SECTION ONE - GENERAL PROVISION AND PURPOSE
This Chapter shall be known as the Sisseton-Wahpeton Sioux Tribal Employment Rights Law
59-02-01 LEGISLATIVE FINDING AND PURPOSE
The Sisseton-Wahpeton Sioux Tribal Council finds that employment discrimination against Indians persists on the Lake Traverse Reservation despite many Indian and non-Indian owned businesses employing skilled and nonskilled workers. The Council deems it is their duty to protect and enhance the unique employment rights of Indians which requires enactment of an employment rights law to establish an Employment Rights Commission to monitor, implement and enforce its rules and regulations consistent with its employment rights goals and policies.
59-02-02 The power to regulate trade, commerce and levy taxes on aboriginal lands within the original boundaries of the Lake Traverse Reservation demonstrates the sovereign authority retained by the Sisseton-Wahpeton Sioux Tribe. The Sisseton-Wahpeton Sioux Tribe is recognized by the United States as a sovereign Indian government. It is governed pursuant to a Constitution and Bylaws adopted by the members of the Tribe on August 1-2, 1966 and approved by the Commissioner of Indian Affairs on August 25, 1966. Accordingly, the Constitution and Bylaws, as recognized by the Federal Government, provides the Tribal Council the power to govern the Sisseton-Wahpeton Sioux Indians and lands of the Lake Traverse Reservation. Therefore, this Code is an official enactment of inherent sovereign powers delegated to the Tribal Council in Article VII, Section 1, (a), (g), and (h) of the Constitution and Bylaws of the Sisseton-Wahpeton Sioux Tribe.
59-02-03 This Code is designed to protect and advance tribal sovereignty, as well as advance the social and economic well being of the Sisseton-Wahpeton Sioux Indians of the Lake Traverse Reservation. Historically, interference from outside of Indian society has all but destroyed the Tribes economy; evidenced by the extremely high unemployment rates year after year. Even though the United States Government has a legal and moral responsibility to correct such problems, they have been unable to do so. Federal employment assistance programs have consistently failed to resolve long term economic problems on the Lake Traverse Reservation. It is our belief that economic improvements will only occur when "the'~Tribe itself is an active participant in establishing economic goals for its people.
59-02-04 Therefore, the Sisseton-Wahpeton Sioux Tribe hereby exercises its sovereign authority by adopting this Code which grants a preference in employment, contracting and subcontracting to local Indian people. In so doing, the Tribe ensures that money appropriated for the benefit of Sisseton-Wahpeton Sioux Indians shall remain locally and that our Indian people will benefit from employment in business and construction projects on the Lake Traverse Reservation.
SECTION TWO - DEFINITIONS
59-02-02 BIA-CFR Court - shall mean the Bureau of Indian Affairs-Code
Federal Regulations Court of the Sisseton-Wahpeton Sioux Tribe.
59-02-03 Chairman - shall mean the Chairman of the Sisseton-Wahpeton Sioux Tribal Employment Rights Commission.
59-02-04 Commercial Enterprise - shall mean any activity by the Sisseton-Wahpeton Sioux Tribe or of the federal or state government that is not a traditional government function as defined by the Internal Revenue Service.
59-02-05 Commission - shall mean the Sisseton-Wahpeton Sioux Tribal Employment Rights Commission established pursuant to this Code. The Commission shall exercise only those powers specifically delegated to it in this Code and is not authorized to act in the capacity of the Tribal Council which, alone, is legally authorized to act as the governing body of the Sisseton-Wahpeton Sioux Indians.
59-02-06 Covered Employer - shall mean any person, partnership, corporation
or other entity that employs, for wages, two or more employees, who during any
30-day period, spend, cumulatively, 24 or more hours performing work within
the original exterior boundaries of the Lake Traverse Reservation.
59-02-07 EEOC - shall mean the Equal Employment Opportunities Commission
of the United States.
59-02-08 Employee - shall mean any person employed for renumeration.
59-02-09 Entity - shall mean any person, partnership, corporation, joint venture, government, governmental enterprise, or any other natural or artificial person or organization. This term is intended to be, as broad and all-encompassing as possible to~ensure~the Code's coverage over all employment and contract activities within the jurisdiction of the Sisseton-Wahpeton Sioux Indians, and the term shall be so interpreted by the Commission and the Tribal Courts:
59-02-10 Indian -shall mean any individual who is an enrolled member of an Indian tribe recognized by the United States. "Indian Tribe" includes any Indian, Eskimo, or Aleut tribe, band, village, community, pueblo, or organization.
59-02-11 Local Indian - shall mean any Indian as defined in 59-02-10 who has resided within the original exterior boundaries of the Lake Traverse Reservation for not less than the preceding 60 days.
59-02-12 OFCCP - shall mean the Office of Federal Contract Compliance Programs of the United States.
59-02-13 Office or TERO Office - shall mean the Tribal Employment Rights
office established pursuant to this Code.
59-02-14 Reservation - shall mean the Lake Traverse Reservation, including all lands within the original exterior boundaries of the Lake Traverse Reservation, regardless of ownership of such lands.
SECTION THREE - SOVEREIGN IMMUNITY
59-03-01 SOVEREIGN IMMUNITY
The Sisseton-Wahpeton Sioux Indians, and all its constituent parts, including the Tribal Employment Rights Office, Director, and Commission established pursuant to this Code, are immune from suit in any jurisdiction except to the extent that such immunity has been expressly and unequivocally waived by the Tribe or the United States. Nothing in this Code shall be construed as waiving the sovereign immunity of the Sisseton-Wahpeton Sioux Indians or any of its constituent parts, including but not limited to the Tribal Employment Rights Office, Director, and Commission, except that after exhaustion of administrative remedies as provided herein, a party aggrieved by a decision of the Commission may appeal to the Bureau of Indian Affairs-Code Federal Regulations Court (hereinafter referred to as the "BIA-CFR Court" or "the Court") as provided herein. Nothing in this Code, and no enforcement action taken pursuant to it, including the filing of a petition in the BIA-CFR Court, shall constitute a waiver of sovereign immunity of the Tribe, or any elected Tribal Council member or tribal official with respect to any action taken in an official capacity, or in the exercise of the official powers of any such office, either as to any counterclaim, regardless of whether the Counterclaim arises out of the same transaction or occurrence, or in any other respect..
SECTION FOUR - TRIBAL EMPLOYMENT RIGHTS COMMISSION
The Sisseton-Wahpeton Sioux Tribe Employment Rights Commission shall be composed of seven (7) tribal members approved by the Sisseton-Wahpeton Sioux Tribal Council. The Commission shall consist of a seven member Commission elected one per district by the seven districts. The Commission shall designate one of the commissioners as Chairman, Vice-Chairman, Secretary and Treasurer. The Chairman of the Commission shall vote only in case of a tie. A majority of the Commission shall constitute a quorum to transact business.
59-04-02 TERMS OF OFFICE
The Commissioners shall serve at the pleasure of the Tribal Council or their respective District until replaced.
59-04-03 VACANCY AND INTERIM APPOINTMENT
If a commissioner shall die, resign, be incapacitated, leave the Reservation or be removed from office, a vacancy on the Commission shall be created automatically, and the remaining members may exercise all the powers of the Commission until the vacancy is filled.
59-04-04 REMOVAL FROM OFFICE
A Commissioner may be removed from office by the Tribal Council or their respective District upon conviction of a crime, or for gross neglect of duty, misfeasance or malfeasance in office, or ineligibility to serve as a commissioner.
It shall be considered a conflict of interest for any Commissioner to 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 has a substantial ownership interest, or with which he or a member 'of his immediate family has a substantial contractual relationship. He shall excuse himself from. -the meeting until the matter is decided by the remaining commissioners.
Members of the Commission shall be entitled to receive such payment as are in effect for commissioners of the Sisseton-Wahpeton Sioux Tribe.
59-04-07 DUTIES OF COMMISSION
The commission shall administer the Tribal Employment Rights Program of the Reservation in accordance with this Code and subject to approval of the Tribal Council.
59-04-08 DELEGATION OF AUTHORITY
The Commission shall delegate to the TERO Director the primary responsibility for day-to-day oversight of the operation of the Tribal Employment Rights Office and its employees, and such other authority as convenient or necessary to the efficient administration of this Code, except that the Commission may not delegate its duty to:
2. To conduct hearings or to impose sanctions in accordance with this Code.
59-04-09 TERO DIRECTOR, QUALIFICATIONS, DUTIES
1. The Director shall have such administrative ability, education and training as the Commission determines.
2. The Director shall administer the policies, authorities, and duties prescribed by this Code and such other duties as may be delegated by the Commission pursuant to Section 59-04-08.
3. The Director shall report directly to the Commission and the Tribal Council.
4. The Director shall represent the office in enforcement hearings before the Commission.
5. The Director, with the approval of the Commission, may appoint a member of the Office staff or other tribal staff member or Official, who is not a member of the Commission, to serve as Acting Director during the absence of the Director.
59-04-10 POWERS OF COMMISSION
The Commission has the full power, jurisdiction and authority:
1. To hire, appoint, direct, suspend or remove Commission employees.
2. To promulgate and enforce such written procedures and guidelines as are necessary to carry out the provisions of this Code and the orderly performance of the commission's duties. Except when an emergency exists, the Commission shall provide the public with a reasonable time for comment before promulgating any final regulations.
3. To expend funds appropriated by the Sisseton-Wahpeton Sioux Tribal Council, and to obtain and expend funding from federal, state, or other sources to carry out the purposes of the Commission, subject to approval by the Sisseton-Wahpeton Sioux Tribal council.
4. To impose numerical hiring goals that specify the minimum number of Indians a covered employer must hire.
5. To require covered employers to establish or participate in such training programs as the Commission deems necessary to increase the pool of Indians eligible for employment on the Lake Traverse Reservation.
6. To establish and administer, in cooperation with Tribal employment and training programs, a Tribal job skills bank.
7. To require that no covered employer may hire a non-Indian until the job skills bank has verified that no qualified Indian is available to fill the vacant job position.
8. To prohibit covered employers from using job qualification criteria or personnel requirements that bar Indians from employment unless the employer can demonstrate that such criteria or requirements are required by business necessity.
9. To enter into memorandum of understandings or agreements with unions to insure union compliance with this Code. Such agreements shall in no way constitute recognition or endorsement of any union.
10. To require covered employers to give preference to Tribal and other Indian-owned businesses in the award of contracts and subcontracts and to give employment preference to local Indians pursuant to the priority preference established in 59-05-03.
11. To establish and operate a system for certifying firms as eligible for Indian preference and
local Indian preference.
12. To conduct hearings and to impose sanctions in accordance with this Code.
13. To require covered employers to submit reports and take all actions deemed necessary by the Commission for the fair and vigorous implementation of this Code.
14. To enter into cooperative agreements with Federal employment rights agencies, such as
EEOC and OFCCP, to eliminate discrimination against Indians on the Lake Traverse
15. To take such other actions as are necessary to achieve the purposes and objectives of the Sisseton-Wahpeton Sioux Tribal Employment Rights Program established in this Code. In exercising the above specified powers, the Commission shall have the discretion to implement certain powers only or to apply one or more powers to limited classes or numbers of employers.
SECTION FIVE - TRIBAL EMPLOYMENT RIGHTS PROGRAM
59-05-01 SCOPE OF COVERAGE
This Code shall apply to all areas within the original exterior boundaries of the Lake Traverse Reservation and to all other lands subject to the jurisdiction of the Sisseton-Wahpeton Sioux Indians. It shall be binding on all covered employers as to all employment within the Lake Traverse Reservation, and on all covered entities as to all covered contracts. Such employers and entities are covered regardless of whether their headquarters or principal place of business is on or off the Reservation, and regardless of whether they were already engaged in commerce on the Reservation on the date of enactment of this Code or first engaged in commerce on the Reservation after the date of enactment.
59-05-02 EMPLOYMENT PREFERENCE REQUIRED
1. All covered employers, for all employment occurring within the original exterior boundaries of the Lake Traverse Reservation, are required to give preference to qualified Indians in the order of priority established in 59-05-03, in all hiring, promotion, training and all other aspects of employment. Such employers shall comply with all applicable procedures, guidelines,. and orders of the Commission.
2. These requirements shall not apply to any direct employment by the Sisseton-Wahpeton Sioux Tribe or by the federal, state or other governments or their subdivisions. It shall apply to all contractors or grantees of such governments and to all commercial enterprises operated by such governments. All covered entities shall comply with the rules, regulations, guidelines and orders of the Commission which set forth the specific obligations of such entities in regard to Indian preference in employment, contracting and subcontracting.
59-05-03 PRIORITY OF EMPLOYMENT PREFERENCE
Except as provided in 59-05-04, the employment preference provided for in this Code shall be given according to the following priority:
1st Priority: First preference shall be given to enrolled members of the Tribe.
2nd Priority: Second preference-shall be given to Indians who are married to enrolled members of the Tribe.
3rd Priority: Third preference shall be given to local Indians.
59-05-04 COMPLIANCE WITH APPLICABLE FEDERAL LAW
If any requirement of this Code is inconsistent with applicable requirements of federal law or regulations, the latter shall take precedence.
59-05-05 CIVIL SANCTIONS FOR HIRING VIOLATIONS
Any person who is found to be employed by a covered employer in violation of this Code shall be summarily removed from the job, and the employer shall be subject to such additional sanctions as the Commission may impose pursuant to Section 10. In imposing sanctions under this section, the Commission shall consider such factors as whether:
1. the violation was unintentional;
2. the employer acted quickly to remove the employee at issue; and
3. the employer has not been cited for hiring violations in the past.
No employer shall punish, terminate, lay off, harass, or otherwise retaliate against any employee or other person who has exercised his rights under this Code or has assisted another in doing so.
59-05-07 INDIAN PREFERENCE IN CONTRACTING AND SUBCONTRACTING
1. All entities awarding contracts or subcontracts for supplies, services, labor, and materials, in the amount of $0-$5, 000 or more, where the majority of the work on the contract or subcontract will occur within the original exterior boundaries of the Lake Traverse Reservation, shall give preference in contracting and subcontracting in the order of priority established in 59-05-03 to qualified entities that are certified by the Commission as 51% or more Indian owned and controlled, so long as there are certified firms that are technically qualified and willing to perform the work at a reasonable price. If the covered entity determines that certified firms lack the qualifications to perform all of the work required under a contract or subcontract, the entity shall make a good faith effort to divide the work so that certified firms can qualify for at least a portion.
2. Tribal programs or divisions other than commercial enterprises shall not be required to comply with these requirements, but shall be required, when submitting a contract to the Sisseton-Wahpeton Sioux Tribal Council for approval, to indicate the steps taken to award the contract to a qualified local Indian contractor. These requirements shall apply to all subcontracts awarded by a tribal, federal or state direct contractor or grantee, whether or not the prime contract was subject to these requirements.
3. The Commission shall maintain a list of tribally-owned and Indian-owned businesses which shall be supplied to the employers for their use. Employers shall not be required to take any extraordinary measures to identify or locate tribally-owned or Indian-owned businesses.
59-05-08 COMPLIANCE PLAN
The employer shall meet with the Commission as long before he actually begins work as possible and shall furnish the Commission with a precise list of the number and kinds of employees he expects to employ. The commission may then consider any special factors or circumstances the employer wishes to present. The employer shall incorporate the goals into his plan for complying with this section and shall agree in writing to meet those goals. Any employer who fails to provide such .a written statement or an acceptable Compliance Plan will not be permitted to commence work on the Reservation.
59-05-09 REQUIREMENTS OF CONTRACTORS AND SUBCONTRACTORS
The Indian preference requirements contained in this Code shall be binding on all contractors and subcontractors of covered employers, regardless of tier, and shall be deemed a part of all resulting subcontract specifications. The covered employer shall have the initial and primary responsibility for insuring that all contractors and subcontractors comply with these requirements and both the employer and his contractors or subcontractors shall be subject to penalties provided herein for violation of this Code if the contractor or subcontractor fails to comply.
1. Except as otherwise provided in a contract or agreement between the Sisseton-Wahpeton Sioux Tribe employer, seventy percent (70%) is the minimum number of Indians each employer must employ on his work force during any year that he or any of his employees is located or engaged in work on the Reservation. This does not include "care crew employees"
2. For an existing employer on the Reservation, the goals shall be a percentage of the new employees expected to be employed during the ensuing year by the employer. The employer shall incorporate the goals into his plan for complying with this Section and shall agree in writing to meet those goals.
3. Each employer shall submit a monthly report to the Commission indicating the number of Indians in his work force, how close he is to meeting his goals, all persons hired or fired during the month, the job positions involved, and other information required by the Commission.
59-05-11 CORE CREW REQUIREMENTS
Key, regular, permanent employees and regular, permanent employees may be employed on the project whether or not they are tribal members or local Indians. Prior to commencing work on the Reservation, a prospective covered employer shall identify key, regular, permanent employees and regular, permanent employees.
59-05-12. TRIBAL JOB SKILLS BANK
1. The Commission shall establish and administer a tribal job skills bank to assist the Commission and employers in ~placing Indians in job vacancies, new positions, or any other negotiated positions. An employer may recruit and hire workers from whatever sources are available to him and by whatever process he chooses, provided that he may not hire a non- Indian until he has given the Commission a reasonable time to locate a qualified Indian and the tribal job skills bank has verified that a qualified Indian is unavailable to fill the vacant job position.
2. For purposes of this Section, "reasonable time" shall be defined as follows: For construction jobs, the Commission shall be given at least 48 hours notice to locate and refer a qualified Indian; for all other kinds of employment, the Commission shall have 5 working days to locate and refer a qualified Indian. The Commission may grant a waiver of these time periods upon a showing by the employer that such time periods impose an undue burden upon him. An employer subject to a collective bargaining -agreement with the union shall be exempt from this procedure if the union agrees to place on its referral list all names supplied to it by the Commission. However, if any union fails to meet its obligation to refer Indians to an employer, the Commission may require the employer to accept Indian referrals from sources other than the union.
59-05-13 JOB QUALIFICATIONS, PERSONNEL REQUIREMENTS AND RELIGIOUS ACCOMMODATION
1. Every covered employer is prohibited from using job qualification criteria or personnel requirements which serve as barriers to the employment of Indians and which are not required by business necessity. The Employer shall have the burden of showing that such job qualification or personnel criterion is required by business necessity. If the burden is not met, the employer will be required to eliminate the job qualification or personnel requirements at issue.
2. The employer shall recognize that its operations are taking place within a unique cultural setting within the community of the Sisseton-Wahpeton Sioux Tribe. Every employer shall make a reasonable accommodation to the religious beliefs of Indian workers so as to promote rather than hinder the employment of Indians.
3. If the employer and the Commission are unable to agree upon any matter treated
in this Section, the commission may invoke the hearing procedure provided in~Section
8 of this Code.
59-05-14 COUNSELING AND SUPPORT PROGRAMS
If the employer deems that an employee's performance is such that he or she is in danger of being suspended or terminated, the employer may contact our office for assistance in resolving the problem.
Every covered employer may be required by the Commission to participate in training programs to assist Indians to become qualified in the various job classifications used by the employer. Every employer shall employ the maximum number of Indian trainees or apprentices possible. The ratio of Indian trainees to fully qualified workers shall be set by the Commission after consultation with the employer. For construction projects, the number of Indian trainees shall be no less than the minimum ratio established by the Department of Labor. Every employer with a collective bargaining agreement with a union shall be required to obtain agreement with the union-to establish an advanced journeyman upgrade and apprenticeship program.
59-05-16 LAY-OFFS AND TERMINATIONS
In all layoffs and reductions in force, no Indian worker shall be terminated if a non-Indian worker in the same job classification is still employed. So on as the remaining workers meet the threshold qualifications for the positions involved, termination shall be made as follows: non-Indians first, then non-local Indians regardless of the tribes of which they are members, then local Indians. Further, if an employer lays off workers by crews, all qualified Indian workers shall be transferred to crews to be retained so long as non-Indians in the same job classification are employed elsewhere on the job site.
Every employer shall comply with the preference priorities established in 59-05-04 in considering employees for all promotion opportunities and shall encourage tribal members and local Indians to seek such opportunities. For all supervisory positions filled by anyone other than a local Indian, the employer shall file a report with the Office stating which local Indians, if any, applied for the job, the reasons why they were not given the job, and what efforts were made to inform local Indian employees about the opportunity.
59-05-18 SUMMER STUDENTS
Every employer shall give Indian students preferential consideration for summer student employment. The-employer shall make every effort to promote after school, summer and vacation employment for Indian students.
SECTION SIX - TRIBAL EMPLOYMENT RIGHTS FEE
59-06-01 ASSESSMENT OF FEES
An employment and contracting rights fee is hereby imposed in order to raise revenue for the operation of the Tribal Employment Rights Office and Commission.
59-06-02 CONSTRUCTION EMPLOYERS
1. Every covered employer eligible to do business within the original exterior boundaries of the Lake Traverse Reservation with a construction contract, shall pay a one-time fee of (2%) of the total amount of the contract. The fee shall be imposed upon the total gross receipts including all labor and materials without any deduction for cost of services or labor purchased, amounts paid for interest or discounts, costs of the property sold, cost of materials used, or any expenses whatsoever, nor may any deduction be allowed for losses.
2. The primary liability for the fee imposed by this section shall lie with the prime contractor. A subcontractor shall be subject to the fee on his subcontract only to the extent that the prime contractor has failed to pay the fee on the prime contract under which the subcontract is issued.
3. The fee provided for in this section shall be paid by the contractor prior to commencing work on the Lake Traverse Reservation. However, where good cause is shown, the Director may authorize the contractor to pay said fee in installments over the course of the contract as provided in 59-06-05.
4. The Director shall be responsible for collecting all employment and contracting
rights fees pursuant to the rules and regulations that may be adopted by the
5. All fees shall be made payable by check to the Sisseton-Wahpeton Sioux Tribe and shall be deposited to a special account for the Sisseton-Wahpeton Sioux Tribal Employment Rights Commission.
6. The fee rate imposed upon a covered employer by this section shall not be
increased during the time of construction under the contract or any extension
7. Any contractor who fails to pay the fee imposed by this section shall be subject to the remedial actions provided for in this Code.
59-06-03 OTHER EMPLOYERS
Every covered employer, other than construction contractors, with twenty (20) or more employees working on the Lake Traverse Reservation, or with gross sales on the Lake Traverse Reservation of $100,000 or more, shall pay a quarterly fee of (1%) of his employees quarterly payroll which shall be paid within 30 days after the end of each quarter. This fee shall not apply to education, health, governmental, or nonprofit employers nor to utilities franchised by the Sisseton-Wahpeton Sioux Tribe.
59-06-04 COLLECTION OF FEES PRIOR TO COMMENCING WORK
1. The fee provided for in Section 59-06-02 is due and shall be paid in full by the contractor prior to `commencing work on the Reservation, unless other arrangements are agreed to, in writing by the Director, pursuant to 59-06-05.
3. Said notice shall be accompanied by a formal notice of fees due. However,
failure to receive the notice shall not relieve the contractor of his obligation
to pay the fee.
4. If the contractor fails to pay the fee by the day it commences work on the Reservation, interest shall begin accruing on that date at the rate of 18% per annum, compounded daily. Further, as soon as possible following the day on which the contractor commences work, the Director shall send a notice to the contractor by certified mail, informing him that his payment is overdue and of the consequences that will result if the fee is not paid immediately.
5. If the fee is not paid by the 15th day after the contractor commenced work, the Director shall file a formal charge of noncompliance, and shall schedule a Commission hearing to be held as soon thereafter as the Commission can meet, and shall inform the contractor of the scheduled hearing.
6. At the hearing, to be held whether or not the contractor attends, the Commission
shall determine whether the contractor has failed to comply. If it finds noncompliance,
(a) impose penalties of up to 10% of the amount due; and
(b) petition the Tribal Court to uphold the decision of the Commission and to enforce it
through confiscation proceedings as provided for in Section Ten, Confiscation and Sale.
7. Where the Director or Commission has reasonable cause to believe that an employer will flee the jurisdiction before the procedures set out above can be completed, they may apply any of the procedures provided for in Section Ten, Confiscation and Sale, notwithstanding the above procedures.
59-06-05 COLLECTION OF FEES IN INSTALLMENTS
1. The Director, in his discretion, may, upon receipt of a written request, authorize a contractor to pay the required fee in installments over the course of the contract, when:
(a) the total fee exceeds $10,000; and the contractor demonstrates hardship
or other good
(b) the Director determines that such an arrangement is in the best interest of the Sisseton-Wahpeton Sioux Tribal Indians.
2. The decision whether to authorize an alternative arrangement, shall be in writing, and shall rest solely with the discretion of the Director. It is appealable to the Commission.
3. The contractor shall pay interest, at 12% per annum, compounded daily, on all amounts paid after the day he commences work on the Reservation, when paying under this alternative arrangement. The Director is authorized to terminate any alternative payment arrangement authorized under this Section and to declare such fees immediately due and payable on the day following the due date on which any installment payment is not made.
59-06-06 COLLECTION OF FEES FROM CHANGE ORDERS
1. The fee collected from the contractor pursuant to this Section shall be increased in accordance with any increase in the contract amount as follows:
(b) The Director may authorize the contractor to pay the change order fee in installments as provided in 59-06-05.
SECTION SEVEN - PROCEDURES
If a hearing is requested by the Director, Commission, an individual, an employer, or union, pursuant to this Section, a written notice of hearing shall be given to all parties concerned of the nature of the hearing and the evidence to be presented, and shall advise such parties of their right
to be present at the hearing, to present testimony of witnesses and other evidence, to be represented by counsel at their own expense, and that the Commission may be represented by general counsel for the Tribe.
59-07-02 EMPLOYER COMPLAINT PROCEDURE
If the Director or Commission believes that an employer, contractor, subcontractor, or union has failed to comply with this Code or any rules, regulations or orders of the Commission, it may file a complaint and notify such party of the alleged violations.
59-07-03 INDIVIDUAL COMPLAINT PROCEDURE
If an Indian believes that an employer has failed to comply with this Code or rules, regulations or orders of the Commission, or believes he has been discriminated against by an employer in regard to hiring, promotion, discharge, pay, fringe benefits or other aspects of employment, on the basis of race, color, religion, sex, or national origin, may file a complaint with the Director specifying the alleged violation. If the Director has reason to believe a violation of this Code or regulations issued pursuant to it has occurred, the Director shall notify the covered employer or entity of the alleged violations. However, he may withhold the name(s) of the complaining party if he has reason to believe such party shall be, subject to retaliation.
59-07-04 COMMISSION COMPLAINT PROCEDURE
Any person or entity or representative Of a person or entity, or class thereof, which believes that an action of the office or Commission is in violation of this Code, or any rule, regulation or order of the Commission is illegal or erroneous, may file a complaint with the Director specifying the alleged illegality or error.
1. On his own initiative or pursuant to a complaint, the Director or any Field Compliance Office designated by the Director shall make such public or private investigations within the Lake Traverse Reservation as he or the Commission deems necessary to determine whether any covered employer or other entity has violated any provisions of this Code or any rule or order hereunder, or to aid in prescribing procedures and guidelines hereunder. The Director or his delegate may enter, during business hours, the place of business or employment of any employer for the purpose of such investigations, and may require the covered employer or entity to submit such reports as he deems necessary to monitor compliance with the requirements of this Code or any rule, order, procedure or guideline hereunder.
3. For the purpose of investigations or hearings which, in the opinion of the Director or the Commission, are necessary and proper for the enforcement of this Code, a Commissioner, the Director, or any Field Compliance Officer designated by the Director, may administer oaths or affirmations, subpoena witnesses, take evidence and require the production of books, papers, contracts, agreements or other documents, records or information which the Director or the Commission deems relevant or material to the inquiry.
59-07-06 PROCEDURES FOLLOWING THE FILING OF A COMPLAINT
1. The Director has the power to seek to achieve an informal settlement of any alleged violation of this Code or procedures, guidelines or order issued pursuant to it.
2. The Director has the power to dismiss the complaint..
3. If an informal settlement is not reached, 'then the Director shall issue a formal notice Of alleged violation, which shall also advise the covered employer or entity of his rights to request a compliance hearing.
4. The formal notice shall specify the alleged violation and the steps that must be taken to come into compliance. It shall provide the employer or entity with a deadline time and date to comply.
5. If the party fails or refuses to comply, he may request a hearing before the Commission. If a party fails or refuses to comply and does not request a hearing, the Commission will proceed pursuant to 5
6. The Director may in his discretion require the party requesting the hearing to post a bond with the Commission in an amount sufficient to cover possible monetary damages that may be assessed against the party at the hearing.
7. If the party fails or refuses to post said bond, the Commission may proceed pursuant to 59-07-07. The Director may also petition the BIA-CFR Court for such interim and injunctive relief as is appropriate to protect the rights of the Commission and other parties during the pendency of the complaint and hearing procedures.
8. The compliance hearing shall be conducted by the Commission.
59-07-07 HEARING PROCEDURE
Hearings shall be governed by the following rules of procedure:
1. All parties may present testimony of witnesses and other evidence and may be represented by counsel at their own expense.
2. The Commission may have the advice and assistance at the hearing of general
counsel for the Tribe.
3. The Chairman of the Commission or the Vice-Chairman shall preside. No formal rules of evidence or procedure need be followed, but the Commission shall proceed to ascertain the facts in a reasonable and orderly fashion. No informality in any proceeding, as in the manner of taking testimony, shall invalidate any order, decision, rule or regulation made, approved or confirmed by the Commission.
4. Any matter to be proven must be proven to the satisfaction of the commission by ,a preponderance of the evidence.
5. The hearing may be continued at the discretion of the Commission.
6. At the final close of the hearing, the Commission may take immediate action or take the matter under advisement.
7. If the Commission determines that an alleged violation has occurred, then the Commission may impose sanctions.
8. The Commission shall notify all parties within 30 days after its decision
in the matter.
9. A finding of irreparable harm, such that the Director or the Commission may petition the BIA-CFR Court for injunctive relief, shall be made only upon a showing that damage will occur that cannot be adequately remedied through the payment of monetary damages.
10. Where the party's failure to comply immediately with the Commission's orders may cause irreparable harm, the Commission may move the BIA-CFR Court, and the Court shall grant, such injunctive relief as necessary to preserve the rights of the beneficiaries of this Code, pending the party's appeal or expiration of the time for appeal.
SECTION EIGHT - PENALTIES FOR VIOLATION
59-08-01 PENALTIES FOR VIOLATION
Any employer, contractor, subcontractor or union who violates this Code or rules, regulations or orders of the Commission shall be subject to penalties for such violations, including, but not limited to:
1. Denial of right to commence or continue business inside the Reservation.
2. Suspension of all operations inside the Reservation.
3. Payment of back pay and damages to compensate any injured party.
4. An order to summarily remove employees hired in violation of this Code or rules, regulations and orders of, the Commission:
5. Imposition of monetary civil penalties.
6. Prohibition from engaging in any future operations on the Reservation.
7. An order requiring employment, promotion and training of Indians injured by the violation.
8. An order requiring changes in procedures and policies necessary to eliminate the violation.
9. An order making any other provision deemed by the commission necessary to alleviate, eliminate or compensate for any violation. The maximum civil penalty allowed by Federal law which may be imposed by the Commission is $5,000.00 for each separate violation. Each day during which a violation exists shall constitute a separate violation. The amount of each penalty will be at the discretion of the Commission but shall be no less than $500.00 for each separate violation.
SECTION NINE - APPEALS
1. Any party to a hearing shall have the right to appeal any decision of the
Commission to the BIA-CFR Court.
2. Said appeal must be filed no later than 10 days after the party receives a copy of the Commission's decision. A copy of the appeal will be sent to the Director. The BIA-CFR Court shall uphold the decision of the Commission unless it is demonstrated that the decision of the Commission is arbitrary, capricious or in excess of the authority of the Commission.
3. The written notice of appeal shall:
(a) set forth the order from which appeal is taken;
(b) specify the grounds upon which reversal or modification of order is sought; and
(c) be signed by appellant.
4. The order of the Commission shall abate pending the determination of the
Court However, the Director may petition and the court may order the party requesting
a hearing to post a bond sufficient to cover monetary damages that the Commission
assessed against the party or to assure the party's compliance with other sanctions
or remedial actions imposed by the Commission's order if that order is upheld
by the Court.
.5. If the order of the Commission is reversed or modified, the Court by its mandate shall specifically direct the Commission as to take further action in the matter, including making and entering any order or orders in connection therewith, and the limitations, or conditions to be contained therein.
6. If the Commission's order is upheld on appeal, or if no appeal is sought within 10 days from the date of the party's receipt of the Commission's order, the Commission shall petition the Court and the Court shall grant such orders as are necessary and appropriate to enforce the orders of the Commission and the sanctions imposed by it.
SECTION TEN - CONFISCATION AND SALE
59-10-01 CONFISCATION AND SALE
1. At any stage in the enforcement process, the Commission may petition the
Court to attach and hold sufficient property of the party to secure compliance
or for such other relief as is necessary and appropriate to protect the rights
of the Commission and other affected parties.
2. If the respondent fails to pay monetary damages imposed on it or otherwise fails to comply with an order of the Commission or the Court, the Commission may petition the Court to order the confiscation and sale of respondent's property as is necessary to ensure payment of said outstanding monetary damages, or to otherwise achieve compliance.
3. If the Court finds the petition valid, it shall order Tribal Police to confiscate and hold said property. The Tribal Police shall deliver in person or by certified mail, a notice to the party informing it of the confiscation and of its right to redeem said property by coming into compliance with the order outstanding against it.
4. If, 15 days after confiscation, the party has not come into compliance, the Court shall order the police to sell said property and use the proceeds to pay any outstanding monetary damage s~imposed by the Commission and all costs incurred by the Court and police in the confiscation and sale Any proceeds remaining shall be returned to the party.
SECTION ELEVEN - PUBLICATION OF ORDINANCE
59-11-01 PUBLICATION OF CODE
1. The Commission shall notify all employers of this Code and their obligation
to comply. All bid announcements issued by any Tribal, Federal, State or other
private or public entity shall contain a statement that the successful bidder
will be obligated to comply with this Code and all rules, regulations and orders
of the commission.
2. The Commission shall send a copy of this Code to every employer operating on the Reservation and any amendments or revisions thereto.
SECTION TWELVE - COMPLIANCE BY UNIONS
59-12-01 UNION AGREEMENT REQUIRED
Every union with a collective bargaining agreement with an employer must file a written agreement stating that the union will comply with this Code and the rules, regulations and orders of the Commission. Until such agreement is filed with the Commission, the employer may not commence work on the Reservation.
59-12-02 CONTENTS OF UNION AGREEMENTS
Every union agreement with an employer or filed with the Commission must provide:
1. Indian Preference. The union will give absolute preference to Indians in
job referrals regardless of which union referral list they are on.
2. Cooperation with Commission. The union will cooperate with the Commission in all respects.
3. Registration. The union will establish a mechanism allowing Indians to register for job referral lists by telephone or mail. Training Programs. The union will establish a journeyman upgrade and advanced apprenticeship program. "Blanketing-in" Indians. The union will "blanket-in" all Indians who qualify for journeyman status and wish to join the union.
4. Temporary Work Permits. The union will grant temporary work permits to Indians who do not wish to join the union.
59-12-03 MODEL. UNION AGREEMENT
The Commission will provide a model union agreement for use by all unions who have collective bargaining agreements with any employer.
59-12-04 RECOGNITION OF UNIONS
Nothing herein or any activity by the Commission authorized hereby shall constitute official tribal recognition of any union or tribal endorsement of any union activities on the Reservation. No union activities shall take place without prior approval of the Sisseton-Wahpeton Sioux Tribal Council.
SECTION THIRTEEN - SEVERABILITY
If any clause, sentence, paragraph, section, or part of this code shall, for any reason be adjudicated by any Court competent jurisdiction, to be invalid or unconstitutional, such judgement shall not affect, impair, or invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, paragraph, section, or part thereof directly involved in the controversy in which the judgement shall have been rendered.