[Senate Report 114-140]
[From the U.S. Government Publishing Office]


                                                      Calendar No. 220
114th Congress     }                                     {      Report
                                 SENATE
 1st Session       }                                     {     114-140

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



 
                  TRIBAL LABOR SOVEREIGNTY ACT OF 2015

                                _______
                                

               September 10, 2015.--Ordered to be printed

                                _______
                                

          Mr. Barrasso, from the Committee on Indian Affairs, 
                        submitted the following

                              R E P O R T

                         [To accompany S. 248]

    The Committee on Indian Affairs, to which was referred the 
bill (S. 248) to clarify the rights of Indians and Indian 
tribes on Indian lands under the National Labor Relations Act, 
having considered the same, reports favorably thereon without 
amendment and recommends that the bill do pass.

                                Purpose 

    The purpose of S. 248 would amend and clarify the National 
Labor Relations Act (NLRA or the Act) so that federally-
recognized Indian tribes, tribal governments, and tribally-
owned and operated institutions and enterprises would be 
provided equity and parity under the law with respect to other 
governmental employers.

                         Need for Legislation 

    The NLRA was enacted by Congress in 1935 to ensure fair 
labor practices and it explicitly excluded Federal and state 
governmental\1\ employers from the federal labor law. Indian 
tribes, tribal governments, and tribally-owned and operated 
institutions and enterprises were never defined, mentioned, or 
excluded from the law. The National Labor Relations Board's 
(NLRB or the Board) decisions and orders, have varied in the 
applicability of the Act on Indian tribes, and their 
institutions or enterprises.
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    \1\Including any corporations wholly-owned by these governmental 
entities.
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                               Background

    The NLRB is an independent Federal agency established by 
the Act. The Act recognizes the right of employees to engage in 
collective bargaining through representatives of their own 
choosing. However, certain employers are excluded from the Act 
such as those of the Federal and State governments, including 
wholly-owned government corporations, state lotteries and 
liquor stores. The NLRA never mentions Indian tribes, tribal 
governments, and tribally-owned and operated institutions and 
enterprises.
    The primary responsibility of the NLRB is to administer the 
Act. The NLRB conducts elections, investigates charges, 
facilitates settlements, decides cases, and enforces orders. 
The NLRB is governed by a five-person board and a general 
counsel, appointed by the President and confirmed by the 
Senate.

                NATIONAL LABOR RELATIONS BOARD DECISIONS

    In two cases from 1935 to 2004, the Board declined to 
assert its jurisdiction over tribally-owned enterprises located 
on tribal lands in the Fort Apache Timber Co. (1976)\2\ and 
Southern Indian Health Council (1988).\3\ The NLRB held that 
tribally-owned businesses operating on their Indian lands were 
exempt from the NLRA's definition of employer. However, in Sac 
& Fox Indus. (1992),\4\ the Board held that a tribally-owned 
and operated factory that was located off Indian lands was 
subject to the NLRA.
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    \2\ Fort Apache Timber Co., 226 NLRB 503 (1976).
    \3\Southern Indian Health Council, 290 NLRB 436 (1988).
    \4\Sac & Fox Indus., 307 NLRB 241 (1992).
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The San Manuel Case

    In 2004, the NLRB ruled in the San Manuel Indian Bingo & 
Casino\5\ (a casino located on its reservation, and owned and 
operated\6\ by the San Manuel Band of Serrano Mission Indians) 
that the NLRA applies to tribal enterprises located on Indian 
lands. This was the first instance in which the Board applied 
the NLRA to a tribally-owned business on tribal lands. 
Furthermore, in this decision the Board determined future 
jurisdictional questions of the applicability of the NLRA will 
be decided on a case-by-case basis. In 2007, the U.S. Court of 
Appeals for the District of Columbia affirmed\7\ the Board's 
2004 San Manuel decision.
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    \5\San Manuel Indian Bingo & Casino, 341 NLRB 138 (2004).
    \6\The Indian Gaming Regulatory Act, Pub. L. No. 100-497 (Codified 
as 25 U.S.C. Sec. 2701 et seq.) (1988), states that all gaming revenue 
must be used for tribal government purposes. Tribal government services 
could include, but is not limited to: health care, social services, 
housing, utilities, educational assistance, and emergency services.
    \7\San Manuel Indian Bingo & Casino v. NLRB, 475 F.3d 1306 (D.C. 
Cir. 2007).
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The Chickasaw Nation Case

    After the U.S. Supreme Court's decision in Noel Canning,\8\ 
which ruled the Board was invalidly appointed, the 10th Circuit 
case of Chickasaw Nation v NLRB was remanded back to the Board. 
On June 4, 2015, the Board issued a decision on the application 
of the NLRA to the Chickasaw Nation, which operates a tribally-
owned enterprise known as the WinStar Casino on tribal lands. 
In that ruling,\9\ the Board decided not to assert jurisdiction 
over the Chickasaw Nation. Specifically, the Board cited the 
Chickasaw Nation's treaty with the United States blocked the 
Board from asserting its jurisdiction over the tribe's casino. 
It is unknown what immediate effect the Chickasaw Nation 
decision will have on other tribal cases since the Board's 
decision was based on a treaty specific to the Chickasaw 
Nation.
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    \8\NLRB v. Noel Canning, 573 U.S. _, 134 S. Ct. 2250, 189 L. Ed. 2d 
538 (2014).
    \9\Chickasaw Nation, 362 NLRB 109 (2015).
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                         U.S. COURT OF APPEALS

    Meanwhile, several Indian labor cases have appeared before 
the U.S. Court of Appeals for the 6th and 10th Circuits. In the 
Little River Band of Ottawa Indians,\10\ the 6th Circuit held 
that the NLRB could enforce provisions of the Act against the 
Indian tribe. However, the 10th Circuit held in Pueblo of San 
Juan,\11\ that the Pueblo's right to adopt a tribal labor 
ordinance preempts the NLRA and affirmed the decision of the 
district court. Thus, given the split interpretations from the 
Circuit courts and the Board, legislation is needed to ensure 
clarity and parity in the application of the NLRA to Indian 
tribes, tribal governments, and tribally-owned and operated 
institutions and enterprises.
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    \10\NLRB v. Little River Band of Ottawa Indian Tribal Gov't, No. 
14-2239 (6th Cir. June 9, 2015).
    \11\NLRB v. Pueblo of San Juan, 280 F.3d 1278 (10th Cir. N.M. 
2000).
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                           TRIBAL SOVEREIGNTY

    In Cherokee Nation v. Georgia, 30 U.S. 1, (1831), the U.S. 
Supreme Court declared that Indian tribes are ``domestic 
dependent nations.'' Reinforcing Tribes'' status as nations, 
several court cases\12\ have recognized and upheld that Indian 
tribes have the attributes of sovereignty including: sovereign 
immunity and authority over their members and territory. 
Additionally, the Indian Self-Determination and Education 
Assistance Act of 1975 and the Native American Housing and 
Self-Determination Act of 1996, in particular, recognize the 
exercise of tribal authority by deferring to tribal personnel, 
wages, and labor laws in carrying out programs. This bill is 
intended to strengthen tribal sovereignty and addresses those 
instances where a Tribe is acting as an employer and conducting 
its business on tribal lands.
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    \12\Montana v. United States, 450 U.S. 544, 564-565 (1981); Nat'l 
Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845, 854-855 (1985); 
Strate v. A-1 Contractors, 520 U.S. 438, 453 (1997); South Dakota v. 
Bourland, 508 U.S. 679, 695 (1993); Nevada v. Hicks, 533 U.S. 353, 360 
(2001).
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                   BUREAU OF INDIAN AFFAIRS POSITION

    On December 7, 2011, Deputy Solicitor of Indian Affairs, 
Patrice Kunesh, sent a letter\13\ to the Acting General Counsel 
of the Board, Lafe Soloman, requesting the NLRB ``re-evaluate 
its position on tribal issues and to help advance the Federal 
government's commitments to Indian Country, particularly with 
regard to respecting tribes as sovereign governments.'' The 
Deputy Solicitor of Indian Affairs then went on to state that 
``[t]ribal governments should be given at least the same 
exception as provided to state governments in the NLRA.''
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    \13\Letter from Patrice Kunesh, Deputy Solicitor of Indian Affairs, 
U.S. Department of the Interior, to Lafe Soloman, Acting General 
Counsel, NLRB (Dec. 7, 2011)
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                          Legislative History 

    On January 22, 2015, Senator Jerry Moran (R-KS) introduced 
S. 248, along with Senators Mike Crapo (R-ID), Steve Daines (R-
MT), Deb Fischer (R-NE), John Hoeven (R-ND), James Inhofe (R-
OK), James Lankford (R-OK), and John Thune (R-SD). Senators 
James Risch (R-ID) Mike Rounds (R-SD), Cory Gardner (R-CO), and 
John McCain (R-AZ) were later added as co-sponsors. The bill 
was referred to the Senate Committee on Indian Affairs. On 
March 4, 2015, the Committee held a legislative hearing on the 
bill. On June 10, 2015, the Committee met to consider the bill. 
The Committee then ordered the bill to be reported favorably to 
the Senate by voice vote.
    In the 113th Congress, Senator Moran introduced, S. 1477, 
the Tribal Labor Sovereignty Act of 2013.\14\ It was referred 
to the Committee on Indian Affairs where no further action was 
taken. A similar bill, H.R. 1226, was introduced in the House 
of Representatives by Representative Kristi Noem and no further 
action was taken.
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    \14\In the 114th Congress, S. 248, the Tribal Labor Sovereignty Act 
of 2015 has identical language to the 113th Congress introduced bill, 
S. 1477, the Tribal Labor Sovereignty Act of 2013.
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    Additional Senate Actions. In the 111th Congress, Senator 
Inouye sent a letter\15\ to Senator Kennedy, then-Chairman of 
the Committee on Health, Education, Labor, and Pensions (HELP), 
requesting that the legislation under consideration\16\ include 
an amendment giving Indian tribes equal treatment that Federal 
and state governments receive under the NLRA. In the letter, it 
stated the Constitution of the United States ``acknowledges 
Indian tribes as governments under the Commerce Clause and the 
Supremacy Clause.'' Furthermore, Senator Inouye's letter 
recommended the HELP Committee consider an amendment to S. 560, 
the Employee Free Choice Act, which would clarify the 
definition of employer to include Indian tribes.
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    \15\Letter from Sen. Daniel Inouye, U.S. Senate, to Sen. Edward 
Kennedy, U.S. Senate (Jun. 1, 2009).
    \16\The Employer Free Choice Act, S. 560, 111th Cong. (2009).
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        Section-by-Section Analysis of Bill as Ordered Reported


Section 1--Short Title

    Section 1 states S. 248 may be cited as the ``Tribal Labor 
Sovereignty Act of 2015.''

Section 2--Definition of Employer

    The bill amends Section 2(2) of the National Labor 
Relations Act (29 U.S.C. 152) by including in the list of 
employers that are excluded from the NLRA, ``any enterprise or 
institution owned and operated by an Indian tribe and located 
on its Indian lands.'' The bill intends to provide parity, 
under the law alongside Federal and State governments, to 
federally-recognized Indian tribes, tribal governments, and 
tribally-owned and operated institutions and enterprises.

                   Cost and Budgetary Considerations

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, June 25, 2015.
Hon. John Barrasso,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 248, the Tribal 
Labor Sovereignty Act of 2015.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Christina 
Hawley Anthony.
            Sincerely,
                                                        Keith Hall.
    Enclosure.
    Summary: S. 248 would add tribes to the list of entities 
that are excluded from the definition of ``employer'' for 
purposes of the National Labor Relations Act. Through the 
National Labor Relations Board (NLRB), the National Labor 
Relations Act protects the rights of most private-sector 
employees to form a union and to bargain collectively. Adding 
tribes to the list of excluded employers would treat them 
similarly to state and local governments. Currently, the NLRB 
asserts jurisdiction over the commercial enterprises owned and 
operated by Indian tribes, even if they are located on a tribal 
reservation. However, the NLRB does not assert jurisdiction 
over tribal enterprises that carry out traditional tribal or 
governmental functions.
    Enacting S. 248 would not significantly affect the workload 
of the NLRB, so it would have no effect on the federal budget. 
The bill would not affect direct spending or revenues; 
therefore, pay-as-you-go procedures do not apply.
    S. 248 contains no intergovernmental mandates as defined in 
the Unfunded Mandates Reform Act (UMRA).
    S. 248 would impose a private-sector mandate, as defined in 
UMRA, on employees of tribal enterprises located on tribal 
land. The bill would eliminate the federal right of those 
employees to join together to improve their wages and working 
conditions, with or without a union. Furthermore, the bill 
would eliminate the right of those employees to file a claim, 
individually or through a union, with the NLRB regarding the 
labor practices by tribal employers that prohibit or interfere 
with activities to improve wages and working conditions in 
enterprises on tribal land. Under the bill, such practices 
would no longer be considered unfair labor practices by those 
employers under the National Labor Relations Act.
    The cost of the mandate would be the value of forgone 
awards and compensation. Based on information from the NLRB, 
CBO expects that the mandate would apply to employees of a 
limited number of tribal enterprises. Consequently, CBO expects 
that the cost of the mandates would not be substantial and 
would fall below the annual threshold established in UMRA for 
private-sector mandates ($154 million in 2015, adjusted 
annually for inflation).
    The CBO staff contact for this estimate is Christina Hawley 
Anthony. The estimate was approved by Theresa Gullo, Assistant 
Director for Budget Analysis.

                                  [all]