Construction Program Guide

Indian Employment Preference on Federal-aid Projects

For a Federal-aid highway project, a State Transportation Agency (STA) may implement procedures or requirements which extend preferential employment to all Indians. Recruiting efforts may be targeted toward those living on or near a reservation or Indian lands. Indian preference shall be applied without regard to tribal affiliation or place of enrollment.

Indians previously hired by a contractor shall be included as part of the contractor's core-crew. In no instance should a contractor be compelled to layoff or terminate a core-crew employee (regardless of Indian or non-Indian status) to meet a preference goal.

Projects eligible for Indian employment preference are those located on roads within, or providing access to an Indian reservation or other Indian lands (as defined under the term "Indian reservation roads" in 23 USC 101(a)(12)), and projects located on roads that are "near" the boundaries of reservations. Roads "near" an Indian reservation are defined as those within a reasonable commuting distance from the reservation.

Authority/Legal Basis

1. Laws

   • 23 USC 101(a)(12)
   • 23 USC 140

2. Regulations

   • 23 CFR 635.117

3. Orders

   • None

4. Policy

   • FHWA Notice 4720.7, Indian Preference In Employment On Federal-Aid Highway Projects On And Near Indian Reservations, March 15, 1993

   • Memoranda

     • 06/16/93 - Letter from FHWA Administrator Slater to Al Potts of the Blackfeet Tribal Business Council. In summary, Indian Employment Preference is limited to hiring only; it does not extend to an Indian contracting preference.
     • 07/15/1994 Memo from Tony Kane, Associate Administrator for Project Development to Region 10 Administrator Leon Witman. In summary, Notice 4720.7 is applicable to Indian Reservations as well as "other Indian lands."
     • 08/31/1994 Letter from Chief Counsel McConnell to Mr. Shawhan, Assistant Counsel, NYSDOT. The legal opinion addresses 3 separate issues:
       • Implementation of an Indian hiring preference is at the State's discretion;
       • Decision of which roads are "near" Indian lands is subject to State discretion and negotiation with the tribe; and
       • Indian employment preference does not apply to the Disadvantaged Business Enterprise (DBE) program
     • 09/30/1996 Letter from Regional Counsel Bassel to OkDOT General Counsel Hill. To summarize:
       • Federal-aid highway funds may participate in a project with an Indian hiring preference provision; however, the preference must not be restricted by tribal affiliation.
       • Tribal trust lands fall in the definition of "reservation"
       • Non-competitive contract awards to a tribe are not acceptable.
       • If the State certifies that the tribe is competent to administer the contract(s), it may transfer funds to the tribe.

Guidance

1. General Information

   • FHWA Contract Administration Core Curriculum

2. Training

   • FHWA Contract Administration Core Curriculum ( Course Description)