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Understanding when Federal Employments Laws May Apply
Jurisdictional questions – or which law applies? ¨ Who has jurisdiction over the employment issue? ¤ Federal law?
¤ Tribal law? ¤ State law? ¤ Is there concurrent jurisdiction?
¨ Danger – do not assume tribal jurisdiction. This depends on many factors, including status of employee – tribal vs. non-tribal ¨ Is there a law of specific applicability or non-applicability? ¨ Danger – Laws may become applicable by terms of a different laws, by agreement/compact, through acceptance of federal funding, or by regulation or policy ¨ Do not assume only tribal law applies or that state law doesn’t apply! ¨ Context is everything
Understanding when Federal Employments Laws May Apply
Laws of “General” Applicability ¨ These are general statutes that, by their own terms or through silence, are construed to apply to all persons, including Indian Tribes and their “property interests.” Federal Power Commission v. Tuscarora Indian Nation , 362 U.S. 99 (1960) ¨ Exceptions: ¤ Exclusive rights of self governance - intramural matters – n E.g., conditions of tribal membership, inheritance, domestic issues ¤ Application of the law abrogates treaty rights ¤ Proof that Congress intended the law not to apply ( Donovan v. Coeur d’ Alene Tribal Farms , 751 F.2d 1113, 1116 (9th Cir. 1985))
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