101 Things Everyone Should Know About Tribal Employment: A Manager’s Practical Guide to Five Topics and over 101 Concepts Which If Implemented Will Make the Tribal Organization Better

By Richard G. McGee

101 Things is about working for a Native American or Indian employer. The phrase “tribal employer” is used to refer to working for a Native American tribe, nation, pueblo, rancheria or community. Many aspects of working for a tribal employer are exactly like working for a non-tribal employer and many aspects are different. This book’s objective is to assist tribal leaders and employees who manage others in a tribal workplace understand some of the differences in a tribal workplace and ways to be more effective in those circumstances.

Tribal employers are unique from non-tribal employers and each tribe is unique from other tribes. Because tribes are sovereign governments, the laws and regulations which apply to non-tribal employers may, or may not, apply to tribal employers. That unique aspect of tribes as employers requires leaders and employees to have a working knowledge of self-determination, sovereignty, immunity, jurisdiction and whether certain laws apply. Understanding these legal concepts and how they impact employment related matters will make tribal leaders and employees more effective in performing their roles. The book starts with those legal concepts and moves into employment practices like hiring, managing and discipline.

• Language: English
• Publisher: Xlibris US
• Release date: Oct 22, 2020
• ISBN: 9781664129788

Book preview

Copyright © 2020 by Richard G. McGee.

All rights reserved. No part of this book may be reproduced or transmitted

in any form or by any means, electronic or mechanical, including photocopying,

recording, or by any information storage and retrieval system,

without permission in writing from the copyright owner.

This is a work of fiction. Names, characters, places and incidents either are the

product of the author’s imagination or are used fictitiously, and any resemblance

to any actual persons, living or dead, events, or locales is entirely coincidental.

Any people depicted in stock imagery provided by Getty Images are models,

and such images are being used for illustrative purposes only.

Certain stock imagery © Getty Images.

Rev. date: 10/21/2020

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Contents

Author’s biography

Introduction

Chapter 1   Sovereignty and Immunity

101 What is the manager’s role regarding self-determination?

102 What is the manager’s role regarding sovereignty?

103 What is inherent sovereignty versus delegated sovereignty?

104 What is the manager’s role regarding immunity?

105 Why is getting consent to the rules important?

106 What is due process in the tribal workplace?

107 Can due process have a positive impact on limiting politics?

108 What is the manager’s role in sum?

Chapter 2   What Law Applies

201 Assumption that tribal rules apply.

202 What is the impact of state employment laws?

203 What is the impact of federal employment laws?

204 What is the impact of funding agreements, compacts, and tribal choices?

205 What is the hierarchy of the law, handbooks, and policy?

206 How do employers define success and failure for employees?

207 Are tribes equal opportunity employers?

208 What should managers know about personnel files and ghost files?

Chapter 3   Hiring

301 Are you prepared to hire?

302 Who has the power to hire?

303 What is the criteria for hiring?

304 What is prehire due diligence?

305 For gaming employees, what is the gaming commission’s role?

306 What are interview best practices?

307 What are the best practices in selecting candidates to employ?

308 What is the manager’s role in on-boarding a new or transferred employee?

309 Do persons not hired have legal rights?

Chapter 4   Managing

401 Is employee satisfaction mostly about managers?

402 Managers versus leaders

403 What are the best practices in defining employee expectations?

404 Managers engage in corrective action

405 Manager ethics

406 What is a manager’s influence on the atmosphere at work?

407 What should employers do about bullies at work?

408 Should managers aspire to more than meeting minimum standards?

409 What are the best practices for documenting employee behavior?

410 What is the manager’s role in investigating employee misconduct?

411 What is the manager’s role in addressing retaliation?

412 How do employers lower the expectation of privacy in employer property?

413 How to enforce changing workplace rules?

414 What are the best practices for performance evaluations?

415 Independent contractor or employee…does it matter?

416 What do managers need to know about employment benefits?

417 What thirteen things do managers need to know about the FMLA?

418 What eight things do managers need to know about the FLSA?

419 What five things do managers need to know about the NLRA?

Chapter 5   Termination

501 Why do managers need to understand at-will employment and not use it?

502 What are the eighteen things managers should consider in the termination process?

Conclusion

Appendix A

Appendix B

Resources

Author’s biography

Richard G. McGee is the principal attorney at the law office of Richard G. McGee, LLC in Plymouth, Minnesota. Mr. McGee works with tribal employers on the full range of employment-related issues. Mr. McGee assists tribes with drafting employee handbooks, promulgating employment codes, performing employee investigations, representing tribes in court, and consulting on employment decisions. As part of his work with tribal employers, he wrote Drafting Tribal Employment Laws & Handbooks (Xlibris 2020) and A Guide to Tribal Employment (Xlibris 2008). In addition to his work as an attorney, Mr. McGee serves as chief justice of the appeals court for the Ponca tribe of Nebraska.

Mr. McGee was assistant general counsel for the Prairie Island Indian Community. The Prairie Island Indian Community owns and operates Treasure Island Resort and Casino. Both the Prairie Island Indian Community and Treasure Island Resort and Casino are located in southeast Minnesota.

Before joining the Prairie Island Indian Community, Mr. McGee spent over a decade litigating business and employment cases as a lawyer at Arnold, Anderson & Dove in Minneapolis, Minnesota. Mr. McGee is a graduate of the Oklahoma University law school located in Norman, Oklahoma.

Can I rely on this book as legal advice?

No.

This book does not provide legal advice and does not form a relationship between client and lawyer. Do not rely on any aspect of this book without first seeking competent legal advice.

To Andrew, Therese, Claire, Molly, Lisa, and Jesse

Introduction

This book is about working for a Native American or Indian employer. The phrase tribal employer is used to refer to working for a Native American tribe, nation, pueblo, rancheria, or community. Many aspects of working for a tribal employer are exactly like working for a nontribal employer, and many aspects are different. This book’s objective is to assist tribal leaders and employees who manage others in a tribal workplace in understanding some of the differences in a tribal workplace and ways to be more effective managing in those circumstances.

Tribal employers are unique from nontribal employers, and each tribe is unique from other tribes. Because tribes are sovereign governments, the laws and regulations that apply to nontribal employers may, or may not, apply to tribal employers. That unique aspect of tribes as employers requires leaders and employees to have a working knowledge of self-determination, sovereignty, immunity, jurisdiction, and whether certain laws apply. Understanding these legal concepts and how they impact employment-related matters will make tribal leaders and employees more effective in performing their roles. The book starts with those legal concepts and moves into employment practices.

This book’s five chapters are as follows:

Sovereignty and Immunity

What Law Applies?

Hiring

Managing

Termination

The book’s first two chapters summarize the interesting concepts of self-determination, sovereignty of the tribe, sovereign immunity of the tribe and the employees, agents and officials of the tribe, the reach of the tribe’s jurisdiction and various legal concepts addressing whether federal and state laws apply, a working definition of due process, a meaningful conversation regarding equal opportunity in employment, and the role of personnel files. The book’s remaining three chapters address hiring, managing, and terminating. Some of the subtopics in those chapters evaluate rules that are unique to tribal employers (think Indian preference) and other subtopics that are not unique to tribal employers (think at-will employment) but are necessary for managers to understand and apply.

The book includes two appendices. Appendix A summarizes the 101 things (actually 128 things) everyone needs to know about tribal employment. The author acknowledges that 128 things is not consistent with the book’s title, which references 101 things. Since 101 things is more memorable than a title referencing 128 things, the title remains. This may be the only instance where the book exceeds readers’ expectations, but at least there is one instance.

Appendix B is a test wherein the reader is evaluated regarding the content of the book. The test tends to focus the attention of the participants in training, whether graded or not.

Each of these concepts is addressed through the lens of a tribal leader, general manager, administrator, director, manager or supervisor.

Why?

Because tribal leaders, general managers, administrators, directors, managers, and supervisors all manage employees in a tribal workplace. The tribal chairman helps manage the tribal administrator, the casino’s general manager likely manages a dozen directors, and the director of child welfare manages eight different people on her team. Because the ability to manage others in the tribal workplace is a critical skill exercised by many, this book is focused on helping people manage others more effectively.

When this book uses the word manager, it is used in the broadest sense possible to include tribal leaders, general managers, administrators, directors, managers, and supervisors. By using manager to refer to a tribal leader, that is not to diminish a tribal leader’s role. Of course, tribal leaders do significantly more than manage tribal administrators, for example, but one aspect of the tribal leader’s role is to ensure that tribal council’s important work is being performed, and that takes someone with the skills necessary to manage the tribal administrator and others.

As a non-Native person, I have the privilege of working for tribal employers, and through those important relationships, I have learned many things about some tribes and some people, but I do not pretend to have any meaningful insight regarding tribal history, traditions, customs, and values of the tribes or their people. This book is a collection of respectful recommendations for tribal leaders and employees managing other tribal employees. If there is anything helpful in this book, it comes from the elders, people, leaders, commissioners, board members, administrators, directors, managers, supervisors, and lawyers working for tribes. From too many conversations to count, I write their words in response to the many questions raised herein and give you their answers. Any answers that are not accurate or helpful are entirely my fault.

An organization that is at the forefront of meeting and exceeding the needs of tribal employers is the National Native American Human Resources Association (NNAHRA). NNAHRA’s board and staff tirelessly advocate for tribal employers, and as an educator, NNAHRA is the best. I am grateful to the present and previous board members who created NNAHRA and continue to insist that NNAHRA serve its members without compromise.

Thank you to my wife, Denise; our children and their spouses; our grandchildren; and my parents and brothers and their spouses. As a former in-house lawyer, I am grateful to the Prairie Island Indian Community and its members and leaders for a serious education. I am grateful to my clients for the privilege of representing them in connection with interesting and important work. I am thankful for those who took the time to review this book.

Chapter 1

Sovereignty and Immunity

This chapter surveys the legal concepts of self-determination, sovereignty, immunity, and jurisdiction and, most importantly, explains the manager’s role within each concept.

101 What is the manager’s role regarding self-determination?

Tribal self-determination is, in part, a tribe that defines its own goals, sets its own deadlines, and plots its own path to achieve those goals. Defining and executing a tribe’s goals are certainly within the purview of tribal leadership, but goal setting cannot be exclusively leadership’s role. In their departments, managers should exercise the tribe’s self-determination by setting proactive goals and, with those goals, determine the path and set the deadlines.

What is a department strategic plan? The answer lies in the responses to six questions:

What are the dozen rational and irrational goals for your department?

Of those dozen, which four goals can you and your team accomplish in the next eighteen months?

What tasks must be completed to accomplish those goals?

Who in your department (or outside) will complete each task?

Which tasks must be completed at months 3, 6, 9, and 12 to accomplish the goals by month 18?

Are your department goals aligned with the tribe’s goals?

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Now in responding to each question, there are additional questions that will clarify a manager’s thinking.

What are the dozen rational and irrational goals for your department?

What are the big and not so big goals that, if accomplished, will have a meaningful impact on the department’s effectiveness, reach, or efficiency? At this stage of the conversation, Negative Nancy and Ned are not invited to the conversation because