Legislation | Litigation | Regulation

Lawmakers defy White House on Tribal Labor Sovereignty Act

Wednesday, November 18, 2015

Rep. Tom Cole (R-Oklahoma), a citizen of the Chickasaw Nation, is one of only two members of a federally-recognized tribe in Congress. Photo from Flickr

The Republican-controlled House easily approved a bill to exempt tribes from federal labor law on Tuesday despite objections from Democrats and the Obama administration.

After an hour of debate, lawmakers voted 249 to 177 in favor of H.R.511, the Tribal Labor Sovereignty Act. The roll call fell largely among party lines, with just 24 Democrats joining 225 Republicans in supporting the measure.

The GOP, however, didn't need support from the other side of the aisle to advance one of Indian Country's longstanding legislative priorities. Republicans had more than enough votes on their own to pass H.R.511 and they eagerly lined up on the floor to explain why tribes, like state and local governments, should be exempt from the National Labor Relations Act.

"Practically every county and city in this country has a golf course. Most states have a lottery. The National Park Service operates hotels. Virginia and other states sell alcohol. Many cities operate convention centers," said Rep. Tom Cole (R-Oklahoma), a citizen of the Chickasaw Nation and one of only two members of a federally-recognized tribe in Congress.

"All of these activities are not regulated under the NLRA. It should be the same with tribes," Cole added.

Rep. Keith Ellison (D-Minnesota). Photo from Facebook

Democrats, though, insisted the bill was not about sovereignty or parity among governments. They said the true aim was to harm labor unions, a traditional ally of their party.

"We should be supporting all people, including tribal members' right to form unions, to be in a labor organization, which is their very best shot at getting into the middle class," said Rep. Keith Ellison (D-Minnesota). "We know that union members earn $207 a week more than nonunion counterparts. This is why some business interests, not all, hate unions, because they just don't want to have a fair economy. They want to hoard the wealth of the company for themselves."

The White House Office of Management and Budget also objected to the bill in a statement of administration policy issued ahead of yesterday's vote. While the message didn't outright convey a veto from President Barack Obama, it clearly highlighted the dilemma facing Democrats who said they were being forced to make a choice between supporting tribal sovereignty or standing up for workers' rights.

"Congress should provide tribes the resources they need to develop and implement labor laws and regulations at Native American enterprises," said Rep. Michelle Lujan Grisham (D-New Mexico), echoing concerns raised by the White House.

Rep. Michelle Lujan Grisham (D-New Mexico) with the Native Health Initiative at health fair she hosted in Albuquerque, New Mexico, on November 14, 2015. Photo from Twitter

"Employee protections and tribal autonomy are not opposing values," said Lujan Grisham, who ended up being one of the 24 Democrats who voted for the bill.

According to the White House, tribes should be exempt from the reaches of the National Labor Relations Board only if their laws and regulations are "reasonably equivalent" to those found in federal law. Some tribes have addressed labor issues in their Class III gaming compacts and have passed comprehensive labor laws.

The statement of administration policy also called for funding to help tribes develop and implement their own labor policies, an idea supported by some Democrats like Lujan Grisham. H.R.511 does not include such a provision -- it only provides a fix to the controversial 2004 administrative ruling that opened tribes to the NLRB's jurisdiction for the first time in decades.

A key Democrat, however, stood behind that ruling, which came in a dispute involving the San Manuel Band of Mission Indians, again highlighting a rift in the party in dealing with tribes and labor unions.

The San Manuel Indian Bingo & Casino in Highland, California. The San Manuel Band of Mission Indians lost a 2004 dispute with a labor union that opened Indian Country to the jurisdiction of the National Labor Relations Board. Photo from Facebook

"The San Manuel decision has been upheld in every appeals court where it has been challenged, and it is based on legal precepts that have been upheld by appellate courts over 30 years," said Rep. Bobby Scott (D-Virginia), the top Democrat on the House Committee on Education and the Workforce, which has jurisdiction over the bill.

Tribes indeed have been unsuccessful in undermining the San Manuel precedent. But a confusing and conflicting pair of decisions from the 6th Circuit Court of Appeals have cast doubt about the legal theories in the 2004 ruling.

The agency itself has acknowledged that it has "no special expertise in construing Indian treaties" in a case involving the Chickasaw Nation of Oklahoma. The tribe is so far the only one to have successfully prevented the NLRB from asserting jurisdiction on its reservation.

"Since its 2004 San Manuel Indian Bingo and Casino decision, the board has used a subjective test to decide on a case-by-case basis whether a tribal business or tribal land is for commercial purposes, and if it is, the board has asserted its jurisdiction over that business," said Rep. Phil Roe (R-Tennessee), who chairs the House subcommittee with jurisdiction over labor issues. "Now, if the board were to do the same with a school, a park, or any other enterprise owned and operated by a state or local government, no member of Congress would stand for it."

"Why, then, should we stand back and allow the NLRB to impose its will on businesses owned and operated by Native American tribes?" Roe said.

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

The report accompanying the bill was finalized in September and the bill is ready for action of the floor. A vote, though, has not been scheduled. Republicans are also in control of the Senate.

From the Indianz.Com Archive:
Tribal labor law rider killed by wide margin in House (June 27, 2005)
NCAI between 'rock and a hard place' on labor rider (September 13, 2004)
Tribal labor amendment fails in House vote (September 13, 2004)
Federal labor board expands jurisdiction over tribes (June 4, 2004)