Legislation | Litigation

Tribal Labor Sovereignty Act heads toward passage in House

Monday, November 16, 2015

Jefferson Keel, the lieutenant governor of the Chickasaw Nation, testifies at hearing on H.R.511, the Tribal Labor Sovereignty Act, on June 16, 2015. Photo from House Committee on Education and the Workforce / Twitter

A bill to exempt tribes from federal labor law is taking a big step forward in the 114th Congress this week.

H.R.511, the Tribal Labor Sovereignty Act, bars the National Labor Relations Board from asserting jurisdiction over tribes and their enterprises, mainly gaming facilities. The bill enjoys the support of top Republicans and key Democrats, including Rep. Betty McCollum (D-Minnesota), the co-chair of the Congressional Native American Caucus.

“I am very proud of my record of standing up for the rights of workers and I have expectations that tribal governments will also respect workers' rights," McCollum said at the National Congress of American Indians annual convention in San Diego, California, last month.

Not all of McCollum's fellow party members agree with her philosophy, though. Several Democrats on the House Committee on Education and the Workforce filed a strongly-worded dissent in a report accompanying the bill, arguing that the measure will allow tribes to treat their employees -- most of whom are non-Indian -- in a discriminatory fashion.

Rep. Betty McCollum (D-Minnesota) speaks at the National Congress of American Indians annual conference in San Diego, California, on October 19, 2015. Photo by Indianz.Com

"This bill cloaks an anti-union agenda in the respectable garb of tribal sovereignty. It is another attempt in the [Republican] Majority’s quest to dismantle labor unions and strip workers of their ability to bargain for better pay and working conditions," the report, which was signed by nine of the 16 Democrats on the committee, stated.

But with Republicans firmly in control of the House, the bill is slated to pass the chamber. The House Rules Committee is meeting this afternoon to finalize the package before it comes up for a vote tomorrow, according to the majority leader's schedule.

The movement on the bill represents a dramatic shift in political winds. After the NLRB in 2004 asserted Indian County for the first time in decades, tribes asked Congress to respect their sovereignty and treat them in a manner similar to state and local governments under the National Labor Relations Act.

But in two embarrassing votes in 2004 and in 2005, Democrats trounced Republicans and beat back efforts to put tribes on the same level as other governments.

The WinStar World Casino and Resort, in Thackerville, Oklahoma. Photo from Facebook

The issue sat dormant for another decade as the NLRB, in case after case, asserted jurisdiction over tribal casinos. And when tribes took the grievances to federal court, they weren't successful at proving they enjoy the same status as state and local governments.

The only exception came earlier this year when the NLRB -- after a lawsuit -- refused to apply the NLRA to the Chickasaw Nation in Oklahoma due to provisions in the tribe's treaty. But within a matter of weeks, the 6th Circuit Court of Appeals upset the environment with two conflicting and confusing rulings that questioned whether the NLRB got it right with the 2004 ruling.

H.R.511 addresses the uncertainty by amending the NLRA to clarify that tribes and their enterprises are not considered "employers" under the law. Tribal employment matters would continue to fall under tribal law, some of which already allow unions to organize.

The NLRA otherwise does not mention tribes, a key omission considering that it was passed in 1935, just a year after the Indian Reorganization Act of 1934 ushered in a new era of self-determination in Indian Country.

Labor union supporters turned out in large numbers at a Senate Indian Affairs Committee business meeting on June 10, 2015, when S.248, the Tribal Labor Sovereignty Act, came up for consideration. Photo by Andrew Bahl for Indianz.Com

"The simple fact is this: when Congress passed the National Labor Relations Act in 1935, its intent was to require private sector employers to engage in collective bargaining with their employees," Ron Allen, the chairman of the Jamestown S'Klallam Tribe of Washington, and Arlan Melendez, the chairman of the Reno-Sparks Indian Colony in Nevada, wrote in The Hill on Friday. "At the same time, Congress deliberately eliminated from the NLRA’s coverage public sector employers, so state, local and federal governments are excluded from the definition of 'employer.'"

"Why did Congress make this distinction?" Allen and Melendez continued. "It recognized the key differences between private employers and government employers when it comes to labor relations and did not want to engender the kind of labor strife and work stoppages that could paralyze local, state and the federal governments, jeopardizing public health and safety in the process. We believe the same principle must apply to tribal governments."

The Senate version of the bill is S.248. It cleared the Senate Indian Affairs Committee on June 10 with only one Democrat voicing an objection.

Committee Notice:
Meeting Announcement for H.R. 511 and H.R. 1737 (November 16, 2015)

From the Indianz.Com Archive:
Tribal labor law rider killed by wide margin in House (6/27)
NCAI between 'rock and a hard place' on labor rider (09/13)
Tribal labor amendment fails in House vote (9/13)
Federal labor board expands jurisdiction over tribes (6/4)