Should tribes define employment rules through the law?

Yes.  I endorse tribes promulgating employment laws for the following four reasons.

First, tribes exercise sovereignty by defining the relevant rules.  In the employment context, the relevant rules are memorialized by defining employment law, employee handbooks, standard operating procedures and job descriptions.  As discussed below, it all starts with clear employment law which can further be defined by policy and procedure.

Second, by defining the employment rules through the law (and policy) the tribe is leveling the argument with other sovereigns.  If a tribe is challenged by a Department of Labor audit, the tribe is in a better position to argue that its laws apply as opposed to the application of federal employment laws.  The DOL has a long history of arrogantly asserting that its federal employment laws apply as a replacement for tribal employment laws.  Better to argue tribal law against federal law instead of tribal policy versus federal law.

Third, in the application for federal funds, when the agency distributing funds conditions the receipt of those monies on an agreement to follow federal employment laws, the tribe is in a better position to argue that federal employment laws are not a reasonable condition for receipt of the funds since the tribe has employment laws which provide equal to greater benefits than the federal law.

Fourth, when tribes promulgate employment laws it gives tribal council an opportunity to be clear about important goals like preference, whistleblower protection, the exercise of a tribal religion, the definition of harassment and equal rights, cultural leave, bereavement leave and the enhancement of due process.  Council, through the exercise of sovereignty, can uniformly define the rules within the exterior boundaries of the tribe.

Recommendation:  Consider defining the terms and conditions of employment by first promulgating employment laws which reflect the unique aspects of the tribe.

About the Author:

Richard McGee is a lawyer in Minneapolis, Minnesota who focuses his practice on gaming, gaming regulation, tribal employment and litigation in tribal, state and federal courts.  Richard has the privilege of working with tribes and tribal organizations on Human Resources matters including training.  Additionally, tribes ask Richard to address specific topics while incorporating the tribe’s related laws and policies into the sessions.  This is an invitation to engage Richard to produce and facilitate training for your tribe.