[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]
H.R. 511, TRIBAL LABOR SOVEREIGNTY
ACT OF 2015
=======================================================================
HEARING
before the
SUBCOMMITTEE ON HEALTH,
EMPLOYMENT, LABOR, AND PENSIONS
COMMITTEE ON EDUCATION
AND THE WORKFORCE
U.S. House of Representatives
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
__________
HEARING HELD IN WASHINGTON, DC, JUNE 16, 2015
__________
Serial No. 114-20
__________
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COMMITTEE ON EDUCATION AND THE WORKFORCE
JOHN KLINE, Minnesota, Chairman
Joe Wilson, South Carolina Robert C. ``Bobby'' Scott,
Virginia Foxx, North Carolina Virginia
Duncan Hunter, California Ranking Member
David P. Roe, Tennessee Ruben Hinojosa, Texas
Glenn Thompson, Pennsylvania Susan A. Davis, California
Tim Walberg, Michigan Raul M. Grijalva, Arizona
Matt Salmon, Arizona Joe Courtney, Connecticut
Brett Guthrie, Kentucky Marcia L. Fudge, Ohio
Todd Rokita, Indiana Jared Polis, Colorado
Lou Barletta, Pennsylvania Gregorio Kilili Camacho Sablan,
Joseph J. Heck, Nevada Northern Mariana Islands
Luke Messer, Indiana Frederica S. Wilson, Florida
Bradley Byrne, Alabama Suzanne Bonamici, Oregon
David Brat, Virginia Mark Pocan, Wisconsin
Buddy Carter, Georgia Mark Takano, California
Michael D. Bishop, Michigan Hakeem S. Jeffries, New York
Glenn Grothman, Wisconsin Katherine M. Clark, Massachusetts
Steve Russell, Oklahoma Alma S. Adams, North Carolina
Carlos Curbelo, Florida Mark DeSaulnier, California
Elise Stefanik, New York
Rick Allen, Georgia
Juliane Sullivan, Staff Director
Denise Forte, Minority Staff Director
------
SUBCOMMITTEE ON HEALTH, EMPLOYMENT, LABOR, AND PENSIONS
DAVID P. ROE, Tennessee, Chairman
Joe Wilson, South Carolina Jared Polis, Colorado,
Virginia Foxx, North Carolina Ranking Member
Tim Walberg, Michigan Joe Courtney, Connecticut
Matt Salmon, Arizona Mark Pocan, Wisconsin
Brett Guthrie, Kentucky Ruben Hinojosa, Texas
Lou Barletta, Pennsylvania Gregorio Kilili Camacho Sablan,
Joseph J. Heck, Nevada Northern Mariana Islands
Luke Messer, Indiana Frederica S. Wilson, Florida
Bradley Byrne, Alabama Suzanne Bonamici, Oregon
Buddy Carter, Georgia Mark Takano, California
Glenn Grothman, Wisconsin Hakeem S. Jeffries, New York
Rick Allen, Georgia
C O N T E N T S
----------
Page
Hearing held on June 16, 2015.................................... 1
Statement of Members:
Polis, Hon. Jared, Ranking Member, Subcommittee on Health,
Employment, Labor, and Pensions............................ 3
Prepared statement of.................................... 4
Roe, Hon. David P., Chairman, Subcommittee on Health,
Employment, Labor, and Pensions............................ 1
Prepared statement of.................................... 1
Statement of Witnesses:
Butler, Mr. Rodney, Chairman, Mashantucket Pequot Tribal
Council, Mashantucket, Connecticut......................... 21
Prepared statement of.................................... 24
Guest, Mr. Richard, Senior Staff Attorney, Native American
Rights Fund, Washington, DC................................ 8
Prepared statement of.................................... 10
Keel, Hon. Jefferson, Lieutenant Governor, Chickasaw Nation,
Ada, Oklahoma.............................................. 42
Prepared statement of.................................... 44
Navarro, Mr. Gary, Slot Machine Attendant and Bargaining
Committee Member, Unite Here Local 2850, The Graton Casino
and Resort, Rohnert Park, California....................... 30
Prepared statement of.................................... 32
Additional Submissions:
Mr. Guest:
Appendix A............................................... 75
Appendix B............................................... 88
Appendix C............................................... 94
Appendix D............................................... 102
Mr. Navarro:
Letter dated June 29, 2015, from Unite Here.............. 112
Pocan, Hon. Mark, a Representative in Congress from the state
of Wisconsin:
Letter dated June 15, 2015, from International Union of
Operating Engineers, Local No. 953, AFL-CIO............ 62
Letter dated June 15, 2015, from the Teamsters Local
Union No. 886.......................................... 63
Letter dated June 9, 2015, from the United Steelworkers
(USW).................................................. 65
Prepared statement of Nassar, Mr. Josh, Legislative
Director, International Union, United Automobile,
Aerospace and Agricultural Implement Workers of America
(UAW).................................................. 68
Letter dated June 15, 2015, from the International Union
of Operating Engineers................................. 70
H.R. 511, TRIBAL LABOR SOVEREIGNTY
ACT OF 2015
----------
Tuesday, June 16, 2015
House of Representatives
Subcommittee on
Health, Employment, Labor, and Pensions
Committee on Education and the Workforce
Washington, D.C.
----------
The subcommittee met, pursuant to call, at 2:11 p.m., in
Room 2175, Rayburn House Office Building, Hon. Phil Roe
[chairman of the subcommittee] presiding.
Present: Representatives Roe, Foxx, Walberg, Salmon,
Guthrie, Messer, Carter, Grothman, Allen, Polis, Courtney,
Pocan, and Bonamici.
Also present: Representatives Kline, Rokita, Scott, and
Thompson of California.
Staff present: Janelle Belland, Coalitions and Members
Services Coordinator; Ed Gilroy, Director of Workforce Policy;
Callie Harman, Staff Assistant; Tyler Hernandez, Press
Secretary; Marvin Kaplan, Workforce Policy Counsel; Nancy
Locke, Chief Clerk; John Martin, Professional Staff Member;
Krisann Pearce, General Counsel; Alissa Strawcutter, Deputy
Clerk; Juliane Sullivan, Staff Director; Alexa Turner,
Legislative Assistant; Tylease Alli, Minority Clerk/Intern and
Fellow Coordinator; Austin Barbera, Minority Staff Assistant;
Amy Cocuzza, Minority Labor Detailee; Denise Forte, Minority
Staff Director; Christine Godinez, Minority Staff Assistant;
Kendra Isaacson, Minority Labor Detailee; Brian Kennedy,
Minority General Counsel; Kevin McDermott, Minority Senior
Labor Policy Advisor; Richard Miller, Minority Senior Labor
Policy Advisor; Veronique Pluviose, Minority Civil Rights
Counsel; and Dillon Taylor, Minority Labor Policy Fellow.
Chairman Roe. A quorum being present, the Subcommittee on
Health, Employment, Labor, and Pensions will come to order.
Good afternoon, I would like to welcome our guests and thank
you all for joining us today to discuss the very important
subject of tribal sovereignty.
For our witnesses, I realize this issue is not only
important, it is deeply personal. And I appreciate you all
being here to share your views and your experiences. I believe
that will be valuable in our discussion of H.R. 511, the Tribal
Labor Sovereignty Act of 2015.
Upholding Native American rights of self-determination has
long been a priority. As far back as the 1830s, when the
governmental authority of the tribes was first challenged, our
courts have held that the ``tribes possess a nationhood status
and retain inherent powers of self-government.''
For decades, policymakers have agreed on the importance of
protecting these fundamental rights. We should never stand idly
by while the sovereignty of Native Americans is threatened, and
that is exactly why we are here today.
A little more than 10 years ago, the National Labor
Relations Board overturned long-standing precedent with the
landmark San Manuel Bingo and Casino decision that began using
a subjective test to determine when and where to exert its
jurisdiction over Indian tribes.
This action was met with significant opposition from the
Native American community and considered by many to be an
attack on tribal sovereignty. In fact, at a hearing of this
subcommittee in 2012, Robert Porter, president of the Seneca
Nation of Indians, called the move ``unfounded'' and a
violation of treaty rights.
During the same hearing, I myself expressed concern with
the Board's policy and its flawed interpretation of the law.
Unfortunately, the Board has ignored these and similar concerns
and continues to exert its authority over Indian tribes.
To make matters worse, the NLRB's actions have had
ramifications that extend beyond threatening tribal
sovereignty. The subjective nature of the Board's process for
determining jurisdiction has also produced a mess of legal
confusion. And that, I think you can say with the legal
confusion, is an understatement.
Years of litigation have produced inconsistent and
misguided Board decisions, compounding the uncertainty felt by
Native American tribes and their businesses. To help address
these concerns and preserve tribal sovereignty over labor
policies our colleague, Todd Rokita introduced H.R. 511, the
Tribal Labor Sovereignty Act. The bill would prevent the NLRB
from asserting its jurisdiction over businesses owned by Native
Americans on tribal lands, codifying a Board standard that
existed long before the San Manuel decision.
In doing so, it would protect Native Americans from NLRB
interference and provide legal certainty to the nation's Indian
tribes. It is a common sense proposal that has attracted
bipartisan support.
Today, we will hear from tribal leaders who will share
their experiences and discuss the importance of protecting your
cherished sovereignty. I look forward to hearing the views on
the reforms outlined in the bill.
And with that, I will now recognize the senior Democratic
member of the subcommittee from Colorado, Representative Jared
Polis, for his opening remarks.
Mr. Polis, you are recognized.
[The statement of Chairman Roe follows:]
Prepared Statement of Hon. David P. Roe, Chairman, Subcommittee on
Health, Employment, Labor, and Pensions
Good afternoon. I'd like to welcome our guests and thank you all
for joining us today to discuss the very important subject of tribal
sovereignty. For our witnesses, I realize this issue is not only
important, it's deeply personal, and I appreciate you being here to
share your views and your experiences. I believe they will be valuable
in our discussion of H.R. 511, the Tribal Labor Sovereignty Act of
2015.
Upholding Native American rights of self-determination has long
been a priority. As far back as the 1830s, when the governmental
authority of tribes was first challenged, our courts have held that
``tribes possess a nationhood status and retain inherent powers of
self-government.'' For decades, policymakers have agreed on the
importance of protecting these fundamental rights. We should never
stand idly by while the sovereignty of Native Americans is threatened,
and that is exactly why we're here today.
A little more than 10 years ago, the National Labor Relations Board
overturned long-standing precedent with the landmark San Manuel Bingo &
Casino decision and began using a subjective test to determine when and
where to exert its jurisdiction over Indian tribes.
This action was met with significant opposition from the Native
American community and considered by many to be an attack on tribal
sovereignty. In fact, at a hearing of this subcommittee in 2012, Robert
Odawi Porter, president of the Seneca Nation of Indians, called the
move ``unfounded'' and a violation of treaty rights. During the same
hearing, I myself expressed concern with the board's policy and its
flawed interpretation of the law. Unfortunately, the board has ignored
these and similar concerns and continues to exert its authority over
Indian tribes.
To make matters worse, the NLRB's actions have had ramifications
that extend beyond threatening tribal sovereignty. The subjective
nature of the board's process for determining jurisdiction has also
produced a mess of legal confusion. Years of litigation have produced
inconsistent and misguided board decisions, compounding the uncertainty
felt by Native American tribes and their businesses.
To help address these concerns and preserve tribal sovereignty over
labor policies, our colleague Todd Rokita introduced H.R. 511, the
Tribal Labor Sovereignty Act. The bill would prevent the NLRB from
asserting its jurisdiction over businesses owned by Native Americans on
tribal lands, codifying a board standard that existed long before the
San Manuel decision. In doing so,
it would protect Native Americans from NLRB interference and
provide legal certainty to the nation's Indian tribes. It's a
commonsense proposal that has attracted bipartisan support.
Today, we will hear from tribal leaders who will share their
experiences and discuss the importance of protecting their cherished
sovereignty. I look forward to hearing their views on the reforms
outlined in the bill.
______
Mr. Polis. Well, thank you, Mr. Chairman. I want to begin
by thanking the chairman for pursuing regular order with this
legislation. I am glad we are, first, having a hearing on this
legislation in order to collect facts and get feedback from
various perspectives. This really shows how this committee
should work. And I am glad for this opportunity to listen and
ask questions on this important issue.
And thank you to our terrific group of panelists for taking
your time to give us your in-depth perspective.
As all legislative hearings should, I believe this hearing
needs to be about fact-finding. This bill highlights the
inherent tension between two important principles that many of
us hold dear: tribal sovereignty over Indian nations and
workers' rights.
I fully support the sovereignty of our Native American
nations, and I know many of us place a great deal of importance
on their right to self-governance, control, and independence. I
also believe deeply in the right of workers to organize,
including Native American workers. And the ability of workers
to fight for a safe and fair working environment.
All legislation and National Labor Relations Board
decisions must balance these competing principles. They should
try their best, as should we, to make them complimentary rather
than competitive. We should not favor one at the expense of
another.
Reconciling these two priorities may be difficult, but we
as a committee have a responsibility to dig in to how we can
effectively and fairly reconcile the issues and ensure that we
protect tribal sovereignty while also respecting workers'
rights. And discussing the implications of this bill on these
two issues is where we begin the process.
We should investigate knowing that this issue is about more
than tribal sovereignty, it is about more than gaming
restrictions or the National Labor Relations Act. It is not
only about our respect for tribal sovereignty, it is also about
whether the majority cares about unions and the right of
workers to form unions. And as we have discussed hundreds of
times, unions are the key to shrinking the wage gap, raising up
the middle class, and creating good-paying jobs.
Under current law, tribes are subject to many federal
employment laws, including the Fair Labor Standards Act, OSHA,
ERISA, the Family Medical Leave Act, the Americans with
Disabilities Act. Which begs the question, if this conversation
is not solely about the right to join a union, should we also
be having a discussion around due process and federal
exemptions for a variety of American workers, including those
under the Americans with Disabilities Act, OSHA, ERISA and
others, or even laws that prevent the use of child labor.
I will also point out that I believe most of the companies
operated by our Indian nations would not take advantage of
workers. As is always the case, however, there can be bad
actors and good actors. And in circumstances like these we want
to make sure that we don't overburden good actors. But at the
same time, we want to make sure that workers, including Native
American workers, cannot be taken advantage of by the rare bad
actor.
American tribal sovereignty is a core principle that I
believe in. We also need to analyze the issue with the
knowledge that many of these businesses and casinos are part of
interstate commerce, and that there are many people who work at
businesses owned and operated by Indian nations who may not be
enrolled in the tribe that owns the casino.
That means these individuals have no ability to raise the
issue of workers' rights within the context of tribal law. So
the question becomes: what laws protect them and what rights do
they have under American law? I am very interested in hearing
from our witnesses on both sides of the issue about how this
affects sovereignty, local control, and the health and economic
vitality of working families.
Thank you very much, Mr. Chairman, and I yield back the
balance of my time.
[The statement of Mr. Polis follows:]
Prepared Statement of Hon. Jared Polis, Ranking Member, Subcommittee on
Health, Employment, Labor, and Pensions
I first want to thank the Chairman for pursuing regular order with
this legislation. I am glad we are first having a hearing on this
legislation and issue in order to collect the facts, and get feedback
from various perspectives. I am glad for the opportunity to speak on
this important issue. And thank you to our great group of panelists for
taking their time to give us an in-depth perspective.
As all legislative hearings should, I believe this hearing must be
about fact finding. This bill highlights the inherent tension between
two important principles of American law: tribal sovereignty and
workers' rights. I fully support the sovereignty of Native Americans,
and I know many of us place a great deal of importance on self-
governance, localized control, and the independence of tribal nations.
But I also believe deeply in the right to organize, in protecting
our workers and allowing workers, including Native American workers, to
fight for a safe and fair working environment. All legislation and NLRB
decisions must balance these competing principles, not favor one at the
expense of the other. So reconciling these two priorities may be
difficult, but we as the committee have a responsibility to dig into
how we effectively and fairly reconcile these issues. We must work to
honor and protect tribal sovereignty while also respecting workers'
rights and discussing the implications of this bill on these two issues
is where we begin.
We must analyze this issue in its true context. We should
investigate knowing that this issue is about more than tribal
sovereignty; it is about more than gaming restrictions or the NLRA. It
is not only about a respect for tribal sovereignty and control, it is
also - perhaps primarily - about the Majority's dislike of the NLRB and
Unions. As we have discussed hundreds of times, unions are the key to
shrinking the wage gap, raising up the middle-class and creating good
paying jobs. Without unions we wouldn't have weekends, we wouldn't be
moving towards equal pay, and there would be many fewer jobs that a
family can live comfortably live on.
Under current law, tribes are subject to many federal employment
laws, including the Fair Labor Standards Act, OSHA, ERISA, and the
Family Medical Leave Act. Which begs the question, if this conversation
is not solely about the right to join a union, then shouldn't we also
be having a discussion around due process and federal exemptions for a
variety of American workers - including those under the American
Disabilities Act, OSHA, ERISA and the Federal Labor Standards Act which
keeps companies from not using slave labor or child labor.
I will also point out that I believe most of the companies operated
by Indian nations would not take advantage of workers. As is always the
case, however, there are bad actors and there are good actors. In
circumstances like these, we cannot and should not overburden good
actors. Nor, though, can or should we allow workers to be taken
advantage of by the rare bad actor.
American Tribal sovereignty across this country is vital, but we
must also analyze this issue with the knowledge that these businesses,
casinos and more, are part of interstate commerce, and that there are
many people who work at businesses ``owned and operated by Indian
nations'' who may or may not be of Native American descent. In fact
statistics show that an overwhelming majority of workers (75% or more)
come from outside the reservation and are not members of an Indian
nation. These individuals have no ability to raise the issue of
worker's right within the context of tribal law, so the question
becomes what laws protect them?
I am interested in hearing from our witnesses on both sides of this
issue about how this bill impacts not only sovereignty and local
control, but also the health and economic vitality of all ethnicities
and beliefs.
Thank you very much, and I yield back my time.
Closing Statement
Thank you to everyone for your impassioned and honest testimony and
answers. I truly hope that everyone on the committee today will analyze
this issue objectively, and with an understanding of what has been said
here. As you consider this issue, please keep in mind the needed nexus
between balancing critical domestic sovereignties with the protection
due to all American workers - regardless of whether you are white,
black, Hispanic or Native American.
Without the right to self-governance we would not have the strong
communities present across this country today, and without the right to
collectively bargain we would not have the strong and growing economy
that all Americans rely on.
I look forward to continuing this discussion with individuals and
experts on both sides of the issue.
______
Chairman Roe. I thank the gentleman for yielding. Pursuant
to committee rule 7(c), all subcommittee members will be
permitted to submit written statements to be included in the
permanent hearing record. And without objection, the hearing
record will remain open for 14 days to allow statements,
questions for the record, and other extraneous material
referenced during the hearing to be submitted in the official
hearing record.
It is now my pleasure and privilege to introduce our
distinguished panel of witnesses. Our first witness is Mr.
Richard Guest. He is a staff attorney with the Native American
Rights Fund in Washington, D.C. Mr. Guest is the lead attorney
for the NARF on the Tribal Supreme Court Project, which is
based on the principle that a coordinated and structured
approach to tribal advocacy before the U.S. Supreme Court is
necessary to preserve tribal sovereignty. Welcome, and thank
you for being here.
It is now my privilege to introduce our second witness.
But, I would like to recognize for that privilege Mr. Courtney,
our colleague.
Mr. Courtney. Thank you, Mr. Chairman. And it is a
privilege to introduce my friend and neighbor, the Chairman of
the Mashantucket Pequot Tribal Council, Rodney Butler, who is
here today to share his thoughts and perspectives on this
issue. He is the leader of an extraordinary tribe in
southeastern Connecticut which has literally transformed the
landscape in terms of the contribution that they have made to
employment and economic growth in that area. And Chairman
Butler has been chairman since 2010, a challenging time with a
difficult economy and has made great strides in terms of trying
to achieve those goals.
I worked with the tribe in terms of dealing with the
leasehold term that BIA requires. And just a couple days ago,
he cut the ribbon for a new mall that is adjacent to the
casino; 900 new jobs, and there is a job fair that took place a
few days ago because they need more. And that is music to
everybody's ears.
He is, as I said, a native of southeastern Connecticut,
graduated from Marvelwood High School. He also graduated from
the University of Connecticut. By the way, Mr. Chairman, did
you know that the University of Connecticut women won the
10th--
Chairman Roe. Now, I did not want to talk about that this
afternoon, being a UT alum.
Mr. Courtney. As you know, he has an orange tie. I will
just stop right there in terms of mentioning that. And, again,
contributes greatly to non-profits and charitable groups
throughout the area. The nice thing about being in a democracy
is that friends and neighbors can work together on many issues,
and sometimes agree to disagree on some. But I, again, look
forward to hearing his testimony here today and certainly
welcome him to our committee.
And I yield back.
Chairman Roe. I thank the gentleman for yielding. Mr.
Butler, welcome.
It is now my privilege to introduce one of our colleagues
from California, Mike Thompson, to introduce our next panelist.
Mr. Thompson of California. Thank you, Mr. Chairman. Thank
you, and Ranking Member Polis for organizing this very, very
important hearing.
And for your courtesy in allowing me to come down and join
you at the dais today to introduce a constituent of mine, Mr.
Gary Navarro, who lives in my congressional district in Santa
Rosa, California. He is an enrolled member of the Pomo Tribe
from the Round Valley Reservation, and he is an employee at the
Graton Casino and Resort in Rohnert Park, which is also in my
congressional district.
Mr. Navarro can speak first-hand on the important work
unions are doing on behalf of workers employed in tribal
casinos. He was part of the organizing effort at the Graton
Casino and serves on the bargaining committee for UNITE HERE!
Local 2850. He was also elected from Sonoma County as a senior
chair to the California Rural Indian Health Board and serves as
a Santa Rosa Little League Baseball board member.
Accompanying Mr. Navarro are workers employed at tribally-
run casinos in California, including Thunder Valley, Cache
Creek, San Pablo, and Graton Rancheria. The questions that you
are going to be dealing with today are extremely important, and
I am very happy that you are taking this up. And I know that
Mr. Navarro will add much to your debate and to your hearing.
So thank you, Mr. Chairman.
I would also like to thank one of your other witnesses,
Lieutenant Governor Keel for his service to his country, as a
fellow Vietnam veteran. Thank you, and welcome home.
Chairman Roe. Mr. Navarro, welcome.
And it is my privilege now to introduce our last witness.
The Honorable Jefferson Keel is the lieutenant governor of the
Chickasaw Nation. Mr. Keel is a retired U.S. Army officer, with
over 20 years of active duty. His combat experience included
three years of service in Vietnam as an infantryman, where he
received a bronze star, with V for Valor, two purple hearts,
and numerous other awards and decorations for heroism. He has
management experience in the private sector and tribal programs
and operations. And as a fellow veteran, welcome home and thank
you for your service.
I will now ask our witnesses to stand and raise your right
hand.
[Witnesses sworn.]
Let the record reflect the witnesses answered in the
affirmative. You may take your seats, and thank you, gentlemen.
Before I recognize your testimony, let me briefly explain
our lighting system. You will have five minutes to present your
testimony. When you begin, the light in front of you will turn
green. When one minute is left, the light will turn yellow.
When your time is expired the light will turn red.
And we do have votes, so I am going to be pretty precise on
the five minutes. We have votes later today, and I want to make
sure we make those. At that time, I will ask that you wrap up
your remarks as best you are able. Members will each have five
minutes for questions.
Now, Mr. Guest, you are recognized for five minutes.
TESTIMONY OF MR. RICHARD GUEST, SENIOR STAFF ATTORNEY, NATIVE
AMERICAN RIGHTS FUND, WASHINGTON, D.C.
Mr. Guest. Thank you, Chairman Roe, Ranking Member Polis,
and distinguished members of this subcommittee. The Native
American Rights Fund, NARF, is honored to provide this
testimony; the purpose of which is to demonstrate that in
furtherance of long-standing policies of Indian self-
determination, tribal self-governance, and tribal economic
self-sufficiency it is time for this Congress to provide both
clarity and parity for tribal governments under the National
Labor Relations Act, the NLRA.
For the record, NARF fully supports H.R. 511, as well as
its companion bill in the U.S. Senate, S. 248.
As you are well aware, the NLRA was enacted by Congress in
1935 to govern labor relations in the private commercial
sector. Under Section 2 of the NLRA, the term ``an employer''
is defined to include any person acting as an agent of an
employer, directly or indirectly, but shall not include the
United States or any state or political subdivision thereof.
Therefore, workers in the public sector, employees of
federal, state, and local governments, were not afforded the
rights and protections of the NLRA. Based on sound policy
determinations, Congress provided those governments an
opportunity to choose how best to regulate union organizing,
collective bargaining, and labor relations with their workers,
given the essential and often times sensitive nature of their
employment.
So in this context, for tribal governments, parity
encompasses the quality of being treated equally under the law,
alongside federal, state, and local governments. Tribal
governments are entitled to the same freedom to choose for
themselves the appropriate time, place, and manner for
regulating union activity on Indian lands and collective
bargaining for their employees.
H.R. 511 provides the necessary clarity and certainty,
recognizing that those sound policy determinations apply with
equal force to tribal governments.
In terms of parity with the Federal Government, it was not
until 1978--43 years after it passed the NLRA--that Congress
enacted the Federal Labor Relations Act to regulate labor
relations with federal workers. To meet the special
requirements and needs of the Federal Government, Congress
chose to exclude employees of certain federal agencies, limited
collective bargaining with no right to negotiate wages, hours,
or employee benefits, and eliminated the right to strike of
federal workers.
In terms of parity with state and local governments,
according to the 2002 GAO report only 26 states and the
District of Columbia had statutorily protected collective
bargaining rights for their employees. Twelve states had
allowed collective bargaining only for specific groups of
workers, such as teachers and firefighters, and 12 states did
not have any laws protecting the rights of its employees to
collectively bargain.
According to the GAO report, most state government workers
entitled to collective bargaining rights under state law are
all prohibited from striking. Instead, those states provide
compulsory binding interest arbitration, a procedure not
available under the NLRA.
Mr. Chairman, we hope that you and each member of the
Committee will recognize that each of the 566 federally
recognized tribes, as governments, must have the opportunity to
make their own policy judgments regarding labor relations on
their reservations based on the values and priorities that best
serve the needs of their community.
In general, there are four areas of concern for Indian
tribes. One, a guaranteed right to strike threatens government
revenues and the ability of tribes to deliver vital services.
Two, the broad scope of collective bargaining will undermine
federal and tribal policies requiring Indian preference in
employment. Three, preemption of the tribal power to exclude
diminishes the ability of tribes to place conditions on entry,
on continued presence, and on reservation conduct. And four,
the potential for substantial outside interference with tribal
politics and elections.
Although there are several examples to choose from in my
testimony, I provide summary of the Navaho Preference and
Employment Act of 1985, and include as an attachment to my
written testimony the collective bargaining regulations
promulgated by the Office of Navaho Labor Relations.
It was the legislative intent of the Navaho Nation Council
to incorporate the most basic protections of the NLRA to tribal
employees whom the council acknowledged were otherwise exempt
from the NLRA. Included as attachment C is the Model Tribal
Labor Relations Ordinance, the result of the great experiment
with the tribes in the State of California in their gaming
compacts, resulting in labor relations being granted in that
state.
So in closing, today, as a result of the successive Indian
Gaming and the San Manuel decision, the NLRB no longer draws a
distinction from whether the tribal business was located on or
off reservation, but rather what it determines to be commercial
activities of an Indian tribe versus what it deems to be
traditional governmental functions.
I see my time has expired, so I will end my testimony
there, willing to take questions.
Thank you.
[The testimony of Mr. Guest follows:]
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Chairman Roe. Thank you, Mr. Guest.
Mr. Butler, you are recognized for five minutes.
TESTIMONY OF HON. RODNEY BUTLER, CHAIRMAN, MASHANTUCKET PEQUOT
TRIBAL COUNCIL, MASHANTUCKET, CONNECTICUT
Mr. Butler. Thank you. Good afternoon, Chairman Roe,
Ranking Member Polis, my good friend, Joe Courtney and
distinguished members of the committee. I am Rodney Butler, the
Chairman of the Mashantucket Pequot Tribal Nation in
Connecticut.
I want to thank you for inviting me to testify in support
of the Tribal Labor Sovereignty Act because it is critically
important to protect the sovereign rights of tribal
governments. First, I would like to thank Congressman Rokita
for introducing this legislation, and the nearly 50 bipartisan
cosponsors of this legislation. Indian country has always
received bipartisan support in Congress, and I hope this bill
will continue in that tradition.
H.R. 511, the Tribal Labor Sovereignty Act, is a very
straightforward bill. The legislation expressly confirms that
Indian tribes are on equal footing with state and local
governments under the National Labor Relations Act. That is all
that it does. It reaffirms the fact that tribes are sovereign
governments, and should be treated that way under all federal
laws.
The issue of tribal government parity has been a priority
in Indian country for decades. We have successfully worked with
Congress to reaffirm our tribal sovereignty under the Violence
Against Women Act, federal unemployment taxation, general
welfare, tax issues, and a host of other laws. Today, we
continue to fight for tribal parity on issues relating to
municipal bonds, pensions, the bankruptcy code, and the NLRA. I
am pleased that all of these efforts have been supported in
Congress, again, on a bipartisan basis.
However, I am concerned today that some people have tried
to portray this legislation as being anti-union, and I
wholeheartedly disagree with that assessment. I would like to
share with the committee our experience with organized labor at
our Foxwoods gaming facility.
In 2007, the United Auto Workers filed a petition with the
NLRB to organize the dealers at Foxwoods. Applying its wrongly-
decided San Manuel standards, the NLRB asserted jurisdiction
over the Mashantucket Pequot Tribal Nation and our Foxwoods
Casino. At that point, our tribal council had to make a
decision: pursue this issue in the courts, which would have led
to years of distracting and hurtful litigation, or work with
the UAW to help them understand how they could organize and
protect collective employee rights under our tribal labor laws.
Our government decided to reach out to the UAW, explain
that this was an issue of tribal sovereignty, and encourage the
use of tribal law to reach a solution that respected both
tribal sovereignty and workers' rights to organize. These
discussions gave the Tribal Nation an opportunity to educate
the UAW regarding the importance of tribal sovereignty, the
importance of tribal culture and tradition, and the
significance of tribal laws and institutions that were in
place.
At the same time, it gave the UAW an opportunity to educate
the Tribal Nation on the importance to the union of protecting
employee rights to organize and the UAW's efforts and successes
over the years protecting those rights. Both the UAW and the
Tribal Nation were open to listening and learning from each
other.
Over a period of time, we reached an agreement with the UAW
to pursue collective bargaining under tribal law, and entered
into a collective bargaining agreement with the UAW.
I think both the tribe and the UAW believe this agreement
has worked well for both sides. In fact, today three additional
unions represent our government employees at Mashantucket. They
include the International Union of Operating Engineers, the
International Association of Firefighters, and United Food &
Commercial Workers. All of these unions have collective
bargaining agreements with our tribe.
The San Manuel decision was not only a complete reversal of
the NLRB's recognition of the tribes as sovereigns, it is also
an affront to Indian country. It suggests that Indian tribes
are incapable of developing laws and institutions to protect
the rights of employees who work on our reservations.
Our experience proves nothing could be further from the
truth. The Mashantucket Pequot labor relations law protects the
rights of employees to organize, to vote to select union
representation in secret ballot election, and to bargain
collectively with their employer. Elections are conducted and
the law is enforced by the Mashantucket Employee Rights Office,
a separate government agency headed up by a labor lawyer with
over 25 years of experience, including eight years of
experience as a field examiner and attorney for the National
Labor Relations Board.
Similar to other public sector labor relations laws, our
labor law requires the parties to negotiate in good faith. And
when negotiations fail to result in a contract, the dispute may
be submitted to a binding interest arbitration. The law
provides for a dispute resolution by a three-member panel
selected by the parties.
All of these developments have been praised by unions,
labor lawyers, and even former NLRB officials alike. In
addition to our labor law, the Tribal Nation has enacted
legislation allowing employees the right to challenge
terminations from employment and suspensions of five days or
more. We adopted ERISA as tribal law, we have created remedies
for denial of health benefits, and a tribal civil rights code
allowing employee discrimination claims.
Our tribe made the sovereign decision to permit collective
bargaining with unions when designated by the majority of the
employees under our laws. It should be the right of any
sovereign government to make decisions that are best for their
people.
H.R. 511 simply allows tribal governments to make those
decisions. Section 2 of the NLRA expressively excludes the U.S.
government and state and local governments from the Act's
jurisdiction, and that makes sense. Sovereign bodies have
unique employment concerns, and the sovereign is best suited to
address those concerns. We seek to be treated just like every
other sovereign under the NLRA; nothing more, nothing less.
That is why this legislation enjoys wide support in Indian
country.
The National Congress of American Indians and organizations
that represent all Indian tribes in the United States
unanimously adopted a resolution supporting this legislation.
In fact, we have not heard from any tribe opposing this bill.
With over 560 fairly recognized Indian tribes, it is truly
remarkable to have such unanimity in Indian country.
Mr. Chairman, the Tribal Labor Sovereignty Act simply
reaffirms our sovereign rights, and we urge the committee to
pass this legislation and move quickly to get the law enacted.
Thank you.
[The testimony of Mr. Butler follows:]
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Chairman Roe. Thank you, Mr. Butler, for your testimony.
Mr. Navarro, you are recognized for five minutes.
TESTIMONY OF MR. GARY NAVARRO, SLOT MACHINE ATTENDANT AND
BARGAINING COMMITTEE MEMBER, UNITEHERE LOCAL 2850, THE GRATON
CASINO AND RESORT, ROHNERT PARK, CALIFORNIA
Mr. Navarro. Congressman Roe, Ranking Member Polis, and the
members of the Subcommittee. Thank you for inviting me to
testify today. My name is Gary Navarro. I am from Santa Rosa,
California. I am an enrolled member of the Pomo National and a
worker at Graton Casino and Resort in northern California.
While I am appearing here today as a Democrat witness, I am a
registered as a Republican.
As a Native American, I am strongly opposed to the idea
that in the name of my heritage, one of the most important
rights Americans have--namely the right to form a union and
collectively bargain--would be taken away from thousands of
people like me who work in a Native business.
I have become active in my union because of unjust
treatment of casino workers by the managers and how nothing
could be done about even sexual harassment because of
sovereignty. Exercising our rights to organize turned out to be
the only way to protect ourselves and our coworkers. Please do
not strip us of these rights.
My grandmother and her children grew up on the Round Valley
Reservation in Covelo, California. My family has lived there
many generations. People there were poor, they did not have an
education. There is much crime there because of a lot of
alcohol and drug abuse leading to violent crimes.
My grandmother left the reservation at a very young age to
bring her family to Santa Rosa because she didn't want them to
deal with the same life of poverty. My whole life, my grandma
has taught us to hold our own and stand up for what is right.
As I grew up, she always would teach us our heritage and to
be proud of who we are. But also to be hard-working and
understanding towards others. Today, I am a slot attendant at
Graton Casino. In total, there are about 2,500 employees at the
casino, but only five are Native Americans and one of them from
the Graton Rancheria. No managers are Native, the casino is
managed by Station Casino on behalf of the tribe.
I have seen sexual harassment at the casino. A general
manager going up to women telling them if they want promotions
they had to sleep with him. The women were fired. We all
complained. Managers at the Stations Casinos told us it was a
sovereign nation. It was bad enough that Title VII of the Civil
Rights Act doesn't apply to Native businesses.
Congress should not make the situation worse by taking away
protections under the National Labor Relations Act. The NLRA
enables workers who have been subjected to harassment and other
forms of discrimination to get together and complain about it.
Take away the NLRA, you don't only have sexual harassment but
no ability to speak about it.
I was also part of an organizing effort to help collective
bargaining at Graton. I have never been in the union before,
but we needed the union to help us organize ourselves so we
could speak up about abuses without having to worry about our
jobs being taken away from us. Even though Stations Casino's
management was opposed to having a union, the Graton tribal
leadership went and told them to back off.
The union is recognized now, and we are at the end of our
negotiations for the first contract right now. The union and
tribe worked together to help the tribe pass their compact in
Sacramento.
I cannot sit back and watch and see legislation that would
take the rights to organize and collective bargaining away from
every worker at Tribal Enterprises in the name of Native
heritage. It is especially troubling when I have family members
who were all in the major wars: World War I and II, the Korean
War, the Vietnam War. And I had relatives who died in that war.
Spilling blood for an American flag has always been something
my family has been proud of.
My family died for these rights and for everyone to have,
not just for Native Americans to have but for all races to
have. These are rights that they believed everyone should have.
Even though casinos are on a piece of Native American land, it
is still America. It is embarrassing as a Native American to
think that this legislation could pass and my coworkers have no
rights because my band of brothers, my family, my heritage took
them away thinking it was okay, when it is not.
I would be pleased to answer any questions you have.
[The testimony of Mr. Navarro follows:]
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Chairman Roe. Thank you, Mr. Navarro, for your testimony.
Now Lieutenant Governor, Mr. Keel, you are recognized for five
minutes.
TESTIMONY OF THE HON. JEFFERSON KEEL, LIEUTENANT GOVERNOR,
CHICKASAW NATION, ADA, OKLAHOMA
Mr. Keel. Thank you, Mr. Chairman and other members for the
opportunity to speak before you today. To us, today's
discussion is solely about sovereignty. It is about our
government-to-government relationship with the United States,
and it is about the Federal Government living up to the
principles that have shaped successful self-determination
policies for the past 40 years.
All governments must be afforded the respect all
governments are due. We accordingly call on Congress to correct
this understanding that arises from the NLRA not expressly
including tribal governments in its list of those that are
already exempt from the NLRA. As recognized since the earliest
days of this republic, the Chickasaw Nation is a sovereign
government. Acting under our constitution and laws, our leaders
provide citizens with a broad range of government services,
including health care, housing, and education.
And our government's direct operation of economic
development initiatives and the revenues we raise from them are
critical to those programs. Fundamental principles of federal
law provided American Indian tribal governments should be
treated as other governments are under federal law, including
treatment with respect to the right to government-employee
labor relations.
When Congress enacted the National Labor Relations Act, or
``the Act,'' in 1934 it expressly exempted government
employers. For seven decades the National Labor Relations
Board, or the Board, properly construed the act as exempting
the American Indian tribal governments. In 2004 however, the
Board moved away from that settled practice and began to assert
jurisdiction over tribal governments based on a case-by-case
determination that focused not on the sovereign status of
tribal governments but on an inquiry as to whether the tribal
government's actions were sufficiently governmental in nature.
This is an inquiry for which neither the Act nor other
common law provide any meaningful criteria and is applied to no
other government. The Board applies this test to not federal,
not state, not municipal; only tribal.
In 2011, it was alleged that the Chickasaw Nation violated
the NLRA at our WinStar World Casino. We contested those
charges, asserting both our fundamental status as sovereign
nations and our treaties with the United States. Earlier this
month, we won a ruling from the Board that recognized our
treaties as barring NRLA jurisdiction over our workplaces. Our
win is a long overdue victory for sovereignty, but it remains
incomplete.
First, it rests on treaty provisions that are unique to us
and our sister sovereign, the Choctaw Nation of Oklahoma.
Instead of relying on broader federal law principles, the Board
appears to instead have found the narrowest path possible for
coming to the right conclusion.
Second, the test that the Board applied is only 10 years
old. More to the point, that test reversed 70 years of the
Board's prior understanding of the law. What assurances do we
have, today, that the Board will stay with this understanding?
The governments of Indian country deserve stability and
certainty under federal law.
Tribes have demonstrated their ability, as you have heard,
to address these issues on their own. For example, the tribal
governments in California have negotiated compacts that address
tribal workplace unionization. That may have been a sound
decision by those tribal sovereigns. It may not be one that all
tribal governments or even state governments might make.
Certainly, it is not a decision that the Board should make for
tribal governments.
Franklin Roosevelt himself argued for not subjecting
governments to the NLRA, which he emphasized, was developed for
purposes of regulating private enterprise labor relations. His
caution was well founded and should apply with respect to all
governments, including tribal governments and their sovereign
rights to regulate their own government labor relations.
The Tribal Labor Sovereignty Act would provide Indian
country with the stability and certainty it deserves, and the
Chickasaw Nation accordingly calls on Congress to correct its
prior error by adding tribal governments to the list of those
already exempt from the NLRA.
Thank you again for inviting me to appear. I urge you to do
everything you can to ensure swift passage of the Tribal Labor
Sovereignty Act.
Thank you.
[The testimony of the Hon. Keel follows:]
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Chairman Roe. Thank you, Lieutenant Governor. And again,
thank you for your service to our country.
I am going to yield myself five minutes and get started.
And really, I think this is about as clear an issue as I have
ever seen. And I am amazed that you can get 566 Indian tribes.
I was at the doctors meeting this morning, with 13 of us and we
couldn't agree on anything. So I am astonished that you have
that. If you have watched the Congress operate, we will never
agree 100 percent. So it is pretty amazing. Look, I think this
is fairly simple. Let me just show you how I see it.
One is, either you are sovereign or you are not. You can
either make your decisions or you cannot. The NLRA--and I want
to read this--does not cover all employees and employers in the
United States. For example, public sector employers--that is
state, local, and Federal Government employers--are covered by
the Railway Labor Act; that is airlines and railroads.
Agriculture labor and supervisors are not covered under the
Act, 29 United States Code.
So, it is clear, you are correct, Mr. Keel, you made the
point that it was just left out. And then, 70 years of
basically what we thought was law, changed in 2004.
So, I see this very clearly. We should clear it up with one
small bill--it is a very simple bill--and it would then allow
you to make those decisions. I am for making those on a local
basis. And I think Mr. Butler made a great point in his
testimony, and I will turn it over to you: this is not anti-
union. If you want to unionize where you are, that is perfectly
okay to do. And people have, clearly, and you have worked with
the unions.
I have said this since I have been on this committee and
the time I have been in Congress. It is a right in this
country; if you want to do it, you can. If you are fully
informed, you want to vote for a union, you can do that. I grew
up in a union household. I absolutely understand how that
works.
But you also have a right not to unionize if you don't want
to. And I think your point was well taken, Mr. Butler, and if
you would like to comment on that I would like to hear your--
Mr. Butler. First, my condolences to UT. I apologize for
being a Husky. But no, absolutely. I mean, look, we have a
tremendous relationship with our unions. We work hand-in-hand
on many things. In fact, we just worked on an expansion of the
gaming bill in the state of Connecticut that was, you know, in
concert with union support. And so, those are union jobs, they
are going to get impacted. And we realized that because of the
way that we care about our employees. We worked with them
together to get that legislation passed. And so, we work
together throughout the community in charitable organizations,
and it has been a very successful partnership, again that we
chose to enter into.
Chairman Roe. And I think, Mr. Keel, I want you to comment.
I think you made a point a minute ago about--at least the way I
understand it--the NLRB made this ruling was that if you are
using the profits, some of the profits, of your casinos for
travel, for services in the tribe. Am I correct on that?
Mr. Keel. That is correct, yes, sir.
Chairman Roe. And when you do that, that would seem to me
like if you are a sovereign nation you need those revenues to
be able to provide the services that your constituents expect
from you. Am I correct?
Mr. Keel. Yes, that is correct. Yes, sir.
Chairman Roe. And have I missed the point at all in this?
It is a fairly simple, straightforward--I don't see how there
could be much discussion. Either we have--in these treaties
that we did with 566 tribes in this country--allowed you to be
a sovereign nation or we have not. And I think we have. Any
comments?
Mr. Guest?
Mr. Guest. I am sorry, Mr. Chairman--
Chairman Roe. I said the point is, what we have done is, in
this country we have either said to these treaties that we have
had with the nations, the Native American Nations--that you are
a sovereign piece of property or you are not. And I think
clearly you are, and are able to make your own decisions. Am I
interpreting that wrong?
Mr. Guest. No, sir. I mean, that is exactly the point that
tribal leaders are bringing to you today is that they are no
different than states, than the United States. The challenge is
that Congress was silent with respect to the language in the
NLRA, and due to that silence it has created the opportunity
for a lot of confusion in this area of the law.
Chairman Roe. Mr. Polis, you are recognized for five
minutes.
Mr. Polis. Thank you, Mr. Chairman. My first question, for
Mr. Guest. And what is the implication of this bill, if passed,
on the applicability or the precedent that is set with the
applicability of the Americans with Disabilities Act, OSHA,
FLSA?
Mr. Guest. Well, H.R. 511 only addresses Congress' silence
in the NLRA in including tribes in the exemption to the
definition of employer, along with state and local governments
in the Federal Government. It doesn't have any impact on any
other federal law.
Mr. Polis. So how does one differentiate, for instance,
among the right of those with disabilities to have reasonable
accommodations at work versus the right of workers to organize?
I mean, why this particular set of rights as opposed to some of
the other national protections that exist even in tribal
nations?
Mr. Guest. If my recollection serves me, Indian tribes are
exempted from the definition of employer in the Americans with
Disabilities Act. However, in other employment legislation,
Congress again has been silent with respect to Indian tribes.
The courts have interpreted that silence to create the rule
regarding laws of general application apply to Indian tribes,
in the employment context, saying that those laws like FLSA and
OSHA do apply.
Mr. Polis. And in your opinion, should those laws not apply
to our sovereign nations, OSHA and FLSA?
Mr. Guest. Well, I think the difference here is that with
respect to the NLRA and its impact on tribal sovereignty is
vastly different than the impact with respect to OSHA or the
Fair Labor Standards Act. It really is about safety and health
regulations, wages and overtime, which is a very different set
of rules versus union organizing on the reservations. Inviting
third parties to come on to the reservation and the tribes
having no ability, no authority, to regulate their presence.
Mr. Polis. Reclaiming my time, Mr. Navarro, do you, as a
general principle, do you support the sovereignty of our Native
American nations?
Mr. Navarro. Yes, I support sovereignty.
Mr. Polis. And so how would you view that this bill would
impact both workers' rights, and how do you reconcile your
support and the support of many of us of Native American
sovereignty with your support of workers' rights?
Mr. Navarro. The workers' rights, they are just given
rights that people have. You can't really go and take them away
and say this is a sovereign nation. This is America. Honestly,
it is America. You can't just say I am taking your rights today
because it is a sovereign nation. You can't use that against
people. Those are hardworking Americans who are busting their
butts in their workplace for these tribes. And to come in and
say we are going to use sovereignty against you to take rights
away isn't fair to them.
Mr. Polis. Mr. Butler, with regard to employees of Native
American nations' enterprises that are not affiliated with a
tribe-- either members of other tribes or non-Native
Americans--they clearly don't have the same rights under tribal
governance. And my question is: is there any mechanism under
this bill where non-tribal employees could somehow influence
the process around the conditions of their employment if they
are not enrolled members of the tribe?
Mr. Butler. If they are not enrolled members of the tribe?
So we treat all of our employees--
Mr. Polis. About 75 percent, I think, of the employees, I
understand across the industry are not members of the tribe.
Mr. Butler. We have non-native employees, we have native
employees, who aren't enrolled members of our tribe, as well,
and we treat them all the same, right? And again we have
chosen, as Richard spoke to, the other laws that don't
necessarily apply to Indian country, you know. That is our
sovereign right to accept those and apply those. And we have
chosen to do so. In this case, again, we have put in place our
own labor law. We have a disability law; we have a civil rights
code. And so those all, on our sovereign actions, have been
applied to all of our employees.
Mr. Polis. And if it was a tribe that didn't have those
protections, would you then argue that those protections simply
shouldn't be afforded to the employees? Or should there be some
federal or national backstop on that?
Mr. Butler. Well again, in our case as an independent
sovereign, just as each state is independent we have chosen to
afford those opportunities to our employees. Now, same thing
with states. Not every state has afforded those opportunities,
as well, under the NLRA. But we have, so we look at it in the
same fashion.
Mr. Polis. Yield back the balance of my time. Thank you.
Chairman Roe. I thank the gentleman for yielding.
Dr. Foxx, you are recognized for five minutes.
Ms. Foxx. Thank you, Mr. Chairman. And I thank our guests
for being here today.
Mr. Guest, just last week, in NLRB v. Little River Band of
Ottawa Indian Tribal Government, a divided U.S. court of
appeals for the 6th Circuit ruled the NLRB may apply the NLRA
to a Michigan casino run by the Little River Band of Ottawa
Indians on tribal land. How does a treaty with the Little River
Band of Ottawa Indians differ from the Chickasaw treaty?
Mr. Guest. Well, in the Little River Band case they did not
make the treaty argument directly, although they have a treaty
with the United States. And the language in their treaty and
the language in the Saginaw Chippewa, which is the next case up
in front of the 6th Circuit Court of Appeals, the distinction
is that there is much more general language. They don't have
the same language as in the Chickasaw treaty that basically
precludes any laws enacted by Congress unless it is made
specific to the tribe.
I mean, it is very narrow language for the Chickasaws and
the Choctaws that the board recognized. And the impact is going
to be felt because not all federally recognized Indian tribes
have treaties with the United States. Indian tribes entered
into relationships with the United States in a variety of ways.
And so, not every tribe is going to have the benefit--even
those with treaties, as my friend Jefferson Keel indicated--
have that good of language. It is just the exception, not the
rule.
Ms. Foxx. Thank you. Let me follow up, if I could. If the
NLRB determines it has jurisdiction over an Indian tribe, then
what will become of the tribal labor laws?
Mr. Guest. Well, that is a good question. And in the San
Manuel case it came up, as well. Initially, with the model
tribal labor relations ordinance in California, now with the
assertion of jurisdiction by the NLRB in Little River Band,
there are existing tribal laws. And what the NLRB has said is,
well, those that conflict with the NLRA are no longer
applicable.
So now there is going to be litigation over, well, what
conflicts with the NLRA and what doesn't, creating more
litigation and more uncertainty. The decision by the NLRB in
Chickasaw and the decision by the 6th Circuit in the Little
River Band case again illustrate for us why Congress needs to
act and act quickly with respect to H.R. 511.
Ms. Foxx. Thank you.
Lieutenant Governor Keel, the NLRA includes the right to
strike. Would a strike at your casino affect government
operations in the Chickasaw Nation?
Mr. Keel. Absolutely. I would liken it to what happened
with the air traffic controllers strike a number of years ago
to this country, where a group of individuals basically
crippled the transportation system of this whole country. We
obviously are not on as large a scale, but that is the type of
activity that would interfere with what we are doing.
We depend on the revenues to make sure that we provide
services, whether it be housing, health care, or emergency
assistance to our citizens. And we could not stand for that.
Ms. Foxx. Thank you. Let me go to one more question. I
believe I have time. In July 2013, a Board panel concluded that
it had jurisdiction over the Chickasaw Nation. Can you tell us
what was the basis for that holding? And have the treaties
between the Chickasaw Nation and the United States changed
since 2013?
Mr. Keel. No, ma'am. They have not changed. The treaties
have not changed and will not change. But thank you for that
question. The specific language that applies to the Chickasaw
is that no laws--as Mr. Guest has stated--would ever be passed
that would be contrary to the Chickasaw Nation, or unless it
was passed specifically for and to the Chickasaw Nation.
Ms. Foxx. Thank you, Mr. Chairman.
I yield back.
Chairman Roe. I thank the gentlelady for yielding.
I now recognize our ranking member, Mr. Scott, for five
minutes.
Mr. Scott. Thank you, Mr. Chairman.
Lieutenant Governor Keel, apparently some federal laws
apply to tribal activities and some don't. If you believe in
sovereignty, why shouldn't they all apply or none of them
apply?
Mr. Keel. Thank you. The Chickasaw Nation, we have adopted
laws, ordinances, and employee relations that cover all of our
employees. And we treat, as you have heard, all of our
employees the same. We go through a process every year at a
master planning session, where we sit down and we look at what
our needs of our employees are in terms of benefits. They--
Mr. Scott. We are talking about, in this hearing, we are
just talking about NLRB. What about other laws of general
application? Why shouldn't they all apply on tribal lands or
none of them apply? How do you tell what applies and what
doesn't?
Mr. Keel. Well, the federal laws that we operate under,
many of our programs are federally funded so we operate by
those rules. Many of the benefits that are afforded to our
citizens are the derivative of that. The Fair Labor Standards
Act, we operate under those rules and regulations and those
laws, so--
Mr. Scott. Should you have to?
Mr. Keel. We don't feel that we should have to, but we do.
Mr. Scott. So I guess the question, again, is why should
some apply and some not? What would happen if the business
involved hires a vet. The vast majority of employees are not
Indians. Should the NLRB apply to that kind of business?
Mr. Keel. If it is a tribal business operated by the tribal
government, by the Chickasaw Nation, the fact is the answer is
no, the NLRB should not be. We are capable of developing our
own laws and rules and regulations that would far exceed those
needs. In fact, the wages of our employees meet or exceed any
of the standards. The benefits of our employees are better.
They have better health care, better benefit packages than
anywhere around. So we don't feel that the NLRB has any say at
all in our affairs.
Mr. Scott. What about other laws? OSHA, should that apply?
Occupational Safety and Health Act?
Mr. Keel. Again, sir, as many of our programs that we
operate are covered under those federal laws we operate under
those rules. And we do make sure that we are within the law.
Mr. Scott. Why should you have to operate under that and
not NLRB law?
Mr. Keel. As I have said, sir, I believe that we are
capable of developing our own rules, laws, and tribal
ordinances that would actually improve on those conditions.
Mr. Scott. The discussion involves businesses on Indian
land. There have been occasional land swaps, where you take
some Indian land and trade it with some downtown land so that
the hotel is actually on Indian-owned land. Should these
exemptions apply to a downtown casino?
Mr. Keel. Once again, the Chickasaw Nation is a sovereign
nation and we operate our businesses as a sovereign nation. So
our laws apply to all of our businesses regardless of where
they are located as long as they are within--on trust lands, as
you would refer to.
Mr. Scott. Well, I mean, if you swapped land and had trust
land and really downtown, and had a downtown casino, should
that be considered exempt from the various laws that we are
talking about?
Mr. Keel. Sir, there is a process by which the lands are
taken into trust that we go through a lengthy process to
determine whether or not these lands are placed into trust.
Once that process is completed, then yes, we operate those
businesses just as any of the other business we operate as a
sovereign nation.
Mr. Scott. And you would be--you would expect to be exempt
from the NLRB in that situation, where you have what is
essentially a downtown casino that you own?
Mr. Keel. If it is on our lands, yes, sir.
Mr. Scott. Thank you, Mr. Chairman.
Chairman Roe. I thank the gentleman for yielding.
Mr. Salmon, you are recognized for five minutes.
Mr. Salmon. Thank you. Mr. Guest, my first question is
going to be for you. Is it your understanding that state and
federal governments, that their employees have to operate under
OSHA?
Mr. Guest. I am not an employment or a labor law attorney.
Mr. Salmon. My understanding is that they are. In fact, if
anybody can dispute that--in fact, the ADOT folks, as they are
building highways--they have to comply with OSHA regulations.
And so this isn't really about whether or not you guys want to
pick and choose the laws. You want to be treated the same as
the other carve-outs, whether it is the Federal Government or
the state governments. In fact, you had mentioned in your
testimony that Section 2 of the NLRA states that the term
``employer'' is defined to include any person acting as an
agent of an employer directly or indirectly, but shall not
include the United States or any wholly-owned government
corporation or any Federal Reserve bank, any state of political
division thereof.
And so, they are okay with not having those guys comply
with the NLRB rules and regulations, but they have kind of
singled you out. I hear some of the argument on the other side,
asking you if you should be exempt from OSHA. Well, the states
aren't exempt from OSHA, the Federal Government is not exempt
from OSHA. And so all you are asking for is to stop being
treated like some second class government entity. Isn't that
what we are saying?
Mr. Guest. I think that you have brought an argument to the
table that we have not directly thought of, Mr. Salmon. I think
that is exactly right, is that the fact that federal and state
employees, or governments, are not exempted from OSHA, from the
Fair Labor Standards Act, and others--again, brings the parity
issue right back into focus: tribes should not be second-class
governments.
And again, the difference between those laws and the NLRA
is the fact that over the course of time tribes are working
directly with folks at the Department of Labor who enforce the
employment laws. They are dealing directly with OSHA, and
enacting statutes that reflect OSHA. That, as Mr. Butler said,
they have enacted ERISA, they have adopted ERISA as tribal law.
That is the act of a sovereign, that they are enacting their
own laws. Some tribes actually increase the protections for
their workers over and above what the federal minimum
requirements are. So, again, it is allowing tribes to act in
that sovereign capacity.
Mr. Salmon. I guess I just resent you being singled out as
the one government entity that has to either--you know, has to
accept this or somehow you are not caring about the tribal
members that you have purview over. I don't buy that. In fact,
I think that either--I think this is very, very consistent with
the other laws that are on the books. And that, you know, these
other government entities are exempted; then if they are
exempted, you should be exempted. That, to me, is pretty cut
and dry and the way it ought to be.
Lieutenant Governor Keel, in your testimony you did an
excellent job emphasizing the basis for, and the importance of,
tribal sovereignty. And I am a proud co-sponsor of the bill for
the reasons you stated. And Todd Rokita is a great American. So
thanks for introducing this bill. Do you anticipate much
opposition to the bill? And then if so, what interests do you
believe are going to be interested in restricting the rights of
sovereign tribes to handle their own affairs in this area?
Mr. Keel. Thank you, Mr. Chairman. And thank you for being
a co-sponsor of the bill. I am not sure of the opposition. I am
not sure what level of opposition we would receive. I am not
sure why they would oppose tribal governments being treated as
every other government in this country, as it has been
recognized. Our inherent sovereignty is recognized in the
Constitution of the United States in Article 1. I am not sure
why there would be any opposition to this. This simply
clarifies misunderstandings that have arisen with the NLRB over
the past 70 years. So--
Mr. Salmon. Well, if the NLRB is going to be consistent
then it ought to go after the state and the federal
governments, as well, if it is going to be consistent. All we
are asking for is to quit having this darn double standard.
Isn't that right?
Mr. Keel. Yes, sir. Yes, sir, absolutely.
Mr. Salmon. Okay.
I yield back the balance of my time.
Chairman Roe. I thank the gentleman for yielding.
Mr. Pocan, you are recognized for five minutes.
Mr. Pocan. Thank you, Mr. Chairman, and thank you to our
witnesses.
So let me try to follow up on Mr. Salmon and Mr. Polis'
question, and even the chairman when he said you are either
sovereign or you are not. And as I hear some of this
discussion, it sounds like there is more than one inconsistency
with how the law is applied and, Mr. Guest, I think
specifically the questions that were asked by Mr. Salmon and
Mr. Polis. So it sounds like it is not just this one law where
you are treated differently, but it sounds like there is other
labor, consumer protection, and environmental laws that are
treated differently.
So if I understand right, the Fair Labor Standards Act has
been applied to tribes. Correct?
Mr. Guest. Correct.
Mr. Pocan. And I believe the OSHA we were talking about has
been applied to tribes?
Mr. Guest. Correct.
Mr. Pocan. Okay. ERISA, the federal pension law?
Mr. Guest. Correct.
Mr. Pocan. Age Discrimination in Employment Act?
Mr. Guest. I believe there is an exemption for tribes. Not
under the age discrimination, the Americans with Disabilities--
Mr. Pocan. Yes, not the ADA but specifically that. So I
guess when I look at that, and when we asked before about that
we said, well, courts have made this determination. So I guess
my question is, are you looking for a legislative fix to all of
these areas? Because clearly, you are either sovereign or you
are not is the argument, then there are some other things that
need fixing. So are you looking for a legislative fix across
the board on these issues?
Mr. Guest. I don't believe so. I think that what we are
looking for is exactly what the testimony is; is about parity
with respect to the way Congress is treating tribes with
respect to labor relations. It allows state governments, local
governments, and the Federal Government to enact their own
labor relations laws for their employees, but does not allow
tribal governments to do that.
Mr. Pocan. But if understand it right, local governments
aren't under some of the same things that you are under and
some of these other laws. So I mean if you really want the
parity shouldn't we address each of these areas? Or are we just
going after labor unions as an issue? I mean, that is I am just
trying to understand--
Mr. Guest. I think it is--
Mr. Pocan.--the consistency, I think, it would be all these
areas.
Mr. Guest. I think it is a policy decision that is
considered by tribal leaders with respect to where the
challenges are. As a result of treaty-making, Indian tribes
ceded much of the land in this country over to the United
States and also ceded much of their authority--
Mr. Pocan. Sure.
Mr. Guest.--outside of their own lands. And as a result,
they have this unique relationship with the United States. It
is the same principle that applies under federalism with the
state governments and United States government.
Mr. Pocan. Sure.
Mr. Guest. You know that certain powers were ceded to the
central government, and those--
Mr. Pocan. Yes, but perhaps I am misunderstanding it. But
wouldn't all of these issues that I mention that you said apply
to you that aren't applying to local units of government?
Wouldn't that also be then something that needs to be fixed. I
mean, it seems like we are picking one little area, but it
sounds like we found about five or six areas at least that
there is some inconsistency on.
Mr. Guest. Well, again, I don't think anyone would argue
that there is a need for safety and health regulations in the
workplace across the board or that there is a need for a
minimum standard with respect to the Fair Labor Standards Act.
That there are minimums, and the tribes and tribal leaders are
looking at those and determining for themselves, no, that
federal law works for us. We are going to enact it as tribal
law.
Mr. Pocan. But then doesn't that make you pick and choose
which laws? Because I understand you could have, under your
sovereignty, labor laws. You have got unions in your
facilities, you do not have unions in your facilities. Great
example, but all these other things you are now saying there
are minimum standards, that is why you comply with them. But
there is still a direct inconsistency with some of these other
laws.
I mean, so I guess, you know, if we make it you are
sovereign or not we should fix things across the board and not
just pick on the labor relations. Because I understand,
Lieutenant Governor Keel, your argument was that if the
blackjack dealers struck it would be a--what was the exact
term?--it would cripple government operations.
I might argue with that a bit. I think, you know, that may
not cripple your government operations. But you are picking and
choosing this is the one law you want to fix on, but not all
the other laws.
You just said there are certain minimum standards you have
to have for safety, therefore you are complying with OSHA. But
really, you probably shouldn't be under OSHA, by the argument
you are making today. So I am just wondering how we come across
the board to fix it, or why we are picking and choosing which
ones we want to attack and which ones we don't want to attack.
Because I think it is kind of a holistic approach. You are
sovereign or you are not, then we should really have everything
included or else we are really not doing our jobs.
Mr. Guest. Well, again, there is the limited nature of
sovereignty with respect to the states themselves. They have
chosen to limit their sovereignty, as the tribes have chosen to
limit their sovereignty in their relationship with the United
States.
Again, I just would stress the fact that the NLRA is
fundamentally different with respect to what it provides and
authorizes: third parties coming on to Indian lands, organizing
employees, the ability to interact in such ways that could
interfere with political elections. And that is the concern
that tribal leaders have brought to Congress, that concern. Not
concerns about safety standards, not concerns about wages and
overtime. It is about unions coming on to reservations.
Chairman Roe. I thank the gentleman for yielding.
Mr. Allen, you are recognized for five minutes.
Mr. Allen. Thank you, Mr. Chairman, and thank you to our
panelists for appearing here today. I think we all agree today
that tribal sovereignty is a long-standing treaty between
tribal nations and the United States. And, you know, I will
remind our colleagues today that we are talking about the NLRB
infringing on the rights of Native Americans and our concern
for that. And that is the subject of the day. We can take up
the rest of these issues, and we will be glad to offer bills to
take up those issues when they apply.
Today, we are talking about labor. We need to ensure that
Native Americans are protected from NLRB interference. And with
that, Lieutenant Governor Keel, it is my understanding that
Indian nations use the profits from the casinos to support
tribal community and self-government. How are the profits from
your casino used by the Chickasaw Nation?
Mr. Keel. Thank you, sir. The revenues that are derived
from our casinos are used to meet the shortfalls where the
Federal Government does not provide services or enough funding
for many of our services. These include elder care. Many of our
senior nutrition sites are completely, totally tribally funded.
We have youth camps, and we have scholarships, education. We
have a number of other services that are provided for our
veterans, and our health care, housing, emergency services, and
other types of services that are provided to our citizens that
are outside the purview of federal funding.
We operate programs, for instance, for daycare for our
employees, Head Start, and other types of assistance to our
employees so that they can come to work and earn a living so
that they can provide for their families.
Mr. Allen. How do your employee wages and benefits compare
to, say, local averages? And have the unions attempted to
unionize the Chickasaw Nation casino?
Mr. Keel. Our wages and benefits either meet or exceed--in
most cases exceed--the local averages anywhere in our area. We
do comparisons to even the metropolitan areas of Dallas-Fort
Worth, which is usually a higher standard than where we are
located.
Mr. Allen. Better than Georgia. It is better than the state
of Georgia.
Mr. Keel. Yes. So our benefit packages are designed to at
least meet or exceed in most cases, any of those,
comparatively.
Mr. Allen. Have the unions attempted to unionize your
casino?
Mr. Keel. At WinStar World Casino, yes, there was a
situation where an individual disagreed with our Indian
preference, and that led to some other issues.
Mr. Allen. And that is why it failed, do you think?
Mr. Keel. Yes.
Mr. Allen. Okay. You know, I believe that some federal laws
do apply to tribal lands. In what federal laws apply, is there
an application explicit in the law, and how has the Supreme
Court determined whether federal laws apply in the event of
ambiguity? Is there any mention of Indian tribes in either the
NLRA or its legislative history? Anyone care to take that
question?
Mr. Guest. No. The NLRA, in its legislative history, is
absolutely silent with respect to Indian tribes.
Mr. Allen. Okay.
Mr. Guest. The Supreme Court has not yet addressed the
issue other than through its Tuscarora ruling back in the
1960's that established that under the Federal Power Act, which
had a provision specific to Indian lands, Indian tribes, and
Indian individuals. It nonetheless still went back and answered
an argument, saying that federal laws of general application
would apply to Indians.
And from that decision, the lower courts have built up a
framework that the NLRB now follows the Tuscarora-Cour d'Alene
Framework. Not all the circuits are in agreement with that
framework. The D.C. Circuit in San Manuel went another way. The
6th Circuit appears to have adopted that framework.
And other circuits, the 10th Circuit is still noncommittal
on that question. So the courts are all over the place with
respect to what is the test. To sort of clarify, the rule that
was established by the U.S. Supreme Court early in its Indian
law jurisprudence basically said that unless Congress spoke
specifically and applied a law to an Indian tribe it would not
apply. That is what has now been reversed. There was an
understanding that if that law was going to impact tribal
sovereignty, Congress had to be explicit that it intended that
law to do just that. And Congress has.
Mr. Allen. Thank you.
I yield back--
Chairman Roe. I thank the gentleman for yielding.
Ms. Bonamici, you are recognized for five minutes.
Ms. Bonamici. Thank you very much, Mr. Chairman. And Mr.
Chairman, you said at the beginning of the hearing that was a
clear issue, and with all due respect I don't see it that way.
I don't see it clear at all.
It is clear that we all respect tribal sovereignty. I don't
think there is a question about that. But I submit that there
is also no question that tribal members and non-tribal members
who work at tribal casinos deserve the protections and rights
that are provided by the National Labor Relations Act.
So we have, it is my understanding right now, 566 legally
recognized tribes. And I know Chair Butler talked about the
employees at Foxwood and how they were able to organize because
your tribe has a labor relations law.
And, Mr. Guest, you mentioned in your testimony something
about the Navaho Nation labor code, California has a tribal
labor relations ordinance. Lieutenant Governor Keel didn't say
whether the Chickasaw Nation has a tribal labor relations law
that would allow workers to form a union. I do know there were
troubles a few years ago when the employees tried to form a
union. And to further complicate the issue, there are many
employees who are not tribal members who work in casinos, and
this issue tends to come up at tribal casinos.
So, Mr. Guest, in your testimony you encourage the
Committee to support this legislation because, you said, tribes
should not be subject to a one-size-fits-all approach. But the
NLRB's current test for invoking jurisdiction over tribal
enterprises involves a case-by-case analysis that accounts for
the different legal, political, and economic circumstances of
each enterprise.
And it looks like really there are differences among the
566 tribes. And so different tribal members have different
protections. So the legislation simply eliminates the
jurisdiction without considering any of the tribal diversity
you cite.
So isn't it fair to say that it is the bill that is the
one-size-fits-all approach, and that the current jurisdictional
consideration would analyze whether those protections are there
for tribal members.
Mr. Guest. Thank you, Congresswoman. I can see how you, and
how others, might misinterpret what my intended meaning was
there. With respect to what it intends to address is no
amendment to H.R. 511, which tries to impose additional
restrictions on tribes because tribes are diverse. It wasn't
intended to address the fact that H.R. 511, what it would do
is, allow each individual tribe to decide for itself what its
labor policy is going to be on the reservation, on Indian land.
I apologize for that confusion there.
Ms. Bonamici. And I am going to go to Mr. Navarro. Thank
you very much for your testimony. You mentioned that one of the
things that motivated you to be part of an organizing effort at
your casino is because you saw your colleagues face penalties
for raising sexual harassment grievances. So tribal employees
are exempt from the protections of Title VII. So as a result,
employees who are subjected to forms of employment
discrimination at tribally-owned workplaces don't have any
recourse.
I read a story about a woman who worked at a swamp safari
in Florida. And she filed a suit against her employer after he
allegedly sexually harassed her, and the court dismissed her
case because of sovereign immunity.
So, Mr. Navarro, how does your membership in a union help
you and your coworkers address things like harassment and
employment discrimination issues? What difference does that
make?
Mr. Navarro. It gives us protection from everything, like
for example from this harassment case as it happened. We had
members from Stations Casino who represents Graton Rancheria
Tribe. And I would like to thank them also for letting me be
here today because they have been very supportive of our union.
They have been absolutely wonderful.
They let us go ahead and negotiate at the casino with them
there.
But this actually helps us because these women literally--I
witnessed this--I watched the manager who was running this
department would go up to them and tell them if you want a
raise, let us go and have sex at my house. Or he would text
them and tell them, hey, let us go to my house, we are going to
have a party, the game is on, let us get in the pool
afterwards.
And when we took it up with our management, which is
Stations, we were told that it was a sovereign nation and that
they would deal with it how they would do it. And we sat back
and watched these girls the next day get escorted out by
security because they were fired for all the allegations they
made.
And it wasn't until Chairman Sarris stepped up and said
hey, you guys need to step back, you know, and be diligent when
you fire people. And he said you guys need to let them go ahead
and organize their casino. It helped us because we finally had
a voice. And those women that were fired, I felt like there was
some kind of repercussion because we were given the choice to
stand and have voice.
Unfortunately, they are no longer there. A couple months
after Chairman Sarris came in the supervisor was removed from
Stations Casino and moved to another casino in Minnesota.
Ms. Bonamici. Thank you very much for being here, and your
testimony. And my time has expired.
I yield back, thank you.
Chairman Roe. I thank the gentlelady for yielding.
Mr. Pocan?
Mr. Pocan. Yes, thank you, Mr. Chairman. I just have five
letters I would like to ask unanimous consent to have entered
into the record.
[The information follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Roe. Without objection, so ordered.
Mr. Grothman, you are recognized for five minutes.
Mr. Grothman. Okay, couple questions. First question, just
in general, we have covered this before. I think the
appropriate parallel is not any other business, but local units
of government. Because if I had to say, you know, traditionally
I think we pass laws around here. We exempt state governments
or exempt local units of government. How does it make you feel
that compared to other locals of government you seem to be
treated less important or less capable of self-governance?
Mr. Butler. Congressman, we have been dealing with that for
centuries, right? And it is unfortunate. And going back to
Congressman Pocan's point, I mean, an excellent point about why
aren't we addressing all these at one time. There are a lot of
issues that, as in Indian country, we want to address at one
time, right? And whether it is tax parity, whether it is,
again, the bankruptcy code that I mentioned earlier, whether it
is fair access to health care. And there are so many things
that we would absolutely want to address at one time and would
have liked to have addressed 150 years ago.
But, that is just not the way the legislative process
works. And so, clearly, we have felt like we have been dealt an
unfair hand. And as these issues and the opportunities to
address them come up, we want to address them.
Mr. Grothman. Okay. Under San Manuel, the Board will not
assert jurisdiction if the application of law would abrogate
treaty rights. Under this standard, who determines whether the
application of law would abrogate treaty rights? Does the board
have any special knowledge of Indian or treaty law? And what
level of deference should the courts give this determination by
the board?
Mr. Guest. Well, Mr. Grothman, the NLRB itself admits, in
the Chickasaw decision, that it has no expertise in this area.
The 6th Circuit, in its decision in the Little River Band case,
says NLRB you have no expertise in this area so no Chevron
deference for you.
I mean, there is no question by the NLRB or anyone else
that they have no expertise in Indian affairs, and yet they are
calling upon themselves to interpret treaties, to determine
what interferes with affairs on the reservation with the tribe
that they simply have no expertise in whatsoever.
Mr. Grothman. Thanks. Did the NLRB engage with the public
prior to deciding this? Did they request briefs, for example?
Mr. Guest. Yes. They followed their administrative process
through the proceedings, yes, sir.
Mr. Grothman. Okay.
I will yield the rest of my time.
Chairman Roe. I thank the gentleman for yielding.
Mr. Rokita, you are recognized for five minutes.
Mr. Rokita. I thank the Chairman, not only for the time as
I am not a member of the Subcommittee, but for your leadership
in bringing this bill forward; it says you can tell it is
greatly appreciated. I also thank Chairman Kline for his
leadership in getting this bill to the stage it is in today. I
thank all the witnesses for your testimony. I think it has been
very enlightening and very helpful to many of us who are
honestly trying to learn more about this situation and get to
an equitable and proper resolution.
I am a little concerned, if not dismayed, about some of my
colleagues who want to get themselves wrapped around the axle
about why the NLRB and not OSHA and not some of these other
things. And I would simply like to remind them of the title of
today's hearing: legislative hearing on H.R. 511, Tribal Labor
Sovereignty Act of 2015.
Now, this bill is certainly not my idea. I am carrying, and
I love the idea. It has been around for quite a while now. But
it focuses on the NLRB. Who knows? Maybe tomorrow, Lieutenant
Governor, I will file a bill on OSHA for something else.
Mr. Keel. Could be.
Mr. Rokita. But I want to have Mr. Guest reiterate what I
believe to be two points here about the differences. First of
all, this is a bill about parity. If the tribal communities
have a government, why shouldn't it be treated just like the
other governments in these United States, whether it be
federal, state, or local level?
And the second issue has to do with this third party you
talk about, because I think that is also very important. OSHA
doesn't invite third parties into a situation and take away the
rights of an otherwise sovereign nation. The NLRB does, and, in
fact, is trying to do that. Mr. Guest, can you reiterate for
the record these two points, just so we are crystal clear:
parity and third parties.
Mr. Guest. Yes, thank you, Mr. Rokita. And I think that it
clearly demonstrates in terms of IGRA itself, the Indian Gaming
Regulatory Act, where Congress spoke. And Congress spoke about
tribal gaming as a governmental activity that Congress itself
says that gaming revenues are to be used for these limited
purposes, particularly for supporting tribal programs and
services, and not for anything else.
When we were at the 6th Circuit in the Little River Band
case, one of the judges said, well, aren't those Indian casinos
just like every other casino? Don't those Indians just stick
that money in their pocket? I mean, this is the challenge we
have in the courts today with respect to a lack of real clarity
on why it is that these are tribal governmental employees
working at a casino.
And so when we come in and we say you need to treat them
the same, you need to treat tribes the same as all other
governments, as the state and local governments, as the Federal
Government. It is difficult for others to see it because they
say, well, that is just like any other commercial enterprise,
isn't it? It is not. It is a governmental enterprise that
generates revenues because tribes don't have solid tax bases
the way state and local governments may. And so there is no
other source for revenues and why the concern with the NLRA
applying on the reservation and allowing strikes to occur,
which can cripple tribal government. That is where the
concern--
Mr. Rokita. And, in fact, not in parity with other
governments.
Mr. Guest. Right.
Mr. Rokita. Correct.
Mr. Guest. Exactly.
Mr. Rokita. Thank you, Mr. Guest. Now, I also was concerned
about some of the questions being asked--and I think it was
driven by some of Mr. Navarro's testimony--regarding crimes or
other occurrences on reservations. And I want to give Chairman
Butler and Lieutenant Governor Keel a chance to clear these
things up. So I am going to ask questions, I want both of you
to answer, okay?
Do you have, as government leaders, an interest in keeping
your government workers safe?
Mr. Butler. Absolutely.
Mr. Keel. Absolutely.
Mr. Rokita. All right. Do you, in fact, have laws regarding
this?
Mr. Butler. Absolutely.
Mr. Keel. Yes.
Mr. Rokita. Yes, you both answered yes. Do you know of any
tribal community that doesn't address this issue?
Mr. Butler. No.
Mr. Rokita. Okay, second question. Do you tolerate sexual
assault or any other kind of misconduct in any of your
enterprises?
Mr. Keel. Not at all.
Mr. Butler. No.
Mr. Rokita. You have, both have answered no to that
question. Do you have laws regarding this kind of conduct,
criminal or otherwise?
Mr. Butler. Yes.
Mr. Rokita. Regarding sexual assault or any other--
Mr. Butler. Yes.
Mr. Keel. We have special--
Mr. Rokita. On a worker, right. Do you know of any tribal
community that doesn't?
Mr. Keel. No.
Mr. Rokita. Right. Final question. Do you mistreat enrolled
members who happen to have disabilities?
Mr. Butler. Not at all. We actually have special programs
for them.
Mr. Rokita. Mr. Butler says no and has special programs for
them. Lieutenant Governor?
Mr. Keel. We have special programs for all of our people.
Mr. Rokita. Right. I think Mr. Butler answered that. And
one final question. Do you know of any tribe that mistreats
their members who have disabilities?
Mr. Butler. No.
Mr. Keel. No.
Mr. Rokita. You take care of your own.
Mr. Keel. Absolutely.
Mr. Rokita. Mr. Chairman, I yield back.
Chairman Roe. The gentleman's time has expired. I would
like to take this time again to thank each and every one of you
for taking your time in preparation and in testifying before
the Subcommittee today. I think all of you made excellent
witnesses, and I appreciate you being here. I know you spent a
lot of time and effort to get here, so thank you for doing
that.
I will now recognize my colleague, Mr. Polis, for his
closing remarks.
Mr. Polis. Well, I want to thank everyone for your
impassioned and honest testimony and answers. I truly hope that
everyone on our committee will analyze this issue objectively
and try to take the effort to understand what has been said
here. And as we consider this issue, it is very important to
keep in mind the nexus between balancing our domestic sovereign
nations' rights with the protections that are due to all
American workers regardless of whether they are white, black,
Hispanic, or Native American. Without the right to self-
governance, including additional rights that have often been
afforded through treaty, we wouldn't have the strong Native
American communities and nations that are present across our
country today.
But so, too, without the right to collectively bargain we
would not have the strong and growing economy that offers a
pathway to the middle class for so many American families. I
look forward to continuing this discussion with individuals and
experts on both sides of the issue, as we seek to reconcile
these two principles that many of us on this committee hold
dear.
And I yield back the balance of my time.
Chairman Roe. I thank the gentleman for yielding. And I,
again, thank the excellent committee we have had here and the
witnesses we have had. And I am going to just finish by saying
this: to me, is fairly clear and fairly simple. You either are
a sovereign nation or you are not. That is pretty simple. And I
don't know whether we can go to the British embassy, which is
sovereign property here, and require them to do these things. I
don't think you can.
So the National Labor Relations Act very specifically says
the NLRA does not cover all employees and employers in the
United States. For example, public sector employees--state,
local, and federal -- and employees covered by the Railway
Labor Act, airlines and railroads, agricultural laborers, and
supervisors are not covered by the Act.
Basically, what you are doing is to clarify this. That a
sovereign Native American nation also is not covered by this
Act. And we are not talking about the other things that were
brought up, all very valid things. But, you should be able to
make your own decisions on your own land.
We have a 10th Amendment in the United States Constitution,
which we have been fighting about who has the power in this
government. Whether the state does--and I am a former mayor--I
am always going to lean on the best government you have is
local government. The further it gets from you, the worse, the
least responsive, it is for you.
So, I think this is very simple, and I would urge support;
and full disclosure, I am a co-sponsor of this bill. And, once
again, I appreciate each one of you coming. And with no further
business, the Subcommittee stands adjourned.
[Additional submissions by Mr. Guest follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
[Whereupon, at 3:36 p.m., the Subcommittee was adjourned.]
[all]