fd914681-8b30-4142-8f66-bb91dc892318A subcommittee of the House Committee on Education and the Workforce held a hearing on Tuesday, June 16, 2015 on H.R. 511, “The Tribal Labor Sovereignty Act of 2015.”  The bill, which has a counterpart, S. 248, in the Senate, would amend the National Labor Relations Act to expressly exclude tribal employers from the Act’s definition of “employer.”  Specifically, the bill would add “any enterprise or institution owned and operated by an Indian tribe and located on its Indian lands” to the definition’s list of exclusions set forth in Section 2(2) of the Act as follows:

…the United States or any wholly owned Government corporation, or any Federal Reserve Bank, or any State or political subdivision thereof…

For decades, the National Labor Relations Act was generally understood to exclude sovereign tribal government employers, just as it expressly excludes the various other sovereign government employers listed above. In the San Manuel Indian Bingo & Casino, 341 NLRB 1055 (2004), however, the NLRB changed that, casually casting aside claims of tribal sovereignty to assert federal jurisdiction over the tribal government operating the gaming enterprise in that case.  The bill would expressly reaffirm the exclusion which had been law until then.

In his opening statement, the subcommittee Chairman, Rep. Phil Roe (R-TN) asserted that the bill would resolve an issue on which the NLRB has created more confusion, as typified by recent developments. In a June 4, 2015 decision, Chickasaw Nation d/b/a Winstar Casino, 362 NLRB No. 109, the NLRB declined to assert jurisdiction over a tribal gaming enterprise — the WinStar World Casino in Oklahoma, operated by the Chickasaw Nation.  The NLRB concluded, contrary to earlier deliberations, that assertion of jurisdiction over this tribe would abrogate a specific treaty right. Even the San Manuel decision provides an express exclusion for such circumstances.  Because application of the Act would conflict with two treaties entered into with the United States in 1830 and 1866, the Board deferred.  But just days later, on June 9, 2015, on different grounds, the Court of Appeals for the Sixth Circuit upheld the NLRB’s assertion of jurisdiction over a tribe in Little River Band of Ottawa Indians, No. 14-2239.  Notwithstanding that the tribal government in that case derived approximately half its operating revenue from its gaming enterprise, applying San Manuel, the Court concluded that the application of the NLRA did not implicate “exclusive rights of self-governance in purely intramural affairs.”

Ultimately, the witnesses supporting the legislation argue that this is simply a matter of parity – there being no reason to exclude federal and state government employers, while subjecting tribal government employers to the Act. Richard Guest, Senior Staff Attorney for the Native American Rights Fund (NARF) explained the bill this way:

…in furtherance of its longstanding policies of Indian self-determination, tribal selfgovernance and tribal economic self-sufficiency, it is time for Congress to provide parity for tribal governments under the NLRA. In this context, parity encompasses the quality of being treated equally under the law alongside Federal, State and Local governments. Tribal governments are entitled to the same freedom to choose the appropriate time, place and manner for regulating union activity on Indian lands and collective bargaining for its employees.

Mashantucket Pequot Tribal Nation Chairman Rodney Butler testified about his tribe’s exercise of its sovereignty in passing and enforcing a tribal labor statute under which four labor unions have organized employees and negotiated collective-bargaining agreements:

Our Tribe made the sovereign decision to permit collective bargaining with unions when designated by a majority of employees under our laws.  It should be the right of any sovereign government to make decisions that are best for their people.  H.R. 511 simply allows tribal governments to make those decisions.  Section 2 of the NLRA expressly excludes the United States government and State and local governments from the Act’s jurisdiction.  And that makes sense.  Sovereign bodies have unique employment concerns, and the sovereign is best suited to address those concerns.  We seek to be treated just like every other sovereign under the NLRA – nothing more – nothing less.

The bill is opposed by organized labor, but has some backing by Democrats in Indian Country. It is expected to be voted favorably out of Committees, and to proceed to full consideration by Congress later in the year.  In the meantime, tribes continue to challenge the Board’s exercise of jurisdiction on a case by case basis.

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