use any dock, pier, or marina facility on the Reservation. The term does not include work performed on the Reservation at the request of or for the benefit of individual tribal members on real property or improvements in which the member has an interest where the Employer employs three or less employees.

2.9. "Entity” means any person, partnership, corporation, joint venture, government, governmental enterprise, or any other natural or artificial person or organization. The term “Entity” is intended to be as broad and encompassing as possible to ensure the Act’s coverage overall employment and contract activities within the jurisdiction of the Tribe.

2.10. "FEPC” means the Fair Employment Practices Commission of the United States.

2.11. "Indian” means a person who is a member of an Indian tribe.

2.12. "Indian Tribe" means any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act 43 U.S. Code § 1601which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.

2.13. "Indian-Owned Business" means a business entity that is at least 51 % owned and controlled by Indians.

2.14. "Local Resident” means a person who has been residing on or near the Makah Indian Reservation for at least six months prior to the date of hire.

2.15. "Located on the Reservation" means any business enterprise or operation, or any project, contract, or subcontract, in which an Employer maintains a temporary or permanent office, facility, business property, or equipment within the exterior boundaries of the Reservation.

2.16. ‘‘Near the Reservation” means within reasonable daily commuting distance of the Reservation.

2.17. "OFCCP" means the Office of Federal Contract Compliance Programs of the United States.

2.18. "Preferred Employee” means a person entitled to a preference in employment under this Act.

2.19. "Program” means the Makah Employment and Contracting Rights Program.

2.20. "Reservation" means the Makah Indian Reservation established by the Treaty of January 31, 1855, and includes all lands, water, airspace, and rights-of-way, without regard to the issuance of any patent, within the exterior boundaries of such Reservation, as now or hereafter existing, and all other lands in which the Tribe holds an interest, wherever located.

2.21. "Secretary" means the Secretary of the Interior or his duly authorized representative.

2.22. "State land” means land owned by the state of Washington in fee, including rights-of-ways to which title is vested exclusively in the state of Washington.

2.23. ''Temporary office or facility” shall mean a modular, or housing type structure, or trailer located on the Reservation for one day or more.

2.24. ''Tribe” means the Makah Indian Tribe.

3. Makah Employment and Contracting Rights Office

3 .1. Director Appointment and Reporting Requirements. The Director of the Makah Employment and Contracting Rights Office shall be appointed by the Tribal Council and shall report to the General Manager or such other person as the Tribal Council shall designate at such time and in such manner as the General Manager shall require. The Director shall prepare and submit to the Tribal Council written quarterly reports describing the activities and progress of the program on March 15, June 15, September 15, and December 15 of every year.

3.2. Powers of the Director. The Director shall have the power:

3.2.1. To establish rules and regulations governing all activities of the Program; provided that before any rules or regulations become effective, they must first be approved by the Tribal Council;

3.2.2. To expend funds appropriated by the Tribal Council for the Program pursuant to an annual budget prepared by the Director and approved by the Tribal Council;

3.2.3. To obtain funding from federal, state, or other sources to supplement Tribal Council appropriations;

3.2.4. To impose numerical hiring goals and timetables specifying the minimum number of Preferred Employees that an Employer must hire by position, craft, skill level, or other reasonable employment-related criterion;

3.2.5. To require Employers to establish or participate in such training programs as the Director deems reasonably necessary to increase the pool of Preferred Employees eligible for employment;

3.2.6. To establish and administer a tribal hiring hall;

3.2.7. To require that Employers may hire non-Preferred Employees only after the tribal hiring hall has certified that qualified Preferred Employees are unavailable to fill vacant employment positions;

3.2.8. To prohibit Employers from using job qualification criteria or personnel requirements that bar Preferred Employees from employment unless such criteria or requirements are required by business necessity. The Director may adopt EEOC guidelines or may adopt additional requirements to eliminate employment barriers unique to Preferred Employees and the Reservation;

3.2.9. To enter into binding agreements with unions to ensure union compliance with this Act;

3.2.10. To require that Employers give preference to tribal and other Indian-owned businesses in the award of contracts and subcontracts pursuant to this Act;

3.2.11. To establish counseling programs to assist Preferred

Employees to obtain and retain employment;

3.2.12. To require Employers to submit reports and take all other actions under this Act deemed necessary by the Director for the fair and vigorous implementation and enforcement of this Act;

3.2.13. To enter into cooperative agreements with federal employment rights agencies such as EEOC and OFCCP to eliminate discrimination against Indians on and near the Reservation

3.2.14. To take such other actions as are necessary to achieve the purposes and objectives of the Program established by this Act; and

3.2.15. In exercising the above-specified power, the Director shall have the discretion to implement certain powers only or to apply one or more such powers to limited classes of employers.

3.3. Duties of Director. The Director shall administer the Program in accordance with this Act and any amendments as may hereafter be duly enacted by the Tribal Council.

4. Makah Employment Rights Program.

4.1. Order of Preference in Employment. Whenever an Employer is required by this Act to give preference in employment, such preference shall be given to the following persons in the following enumerated order:

4.1.1. Indians who reside on or near the Reservation;

4.1.2. Other Indians;

4.1.3. Non-Indians who contribute to the financial support of an Indian household that includes one or more resident Indians.

4.1.4. Other persons who reside on or near the Reservation.

4.2. Compliance Agreements.

4.2.1. No Employer who intends to engage in temporary business on the Reservation shall commence work on the Reservation until a Compliance Agreement has been negotiated and signed by both the Director and the authorized representative of the Employer. An Employer who has established a permanent place of business on the Reservation shall negotiate and execute a Compliance Agreement within 30 days from the date that the Employer receives notification from the Director that a Compliance Agreement is required.

4.2.2. Each Employer shall be required to meet with the Director or his or her designee and negotiate and execute a Compliance Agreement that sets forth:

4.2.2.1. The minimum number of Preferred Employees

that the Employer shall hire during any year that the Employer is located or engaged in work on the Reservation;

4.2.2.2. Numerical goals and timetables to reach

such goals for each craft, skill area, job classification, etc., used by the Employer including, but not limited to, general labor, skilled, administrative, supervisory and professional categories. These goals shall be established as described in subsection 4.3.

4.2.2.3. Wage scale provisions and salary compensation

terms;

4.2.2.4. Pursuant to the provisions of Section 4.5.3, the ratio of Preferred Employee trainees to fully qualified workers shall be negotiated as part of the Compliance Agreement. For construction projects, the number of Preferred Employee trainees shall be no less than the minimum ratio established by the Department of Labor;

4.2.2.5. Periodic reporting requirements that the Employer

shall provide to the Director as required under this Act;

4.2.2.6. The Employers commitment to give preference when

contracting and subcontracting as required by this Act;

4.2.2. 7. The Employers commitment to cooperate with the Director regarding counseling and support programs as required by this Act; and

4.2.2.8. The Employers commitment to comply with

requirements governing layoffs, promotions, transfers, reinstatements, and hiring of students as required by this Act.

4.2.3. The Director shall review each Compliance Agreement at least once each year and, with the Employer, shall revise the Agreement as necessary to reflect changes in the number of Preferred Employees available for employment, projected employment opportunities, changes in Employer hiring plans, or other changes in relevant information or circumstance.

4.2.4. Any violation of an executed Compliance Agreement shall be a violation of this Act, which shall be subject to enforcement by the Director under the provisions of this Act.

4.3. Establishing Numerical Hiring Goals.

4.3.1. Surveys. The numerical goals set forth in a Compliance Agreement shall be based upon surveys conducted by or for the Director of the available Indian work force and of projected employment opportunities on the Reservation.

4.3.2. Goals. The goals described in this Act shall be expressed in terms of man-hours of employment as a percentage of the total man-hours worked by the Employers work force in each job classification involved.

4.3.3. New Employers. For each new Employer on the Reservation, the hiring goals shall be established for the entire work force. The Employer shall meet with the Director as soon as possible before starting work and shall furnish the Director with a precise list of the number and kinds of Employees the Employer expects to employ. The Director shall set specific goals and timetables for the Employer after considering any special factors or circumstances that the Employer presents.

4.3.4. Existing Employers. The hiring goals for existing Employers on the Reservation shall be a percentage of the new Employees expected to be employed during the ensuing year by the

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Employer, as determined by the Director under the provisions of this Act.

4.3.5. Annual Review, Monthly Reports. For both new and existing Employers, the hiring goals shall be reviewed by the Director at least once each year and shall be revised as necessary to reflect changes in the number of Preferred Employees available for employment, projected employment opportunities, changes in Employer hiring plans, or other changes in relevant information or circumstance. Each Employer shall submit a monthly report to the Director on a form provided by the Director that indicates the number of Preferred Employees in the Employers work force, an assessment of the Employers compliance with the Employers Compliance Agreement executed pursuant to Section 4.2, all persons hired or fired during the month, the job positions involved, and such other information as may be required by the Director.

4.4. Job Qualifications and Personnel Requirements.

4.4.1. Employment Criteria. It shall be a violation of this Act for an Employer to use job qualification criteria or personnel requirements to bar Preferred Employees from employment, unless such criteria or requirements are required by business necessity.

4.4.2. Burden of Proof. The Director shall bear the initial burden of proving that a job qualification criterion or personnel requirement is not required by business necessity.

4.4.3. Action by the Director. Upon prima facie evidence that a job qualification or personnel criterion is not required by business necessity, the Employer shall bear the burden of proving that it

is. If the burden is not met, the Employer will be required to eliminate the job qualification criterion or personnel requirement at issue.

4.4.4. Religious Accommodation. Every Employer shall make a

reasonable accommodation to the religious beliefs of Preferred Employees.

4.4.5. EEOC Guidelines. In implementing this section, the Director shall be guided by principles established by EEOC guidelines, particularly 29 C.F.R. Parts 1604-1607, as amended, but the Director may impose additional requirements beyond those established by the EEOC in order to eliminate employment barriers unique to Preferred Employees and the Reservation.

4.4.6. Dispute Procedure. If an Employer and the Director are unable to agree on the requirements of this subsection, the Director may invoke the procedures provided in Section 7 of this Act.

4.5. Training.

4.5.1. Training Programs. The Director shall identify and facilitate training programs necessary to assist the maximum number of preferred persons to become qualified in various job qualifications used by Employers. The Director shall establish a construction-work trainee program and obtain certification for the program from the Department of Labor or other agency, as appropriate.

4.5.2. Employer Training Programs. The Director may initiate and sponsor training programs for specific Employers, or the Director may work with Employers to establish and sponsor their own training programs, to assist the maximum number of Preferred Employee trainees to become qualified in the various job classifications used by the Employers.

4.5.3. Trainee Ratios. The Director shall set the ratio of Preferred Employee trainees to fully qualified workers, consistent with the business necessity for each Employer or Employer classification. The ratio of Preferred Employee trainees to fully qualified workers shall be negotiated as part of the Compliance Agreement. For construction projects, the number of Preferred Employee trainees shall be no less than the minimum ratio established by the Department of Labor.

4.5.4. Employers Subject to Collective Bargaining Agreements.

Every Employer with a collective bargaining agreement with a union shall be required to obtain agreement from the union to establish an advanced journeyman upgrade and apprenticeship program.

4.6. Preferred Employee Hiring Hall.

4.6.1. Tribal Hiring Hall. The Director shall establish and administer a tribal hiring hall to assist the Director and Employers in placing Preferred Employees in available job positions.

4.6.2. Drug Testing of Preferred Employees. Before a Preferred Employee can be placed on the hiring hall list, a Preferred Employee must submit to pre-employment drug testing under the rules and procedures established by the Drug and Alcohol Free Workplace Act of 2002. Any person who tests positive on such pre-employment drug test shall be automatically barred from the Preferred Employee list for six months from the date of testing. A refusal to submit to pre-employment drug testing under this Section shall be treated as a positive test result.

4.6.3. Non-Acceptance of Referral. The name of any person who refuses to accept an employment referral from the hiring hall list, shall be moved to the end of the list.

4.6.4. Preferred Employee Referrals. An Employer may recruit and hire workers from whatever sources are available and by whatever process the Employer chooses, provided that an Employer may not hire a non-Preferred Employee until the Employer has given the Director a reasonable time to locate a qualified Preferred Employee and the tribal hiring hall has certified that a qualified Preferred Employee is not available to fill the vacant job position. For purpose of this Section, A reasonable time” shall be defined as follows:

4.6.4.1. Construction Employment. For construction jobs, the

Director shall have 48 hours to locate and an additional 12 hours to refer a qualified Preferred Employee; 4.6.4.2. Other Employment. For all other kinds of employment, the Director shall have five working days to locate and refer a qualified Preferred Employee. The Director may reduce these time periods upon a showing by the Employer that such time periods impose an undue burden upon the Employer.

4.6.5. Non-Acceptance of Referral. The name of any person who refuses to accept an employment referral from the hiring hall list, shall be moved to the end of the list.

4.6.6. Exemption. An Employer subject to a collective bargaining agreement with a union shall be exempt from the requirements of this Section if the union agrees to place on its referral list all names supplied to it by the Director and to refer Preferred Employees on a priority basis. If any union fails to comply with an agreement to refer Preferred Employees to an Employer, the Director shall require the Employer to comply with the referral provisions of this Section.

4.6.7. Violations. If any Employer employs a non-Preferred

Employee in a job in violation of this Section, the Employer shall be required by the Director to remove the Employee summarily and shall be subject to the sanctions provided in Section 10 of this Act.

4.6.8. Emergency Hires. Emergency hires to fill positions vacated by a Preferred Employee when the tribal hiring hall is closed, such as holidays and weekends, are permitted; however, such hires shall be for a maximum of three days, and the Employer shall comply with the provisions of this Section following the expiration of the three-day hire.

4.6.9. Disclaimer of Liability. In making referrals of Preferred Employees from the tribal hiring hall under this Section, neither the Tribe nor any employee, officer, or agent of the Tribe shall be liable to any Employer or other third party, or to the Preferred Employee for any claims, complaints, damages, injury, or other claim arising from such referral or employment.

4. 7. Counseling and Support Programs. The Director will establish counseling and other support programs to assist Preferred Employees to obtain and retain employment. Every Employer shall be required to cooperate with the Director regarding such counseling and support programs.

4.8. Preference in Contracting and Subcontracting. Every Employer shall give preference in the award of any contract or subcontract to Indian-owned businesses. The Director shall maintain a list of Indian-owned businesses, which shall be supplied to the Employers for their use.

4.9. Lay-offs, Transfers, and Reinstatements. In all lay-offs and reductions in force, no Preferred Employee shall be terminated if a non-Preferred Employee in the same job classification is still employed. The non-Preferred Employee must first be terminated if the Preferred Employee possesses the threshold qualifications for the job classification. If an Employer lays-off workers by crews, all qualified Preferred Employees shall be transferred to crews to be retained so long as non-Preferred Employees in the same job classifications are employed elsewhere on the job site. Preference shall also be afforded to transfers and reinstatements.

4.10. Promotion, Supervisory Positions. Every Employer shall give Preferred Employees preferential consideration for all promotion opportunities and shall encourage Preferred Employees to seek such opportunities. For every supervisory position filled by a non-Preferred Employee, the Employer shall file a report with the Director stating what efforts were made to inform Preferred Employees about the position, what Preferred Employees, if any, applied for the position, and the reasons why each Preferred Employee was not hired for the position.

4.11. Summer Students. Every Employer shall give students who qualify as Preferred Employees preferential consideration for summer student placement. The Employer shall make every effort to promote after-school, summer, and vacation employment for Preferred Employee students.

5. Fees.

5.1. Contractors and Subcontractors. Every Contractor or Subcontractor with a contract of $100,000 or more shall pay a one-time fee of two percent (2%) of the total amount of the contract, plus a fee of 2% of any increase in the contract amount. Contractors or Subcontractors with a contract of less $10,000 to $99,999 shall pay a one-time fee of one percent (1 %), plus a fee of 1 % of any increase in the contract amount. If the initial contract is less than $100,000, but is subsequently increased to $100,000 or more, the fee shall increase to two percent (2%) of the full contract amount. Contractors or Subcontractors with a contract of $500 to $9,999 shall pay a one-time fee of $50 with the exception of Enrolled Makah Tribal Members.

Contractors or Subcontractors with a contract of less than $500 shall pay a one-time fee of $5 with the exception of Enrolled Makah Tribal Members.

5.2. Other Employers. Every Employer, other than a Contractor or Subcontractor with a contract of $100,000 or more, with an annual payroll of $10,000 or more, shall pay an annual fee of one percent (1 %) of the Employers annual payroll. This fee may be waived by the Director only for bona fide education, health, or non-profit Employers.

5.3. Notice of Fees. All announcements, RFP's or other requests or notices for competitive bids or proposals, and all sole source contract notices or announcements shall include a notice of the MECRA fee provisions set forth herein.

5.4 Payment of Fees. The Contractor prior to commencing work on the Reservation shall pay the fee provided for in this Act. However, where good cause is shown, the Director may authorize the Contractor to pay the fee in installments over the course of the contract.

5.5. Accounting and Rebates. The Director may rebate all or some of the MECRA fees, in his or her discretion, if the Director finds that a Contractor, Subcontractor, or Employer is in full compliance with MECRA. In such case, the Director shall make a written record of the rebate decision and support. Employment rights fees shall be paid to the Tribe and placed in a special MECRA account to be used by the Director as part of the annual MECRA budget, as determined by the Tribal Council. The Director shall be responsible for collecting the fees and for establishing rules and regulations necessary to ensure fair and timely collection. The Director is authorized to develop regulations to rebate all or portion of employment rights fees paid by an Employer who is found to be in full compliance with the requirements imposed by this Act or is making a substantial effort to train and employ Preferred Employees.

6. Compliance by Unions.

6.1. Union Agreements Required. Every union with a collective bargaining agreement with an Employer shall enter into a written agreement with the Director (A Union Agreement) providing that the union will comply with this Act and all rules, regulations, and orders of the Director. Until such agreement is filed with the Director, the Employer may not commence work on the Reservation.

6.2. Contents of Union Agreements. Every Union Agreement must provide:

6.2.1. Preferred Employee Preference. The union will give preference to Preferred Employees in job referrals regardless of which union referral list they are on.

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6.2.2. Cooperation with Director. The union will cooperate with the Director in implementing and enforcing this Act.

6.2.3. Registration of Preferred Employees. The union will establish a procedure for Preferred Employees to register for job referral lists by telephone, mail, or other convenient means.

6.2.4. Training Programs. The union will establish a-journeyman upgrade and advanced apprenticeship-training programs.

6.2.5. A Blanketing-In of Preferred Employees. The union will permit, but not require, any Preferred Employee who qualifies for journeyman status to join the union.

6.2.6. Temporary Work Permits. The union will grant temporary work permits to Preferred Employees who do not wish to join the union.

6.2.7. Model Union Agreement. The Director will provide a model Union Agreement for use by all unions that have collective bargaining agreements with an Employer.

6.2.8. Recognition of Unions. Nothing herein nor any action of the Director under this Act shall constitute tribal recognition of any union or tribal endorsement of any union activities on the Reservation

7. Enforcement.

7 .1. Dispute Resolution. The following procedures shall apply in the order set forth below:

7.1.1. Hearing Officer. The Tribal Council shall designate two or more persons to serve as MECRA Hearing Officers for the purpose of conducting hearings under this Act. If the Hearing Officers are not Employees of the Tribe, they shall be entitled to compensation on an hourly or other basis and at a rate to be determined by the Tribal Council. No person who has any direct or indirect interest in the outcome or subject matter of a dispute or enforcement action shall serve as a Hearing Officer in such dispute or matter.

7.1.2. Informal Resolution. If the Director determines that an Employer, Contractor, Subcontractor, or union has failed to comply with any agreement entered into under this Act, including any Compliance or Union Agreement hereunder, or has failed to comply with any provision of this Act or any rules, regulations, or orders of the Director under this Act, the Director will first attempt to achieve an informal settlement of the matter.

7.1.3. Service of Complaint. If an informal settlement cannot be reached within a reasonable time, the Director shall file an administrative complaint with the Hearing Officer against such party. Within five business days of filing the complaint, the Director shall cause all parties to be served with the complaint.

Service of the complaint shall be made under the same rules and procedures in every respect as apply to service of a civil complaint in Makah Tribal Court.

7.1.4. Response. A party shall have five business days in which to file and serve on the Director and all other parties a response to the complaint.

7.1.5. Hearing. The Hearing Officer shall schedule a hearing no sooner than 20 calendar days following service of the response to the complaint on all parties. All parties shall receive at least five-business days’ notice of hearing.

7.1.6. Hearing Procedures. The party and the Director may present briefs and evidence and cross-examine witnesses at the hearing, using as guidance the civil procedures established in the Makah Law and Order Code and by the Tribal Court, and where gaps exist, by the federal district courts. The Hearing Officer shall, no later than 14 working days after the hearing, issue a decision that shall include findings of fact and conclusions of law. The Director may, after consultation with the Tribes general manager, the Tribal Council, and the Tribe’s attorneys, enforce the Hearing Officer’s decision in Tribal Court, whereupon the opposing party shall be entitled to raise any defenses recognized under tribal or federal law.

8. Complaint Procedure.

8.1. Individual Complaints Procedure. Any Employee, Employer, union, or other person who believes that any person or entity has failed to comply with-any Agreement entered into under this Act, or any provision of this Act, or any rules, regulations, or orders of the Director made under this Act, may file a written complaint with the Director describing the alleged violation and setting forth all relevant facts in support of the allegations in the complaint. The Director shall investigate the allegations of the complaint, including interviews with the complaining parties and all other persons with knowledge or information of the matter, and, if the Director determines that a failure to comply has occurred, the Director shall invoke the hearing proceedings set forth in Section 7 of this Act. In such proceeding, the complaining party shall not be a necessary party, but may be a witness as determined necessary by the Director. Such hearing action shall be brought only in the name of the Makah Indian Tribe. Nothing in this Act shall be construed to create a private right of action for an individual to invoke the procedures of Section 7 or otherwise to bring a private enforcement action under this Act. The Director shall have discretionary authority to deny a complaint or to bring such enforcement action, as the Director deems necessary or desirable under the facts and circumstances of each case consistent with the purpose and intent of this Act.

8.2. Relief. The Hearing Officer shall order such relief as shall be just and equitable under the circumstances including declaratory or injunctive relief. However, in no event shall the Hearing Officer or the Tribal Court award monetary damages against the Tribe, the Director, or any agent, officer, or employee of the Tribe.

9. Judicial Review. Any person, including the Director, aggrieved by a final decision of a Hearing Officer or of the Director, may, after exhausting all administrative remedies set forth under this Act and applicable law, file a petition for judicial review in Makah Tribal Court seeking judicial review of such decision. Any petition for judicial review brought by any person other than the Director shall name as the respondent the Director or the Hearing Officer, as the case may be, in their official capacity only. The Makah Indian Tribe shall not be a named respondent in any judicial review proceeding brought pursuant to this Act. The Director may only bring a petition for judicial review after consulting with or receiving the approval of the Makah Tribal Council and such approval shall be in writing and included with the petition filed by the Director. Tribal Council approval and proof thereof is jurisdictional and failure to obtain such approval shall result in dismissal of the petition by the Tribal Court.

9 .1. Tribal Court Proceedings. The applicable sections of the Makah Law and Order Code shall govern any action brought in Tribal Court under this Act. In case of any conflict between the provisions of this Act and the provisions of the Makah Law and Order Code, the express provisions of this Act shall control. All notice and service shall comply with the notice and service requirements applicable in tribal court.

10. Remedies and Sanctions. In any enforcement action brought by the Director, the following remedies and sanctions may be ordered:

10.1. Prohibit the commencement or continuation of work or business within the Reservation;

10.2. Suspend all operations within the Reservation;

10.3. Order back pay to injured Preferred Employees;

10.4. Order removal of Employees hired in violation of this Act;

10.5. Impose civil fines, to a maximum of $500 for each violation. Each day during which a violation continues shall constitute a separate violation;

I 0.6. Enjoin the person or entity from engaging in any future activities within the Reservation;

10.7. Require employment, promotion, and training of Preferred Employees injured by the violation;

10.8. Require that the parties amend or rescind the Compliance Agreement or Union Agreement or declare the Compliance Agreement or Union Agreement null and void; or

10.9. Impose any other order or remedy deemed reasonable and necessary to alleviate, eliminate, or compensate for any violation.

10.10 The remedies and sanctions set forth in Sections 10.1 through 10.9 above are not exclusive, and other appropriate remedies or sanctions may be fashioned by the Director in the Directors discretion consistent with the provisions of this Act.

11. Notice of Act.

11.1. Employers, Contractors, Subcontractors. The Director shall provide written notice to all Employers, Contractors, and Subcontractors conducting business within or near the Reservation of this Act and all amendments thereto, and shall provide a copy of this Act and all amendments to all such Employers. All announcements issued by any private or public person or entity for contracting, subcontracting, or employment, except where exempted under this Act, shall contain a statement that the Employer, Contractor, or Subcontractor will be obligated to comply with this Act, an executed Compliance Agreement or Union Agreement, and all rules, regulations and orders of the Director made under this Act.

11.2. Tribal Agencies. All Tribal agencies responsible for issuing business permits for on-Reservation activities or otherwise engaged in activities involving contact with prospective Employers on the Reservation shall advise such persons or entities of their obligations under this Act.

12. Inspections.

12.1. Site Inspections. The Director shall have the right to make on-site inspections during regular working hours in order to monitor any Employers compliance with this Act and rules, regulations, and orders of the Director.

12.2. Records Inspections. The Director shall have the right to inspect and copy all relevant records of any Employer, and of any signatory union, or Subcontractor of any Employer, and shall have the right to speak to Employees and conduct investigations at an Employers place of business or work site.

13. Sovereign Immunity.

Nothing in this Act or any action taken by the Director or the Tribal Employment Rights Office or the Tribe pursuant to this Act or in furtherance of the purposes or intent of this Act, including the bringing of any enforcement or other action, appeal, hearing, judicial review, or any action of a Hearing Officer under this Act shall be deemed to be a waiver of the sovereign immunity of the Makah Indian Tribe, its officers, agents, and employees in any court, forum, or proceeding by any person or entity pursuant to any tribal, federal, or state law.

MAKAH TRIBAL COUNCIL

CERTIFICATION

The foregoing resolution was adopted at a regular meeting held on September 13, 2004, at which a quorum was present, and the resolution was adopted by a vote of 4 FOR and 0 AGAINST, the Chairman or the Vice Chairman in his absence, being authorized to sign the resolution.

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