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House panel debates controversial tribal labor measure
Friday, July 21, 2006

An unprecedented ruling that subjected tribes to federal labor law came under fire on Thursday but lawmakers remain divided along party lines on the touchy issue.

Two years ago, the National Labor Relations Board overturned 30 years of precedent and said it would apply federal labor law to tribal-owned businesses in certain situations. The ruling said it would take into account the nature of the tribal business and the impact on non-Indians.

The San Manuel Band of Mission Indians, the tribe in the case, has since taken the dispute to the D.C. Circuit Court of Appeals. Backed by an overwhelming number of tribes and tribal organizations, the tribe is in the process of filing its final brief.

In the meantime, Indian interests are lobbying Capitol Hill to intervene. Rep. J.D. Hayworth (R-Arizona), the co-chairman of the Congressional Native American Caucus, introduced the Tribal Labor Relations Restoration Act to ensure that tribal government enterprises remain out of the reach of federal labor law.

Testifying in support of his measure yesterday, Hayworth said the NLRB ruling "discounts both the honor and the integrity of Native people. It sends the message that the United States of America does not trust a sovereign tribal government to treat its employees fairly."

Rep. Sam Johnson (R-Texas), the chairman of the House Subcommittee on Employer-Employee Relations agreed. He said the NLRB has "set itself up as a judge of not just federal labor policy, but also of federal Indian policy. It raises serious questions as to whether the board in this instance is over-reaching by injecting itself into federal policymaking outside the scope of its responsibilities."

Hayworth and other supporters note that state and local governments are exempt from the National Labor Relations Act. The bill treats tribal governments in the same manner.

But Democrats who would normally support equal treatment of tribal governments are balking because their longtime political allies are the labor unions that would be directly affected by the bill. Of the 10 co-sponsors of the measure, only one is a Democrat.

Rep. Robert E. Andrews (D-New Jersey), the top Democrat on the subcommittee, said he supports tribal sovereignty but also said employees have a right to organize into unions. He questioned whether Congress should get involved before the D.C. Circuit issues a ruling.

Rep. Dale Kildee (D-Michigan), the other co-chair of the Native American Caucus, echoed those concerns. Any solution to the dispute must be crafted in a way that "honors tribal sovereignty and respects worker rights," he said.

Indian Country is united on the issue. The National Congress of American Indians, the National Indian Gaming Association and more than a dozen tribes are taking part in the case.

Joe Garcia, the president of NCAI, testified yesterday. He said it should be up to tribes, not a federal agency, to determine the extent and influence of labor unions on their own lands.

"Many Indian tribes have exercised their sovereign authority to welcome labor unions and encourage union organization," said Garcia. "But that is a choice for Indian tribal governments –- not federal bureaucrats or labor leaders -- to make in a way that protects the functions of tribal government and the tribal members living on reservations."

Garcia pointed out that his tribe, Ohkay Owingeh of New Mexico, developed its own labor ordinances. In a case that the NLRB declined to take the to the U.S. Supreme Court, the 10th Circuit Court of Appeals upheld the tribe's right to make its own laws.

Despite the strong sentiments, tribes have had a tough time persuading Democrats to join the cause. For the past two years in a row, the House has rejected attempts to delay the effect of the NLRB ruling.

And four years ago, Democrats rallied against a Hayworth-sponsored measure that would have prevented forced unionism on reservations. "This bill is anti-labor, it's anti-worker," Rep. Nick Rahall (D-West Virginia) said at a House Resources Committee hearing in April 2002.

Hayworth's latest bill, through routed to another committee, must stand up to Rep. George Miller (D-California). He's the top Democrat on the Committee on Education and the Workforce who previously criticized tribes in California for balking at pro-labor union provisions in their gaming compacts.

Meanwhile, the D.C. Circuit Court is waiting on the San Manuel Band to file its final brief, due next month. A hearing is expected in the fall.

Hearing Video:
Subcommittee on Employer-Employee Relations - Hearing on H.R. 16, Tribal Labor Relations Restoration Act of 2005 (July 20, 2006)

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

San Manuel Band v NLRB:
Briefs, Decisions and Documents (Native American Rights Fund)

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
San Manuel Indian Bingo and Casino - http://www.sanmanuel.com