Urge Congress to Support S.248 and H.R. 511, the Tribal Labor Sovereignty Act

On July 22, 2015, the U.S. House of Representatives marked out of committee the Tribal Labor Sovereignty Act (TLSA). Similarly, the Senate Indian Affairs Committee marked the bill out on June 10. The bills are awaiting floor consideration in both chambers. The Senate bill has 11 cosponsors and the House bill has 48 cosponsors (including two Democrats).

TLSA would amend the National Labor Relations Act ("NLRA") to bring tribal government-owned and operated commercial enterprises into parity with commercial enterprises owned and operated by all other sovereigns within the United States, including states, state political subdivisions (counties, cities, municipalities), the District of Columbia, and all U.S. territories and possessions. Current law singles out Indian tribes as the only governmental entity subject to the NLRA - essentially making tribal governments second-class sovereigns.

Thanks to your outreach, the TLSA has moved significantly through the legislative process over the past two months; however, Indian Country still has more work to do. We urge you to continue to contact your federal congressional delegation to secure their support of the TLSA. Draft letters are attached for your consideration.

Overview of the Application of Labor Laws to Tribal Governments and the Need for the TLSA
The NLRA was enacted in 1935 to protect the rights of private sector employees to organize and to bargain collectively. The NLRA established the National Labor Relations Board (NLRB) to enforce the rights under the Act.

The NLRA expressly exempts public sector employers, including the United States and "State or political subdivision" employers, including commercial enterprises operated by these entities. The NLRB has interpreted the NLRA's public sector exemption for "State or political subdivisions" to also implicitly include the District of Columbia and all U.S. territories and possessions. In 1976, the Board in Fort Apache Timber Company interpreted this exemption to also include on-reservation commercial enterprises owned and operated by tribal governments.

However, the NLRB, in San Manuel Indian Bingo and Casino (2004), overturned Fort Apache ruling that the NLRA applies to Indian gaming establishments owned and operated by tribal governments. The Board reasoned that the Tribe's casino is a "purely commercial enterprise" that "employs significant numbers of non-Indians" and "caters to a non-Indian clientele that lives off the reservation." The Ninth Circuit upheld the NLRB San Manuel ruling in 2007.

It is imperative the TLSA be enacted as soon as possible. Since the San Manuel ruling, a number of additional federal court cases are winding their way through the appellate process and seem destined for arguments before the U.S. Supreme Court. The NLRB issued its opinion on Chickasaw Nation, where it declined jurisdiction and the application of the NLRA based on the specific treaty provisions of the Treaty of Dancing Rabbit Creek.  In contrast, the NLRB in Saginaw Chippewa determined that the Saginaw Chippewa treaty with the United States lacked the specificity of reserved rights so the Board had jurisdiction to hear labor disputes brought against the Tribe. The NLRB has no expertise in Indian treaties and should not be determining what rights our treaties contain. Now more than ever we need it clarified that the NLRA does not apply to tribal governments and their wholly owned government corporations.

The Tribal Labor Sovereignty Act
To put a stop to these intrusions on tribal sovereignty and to stop litigation before it results in an adverse Supreme Court decision, NIGA and our Member Tribes have worked with Members of Congress to introduce the Tribal Labor Sovereignty Act, H.R. 511 / S. 248. The bill would amend the NLRA to expressly provide that tribal enterprises located on Indian lands fall within the public sector exemption to the NLRA. The TLSA would restore parity for tribal governments that was respected for nearly 70 years prior to the 2004 San Manuel decision.

The Obama Administration expressed some support for this proposal. On December 7, 2011, the Department of the Interior sent a letter to the NLRB expressing the position that the Board's regulation defining the term "State" to implicitly include the District of Columbia and all U.S. territories and possessions, "could-and should-include tribes in a similar manner."

The U.S. Constitution acknowledges that Indian tribes as separate governments in our federalist system. The express statutory language of IGRA makes clear that Indian gaming is a government activity and revenues generated by Indian gaming must be used for tribal government purposes. The NLRB makes no similar distinction for state and local government commercial enterprises, including state lottery and other gaming-related operations. Disparate treatment of Indian tribes for purposes of the NLRA violates the U.S. Constitution and the longstanding federal policy supporting Indian Self-Determination.

We are getting closer to enactment, but need more support and cosponsors from Members of Congress on both sides of the aisle. Again, we urge you to contact your federal congressional delegation and ask them to cosponsor the TLSA. Attached are draft letters for your consideration. Please contact Veronica Watters, Legislative Director, by email at vwatters@indiangaming.org or by phone at 202-546-7711 with any questions or concerns. 


[DATE]

The Honorable ______
U.S. House of Representatives
____ House Office Building
Washington, DC 20515
Email: [ staff contact@mail.house.gov]

Representative ______:

From the first days of the American Republic, the Constitution, treaties and laws of the United States have recognized Indian nations and tribes as sovereigns with inherent authority over our members and our territory.  In 1934, President Franklin D. Roosevelt promoted the enactment of the Indian Reorganization Act as the "New Deal" for American Indians to revitalize tribal self-government after the devastating Indian Wars.  In 1935, FDR promoted the enactment of the National Labor Relations Act to provide for labor organization in private industry, while exempting government employees from its reach.  Naturally, these New Deal Acts were read together to treat Indian tribes as governments.

For almost 70 years, tribal government employees were recognized to be exempt from the NLRA.  Yet, in 2004, the National Labor Relations Board reversed decades of decisions and applied the NLRA to Indian gaming employees.  Indian gaming is first and foremost intended to build strong tribal governments and it is governmental gaming, just as state lotteries are governmental gaming.  Congress should restore the original understanding of the Constitution that Indian nations and tribes are governments, with inherent sovereign authority to govern our lands and our communities.

Congressman Rokita and several colleagues have introduced H.R. 511, the Tribal Labor Sovereignty Act, to restore the original understanding of the Constitution-Indian nations and tribes are governments and tribal government employees are properly treated as government employees exempt under the NLRA.

Please vote yes on H.R. 511 to restore the original treatment of Indian nations and tribes as governments under the National Labor Relations Act in accordance with the Constitution, historical treaties and laws of the United States.

Sincerely,

[Tribal Official's Name and Title]

[TRIBAL LETTERHEAD]


[DATE]

The Honorable ______
United States Senate
____ Senate Office Building
Washington, DC 20510
Email: [ staff contact@____.senate.gov]
Senator ______:

From the first days of the American Republic, the Constitution, treaties and laws of the United States have recognized Indian nations and tribes as sovereigns with inherent authority over our members and our territory.  In 1934, President Franklin D. Roosevelt promoted the enactment of the Indian Reorganization Act as the "New Deal" for American Indians to revitalize tribal self-government after the devastating Indian Wars.  In 1935, FDR promoted the enactment of the National Labor Relations Act to provide for labor organization in private industry, while exempting government employees from its reach.  Naturally, these New Deal Acts were read together to treat Indian tribes as governments.

For almost 70 years, tribal government employees were recognized to be exempt from the NLRA.  Yet, in 2004, the National Labor Relations Board reversed decades of decisions and applied the NLRA to Indian gaming employees.  Indian gaming is first and foremost intended to build strong tribal governments and it is governmental gaming, just as state lotteries are governmental gaming.  Congress should restore the original understanding of the Constitution that Indian nations and tribes are governments, with inherent sovereign authority to govern our lands and our communities.

Senator Moran and several colleagues have introduced S. 248, the Tribal Labor Sovereignty Act, to restore the original understanding of the Constitution-Indian nations and tribes are governments and tribal government employees are properly treated as government employees exempt under the NLRA.

Please vote yes on S. 248 to restore the original treatment of Indian nations and tribes as governments under the National Labor Relations Act in accordance with the Constitution, historical treaties and laws of the United States.

Sincerely,

[Tribal Official's Name and Title]


President Barack Obama
1600 Pennsylvania Ave. NW
Washington, DC 20500
E-mail: rthiele@who.eop.gov, agrigonis@who.eop.gov

Re: Support the Tribal Labor Sovereignty Act of 2015

President Obama:

I write on behalf of the [tribe/nation] to respectfully ask that your Administration support the "Tribal Labor Sovereignty Act of 2015" - H.R. 511 / S. 248. This legislation would amend the National Labor Relations Act ("NLRA") to treat wholly owned tribal government operations located on Indian lands as sovereigns for purposes of the NLRA. The issue is centered on tribal sovereignty and the treatment of Indian tribes as governments.

Your Administration has also indicated support for the implicit treatment of Indian tribes as governments under the NLRA. In 2011, the Department of the Interior sent a letter to the NLRB expressing the Department's position that the NLRA does not apply to "Indian nations acting within their jurisdictions." The Department suggested that the Board's regulation defining the term "State" to also implicitly include the District of Columbia and all territories and possessions of the United States, "could-and should-include tribes in a similar manner."

In 1935, Congress enacted the NLRA, President Roosevelt's New Deal Labor Policy. The NLRA establishes the framework for organized labor and collective bargaining in the private sector. The Act expressly exempts states and political subdivisions from application of the NLRA out of respect for their local sovereign decision-making authority and to ensure that essential government services are not interrupted with labor disputes. The National Labor Relations Board ("NLRB") has interpreted the "state or political subdivision" exemption to also implicitly include the District of Columbia, and all territories and possessions of the United States.

In 1976, the Board in Fort Apache Timber Company acknowledged Indian tribal government owned enterprises as falling within the public sector exemption.

However, the NLRB, in San Manuel Indian Bingo and Casino (2004), overturned Fort Apache, reasoning that Indian gaming operations are "purely commercial enterprises". This decision conflicts with the U.S. Constitution's recognition of Indian tribes as separate distinct governments, and ignores Congress' stated purpose and on the ground facts of Indian gaming.

Congress enacted the Indian Gaming Regulatory Act ("IGRA") "to provide a statutory basis for the operation of gaming by Indian tribes as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments." For many Native Nations, Indian gaming is the sole source of government revenue to fund the tribal programs and services to Native citizens. Unlike state and local governments, most Indian tribes lack an adequate real estate or income tax base. In addition, IGRA mandates that tribes use net revenues from Indian gaming solely for government purposes.

For more than 40 years, Indian gaming revenues are often the sole source of non-federal funds to improve reservation health care, education, public safety, and the general welfare of Native communities. Tribal gaming has also helped begin to rebuild tribal infrastructure, roads, water and telecommunications systems, and much more. In sum, Indian gaming is essential to furthering the congressional goals of tribal self-government and self-sufficiency.

As tribal governments, we are not opposed to labor unions. Many of our tribal citizens are union members. Through the Iron Workers Union and others, Native Americans played a significant role in raising the high-rise towers that are the foundation of city skylines. Many tribes have worked out agreements with the building trades in constructing gaming and hotel facilities. However, Indian tribes are governments that work to provide essential services to our communities. Indian gaming is the primary source of revenue for our education, health care, public safety, fire protection and many other essential programs and services to our community. These programs will suffer if our operations are subjected to labor disputes and costly and lengthy litigation. Tribal governments must be treated equally with the Federal and state governments under the NLRA.

As a result, I again ask that your Administration contact Congress to support H.R. 511 / S. 248, the Tribal Labor Sovereignty Act. The Act comports with the U.S. Constitution, respects Indian tribes as governments, and protects the essential programs and services that provide for the general welfare of our community. Thank you for consideration of this request.

Sincerely,

[Tribal Official's Name and Title]