Piliero Mazza &
Pargament, PLLC


Vol. 2, Issue 2
February 2000


Addressing Tribal and Alaska Native Corporation
Legal and Business Issues


The articles shown here
are excerpts --
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A R T I C L E S


BUSINESS
Application of the Occupational Safety and Health Act to Tribal Employers



GOVERNMENT
The Practical Effect of Public Law 83-820: A Basic Overview



EMPLOYMENT/LABOR
Application of the WARN Act to Tribal Enterprises

Working Toward a Drug-Free Workplace: Drug Testing and Privacy Concerns



GAMING
Comment Deadline Extended for Proposed Gaming Reclassification Rule



ASK THE ADVOCATE
Status of the BIA's Proposed Land Acquisition Regulations?




H O M E


P U B L I C A T I O N S




BUSINESS

Application of the Occupational Safety and Health Act to Tribal Employers

During recent years, many tribes have experienced significant economic growth and expansion. In the process, many tribal businesses have hired new employees. Consequently, tribal employers have been faced with a number of pressing employment-related issues, including the extent to which federal employment laws govern their relationships with employees. This article, therefore, addresses the applicability of the Occupational Safety and Health Act ("OSHA" or the "Act") to tribal employers.

The Act's purpose is to "assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources." To that end, OSHA imposes upon employers that engage in "businesses affecting commerce" certain obligations with respect to maintaining safe and clean working environments.





GOVERNMENT

The Practical Effect of Public Law 83-820: A Basic Overview

Public Law 83-280, commonly referred to as "P.L. 280", was passed by Congress in 1953. As originally enacted, this law directed five states – California, Minnesota, Nebraska, Oregon and Wisconsin – to exercise complete criminal and limited civil jurisdiction over Indian reservations located within their territories. Because these states were required to assume this jurisdiction, they became known as the "mandatory" states. Alaska was added as a sixth "mandatory" state in 1958. P.L. 280 also authorized the remaining forty-four (44) states to assume, at their option, the same jurisdiction over Indian reservations located within their territories. Only ten (10) states within the "option" category chose to assume any jurisdiction over Indian reservations. (These states included Arizona, Florida, Idaho, Iowa, Montana, Nevada, North Dakota, South Dakota, Utah and Washington.)

Not surprisingly, many tribes objected to P.L. 280 because they saw it as a violation of their sovereign immunity. Those tribes located in the "option" states were especially concerned about the way the law was structured, because it allowed those states to assume or increase their jurisdiction at any point in time. In response to these concerns, Congress amended P.L. 280 in 1968 to add language requiring the consent of an Indian tribe before an "option" state could exercise jurisdiction. However, tribes located in states that had already assumed jurisdiction under P.L. 280 were not given any mechanism by which they could force those states to return or recede their jurisdiction. Nonetheless, in response to requests from States exercising jurisdiction under P.L. 280, Congress included a provision within the Indian Civil Rights Act that allowed states to return all or any portion of their jurisdiction. Requests to return jurisdiction are subject to approval by the Secretary of the Interior, but do not require approval from the affected tribes.

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EMPLOYMENT/LABOR

Application of the WARN Act to Tribal Enterprises

The Worker Adjustment and Retraining Notification Act ("WARN Act" or "Act"), requires employers with one hundred or more employees to give their employees at least 60days notice before closing a facility or engaging in a mass layoff. However, Department of Labor regulations recognize tribal sovereign immunity and state that Indian tribal governments are not subject to the Act. Therefore, the determination as to whether the WARN Act applies to a tribal enterprise depends upon whether the enterprise is covered by the sovereign immunity of the tribe.


Working Toward a Drug-Free Workplace: Drug Testing and Privacy Concerns

Many employers, both public and private, either have implemented or consider implementing an employee drug testing program. Depending upon the nature of the business, some federal and state laws require employers to implement drug testing procedures, especially if they are involved in federal government contracting or are recipients of certain federal grants, such as the Native American Housing Assistance and Self-Determination Act of 1996. Therefore, it is important for Indian tribes and Alaska Native Corporations who are involved in government contracting or are receiving federal grant funds, to become familiar with applicable drug testing requirements and to develop programs that effectively balance drug use and privacy concerns.

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GAMING

Comment Deadline Extended for Proposed Gaming Classification Rule

The deadline for submitting comments regarding the new classification procedures proposed by the National Indian Gaming Commission ("NIGC") on November 10, 1999, has been extended to February 24, 2000. Comments should be mailed or faxed to:

Game Classification Comments
National Indian Gaming Commission
1441 L Street NW, Suite 9100
Washington, D.C. 20005
Fax 202-632-7066

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ASK THE ADVOCATE

Q: What is the status of the BIA's proposed land acquisition regulations?

A.
BIA is currently in the process of reviewing the comments submitted in response to the land acquisition regulations that were proposed April 14, 1999. Over 750 comments were submitted by a wide variety of interested parties, including tribes, local and state governments, members of Congress, local BIA offices, law firms, the National Governors Association, the National Association of Attorneys General, and individuals from communities that might be affected by the proposed regulations. The National Congress of American Indians took the lead by submitting comments addressing a number of issues, meeting repeatedly with BIA representatives, and providing information to tribes to assist with their submissions. The BIA will be reviewing these comments over the next several months and will be required to address the issues raised in the comments before issuing the final proposed regulations. Look in the March issue of the Tribal Advocate for an in-depth report.

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