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MONDAY, JANUARY 14, 2002

It took two trips to a federal appeals court but San Juan Pueblo of New Mexico has again prevailed in its fight to enact its own labor laws.

Rejecting a challenge brought by the National Labor Relations Board (NLRB), an independent federal agency, and a labor union, the 10th Circuit Court of Appeals on Friday ruled that the tribe has the authority to enact its own "right to work" laws. The laws, which prevent forced unionism, are an exercise of tribal self-governance, the court said.

"Like states and territories, the Pueblo has a strong interest as a sovereign in regulating economic activity involving its own members within its own territory," wrote Chief Judge Deanell R. Tacha for the majority, "and it therefore may enact laws governing such activity."

But the battle may hardly be over, as tribal lawyers believe the labor interests may appeal the case to the Supreme Court. Already, there has been some disagreement among judges on the 10th Circuit about the merits of the case, making it ripe for resolution by the High Court.

The dispute centers around the tribe's ability to outlaw labor security agreements, which require employees of a company to pay dues to a union, even if they don't join. Such agreements are legal under the National Labor Relations Act (NLRA).

For its own members, and for those who work on northern New Mexico reservation, the tribe in November 1996 enacted an ordinance prohibiting employers and unions from making the agreements. A lease with a timber company operating on tribal lands contained similar provisions against the forced unions.

The labor board and a local union subsequently sued the tribe, claiming the provisions are unconstitutional and prohibited by the NLRA. They argued that the tribe's sovereignty was diminished by the labor law.

A federal court, however, disagreed and dismissed the case in favor of the tribe. Later, the 10th Circuit upheld the tribe's sovereignty by a 2-1 decision in September 2000.

It was that lone dissenting voice, Judge Michael Murphy, which led the entire panel of the 10th Circuit to reconsider the case. After a rehearing before 10 judges, the appeals court affirmed the Pueblo's right to work law by a vote of 9-1 last week, saying the law didn't "preempt" tribal sovereignty.

But Murphy again dissented, saying laws can "abrogate Indian sovereignty by implication." Otherwise, he wrote, tribes would just exempt themselves whenever convenient.

"If the majority is correct, an Indian tribe, in almost every instance, could avoid the application of a comprehensive, generally applicable federal statute simply by exercising its general legislative powers and enacting an ordinance that either declares the tribe to be exempt from the federal statute or which directly conflicts with the federal statute," warned Murphy.

"This certainly cannot be the rule," he wrote.

Two other judges agreed with some of Murphy's reasoning but in the end, sided with the Pueblo.

With increased commercial development occurring throughout Indian Country, organized labor has become an issue facing tribes, particularly those with casinos. Tribes in many states have resisted union interests, traditionally the allies of Democrats.

Urged on by Republicans, President Bush, in one of his first actions last January, issued an executive order that required companies who win federal contracts to post notice that employees don't have to join unions or pay dues -- the central issue in the Pueblo's case. A federal judge, however, on January 2 halted the order, a decision which the Bush administration plans to appeal.

Bush's father had issued a similar executive order but former President Bill Clinton revoked it as one of his first acts.

Get the Case:
NAT'L LABOR RELATIONS BD v. SAN JUAN PUEBLO NO. 1385, No. 99-2011, 99-2030 (10th Cir. January 11, 2002)

Relevant Links:
National Labor Relations Board - http://www.nlrb.gov
National Right to Work Foundation - http://www.nrtw.org
NCAI resolution on labor - http://130.94.214.68/data/docs/resolution/
2001_winter_session/ECWS001_05.htm