Transcript Yakama Cigarette Compact Negotiations Presentation to

Employment Legal Issues
Affecting Indian Country:
Human & Economic Rights
Gabriel S. Galanda
Galanda Broadman
Swinomish, Washington
April 30, 2013
Legal Issues
TERO as Human Rights Protector
 TERO as Economic Rights Provider


In these ways, TERO Can Afford and
Protect Tribal Rights for All
What We Can No Longer Afford
Home > News > Headlines Print Subscribe
Sauk-­Suiattle Tribe accused of going after non-­Indian
employees
WEDNESDAY, MARCH 13, 2013
Filed Under: Law More on: discrimination, employment, immunity, sauk suiattle, tribal courts,
washington
Tweet Share A lawsuit that accuses the Sauk-­Suiattle Tribe of Washington of
discriminating against non-­Indian employees is pending in tribal court.
Like
The tribal council fired 11 non-­Indian employees at a meeting in June 2011.
Eight of them filed a lawsuit in January 2012 and beat back a motion to
dismiss that the tribe filed based on sovereign immunity.
More
Loca
Fed
Gam
The
Late
Tim
Holo
Wou
Cha
grou
(4/2
Nat
uran
(4/2
The tribe is appealing the decision and a hearing is scheduled for April 2, The Mar
Seattle Weekly reported. If the lawsuit is dismissed, the plaintiffs say they
quic
will contact federal agencies in hopes of forcing the tribe to adhere to federal prob
employment discrimination laws.
Sec
Sen
Two non-­Indian employees were terminated at a later date say they are
Com
considering lawsuits.
Stev
Get the Story:
surf
Storming the Sovereign Gates (The Seattle Weekly 3/13)
disp
Human Rights




TERO’s must help elevate Tribal discourse and
behavior from one of merely employment rights or
Indian preference, to one of universal human rights
Human rights: “basic standards without which
people cannot live in dignity as human beings”
Employment is a universal human right; without it,
people lack dignity as human beings
TERO’s must help ensure dignity to all people
employed in Indian Country – to both tribal citizens
and non-Indian persons alike
Human Rights: Here’s Why
“Public outcry over human rights abuses also threatens to
diminish relationships between tribes and their surrounding
communities.”
-- “Indian Tribes and Human Rights Accountability,”
Professor Winona Singel
Human Rights: Here’s Why
“Interdependence between tribes and the non-Indian world is
a critical facet of everyday life within Indian country.”
-- “Indian Tribes and Human Rights Accountability,”
Professor Winona Singel
Human Rights: Here’s Why
“Tribal intergovernmental relationships with local units of
government and state and federal agencies are essential for a
wide array of government services, from effective law
enforcement to the provision of human services to the
management of natural resources in Indian country.”
-- “Indian Tribes and Human Rights Accountability,”
Professor Winona Singel
Human Rights: Here’s Why
“Furthermore, tribal economic interests depend upon
maintaining healthy relationships in commercial dealings.
Each of these relationships has the potential to suffer if a tribe
gains notoriety for human rights abuses.”
-- “Indian Tribes and Human Rights Accountability,”
Professor Winona Singel
Human Rights: Here’s Also Why
“Furthermore, tribal economic interests depend upon
maintaining healthy relationships in commercial dealings.
Each of these relationships has the potential to suffer if a tribe
gains notoriety for human rights abuses.”
-- “Indian Tribes and Human Rights Accountability,”
Professor Winona Singel
Human Rights: Here’s Why
“Tribal
immunity is “divorced from the realities of the
modern world.”
“[H]opefully
[tribes] will eventually conclude that this
litigation tactic [of asserting sovereign immunity] is not the
best policy to promote a profitable business.” .”
-- Non-Indian Judges
Human Rights: Here’s Why



“[We] doubt the wisdom of perpetuating the doctrine. . . . [T]ribal
immunity extends beyond what is needed to safeguard tribal selfgovernance. . . . [as] tribes take part in the Nation’s commerce . . . ski
resorts, gambling, and sales of cigarettes . . .
“[I]mmunity can harm those who are unaware that they are dealing
with a tribe, who do not know of tribal immunity, or who have no
choice in the matter, as in the case of tort victims.
“These considerations might suggest a need to abrogate tribal
immunity, at least as an overarching rule. . . . We decline to draw this
distinction in this case, as we defer to the role Congress may wish to
exercise in this important judgment.”
-- U.S. Supreme Court,
Kiowa Tribe of Oklahoma v. Manufacturing Technologies
Human Rights: Put Bluntly

There can be no more:




“Fire all of the white people . . . [so-and-so’s] relatives . . . [the
whistleblower].”
“Let’s force/freeze [so-and-so] out.”
“We’re sovereign…”
Why?



Because among other things we end up with a “second hand”
workforce; with employees who can’t work anywhere else; who
have no choice but to work in Indian Country
The Human Resource is not a disposable commodity; it should be
nurtured like we care for the natural resource
We don’t allow a “second hand” natural resource; why should we
allow a “second hand” human resource?
TERO’s as Sovereignty Reformers

Vine Deloria, Jr. (1998):




“Today the term [sovereignty] is used by everyone to indicate
almost every idea that they want to promote, and really has
no meaning.”
“the definition of sovereignty covers a multitude of sins,
having lost its political moorings, and now is adrift on the
currents of individual fancy”
It is time for “sovereignty” to be used in the promotion
and fulfillment of human rights
TERO’s can play a pivotal role in helping interject a new,
“sin”-free sovereignty into the Tribal workplace
Considering Employment as Human Right


International Covenant on Economic, Social and Cultural Rights, as
signed (but not yet ratified) by the United States
Article 6:



“Recognizing that, in accordance with the Universal Declaration of Human Rights,
the ideal of free human beings enjoying freedom from fear and want can only be
achieved if conditions are created whereby everyone may enjoy his economic, social
and cultural rights, as well as his civil and political rights,
“recognize[s] the right to work, which includes the right of everyone to the
opportunity to gain his living by work which he freely chooses or accepts, and will
take appropriate steps to safeguard this right.
“The steps to be taken by a State Party to the present Covenant to achieve the full
realization of this right shall include . . . policies and techniques to achieve steady
economic, social and cultural development and full and productive employment
under conditions safeguarding fundamental . . .freedoms to the individual.”
Considering Employment as Human Right

The United Nations Declaration on the Rights of Indigenous Peoples, as
endorsed by President Barack Obama
 Preamble:
 “Acknowledging . . . the right to self-determination of all peoples, by
virtue of which they freely determine their political status and freely
pursue their economic, social and cultural development.”
 “Affirming further that all doctrines, policies and practices based on
or advocating superiority of peoples or individuals on the basis of
national origin or racial, religious, ethnic or cultural differences are
racist, scientifically false, legally invalid, morally condemnable and
socially unjust”
 There can be no double standard(s) in Indian Country
Considering Employment as Human Right
& TERO as Economic Institution

The United Nations Declaration on the Rights of Indigenous Peoples:



Article 3: “Indigenous peoples have the right to self-determination. By virtue of
that right they freely determine their political status and freely pursue their
economic, social and cultural development.”
Article 5: “ . . . the right to maintain and strengthen their distinct political, legal,
economic, social and cultural institutions . . .”
Article 21:

. . . the right, without discrimination, to the improvement of their
economic and social conditions, including, inter alia, in the areas of
education, employment, vocational training and retraining, housing, sanitation,
health and social security.”
 “[Nations] shall take effective measures and, where appropriate, special
measures to ensure continuing improvement of their economic and social
conditions.”
Example: Navajo Human Rights
Commission
Home
About Us
News Desk
NNHRC's Work
Campaigns
United Nations
Multimedia
Contact Us
"To protect and promote the human rights of Navajo Nation citizens by advocating human equality at the local, state, national and international
levels based on the Diné principles of Sa’a Naaghai Bik’e Hozhoo, Hashkéejí, Hózhóójí and K’é.”
*** The Diné principles translate to being resilient, content, disciplined and maintaining peaceful relationships with all creation.
“The Navajo Nation Human Rights Commission shall serve as a forum to provide information and education, with the intention of empowering
Navajo Nation citizens on human rights.”
“The Navajo Nation Human Rights Commission commits to honor the Diné guiding principles of yínídílyinee and álílee k’ehgo and to be guided by
the Diné principles of Sa’a Naaghai Bik’e Hozhoo, Hashkéejí, Hózhóójí and K’é.
*** The Diné grounding principles translate to being humble and to preserve and honor our beliefs.
4/29/13
Plan of Operation
Example: Navajo Human Rights
Commission
Home
About Us
News Desk
NNHRC's Work
Campaigns
United Nations
Multimedia
Contact Us
I. ESTABLISHMENT
Pursuant to 2 N.N.C. § 920-­924, the Navajo Nation Rights Commission is established within the Legislative Branch of the Navajo Nation
government.
II. PURPOSE
It is the purpose of the Commission to:
A. Conduct public hearings in/near border towns to assess the state-­of-­affairs between Navajos and non-­Navajos.
B. Investigate written complaints involving discrimination of Navajo citizens.
C. Network with local, state, national and international groups and advocate for recognition of Navajo human rights.
D. Educate the public about human rights and the Navajo Nation's intolerance of human rights violations.
III. RESPONSIBILITIES AND AUTHORITY
A. The Commission shall have the responsibility and authority necessary to carryout its plan of operation consistent with applicable laws of
the Navajo Nation.
B. The Commission shall have the specific responsibility and authoritites enumerated below:
1. To hire and supervise an Executive Director of the Commission in accordance with the Navajo Nation Personnel Policies Manual.
2. To assist with investigations and conduct hearing for recommendations involving discrimination of Navajo Nation citizens.
3. To serve as the primary Navajo Nation entity for issues involving race relations of the Navajo Nation, subjects to applicable laws.
4/29/13
Example: Navajo Human Rights
Commission
Plan of Operation
Home
About Us
News Desk
NNHRC's Work
Campaigns
United Nations
Multimedia
Contact Us
III. RESPONSIBILITIES AND AUTHORITY
A. The Commission shall have the responsibility and authority necessary to carryout its plan of operation consistent with applicable laws of
the Navajo Nation.
B. The Commission shall have the specific responsibility and authoritites enumerated below:
1. To hire and supervise an Executive Director of the Commission in accordance with the Navajo Nation Personnel Policies Manual.
2. To assist with investigations and conduct hearing for recommendations involving discrimination of Navajo Nation citizens.
3. To serve as the primary Navajo Nation entity for issues involving race relations of the Navajo Nation, subjects to applicable laws.
4. To establish effective relationships with local, national and international human rights organizations.
5. To request and obtain information from citizens of the Navajo Nation with respect to discriminatory actions and the violation of
human rights.
6. To subpoena documents and witnesses and compel their attendance to testify before the Commission, subject to applicable laws
and principles of due process.
IV. STAFFING AND ORGANIZATION
A. STAFFING
There is established the position of Executive Director of the Navajo Human Rights Commission. The Executive Director of the Office
of the Human Rights Commission shall be under the general direction of the Commission, subject to the Navajo Nation Personnel
Policies Manual. The Executive Director shall be authorized to oversee the daily operations of the Commission, coordinate hearings,
analyze data, write reports, and submit his/her findings to the Commisssioners, the Intergovernmental Relations Committee, and the
TERO as Human Rights Protector

When you go home, consider:








Broadening your focus from, i.e., Indian preference, to Human Rights
The United Nations Declaration on the Rights of Indigenous Peoples and other
international laws
The Navajo Nation Human Rights Commission and other tribal human rights laws
Your current legislative authority via your Tribe’s TERO law and your tribes’ other
human or employment rights laws
Amending your TERO regulations or policies to embrace and import the human
right of self-determination through employment without discrimination
Proposing legislation to your Tribal Council to embrace and import the human
right of self-determination through employment without discrimination
Whether, at a minimum, your Tribe guarantees employment rights with critically
needed procedural opportunities for legal redress – a human right to be sure
How else your Tribe can ensure all employees – Indian and non-Indian alike –
“basic standards without which people cannot live in dignity as human beings”
TERO as Economic Rights Provider





Indian Country lacks a private or small business sector; by comparison:
small businesses provide half of the jobs in the United States
The only real sources of jobs are: the Tribe and the Casino
The resulting void in professional opportunity threatens Indian
Country’s future
“Small business activity has a tremendous psychological and emotional
impact on reservation people, particularly reservation youth. When they
see businesses sprouting up, they see hope for the future”(Rebuilding
Native Nations) – the converse is true too
Without a vibrant Indian private sector, Native professional job
opportunity will continue to be lost; the “Indian brain drain” – the
leaking of tribal minds from Indian Country – will continue
TERO as Employment Rights Provider
TERO as Employment Provider


In other words, without a prosperous Indian private sector, money that
flow onto the reservation will continue to flow right back off of the
reservation, into non-tribal economies; and so will the jobs
Instead, we want and need to enjoy the “multiplier effect”




The notion that an initial infusion of monetary spending leads to increased
consumption spending (and jobs), and in turn an increase in national income (and
jobs) that is greater than the initial amount of spending (and employment)
TERO is complicit in the tribal economic “leaking” insofar as it is only
focused on Tribal and Casino (public sector) employment
TERO’s can do much more to help create on-reservation jobs by
helping establish and grow a tribal private/small business sector
TERO’s can help reverse the leaking and instead multiply on-reservation
jobs and all of the associated tribal economic advantages
So How Do We Help Stop the Leaking?







It’s easy: for starters. Buy Indian – walk the walk; truly Buy Indian
Interior has a Buy Indian Act, requiring it to purchase “the products of
Indian industry . . . in open market.” 25 U.S.C. 47.
Likewise, each and every Tribe should have an enforceable Tribal law
requiring the Tribe and all of its enterprises to look first and foremost to
the tribal (or local) private sector for goods or services
Imagine if the outsourced operational expenses for the $26 billion Indian
gaming industry were dedicated to Indian industry!
The catch: Indian small businesses must stand ready, willing and able to
deliver those goods and services just like non-Indian businesses do
With deliberate thought and care, and some patience, we will get there
TERO’s can start planting the seeds for a tribal private sector
TERO: Buying Indian
50.104. Hoopa Tribal and Private Sector Business Policy
“The Tribe recognizes that a strong Reservation economy must include
both tribal and private sector development.
“It is the policy of the Tribal Council to promote both tribal and
private sector development within the exterior boundaries of the
Reservation and elsewhere within the jurisdiction of the Tribe.
“It shall be the policy of the Tribe to interpret laws, policies,
regulations, procedures, etc., in a manner that facilitates the
development and promotion of businesses on the Reservation to the
greatest commercial potential possible.
TERO: Buying Indian
50.104. Hoopa Tribal and Private Sector Business Policy
“It is the policy of the Tribal Council that, to the greatest extent
feasible, and without waiving authorities over such business activities,
the Hoopa Tribal Government, its entities and its employees, while
conducting affairs under the authorities of such offices shall not
knowingly and unnecessarily interfere, obstruct, hinder, nor
negatively impact private sector business(es) . . .”
TERO: Buying Indian
50.104. Hoopa Tribal and Private Sector Business Policy
“It is the policy that Hoopa Tribal Governmental purchasing
power . . . be used to support local businesses and that every effort
be made by Tribal departments to purchase from local vendors
and businesses. When comparing the cost for non-local purchases, all
costs associated with a non-local purchase are to be taken into
consideration, including mileage, wages, per diem, taxes and freight. In
addition, written documentation must be submitted along with a request
for non-local purchases which explain why it is not feasible to make
such purchase(s) locally.”
TERO as Economic Rights Provider

When you go home, consider:







Broadening your focus from, i.e., Indian employment preference, to Buying Indian
The Department of the Interior’s Buy Indian Act
The Hoopa Tribal and Private Sector Business Policy
Your current legislative authority via your Tribe’s TERO law and your tribes’ other
human or employment rights laws
Amending your TERO regulations or policies to embrace the tribal private/small
business sector and import the ideal of truly buying Indian
Proposing legislation to your Tribal Council to embrace the tribal private/small
business sector and mandating buying Indian (or local)
How else your Tribe can create a vibrant tribal private/small business sector to
avoid leaking economies and the Indian brain drain
TERO as Human Rights Protector
 TERO as Economic Rights Provider


In these ways, TERO Can Afford and
Protect Tribal Rights for All
Thank You, Northwest TERO
Region
Gabriel S. Galanda
c: 206.300.7801
[email protected]