I have represented the Mashantucket Pequot Tribal Nation for 15 years, and cannot remember an issue that has generated more controversy than the labor issues facing the tribe today. I have heard completely opposite views as to how the tribe should respond. In each case, the opposing views were offered with equal vigor and conviction, and each claimed the moral high ground. Those not familiar with federal Indian law and policy seem agitated, confused and unable to comprehend the basis of the controversy - tribal sovereignty.
In January, the controversy took center stage in a National Labor Relations Board hearing room in Hartford, Conn. The contentious hearing's focus was the tribe's objections to the way the election was conducted, but tribal sovereignty was ever-present throughout. This conflict is unnecessary since the union could have petitioned for representation under the Tribal Labor Relations Law, not its federal counterpart. That would have been the less contentious path.
In the Hartford proceedings, the board and the union said they ''respect'' tribal sovereignty. What their actions said was that while they respect tribal sovereignty in concept, they cannot tolerate the exercise of that sovereignty.
I couldn't help but contrast what I heard with the real words of presidential executive orders, congressional legislation and court decisions that support tribal self-determination and a commitment to deal with tribes on a ''government-to-government'' basis.
Those words are being ignored with devastating effects by the blind and blanket imposition of the National Labor Relations Act on Indian tribes and their gaming enterprises.
Some in Indian country have counseled against pursuing this challenge. They fear too much could be lost.
Yet there is no good choice for tribes. The imposition of the NLRA is unlike that of any other statute that is silent as to Indian tribes, because it inserts a third party into tribal employment without any acknowledgement of the profound impact that it has on tribal laws, institutions and structures. Does it mean that the tribe's labor relations law is void? How about the tribe's right to work law, the tribal employee review code, the tribal civil rights law or the tribal gaming law?
As we go through the process governing the representation petition under the NLRA, one thing is clear: there continue to be repeated, substantial intrusions and eviscerations of tribal sovereignty starting with the initial petition hearing, continuing with the conduct of an NLRB election on the tribe's reservation and, most recently, the imposition and enforcement of subpoenas against tribal entities to obtain tribal government documents.
The prospect of continued destruction of tribal sovereignty is certain. If the election is certified, the tribe could not sit down and bargain under the NLRA without substantial detrimental impacts on its laws and legal structures.
Through this process, what is most concerning is the apparent and complete misunderstanding by federal agencies and some federal courts of tribal sovereignty and how it is exercised on reservations across this country. Each tribe is different and the impact on one may be very different than that felt by other tribes. As to the Pequot tribe, it has developed and invested in a sophisticated, fair and effective court system that has been enforcing tribal laws since its creation 16 years ago. No one who has truly looked at the tribal court and read its opinions or observed it in action could seriously argue that it is not fair and impartial in its dispensing of justice. Even the union has acknowledged this in its filings. The tribe has enacted laws governing all aspects of activity on the reservation including labor and employment, and the tribal court has heard countless cases concerning tribal employment at the gaming enterprise as well as at other entities. Of course, this is exactly what Congress and every president since Nixon has encouraged tribes to do - be self-governing and self-sufficient. In fact, the federal legislation addressing the real issue underlying all of this - tribal gaming - was enacted with the specific purpose of encouraging tribal economic self-sufficiency and building strong tribal governments.
The Pequot tribe has taken that route and built a strong tribal government. The federal response has been to ignore the congressional and executive dictates that require a government-to-government relationship and true respect for the exercise, not just the concept, of tribal sovereignty.
In his Tuscarora dissent, Supreme Court Justice Hugo Black chastised the majority: ''Great nations, like great men, should keep their word.'' History continues to repeat itself when it comes to tribal sovereignty.
Betsy Conway, in-house counsel for the Mashantucket Pequot Tribal Nation, was instrumental in the formation of the Indian Law Committee of the Connecticut Bar Association.