When seeking opportunities within Tribal procurement and employment, it is fairly common to find the phrase “Indian Preference Applies”. For businesses and individuals first looking into working within Indian Country, this can be a surprising term. What does this mean? Is this legal?
Indian preference is a unique legal right that tribal members have that entitles them to first consideration at all employment, training, contracting, subcontracting, and business opportunities that exist on, and in some cases, near reservations. There are no federal laws which prohibit Indian Preference. Tribes are exempt from title VII of the Civil Rights Act and several other employment laws. Numerous court cases have upheld this exemption. Court rulings have held that Indian preference is a political preference, not a racial preference, and as such, do not violate the dictates of federal employment law.
A Tribe’s authority to enact and enforce an Indian/Native employment preference law is grounded in its inherent sovereign powers of self-government. This legal doctrine is the most basic principle of Indian Laws and is supported by a host of Supreme Court decisions. These decisions have held that, “Inherent sovereign powers derive from the principle that certain powers do not necessarily come from delegated powers granted by express acts of Congress, but are inherent powers of a limited sovereign which have never been extinguished.” Tribes have a basic relationship with the federal government as sovereign powers. This is recognized in both treaties and Federal statutes. The sovereignty of tribes has been limited from time to time by treaties and Federal legislation; however, what have not been expressly limited remains within tribal sovereignty.
How does one qualify to met Indian preference? As each Tribe is a separate, sovereign nation, there may be different qualifications for each tribe. Typically, enrollment in a Federal (or State) recognized tribe is standard. A tribe may only offer Indian preference to their own tribal members. If no qualified candidates are available, the opportunity may be made to members of other tribes. If there are still no qualified candidates, the opportunity may then be open to general public. In terms of procurement, businesses may need to be a minimum 51% owned and operated by a Native individual. A tribe may require a certification process to verify this (see article on TERO below). Again, it is important to remember that each Tribe is different. It is up to an individual or business to learn what laws may apply within each nation.
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