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

Mark Trahant: Tribes lose a battle as sovereignty bill comes up for vote

Tribal Sovereignty? Yes … But If It Doesn’t Impact Big Donors To The Democratic Party

Tribes lost a battle in Congress Monday when Democrats tanked a bill giving tribes authority over labor relations. Union dismisses tribal enterprises as “intramural affairs”
By Mark Trahant
Indian Country Today

Tribal sovereignty is one of those phrases that wins near universal support in Congress. Unless, that is, the rights of tribes interfere with a bigger constituent group. Then it becomes “tribal sovereignty, but …”

A bill before the Senate Monday would have recognized that tribal governments have same authority as other governments over organized labor.

The issue goes back to 2004 when the National Labor Relations Board asserted jurisdiction over tribal enterprises — read casinos — even when those operations were tribally-owned and within the boundaries of a reservation.

This was a reversal of some seven decades of labor policy. “As a practical matter the decision invites labor organizations to organize tribal commercial operations, particularly casinos,” wrote D. Michael McBride III and H. Leonard Court in the John Marshall Legal Review.

“The decision conflicts with laws promoting the self-government and economic development of tribes, infringes on some tribes’ treaty rights to exclude non-members and departs from well-established canons of construction that favor tribal sovereignty when treaties or laws remain ambiguous or silent. In short, the decision is a major blow to the inherent power of tribes to regulate themselves and to exclude non-members, a basic attribute of sovereignty, whether protected by treaty or not.”

Tribes want this authority back. And the Tribal Labor Sovereignty Act would have done just that. The measure was introduced by Kansas Sen. Jerry Moran, a Republican. The bills were included in a package that included legislation for White Mountain water rights and a lease for Santa Clara Pueblo.

“It’s a restoration of sovereign status of tribal governments,” that Moran said existed for seventy years. “The Tribal Labor Sovereignty Act is simple and narrow.” He said it only exempts tribal government owned enterprises, not those owned by corporations or individual tribal members. “Many of those who have expressed opposition to this bill say, ‘I support tribal sovereignty but …’ If you have to qualify tribal sovereignty to protect your own interests instead of the tribes, then, no, you really don’t support tribal sovereignty.”

However New Mexico Sen. Tom Udall said he supported the legislation, but called on Republican leaders to do more on Indian issues. “I wanted a better deal for Indian Country. Indian Country had to wait 10 years for today’s vote. We should have had full opportunity to bring other issues on the table. Housing, public safety, self-determination and self-governance – these are equally deserving of the Senate’s consideration,” Udall said on the floor. “We could have considered legislation that would do more to unite us, than to divide us.”

The House version of the legislation passed last month on a bipartisan 239-173 vote with 23 Democrats joining 216 Republicans to support it. Monday night the Senate failed to get the 60 votes needed to advance the legislation. The final vote was 55 in favor and 41.

National Congress of American Indians President Jefferson Keel recently wrote an op-ed in The Hill newspaper where he said the “north star” ought to be tribal sovereignty and the treatment of tribes the same as other government entities.

Congress deliberately excluded from the National Labor Relations Act coverage of public sector employers. As such, state, local, and federal government employers have always been excluded from the definition of “employer. “So, too, were tribal government employers until 2004, when the NLRB arbitrarily decided to interpret the law in a new and unfounded way,” Keel wrote.

“Sovereignty means tribes should be allowed to make their own decisions about their own workforce policies,” Keel wrote.

Keel is the Lt. Gov. of the Chickasaw Tribe of Oklahoma. “The truth is that many tribal nations openly welcome labor unions into the businesses that they own; others choose not to. And a growing number have designed and enforce their own labor regulations. But the NLRB ignores all of this and, instead, forces tribal governments to adhere to the NLRA. Just us. No one else. This is a plain violation of our inherent rights as sovereign nations and governments.”

But on Capitol Hill this legislation has been framed as anti-union measure. A statement by the AFL-CIO, for example, said “fundamental human rights of employees are not the exclusive concern of tribal enterprises or tribal governments.

In fact, the vast majority of employees of these commercial enterprises, such as the casinos, are not Native Americans. They therefore have no voice in setting tribal policy, and no recourse to tribal governments for the protection of their rights.”

Then that’s true of other governments that employ people across borders. A resident of Washington, D.C., working in Virginia. Or vice versa.

The AFL-CIO takes a line of logic that’s similar to that of former Sen. Slade Gorton, R-Washington, that tribes are only member-based organizations, not governments. The union said it may be appropriate for tribes to have governing authority when “the enterprise is mainly comprised of Native American employees, with mainly Native American customers, and involving self-governance or intramural affairs, that may be the appropriate result.

However, where the business employs primarily non-Native American employees and caters to primarily non-Native American customers, there is no basis for depriving employees of their rights and protections under the National Labor Relations Act.”

Most Democrats voted to support that logic. Only one Republican voted against the bill, Rob Portman of Ohio. Seven Democrats voted to advance the legislation, former Vice Presidential candidate Tim Kaine of Virginia, Heidi Heitkamp of North Dakota, Jon Tester of Montana, Tom Udall of New Mexico, Tammy Baldwin of Wisconsin, Martin Heinrich of New Mexico and Mark Warner of Virginia.

At least one union official warned Democrats that campaign funds would be cut for those who did support the legislation. Unite Here President D. Taylor told the Washington Examiner that “It is the height of hypocrisy and completely dishonest for Democrats to deny workers their right to have a union.”

But tribal leaders said this is just another example of tribal governments being treated differently than states or cities (a refrain that was heard during the debate on the tax legislation championed by Republicans). A point that Udall made during the Senate floor debate. “Let there be no mistake: Indian Country loses when we give in to partisan rancor. We’ve seen this play out before,” he said. “When the trillion dollar tax cut was rammed through this chamber without any input from my Democratic colleagues, what happened? Indian Tribes were entirely left out in the cold. There was not a single provision for Indian Tribes in a trillion dollar package.”

“This is about governments that are recognized under the Constitution,” said NCAI Executive Director Jacqueline Pata, Tlingit. “There is an assumption that workers don’t have rights in Indian Country.” That’s not correct, she said, tribes do lead on workers’ issues including the increase in minimum wage standards.

Note: The National Congress of American Indians is the owner of Indian Country Today and manages its business operations. The Indian Country Today editorial team operates independently as a digital journalism enterprise.

Mark Trahant is the editor of Indian Country Today. He is a member of the Shoshone-Bannock Tribes. Follow him on Twitter @TrahantReports.

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