Tribal Labor Sovereignty Act rears its controversial head again

Tuesday, January 29, 2019

Members of the Senate Committee on Indian Affairs held their first meeting of the 116th Congress on January 29, 2019. Photo by Indianz.Com (CC BY-NC-SA 4.0)

By Acee Agoyo

WASHINGTON, D.C. -- A bill to exempt tribes and their casinos from federal labor law has once again reared its controversial head on Capitol Hill.

States and local governments are already exempt from the National Labor Relations Act. Tribes believe their governments should be treated in the same manner.

And that would be the case, but for a 2004 ruling from the National Labor Relations Board, the independent agency that enforces federal labor law. That's where S.226, the Tribal Labor Sovereignty Act, comes in.

"The TLSA would provide parity for all Indian tribes by ensuring that tribal government employers have the same opportunities as all other governmental employers to regulate labor relations with their government workforces," said Harlan Baker, the chairman of the Chippewa Cree Tribe. "This legislation builds upon a principle that has been amply demonstrated by tribes across the country – when tribal sovereignty is respected and acknowledged, opportunity and economic success follows.”

Republican supporters of S.226 agree. They are promoting the bill as a means of bringing clarity to an area of law and policy that's been in dispute since the George W. Bush era.

“It is time to correct a decade-old error made by the National Labor Relations Board and once again allow tribal governments, elected by their members, to possess the right to make informed decisions on behalf of those they represent,” Sen. Jerry Moran (R-Kansas) said as he introduced S.226 last week.

“This sensible and narrow bill amends the National Labor Relations Act to exempt tribally-owned entities operated on tribally-owned lands from the NLRB and is supported by more than 160 Indian tribes and tribal corporations," Moran continued. "The Tribal Labor Sovereignty Act would rightfully restore the sovereign status of tribal governments, and I will continue working with my colleagues to get this bill to the president’s desk.”

Indianz.Com on SoundCloud: Senate Committee on Indian Affairs -- First Meeting of 116th Congress

Moran's bill took an important first step in the legislative process when it was approved by the Senate Committee on Indian Affairs on Wednesday. S.226 and 11 other bills were adopted en bloc at the panel's first meeting of the 116th Congress.

“We’re going to hit the ground running,” Sen. John Hoeven (R-North Dakota), who was again named chairman of the committee on Wednesday, said of the quick actions being taken by the panel.

Hoeven pointed out that all 12 measures have been approved by the committee during prior sessions of Congress. What he left out was that when Tribal Labor Sovereignty Act came up the last time, Democrats weren't happy about it, and that contributed to the bill's spectacular demise on the Senate floor.

This time around, though, no Democrats spoke up about S.226 and how it would affect the rights of employees in Indian Country. But they don't really need to, seeing as how the Tribal Labor Sovereignty Act stands even less of a chance of getting passed in the newly divided Congress.

Prior versions of the bill have been easily approved in the House on two separate occasions. But that was when the chamber was under Republican control.

My Tribal Labor Sovereignty Act passed the Senate @IndianCommittee without objection today. Supported by 160 Indian tribes and tribal corps, this legislation would restore the sovereign status of tribal governments. https://t.co/dZErKH9sHo
— Senator Jerry Moran (@JerryMoran) January 29, 2019

And even though some Democrats voted in favor the bill during the 115th session, they have effectively abandoned the Tribal Labor Sovereignty Act now that the House is under their control. Upsetting labor unions, who oppose the measure and were key allies in the just-concluded fight against the #TrumpShutdown, isn't one of their priorities.

The shift in the agenda is reflected in H.R.779, the House version of the Tribal Labor Sovereignty Act. The bill was introduced last week and it has just one Democratic co-sponsor at this point, down from the four who signed up the last time around.

H.R.779 was referred to the House Committee on Education and Labor where it had received favorable hearings under Republican control. The panel's new Democratic chairman is Rep. Bobby Scott (D-Virginia), who has consistently voted against the Tribal Labor Sovereignty Act and who has vowed to protect the rights of workers in his leadership role.

Back in the Senate, S.226 only has Republican co-sponsors. That's not much a change from the last time around but it isn't stopping the party from pushing the bill again.

"It’s time the government gets out of the way, and empowers tribes to determine their own destiny and create good-paying jobs for their citizens," said Sen. Steve Daines (R-Montana), one of the co-sponsors.

In addition to the Chippewa Cree Tribe, the new leader of another Montana-based tribe is also endorsing S.226. Rynalea Pena won election as president of the Northern Cheyenne Tribe earlier this month.

In a January 29 letter to Daines, Pena said the Tribal Labor Sovereignty Act would "include tribal governments alongside federal, state and local governments that are already exempt from the NLRA. The tribe aspires to have successful economic development on its reservation and the TLSA could enable such opportunities."

For decades, tribes never had to worry about the 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 and attracted the attention of labor unions that sought to represent employees.

The legal landscape shifted dramatically when the NLRB determined that tribes must comply with the law under certain circumstances. Merely employing non-Indians, or catering to non-Indian patrons, was enough to trigger federal jurisdiction.

Even though the 2004 administrative ruling overturned 70 years of precedent, it has withstood numerous legal challenges. A case known as Casino Pauma v. National Labor Relations Board aims to put the issue before the U.S. Supreme Court but the petition stands only a small chance of being granted. The justices took a pass on the controversy back in 2016.

S.226 addresses the situation by clarifying that tribal governments and the enterprises they operate on their lands are exempt from the law. The bill does not affect private enterprises in Indian Country and it does not change labor laws that tribes have enacted on their own.