Implications of Permitting and Development in Indian Country

5th Annual Construction in Indian Country International Conference

Connie Sue Martin

Bullivant Houser Bailey PC

Seattle, Washington

How are projects in Indian Country different?• Tribal Sovereignty

• Regulatory Authority over Reservation Land

• Application of Labor and Employment Laws

How are projects in Indian Country different?• Department of Interior Review and

Approval of Some Contracts

• Dispute Resolution

• Enforcement and Collection of Judgments

Tribal Sovereignty

• Tribes occupy unique and distinctive political and legal status – Separate, sovereign nations– Inherent authority to regulate members and

territory

Tribal Sovereignty• Tribes occupy unique and distinctive

political and legal status – Congress retains unlimited and absolute

power over Tribes– Exist as dependent wards subject to

sovereign guardianship of U.S. – Limits on Tribal regulatory authority

Tribal Sovereignty• Federal government holds title to

significant portions of Reservation lands, in trust for the benefit of the Tribe– Limits Tribe’s authority to sell, mortgage or lease

Trust lands for a period exceeding 25 years– Creates fiduciary obligation owed by the federal

government to the Tribe to protect or enhance Tribal assets (economic, natural, human or cultural)

Tribal Regulatory Authority

• Tribes have criminal and civil jurisdiction over Tribal members on the Reservation

• Tribes have civil jurisdiction over Trust lands and lands held in fee by Tribal members

Tribal Regulatory Authority

• Tribes may have civil jurisdiction over non-members on the Reservation and fee land owned by non-members (contractual relationship, or matters affecting Tribal health, welfare, and sovereignty) – the Montana test

Tribal Regulatory Authority• Zoning

– States cannot regulate the use of Trust property inconsistent with federal treaty, statute or agreement

– Tribal trust land not subject to state or local zoning regulations

– Many Tribes have adopted Tribal zoning ordinances, comprehensive systems of land use regulations and building and development permitting

Environmental Protection• Sources of Tribal authority:

– Inherent authority to exercise sovereign powers to protect health and welfare of Tribal members

– Treaties, federal statutes and executive orders reserving rights of Tribes in lands, waters and natural resources

– Delegation of federal authority under environmental statutes such as CWA, CAA, CERCLA

Environmental Protection• Tribes afforded “Treatment as State”

authority may implement and enforce federal environmental statutes

• Tribes may adopt and enforce Tribal environmental statutes

• Individuals/entities doing business on Reservation must be aware of and comply with applicable Tribal codes, ordinances and regulations

Tribal Environmental Ordinances

• 1984 EPA Indian Policy – Recognition of tribal governments as entities

with primary authority for setting standards, making environmental policy decisions, and managing programs for reservations

Tribal Environmental Ordinances

• Tribal Superfund Ordinances

• Tribal Environmental Protection Ordinances

• Tribal Air Quality Standards

• Tribal Water Quality Standards

Labor and Employment Laws

• Courts generally reluctant to apply federal statutes that regulate terms and conditions of employment unless statutes expressly address and include Tribes

• Two statutes expressly exclude Tribes from coverage– Title VII of the Civil Rights Act of 1964– Title I of the Americans with Disabilities Act

Labor and Employment Laws• State Workers’ Compensation Laws

– 40 U.S.C. § 3172 authorizes application of workers’ comp laws to federal lands and premises, including Tribal trust and Reservation lands

Labor and Employment Laws• State Workers’ Compensation Laws

– 40 U.S.C. § 3172 does not abrogate Tribal sovereignty; state workers comp laws do not apply to Tribal employers’ on-Reservation businesses unless employer consents

– Non-Indian employers in business with Tribes may be exempt from state workers’ comp laws

Labor and Employment Laws• Occupational Safety and Health Act

– Statute of general applicability, broad remedial purpose designed to "assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources ...."

– Split of authority regarding applicability to Tribes• 8th & 10th Circuits: OSHA does not apply• 2nd, 7th & 9th Circuits: OSHA does apply

Labor and Employment Laws• Fair Labor Standards Act

– Establishes minimum wages and requires employers to pay time and a half for overtime work for covered employees

– Courts have held Tribal businesses generally not exempt from FLSA, unless employees carry out Tribal governmental functions (e.g., Tribal law enforcement personnel)

Labor and Employment Laws• National Labor Relations Act

– Guarantees workers the right to join unions and protects workers from unfair labor practices

– Until 2004, did not apply to Tribes, could adopt and enforce right-to-work ordinances precluding union membership as condition of employment

Labor and Employment Laws• National Labor Relations Act

– In San Miguel Indian Bingo & Casino case (5/28/04), NLRB reversed 30 years of precedent and held that NLRA applied to Tribally-owned commercial enterprises

– Upheld by the D.C. Circuit [475 F.3d 1306 (2/9/07)]

Labor and Employment Laws• San Miguel adopted new test for determining

applicability to employment practices of Tribes:– Tribes are not exempt from the NLRA (location of

enterprise not relevant)– NLRA is a statute of general applicability

(commercial activities of Tribes not vital to self-governance or essential attribute of sovereignty)

– No general rule, must be determined on case-by-case basis (balancing test)

Labor and Employment Laws

• Under “Indian preference exemption” of Title VII of Civil Rights Act of 1964, employers must select qualified Indian applicants for job vacancies to the exclusion of any qualified non-Indian applicants

Labor and Employment Laws• Preference for members of federally-

recognized Indian Tribes has been upheld by U.S. Supreme Court as a political, rather than a racial distinction

• Contracts with Tribes may include Indian preference language

DOI Review and Approval of Contracts• From 1871 - 2000 all contracts involving

payments by Tribes for services related to their lands required Secretarial approval; without approval, contracts null and void

• Statute and rules adopted in 2000 limit approvals required, identify types of contracts and agreements exempt from approval requirement

DOI Review and Approval of Contracts• Exemptions:

– Leases, rights-of-way, other documents conveying a present interest in Tribal land

– Contracts or leases conveying temporary use rights assigned by Tribes to Tribal members

DOI Review and Approval of Contracts

• Exemptions:– Contracts and agreements that do not convey

exclusive or nearly exclusive proprietary control over Tribal lands for > 7 years (e.g., construction contracts, contracts for services, bonds, loans, and security interests in personal property)

Dispute Resolution• Tribal Sovereign Immunity

– Can the Tribe be sued?

• Forum– If the Tribe can be sued, in which tribunal?

• Enforcement and Collection of Judgments– If a judgment is entered against the Tribe, how

may it be enforced?

Dispute Resolution• Sovereign Immunity

– As sovereigns, Tribes and Tribal officials acting in scope of authority enjoy immunity from non-consensual suit in same manner as state and federal governments

– Tribal sovereign immunity extends to Tribe’s commercial and proprietary activities, making it broader than with other governments

Dispute Resolution• Sovereign Immunity

– Congress may waive Tribal immunity by statute– Tribe may waive sovereign immunity through

ordinance or contract– To be effective, waiver must be an official act

that clearly and unequivocally expresses consent to suit

Dispute Resolution• Forum

– State courts have no jurisdiction over claims brought by non-Indians against Indians for claims arising in Indian Country

– Tribal courts have broad authority to hear civil disputes

Dispute Resolution• Forum

– Federal courts require the exhaustion of Tribal remedies before hearing merits of a case brought in Tribal forum, comity requires district court to defer to Tribal court’s determination of jurisdiction

Dispute Resolution

• Tribes or Tribal members may choose to submit to jurisdiction of particular forum– Tribal plaintiff may sue non-Indian defendant in

state or federal court– Some Tribal codes require suits against non-

Indian defendants to be brought in state court– Tribes or Tribal members may agree in contract to

a particular forum (e.g., state court, AAA arbitration)

Enforcement and Collection of Judgments

• Judgments made by Tribal courts subject to Tribal laws regarding enforcement and collection

• Enforcement of state-court judgements on-Reservation subject to Tribal processes, state processes off-Reservation (assuming jurisdiction)

Enforcement and Collection of Judgments• State courts vary in their recognition

of Tribal court judgments for execution off-Reservation

• Federal law prevents enforcement of state or Tribal court judgments against trust property

Considerations for the Construction Professional• Determine applicability of state and

federal laws to project– Zoning– Environmental protection– Labor and Employment laws– Requirements for Indian preferences

Considerations for the Construction Professional• Determine exemption from DOI review and

approval• Determine ability to secure Tribal assets for

payment

Considerations for the Construction Professional

• Contractual protections for non-Indian business– Clear and unequivocal waiver of sovereign

immunity– Choice of forum (state court, arbitration)

• Determine availability of assets for collection of judgments

Implications of Permitting and Development in Indian Country

5th Annual Construction in Indian Country International Conference

Connie Sue Martin

Bullivant Houser Bailey PC

Seattle, Washington