Chapter 3.24R TRIBAL EMPLOYMENT RIGHTS -- INDIAN PREFERENCE REGULATIONS

The following regulations are issued pursuant to the authority granted to the Puyallup Tribe of Indians Employment Rights Office (hereinafter “TERO”) by the Puyallup Tribe of Indians Employment Rights Code (Chapter 3.24 PTC), which requires the preferential employment of Indians and Indian-owned firms by all contract-awarding entities and employers operating on lands held in trust for Indians or the Puyallup Indian Tribe within the exterior boundaries of the Puyallup Indian Reservation and on Tribally owned trust lands located elsewhere. [Res. 061293 (12/06/93) § 1.1]

3.24R.020 Dissemination.

The obligation of all employers to comply with Tribal employment rights requirements shall be made known to all existing and future employers. All bid announcements issued by any Tribal, federal, state or other private or public entity shall contain a statement that the successful bidder shall comply with these regulations and that a bidder may contact the TERO to obtain additional information. Those Tribal and other offices responsible for issuing business permits for the Reservation or otherwise engaged in activities involving contact with prospective employers on the Reservation shall be responsible for informing such prospective employers of these regulations. [Res. 061293 (12/06/93) § 1.2]

3.24R.030 Definitions.

(a) “Commercial enterprise” means any activity by the Puyallup Tribe of Indians of the federal or state governments that is not a traditional government function as defined by the Internal Revenue Service.

(b) “Covered employer” means any employer employing two or more employees who, during any 20-day period, work, cumulatively, 16 or more hours work on trust lands within the exterior boundaries of the Puyallup Indian Reservation.

(d) “Employer” means any person, partnership, corporation or other entity that employs, for remuneration, two or more employees.

(e) “Entity” means any person, partnership, corporation, enterprise, or other natural or artificial person or organization. The term “entity” shall be defined to ensure coverage of all employment and contract activities within the Tribe’s jurisdiction.

(f) “Indian” means any member of a federally recognized Tribe.

(g) “Local Indian” means a member of a federally recognized Tribe who has resided on or near the Puyallup Indian Reservation for a period of not less than 60 days before the start of the project at issue.

(h) “Near the Reservation” means a location which is within a reasonable daily commuting distance of the job site at issue.

(i) “Nonlocal Indian” means a member of a federally recognized tribe who does not live on or near the Puyallup Indian Reservation.

(j) “Trust land(s)” means land held in trust by the United States government for the use and benefit of Indians or an Indian tribe. [Res. 061293 (12/06/93) § 1.3]

3.24R.040 Coverage.

(a) Employment. These regulations shall apply to all covered employers. They shall not apply to employees of the Puyallup Indian Tribe, the federal government, the Washington State government, or the subdivisions of such government. These regulations shall apply to all contractors or grantees of such governments and to all commercial enterprises operated by such governments.

(b) Contracting and Subcontracting. Contracts directly awarded by the Puyallup Tribal Council or the federal government are not subject to these regulations.

The contract and subcontract preference requirements of these regulations shall apply to an entity awarding one or more contracts and/or subcontract(s) for supplies, services, labor or materials in a total amount which exceeds $20,000; provided, the majority of the work or the majority of the supplies or materials shall be expended on trust lands.

The subcontracts awarded by entities which have received contracts from the Tribe or federal government are subject to these regulations.

A contract awarded by a commercial enterprise of the Puyallup Indian Tribe is also subject to these regulations.

(c) Employment Rights Fee. An employment rights fee of two and one-half percent of the contract amount shall be assessed against any covered employers. [Res. 061293 (12/06/93) § 1.4]

3.24R.050 Submission of compliance plans.

Each entity, contractor, or subcontractor, intending to engage in business activity on or near the Reservation, prior to the time it commences work on or near the Reservation, shall submit a contracting training plan to the TERO. No new employer or entity shall commence work on or near the Reservation until it has met with the TERO and developed an acceptable plan for implementing its obligations under these regulations.

(a) Employment and Training Plan. The employment and training plan shall show the number of man-hours, by craft and skill category, anticipated to complete the contract or project. The employer shall identify those persons to be approved as permanent and key employees (see PTC 3.24R.060(b)) and shall provide sufficient data to verify the status of those employees.

The plan shall also describe how the employer intends to participate in the Tribe’s training programs.

(b) Contracting and Subcontracting Plan. The contracting and subcontracting plan shall indicate all contracts and subcontracts that will be entered into by an entity and the projected dollar amounts thereof.

If the entity has awarded a firm contract or subcontract work, it shall list the name of that firm and indicate whether it is a firm certified by the TERO as Indian preference-eligible. If the firm has not been certified, the entity shall further indicate why a technically qualified certified firm registered with the TERO, if any, was not selected. The plan shall also indicate how the entity intends to comply with Subchapter 3 of these regulations when awarding all contracts and subcontracts not yet awarded at the time the plan is submitted. [Res. 061293 (12/06/93) § 1.5]

Subchapter 2. Indian Preference in Employment and Training

3.24R.060 Hiring.

(a) Tribal Hiring Hall. An employer may recruit and hire workers from whatever sources available and by whatever process chosen; provided, that (except as provided in subsection (b) of this section) the employer may not employ a nonlocal Indian or a non-Indian until the TERO is given 48 hours notice to locate and refer a qualified local Indian. In those instances where a worker is needed in less than 48 hours, the employer may request this requirement be waived. Such waiver shall be granted, provided the employer can demonstrate that a need exists.

When an employer or the TERO cannot locate a qualified local Indian, a best faith effort shall be made to locate, refer and hire an Indian who does not qualify as a local Indian but who is a member of a federally recognized tribe; provided, that where not prohibited by federal law, first preference shall be given to members of the Puyallup Tribe, then if no qualified Puyallup Tribal members are available, second preference will be given to other Indians.

(b) Permanent and Key Employees. Prior to commencing work on or near the Puyallup Indian Reservation, a prospective employer and all subcontractors shall identify key and permanent employees. Such employees may be employed on the project whether or not they are local Indians. A “permanent employee” is defined as one who remains on the employer’s or subcontractor’s annual payroll, or is an owner of the firm. A “key employee” means a top supervisory employee or an employee who performs a critical function such that an employer would risk likely financial damage or loss if that task were assigned to a person unknown to the employer. The fact that an employee had worked for the employer on previous projects shall not qualify that employee as a key or permanent employee.

Exceptions for regular employees may be granted by the TERO Director on a case-by-case basis. Any employer or subcontractor filling a vacant position in its organization immediately prior to undertaking work pursuant to the contract to be performed on trust lands shall provide satisfactory evidence to the TERO Director that such hiring was not intended to circumvent these regulations.

Upon approval by the TERO of each key employee or permanent employee requested by the employer, the TERO shall issue a permit to that employee.

(1) No person who is not a Puyallup Tribal member or a local Indian shall be employed by a covered employer until he or she has obtained a work permit from the TERO.

(2) Work permits shall be granted under the following circumstances:

(A) To all key and permanent employees listed in the employer’s preference plan who are certified by the TERO Director as meeting the criteria for key and permanent employees.

(B) To nonlocal Indians or non-Indians hired after the employer has asked the TERO to locate and refer a qualified Tribal member or local Indian and the TERO has been unable to do so within the time provided by these regulations. When the TERO has been unable to locate and refer a local Indian within the time provided, the employer shall request, and the TERO shall issue, a work permit for the nonlocal Indian or non-Indian hired for the position at issue.

(C) To a person employed by a covered employer, when the person is employed on or near the Reservation, in a permanent position and he or she began his or her employment before the effective date of the TERO Ordinance (Chapter 3.24 PTC).

(D) To all owners of covered entities when such owner will be performing work for his or her entity. Prior to commencing work, the person shall demonstrate that he or she is a legitimate owner of the entity and shall request a permit. Upon finding that the person is a legitimate owner, the TERO Director shall issue said person a work permit.

(E) To such other persons that the Commission determines are entitled to a permit.

(d) Sanctions. Any nonlocal Indian found to be employed by a covered employer who does not have a valid work permit shall be summarily removed from the job and the employer shall be subject to such additional sanctions as the Commission may impose. In imposing sanctions under this section, the Commission shall consider the following factors:

(1) Was the violation intentional?

(2) Did the employer act quickly to remove the employee in question?

(3) Whether the employer had been cited for work permit violations in the past?

(e) Termination. No Tribal member or local Indian worker shall be terminated until all nonlocal Indians or non-Indian workers in the same craft have been terminated. This method of termination shall continue until such time as there are no members of each class who meet the threshold qualifications for the job.

Should an employer lay off by crews, qualified local Indians shall be transferred to crews that will be retained; provided there are nonlocal Indians or non-Indians in the same craft employed on the crews that are to be retained.

(f) Unions. An employer or subcontractor who has a collective bargaining agreement with one or more labor unions shall obtain written agreement from said unions indicating that they will comply with these Indian preference requirements. Specifically, the contractor may make initial job referral requests to the union.

However, if the union does not have a qualified Tribal member or local Indian worker on any of its out-of-work lists, the union shall contact the TERO to identify a qualified local Indian worker. Should TERO find such a worker, he or she shall be referred through the union hiring hall to the job site.

The union may not refer a nonlocal Indian or non-Indian until TERO has indicated that no qualified local Indian worker is available. Before referring the nonlocal Indian to the job site, the union shall request and the TERO shall issue a work permit for that worker. No Indian worker shall be required to travel to a site off trust lands to be processed by the union hiring hall. Such processing shall be done on trust lands or by telephone or mail.

Any Indian worker who does not wish to become a member of the union shall be granted a temporary work permit for the duration of the project. Said worker shall pay all union dues but shall not be required to pay an initiation fee. [Res. 061293 (12/06/93) § 2.1]

3.24R.070 Training.

Upon the request of the TERO, all employers shall participate in training programs to assist Indians become qualified in the various job classifications used by the employer. Employers engaged in construction shall participate in the Tribe’s training programs or a union apprenticeship program. All trainees or apprentices shall be local Indians. If an employer is not participating in a union apprenticeship program, the Tribe shall make a best effort to bear the costs of such training or apprenticeship programs. Employers with collective bargaining agreements with unions may use union apprenticeship programs, provided they obtain agreement from the unions to hire Indian apprentices only on the project. [Res. 061293 (12/06/93) § 2.2]

3.24R.080 Job qualification or personnel requirements.

An employer may not use job qualification criteria or personnel requirements which are not required by business necessity to serve as barriers to the employment of Indians. The burden shall be on the employer to demonstrate that the criterion or personnel requirement is required by business necessity. The employer shall eliminate the criterion or personnel requirement at issue if it is unable to show such business necessity. [Res. 061293 (12/06/93) § 2.3]

3.24R.090 Religious accommodations.

Employers shall make reasonable accommodation to the religious beliefs of Indian workers.

In implementing these requirements, the TERO shall be guided by the principles established by the EEOC Guidelines, particularly 29 CFR Parts 1604 through 1607. However, the TERO shall have the right to go beyond the EEOC principles in order to address employment barriers unique to Indians.

Where the TERO and the employer are unable to reach agreement on matters covered in this section, a hearing shall be held, as provided for in these regulations. The TERO Director shall make a determination on the issues and shall order such actions as he deems necessary to bring the employer into compliance with this section. The employer may appeal the decision of the TERO Director under the procedures provided for in Subchapter 6 of these regulations. [Res. 061293 (12/06/93) § 2.35]

3.24R.100 Promotion.

The employer shall give local Indians preferential consideration for all promotion opportunities and shall encourage local Indians to seek such opportunities; provided, that where not prohibited by federal law, first preference shall be given to members of the Puyallup Tribe, then if no qualified Puyallup Tribal members are available, second preference shall be given to other Indians. [Res. 061293 (12/06/93) § 2.4]

3.24R.110 Summer students.

Local Indians shall be given preference in the hiring of summer student help. [Res. 061293 (12/06/93) § 2.5]

3.24R.120 Retaliation.

No employer shall punish, terminate, harass, or otherwise retaliate against any employee or other person who has exercised his or her rights under the TERO Ordinance (Chapter 3.24 PTC) or has assisted another to do so. Further, any employer who harasses or abuses an employee of the TERO carrying out official duties under this chapter shall be summarily removed from trust lands. An employer shall be responsible for the actions of its subcontractors and their employees regarding the prohibitions in this section. [Res. 061293 (12/06/93) § 2.6]

3.24R.130 Counseling and support programs.

The TERO, in conjunction with other Tribal and federal offices, will provide counseling and other support services to Indians employed by covered employers to help such Indians retain employment. Employers shall cooperate with such counseling and support services. [Amended during 2010 recodification; Res. 061293 (12/06/93) § 2.7]

Subchapter 3. Indian Preference in Contracting and Subcontracting

3.24R.140 Entity obligations.

(a) Generally. Every entity engaged in business activity on trust lands or within the jurisdiction of the Puyallup Tribe shall give preference to firms certified by the Tribe under Subchapter 4 of these Regulations in any contract or subcontract it awards; provided 50 percent or more of said contract or subcontract is to be performed on trust lands or within the jurisdiction of the Puyallup Tribe; and provided further, that there are qualified certified firms willing to perform the work at a reasonable price, as defined by PTC 3.24R.180. If the entity determines that certified firms are not qualified to perform all of the work required under a contract or subcontract, the entity shall apportion the project in such manner that the certified firms can qualify for that portion of the work.

(b) Order of Preference. The following order of preference shall apply in the award of contracts and subcontracts:

(1) First preference shall be given to Indian preference certified firms, 51 percent or more of which are owned by Puyallup and other local Indians.

(2) Second preference shall be given to other Indian preference certified firms.

If no Indian preference certified firms are available, Indian/non-Indian joint ventures approved by the TERO shall be given preference over wholly non-Indian-owned firms or joint ventures.

(c) Notice to TERO and to Certified Firms. Any entity intending to issue a bid, request for proposal, or other action leading to the employment of a contractor covered by the TERO Ordinance (Chapter 3.24 PTC) and these regulations shall notify the TERO of its plans not less than 10 days before issuing notice to bidders or other potential contractors. The entity shall also obtain from the TERO a list of Indian preference certified firms and shall send a copy of the bid notice or other notice setting out the contract opportunity to each Indian preference certified firm engaged in the field of commerce in which the contract work will take place. The TERO shall identify such firms according to the order of preference set out in subsection (b) of this section. An entity that fails to comply with this requirement shall be subject to the sanctions set out in Subchapter 9 of the TERO Ordinance (Chapter 3.24 PTC).

(d) Proviso. Provided, that if any requirement of these regulations is inconsistent with the requirements of federal law, the regulation shall take precedence to the latter. (As used in these regulations, the terms “contract” and “subcontract” apply to all contracts, including, but not limited to, contracts for construction, supplies, services, and equipment, regardless of tier.) [Res. 061293 (12/06/93) § 3.1]

3.24R.150 Responsibility for compliance.

Any entity engaged in business activity on trust lands or within the jurisdiction of the Puyallup Tribe of Indians shall be liable for the compliance of its contractors and subcontractors with these regulations. Specifically:

(a) Construction. An entity awarding a prime construction contract shall give preference in the award of the contract and for ensuring that the prime contractor also gives preference in the selection of subcontractors.

When a prime contract is awarded directly by an agency of the United States government (see subsection (b) of this section), the prime contractor shall be the responsible entity.

When the entity is an Indian housing authority (IHA), it shall not be subject to any monetary sanctions as provided in PTC 3.24R.310, and shall be exempt from any requirements of these regulations that are inconsistent with the Department of Housing and Urban Development’s Indian preference regulations.

Given that no prime contractor shall be permitted to commence work on the Reservation until it has demonstrated that it will comply with the subcontract preference requirements, it is in the interest of the funding entity to ensure its low bidder will comply with the subcontract preference requirements prior to the award of the contract. The Tribe shall not be liable for any losses incurred by the funding entity because it has entered into a contract with a prime contractor which, because of its failure to provide adequate proof that it will fully comply with the subcontract preference requirements of these regulations (e.g., through the submission of an acceptable subcontractor plan; see PTC 3.24R.050(b)), is not permitted to commence work on the Reservation.

(b) Natural Resource Development (Oil, Gas, Hard Rock Minerals, Timber, Etc.). Whereas the Tribe does not have authority over the United States government and federal agency contracting policies and procedures, these regulations do not apply to the award of direct prime contracts by a federal agency. However, the selected contractor shall be required to comply with all subcontract preference requirements. [Res. 061293 (12/06/93) § 3.2]

3.24R.160 Requirements in contracting.

Preference shall be given to certified firms in the award of all contracts. An entity may select its contractor in any manner procedure it so chooses; provided:

(a) Competitive Award. If an entity uses competitive bidding or proposals, competition shall be limited to certified firms. If the entity is unsure whether there are any qualified certified firms, it shall publish a prior invitation for certified firms to submit a statement of intent to respond to such a limited advertisement when published and to furnish, with the statement of intent, evidence sufficient to establish their technical qualifications. If the entity fails to receive any statement of intent from a technically qualified certified firm, it may, after notifying the TERO, advertise for bids or proposals to the low bidder. If only one certified firm submits a bid or statement of intent, the entity (unless otherwise prohibited by federal law or regulation) shall enter into negotiations with that firm and shall award the contract to that firm so long as the firm is technically qualified and is willing to perform the work at a reasonable price.

(b) Negotiated Award. If the entity selects its contractor through negotiations or other informal process, it shall not enter into a contract with a noncertified firm unless it has contacted every certified firm in the relevant field and has determined that there is no certified firm available that is technically qualified to perform the work required at a reasonable price. A firm which is not certified shall not be selected, provided a certified firm meets the minimum threshold qualifications. [Res. 061293 (12/06/93) § 3.3]

3.24R.170 Requirements in subcontracting.

(a) General Requirements. Preference shall be given in the award of all subcontracts to certified firms. The contractor may select its subcontractor in any manner it so chooses; however:

(1) If the contractor uses competitive bidding or proposals, competition shall be limited to certified firms. If the contractor is unsure whether there are any qualified certified firms, it may publish a prior invitation for certified firms to submit a statement of intent to respond to such a limited advertisement when published and to furnish, with the statement of intent, evidence sufficient to establish their technical qualification. If the contractor fails to receive any statement of intent from a technically qualified firm, it may, after so notifying the TERO, advertise for bids or proposals without limiting competition to certified firms and may award to the low bid. If only one certified firm submits a bid or statement of intent, the contractor shall enter into negotiations with that firm and shall award the contract to it, provided the firm is technically qualified and is willing to perform the work at a reasonable price, as defined in PTC 3.24R.180.

(2) If the contractor selects its subcontractor through negotiations or other informal process, it shall not enter into a contract with a noncertified firm unless it has contacted every certified firm in the relevant field and has determined that there is no certified firm available that is technically qualified to perform the work required at a reasonable price. So long as a certified firm meets the minimum threshold qualifications as defined in PTC 3.24R.180, no noncertified firm may be selected.

(b) Special Requirements. Entities awarding construction contracts shall comply with the following special requirements in the award of subcontracts:

(1) The bid notice shall require that each bidder submit, as part of its bid, a subcontract plan showing, for each subcontract it intends to enter, the name of the firm, whether it is certified, if it is not certified why the contractor did not select a certified firm, and the projected subcontract price, as provided for in PTC 3.24R.050(b). (Since, pursuant to that section, a contractor will not be permitted to commence work on the Reservation unless it has an approved subcontracting plan, it is in the contract-awarding entity’s self-interest to declare as nonresponsive or nonresponsible any bidder who fails to submit a satisfactory plan.) The subcontract price information for each bidder shall be provided to the TERO and shall be used to ensure that a contractor has not engaged in bid shopping as a means to discourage certified firms or to force them to accept a subcontract at an unreasonably low price.

(2) It shall be illegal for any contractor or bidder to engage in bid shopping. “Bid shopping” is defined as any practice involving or comparable to the contracting of different subcontracting firms, informing them that a competitor has underbid them, but offering them an opportunity to underbid the competitor. Any contractor found to have engaged in bid shopping shall be prohibited from engaging in work on trust lands or within the jurisdiction of the Puyallup Tribe of Indians; if engaged in work, shall be liable for treble damages for any losses suffered by a certified firm as a result of the contractor’s bid shopping practices. The TERO shall have the right to require any contractor to demonstrate that a reasonable relationship exists between the dollar amount of a proposed subcontract and the reasonable costs of supplies, materials and labor.

(3) The contractor shall not be prohibited from requiring that a subcontractor provide some form of security. However, if a subcontractor bonding requirement has been imposed and an Indian firm is unable to obtain a bond, the prime contractor shall permit the Indian subcontractor to provide another adequate form of security. A list of acceptable bonding alternatives follows:

(A) No bond required on amounts of less than $25,000;

(B) Surety bonds;

(D) Increased retainers – 25 percent instead of normal;

(E) Letter of credit – 100 percent;

(F) Letter of credit – 10 percent – with cash monitoring system;

(G) Cash monitoring system;

(H) Other options to be considered as they arise.

The final decision on whether an alternative form of security is sufficient shall rest with the TERO.

(4) If no certified firm available is qualified to perform a particular subcontract because the subcontract is too large for the capacity of any one certified firm, the contractor shall make a good faith effort to divide that subcontract into smaller pieces so that several certified firms may qualify and perform the work.

(c) Technical Assistance to Indian Subcontractors. The prime contractor shall develop, submit and implement a plan for assisting Indian subcontractors to develop and improve their technical and managerial capabilities. [Res. 061293 (12/06/93) § 3.4]

3.24R.180 Responsibility for evaluating technical qualifications and reasonable price.

(a) Technical Qualifications. The entity and its contractors and subcontractors shall have the discretion to determine technical qualifications. Should the entity determine that there are no technically qualified certified firms available it shall provide to each certified firm it rejects a description, in writing, of areas in which it believes the firm is weak and steps it should take to upgrade its qualifications.

If a certified firm that is disqualified because of insufficient technical qualifications believes that the disqualification was an improper effort by an entity, contractor, or subcontractor to circumvent its preference responsibilities under these regulations, it may file a complaint with the TERO. The complaint shall be filed within 20 days after the firm received notice of nonqualification. The burden shall be on the complaining firm to demonstrate that it is qualified and its disqualification was the result of an effort to circumvent these regulations. If after a hearing, as provided for in PTC 3.24R.300, the complaint is found to be valid, the TERO Director shall impose such sanctions as he deems appropriate, including punitive damages.

(b) Reasonable Price. An entity may use any process it so chooses for determining what constitutes a reasonable price including, but not limited to, competitive bidding (open or closed), private negotiations, or the establishment of prototype cost ceiling before bidding or negotiations commence.

Before an entity may reject all certified firms on the basis of price, it must offer one or more of the certified firms an opportunity to negotiate price. If there is only one technically qualified certified firm, an entity shall enter into negotiations on price with that firm and must contract with that firm if a reasonable price can be negotiated. No entity may reject a certified firm on the grounds that the price is not reasonable and subsequently contract with a noncertified firm at the same or higher price. Any contract modification executed between an entity and a noncertified firm during the course of a project which results in a higher price to that firm will be subject to review by the TERO to assure that the modification in price is justified and not a circumvention of this section. Any entity found to have violated this regulation by such circumvention shall be liable for treble damages for any loss suffered by a certified firm as a result of the entity’s action. [Res. 061293 (12/06/93) § 3.5]

3.24R.190 Operation of the contract or subcontractor.

Once an entity enters into a contract with a certified firm, the TERO shall not intervene in the relationship between the parties unless a certified firm demonstrates that action taken against it is intended primarily to circumvent the requirements of these regulations. [Res. 061293 (12/06/93) § 3.6]

3.24R.200 Brokering and fronts.

No Indian firm shall represent that it is exercising management control of a project in order to qualify for Indian preference in the award of said contract or subcontract when in fact such management control is exercised by a non-Indian entity such that the Indian entity is acting as a front or brokering out services. [Res. 061293 (12/06/93) § 3.7]

Subchapter 4. Criteria and Procedures for Certifying Firms as Indian Preference Eligible

3.24R.210 General statement of policy.

Pursuant to its sovereign authority, the Puyallup Tribe of Indians of the Puyallup Indian Reservation has imposed Indian contract preference requirements as a tool for promoting the economic development of the Reservation. Indian preference in contracting can assist in the development of Indian businesses and thereby assist the Tribe and its members to achieve economic self-sufficiency.

If the preference tool is abused, however, it will undermine development and discredit the process. Therefore, it is the policy of the Tribe to require that an applicant for Indian contract preference certification provide substantial evidence that it is a legitimate Indian-owned and controlled firm.

Specific criteria shall apply in the evaluation of an applicant. See PTC 3.24R.220. Experience has shown that persons interested in abusing the Indian preference program are able to structure firms to get around most specific criteria. Therefore, in addition to applying the specific criteria, the reviewing body for the Tribe shall evaluate a firm under the following general criteria:

(a) Applying sound management principles, whether the firm would be structured as it is, and whether the Indian owners would have been given the amount of ownership and control they have, if there were no Indian preference program in existence. If the reviewing body determines that there is good reason to believe that the firm has been structured (managerially or financially) in a manner that is convoluted or inconsistent with sound business practices in order to enable the firm to qualify for Indian preference certification, the firm shall be denied certification, even if it meets the specific criteria, unless the firm is able to demonstrate beyond a reasonable doubt that it was not structured to manipulate the Indian preference criteria.

(b) The specific criteria also require that the ownership, control and management of a firm make sense from a sound business perspective. The Indian owners must own and control at least 51 percent of the firm. A primary consideration is what the Indian owner(s) brought to the firm as justification for a share of the business, were Indian preference not a factor. For example, assume the Indian owner paid for his share through a promissory note to the non-Indian owners. In the ordinary course of business, such a transaction would not occur unless the new owners brought something of value, such as managerial or technical expertise, capital, equipment, or marketing opportunities. The ability to qualify for Indian preference is not considered such a marketing opportunity. Such an arrangement would be cause to deny Indian preference certification unless a sound business reason for the arrangement exists. Where an Indian can demonstrate that he or she was unable to provide good value for his or her 51 percent share because the usual sources of capital were closed off to him or her because he or she was an Indian, that person shall be required to demonstrate that he or she extended his or her capital raising ability as far as possible – such that he or she is “at risk” in a significant way – e.g., mortgaged a house or vehicle.

The Indian owner(s) must be directly involved in the firm’s management. While it is not required that an Indian owner be the chief operating officer of the firm, at least one of the Indian owners must be involved in the day-to-day operations of the firm on a full-time basis and in a senior level position. The Indian person in this position shall have the experience or expertise in the area of business the firm is engaged in (or in management generally) to make the senior level role a legitimate one. The Indian owner(s) must also have sufficient knowledge about the firm to be accountable for the firm’s activities.

Certification shall not be granted to a firm whose Indian owners are not involved in the manner described above. There is virtually no benefit to the Indian community from such passive ownership, other than profits to the owners. It could take several years for a firm to show a profit, if one in fact materializes. Yet during that time the non-Indian managers can benefit at the expense of the Indian community. The limited benefits to the Indian owner(s) do not justify this risk. One of two exceptions to this rule is that certification will be granted to 100 percent Indian-owned firms where the manager of the business is a non-Indian spouse of an Indian and the family lives on or near the Reservation. No effort will be made to distinguish between the value contributed by a non-Indian spouse versus the Indian spouse. The family’s contribution will be treated as an undivided unit. The second exception is for a more “public corporation,” defined as one that is owned by 10 or more persons, 70 percent of which is Indian-owned and the chief executive officer is an Indian.

(1) Joint Ventures. Joint ventures shall not be granted certification as Indian preference firms. However, an Indian/non-Indian joint venture will be given preference over non-Indian firms, if there are no certified Indian preference unitary firms available.

Such rigorous criteria, giving substantial discretion to the reviewing body, are necessary and appropriate for the Indian contract preference program. Neither the Tribe nor the Indian community benefits from the establishment of “bogus” Indian firms, while the certification of such firms undercuts the credibility of the Tribe’s Indian preference program. An Indian firm or individual that is unable, on its own, to qualify as the prime contractor on a large project has other options open to it besides participating in the development of a bogus firm. For example, he or she can seek work at the subcontractor or employee level and benefit from the Tribe requirement that preference be given to Indian subcontractors and employees.

(2) Procedural Requirements. The procedural requirements for certification provide that applications shall be reviewed by the staff of the Tribe’s Tribal Employment Rights Office (TERO), which shall request any additional information it believes appropriate. The TERO will then submit the application, together with its recommended findings, to the TERO Commission. The Commission shall review the application and findings, interview the principals of the firm, request additional information appropriate, and make its determination whether certification should be granted. The firm has the right of appeal to the Tribal Court, which shall reverse the decision only if it finds that the decision was arbitrary or capricious.

(3) Probationary Certification. A firm shall first receive a probationary certification of one year, or a longer period where the Commission believes such is necessary. The TERO and the Commission shall have the right at any time, either on their own initiative or upon filing of a complaint by any party, to conduct an investigation of a firm to determine if its certification should be suspended or withdrawn. [Res. 061293 (12/06/93) § 4.1]

3.24R.220 Criteria for Indian contract preference certification.

To receive certification as a firm eligible for Indian preference, an applicant must satisfy all the criteria set out in this section:

(a) Ownership. The firm must be at least 51 percent Indian-owned. The applicant must demonstrate the following:

(1) Formal Ownership. That an Indian or Indians own(s) 51 percent or more of the partnership, corporation, or other arrangement for which the application is being submitted. Such ownership must be embodied in the firm’s organic documents, such as its stock ownership or partnership agreement. Ownership includes:

(A) Financial ownership – i.e., the Indian(s) owns 51 percent or more of the assets and equipment, will receive 51 percent or more of the firm’s assets upon dissolution, and will receive 51 percent or more of the profits; and

(B) Control – i.e., the Indian(s)’ 51 percent or more ownership provides him or her with a majority of voting rights or other decisional authority and that all decisions of the firm are to be made by a majority vote except where otherwise required by law.

(2) Value. The Indian owner(s) provided real value for 51 percent or more ownership by providing capital, equipment, real property or similar assets commensurate with the value of the ownership share. It will not be considered “real value” if the Indian(s) purchased the ownership share, directly or indirectly, through a promissory note, the ultimate creditor of which is the non-Indian owner of the firm or an immediate relation thereof, or any similar arrangement, unless a convincing showing can be made that the Indian owner(s) brought such special skills, marketing connections, or similar benefits to the firm that there is a good reason to believe the arrangement would have been entered into even if there were not an Indian participant and that he or she could not pay good value for his or her 51 percent or more Indian ownership because the normal capital sources were closed to him or her because he or she is an Indian. The Indian owner(s) may satisfy this requirement by demonstrating further that he or she extended his or her capital-raising capability as far as possible, such that the Indian participant clearly is at risk in the business in relationship to his or her means.

(3) Profit. The Indian owner(s) will receive 51 percent or more of all profits. If there is any provision that gives the non-Indian owner a greater share of the profits, in whatever form and under whatever name, such as through management fees, equipment rental fees, or bonuses tied to profits, certification will be denied. Salary scales will be reviewed to ensure the relative salaries being paid Indian and non-Indian owners are consistent with the skills of the parties and are not being used to circumvent the requirement that Indian owners receive 51 percent or more of the profits.

(b) Management Control. The firm must be under significant Indian management and control. The firm must be able to demonstrate that:

(1) One or more of the Indian owners must be substantially involved, as a senior level official, in the day-to-day management of the firm as his or her primary employment activity. The Indian owner does not have to be the chief executive officer. However, he or she must, through prior experience or training, have substantial occupational ties to the area of business in which the firm is engaged such that he or she is qualified to serve in the senior level position and is sufficiently knowledgeable about the firm’s activities to be accountable to the Tribe for the firm’s activities. This provision may be waived when:

(A) The firm is 100 percent Indian-owned and the chief executive officer is the spouse and/or parent of the owner(s), the family lives on or near the Reservation, and the majority of employees are Indian; or

(B) The firm is modeled on a publicly held corporation such that it is owned by 10 or more persons, is at least 70 percent Indian-owned, the chief executive officer and the highest-salaried employee in the firm is/are Indian, and a majority of the employees are Indian.

(C) Integrity of Structure. There must be good reason to believe that the firm was not established solely or primarily to take advantage of the Indian preference program. In evaluating an applicant under this criterion the TERO will consider the factors set out below. The TERO shall exercise broad discretion in applying these criteria in order to preserve the integrity of the Indian preference program and in questionable cases shall deny the certification.

(i) History of the Firm. Whether the history of the firm provides reason to believe it was established primarily to take advantage of the Indian preference program, and in particular whether the firm, a portion of the firm, or key actors in the firm originally were associated with a non-Indian-owned business that gained little of business value in terms of capital, expertise, equipment, etc., by adding ownership or merging with an Indian firm.

(ii) Employees. Whether key non-Indian employees of the applicant are former employees of a non-Indian firm with which the Indian firm is or has been affiliated, through a joint venture or other arrangement, such that there is reason to believe the non-Indian firm is controlling the applicant.

Whether Indians are employed in all or most of the positions for which qualified Indians are available. A high percentage of non-Indian employees in such positions will provide reason to believe the firm was established primarily to benefit non-Indians.

(iii) Relative Experience and Resources. Whether the experience, expertise, resources, etc., of the non-Indian partner(s) is so much greater than that of the Indian(s) that there is little sound business reason for the non-Indian to accept a junior role in the firm other than to be able to take advantage of the Indian preference program.

(D) Brokers. Brokers will be certified only if they are dealers who own, operate, or maintain a store, warehouse, or other establishment in which the commodities being supplied are bought, kept in stock, and sold to the public in the usual course of business; provided, that this requirement shall not apply where the applicant demonstrates that it is customary and usual in the area of trade for a broker/dealer not to maintain an establishment and to keep the commodities in stock.

(E) Manufacturing Companies. In determining whether or not a manufacturing firm is 51 percent Indian-owned and controlled, the Commission shall be guided by the Small Business Administration Standard Operating Procedures on certifying firms as eligible for the 8(a) program. [Amended during 2010 recodification; Res. 061293 (12/06/93) § 4.2]

3.24R.230 Certification procedures.

(a) Application for Certification. A firm seeking certification as an Indian preference eligible firm shall submit a completed application (see PTC 3.24R.240) to the TERO on a form provided by the TERO. (Application forms may be obtained at the TERO’s Office.) TERO staff will be available to assist a firm fill out the application. Within 21 days after receipt of a completed application, the staff shall review the application, request such additional information as it believes during the time any request for additional information is outstanding), conduct such investigations as it deems appropriate, and submit analysis and recommended disposition to the Commission. Copies of the analysis and recommended disposition shall be kept confidential and shall not be made available to the applicant or any other party. When it is so required, the TERO may extend the processing period by an additional 21 days, by sending notification of the extension to the applicant by registered mail. Within 15 days of receipt of the TERO’s analysis and recommended disposition, the Commission shall hold a hearing on the application, posting notice of the hearing time at the Tribal Office, the Agency, and the TERO’s Office at least five days prior to the hearing. In addition, any other party wishing to present information to the Commission shall be entitled to do so, by requesting, no less than one day prior to the hearing, an opportunity to participate. A party may be represented by counsel. The hearing shall be conducted as provided for the TERO hearing procedures.

(b) Probationary Certification. An applicant granted certification shall be issued a one-year probationary certificate. During that period, the TERO staff and the Commission shall monitor the firm’s activities to ensure that the firm is operating in the manner described in its application. During the probationary period, the TERO and the Commission shall have the right to request and receive such information and documents as they deem appropriate.

(c) Final Certification. At the end of the probationary period the Commission, after receiving recommendations from the TERO staff, shall either:

(1) Grant full certification;

(2) Continue the probationary period for up to six months; or

(3) Deny certification.

(d) Withdrawal of Certification. From the information provided in reports required by subsection (f) of this section and PTC 3.24R.250, on the basis of a written grievance filed by any other firm or person, or on its own initiative, the TERO may initiate proceedings to withdraw or suspend the certification of any firm. The TERO shall prepare an analysis and recommended disposition for the Commission and shall send the firm notice, by registered mail, that its certification is being examined, along with the grounds therefor. The Commission shall then set a date for a hearing to be held within 21 days after it receives the analysis and recommended disposition from the TERO. At the hearing, the TERO staff shall present the case for suspension or withdrawal and the hearing shall be conducted as set out in PTC 3.24R.300(b). After the hearing, the Commission may:

(1) Withdraw certification;

(2) Suspend certification for not more than one year;

(3) Probation; or

(4) Order corrective action within a fixed period.

A firm that has had its certification withdrawn may not reapply for a period of one year.

(e) Firms Certified Prior to the Adoption of These Criteria. Each firm holding Indian preference certification from the Tribe prior to the effective date of these regulations shall submit an application as required by these regulations to the TERO within 30 days following the effective date of these regulations.

Should the TERO determine the firm qualified it shall, within 21 days of its receipt by the TERO, recommend approval of the application within 21 days of receipt of the application to the Commission.

The Commission shall, within 30 days of receipt of the recommendation, issue a new certificate without holding a public hearing. The Commission may refuse to issue a new certificate when it has reason to believe that such certification is not merited.

Should the TERO determine the firm does not qualify, it shall prepare an analysis of the reasons therefor, together with its recommended disposition. The analysis shall be submitted to the Commission within 21 days after receipt of the application. Should the TERO require additional information from the firm, computation of the 21-day period shall be stayed by the Commission for a reasonable time to permit such information to be provided. The Commission, after providing the firm an opportunity for a hearing as provided in PTC 3.24R.300(b), which shall be held within 15 days after receipt of the TERO’s findings, shall:

(1) Grant the firm a new certificate; or

(2) Determine that the firm is not in compliance. If the Commission determines that the firm is not in compliance, it shall provide the reasons therefor. The firm shall then have 15 days from the date of the decision to demonstrate to the Commission that it has made such changes as are necessary to come into compliance. If at the end of the 15-day period the firm has failed to come into compliance, its certificate shall be withdrawn. A copy of the withdrawal notice shall be sent to the firm.

(f) Change in Status and Annual Reports. Each certified firm shall report in writing to the TERO any changes in its ownership or control status within the 60 days following such. Each certified firm, on the anniversary of its receipt of permanent certification, shall update its initial application for certification on the annual report form provided by the TERO. Failure to provide such information shall constitute grounds for withdrawal of certification. [Res. 061293 (12/06/93) § 4.3]

3.24R.240 Application for certification as an Indian preference firm.

1. Firm Identification.

Name of firm (exactly as you want it to appear on all documents).

_________________________________________________

Address: _________________________________________________

Telephone: _________________________________________________

Date of Submission: ____________________________________________

Single business: ___________________ Joint Venture: ___________________

Contact Person: _____________________________________________

Address: __________________________________________________

Telephone (Bus.) _______________________ Home: ______________

Type of business (list all areas of business in which the firm intends to engage):

__________________________________________________________________

Federal Identification Number: ___________________________________

Number of Employees: _______ Number of Indian Employees: ________

Year business was established: ____________________________________

2. Ownership.

A. Type of ownership (check one):

____ Sole proprietorship

____ Partnership (attach copy of partnership agreement with all amendments since date partnership created).

____ Corporation (attach copy of the Certificate of Incorporation, Articles of Incorporation and Bylaws, including all amendments since date of incorporation).

B. Percent of Indian ownership: ____%

C. Provide for each Indian owner, his or her name, address, tribal affiliation, enrollment number, percent of ownership, amount of investment in the firm, method of investment (cash, equipment, loan or promissory note indicating who the loan is from), percent of voting control and position in the firm.

D. List for each non-Indian owner, his or her name, address, percent of ownership, amount of investment in firm, method of investment (cash, equipment, loan or promissory note indicating who the loan or note is from), percent of voting control, position in firm, name of all other firms in which the owner holds or has held within the past year an ownership interest (other than publicly held corporations and similar ownerships held solely for investment purposes) or a management position.

E. List any management fee, equipment rental, bonuses or other arrangements that will provide payment to non-Indian owners beyond their share of profits and salaries, as indicated above.

F. Describe or attach any stock options or other ownership options that are outstanding and any agreements between owners or between owners and third parties which restrict ownership or control of Indian owners.

G. Identify any owner or management official of the named company who is or has been an employee of another company that has an ownership interest in or a present business relationship with the named company; present business relationships include shared space, equipment, financing, or employees as well as both companies having some of the same owners.

H. Indicate if this company or other companies with any of the same officers have previously received or been denied certification or participation as an Indian preference firm and describe the circumstances. Indicate the name of the certifying authority and the date of such certification or denial.

3. MANAGEMENT

A. Provide for each owner of more than 5% interest, all senior management personnel and members of the Board of Directors the following:

1. Name, address and social security number. If Indian, please include his or her Tribe and enrollment number.

2. Present position and description of duties.

3. Previous business experience.

4. Previous work experience in areas in which the firm intends to engage.

5. Other previous work experience.

6. Education and training.

7. Other jobs presently held.

B. Control of company. Identify by name, race, sex and title in the company of those individuals (owners and non-owners) who are responsible for day-to-day management, including, but not limited to, those with prime responsibility for:

1. Financial Decisions.

2. Management decisions, such as:

a. Marketing and sales;

b. Hiring and firing;

c. Purchase of major equipment or supplies;

d. Supervision of field personnel.

4. CAPITAL AND EQUIPMENT

A. Equipment. List all equipment which costs $300.00 or more when new.


QUANTITY	DESCRIPTION	PRICE	HOW OBTAINED (Purchased, etc.)

B. Capital.

1. Attach a current balance sheet.

2. Identify amount and source of original and present capital. (e.g., contributed by owner, bank loan – if loan, indicate name(s) of those legally bound to repay if other than organization).

C. Additional submissions.

Each applicant shall submit with this application the following:

1. List of officers, principal stockholders, and directors, with mailing addresses and number of shares held by each.

2. A sworn statement of the proper officer showing:

a. The total number of shares of the capital stock actually issued and the amount of cash paid into the treasury on each share sold; or, if paid in property, the kind, quantity and value of the same per share.

b. Of the stock sold, how much remains unpaid and subject to assessment.

c. The amount of cash the company has in its treasury and elsewhere.

d. The property, exclusive of cash, owned by the company and its value.

e. The total indebtedness of the company and the nature of its obligations.

5. CERTIFICATION

I hereby certify that the information provided in this application is true and complete to the best of my knowledge and belief. I further certify that I have read the applicable ordinances, regulations, criteria and procedures of the Puyallup Tribe of Indians and do hereby submit to the jurisdiction provided therein.

Name of firm: ____________________________________________________


By:	_______________________________________________________________
	(Signature of authorized officer and title)

Name: _____________________________________________________________

Title: ____________________________________________________________

[Res. 061293 (12/06/93) Appendix]

Subchapter 5. Fees

3.24R.250 Provision for collection of fees.

Except as otherwise provided all fees are due and shall be paid in full by any covered employer prior to commencing work. Other arrangements for payment shall be in writing and signed by the Director.

Immediately upon becoming aware that a covered employer is intending to engage in work, the Director shall mail to the employer, by registered mail, a notice regarding the nature and purpose of the fee, the percentage, the specific amount due, if known, the date due, and the possible consequences should the employer fail to comply. The notice shall be accompanied by a formal notice of fees due informing him/her that payment is overdue.

Should the employer fail to pay the fee by the day it commences work on trust lands or within the jurisdiction of the Puyallup Tribe of Indians, interest shall begin to accrue on that date at the rate of 10 percent per annum. On the day following that on which the employer commenced work, the Director shall send notice to the employer, by registered mail, that the fee is overdue and of the consequences imposed if the fee is not paid immediately.

If the fee is not paid by the fifteenth day after the employer commenced work, the Director shall file a formal charge of noncompliance, and shall schedule a Commission hearing to be held in five days or as soon thereafter as the Commission can meet and shall inform the employer of the scheduled hearing.

At the hearing, to be held whether or not the employer attends, the Commission shall determine whether the employer has failed to comply. If it finds noncompliance, it shall:

(a) Impose penalties of not more than 10 percent of the amount due;

(b) Petition the Tribal Court to affirm the decision of the Commission and to enforce its order through confiscation proceeding as provided by law.

Where the Director of the Commission has reasonable cause to believe that an employer will flee the jurisdiction prior to resolution of the matter, the Director may initiate any of the procedures provided for in PTC 3.24.480, notwithstanding the above procedure. [Amended during 2010 recodification; Res. 061293 (12/06/93) § 5.1]

3.24R.260 Employers with a permanent place of business on the Reservation.

An employer whom the Director determines will have a permanent place of business on the Reservation shall pay the fee pursuant to the following:

(a) On April 15th, July 15th, October 15th and January 15th, the employer shall submit, on a form provided by the Director, information showing his total payroll for the previous quarter, accompanied by a check equal to two and one-half percent of the payroll for that quarter.

(b) The Director, upon receipt of a written request may authorize, in writing, an employer to submit the information and payments on a quarterly schedule other than the one set out in subsection (a) of this section. When doing so, make the schedule compatible with the employer’s fiscal year structure.

(c) An employer covered by this section shall be subject to the same interest, penalty and enforcement requirements and deadlines as those established in PTC 3.24R.250. The Director shall send said employers appropriate notices and forms. [Res. 061293 (12/06/93) § 5.2]

3.24R.270 Alternative arrangement.

The Director, in his discretion, may, upon receipt of a written request, authorize an employer to pay the required fee in installments over the course of the year or the contract, as appropriate, when:

(a) The total annual fee exceeds $10,000; and

(b) The employer demonstrates hardship or other good cause.

The decision to authorize an alternative arrangement, which shall be in writing, shall rest solely with the TERO Director and is not appealable to the Commission or the Courts.

The employer shall pay interest, at the prime rate, on all amounts paid after the day he commences work on the Reservation when paying under an alternative arrangement. [Res. 061293 (12/06/93) § 5.3]

Subchapter 6. Administrative Procedures

3.24R.280 Reports and monitoring.

All entities engaged in any aspect of business activity on trust lands or within the jurisdiction of the Puyallup Tribe of Indians shall submit reports and such other information as requested by TERO. Employees of the TERO have the authority to make on-site inspections during regular working hours in order to monitor an entity’s compliance with these regulations.

Employees of the TERO also have the authority to inspect and copy all relevant records of an entity, of the entity’s signatory unions or subcontracts, to speak with workers on the job site and to engage in similar investigatory activities. All information collected by the TERO is confidential, unless disclosure is required during a hearing or appeal as provided for in these regulations. [Res. 061293 (12/06/93) § 6.1]

3.24R.290 Individual complaint procedures.

(a) Noncompliance by an Entity. Any Indian or group of Indians, representatives or group of a class of Indians, certified firm, group of certified firms, or other persons or entity who believe that an entity has failed to comply with these regulations, or who believe that they have been discriminated against by a covered entity because they are Indian, may file, whether or not they can show that they were personally harmed by the entity’s noncompliance.

(b) Noncompliance by TERO. Any entity, group of entities, noncertified firms, non-Indian workers, or entity who believe that an action of the TERO Office under these regulations is in violation of these regulations, or Tribal or federal law, may file a complaint with the TERO. Persons may file whether or not they can show they were personally harmed by the TERO’s action. [Res. 061293 (12/06/93) § 6.2]

3.24R.300 Compliance and hearing procedures.

(a) Informal Settlement. If the TERO has reason to believe that a covered entity has failed to comply with any of these regulations, it shall notify the entity in writing, specifying the alleged violation(s). Should the party notified be a contractor or a subcontractor, notice shall also be provided to the entity holding the permit or authorization under which the contractor or subcontractor is operating and such entity shall be a party to all further negotiations, hearings and appeals.

The TERO shall then conduct an investigation of the charge and shall attempt to achieve an informal settlement of the matter. If voluntary conciliation cannot be achieved and the Director has reasonable cause to believe a party has violated the ordinance (Chapter 3.24 PTC) or regulations, he shall issue a formal notice of noncompliance to the party and shall proceed with the enforcement procedure provided by law.

(b) Procedures for Hearing. All hearings before the Commission shall be governed by the Puyallup Tribe of Indians’ due process hearing procedure. [Res. 061293 (12/06/93) § 6.3]

3.24R.310 Sanctions.

The Commission may impose any or all of the following sanctions where it finds a violation of the ordinance (Chapter 3.24 PTC) or regulations. If, after the hearing, the Commission determines that the violation alleged and that the party charged has no adequate defense in law or fact, or if no hearing is requested, the Commission may:

(a) Deny such party the right to commence business on or near the Puyallup Indian Reservation;

(b) Impose a civil fine in an amount not to exceed $1,000 for each violation;

(d) Terminate such party’s operation on or near the Puyallup Indian Reservation;

(e) Deny the right of such party to conduct any further business on or near the Puyallup Indian Reservation;

(f) Order such party to make payment of back pay to any aggrieved Indian;

(g) Order such party to dismiss any employees hired in violation of these regulations;

(h) Order such party to take such other action as is necessary to ensure compliance with the ordinance (Chapter 3.24 PTC) or to remedy any harm caused by a violation of the ordinance.

The Commission’s decision shall be in writing, shall be served on the charged party by registered mail or in person and shall be submitted not later than 30 days after the close of the hearing. Where failure to comply immediately with the Commission’s orders may cause irreparable harm, the Commission may move the Tribal Court for, and the Tribal Court shall grant, such injunctive relief as necessary to preserve the rights of the beneficiaries of the ordinance (Chapter 3.24 PTC), pending the party’s appeal or expiration of the time for appeal. [Res. 061293 (12/06/93) § 6.4]

3.24R.320 Appeals.

Any entity or complaining party shall have the right to appeal any decision of the Commission to the Tribal Court. [Res. 061293 (12/06/93) § 6.5]

3.24R.330 Bonds.

The Director may require an entity to post a bond with the Commission pending a hearing before the Commission and may petition the Court from a decision of the Commission, upon making a written finding that any of the following conditions exist. The entity:

(a) Has no permanent place of business on trust lands or within the jurisdiction of the Puyallup Indian Tribe; and

(b) The amount of sanction exceeds or likely will exceed $1,000; and

(c) The project on which the entity is employed will be substantially completed within 60 days, such that it may be difficult to locate property of said employer on trust lands or within the jurisdiction of the Puyallup Indian Tribe that would be available for attachment or confiscation should the entity fail to pay a sanction imposed on it; and

(d) The entity has failed to comply with an order of the Commission or the Courts in the past, and the employer has engaged in behavior that demonstrates a disregard for the authority and requirements of the Commission, such that the Director or Commission has good reason to believe the entity will not comply with the orders of the Commission or the Court. [Res. 061293 (12/06/93) § 6.6]

3.24R.340 Attachment.

The Commission may petition the Court for attachment of property of an entity should any of the following conditions exist:

(a) An entity has refused or failed to post a bond after being ordered to do so by the Director, Commission or Court as provided in PTC 3.24R.330; or

(b) The Commission has good reason to believe the entity will remove itself or its property before it can complete its efforts to require the entity to post a bond; or

(c) The entity has demonstrated an intent to disregard the orders of the Director, Commission or Court. [Res. 061293 (12/06/93) § 6.7]

3.24R.350 Irreparable harm.

A finding of irreparable harm upon the petition of the Commission or Director for injunctive relief shall be made only upon a showing that damage will occur that cannot be adequately remedied through the payment of monetary damages. Such showing shall include but is not limited to the following:

(a) That a contractor or subcontractor is about to or has begun work on a contract or subcontract entered into in violation of the provisions of the ordinance (Chapter 3.24 PTC) or regulations requiring contract or subcontract preference, when there is one or more Indian firms available to perform said contract or subcontract, since it is impossible to measure in monetary terms the damages suffered by an Indian firm’s failure to obtain a contract or subcontract.

(b) An entity or its subcontractor is about to or has hired two or more persons in violation of the provisions of the ordinance (Chapter 3.24 PTC) or regulations requiring Indian employment preference, and there are Indians available to fill those positions, since it is difficult to identify the specific Indians who would fill those positions once the number of positions at issue is two or greater, making the payment of payback difficult to achieve.

(c) An entity refuses to submit a preference plan in the time required and indicates through words or action that it intends to disregard the requirement imposed by the ordinance (Chapter 3.24 PTC) or regulations. [Res. 061293 (12/06/93) § 6.8]

Subchapter 7. Due Process Hearing Procedures

3.24R.360 Prehearing procedures.

(a) Review of TERO Files. The respondent employer or entity against whom the charge has been filed shall have the right to review the case file of the Director by scheduling a visit to the TERO Office during regular working hours at any point after receiving notice of a hearing. The Director, however, shall have the right to protect confidential information. The file shall be cleared of confidential information in a manner that causes the loss of the least amount of relevant information from the files.

(b) List of Witnesses. Ten days prior to the hearing (or as soon as possible if the hearing is to be held within 10 days after notice), the respondent and the Director shall submit to the Commission Chairman a list of witnesses that each intends to call at the hearing, the approximate length of their testimony, and the subject matter and relevance of their testimony. It shall indicate any witnesses that must be subpoenaed. The Director shall then issue the subpoenas.

(c) Prehearing Interviews of Witnesses. The respondent and the Director shall have the right to interview the witnesses of the other party, prior to the hearing. The Director’s witnesses shall be interviewed in the presence of the Director or his delegate. The respondent’s witnesses shall be interviewed under such reasonable conditions as are established by the respondent. Either party may appeal to the Chairman of the Commission if cooperation is not forthcoming and the Chairman is empowered to require such steps as are necessary to resolve the problem.

(d) Subpoenas of Documents and Things. The respondent shall, no later than 10 days prior to the hearing (or as soon as possible if the hearing is noticed less than 10 days before the hearing), provide the Director with a list of items it wishes to have subpoenaed and the relevance of each. The Director shall subpoena all relevant items listed as well as items needed by the Director. Any disputes shall be brought to the Chairman of the Commission who shall resolve such disputes.

(e) Postponements. Any request for a postponement of the hearing must be submitted in writing to the Chairman of the Commission no fewer than three days prior to the hearing. Should the Director and the respondent mutually submit a request for a postponement because of the possibility of settling the matter, the requests for a postponement may be submitted at any time. [Res. 061293 (12/06/93) § 7.1]

3.24R.370 Conduct of the hearing.

(a) Presiding Officer. As presiding officer, the Chairman of the Tribal Employment Rights Commission will control the proceedings. He or she will take whatever action is necessary to ensure an equitable, orderly, and expeditious hearing. Parties shall abide by the presiding official’s rulings. The presiding official has the authority, among others, to:

(1) Administer oaths or affirmations;

(2) Regulate the course of the hearing;

(3) Rule on offers of proof;

(4) Limit the number of witnesses when testimony would be unduly repetitious; and

(5) Exclude any person from the hearing for contemptuous conduct or misbehavior that obstructs the hearing.

(b) Director. The TERO Director shall represent the TERO on all charges filed by it, even if the charge was initiated by a complaint filed by a private individual.

(c) Respondent. The respondent shall be present for the hearing and he or his representative (other than an attorney) shall represent him during the proceedings.

(d) Attorneys. Either party may have an attorney present as an advisor. The attorney, however, may not make any presentations, cross-examine witnesses or address the Commission.

(e) Recording of the Hearing. The Commission shall electronically record the hearing and shall retain the electronic record for not less than one year after the hearing. The respondent shall be permitted to record the hearing.

(f) Prohibition Against Reprisals. All parties shall have the right to testify on their behalf without fear of reprisal.

(g) Starting Time. The hearing shall be opened promptly at the time specified by the Commission.

(h) Opening Statements. Both parties may present opening statements regarding what they intend to prove at the hearing.

(i) Order of Proceedings. The Director shall present the TERO’s case first.

(j) Examination and Cross-Examination of Witnesses. Both parties may subpoena and examine friendly and hostile witnesses. Both parties may examine and cross-examine witnesses. No harassment or efforts to intimidate witnesses shall be permitted. The Commission members may examine witnesses at any point in their testimony. The testimony of all witnesses shall be under oath or affirmation.

(k) Irrelevant Testimony. Parties may object to clearly irrelevant material, but technical objections to testimony as used in a court of law will not be entertained. The Commission shall prohibit any testimony that it deems irrelevant in order to keep control of the hearing.

(l) Written Testimony. Written testimony shall be admitted into evidence during the hearing only when a witness cannot appear in person. When a party wishes to use the written testimony of a witness who cannot appear, the party must submit in advance of the hearing a written explanation for the nonappearance of the witness to the Commission. If the Commission is satisfied with the explanation, the party may obtain the testimony by means of an interrogatory. When, for reasons satisfactory to the Commission, an interrogatory cannot be used, an affidavit or deposition from the witness may be used. A signed but unsworn statement will be admitted into evidence only under unusual circumstances and when the Commission is satisfied that the testimony cannot be obtained otherwise.

(m) Closing Statement. Closing statements for each party will be permitted. The Director shall proceed first. [Res. 061293 (12/06/93) § 7.2]

3.24R.380 The decision.

The Commission shall render a decision by majority vote and deliver the decision in writing to each of the parties. [Res. 061293 (12/06/93) § 7.3]