CHAPTER 22-1
GENERAL PROVISIONS
22-1-1 Title.
This code may be known and cited as the Employment Code of the Prairie Band Potawatomi Nation.
(Amended by PBP TC No. 2016-422, December 15, 2016)
22-1-2 Preamble.
(A) The Prairie Band Potawatomi Nation is a self-governing, federally recognized Indian Nation deriving its governing authority from its inherent sovereignty.
(B) The Tribal Council of the Prairie Band Potawatomi Nation is authorized by the Nation’s Constitution Article V to: (1) act on administrative matters before it, including the appointment and removal of tribal officials and employees, to contract with individuals, to administer tribal matters in accordance with personnel procedures established by the Tribal Council, to make expenditures from available funds for tribal purposes, including salaries or remuneration of tribal officials or employees, and to delegate any of these powers to subordinate officers, committees or cooperative associates; (2) enact laws or ordinances and take other actions to regulate law and order; and (3) enact laws or ordinances and to take other actions to promote and protect the health, peace, morals, education or welfare of the Nation or its members or to serve any other appropriate governmental or tribal purpose.
(Amended by PBP TC No. 2016-422, December 15, 2016)
22-1-3 Interpretation and Application.
As a guide to the interpretation and application of this Employment Code, the public policy of the Prairie Band Potawatomi Nation is declared to be as follows:
(A) Employment by the tribal government and its enterprises has a significant impact on the wellbeing of the tribal government, its members, community, and Reservation residents. The Nation shall exercise its inherent sovereignty, the right of self-government, over employment matters to the maximum extent practicable in order to protect the sovereignty, sustainability and vitality of tribal self-government, its members, its enterprises and the Reservation. Except as specifically provided in legislation duly adopted by the United States of America made expressly applicable to Indian tribes, or as may be specifically waived hereafter by the Tribal Council or General Council of the Nation, the employment laws or regulations of other governments, and the policies and practices of nontribal enterprises, which conflict with and/or which may be detrimental to the tribal interests expressed herein shall not be binding upon or applicable to the Nation based upon its sovereign, self-government status.
(B) The Nation desires to attract qualified employees, particularly tribal members, to the tribal workforce. It is the desire of the Nation to effectively compete with other employers for personnel who have the abilities and skills necessary to effectively sustain and enhance the Nation’s self-government and to further tribal economic development goals and render quality services to the tribal membership.
(C) Jobs on and near the Reservation are an important resource for tribal members, and tribal members have a right to obtain their share of such opportunities as they become available. Tribal members and other Indians, particularly those on or near Reservations, have unique employment rights as identified herein, and the Nation’s tribal government has the inherent sovereign power to pass laws to implement and enforce those special rights on behalf of tribal members and other Indians. It is of crucial importance to create employment and training opportunities for tribal members and for other Indians, and to eliminate employment discrimination against Indian people. An integral part of attaining this goal is constituted by the structuring of employment and training opportunities so as to provide for the hiring of Indians who are qualified and for the training of Indians in those areas in which there is not a sufficient number of qualified Indians to meet the employment opportunities. The Prairie Band Potawatomi Nation believes it is important to establish an Employment Code in order to optimize the aforementioned rights and powers, to increase employment of tribal members and other Indian workers and to eliminate discrimination against all Indians.
(Amended by PBP TC No. 2016-422, December 15, 2016)
22-1-4 Jurisdiction.
(A) Jurisdiction. This code shall apply to any and all arrangements, formal or informal, written or agreed to orally or by the practice of the parties, in all employment matters relating to work to be performed on the Reservation and the Indian Country of the Prairie Band Potawatomi Nation.
(B) Relation of the Code to Other Laws.
(1) Statutes, Regulations and Agreements with the United States. This code will not be interpreted in such a way as to conflict with statutes, regulations, or other laws of the United States, or agreements with the United States specifically applicable to the subjects of this code for Indian tribes. Where a conflict may appear between this code and any such provision, such statute, regulation or agreement of the United States will govern if it has specific application and if it clearly and expressly is in conflict with the provisions of this code so as to preempt these code provisions.
(2) State Statutes and Laws. This code shall govern and shall preempt the application of all state laws unless the Tribal Council shall expressly decide otherwise by resolution in specific instances. There shall be no implied waiver of this provision and a waiver in one instance shall not be construed to be a waiver of any or all future conflicts.
(3) Other Tribal Laws. To the extent that this code may conflict with other tribal laws or ordinances, the provisions of this code shall govern unless the Tribal Council expressly waives application of the provisions of this code in each specific instance. A waiver in one instance shall not be construed to be a waiver of any or all future conflicts.
(C) Code to Be Liberally Interpreted. This code shall be liberally construed and applied to carry out its purposes and intent of promoting the Nation’s self-government interests in regulating economic activity on the Nation’s Reservation and in maintaining a qualified workforce to achieve the Nation’s governmental objectives.
(D) Miscellaneous Provisions. Should any provision of this code be found to be null, void or contrary to law, such a finding will not affect the validity and enforceability of the remainder hereof.
(Amended by PBP TC No. 2016-422, December 15, 2016)
22-1-5 Definitions.
(A) “De Novo Review” is defined to mean a review of the issues without reference to any prior legal conclusions or assumptions.
(B) “Defined Order” is defined to mean the following order of priority in applying preference:
(1) PBPN tribal member;
(2) Spouse, parent or child of a PBPN tribal member;
(3) Other Indian;
(4) Descendant of a PBPN tribal member.
(C) “Descendant” is defined to mean those in a descending line of birth from a PBPN tribal member, i.e., the biological children, grandchildren, great grandchildren and their children to the remotest degree, of a PBPN tribal member.
(D) “Employer” is defined to mean the Nation’s enterprises and the tribal government including the Gaming Commission and the Judicial Council.
(E) “Employer’s Due Diligence” is defined to mean the employer’s gathering of information and documents to determine whether a candidate for an employment action meets the expressed qualifications for that employment action. Gathering of information may include, but is not limited to, reviewing employment applications or resumes, performing pre-employment testing and background investigations, conducting interviews and reference checks, and checking licensing and certification.
(F) “Employment Action” is defined to mean the action of hiring, transfer, promotion or layoff.
(G) “Hearing Officer” is defined to mean an attorney admitted to the bar of any state or the District of Columbia, who has at least five (5) years of employment law experience.
(H) “Indian” is defined to mean an enrolled adult member of a federally recognized Indian Tribe, Band, or Nation.
(I) “Labor Organization” is defined to mean any organization of employees organized for the purpose of dealing with an employer concerning hours of employment, rates of pay, working conditions, or grievances of any kind relating to employment and desiring to operate within the territorial jurisdiction of the Nation.
(J) “Nation’s Enterprises” is defined to mean any entity that is wholly owned by the Nation including the Prairie Band Entertainment Corporation and the Prairie Band Limited Liability Corporation, and any other entity, corporation, partnership, joint venture, chartered organization, or other business, commercial or nonprofit, in which the Nation directly or indirectly owns at least fifty (50) percent of the equity interest.
(K) “Preference Candidate” is defined to mean a person who is listed in the defined order.
(L) “Preponderance of the Evidence” is defined to mean evidence that, although not sufficient to free the mind wholly from all reasonable doubt, is sufficient to incline a fair and impartial mind to one side of the issue rather than the other.
(M) “Reservation” is defined to mean all Indian Country of or relating to the Prairie Band Potawatomi Nation including the Shabehnay Reservation and any interest hereafter added to the Shabehnay Reservation; and including the Prairie Band Potawatomi Nation Reservation defined in Article 4 of the Treaty with the Potawatomi Nation dated June 17, 1846, 9 Stat. 853, including all lands, islands, waters, roads, or any interests therein, whether in trust, restricted or fee status and notwithstanding the issuance of any patent or right-of-way or other interest in those lands, and such other lands, islands, waters or any interest therein hereafter added.
(N) “Tier 1 Position” is defined to mean the presumptive status of all employer employment positions unless designated as a Tier 2 employment position by an employer.
(O) “Tier 2 Position” is defined to mean an employment position designated by an employer as a Tier 2 position. A Tier 2 position may require a high level of skill, expertise, license, education, credentials, or other qualifications.
(P) “Tribal Government” is defined to mean all elected officials and employees of the Prairie Band Potawatomi Nation government, including, unless otherwise stated, its Judicial Council, Gaming Commission, committees, boards, agencies, departments, and subdivisions or otherwise titled entities but excluding the Nation’s enterprises and their respective boards and employees.
(Q) “Tribal Member” is defined to mean an enrolled adult member of the Prairie Band Potawatomi Nation.
(Amended by PBP TC No. 2016-422, December 15, 2016)
22-1-6 Sovereign Immunity.
Nothing in this code shall be construed as waiving the sovereign powers or immunities of the Prairie Band Potawatomi Nation, any of the Nation’s enterprises or the agents, entities, instrumentalities, employees, or officials, officers or directors of any of them, nor shall anything in this code be construed as imposing any requirement of the National Labor Relations Act on the Nation, its enterprises, agents, entities, instrumentalities, employees, or officials.
(Amended by PBP TC No. 2016-422, December 15, 2016)
22-1-7 Severability.
The provisions of this code are hereby declared to be severable, and if any provision is declared void, invalid, or unenforceable in whole or in part, then that declaration shall not affect the remaining provisions of this code.
(Amended by PBP TC No. 2016-422, December 15, 2016)