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TERO stands for Tribal Employment Rights Ordinance or Office. TERO Ordinances require that all employers who are engaged in operating a business on reservations give preference to qualified Indians in all aspects of employment, contracting, and other business activities. TERO Offices were established and empowered to monitor and enforce the requirements of the tribal employment rights ordinance.
The primary purpose of the TERO program is to enforce tribally enacted Indian Preference law to ensure that Indian/Alaska Native people gain their rightful share of employment, training, contracting, subcontracting, and business opportunities on and near reservations and native villages.
A Tribe’s authority to enact and enforce an Indian/Native employment preference law is grounded in its inherent sovereign status. This legal doctrine is the most fundamental principle of Indian law and is supported by several Supreme Court decisions. 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 that have never been taken away. Tribes have a primary 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 has not been expressly limited remains within tribal sovereignty.
The core characteristics of the program provide additional and valuable insights into why the law and enforcement program is needed and applied. The following are three vital characteristics of TERO.
Indian preference is a unique legal right that tribal members have that entitles them to first consideration for all employment, training, contracting, subcontracting, and business opportunities that exist on and, in some cases, near reservations.
The answer to this question is no. Indian preference first appeared in Federal regulations in 1834. Since then, most new laws and regulations related to tribes and Indian people include preference provisions. Tribal Employment Rights Ordinances (TEROs) were initially enacted by tribes in late 1976 and early 1977. Today, there are almost 300 Tribes and Alaska Native Villages that are covered by TERO ordinances.
The answer to this question is no. There are no federal laws that 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 (see Morton v. Mancari in the appendix section on the applicability of federal law, page #4 of that section). Additionally, court rulings have held that Indian preference is a political preference and not a racial preference and, as such, does not violate the dictates of federal employment law.
TERO has jurisdiction over all employers operating within the exterior boundaries of the reservation as legally defined by treaty or legislation including ceded lands, territories, and lands where jurisdiction has not been extinguished. TERO jurisdiction covering employers working on fee land projects has been greatly reduced by the Montana v. U.S. A. case.
All covered employers operating a business within tribal/village jurisdiction are required to provide Indian and Native preference in employment, training, contracting, sub-contracting, and all other aspects of employment. Below are several specific examples employers are required to comply with. Employers must:
Yes. There are several exemptions. Most TERO ordinances exempt direct employment by the Tribe, Federal, State, or other governments and their subdivisions, non-profit corporations, churches, schools, etc. However, all contractors, regardless of the source of funding, are covered by the TERO requirements. At the individual level, the only exemption allowed Is for the employer's “core crew or key person,” which is defined as:
“…a member of a contractor’s or subcontractor’s crew who is a regular, permanent employee and is a supervisor or other key position such that the employer would face a serious financial loss if that position were filled by a person who had not previously worked for the contractor.”
Violation of TERO requirements may result in severe sanctions. If it is determined that employers have willfully violated TERO requirements, tribes have the power to:
Yes. Employers are entitled to due process of law. Their rights are protected by both provisions included in the TERO ordinance and by the enforcement process and procedures used by TERO officers to ensure employer compliance. Both TERO officers and commissions are well-trained to investigate and utilize the facts and merits of a case before taking action against an employer. The TERO investigative process is designed to weed out frivolous and capricious charges brought on against employers.
Most tribes impose a TERO fee on all employers doing business on reservations. The fees collected by the TERO are used to finance operational costs and program services. Services include recruiting, referrals, screening, job counseling, orientations, employee Support services, compliance, charge processing, investigations, and community awareness education sessions. It is not clear if Native Village governments can impose a fee on employers, but many federal agencies have negotiated special contracts with a tribal TERO for the services listed above
Yes. Tribal authority to tax is equal to that of any other government. Taxation is a basic right of a sovereign government. The power of Indian tribes to tax has been confirmed by the U.S. Supreme Court in Merrion v. Jicarilla Apache Tribe 455 U.S. 130 (1882). Taxation, licenses, and other fees are a valuable source for financing tribal governmental operations. TERO programs have the unique ability to generate their own operating income as well as contribute to the general fund of the Tribe.
No. There are over 550 (federally recognized) independent tribal nations throughout the United States. While there is much in common between tribes, each is diverse in its own community culture, needs, values, and priorities. Each tribe, therefore, makes its own legislative decisions to meet its own set of wants and needs.
No. TERO fees range from 1 to 4, with a national average of about 2.5. The much lower Tribal taxes/fees preempt other taxes on tribal reservation projects and often result in substantial savings to contractors; most states' taxes, for example, are in the 6-10 range.
No. Since TERO programs practice proactive enforcement, the compliance plans signed by the TERO and employer prior to the commencement of work generally prevent disputes. Most TERO ordinances provide for compliance and enforcement visits to worksites during normal business hours but not to the detriment of operations. A TERO sanction of an employer for violations of the law could cause a delay or shutdown of an employer’s operation. With this in mind, note that TERO would apply sanctions after all efforts to resolve the case have failed in the most severe circumstances and only in strict accordance with the process of Tribal law.
TERO programs use a variety of legal tools to ensure that Indian/Native people receive their rightful share of employment and other economic opportunities both on and near reservations and villages. The two illustrations that follow show the various legal tools used by TERO officers. The circle illustration lists laws that range from tribal Indian preference to federal laws that protect against unlawful discrimination. The second chart illustration gives the basic federal laws that permit Indian preference and includes special initiatives between the TERO and the federal enforcement agency. See page 19 for graphic on legal TERO framework.
Jicarilla Apache Nation TERO
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