Native American Tribes and Employment Law

Tribal Human Resources law, like many areas of Indian Law, is a patchwork of legal sources that can be hard to keep to straight for tribal organizations. Tribes must not only be aware of federal employment laws, but also which federal laws apply to the tribe. The tribe may also have its own tribal employment laws. And the tribe may have also agreed to certain employment standards in intergovernmental compacts.

Many federal employment laws do not apply to tribes

Both Title I of the Americans with Disabilities Act of 1990 and Title VII of the Civil Rights Act of 1964 expressly exclude Indian tribes from the definition of “employer.” Beyond that however, courts may not consistently agree on which federal employment laws apply to tribes. For example, the 10th Circuit has held that the Occupational Safety and Health Act (“OSHA”) does not apply to tribes while the 9th Circuit has held that it does. It is important that tribes understand the federal landscape wherever they are located.

Tribes may have their own employment laws as sovereign governments

As sovereign governments, tribes may have also adopted their own employment laws. These may include the creation of Tribal Employment Rights Offices (“TEROs”) which may enforce a variety of tribal employment laws, namely tribal preference laws. The tribe can also utilize its sovereignty to ensure that its employment law reflects the culture and values of the tribe, for example by declaring tribal holidays for dates of significance for the tribe, providing special leave policies for tribal members exercising their treaty rights, or ensuring tribal members are entitled to breaks to participate in cultural programs or events like language classes.

Tribes may have also agreed to adopt or apply certain labor standards or employment practices in intergovernmental compacts, most often in gaming compacts with their state governments.

Tribes may opt-in to some state employment laws

While state employment law is generally inapplicable to tribes, tribes may have the opportunity to opt-in to certain state law programs if they so choose. In Washington State, Washington tribes may opt-in to the state-run Paid Family and Medical Leave Program or the Washington Cares Fund, which would allow tribal employees to take advantage of paid family and medical leave and long-term care. Tribes may also choose to mirror state laws, either because those laws similarly align with tribal values or to ensure that they remain competitive in offering the rights and resources of state regulated businesses.

Review and update tribal employment laws regularly

With such varied laws applying to tribal organizations, it is important that the tribe’s policies are regularly reviewed and updated to ensure that they are in compliance with all applicable laws. Tribal Human Resources departments should know where to find their tribe’s laws and feel confident that their written policies comply with the applicable federal laws.

If your human resources department or tribal government has any questions about human resources law for tribal governments or would like a review and refresh of tribal human resources policy, the Indian law team at mctlaw is here to help.

Our team of experienced Indian Law attorneys can help with matters like: 

Content Reviewed by Kehl Van Winkle – Indian Law

Headshot of Kehl Van Winkle Indian Law Attorney

Kehl Van Winkle is an attorney at mctlaw based in the Seattle, WA office. His legal practice focuses on Indian Law. Mr. Van Winkle earned his Juris Doctor degree from Lewis & Clark Law School in Portland, Oregon. Mr. Van Winkle worked as an in-house attorney for the Sauk-Suiattle Indian Tribe where he represented the Tribe in a variety of economic development projects, including the opening of a casino and a marijuana dispensary. He also represented the Tribe in State and Tribal Court on Indian Child Welfare Act cases and served as the prosecuting attorney for the Tribe in Tribal Court. 

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