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Tribal-backed labor amendment fails on party line vote
Friday, September 10, 2004

An attempt to exempt tribes from the effects of a controversial labor law decision failed on Thursday as Democrats accused Republicans of playing election-year politics.

Rep. J.D. Hayworth (R-Arizona) introduced an appropriations rider that would have put a hold on the National Labor Review Board's recent decision to assert jurisdiction over tribal enterprises. He said the "temporary time-out" was necessary until Congress develops a permanent solution to the emerging issue.

"This is a question of sovereignty," Hayworth said yesterday. "We dare not equivocate nor abdicate the role of Congress in dealing with government-to-government relationships and the sovereignty that tribes enjoy."

The measure drew strong support from the National Congress of American Indians (NCAI) and the National Indian Gaming Association (NIGA). In a letter to lawmakers this week, they said the NLRB's claim of authority "represents a complete disrespect" for tribal governments.

But the amendment came under fire during debate on the House floor. The normally bipartisan Congressional Native American Caucus, which Hayworth co-chairs, broke along party lines when pro-labor Democrats declared their opposition.

Rep. Dale Kildee (D-Michigan), the Democrat co-chair of the caucus, said the proposed fix would jeopardize talks between tribes and labor interests to resolve the dispute. "I am convinced that this temporary solution will interfere with those negotiations," he argued.

Other Democrats blasted Republicans for painting the debate in terms of sovereignty. They said it was an attempt to embarrass Democrats into voting "against" tribes in an election year.

"It's interesting to hear about sovereignty from the other side," said Rep. Patrick Kennedy (D-Rhode Island), who had talked about the labor issue with tribal leaders at the Democratic National Convention in July.

"Where were they when we tried to get sovereignty included in homeland security?" he asked. "When were they when we tried to get sovereignty into the welfare reform bill?"

In the end, 149 Republicans were joined by just 28 Democrats and 1 independent in support of Hayworth's amendment. But even more Republicans -- 61 of them -- joined 164 Democrats in opposition. The final tally was 178-225.

Tribes have been actively discussing the labor law decision since it was issued in late May. By a vote of 3-1, the NLRB overturned 30 years of precedent and said tribal enterprises, including casinos, are subject to federal labor laws.

At the time, the NLRB issued guidelines to determine when it would assert jurisdiction. Some of the factors include whether the tribal enterprise is of a commercial nature and whether it employs or affects non-Indians.

The federal courts have already been using a similar standard when confronted with tribal labor disputes. In recent decisions, the 9th Circuit and the 10th Circuit have said tribes are exempt from labor laws only in "intramural" matters, such as law enforcement.

A casino, on the other hand, would be considered a commercial enterprise, clearing the way for employees to organize unions at gaming establishments throughout Indian Country.

Relevant Documents:
NCAI-NIGA Letter of Support | Text of Hayworth Amendment | NCAI Resolution on Labor | Roll Call on Hayworth Amendment

National Labor Review Board Decisions:
San Manuel Indian Bingo and Casino | Yukon Kuskokwim Health Corporation

Federal Court Decisions:
Snyder v. Navajo Nation (June 10, 2004) | NAT'L LABOR RELATIONS BD v. SAN JUAN PUEBLO (10th Circuit January 11, 2002) | NAT'L LABOR RELATIONS BD. v. CHAPA DE INDIAN HEALTH PROGRAM, INC (9th Ciruit January 16, 2003)