[Senate Hearing 114-105]
[From the U.S. Government Publishing Office]
S. Hrg. 114-105
S. 248, THE TRIBAL LABOR SOVEREIGNTY ACT
OF 2015
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
__________
APRIL 29, 2015
__________
Printed for the use of the Committee on Indian Affairs
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COMMITTEE ON INDIAN AFFAIRS
JOHN BARRASSO, Wyoming, Chairman
JON TESTER, Montana, Vice Chairman
JOHN McCAIN, Arizona MARIA CANTWELL, Washington
LISA MURKOWSKI, Alaska TOM UDALL, New Mexico
JOHN HOEVEN, North Dakota AL FRANKEN, Minnesota
JAMES LANKFORD, Oklahoma BRIAN SCHATZ, Hawaii
STEVE DAINES, Montana HEIDI HEITKAMP, North Dakota
MIKE CRAPO, Idaho
JERRY MORAN, Kansas
T. Michael Andrews, Majority Staff Director and Chief Counsel
Anthony Walters, Minority Staff Director and Chief Counsel
C O N T E N T S
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Page
Hearing held on April 29, 2015................................... 1
Statement of Senator Barrasso.................................... 1
Statement of Senator Franken..................................... 31
Statement of Senator Moran....................................... 3
Statement of Senator Tester...................................... 2
Witnesses
Anderson, Hon. Keith B., Vice Chairman, Shakopee Mdewakanton
Sioux Community................................................ 32
Prepared statement........................................... 33
Griffin, Jr., Richard F., General Counsel, National Labor
Relations Board................................................ 4
Prepared statement........................................... 6
Guest, Richard A., Senior Staff Attorney, Native American Rights
Fund........................................................... 42
Prepared statement........................................... 45
Torres, Hon. E. Paul, Governor, Pueblo of Isleta, New Mexico;
Chairman, All Pueblo Council of Governors...................... 26
Prepared statement........................................... 28
Welch, Jr., Hon. Robert J., Chairman, Viejas Band of Kumeyaay
Indians........................................................ 9
Prepared statement........................................... 12
Appendix
Anoatubby, Hon. Bill, Governor, Chickasaw Nation and Hon. Gary
Batton, Chief, Choctaw Nation of Oklahoma, joint prepared
statement...................................................... 59
Beauty, Hon. Thomas, Chairman, Yavapai-Apache Nation, prepared
statement...................................................... 77
Chickasaw Nation, Choctaw Nation, Forest County Potawatomi
Community, Pueblo of Isleta, Little River Band of Ottawa
Indians and Puyallup Tribe of Indians, joint prepared statement 64
Letters in support of S. 248
Mazzetti, Hon. Bo, Chairman, Rincon Band of Luiseno Indians,
prepared statement............................................. 75
Response to written questions submitted by Hon. Al Franken to
Hon. Keith B. Anderson......................................... 82
Response to written questions submitted by Hon. Heidi Heitkamp
to:
Richard F. Griffin, Jr....................................... 82
Richard A. Guest............................................. 83
Romanelli, Hon. Larry, Chief, Little River Band of Ottawa
Indians, prepared statement.................................... 61
S. 248, THE TRIBAL LABOR SOVEREIGNTY ACT OF 2015
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WEDNESDAY, APRIL 29, 2015
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 2:48 p.m. in room
628, Dirksen Senate Office Building, Hon. John Barrasso,
Chairman of the Committee, presiding.
OPENING STATEMENT OF HON. JOHN BARRASSO,
U.S. SENATOR FROM WYOMING
The Chairman. Good afternoon, I call this hearing to order
and invite those who are testifying to please join us.
Today the Committee will examine S. 248, the Tribal Labor
Sovereignty Act of 2015. This bill was introduced by Senator
Moran, along with Senators Crapo, Daines, Fischer, Hoeven,
Inhofe, Lankford, Risch, Thune, and Rounds.
Tribal sovereignty is an essential key to enhancing tribal
self-determination and self-governance. Tribal sovereignty
allows Indian Tribes to govern themselves, regulate tribal
businesses, and provide essential services to tribal members.
Tribal sovereignty brings hope for a brighter future.
We are in the era of empowering tribes. This policy is
evident in Federal statutes such as the Indian Self-
Determination and Education Act of 1975 and Title V of the
Energy Policy Act of 2005, to name a few.
Congress has worked to reverse government policies that
have been detrimental to tribes. That is why I and the sponsors
of S. 248 have strong concerns about the how the National Labor
Relations Board is treating Indian Tribes across the Country.
The National Labor Relations Board decision to apply the
National Labor Relations Act to Indian Tribes has increased
costs and uncertainty, which can hinder tribal business growth.
The bill before us would amend the National Labor Relations
Act so that a tribally owned and operated enterprise or
institution would be treated like any other Federal- or State-
owned corporation.
Before we hear the witnesses' testimony on this bill, I
want to turn to Senator Tester for his opening statement.
STATEMENT OF HON. JON TESTER,
U.S. SENATOR FROM MONTANA
Senator Tester. Once again, thank you, Mr. Chairman, for
holding this hearing.
Over the past 15 years, the issues that this bill would
address have become more prevalent and have really created
uncertainty for tribes. The bill has wide support in Indian
Country, so I think it is important to have this hearing and
hear how tribes are addressing labor issues in their
communities.
Tribes have recently been tasked with understanding how the
National Labor Relations Act applies to them as recent
decisions by the National Labor Relations Board have exerted
jurisdiction over tribal enterprises on tribal lands. These
recent decisions were a departure after decades of hands-off
approach taken by the NLRB. This has added some confusion and
uncertainty for tribes. It is not conducive for proper human
resource management and running effective enterprises.
The uncertainty exists for no other governments in the
Country other than Tribal Governments. Tribes have framed this
is an issue of sovereignty and parity among governments, and I
tend to agree with that assessment. And while I am a strong
supporter of tribal sovereignty, we should acknowledge that
some folks in Washington have spent the last few years trying
to weaken the NLRB; gutting its funding, going after its
ability to update the rules of the road for labor elections and
otherwise trying to roll back two generations of protections
that will help ensure workers' decisions of whether and how to
organize fair and free from influence of employers.
I do not want anyone to confuse my support of this bill
with my support for the work of the NLRB. Throughout the 80
years of implementing the NLRA, the NLRB has made changes to
how it treats tribal enterprises and the role they play within
tribal communities and government structures. While tribal
economic development opportunities have indeed changed over the
years, tribes, as governing bodies, like State and local
governments, deserve the ability to determine their own
governmental labor policies.
Tribes, like other governments, have the responsibility of
providing essential services to their members, such as
education, healthcare, and housing. Businesses owned by the
tribes serve a critical role in this effort by raising revenue
to provide these crucial services. The uncertainty created by a
2004 San Manuel decision and subsequent decisions make it
tougher for tribes to run their enterprises and carry out this
important function.
The NLRA guarantees key rights to workers and guides labor
relations between employees and private employers. It is
critically important to both employees and employers to have
good working environments with an effective way to address
grievances, but tribes deserve the same treatment afforded to
all other governments under the NLRA. Acknowledging tribal
sovereignty and affording the same opportunity to strengthen
labor relations by developing their own labor policies that are
consistent both in their own government, economic, and cultural
realities and the larger framework of labor force protections.
I appreciate this Committee's work. I look forward to
working with my colleagues on this Committee to address any
concerns that we hear about this bill today.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Tester.
Senator Moran, would you like to make an opening statement?
STATEMENT OF HON. JERRY MORAN,
U.S. SENATOR FROM KANSAS
Senator Moran. Mr. Chairman, thank you very much for the
opportunity. I appreciate what Senator Tester just said, and I
would thank you and he for having this hearing, and I express
my appreciation to the witnesses who have traveled a distance
and have made significant effort to join us today.
I would like to reiterate something that I think needs to
be said, and that would be that despite the word labor being in
the title of this bill, in my view, the real focus of this
legislation is another word in this bill, sovereignty. Do
tribal governments have the right to make decisions that
pertain to their business on their own lands? In my view they
do, and I hope today's hearing will affirm that to be the case.
We know that there is a legislative problem. We are trying
to deal with an issue that was not addressed in 1935. That
question that arises is whether tribal governments should be
included alongside Federal, State, and local governments as
exempt from NLRA. Despite the omission of our predecessors, for
almost 70 years the National Labor Relations Board rightfully
honored tribal parity with other governments. Unfortunately, in
the last decade there was a reversal of that policy, and this
legislation, in my view, would correct that mistake.
That sovereignty is the key issue of this bill is indicated
by the broad support that this legislation has within Indian
Country. As of today, approximately 50 tribal organizations
have expressed their support for the Tribal Labor Sovereignty
Act. Whatever the differences are between tribes, it is
apparent that they are united in viewing this measure as a
defense of their integrity. Tribes are not businesses; they are
sovereign nations recognized as such under our Constitution.
As I wrote to my colleagues upon introducing this bill, it
is not the place of the Federal Government to impinge upon the
authority of sovereign tribes. Tribal governments alone,
accountable to their people, should decide labor practices for
their entities that they own on their lands.
I look forward, Mr. Chairman, to our discussion today, and
I yield back my time.
The Chairman. Thank you very much, Senator Moran.
Would any other members like to make an opening statement?
If not, we will now hear from our witnesses. There are
five: Mr. Richard Griffin, the Honorable Robert Welch, the
Honorable Paul Torres, the Honorable Keith Anderson, and Mr.
Richard Guest. I want to remind the witnesses that your full
testimony will be part of our official hearing record. Please
keep your statements to five minutes so that we may have time
for questions.
I look forward to hearing your testimony, beginning with
you, Mr. Griffin.
STATEMENT OF RICHARD F. GRIFFIN, JR., GENERAL COUNSEL, NATIONAL
LABOR RELATIONS BOARD
Mr. Griffin. Chairman Barrasso, Vice Chairman Tester, and
members of the Committee, thank you for the invitation to
discuss the application of the National Labor Relations Act to
tribal enterprises. I understand the Committee is considering
legislation addressing this issue.
As an independent agency, the National Labor Relations
Board has a well-established policy of not taking a position on
pending legislation. In addition, my office currently has
several open cases involving application of the Act to tribal
enterprises, so I will not comment on pending cases and will
instead focus my remarks today on the current state of the law.
The National Labor Relations Board is responsible for
administering the National Labor Relations Act, which ensures
the right of private sector workers to organize and bargain
collectively with their employers and to participate in
concerted activities to improve their pay and working
conditions, with or without union representation.
The Act confers on the Agency broad jurisdiction to resolve
representation questions and remedy unfair labor practices
affecting interstate commerce. It includes only a few specific
exemptions from its definition of a covered employer. Those
exclusions are the Federal Government and its corporations,
States and their political subdivisions, unions not acting as
employers, and employers covered by the Railway Labor Act.
The definition of employer does not contain an express
exemption for federally-recognized tribes or the employing
enterprises that they own or control.
In 2004, in the San Manuel Indian Bingo and Casino case, a
bipartisan board reviewed its existing jurisdictional
standards, which focused on whether tribal enterprises were
located on or off tribal lands, and decided to announce a new
standard intended to accommodate both Federal Indian policy and
Federal labor policy.
First, the Board determined that tribal enterprises meet
the statutory definition of employer and do not fit any of the
definitions exclusions. Next, the Board examined whether
Federal Indian policy nonetheless required it to decline
jurisdiction, and held that the jurisdictional question should
be determined case-by-case. It adopted a presumption from the
Supreme Court's decision in Federal Power Commission v.
Tuscarora Indian Nation that generally applicable Federal
statutes like the National Labor Relations Act applied to
Indian Tribes.
The Board then adopted three exceptions previously
developed by the Ninth Circuit in the Coeur d'Alene Tribal Farm
case to protect core tribal sovereignty, the Federal
Government's treaty obligations, and Congress's authority over
Indian affairs. The Board followed the consensus of several
Federal courts of appeals which had applied the Tuscarora-Coeur
d'Alene framework to other general workplace statutes. The
Board distinguished cases involving conflicts with States
which, unlike the Federal Government, are not superior
sovereigns to tribes or involving tribal sovereign immunity, a
doctrine which applies against private or State actors, but not
against the Federal Government and its agencies.
Finally, the Board augmented the framework with a Board-
specific discretionary inquiry. The Board stated that even
where application of the framework does not preclude
jurisdiction over a particular tribal employer, the Board will
balance the affect on labor and Indian policies before
asserting jurisdiction, focusing on whether, in operating an
enterprise, a tribe is primarily fulfilling traditionally
tribal or governmental functions that are unique to the status
as an Indian Tribe.
In such cases, the policies underlying the Nation Labor
Relations Act are less strongly implicated. However, if a tribe
is participating in the national economy through a commercial
enterprise, employing many non-Indian employees, catering
largely to non-Indians, and competing with non-Indian
businesses, the balance of conflicting considerations favors
the Board's jurisdiction because the tribe's activity affects
interstate commerce in a significant way.
Applying its new standard, the Board in San Manuel asserted
jurisdiction over an on-reservation tribal casino. It
emphasized that the casino was a typical commercial enterprise
with mostly non-Indian employees and customers. The Board noted
that the tribe had no treaty with the Federal Government and it
found that the casino's on-reservation location was
insufficient to outweigh the factors favoring jurisdiction.
At the same time, the Board declined jurisdiction in a
companion case, Yukon Kuskokwim Health Corporation, involving
jurisdiction over an off-reservation tribal hospital. The
Board, in that case, noted that 95 percent of the patients were
Native Alaskans from the immediate surrounding area and that
the clinic, as the area's primary healthcare provider, did not
compete with other hospitals covered by the National Labor
Relations Act.
The D.C. Circuit upheld the Board's assertion of
jurisdiction in San Manuel and the Board has continued to apply
the framework adopted in that case.
On a number of occasions since the Board issued San Manuel,
its general counsel has, upon request, consulted with Indian
Tribes potentially subject to the Board's jurisdiction,
consistent with the President's memorandum on tribal
consultation. As an example, in 2014, I consulted with the
Little River Band of Ottawa Indian's tribal government
respecting an unfair labor charge against that tribe.
In conclusion, as I hope this summary makes clear, the
Board's regulation in this area, as in so many others, is the
result of applying the general language in the statute to the
changing circumstances of industrial life. At all times the
Board seeks to give effect to the purposes and policies that
Congress has embedded in the National Labor Relations Act and
to take account of the decisions of the courts.
In the area of jurisdiction over tribal enterprises, as in
all other areas of its administration of the Act, the Board
recognizes its responsibility to enforce the statute in
accordance with the provisions and amendments that Congress
chooses to enact. For that reason, the Agency takes no position
on any pending legislation that may alter the Act or affect the
Board's future jurisdiction over tribal enterprises.
Thank you for this opportunity to testify, and I welcome
any questions.
[The prepared statement of Mr. Griffin follows:]
Prepared Statement of Richard F. Griffin, Jr., General Counsel,
National Labor Relations Board
Chairman Barrasso, Vice-Chairman Tester, and Members of the
Committee, thank you for the invitation to testify today. I appreciate
the opportunity to appear before you to discuss the application of the
National Labor Relations Act (NLRA) to tribal enterprises. I understand
the Committee is considering legislation addressing this issue. As an
independent agency, the National Labor Relations Board has a well-
established policy of not taking a position on pending legislation. In
addition, my Office currently has open cases involving the application
of the NLRA to tribal enterprises. Therefore, my remarks today will
address the current state of the law in this area; however, I will not
be able to comment on pending cases.
The National Labor Relations Board is responsible for administering
the NLRA, which ensures the right of private-sector workers to organize
and bargain collectively with their employers and to participate in
concerted activities to improve their pay and working conditions, with
or without union representation. As General Counsel, my Office serves
as the investigative and prosecutorial branch of the Agency. In that
capacity, we investigate alleged violations of the NLRA, issue
complaint where merit has been determined, and litigate matters before
Administrative Law Judges, the Board, and in the federal courts.
Consistent with its congressionally mandated mission to ensure that
workplace disputes are resolved efficiently and effectively, the NLRA
confers on the Agency broad jurisdiction to resolve representation
questions and remedy unfair labor practices affecting interstate
commerce. The NLRA includes only a few specified exemptions from its
definition of a covered ``employer''--the Federal Government and its
corporations, states and their political subdivisions, unions not
acting as employers, and employers covered by the Railway Labor Act.
\1\
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\1\ Section 2(2) of the NLRA, 29 U.S.C. 152(2) defines
``employer'' and sets forth the exemptions. The Railway Labor Act is
codified at 45 U.S.C. 151, et seq.
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The NLRA's definition of ``employer'' contains no express exemption
for federally recognized tribes or the employing enterprises that they
own or control. The Board's determination of whether and in what
circumstances it should assert jurisdiction over tribal enterprises has
evolved over a number of years.
I. The National Labor Relations Board's Early Approach to Jurisdiction
Over Tribal Enterprises and Tribal Lands
The question of whether the Board should assert jurisdiction over
labor disputes on tribal lands first arose more than 60 years ago in
two cases involving non-Indian companies that were operating on tribal
reservations under leases with Indian tribes. In both Simplot
Fertilizer Co. and Texas-Zinc, \2\ the Board found that there was no
valid basis for reading the NLRA to exclude from its coverage Indians
or Indian reservations as a class. The Board noted that Congress vested
the Board with very broad jurisdiction and that courts had applied
other general federal statutes to Indians, and on Indian lands. \3\
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\2\ Simplot Fertilizer Co., 100 NLRB 771, 772-73 (1952); Texas-
Zinc, 126 NLRB 603, 603-04, 607 (1960), enforced sub nom. Navajo Tribe
v. NLRB, 288 F.2d 162 (D.C. Cir. 1961). See also Devils Lake Sioux Mfg.
Corp., 243 NLRB 163, 163-64 (1979) (asserting jurisdiction over on-
reservation corporation partially owned by tribe but partially owned
and ``completely managed and operated'' by non-Indian company).
\3\ Texas-Zinc, 604, 606-07; Simplot, 100 NLRB at 773-74 & n.7.
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The Board first considered whether to assert jurisdiction over
tribal enterprises located on tribal lands in a 1976 case called Fort
Apache Timber Co. The Board declined to assert jurisdiction. It held
that sovereign tribal governments, including a tribe's ``self-directed
enterprise on the reservation,'' were ``implicitly exempt'' from the
NLRA's definition of ``employer.'' \4\
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\4\ 226 NLRB 503, 504-06 (1976). Accord S. Indian Health Council,
290 NLRB 436, 436-37 (1988).
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In a 1992 case, Sac & Fox Industries, \5\ the Board was confronted
with the question of whether to assert jurisdiction over a tribally
owned and controlled factory that, unlike the enterprise at issue in
Fort Apache Timber Co., was located off the reservation. The Board
asserted jurisdiction.
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\5\ 307 NLRB 241, 243-45 (1992).
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The Board reaffirmed its holding that off-reservation tribal
enterprises were not exempt from the statutory definition of employer
in a 1999 case, Yukon Kuskokwim Health Corp. There, the Board asserted
jurisdiction over an off-reservation hospital run by a tribal
consortium and serving tribal patients. \6\
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\6\ 328 NLRB No.86 (1999), remanded, 234 F.3d 714 (D.C. Cir. 2000).
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II. Current law: the Board's San Manuel Jurisdictional Standard
In 2004, the Board decided San Manuel Indian Bingo & Casino. A
bipartisan Board decision, noted the ``increasingly important role''
that tribal commercial enterprises were, by then, playing in the
national economy. The Board found that tribally owned enterprises were
``significant employers of non-Indians and serious competitors to non-
Indian owned businesses.'' The Board reviewed its existing
jurisdictional standards, which focused on whether tribal enterprises
were located on or off tribal lands. The Board found that its previous
approach was ``both underinclusive and overinclusive'' and based on
``faulty'' premises. \7\ Reviewing governing Indian law precedent and
exercising its congressionally designated responsibility to interpret
the NLRA, the Board announced a new, comprehensive standard intended to
accommodate both federal Indian policy and federal labor policy.
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\7\ 341 NLRB 1055, 1056-57 (Chairman Battista and Members Liebman
and Walsh; Member Schaumber, dissenting), enforced, 475 F.3d 1306 (D.C.
Cir. 2007).
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First, the Board determined that tribal enterprises meet the
statutory definition of ``employer''--a term which Congress
intentionally wrote to ``vest in the Board the fullest jurisdictional
breadth constitutionally permissible under the Commerce Clause.'' \8\
The Board then held that tribal enterprises do not fit any of the
enumerated exclusions to the statutory definition of ``employer,''
noting that those exclusions are to be interpreted narrowly. \9\ The
Board noted, in particular, that nothing in the text of the NLRA
supports a distinction in the definition of employer based on
geographic location (such as whether a facility is on or off tribal
lands). \10\
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\8\ Id. at 1057 (quoting NLRB v. Reliance Fuel Oil Corp., 371 U.S.
224, 226 (1963)).
\9\ Id. at 1057-58; accord Holly Farms Corp. v. NLRB, 51 U.S. 392,
399 (1996).
\10\ Id. at 1059.
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Having determined that tribal enterprises are statutory employers,
the Board considered whether federal Indian policy nonetheless required
it to decline jurisdiction over such employers. The Board held that the
jurisdictional question should be determined on a case-by-case basis,
and it announced the standard it would apply going forward. The Board
stated that it was adopting a presumption, from the Supreme Court's
decision in FPC v. Tuscarora Indian Nation, that generally applicable
federal statutes like the NLRA apply to Indian tribes. \11\
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\11\ 341 NLRB at 1059-60 (discussing Tuscarora, 362 U.S. 99
(1960)).
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The Board then adopted three exemptions to that presumption. Those
exemptions had previously been developed by the Ninth Circuit in
Donovan v. Coeur d'Alene Tribal Farm, \12\ to protect three distinct
interests: core tribal sovereignty, the Federal Government's treaty
obligations, and Congress' authority over Indian affairs. \13\
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\12\ 751 F.2d 1113 (9th Cir. 1985).
\13\ The same Tuscarora/Coeur d'Alene framework had informed the
Board's earlier Sac & Fox decision. 307 NLRB at 243-45 (citing
Tuscarora and Coeur d'Alene).
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The Board acknowledged arguments that the Tuscarora presumption is
inconsistent with other Indian law cases, or otherwise inapplicable.
But the Board followed the consensus of several federal courts of
appeals which had accepted the Tuscarora/Coeur d'Alene framework in
some measure. \14\ Those courts had applied the Tuscarora/Coeur d'Alene
framework to other general workplace statutes including the ADA, OSHA,
and ERISA. \15\
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\14\ See San Manuel, 341 NLRB at 1059-60 & nn.16 & 17.
\15\ See, e.g., Fla. Paraplegic, Ass'n v. Miccosukee Tribe of
Indians of Fla., 166 F.3d 1126 (11th Cir. 1999) (ADA); Reich v.
Mashantucket Sand & Gravel, 95 F.3d 174 (2d Cir. 1996) (OSHA); Smart v.
State Farm Ins., 868 F.2d 929 (7th Cir. 1989) (ERISA). See also NLRB v.
Pueblo of San Juan, 276 F.3d 1186, 1199 & n.11 (10th Cir. 2002) (en
banc) (acknowledging Tuscarora may apply to tribes acting in
proprietary capacity; collecting cases); EEOC v. Fond du Lac Heavy
Equip. & Constr. Co., 986 F.2d 246, 248 (8th Cir. 1993) (acknowledging
Tuscarora presumption in ADEA case, but finding exception for
intramural tribal dispute).
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The Board discussed the cases typically cited in opposition to the
Tuscarora/Coeur d'Alene framework. The Board found that those cases
either fit within that framework or did not involve application of
generally applicable federal statutes like the NLRA. Many of the cases
resolved conflicts with states which, unlike the Federal Government,
are not superior sovereigns to tribes. Others involved tribal sovereign
immunity, a doctrine which applies against private or state actors, but
not against the Federal Government and its agencies. \16\
---------------------------------------------------------------------------
\16\ See id. at 1061-62 & n.20, 1063 n.22; see also San Manuel, 475
F.3d at 1312.
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Under the Tuscarora/Coeur d'Alene framework, the Board, has
expressly recognized that federal Indian law precludes jurisdiction
that would ``touch[] exclusive rights of self-government in purely
intramural matters.'' \17\ But the Board has also recognized that the
courts of appeals have limited that ``self-government'' exception to
purely intramural tribal matters. \18\ The Board found that the
operation of a casino is neither an exercise of self-governance nor a
traditional governmental function. \19\
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\17\ 341 NLRB at 1059 (quoting Coeur d'Alene).
\18\ Id. at 1061 & n.19, 1063 (citing Fla. Paraplegic and
Mashantucket, supra; quoting Coeur d'Alene, supra).
\19\ Id. at 1063-64 & n.24.
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In addition, the Board considered the argument that the Indian
Gaming Regulatory Act (or IGRA) precluded Board jurisdiction. The Board
rejected that argument, noting that IGRA regulates gaming while the
NLRA regulates labor relations, a subject IGRA does not address. \20\
---------------------------------------------------------------------------
\20\ Id. at 1064 (discussing IGRA, 25 U.S.C. 2701, et seq.).
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The Board acknowledged that it could not assert jurisdiction if
doing so abrogated Indian treaty rights. The Board also accepted the
Coeur d'Alene exception to jurisdiction where there is ```proof' in the
statutory language or history that Congress did not intend the law to
apply to Indian tribes.'' In San Manuel, the Board found no such proof
in the NLRA. \21\
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\21\ Id. at 1059, 1063.
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Finally, the Board in San Manuel augmented the Tuscarora/Coeur
d'Alene framework with a Board-specific discretionary inquiry. The
Board stated that, even where application of the Tuscarora/Coeur
d'Alene framework does not preclude jurisdiction over a particular
tribal employer, the Board will balance the effects on labor and Indian
policies before asserting jurisdiction. That final inquiry balances
``the Board's interest in effectuating the policies of the NLRA with
its desire to accommodate the unique status of Indians in our society
and legal culture.'' \22\ The Board's focus is on whether, in operating
an enterprise, a tribe is ``primarily . . . fulfilling traditionally
tribal or governmental functions that are unique to their status as
Indian tribes.'' In such cases, the policies underlying the NLRA are
less strongly implicated.
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\22\ San Manuel, 341 NLRB at 1062.
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The matter is different if a tribe is reaching out to participate
in the national economy through a commercial enterprise employing many
non-Indian employees, catering largely to non-Indians, and competing
with non-Indian businesses. In that different circumstance, the balance
of conflicting considerations favors Board jurisdiction, because the
tribe's activity ``affect[s] interstate commerce in a significant
way.'' \23\
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\23\ Id. at 1062-63.
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Applying its new standard, the Board in San Manuel asserted
jurisdiction over an on-reservation tribal casino. It emphasized that
the casino was a typical commercial enterprise with mostly non-Indian
employees and customers. The Board noted that the tribe had no treaty
with the Federal Government, and it found that the casino's on-
reservation location was insufficient to outweigh the factors favoring
jurisdiction.
At the same time, the Board declined jurisdiction in a companion
case, Yukon Kuskokwim Health Corp., on remand from the D.C. circuit. In
that case, the Board found that the Coeur d'Alene factors did not
preclude jurisdiction, but it declined jurisdiction over an off-
reservation tribal hospital for prudential reasons. The Board also
noted that 95 percent of the clinic's patients were Native Alaskans
from the immediate surrounding area and that the clinic, as the primary
health care provider in the area, did not compete with other hospitals
covered by the NLRA. The Board also cited the hospital's function,
``fulfilling the Federal Government's trust responsibility to provide
free health care to Indians.'' \24\
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\24\ Yukon Kuskokwim, 341 NLRB 1075, 1075-77 (2004).
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The D.C. Circuit upheld the Board's assertion of jurisdiction in
San Manuel. In doing so, it declined to adopt the Board's standard or
the Tuscarora/Coeur d'Alene framework, but it also rejected an
interpretation of tribal sovereignty as ``absolute autonomy, permitting
a tribe to operate in a commercial capacity without legal constraint.''
\25\
---------------------------------------------------------------------------
\25\ San Manuel, 475 F.3d at 1314-15.
---------------------------------------------------------------------------
Since San Manuel, the Board has asserted jurisdiction over three
materially similar tribal casinos. In Little River Band of Ottawa
Indians Tribal Government, a case arising in Michigan, the Board
further explained its decision to adopt the Tuscarora/Coeur d'Alene
framework and responded to certain Tenth Circuit decisions questioning
the applicability of that framework in some, but not all,
circumstances. \26\ In Soaring Eagle Casino & Resort, also a Michigan
case, the Board reiterated that a tribe's operation of a casino does
not fit within the Coeur d'Alene self-government exception. The Board
also addressed for the first time the treaty exception and clarified
that to preclude jurisdiction a treaty must provide some right beyond
reservation of the sovereign powers retained by all tribes. \27\
Finally, in Casino Pauma, a California case issued last month, the
Board addressed a Supreme Court decision issued last term--Michigan v.
Bay Mills Indian Community--where the Court held that sovereign
immunity protected an Indian tribe from Michigan's lawsuit alleging
that the tribe's off-reservation casino was unlawful. The Board
explained that Bay Mills reaffirmed cases that the Board had discussed
in San Manuel and did not involve application of a generally applicable
federal law. \28\
---------------------------------------------------------------------------
\26\ 361 NLRB No.45 (2014), adopting and incorporating 359 NLRB No.
84, slip op. 4 & n.9 (2013).
\27\ 361 NLRB No.73 (2014), adopting and incorporating 359 NLRB
No.92, slip op. 7-8 (2013).
\28\ 362 NLRB No.52, slip op. 1 n.3, 4 & n.12 (2015) (discussing
Bay Mills, 134 S. Ct. 2024 (2014)).
---------------------------------------------------------------------------
III. Pending Litigation in the Courts of Appeals and Before the Board
To date, the D.C. Circuit is the only court of appeals to have
addressed the San Manuel standard in a published decision. Two Board
decisions applying San Manuel are currently the subject of enforcement
litigation before the Sixth Circuit. Little River Band has been
submitted to a panel for decision (6th Cir. Case No. 14-2239), and
Soaring Eagle will be argued on April 29 (6th Cir. Case Nos. 14-2405,
14-2558).
IV. Consultation with Indian Tribes
On a number of occasions since the Board issued its governing San
Manuel jurisdictional standard, its General Counsel has, upon request,
consulted with Indian tribes potentially subject to the Board's
jurisdiction, consistent with the President's Memorandum on Tribal
Consultation. \29\ Most recently, in 2014, I consulted with the Little
River Band of Ottawa Indians Tribal Government, and the Tribe's
counsel, respecting an unfair-labor-practice charge against the Tribe
filed before the Agency. Prior General Counsels have consulted with
other tribes, including the Saginaw Chippewa Indian Tribe of Michigan
in 2007, and the Mashantucket Pequot Tribal Nation in 2008.
---------------------------------------------------------------------------
\29\ 74 Fed. Reg. 57881 (Nov. 5, 2009).
---------------------------------------------------------------------------
V. Conclusion
As I hope I have made clear in this brief summary of the history of
the Board's regulation of tribal enterprises over the years, the
Board's regulation in this area, as in so many others, is the result of
its efforts to apply the general language in the statute to the
changing circumstances of industrial life. At all times, the Board has
endeavored to give effect to the purposes and policies that Congress
has embedded in the National Labor Relations Act and to take account of
the decisions of the courts. In the area of jurisdiction over tribal
enterprises, as in all other areas of its administration of the NLRA,
the Board recognizes its responsibility to enforce the statute in
accordance with the provisions and the amendments that Congress chooses
to enact. For that reason, as I stated at the outset, the Agency takes
no position on any proposed legislation that may alter the NLRA or
affect the Board's future jurisdiction over tribal enterprises.
The Chairman. Thank you, Mr. Griffin. I am sure there will
be questions after others get a chance.
Mr. Welch, could I call on you, please?
STATEMENT OF HON. ROBERT J. WELCH, JR., CHAIRMAN, VIEJAS BAND
OF KUMEYAAY INDIANS
Mr. Welch. Good afternoon. I am Robert Welch, Jr., Chairman
for the Viejas Band of Kumeyaay Indians. Thank you for allowing
me to testify today regarding S. 248 and its critical
importance to tribal sovereignty.
Viejas proudly owns and operates the Viejas Casino and
Resort located in Southern California, which is the primary
source of revenue to fund essential tribal government services
and programs such as education, health, housing, public safety.
Viejas Casino and Resort provides over 1,700 jobs and annually
contributes millions of dollars to the local economy.
Tribal government gaming has made self-determination and
economic self-sufficiency a reality. S. 248 is about respecting
the sovereignty of tribal governments and affirming that they
possess the same status as Federal and State governments with
respect to labor relations on sovereign lands. S. 248 would
reverse the NLRB's drastic shift in policy under the 2004 San
Manuel decision when it ignored 30 years of precedent to rule
for the first time that the NLRA applied to tribal governments.
Finally, S. 248 would set the record straight once and for
all regarding Congress's intent as to the exemption of tribal
governments from the NLRA. If exemption from the NLRA is
appropriate for State lotteries, it should be for tribal gaming
too.
Opponents of S. 248 likely will characterize the measure as
anti-union. They will argue that the NLRA is essential to
protect the rights of employees. Viejas serves as a striking
example why neither of these propositions is true. In August
1998, long before anyone, including the NLRB, believed the NLRA
should be applied to tribal governments, Viejas entered into
voluntary election agreement with the Communication Workers of
America for the purpose of labor organizing.
In January 1999, following a secret ballot election, CWA
was certified as a bargaining representative for approximately
30 percent of the Viejas Casino and Resort workforce. Shortly
thereafter, Viejas and CWA commenced collective bargaining, and
in October 1999 ratified the first-ever collective bargaining
agreement between a tribal government and a labor organization
in California.
Every stage of the process, from organizing to contract
ratification, reflected a decision made by Viejas in the
exercise of its sovereignty. None of the procedures were
compelled or forced upon Viejas, nor did they involve the NLRA
or the NLRB.
In 1999, as further exercise of sovereignty, Viejas adopted
a tribal labor relations ordinance in conjunction with its
compact negotiations with California. A copy of the TLRO is
included as an exhibit in my written submission.
The TLRO, like similar voluntary adopted State laws
governing labor relations, is similar to the NLRA in that it
includes access, election, unfair labor practices, and dispute
resolution provisions. It differs, however, in matters that are
unique to tribal government gaming, including recognition of an
Indian hiring preference, the exclusion of certain employee
classifications from organization, the ability to require a
labor organization to secure a gaming license, and the
resolution of labor disputes through a binding arbitration
before an independent tribal labor panel rather than through
NLRB proceedings.
The TLRO has been adopted by over 70 tribal governments in
California as an exercise in tribal sovereignty not because
they are required to do so by some Federal or State law; it has
worked for over 15 years.
Viejas has recently faced a series of conflicts between the
TLRO and the NLRA. Last year, an employee within the bargaining
unit filed a petition before the NLRB to decertify the CWA as
the bargaining representative. Relying on the San Manuel
decision, the NLRB asserted jurisdiction over the
decertification election. Viejas had to either accept NLRB
jurisdiction or endure expensive and protracted litigation
fighting over whether the TLRO or the NLRA election procedure
controlled.
The Viejas Band reluctantly stipulated to the NLRB election
process and a new union, United Food and Commercial Workers,
was elected as a new bargaining representative. Shortly
thereafter, UFCW and Viejas commenced collective bargaining,
which immediately triggered conflict over whether the TLRO or
the NLRA controlled negotiations.
One example of the conflict involved requirement under
Viejas gaming commission regulations and the TLRO for UFCW to
obtain a gaming license as CWA had done for the past 14 years.
UFC objected to the requirement and filed an unfair labor
practice charge with the NLRB, claiming that it was being
denied access. Fortunately, UFCW ultimately agreed to licensure
in order to conclude a collective bargaining agreement.
But the recently ratified agreement remains silent as to
whether the TLRO or the NLRA governs. This has created an
environment ripe for ongoing dispute, which the passage of S.
248 could avoid.
In conclusion, S. 248 is about protecting tribal
sovereignty. Viejas and other tribes have proven that they can
develop laws that protect the rights of employees while also
protecting essential tribal government gaming operations.
Viejas' adoption of the TLRO should be respected. The NLRA, the
NLRB should have no application or role in labor relations at
Viejas Casino & Resort. Viejas respectfully requests that
Congress enact S. 248 and reaffirm that tribal governments
possess the same status as Federal and State governments. The
NLRB and the courts should not decide what Congress intended.
Thank you for listening to my testimony today, and I stand
ready to answer any questions you may have.
[The prepared statement of Mr. Welch follows:]
Prepared Statement of Hon. Robert J. Welch, Jr., Chairman, Viejas Band
of Kumeyaay Indians
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
The Chairman. Thank you very much, Mr. Welch.
Mr. Torres.
STATEMENT OF HON. E. PAUL TORRES, GOVERNOR, PUEBLO OF ISLETA,
NEW MEXICO; CHAIRMAN, ALL PUEBLO COUNCIL OF GOVERNORS
Mr. Torres. Good afternoon. My name is Paul Torres. I am
the Governor of the Pueblo of Isleta, New Mexico. I am also the
Chairman of the All Pueblo Council of Governors, which
represents 19 Pueblos in New Mexico and one in Texas. Thank you
for the opportunity to testify today.
All the pueblos strongly support this bill. This bill is
very important to tribes. It is essential to protect our
responsibilities as sovereign governments. I would like to
start by telling you about my Pueblo. Then I would like to tell
you about our experience with the NLRB.
The Pueblo of Isleta is governed by an elected tribal
council and governor. We do all the things that all governments
must do: we hire police to protect public safety, we operate
courts, we run a health center, we have many programs to care
for and educate our children. We work so that our community has
safe roads, clean water, and affordable housing.
Like other governments, we have laws that define the rights
and responsibilities of our employees. Our laws include
procedures so that if an employee feels he has not been treated
fairly, he can challenge the action through an appeal process.
Our laws also recognize the rights of employees to organize
unions. But to protect our ability to provide important
government services, the law does not allow employees to
strike. Instead, it has procedures so that any labor dispute
can be resolved by an independent board with a right to appeal
to the tribal court.
We are making progress in addressing the needs of our
community. We owe much of our success to the commitment that
Congress has made to tribal self-determination and we rely
heavily on Indian gaming to do this. Our casino is owned and
operated by the Pueblo government. We regulate and manage our
own casino consistent with the Indian Gaming Regulatory Act.
When Congress enacted the IGRA, it recognized that tribal
economic development was a key to strengthening tribal
governments. Congress made that connection clear by requiring
that tribes use gaming revenues to fund tribal government
programs and services, and that is exactly what we do.
All of the net revenues from our casino are used to provide
government services. In fact, 60 percent of the money that we
spend to run the Pueblo government is paid for with casino
revenues. This year, the Pueblo will take over management of
our elementary school from the BIE and we will use casino
revenues to help run the school. In addition, on May the 30th,
we will open a new assisted living facility and new elder
center. None of this would be possible without our gaming
revenues.
The Pueblo is moving forward as Congress intended under the
self-determination policy, but the NLRB is ignoring that
policy. Instead, the Board treats Indian Tribes like private
businesses.
Now that is happening to us. A few months ago, a former
employee of our casino submitted a grievance to our gaming
agency and also to the Board. The Board then asserted
jurisdiction over the Pueblo. Just last week, the Board served
us with a subpoena that shows how it views tribes. For example,
the Board demands that we produce documents that prove that the
Pueblo is a sovereign, even though the United States has always
recognized us as sovereign. The Board demands that we produce
all records that prove how we spend every dollar of our gaming
revenues, even though our funds are audited every year and
those audits are submitted to the NIGC. None of that matters to
the Board. The Board still demands that we prove to the Board's
satisfaction that we are using gaming revenues for purposes
that the Board believes are governmental.
The Board's attack on tribes is wrong. When Congress
enacted the NLRA, Congress said that this law does not apply to
governments. Tribes are governments. And Congress never said
the Board could treat tribes differently from every other
government, but that is what the Board is doing. The Board's
attack on tribes is also wrong because it does not respect
Congress's self-determination policy. Even though we have laws
to address employee grievances, the Board says that our laws
have no role in resolving the employee's claim.
Finally, the Board is wrong because it does not respect the
careful balance that our laws observe. We recognize the right
of employees to organize, but not to strike. A strike would cut
off the funds that we need to run our government. We cannot be
put in a position where, as a result of a strike, we must
reduce police patrols or close schools or suspend care to our
elders.
This bill would solve the problem. Litigation is not the
answer. Litigation is expensive; it drains resources needed to
pay for government services. And the Board is doing the same
thing to tribes across the Country. The Board won't stop
attacking tribes unless Congress acts. On behalf of the Pueblo
of Isleta and the 19 other Pueblos, I respectfully urge the
members of the Committee to protect tribal self-government by
supporting this bill.
Thank you again for this opportunity, and I will be happy
to answer any questions.
[The prepared statement of Mr. Torres follows:]
Prepared Statement of Hon. E. Paul Torres, Governor, Pueblo of Isleta,
New Mexico; Chairman, All Pueblo Council of Governors
Chairman Barrasso, Vice Chairman Tester, Senator Udall and
honorable members of the Committee, my name is Paul Torres, and I am
the Governor of the Pueblo of Isleta. I am also here today in my
capacity as Chairman of the All Pueblo Council of Governors, which is
comprised of the nineteen Pueblos of New Mexico--the Pueblos of Acoma,
Cochiti, Isleta, Jemez, Laguna, Nambe, Ohkay Owingeh, Picuris,
Pojoaque, San Felipe, San Ildefonso, Sandia, Santa Ana, Santa Clara,
Santo Domingo, Taos, Tesuque, Zia and Zuni--and Ysleta del Sur Pueblo
of Texas. On behalf of the Pueblo of Isleta and the All Pueblo Council
of Governors, I want to thank this Committee for holding this hearing
on S. 248 and for the invitation to testify.
All of the Pueblos are federally recognized Indian tribes who have
lived in our present day location since time immemorial. In our long
history, the United States is the third sovereign to recognize us--
Spain and then Mexico were the first two--and we governed this area
long before even those sovereigns arrived. One aspect of sovereignty is
working with other governments, and that is what I want to talk about
today.
All the Pueblos support S. 248. This bill is essential to restore
the dignity and equality of Indian tribes as sovereigns, which the
National Labor Relations Board (Board or NLRB) is seeking to deny us.
The Board treats every sovereign, all the way down to local governments
and political subdivisions of the state, as exempt from the National
Labor Relations Act (NLRA) except for one--Indian tribes. It does so
even though Congress made clear, when the NLRA was enacted, that the
Act does not apply to sovereign entities. The NLRA does not mention
Indian tribes and for a long time the Board recognized that the Act
does not apply to Tribes. Now it wants that power--but it did not ask
Congress for it. Nor did it ask the Tribes for their views. Instead,
the Board made up its own rules about how to treat Indian tribes--to
the Board we are private businesses, unless we prove to their
satisfaction that we are sovereign. And they are currently seeking to
impose the NLRA against Indian tribes throughout the Nation, in
California, Michigan, Minnesota, Oklahoma and New Mexico. We need your
help to stop the Board from violating our sovereignty and ignoring the
will of Congress. S. 248 would fix this problem by clarifying that
Congress never intended the NLRA to apply to sovereigns, that Indian
tribes are sovereigns, and therefore the Act does not apply to them.
Let me start by telling what the Pueblo is doing as a sovereign,
and how we are doing it. And then let me describe what the Board is
doing to us, and why we support the enactment of S.248.
The Pueblo of Isleta's Governmental Programs and Services
The Pueblo of Isleta is governed by an elected Tribal Council and
Governor, pursuant to a tribal constitution adopted under the Indian
Reorganization Act and approved by the Secretary of the Interior. We
live on a reservation that is a very small piece of our aboriginal
territory, and we are responsible for governing that reservation. This
includes providing essential services to 3,400 tribal members as well
as other residents and visitors to the Pueblo. We meet the needs of our
community by protecting public safety, enforcing the law, operating a
court system, offering medical, dental and other wellness services, and
providing social services in areas that include counseling, substance
abuse treatment, child protection, and foster care. In addition, we
have: an Education Department, which operates a Head Start program for
our youth and a scholarship program; Public Works, Natural Resources
and Realty Departments that maintain safe roads and buildings, keep our
irrigation systems running, provide clean water and proper waste
disposal, manage our grazing and farming lands, and protect our natural
resources; and a Housing Authority which provides safe and affordable
housing for our members.
As with all governments, we carry out all of these duties through
our employees. And we have enacted laws and policies to define their
rights and responsibilities. We also have adopted grievance procedures
under which an employee who is disciplined or terminated may challenge
such action, appeal any adverse decision, and have it reviewed. We also
work to prevent problems of drugs in the workplace by requiring drug
testing of employees under a program that follows the requirements of
the federal Drug Free Workplace Act, which we adhere to as a condition
of our receipt of federal funds, and which also covers Pueblo employees
who work in non-federally funded programs where the nature of the
employee's work warrants drug testing.
We also regulate labor relations on the Reservation. The Pueblo's
Labor and Employment Relations Ordinance was adopted by the Pueblo in
July 2010 and approved by the Secretary of the Interior in December
2010. The Ordinance provides a minimum wage, overtime compensation, and
addresses other matters such as family and medical leave. It also
contains provisions that recognize the rights of employees to organize
unions and pursue collective bargaining agreements. The Ordinance
applies to all employers on the Reservation, including the Pueblo
itself. The Ordinance also balances the interest of employees in
organizing, with the Pueblo's duty to provide essential governmental
services to protect and serve our community, by not allowing employees
or labor organizations to strike. In this important area, the Ordinance
establishes alternative means by which labor disputes and alleged
unfair labor practices can be heard and resolved--which is done through
the Pueblo Labor and Employment Relations Board with a right to appeal
to the Pueblo of Isleta Tribal Appellate Court.
How are we able to do all this? We owe much of our success to
Congress' commitment to the policy of self-determination, which has
strengthened tribal self-government and diminished federal paternalism.
We also rely heavily on Indian gaming, which we conduct under the
Indian Gaming Regulatory Act (IGRA). In enacting IGRA, Congress
recognized the fundamental connection between strengthening tribal
governments and promoting tribal economic development. IGRA makes that
connection clear by requiring that we use our net gaming revenues to
fund tribal government programs and services and other tribal economic
development. And we do just that: the Pueblo of Isleta operates its
casino and uses gaming revenues to strengthen the tribal government and
provide programs and services essential to the welfare of our
community.
Our gaming facility, the Isleta Resort & Casino, along with a small
satellite facility known as Palace West, is wholly owned and operated
by the Pueblo. Our tribal government oversees, regulates, operates, and
manages all aspects of our gaming enterprise. We do this in the
exercise of our inherent sovereign authority and in accord with IGRA,
the regulations promulgated by the National Indian Gaming Commission
(NIGC), and our Gaming Compact with New Mexico. Further, as required by
IGRA and the Compact, we comprehensively regulate our gaming
operations, in accordance with comprehensive regulations adopted by our
Tribal Council and approved by the NIGC. The Pueblo of Isleta Gaming
Regulatory Agency is an independent regulatory agency responsible for
overseeing and regulating the Pueblo's gaming enterprise. Its many
responsibilities include licensing gaming employees and ensuring that
our employees comply with the Pueblo's gaming laws, IGRA and the Gaming
Compact. The Pueblo's laws also implement requirements of the NIGC's
regulations and impose internal controls that effectively set a number
of work rules for employees.
The net revenues earned by the Isleta Resort & Casino fund the
Pueblo's governmental operations and programs. As IGRA requires, all
net revenues from the gaming facility are used to provide essential
governmental services. In fact, more than half of the Pueblo's total
governmental expenditures for law enforcement, public safety, tribal
courts, education, social services, natural resource management, roads
and other infrastructure are directly funded by net revenues earned by
our Isleta Resort & Casino enterprise.
We also continue to work on the backlog of unmet needs that we
inherited from the BIA. This year, the Pueblo will take over the
operation and management of the Pueblo of Isleta elementary school. And
because federal funds are not sufficient, the Pueblo will subsidize the
school's operations with gaming revenues. Our gaming revenues also
allow us to care for our elders needs in areas not supported by federal
programs. On May 30 we will open an assisted living facility that will
serve 20 elderly residents and a new elder center that will provide
meals, recreation, counseling and related community services to many
other elders, including those who are home-bound and require help with
daily living needs. None of this would be possible without our gaming
revenues. And this is precisely how the self-determination policy, as
developed by Congress, is designed to work.
How the NLRB Deals With Tribes
The Board ignores the Self-Determination policy, makes up on an ad
hoc basis when it will treat tribes as sovereigns, requires that tribes
prove they are sovereigns under those rules, and imposes the NLRA on
any activity that it does not deem to be sufficiently sovereign.
This is how the Board has dealt with the Pueblo of Isleta. A few
months ago, a former employee of the Isleta casino, after having filed
complaints with the Pueblo of Isleta Gaming Regulatory Agency, also
submitted a grievance to the NLRB. Her grievance does not allege that
she sought to engage in any activity that is subject to the protection
of the National Labor Relations Act (even if it did apply)--but that
has not stopped the Board from using that grievance to try to force the
Pueblo to operate under the NLRA. We have our own employee relations
laws, which allow employees to organize collectively and which
establish procedures for hearing and resolving employee grievances. But
the Board will not allow those laws to govern our activities. And
although the federal law in our Circuit is clear that the National
Labor Relations Act does not apply to tribes \1\--the NLRB plows
forward, undeterred. \2\
---------------------------------------------------------------------------
\1\ See Dobbs v. Anthem Blue Cross & Blue Shield, 600 F.3d 1275,
1283-84 (10th Cir. 2010) (``federal regulatory schemes do not apply to
tribal governments exercising their sovereign authority absent express
congressional authorization''); NLRB v. Pueblo of San Juan, 276 F.3d
1186, 1196 (10th Cir. 2002) (en banc) (rejecting argument that NLRA
preempted tribal sovereign authority to enact a right to work ordinance
because legislative ``[s]ilence is not sufficient to establish
congressional intent to strip Indian tribes of their retained inherent
authority to govern their own territory.''); Chickasaw Nation v. NLRB,
No. CIV-11-506-W (W.D. Okla. Jul. 11, 2011) (order granting preliminary
injunction against the NLRB from proceeding with a hearing on its
complaint against the Chickasaw Nation and its gaming enterprise).
\2\ The Pueblo raised all of these issues in correspondence, and
later in a motion to dismiss the NLRB proceeding, without effect.
---------------------------------------------------------------------------
The NLRB responded to this individual complaint by initiating a
broad-ranging investigation under which it is asserting primary
jurisdiction over all of the Pueblo's activities--without any
government-to-government consultation with the Pueblo. Instead, the
Board served a subpoena on the Pueblo which demands a massive quantity
of our records, questions our status as a sovereign, and completely
ignores the federal laws that do govern the Pueblo's activities.
For example: the Board demands that the Pueblo produce documents
that prove that the Pueblo is a sovereign--despite the fact that we are
recognized as a sovereign by the United States and have always been
listed on the Federal Government's official list of federally
recognized tribes. Indeed, we have been recognized as a sovereign for
500 years, since the arrival of the Spanish. Our basic status as a
government should not be subject to attack by the Board.
The Board also demands that the Pueblo produce all records that
demonstrate how the Pueblo spends every dollar of net gaming revenues
for government facilities and programs--including receipts to show
when, where and how the funds were used. In IGRA, Congress expressly
defined how we are to use our net gaming revenues--to fund tribal
government programs and services and economic development--and under
IGRA our use of funds is subject to audit and review by other federal
agencies that have express authorization from Congress to do so. That
makes no difference to the Board. Instead, the Pueblo has to prove to
the Board that it is using gaming revenues for purposes that the Board
approves of as sovereign expenditures. The Board has no right to do
this.
The Board has also demanded that we produce personnel records of
many other employees, and establish for it the ``regularity of drug
tests administered by [the Pueblo], including all supporting
documentation showing the circumstances under which these drug tests
were administered,'' as well as ``the process for selecting employees
for drug screenings, including all supporting documentation explaining
the process of selecting employees for drug screenings.'' The Board
makes this demand notwithstanding that drug testing is a critical
element of modern day employment, governed by the standards of the Drug
Free Workplace Act, not the NLRA, and that it is essential to protect
the integrity of gaming operations under IGRA. The Board also ignores
the fact that much of this information is confidential, the production
of which would infringe on the privacy rights of persons not involved
in the NLRB proceeding.
Why S. 248 Is Needed
The NLRB's attack on tribes is wrong. Congress made clear in the
National Labor Relations Act that it does not apply to sovereigns, and
Indian tribes are sovereigns. Congress never authorized the Board to
single out Indian tribes and treat them differently from every other
sovereign in the United States. But this is what the Board is doing.
And in so doing, it is severely undercutting the goals of the Indian
Gaming Regulatory Act, in which Congress made clear that economic
development, through gaming, is key to enhancing tribal governments and
tribal self-determination.
For decades, the NLRB interpreted the Act's exception for
government employers to include Indian tribes and tribal enterprises
owned by Indian tribes that were located on Indian reservations. Fort
Apache Timber Co., 226 N.L.R.B. 503 (1976). It was not until 2004 that
the NLRB changed its long-standing interpretation. In San Manuel Indian
Bingo & Casino, 341 N.L.R.B. 1055 (2004), the Board announced its view
that the NLRA does apply to tribally-owned, on-reservation enterprises.
The NLRB's attack on tribes is wrong because it undermines self-
determination at its core. Although the Pueblo has enacted
comprehensive laws and established governmental agencies to address
employee grievances, the Board says that the Pueblo's laws, agencies
and courts will have no role to resolving the employee's grievance.
Instead, it will decide the grievance. And under the NLRB's view, it
can ignore any treaty or Act of Congress that is inconsistent with its
view of the authority it holds under the NLRA.
The NLRB is wrong because it fails to recognize the central
importance of revenues from the Pueblo's enterprises to the day-to-day
operations of the tribal government, and does not respect the careful
balance that the Pueblo's laws observe--which recognize the right of
employees to organize, but not to strike. For a tribal government, that
limitation is essential. A strike would disrupt the generation of the
revenues on which our tribal programs and services--and our elders,
children and poor--depend. A strike would force the government to
either shut down or substantially cut back government operations, and
just the threat might be enough for the Pueblo to agree to any demands
that would avoid that result. As governments with responsibilities for
the safety and welfare of our people, we cannot be put in a position
where we must curtail police patrols, close schools, or provide
diminished care to our elders.
S. 248 is the solution to this problem. Letting the Board litigate
the issue across the country will only worsen and prolong the current
problem. That litigation is also extremely expensive and drains
resources needed to fund government programs and services. Litigation
is a waste of federal resources as well. The NLRB is pursuing its
recent change in policy piecemeal, through individual enforcement
actions against tribes throughout the country--creating extensive
uncertainty along the way. The NLRB's authority to attack tribes is
fabricated out of thin air, without express authorization from Congress
and is imposed without the kind of government-to-government
consultation and evaluation by which appropriate policy determinations
should be made. But the NLRB won't stop unless Congress says it never
had the power over tribes that it now claims. As we see it, the choice
is clear--tribal self-government is protected and furthered by
supporting and passing S. 248.
Thank you again for this opportunity to testify.
The Chairman. Thank you very much, Mr. Torres.
Senator Franken, could I ask you to please introduce our
next guest and witness?
STATEMENT OF HON. AL FRANKEN,
U.S. SENATOR FROM MINNESOTA
Senator Franken. Mr. Chairman, I am pleased to welcome
Keith Anderson to the Indian Affairs Committee. Keith is Vice
Chairman of the Shakopee Mdewakanton Sioux community, one of
four Dakota communities in Minnesota. Under his leadership,
Shakopee provides an impressive range of services not only to
its members, but also its employees. The tribe is also an
important source of economic development in the region.
Shakopee is the largest employer in Scott County and one of the
50 largest employers in the State of Minnesota.
Vice Chairman Anderson knows the importance of economic
development on Indian lands. I appreciate that he is here on
behalf of Shakopee to provide his perspective on this
legislation.
The Chairman. Thank you very much, Senator Franken.
Mr. Anderson.
STATEMENT OF HON. KEITH B. ANDERSON, VICE CHAIRMAN, SHAKOPEE
MDEWAKANTON SIOUX COMMUNITY
Mr. Anderson. Good afternoon, Mr. Chairman. Thank you very
much, Senator Franken. Good afternoon, Senator Moran, Ms.
Heitkamp.
On behalf of my Shakopee tribal government, I want to
convey our strong support for prompt enactment of S. 248. We
are indebted to you, Mr. Chairman, and especially to you,
Senator Moran, for joining us in our effort to enact S. 248. We
urge you to keep this bill clean, without any change, and to
enact it quickly.
S. 248 is a simple, narrow response to a 2004 decision by
the NLRB to override decades of Federal law respect for tribal
labor sovereignty. Since then, Shakopee, along with other
tribal governments, has asked Congress to clarify the expressed
wording in a statute that, once again, tribal governmental
employers are treated the same as all other governmental
employers for the purposes of the NLRA.
Each of us, Federal, Tribal, State, and local is a
government. Each possess governmental sovereignty. Each should
respect the other's governmental sovereignty. When tribal
governmental sovereignty is respected, economic success
follows.
The NLRA statute did not change in 2004. The only thing
that changed was the NLRB's interpretation of the NLRA. The
NLRB suddenly claimed in 2004 that it had the right to look
over the shoulders of tribal governments and decide whether or
not our activities are commercial rather than governmental. If
commercial, then the NLRB said it will treat tribal governments
like we are private sector corporations and not governments.
As tribal governments, we must ask ourselves why does the
NLRB not apply the same commercial versus governmental status
and analysis to State and local government employers. State-run
golf courses, liquor stores, spa resorts, conventions, event
arenas, RV parks, port authorities, lotteries, hosts of other
enterprises, like tribal governments, they do so for the same
reason, to raise governmental revenue.
When opponents of S. 248 say they are concerned for the
welfare of tribal government workers if S. 248 is enacted, they
should be asked how are tribal employees any less protected
than the millions of Federal, State, and local government
workers whose employers are excluded from the NLRA provisions
today.
Mr. Chairman, to help understand our passion for this
issue, let me provide you with a brief background of my tribe.
In recent decades, economic development has surrounded our
reservation. The Shakopee Tribe has played a significant role
in the economic revitalization of our region. For years our
tribal government has been the largest employer in Scott
county. Our tribally owned and controlled enterprises are a
vital source of governmental revenue for ourselves and for our
neighbors. Our tribal government workforce of over 4,000 people
earn some of the most competitive salaries in our regional
market and receives well regarded benefits, amenities, and I
have listed that in my written testimony.
In 2014, as in previous years, the Shakopee Tribe was the
largest of the 155 employers named as the top workplaces in
Minnesota. The Shakopee Tribe's economic enterprises cannot be
distinguished from those owned and controlled by State and
local governments throughout America. Those governments, just
like tribal governments, are engaged in a wide variety of
commercial-like activities. What makes all of our enterprises
governmental is that they are under the exclusive ownership and
control of government and the revenues that they raise are
dedicated exclusively to governmental purposes.
The NLRA has always protected the sovereign right of
governmental employees to define their own collective
bargaining rights and to avoid work stoppages and strikes in
their governmental workforces. Tribal governments share the
same need for workforce stability. The NLRB should respect
tribal government sovereignty. They did so until 2004.
None of the facts changed in 2004. There were no changed
circumstances that would compel the NLRB their drastic
curtailment of tribal sovereignty in the San Manuel decision.
Long before 2004, Indian gaming began on our reservation, in
the early 1980s, and we enjoyed steady growth throughout the
next two decades. Just as State governments employ many workers
who are citizens in other border States, tribes like Shakopee
have always employed many workers who are not members of our
tribe.
How can opponents of S. 248 justify treating tribal
government employers differently than State or local government
employers? Surely they don't mean to imply that tribal
governments can't be trusted as much as State governments. They
deal with their governmental employees in a fair way. It would
be paternalistic and discriminatory for Congress to add any
special tribal requirements or preconditions to S. 248.
Proponents of adding preconditions should be asked if S.
248 is enacted as introduced, would tribal government employees
have any less protection than do State and local government
employees under the NLRA today, and the answer, of course, is
no.
So, in conclusion, I want to be very, very clear. S. 248 is
not about a labor policy; it is all about tribal sovereignty.
We insist that our friends, both Republicans and Democrats, not
turn S. 248 into a partisan political football. Winning its
enactment is far more important to us than scoring points. The
Committee often straddles partisan divides when it defends
tribal government sovereignty in our unique Federal trust and
treaty relationships. We ask that you once again stretch this
time to embrace S. 248, give the bill your undivided and
unequivocal bipartisan support because it would treat tribal
governments like all other governments and restore the tribal
labor sovereignty that existed before 2004, and that existed
for seven decades prior to that.
Mr. Chairman, thank you for the opportunity to present this
testimony in support of the prompt enactment of S. 248 and the
Tribal Labor Sovereignty Act of 2015. Thank you all for your
help.
[The prepared statement of Mr. Anderson follows:]
Prepared Statement of Hon. Keith B. Anderson, Vice Chairman, Shakopee
Mdewakanton Sioux Community
Introduction
Good afternoon, Mr. Chairman and Members of the Committee. My name
is Keith Anderson. I am the duly-elected Vice-Chairman of the Shakopee
Mdewakanton Sioux Community (``SMSC'' or ``Tribe''), a federally-
recognized tribal government, located in Prior Lake, Minnesota.
My Tribe wholeheartedly supports S. 248 and asks that you secure
its prompt enactment. S. 248 rests on a principle that has been amply
demonstrated by Indian tribes across the country: when tribal
sovereignty is respected and acknowledged, economic success follows.
The language of S. 248 would simply, and narrowly, clarify that
tribal government employers should be treated exactly as state and
local government employers are treated in the National Labor Relations
Act of 1934 (``NLRA''). No more. No less.
S. 248 would return understandings of the federal law on tribal
labor sovereignty to the position held by everyone until 2004. All S.
248 would do is restore the status quo of 2004, a status quo that held
steady for the preceding seven decades.
The NLRA, 29 U.S.C. 151 et seq., is the primary law governing
relations between unions and employers. It guarantees the right of
employees to organize, or not to organize, a union and to bargain
collectively with their employers. Its provisions apply to all
``employers,'' except that Section 2(2) of the Act (29 U.S.C. 152)
explicitly says that the term ``employer'' does not include the United
States government or any state government or political subdivision
thereof. \1\ And therein is the issue--for the first 70 years of its
existence, everyone interpreted the NLRA definition of employer to
exclude tribal government employers operating on tribal lands--along
with the exclusion of all other governmental employers.
---------------------------------------------------------------------------
\1\ ``The term `employer'. . . shall not include the United States
or any wholly owned Government corporation . or any State or political
subdivision thereof. . . .'' Id. Most employees work for employers in
the private sector who are covered under the NLRA. The law does not
cover government employees, agricultural laborers, independent
contractors, and supervisers (with limited exceptions). See FAQs on
NLRB website--http://www.nlrb.gov/resources/faq/nlrb#t38n3182 (accessed
April 27, 2015).
---------------------------------------------------------------------------
The NLRA statute did not change in 2004. The only thing that
changed in 2004 was the interpretation of that statute by the National
Labor Relations Board (NLRB). The NLRB decided to change its position
and declare that because tribal governments were not expressly listed
among the excluded governmental employers in the statute, the NLRB in
some situations would treat tribal governments as private employers
subject to all the requirements of the NLRA.
Shakopee and other tribal governments were offended by the NLRB's
analytical framework in its 2004 San Manuel decision--that the NLRA
should be applied to tribal government employers when those tribes are
engaged in ``commercial'' activities which the NLRB decides are
``commercial.'' The NLRB has never applied this same analysis to the
many similar ``commercial'' activities engaged in by federal, state and
local government employers. If political considerations would never
permit the NLRB to impose this interpretation on other governmental
employers--how can this analysis be fairly imposed upon tribal
government employers?
My Tribe, and many tribal governments, was alarmed that the NLRB
thought it could roll back tribal sovereignty in this way, on its own,
without any change in the statute by Congress. Ever since the NLRB
decision in 2004, we have been asking for the technical relief embodied
in S. 248, and are indebted to you, Mr. Chairman, and especially, to
Senator Jerry Moran, for joining us in our efforts to fix this grievous
error by the NLRB.
Background on the Shakopee Mdewakanton Sioux Community
Our Tribe has remained on our Reservation lands that were once part
of the millions of acres upon which our ancestors lived before they
were forced to relinquish them under a series of disastrous land
treaties. What remains of our lands are approximately 1,844 acres held
in trust and 2,279 acres in non-trust status for our Tribe, about half
an hour from the outskirts of Minneapolis.
In recent decades, economic development has surrounded our
Reservation. At the same time, our Tribe has played a significant role
in the economic revitalization of our region. For years, our tribal
government has been the largest employer in Scott County.
Our tribal government provides a full range of governmental
services to our Community residents. We administer social services for
children and families, mental health and chemical dependency
counseling, employee assistance, emergency assistance, public works,
roads, water and sewer systems, health programs and a dental clinic,
vehicle fleet and physical plant maintenance, membership enrollment,
education assistance, regulatory commissions, economic planning and
development, enterprise management and operations, cultural programs,
an active judicial system, and many other governmental services. Our
tribal government builds all Reservation infrastructure, including
roads, water, and sewer systems, subdivision utilities, and tribal
government facilities. About a dozen Reservation businesses are now
owned by individual tribal members, including a smoke shop, gift shop,
landscaping and excavating, construction services, and photography
services.
Tribally-owned and controlled enterprises are an important source
of governmental revenue for the Shakopee Tribe. Unlike state and local
governments, we are unable to derive any governmental revenue from real
estate taxes or sales taxes or income taxes. But like state and local
governments, we are able to derive governmental revenue from the
operation of governmental enterprises. For us, these include two
casinos, a recreational vehicle campground, a hotel, events centers, a
fitness and recreation facility, a children's entertainment and daycare
facility, a waste treatment plant, a golf course, an organic and
natural foods store, an organic farm, and convenience stores and car
washes.
As the owner and operator of the largest casino hotel resort in
Minnesota, Shakopee Mdewakanton Sioux Community provides an attractive
workplace for our workforce. Our tribal government employees earn some
of the most competitive salaries in our regional market. And our full-
time and part-time employees receive well-regarded benefits and
amenities, including--
no-charge assessment and treatment of non-complicated
illness and injury at a workplace health clinic for employees
and their dependents on the medical plan;
reduced co-pay for pharmaceuticals at a workplace pharmacy
for employees and their dependents on the medical plan;
no-charge diagnostic and preventive dental services, and
reduced rates on basic and some major restorative services at a
workplace dental clinic for employees on the dental plan;
routine eye exams and discounted eyewear available at a
workplace vision clinic for employees and their dependents on
the medical plan;
no-charge physical therapy and chiropractor evaluations and
treatments available at a workplace ``Wellness Center'' for
employees and their dependents on the medical plan;
full-time employees may be reimbursed up to $2,000 for
tuition after one year of service;
cost-share (50 percent) of child care services at a
workplace ``Playworks'' up to maximum annual benefit of $5,000
for employees;
retirement contribution (50 percent match up to 5 percent of
annual pay);
sharply discounted membership fees at workplace ``Dakotah!
Sport and Fitness'' facilities; and
a broad array of other benefits, from financial services and
employee assistance programs to employee discounts and reduced
rate medical insurance plans.
The Shakopee tribal government employs more than 4,000 people, most
of whom are in full-time positions. For each of the past five years,
the Shakopee Tribe has been included among the ``top work places'' in
Minnesota as part of the Minneapolis Star Tribune survey. We are very
proud to be able to say that the Shakopee tribal government was the
largest of the 155 employers on the 2014 list of ``top work places'' in
Minnesota.
Our Tribal Government Enterprises Are Similar to State Government
Enterprises
For the past four decades, federal policy makers in the White House
and in the Congress have pursued a broadly bi-partisan policy of
encouraging tribal government self-determination and self-sufficiency
through the development, by the tribes themselves, of tribal economic
enterprises.
At least three separate rationales have driven this federal-Indian
policy. First, there is a desire to reverse the process that has led to
considerable land loss and resource deprivation of tribal resources
over the past centuries. Second, there is an effort to enable Indian
tribes to help rid themselves of the plague of poverty and under-
development in Indian communities that has forced Native Americans, as
a group, to the bottom of every known measure of economic and social
well-being in America. And third, there is support for an approach that
respects the sovereign authority of governments to set their own course
and resolve their own problems in their own way. For the Shakopee
Mdewakanton Sioux Community that has meant we have actively pursued the
development of appropriate economic development, including gaming, in
order to boost the governmental revenues of our Tribe.
As do state and local governments throughout America, the Shakopee
tribal government operates a hotel and convention center, event arenas,
fitness center, child care center, golf course, emergency response and
fire-fighting station, fuel stops, organic and natural food store and
farms, recreational vehicle park, and a waste water treatment facility
among many other activities.
In all fairness, my Tribe's economic enterprises cannot be
distinguished from those owned and controlled by state and local
governments throughout America. State and local government employees
typically are engaged in a wide variety of commercial-like activities.
State governments operate lotteries, liquor stores, resort spas and
recreational parks, waste water treatment facilities, port authorities,
transportation systems, event and entertainment venues, and convention
centers, among many other enterprises that in competition with similar
enterprises in the private sector. What makes all of these enterprises
``governmental'' is that they are under the exclusive ownership and
control of state and local governments, and the revenues they raise are
dedicated exclusively to governmental purposes. Our tribal government
enterprises are no different. \2\
---------------------------------------------------------------------------
\2\ In point of fact, the federal Indian Gaming Regulatory Act of
1988 requires that our gaming revenues must be applied to statutorily-
prescribed governmental purposes.
---------------------------------------------------------------------------
Why S. 248 and Why Now?
My Tribe urgently needs the statutory language of the NLRA to be
clarified so that there can be no doubt that it is treated in the same
way as all other governmental employers are treated under the NLRA.
The NRLB respects the sovereignty of all other governmental
employers that the NLRA statute protects. The NLRA has always protected
the sovereign right of governmental employers to define their own
collective bargaining rights and to avoid work stoppages and strikes in
their governmental workforces. In all fairness, the NLRB should
likewise respect tribal government sovereignty. The NLRB did so until
2004. But given the NLRB's new interpretation in 2004, and the
deference given the NLRB by the courts, Congress must now step in and
clarify, with enactment of S. 248, that tribal government sovereignty
is to be protected no less than state government sovereignty is
protected in the NLRA. Nothing short of a technical amendment like S.
248 will work.
None of the facts changed in 2004. There were no changed
circumstances that would compel such a dramatic curtailment of tribal
sovereignty. No ``problems'' arose in 2004 that had to be addressed by
mandating NLRA's collective bargaining.
Indian gaming began on our Reservation in the early 1980s and
enjoyed steady growth through the late 1980s and throughout the 1990s.
Throughout much of Indian Country, much of the fastest economic growth
occurred in the 1990s, including enterprise development ancillary to
gaming. There was no ``tipping point'' in economic growth on Indian
reservations that occurred in the years immediately preceding 2004.
Likewise the composition of our tribal government workforce, while
it has grown in size, has always been predominately non-Indian or non-
tribal. Just as state governments employ many workers who are citizens
of other states, tribes like Shakopee have always employed many workers
who are not members of the tribe. Similarities to state government
employers abound: one need only look at the Maryland, Virginia and D.C.
government workforces, or New York, New Jersey and Connecticut
government workforces.
In short, opponents of S. 248 cannot point to anything unique that
happened in the years immediately preceding 2004 to justify the NLRB's
change in how it interpreted the statute.
It is Irrational and Discriminatory to Impose the NLRA on Tribal
Government Employers But Not State Government Employers
The basic premise of sovereignty, for both state and tribal
governments, is that each government sets its own policies in its own
sphere of influence. Of course, that sovereignty is limited under the
U.S. Constitution. What Shakopee and other tribes are seeking is to be
treated the same as state governmental employers are treated under
federal labor law, no more and no less.
Shakopee will insist that those who question the propriety of S.
248 be made to answer the following question: how do you justify
treating tribal government employers differently than you treat state
government employers? Surely you do not mean to imply that tribal
governments cannot be trusted as much as state governments can be
trusted to deal with their governmental employees in a fair way?
Shakopee, like other tribal government employers, understands that
it is in our self-interest to treat our employees fairly. After all, if
our employees are not happy, our customers may not receive the high
quality entertainment product we want for them. Maintaining above
average or better workplace conditions than the marketplace surrounding
our Reservation means tribal employers like Shakopee are better able to
recruit and retain more productive workers. At Shakopee, we take great
pride in the fact that many members of our tribal government workforce
have worked for the Tribe for decades. Indeed, recently we noted the
following worker anniversaries with a special honoring celebration that
was widely appreciated to great acclaim (2 employees with 30 years, 6
employees with 25 years, 82 employees with 20 years, 126 employees with
15 years, 103 employees with 10 years).
Shakopee Asks that You Categorically Reject the Partisan Narratives on
S. 248
The Shakopee Mdewakanton Sioux Community wishes to be very, very
clear about this to both our allies and our opponents on S. 248--S. 248
is not about labor policy.
S. 248 is about tribal sovereignty. Period.
We insist that supporters and opponents of S. 248 not turn this
into a partisan political football they use for partisan political
purposes.
Tribes need S. 248 to be enacted in order to restore tribal labor
sovereignty as a matter of basic fair public policy.
Allies of Indian Country and tribal sovereignty, whether
Republicans or Democrats, should not turn this issue into a partisan
fight. Instead, we ask that our friends, both Republicans and
Democrats, come together in a bi-partisan effort to enact S. 248 and
restore tribal labor sovereignty to the parity position tribal
government employers had as recently as 2004, and for the preceding
seven decades under federal law.
Indeed, partisans on both sides of S. 248 have misconstrued the
scope and meaning of S. 248. S. 248 addresses only an employer who is a
federally-recognized tribal government operating on the Indian lands of
that tribal government. Its provisions do not extend to other employers
on those Indian lands, including Indian individuals, non-Indian
individuals, and businesses not owned and operated by the tribal
government. As in the 70 years prior to 2004, those employers would
remain subject to the NLRA under S. 248.
While Shakopee would prefer to have S. 248 written much more
expansively than it is, so that it would reflect Shakopee's
understanding of its own territorial sovereignty and giving preemptive
effect to Shakopee's tribal labor law as to all employers within the
boundaries of its Reservation, Shakopee recognizes such an expansion of
the scope of S. 248 might raise much more controversial issues akin to
those that accompany the national debates over ``right-to-work'' laws.
\3\ So Shakopee has decided to give its full-throated support to the
much more narrow scope embodied in S. 248--to restore tribal government
employers to the position we had in 2004, treating us the same as the
law treats state government employers.
---------------------------------------------------------------------------
\3\ As this Committee knows, half the 50 states have enacted right-
to-work laws, which protect workers in so-called ``open shops'' who
decline to join a union and pay union fees.
---------------------------------------------------------------------------
Partisanship has no place on matters of federal-Indian issues
involving tribal sovereignty. The members of this Committee have a
remarkable and noteworthy history of straddling partisan divides when
it comes to the defense of tribal sovereignty and the unique federal
trust and treaty relationships with tribal governments. Each year
budget hawks among the Committee's Republicans strike an agreement with
Democrats on the Committee's federal program budget request
recommendation letter. The same could be said of the budget hawks
regarding the mandatory spending authority provisions on the Special
Diabetes Programs for Indians measure that was re-enacted in recent
weeks. In the reauthorization of the Violence Against Women Act (VAWA)
last year, Republicans swallowed hard and accepted other unrelated
provisions they opposed, and Democrats supported, in order to secure
enactment of VAWA provisions that restored tribal territorial authority
in law enforcement over violence against women. On the sovereignty
principles that underlie tribal gaming authority, Republicans and
Democrats on this Committee have, year after year, protected the Indian
Gaming Regulatory Act against efforts mounted by powerful state
government and private sector interests to amend and curtail the Act.
And we should never forget that it was a bi-partisan group of members
from this Committee who stopped an effort to impose a crippling,
Unrelated Business Income Tax on tribal government revenue nearly two
decades ago.
While tribes and tribal sovereignty sometimes stretch the political
partisan philosophies of both the Democratic and Republican parties,
Shakopee and other tribes are grateful that the allies of tribal
sovereignty on Capitol Hill have found a way to embrace, on a bi-
partisan basis, issues of importance to Indian Country like tribal
labor sovereignty which may otherwise be misunderstood to be divisive.
These Republican and Democratic leaders have earned our praise and
support for engaging, like yoga masters, in bi-partisan stretching that
results in a good and just result for Indian Country and tribal
sovereignty. This is what we ask of each member of this Committee, that
you give S. 248 your undivided and unequivocal bi-partisan support
because it would treat tribes like states and restore the tribal labor
sovereignty that existed up until 2004.
Tribal Sovereignty Is the Issue
By definition, sovereignty means different decisions may be made by
different tribes. Just as with the 50 states, each tribe may exercise
its sovereign authority over labor policies in a manner different from
another tribe. Why should tribes be any given less latitude in this
regard than is given Minnesota, or North Dakota, or New Mexico, or
Kansas, or Wyoming?
Fundamentally, S. 248 poses the question--in what ways are tribal
government employers different from state government employers so as to
justify treating tribal government employers differently? And should
the NLRB be permitted to precipitously break decades of precedence and
changes the rules without a change in the statute? Especially when it
comes to matters directly affecting tribal government sovereignty?
It is Imperative That a Clean Bill Be Enacted Free of All Conditions
Sovereignty at its core is a question of who decides? Whose
governmental authority is recognized and respected? Shakopee asks, for
its part, that Congress promptly enact S. 248 so that this question
restores the status quo of 2004. Any special, pre-conditions applied to
tribal governments must be rejected as unbearably paternalistic and
discriminatory. What possible other rationale can be given for treating
a tribal government employer different than the law treats a state
governmental employer? Under S. 248 as introduced, would tribal
government workers have any less protection than do state government
workers under the NLRA today? The answer is no. And the next question
is obvious--by what right would Congress burden tribal government
employers with conditions precedent that they do not equally place upon
state government employers?
Tribal sovereignty is premised on equity and parity. In 2009, the
late Senator Daniel K. Inouye, a staunch defender of tribal
sovereignty, supported simple and unconditional bill language like that
in S. 248 because he said it would restore tribal sovereignty to
federal labor law where it was for almost 70 years and treat tribal
government employers like state government employers are treated.
All Shakopee asks is that S. 248 be maintained without conditions,
a clean restoration of the legal position it and other tribal
government employers had in 2004. We can accept nothing less. And we
ask that this corrective legislation be enacted promptly this year with
overwhelming bi-partisan support.
Mr. Chairman, thank you for the opportunity to present this
testimony in support of prompt enactment of S. 248, the Tribal Labor
Sovereignty Act of 2015.
Attachments:
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
The Chairman. Thank you very much, Mr. Anderson.
Mr. Guest.
STATEMENT OF RICHARD A. GUEST, SENIOR STAFF ATTORNEY, NATIVE
AMERICAN RIGHTS FUND
Mr. Guest. Thank you, Mr. Chairman, distinguished members
of the Committee. The Native American Rights Fund is honored to
provide this testimony, the purpose of which is to demonstrate
that in furtherance of Congress's longstanding policies on
Indian self-determination, tribal self-governance, tribal
economic self-sufficiency, it is time for Congress to provide
parity for tribal governments under the National Labor
Relations Act.
In this context, parity encompasses the quality of being
treated equally under the law alongside Federal and State
governments. Tribal governments are entitled to the freedom to
choose for themselves the appropriate time, place, and manner
for regulating union activity on Indian lands and collective
bargaining for its employees.
As you all are aware, the NLRA was enacted in 1935 to
govern labor relations in the private sector, excluding Federal
and State governments from the definition of employer.
Therefore, workers in the public sector, employees of the
Federal and State governments, were and are subject to the
labor relations policies of their respective employers.
In terms of parity with the United States, it wasn't until
1978 that Congress passed the Federal Labor Relations Act to
regulate labor relations with its workers. To meet the special
requirements and needs of the Federal Government, Congress
excludes members of the military, supervisory and management
personnel, and all employees of certain Federal agencies,
including the FBI, the CIA, and the U.S. Secret Service.
Although patterned after the NLRA, the FLRA limits
collective bargaining only to personnel practices, with no
right of employees to negotiate their wages, no right to
negotiate their hours, employee benefits, or classifications of
their jobs. The FLRA also limits the right of Federal workers
to engage in any concerted action like workplace strikes. Under
the FLRA, there is no right to strike for Federal workers, and
it specifies that it is an unfair labor practice for labor
unions to call or participate in a strike, a work stoppage, or
picketing that interferes with the operation of a Federal
agency.
Now, in terms of parity with State governments, according
to a 2002 report by the GAO, about 26 States and the District
of Columbia had statutorily protected collective bargaining
rights for its employees. Another 12 States had collective
bargaining only for specific groups of workers; example,
teachers and firefighters. And in another 12 States there was
no statute regulating labor relations with its employees or
protecting the rights of its employees to collective
bargaining.
According to this report, most State government workers who
are entitled to collective bargaining rights under State law
are prohibited from striking. Instead, those States provide
compulsory, binding interest arbitration, a procedure
unavailable under the NLRA.
In my written testimony I have included the January 2014
report, Regulation of Public Sector Collective Bargaining in
the States, published by the Center for Economic and Policy
Research, and I invite you to take a look. And the charts
there, although they don't update the 2002 GAO report, really
do provide an illustration of the differences between the
various States, and in the appendix it actually goes into much
detail about the various labor laws in the different states and
where their priorities are, where their needs are.
So when we look to regulating labor relations on Indian
lands, I hope that you, Mr. Chairman, 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 which
best serve the needs of their communities. In considering S.
248, the Committee should be mindful that the 566 tribes enjoy
demographic, cultural, political, and economic diversity, and
should not be subject to any one-size-fits-all approach.
In general, there are four areas of concerns for Indian
Tribes: first, a guaranteed right to strike threatens tribal
government revenues and the ability to deliver vital
governmental services; two, the broad scope of collective
bargaining for other working conditions will undermine Federal
and tribal policies requiring Indian preference in employment;
three, preemption is the power to exclude, which is the
fundamental power of tribal government that would be
diminished, the ability of tribes to place conditions on entry,
condition presence, or reservation conduct of outsiders; and,
four, the potential for substantial outside interference with
tribal politics and elections.
In my written testimony I provide a summary of the Navajo
Preference in Employment Act of 1985, and it goes into detail
about how Navajo reached various policy decisions based on
their community needs. I also provide much detail about the
experience, what I call the experiment, in California with the
tribal labor relations ordinances that Chairman Welch
discussed, and the differences there and how that is now
working.
The final point I want to make, Mr. Chairman, is that
before its decision in San Manuel, the National Labor Relations
Board respected Indian Tribes as sovereign governments, drawing
a distinction regarding its jurisdiction on whether a tribal
business was located on Indian lands or outside the
reservation. Today, the NLRB draws a distinction between
commercial activities versus what it deems traditional or
governmental activities.
Under the Indian Gaming Regulatory Act, Congress recognized
a principal goal of Federal Indian policy was to promote tribal
economic development, tribal self-sufficiency, and a strong
tribal government. Under IGRA, it declared the purpose was to
provide a statutory basis for the operation of gaming by Indian
Tribes as a means of promoting tribal economic development,
self-sufficiency, and strong tribal governments. Congress said
that. And we believe Congress meant that tribal gaming is a
part of tribal government, a means of generating tribal
revenues to support tribal programs and services.
In IGRA, Congress said and limited net revenues from any
tribal gaming are not to be used for purposes other than to
fund tribal government operations and programs, to provide for
the general welfare of an Indian Tribe and its members, and to
promote tribal economic development and to donate to charitable
organizations or help fund operations of local government
agencies.
Congress determined that tribal gaming is governmental and
should not be treated as a commercial activity on par with non-
Indian casinos, as the NLRB has determined in the San Manuel
decision.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Guest follows:]
Prepared Statement of Richard A. Guest, Senior Staff Attorney, Native
American Rights Fund
I. Inroduction
Chairman Barrasso and Distinguished Members of the Committee: The
Native American Rights Fund (NARF) is a national, non-profit legal
organization dedicated to securing justice on behalf of Native American
tribes, organizations, and individuals. Since 1970, NARF has undertaken
the most important and pressing issues facing Native Americans in
courtrooms across the country and here within the halls of Congress.
We are honored to be invited to provide testimony to the Committee
regarding S. 248, the ``Tribal Labor Sovereignty Act of 2015''--a bill
to clarify the rights of Indians and Indian tribes on Indian lands
under the National Labor Relations Act (NLRA). The purpose of our
testimony is to demonstrate that, in furtherance of its longstanding
policies of Indian self-determination, tribal self-governance and
tribal economic self-sufficiency, it is time for Congress to provide
parity for tribal governments under the NLRA. In this context, parity
encompasses the quality of being treated equally under the law
alongside Federal and State governments. Tribal governments are
entitled to the freedom to choose the appropriate time, place and
manner for regulating union activity on Indian lands and collective
bargaining for its employees.
II. Parity with the Federal and State Governments
The National Labor Relations Act was enacted by Congress in 1935 to
govern labor relations in the private sector. Under section 2 of the
NLRA, 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, or any State or political subdivision
thereof. . . . ``Therefore, workers in the public sector--employees of
the federal and state 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 to best
regulate union organizing and collective bargaining labor relations
with their workers given the essential and, oftentimes, sensitive
nature of their work.
A. Parity with the United States
In 1978, forty-three years after it passed the NLRA, Congress
enacted the Federal Labor Relations Act (FLRA), 5 U.S.C. 7101 et
seq., regulating labor relations for most federal workers. The FLRA
specifically aims to ``prescribe certain rights and obligations of the
employees of the Federal Government and to establish procedures which
are designed to meet the special requirements and needs ofthe
Government.'' 5 U.S.C. 7101(a)(2). Congress determined that the
rights of federal workers to organize, bargain collectively, and
participate in labor organizations: ``(1) safeguards the public
interest, (2) contributes to the effective conduct of public business;
and (3) facilitates and encourages the amicable settlement of disputes
between employers and employees involving conditions of employment.'' 5
U.S.C. 710l(a)(l).
However, the FLRA does not apply to all federal employers or
employees. Coverage extends to individuals employed in an ``agency,'' 5
U.S.C. 71 03(a)(2), but specifically excludes members of the
military, noncitizens who work outside the United States, supervisory
and management personnel, and various Foreign Service officers. 5 U
.S.C. 71 03( a)(2)(B). It also excludes all employees of certain
federal agencies, including the Federal Bureau of Investigation, the
Central Intelligence Agency, and the United States Secret Service. 5
U.S.C. 7103(a)(3).
Although patterned after the NLRA, based on the Federal
government's unique public-service needs, obligations and
vulnerabilities, the FLRA mandates certain proscriptions and
prescriptions not contained in the NLRA. One important example is the
scope of the authorized collective bargaining process. Under the NLRA,
private-sector employees are entitled to collectively bargain with
respect to wages, hours, benefits, and other working conditions. Under
the FLRA, federal employees can only collectively bargain with respect
to personnel practices. Under the FLRA, there is no right to negotiate
working conditions such as wages, hours, employee benefits, and
classifications of jobs.
A second important diffemce is the right of private sector
employees to engage in ``concerted action,'' like workplace strikes.
Under the FLRA, there is no right to strike for federal workers. In
fact, the FLRA specifically excludes any person who participates in a
workplace strike from the definition of ``employee,'' 5 U.S.C. 71
03(a)(2)(B)(v), and it specifies that it is an unfair labor practice
for labor unions to call or participate in a strike, a work stoppage,
or picketing that interferes with the operation of a federal agency. 5
U.S.C. 7116(b)(7)(A).
B. Parity with the States
According to a 2002 Report by the Government Accountability Office
(GAO), about 26 states \1\ and the District of Colombia had
statutorily-protected collective bargaining rights for essentially all
State and local government workers; 12 states \2\ had collective
bargaining only for specific groups ofworkers (e.g. teachers,
firefighters); and 12 states \3\ did not have laws providing rights to
collective bargaining for any government worker. ``Collective
Bargaining Rights,'' GA0-02-835, p. 8-9 (September 2002). According to
the Report, most State government workers who are entitled to
collective bargaining rights under state law are prohibited from
striking. Instead, those States provide compulsory binding interest
arbitration (a procedure unavailable under the NLRA). Id. at p. 10.
---------------------------------------------------------------------------
\1\ Alaska, California, Connecticut, Delaware, Florida, Hawaii,
Illinois, Iowa, Maine, Massachusetts, Michigan, Minnesota, Montana,
Nebraska, New Hampshire, New Jersey, New York, Ohio, Oregon,
Pennsylvania, Rhode Island, South Dakota, Vermont, Washington, and
Wisconsin. As with the NLRA, the state laws that provide collective
bargaining rights to public employees often exclude various groups of
employees (e.g., many states expressly exclude management officials)
from coverage. GAO 02-835, at note 12.
\2\ Georgia, Indiana, Idaho, Kansas, Kentucky, Maryland, Missouri,
Nevada, North Dakota, Oklahoma, Tennessee, and Wyoming. Three of these
states, Indiana, Kentucky and Missouri, extend collective bargaining
rights to certain public employees through an executive order from the
governor. GAO 02-835, at note 14.
\3\ Alabama, Arizona, Arkansas, Colorado, Louisiana, Mississippi,
New Mexico, North Carolina, South Carolina, Texas, Virginia, and West
Virginia. Texas prohibits collective bargaining for most groups of
public employees, but firefighters and police may bargain in
jurisdictions with approval from a majority of voters. GAO 02-835, at
note 13.
---------------------------------------------------------------------------
In a January 2014 Report, Regulation of Public Sector Collective
Bargaining in the States, the Center for Economic and Policy Research
(CEPR) reviewed the rights and limitations on public-sector bargaining
in the 50 states and the District of Colombia in order to answer three
key questions- whether workers have the right to bargain collectively,
whether unions can bargain over wages, and whether workers have the
right to strike. A copy of the Report is attached to this testimony
(minus the Appendix). * The CEPR did not update the numbers provided by
GAO, but it did provide helpful charts to better illustrate the types
of policy choices State governments are making in regulating the rights
of government workers: Chart 1, ``Legality of Collective Bargaining for
Select Public-Sector Workers'' lists the states which regulate
collective bargaining for specific workers is legal, illegal, or simply
no ; Chart 2, ``Legality of Collective Wage Negotiation for Select
Public-Sector Workers''; and Chart 3, ``Legality of Striking for Select
Public-Sector Workers.'' As you review each chart, you can see that
certain states make it illegal, or do not protect the rights of certain
government workers, to engage in collective bargaining or wage
negotiations, with most states making it illegal for these government
workers to strike.
---------------------------------------------------------------------------
* The information referred to has been retained in the Committee
files.
---------------------------------------------------------------------------
And of final note, according to the National Right to Work Legal
Defense Foundation http://www.nrtw.org/, 25 States have enacted right
to work laws and 25 States do not have right to work laws. \4\
Therefore, half of the State legislatures have determined that--as a
matter of State labor relations policy--a worker in a Right to Work
State not only has the right to refrain from becoming a union member,
but cannot be required to pay anything to the union unless the worker
chooses to join the union.
---------------------------------------------------------------------------
\4\ The 25 states that have right to work laws are: Alabama,
Arizona, Arkansas, Florida, Georgia, Idaho, Indiana,Iowa, Kansas,
Louisiana, Michigan, Mississippi, Nebraska, Nevada, North Carolina,
North Dakota, Oklahoma,South Carolina, South Dakota, Tennessee, Texas,
Utah, Virginia, Wisconsin, and Wyoming.
---------------------------------------------------------------------------
III. Regulating Labor Relations on Indian Lands
Before its 2004 decision in San Manuel Indian Bingo and Casino, the
National Labor Relations Board did not exercise jurisdiction over
tribal-owned businesses located on Indian lands. In Fort Apache Timber
Co. (1976), and Southern Indian Health Council (1988), the NLRB held
that tribal-owned businesses operating on tribal lands were exempt from
federal labor law jurisdiction as ``governmental entities.'' \5\
However, in Sac & Fox Indus. (1992), the NLRB held that the provisions
of the NLRA would apply to a tribal-owned business operating outside
the reservation. Thus, prior to 2004, the NLRB drew a distinction
regarding its jurisdiction based on whether the tribal business was
located on Indian lands (no jurisdiction) versus off-reservation
(jurisdiction). Today, in considering S. 248, the Committee should be
mindful that the 566 federally-recognized Indian tribes enjoy
demographic, cultural, political and economic diversity, and should not
be subject to any one-size fits all approach.
---------------------------------------------------------------------------
\5\ The NLRB did exercise jurisdiction over non-Indian enterprises
operating. For example, in Simplot Fertilizer Co. (1952), the NLRB
exercised jurisdiction over a union's attempt to organize a non-Indian
phosphate mining company leasing Shoshone-Bannock tribal land in Idaho.
Also see Texas-Zinc Minerals Corp. (1960), and Devils Lake Sioux Mfg.
Corp. (1979).
---------------------------------------------------------------------------
A. The Navajo Nation Labor Code
Enacted by resolution in 1985, the Navajo Preference in Employment
Act (``NPEA'') serves as the Navajo Nation's general labor code. 15
N.N.C. Sec. 601 et seq; Resolution No. CAU-63- 85 in 1985, and amended
through Resolution No. C0-78-90 in 1990. Incorporated into the NPEA is
a clause which enables unionization on the Navajo Nation. 15 N.N.C.
Sec. 606 Union and Employment Agency Activities; Rights of Navajo
Workers
A. Subject to lawful provisions of applicable collective
bargaining agreements, the basic rights of Navajo workers to
organize, bargain collectively, strike, and peaceably picket to
secure their legal rights shall not be abridged in any way by
any person. The right to strike and picket does not apply to
employees of the Navajo Nation, its agencies, or enterprises.
B. It shall be unlawful for any labor organization, employer
or employment agency to take any action, including action by
contract, which directly or indirectly causes or attempts to
cause the adoption or use of any employment practice, policy or
decision which violates the Act.
It was the legislative intent of the council in 1985 to incorporate
the most basic of those privileges of the National Labor Relations Act
(NLRA) to tribal employees, whom the council acknowledged were
otherwise exempt from the NLRA. The rights of Navajo Nation employees
to collectively bargain were debated and CAU-63-85 ultimately passed.
14 NTC 8/1/1985.
The 1990 Navajo Nation council debated whether to include in the
amendments ``closed shop'' language, which would permit labor
organizations to collect union dues from non-members. This sparked much
debate in the council, which ultimately decided 34 to 33 to ensure the
Navajo Nation is a ``right to work'' jurisdiction, and amended the
Labor Investigative Task Force's proposed amendments to strike the
``closed shop'' language otherwise amending 15 N.N.C. Sec. 606. 28 NNC
10/25/90.
The NPEA confers upon the Human Services Committee (HSC) of the
legislative council to ``promulgate rules and regulations necessary for
the enforcement and implementation of the provisions ofthis Act.'' 15
N.N.C. Sec. 616. HSC has availed themselves with this authority in the
otherwise sparsely worded enabling legislation through Resolution No.
HSCJY-63-94 Adopting the Navajo Preference in Employment Act
Regulations to Provide Rules and Enforcement Procedures to Permit
Collective Bargaining for Employees of the Navajo Nation, Its Agencies
or Enterprises.
These regulations provide additional guidance as to, for example,
management's role of neutrality, prohibited employer practices, how to
become an exclusive bargaining agent, the process for certification, an
impasse resolution in the event of failed bargaining, and the process
for decertification of a bargaining agent.
Collective bargaining is occurring on the Navajo Nation, with
private enterprise as well as government. The United Mine Workers of
America (UMWA) represents employees at the Navajo Nation Head Start
Program, a tribal government program. The Nal-Nishii Federation of
Labor AFL-CIO includes 12 labor organizations that represent miners,
power plant workers, construction workers, school employees and city
employees working on or near the Navajo Nation.
B. California Tribal Labor Relations Ordinances
In negotiating tribal-state gaming compacts in 1999, Indian tribes
in California agreed to adopt a process for addressing union organizing
and collective bargaining rights of tribal gaming employees, or the
compact is null and void. From these negotiations, a Model Tribal Labor
Relations Ordinance (``Ordinance'') was crafted, and tribes with 250 or
more casino-related employees were required to adopt the Ordinance. In
its 2007 Report, California Tribal State Gambling Compacts 1999-2006,
the California Research Bureau provided the following summary:
Under the Model Tribal Labor Relations Ordinance
(``Ordinance''), employees have the right to engage in employee
organizations, bargain collectively, and join in concerted
activities for the purpose of collective bargaining. The
Ordinance defmes unfair labor practices on the part of a tribe
or a union, guarantees the right to free speech, and provides
for union access to employees for bargaining purposes.
(Excluded employees include supervisors, employees of the
tribal gaming commission, employees of the security or
surveillance departments, cash operations employees or any
dealer.)
Key Issues: Certification of union representation and dispute
resolution
Upon a showing of interest by 30 percent of the applicable
employees, the tribe is to provide the union an election
eligibility list of employee names and addresses. A secret
ballot is to follow. An elections officer chosen by the tribe
is to verify the authorization cards and conduct the election.
If the labor organization receives a majority of votes, the
election officer is to certify it as the exclusive collective
bargaining representative for the unit of employees. Decisions
may be appealed to a tribal labor panel.
The Ordinance establishes procedures to address an impasse
in collective bargaining, including the union's right to strike
outside oflndian lands, and to decertify a certified union. It
also creates three levels of binding dispute resolution
mechanisms, beginning with a tribal forum, followed by an
arbitration panel, and finally tribal court and federal court.
Collective bargaining impasses may only proceed to the first
level of binding dispute resolution, in which a designated
tribal forum makes the decision.
California Tribal State Gambling Compacts 1996-2006, at p. 33-34 (a
copy of the Labor Standards section, P. 33-39, of the Report is
appended to this testimony). * In a presentation to the Intemational
Association of Gaming Attomeys in September 1999, the following
observations were provided regarding the Ordinance as a product of
compromise between powerful forces, including:
---------------------------------------------------------------------------
* The information referred to has been retained in the Committee
files.
1. the public policy of providing economic support for Indians
---------------------------------------------------------------------------
from non-tax sources through Indian gaming;
2. the drive by the State of Califomia to reclaim some of the
economic benefit it had forfeited to Nevada by blocking the
expansion of gaming in CalifomiaJ.;
3. the expectation of employees working at Indian casinos that
they will have the same rights as employees working at non-
Indian enterprises;
4. the need and desire by many tribes to maintain and expand
their gaming operations; and
5. the wish by other interested parties in the gaming business
(most importantly, Nevada gaming companies and unions
representing their employees) to create, at a minimum, a
``level playing field'' by eliminating the competitive
advantage enjoyed as a result of the non-union status of
California's Indian casinos.
The full written presentation is available at http://
cornorate.findlaw.com/litigation-disputes/thecalifornia-tribal-labor-
relations-ordinance-overview-and.html.
The Ordinance provides labor unions at tribal gaming facilities
with a number of advantages not provided for under the NLRA. Most
impmtantly, under the Ordinance unions at tribal casinos: (1) have the
right to enter onto casino property at any time to talk to employees
and post leaflets and posters there in order to facilitate the
organizing of employees; and (2) may engage in secondary boycotts after
an impasse is reached in negotiations without suffering any penalty
under the Ordinance.
The Ordinance also provides tribes with certain advantages not
enjoyed by employers under the NLRA. Most importantly, unions
representing tribal casino employees may not strike, picket or engage
in boycotts before an impasse is reached in negotiations. Since 1999, a
number of new tribalstate gaming compacts have been negotiated, or
renegotiated, some with additional provisions regulating labor, but all
requiring the adoption of the 1999 Model Tribal Labor Relations
Ordinance.
The examples of the Navajo Nation and the California tribes
exemplify the growing list oflndian tribes who are regulating labor
relations with their employees. Mr. Chairman, we hope that you and each
member of the Committee will recognize that each of the 566 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 which best serve the needs of their community. In
general, there are four areas of concem for Indian tribes: (1) a
guaranteed right to strike threatens tribal government revenues and the
ability to deliver vital services; (2) the broad scope of collective
bargaining for ``other working conditions'' will undermine federal and
tribal policies requiring Indian preference in employment; (3) pre-
emption of the power to exclude which is a fundamental power of tribal
government diminishes the ability of tribes to ``place conditions on
entry, on conditioned presence, or on reservation conduct''; and (4)
the potential for substantial outside interference with tribal politics
and elections.
IV. Conclusion
In closing Mr. Chairman, we would simply remind you and members of
the Committee that under the Indian Gaming Regulatory Act (IGRA),
Congress recognized ``a principal goal of Federal Indian policy is to
promote tribal economic development, tribal self-sufficiency, and
strong tribal government,'' 25 U.S.C. 2701 , and declared its purpose
was ``to provide a statutory basis for the operation of gaming by
Indian tribes as a means of promoting tribal economic development,
self-sufficiency, and strong tribal governments.'' 25 U.S.C. 2702.
Congress said that, and we believe Congress meant that tribal
gaming is a part of tribal government--a means of generating tribal
revenues to support tribal programs and services. In 25 U.S.C.
2710(b)(2)(B), Congress stated ``net revenues from any tribal gaming
are not to be used for purposes other than--(i) to fund tribal
government operations or programs; (ii) to provide for the general
welfare of the Indian tribe and its members; (iii) to promote tribal
economic development; (iv) to donate to charitable organizations; or
(v) to help fund operations of local government agencies.'' Congress
determined that tribal gaming is a governmental activity of Indian
tribes--and should not be treated as a commercial activity on par with
nonIndian casinos as the NLRB has determined in San Manuel Indian Bingo
and Casino.
The Chairman. Thank you very much, Mr. Guest.
The order for questioning will be Senator Moran, then
Senator Franken, then I will conclude.
Senator Moran.
Senator Moran. Mr. Chairman, thank you very much. Let me
direct my first questions to Mr. Griffin.
Mr. Griffin, perhaps a series of questions that you can
respond to or we can discuss. First of all, from 1935 to 2004,
the Board held that the NLRA did not apply to tribal employers
on tribal lands. The question then becomes what is the
rationale for making a change in that policy in 2004 and
ignoring the precedent and then holding otherwise.
In your testimony you mentioned the Board of San Manuel
decision and noted the ``increasingly important role'' that
tribal commercial enterprises were by then playing in the
national economy. And you write, ``the Board found that tribal-
owned enterprises were `significant employers of non-Indians in
serious competition to non-Indian-owned business.'''
It strikes me, several things about that. One, if the real
issue is whether the tribes are sovereign or not, then these
other factors about serious competition or number of non-tribal
employees, in my view, should be irrelevant. And I would
welcome your response to that.
And then another thought about that, it adds additional
uncertainty to tribal employers because how will we know what
the serious competition definition is? How will we know how
many employees it takes before the NLRA would come into force
in those circumstances? It seems to me that the issue of
sovereignty, either the tribes are sovereign or they are not;
and there ought not be this fuzzy area in trying to determine
what kind of nature of the activity, size, and scope of the
activity that then determines that.
Finally, the District of Columbia is not mentioned in the
NLRA, and NLRB does not exercise jurisdiction over it as an
employer. U.S. territories are not mentioned in NLRA, and NLRB
does not exercise jurisdiction over them as employers. And yet
Indian Tribes are not mentioned in the Act, but the NLRB does
exercise jurisdiction. How do you square the differences?
Because your testimony was Congress didn't speak; therefore, we
believe we have the authority.
Mr. Griffin. Well, thank you very much for the series of
questions, and I will try and be responsive to each one in
turn; and if I miss one, I am sure you will bring me back to
it.
Senator Moran. People bring me notepads of questions, so I
am not trying to trick you.
Mr. Griffin. No, I didn't take it in that fashion at all.
Senator Moran. It is only that the clock will run.
Mr. Griffin. I just wanted to keep it all in my head.
I think you cite to my testimony, which is in fact
quotations from the Board's decision in San Manuel, so I am
describing in the testimony the basis for that decision that
the Board articulated itself in the decision. And I would say,
really, there were two things going on. The first thing, just
stepping back for a second, is that the Board has been given
jurisdiction by Congress to interpret the Act, and it is
considered to be the expert agency to interpret the Act in
light of changing industrial circumstances.
So I do think that the rise of Indian gaming, which is
noted, and the employment of more non-Indian, non-tribal
members, those were changing circumstances that are the type of
changing circumstances that typically the Board will look to
when it reexamines a line of case law.
The other thing that the Board will typically look to, and
which is clearly one of the operative factors in the San Manuel
decision, is the development in the case law otherwise. So it
looked to the Supreme Court's Federal Power Commission versus
Tuscarora decision, it looked to the development in the Ninth
Circuit; and that Board determined that the prior law was not
the best interpretation of the Act in light of the decisions of
the Supreme Court, the decisions of the Ninth Circuit, and then
reexamining the situation in light of the increased presence of
tribal enterprises such as casinos.
So that is the basis for the change, is looking to the
doctrine from the Supreme Court and the Ninth Circuit with
respect to the laws of general application applying to tribes,
A, that is Tuscarora; and then looking to the exceptions that
are articulated in the Donovan v. Coeur d'Alene case and seeing
whether those exceptions apply to the casino and determining
that they didn't.
With respect to the territories, you are correct the
territories, you are correct the territories are not mentioned
in the statute with respect to the definition of employer.
Territories actually are mentioned in the statute with respect
to another section of the law, that is the section 10(a), which
allows for the Board to cede jurisdiction to either State or
territories where there is a law that is substantially
identical to the National Labor Relations Act. And as you have
heard, although there are a number of considerations in the
laws that have been referred to, they are not substantially
identical to the National Labor Relations Act.
I am trying to remember the final question, which was? I am
sorry.
Senator Moran. I think a point that I was attempting to
make is that not all irrelevant if you reach the conclusion
that the tribes are sovereign?
Mr. Griffin. Well, the test takes into account traditional
governmental functions and looks at those. That is the first
piece of the Donovan inquiry. And quoting the decision, it
focuses on whether or not applying the Act to the casino would
touch ``exclusive rights of self-government and purely
intramural matters,'' and looks to Coeur d'Alene, which
describes intramural matters as topics such as tribal
membership, inheritance rules, and domestic relations. And the
view is that those are the aspects of sovereignty and that the
operation of the casino is not, as the Board has described it
in San Manuel.
Senator Moran. My attempt to ask more than one question or
talk to more than one witness failed, despite my efforts to
combine all my questions into one. My time has expired, but I
hope we have a second round so I can ask some other questions
of the witnesses.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Moran.
Senator Franken.
Senator Franken. Thank you, Mr. Chairman.
In this hearing we are trying to discuss the balance
between two very important things, tribal rights and labor
rights. The tribes here today disagree with the NLRB decision
in San Manuel, but there is actually a fair amount of common
ground here and I want to first focus on points of general
agreement.
Mr. Griffin, you said in your testimony that even under the
San Manuel decision, the Board still must protect interests in
``core tribal sovereignty, the Federal Government's treaty
obligations, and Congress's authority over Indian affairs.''
Has the Board ever declared jurisdiction over what the Board
called intramural matters? And what functions would intramural
matters which you just referred include?
Mr. Griffin. The Board has not ever taken jurisdiction over
something that fell within those core intramural matters. And
just to repeat what I said, those are described in the Coeur
d'Alene case and quoted in San Manuel as topics such as tribal
membership, inheritance rules, and domestic relations. And, in
fact, at the same time that the Board issued San Manuel, the
Board declined jurisdiction, as I mentioned, in the Yukon
Kuskokwim case, which involved a clinic that was operated by a
tribe that was off the reservation.
So when the Board decided San Manuel, it said that drawing
the line on enterprises that are within the reservation was
over-inclusive and under-inclusive. So there was an off-the-
reservation enterprise that was held the Board did not assert
jurisdiction; there was an on-the-reservation enterprise that
was.
Senator Franken. As I understand it, whether or not this
bill is enacted, the National Labor Relations Act would still
apply to private businesses on Indian lands and tribal
enterprises off of reservations. Is that understanding correct,
Mr. Guest?
Mr. Guest. It would apply to any commercial ventures of
Indian Tribes outside of Indian reservations. Again, I would
take issue with Mr. Griffin's description. Prior to 2004, and
even in the Yukon case, in its first iteration before the
Board, the Board was seeking to exercise jurisdiction over the
health care services being provided outside the reservation.
There are no reservations in Alaska, so it was seeking to
exercise that jurisdiction even though it was a consortium
providing health services.
It wasn't until the San Manuel decision and afterwards that
the Board said, oh, we are going to change our mind and we are
not going to exercise it even over tribal health care
facilities outside the reservation. So they have drawn the line
differently now. Instead of on reservation versus off
reservation, it is commercial versus governmental.
And in the D.C. Circuit's decision in San Manuel, the way
that the courts--and this is a challenge that we have for
ourselves in the Federal courts and why we need Congress to
act, is because the D.C. Circuit created a continuum of tribal
sovereignty, saying, well, for these purposes, the further you
move out from this core of tribal sovereignty, then we can act
and the Board can act.
Senator Franken. Mr. Guest, I have so much time, so I just
want to pick up.
Vice Chairman Anderson, I want to talk about labor
relations and the context of Shakopee. Shakopee is an important
employer in its area for both Indian and non-Indian workers.
Would you say that the tribe's employees are generally happy?
Mr. Anderson. Yes, I would. We have several long-term
employees that are 5-year, 10-year, 15-year, and now all the
way up to 30-year employee recognition banquets every year just
continue to grow, and we are struggling with the 5 and 10-year
as they are so big; we still want to get to them and we still
want to recognize them.
Senator Franken. Has the NLRB ever been involved in a
dispute between Shakopee and its employees?
Mr. Anderson. No.
Senator Franken. Would you treat your employees better or
worse if this bill were enacted?
Mr. Anderson. Well, we say our employees are our best
customers. If it wasn't for them, we wouldn't have the success
that we do. So not for better or worse, but there definitely
would be a change. I don't know that it would be in either
party's benefit at this point.
Senator Franken. May I have just another one more question?
Mr. Griffin mentioned in his testimony that other labor
laws, the Americans with Disabilities Act, the Occupational
Safety and Health Act, and the Employee Retirement Income
Security Act, ERISA, have also been extended to cover tribes.
Mr. Torres, are any of the tribes represented today
advocating to exempt tribal enterprises from these other labor
laws?
Mr. Torres. Not that I know of, Senator.
Senator Franken. Okay. So what is different or special
about the National Labor Relations Act? From those.
Mr. Torres. I am not sure I can answer that. I don't
totally understand what you are asking me.
Senator Franken. Okay, I am sorry.
Anyone else care to answer?
Mr. Anderson. I can give a shot at it. You know, the
difference is stability in the workforce. We have, at minimum,
in codes and other areas you adopt those minimums for obvious
reasons, especially the ADA or building codes and such. Our
labor law includes due process, and we hire professionals that
establish the Employee Rights Commission that are modeled after
some of the best commissions that are out there. That is what
you want to do. That is what you want to do to cover all of
these types of questions. So that is the way I look at it.
Senator Franken. Thank you.
Thank you for your indulgence, Mr. Chairman.
The Chairman. Thank you, Senator Franken.
Senator Moran, you have some additional questions?
Senator Moran. Thank you, Mr. Chairman, for your
consideration.
Mr. Vice Chairman, let me ask you. You made the pitch, the
appeal in your testimony for bipartisanship in consideration on
this legislation. I wanted to give you the opportunity to
explain why you think that is important, what you want to
accomplish here. What would be your suggestion to make certain
that we accomplish that? And is there anything in this
legislation that we need to alter?
I believe it was you that testified it needed to be passed
in its current exact form. Is there anything, then, that you
think is terribly partisan or that is detrimental to the cause
of getting this legislation passed that we need to alter?
Mr. Anderson. Not that I have heard recently, but with the
work that we have done with our help that is behind me, I am
hearing that there is partisanship, and I would hope that there
would be an opportunity for bipartisanship in lieu of how the
year finished last year and things of that nature.
But that is more or less how I would approach some of the
opponents of the bill. The bill, as written, is a clean fix.
Its intent is to clarify. Such as an employee needs clear
direction, it clarifies what we want to accomplish to be
recognized as tribal governments.
Senator Moran. Let me ask any of the witnesses from the
tribes, in the effort to take care of your responsibilities as
tribal leaders to care for tribal members, what is the
consequence of the uncertainty that comes from dealing with the
NLRA or the NLRB in your efforts to care for tribal members? My
guess is that you were elected by your members to pursue on
their behalf. How does dealing with the NLRB affect your
ability to accomplish those goals?
Mr. Torres. The thing that is happening to the Pueblo of
Isleta right now, as far as dealing with the NLRB, is very
wrong for us because we are required to come up with all the
documents, every dollar that was spent for like two years, and
we don't think that that is right. Our employees are protected
by our personnel policies, our labor laws, which our labor law
was approved by the Department of Interior and we have that in
place.
So at Isleta we feel that we are taking care of our
employees. We hardly have any grievances at all. They have
really good benefit packages, they get paid really well, and it
was just one employee that caused this mess that we are in
right now with the NLRB.
I hope that answers your question, Senator.
Senator Moran. It does. Thank you.
Anyone else?
Mr. Anderson. I would just like to add we haven't had to
deal with the NLRB, but it seems to me that the means testing
and the type of--I am not a lawyer, but what I do read is that
you have an ever-changing Board that has decided to ask a
question that isn't being asked up until somebody decides this
might be an issue. The purposes of IGRA and all of the things
that we provide with the money, IGRA determines how you divide
that money and how you use that gaming dollar.
This is clearly an intent of a governmental purpose;
infrastructure, health, education, welfare. And you satisfy
those requirements and you move from there. If a stoppage of
that were to occur in the populace that we are in, the
memorandums of understandings and agreements that we have with
the two cities that are surrounded by us in the county, some of
the services that we share with them will get interrupted, at a
minimum. The upkeep of our infrastructure and so forth would
show interruption.
There is no other way you can interpret this but to say we
need to continue to interpret the NLRA as it had and intends us
recognizing tribal sovereignty.
Senator Moran. Let me see if I can say what I think I am
hearing, and you can agree or disagree. But what I think the
governor was indicating is that we don't intend to diminish the
rights of our workers or the relationship we have with labor.
What we hope to do is, instead of using our resources for
paperwork, bureaucracy, the reports, that we can use those
resources as you say, Mr. Vice Chairman, to the benefit of our
citizens, as we are required to do under IGRA. Is that a
message that I should hear and is that something that you are
conveying to me? Or am I putting words in someone's mouth?
Mr. Torres. No, that is exactly what I am trying to get
across.
Mr. Anderson. Our constitution establishes that we work and
strive for that infrastructure and our self-sufficiency. It is
a requirement of my position, responsibility. To have that
usurped by a simple process of applying, like I say, a means
test of some sort, you know, the decision that I read,
certainly the courts have left out some of that testing, but
have decided to accept that decision of the Board.
It doesn't really say that it could be, it should be this
way. All it is saying is somebody asked that question and
applied a very--I don't know who needs to determine what is
traditional for us, but certainly a lot of other governmental
operations to be applied, you apply that to the State or the
local governments, that is unheard of. That isn't even asked.
You could ask that. Maybe that drives another court decision or
maybe another application of the jurisdiction of the NLRA in
our instrument of those local governments.
Senator Moran. In addition to the nature, in my view, this
bill is about the issue of sovereignty. I assume it is true
that tribes have different relations, customs, traditions that
would be different than other employers that, again,
sovereignty protects you in the ability for you to honor those
customs, those traditions, the way of doing business.
Am I missing something here? Is there something unique? I
am asking you can you tell us if there are things that are
unique about tribes that need to be honored as you deal with
people who work on the reservation. Governor?
Mr. Torres. I can tell you on behalf of the Pueblos, the
Pueblos in New Mexico are similar. We have certain days when we
have ceremonies where we have to give a day off for our
employees, tribal and non-tribal employees, and then we have to
close the Pueblos off. And, of course, all of the employees
like that because they get a day off.
A lot of the employees that are tribal members participate
in the ceremonies, so they have to take off anyway. There are
certain days throughout the year that we do that, and the
county government and even the State, they know these things
because sometimes we have to close the State highway for
certain periods of time that go through either our outskirts of
the Pueblo or whatever. So that is how that works in Isleta and
a lot of the other Pueblos in New Mexico.
Senator Moran. Governor, thank you.
To me, Mr. Chairman, that highlights the importance of
sovereignty. A reason for sovereignty is for Native Americans,
Indian Tribes to make decisions based upon Indian customs, the
relationship with the people, plus, it is also what the
Constitution allows. Thank you, Mr. Chairman.
The Chairman. Well, thank you, Senator Moran. Thank you for
bringing this bill and for asking so many questions.
I just have a couple of other questions to hopefully wrap
things up, things that haven't been covered by those who have
asked questions.
Mr. Welch, your written testimony highlights the framework
of labor relations for the State and the tribes in California.
Tribes were instrumental and actively involved in developing
the framework and then in balancing multiple interests for
tribal employees. Can you tell me how the National Labor
Relations Board engaged tribes in either learning about or
developing a framework for the employee-employer relations? How
should the NLRB also be involved in developing this sort of a
framework? How did they do it and what should it have been?
Mr. Welch. That is kind of easy on the first one. They did
not engage us at all. They did not come to us and ask us what
your customs and traditions are, are you a sovereign nation, or
anything to that sort. So basically they said here is our
ruling; deal with it.
So what they should do is respect us as our own government,
our own sovereign nation. California is unique because I think
there are 107 federally-recognized tribes in California, and in
San Diego County there are 17 reservations.
We don't even tell the other tribes how to run it. If they
do something that we don't think is right, we kind of like say,
well, they have the right to govern themselves; and that is
what the NLRB should do. We have the right to govern ourselves,
and we protect our team members as much as we can.
And we do have a union. So, like I said, 3 percent of our
workforce is unionized, but we take very good care of them.
When the non-union employees get a bonus, they get a bonus. It
would be nice if they could learn from tribes what is right and
what is wrong.
The Chairman. Thank you.
Mr. Guest, as you are well aware, the 2004 decision against
the San Manuel Band overturned many years of precedence that
had given parity to Indian Tribes under the National Labor
Relations Act as similarly given to State governments. Given
this abrupt turn of events, what protections do Indian Tribes
have absent this legislation? What would prevent additional
tribal sovereignty from being lost?
Mr. Guest. Well, I think that the challenge for tribes
continues to be in the Federal courts, and the issue of
sovereignty, as I was saying in my remarks to Senator Franken
in response. The D.C. Circuit went even further with respect to
describing tribal sovereignty on this continuum. Without this
legislation, tribes are going to continue to be faced, although
there may not be union organizing activity, and again, in
response to an earlier question, the difference here between
the NLRA and other Federal labor laws and employment laws is
the fact that under the NLRA outside third-parties can come
onto the reservation without permission from the tribe, can be
there. Any attempt to remove them would be considered an unfair
labor practice, actionable under the NLRA.
So the ability of tribes to exercise their authority as
governments is wholly diminished. They are not able to exclude.
If an employee is dismissed for certain reasons and the tribe
wants to exclude them for other reasons, such as drug charges,
again, it comes under the purview of the NLRA because he is a
former employee bringing an unfair labor practice against his
employer, the tribe.
So there are all types of areas. The licensing by tribes to
have non-Indian businesses coming onto the reservation, again,
under the NLRA called into question. So there are all kinds of
aspects for sovereignty to be diminished. It is just a matter
of time as we see more and more organizing.
The other place that I would just mention very quickly, Mr.
Chairman, is the fact that in one of the pieces of litigation,
Mr. Griffin mentioned the tribe, the Little River Band, the
union brought the action simply because the tribe had enacted a
labor ordinance. Back in 2005, it had enacted its own labor
ordinance to govern union organizing. And the union brought the
action, and the NLRB hid behind the fact that it was a union
bringing the action and not the NLRB itself bringing it as an
unfair labor practice. So the very ability of tribes to enact
laws is now being called into question.
The Chairman. Thank you.
Mr. Anderson, one final question. According to the Bureau
of Labor Statistics 2014, your home State of Minnesota union
membership a little above 14 percent, higher than the national
average. But as I understand, there are no unions at the
tribally-run businesses in your community. Is there a reason
there aren't any unions on the tribe's reservation? And how
does the tribe handle employee concerns or complaints?
Mr. Anderson. Well, at Shakopee, like the 86 percent of the
workforce that does not include unions, we would look at that
as, you know, we want to be able to be as fair as possible in
the application of the NLRA, so I think any State-run business
would think the same way. And it is fair to say that we don't
have any unions in our business, but with salaries and benefits
that out-compete others in the region, our workforce is pretty
happy. We mean to do that.
There was an all-time low in unemployment several years ago
and it made it hard to find good workers, and we went out and
established a new minimum rate out there. Burger King, perhaps
$8 to $10 an hour. Well, we went to $9 to $11 an hour. And our
benefit package includes a full complementary of holidays and
so forth that we want that employee.
So we look after them with the benefits and other salaries
that out-compete our competition. We have a long-established
employee rights commission that is modeled after some of the
best. We have our human resources department hired for that
specific purpose, for the purpose of human resource management
of our employees, and they bring to the table the best of a lot
of these plans, and we have a hearing examiner that provides
full due process. So we have not used that probably to the full
extent of how it is written.
The Chairman. Thank you.
I appreciate all the testimony from each and every one of
you today. Thank you for being here.
Senator Moran, thank you so very much for bringing this
very important matter to the attention of the Committee and to
the Senate.
The hearing record will be open for two weeks, if you have
additional comments you would like to submit.
I know Senator Heitkamp had some questions that she wasn't
able to orally bring to us today because of a conflict in her
schedule, but I know she would like to submit some in writing,
so we would ask that you respond to those questions in writing
in a timely manner.
Thank you so very much for being here today and, with that,
this hearing is adjourned.
[Whereupon, at 3:59 p.m., the Committee was adjourned.]
A P P E N D I X
Joint Prepared Statement of Hon. Bill Anoatubby, Governor, Chickasaw
Nation and Hon. Gary Batton, Chief, Choctaw Nation of Oklahoma
We are Bill Anoatubby, Governor of the Chickasaw Nation, and Gary
Batton, Chief of the Choctaw Nation of Oklahoma. We are honored to
submit this testimony on behalf of our Nations in support of S. 248,
the Tribal Labor Sovereignty Act.
The Chickasaw and Choctaw Nations are federally-recognized Indian
tribes with government-to-government relationships with the United
States, holding rights guaranteed under treaties dating to the 19th
century. Under those treaties, our Nations exercise rights of self-
government and the power of exclusion over our treaty territories in
southern and southeastern Oklahoma. The Nations also have the inherent
right, as recognized by federal law, to engage in and regulate economic
development and to raise governmental revenues from tribal economic
activities. And we exercise those rights, and in so doing raise
revenues that are critical to our ability to provide essential
governmental services to our citizens. These rights are directly
threatened by the National Labor Relations Board's current
interpretation of the National Labor Relations Act. What's more, we
have seen over the years an aggressive approach to enforcement by the
Board, which is an affront to the Nations' rights under federal law,
and to our dignity as sovereign Nations.
The Choctaw Nation of Oklahoma has nearly 200,000 members, making
it the third-largest tribe in the country. Its headquarters are located
in Durant, Oklahoma. The Choctaw Nation exercises governmental
authority over its treaty territory, which spans all or parts of 11
counties in southeastern Oklahoma. The Chickasaw Nation has 38,000
members, making it the thirteenth-largest tribe in the country, with
headquarters located in Ada, Oklahoma. The Chickasaw Nation exercises
governmental authority over a treaty territory covering all or parts of
13 counties in south-central Oklahoma. Both Nations exercise authority
over their territories pursuant to solemn treaty promises made by the
United States. In our Treaties, the Nations agreed, in exchange for
removing from our historic homelands east of the Mississippi, to
receive new homelands in what is now Oklahoma, where we would reside
and exercise rights of self-government. The Nations settled in these
new homelands after surviving removal from our ancestral lands and the
horrors of the Trail of Tears.
Our rights as sovereign Nations are critically important to us--
those rights secure our future, and are held under treaties that are
the law of the land. Under the 1830 Treaty of Dancing Rabbit Creek, the
Choctaw secured a new homeland, set aside in Article 2, to occupy and
govern so long as the Choctaw Nation ``shall exist as a Nation.''
Article 4 guaranteed that the Choctaw Nation would not be subject to
any laws other than its own laws, except those that Congress enacted to
govern Indian affairs, and secured to the Choctaw Nation jurisdiction
over ``all the persons and property'' within its territory. Article 12
secured to the Choctaw Nation the authority to exclude intruders from
its territory and obligated the United States to remove intruders and
keep them from entering Choctaw lands.
The Chickasaw Nation's territory was secured to it in the 1837
Treaty of Doaksville. In Article 1 of that Treaty, the Chickasaw agreed
to remove to a portion of the Choctaw treaty territory, which the
Chickasaw Nation would own and govern on the same terms as the Choctaw
Nation held its lands--that is, with the rights of self-government and
the power of exclusion. The 1837 Treaty made the Chickasaw Nation a
beneficiary of the earlier 1830 Treaty with the Choctaw Nation.
These rights were reaffirmed by treaties that both Nations signed
with the United States in 1855 and 1866. Because the Chickasaw and
Choctaw Nations hold their rights of self-government on the ``same
terms,'' each Nation has a vested interest in how the other's rights
are impacted by the actions of maverick agencies like the National
Labor Relations Board.
The Nations exercise their sovereign rights to govern their
territories and provide services to tribal citizens. Both Nations
operate their governments under Constitutions adopted by their citizens
and approved by the United States. Our Constitutions provide for three
branches of government: Executive, Legislative, and Judicial. Both
Nations provide extensive governmental services in their respective
territories through their respective Executive branches. Those services
include: law enforcement; healthcare provided through various
facilities, including hospitals, out-patient clinics, wellness centers,
nutrition centers, and other specialized programs; education services
as diverse as the needs of our people, including Headstart and
childcare programs, early childhood development services, adult
education programs, scholarship programs, and vocational training
programs. We also maintain family service programs that provide family
counseling, investigate child neglect or abuse, address domestic
violence, and assist in compliance with child support orders; and
cultural, language, and historical research and preservation programs.
The overwhelming majority of our funding for these services comes
from revenues generated from tribally-operated public gaming
facilities. The Chickasaw Nation's Division of Commerce, a division of
its Executive Branch, employs Chickasaw public employees in operating
gaming activities on numerous locations within its treaty territory,
and the net revenues from these activities, minus revenue sharing
payments to the state of Oklahoma under the Nation's gaming compact, go
to the Chickasaw Nation treasury to maintain Nation programs and
operations. The Choctaw Nation similarly owns and operates licensed
gaming facilities throughout its territory, and all of its gaming
revenues, after revenue sharing payments, are held by the tribal
government and spent to support the Nation's operations and the wide
array of governmental services described earlier. Both Nations also
operate a number of other businesses, although the National Labor
Relations Board has decided to target our publically operated gaming
establishments.
The Board's new interpretation of the National Labor Relations Act
is a direct attack on our treaty rights, including our ability to
function as governments dependent upon revenue generating activities
(which are our de facto tax base). That attack threatens our ability to
provide essential governmental services to our people. The full scope
of that threat became clear in 2011. What the Board did then, and what
it has done in the years since, shows its unwillingness to treat Indian
tribes fairly, and to accord them the dignity they deserve as sovereign
nations. In 2011, the Board filed an unfair labor practice charge
against the Chickasaw Nation, asserting jurisdiction over the Nation's
gaming activities in Thackerville, Oklahoma. Because of the threat that
Board jurisdiction poses to tribal sovereignty, the Chickasaw Nation
quickly sought a preliminary injunction in the United States District
Court for the Western District of Oklahoma, in Oklahoma City, that
would block the Board from proceeding any further.
In the district court, the Chickasaw Nation argued that the Board
could not exercise jurisdiction over the Nation because the Act does
not apply to Indian tribes and does not authorize the Board to take
actions that violate tribal sovereignty or tribal treaty rights. The
federal court agreed and enjoined the Board from proceeding. After that
decision was handed down, the Chickasaw Nation and the Board came to a
procedural accommodation through settlement discussions. Under the
settlement, the Chickasaw Nation agreed to litigate the issue of the
Board's jurisdiction before the full Board on a stipulated record and
on an expedited basis. The only issue before the Board would be the
legal question of whether the Board had jurisdiction over the Nation.
After this settlement was finalized, the Chickasaw Nation and the Board
asked the federal district court to modify the injunction to allow the
Board to hear the case on an expedited basis. In June 2012, the court
agreed to modify its injunction accordingly.
Initially, the Board complied with the modified Order. The
Chickasaw Nation, and the Choctaw Nation appearing as amicus, filed
briefs with the Board in November 2012, and the Board issued its
decision in July 2013. Not surprisingly, the Board found it had
jurisdiction over the Chickasaw Nation, relying on its recent
reinterpretation of the Act announced in its 2004 San Manuel decision.
The Chickasaw Nation immediately appealed to the Tenth Circuit, briefed
the case, and again the Choctaw Nation filed an amicus brief. But
before the Tenth Circuit could decide the case, the Supreme Court in
June 2014 handed down its Noel Canning decision. The Noel Canning
decision held that the Board did not have enough validly appointed
members to make any decisions in July 2013. So, in July 2014 the Tenth
Circuit sent the Chickasaw Nation's case back down to the Board and
told it to issue a new opinion. Since then, the Board has sat on the
Chickasaw Nation's case without taking any action, despite having
decided other similar cases. Recently we asked the federal court in
Oklahoma City to consider whether to restore its original 2011
injunction because the Board has failed to act expeditiously, defying
the court's 2012 Order.
The Board's failure to act promptly is unexplained. At about the
same time the Chickasaw Nation's case was remanded to the Board in 2014
(after the Noel Canning decision), so were two cases from the Sixth
Circuit, one involving the Little River Band of Ottawa Indians and the
other the Saginaw Chippewa Indian Tribe of Michigan. All three cases
involve the application of similar legal principles. But the Board has
treated the cases very differently. It quickly issued new opinions in
the Little River Band and Saginaw Chippewa cases by October 2014, and
those cases have since returned to the Sixth Circuit. Yet the Board has
done nothing in the Chickasaw Nation's case since it was remanded to
the Board nearly a year ago. The Chickasaw Nation asked the Executive
Secretary of the Board why there has been such a delay, and the
Executive Secretary said only that the case is ``under active
consideration.''
The Board's delay has had an impact on the order in which the
federal judicial system is considering challenges to the Board's
actions. The Sixth Circuit is proceeding in two cases now, while the
Tenth Circuit's consideration of the Chickasaw Nation's case is
delayed. The legal precedent in the Tenth Circuit is powerful for
Indian tribes and unfavorable for the Board. That is, of course, no
reason for delay, particularly in light of the federal government's
trust responsibility, which obligates the NLRB to engage in
consultation with Indian tribes, and to treat Indian tribes with the
respect to which they are entitled as sovereigns with a government-to-
government relationship with the United States. But the Board's delay
is contrary to our interests. And whether explained or not, it is
plainly contrary to the federal court order that ordered the Board to
decide the Chickasaw Nation's case on an expedited basis. Lengthy delay
is not expedition.
In sum, our experience in dealing with the NLRB shows that the
Board's interpretation of the NLRA is not the only thing it has gotten
wrong. It has also made the grave mistake of disregarding Indian tribal
sovereignty. Although the Federal Government has long treated Indian
tribes as partners, the Board lags far behind and treats them solely as
adversaries. And as our attorney's separate testimony to the Committee
demonstrates, it will not hesitate to disregard the words, context and
history of the NLRA, as well as decades of recognition that the Act
does not apply to Indian tribes, in order to continue its campaign to
establish control over the governmental institutions of Indian tribes
involved in gaming. It is doing so notwithstanding that Indian gaming
generates the revenues necessary to sustain the essential government
functions of the tribes that conduct gaming. And those tribes rely on
those revenues to serve some of the poorest and most marginalized
people in America.
This is why S. 248 is necessary. S. 248 will not just make it clear
that the Board's interpretation of the NLRA is patently wrong; it will
also protect Indian tribes from the Board's high-handed procedures and
unwillingness to honor its obligations to the tribes.
Thank you for the opportunity to offer this testimony on the
proposed Tribal Labor Sovereignty Act.
______
Prepared Statement of Hon. Larry Romanelli, Chief, Little River Band of
Ottawa Indians
I am Mr. Larry Romanelli, Ogema (Chief), of the Little River Band
of Ottawa Indians (the Band). I am honored to submit this testimony on
behalf of the Band in support of S. 248, the Tribal Labor Sovereignty
Act.
The Little River Band of Ottawa Indians is a tribal government with
a government-to-government relationship with the United States. The
Band's status was reaffirmed by Congress in 1994. See 25 U.S.C.
1300k to1300k-7. The Band's support for this legislation arises from
the need to protect the Band's ability to make the necessary decisions
for the best interests of the Band as a sovereign government, for our
tribal citizens, and for the people who willingly enter our territory
to work and play.
Our experience with the National Labor Relations Board (NLRB) and
its continuing persistence to run roughshod over our laws, without any
consideration of the harm to the Band, is sufficient reason for
Congress to enact this legislation. However, it is the NLRB's failure
to recognize its trust responsibility as an agent of the Federal
Government to protect and uphold our right to govern our lands and our
people that should guide Congress's hand in moving forward with this
important legislation.
The Little River Band of Ottawa has nearly 4,000 members. We are
located in our ancestral homeland in Michigan's Lower Peninsula along
the shore of Lake Michigan. When Congress reaffirmed the Band's
relationship with the federal government, it reaffirmed that the Band
has all the powers and rights enjoyed by all federally recognized
Indian tribes. Pursuant to the Restoration Act, the Band enacted a
Constitution in accordance with the Indian Reorganization Act, which
was approved by the Secretary of the Interior. The Constitution
confirmed the Band's three branches of government: a legislative
branch, through the office of the Tribal Council; the Executive,
through the office of the Tribal Ogema; and a judiciary, through the
Band's Tribal court. This Constitution provides that the Tribe has
jurisdiction over its members and territory and empowers the Tribal
Council to enact laws to govern the conduct of its members and other
persons within its jurisdiction.
As an exercise of this authority, the Council enacted the Fair
Employment Practices Code, which governs labor relations, including the
negotiation of the terms and conditions of continuing employment
relations under collective bargaining agreements. This law is the
result of considerable legislative process by the Tribal Council and
reflects the important policy choices necessary to ensure that the
needs of the tribal government are fairly balanced with the rights of
workers to engage in collective bargaining.
In doing so, the Band considered examples of public sector labor
laws from states and the federal government and enacted provisions to:
define the rights and duties of employers, employees, and labor
organizations within the Band's governmental operations with respect to
collective bargaining, including the scope of the duty to bargain in
good faith; require labor organizations engaged in activities within
the Band's governmental operations to hold a tribal license; provide a
process for defining appropriate bargaining units of employees;
standards for union election campaigns; procedures for union elections
and methods for resolving disputes that could arise; establish
procedures and remedies for alleged unfair labor practices; prohibit
strikes against the Band's governmental operations; and dispute/impasse
resolution processes, including a waiver of tribal sovereign immunity
for actions in tribal court. Multiple bargaining elections have taken
place at Little River pursuant to this law. The Band's law is not anti-
union, but it is critically necessary to ensure the integrity of the
Band's governmental operations and to protect all governmental
activities. Unfortunately, for the better part of the last decade the
Band has been engaged in a struggle with the NLRB regarding the Band's
sovereign authority to enact and enforce this law.
This Band's gaming operation exists by virtue of the Band's
governmental authority, and is operated pursuant to the Indian Gaming
Regulatory Act, 25 U.S.C. 2701-2721. Pursuant to IGRA, the Band
entered into a compact with the State of Michigan to conduct Class III
gaming activities on the Band's trust land in Manistee, Michigan.
Further, as mandated by IGRA and the Band's gaming ordinance (which is
required by IGRA and approved by the National Indian Gaming Commission)
the Band has sole proprietary interest and responsibility for the
gaming at its casino; the Band must license key employees; and all
revenues generated from the casino are governmental revenues of the
Band which must be used only for the Band's governmental services, the
general welfare of the Band and its members, tribal economic
development, to support local governmental organizations, or to donate
to charitable organizations. See 25 U.S.C. 2710(b)(2)
(A),2710(b)(2)(B).
These revenues help support the wide array of services that the
Band provides to our members, including health services; counseling and
support for tribal members and children; natural resource management;
public safety; a tribal judiciary; and prosecutorial services. The
Band's gaming revenues account for 100 percent of the budget for our
Judiciary, including our prosecutor's office; 80 percent of the budget
for mental health and substance abuse services at our clinic; 77
percent of the budget for our Department of Family Services; and 62
percent of the budget for our Department of Public Safety. Without
these revenues our government would essentially close down.
The Little River Casino is fulfilling the promise that Congress
hoped for when it enacted IGRA: it is providing tribal financial
security to fulfill the needs that Congress failed to meet for more
than a century. All this is threatened by the actions of the NLRB,
which has failed to recognize our sovereignty and the intent of
Congress to provide Tribes a pathway to generate governmental revenues
where none had existed before.
In March, 2008, the Local 406 of the International Brotherhood of
Teamsters filed charges with the NLRB alleging that the very enactment
of the Band's Fair Employment Practices Code violated the National
Labor Relations Act (NLRA). The NLRB agreed and launched a full scale
attack on the Band. This represents a direct attack on our sovereignty,
something the Federal Government has a duty to protect and enhance, not
to undermine and destroy.
Specifically, the NLRB found it to be unfair labor practices for
the Band to enact a law that requires labor organizations doing
business within the Casino to obtain a license from the Band; excludes
alcohol and drug abuse policies from collective bargaining
negotiations; and prohibits strikes. Yet the entire FEP Code was
enacted as a balance of competing tribal interests in running its
governmental operations consistent with the Indian Gaming Regulatory
Act, tribal interests, and employee interests. The three targeted
provisions in particular demonstrate why the balance our tribal
government struck was necessary. But by characterizing each of these
tribal government judgments to be an unfair labor practice, the NLRB
has directly attacked our government and jeopardized the Tribe's very
future.
For instance, requiring licensure of unions and individuals seeking
to organize at the Band's casino is critical to ensuring the integrity
of the Tribe's gaming operation. The legislative history of the Indian
Gaming Regulatory Act, (including hearings held after enactment)
included a great deal of discussion regarding the potential and the
need to prevent the infiltration of organized crime into tribal gaming
operations. See generally, Gaming Activities on Indian Reservations and
Lands, S. Hrg. 100-341; Hearing on S. 2230, Indian Gaming Regulatory
Act Amendments Act of 1994, S. Hrg. 103-874. One way to address this is
to require licensure and background checks of key parties conducting
any activity in a Tribe's casino. Like several States, including
Nevada, Michigan and Pennsylvania, the Little River Band determined
that a union seeking to do its business in its Casino must be certified
(another term for licensed). This is simply good policy and is
consistent with Congress's interest in ensuring that organized crime
does not infiltrate Indian gaming. Yet, the NLRB has held that the
Band's policy in this area is an unfair labor practice. If that is the
case, then Nevada's, Michigan's and Pennsylvania's certification
policies are equally offensive and must be struck down.
Secondly, prohibiting collective bargaining regarding the Band's
alcohol and drug testing policies represents a careful decision by the
Tribal Government that in order to work for the Band you must be drug
and alcohol free. This decision was based on the well-documented and
devastating impacts of drugs and alcohol in tribal communities, and on
the Band's decision to stem this tide in our community by enacting
strict testing requirements. Moreover, federal law requires all Tribes
to maintain a drug free work place. It would be difficult (if not
unlawful) for the Band to have one law that is necessary to comply with
federal law for one set of its public workforce, and then have a
different law for a different set of its public workforce subject to a
collective bargaining agreement. But by determining the prohibition on
bargaining over the Band's drug and alcohol testing law is an unfair
labor practice, the NLRB has put the Band's compliance with the Federal
drug free work place laws in jeopardy, and thus put at risk all federal
funds that we receive.
Finally, NLRB's directive to the Band to permit strikes, and to
repeal the provisions of the code that prohibit strikes, represents a
direct threat to the Tribal Government's continued operation. A strike
against the Band's gaming operations would be a direct assault on the
Band's sovereignty. It would threaten the continuation of most
essential governmental functions, putting our citizenry at grave risk.
The Band's decision to prohibit strikes in all its operations is no
different than the decisions of many States that prohibit strikes,
including New York's prohibition against strikes at its off-track
betting facilities and Massachusetts's prohibition against strikes by
its lottery employees.
Like these States, the Band balanced the need to fairly resolve
impasses with its need to ensure its operations remain open. It did
this by allowing binding arbitration. By this means, the workers'
interests are fairly addressed, governmental operations remain open,
and the critical flow of governmental revenues to fund essential
governmental services is protected. This is all the more critical for a
governmental gaming establishment in rural Michigan, because if there
were a strike there would never be a sufficient number of licensed and
qualified workers that could be called in as replacements. To be clear,
a strike would shutter the casino. This would unfairly favor the union;
as a mere threat of a strike would be the only thing needed to force
the government to capitulate to the union's demands. The public at
large--our tribal citizenry--would be held hostage to union demands. As
a result there would never be good faith negotiations, just union
demands to which the Tribal Government would have to agree. In this
very real way, the Band loses its power to govern itself, for it has to
do whatever the union demands or risk shutting down. Both the Band, and
the United States as trustee for the Band, have a responsibility to
keep this from happening.
These three examples underscore why the NLRA was never intended,
and is not structured or designed, either to apply to government
employers or to permit a government's law to be struck down. Nothing in
the Act is tailored to respond to the unique challenges and obligations
facing governments, which is why for more than 70 years the Act was
found not to apply to any government, including tribal governments.
Unfortunately, the NLRB recently changed course. Even though it has
an obligation under the United States' trust responsibility and
President Obama's 2009 Memorandum on Tribal Consultation to consult
with Tribes about the enforcement of federal policies that affect
Indian Tribes, the Board has failed to consult and disregarded our
views. At this point it is perfectly plain the Board will only stop if
Congress tells it to.
Congress can do that by passing S. 248. S. 248 adds language to the
Act to make it unmistakably say what was clear to everyone for decades:
the NLRA does not apply to Indian Tribes. This is why S. 248 is
necessary and why Congress must act now. I thank the Committee for the
opportunity to submit this testimony for the record.
______
Joint Prepared Statement of the Chickasaw Nation, Choctaw Nation,
Forest County Potawatomi Community, Pueblo of Isleta, Little River Band
of
Ottawa Indians and Puyallup Tribe of Indians
I. Introduction
The enactment of S. 248, the Tribal Labor Sovereignty Act, is
essential to protect tribal sovereign authority from the unlawful
actions of the National Labor Relations Board (``Board''). S. 248 would
do so by reaffirming that the National Labor Relations Act (``NLRA'' or
``Act''), 29 U.S.C. 151-169, does not apply to Indian tribes
exercising their sovereign authority in Indian country. Congress never
intended to apply the NLRA to Indian tribes, as the text and
legislative history of the Act (neither of which even mentions Indian
tribes) confirm. Indeed, Congress did not intend to apply the Act to
any sovereign. Instead, it exempted sovereign entities from the Act's
definition of ``employer,'' 29 U.S.C. 152(2), in terms that include
every domestic sovereign in the United States. Indian tribes are, of
course, sovereign entities, and they too are exempt from the Act under
152(2). And for decades the Board so held. Fort Apache Timber Co.,
226 N.L.R.B. 503 (1976). But in 2004, the Board did a complete
turnabout, ruling that the NLRA applies to Indian tribes, and that the
Board will decline to exercise jurisdiction over an Indian tribe only
when it decides the tribe is acting as a sovereign. San Manuel Indian
Bingo & Casino, 341 N.L.R.B. 1055 (2004). The Board has no authority to
decide when a tribe is not a sovereign--under the NLRA or any other
law. As the Supreme Court recent made clear, ``the special brand of
sovereignty the tribes retain--both its nature and extent--rests in the
hands of Congress.'' Michigan v. Bay Mills Indian Cmty., 134 S. Ct.
2024, 2037 (2014).
S. 248 is also urgently needed because the Board's efforts threaten
the self-determination policy's firm commitment to achieving tribal
self-sufficiency through tribal economic development. Under the San
Manuel decision, the Board claims that tribal governments are acting as
sovereigns only when they ``are acting with regard to . . . traditional
tribal or governmental functions,'' not when they are engaged in what
the Board calls ``commercial'' activity. 341 N.L.R.B. at 1063. Applying
that test, the Board continues to rule that Indian gaming activity is
``commercial'' and therefore subject to the NLRA. E.g., Chickasaw
Nation, 359 N.L.R.B. No. 163 (2013), vacated & remanded sub nom.
Chickasaw Nation v. NLRB, Nos. 13-9578, 13-9588 (10th Cir. July 22,
2014); Soaring Eagle Casino & Resort, 361 N.L.R.B. No. 73 (2014), on
appeal sub nom. Soaring Eagle Casino & Resort v. NLRB, Nos. 14-2405,
14-2558 (6th Cir. argued Apr. 29, 2015); Little River Band of Ottawa
Indians Tribal Gov't, 361 N.L.R.B. No. 45 (2014), enforcement petition
docketed sub nom. NLRB v. Little River Band of Ottawa Indians Tribal
Gov't, No. 14-2239 (6th Cir. Sept. 26, 2014).
The San Manuel test is contrary to federal law because Indian
tribes undertake economic development through their governments in the
exercise of their sovereign authority, New Mexico v. Mescalero Apache
Tribe, 462 U.S. 324, 335 (1983). And they retain their sovereign
authority when they engage in economic activity unless Congress has
abrogated that authority in clear terms. See Bay Mills, 134 S. Ct. at
2037. Congress did not do so in the NLRA. Furthermore, in Bay Mills,
the Supreme Court declined to create a commercial activity exception to
tribal sovereign immunity--the same distinction that the San Manuel
test relies on--holding that ``it is fundamentally Congress's job, not
[the Court's], to determine whether or how to limit tribal immunity.''
Bay Mills, 134 S. Ct. at 2037. If the Supreme Court will not make that
distinction in the absence of clear congressional authorization neither
can the Board.
Nevertheless, the Board asserts that Indian gaming is a ``typical
commercial enterprise,'' San Manuel, 341 N.L.R.B. at 1063. Here too,
federal law holds otherwise. Indian gaming is a sovereign function.
Congress enacted the Indian Gaming Regulatory Act to ``provide a
statutory basis for the operation of gaming by Indian tribes as a means
of promoting tribal economic development, self-sufficiency, and strong
tribal governments,'' 25 U.S.C. 2702(1) (emphasis added), and ``a
means of generating tribal governmental revenue,'' id. 2701(1)
(emphasis added). Prior to IGRA, the Supreme Court had reached the same
conclusion, holding that Indian gaming furthers ``the congressional
goal of Indian self-government, including its `overriding goal' of
encouraging tribal self-sufficiency and economic development,''
California v. Cabazon Band of Mission Indians, 480 U.S. 202, 216 (1987)
(citation omitted) (emphasis added), and emphasizing that ``[s]elf-
determination and economic development are not within reach if the
Tribes cannot raise revenues and provide employment for their
members,'' id. at 219. As one federal appellate court observed, in
conducting gaming, ``[t]he Tribes . . . are engaged in the traditional
governmental function of raising revenue. They are thereby exercising
their inherent sovereign governmental authority.'' Indian Country,
U.S.A., Inc. v. Oklahoma ex rel. Okla. Tax Comm'n, 829 F.2d 967, 982
(10th Cir. 1987) (citation omitted) (emphasis added).
S. 248 will stop the Board's unauthorized campaign to apply the
NLRA to Indian tribes by reaffirming that Indian tribes, like all other
sovereign entities in the United States, are exempt from the Act. S.
248 would do so simply by declaring that the definition of ``employer''
in the Act does not include ``any enterprise or institution owned and
operated by an Indian tribe and located on its Indian lands . . . .''
S. 248, 2(1). Passage of S. 248 is critical to the protection of
tribal self-government and to the tribes' pursuit of self-sufficiency
through the traditional governmental function of raising revenue to
operate their governments and provide services to their citizenry.
II. Congress Never Intended To Apply The NLRA To Indian Tribes, And
Instead Exempted All Sovereign Entities From The Act
There is no basis on which the Board may seek to apply the NLRA to
Indian tribes in the first place--Congress never even considered that
possibility. It did, however, deliberately exempt all sovereign
employers from the Act. Accordingly, there is absolutely no basis for
the Board's claim that Congress delegated it authority to apply the
NLRA to Indian tribes, much less the power to decide when Indian tribes
are acting in their sovereign capacity and when they are not. Thin air
will not support that claim. And as we show first, history makes that
claim untenable.
A. In 1935, Congress Reaffirmed That Indian Tribes Are Sovereign
Entities, With
Inherent Sovereign Authority To Engage In Economic Development
Activities To Enhance Tribal Self-Government.
The year before the NLRA was passed, Congress made the restoration
of tribal self-government the cornerstone of federal Indian policy. In
the Indian Reorganization Act of 1934 (``IRA''), 25 U.S.C. 461-479,
Congress reaffirmed that Indian tribes are sovereign entities, with
inherent sovereign authority to govern their reservations, and
committed the federal government to restoring tribal self-government
through tribal economic development. President Roosevelt hailed the IRA
as ``embod[ying] the basic and broad principles of the administration
for a new standard of dealing between the Federal Government and its
Indian wards.'' Letter from President Franklin D. Roosevelt to Senator
Burton K. Wheeler (April 28, 1934), S. Rep. No. 73-1080, at 3 (1934).
And that ``new standard of dealing'' was desperately needed.
For decades prior to the enactment of the IRA, the Federal
Government had been committed to the destructive allotment policy,
which sought the ``gradual extinction of Indian reservations and Indian
titles,'' Montana v. United States, 450 U.S. 544, 559 n.9 (1981)
(quoting Draper v. United States, 164 U.S. 240, 246 (1896)), and ``the
ultimate destruction of tribal government,'' id. Under that policy,
tribal lands were allotted and the surplus sold to non-Indians, and the
governmental institutions of Indian tribes had ``very largely
disintegrated or been openly suppressed'' by the Interior Department.
78 Cong. Rec. 11,729 (1934) (remarks of Rep. Howard). Indeed, at that
time ``the Indian agent located upon an Indian reservation was a
czar,'' as Senator Wheeler stated in the Senate debate on the IRA. Id.
at 11,125.
The suffering of Indian tribes under the allotment policy was
documented in the 1928 Meriam Report, which the Federal Government
commissioned the Institute for Government Research to prepare to
examine the status of American Indians. See Instit. for Gov't Research,
The Problem of Indian Administration (Lewis Meriam et al. eds., 1928).
The report, which provided much of the impetus for enactment of the
IRA, found that: ``[a]n overwhelming majority of the Indians are poor,
even extremely poor, and they are not adjusted to the economic and
social system of the dominant white civilization.'' Id. at 3. Jobs were
few, and economic development efforts were practically non-existent. An
Indian ``generally ekes out an existence through unearned income from
leases of his land, the sale of land, per capita payments from tribal
funds, or in exceptional cases through rations given him by the
government.'' Id. at 5. ``Their education is usually slight, their
knowledge of English poor, and their experience in business almost
entirely wanting.'' Id. at 430.
Congress enacted the IRA in response to these conditions. As the
Supreme Court would later observe, ``[t]he overriding purpose of . . .
[the IRA] was to establish machinery whereby Indian tribes would be
able to assume a greater degree of self-government, both politically
and economically.'' Morton v. Mancari, 417 U.S. 535, 542 (1974). To
enhance self-government, the IRA authorized Indian tribes to adopt
constitutions exercising ``all powers vested in any Indian tribe or
tribal council by existing law,'' as well as additional powers,
including inter alia, the power to control the sale and disposition of
tribal lands and tribal assets and to negotiate with federal, state,
and local governments. 25 U.S.C. 476(e). The IRA also recognized
tribes' inherent sovereign authority to govern themselves under
procedures of their own choice, whether specified in the IRA or not.
Id. 476(h). And it stopped any further allotment of tribal land. Id.
461. To facilitate tribal economic development, the Act authorized
the Secretary of the Interior to issue charters of incorporation
authorizing Indian tribes to organize and operate business
corporations, id. 477, and established a revolving fund ``for the
purposes of promoting the economic development of . . . tribes and
their members,'' id. 470. Two years later (and thus one year after
the NLRA was enacted), Congress extended the same machinery to Indian
tribes in Oklahoma through the Oklahoma Indian Welfare Act of 1936
(``OIWA''), 25 U.S.C. 501-509.
The IRA and OIWA made emphatically clear that Indian tribes are
sovereign entities possessing inherent sovereign authority, and they
committed the federal government to enhancing tribal self-government
through tribal economic development. It is absurd for the Board now to
suggest that, at the very same time Congress adopted a ``new standard
of dealing'' with the tribes that reaffirmed, restored and strengthened
their sovereign status, Congress made Indian tribes the only sovereign
entities in the United States that are subject to NLRA's private
industrial labor regime--and that Congress did this bizarre about-face
without whispering a word about it to anyone. In fact, Congress did
nothing of the kind.
B. The NLRA's Text And Legislative History Plainly Show That Congress
Did Not Apply It To Indian Tribes, And That the NLRA's
Exemption for Sovereign
Entities Applies To Indian Tribes
1. Indian tribes are not subject to the NLRA because its text and
legislative history say nothing about Indian tribes.
The NLRA does not mention Indian tribes anywhere in its text or
legislative history--not in the various drafts of the bill that become
the NLRA, not in the congressional debates over its terms, and not in
the hearings held and reports produced by Congress concerning the Act.
In short, Congress never even considered applying the NLRA to tribes.
That is hardly surprising, as the problems on which the NLRA was
focused were far removed from those Congress had just addressed in the
IRA. At the time of the NLRA, ``congressional attention [was] focused
on employment in private industry and on industrial recovery.'' NLRB v.
Catholic Bishop of Chi., 440 U.S. 490, 504 (1979) (citations omitted).
The principle purpose of the NLRA was to ``eliminate the causes of
certain substantial obstructions to the free flow of commerce and to
mitigate and eliminate these obstructions . . . '' 29 U.S.C. 151. The
legislative history showed that Congress sought to address ``an ever-
increasing stoppage of the free flow of commerce between the several
States and between this and other countries as a result of disturbances
in some of our larger industrial enterprises.'' S. Rep. No. 73-1184, at
10-11 (1934), reprinted in 1 NLRB, Legislative History of the National
Labor Relations Act, 1934 at 1111 (1949) [hereinafter NLRB Hist.]
(emphasis added). The underlying concern was that the balance of power
between private employers and employees tipped too far in favor of the
employers, which had detrimental effects on commerce that had to be
addressed, see 78 Cong. Rec. 3443 (1934) (statement of Sen. Wagner upon
introducing S. 2926), reprinted in 1 NLRB Hist. at 15-16. To remedy
these problems, Congress enacted the NLRA to address ``the right of
self-organization of employees in industry . . . '' 79 Cong. Rec.
10,720 (1935) (statement of President Roosevelt upon signing S. 1958),
reprinted in 2 NLRB Hist. at 3269 (emphasis added).
Not one word in the NLRA suggests that it was intended to affect
the right of self-government of Indian tribes, and to limit, sub
silentio, their inherent sovereign authority, which Congress had
recognized just the year before in enacting the IRA. The contrary
holding of San Manuel is therefore wrong and unsupportable.
2. Congress exempted sovereign entities from the Act, and because
Indian tribes are sovereign entities, they too are exempt.
There is yet another reason that the Act does not apply to Indian
tribes: Congress exempted sovereign entities in section 2(2) of the
NLRA, 29 U.S.C. 152(2). Sovereign entities were exempted from the
NLRA right from the start, with little fanfare. Under the original
bill, the term employer was defined to exclude ``the United States, or
any State, municipal corporation, or other governmental instrumentality
. . . '' S. 2926, 73rd Cong. 3(2) (original Senate print, Mar. 1,
1934), reprinted in 1 NLRB Hist. at 2, and in the years leading up to
1935, Indian tribes were generally considered to be instrumentalities
of the United States, United States v. Rickert, 188 U.S. 432, 437
(1903) (state taxation of Indian land barred because ``[t]o tax these
lands is to tax an instrumentality employed by the United States'').
See also, Act of June 20, 1936, ch. 622, 2, 49 Stat. 1542 (codified
as amended at 25 U.S.C. 412a) (declaring Indian homesteads ``to be
instrumentalities of the Federal Government''). A later version revised
the sovereign exemption to state that the term employer ``shall not
include the United States, or any State or political subdivision
thereof . . . '' S. 1958, 74th Cong. 2(2) (final print, July 5,
1935), reprinted in 2 NLRB Hist. at 3271. The sovereign exemption
generated only modest attention. The Senate Report accompanying the
original bill does not mention it, though it notes that the definition
of ``employer'' is important. S. Rep. No. 73-1184, at 3 (1934),
reprinted in 1 NLRB Hist. at 1102. See also S. Rep. No. 74-573, at 6
(1935), reprinted in 2 NLRB Hist. at 2305 (also omitting any discussion
of the sovereign exemption).
The witness testimony on the issue confirms Congress's intent to
exempt all governments from the Act, whether engaged in business
activities or not. J.W. Cowper of John W. Cowper Co., Inc., complained
that the exception for governmental bodies ``may be reasonable enough
if it applies purely to governmental agencies but where these
governmental divisions are engaged in pursuits, competing with private
enterprise, then there should be no exception and such agencies should
be under the same restrictions as a corporation or private employer.''
To Create A National Labor Board: Hearings Before the Comm. on Ed. &
Labor on S. 2926, 73d Cong. 295 (1934) (statement of John W. Cowper,
President, John W. Cowper Co.), reprinted in 1 NLRB Hist. at 325.
Objecting more broadly, the executive director of the International
Juridical Association testified that his group could find ``no reason
why the United States should be exempted from the employers covered by
the act and, therefore, urge the amendment of section 3 (2) by deleting
the United States from the exemption.'' Id. at 1017 (brief of Isadore
Polier, Exec. Dir., Int'l Juridical Ass'n), reprinted in 1 NLRB Hist.
at 1055. But Congress neither deleted the exclusion nor limited it in
the manner Mr. Cowper and Executive Director Polier urged. See also
Labor Disputes Act: Hearings Before the H. Comm. On Labor on H.R. 6288,
74th Cong. 179 (1935) (statement of Francis Biddle, Chairman, NLRB),
reprinted in 2 NLRB Hist. at 2653 (supposing that the reason
governmental entities were excluded was so as not to ``overload the
bill'').
Congress instead excluded all sovereigns from the Act. It did so by
stating illustratively that ```employer' includes 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, or any State or political subdivision thereof . .
. '' 29 U.S.C. 152(2) (emphasis added). The examples used in the text
are not an exclusive list--the exemption applies to all domestic
sovereigns, whether or not named in 152(2), as the Board has long
recognized (with the exception of its turnabout in the San Manuel
decision). In its very first regulations, the Board so construed
1A152(2) by recognizing the District of Columbia and all United States
territories and possessions as exempt, though none are named in
1A152(2). 29 C.F.R. 102.7 (``The term State as used herein shall
include the District of Columbia and all States, Territories, and
possessions of the United States.'') (emphasis added). And some 40
years after the NLRA was enacted, when the question of whether the Act
applied to Indian tribes arose, the Board ruled that tribal
governments, too, are exempt from the Act: ``it is clear beyond
peradventure that a tribal council such as the one involved herein--the
governing body on the reservation--is a government both in the usual
meaning of the word, and as interpreted and applied by Congress, the
Executive, and the Courts'' and that ``the Tribal Council, and its
self-directed enterprise on the reservation that is here asserted to be
an employer, are implicitly exempt as employers within the meaning of
the Act.'' Fort Apache, 226 N.L.R.B. at 506 (emphasis added) (footnotes
omitted). The Board further explained that, just as the Court in NLRB
v. Natural Gas Utility District, 402 U.S. 600, 604 (1971), had held
that a utility district formed by private individuals was a political
subdivision exempt under 152(2) because it was administered by
individuals responsible to public officials, ``[s]o here we conclude
that the Fort Apache Timber Company is an entity administered by
individuals directly responsible to the Tribal Council of the White
Mountain Apache Tribe, hence exempt as a governmental entity recognized
by the United States, to whose employees the Act was never intended to
apply.'' Id. at 506, n.22 (emphasis added).
The courts, too, have recognized the broad ``sovereign'' exemption
accorded under 152(2), holding that governmental employers excluded
by its terms include the Port Authority of New York and New Jersey,
Brown v. Port Auth. Police Superior Officers Ass'n, 661 A.2d 312, 315-
16 (N.J. Super. Ct. App. Div. 1995), the Commonwealth of Puerto Rico's
Maritime Shipping Authority, Chaparro-Febus v. Int'l Longshoremen
Ass'n, Local 1575, 983 F.2d 325, 329-30 (1st Cir. 1993), and the Virgin
Islands Port Authority, V.I. Port Auth. v. SIU de P.R., 354 F. Supp.
312, 312 (D.V.I. 1973). None of these entities are listed in 152(2),
all arguably engage in commercial activities, yet all have correctly
been held to be exempt governmental employers.
That Congress never intended to apply the NLRA to sovereign
entities, including Indian tribes, is confirmed by the 1947 amendments
to the Act, enacted as the Labor Management Relations Act (``LMRA''),
Pub. L. No. 80-101, 61 Stat. 136. The LMRA authorized labor
organizations to sue employers in federal court to enforce collective
bargaining agreements. 29 U.S.C. 185(a). But in so doing, it did not
abrogate the sovereign immunity of any government, tribal or otherwise,
even though the sovereign immunity of Indian tribes was by then well
established. United States v. U.S. Fid. & Guar. Co., 309 U.S. 506, 512
(1940). If Congress had viewed the NLRA as applicable to Indian tribes,
or indeed any other sovereign, it would have waived their immunity to
permit enforcement of collective bargaining agreements. That it did not
do so only makes sense if the Act never applied to them in the first
place.
Nevertheless, the Board ruled in San Manuel that Indian tribes are
subject to the NLRA, insisting that because tribes are not named in
152(2), they are subject to the Act. 341 N.L.R.B. at 1058. For the
reasons just shown, that contention is wrong. Indeed, the Board's new
position is actually done in by its own hand--its concession that
neither the text nor the legislative history of the NLRA mention Indian
tribes, Sac & Fox Indus., Ltd., 307 N.L.R.B. 241 (1992), and its prior
recognition that ``the Act was never intended to apply'' to Indian
tribes, Fort Apache, 226 N.L.R.B. at 506 n.22.
III. Applying The NLRA To Indian Tribes Violates Federal Law and
Abrogates The Inherent Sovereign Authority On Which Indian
Tribes Rely to Pursue Self-Government And Self-Sufficiency
Under The Self-Determination Policy
Indian tribes--with the strong support of Congress--are pursuing
tribal self-government and self-sufficiency through economic
development, including Indian gaming conducted under the Indian Gaming
Regulatory Act of 1988, 25 U.S.C. 2701-2721. Since the self-
determination policy was announced by President Nixon in 1970, Indian
tribes have relied on their inherent sovereign authority to engage in
economic activity to raise revenue to operate their governments and
provide essential governmental services. And they have made significant
progress--improving health and education services, building clinics,
courthouses, and roads, and restoring the vibrancy of Indian
communities.
The Board's effort to apply the NLRA to Indian tribes violates
federal law because it interferes with tribal sovereign authority in
the absence of clear congressional authorization. And the Board's San
Manuel test compounds the illegality of its actions. Under that test,
the Board claims authority to decide when Indian tribes are acting as a
sovereign, and when they are acting as a commercial enterprise, and
asserts exclusive jurisdiction over Indian tribes in all matters it
deems to be commercial. But the Supreme Court has held that very
distinction--between commercial and governmental activity--to be one
that only Congress can make. See Bay Mills, 134 S. Ct. at 2037.
Furthermore, in applying this test, the Board rejects the determination
already made by Congress and the federal courts that Indian tribes
engage in economic activity--including Indian gaming--as a sovereign
function. Instead, the Board deems tribal gaming facilities, ``typical
commercial enterprise[s].'' San Manuel, 341 N.L.R.B. at 1063. That test
is contrary to federal policy and law, and imposing it on Indian tribes
would abrogate their inherent sovereign authority, as we show below.
A. Congress And The Federal Courts Are Committed to The Pursuit of
Tribal Self-Government And Self-Sufficiency Through Tribal
Economic Development
1. Congress made tribal economic development a cornerstone of the self-
determination policy.
Under the self-determination policy, Indian tribes are pursuing
tribal self-government and self-sufficiency through the exercise of
their inherent sovereign authority to engage in economic activity. In
so doing, Indian tribes are raising revenue to operate their
governments and provide essential governmental services. This is
exactly how Congress intended that the self-determination policy would
work. In announcing the self-determination policy, President Nixon
declared that ``it is critically important that the Federal government
support and encourage efforts which help Indians develop their own
economic infrastructure.'' Message from the President of the United
States Transmitting Recommendations for Indian Policy, H.R. Doc. No.
91-363, at 7 (1970). Congress agreed, and in the Indian Self-
Determination and Education Assistance Act of 1975, 25 U.S.C. 450-
450n, declared that ``the United States is committed to supporting and
assisting Indian tribes in the development of strong and stable tribal
governments, capable of administering quality programs and developing
the economies of the respective communities.'' 25 U.S.C. 450a(b). And
since then Congress's support for the tribes' pursuit of self-
sufficiency through tribal economic development has been steadfast.
E.g., Indian Tribal Energy Development and Self-Determination Act of
2005, 25 U.S.C. 3501-3506 (establishing Indian energy programs
within the Department of Interior and the Department of Energy in order
to ``further the goal of Indian self-determination'' and ``assist
consenting Indian tribes'' in developing tribal energy resources);
Native American Business Development, Trade Promotion and Tourism Act
of 2000, 25 U.S.C. 4301-4307 (``the United States has an obligation
to guard and preserve the sovereignty of Indian tribes in order to
foster . . . economic self-sufficiency among Indian tribes'').
The Supreme Court has given robust support to Congress' efforts in
this arena. See Cabazon, 480 U.S. at 216-18 (describing ``Indian
sovereignty and the congressional goal of Indian self-government,
including its `overriding goal' of encouraging tribal self-sufficiency
and economic development'' as ``important federal interests,'' and
listing statutes, regulations, and Presidential statements supporting
self-determination through economic development, including through
gaming); Mescalero Apache Tribe, 462 U.S. at 334-35 (``Congress'
objective of furthering tribal self-government encompasses far more
than encouraging tribal management of disputes between members, but
includes Congress' overriding goal of encouraging `tribal self-
sufficiency and economic development.''') (citation omitted).
2. Congress and the courts have both determined that Indian gaming is a
governmental activity, and that activity has significantly
enhanced tribal self-sufficiency.
The most significant of the measures enacted by Congress to further
tribal self-sufficiency is the Indian Gaming Regulatory Act of 1988
(IGRA). 25 U.S.C. 2701-2721. IGRA authorizes Indian tribes to
operate gaming on Indian lands ``as a means of promoting tribal
economic development, self-sufficiency, and strong tribal
governments,'' id. 2702(1); see also 2701(4) (defining these as
principal goals of the Federal Indian policy), and ``generating tribal
governmental revenue,'' id. 2702(3). IGRA recognizes that Indian
tribes have the ``exclusive right to regulate Indian gaming'' in their
sovereign capacity, id. 2701(5), and provides a statutory basis for
tribes to exercise that regulatory authority, id. 2702(2). That
Indian tribes conduct gaming under IGRA in their sovereign capacity
could not be clearer--indeed, IGRA expressly requires that Indian
tribes enact ordinances which provide ``the Indian tribe will have the
sole proprietary interest and responsibility for the conduct of any
gaming activity'' under the Act. Id. 2710(b)(2)(A), (d)(1)(A)(ii).
And even before IGRA was enacted, the Supreme Court had held that
Indian gaming furthers ``the congressional goal of Indian self-
government, including its `overriding goal' of encouraging tribal self-
sufficiency and economic development.'' Cabazon, 480 U.S. at 216
(citation omitted) (emphasis added), underscoring that ``[s]elf-
determination and economic development are not within reach if the
Tribes cannot raise revenues and provide employment for their
members,'' id. at 219. As one federal appellate court observed, in
conducting gaming, ``[t]he Tribes . . . are engaged in the traditional
governmental function of raising revenue. They are thereby exercising
their inherent sovereign governmental authority.'' Indian Country,
U.S.A., 829 F.2d at 982 (citations omitted) (emphasis added).
Tribes use the revenues from Indian gaming to fund governmental
services. Indeed, IGRA requires that Indian tribes use net revenues
from gaming ``to fund tribal government operations or programs; to
provide for the general welfare of the Indian tribe and its members; to
promote tribal economic development; to donate to charitable
organizations; or to help fund operations of local government agencies
. . . '' 25 U.S.C. 2710(b)(2)(B), (d)(1)(A)(ii). Indian tribes use
gaming revenues to fund essential governmental functions, such as law
enforcement, water treatment and sewage systems, road construction,
education, housing, and resource management. Nat'l Gambling Impact
Study Comm'n, National Gambling Impact Study Commission Final Report 6-
14 to -15 (1999) (quoting tribal leaders' testimony to the Commission),
available at http://govinfo.library.unt.edu/ngisc/reports/6.pdf; Ariz.
Indian Gaming Ass'n, Annual Report FY 2007 (2008), available at http://
www.azindiangaming.org/images/annualreports/AIGA_AR07_LR.pdf. See Bay
Mills, 134 S. Ct. at 2043 (Sotomayor, J., concurring) (IGRA makes
tribes financial self-sufficient and ``better positioned to fund their
own sovereign functions, rather than relying on federal funding'').
These funds enable tribes to fund, among other things, social services
to tribal elders, native language preservation programs, suicide
prevention programs for tribal youth, and college scholarships for
tribal students. Sarah S. Pearson, Am. Youth Policy Forum,
Strengthening Indian Country Through Tribal Youth Programs 9 (2009),
available at http://www.aypf.org/publications/documents/
TYPReportfinal_000.pdf; Kenneth W. Grant II et al., Native Nations
Instit. for Leadership, Mgmt. & Policy & Harvard Project on Am. Indian
Econ. Dev., Social and Economic Consequences of Indian Gaming in
Oklahoma 15-24 (2003), available at http://nni.arizona.edu/resources/
inpp/2003_grant.et.al_JOPNA_social.economic.consequences.pdf; Norimitsu
Onishi, With Casino Revenues, Tribes Push to Preserve Languages, and
Cultures, N.Y. Times, June 16, 2012, http://www.nytimes.com/2012/06/17/
us/chukchansi-tribe-in-california-pushes-to-preserve-language.html;
Beacon Econs. LLC, Economic Impact Study: Measuring the Economic Impact
of Indian Gaming on California (2012), available at http://
www.cniga.com/20120625_CNIGA_Draft.pdf. See Teresa Joy Clay, Measuring
the Impact of Reservation Gaming Revenues on Native American Education
Achievement, 21 J. of Pub. Budgeting, Accounting & Fin. Mgmt. 58, 62-63
(2009), available at http://pracademics.com/attachments/article/761/
Symp_Ar_2_Clay.pdf; Jonathan B. Taylor, The Economic Impact of Tribal
Government Gaming in Arizona: Report 11 (2012) available at https://
www.azindiangaming.org/images/assets/economic-impact.pdf; Press
Release, NIGC, 2012 Indian Gaming Revenues Increase 2.7 Percent,
available at http://www.nigc.gov/
LinkClick.aspx?fileticket=Fhd5shyZ1fM=.
No government can function without dependable revenues, and for
tribes this means relying on revenues from tribal economic
development--particularly Indian gaming--to fund their operations and
the services they provide to their members. The earnings from tribal
economic development activities are as essential to Indian tribes as
sales, property, or income taxes are to States and local governments.
``[T]ribal business operations are critical to the goals of tribal
self-sufficiency because such enterprises in some cases `may be the
only means by which a tribe can raise revenues.''' Bay Mills, 134 S.Ct.
at 2043 (Sotomayor, J., concurring) (quoting Catherine T. Struve,
Tribal Immunity and Tribal Courts, 36 Ariz. St. L.J. 137, 169 (2004)).
``This is due in large part to the insuperable (and often state-
imposed) barriers Tribes face in raising revenue through more
traditional means.'' Id. More specifically, ``States have the power to
tax certain individuals and companies based on Indian reservations,
making it difficult for Tribes to raise revenue from those sources.''
Id. (citation omitted). Indian gaming is critical to filling this gap.
B. Under Settled Federal Law, Tribal Inherent Sovereign Authority Is
Abrogated Only When Congress Clearly Intends That Result
If any change is to be made in the self-determination policy, or in
the rights on which tribes rely to implement that policy, it is up to
Congress--not the Board--to make that decision. As the Supreme Court
very recently reaffirmed, ``unless and `until Congress acts, the tribes
retain' their historic sovereign authority.'' Bay Mills, 134 S. Ct. at
2030 (quoting United States v. Wheeler, 435 U.S. 313, 323 (1978)). To
modify tribal powers, it must be shown that Congress intended that
result, for ``courts will not lightly assume that Congress in fact
intends to undermine Indian self-government.'' Id. at 2031-32 (citing
Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58-60; Iowa Mut. Ins. Co.
v. LaPlante, 480 U.S. 9, 18 (1987); United States v. Dion, 476 U.S.
734, 738-39 (1986)).
The standards that apply to determine whether Congress has modified
tribal powers are strict, as shown by the cases relied on by the Court
in Bay Mills. The Indian Civil Rights Act, 25 U.S.C. ch. 15 (as
amended), does not authorize actions for declaratory or injunctive
relief against Indian tribes and will not be held to do so ``unless and
until Congress makes clear its intention to permit the additional
intrusion on tribal sovereignty that adjudication of such actions in a
federal forum would represent . . . .'' Santa Clara Pueblo, 436 U.S. at
72. Statutory silence does not abrogate rights of tribal self-
government because silence does not reflect congressional intent to do
so. LaPlante, 480 U.S. at 17 (the general diversity statute, 28 U.S.C.
1332, does not limit tribal rights of self-government because it
``makes no reference to Indians and nothing in the legislative history
suggests any intent to render inoperative the established federal
policy promoting tribal self-government''). ```Because the Tribe
retains all inherent attributes of sovereignty that have not been
divested by the Federal Government, the proper inference from silence .
. . is that the sovereign power . . . remains intact.''' Id. at 18
(quoting Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 149 n.14
(1982)) (ellipses in original). And finally, ``Congress' intention to
abrogate Indian treaty rights [must] be clear and plain,'' Dion, 476
U.S. at 738, which requires ``clear evidence that Congress actually
considered the conflict between its intended action on the one hand and
Indian treaty rights on the other, and chose to resolve the conflict by
abrogating the treaty,'' id. at 739-40.
Nothing in the NLRA satisfies these strict standards, for the Act
says nothing at all about Indian tribes, and under settled law its
silence leaves sovereign power intact. Accordingly, the Board's attempt
to apply the Act to Indian tribes violates federal law. Whether to
limit tribal sovereign authority is a decision for Congress to make,
not the Board. Bay Mills, 134 S. Ct. at 2031-32.
C. Applying The NLRA To Indian Tribes Is Contrary To Federal Law And
Doing So Under The San Manuel Test Would Abrogate Their Rights
Of Self-
Government
The test applied by the Board to determine whether to exercise
jurisdiction over Indian tribes compounds the illegality of its
actions. Under the San Manuel test, the Board decides, on a case by
case basis, whether a tribal activity is a governmental function or a
commercial activity, and it then asserts authority over any activity it
deems to be commercial. San Manuel, 341 N.L.R.B. at 1063. The Board's
reliance on that distinction usurps Congress's authority to decide such
matters, and if allowed to go unchecked, the Board's assertion of
authority will abrogate tribal sovereignty by interfering with tribal
self-government and making the pursuit of tribal economic self-
sufficiency dependent on the Board's permission. S. 248 is urgently
needed to stop the Board from pursuing that result.
1. The commercial-governmental distinction the Board relies on in the
San Manuel test violates federal law.
The San Manuel test relies on a distinction between commercial and
governmental activity which is contrary to federal law. The Board
claims that all ``commercial enterprises'' (whatever the Board
determines they may be) are subject to the NLRA; and while
``traditional tribal or government functions'' may not be subject to
the Act, that depends on how much ``leeway'' the Board decides to allow
the tribe. San Manuel, 341 N.L.R.B. at 1063. The Board also asserts
discretionary power to ``balance the Board's interest in effectuating
the policies of the Act with the desire to accommodate the unique
status of Indians in our society and legal culture.'' Id. at 1062. That
test violates federal law because Congress and the Supreme Court have
both determined that Indian tribes conduct gaming in their sovereign
capacity. See supra at 16-19. Furthermore, if any such distinction were
to be made, it could only be made by Congress. As the Supreme Court
recently reaffirmed, ``[t]he special brand of sovereignty the tribes
retain--both its nature and its extent--rests in the hands of
Congress.'' Id. at 2037 (citations omitted). In Bay Mills, the Court
held that it would not abrogate tribal sovereign immunity when a tribe
engages in commercial activity because to do so would usurp Congress'
authority. 134 S. Ct. at 2039. If the Supreme Court will not make this
distinction, neither can the Board.
2. Applying the NLRA to Indian tribes would deny them the right to
determine their own form of government.
Furthermore, applying the commercial-governmental distinction to
tribal activity plainly abrogates tribal inherent sovereign authority.
Indian tribes have the power to structure their governments as they see
fit, Santa Clara Pueblo, 436 U.S. at 62-64, and ``to undertake and
regulate economic activity within the reservation,'' Mescalero Apache
Tribe, 462 U.S. at 335, including gaming activity, 25 U.S.C. 2710;
Cabazon, 480 U.S. at 221-22. Under this authority, a tribe may engage
in economic activity through a tribal agency or department, see, e.g.,
Cabazon, 480 U.S. at 204-05 & n.2, a tribal enterprise, see, e.g.,
White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 139 (1980), or a
corporation chartered and owned by the tribe, see, e.g., Inyo Cnty.,
Cal. v. Paiute-Shoshone Indians of the Bishop Cmty. of the Bishop
Colony, 538 U.S. 701, 704 (2003). In making that choice, the tribe does
not relinquish any of its sovereign authority--only Congress can modify
tribal sovereign authority, which requires a showing of clear
congressional intent to impose that result. See supra at 20-21. The
NLRA does not do so. See supra at 4-13.
The Board's test is also completely unworkable. Under that test, a
tribe cannot know whether a particular activity is ``commercial'' or
``traditional'' unless and until the Board decides that question, which
the Board would not do so unless and until an unfair labor practice
charge was filed with the Board under 29 U.S.C. 160(b). \1\ And even
after the Board made its decision, a change in the activity could raise
the question anew. To illustrate, many tribes provide a variety of
medical services to their citizenry. As health care needs change, new
services may be required--assisted living facilities or eyeglasses may
be needed for elders, for example--would such a change mean that a
previously ``traditional'' activity had become ``commercial?'' Or might
the Board decide that the new program was ``commercial'' but existing
programs remain ``traditional?'' And what if a tribe decided that in
some instances it needed to charge a fee to help defray the cost of
care, or if the composition of its workforce changed? A tribe could not
know the answer to these questions unless and until a complaint was
filed and adjudicated by the Board.
---------------------------------------------------------------------------
\1\ A person initiates an unfair labor practice proceeding by
filing a complaint with a NLRB Regional Director. 29 U.S.C. 160(b);
29 C.F.R. 101.2. The Regional Director allows the parties to seek
settlement by submitting to him or her legal arguments, statements of
fact, offers of settlement, or proposals of adjustment. 29 C.F.R.
101.7. If there is no settlement, the Regional Director refers the case
to an Administrative Law Judge (ALJ), who holds an adversarial hearing
between the charged party and the NLRB's General Counsel. Id. 101.10.
See 29 U.S.C. 160(b) (authorizing the Board's ``designated agent'' to
take evidence at a complaint hearing). The ALJ issues a decision on the
case, which is filed with the Board. 29 C.F.R. 101.11. The parties
can file exceptions to the ALJ's decision with the Board, id.
101.11(b), which then sits like an appellate court in review of the ALJ
decision, eventually filing its own opinion and order on the case, id.
101.12(a); 29 U.S.C. 160(c). The Board's order can be appealed to
an appropriate federal circuit court by ``any person aggrieved'' by the
order. 29 U.S.C. 160(f); 29 C.F.R. 101.14.
---------------------------------------------------------------------------
And splitting the tribal government in half--as the Board's test
would do--would just be the beginning. The Board would then have
authority to reorganize employees engaged in any activity it deems
``commercial'' into bargaining units under 29 U.S.C. 159(b). In
making this determination, the Board would have no obligation to
respect the tribe's governmental structure, or organizational
decisions, whether reflected in its constitution, laws, regulations, or
policies. For example, different units might be recognized within each
department or agency, or all persons doing the same kind of work for
the tribe might comprise one unit, or perhaps some combination of the
two. And each unit could demand that the tribe negotiate a collective
bargaining agreement with it, and it alone. Id. 157, 159(a).
Imposing such a process on the tribe would abrogate its right to
structure its government as it chooses, Santa Clara Pueblo, 436 U.S. at
62-64, by subjecting each and every such decision to review by the
Board to determine whether an activity was or was not governmental, it
would abrogate the tribe's right ``to undertake and regulate economic
activity,'' Mescalero Apache Tribe, 462 U.S. at 335, by conditioning
the exercise of that right on the application of the NLRA to so-called
commercial activity, and it would violate the tribe's right to make its
own laws and be ruled by them, Williams v. Lee, 358 U.S. 217, 220
(1959), by allowing the Board to ignore tribal law in recognizing
bargaining units.
3. The right to strike would make a tribe's ability to meet its
governmental
responsibilities dependent on its agreeing to meet the demands
of tribal employees.
Indian tribes also have the power to determine the terms on which
they will employ members and nonmembers to fulfill the responsibilities
of tribal government. This power is a lesser included element of the
power to exclude non-Indians from the reservation. As the Supreme Court
has made clear: ``[n]onmembers who lawfully enter tribal lands remain
subject to the tribe's power to exclude them. This power necessarily
includes the lesser power to place conditions on entry, on continued
presence, or on reservation conduct . . . .'' Merrion, 455 U.S. at 144.
Accord Morris v. Hitchcock, 194 U.S. 384 (1904). That power is not
extinguished when a tribe engages in commercial activity. Merrion, 455
U.S. at 146-47. Instead it ``governs all contracts subject to the
sovereign's jurisdiction, and will remain intact unless surrendered in
unmistakable terms.'' Id. at 148. Tribal authority over employment
relations is also an aspect of tribal inherent sovereign authority,
under which ``[a] tribe may regulate, through taxation, licensing, or
other means, the activities of nonmembers who enter consensual
relationships with the tribe or its members, through commercial
dealings, contracts, leases, or other arrangements.'' Montana, 450 U.S.
at 565-66 (citations omitted). In the exercise of these powers, a tribe
plainly has authority to prohibit a strike by its employees in order to
ensure its ability to continue to operate its government and to meet
its responsibilities to Indians and non-Indians who live, work and
visit the reservation.
If the NLRA applied to Indian tribes, it would divest the tribes of
that power by securing to its employees the right to strike under
section 7 of the NLRA, 29 U.S.C. 157. A strike at a tribal facility
engaged in revenue raising activity would stop the generation of
revenue until the end of the strike or until the tribe was able to
replace all of its striking employees. \2\ A strike--or even the threat
of a strike--would put in jeopardy a tribe's ability to meet its
governmental responsibilities to Indians and non-Indians who live,
work, and visit the reservation. And it would give the bargaining
representatives of the tribe's employees enormous power--a tribe would
have to acquiesce to their demands or abdicate its responsibilities as
a government. Unlike a private business, a government cannot wait out a
strike. Its responsibilities to protect public safety and property and
provide other essential government services are constant. The only way
to prevent strikes would be for the tribe to negotiate a no-strike
clause in a collective bargaining agreement--but at what price? How
much is a government's ability to operate worth? In plain terms, the
right to strike would violate the right of self-government and the
power to exclude by vesting the right to decide whether the government
could operate in the hands of the bargaining representatives of its
employees.
---------------------------------------------------------------------------
\2\ Replacing employees can be a long and arduous process. Tribes
must comply with their own laws regarding hiring practices, including
any applicable ordinances that require preference be given to tribal
members in hiring. Tribes engaged in gaming activities must also comply
with IGRA, which requires tribes to conduct background checks and
license many employees of their gaming facilities. 25 U.S.C.
2710(b)(2)(F).
---------------------------------------------------------------------------
President Franklin Roosevelt recognized and addressed exactly this
problem in a letter to the President of the National Federation of
Public Employees, written shortly after the NLRA was enacted. The
President stated that ``[u]pon employees in the Federal service rests
the obligation to serve the whole people, whose interests and welfare
require orderliness and continuity in the conduct of Government
activities.'' Letter from President Franklin D. Roosevelt to Luther C.
Steward, President, Nat'l Fed'n of Fed. Emps. (Aug. 16, 1937),
available at http://www.presidency.ucsb.edu/ws/index.php?pid=15445
(``1937 Roosevelt Letter''). But ``a strike of public employees
manifests nothing less than an intent on their part to prevent or
obstruct the operations of Government until their demands are
satisfied.'' Id. President Roosevelt called such action ``unthinkable
and intolerable.'' Id. The President was correct, and his words apply
equally to the public employees of Indian tribes.
4. The collective bargaining process could require the tribe to
negotiate the terms on which its sovereign enactments would
apply to its employees.
If the NLRA applied to Indian tribes, they would also be required
to bargain with all Board-recognized units of employees over ``wages,
hours, and other terms and conditions of employment.'' 29 U.S.C.
158(d). That is simply not feasible. Like other government employers,
the ``terms and conditions'' of employment by Indian tribes are
typically set by duly enacted laws and regulations, which bind
employees and government agency officials alike. Agency officials have
no authority to bargain over the application of tribal laws and
regulations, or to agree to make changes in those laws, much less to do
so on different terms with different bargaining units. President
Roosevelt understood this as well. ``All Government employees should
realize that the process of collective bargaining, as usually
understood, cannot be transplanted into the public service.'' 1937
Roosevelt Letter. The employer is the ``whole people, who speak by
means of laws enacted by their representatives in Congress.'' Id. As a
result, administrative officials and employees are ``governed and
guided, and in many instances restricted, by laws which establish
policies, procedures, or rules in personnel matters.'' Id.
If the collective bargaining process that is set forth in the NLRA
were applicable to Indian tribes, any of the tribe's laws affecting
employment could be the subject of a collective bargaining demand, even
laws and regulations that are required by federal law. For instance,
IGRA requires that Indian tribes implement ordinances to require
background checks, 25 U.S.C. 2710(b)(2)(F)(i), and licensing, id.
2710(b)(2)(F)(ii)(I), of employees. If the tribe refused a request for
collective bargaining over that ordinance--or any other tribal law--it
would be up to the Board to determine whether the request fell within
the definition of ``terms and conditions'' under 158(d) of the Act;
if so, collective bargaining would be required. In collectively
bargaining over such terms, tribes would be placed in the intolerable
position of bargaining to keep their own laws in force and intact. This
converts tribal laws to a negotiating position--nothing more.
If the Board determined that such laws interfered with collective
bargaining rights under 29 U.S.C. 158(a)(1), or were discriminatory
under 158(a)(3), it could strike down even strike Indian-preference-
in-employment laws, and drug and alcohol testing laws. Indian
preference in employment has long been recognized by the Supreme Court
as an effective tool to further self-governance. See Mancari, 417 U.S.
at 535. And drug and alcohol testing are issues that must be considered
by a tribe in making decisions on how to protect its employees' health
and safety as well as the integrity of Indian gaming. See 25 U.S.C.
2702(2) (a primary purpose of IGRA is to assure that Indian gaming is
conducted fairly and honestly). If the Board has jurisdiction over
tribal governments, the Board could effectively invalidate such laws.
And finally, any administrative or judicial decision of the tribe
that resolved an employee dispute would be subject to review by the
Board if the employee filed an unfair labor practice charge under 29
U.S.C. 160(b). The Board would then determine whether enforcement of
the decision constituted an ``unfair labor practice.'' Id. Subjecting
tribal enactments to review by the Board is a violation of the tribe's
right to make its own laws and be governed by them. Tribes enact and
enforce laws governing the reservation and the operation of their
governments pursuant to their sovereign authority. Santa Clara Pueblo,
436 U.S. at 67. See Wheeler, 435 U.S. at 322. Subjecting tribal law to
review in another sovereign's tribunals displaces that authority. Santa
Clara Pueblo, 436 U.S. at 67. Displacing tribal court authority over
areas in which the tribe has jurisdiction, including commercial
relations between members and non-members, ``undermine[s] the authority
of the tribal courts over Reservation affairs and hence would infringe
on the right of the Indians to govern themselves.'' Williams, 358 U.S.
at 222. Such a divestment of tribal sovereign authority can only occur
when Congress expressly permits it, see supra at 20-21, which Congress
has not done here. See supra at 4-13. Even if the Board's decision in
such a case was ultimately overturned in federal court on appeal, the
tribe would be subjected to years of costly litigation in order to
secure that determination. Many tribes simply cannot afford that
expense.
And at the end of the collective bargaining process, the tribe
would be subject to a de facto statute--the collective bargaining
agreement--which would govern all conditions of employment, superceding
any inconsistent tribal laws, and that agreement would be enforceable
only by the Board under section 10(a) of the Act, 29 U.S.C. 160(a).
This flips tribal sovereignty upside-down. It transforms tribal
ordinances into the first offer in a negotiation with private actors.
It gives bargaining representatives the power to pick and choose the
tribal laws to which they will agree, and the amendments to those laws
which they will require. And it gives the Board power to void tribal
laws. These impacts would deprive Indian tribes the right to make their
own laws and to be governed by them, Williams, 358 U.S. at 220.
IV. S. 248 Addresses The NLRB's Overreach And Recognizes Tribal
Authority
S. 248 would amend section 2(2) of the NLRA, 29 U.S.C. 152(2), to
reaffirm that the Act does not apply to ``any enterprise or institution
owned and operated by an Indian tribe and located on its Indian lands .
. . .'' S. 248 2(1). Doing so would not create a new exception under
the NLRA. Rather, it would reaffirm the understanding that Congress had
when it enacted the NLRA--that it does not apply to Indian tribes--and
restore a longstanding statutory exemption for Indian tribes that the
Board has only recently--and erroneously--abandoned. In so doing, S.
248 would prevent the Board from misusing its authority under the Act
to interfere with tribal self-government and sovereign authority.
Congress before has enacted laws to recognize inherent tribal
sovereign authority when a judicial ruling applied federal law in a
manner that restricted tribal sovereignty. In Duro v. Reina, 495 U.S.
676 (1990), the Supreme Court ruled that an Indian tribe's courts
lacked criminal jurisdiction over nonmember Indians. Congress
subsequently amended the Indian Civil Rights Act of 1968, 25 U.S.C.
1301(2), to make clear that Indian tribes have inherent sovereign
authority to exercise criminal jurisdiction over all Indians. And the
Supreme Court upheld Congress's action in United States v. Lara, 541
U.S. 193 (2004). Clearly, Congress has the power to remove restrictions
on inherent sovereign authority imposed by a court, or an agency, or by
a statute.
Similarly, in the Violence Against Women Reauthorization Act of
2013, 904(b), Pub. L. No. 113-4, 127 Stat. 54, 121-22 (codified at 25
U.S.C. 1304(b)), Congress recognized that, subject to certain
procedural requirements, an Indian tribe has inherent sovereign
authority to exercise criminal jurisdiction over non-Indians who commit
crimes of domestic violence against Indians. In enacting this law,
Congress lifted a restriction on tribal inherent sovereignty over non-
Indians imposed by the Supreme Court in Oliphant v. Suquamish Indian
Tribe, 435 U.S. 191 (1978). So, even if the NLRA gave the Board the
legal authority to place limitations on inherent tribal sovereign
authority--and it does not--Congress can remove those restrictions and
restore the full breadth of tribal sovereignty, as it has done in other
contexts.
Congress has the authority--and, we respectfully submit, under the
federal trust responsibility, the duty--to enact S. 248 to protect
Indian tribes' inherent authority to regulate and engage in economic
activity, to regulate those entering upon tribal lands, and to
administer tribal governments that are answerable to the tribal
citizenry, rather than employees' bargaining representatives. Doing so
will enable tribal governments to continue relying on revenues from
tribal enterprises to fund essential governmental services. Finally, it
will prevent the Board from nullifying tribal law and denying
recognition to tribal judicial and administrative fora over employment
matters.
In short, S. 248 should be enacted to protect tribal sovereignty
from an entity--the Board--that claims the right to decide for Congress
when Indian tribes are and are not sovereign.
______
Prepared Statement of Hon. Bo Mazzetti, Chairman, Rincon Band of
Luiseno Indians
Introduction
Mr. Chairman and Members of the Committee, my name is Bo Mazzetti.
I serve as Chairman of the Rincon Band of Luiseno Indians (``Rincon
Band''), one of five elected members of the Rincon Band Tribal Council.
On behalf of the Rincon Band, I would like to thank you for allowing me
to submit this written testimony regarding S. 248, the ``Tribal Labor
Sovereignty Act of 2015'' and its critical importance for the
preservation of the sovereignty of the Rincon Band of Luiseno Indians
and other Tribal governments nationwide.
About The Rincon Band And Harrah's Southern California Resort
The Rincon Band of Luiseno Indians governs a 5,000-acre reservation
in Valley Center, and has 500 plus members. Established in 1875, the
Rincon Band is a sovereign government, recognized by the U.S.
Constitution, and federal government. A democratically elected tribal
council has the executive, legislative, and legal authority to protect
and promote the welfare of the tribal members and lands with powers
equal to a city, county, or state. The Rincon Band owns Harrah's Resort
Southern California, a gaming facility that supports approximately
1,200 jobs in North San Diego County, with a total of $98 million in
annual labor income and $17.5 million in tax revenues to state and
local governments. The profits from Harrah's Resort Southern California
and other commercial enterprises are used to provide services such as
police and environmental protection, health care, senior, youth and
cultural programs, economic development and a tribal court. The tribal
government also funds a tribal fire department, ambulance and paramedic
unit, as well as increased Sheriffs' shifts that service the
reservation and neighboring communities. Rincon's tribal enterprises
are significant contributors to the North San Diego County economy,
through job creation, purchase of local products and services, and tax
generation. Annual community donations to regional non-profits support
quality of life programs. The tribal council consists of Chairman Bo
Mazzetti, Vice Chairwoman Stephanie Spencer, and Council Members Steve
Stallings, Laurie E. Gonzalez and Alfonso Kolb, Sr.
The National Labor Relations Act and Tribal Governments
Congress expressly excluded federal and state governments from
collective bargaining or related rights protected by the National Labor
Relations Act of 1935 (NLRA). For many years after enactment of the
NLRA, the National Labor Relations Board (NLRB) included Indian tribal
governments within the NLRA's government exemption until San Manuel
Indian Bingo & Casino v. NLRB in 2007. In that case, the NLRB abandoned
its decades-long position on the exemption of tribal governments from
the definition of employer without any clear expression from Congress
to do so in the text of the NLRA. Adopting S. 248 would confirm that
Indian tribal governments are sovereigns with retained rights to self-
government over their members and territory, not private employers
subject to the NLRA.
Conflicts Between the NLRA and the Rincon Band TLRO
In the late 90's, during gaming compact negotiations, the issue of
labor relations was critical to the State of California. Discussions on
that issue ultimately resulted in several Tribal governments, including
the Rincon Band of Luiseno Indians, consenting to a Tribal Labor
Relations Ordinance (TLRO) which was mandated by the 1999 Proposition
1A Compact. At the conclusion of litigation in Rincon Band of Luiseno
Indians v. Brown, the TLRO was later extended into the Rincon Band
Secretarial Procedures issued on February 8, 2013 by the Secretary of
the Interior.
With numerous lawsuits pending in the Second, Sixth, Tenth, D.C.
and Ninth Circuits, on the issue of the NLRA applicability to Indian
tribal governments, the Rincon Band submitted to the Assistant-
Secretary of Indian Affairs proposed amendments to the TLRO because it
is not consistent with the NLRA. These inconsistencies establish a
conflict between two co-equal federal frameworks that places the Rincon
Band gaming operation at greater risk of non-compliance than other
tribal governments. Since submission on May 7, 2014, the proposed
amendments are still pending approval by the Assistant-Secretary of
Indian Affairs.
The purpose of the proposed amendments are twofold, to: (1)
minimize the scope of future litigation that might possibly occur with
the NLRB by amending certain provisions of the TLRO that are
inconsistent with the rights granted to employees and unions under the
NLRA; and, (2) position the Rincon Band to successfully defend an NLRB
legal challenge by amending the dispute resolution provisions without
conceding the Rincon Band's tribal sovereignty and right to self-
government to the jurisdiction of the NLRB, an institution without a
shred of competence and expertise in the field of federal Indian law.
The proposed amendments eliminate key differences between the TLRO and
the NLRA with respect to the rights of employees to organize and
constrain the potential application of the NLRA to the Rincon Band
under the particular framework of the TLRO in the Secretarial
Procedures.
TLRO Provisions Proposed for Amendment
The amendments revise provisions of the TLRO that appear to
substantively deviate from the NLRA. First, the scope of employee
exemptions under the TLRO is too broad to survive an NLRB challenge.
Generally, the NLRA does not cover government employees, agricultural
workers, independent contractors and supervisors. The existing TLRO
exempts five classes of employees from the application of the TLRO. \1\
The amendments reduce this class of five to three by deleting cage
workers and dealers because under the NLRA neither class of worker
would be exempt. If approved by the Assistant-Secretary, this proposed
revision would make this provision of the TLRO consistent with the
NLRA.
---------------------------------------------------------------------------
\1\ 2(a) of the TLRO exempts: (1) supervisors, (2) gaming
commission, (3) security, (4) cage operators, and (5) dealers.
---------------------------------------------------------------------------
Second, union access to gaming employees under the TLRO has been
revised to be consistent with the ``reasonable'' access requirement of
the NLRA. The existing TLRO mandates union access to employee break
rooms and lockers and allows employees to post written materials
therein. \2\ Under the NLRA, employers are required to provide unions
reasonable access to employees to accommodate the exercise of their
Section 7 rights. \3\ These proposed revisions align the TLRO with the
NLRA by imposing reasonable time and place restrictions with respect to
union accessibility to gaming employees and posting of written
materials in non-work areas.
---------------------------------------------------------------------------
\2\ 8 of the TLRO, Access to Eligible Employees.
\3\ Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992).
---------------------------------------------------------------------------
Third, the TLRO provides a right to strike only in the event of a
collective bargaining impasse. \4\ The TLRO's blanket ban on strikes
and boycotts under any other circumstance would likely violate the NLRA
because the right is not qualified by the unlawful purposes proscribed
by the NLRA. \5\ If approved by the Assistant-Secretary, the amendments
proposed for this section of the TLRO includes those actions proscribed
in the NLRA. \6\
---------------------------------------------------------------------------
\4\ 11 of the TLRO, Collective bargaining impasse.
\5\ 11 of the TLRO, Collective bargaining impasse.
\6\ 25 U.S.C. 158(b)(4)(ii)(A), (B) and (D).
---------------------------------------------------------------------------
Fourth, the TLRO establishes four levels of dispute resolution
proceedings. Any disputes arising under the TLRO must first be heard by
a designated tribal body (e.g., Tribal Council or Grievance Board)
before a second-level appeal can be made to the Tribal Labor Panel, or
a thirdlevel of appeal can be lodged with the Tribal Court or a fourth-
level of appeal can be filed in federal court. \7\ The proposed
amendments eliminate distinctions between the types of cases subject to
dispute resolution and streamline the dispute resolution process by
reducing the four levels of dispute resolution to three by eliminating
the requirement for a proceeding before the Tribal Council. When the
TLRO was enacted, the Rincon Tribal Court did not exist. In place of
the Tribal Council, the proposed revisions establish the Tribal Labor
Panel, a mutually selected group of 3 arbiters, as the first level of
dispute resolution with second and third level rights of appeal to the
Tribal Appellate Court and federal court. The TLRO's dispute resolution
provisions manifest the exercise of tribal sovereignty and the right to
self-government by a modern tribal government. And, even though the
TLRO dispute resolution structure conflicts with that of the NLRA,
which would establish the NLRB as the exclusive arbiter of disputes,
neither the Tribe nor the Department of the Interior should amend the
TLRO to jettison these fundamental attributes of tribal governance in
favor of an institution, such as the NLRB, that is without any
institutional competency or expertise in applying principles of federal
Indian law.
---------------------------------------------------------------------------
\7\ 13(b), (c) and (d) of the TLRO.
---------------------------------------------------------------------------
Summary
Adopting S. 248 removes the risk that the NLRB could find that the
Rincon Band's compliance with the TLRO constitutes an unfair labor
practice under the NLRA. For the Rincon Band, S. 248 provides certainty
that commercial activity and labor relations on the Rincon Reservation
will be exclusively governed by the TLRO and the Secretarial Procedures
framework, amended or not. Passage of S. 248 would protect tribal
sovereignty by clarifying congressional intent to include tribal
governments within the government exemption of the NLRA and end
litigation pending in the Second, Sixth, Tenth, D.C. and Ninth Circuits
on this issue.
The Rincon Band respectfully requests that Congress enact S. 248
and confirm that Tribal governments possess status equivalent to the
federal government, states and their political subdivisions. S. 248
would provide a clear statement from Congress that tribal governments
are exempt from the NLRA consistent with two centuries of Federal
Indian policy of congressional support for tribal sovereignty, the
right to self-government and self-determination.
Mr. Chairman and Members of the Committee, I thank you for your
time and consideration.
______
Prepared Statement of Hon. Thomas Beauty, Chairman, Yavapai-Apache
Nation
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
______
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
______
April 29, 2015
Hon. John Barrasso, Chairman
Hon. Jon Tester, Vice Chairman
Senate Committee on Indian Affairs
Hart Senate Office Building
Washington, DC
Dear Chairman Barrasso and Vice Chairman Tester:
We, the undersigned Indian tribal nations, tribal corporations,
trade associations and state and local chambers of commerce, write in
strong support of S. 248, the ``Tribal Labor Sovereignty Act of 2015,''
which would respect and promote tribal sovereignty by affirming the
rights of tribal governmental employers to determine their own labor
practices on their own lands.
In 1935, the National Labor Relations Act (NLRA) was enacted to
ensure fair labor practices, but excluded federal, state, and local
governmental employers from its reach. Though the Act did not expressly
treat Indian tribes as governmental employers, the National Labor
Relations Board (NLRB) respected the sovereign status of tribal
governmental employers for close to seventy years before reversing
course in 2004.
Since its decision in San Manuel Indian Bingo (341 NLRB No. 138,
2004), the NLRB has been aggressively asserting jurisdiction over
tribal labor practices when it determines tribal government employers
are acting in a ``commercial'' rather than a ``governmental''
capacity--an analysis it does not apply to state or local government
employers.
S. 248 builds upon a principle that has been amply demonstrated by
Indian tribes across the country: when tribal sovereignty is respected
and acknowledged, economic success follows. S. 248 would prevent an
unnecessary and unproductive overreach by the NLRB into the sovereign
jurisdiction of tribal governments. By amending the NLRA to expressly
treat tribal government employers and their enterprises and
institutions the same as it treats state and local government
employers, S. 248 would provide certainty and clarity to ensure that
tribal ordinances relating to labor practices would be respected. This
approach would best meet the needs of the tribes and the American
business community more generally.
The undersigned groups strongly support S. 248, which would build
upon recent congressional actions affirming tribal sovereignty such as
the enactment of the Tribal General Welfare Exclusion Act in September,
2014. We urge you to support this important bill and to work towards
its swift passage.
Sincerely,
American Indian Chamber of Commerce of South Carolina (SC)
American Indian Infrastructure Association (WY)
Arctic Slope Native Association (AK)
Arctic Slope Regional Corporation (AK)
Arizona Chamber of Commerce and Industry (AZ)
Battle Creek Area Chamber of Commerce (MI)
Big Valley Band of Pomo Indians of the Big Valley Rancheria
(CA)
Brainerd Lakes Chamber of Commerce (MN)
Chickasaw Nation (OK)
Choctaw Nation of Oklahoma (OK)
Confederated Tribes of Siletz Indians (OR)
Confederated Tribes of the Chehalis Reservation (WA)
Confederated Tribes of the Colville Reservation (WA)
Connecticut Business and Industry Association (CT)
Dine Development Corp a wholly owned Navajo Nation business
(AZ, NM)
Durango Chamber of Commerce (CO)
Greater Flagstaff Chamber of Commerce (AZ)
Ho-Chunk Nation (WI)
Jamestown S'Klallam Tribe (WA)
Little River Band of Ottawa Indians (MI)
Mashantucket Pequot Tribal Nation (CT)
Minnesota American Indian Chamber of Commerce (MN)
Mohegan Tribe of Connecticut (CT)
Muscogee (Creek) Nation (OK)
National Center for American Indian Enterprise Development
(AZ)
National Congress of American Indians (DC)
National Native American Bar Association (AZ)
National Native American Chamber of Commerce (MO)
Native American Contractors Association (DC)
Nez Perce (ID)
Norman Chamber of Commerce (OK)
Oklahoma Indian Gaming Association (OK)
Pechanga Band of Luiseno Indians (CA)
Penobscot Indian Nation (ME)
Prairie Island Indian Community (MN)
Quapaw Tribe of Oklahoma (OK)
Red Cliff Band of Lake Superior Chippewa Indians (WI)
Rincon Band of Luiseno Indians (CA)
Rocky Mountain Indian Chamber of Commerce (NE)
Rocky Mountain Tribal Leaders Council (MT)
Saginaw Chippewa Indian Tribe (MI)
San Diego East County Chamber of Commerce (CA)
Sault Ste. Marie Tribe of Chippewa Indians (MI)
Seldovia Village Tribe (AK)
Shingle Springs Band of Miwok (CA)
Soboba Band of Luiseno Indians (CA)
Southern Ute Indian Tribe (CO)
Standing Rock Sioux Tribe (ND, SD)
Sycuan Band of the Kumeyaay Tribe (CA)
The Chamber Grand Forks/East Grand Forks (ND, MN)
TwinWest Chamber of Commerce (MN)
U.S. Chamber of Commerce (DC)
United South and Eastern Tribes (TN)
Viejas Band of Kumeyaay Indians (CA)
Wayland Area Chamber of Commerce (MI)
______
Response to Written Questions Submitted by Hon. Al Franken to
Hon. Keith Anderson
Questions. Mr. Griffin mentioned in his testimony that other labor
laws--the Americans with Disabilities Act, the Occupational Safety and
Health Act, and the Employee Retirement Income Security Act--have also
been extended to cover tribes. Are any of the tribes represented today
advocating to exempt tribal enterprises from these other labor laws?
What is special about the National Labor Relations Act?
Answer. No, S. 248 does not in any way affect the ADA, OSHA, or
ERISA. S. 248 addresses only the NLRA, amending it to expressly clarify
that the definition of excluded governmental employers specifically
includes tribal government employers.
The Shakopee Mdewakanton Sioux Community is a tribal government
employer. It is not seeking legislative or administrative or judicial
relief to exempt any of its tribal government enterprises from the ADA,
OSHA, or ERISA. Enactment of S. 248 would amend only the NLRA, and
would not affect the ADA, OHSA, ERISA, or any other federal statute.
The NLRA, unlike the ADA, OSHA, or ERISA, deals with the rights of
employers and employees in the private sector as it relates to
organizing and engaging in collective bargaining and in workplace
strikes. The provisions of the NLRA were never applied to tribal or any
other governmental employers. Then in 2004, the NLRB suddenly shifted
and began to treat tribal governmental employers operating on tribal
lands as if they were private sector employers for purposes of the
NLRA. Overturning 70 years of precedence, the NLRB in 2004
reinterpreted the NLRA to provide it with authority to decide whether
particular employment activity of a tribal government employer is
``commercial'' (over which the NLRB asserted NLRA jurisdiction) or
``governmental'' (over which the NLRB asserted no NLRA jurisdiction).
The NLRB's changed position was an affront to tribal sovereignty.
Tribal sovereignty must, at a minimum, mean that a tribe itself, not
the NLRB, alone may decide whether the tribe's activity is
governmental. If tribal government sovereignty is to be respected and
given meaning in the context of tribal governments acting as employers,
a tribal government alone (not the NLRB) should have the right to set
its own collective bargaining laws that apply to its own conduct as a
governmental employer.
The NLRA is different from the ADA, OSHA, and ERISA in that it
focuses on the collective bargaining rights of employees of non-
governmental employers. Unlike the ADA, OSHA and ERISA, which are
administered and enforced by the U.S. Department of Justice and other
federal agencies each of which has a government to government
relationship with each tribal government, the NLRA is overseen by the
NLRB whose orders are implemented by private sector, third-parties
known as labor unions who have no government-to-government
relationships with tribal governments.
The clarification proposed by S. 248 would not vest tribal
governments with territorial sovereignty and authority to set labor
relations for private sector employers within Indian Country. S. 248
addresses only tribal government sovereignty and authority to set labor
relations for tribes themselves as governmental employers, including
all of their tribal government enterprises that are designed to raise
governmental revenues. S. 248 would expressly treat tribal governments
like state governments are treated, similar to how Congress has amended
the Federal Emergency Management Act, the Federal Unemployment Tax Act,
and the Federal Tort Claims Act to treat tribal governments as are
other governments.
Thank you for this opportunity to respond.
______
Response to Written Questions Submitted by Hon. Heidi Heitkamp to
Richard F. Griffin, Jr.
Question 1. In your testimony, you mention that you consulted on a
case-by-case basis with tribes that would be impacted by jurisdictional
expansion under the National Labor Relations Act (NLRA). Could you
please explain if you also plan to consult all tribes on a general
basis as stipulated in Executive Order 13175 and updated in the
President's November 2009 Executive Memorandum? I have heard from many
tribes who do not feel the NLRB is adequately working with them on a
government-to-government basis, especially since the agency made the
unilateral decision to reverse its jurisdiction.
Answer. Consistent with Executive Order 13175, the Agency has and
will continue to consult with Indian tribes who are potentially subject
to the Board's jurisdiction. As I stated in my testimony, General
Counsels for the Agency, including myself, have consulted with many
tribes since the San Manuel decision including, but not limited to, the
Saginaw Chippewa Indian Tribe, the Mashantucket Pequot Tribal Nation,
and the Little River Band of Ottawa Indians. Following the principles
of the President's Executive Order, the Agency will continue its
consultations with tribes regarding the Act.
Question 2. If possible, could you describe some examples of
insufficient personnel protections under tribal employers; are these
practices widespread?
Answer. Given that the NLRB does not have independent investigative
authority, the Agency is only able to investigate charges that are
initiated by individual parties. As a result, it would be difficult to
determine the extent to which the practices of tribal enterprises
across the country may violate the Act. In those cases where charges
have been filed and merit has been determined, individual tribal
enterprises have been found to have violated the act by, for example,
disciplining or terminating employees who have engaged in union
organizing activities.
Question 3. Further, are there resources in place to help tribes
access technical assistance to avoid certain practices? If there are
best practices, how do you work with tribes to provide or disseminate
such assistance?
Answer. The NLRB is committed to ensuring that workers and
businesses, including tribal enterprises, are informed of their rights
and obligations under the National Labor Relations Act and maintains an
outreach program to educate individuals and groups regarding the
statute. The Agency's outreach program includes a Speakers' Bureau of
NLRB representatives who are available to make presentations to a
variety of entities, including tribal enterprises. The Agency also
maintains a free mobile application for iPhone and Android users to
provide individuals with information regarding the National Labor
Relations Act. Additionally, substantive information is available on
the Agency's public website, including, among other things, a
description of the Act and its provisions, along with copies of the
Board's decisions, rules, and regulations.
______
Response to Written Questions Submitted by Hon. Heidi Heitkamp to
Richard A. Guest
Question 1. In your testimony, you mention the California labor
ordinances created in partnership with local tribes to provide workers
the right to unionize and collectively bargain. I think it's a show of
resolve how California tribes worked with the state to develop the
ordinance. Has similar collaboration and agreements been effective in
other states in order to provide similar labor protections?
Answer. To my knowledge, there has not yet been similar
collaboration among tribes, state officials and unions to reach
agreement on provisions for workers to organize and collectively
bargain pursuant to a tribal-state gaming compacts under the Indian
Gaming Regulatory Act.
Question 2. How has the National Labor Relations Act (NLRA)
affected the ability of tribes to include Indian preference when hiring
within their enterprises? Do you see fewer or more tribal members being
employed after the change in the position of the NLRB?
Answer. The unemployment rate on Indian reservations is much higher
than elsewhere in the Country. One of the primary goals of any Indian
tribe is to provide employment opportunities for its members. Most
Indian tribes have enacted laws requiring employers on reservation to
give preference to Indians in all phases of employment--recruitment,
hiring, training, promotion, etc. Congress recognized and protected
these Indian preference laws in Title VII of the Civil Rights Act,
which excludes Indian tribes from the definition of ``employer,'' and
exempts businesses ``on or near an Indian reservation'' from coverage
in order to allow preferential hiring of Indians. 42 USC 2000e(b) and
e-2(i).
Application of the NLRA to Tribal enterprises would jeopardize this
right to require and enforce Indian preference laws as to the Tribe's
own employees. Because Indian preference laws generally affect
employees' rights to promotion, training and retention, they constitute
a mandatory subject of collective bargaining under the NLRA. 29 USC
158(a)(5); NLRB, Basic Guide to the National Labor Relations Act 20
(rev. ed. 1997) (procedures for discharge, layoff or recall are
mandatory subjects of bargaining). Thus, an Indian tribe would be
obligated to bargain with a union to retain its sovereign right to
apply its Indian preference law and to create employment opportunities
for its members. The union's duty to represent all members of the
bargaining unit makes it likely that the union would object to an
Indian preference law that benefits only some of the members of the
unit. The union might insist that the Indian preference law not apply
at all, or seek to condition its acceptance of the preferences on
concessions by the Tribe on other issues. Requiring an Indian tribe to
bargain to maintain its right to impose Indian preference laws
seriously interferes with its core retained Tribal rights to make and
impose its own laws, govern its economic enterprises, govern relations
with its members, and govern its relations with non-members who
voluntarily enter into a consensual employment relationship with the
Tribe.
At present, litigation by Indian tribes against the NLRB and
against application of the NLRA to tribal enterprises is on-going. Only
time--and a failure by Congress to enact S. 248 and provide parity for
tribal governments under the NLRA--will provide an answer to whether
fewer or more tribal members are being employed after the change in the
position of the NLRB.
Once again, thank you for the opportunity to provide this testimony
for consideration by members of the Senate Committee on Indian Affairs.
[all]