5-16-009 Indian Child Protection and Family Violence Prevention Act
(1) The Samish Indian Nation recognizes no resource is more vital to the Tribe’s continued existence and integrity than its children and the Tribe has interest and obligation in protecting its children. The purpose of this policy is to protect the health and well-being of its children by requiring Tribal employees and volunteers who work with children or participate in Tribally sponsored activities with children to meet minimum standards of character.
(2) Definitions. As used in this policy, the terms listed below shall have the following meanings:
(a) “Applicant” means an employee, potential employee or volunteer who has applied to work or volunteer in a position deemed a covered position.
(b) “Background investigations” means the evaluation of an applicant conducted under this policy in order to determine if an individual meets the minimum standards of character in order to minimize the risk of harm to children.
(c) “Covered position” means any position in which the individual’s job responsibilities require the employee to have regular contact with or control over children. A covered position for a volunteer means that the volunteer is responsible for leading or supervising a Tribally sponsored event or activity for children and the event or activity is not supervised by a Tribal employee who meets the minimum standards of character.
(d) “Minimum standards of character” refers to identifiable character traits and past conduct.
(e) “Regular contact with or control over children” means that an employee’s approved position description includes or is reasonably expected to involve: (i) personal interactions with children; (ii) the authority to direct, supervise, mentor, care for, detain, or control children, or (3) serve within the chain of command over a person who interacts with children as described in subsections (e)(i) and (ii) of this section.
(f) “Tribally sponsored events and activities” means events and activities which are funded in whole or part by the Samish Indian Nation or Tribal program, are organized and hosted by the Samish Indian Nation or Tribal program, or the activities and events are conducted by Tribal program staff.
(3) Minimum Standards of Character.
(a) Minimum standards of character refer to identifiable character traits and past conduct which the Tribe can use to determine whether an applicant can effectively perform the duties of a particular position without risk of harm to children. In addition to evaluation of an applicant’s skills and experience relevant to a position, the Tribe utilizes background investigations to ensure that an applicant who does not meet the minimum standards of character are not hired for or permitted to volunteer in a covered position.
(b) The Tribe will not hire or permit any person to work or volunteer in a covered position if the person has ever been found guilty or entered a plea of no contest or guilty to any offense under Federal, State, or Tribal law which involves violence, threat of violence, sexual assault, molestation, exploitation, prostitution, crimes against persons, or offenses committed against children.
(4) Background Investigations.
(a) The Tribal Council will approve positions as covered positions as recommended by the appropriate Chief Executive Team member and Senior Human Resources Officer in position description for Tribal employment. For volunteer positions, the Tribal Council must determine if a volunteer position is a “covered position” at least two months prior to the event or activity being held and notify volunteers in covered positions of the requirements of this policy.
(b) Within six months of the policy’s adoption by the Tribal Council, all current position descriptions will be reviewed and it will be determined which positions are considered “covered positions” under this policy and amendments will be made to the current position descriptions for those positions. For positions determined to be “covered positions,” the Senior Human Resources Officer will initiate background investigations of current employees in such positions. All future job descriptions will include a determination of whether the positions are “covered positions” as a part of the final job description approval process.
(c) Tribal Administration must conduct an investigation of the character of each person that holds or is being considered for positions as an employee or wants to be a volunteer in a covered position (“applicant”). This background investigation must be completed prior to any potential employees, including temporary employees and volunteers, beginning work with the Tribe or volunteering in Tribally sponsored activities or events. All criminal history background investigations shall meet or exceed the standards required under the Indian Child Protection and Family Violence Prevention Act, 25 U.S.C. §3201 et seq. and 25 C.F.R. Part 63.
(d) The purpose of the investigation is to determine whether the applicant meets the minimum standards of character. Any applicant who does not meet the minimum standard of character may not be employed or volunteer in a covered position.
(e) The Tribal Administration shall require applicants for covered positions to consent to the background investigation. The Senior Human Resources Officer shall coordinate the criminal history check through the appropriate agency. No person shall begin work or volunteer in a covered position until a criminal background check is completed and a determination has been made that the applicant meets the minimum standard of character.
(5) Applications.
(a) Each applicant for a covered position must, in addition to the regular Tribal employment application or volunteer application for a covered position, complete a written application that:
(i) Asks whether the applicant, volunteer, or employee has been arrested or convicted of a crime involving a child, violence, sexual assault, sexual molestation, sexual exploitation, sexual contact or prostitution, or crimes against persons;
(ii) Asks about the disposition of the arrest or charge;
(iii) Requires that an applicant, volunteer, or employee sign, under penalty of perjury, a statement verifying the truth of all information provided in the employment application;
(iv) Obtains a written release from the applicant or volunteer for the criminal history record check. A failure to sign such a release will be grounds for termination of employment or refusal to consider the applicant for the covered position; and
(v) Informs the applicant, or volunteer, that a criminal history record check is a condition of employment or volunteering and require the applicant, volunteer contractor or employee to consent, in writing, to a record check.
(vi) Each applicant shall be requested to obtain a set of fingerprints to submit to the Federal Bureau of Investigation or State criminal history repository of all states that the applicant lists as current or former residences on the application.
(b) The Senior Human Resources Officer must review the background investigation for covered positions under this policy and determine based upon this review the applicant’s suitability for the covered position.
(i) At a minimum, the Senior Human Resources Officer must:
(A) Review each security investigation form and employment application and compare the information provided;
(B) Review the results of written record searches requested from law enforcement agencies, former employers, former supervisors, employment references, and schools; and
(C) Review the results of any fingerprint charts maintained by the Federal Bureau of Investigation or other law enforcement information maintained by other agencies.
(ii) If the investigation discloses the applicant has a criminal record which involves charges or convictions for violence, threat of violence, sexual assault, molestation, exploitation, prostitution, crimes against persons, or offenses committed against children, the Senior Human Resources Officer must verify with the appropriate law enforcement entity the nature of the crime and resolution if any of such charges.
(iii) The Senior Human Resources Officer must provide a written summary of the information obtained in the investigation and be informed of the process for explaining, denying or refuting unfavorable information to the applicant. The Senior Human Resources Officer may not release the actual background investigative report to an applicant, volunteer, or employee. However, they may provide a written summary of the derogatory information to the applicants.
(iv) The applicant, volunteer, or employee who is the subject of a background investigation may obtain a copy of the reports from originating (Tribal, Federal or State) agency and challenge the accuracy and completeness of any information maintained by that agency. The applicant must provide such information in writing to the Senior Human Resources Officer within 21 calendar days of receipt of the written summary of the information from the Senior Human Resources Officer.
(v) The Senior Human Resources Officer must review the information provided by an applicant to challenge the accuracy and completeness of the background check and issue a written determination on the applicant’s suitability within five business days of receipt of the information.
(6) Denial or Dismissal of Employment or Prohibition From Volunteer Position.
(a) The Tribe must deny employment, terminate employment of a person or refuse to permit a person to volunteer in a covered position if the background investigation finds that the person has been found guilty of or entered a plea of guilty or nolo contendere to any Tribal, Federal or State offense involving a crime of violence, sexual assault, sexual molestation, child exploitation, sexual contact, prostitution or crimes against persons.
(b) If an applicant for employment in a covered position, or employee in a covered position or a volunteer in a covered position has been charged with an offense described under subsection (6)(a) of this section, but the charge is pending or no disposition has been made by a court:
(i) The Tribe may deny consideration of the applicant until the charge has been resolved.
(ii) The Tribal entity may deny the employee or volunteer any on-the-job contact with children until the charge is resolved.
(iii) The Tribe may detail or reassign the employee or volunteer to other duties that do not involve contact with children.
(iv) The Tribe may place the employee on administrative leave until the court has disposed of the charge.
(v) The Tribe may deny the volunteer the opportunity to participate in Tribal events or activities until the court has disposed of the charge.
(c) The Senior Human Resources Officer’s decision is final decision on the suitability of the applicant to work in a covered position for the Tribe. The decision by the Senior Human Resources Officer is not subject to further review, except that an applicant may appeal to the Tribal Court.
(7) General Provisions.
(a) All persons in any covered position(s) must be reinvestigated every three years.
(b) All employees or volunteers in covered positions must report any criminal arrests or convictions to their supervisor.
(c) For employees or volunteers who have professional licenses which require background checks, those background checks shall be at least as stringent as those required under this policy.
(8) If any portion of this policy is held invalid by a court of competent jurisdiction, the invalid portion will be severed and the remaining provisions shall continue in full force and effect.
(9) Nothing in this policy is to be construed to create a cause of action for violation of its provisions or to be construed as a waiver of the sovereign immunity of the Samish Indian Nation or of any Tribal entity, or any officers, employees, representatives or agents of the Tribe or of any Tribal entity. [Res. 2022-10-016 § 1, 2022.]