:President Jefferson Keel of the National Congress of American Indians. Photo: NCAI

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'We will be back' vows leader of National Congress of American Indians after sovereignty vote fails

Tuesday, April 17, 2018

A vote on the Tribal Labor Sovereignty Act failed in spectacular fashion on Monday evening but the leader of the National Congress of American Indians says the fight isn't over.

“We will be back,” President Jefferson Keel said on Tuesday morning after the dust settled on the dramatic debate.

Keel pointed out that a vote to advance the bill, which exempts tribes from federal labor law, secured the support of a "majority" of members of the Senate. Seven Democrats and one Independent joined forces with 47 Republicans when it came to a procedural motion in the chamber.

But the motion needed 60 votes in order to move forward, so the effort fell short.

“Obviously, this is disappointing,” said Keel, who also serves as the lieutenant governor of the Chickasaw Nation, whose lobbying expenditures on the bill have run into the millions of dollars.

“But I want to thank the Senate for taking up this important issue, and thank each Senator for the time he or she spent to understand the issue and the nature of tribal governments,” Keel added.

So what happened?

The vote was more than a decade in the making. After tribes suffered embarrassing losses in 2004 and 2005, they regrouped and brought in new Republican allies to push for a bill that exempts tribally-owned enterprises from federal labor law.

“I'm a sponsor of this legislation in the Senate, which should be non-controversial in a chamber where members of the Senate profess to be supportive of tribal sovereignty," Sen. Jerry Moran (R-Kansas) said of his bill on Monday.

Tribe also worked hard on convincing Democratic lawmakers, who had abandoned Indian Country in droves during the prior votes. The effort paid off, at least in the House, where nearly two dozen in the party voted in favor of the measure in January, about the same number that supported it back in 2015.

The Senate was a much bigger hurdle. Though NCAI's top staffer told tribes in February that they had "57 votes," just three short of the target, some factors beyond Indian Country's control contributed to the defeat on Monday.

Three Republicans were in fact absent from the vote. One was Sen. John McCain (R-Arizona), a former two-time chairman of the Senate Committee on Indian Affairs who remains unavailable as he recuperates at home in Arizona from cancer treatment.

Another one missing was Sen. Marco Rubio (R-Florida). He was with President Donald Trump in Florida to talk about the recent tax reform bill, which largely left tribes out of the picture.

And tribes could not count on Vice President Mike Pence, who serves the president of the Senate. He has been called up to vote in the past, when Republicans needed him, but he was in Colorado on Monday.

Then there was Sen. Rob Portman (R-Ohio), who won re-election in 2016. He abruptly voted "Nay" as the roll call came to a close, the only member of his party to do so.

But, in the end, even Keel acknowledged the sober reality of the entire affair. No Democrats spoke in favor of the measure on Monday, with Sen. Sherrod Brown (D-Ohio) calling it an "anti-worker bill masquerading as an issue of tribal sovereignty."

The vast majority of Democrats did not vote to advance it either. Brown was one of the first -- yelling out "Nay" as the roll call began around 5:30pm.

Sen. Elizabeth Warren (D-Massachusetts) also fell in the "Nay" category. In February, she made a well-received address to NCAI, her first before the organization.

"From the comments we heard on the Senate floor," Keel said, "we still have much work to do to educating Congress about the fact that tribal sovereignty is not a conditional proposition."

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

What was the vote?

The following Democrats and Independents voted "Aye" on the motion for cloture on April 16, 2018, meaning they supported further debate on the Tribal Labor Sovereignty Act:
• Sen. Tammy Baldwin of Wisconsin
• Sen. Martin Heinrich of New Mexico
• Sen. Heidi Heitkamp of North Dakota
• Sen. Tim Kaine of Virginia
• Sen. Angus King of Maine
• Sen. Jon Tester of Montana
• Sen. Tom Udall of New Mexico
• Sen. Mark Warner of Virginia

All other Democrats who were present for the vote did not support moving forward.

What's in the bill?

The Tribal Labor Sovereignty Act was introduced in the House as H.R.986 and in the Senate as S.63.

In January, the House added H.R.986 to S.140, a Republican-sponsored bill that was originally written to ensure the White Mountain Apache Tribe can move forward with a critical drinking water project in Arizona.

The House also added the provisions 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, to S.140.

The House then passed S.140 by a vote of 239 to 173. It had to be sent back to the Senate for consideration because of the new changes.

And what is this about again?

In 2004, the National Labor Relations Board, a federal agency, determined that tribes could be subjected to the National Labor Relations Act, especially if their businesses employ non-Indians or cater to non-Indians.

The ruling overturned 70 years of precedent and its reasoning has been upheld in the courts.

But tribes believe they should be treated like states and federal governments, which are exempt from the federal law. Some have enacted their own labor ordinances and some unions are following them.

"There is no good reason to treat tribal governments in any way different from other governments. Federal law should uphold, not undercut, parity of treatment and equality of opportunity for tribal governments,” NCAI's executive director Jackie Pata said on Tuesday.

Will there be any fallout?

After the 2004 vote, the first on the issue, then-NCAI president Tex Hall acknowledged that some Democrats were upset with tribes for basically forcing lawmakers to choose between sovereignty and labor unions, the traditional ally of the party.

"We really were between a rock and a hard place," Hall told Indianz.Com at the time. NCAI even got called out in a negative fashion by key Democrats on the floor of the House during the debate.

In an impassioned speech after Monday's showdown, Sen. Tom Udall (D-New Mexico), the top Democrat on the Senate Committee on Indian Affairs, hinted of trouble between Democrats and Indian Country. But he largely directed his angst at Republicans, accusing them of failing to advance less controversial legislation.

“We should be working together for Indian Country,” Udall said as he noted that he voted in favor of advancing the Tribal Labor Sovereignty Act. “The majority isn’t doing that. It is using a wedge issue to pit people against each other in an attempt to score political points.”

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)