On signing the NLRA into law, FDR said:
“This Act defines, as a part of our substantive law, the right of self-organization
of employees in industry for the purpose of collective bargaining, and
provides methods by which the Government can safeguard that legal right.”
Recognizing that State, local and federal government employers could be paralyzed by labor strikes, Congress wisely and appropriately specifically excluded these governments from the definition of “employer” in the statute and thereby from the requirements the Act imposed on private sector employers.
It is also plain that in 1935, after decades of failed federal policies aimed at breaking up the tribal land base, assimilating Indian people, and hoping tribes would wither and die, Congress probably did not view tribal governments as employers as it did State, local and federal employers. Hence no specific mention --- either a specific exclusion or a specific inclusion --- for tribal government employers is found in the NLRA.
For seven decades after enactment, the National Labor Relations Board (NLRB) held the statute inapplicable to Indian tribes. Then in 2004, the NLRB did an abrupt about face and held the Act applicable to the San Manuel Indian Bingo and Casino. Seizing on the fact that the Act did not expressly list tribal governments among excluded governmental employers, the NLRB reversed 70 years of settled interpretation and imposed the Act on tribal government employers.
Why the Board picked on tribes and not on, say, the Territories and Insular Areas or the District of Columbia government --- which likewise are not expressly excluded from the definition of “employer” is anyone’s guess. The Board’s decision is inconsistent with congressional intent and the plain structure of the NLRA itself. In a stroke of the pen, tribal governments became the only governmental employers to be bound by the NLRA. What ever happened to fair play and honest dealings?
Indian tribal governments provide a huge array of services and programs to their members as well as to their surrounding communities. Tribal police and fire departments, emergency responders, schools and hospitals all play crucial roles in the safety, health and welfare of tribal communities. Subjecting them to the NLRA does not fit with the governmental nature of Indian tribes. Tribal governments are no more involved in enterprises than are state and local units of government who run convention centers, golf courses, port authorities, lottery games, hotel resorts, and liquor stores. No government can afford to have its enterprise revenue disrupted by labor strife.
That is why the Tribal Labor Sovereignty Act has gained such momentum in both chambers of the current Congress. The House bill, H.R.511 (Todd Rokita, R-IN), is a bi-partisan bill with nearly five dozen supporters, including several Democrats like Betty McCollum, D-MN. H.R.511 passed the House in November 2015 by a 249-177 margin and is pending in the Senate.
The Senate version, S. 248 (Jerry Moran, R-KS) is pending in the Senate and could be added to the 2017 National Defense Authorization Act when Congress returns from the Memorial Day Recess last week.
These are modest bills in terms of language, less than two pages. But their importance is profound: they would expressly exclude tribal governments from the definition of “employer” in the NLRA. Parity: no more, no less.
I know about parity and bi-partisanship: as former Chairman of the Senate Committee on Indian Affairs, I worked with my dear friend and Vice Chairman Dan Inouye (D-HI) on issues of importance to Indian Country. Never once did partisanship come between us and we worked with each other, and with our colleagues on both sides of the aisle to make right the litany of wrongs visited on Indian people by the federal government.
Because Indian self-determination is the most successful federal policy in history, we sought to ensure tribes – not the federal government --- have maximum authority to design and manage their own law enforcement, health, forestry, timber, energy, economic development, and other programs.
Tribal sovereignty isn’t just a slogan, and it isn’t just limited to programs and services. More than anything else, it means respecting tribal authority and decision-making when it comes to administration of tribal governmental operations.
My views on this legislation don’t come from any ill will to labor unions. In fact as most people know, I am a life-long member of the Teamsters and got through college driving a truck.
H.R. 511 and S. 248 are supported by Indian tribes across the country, all of the major Indian tribal organizations, including the National Congress of American Indians, the oldest, largest and most representative Indian organization in the country, and the U.S. Chamber of Commerce’s Native American Enterprise Initiative.
It is time for Congress to do what it should have done in 2004, and that is to provide corrective guidance to the NLRB and provide parity to tribal governments. Congress should pass, and the President should sign, the Tribal Labor Sovereignty Act.
Ben Nighthorse Campbell is the former U.S. Senator from Colorado and served as the Republican Chairman of the Senate Committee on Indian Affairs from 1997 through 2004.