Contractors Working On or Near Tribal Lands

Equal opportunity and workforce programs | Tribal employment

MnDOT, through its Office of Civil Rights, promotes and encourages American Indian employment for highway construction projects located on or within a 60-mile radius of one of the 11 reservations within the state.

This commitment to maximizing employment opportunities derives from federal regulations and the Special Provisions Relating to Indian Employment.

Tribal governance

A Tribal Employment Rights Ordinance, or TERO, requires all employers conducting business on a reservation to give preference to qualified American Indians in employment, contracting, and other business-related activities. It also calls for the levying of a TERO tax.

A TERO tax is the assessment prime contractors must pay on highway construction projects occurring anywhere on tribal land. The TERO tax is tribe-specific, such that anything relating to its parameters (remittance, rate, etc.) is set forth in a tribal ordinance.

Special Provisions Relating to Indian Employment

The Special Provisions Relating to Indian Employment (Special Provisions) are included in proposals calling for highway construction either on or within a 60-mile radius of any reservation. They are located in Division S of the project proposal and accessible below:

The special provisions include the name(s), tribe(s), and contact information of the tribal employment contact.

Project proximity to tribal lands

If a MnDOT project is on or within a 60-mile radius of any reservation, the Special Provisions apply. Specifically, they require the prime contractor to work with the tribal government to use American Indian labor. This means reaching out to designated tribal employment contacts to identify and discuss employment opportunities.

Please note, there may be scenarios in which the Specials Provisions Relating to Indian Employment are included in proposals for projects beyond a 60-mile radius. However, such projects are identified on a case-by-case basis and in coordination with tribal governments.

Furthermore, if any part of the project is located on reservation lands, the contractor must also address the specific TERO tax and/or Indian employment preference requirements set forth in the applicable Tribal Employment Rights Ordinance (TERO).

All conversations with the designated TERO officer or tribal employment representative must occur before bid submission.

On-the-job training

MnDOT strongly urges the prime contractor to consider American Indians for designated OJT positions.

More information on the OJT program

Indian employment tracking form

The Special Provisions require the contractor to submit the MnDOT Indian Employment Tracking form no later than 90 calendar days after receipt of the semi-final estimate.

If the prime contractor fails to submit the Indian Employment Tracking Form, a monetary deduction may be assessed in accordance with the contract.

Suspension or termination of employees

If any contractor is considering suspending or terminating an employee hired in accordance with the Special Provisions, it must first seek assistance from the referring TERO officer or tribal employment representative in resolving the issue.

Nothing in the Special Provisions is intended to interfere with the ability to dismiss any employee for cause including, but not limited to, lack of adequate skills or training, inability to perform because of state or federal law, or breach of the safety standards or other standards of conduct.

Noncompliance

If the prime contractor does not comply with the Special Provisions, OCR and the TERO officer or tribal employment representative will address the matter. Furthermore, the prime contractor must honor any request by the TERO officer or tribal employment representative to discuss tribal employment issues.

Indian employment preference

There are no federal laws prohibiting Indian employment preference in TEROs, and tribes are exempt from Title VII of the Civil Rights Act and several other major federal employment laws. Court rulings have also held that since Indian preference is a political preference, not a racial preference, it does not violate federal employment law.

As such, the prime contractor is required to give qualified American Indian candidates preference for any employment vacancies that might arise during the course of the project. Furthermore, it must convey the Indian employment preference to its subcontractors along with any other valuable employment information shared during the course of the conversation with the TERO officer or tribal employment representative.

Subcontractors, upon learning of the applicable Indian employment preference from the prime contractor, must give qualified American Indian candidates preference for any employment vacancies that might arise during the course of the project.

Legal authority

MnDOT has made every effort to include all applicable statutes, laws, regulations and other presiding authorities; however, erroneous citations and omissions do not imply there are no applicable legal citations or other presiding authorities. MnDOT OCR program information is not legal advice.