Community Foundation for Southeast Michigan

Columns

Best practices for employers on tribal land

December 2025

by Tanya Gibbs and Jennifer Saeckl | Michigan Bar Journal

While economic development in Indian Country is long-standing, American Indian tribes have significantly transformed their participation in the economy, enhancing value and development on reservation lands. Over the past few decades, tribal businesses have evolved into self-sustaining, sovereign entities that support their members and nations. Tribal businesses have also attracted significant investment from non-tribal entities, further developing tribal economies. These entities are involved in gaming, tourism, gas stations and convenience stores, investment firms, and financial businesses, to name a few. The expansion of tribal and non-tribal businesses on tribal land — that is, land owned by a tribe, either in fee simple or as held in trust by the U.S. government for the benefit of the Tribe — has strengthened self-determination and sustainability.

Within Michigan, there are 12 federally recognized American Indian tribes, including

Bay Mills Indian Community
Grand Traverse Band of Ottawa and Chippewa Indians
Hannahville Indian Community
Bay Indian Community
Lac Vieux Desert Band of Lake Superior Chippewa Indians
Little River Band of Ottawa Indians
Little Traverse Bay Band of Ottawa Indians
Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians (“Gun Lake Tribe”)
Nottawaseppi Huron Band of Potawatomi Indians
Pokagon Band of Potawatomi Indians
Saginaw Chippewa Indian Tribe
Sault Ste. Marie Tribe of Chippewa Indians

Tribal land is situated throughout Michigan, from the five federally recognized tribes on the Upper Peninsula (Bay Mills Indian Community, Hannahville Indian Community, Keweenaw Bay Indian Community, Lac Vieux Desert Band of Lake Superior Chippewa Indians, and Sault Ste. Marie Tribe of Chippewa Indians), to the three tribes in Northwest Michigan (Grand Traverse Bay Band of Ottawa and Chippewa Indians, Little River Band of Ottawa Indians, and Little Traverse Bay Band of Ottawa Indians), to the two tribes in Southwest Michigan (Pokagon Band of Potawatomi Indians and Nottawaseppi Huron Band of Potawatomi Indians), to the final two tribes located in East Central Michigan (Saginaw Chippewa Indian Tribe) and West Michigan (Gun Lake Tribe). Tribes in Michigan are big employers through governmental administration, casino, and non-gaming economic development opportunities. They also continue to expand, providing more and more opportunities for partnerships and development.

As businesses and entities working on tribal land continue to grow, they also continue to attract more talent and expand their workforces. For non-tribal entities entering into contracts on tribal land for the first time, it is important to understand key nuances in working with tribal partners and operating on tribal land. This article seeks to provide some basic information on these nuances and suggestions for best practices for both tribal and non-tribal employers operating on tribal land.

TRIBAL, FEDERAL, AND STATE LAW

Any employer considering working on tribal land should understand the basics of tribal sovereignty, self-governance, and lawmaking. These principles of self-determination influence the legal and operational framework for organizations conducting business on tribal land. As sovereign entities, tribes and their instrumentalities possess sovereign immunity unless explicitly waived by the tribe or abrogated by Congress.¹ Non-tribal employers should consult legal counsel with expertise in federal Indian law to ensure compliance and understand applicable waivers.

Navigating applicable laws on tribal land is more complex than on non-tribal land. Typically, on tribal land, tribal law applies, and Michigan state law generally does not apply. In some circumstances and where land is owned by a tribe in fee simple rather than in trust, states may have additional reach in applying their laws, particularly where the employer is not a wholly owned tribal entity. Any non-tribal employer working on tribal land should make sure it has a strong understanding of the jurisdictional import of laws in their context.

For non-tribal employers, federal laws generally apply. However, the application of federal law to tribal employers is a bit more complex: Some laws, such as § 701(b) of Title VII of the Civil Rights Act of 1964,² clearly excludes tribes from application of the employment discrimination law, and § 101(5)(b) of the Americans with Disabilities Act of 1990³ clearly exclude tribes from Title I of the law, which governs the reasonable accommodation process in the workplace for employees with disabilities. However, the applicability of certain federal laws to tribal employers remains unclear and varies across the country.⁴ To deal with this ambiguity, a tribe may have laws or regulations in place that are consistent with federal law, and thus the question of federal law compliance is less pertinent. Tribal law may also cover gaps where otherwise inapplicable state law typically operates, tailored to suit the particular tribe.

The application of federal employment laws on tribal land is therefore complicated. All employers working on tribal land should work with an attorney to ensure they understand the jurisdictional landscape they may be subject to. Even more importantly for non-tribal employers, it is important to understand that they may be subject to more laws (i.e., state or federal laws) that are not contemplated by tribal employment laws. These employers should consult legal counsel to ensure compliance with the most stringent applicable laws.

Thus, parties operating businesses and employing workers on tribal land should consider the contours of tribal sovereignty, including, most pertinently, the application of tribal sovereign immunity, and the interplay of tribal, state, and federal employment laws.

HIRING AND INDIAN PREFERENCE

As discussed above, tribes and their arms and instrumentalities are typically exempt from laws that require nondiscrimination, such as Title VII of the Civil Rights Act of 1964. Tribes may enact laws or policies that prioritize employment for tribal citizens, other American Indian employees, or their spouses and dependents. Non-tribal businesses subject to federal laws may also adopt American Indian employment preferences under specific conditions. Generally, these employers must be on or near a reservation and must publicly announce an employment preference for American Indians in that area.⁵

Many tribes enact a Tribal Employment Rights Ordinance (TERO) and create a tribal office that governs concerns under this type of tribal law. These laws often require contractors working on tribal land to register with the tribal office and submit compliance plans detailing how they will comply with Indian preference requirements.

Employers on tribal land should review tribal law to determine whether an Indian preference or TERO law applies and assess whether adopting a similar policy aligns with their operations.

CULTURAL UNDERSTANDING

It is important to understand that traditional and cultural practices play a large role in many tribal employment policies and procedures that may be applicable to employers on tribal land. For example, tribes may take different holidays than non-tribal employers, such as holidays that recognize a certain tribe’s federal recognition or holidays that celebrate tribes on a state or national level.

Many tribal businesses incorporate cultural teachings, such as the Seven Grandfathers,⁶ into their mission, vision, and corporate philosophy. These teachings are regularly used by the governing body to evaluate management and make decisions on how to move the organization forward. Cultural practices often shape workplace environments. These may include traditional opening ceremonies, land acknowledgments before meetings, or team-building activities centered on tribal teachings.

RELATIONSHIP BUILDING

Many tribes and tribal businesses put an emphasis on relationship-building. Non-tribal entities should prioritize cultivating authentic, trust-based relationships with tribal governments, businesses, employees, and community members. This may be accomplished through partnerships with other tribal-owned businesses, attending cultural events such as pow-wows, attending charitable events, and encouraging employees to participate in and assist with cultural events.

Engaging in business on tribal land fosters mutually beneficial partnerships between tribes and non-tribal entities. However, working on tribal land requires businesses to be aware of the unique cultural, legal, and jurisdictional landscape that is involved with working on a tribe’s territory. Businesses on tribal Land should collaborate with tribal partners and knowledgeable advisors to ensure compliance with tribal law while fostering effective community partnerships.

“Best Practices” is a regular column of the Michigan Bar Journal edited by George Strander of the Michigan Bar Journal Committee. To contribute an article, contact Mr. Strander at gstrander@yahoo.com.

ENDNOTES

1. Mich v Bay Mills Indian Community, 572 US 782, 788-790; 134 S Ct 2024; 188 L Ed 2d 1071 (2014).

2. 42 USC § 2000e et seq.

3. 42 USC § 12101 et seq. (exempting tribes from Title I obligations).

4. In most cases, federal employment laws do not explicitly state whether they apply to Indian tribes. When this happens, the law is known as a law of general applicability. Courts are divided on how these laws apply to tribes. The Ninth and Second Circuits generally hold that a statute applying to “all persons” includes tribes unless it interferes with exclusive rights of self-governance or treaty rights, or if legislative history suggests otherwise. Fed Power Comm v Tuscarora Indian Nation, 362 US 99, 116; 80 S Ct 543; 4 L Ed 2d 584 (1960); Donovan v Coeur d’Alene Tribal Farm, 751 F2d 1113, 1116 (CA 9, 1985). See also Reich v Mashantucket Sand & Gravel, 95 F3d 174 (CA 2, 1996). However, in the Tenth and Eighth Circuits, courts typically hold that “the proper inference from silence” is that a law does not apply to undermine tribal sovereignty. Merrion v Jicarilla Apache Tribe, 455 US 130; 10 S Ct 894; 71 L Ed 2d 21 (1982); Iowa Mut Ins Co v LaPlante, 480 US 9; 107 S Ct 971; 94 L Ed 2d 10 (1987); Donovan v Navajo Forest Prods Indus, 692 F2d 709 (CA 10, 1982); EEOC v Fond du Lac Heavy Equip & Constr Co, 986 F.2d 246 (CA 8, 1993). Finally, the Seventh Circuit takes an approach that mixes both tests. Reich v Great Lakes Indian Fish & Wildlife Comm, 4 F3d 490 (CA 7, 1993); Menominee Tribal Enterprises v Solis, 601 F3d 669 (CA 7, 2010). Since the Supreme Court has not provided definitive guidance, tribes remain in legal uncertainty regarding the application of federal laws of general applicability.

5. Under federal law, 42 USC § 2000e-2(i) allows employers to implement Indian preference policies under specific conditions.

6. For an introduction to the values encompassed by the Seven Grandfathers, see, e.g., Seven Grandfather Teachings, Nottawaseppi Huron Band of the Potawatomi https://nhbp-nsn.gov/seven-grandfather-teachings/ (accessed October 03, 2025).

Tanya Gibbs is a citizen of the Little Traverse Bay Bands of Odawa Indians. Ms. Gibbs’ practice is primarily focused on non-gaming economic development. She represents tribally owned companies involved in various businesses ranging from e-commerce to real estate development. Ms. Gibbs is passionate about corporate governance and has helped many of her clients draft tribal laws that create a framework for the development, creation, and operation of tribal business enterprises consistent with current best practices and tailored to meet the needs of their community. She has closed nearly $1 billion in financial transactions for both gaming and non-gaming businesses. She is experienced in a variety of transactional work, including corporate structuring of tribally owned companies, corporate governance, contract negotiation, structuring financial transactions, mergers and acquisitions, and real estate financing and development. She also helps clients with gaming transactions, healthcare matters, and housing development and financing.

Jennifer Saeckl is of counsel with Mshkawzi Law, LLP. As Ms. Saeckl is licensed to practice in both the State of Michigan and the Province of Ontario, she advises both Indigenous Nations in Canada and Native American Tribes in the United States on domestic concerns as well as cross-border issues. Specifically, Ms. Saeckl works with her clients on many U.S. and Canadian business issues, focusing her practice especially on labor & employment law issues. She has drafted legislation, regulation, policy, and procedure on behalf of Indigenous governmental departments and has participated in both transactional and litigation matters. Among other things, Ms. Saeckl has helped Indigenous nations and tribes, and their businesses, navigate U.S., Canadian, and tribal employment and labor law and helps her clients oversee their hiring and termination practices, as well as day-to-day employment issues.