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Tribal labor law rider killed by wide margin in House
Monday, June 27, 2005

A last-minute attempt to shield tribes from the effects of a controversial labor law decision was rejected by a wide margin on Friday.

Rep. J.D. Hayworth (R-Arizona), the Republican co-chair of the Congressional Native American Caucus, sponsored an appropriations rider aimed at imposing a one-year delay to a recent National Labor Relations Board decision. He called the ruling, which overturned 30 years of precedent, a "frontal assault" on tribal sovereignty.

"My colleagues, we would do well to heed the marketing advice: What happens in Vegas stays in Vegas," Hayworth said on the House floor. "What happens on tribal lands with their sovereignty should likewise be governed by the sovereign governments there. Sovereignty is not situational."

But Hayworth faced major opposition from some of the strongest defenders of tribal rights. Rep. Patrick Kennedy (D-Rhode Island), a co-founder of the bipartisan caucus, said the rider was an attempt to embarrass Democrats, who enjoy strong ties to labor unions.

"This process, instead of seeking a solution, only sought headlines. We had an opportunity to make real progress and address the concerns of these tribes," Kennedy charged, referring to efforts to bring tribes and unions together. "Instead of addressing this issue in a substantive manner in committee, we are once again addressing it in a political way on the floor of the House simply for political gain."

A number of other members, including Rep. Dale Kildee (D-Michigan), the co-chair of the caucus, spoke against the amendment, offered to the 2006 Labor/Health and Human Services/Education appropriations bill. In contrast, no one spoke in Hayworth's favor during debate on Friday afternoon.

In 2004, tribes and tribal organizations backed a similar measure that ultimately failed. But they stayed out of the battle this year, fearing the vote would be even worse than last year's.

The concerns were realized when the House voted 256 to 146 to defeat the rider. This was an even greater margin than last year's roll call of 225 to 178.

Furthermore, a number of Democrats who voted in favor of the amendment last year jumped ship on Friday. Only four Democrats -- including freshman Dan Boren of Oklahoma, whose district includes several tribes, and Stephanie Herseth of South Dakota, home to eight reservations -- voted with Hayworth, down from 28 in 2004.

Hayworth also lost the support of a handful of key Republicans, including Rep. Richard Pombo (R-California), the chairman of the House Resources Committee and a strong backer of sovereignty. According to the roll call, 31 members didn't vote.

At issue is a contentious NLRB decision from May 2004. Overruling precedent, the board concluded that tribal governments and their enterprises are subject to federal labor law.

The National Labor Relations Act doesn't mention tribes at all. But the NLRB, in the 3-1 decision, said tribes opened themselves to the law by employing non-Indians and affecting non-Indians.

"As tribal businesses prosper, they become significant employers of non-Indians and serious competitors with non-Indian owned businesses," the board stated. "When Indian tribes participate in the national economy in commercial enterprises, when they employ substantial numbers of non-Indians, and when their businesses cater to non-Indian clients and customers, the tribes affect interstate commerce in a significant way."

In response, Hayworth introduced a bill to outright exempts tribes from the law. H.R.16 has 11 co-sponsors although all but one are Republicans.

The bill was referred to the House Education and Workforce Committee, where it has not been granted a hearing. Kildee, who sits on the panel, said one could be scheduled in the future.

"During my 40 years of public service, I have established a strong record for defending the sovereign rights of Indian tribes. I have often led the fight to defeat legislative riders on appropriation bills because of my confidence in the regular procedures guiding us through the legislative process," he said. "I am committed to finding a permanent solution to this issue, but the appropriations process is not the way to solve this issue."

The appropriations bill debated later passed the chamber by a 250 to 151 vote on Friday. It still needs to be passed by the Senate.

The full text of the Hayworth rider reads as follows:
None of the funds made available in this Act may be used by the National Labor Relations Board to exert jurisdiction over any organization or enterprise pursuant to the standard adopted by the National Labor Relations Board in San Manuel Indian Bingo and Casino and Hotel Employees & Restaurant Employees International Union, AFL-CIO, CLC and Communication Workers of America, AFL-CIO, CLC, Party in Interest, and State of Connecticut, Intervenor, 341 NLRB No. 138 (May 28, 2004).

Floor Debate:
Tribal Labor Law Amendment (June 24, 2005)

Roll Call:
Hayworth of Arizona Amendment No. 14 (June 24, 2005)

Appropriations Bill:
Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Act (H.R.3010)

Labor Law Bill:
Tribal Labor Relations Restoration Act of 2005 (H.R.16)

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

Relevant Links:
National Labor Relations Board - http://www.nlrb.gov

Related Stories:
Fight looms on tribal labor amendment in House (6/27
Republicans sign onto tribal labor law exemption bill (06/13)
California tribe's workers to negotiate union contract (05/05)
Unions turn on each other in tribal sovereignty clash (05/04)
Labor union challenges tribe's Indian preference (12/07)
Federal labor board to hold hearing involving tribe (12/6)
NCAI between 'rock and a hard place' on labor rider (09/13)
Tribal labor amendment fails in House vote (9/13)
Rep. J.D. Hayworth: I told you so! On tribal labor (06/25)
California tribe ponders next move in labor case (6/23)
Court ruling adds to debate over tribal-labor relations (06/14)
Editorial: Unions should be allowed at casinos (6/10)
Labor board ruling draws sharp barbs from tribes (6/9)
Labor board's tribal ruling a surprise to many (6/8)
Board rules tribes subject to labor law (6/4)
Arbiter allows pro-union flyers by tribal employees (03/26)
Pro-union hearing blasts Calif. tribe for sovereignty (03/17)
N.M. tribe seals winning case on labor laws (12/09)
Settlement pending in tribal labor dispute (08/07)
Court denies tribal exemption from labor laws (01/17)
Tribal labor bill draws complaints (04/18)
Pueblo wins sovereignty case (1/14)

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