House Committee on Education and the Workforce Schedules Hearing on H.R. 986, the "Tribal Labor Sovereignty Act," for June 29 at 11:30a EDT

To:

From:

 

Re:


Date:

NIGA Member Tribes

Chairman Ernest L. Stevens Jr.
Jason C. Giles, Executive Director
Danielle Her Many Horses, Deputy Executive Director/General Counsel

House Committee on Education and the Workforce Schedules Hearing on H.R. 986, the "Tribal Labor Sovereignty Act," for June 29 at 11:30a EDT

June 27, 2017

Congressman Todd Rokita (R-IN) introduced H.R. 986, the "Tribal Labor Sovereignty Act" (TLSA), on February 9, 2017, and it was referred to the House Committee on Education and the Workforce. Today, the Committee issued notice that it will hold a legislative hearing on H.R. 986 on Thursday, June 29, 2017 at 11:30a EDT in 2175 Rayburn House Office Building. Below is a summary of the issue and a model letter of support for your consideration. With opponents of this bill becoming increasingly active and misinterpreting the purpose of the Tribal Labor Sovereignty Act, it is vital that tribes weigh in with Congress that this bill is purely an issue of tribal sovereignty. This is the first step leading to an eventual House Floor vote and passage prior to Congress' August recess.

Earlier this Congress, the Senate version of the TLSA was introduced on January 9, 2017, by Senator Jerry Moran (R-KS) as S. 63. S. 63 was referred to the Senate Committee on Indian Affairs where it was moved out of Committee on February 8th by a voice vote and is awaiting a Senate floor vote. In the House, the bill received a Committee hearing on March 29th, the House Education and Workforce Committee's Subcommittee on Health, Employment, Labor, and Pensions.

The 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.

Background of the Issue

On May 28, 2004, the NLRB in San Manuel Band of Mission Indians, overturned three decades of its own precedent in ruling that the NLRA applies to Indian gaming establishments wholly owned and operated by tribal governments. The Board's previous decisions held that Indian tribes were governments - similar to state and local governments - for purposes of the NLRA, and that the NLRA applied only to tribal enterprises operating outside of Indian Country.

In February of 2007, the U.S. Court of Appeals for the Ninth Circuit upheld the NLRB's May 2004 order.  In so doing, the Appeals Court agreed with the NLRB's reasoning that the NLRA is applicable because 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."

Over the past decade and in the wake of the NLRB v. San Manuel decision, organized labor has mounted an aggressive campaign on tribal government operations in Connecticut, Michigan, New Mexico, Oklahoma and others. Federal court battles stemming from these intrusions are ongoing throughout the federal court system.

Senator Inouye's Request to Senator Kennedy

In the 111th Congress, Labor Unions were promoting the Employee Free Choice Act, and Senator Kennedy's Senate HELP Committee had jurisdiction over the bill. Senator Inouye offered an amendment to "treat Indian tribes as governments." Senator Inouye explained to Senator Kennedy: "The Constitution ... acknowledges Indian tribes as governments under the Commerce ... and Supremacy Clause[s]. President Franklin Roosevelt's New Deal for Native Americans, the Indian Reorganization Act of 1934, encourages tribal governments to revitalize self-government through the adoption of tribal constitutions and federally chartered tribal government corporations. The National Labor Relations Act, President Roosevelt's New Deal for Labor, provided for collective bargaining in private industry and excluded the United States, state and local governments, and wholly owned government corporations so that governments might establish their own laws for employee relations. For almost 70 years, tribal governments were included in the Act's definition of governments.... Congress should affirm the original construction of the Act...." At a June meeting of the Senate Democratic Roundtable on Indian Policy, Chaired by Senator Stabenow, Senator Inouye called upon Democratic Senators to uphold Indian sovereignty by supporting his proposed amendment to the EFCA.

The Need for the Tribal Labor Sovereignty Act

As Senator Inouye acknowledged, the NLRA was enacted to address upheavals in private industry.  Government employers were expressly exempted from the Act.  Although the NLRA did not list all forms of government subject to the exemption, the NLRB consistently interpreted the exemption to include the District of Columbia, U.S. territories and possessions, and tribal governments-as well as enterprises operated by these governments.  The Board's misguided and activist 2004 opinion reversed decades of its own precedent.  As a result, tribal governments are the only sovereigns in the U.S. that are subject to the NLRA.

The Board's reasoning attempts to equate tribal government gaming operations and similar businesses with commercial enterprises. This is a dangerous misstatement of fact that disrespects tribal sovereignty and ignores the legal and economic realities of tribal government enterprises.  Tribal Laws require, and Federal Law mandates, that revenues generated from Indian gaming be used entirely for government purposes.  Commercial gaming enterprises conversely are for-profit individually owned operations that have no restrictions on the use of revenues.  More to the point, as noted above, the U.S. Constitution acknowledges Indian tribes as separate sovereigns.  The Constitution mandates respect for and treatment of Indian tribes as governments.

In addition, tribal governments generally lack an effective tax base-Indian lands are held in trust by the U.S. and cannot be subjected to real estate taxation, high reservation unemployment makes income taxation unworkable, and restrictive Supreme Court rulings have severely limited tribal government sales taxes.  For many tribal governments, Indian gaming operations, tribal timber operations, and other tribal government enterprises constitute the sole source of governmental revenue that is used to fund tribal public safety, education, health, housing and other essential services to reservation residents.  Ignoring the purpose of tribal government enterprises subjects vital tribal government programs to shutdowns and work stoppages.

Indian Country uniformly supports enactment of the Tribal Labor Sovereignty Act. NIGA, NCAI and many other tribes and tribal organizations have adopted resolutions supporting the Tribal Labor Sovereignty Act and the need to amend the NLRA to treat Indian tribes as governments.

Thanks to your outreach in 2016, the TLSA experienced bipartisan support in the 114th Congress passing out of the House of Representatives by a vote of 249-177 with 24 Democrats voting in favor. Despite Indian Country's effort last year, the Senate failed to act on the legislation before the 2016 Election and subsequent Lame Duck session stalled progress in the chamber.

Indian Country's continued pressure on Congress in 2017 has led to the TLSA making swift progress in Congress and with our continued pressure and education of new Members of Congress, and those without a strong knowledge base of tribal issues, we can get the TLSA over the finish line this Congress. With an overwhelming amount of support demonstrated by members of the House Education and the Workforce Committee, we expect H.R. 986 to be marked out of the Committee on Thursday, but we must still call and write Members of Congress to educate them on the true purpose of this bill: protection of tribal sovereignty.

We must continue to build on the momentum of last Congress and the quick progress the bills have made thus far in the 115th Congress to ensure that this vital piece of legislation is enacted in 2017. NIGA urges you to continue to contact your Senators and Congresspeople, especially those on the Committee on Education and the Workforce, to ask for their support of the TLSA and to express your support of the TLSA to leadership offices in both the House and Senate. A draft letter is attached for your consideration. Please contact Veronica Watters by email at vwatters@indiangaming.org or by phone at 202-548-3803 with any questions or concerns.

To view the hearing: https://www.youtube.com/watch?v=reTw36ChIaU

Members of the House Committee on Education and the Workforce:

Democrats
Rep. Bobby Scott
(Ranking Member), Virginia
Rep. Susan A. Davis, California
Rep Raul M. Grijalva, Arizona
Rep. Joe Courtney, Connecticut
Rep. Marcia L. Fudge, Ohio
Rep. Jared Polis, Colorado
Rep. Gregorio Kilili Camacho Sablan, Northern Mariana Islands
Rep. Frederica S. Wilson, Florida
Rep. Suzanne Bonamici, Oregon
Rep. Mark Takano, California
Rep. Alma S. Adams, North Carolina
Rep. Mark DeSaulnier, California
Rep. Donald Norcross, New Jersey
Rep. Lisa Blunt Rochester, Delaware
Rep. Raja Krishnamoorthi, Illinois
Rep. Carol Shea-Porter, New Hampshire
Rep. Adriano Espaillat, New York

Republicans
Rep. Virginia Foxx, North Carolina (Chair)
Rep. Joe Wilson, South Carolina (Vice Chair)
Rep. Duncan Hunter, California
Rep. David P. Roe, Tennessee
Rep. Glenn "GT" Thompson, Pennsylvania
Rep. Tim Walberg, Michigan
Rep. Brett Guthrie, Kentucky
Rep. Todd Rokita, Indiana
Rep. Lou Barletta, Pennsylvania
Rep. Luke Messer, Indiana
Rep. Bradley Byrne, Alabama
Rep. David Brat, Virginia
Rep. Glenn Grothman, Wisconsin
Rep. Elise Stefanik, New York
Rep. Rick W. Allen, Georgia  
Rep. Jason Lewis, Minnesota
Rep. Francis Rooney, Florida
Rep. Paul Mitchell, Michigan
Rep. Tom Garrett, Jr., Virginia
Rep. Lloyd K. Smucker, Pennsylvania
Rep. A. Drew Ferguson, IV, Georgia
Rep. Ron Estes, Kansas             
Vacancy


[TRIBAL LETTERHEAD]

[DATE]

The Honorable ______
[United States Senate/U.S. House of Representatives]
[Washington, DC 20510/Washington, DC 20515]
Email: [ staffcontact@____.senate.gov or staffcontact@mail.house.gov]

Re: Request to Cosponsor S. 63/H.R. 986, the "Tribal Labor Sovereignty Act"

Senator/Congressperson ______:

I write on behalf of the [tribe/nation] to respectfully ask that you cosponsor S. 63/H.R. 986, the "Tribal Labor Sovereignty Act." The bill 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. The issue is centered on tribal sovereignty and the treatment of Indian tribes as governments.

The NLRA was enacted in 1935 to address worker concerns in private industry.  Government employers were expressly exempted from the Act.  Although the NLRA did not list all forms of government subject to the exemption, the National Labor Relations Board (NLRB) consistently interpreted the government exemption to include the District of Columbia, U.S. territories and possessions, and tribal governments-as well as enterprises operated by these governments.

In 2004, the NLRB in San Manuel Indian Bingo reversed decades of its own precedent to apply the NLRA to tribal government enterprises.  As a result, tribal governments are the only sovereigns in the U.S. to be subject to the NLRA. The Board's reasoning in its 2004 decision asserts that tribal government-owned enterprises are commercial enterprises in direct competition with similar non-tribal businesses.  This is a dangerous misstatement of fact that disrespects tribal sovereignty and ignores the economic realities facing many tribal governments.

Tribal governments generally lack an effective tax base-Indian lands are held in trust by the U.S. and cannot be subjected to real estate taxation, high reservation unemployment makes income taxation unworkable, and restrictive Supreme Court rulings have severely limited tribal government sales taxes.  For many tribal governments, Indian gaming operations, tribal timber operations, and other tribal government enterprises constitute the sole source of governmental revenue that is used to fund tribal public safety, education, health, housing and other essential services to reservation residents.  Ignoring the purpose of tribal government enterprises subjects vital tribal government programs to shutdowns and work stoppages.

With specific regard to Indian gaming, tribal casinos are wholly owned and operated by tribal governments. Equating Indian gaming to commercial gaming completely ignores the text and intent of the Indian Gaming Regulatory Act (IGRA).  Congress imposed IGRA on Indian gaming operations to establish a system of federal regulation and "to provide a means of promoting tribal economic development, self-sufficiency, and strong tribal governments."  IGRA mandates that tribes use revenues generated from Indian gaming for one of five government purposes: to fund tribal government operations, programs, and services; to provide for the general welfare of the community; to promote tribal economic development; to donate to charitable organizations; or to fund local government operations. Conversely, commercial gaming enterprises are for-profit individually owned operations.

This issue is solely about tribal sovereignty, respect for Indian tribes as governments and the need to protect a source of government revenue that funds essential services and programs to reservation residents.

Tribes and unions have a long track record of working together on labor agreements pursuant to tribal laws and regulations, not federally imposed mandates. Historically, many Native people have been and continue to be trained and employed by unions.  Indian Country has a long history of working cooperatively with the major trade organizations to help construct many of the facilities that house tribal government enterprises today. Amending the NLRA to treat Indian tribes as governments would not impact these agreements or future negotiations.

Indian Country has voiced strong and universal support of the TLSA.  As a result, I again ask you to co-sponsor S. 63/H.R. 986, 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]