Republicans stir drama by adding controversial Tribal Labor Sovereignty Act to unrelated bill

Thursday, January 11, 2018  

A controversial bill to exempt tribes from federal labor law has been revived on Capitol Hill, sparking divisions between Republicans and Democrats and putting other Indian legislation in doubt.

Without much advance notice, Republicans added the text of H.R. 986, the Tribal Labor Sovereignty Act, to an otherwise non-controversial bill that would help tribes in Arizona and New Mexico with water and economic development issues.

As a result, Democrats who would have otherwise voted for S.140 abandoned the measure in droves on Wednesday.

"Unfortunately, instead of quickly passing these bills and suspensions and sending them to the president to be signed into law, House Republican leadership has decided to take those two bills hostage and combine them with a highly divisive bill that is likely not going anywhere," Rep. Raúl Grijalva (D-Arizona), the top Democrat on the House Committee on Natural Resources, said during debate on the floor of the House.

"This political stunt seems doomed to fail," Grijalva added. "The only thing it will accomplish is wasting everyone's time."

In the end, only 23 Democrats supported the bill, according to the roll call. But since Republicans hold the overwhelming majority of seats in the chamber, they were able to pass S.140 with a total of 239 votes.

"Quite frankly," said Rep. Kristi Noem (R-South Dakota), a co-sponsor of H.R.986, "I believe that subjecting Native American tribes to National Labor Relations Board rules is yet another sign that some still want the federal government to interfere with tribal decision-making."

As Grijalva noted, S.140 is indeed non-controversial, at least as it was originally written. The Senate passed the bill by unanimous consent in May, meaning no one objected.

The bill, which ensures the White Mountain Apache Tribe can move forward with a critical drinking water project in Arizona, seemed to be moving forward without issue in the House. A November 2 hearing indicated it was on track to passage and, eventually, to President Donald Trump for his signature.

“The tribe’s current water sources and antiquated infrastructure have been, and continue to be, grossly inadequate to meet the current demands and needs of our reservation communities,” Vice Chairman Kasey Velasquez said in testimony to the House Subcommittee on Water, Power and Oceans at the time.

But Republican leaders changed course after returning to work this month. Instead of allowing S.140 to move forward as introduced, the House Committee on Rules added two new sections to the bill at a meeting on Tuesday afternoon.

Section 2 was not a huge issue. It merely includes the text of S.249, a bill which clarifies that Ohkay Owingeh and the Pueblo of Santa Clara can lease their lands in northern New Mexico for up 99 years for economic development and other purposes.

The Senate passed S.249 by unanimous consent on May 8, the same day as S.140. Similar bills have been enacted for other tribes so combining the measures didn't seem like much of a stretch.

"S.249 would address the loophole in the 1992 amendment and enable us to enter into long-term leases on our commercially valuable lands," Santa Clara Governor J. Michael Chavarria told the House Subcommittee on Indian, Insular, and Alaska Native Affairs last June.

Section 3, in contrast, is H.R.986, the Tribal Labor Sovereignty Act. Tribes and their supporters say the bill merely treats tribes in the same manner as state and local governments when it comes to unions and federal labor laws.

"Tribes are governments and should be treated as such," said Rep. Tom Cole (R-Oklahoma), a citizen of the Chickasaw Nation and one of only two Native Americans in Congress. "The intent of the law was and is clear: Tribal governments supervise the employees within their governments and enterprises, not the federal government."

But Democrats believe the measure is unfair because it treats employees who work in Indian Country differently.

"American citizens, including Native American citizens of our country, don't lose their rights as workers because of the ownership of the organization and company that they happen to be employed by," said Rep. Jared Polis (D-Colorado).

Republicans certainly have enough votes to advance the Tribal Labor Sovereignty Act on its own -- a prior version cleared the House by wide margins in November 2015. Their efforts this week seemed intent on embarrassing Democrats instead.

"Many of my colleagues on the other side of the aisle claim that they, too, support tribal self-governance, but their efforts today to derail this important legislation paint a starkly different picture," Rep. Doug LaMalfa (R-California), the chairman of the House Subcommittee on Indian, Insular and Alaska Native Affairs, said in a press release on Wednesday that blasted Democrats as "Flip Flops."

But Democrats aren't the only ones being dealt a setback. S.140, the White Mountain water bill, has been championed by Sen. Jeff Flake (R-Arizona) and Sen. John McCain (R-Arizona), both of whom clashed with President Trump and fellow Republicans throughout 2017.

Since the House modified S.140, it has to be sent back to the Senate for consideration again. That chamber has never been able to clear the Tribal Labor Sovereignty Act on its own so the bill's future is in doubt for the remainder of the 115th Congress.

Inaction on S.140 would deprive Flake of a key legislative victory before he leaves the Senate later this year. He has decried the type of partisanship that seemed to be on display this week.

“We must never regard as normal the regular and casual undermining of our democratic norms and ideals,” Flake said when he announced he would not seek re-election. “We must never meekly accept the daily sundering of our country – the personal attacks, the threats against principles, freedoms, and institutions; the flagrant disregard for truth or decency, the reckless provocations, most often for the pettiest and most personal reasons, reasons having nothing whatsoever to do with the fortunes of the people that we have all been elected to serve.”

For decades, tribes didn't have to worry about the National Labor Relations Act. But in 2004, the National Labor Relations Board said tribal businesses -- especially casinos -- could be subjected to the law because they employ non-Indians and cater to non-Indians.

Since then, the courts have consistently upheld the NLRB's approach so tribes have been asking Congress for parity, noting that states and local governments are able to adopt and follow their own labor laws.

"So the tribal leaders are saying: We should be sovereign. We should be allowed to make these sorts of decisions ourself without the federal government coming in and putting the bureaucracy there," said Rep. Steve Pearce (R-New Mexico), a co-sponsor of H.R.986 who is leaving Congress to run for governor of New Mexico.

From the Indianz.Com Archive:
Tribal labor law rider killed by wide margin in House (June 27, 2005)
NCAI between 'rock and a hard place' on labor rider (September 13, 2004)
Tribal labor amendment fails in House vote (September 10, 2004)
Federal labor board expands jurisdiction over tribes (June 4, 2004)

President Trump signs second Indian bill into law to help tribes in Oregon (January 9, 2018)
Tribal jobs program becomes permanent with President Trump's signature (December 19, 2017)
Cronkite News: White Mountain Apache Tribe asks Congress for help with water (November 3, 2017)
House subcommittee takes up water bill for White Mountain Apache Tribe (October 30, 2017)
Senate approves water bill for one tribe and land bill for two others (May 9, 2017)
Senate Committee on Indian Affairs advances nine bills at first meeting (February 9, 2017)
Senate Committee on Indian Affairs moves quickly on bipartisan bills (February 6, 2017)