TRIBAL EMPLOYMENT RIGHTS ORDINANCE (TERO)
TORRES-MARTINEZ DESERT CAHUILLA INDIANS
ORDINANCE NO. TMORD-00l-97
As Amended February 9, 2013
For the best interests of the Tribe and its people, Tribal members living within or near the boundaries of the Torres Martinez Reservation should be given preference in employment with all enterprises, businesses and projects operated or undertaken on or near the Reservation;
For the Torres-Martinez Desert Cahuilla Indians, by its inherent sovereign authority and in order to increase employment of Tribal members and other Indians and eradicate discrimination against them, may promote and implement the unique employment rights of Indians on or near the boundaries of the Torres-Martinez Dessert Cahuilla Indian Reservation;
For the Torres-Martinez Desert Cahuilla Indians, by its inherent sovereign powers, has the authority to regulate the employment practices of employers operating within the Torres-Martinez Desert Cahuilla Indian Reservation; and
For full realization of preferential treatment of Tribal members and other Indians will require that Tribal members and other Indians overcome existing barriers to employment, be competitive and competent to enter the workforce through adequate training, education and experience, and be protected in their employment so that they may retain the jobs for which they are qualified.
Section 1. Purposes
By means of this Ordinance, the Tribe intends to achieve the following purposes:
To provide employment opportunities for the Tribal workforce;
To provide employment training for Tribal people;
To promote the economic development of the Tribe;
To lessen the dependence of Torres Martinez people on off-Reservation sources of employment, income, goods and services;
To foster the economic self-sufficiency of Tribal families;
To protect the health, safety, jobs and welfare of Tribal workers;
To foster cooperative efforts with employers to assure expanded employment opportunities for the Tribal work force.
Section 3. Establishment and Powers of TERO Commission
Pursuant to authority granted by the Tribal Constitution, the General Council affirms that by this Ordinance it has created the TERO Commission with the full authority to achieve the purposes, and carry out the duties set forth in this Ordinance.
Section 4. Indian and Tribal Preference Requirements in Employment
All employers operating within the Torres-Martinez Desert Cahuilla Indian Reservations shall give preference to qualified Indians in hiring, promotion, training, and all other terms and conditions of employment and to qualified Indian-owned firms in compliance with this Ordinance and any regulations of the TERO Commission, as directed by the TERO Officer. All employers operating near the Reservation are encouraged to extend similar Indian preference employment opportunities and will be encouraged by the TERO Officer to do so.
Consistent with applicable law, all employers on or near the Reservation shall extend preference to qualified Indians in hiring and all terms and conditions of employment in the following order:
1st priority: Torres-Martinez Tribal members
2nd priority: non-member Indians residing in the household of Tribal member
3rd priority: non-member Indians irrespective of residence
If no qualified Indians are available, employers may then look to non-Indians to fill available positions. Where consistent with applicable law, employers shall prefer non-Indian spouses and non-Indians residing in the household of an Indian over others.
The Tribe will promote the principles of Indian preference expressed in this Ordinance as follows:
The Tribe will coordinate with the TERO Officer with respect to its recruitment and hiring of qualified Indian candidates in Tribal operations.
The Tribe will enforce Indian preference in employment through Tribal personnel policies and procedures, and any remedies provided by such policies and procedures.
The Tribe will report to the TERO Commission no less than twice annually on the Tribe’s Indian preference in employment practices. The reports will include, but not be limited to a description of open positions, efforts to recruit qualified Indian candidates, whether an Indian was hired for a position, and if not, a statement of the reasons for not hiring an Indian. The reports will identify areas in which additional training, education or experience would improve the ability of Indians to be hired and retained by the Tribe. The reports will address whether grievances concerning Indian preference were filed under the Tribe’s policies and procedures, and if so, the outcome of such grievances. The reports will respect and preserve the confidentiality of the Tribe’s personnel and candidates for Tribal employment.
The Tribe and its departments, programs, and commercial enterprises will coordinate with the TERO Officer and TERO Commission with respect to preferences for Indian-owned businesses in planning, procurement, and all other aspects of purchases of goods and services.
Section 5. Employers’ Obligations to Extend Preference to Indians When Engaged in Business on or near the Reservation.
The Indian preference requirements contained in this Ordinance are binding on all employers doing business with the Tribe or conducting business within the Reservation.
Section 6. TERO Commission’s Authority in Implementation of Indian and Tribal Preference Requirements
In addition to enforcement of the obligations imposed upon employers set forth in this Ordinance, and in order to insure full implementation of the requirements of this Ordinance, the TERO Commission is authorized to:
Issue permits to those employers who comply with the Ordinance, authorizing them to conduct business on or near the Reservation, and deny permits to those who fail to comply with the Ordinance, denying them the opportunity to conduct business with the Tribe or on or near the Reservation.
Establish and conduct training programs, and identify training programs suitable for Tribal members and other Indians to assist them in acquiring the skills necessary to become qualified for employment. Require employers to establish or participate in such training programs as the Commission deems necessary in order to increase the pool of qualified Indians on the reservation
Establish a Tribal Employment Office (i.e., a hiring hall) and require that no employer subject to this Ordinance may hire a non-Indian until the Tribal Employment Office has certified that no qualified Tribal member or other Indian is available to fill the vacancy.
Direct the TERO Officer to establish a pool of qualified Tribal members and other Indians seeking employment, and require employers to utilize that resource prior to hiring non-Indians for projects subject to this Ordinance.
Prohibit an employer from creating or continuing to utilize criteria which operate as barriers to Indian employment, including but not limited to establishing unnecessary and unrealistic qualification criteria or other personnel requirements that disqualify otherwise qualified Indians.
Require employers to give preference in the award to contracts and subcontracts to Indian-owned (or, where applicable, Tribal member-owned) firms.
Establish programs to provide counseling and support to Indian and tribal member workers to assist them in retaining employment and insure that employers participate in and/or cooperate with such programs.
Coordinate with federal employment rights agencies to eliminate unlawful discrimination against Indians on or near the Torres-Martinez Indian Reservation.
Take such other action as is necessary to achieve the purposes and objectives of this Ordinance.
Section 7. Compliance by Unions
Every employer who has a collective bargaining agreement with one or more unions shall be required to obtain a written agreement from such union(s) stating that the union shall comply with this Ordinance. Until such agreement is filed with TERO officer the employer may not commence work on the reservation.
Section 8. Coordination with Tribe, Tribal Council and other Tribal entities to Insure TERO Compliance.
Section 9. Fees
A TERO fee is assessed for projects within the exterior boundaries of the Reservation. Proceeds from the fee are used to pay for implementation of the TERO program, including the provision of TERO-sponsored job training and education programs for Tribal members and other Indians.
Section 10. Enforcement by the TERO Commission
In implementing this Ordinance, the TERO Commission has the following powers:
To investigate, monitor compliance, and require production of information from employers to insure compliance with TERO permits and Indian preference plans.
To receive and investigate complaints and respond to inquiries concerning compliance.
To issue notices of non-compliance, subpoenas to employers and others, and to compel production of information concerning compliance.
To hold hearings as necessary in the Commission’s discretion to hear and resolve disputes and enforce this Ordinance.
To bring actions in the appropriate Tribal Court to enforce this Ordinance.
Non-compliance with the laws, rules, regulations and guidelines of the Tribe or of this Ordinance may result in one or more of the following sanctions being imposed by the TERO Commission:
Denial or withdrawal of a TERO permit with the consequent denial of the opportunity to do business with the Tribe or on the Reservation.
Rejection or loss of any business license issued by the Tribe such that the employer is denied the opportunity to conduct business on the Reservation.
Civil fines up to 3 times (3x) the amount owed to tribal TERO.
Other remedies as appropriate within the discretion of the TERO Commission and consistent with applicable law.
Any employee, employer, union, person or other entity subject to this Ordinance which retaliates against any worker, employer, union, person or other entity because of the exercise of the person’s or entity’s rights under this Ordinance shall be subject to sanctions.
If disputes arise under this Ordinance and those disputes cannot be resolved by direct discussion, the TERO Officer, TERO Commission, employer, union or individual may request a hearing before the TERO Commission. In response to such a request, the TERO Commission will:
Issue notice of the hearing to all affected parties at least thirty (30) days prior to the hearing;
Convene a hearing to hear testimony, receive other evidence, and hear from each party; and,
At the conclusion of the hearing or within ten (10) working days thereafter, render its decision.
Hearings will be conducted according to the procedures set out in Article VIII of the TERO Commission Bylaws.
Section 11. Appeals.
A party who disagrees with a decision of the TERO Commission may seek review in the appropriate Tribal Court with jurisdiction. Notice of appeal must be filed with the Tribal Court within thirty (30) days of the decision of the TERO Commission.
Section 12. The TERO Officer
The TERO Commission shall employ a TERO Compliance Officer to carry out the day to day functions of the Commission under the Commission’s direction. The TERO Officer, among other things, will work directly with employers to provide information regarding the TERO Ordinance, assist employers in complying with the Ordinance, assist Tribal members and other Indians in securing employment pursuant to the Ordinance, and coordinating with the Tribe and other Tribal entities in promoting Indian preference in employment and the use of Indian-owned employers in Tribal enterprises.
In the event the TERO Officer position is vacant, the Commission shall designate one or more of its members to carry out the day to day functions of the Commission as set forth here.
Section 13. Amendments
This Ordinance may be amended by a majority vote of the General Council.
This Ordinance was reviewed and approved by the Torres Martinez Desert Cahuilla Indians General Council on February 9, 2013 a vote of 19 “for”, 0 "against", and 3 "abstaining".