Sen. Tom Udall (D-New Mexico) with tribal constituents in Washington, D.C. "As vice chairman of the Indian Affairs Committee, I am committed to ensuring Tribal communities' voices are heard and represented," Udall wrote in a post on Twitter on February 16, 2018. Photo: Tom Udall

National | Politics

Indian Country caught in drama as lawmakers clash on controversial bill

Tuesday, April 17, 2018

A controversial bill to exempt tribes from federal labor law is fueling an all-out partisan war on Capitol Hill, the likes of which one top Democrat is calling unprecedented.

Indian Country is caught in the middle after an attempt to advance the Tribal Labor Sovereignty Act in the Senate failed in spectacular fashion on Monday evening. The final roll call was 55 to 41, a handful of votes short of the 60 needed on the procedural matter.

But the drama is far from over. As the chamber reconvenes on Tuesday, Republican leaders will be resorting to other tactics in hopes of scoring a victory during a crucial election year, one in which their party is already feeling the sting of an unpopular president.

"Today marks a real opportunity for the Senate to affirm and celebrate tribal sovereignty and self-determination," said Sen. John Hoeven (R-North Dakota), the Republican chairman of the Senate Committee on Indian Affairs.

This afternoon, the #Senate will vote to advance legislation from Senator @JerryMoran that would bolster the proper sovereignty of American Indian tribes in the face of excessive federal regulation.
— Leader McConnell (@SenateMajLdr) April 16, 2018

The strategy is drawing pointed criticism from Sen. Tom Udall (D-New Mexico), the top Democrat on the committee. The GOP push ignores the bipartisan spirit in which tribal legislation is typically considered, he charged.

Normally, Indian bills clear the chamber by unanimous consent. There isn't even a vote called because every member has already agreed support a particular measure.

But Udall said the cooperative relationship was broken with the Tribal Labor Sovereignty Act.

"Normally, our committee is very bipartisan," Udall said as he noted that is technically considered the vice chairman of the panel.

"It was not so in this case today," he continued.

Udall noted that he actually voted to advance debate on the measure, citing his long record on tribal issues.. But he disputed Republican characterizations of the bill as "negotiated."

"I was not asked for input. Nothing about this bill," Udall asserted, "was negotiated with me."

Indianz.Com on SoundCloud: "It's Shameful" -- Sen. Tom Udall (D-New Mexico) on Indian Country Legislation in the 115th Congress

And instead of bringing up other critical legislation, such as a reauthorization of the Native American Housing Assistance and Self Determination Act (NAHASDA), which expired in 2013, Udall accused the majority party of bringing up the the labor bill to embarrass Democrats.

"It is shameful that this full body does not consider and resolve these and other important issues," Udall said as he unveiled a letter calling for action on housing, health, education and other priorities. "And it is shameful that, when the Senate gives Indian Country its first shot in 10 years, Republicans closed the debate to prevent consideration of other pressing pieces of Indian Affairs legislation."

Sen. Jerry Moran (R-Kansas) effectively acknowledged the basis of the vote when he spoke earlier in the day, before the procedural vote. He pitched the Tribal Labor Sovereignty Act, which he introduced early in the 115th Congress and has sponsored in prior sessions, as a litmus test of sorts.

"If you have to qualify your support for tribal sovereignty in order to protect your own interests, instead of the tribes," Moran said, "you really don't support tribal sovereignty."

"If you're for sovereignty, you're for sovereignty in all circumstances," Moran added. "You don't have the ability to choose. It's based on a moral and legal obligation that we have to tribes here in the United States."

At the same time, Moran disputed the notion that Republicans weren't open to negotiations. He said he was willing to attach NAHASDA to the labor bill but blamed Democrats for rejecting that idea.

Moran also said party leaders wanted to include the Tribal Labor Sovereignty Act, which he introduced as S.63, in the #Omnibus spending bill that became law last month. Rep. Tom Cole (R-Oklahoma), a citizen of the Chickasaw Nation, had worked on that effort but ultimately it was unsuccessful.

Sen. Jeff Flake (R-Arizona) on YouTube: Flake Urges Senate to Pass Tribal Water Rights Legislation

That leaves Indian Country stuck with the present strategy. In January, Republican leaders in the House added the Tribal Labor Sovereignty Act to S.140, an unrelated Indian bill which ensures the White Mountain Apache Tribe can move forward with a critical drinking water project in Arizona.

"The White Mountain settlement includes an enforceability date that means if this water system project is not completely approved by May 2021, it becomes void," said Sen. Jeff Flake (R-Arizona), the sponsor of S.140, said on the Senate floor on Monday. "In order to realistically meet this deadline, this bill must pass as soon as possible so the tribe has the time to complete the necessary project studies."

S.140 was previously considered non-controversial. It cleared the Senate last May by unanimous consent, the procedure Udall mentioned during his remarks.

But since the House changed S.140, the measure had to be sent back to the Senate again, causing it to become controversial.

Despite the failure of Monday's vote, Republicans have more tricks up their sleeves. Immediately after the roll call, Sen. Mitch McConnell (R-Kentucky), the Republican leader in the Senate, stated his intent to call up another amendment to S.140, thus starting the process for a new cloture vote, the kind that needs 60 votes to advance and the kind that got Indian Country in trouble in the first place.

Democrats expect the vote to occur on Wednesday, unless an agreement can be reached, something which seems impossible given the present climate.

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 and attracted 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.

Attempts 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.

States and local governments are already exempt from the NLRA so the Tribal Labor Sovereignty Act, which was introduced in the House as H.R.986, is seen by supporters as a way to bring parity. Instead of going by federal law, labor unions would have to follow tribal law when they want to organize, something that already happens on reservations across the nation.

But Democrats contend the measure is unfair to employees in Indian Country.

"This bill strips away the rights of 600,000 employees at tribal casinos -- 600,000 employees at casinos on tribal lands will lose their rights to collective bargaining," said Sen. Sherrod Brown (D-Ohio), who was among the Democrats who voted "Nay" on the cloture motion on Monday. "You know what that means to their wages, you know what that means to their benefits."

S.140, which does not have an official title, doesn't just contain the White Mountain Apache settlement provisions and the Tribal Labor Sovereignty Act. It also includes the includes the text of S.249, a bill which clarifies that Ohkay Owingeh and the Pueblo of Santa Clara can lease their lands in northern New Mexico for up 99 years for economic development and other purposes.

Like the original version of S.140, S.249 had passed the Senate by unanimous consent. Similar bills have been enacted into law for other tribes without much controversy.

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)