[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:]
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    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:]
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    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:]
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    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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