No claim or action shall be brought in the Tribal Court by any
applicant or employee which alleges a violation of the rights under
this chapter until any administrative remedies, including the employer's
internal grievance procedures, as are available are exhausted.
A.
Within the time limit prescribed in § 5.1-11, a person who believes he/she has been denied employment, promotion or otherwise been subject to a violation of the employment preferences granted in §§ 5.1-5 through 5.1-7 of this chapter may, after exhausting his/her administrative remedies, file a civil action in the Tribal Court against the employer or other persons who violated the requirements of this chapter.
B.
The Tribal Court shall have exclusive jurisdiction over any action
arising under this chapter.
C.
The action shall be commenced by the filing of a complaint describing the facts constituting a violation of an employer's obligation to provide Indian preference in employment as required by §§ 5.1-5 through 5.1-7 of this chapter. The party filing the complaint shall briefly describe any administrative remedies available to the party prior to filing of the complaint and the party filing shall attach a copy of the final decision from any administrative review to the complaint. The party filing the complaint shall have the burden of demonstrating through a preponderance of the evidence that he/she was denied preference under this chapter. To the extent the employer's actions involve subjective evaluation of an employee's qualifications, a person filing a complaint shall have the burden of demonstrating that the employer's determination was clearly erroneous.
D.
The Tribal Court may prescribe the form to be used for filing a complaint
alleging violations of this chapter.
Any complaints alleging a violation of this chapter must be
filed with the Tribal Court not more than the later of:
In any action filed under this chapter, the Tribal Court may
grant the remedies set forth herein.
A.
B.
Monetary damages. In addition to the equitable remedies described in § 5.1-12A, if the Court finds that a person entitled to employment preference was denied employment or promotion in violation of this chapter, the Court's judgment, decision or order may also include an award for back pay for any victim of a violation of this chapter the Court has ordered to be employed, or reasonable front pay [not to exceed a total recovery of twelve (12) months' pay lost as a result of the violation of this chapter] if employment is not in the best interests of the parties. The Tribal Council and its members, acting in their official capacities, shall never be personally liable for any monetary damages.
In any civil action under this chapter, the Court, in its discretion,
may allow the prevailing party reasonable attorneys' fees and
costs.
Subject to the express limitations on remedies or damages provided in §§ 5.1-12 and 5.1-13, the sovereign immunity of the Band is hereby waived for any actions alleging violations of §§ 5.1-5 through 5.1-7 of this chapter which are brought pursuant to this Article IV and for any process, including subpoenas.
