Tribal Employment Separation: Tribal Law Enigma, Tribal Governance Paradox, and Tribal Court Conundrum

Each year, more and more people–Indians and non-Indians–are employed by Indian Tribes and Tribally-chartered organizations. However, as Tribal employment grows, so do the problems associated with personnel disputes. Tribal employment is different than traditional corporate or even government employment because Tribal communities are incredibly close-knit and Tribal governments are very accountable to their constituents. Because of this dynamic, employment separations can create excessive difficulty within a Tribe. Many Tribal courts apply the principles of the Supreme Court’s decision in Loudermill, granting terminated employees the right to both an administrative and judicial hearing. However, these processes can often be incredibly painful for terminated employees and the administrative Tribal panels. They often undermine Tribal government operations and communities. To ameliorate some of these difficulties, Tribes should consider alternative ways to deal with employment separations. For example, Tribes might consider a separate court of employee claims, a Peacemaker Court model, or an automatic monetary remedy. Overall, any solution that rejects the dominant culture’s model and accommodates the particular needs of Tribal communities would be an improvement.