[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

                              ----------                              
                                                                   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

                              ----------                              


                       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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \4\ 226 NLRB 503, 504-06 (1976). Accord S. Indian Health Council, 
290 NLRB 436, 436-37 (1988).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \5\ 307 NLRB 241, 243-45 (1992).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \6\ 328 NLRB No.86 (1999), remanded, 234 F.3d 714 (D.C. Cir. 2000).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \11\ 341 NLRB at 1059-60 (discussing Tuscarora, 362 U.S. 99 
(1960)).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \21\ Id. at 1059, 1063.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \22\ San Manuel, 341 NLRB at 1062.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \23\ Id. at 1062-63.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \24\ Yukon Kuskokwim, 341 NLRB 1075, 1075-77 (2004).
---------------------------------------------------------------------------
    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]


                                 ______
                                 
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                                 ______
                                 
                                                     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]