    [House Hearing, 115 Congress]
    [From the U.S. Government Publishing Office]

                       H.R. 986, TRIBAL LABOR SOVEREIGNTY
                                  ACT OF 2017

    =======================================================================

                                    HEARING

                                   BEFORE THE

                            SUBCOMMITTEE ON HEALTH,
                        EMPLOYMENT, LABOR, AND PENSIONS

                             COMMITTEE ON EDUCATION
                               AND THE WORKFORCE

                         U.S. House of Representatives

                         ONE HUNDRED FIFTEENTH CONGRESS

                                 FIRST SESSION

                                   __________

                 HEARING HELD IN WASHINGTON, DC, MARCH 29, 2017

                                   __________

                               Serial No. 115-12

                                   __________

      Printed for the use of the Committee on Education and the Workforce

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                    COMMITTEE ON EDUCATION AND THE WORKFORCE

                   VIRGINIA FOXX, North Carolina, Chairwoman

    Joe Wilson, South Carolina           Robert C. ``Bobby'' Scott,
    Duncan Hunter, California                Virginia
    David P. Roe, Tennessee              Ranking Member
    Glenn ``GT'' Thompson, Pennsylvania  Susan A. Davis, California
    Tim Walberg, Michigan                Raul M. Grijalva, Arizona
    Brett Guthrie, Kentucky              Joe Courtney, Connecticut
    Todd Rokita, Indiana                 Marcia L. Fudge, Ohio
    Lou Barletta, Pennsylvania           Jared Polis, Colorado
    Luke Messer, Indiana                 Gregorio Kilili Camacho Sablan,
    Bradley Byrne, Alabama                 Northern Mariana Islands
    David Brat, Virginia                 Frederica S. Wilson, Florida
    Glenn Grothman, Wisconsin            Suzanne Bonamici, Oregon
    Steve Russell, Oklahoma              Mark Takano, California
    Elise Stefanik, New York             Alma S. Adams, North Carolina
    Rick W. Allen, Georgia               Mark DeSaulnier, California
    Jason Lewis, Minnesota               Donald Norcross, New Jersey
    Francis Rooney, Florida              Lisa Blunt Rochester, Delaware
    Paul Mitchell, Michigan              Raja Krishnamoorthi, Illinois
    Tom Garrett, Jr., Virginia           Carol Shea-Porter, New Hampshire
    Lloyd K. Smucker, Pennsylvania       Adriano Espaillat, New York
    A. Drew Ferguson, IV, Georgia

                          Brandon Renz, Staff Director
                     Denise Forte, Minority Staff Director

                                    ------

            SUBCOMMITTEE ON HEALTH, EMPLOYMENT, LABOR, AND PENSIONS

                        TIM WALBERG, Michigan, Chairman

    Joe Wilson, South Carolina           Gregorio Kilili Camacho Sablan,
    David P. Roe, Tennessee                Northern Mariana Islands
    Todd Rokita, Indiana                   Ranking Member
    Lou Barletta, Pennsylvania           Frederica S. Wilson, Florida
    Rick W. Allen, Georgia               Donald Norcross, New Jersey
    Jason Lewis, Minnesota               Lisa Blunt Rochester, Delaware
    Francis Rooney, Florida              Carol Shea-Porter, New Hampshire
    Paul Mitchell, Michigan              Adriano Espaillat, New York
    Lloyd K. Smucker, Pennsylvania       Joe Courtney, Connecticut
    A. Drew Ferguson, IV, Georgia        Marcia L. Fudge, Ohio
                                         Suzanne Bonamici, Oregon

                               C O N T E N T S

                                  ----------
                                                                       Page

    Hearing held on March 29, 2017...................................     1

    Statement of Members:
        Sablan, Hon. Gregorio Kilili Camacho, Ranking Member,
          Subcommittee on Health, Employment, Labor and Pensions.....     6
            Prepared statement of....................................     7
        Walberg, Hon. Tim, Chairman, Subcommittee on Health,
          Employment, Labor and Pensions.............................     1
            Prepared statement of....................................     3

    Statement of Witnesses:
        Brown, Mr. Nathaniel, Delegate, 23rd Navajo Nation Council,
          The Navajo Nation..........................................    19
            Prepared statement of....................................    21
        Cladoosby, Mr. Brian, President, National Congress Of
          American Indians, and Chair, Swinomish Indian Tribal
          Community..................................................     8
            Prepared statement of....................................    11
        Gribbon, Mr. John, California Political, Director, UNITEHERE!
          International Union, AFL-CIO...............................    25
            Prepared statement of....................................    27
        Welch, Mr. Robert J. Jr., Chairman, Viejas Band of Kumeyaay
          Indians....................................................    31
            Prepared statement of....................................    33

    Additional Submissions:
        Mr. Cladoosby:
            Letter dated April 12, 2017, from National Congress of
              American Indians.......................................    61
        Courtney, Hon. Joe, a Representative in Congress from the
          State of Connecticut:
            Letter from UAW Local 2121...............................    65
            Mr. Gribbon response to questions submitted for the
              record.................................................    95
        Lewis, Hon. Jason, a Representative in Congress from the
          State of Minnesota:
            Letter dated March 29, 2017, from the Chamber of Commerce
              of the United States of America........................    68
        Mr. Sablan:
            Letter dated March 27, 2017, from United Steelworkers
              (USW)..................................................    70
            Letter from International Labor Office (ILO).............    72
            Letter dated March 28, 2017, from International Union of
              Operating Engineers....................................    75
            2010 Blackfeet Tribal Employment Rights Ordinance and
              Safety Enforcement Act of 2010.........................    76
            Questions submitted for the record.......................92, 94
        Scott, Hon. Robert C. ``Bobby'', a Representative in Congress
          from the State of Virginia:
            Prepared statement of....................................    78
        Chairman: Walberg:
            Slide: Protecting Tribal Sovereignty.....................     5
            Prepared statement from the Morongo Band of Mission
              Indians................................................    82
            Prepared statement of Hon. Larry Romanelli, Ogema, Little
              River Band of Ottawa Indians...........................    85

                       H.R. 986, TRIBAL LABOR SOVEREIGNTY
                                  ACT OF 2017

                                  ----------

                           Wednesday, March 29, 2017

                            House of Representatives

                   Committee on Education and the Workforce,

            Subcommittee on Health, Employment, Labor, and Pensions

                                Washington, D.C.

                                  ----------

        The subcommittee met, pursuant to call, at 10:00 a.m., in
    Room 2175, Rayburn House Office Building, Hon. Tim Walberg
    [chairman of the subcommittee] presiding.
        Present: Representatives Walberg, Roe, Rokita, Allen,
    Lewis, Mitchell, Smucker, Ferguson, Sablan, Wilson of Florida,
    Norcross, Blunt Rochester, Shea-Porter, Espaillat, and
    Courtney.
        Also Present: Representatives Foxx and Scott.
        Staff Present: Bethany Aronhalt, Press Secretary; Andrew
    Banducci, Workforce Policy Counsel; Ed Gilroy, Director of
    Workforce Policy; Jessica Goodman, Legislative Assistant;
    Callie Harman, Legislative Assistant; Nancy Locke, Chief Clerk;
    Geoffrey MacLeay, Professional Staff Member; John Martin,
    Professional Staff Member; Dominique McKay, Deputy Press
    Secretary; James Mullen, Director of Information Technology;
    Krisann Pearce, General Counsel; Alissa Strawcutter, Deputy
    Clerk; Joseph Wheeler, Professional Staff Member; Tylease Alli,
    Minority Clerk/Intern and Fellow Coordinator; Austin Barbera,
    Minority Press Assistant; Michael DeMale, Minority Labor
    Detailee; Denise Forte, Minority Staff Director; Nicole Fries,
    Minority Labor Policy Associate; Christine Godinez, Minority
    Staff Assistant; Stephanie Lalle, Minority Press Assistant;
    Kevin McDermott, Minority Senior Labor Policy Advisor; Richard
    Miller, Minority Senior Labor Policy Advisor; Veronique
    Pluviose, Minority General Counsel; and Elizabeth Watson,
    Minority Director of Labor Policy.
        Chairman Walberg. A quorum being present, the Subcommittee
    on Health, Employment, Labor, and Pensions will come to order.
        Good morning to everyone here today, the committee as well
    as our witnesses, and those attending to hear what is going on.
    We thank you.
        I would like to begin by extending a warm welcome to our
    distinguished panel of witnesses, including leaders of tribal
    governments. We are fortunate to have you all with us today,
    and look forward to hearing from you.
        This hearing is about one basic principle: the sovereign
    rights of Native Americans must be protected. A simple
    statement, it is a simple principle. There are complex things
    surrounding it, but we hope to sort some of those out today.
        This core principle is woven deep into the fabric of our
    shared history. It is part of who we are as a society, and has
    long defined the unique government-to-government relationship
    that exists between the United States and independent tribal
    nations.
        What does tribal sovereignty mean? It means that Native
    American tribes have a fundamental right to self-govern. They
    have a right to self-determination. They have the freedom to
    advance their own economic policies in the pursuit of
    prosperity for tribal members.
        Bipartisan support for tribal sovereignty has been
    reaffirmed time and time again in Congress, and for more than
    180 years, the Supreme Court has held that tribes possess a
    nationhood status and retain inherent powers of self-
    government.
        Unfortunately, the National Labor Relations Board has taken
    a number of alarming steps in the past decade that have created
    widespread concern in the Native American community and
    threatened Tribal sovereignty as we know it.
        For nearly 70 years, the Board respected Native American
    sovereignty, and did not apply its jurisdiction under the
    National Labor Relations Act over tribes. The reason was
    simple. While the NLRA provides important protections for
    workers, it is a private sector labor law that specifically
    excludes state, local, and federal governmental employees.
        Congress recognized the differences between public and
    private sector employment, so it afforded every level of
    government the freedom to determine its own labor policies, but
    that all changed in 2004 with its San Manuel Bingo & Casino
    decision, where the Board suddenly reversed course.
        It abandoned long-standing precedent and began using an
    arbitrary test to determine when and where to exert its
    jurisdiction over Native American tribes.
        The Board's move understandably sparked outrage within the
    Native American community. In fact, the Chairman of the
    Mashantucket Pequot Nation testified before this very committee
    saying the Board's decision was, and I quote, ``an affront to
    Indian Country.'' He added, and I quote again, ``It suggests
    that Indian Tribes are incapable of developing laws and
    institutions that protect the rights of employees.''
        We also heard from the Lieutenant Governor of the Chickasaw
    Nation, one of the largest tribes in the country. He testified
    that tribal sovereignty is, I quote, ``a profound issue of
    national importance that cannot be left in the hands of an
    admittedly inexpert Federal agency.'' I could not agree more.
        The NLRB has no expertise in Indian law, and has no
    business meddling in the affairs of Tribal Nations, but the
    aggressive approach we have seen from unelected bureaucrats at
    the NLRB has only grown worse. A series of inconsistent and
    misguided decisions have created significant legal confusion
    for Native Americans and tribal-owned businesses.
        In order to prevent future NLRB overreach, Congress must
    pass the Tribal Labor Sovereignty Act. The legislation would
    amend the National Labor Relations Act to clarify that the law
    does not apply to businesses owned and operated by Native
    American tribes and located on tribal land.
        This will ensure that tribes receive the same treatment as
    States and local governments when it comes to policies
    impacting their workforce.
        I want to thank our colleague, Todd Rokita, for championing
    this legislation, and I would like to point out that this
    legislation is not about union workers versus non-union
    workers. What this legislation is about is very simple, it is
    about the fundamental principle that tribal governments are
    sovereign and are free to self-govern.
        Congress now has the opportunity to reaffirm this principle
    and follow through on our promise to the Native American
    community.
        I hope we can have a thoughtful discussion today on how we
    can further our commitment to protecting tribal sovereignty.
        I will now yield to my friend, Ranking Member Sablan, for
    his opening remarks.
        [The statement of Mr. Walberg follows:]

       Prepared Statement of Hon. Tim Walberg, Chairman, Subcommittee on
                     Health, Employment, Labor and Pensions

        This hearing is about one basic principle: The sovereign rights of
    Native Americans must be protected.
        This core principle is woven deep into the fabric of our shared
    history. It is part of who we are as a society and has long defined the
    unique government-to-government relationship that exists between the
    United States and independent, tribal nations.
        What does tribal sovereignty mean? It means that Native American
    tribes have a fundamental right to self-govern. They have a right to
    self-determination. And they have the freedom to advance their own
    economic policies in the pursuit of prosperity for tribal members.
        Bipartisan support for tribal sovereignty has been reaffirmed time
    and time again by Congress. And for more than 180 years, the Supreme
    Court has held that tribes possess a nationhood status and retain
    inherent powers of self-government.
        Unfortunately, the National Labor Relations Board has taken a
    number of alarming steps in the past decade that have created
    widespread concern in the Native American community and threatened
    tribal sovereignty as we know it.
        For nearly 70 years, the board respected Native American
    sovereignty and did not apply its jurisdiction under the National Labor
    Relations Act over tribes. The reason was simple. While the NLRA
    provides important protections for workers, it is a private sector
    labor law that specifically excludes state, local, and federal
    government employers.+
        Congress recognized the differences between public and private
    sector employment, so it afforded every level of government the freedom
    to determine its own labor policies. But that all changed in 2004. With
    its San Manuel Bingo & Casino decision, the board suddenly reversed
    course. It abandoned long-standing precedent and began using an
    arbitrary test to determine when and where to exert its jurisdiction
    over Native American tribes.
        The board's move understandably sparked outrage within the Native
    American community. In fact, the Chairman of the Mashantucket Pequot
    Nation testified before this very committee, saying the board's
    decision was ``an affront to Indian Country.'' He added that it
    ``suggests that Indian tribes are incapable of developing laws and
    institutions that protect the rights of employees.''
        We also heard from the Lieutenant Governor for the Chickasaw
    Nation--one of the largest tribes in the country. He testified that
    tribal sovereignty is a ``profound issue of national importance that
    cannot be left in the hands of an admittedly inexpert federal agency.''
    I couldn't agree more. The NLRB has no expertise in Indian law and has
    no business meddling in the affairs of tribal nations.
        But the aggressive approach we've seen from unelected bureaucrats
    at the NLRB has only grown worse. A series of inconsistent and
    misguided decisions have created significant legal confusion for Native
    Americans and tribal-owned businesses.
        In order to prevent future NLRB overreach, Congress must pass the
    Tribal Labor Sovereignty Act. The legislation would amend the National
    Labor Relations Act to clarify that the law does not apply to
    businesses owned and operated by Native American tribes and located on
    tribal land. This will ensure that tribes receive the same treatment as
    states and local governments when it comes to policies impacting their
    workforce.
        I want to thank our colleague Todd Rokita for championing this
    legislation. And I'd like to point out that this legislation is not
    about union workers versus non-union workers. What this legislation is
    about is very simple. It is about the fundamental principle that tribal
    governments are sovereign and are free to self-govern. Congress now has
    an opportunity to reaffirm this principle and follow through on our
    promise to the Native American community.
                                     ______

    [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

        Mr. Sablan. Thank you very much, Mr. Chairman, for holding
    today's hearing on H.R. 986, the Tribal Labor Sovereignty Act,
    and I would also like to wish a good morning and a welcome to
    all of our witnesses today.
        The effect of this legislation would be to strip employees
    who work at businesses owned and operated by an Indian tribe
    and located on Indian lands of the protections afforded by the
    National Labor Relations Act.
        This bill deals with a dispute between the sovereign rights
    of Native American tribes and the rights of workers to organize
    and bargain collectively. However, this bill does not reconcile
    these competing interests, but rather strips hundreds of
    thousands of workers of their rights.
        I am a Chamorro, one of the indigenous people of the
    Marianas, and fully appreciate the importance of tribal
    sovereignty for Native Americans.
        I also believe deeply in workers' rights to organize, to
    collectively bargain, and to protect their right to fight for a
    safe workplace, fair pay to provide a living for themselves and
    their families, and good benefits.
        To be fair, legislation and Labor Board decisions must
    balance these competing principles, and not favor one at the
    expense of the other. That is precisely what happened in the
    San Manuel Indian Bingo & Casino decision, where a Bush-era
    Labor Board by a bipartisan 3-1 vote asserted jurisdiction over
    a tribal casino on tribal lands.
        Using a template widely accepted by the federal courts, the
    Board stated it would exercise jurisdiction over commercial
    tribal enterprises, unless doing so would ``touch exclusive
    rights of self-government in purely intramural matters'' or
    ``abrogate rights guaranteed by treaty.''
        In the San Manuel decision, the Board noted a distinction
    between commercial tribal enterprises that employ a substantial
    number of non-Indians and cater to a non-Indian clientele
    versus traditional tribal services or governmental functions.
        At least 75 percent of employees at tribal casinos are non-
    tribal members, and in some cases, as few as one percent of the
    employees are members of the tribe operating the casino. They
    have no say in the decision making of tribal governments.
        There has been criticism of the San Manuel decision.
    However, the NLRB applied the same criteria as has been applied
    to other laws of general applicability, such as the
    Occupational Safety and Health Act (OSHA), the Fair Labor
    Standards Act, and many criminal statutes.
        For that reason, it is not surprising that multiple appeals
    courts have upheld San Manuel. Last year, the Supreme Court
    declined two petitions to overturn San Manuel.
        Federal labor law and tribal sovereignty can comfortably
    co-exist at tribal casinos without stripping workers of their
    rights under the National Labor Relations Act.
        As will be explained by a witness, some unions have
    consented to being governed by Tribal Labor Relations
    Ordinances, because these tribes adopted a mutually agreeable
    labor ordinance that protects workers' rights to join a union,
    and establishes a neutral dispute resolution panel.
        The important point being, however, is that if these tribal
    ordinances were amended in the future, these workers would
    still be protected by the NLRA. Tribal labor ordinances can be
    a workable option only if (1) they provide protections
    substantially equivalent to those afforded by the National
    Labor Relations Act, and (2) the NLRA exists as a backstop.
        I want to thank the witnesses for taking the time to
    prepare their testimony and traveling to be here with us today.
    I also want to recognize one of the tribal casino workers, Mary
    Elizabeth Carter, who works at the Cache Creek Casino in Yolo
    County, California, and is a member of UNITEHERE!.
        I yield back my time, Mr. Chairman.
        [The statement of Mr. Sablan follows:]

      Prepared Statement of Hon. Gregorio Kilili Camacho Sablan, Ranking
         Member, Subcommittee on Health, Employment, Labor and Pensions

        Thank you Mr. Chairman for holding a legislative hearing on H.R.
    986, the Tribal Sovereignty Act.
        The effect of this legislation would be to strip employees, who
    work at businesses owned and operated by an Indian tribe and located on
    Indian lands, of the protections afforded by the National Labor
    Relations Act.
        This bill deals with a dispute between the sovereign rights of the
    Native American tribes and the rights of workers to organize and
    bargain collectively.
        However, this bill does not reconcile these competing interests,
    but rather strips hundreds of thousands of workers of their rights
        I am a Chamorro, one of the native people of the Northern Marianas,
    and fully appreciate the importance of tribal sovereignty for Native
    Americans.
        But I also believe deeply in workers' right to organize, to
    collectively bargain, and to protect their right to fight for a safe
    workplace, fair pay to provide a living for themselves and their
    families and good benefits.
        To be fair, legislation and labor board decisions must balance
    these competing principles, and not favor one at the expense of the
    other. That is precisely what happened in the San Manuel Indian Bingo
    and Casino decision, where a Bush-era Labor Board (by a bipartisan 3-1
    vote) asserted jurisdiction over a tribal casino on tribal lands. Using
    a template widely accepted by the federal courts, the Board stated it
    would exercise jurisdiction over commercial tribal enterprises, unless
    doing so would ``touch exclusive rights of self-government in purely
    intramural matters'' or ``abrogate rights guaranteed by treaty.''
        In the San Manuel decision the Board noted a distinction between
    commercial tribal enterprises that employ a substantial number of non-
    Indians and cater to a non-Indian clientele versus traditional tribal
    services or governmental functions.
        At least 75% of employees at tribal casinos are not tribal members,
    and in some cases, as few as 1 percent of the employees are members of
    the tribe operating the casino. They have no say in the decision-making
    of tribal governments.
        There has been criticism of the San Manuel decision. However, the
    NLRB applied the same criteria as has been applied to other ``laws of
    general applicability'', such the Occupational Safety and Health Act,
    the
        Fair Labor Standards Act and many criminal statutes. For that
    reason, it is not surprising that multiple Appeals Courts have upheld
    San Manuel. Last year, the Supreme Court declined two petitions to
    overturn San Manuel.
        Federal labor law and tribal sovereignty can comfortably co-exist
    at tribal casinos, without stripping workers of their rights under the
    NLRA. As will be explained by a witness, some unions have consented to
    being governed by Tribal Labor Relations Ordinances because these
    tribes adopted a mutually agreeable labor ordinance that protects
    workers' right to join a union and establishes a neutral dispute
    resolution panel. The important point, however, is that if these tribal
    ordinances were amended in the future, the workers would still be
    protected by the NLRA.
        Tribal labor ordinances can be a workable option only if (1) they
    provide protections substantially equivalent to those afforded by the
    NLRA and (2) the NLRA exists as a backstop.
        I want to thank the witnesses for taking the time to prepare their
    testimony and traveling to be here with us today. I also want to
    recognize one of the tribal casino workers, Mary Elizabeth Carter, who
    works at the Cache Creek Casino in Yolo County California, and is a
    member of UNITE HERE. I yield back my time.
                                     ______

        Chairman Walberg. I thank the gentleman. Pursuant to
    Committee Rule 7(c), all members will be permitted to submit
    written statements to be included in the permanent hearing
    record, and without objection, the hearing record will remain
    open for 14 days to allow such statements and other extraneous
    materials referenced during the hearing to be submitted for the
    official hearing record.
        It is now my pleasure to introduce our distinguished panel
    of witnesses, beginning with the Honorable Brian Cladoosby, who
    is president of the National Congress of American Indians, and
    chairman of the Swinomish Indian Senate. Welcome.
        The Honorable Nat Brown, who is delegate to the Navajo
    Nation Council. Welcome.
        Mr. John Gribbon is the California Political Director of
    the UNITEHERE! International Union. Welcome, Mr. Gribbon.
        The Honorable Robert J. Welch is chairman of the Viejas
    Board of Kumeyaay Indians. We welcome you as well.
        I will now ask our witnesses to stand and raise your right
    hand, if you would.
        [Witnesses sworn.]
        Chairman Walberg. Thank you. You may be seated. Let the
    record reflect the witnesses answered all in the affirmative.
        Before I recognize you to provide your testimony, let me
    briefly explain the lighting system, and make that very brief.
    It is like the stop lights that we generally honor. I am only
    speaking for myself there. When it is green, keep going. You
    have five minutes during that green segment. When it turns
    yellow, that means a minute is left, so go faster, and do not
    push it to orange. When it turns red, complete your sentence,
    your basic thought. We appreciate that. There will be plenty of
    opportunity to expand on that as we ask questions.
        Now, I would like to recognize our first witness, Chairman
    Cladoosby.

     TESTIMONY OF BRIAN CLADOOSBY, PRESIDENT, NATIONAL CONGRESS OF
     AMERICAN INDIANS, AND CHAIR, SWINOMISH INDIAN TRIBAL COMMUNITY

        Mr. Cladoosby. Good morning, Chairman Walberg, Ranking
    Member Sablan. It is an honor to be here with you and your
    distinguished members of the subcommittee to talk about a very
    important subject that is near and dear to the hearts of many
    tribes, all tribes across the nation, and we are here to voice
    our strong support of H.R. 986, the Tribal Labor Sovereignty
    Act of 2017.
        The Tribal Labor Sovereignty Act is a simple fix that adds
    ``Tribes'' to the definition of ``governmental entities exempt
    from the National Labor Relations Act of 1935.'' In doing so,
    the legislation reinforces a critical part of Congress' efforts
    to support governmental parity for tribal governments and
    respect for sovereignty of tribal governments.
        I want to start by saying that Indian Country does not view
    this as a fight between tribal governments and labor. In many
    tribal communities across the country, tribal governments and
    unions work hand in hand to improve the working conditions of
    Indian and non-Indian workers.
        We greatly appreciate the significant contributions that
    unions have made, not only in Indian Country, but across the
    United States.
        Where tribal sovereignty is undermined or threatened in any
    way, we have no choice but to take a strong stand. This is what
    has happened in the National Labor Relations Board application
    of the NLRA to tribes. When the NLRA was enacted in 1935 to
    address growing upheavals in private industry, Congress
    exempted all government employers and all government owned and
    operated businesses from the act and the reach of the NLRB.
        The act does not specifically exempt the District of
    Columbia, U.S. Territories, and tribal governments, but the
    Board consistently interpreted the government exemption to
    include tribes and these other governments.
        Until 2004, for 70 years, the Board reversed a long-
    standing interpretation that declared that Congress intended
    the act to apply to tribal governments. With that decision, the
    Board upended 70 years of precedent, and unilaterally
    disregarded tribal labor law and made tribal governments the
    only governments in the United States subject to the NLRA.
        With the Tribal Labor Sovereignty Act, Congress resolves
    any question about whether the NLRA applies to tribal
    governments and affirms sovereign governmental rights of Indian
    tribes to make their own labor policies that govern their own
    governmental employees.
        Sovereignty means that these decisions must be left to the
    tribes, not federal bureaucrats, just as 90,000 other units of
    governments across the United States make these decisions for
    their employees.
        I've discussed what the Tribal Labor Sovereignty Act does,
    now let me take a moment to describe what it does not do. The
    legislation will not expand tribal jurisdiction outside that
    allowed to other sovereigns. It will not create union free
    zones on Indian lands. The bill only applies to employers who
    are first, tribal governments, and second, who operate on their
    own lands.
        For private sector employers located on Indian lands, the
    legislation would have no effect or application. The
    legislation would simply restore the intent of Congress that
    tribal governments should not be treated as private sector
    employers under the NLRA.
        Applying a private sector model to force collective
    bargaining over all conditions of employment under the threat
    of protected strikes is a formula for destabilizing any
    government. Giving an outside party the power to call a strike
    of a government's workforce is counter to the very concept of
    sovereignty, and requires that a governmental employer choose
    between surrendering its sovereign right to enact laws or being
    shut down by work stoppages.
        This is particularly problematic for tribal governments who
    lack an effective tax base and are required to engage in
    economic activity to raise revenue and fund local programs and
    services.
        As a result, for many tribal governments, tribal
    agriculture, energy, gaming operations, timber operations, and
    other tribal enterprises constitute the sole source of
    governmental revenues used to fund essential governmental
    services. Unlike private businesses, no government can safely
    shut down its enterprise operations because of labor disputes.
    Tribal police and fire departments, our schools and hospitals,
    our courts and our tribal legislatures must stay open to
    provide governmental services to our citizens.
        Thus, passage of the Tribal Labor Sovereignty Act is
    consistent with Congress' initial intent to exempt governmental
    employers from the National Labor Relations Act.
        In conclusion, I want to reiterate that Indian tribes
    support strong relationships with their employees. The Tribal
    Labor Sovereignty Act builds upon the principle that when
    Tribal sovereignty is respected and acknowledged, successful,
    accountable, and responsible governments and economies follow.
        Thank you for your commitment to maintaining the integrity
    and effectiveness of tribal governments, and for guarding
    against actions that would deny to those governments the same
    rights accorded to other state and local governments. Thank you
    very much, Mr. Chairman and ranking member.
        [The statement of Mr. Cladoosby follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Chairman Walberg. I thank the gentleman. Now, I recognize
    Delegate Brown for his testimony.

      TESTIMONY OF NATHANIEL BROWN, DELEGATE, 23RD NAVAJO NATION
                       COUNCIL, THE NAVAJO NATION

        Mr. Brown. Yaateeh, Chairman Walberg, Ranking Member
    Sablan, and members of the Committee. My name is Nathaniel
    Brown, 23rd Navajo Nation Council. I am sitting here on behalf
    of Navajo Nation president, Russell Begay. He apologizes for
    not being able to testify, but he had other obligations that he
    could not get out of.
        However, thank you for this opportunity to present
    testimony on H.R. 986, the Tribal Labor Sovereignty Act of
    2017. Let me start off by stating that we support this
    legislation as well as the companion bill in the Senate, S. 63.
    The bill is a step in the right direction towards honoring our
    sovereignty and self-determination.
        We are a sovereign nation. We have been here since time
    immemorial. We have signed treaties with Spain, Mexico, and the
    United States in 1868. We continue to honor the Treaty of 1868,
    which is approaching its 150th anniversary.
        We also have the inherent right to self-determination and
    self-governance. In exercising these principles, the Navajo
    people have created and developed our own government made up of
    executive, legislative, and judicial branches. Our executive
    and legislative leaders are elected by the Navajo people. Our
    judicial branches are appointed by the president of the Navajo
    Nation and confirmed by the legislative branch, similar to the
    federal government.
        We also develop, pass, and execute our own laws. When we
    pass laws, we expect these laws shall govern that our laws are
    not superseded or pushed aside by the laws of another
    governmental entity, including the federal government.
        We are not asking for special treatment. We want the same
    treatment as the federal government and states. If they are
    able to self-govern and be self-determined with regard to the
    NLRA, so should we.
        The NLRA was passed in 1935, and at that particular time,
    Indian tribes may not have been considered in many pieces of
    legislation. It was probably not even contemplated that the
    NLRA might have jurisdiction over Indian Tribes until 1976, in
    the Fort Apache Timber Company matter.
        It has been a long time coming, more than 80 years, and we
    have the opportunity to resolve this issue. We also need
    clarity and certainty. In 1976, the NLRB took one position,
    holding that tribal governments and tribal enterprises were
    exempt from the NLRA. However, in 2004, the NLRB reversed their
    position in San Manuel Indian Bingo & Casino, and held that the
    Board has jurisdiction over tribally-owned enterprises. A
    different Board took a different view of the law and what facts
    should apply.
        Boards have also been consistent in its approaches in
    applying NLRA to Indian tribes. H.R. 986 can provide a level of
    certainty so that the NLRB can have a consistent view even if
    Board members change from time to time.
        Furthermore, a troubling trend that we see in NLRB
    decisions is that when Indian tribes and their enterprises are
    not doing what is considered traditional tribal or governmental
    functions, they will be regulated. If we become more involved
    in commercial activity, we will be regulated.
        We need to get away from this type of thinking in the
    federal government. In today's world, Indian tribes have to get
    involved in a commercial world in order to help fund a
    continuous shortage of federal funding to provide needed
    services on the reservation. An Indian tribe's use of tribal
    enterprise in a commercial arena to help fund needed services
    should not be used to hamper or punish the Indian tribe.
        The Navajo Nation does have unions that operate on the
    reservations. The Navajo tribal government has entered into
    three collaborative bargaining agreements under our Division of
    Public Safety, our Executive Branch, and Head Start Department.
        From my understanding, there are some private sector/labor
    union agreements in place for employees on the Navajo Nation. A
    worker's right to join a union is protected pursuant to our
    Navajo Preference and Employment Act. We understand some tribes
    may have laws that are different than ours, but our ultimate
    message is that each Indian tribe should be able to determine
    its own direction on labor issues, as well as other issues.
        In conclusion, thank you for holding this hearing. Again,
    we support this legislation because it supports our sovereignty
    and self-determination. It will also greatly simplify and
    provide clarity to this issue. We appreciate the leadership of
    this subcommittee, and look forward to working with the
    chairman and ranking member to pass this important legislation.
    Ahehee.
        [The statement of Mr. Brown follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Chairman Walberg. Thank you, Delegate Brown. Mr. Gribbon,
    welcome, and you have five minutes of testimony.

       TESTIMONY OF JOHN GRIBBON, CALIFORNIA POLITICAL DIRECTOR,
                UNITEHERE! INTERNATIONAL UNION, AFL-CIO

        Mr. Gribbon. Good morning, Mr. Chairman, and members. Thank
    you for inviting me to testify today. My name is Jack Gribbon.
    I serve as the political director for UNITEHERE! in California.
    Our union represents hotel and casino workers in the United
    States and Canada, about 275,000, including 7,000 workers in
    tribal casinos in California.
        Accompanying me here today is Mary Elizabeth Carter, a
    member of UNITEHERE!, who is employed at the Cache Creek Casino
    and Resort owned by the Yocha Dehe Band of Wintun Indians in
    California.
        It is my hope to cover four points during my oral
    testimony. The first would be the importance of the National
    Labor Relations Act and the fundamental rights to free speech
    and free association.
        Second would be why tribal employers versus state and local
    government employers are not analogous.
        Third, Tribal Labor Relations Ordinances and their
    inadequacy absent the National Labor Relations Board, and then
    finally, the real life positive outcomes for workers and their
    families as the result of free expression and freedom of
    association.
        The importance of the NLRA jurisdiction: it is important to
    understand that the tribal gaming industry has become a $28
    billion per year industry nationally. In California, it's an $8
    billion industry. The Las Vegas strip by example is a $6
    billion a year industry.
        Title VII of the Civil Rights Act of 1964 has been held not
    to apply to Indian tribes. The only way employees of tribal
    enterprises subject to harassment and other forms of
    discrimination may speak out about them with any degree of
    safety is through the NLRA. It is important to note that the
    decision of the NLRB under San Manuel was a measured decision.
    It would not interfere with tribal rights of self-governance in
    purely intramural matters. It would not abrogate rights
    guaranteed by treaty, and it would not be contrary to the
    congressional intent.
        Some argue that employees of tribal enterprises should be
    treated like employees of state and local governments. However,
    the National Indian Gaming Association has stated 75 percent of
    workers at tribal casinos are not members of the owner tribe,
    75 percent of the workers nationally. In California, it's much,
    much higher than that because we have tribes who have very
    small enrolled memberships, so it's upwards of 85 to 90 percent
    of the workers are not members of the tribe. They cannot
    petition the government of the tribe. They cannot elect
    chairpersons or tribal members of the tribal Council. They do
    not have any influence over that.
        Contrary to that, local and state employees do. They have
    the right and they take advantage of that right, and they have
    protected their free speech rights and they have bargained over
    their wages and their benefits and other issues of employment
    with their employers, because they have the right to be
    involved politically with their government.
        The 85 to 90 percent of the workers at tribal casinos in
    California do not have the right to do that in Indian Country,
    nor should they, because they are not enrolled members of the
    tribes.
        The other issue that we should talk about here is the
    inadequacy of the Tribal Labor Relations Ordinances. There are
    many Tribal Labor Relations Ordinances (TLRO) in compacts in
    California. There are six different ones, at least. I think
    there are more than six different ones, but at least six.
        There are examples of TLROs that are not neutral, nor do
    they implement free speech or free association rights, and in
    particular, the Tribal Labor Relations Ordinance implemented by
    the Saginaw Chippewa Tribe in Michigan prohibited employees
    from forming or joining a union. It was also a firing offense
    for any employee to solicit for any purpose in any place.
        Finally, my last point here is a real-life issue. Because
    of the rights that the NLRA provides for tribal casinos in
    California, and because of the work of our union and the
    organizing of the workers at those casinos, workers like Mary
    Elizabeth Carter, who is with me today, who has been working at
    Cache Creek since 2013, has been able to support her family,
    help her husband get through electrician's school, keep her
    four children with health care, and put herself through school.
    That is because of the work that we have done, and that is what
    the real story is here in my view.
        [The statement of Mr. Gribbon follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Chairman Walberg. Thank you, Mr. Gribbon. I recognize
    Chairman Welch for your five minutes of testimony.

      TESTIMONY OF ROBERT J. WELCH, JR., CHAIRMAN, VIEJAS BAND OF
                            KUMEYAAY INDIANS

        Mr. Welsh. Good morning. My name is Robert Welch, Jr., I am
    chairman for the Viejas Band of Kumeyaay Indians. Thank you for
    allowing me to testify today regarding H.R. 986 and its
    importance to our tribal members, employees, and tribal
    sovereignty.
        The Viejas Band owns and operates Viejas Casino & Resort,
    which is the source of 99 percent of the government revenue
    used to fund initial services and programs, including
    education, health, housing, and public safety.
        The Viejas Casino & Resort provides over 1,600 jobs to our
    wonderful employees and annually contributes millions of
    dollars to the local economy. Tribal gaming has made self-
    determination and economic self-sufficiency a reality for
    Viejas.
        H.R. 986 is about respecting the sovereignty of tribes and
    affirming that they possess the same power as federal, state,
    and local governments to regulate labor relations on sovereign
    lands. H.R. 986 would reverse the NLRB's overreach under its
    2004 San Manuel decision, when it ignored 30 years of precedent
    to rule that the NLRA applies to Tribes.
        Opponents of H.R. 986 characterize the measure as anti-
    union and argue that the NLRA is essential to protect the
    rights of employees. That is not true, and the history of labor
    relations of Viejas shows why.
        Viejas would not be as successful without the good people
    who work for us, many of whom have been employees for over a
    decade. In August 1998, long before anyone believed the NLRA
    applied to tribes, Viejas entered into a voluntary election
    agreement in January 1999. CWA was elected as the bargaining
    representative for approximately 30 percent of the Viejas
    Casino & Resort workforce. Soon thereafter, a collective
    bargaining agreement was ratified.
        Every stage of the process, from organizing to contract
    ratification, reflected an intelligent sovereign decision by
    Viejas to capably regulate labor relations on its reservation.
    None of the procedures were compelled or forced upon Viejas.
        In September 1999, Viejas formally codified its labor
    relations law in the form of a Tribal Labor Relations
    Ordinance, TLRO, and has amended it since then with additional
    protections for employees and labor organizations.
        The TLRO is similar to the NLRA in that it includes access
    to elections, and unfair labor practice and dispute resolution
    provisions. It necessarily differs, however, in matters that
    are unique to Tribal gaming, including recognition of 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 binding arbitration.
        Substantially similar TLROs have been adopted by over 70
    tribes in California and unions have spoken in support of the
    TLROs before the California legislature.
        TLROs have worked for over 17 years. Unfortunately, Viejas'
    sovereignty, TLRO, and employment practices are currently under
    attack by the NLRB. The old adage ``no good deed goes
    unpunished'' best describes the NLRB's current enforcement
    action, which involves Viejas' payment of bonuses to
    represented employees in December 2015, bonuses that Viejas had
    no obligation to pay at all.
        In early 2015, Viejas and the UFCW negotiated a collective
    bargaining agreement, and Viejas offered to include annual
    bonuses in the agreement, but UFCW rejected the offer,
    insisting instead upon larger annual wage increases.
    Ultimately, the ratified agreement contained wage increases but
    no bonuses.
        2015 was a more successful year for Viejas Casino & Resort
    than expected. Viejas was able to pay bonuses to its
    unrepresented employees as budgeted, but also wanted to reward
    its represented employees for a year's success. Viejas decided
    to treat both groups of employees fairly.
        Since represented employees had already received their
    larger negotiated pay increases earlier in the year, paying
    them a gratuitous bonus meant Viejas needed to pay
    unrepresented employees an additional bonus amount in order to
    equalize overall annual compensation.
        Viejas' reward for the discretionary bonus was a NLRB
    enforcement action, which Viejas has been defending for the
    past 14 months at considerable expense.
        This case is now before the Board following an ALJ ruling
    that Viejas violated the NLRA. If the NLRB affirms the ruling,
    Viejas will be forced to seek review before the Ninth Circuit
    and potentially the U.S. Supreme Court.
        The passage of H.R. 986 would immediately halt NLRB
    intrusion into tribal labor relations, and would save money for
    the U.S. taxpayers and tribes from ongoing and future
    litigation.
        In conclusion, H.R. 986 is about protecting tribal
    sovereignty. Tribes have proven they can best develop laws to
    protect the rights of employees and also facilitate tribal
    government gaming operations and government services.
        They run just like federal, state, and local governments.
    The tribe should not be treated as second class citizens--
    second class governments, excuse me. I do believe freedom of
    speech is covered under the First Amendment.
        Viejas respectfully requests that Congress enact H.R. 986.
    Thank you for listening to my testimony today, and I stand
    ready to answer any questions you may have.
        [The statement of Mr. Welch follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Chairman Walberg. Thank you, Chairman. I thank each of the
    witnesses for doing pretty well in keeping to the time frame.
    That is not always the case here.
        Now, I have the privilege to recognize the chairwoman of
    the Full Education and the Workforce Committee, Dr. Foxx.
        Mrs. Foxx. Thank you, Mr. Chairman. I want to thank our
    witnesses today, and I also want to thank Mr. Rokita for
    introducing this bill and for the bipartisan support that he
    has obtained for it.
        Delegate Brown, at its core, this bill is about protecting
    the sovereign rights of Indian Nations. It is about protecting
    Native Americans from special interests who are less concerned
    about the sovereign rights of tribal members and more concerned
    with expanding union membership and filling union coffers.
        Some of those special interests claim that the workers
    affected are generally not tribal members. At Navajo
    enterprises, are most of the workers Navajo? Also, in your
    experience, are most unions run and staffed by members of the
    Navajo Nation?
        Mr. Brown. Thank you, Chairwoman Foxx, for the question.
    The unions, the Navajo Nation enterprises, the Navajo Nation
    Tribe, the majority of our employees are Navajo. For the
    sovereignty and for the union, our employees are protected with
    unions, and we also have ``for cause'' requirements for
    disciplinary actions. This is how our employees are protected.
        In meeting with some of the unions last week, they
    appreciate the function and the protection of the unions within
    the Navajo Nation. Thank you.
        Mrs. Foxx. Thank you very much. Chairman Welch, I am also
    concerned about the same way the organizations opposing this
    bill are misrepresenting how these commercial enterprises
    operate, as well as have the revenue they generate or utilize.
        Chairman Welch, it is my understanding that tribes use the
    revenues from their businesses to support core services
    provided by the tribal governments, such as public safety and
    infrastructure.
        How are revenues from your government owned businesses used
    by the Viejas?
        Mr. Welsh. We use the money we receive to fund our
    government programs, such as health, education, and fire
    departments, whatever we need to do on the reservation. Also,
    we are very generous on donating money to the surrounding
    communities, especially the Town of Alpine, the schools that
    our children go to.
        It's very important for us as Indian people to give back.
    There was a time when we were very, very poor, and we have a
    history of giving. So, when we were blessed with money, we made
    sure the surrounding community was taken care of, which is very
    interesting, because in Alpine--my mother was born in 1940. She
    went to public schools in Alpine. They had, as in the South,
    processed drinking water for Indians and white people, and that
    didn't deter us when we made money.
        We decided that the Town of Alpine was our partner, and we
    have funded a lot of their Kiwanis Clubs, et cetera.
        Mrs. Foxx. Thank you, Mr. Chairman. I yield back.
        Chairman Walberg. I thank the gentlelady, and now I
    recognize the ranking member, Mr. Sablan.
        Mr. Sablan. Thank you very much, Mr. Chairman. I serve on
    another committee that also has oversight over Native
    Americans, Native Alaskans, Native Hawaiians, and the
    Territories. In this committee, we recently had a hearing on
    the state of Indian schools, BIE schools.
        I agree that you need all the money you can to upgrade the
    education and health services provided to your people. I do not
    disagree with that.
        Let me ask, Mr. Gribbon, if I may, if H.R. 986 was enacted,
    are there any provisions that would prevent tribes from
    weakening or eliminating their existing labor laws?
        Mr. Gribbon. No. However, there's a couple of different
    issues here. One is that the existing collective bargaining
    agreements are not throughout all of tribal casinos in
    California, or across the country, nor are they in place in a
    variety of other industries, like mining, in some places.
        Without the NLRA, the National Labor Relations Act, which
    would be exempted by this bill, H.R. 986, without that, there's
    not the incentive to work out these Tribal Labor Relations
    Ordinances, in my view, and in my experience.
        Then again, some of these Tribal Labor Relations Ordinances
    have led to collective bargaining agreements that increased
    wages and benefits for workers, that have worked well in
    partnership with tribes that we work with.
        Some of them are not adequate, like the one I mentioned
    from the Saginaw Chippewa Tribe. Some of them, like the
    majority of them in California, are extremely weak, ones that
    were negotiated in 1999 by the Gray Davis Administration, then-
    Governor Gray Davis, not one worker has organized under those
    TLROs.
        So, without it, without the NLRA, there isn't a continued
    ability to be able to improve TLROs, and moreover, every time
    there's a new governor, you know, it depends on who he or she
    is, what kind of position they're going to take with respect to
    that part of the compact.
        Mr. Sablan. So, without the National Labor Relations Act,
    there is really no backstop of protection for workers is what
    you are saying?
        Mr. Gribbon. It's an absolute foundation.
        Mr. Sablan. Let me ask the witnesses, if I could just get a
    yes or no answer, I would appreciate it, the witnesses who are
    here to support the bill, are you saying that for the
    sovereignty of Indian Country, the National Labor Relations Act
    should not apply because of the sovereignty? Is that across the
    board or just for your tribes? For your individual tribes? Yes,
    across the board or just for your Tribe?
        Mr. Cladoosby. Yes.
        Mr. Sablan. Yes to which one, just your tribe, or do you
    speak for all Native Americans?
        Mr. Cladoosby. The National Congress of American Indians
    advocates for 567 Tribal Nations, and we have three conferences
    a year, and at those conferences, we have an opportunity to
    pass resolutions.
        One of the resolutions that was passed unanimously, and we
    are a consensus organization, was to support this legislation,
    so that's where our marching orders come from.
        Mr. Sablan. Because you as a tribe are sovereign?
        Mr. Cladoosby. Yes.
        Mr. Sablan. So, why is it there are tribes with casinos who
    go to great length and extent to deny tribes without casinos a
    license? Are they not also sovereign tribes that you represent
    today?
        Mr. Cladoosby. Denied a license?
        Mr. Sablan. Denied a casino license. They come to Congress
    and lobby. Are they not as sovereign as each one of you here?
        Mr. Cladoosby. Yes.
        Mr. Sablan. Then why do you lobby Congress to deny them a
    casino license? Why can they not get the same thing you have?
        Mr. Cladoosby. I'm not sure what you're referring to,
    Congressman.
        Mr. Welsh. May I try?
        Mr. Sablan. Yes, please. I do not have much time, but
    please.
        Mr. Welsh. It all depends on the situation. In California,
    if they're trying to do off reservation gaming, then I can see
    why other tribes would try to stop them from getting licensure,
    because that's not what's in the compact or what the state
    voted for, what California voted for.
        As for H.R. 986, I cannot speak for any other tribe in the
    United States other than my own, if I was able to, I would say
    yes, but it is a yes for my tribe.
        Mr. Sablan. Thank you. I appreciate that. Thank you.
        Chairman Walberg. I thank the gentleman. The gentleman's
    time has expired. I now recognize myself for five minutes of
    questioning.
        Chairman Cladoosby, your testimony mentions that the
    National Congress of American Indians is the oldest, largest,
    most represented tribal government organization in the Nation.
    Suffice it to say the NCAI represents a wide variety of tribal
    governments, and on a wide range of issues.
        On the question of tribal sovereignty and assertion of
    jurisdiction by the National Labor Relations Board over tribal
    commercial operations, let me ask you, is there a consensus
    among your members, even beyond what you just alluded to in the
    previous answer?
        Mr. Cladoosby. Yes, definitely so. You know, in a nutshell,
    we didn't ask for this relationship with Congress, we inherited
    it. Every one of you Congressmen sitting up there--
        Chairman Walberg. Some of us have inherited it, too.
        Mr. Cladoosby. Yes. We both inherited this relationship,
    and you are our trustee. We've always been recognized, even in
    the Constitution, as sovereigns, and that's all we want to be
    recognized as. I can't imagine if the NLRB took any of the
    other 90,000 governments and told them they no longer are
    protected by this, they have to abide by different rules, what
    kind of rush to this hearing you would have.
        We just want to be treated as sovereigns, as other
    governments. We've heard it loud and clear from our membership
    at NCAI, and we're an organization that advocates for tribes,
    and they give us our marching orders through resolutions, to
    come here to let you know that we wholeheartedly support H.R.
    986.
        Chairman Walberg. These are long-standing hard fought
    battles over the decades and decades as well that we are
    dealing with here in the issue of sovereignty. I appreciate
    that.
        Delegate Brown, I understand the Navajo Nation hosts
    private sector businesses like defense contractors and mining
    operations on your lands that employ a good number of Navajo
    citizens. Could you tell us about these in a little bit of
    detail?
        Mr. Brown. Thank you, Chairman Walberg, for your question.
    With some of the private sector, including Peabody, SRP and
    such, they currently have unions where they are protected, and
    they enjoy this protection. It creates a voice for them within
    the Navajo Nation.
        Chairman Walberg. So, you are not creating union free zones
    in these cases?
        Mr. Brown. No.
        Chairman Walberg. Those are private entities that have the
    good opportunity to work, to the benefit of both, Navajo Nation
    as well as their own interests, and unions are afforded that
    opportunity?
        Mr. Brown. Yes.
        Chairman Walberg. I just wanted to get that point, this
    bill does not create union free zones, neither do your efforts
    and involvements with these private sector contractors, et
    cetera. Thank you.
        Chairman Welch, you spoke about costly litigation under the
    NLRA. Can you expand on how tribal enterprises which provide
    funds for tribal government services are threatened by long,
    drawn out litigation under the NLRA, and also, how this differs
    from your previous Tribal Labor Relations Ordinances?
        Mr. Welsh. Because we have to go through the NLRB process,
    which is kind of expensive for us, and we have done all our
    research on NLRA and NLRB for the judgments. It seems like they
    always favor the unions.
        So, if that happens, we have the right to appeal, and for
    the appeal, we have to go up the ladder, which will cost us
    significant dollars that could be spent on our tribe and for
    whatever we need to provide a better lifestyle for our members,
    and also could affect the team members who work for us.
        Chairman Walberg. Thank you. Now, I recognize the gentleman
    from New Jersey, Mr. Norcross.
        Mr. Norcross. Thank you, Chairman, appreciate the time, and
    certainly bringing this issue to light. I find it fascinating
    going through the different laws that we passed over the years
    that do apply.
        I would like to start my questioning with the Honorable
    Brian Cladoosby. This issue you find offensive to the sovereign
    nation, and I can understand what you are saying. The Fair
    Labor Standards Act, OSHA, they apply to you. Do you feel that
    is also an attack on your sovereignty?
        Mr. Cladoosby. Thank you, Congressman. Thank you for the
    question. Yes, as sovereign nations, there are still certain
    things that we have to abide by when it comes to federal law,
    not state law, but when it comes to holding us to a different
    standard, you have governments in your districts, and if those
    governments were treated differently by the NLRA, you would
    hear it loud--
        Mr. Norcross. I understand. Why is this more offensive to
    you than let's say ERISA, that protects pensions and
    retirements? Why is this more offensive?
        Mr. Cladoosby. Treated differently. We are a government. I
    think all the members up here would recognize that we are
    sovereigns, we are nations, we are governments.
        Mr. Norcross. I understand that. Why is this different than
    all the others that apply to you, and why are you not trying to
    change those also?
        Mr. Cladoosby. We would love to. We would love to be
    treated as true sovereigns, to be self-sustaining, to be under
    the arm of a paternalistic form of government that was placed
    upon us over the last 200 years, but unfortunately, you know,
    that is not going to happen.
        Mr. Norcross. I understand. We have both inherited this.
        Mr. Cladoosby. Yes.
        Mr. Norcross. Decisions made by people who came before us
    puts us into a position. When the NLRA was first passed, I do
    not think we had the issue before you of having tens of
    thousands of employees working for casinos. It is a very
    different world now.
        So, Mr. Gribbon, let me ask you, why is this different? Is
    this the traditional conversation we have, employer versus
    employee? Is that why this is different?
        Mr. Gribbon. Well, it seems that way to me, but one of the
    issues that I think is important to understand here, the Kaiser
    Family Foundation has put out a report, separate and apart from
    anything that my union has proposed, and contrary--I shouldn't
    go there. The bottom line is the average difference per year
    for a casino worker in California, depending upon whether they
    are union or not union, is about $8,000 a year.
        Now, these are very, very successful casinos, and very
    successful casinos in California, an $8 billion a year
    industry, but workers standing up for supporting their families
    with health care and with decent wages, it does have a cost, it
    does have a financial cost. It's one they deserve to be able to
    struggle for.
        Mr. Norcross. So, what I am hearing is it is a cost issue
    for the employee, and I heard great things about what the
    profits go for, certainly things that we all care about.
        Delegate Brown, I appreciate you had card checks for many
    of the unions that operated it on you. Why is this different
    for you than it is for all the other casinos? Is it because the
    percentage of employees are actual tribal members?
        Mr. Brown. Thank you, Mr. Norcross, for your question. With
    Navajo, yes, the majority of the employees are Navajo.
        Mr. Norcross. They get card check recognition. You have a
    higher percentage, you gave them card check; you have a very
    low percentage, and you tend to fight it. Help me rectify that
    in my mind, why that would be two different ways.
        Mr. Brown. Could you repeat the question?
        Mr. Norcross. You have card check where you recognize the
    rights of the employees to have a voice. In California, what I
    am hearing is where there is a very low percentage of members
    who work there, the tribe tends to fight this much more
    vigorously. Why is that? Is it because it is the percentage of
    tribal members that work at the casino that drives that
    decision?
        Mr. Brown. Yes. Again, the number of employees with the
    Navajo Nation, basically our laws protect the workers under the
    Navajo Nation Equal Employment Act. I don't know about other
    tribes.
        Mr. Norcross. I see my time is running out. I yield back.
    Thank you.
        Chairman Walberg. I thank the gentleman. I now recognize
    the immediate past chairman of this subcommittee, the gentleman
    from Tennessee, Dr. Roe.
        Mr. Roe. Thank you, Mr. Chairman. Since 1832, the Supreme
    Court has held that Native American tribes retain inherent
    powers of self-government. I just looked up ``sovereignty.'' It
    says ``The authority of a State to govern itself.''
        What these tribes are looking for is parity, the same as
    any other state and local government. That is all they are
    asking for. It is not complicated. It was mentioned about how
    many billion dollars in the industry, thank goodness that the
    Indian tribes have lived in poverty for so many years and now
    have some resources to help the people they represent.
        I know exactly what that is like. They represent their
    people and their tribe and their government just like I
    represent the people in my government.
        So, thank you for what you do, and I think this is an
    assault on liberty when you try to have a big federal
    government tell a tribal government what to do.
        I am going to start by just asking a couple of questions.
    First, Chairman Cladoosby, many federal labor laws specifically
    exclude Indian tribes from the definition of ``employer.'' Is
    there any mention of Indian tribes in NLRA, and if the act is
    solid, what theory has the NLRA applied to jurisdiction over
    tribes?
        Mr. Cladoosby. That is a real good question, Mr. Roe,
    because for 70 years, we were exempted, and then in 2004--once
    again, thank you for recognizing the impact that Tribes are now
    having on the local economy. In some places, we're the largest
    employers in our counties.
        We just want to be recognized as a government like the
    other governments. The gentleman asked about OSHA, the
    difference is a federal third party, a union, being forced on
    the tribes is really a big issue that I wanted to address with
    that gentleman also. Thank you for that question.
        Mr. Roe. Delegate Brown, could you further elaborate on the
    size and scope of the Navajo government? Do you have courts,
    legislative branch, other government functions that a private
    employer would not have? What role do tribal enterprises play
    in maintaining these operations?
        Mr. Brown. Thank you for your question, sir. Within Navajo
    Nation, we have over 300,000 members, this is on and off the
    Navajo Nation. Again, we are a mirror to the federal
    government. We do have a legislative, judicial, and executive
    branch. Within judicial, we do have a court system. We have our
    Labor Relations Office, and we also have the Navajo Nation
    labor relations laws that protect our people.
        Mr. Roe. We should respect that. How do Navajo employee
    wages and benefits compare to local averages where you live and
    govern?
        Mr. Brown. Within Navajo Nation, we still have a high
    unemployment rate. However, some of the wages are comparable,
    and we do have a good medical package, and I think that's where
    we try to make up for some of the low wages in some areas, but
    they're pretty comparable otherwise.
        Mr. Roe. As a leader of one of the largest tribal
    governments, what does sovereignty mean to you and your people?
        Mr. Brown. Sovereignty is to govern ourselves as we have
    our ways of life, and we understand that today, the way any
    government would function is with money. Slowly, we would like
    to be completely sovereign, to have our say, to have our
    stance, and we would like to be respected the way the United
    States federal government is.
        Mr. Roe. I was a mayor before I came here, mayor of my
    local city, 65,000 people. I think you just want to be treated
    the same way and operate the same way I was when I was mayor of
    Johnson City, Tennessee. I think that is what I am hearing and
    what I read in this bill, in Mr. Rokita's bill, which I
    wholeheartedly support.
        One last question to Mr. Cladoosby, if you can. You spoke
    about the possibility of unions interfering in tribal politics
    and elections. A single union could end up representing a large
    portion of tribal voters. How would unions under NLRA
    jurisdiction have an even greater ability to interfere with
    Tribal elections than unions under Tribal labor laws?
        Mr. Cladoosby. Once again, I want to make it very clear
    that we're not anti-union. The unions, they fulfill a very,
    very important role in the United States, and they have since
    its creation.
        We just want to make sure that as sovereigns, we're able to
    treat our employees the best that we can, enact the laws that
    we need to protect our employees, and I believe every Tribal
    government does that.
        We have witnessed outside interference in our homelands
    since the non-Indian came into this beautiful country, the
    greatest country in the world. We've been dealing with that
    ever since.
        So, we view this as just one more attempt by the federal
    government to allow a third party to come into a sovereign,
    something that you don't allow for your city, your former city,
    any of your cities, where you guys come from. You have a system
    set up, a government set up, and we just want to be treated
    like that government.
        Mr. Roe. Thank you, Mr. Chairman. Thank you for being here,
    and I yield back.
        Chairman Walberg. I thank the gentleman. I recognize the
    gentlelady from Florida, Ms. Wilson.
        Ms. Wilson of Florida. Thank you, Chairman Walberg and
    Ranking Member Sablan, and our Ranking Member Scott.
        I want to thank our witnesses for sharing your perspectives
    with us. It is important for us to hear from you so that we
    will know how to best move forward in our endeavors.
        I would like to thank all of my colleagues here today, and
    I strongly support the sovereignty of the Native American
    Nations. I believe we need to promote their rights to self-
    governance, as well as their independence.
        However, I also strongly believe in the rights of workers
    to organize, and to be able to work in a safe environment. This
    includes Native American workers and non-Native Americans that
    work in tribal enterprises. Congress should not favor one at
    the expense of the other.
        That said, Mr. Chairman, I cannot support this bill in its
    present form before us today, since it would severely harm
    workers' rights by stripping hundreds of thousands of workers
    employed at Indian owned tribal enterprises of their voice in
    the workplace, and deny protections for them under the National
    Labor Relations Act.
        I want to direct my question to Mr. Jack Gribbon, political
    director for UNITEHERE! Why do you oppose H.R. 986, and explain
    to us why it is important not to eliminate NLRA as a backstop
    even where you have a Tribal Labor Relations Ordinance?
        Mr. Gribbon. Congresswoman, thank you very much for the
    question. It's important because the NRLA is the foundation and
    the only foundation on federal lands for the ability for a
    worker to have the right of free speech and free association.
        It has also created the incentive for workers and tribes to
    come together and work out additional avenues of reaching an
    agreement that prevent the ability for striking, that prevents
    some of the concerns that some of the tribes here have
    described today.
        The bottom line is in the San Manuel decision, the NLRB
    noted a really big distinction here within that decision,
    between commercial tribal enterprises, like a casino, like a
    mine, like a construction company, and enterprises that employ
    a substantial number of non-tribal members, and cater to non-
    Indian clientele versus traditional tribal services or
    governmental functions.
        Most importantly, the National Labor Relations Board is
    clear that it has no jurisdiction over internal tribal
    governmental matters, but only over the protection of free
    speech and the protected, concerted activity of employees in
    commercial tribal enterprises.
        Ms. Wilson of Florida. A witness on the panel testified
    that the application of the National Labor Relations Act would
    undermine federal and tribal policies requiring Indian
    preference in employment. Do unions have the right to restrict
    whom employers hire under NLRA, or was that outlawed under the
    Taft-Hartley Act?
        Mr. Gribbon. It is outlawed. But let me just tell you
    practically speaking, my union, we don't have an impact on the
    employer pre-hiring. We don't actually have protections for
    workers for the first 90 days that they are employed in covered
    employment under a collective bargaining agreement at a casino.
    After that 90th day, we have the ability to protect and grieve,
    whatever, should there be a reason to do that.
        Having said all that, there are tribes in California,
    particularly Graton Rancheria, where they are absolutely
    crystal clear that they have a Native American preference for
    hiring, and we salute that, we support that. They have been
    actually very successful at doing that.
        Chairman Walberg. I thank the gentlelady. I now recognize
    the sponsor of this legislation, the gentleman from Indiana,
    Mr. Rokita.
        Mr. Rokita. I thank the chair for holding this hearing. I
    thank the past chair for holding the hearing last Congress. I
    thank the chairman of the full committee for doing this.
        This is a stand-alone bill, it is not supposed to be a
    controversial issue. It got out of the House in a very strong
    way with bipartisan support last Congress, and I expect even
    more bipartisan support this time.
        The fact of the matter remains, Chairman, it is a very busy
    time. We are talking in terms of reconciliation and mega bills,
    this and that, and the other thing, a tax reform, health care.
        This bill is none of that. This bill is simple on its face,
    and while the word talked about most here is ``sovereignty,''
    and I think that is a very important concept, I think an even
    more important word that came up in this hearing is ``parity.''
        Mr. Norcross asked the question of several of the
    witnesses, well, why is this different than any other. Well, it
    is different because under the NLRA, the National Labor
    Relations Act, state and local governments are not covered,
    nor, Mr. Gribbon, are there commercial enterprises covered.
        So, this foundation that Mr. Gribbon speaks of that is so
    badly needed for our Native American leaders is not found for
    our leaders and our governments at the State and local levels.
    That is the parity we are talking about.
        Mr. Gribbon. Can I speak?
        Mr. Rokita. No. OSHA does speak to state and local
    governments, OSHA does cover that, and that is another
    difference here. That is simply what we are talking about, do
    we believe that our Native American leaders are any less
    legitimate to operate their governments or in a less way than
    our state and local leaders do? What is it about Native
    American leaders that the Obama Administration and NLRB does
    not trust?
        Are these leaders sitting before us today, ladies and
    gentlemen of this committee, less legitimate than any other
    mayor, like Phil Roe was, or any other elected leader, and by
    extension, why are Native American voters who elected these
    leaders not trusted in parity as leaders of State and local
    governments were elected?
        I do not know, but that is what it boils down to. We need
    this foundation, Mr. Gribbon describes, because these leaders
    apparently, and their governments, cannot handle it, in that
    mindset. That is wrong. That idea itself is the idea that is
    illegitimate.
        That is what this bill intends to correct. I think we are
    going to get there, Mr. Chairman, this time. We had 24
    Democrats vote for it off the House floor last Congress. I do
    not know why all of them did not.
        Our Native American partners, our brothers and sisters, are
    either sovereign or they are not, and where do we stand? Fair
    is fair and right is right.
        Chairman Cladoosby, in your written testimony, you state
    that you ``Are not aware of any tribe that does not have an
    extensive process for employees to make complaints and to
    appeal adverse employment decisions.''
        What are some examples of how tribes are protecting their
    employees? Is there anything that we in the Federal Government
    can learn from the Tribes on this topic?
        Mr. Cladoosby. Thank you, Mr. Rokita. Yes, definitely, and
    once again, when I was growing up, Swinomish had five employees
    in the late 1960s/early 1970s, five employees. Now, we have
    over 900 employees that are paid very good wages, that have
    great benefits. Some of my employees have been with us 30 plus
    years because they love working for Indian tribes.
        We have definitely set up internally from a tribal
    governance perspective rules that govern our employees, and we
    have a process set up where we have a full H.R. Department, we
    have an attorney that is well versed in labor laws that came to
    us.
        We are in a position now where we have the infrastructure
    that we've never had before, and we do take care of our
    employees and make sure that their concerns are taken care of.
        Just one other point on the NLRB, it has ruled that tribal
    preference is unlawful in a case involving Chickasaw and
    Choctaw. That is a concern that tribes have across the Nation
    of allowing a third party coming in to our homelands. Thank
    you.
        Mr. Rokita. Thank you, Chairman. Mr. Chairman, my time has
    expired.
        Chairman Walberg. I thank the gentleman. I now recognize my
    friend from Connecticut, Mr. Courtney.
        Mr. Courtney. Thank you, Mr. Chairman. Thank you to all the
    witnesses for being here. I have a little less gloomy
    perspective than my friend, the sponsor of this bill, in terms
    of the choice that we have before us.
        As some of you know on the panel, I am proud to represent
    Eastern Connecticut, which is home to two of the largest Native
    American casinos, Mohegan Sun and Foxwoods Casino, which is
    Mashantucket Pequot Nation.
        Ten years ago, roughly, almost 10 years ago, the UAW and
    the Mashantucket Pequot Tribal Nation entered into an agreement
    regarding a labor organizing drive, which again started with
    the NLRB, but ended up with the legal framework of the
    Mashantucket Pequot Nation. For again almost 10 years, they
    have had a very harmonious relationship for the bartenders and
    the dealers that the UAW represents, again, within the
    framework of tribal law.
        Again, I do not want to misrepresent anything. I know the
    Mashantucket's support this legislation, and I want to make
    that clear on the record, but what I would just say is the
    notion that this is a totally insolvable problem for the two
    sides to work out, recognizing an overall right to collective
    bargaining, which has been guaranteed since the 1930s and
    recognized by the United Nations, and in the 1800s, Pope Leo
    recognized collective bargaining as an essential element of
    human dignity.
        Again, we can find a way to make this work. As I said, that
    in fact has been the case. Right now, the UAW and the
    Mashantucket Pequot's are hard at work at the Connecticut State
    legislature sort of trying to fend off a threat up in
    Massachusetts in terms of a casino operation opening up there.
        Actually, that collective bargaining relationship, I think,
    has actually helped them in terms of having sort of more
    political muscle in terms of dealing with that challenge to the
    casino's future.
        I want to thank all the witnesses for being here. Again,
    sovereignty issues are in the fabric of our Nation's history,
    and we have to be really careful and mindful of it.
        Whether it is a police jurisdiction on casinos or OSHA
    jurisdiction, these are issues that I think have to be dealt
    with a scalpel and not a sledge hammer.
        As I said, I am an optimist in terms of the fact that
    reasonable people can come to an agreement, recognizing again
    sovereignty and sovereign control.
        So, I really do not have a question. I would like, however,
    Mr. Chairman, to enter into the record a letter from the folks,
    the workforce, at Foxwoods, in terms of again just confirming
    the fact this has worked out, that this issue has been worked
    out in a harmonious fashion, recognizing the rights of both
    sides.
        Again, with that, I would yield back.
        Chairman Walberg. Hearing no objection, it will be entered.
        I thank the gentleman. I now recognize the gentleman from
    Minnesota, Mr. Lewis.
        Mr. Lewis. Thank you, Mr. Chairman. In 1935, the National
    Labor Relations Act was enacted to ensure fair labor practices,
    and the Board, of course, associated with it. It excluded
    deliberately federal, state, and local governments from its
    reach. For 70 years, that had been the legal precedent, and it
    applied to Tribal governments as well, until the San Manuel
    decision in 2004. So, we are going on new legal ground here in
    a very dramatic way.
        Now, as a representative from the great state of Minnesota,
    in my district, I am proud to have two striving tribes, and
    doing very well, so I am proud to be a co-sponsor of this
    legislation with Representative Rokita and applaud his hard
    work.
        The problem here is the NLRA is applied to the tribes as a
    covered entity. This would just be the camel's nose. What other
    government rules from the federal government that are currently
    excluded from local governments, state governments, and
    commercial activities, will now be applied to the tribes as
    well?
        I have to say I fear when that happens that many of the
    rules in non-tribal enterprises that are hamstringing those
    will hamstring the tribes as well. These are great enterprise
    zones, an example of great prosperity for a number of people.
        If we start applying these rules, especially since the
    tribal governments do not get sales, income, or property tax
    credits, they rely on their commercial activities at this
    point, and I fear that it will do them great damage if we start
    letting a very capricious NLRB start to regulate them.
        In fact, in the San Manuel case, the decision was decided
    or applied on a case by case basis. So, we have a situation now
    where the Board could act and apply rules in a very, very
    capricious way, and some might even say a political way, which
    would add more uncertainty to tribal governments.
        It has been noted by some of the witnesses or one of the
    witnesses that workers at casinos--many workers at casinos are
    not tribal. So, therefore, it is a commercial activity, and the
    NLRB ought to be have jurisdiction there.
        One of the reasons that so many workers, at least in my
    district, at our very successful tribes, are not all from the
    tribes itself is because these are good jobs. So, non-tribal
    folks in the Second District want to work there.
        That, I think, is a testament as to why Representative
    Rokita's bill needs to be passed, to make certain they can
    continue to strive and to continue to offer good jobs to tribal
    members and non-tribal members alike.
        So, I really have no questions for the witnesses other than
    to say in the interest of legal precedent, as well as the
    concept of subsidiarity and local government, these enterprise
    zones ought to be allowed to flourish, and I would add the free
    speech of tribal governments ought to be allowed to flourish as
    well.
        So, I am proud to support the Tribal Labor Sovereignty Act
    of 2017, and urge the committee--
        Mr. Rokita. Will the gentleman yield?
        Mr. Lewis. I do.
        Mr. Rokita. I thank the gentleman for yielding. Will the
    gentleman consider entering into the record this letter from
    the United States Chamber of Commerce, which asks that this
    bill be favorably reported not only out of the full committee
    but out of the House of Representatives and out of the Senate?
        Mr. Lewis. Mr. Chairman, I would request this letter from
    the United States Chamber of Commerce be entered in the record
    that advocates the markup of the bill.
        Chairman Walberg. Hearing no objection, it will be entered.
        Mr. Lewis. Thank you.
        Chairman Walberg. I thank the gentleman. Now, I have the
    privilege to recognize the ranking member of the full Education
    and the Workforce Committee, the gentleman from Virginia, Mr.
    Scott.
        Mr. Scott. Thank you, Mr. Chairman, and thank you to you
    and the ranking member for holding the hearing. I am not sure
    which representative will want to answer this, but it is my
    understanding that currently and under the bill, government
    operations are not covered by the NLRB. Is that true?
        Mr. Gribbon. What I can say to you is the NLRB has said
    that under the San Manuel decision, it provides that the NLRA
    applies only wherein its application would not interfere with
    tribal rights of self-government in purely intramural matters,
    abrogate rights guaranteed by treaty, or be contrary to
    congressional intent.
        Mr. Scott. Let me ask some of the other witnesses. Does
    anybody doubt government operations, city councils, government
    employees, would not be covered by the NLRB, both under the
    bill and under present law?
        Mr. Cladoosby. I guess you would need to look at the
    definition of ``government operations.''
        Mr. Scott. Tribal employees employed by the tribal
    organization doing governmental functions, road building--
    employees of the tribal government doing governmental functions
    would not be covered by the NLRB either under present law or
    under the bill?
        Mr. Cladoosby. Just like federal, state, and local
    government employees?
        Mr. Scott. Right.
        Mr. Cladoosby. That are not covered under the NLRB, we want
    to be treated the same as those federal, those state, and those
    local governments--
        Mr. Scott. I am just trying to determine and focus on what
    the impact of the bill would be.
        Mr. Cladoosby. I think the impact of the bill would look at
    tribal sovereigns like they did for 70 years under the NLRB,
    and treat us like federal, state, and local governments. That
    is all we are asking today.
        Mr. Scott. Under current law and under the bill, you are
    not covered right now for governmental functions? Is that
    right?
        Mr. Cladoosby. Right now, the NLRB has--
        Mr. Scott. Does not apply to government operations?
        Mr. Cladoosby. Once again, your definition of ``government
    operations'' might be different than my definition of
    ``government operations.''
        Mr. Scott. We have not gotten to that. On the government
    operations, you are not covered. The bill would extend that
    exemption to Indian owned and operated enterprises. Is that
    right?
        Mr. Cladoosby. Just like we have mega lotteries run by
    states across the nation. We're not the only government that
    runs gaming.
        Mr. Scott. I am just trying to understand the bill.
        Mr. Cladoosby. So, I would hope that you would look at our
    government operations the same way you would look at a state.
        Mr. Scott. I am just trying to understand what the bill
    does.
        Mr. Cladoosby. Right.
        Mr. Scott. The bill extends the exemption to Indian owned
    and operated enterprises.
        Mr. Cladoosby. The same way it does for state owned and
    operated enterprises.
        Mr. Scott. Okay. Does the bill extend to privately owned
    enterprises?
        Mr. Cladoosby. No. So, once again, we are not creating
    union free zones in Indian Country under this bill. We need to
    make that very clear.
        Mr. Scott. Would a tribal organization be able to prohibit
    unions from a reservation?
        Mr. Cladoosby. Once again, a sovereign should be allowed to
    govern the way it wants to, no other outside--
        Mr. Scott. I am talking about for a private enterprise.
        Mr. Cladoosby. If a tribe wants to unionize, that is up to
    the Tribe.
        Mr. Scott. I am not talking about the tribe. I am talking
    about a private non-Indian owned, non-government owned
    enterprise, a privately owned enterprise, should they be able
    to prohibit on the reservation unions--
        Mr. Cladoosby. You mean like a proprietary business
    operating on a reservation?
        Mr. Scott. Right.
        Mr. Cladoosby. I would hope that this private business
    operating on a reservation would work with the sovereigns. I
    think they would want to--
        Mr. Scott. This bill does not do that, this bill just
    affects Indian owned and operated enterprises. My question was
    whether or not under your standard, the tribe could prohibit
    unions from operating in a privately owned enterprise.
        Mr. Cladoosby. That's a good question.
        Mr. Scott. Does federal criminal law apply to Indian
    reservations?
        Mr. Cladoosby. Once again, I hope I'm answering your
    question right, I just want to make it very clear that it does
    not create union free zones in Indian Country. I don't know if
    that's what you're looking for.
        Mr. Scott. Right, that was the question. Does federal
    criminal law apply on reservations?
        Mr. Cladoosby. Excuse me?
        Mr. Scott. Federal criminal law.
        Mr. Cladoosby. Of course, it does.
        Mr. Scott. OSHA?
        Mr. Cladoosby. Of course, it does.
        Mr. Scott. Minimum wage?
        Mr. Cladoosby. Of course, it does, just like federal law
    applies to other governments also, I believe. Whether it is a
    state or local or county government, they, too, have federal
    laws that they have to abide by.
        Mr. Scott. I am just asking what applies and what does not.
    I am not trying to argue the point.
        Mr. Cladoosby. I hope that answers the question, all
    governments have federal laws they have to abide by.
        Mr. Scott. Title VII, should that apply to everybody? It
    applies to state and local governments.
        Mr. Cladoosby. Yes
        Chairman Walberg. The gentleman's time has expired.
        Mr. Cladoosby. Thank you very much. Those are really,
    really good questions, Mr. Scott. If you need follow up, we're
    more than happy to give follow up on those questions, but they
    were really great questions. Thank you.
        Chairman Walberg. I thank the gentleman. I now turn to the
    gentleman from Michigan, my good friend, Mr. Mitchell.
        Mr. Mitchell. Thank you, Mr. Chairman. Chairman Cladoosby,
    can you share with me, under the San Manuel decision, the Board
    indicated it would not assert jurisdiction if the application
    of law would abrogate treaty rights, does the NLRB have any
    special knowledge of Indian treaties, and where does it gather
    this knowledge from?
        Mr. Cladoosby. Well, unfortunately, treaties with Indian
    tribes in the United States are not truly understood by the
    majority of the citizens. I would hope that any one of our
    trustees working in the Federal Government would want to get
    educated on the understanding of treaties and treaty rights. I
    think that should be definitely a 101 for all employees.
        You know, I cannot speak for the NLRB on what their--
        Mr. Mitchell. Does that decision not create two separate
    classes, tribes with treaties, tribes without? They are still
    sovereign nations. Does it not in some manner subdivide them?
        Mr. Cladoosby. Yes, we feel that way.
        Mr. Mitchell. What is the impact on your tribes?
        Mr. Cladoosby. Once again, it boils down to us having the
    ability to govern ourselves as sovereigns. We would just want
    to be treated like all the other governments in the U.S.
        Mr. Mitchell. Mr. Gribbon, maybe you could help me
    understand how it is that the NLRB will magically develop
    expertise in terms of the treaty rights and treaty law, since
    it has not been their primary expertise?
        Mr. Gribbon. Well, thank you very much for the question. In
    fact, they already have been doing that. The NLRB also adopted
    a criteria where it considers whether there are policy reasons
    to not assert jurisdiction.
        Mr. Mitchell. Let me stop you--
        Mr. Gribbon. The--
        Mr. Mitchell. Excuse me, sir. I get to ask the questions,
    you get to answer them. Thank you very much.
        Mr. Gribbon. Okay, but this--
        Mr. Mitchell. Excuse me, sir. I am going to ask the
    question, you are going to answer the question. You are not
    going to answer what you want. I said how is it that the NLRB
    has developed the expertise internally, not what policies they
    developed, I want to know where their expertise comes from,
    their experience, what qualified people they have on that. That
    is my question, sir, not what policy they may develop. Please
    answer the question.
        Mr. Gribbon. Well, what I can tell you is that consistent
    with the three prong test under San Manuel, the Board declined
    jurisdiction over an Oklahoma casino run by the Chickasaw Tribe
    that was party to an 1830 treaty, which exempts the tribe from
    nearly all Federal laws, and that proves that they're doing
    their job.
        Mr. Mitchell. That simply indicates at this point in time
    they have chosen not to do so, not that they had the expertise
    internally, which was the question, sir.
        Let me try another one here. Did the NLRB engage with the
    public prior to deciding the San Manuel decision? Did they
    request briefs from tribes? What expertise did they gather to
    make the decision that it could make that distinction?
        Mr. Gribbon. I don't work for the NLRB, so I don't know
    what kind of input they got. I can imagine that it was
    substantial and huge, from every direction, since that's how
    they work. That's why it takes them usually so long to make a
    decision. They take information from all interested parties.
        Mr. Mitchell. So, your opposition to this bill is solely
    based on your assessment that they have done a great job so far
    and not any argument they have expertise to make this
    determination?
        Mr. Gribbon. Absolutely not. That is not my argument. My
    argument is and my argument would be that workers deserve
    better rights than they receive in this country, whether they
    be on Indian lands or not. That workers have been harassed and
    abused, especially by your party, really badly, over a whole
    number of years, and there could be very, very good
    improvements made if we were really worried about raising wages
    and personal income and respect and dignity in this country.
        I believe we could do much better. I'm saying the NLRA is
    an absolute bare minimum--
        Mr. Mitchell. You did not answer my question.
        Mr. Gribbon. Bare minimum. I'm not happy with it, it's a
    bare minimum.
        Mr. Mitchell. I am happy for you, but I get to ask the
    questions. You get to testify, I get to ask the questions. If
    you want to stop by my office later, I am happy to have a
    debate with you.
        Mr. Gribbon. Okay.
        Mr. Mitchell. That would be great. First, I grew up in a
    union household. Like my friend from Minnesota, we have a lot
    of employees, and people go to work in the casinos that in fact
    have options to go to jobs that are represented, and they
    choose to go there because they are good jobs, and they are
    better jobs than union represented jobs in many places.
        What you see as the panacea, protection, it does not offer
    much, and does in my opinion violate the sovereignty of the
    tribal nations.
        I am asking Mr. Rokita to please add me as a co-sponsor of
    the bill, and if you want to continue the debate, please stop
    by my office and we can talk about labor relations.
        Mr. Gribbon. All right. I think--
        Mr. Mitchell. My time has expired. I yield back, sir.
        Mr. Gribbon. Totally missed the point.
        Chairman Walberg. I thank the gentleman. I now recognize
    the gentleman from Pennsylvania, Mr. Smucker.
        Mr. Smucker. Thank you, Mr. Chairman. Chairman Cladoosby,
    is it not true that many tribes have enacted their own laws or
    ordinances that govern labor relations at tribal commercial
    enterprises?
        Mr. Cladoosby. Yes, sir.
        Mr. Smucker. Could you please expand a little on what they
    are?
        Mr. Cladoosby. Sure. Once again, tribes have never had the
    opportunity to have a Marshall Plan. Do I wish it was some
    other form of operations that enabled us to create this great
    infrastructure? Yes. It is what it is.
        So, right now, tribes around the nation have shown that
    they have the ability to be the largest employers in their
    areas, and they take care of their employees very well. Many of
    them have implemented employer rights ordinances to make sure
    that their employees are taken care of satisfactorily.
        Like the gentleman said, you know, we do pay pretty fair
    wages in some of our operations and full benefits.
        Mr. Smucker. Do you have concerns if the NLRB determines it
    has jurisdiction what will become of those tribal labor laws?
        Mr. Cladoosby. Once again, I would hope that the NLRB would
    see this as an intrusion into a sovereign, and that they would
    recognize that we have the ability internally to take care of
    our own, just like any other government, whether it be state,
    county, or local.
        Mr. Smucker. Chairman Welch, I will ask you to sort of
    address the same question. You spoke about the Viejas Tribal
    Labor Relations Ordinance that has worked well over the years.
    Why do you think that TLROs are more important for a sovereign
    entry than the NLRA?
        Mr. Welsh. Our TLRO was brought forward to us with working
    hand in hand with the California state, the government. The
    governor at that time asked that we put one together to enter
    into for compact negotiations.
        I think the governor at that time did not believe the NLRA
    or NLRB had jurisdiction over the reservation, which has been
    proven, because 1935 to 2004, when Congress enacted the NLRA,
    they never envisioned Tribes being successful as they are, so
    they were never put into it.
        So, how can NLRB finish the process of what Congress had
    instituted when Congress hadn't finished it? That's one of our
    big objectives with NLRA and NLRB.
        Mr. Smucker. Thank you. Mr. Chairman, I yield back.
        Chairman Walberg. I thank the gentleman. I recognize the
    gentleman from Georgia, Mr. Allen.
        Mr. Allen. Thank you, Mr. Chairman, and thank you all for
    being with us today. Chairman Welch, the NLRB, which was
    enacted in 1930, was intended to govern private sector labor
    management relations. Can you explain why the application of
    the NLRB is in conflict with the role of the state, local, and
    tribal governments?
        Mr. Welsh. Can you repeat that, the last part?
        Mr. Allen. Can you explain why the application of the NLRB
    is in conflict with the sovereignty of the tribal governments?
        Mr. Welsh. Because they're trying to tell us what to do,
    and we have sovereign rights enacted to us by Congress and the
    Constitution.
        Mr. Allen. All right, good. You answered that.
        Mr. Cladoosby, many federal laws specifically exclude
    Indian tribes from the definition of ``employer.'' Is there any
    mention of ``Indian Tribes'' in the NLRA? If the act is silent,
    what theory has the NLRB applied to exert jurisdiction over
    Indian tribes?
        Mr. Cladoosby. That's a really good question, sir, and
    their ability to assert jurisdictions over a government is one
    that we are trying to figure out also. We feel that we protect
    the rights of our employees very, very well.
        I guess once again, you know, when we look at it from a
    state, local, and county perspective, what right would they
    have to go into those governments like they want to come into
    ours.
        Mr. Allen. Again, the act was enacted in the 1930s, how
    have tribal governments and tribal enterprises changed since
    then, and why does this further support the idea that tribal
    enterprises on tribal lands should not be subject to the NRLA?
        Mr. Cladoosby. I think you've heard about the income. I'm
    not sure if this is about money or about looking out for the
    best interests of the employees. I know we as tribes have come
    a long way. Like I said earlier, Swinomish only had five
    employees when I was growing up, and to have over 900 now that
    we take care of very well is a great accomplishment.
        Like one gentleman said, they can't vote, a lot of them,
    because they're not tribal members, but if you look at Las
    Vegas and Reno, where you have a lot of gaming, a lot of those
    employees come from outside of Las Vegas and Reno, and they
    can't vote there either.
        We just want to be treated the same as other governments.
        Mr. Allen. It is not that your wages are below what is
    normally paid, or you are taking advantage of members of your
    tribe in your operation here? You just want to do--given the
    rights you have been given, you just want to be able to manage
    this the way it was originally established?
        Mr. Cladoosby. Yes, sir.
        Mr. Allen. Exactly. Here we have the government saying that
    we want to intervene. We have that problem in a lot of areas.
    Of course, that is why so many people want to get into this
    country, because of the way we treat our workers with dignity
    and respect.
        In fact, I had the opportunity to work in the small
    business arena for 35 years, and I was able to--the greatest
    blessing I had received, and I realized this later on in my
    career, I wish I had realized it earlier, but boy, what a
    blessing it was, and I am sure you are experiencing this, from
    what I have heard in your testimony, is to give people the
    opportunity to have a good job, to give them the dignity and
    respect they deserve, and to allow them to provide for their
    families, and also provide for their Nation. That is a great
    privilege.
        I thank you for coming out and providing your testimony
    today. I look forward to working with you on this.
        Mr. Cladoosby. Thank you, Mr. Allen. I think at the end of
    the day, any operation, any business, all they want is good
    employee relationships, employees to feel comfortable coming to
    work, and they want their employees to feel like they have the
    greatest jobs in the world.
        Tribes are in a position now to do some things that we've
    never ever been able to do, and we're just very blessed. The
    Creator has blessed us and allowed us to be able to make a lot
    of families happy that otherwise wouldn't have that
    opportunity.
        Mr. Allen. I am going to do my best to keep the federal
    government out of your way.
        Mr. Cladoosby. Thank you, sir.
        Mr. Allen. Yes, sir. Thank you. I yield back.
        Chairman Walberg. I thank the gentleman. Now, it is my
    privilege to recognize the ranking member, Mr. Sablan, for your
    closing remarks.
        Mr. Sablan. Thank you very much, Mr. Chairman. I want to
    thank all the witnesses today for their testimony. I am not
    trying to stick my nose into your business.
        As I noted at the outset, the San Manuel decision struck a
    balance between the protection of tribal sovereignty rights and
    the protection of workers' rights. Although Tribal Labor
    Relations Ordinances have been adopted by some tribes, these
    ordinances vary greatly in the levels of workforce protection.
        I have Section 3107 of the 2010 Blackfeet Tribal Employment
    Rights Ordinance and Safety Enforcement Act of 2010, which I
    ask to insert in the record. It reads ``Unions are prohibited
    in the Blackfeet Indian reservation.''
        So, there are tribes that discourage unions in their
    organizations.
        Chairman Walberg. Without objection, it will be entered.
        Mr. Sablan. There is no uniform standard for tribal
    ordinances, which means there could be 567 different labor
    standards, depending on the tribe.
        What provides protection is the National Labor Relations
    Act. However, if H.R. 986 is enacted, workers would lose the
    protection of the federal minimum standard. Similar concerns
    were raised by the International Labor Organization in a letter
    to Congress regarding the Tribal Labor Sovereignty Act.
        ILO wrote in part, in those cases where there are no Tribal
    Labor Relations Ordinances, undue restrictions on collective
    bargaining, excessive limitation on freedom of association
    rights, or lack of protection from unfair labor practices,
    workers on tribal territories would be left without any remedy
    for violation of their fundamental freedom of association
    rights, short of the Constitution.
        Mr. Chairman, I would ask unanimous consent also to include
    this three-page letter from the International Labor
    Organization in the record of this hearing.
        Chairman Walberg. Without objection, it will be entered.
        Mr. Sablan. Thank you, sir. I would also ask for unanimous
    consent to include the letter in opposition from the AFL-CIO,
    International Union of Operating Engineers, United Auto
    Workers, Local 2121, and the United Steel Workers, into the
    record.
        Chairman Walberg. Without objection, they will be entered.
        Mr. Sablan. As we have learned today, Indian Tribes are
    subject to a number of federal employment laws, including the
    Fair Labor Standards Act, OSHA, ERISA, the Family and Medical
    Leave Act, but Mr. Cladoosby, in your response to the Ranking
    Member's question if Title VII of the Civil Rights Act applies
    to the tribes, you answered ``yes''. The answer is ``no''.
        Title VII of the Civil Rights Act does not apply to Indian
    tribes, but it does to any local government.
        Mr. Cladoosby. Thank you for that correction, sir.
        Mr. Sablan. You are welcome, sir.
        A review of the committee's activities may help explain the
    focus since the Majority took control in 2011: there have been
    26 hearings or markups attacking the National Labor Relations
    Board's rules on these issues, compared with 17 on-the-job
    training and technical education, 11 on OSHA and mine safety,
    15 on pensions and retirement issues, and 11 on wages and hour
    issues.
        What we know is that only 6.4 percent of the private sector
    workforce today is covered by a union agreement. Union
    agreements have provided many low wage service workers employed
    in tribal casinos or other tribal businesses with improved
    wages and benefits, which has provided them with a foothold to
    the middle class. By negotiating employer provided health care,
    the cost to state and local governments for health care costs
    has gone down.
        Legislation in this area needs to balance the sovereign
    rights of Native American tribes with the rights of workers to
    organize and bargain collectively.
        Mr. Chairman, we should not be enacting legislation that
    weakens workers' ability to bargain for a fair share of the
    wealth, whether it is in a commercial business or a tribal
    enterprise.
        If I may, one of the main reasons if not the main reason
    that I ran for Congress was to find a way to help improve the
    education of the poor people that I represent in the Northern
    Mariana Islands. In the seven years working on that, I am
    finally happy, with the help of Mr. Kline and Mr. Scott, and I
    think Mr. Rokita was also ranking at that time, that we were
    able to increase the formula for Title I money.
        We had that hearing, and I saw the appalling state of
    Indian schools, so I was able also working with Mr. Kline to
    increase the funding for Bureau of Indian Education. You guys
    need to speak up for your people, their education, and the
    appalling state of the education ran by the Department of
    Interior is not something that I can say I am proud of, to be
    an American.
        After saying that, Mr. Chairman, I yield back the balance
    of my time.
        Chairman Walberg. I thank the gentleman, and thank you
    especially as you come from a perspective of actually being a
    tribal member, and appreciate your passion and your concern.
        I want to thank Chairman Cladoosby, Delegate Brown, Mr.
    Gribbon, and also Chairman Welch, for taking the time and
    effort to travel, et cetera, to be here. I appreciate that
    fact.
        I want to thank my colleague, Mr. Rokita, for your
    diligence in bringing this back up. As chairman of the K-12
    Subcommittee, this fits, as we talk to young people, talk about
    the wealth of our Nation and our history, that includes also
    some challenging times as we worked out treaties, as we dealt
    with the Native American population.
        There were some--I guess the weakest words to use would be
    ``frustrating times,'' there were some tragic times as well.
    Treaties have been developed, sovereignty has been affirmed,
    not simply by statement but by law and agreement.
        That term ``sovereignty'' is extremely important for us to
    understand. We revel in that here in the United States of
    America. We understand that we are a sovereign nation, and when
    we recognize other nations in the world as being sovereign,
    including the nations we are looking at right here in front of
    us this morning, that is something that we ought to make sure
    our young people understand, K-12 on up, and it is something
    more importantly that we ought to keep the faith with in our
    treaties, in our agreements, and in our laws.
        That is all this is here today. We are not talking about
    holding back unions and union organization. We are not talking
    about that. I think all of us here would respond that we
    respect and we want to continue the freedom for our workers to
    organize in unions. Do it fairly, on both sides, of course, but
    that ought to be a right.
        We are talking of a sovereign nation. It is their
    determination that comes first, and we ought to honor that.
    Today, we are answering a question, can we do it better than
    the tribes? Maybe, but that is not our authority. Maybe not as
    well. That is your authority.
        I think that is what we are affirming today. Definitely,
    Mr. Chairman, we are affirming parity. We wrestle with that in
    our States, do we not? The Tenth Amendment, liberties, that we
    say all the time are being stepped upon by the Federal
    Government. Today, we are seeing that it is the same type of
    situation for the tribes.
        I appreciate the questions, the testimonies given today,
    and I appreciate the thought processes to move this forward and
    to put it in front of us, and I think because of that we will
    also put the point in history of reminding ourselves that those
    treaties, those agreements, have purpose, have strength, have
    power, and it is about time we recognized that, and we push
    back on entities of our U.S. federal government when they are
    attempting to step over the bounds, regardless of what certain
    courts have said, we identify with our responsibility to uphold
    the Constitution just as much as any court.
        Seeing there is no further business before the
    subcommittee, we stand adjourned.
        [Additional submission by Mr. Cladoosby follows:)
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        [Whereupon, at 11:51 a.m., the subcommittee was adjourned.]

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