Sen. Jerry Moran (R-Kansas), the sponsor of the Senate version of the Tribal Labor Sovereignty Act, was honored by theNational Congress of American Indians during the organization's winter conference in Washington, D.C., on February 13, 2018. Photo: NCAI

Legislation

Tribal Labor Sovereignty Act remains in limbo without action in Senate

Thursday, April 12, 2018

Tribes are reportedly "furious" with a key Democrat as the Tribal Labor Sovereignty Act remains in limbo in the 115th Congress.

According to GamblingCompliance, Sen. Tom Udall (D-New Mexico) will not support the bill, which exempts tribes and their casinos from federal labor law. Since he serves as vice chairman of the Senate Committee on Indian Affairs, his stance could hinder efforts to secure passage of the controversial measure.

“If Udall does not vote for this bill and we lose, Indian Country will have no choice but to reconsider its long-standing support for the Democratic Party,” an unidentified tribal gaming lobbyist told GamblingCompliance in a story headlined “Furious Gaming Tribes Blast Senator’s Resistance On Labor Bill.”

The Tribal Labor Sovereignty Act cleared the House in January after the provisions of H.R.986 were inserted in an unrelated Indian bill. The updated bill, known as S.140, still must be considered in the Senate.

Tribes had hoped to see a action on S.140 in February, during the winter session of the National Congress of American Indians. But the organization's top staffer said the vote was being delayed, giving advocates more time to shore up support in the deeply-divided chamber.

"We’re at 57 votes," Jackie Pata, NCAI's executive director told tribal leaders in Washington, D.C., in February. "We need a few more."

Though Republicans control 51 seats in the Senate and are expected to support the Tribal Labor Sovereignty Act, the bill needs at least 60 votes in order to prevent filibusters or overcome other holds. Without Udall's support, the path to success is less certain.

The absence of Sen. John McCain (R-Arizona), a former two-time chairman of the Senate Committee on Indian Affairs, also presents a problem if the bill is brought up while he is still in Arizona recuperating from cancer treatment.

Also complicating matters is the Senate's schedule for the remainder of year. The chamber has a slew of "work periods" coming up, giving little room for lawmakers to take action before the November election.

The stand-alone version of the Tribal Labor Sovereignty Act is S.63. Its sponsor is Sen. Jerry Moran (R-Kansas), who was presented with NCAI's Congressional Leadership Award" in February.

According to the organization, Moran has "demonstrated steadfast support of Indian Country and leadership in championing law and policies that strengthen tribal sovereignty and the federal government’s trust responsibility to tribal nations."

Sen. Tom Udall (D-New Mexico) serves as vice chairman of the Senate Committee on Indian Affairs. Photo: National Congress of American Indians

For decades, tribes never had to worry about the National Labor Relations Act (NLRA), which was first passed in 1935, just a year after the Indian Reorganization Act. But that changed as their businesses -- namely, their gaming facilities -- became more and more successful, attracting the attention of labor unions that sought to represent casino employees.

The legal landscape shifted in a big way in 2004, when the National Labor Relations Board determined that tribes must comply with the NLRA under certain circumstances. Merely employing non-Indians, or catering to non-Indian patrons, was enough to trigger federal jurisdiction.

Efforts in the courts to overturn or blunt that interpretation have largely failed, leaving tribes to seek relief from Congress. To them, the Tribal Labor Sovereignty Act is a matter of parity, putting tribal governments on the same footing as states and local governments, which are already exempt from the NLRA.

Democrats, who are allies of labor unions, have voiced objections. They believe the bill could weaken the rights of casino employees even as a number of tribes have enacted their own labor laws.

Read More on the Story:
Furious Gaming Tribes Blast Senator’s Resistance On Labor Bill (GamblingCompliance April 12, 2018)

Tribal Leader Opinions:
NCAI President Jefferson Keel: The Tribal Labor Sovereignty Act: Simple parity for Indian tribes (The Hill February 12, 2018)
Minnesota Tribal Leaders: Senate has chance to right a wrong by the NLRB on tribal sovereignty (The Minneapolis Star Tribune March 15, 2018)

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 10, 2004)
Federal labor board expands jurisdiction over tribes (June 4, 2004)