Presentation Transcript

1. Employment Legal Issues Affecting Indian Country: Human & Economic Rights

   Gabriel S. Galanda Galanda Broadman Swinomish, Washington April 30, 2013
2. Legal Issues TERO as Human Rights Protector TERO as Economic Rights Provider In these ways, TERO Can Afford and Protect Tribal Rights for All
3. What We Can No Longer Afford
4. 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
5. 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
6. 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
7. 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
8. 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
9. 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
10. 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
11. Human Rights: Here’s Why “[We] doubt the wisdom of perpetuating the doctrine. . . . [T]ribal immunity extends beyond what is needed to safeguard tribal self-governance. . . . [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
12. 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?
13. 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
14. 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.”
15. 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
16. 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.”
17. Example: Navajo Human Rights Commission
18. Example: Navajo Human Rights Commission
19. Example: Navajo Human Rights Commission
20. 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”
21. 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
22. TERO as Employment Rights Provider
23. 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
24. 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
25. 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.
26. 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) . . .”
27. 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.”
28. 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
29. TERO as Human Rights Protector TERO as Economic Rights Provider In these ways, TERO Can Afford and Protect Tribal Rights for All
30. Thank You, Northwest TERO Region Gabriel S. Galanda c: 206.300.7801 gabe@galandabroadman.com