The Cherokee Code: Published by Order of the Tribal Council of the Eastern Band of Cherokee Indians

Sec. 95-1. Minimum wage scale.

(a) Purpose: The purpose of this section is to protect and stabilize wages of persons employed by private persons or businesses on the Cherokee Indian Reservation.

(b) Scope: Every private employer who engages in business within the exterior boundaries of the Eastern Band of Cherokee Indians Reservation shall comply with all federal employment and wage laws, regulations and standards. The term "private employer" shall not include the Eastern Band of Cherokee Indians or any separately chartered Tribal organizations, entities or instrumentalities.

(Res. No. 37, 10-15-1953; Res. No. 192, 3-22-1982; Ord. No 226, 5-16-2000)

Secs. 95-2—95-10. Reserved.

(Res. No. 14, 10-16-1979; Ord. No. 593, 7-1-1999)

ARTICLE II. EMPLOYMENT PREFERENCE LAW

Sec. 95-11. Declaration of policy.

As a guide to the interpretation and application of this law, the public policy of the Eastern Band of Cherokee Indians is declared to be as follows:

Like land, water, and minerals, jobs in the private sector on or near the Reservation are an important resource for Indian people and Indians must use their rights to obtain their rightful share of such opportunities as they become available. Indians have unique and special employment rights and the Tribe has the inherent sovereign power to pass laws to implement and enforce those special rights on behalf of Indians. Indians are also entitled to the protection of the laws that the federal government has adopted to combat employment discrimination, and Tribal governments can and should play a role in the enforcement of those laws. The Tribe believes it is important to establish an employment rights program and office in order to use the aforementioned laws and powers to increase employment of Indian workers and to eradicate discrimination against Indians.

(Ord. No. 593, 7-1-1999)

Sec. 95-12. Definitions.

(a) Employee means any person employed for remuneration.

(b) Employer means any person, partnership, corporation or other entity that employs individuals for wages.

(c) Covered employer means the Tribe, all Tribal programs and entities, and all other employers who receive grant or contract funding from the Tribe, or who lease a parcel of tribally-owned land that is not assigned as a possessory interest to an individual Tribal member. All other employers are encouraged to use the TERO skills bank. Pursuant to Resolution 150 (1994), all employers holding a Trader's License and conducting business on Cherokee trust lands who desire to advertise for employment opportunities with newspapers and the media outside of Cherokee, shall also advertise such employment opportunities in the Cherokee One Feather, and such advertising shall be deemed a condition of conducting business on Cherokee trust lands.

(d) Entity means any person, partnership, corporation, joint venture, government, governmental enterprise, or any other natural or artificial person or organization. The term "entity" is intended to be as broad as possible to ensure this law's coverage over all employment activities within the Tribe's jurisdiction, and the term shall be so interpreted by the Commission and the Court.

(e) Commission or TERC means the Tribal Employment Rights Commission established by this law.

(f) Commercial enterprise means any activity by the Tribe or the federal or state governments other than a traditional government function as defined by the Internal Revenue Service.

(g) Indian means any member of a federally-recognized Indian Tribe.

(h) Local Indian means any member of the Eastern Band of Cherokee Indians, or any member of another federally-recognized tribe who resides within the exterior boundaries of the Reservation.

(i) Cherokee Indian Reservation or Reservation means the Qualla Boundary and all other lands held in trust for or owned by the Eastern Band of the Cherokee Indians.

(j) Tribe means the Eastern Band of Cherokee Indians.

(k) Cherokee Court or Court means the Court of Indian Offenses for the Eastern Band of Cherokee Indians, or any successor tribal court established by the Tribe.

(Ord. No. 593, 7-1-1999; Ord. No. 667, 9-7-1999)

Sec. 95-13. Indian preference in employment.

(a) All covered employers for all employment occurring within the Reservation shall give preference to qualified Indians with the first preference to local Indians in all initial hiring, training, and other aspects of employment. Local Indians shall also receive preferential protection from layoffs.

(b) Preference shall be given to local Indians who meet the minimum qualifications for a particular job, regardless of any higher qualifications that non-Indians may have. Spouses of local Indians who meet the minimum qualifications for a particular job shall be entitled to a second preference. (Covered employers may adopt promotion policies which reward employees who perform at higher levels of performance and such employers will not be bound to promote qualified Indians who meet only the minimum requirements of the job if these employees do not also meet the higher performance requirements set out in the promotion criteria of the covered employers' personnel policy. However, once the higher promotion criteria is met, preference will be given to the Indian meeting that promotion criteria.) This chapter shall not be construed to prevent a covered employer from selecting the most qualified Indian applicant, or from selecting a non-Indian if no qualified Indian applies for the job.

(c) No covered employer shall discriminate against any employee on the basis of gender, age, disability, or religion.

(d) For purposes of hiring, a covered employer who:

(1) Utilizes the hiring hall or skills bank established by the Commission,

(2) Notifies at least three Indians of the opportunity to apply for the job (unless fewer are listed for the available job), and

(3) Complies with subsections (b) and (c) of this section,
shall be considered in compliance with this preference law.

(e) All covered employers shall comply with the rules, regulations, guidelines, and orders of the Tribal Employment Rights Commission which set forth the specific obligations of employers in regard to Indian preference.

(f) The requirements of this law shall not apply to any direct employment by the federal, state or other governments or their subdivisions. It shall apply to all contractors or grantees of such governments and to all commercial enterprises operated by such governments.

(g) This law shall apply to the Tribe, except that section 95-23, 95-24, and 95-25 shall not. Any complaint against the Tribe for violation of this law shall be filed with the Director prior to a hearing and appeal under any applicable personnel policies and procedures of the Tribe and shall not be heard by the Commission. Nothing in this law shall be construed as a waiver of the Tribe's sovereign immunity.

(h) For purposes of initial hiring by the Tribe or a program funded by the Tribe, if a local Indian meeting the minimum qualifications applies for a job, no other person shall be hired without a prior resolution approved by the Tribal Council.

(Ord. No. 593, 7-1-1999; Ord. No. 674, 4-6-2001)

Sec. 95-14. Unions.

Any covered employer who has a collective bargaining agreement with one or more unions shall obtain written agreement from such union(s) stating that the union shall comply with Indian preference laws, and with the rules, regulations and guidelines of the Tribe. Such agreement shall be subject to the approval of the Director.

(Ord. No. 593, 7-1-1999)

Sec. 95-15. Commission; members; compensation; quorum.

(a) The Tribal Employment Rights Commission is hereby established.

(b) The Commission shall be composed of seven members of the Eastern Band of Cherokee Indians appointed by the Tribal Council, two of whom shall be Council Members, three of whom shall be EBCI Tribal members nominated by the Tribal Planning Board, and two of whom shall be nominated by the Principal Chief. The members shall be the same individuals as are appointed to the Tribal Business Preference Commission. The Commissioners shall serve until replaced.

(c) Members of the Commission shall be entitled to receive, upon presentation of proper vouchers, such mileage and per diem payments as are in effect for Commissioners of the Tribe or for committees or officers of the Tribal Council and such other compensation as the Tribal Council may appropriate.

(d) A majority of the Commission shall constitute a quorum to transact business. When a vacancy occurs in the Commission, the remaining members may exercise all the powers of the Commission until the vacancy is filled.

(Ord. No. 593, 7-1-1999; Ord. No. 667, 9-7-1999)

Sec. 95-16. Powers of the Commission.

The Commission has the full power, jurisdiction and authority to:

(a) Formulate, adopt, amend and rescind rules, regulations and guidelines necessary to carry out the provisions of this law. Except when an emergency exists, the Commission shall provide the public with a reasonable time for comment before promulgating any final regulations.

(b) Establish in consultation with tribal employment and training programs, a Tribal hiring hall or skills bank and impose a requirement that no covered employer may hire a non-Indian until the tribal hiring hall or skills bank has been contacted and the employer has complied with section 95-13(d) of this law.

(c) Prohibit covered employers from using qualification criteria or other personnel requirements that serve as barriers to Indian employment unless the employer can demonstrate that such criteria or requirements are required by business necessity. In developing regulations to implement this requirement, the Commission shall adopt the Equal Employment Opportunity Commission (EEOC) guidelines on these matters to the extent that they are appropriate. The Commission shall have the right to impose its own requirements in addition to or in lieu of EEOC guidelines when necessary to address unique qualification problems confronting Indians.

(d) Enter into agreements with unions to insure union compliance with this law. Such agreements shall in no way constitute recognition or endorsement of any union.

(e) Authorize the Director to assist members of the Tribe in enforcing employment rights under other federal, state, and Tribal laws, to the extent resources are available to do so.

(Ord. No. 593, 7-1-1999)

Sec. 95-17. Director; qualifications; staff; duties.

(a) The Commission shall have exclusive authority to appoint, direct, suspend or remove the Director of the Commission.

(b) The Director shall have such administrative ability, education and training as the Commission determines. He may be removed by the Commission for cause.

(c) The Director shall have authority to hire staff, to expend funds appropriated by the Tribal Council, and to obtain and expend funding from federal, state or other sources to carry out the purposes of the Commission, subject to approval by the Tribal Council.

(d) The Director shall administer the policies, authorities and duties prescribed for him in this law and delegated to him by the Commission pursuant to section 95-18.

(Ord. No. 593, 7-1-1999)

Sec. 95-18. Delegation of authority.

The Commission shall delegate to the Director the authority to carry out the day-to-day operations of the Commission and such other authority as is convenient or necessary to the efficient administration of this law except that the Commission may not delegate its power or duty to:

(a) Adopt, amend and rescind rules, regulations or guidelines.

(b) Conduct hearings or to impose sanctions pursuant to section 95-23.

(Ord. No. 593, 7-1-1999)

Sec. 95-19. Intergovernmental relationships.

The Commission, acting through the Director, is authorized to enter into cooperative relationships with federal employment rights agencies, such as the EEOC and the Office of Federal Contract Compliance Programs (OFCCP), in order to eliminate discrimination against Indians on and off the Reservation.

(Ord. No. 593, 7-1-1999)

Sec. 95-20. Complaints.

Any individual, group of individuals, or organization that believes any covered employer has violated any requirements imposed by this law or regulations issued pursuant to it, may file a complaint with the Director. The complaint shall be in writing and shall provide such information as is necessary to enable the Director to carry out an investigation. The Director shall investigate every complaint filed, provided it is filed within 180 days of the action that is the subject of the complaint. No investigation or further enforcement shall be allowed under this law if the complaint is not filed within that time period. If upon investigation he has reason to believe a violation has occurred, he shall proceed pursuant to the provisions of section 95-23. Within 20 days after receipt of the complaint and on a regular basis thereafter, the Director shall provide the complaining party with a written report on the status of the complaint.

(Ord. No. 593, 7-1-1999)

Sec. 95-21. Investigations.

On his own initiative or pursuant to a complaint, the Director or any field compliance officer designated by the Director shall make such public or private investigations as he or the Commission deems necessary to determine whether any covered employer has violated any provision of this law or any rule or order hereunder, or to aid in prescribing rules, regulations and guidelines hereunder. The Director or his delegate may enter during business hours the place of business or employment of any employer for the purpose of such investigations and may require the covered employer to submit such reports as he deems necessary to monitor compliance with the requirements of this law or any rule or order hereunder.

(Ord. No. 593, 7-1-1999)

Sec. 95-22. Power to require testimony and production of records.

For the purpose of investigations or hearings which, in the opinion of the Director or the Commission, are necessary and proper for the enforcement of this law, a Commissioner, the Director, or any field compliance officer designated by the Director may administer oaths or affirmations, subpoena witnesses, take evidence, and require the production of books, papers, contracts, agreements or other documents, records or information which the Director or the Commission deems relevant or material to the inquiry.

(Ord. No. 593, 7-1-1999)

Sec. 95-23. Enforcement.

(a) When after conducting an investigation initiated by a complaint pursuant to section 95-20, or a self-initiated investigation pursuant to section 95-21, the Director has reason to believe a violation of this law or regulations issued pursuant to it has occurred, the Director shall notify the covered employer in writing, specifying the alleged violations. However, he may withhold the name(s) of the complaining party if he has reason to believe such party shall be subject to retaliation. The Director shall seek to achieve an informal settlement of the alleged violation. If he is unable to do so, he shall issue a formal notice of noncompliance which shall also advise the covered employer of his right to request a hearing.

(b) The formal notice shall set out the nature of the alleged violation and the steps that must be taken to come into compliance. It shall provide the employer with a reasonable time, which in no event shall be less than five days from the date of receipt of such notice, to comply unless the Director has reason to believe irreparable harm will occur during that period in which case he may require that compliance occur within fewer than five days. If the party fails or refuses to comply, he may request a hearing before the Commission which shall be held no sooner than five days and no later than 30 days after the date for compliance set forth in the Director's notification to the party charged of a violation, unless an expedited hearing is deemed necessary by the Commission to avoid irreparable harm. If a party fails or refuses to comply and does not request a hearing, the Commission may proceed pursuant to subsection (e).

(c) If the party requests a hearing pursuant to subsection (b), and the Director has good cause to believe that there is a danger that the party requesting the hearing will remove itself or its property from the jurisdiction of the Tribe prior to the hearing, he may, in his discretion, require the party to post a bond with the Commission in an amount sufficient to cover possible monetary damages that may be assessed against the party at the hearing. If the party fails or refuses to post the bond, the Commission may proceed pursuant to subsection (e). The Director may also petition the Cherokee Court for such interim and injunctive relief as is appropriate to protect the rights of the Commission and other parties during the pendency of the complaint and hearing proceedings.

(d) Any hearing held pursuant to subsection (b) shall be conducted by the Commission. Conduct of the hearing shall be governed by the rules of practice and procedure which may be adopted by the Commission. The Commission shall not be bound by technical rules of evidence in the conduct of hearings under this law, and no informality in any proceeding, as in the manner of taking testimony, shall invalidate any order, decision, rule or regulation made, approved, or confirmed by the Commission. No stenographic record of the proceedings and testimony shall be required except upon arrangement by, and at the cost of the party charged.

(e) If after the hearing the Commission determines that the violation alleged in subsection (a) occurred and that the party charged has no adequate defense in law or fact, or if no hearing is requested, the Commission may:

(1) Refer the case to the Tribal Business Committee with a recommendation to deny such party the right to commence or conduct any further business on the Reservation, or to suspend or terminate such party's operations within the Reservation.

(2) Impose a civil fine on such party in an amount not to exceed $500.00 for each violation.

(3) Order such party to make payment of back pay to any aggrieved Indian.

(4) Order the party to take such other action as is necessary to ensure compliance with this law or to remedy any harm caused by a violation of this law consistent with the requirements of 25 U.S.C. 1301 et seq.

The Commission's decision shall be in writing, shall be served on the charged party by registered mail or in person no later than 30 days after the close of the hearing. Where the party's failure to comply immediately with the Commission's orders may cause irreparable harm, the Commission may move the Cherokee Court, and the Cherokee Court shall grant such injunctive relief as necessary to preserve the rights of the beneficiaries of this law pending the party's appeal or expiration of the time for appeal.

(Ord. No. 593, 7-1-1999)

Sec. 95-24. Appeals.

(a) An appeal to the Cherokee Court may be taken from any final order of the Commission by any party adversely affected thereby. Said appeal must be filed no later than 20 days after the party receives a copy of the Commission's decision. The Cherokee Court shall uphold the decision of the Commission unless it is demonstrated that the decision of the Commission is arbitrary, capricious or in excess of the authority of the Commission. The appeal shall be taken by serving a written notice of appeal with the Cherokee Court, with a copy to the Director within 20 days after the date of the entry of the order. The notice of appeal shall:

(1) Set forth the order from which appeal is taken.

(2) Specify the grounds upon which reversal or modification of order is sought.

(3) Be signed by appellant.

Except as provided in subsection (e) of section 95-23, the order of the Commission shall abate pending the determination of the Cherokee Court. However, the Director may petition and, for good cause shown, the Court may order the party requesting a hearing to post a bond sufficient to cover monetary damages that the Commission assessed against the party or to assure the party's compliance with other sanctions or remedial actions imposed by the Commission's order if that order is upheld by the Court. If the order of the Commission is reversed or modified, the Court shall, by its mandate, specifically direct the Commission as to further action in the matter, including making and entering any order or orders in connection therewith, and the limitations or conditions to be contained therein. If the Commission's order is upheld on appeal, or if no appeal is sought within 20 days from the date of party's receipt of the Commission's order, the Commission may petition the Court and the Court shall grant such orders as are necessary and appropriate to enforce the orders of the Commission and the sanctions imposed by it.

(b) If at any stage in the enforcement process the Commission has reason to believe there is a danger that a party will remove itself or its property from the jurisdiction of the Cherokee Court, such that the Commission or the Court will not be able to collect monetary damages that are (1) owed by that party pursuant to any outstanding order of the Commission or Court, or (2) which may be owed if the charges set out in any outstanding notice of violations are upheld, the Commission may petition the Cherokee Court pursuant to the rules and procedures of that Court to attach and hold sufficient property of the party to secure compliance or for such other relief as is necessary and appropriate to protect the rights of the Commission and other affected parties.

(Ord. No. 593, 7-1-1999)

Sec. 95-25. Confiscation and sale.

(a) If no appeal has been filed 21 days after a decision by the Commission pursuant to subsection (e) of section 95-23, or if a party has failed to comply with an order of the Court within 30 days after a decision by the Court on an appeal pursuant to subsection (a) of section 95-24, the Commission may petition the Court to order the Cherokee Police Department to confiscate and hold for sale such property of the party as is necessary to achieve compliance. Said petition shall be accompanied by a list of property belonging to the party which the Commission has reason to believe is within the jurisdiction of the Cherokee Court, the value of which approximates the amount of monetary damages at issue.

(b) If the Court finds the petition to be valid, it shall order the Police Department to confiscate and hold said property or as much as is available. The Police shall deliver in person or by certified mail a notice to the party informing it of the confiscation and of its right to redeem said property by coming into compliance with the order outstanding against it.

(c) If 30 days after confiscation the party has not come into compliance, the Court shall order the Police to sell the property and use the proceeds to pay any outstanding monetary damages imposed by the Commission and all costs incurred by the Court and Police in the confiscation and sale. Any proceeds remaining shall be returned to the party.

(Ord. No. 593, 7-1-1999)

Sec. 95-26. Repeal of inconsistent law.

Cherokee Code sections 95-2, 96-4, and 96-5, and all other laws or resolutions that are inconsistent with this law are hereby rescinded.

(Ord. No. 593, 7-1-1999)

Secs. 95-27—95-29. Reserved.

ARTICLE III. LABOR ORGANIZATIONS

Sec. 95-30. Declaration of policy.

The Tribe is wholly supportive of the individual freedom of choice in the pursuit of private employment within the territorial jurisdiction of the Eastern Band of Cherokee Indians. To that end, such free choice should be encouraged as a matter of public policy. Further, the right to work should not be subject to undue restraint or coercion, and should not be based upon membership in, affiliation with, or financial support of a labor organization. Nor should this right to work be jeopardized in any way by an individual's refusal to join, affiliate with, or financially or otherwise support a labor organization.

Further, the Eastern Band of Cherokee Indians possesses the inherent authority to exclude non-Indians from the territory of the Eastern Band of Cherokee Indians, as well as the authority to place conditions on entry, on continued presence, and on conduct within its jurisdiction.

Based on the above policy, the Eastern Band of Cherokee Indians has enacted the following regulations.

(Ord. No. 916, 9-13-2001)

Sec. 95-31. Definitions.

Business agent means any person who acts or attempts to act for or on behalf of any labor organization in:

(1) The issuance of membership or authorization cards, work permits, or any other evidence of rights granted or claimed in, or by, a labor organization;

(2) Soliciting or receiving from any employer any right or privilege for employees;

Employer means any person, firm, association, corporation and other business entity lawfully operating within the territorial jurisdiction of the Eastern Band of Cherokee Indians.

Labor organization means any organization of employees organized for the purpose of dealing with employers 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 Eastern Band of Cherokee Indians. The Tribal Employment Rights Commission is not considered to be a labor organization for purposes of this Article.

Territorial Jurisdiction of the Eastern Band of Cherokee Indians means all lands held in trust for the Eastern Band of Cherokee or its members and all other lands owned by the Eastern Band of Cherokee Indians.

(Ord. No. 916, 9-13-2001)

Sec. 95-32. Freedom of choice guaranteed.

(a) The right to work must be protected and maintained free from undue restraints and coercion. The right of persons to work shall not be denied or abridged by any employer or by any labor organization on account of membership or nonmembership in any labor union, labor organization, or association.

(b) No person shall be required to become or remain a member of any labor union or labor organization as a condition of employment or continuation of employment.

(c) No person, as a condition of employment or continuation of employment, shall be required to pay any dues, fees, or other charges of any kind to any labor union or labor organization or to pay to any charity or other third party, in lieu of such payments, any amount equivalent to or a pro-rata portion of dues, fees, assessment or other charges regularly required of members of a labor organization.

(d) No person shall be required, as a condition of employment or continuation of employment to be recommended, approved, referred, or cleared by or through a labor organization. This subsection shall not apply to regulations promulgated pursuant to Chapter 95, Article II of the Cherokee Code, Employment Preference Law.

(e) It shall be unlawful to deduct from the wages, earnings or compensation of an employee any union dues, fees, assessments, or other charges to be held for, transferred to, or paid over to a labor organization, unless the employee has first presented, and the employer has received, a signed written authorization of such deductions, which authorization may be revoked by the employee at any time by giving written notice of such revocation to the employer.

(f) No person shall be required by any employer to abstain or refrain from membership in any labor union or labor organization as a condition of employment or continuation of employment.

(g) It shall be unlawful for any person, labor organization, or officer, agent or member thereof, or employer, or officer or agent thereof, by any threatened or actual intimidation of an employee or prospective employee or his parents, spouse, children, grandchildren, or any other persons residing in the employee's or prospective employee's home, or by any damage or threatened damage to his property, to compel or attempt to compel such employee or prospective employee to join, affiliate with, or financially support a labor organization or to refrain from doing so, or to otherwise forfeit his rights as guaranteed by provisions of this Article. It shall be unlawful to cause or attempt to cause such employee to be denied employment or discharged from employment because of support or nonsupport of a labor organization by inducing or attempting to induce any other person to refuse to work with such employee.

(h) Any agreement, understanding or practice, written or oral, implied or expressed, between any labor organization and an employer which violates the rights of employees as guaranteed by the provisions of this Article is hereby declared to be against public policy, an illegal combination or conspiracy in restraint of trade, null and void and of no legal effect. Any strike, picketing, boycott, or other action by a labor organization for the sole purpose of inducing or attempting to induce an employer to enter into any agreement prohibited by this Article is hereby declared to be for an illegal purpose and is a violation of this Article.

(Ord. No. 916, 9-13-2001)

Sec. 95-33. Registration of labor organizations.

(a) Every labor organization operating within the territorial jurisdiction of the Eastern Band of Cherokee Indians shall file a report with the Office of Attorney General for the Eastern Band of Cherokee Indians, on or before 60 days after enactment of this Article and thereafter on or before December 31 of each year. The report, which shall be filed by the president of the labor organization, shall contain the following information:

(1) The name and address of the labor organization;

(2) The names and addresses of the president, secretary, treasurer, and business agent of the labor organization;

(3) The name and address of the national and/or international organization, if any, with which the labor organization is affiliated;

(4) A copy of the collective bargaining agreement(s) between the labor organization and any employer within the territorial jurisdiction of the Eastern Band of Cherokee Indians;

(5) A copy of the current Constitution and By-laws of the labor organization, as well as any amendments, i.e., the basic written rules governing the organization;

(6) Detailed information regarding qualifications for or restrictions on membership; levying of assessments; participation in insurance or other benefit plans; authorization for disbursement of labor organization funds; audit of labor organization financial transactions; the calling of regular and special meetings; the selection of officers and stewards and any representatives to other bodies composed of labor organizations' representatives; a specific statement of the manner in which each current officer was elected, appointed, or otherwise selected; discipline or removal of officers or agents for breaches of their trust and a specific statement regarding any past disciplinary action of removal of officers or agents for breach of their trust; impositions of fines, suspensions and expulsions of members including the grounds for such action and any provisions made for notice, hearing, judgment on the evidence, and appeal procedures, along with a detailed statement regarding any imposition of fines, suspensions and expulsions of members in the past calendar year; and

(7) A copy of the Labor Organization's Annual Report, as reported on the U.S. Department of Labor's Form LM-2.

(b) At the time the report is filed, the labor organization shall pay an annual fee of $25.00 to the Eastern Band of Cherokee Indians.

(c) The president of the labor organization shall file with the Office of Attorney General for the Eastern Band of Cherokee Indians a notice of any changes to the information required above within ten days after the changes are made and provide any additional information requested by the Office of Attorney General.

(d) It shall be a violation of this subsection for any labor organization or any person acting on behalf of any labor organization to fail to register or to make any false statements on any reports required to be filed pursuant to this Article.

(Ord. No. 916, 9-24-2001)

Sec. 95-34. Registration of business agents.

(a) No person shall act as a business agent of a labor organization within the territorial jurisdiction of the Eastern Band of Cherokee Indians unless that person has received a license from the Tribe's Business Committee.

(1) Any person who seeks such a license shall pay a license fee of $25.00, submit a statement signed by the president and the secretary of the labor organization which establishes the individual's authority to act as a business agent for the organization, and agree to undergo a background investigation.

(2) No person shall be issued a license to act as a business agent within the territorial jurisdiction of the Eastern Band of Cherokee Indians if that person has been convicted of a felony, has been convicted of a misdemeanor involving moral turpitude, is currently facing charges on a felony or on a misdemeanor involving moral turpitude or, based on the background investigation, is deemed by the Business Committee to be of questionable moral character.

(3) At any time after issuance of the license the Business Committee receives reliable information that the licensee should be deprived of his or her license based on the factors stated above, then the Business Committee may suspend or revoke the license. The license shall run for the calendar year for which it is issued unless sooner surrendered, suspended, or revoked.

(4) All licenses shall expire at midnight on December 31 of each year but may be renewed by the Business Committee on a form prescribed by the Committee for that purpose and upon the payment of an annual renewal fee of $25.00. However, if any license has been surrendered, suspended or revoked during the year, then the applicant must go through the requirements set forth in subsection (a)(1) above.

(b) It shall be a violation of this Article for any person to:

(1) Act as a business agent for a labor organization without having obtained a valid license;

(2) To act as a business agent of any labor organization without the authority of the labor organization to do so;

(3) To make any false statement on any reports required to be filed pursuant to this Article;

(4) To make any false statement in an application for a business agent's license.

(Ord. No. 916, 9-24-2001)

Sec. 95-35. Additional violations of this Article.

In addition to any violations already specified in this Article, it shall be a violation of this Article for any person to:

(1) Unlawfully seize or occupy any property during the existence of a labor dispute;

(2) Coerce or intimidate any employee in the enjoyment of his or her legal rights; coerce or intimidate any elected or appointed tribal official; or intimidate the family, picket the domicile, or injure the person or property of any employee or tribal official;

(3) Engage in picketing in any manner which constitutes a tribal offense, including picketing in a manner to prevent ingress to and egress from any premises, and picketing other than in a reasonable and peaceful manner.

(Ord. No. 916, 9-24-2001)

Sec. 95-36. Penalties.

(a) Any person who, directly or indirectly, violates any provision of this Article shall be subject to a fine not exceeding $1,000.00 or exclusion from the territorial jurisdiction of the Eastern Band of Cherokee Indians, or both.

(b) Criminal penalties. In addition to any civil penalties listed above, violation of this Article shall be punishable by a fine not to exceed $500.00, by a term of imprisonment not to exceed six months, or both.

(Ord. No. 916, 9-24-2001)

Sec. 95-37. Civil remedies.

Any person injured as a result of any violation or threatened violation of the provisions of this Article shall be entitled to injunctive relief from the Tribal Court and may, in addition, recover from the discriminating private employer, other person, firm, corporation, labor organization, labor union, or association, acting separately or in concert, such damages as he may have sustained and the costs of the suit, including reasonable attorney fees, resulting from the violation or threatened violation. If such employer, other person, firm, corporation, labor union, labor organization or association acted willfully or with reckless indifference to the rights of others, punitive damages may be assessed.

This remedy shall be independent of and in addition to any other penalties and remedies prescribed by applicable law.

(Ord. No. 916, 9-24-2001)

Sec. 95-38. Severability.

The provisions of this Article 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 effect the remaining provisions of this Article.

(Ord. No. 916, 9-24-2001)

Sec. 95-39. Sovereign immunity

Nothing in this Article shall be construed as waiving the sovereign powers or immunities of the Eastern Band of Cherokee Indians or its agents, entities, instrumentalities, employees, or officials, nor shall anything in this Article be construed as imposing any requirements of the National Labor Relations Act on the Tribe, its agents, entities, instrumentalities, employees, or officials.

(Ord. No. 916, 9-24-2001)

ARTICLE IV. TRIBAL EMPLOYERS PROHIBITED FROM ENTERING INTO COLLECTIVE BARGAINING CONTRACTS WITH LABOR UNIONS, TRADE UNIONS OR LABOR ORGANIZATIONS

Sec. 95-40. Contracts between Tribal employers and labor unions, trade unions or labor organizations concerning employees of the Tribe and/or its enterprises are declared to be illegal.

Any agreement or contract between the governing authority of the Eastern Band of Cherokee Indians or any agency, enterprise, entity, unit or instrumentality of the Eastern Band of Cherokee Indians, and any labor union, trade union, or labor organization, as bargaining agent for any such employee of the Eastern Band of Cherokee Indians, or any such employee of any agency, enterprise, entity, unit or instrumentality of the Eastern Band of Cherokee Indians, is hereby declared to be against the public policy of the Tribe, illegal, unlawful void and of no effect.

(Ord. No. 211, 4-29-2002)

Sec. 95-41. Strikes by Tribal employees prohibited.

Strikes by employees of the Eastern Band of Cherokee Indians or by employees of any agency, enterprise, entity, unit or instrumentality of the Eastern Band of Cherokee Indians are hereby declared illegal and against the public policy of the Eastern Band of Cherokee Indians. No person holding a position with the Eastern Band of Cherokee Indians or with any agency, enterprise, entity, unit or instrumentality of the Eastern Band of Cherokee Indians, shall willfully participate in a strike by such Tribal employees.

(Ord. No. 211, 4-29-2002)

Sec. 95-42. Strike defined.

The word "strike" as used herein shall mean a cessation or deliberate slowing down of work by a combination of persons as a means of enforcing compliance with a demand upon the employer. Provided, however, that nothing herein shall limit or impair the right of any public employee to express or communicate a complaint or opinion on any matter related to the conditions of public employment so long as the same is consistent with tribal personnel policies and is not designed to and does not interfere with the full, faithful, and proper performance of the duties of employment.

(Ord. No. 211, 4-29-2002)

Sec. 95-43. Violation of article.

(a) Any violation of the provisions of this article shall be punishable by a fine not to exceed $1,000.00 or imprisonment of not more than 150 days, or both.

(b) Any violation of the provisions of this article shall also subject the violator to other remedies and/or penalties set forth in chapter 14, article 1 of the Cherokee Code.

(Ord. No 211, 4-29-2002)

(a) Employers on the reservation shall grant four hours of leave per year to any employee who is a parent, guardian, or person standing in loco parentis of a school-aged child so that the employee may attend or otherwise be involved at that child's school. However; any leave under this section is subject to the following conditions:

(1) The leave shall be at a mutually agreed upon time between the employer and the employee.

(2) The employer may require an employee to provide the employer with a written request for the leave at least 48 hours before the time desired for the leave.

(3) The employer may require that the employee furnish written verification from the child's school that the employee attended or was otherwise involved at that school during the time of the leave.

For the purpose of this section, "school" means any:

(1) Public school;

(2) Private church school, church of religious charter; or nonpublic school that regularly provides a course of grade school instruction;

(3) Preschool; and

(4) Child care facility.

(b) Employers shall not discharge, demote, or otherwise take an adverse employment action against an employee who requests or takes leave under this section. Employers shall pay an employee for leave taken under this section.

(c) An employee who is demoted or discharged or who has had an adverse employment action taken against him or her in violation of this section may bring a civil action within one year from the date of the alleged violation against the employer who violates this section and obtain either of the following:

(1) Any wages or benefits lost as a result of the violation; or

(2) An order of reinstatement without loss of position, seniority, wages, or benefits.

The burden of proof shall be upon the employee.

(Ord. No. 853, 6-25-2003)

Secs. 95-51--95-59. Reserved.

ARTICLE VI. CRIMINAL HISTORY CHECKS

Sec. 95-60. Criminal history checks required.

Covered employers are hereby required to con duct criminal history checks on all current employees, volunteers and future job applicants whose duties and responsibilities will allow them regular contact with or control over children under the 18 years of age and to employee only persons who meet the standards of character necessary to establish a person's fitness to have responsibility for the safety and well-being of children under 18 years of age. All existing employees within the group described above must receive criminal history checks not later than December 31, 2004. Except in so far as provisional hiring is allowed under section 95-66, no person in the subject class may be hired or allowed to volunteer after July 1, 2004, without a criminal history check having been completed on that person.

(Ord. No. 155, 6-28-2004)

Sec. 95-61. Definitions.

For the purposes of this section:

Child or children means any person under 18 years of age.

Child sensitive position means any position of employment or volunteering where duties and responsibilities of the employee or volunteer al low that person regular contact with or control over children under the 18 years of age. This definition includes, but is not limited to, persons working or volunteering in the following areas: child protective services (including the investigation of child abuse and neglect reports), social services, health and mental health care, child (day) care, education (whether or not directly involved in teaching), foster care, residential care, recreational or rehabilitative programs, detention, correctional or treatment services, or any other program where an employee's or volunteer's duties bring them in regular contact with or control over children under the age of 18 years.

Covered employer means the Tribe, all tribal programs and entities, and all other employers who receive grant or contract funding from the Tribe, or who lease a parcel of Tribally owned land that is not assigned as a possessory interest to an individual Tribal member.

(Ord. No. 155, 6-28-2004)

Sec. 95-62. Investigations.

A criminal history check required in this article shall be:

(1) Based on a set of the employee's or volunteer's fingerprints obtained by a law enforcement officer and other identifying information obtained from the employee's or volunteer's job application;

(2) Conducted through the Federal Bureau of Investigation, (and when required for certification and/or licensing purposes, by the state criminal history repositories as well), local court systems, all applicable tribal court systems and all state and tribal sexual offender registration repositories based on the counties and states listed by the prospective employee or volunteer in the job application; and

(3) Initiated through the human resource departments of the covered employers.

(Ord. No. 155, 6-28-2004)

Sec. 95-63. Confidentiality.

The results of criminal history checks shall be treated as confidential and shall be communicated only to the appropriate supervisors and/or persons involved in the hiring/retention/termination decision. In addition, covered employers may disclose this information to other tribal divisions, departments and entities when requested by an other covered employer in connection to any employment or volunteer applications submitted by a potential or present employee or volunteer and in defense of any personnel-related complaint when the information is needed in an administrative or judicial proceeding.

(Ord. No. 155, 6-28-2004)

Sec. 95-64. Use of investigation results.

(a) The covered employer shall use the results of criminal history checks to aid in the determination of whether an applicant should be placed in a child sensitive position, whether a current employee/volunteer should be allowed to remain in a child sensitive position, or whether the applicant's criminal history poses a threat to the safety of the employees or volunteers working within a particular department.

(b) Individual covered employers shall also use results of criminal history checks if a current employee or volunteer of the covered employer moves within the entity to another position (i.e., through transfer, demotion, promotion, or rehire with no break in service).

(Ord. No. 155, 6-28-2004)

Sec. 95-65. Maintenance of investigation results.

Each covered employer shall maintain the results of criminal background checks in a locked file cabinet located in the appropriate human resources department. Procedures shall be developed by each covered employer to ensure the confidentiality of this information.

(Ord. No. 155, 6-28-2004)

Sec. 95-66. Provisional hiring or approval.

A covered employer may hire a person or approve a volunteer provisionally before the completion of a criminal history check if; at all times prior to receipt of the criminal history check, during which children are in the care of the provisional employee or volunteer, the provisional employee or volunteer is within the sight and under the supervision of a staff person for which a criminal history check has been completed.

(Ord. No. 155, 6-28-2004)

Sec. 95-67. Felony and misdemeanor offenses.

(a) The minimum standards of character required in this article shall be applied to ensure that none of the individuals hired for, appointed to, or allowed to volunteer for, child sensitive positions, have been found guilty of; entered a guilty plea to, or entered plea of nolo contendere to, regardless of the form of judgment or sentence, any of the following offenses:

(1) Any misdemeanor or felony offenses under federal, state, or tribal law for crimes involving children; sexual assault, harassment, molestation, sexual exploitation or contact;

(2) Any two (2) or more misdemeanor offenses under federal, state, or tribal law involving crimes of violence, prostitution, or crimes against persons; or

(3) Any felonious offense, including misdemeanor acts committed within Indian territory, which, if it had been committed outside the territorial jurisdiction of the Eastern Band of Cherokee Indians (or any other Indian territory), would have been considered a felony under North Carolina law.

(b) If the individual's criminal history reveals a felony or misdemeanor offense prohibited in this section, such evidence shall constitute grounds for denying employment or dismissing an employee or volunteer in any child sensitive position.

(c) Any arrest, charge or conviction of a crime that bears upon an individual's fitness to have responsibility for the safety and well-being of children including, but not limited to, crimes involving violence, offenses against public morality and decency, public intoxication, possession or sale of drugs and alcohol related offenses such as the sale to underage persons or driving while impaired, may be grounds for denying employment or dismissal of an employee or volunteer in any child sensitive position.

(Ord. No. 155, 6-28-2004)

Sec. 95-68. Effect of undisposed charges.

If a person has been charged with an offense that falls within the offenses prohibited in section 95-67, an employer may initiate termination proceedings against that person even though the charge has not yet been disposed of.

(Ord. No. 155, 6-28-2004)

Sec. 95-69. Employment applications.

Employment and volunteer applications for persons who are seeking to work regularly with covered employers in a child sensitive position shall contain the following questions:

(1) Have you ever been arrested or charged with a crime involving a child? If the answer is "yes," describe the nature of the arrest or the crime charged, the date of the arrest or charge, the county and state or reservation in which you were arrested or charged and the disposition or outcome of the arrest or charge.

(2) Have you ever been arrested, charged or convicted of a felony or misdemeanor? If the answer is "yes," describe the nature of the crime(s) for which you were arrested, charged or convicted, the date of the arrest, charge or conviction, and the county and state or reservation in which you were arrested, charged or convicted and the disposition or outcome of the arrest, charge or conviction.

(3) Are you a member of an Indian tribe: If the answer is "yes," what is the name of the Tribe, state and county in which the Tribe's reservation is located and the name of the reservation. If there is no reservation please explain.

(4) Have you ever worked for an Indian Tribe or lived within the boundaries of Tribal land? If the answer is yes to either, describe your employment, as well as the name and location of the Tribe(s) for which you worked or lived.

(5) List all states and counties within those states, counties and Indian reservations in which you have resided during your lifetime since you were eighteen (18) years of age.

(Ord. No. 155, 6-28-2004)

Sec. 95-70. Mandatory notice to employees and volunteers.

Each employee or volunteer in any child sensitive position with a covered employer must receive a "Notice for Mandatory Criminal History Checks" and sign an "Authorization" that includes, at a minimum, the following:

NOTICE FOR MANDATORY CRIMINAL HISTORY CHECKS

Federal law requires that a criminal history check be conducted on all individuals whose duties and responsibilities would allow them regular contact with or control over children. The Eastern Band of Cherokee Indians (EBCI) and affiliated entities (i.e., covered employers) also require that criminal history checks be conducted on all volunteers who will have regular contact with or control over children.

Covered employers will employee and allow as volunteers only individuals who meet the standards of character required for an individual's fitness to have responsibility for the safety and well-being of children as outlined in the Cherokee Code.

Your initials will indicate that you have been notified of the mandatory criminal records check as a condition of your employment in positions that require regular contact with children. You have a right to obtain a copy of the criminal history report that will be made available to the covered employer and the right to challenge the accuracy and completeness of the information contained in the report.

Covered employers may also require back ground checks for any other employee or applicant it deems appropriate.

                      (Initials)

AUTHORIZATION

I authorize the (insert employer's name) to perform a criminal history check in connection with my fitness to be an employee or volunteer for (insert employer's name). I understand that (insert employer's name) shall not be held legally accountable in any way for providing my identifying information to any consumer credit agency, Federal Bureau of Investigation, state, local or Tribal entities. I release (insert employer's name) from any and all liability which may be incurred as a result of furnishing such information.

I authorize the release of any information, record, file or document requested by the Eastern Band of Cherokee Indians from any and all private or public institutions, organizations, and governmental agencies. All information may be furnished as if the request is made by me in person or in writing.

I certify to the best of my knowledge and belief all of the information on and attached to this application is true, correct, complete and made in good faith. I understand that a false or fraudulent answer to any question on any part of this application may be grounds for not hiring me, or for firing me after I begin work, and may be punishable under the federal perjury laws by fine or imprisonment according to the United States Code, Title 18, section 1001.

Signature of Employee/Applicant/Volunteer

Date

(Ord. No. 155, 6-28-2004)

Sec. 95-71. Enforcement.

(a) It is the sole responsibility of every covered employer through its human resource manager or designated hiring representative or agent to comply with this article.

(b) Failure of a covered employer to comply with this article shall be deemed a serious violation and will result in corrective action taken against the appropriate personnel.

(Ord. No. 155, 6-28-2004)

Back to Table of Contents