Senate places controversial Tribal Labor Sovereignty Act on schedule

Monday, April 16, 2018

Update - 7:30pm Eastern:
The procedural vote on the Tribal Labor Sovereignty Act did not secure the 60 votes needed to advance on Monday evening. The roll call was 54 to 41, falling short of the target. However, debate is not yet over. Republican leaders are resorting to other tactics in a bid to gain passage in the Senate.

Previously:
Tune In! -- Debate on Tribal Labor Sovereignty Act at senate.gov/floor -- Procedural vote at 5:30pm Eastern

All eyes are on the Senate as the chamber takes up the Tribal Labor Sovereignty Act for the first time.

The bill exempts tribes and their enterprises -- gaming facilities, namely -- from federal labor law. States and local governments already enjoy such freedom so supporters see the matter as one of parity and respecting self-determination.

"Quite frankly," said Rep. Kristi Noem (R-South Dakota), a co-sponsor of the measure, "I believe that subjecting Native American tribes to National Labor Relations Board rules is yet another sign that some still want the federal government to interfere with tribal decision-making."

That line of thinking helped the House pass the bill in January with widespread Republican support. Nearly two dozen Democrats got on board as well, and prior versions cleared the chamber by large margins.

But up until now, the measure has never come before the Senate, where chances of success have always been in doubt. A procedural vote on Monday sets the stage for what could possibly represent one of the biggest legislative achievements for Indian Country in years.

"This measure would create parity for tribal governments," Sen. Jeff Flake (R-Arizona) said in the afternoon as lawmakers prepared for the critical vote.

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

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 casinos became more and more successful, attracting the attention of labor unions that sought to represent 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. But early efforts proved embarrassing, as tribes and their advocates failed to rally Democratic support during dramatic showdowns on the floor of the House in 2004 and 2005.

Yet the political winds have shifted dramatically since then. Key Democrats, like Rep. Betty McCollum (D-Minnesota), who serves as the co-chair of the Congressional Native American Caucus, are now willing to buck labor unions -- the traditional allies of the party.

“She gets it, she gets what it's about,” Juana Majel-Dixon, the secretary of the National Congress of American Indians, said of the lawmaker during the organization's recent winter session in Washington, D.C.

And even though Rep. Michelle Lujan Grisham (D-New Mexico) is not seeking re-election this year, she's proud to boast of her support for the Tribal Labor Sovereignty Act in her campaign for governor of New Mexico. She was one of the 23 Democrats who voted for the bill in January, unafraid of what that might do to her standing back home.

Whether Democrats in the Senate are willing to do the same is an open question. Tribal leaders were expecting a vote during NCAI's meeting in February only to be told it was being delayed.

"We’re at 57 votes," Jackie Pata, NCAI's executive director, said at the time. "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. So convincing a sufficient number of Democrats has been the goal for the past few months.

According to one account, the effort failed to sway Sen. Tom Udall (D-New Mexico), who serves as the vice chair of the Senate Committee on Indian Affairs. He is refusing to support a bill that most of his fellow lawmakers from the state are backing, GamblingCompliance reported last week.

"If you have to qualify your support for tribal sovereignty in order to protect your own interests, instead of the tribes, no you really don't support tribal sovereignty," said Sen. Jerry Moran (R-Kansas), who was presented with NCAI's Congressional Leadership Award" in February.

Moran is the sponsor of S.63, the Senate version of the Tribal Labor Sovereignty Act. But his bill isn't the one being considered in the chamber.

The House version, known as H.R.986, was instead inserted in as S.140, an unrelated Indian bill sponsored by Sen. Flake.

S.140 passed the Senate by unanimous consent, meaning no objections, almost a year ago. But since the text was changed by the House in January, it has to be brought up for consideration again.

Monday's procedural vote is expected to start at 5:30pm Eastern. Proceedings can be viewed online at senate.gov/floor.

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)