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Decision on unions upholds tribal self-government

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San Juan Pueblo won one for all of Indian country when a federal appeals court last week upheld the pueblo's authority to adopt a right-to-work law. It is a solid decision won for Indian sovereignty and the enlightened Pueblo deserves the appreciation of tribal governments everywhere.

While there is substantial consideration and participation in trade unions by individual American Indians, it is also true that Native nations are ever watchful of the potential consequences to their nations of accepting the demands of unions to force the unionization of tribal and associated workforces.

As an intricate and essential component of the Indian economic covenant within the United States, tribal enterprises pick up the tab for many vital tribal services. While federal government subsidies to American Indian families and communities have been severely reduced in the past decade, by and large, tribal enterprises have taken over funding many of their governmental services. The whole of a tribal workforce is arguably performing essential work, in that a share of the profits from tribal businesses funds and supports all manner of government services, including schools, senior citizens care, health clinics, emergency response teams and life-saving equipment, etc. Without this funding Indian communities' essential operations could be paralyzed if not discontinued altogether.

For this reason, primarily, Indian governments and enterprises cannot afford to consider the organization of unions that could lead to comprehensive strikes or other work stoppages that support essential tribal services. The potential is not only for a particular business or production plant to be shut down, but for whole communities of people to be held hostage in the delivery of their basic needs by a union force.

In the San Juan Pueblo case, the tribal council enacted a right-to-work ordinance in 1996 that gave tribal workers and workers at other enterprises on tribal lands the right not to join or financially support a union as a job requirement. As a result, the Western Council of Industrial Workers Local 1385 filed charges of unfair labor practices with the National Labor Relations Board (NLRB). The NLRB's General Counsel joined the union's cause and argued that the Pueblo lacked the authority (under the National Labor Relations Act) to deny the union's collection of compulsory dues.

The nearly unanimous (9-1) ruling by the 10th U.S. Circuit Court of Appeals in Denver, held that the Pueblo's right-to-work ordinance was "clearly an exercise of sovereign authority over economic transactions on the reservation." Pueblo Governor Wilfred Garcia characterized the decision as recognition of equivalent status between state governments and an American Indian government. The ruling is expected to have impact nationally as tribes engage labor unions moving to organize the varieties of workforces growing in Indian country.

The Court's written decision includes important language. Considering the legal interpretations and prosecutorial approaches recently implemented in Texas, the January 11th Pueblo ruling sets down clearly the reasoning behind the continuous respect for the legality of American Indian sovereignty in the United States.

The court early established the standing of the 5,200 member San Juan Pueblo and its tribal council as federally recognized and "vested with legislative authority over tribal lands." Then it cited the full text of the right-to-work ordinance passed by the council.

Reading from the decision:

"The burden falls on the NLRB and the Union, as plaintiffs attacking the exercise of sovereign tribal power."

"As noted in [the case of] Southland Royalty, '[a]mbiguities in federal law have been construed generously in order to comport with ... tribal notions of sovereignty and with the federal policy of encouraging tribal independence.'"

"Indian tribes are neither states, nor part of the federal government, nor subdivisions of either. Rather, they are sovereign political entities possessed of sovereign authority not derived from the United States, which they predate."

The court also cites Felix Cohen, on Worcester v. Georgia, (1832): "Indian tribes consistently have been recognized ... by the United States, as 'distinct, independent political communities qualified to exercise powers of self-government, not by virtue of any delegation of powers, but rather by reason of their original tribal sovereignty."

"In addition to broad authority over intramural matters such as membership, tribes retain sovereign authority to regulate economic activity within their own territory, see, e.g., Merrion v. Jicarilla Apache Tribe (1982)."

Further, the Court stated: "Indian tribes are not states. They have a status higher than that of states. They are subordinate and dependent nations possessed of all powers [except] to the extent that they have expressly been required to surrender them by the superior sovereign, the United States."

Some tribes or nations are comfortable with the definitions above, while others are not -- declaring a sovereignty and independence that refutes any intersection with U.S. citizenship and any "surrender" to any "superior sovereign." It is therefore highly advised that tribal leaders read this ruling from beginning to end. While the Tenth Circuit Court of Appeals generally upheld justice for Indians this round, there remains planted within Judge Murphy's dissenting opinion, arguments that would otherwise broadly extinguish the sovereign powers and authorities of American Indian governments.

However one conceives it, the doctrine of Indian tribal sovereignty, without and within U.S. federal law, is a primary common cause for Native peoples. Given an ability and duty to protect this first principle, which buttresses the foundations of gaming and other capital-generating enterprises, that are only now beginning to lift Indian economies, an important question germane to the issue of worker protection on tribal lands remains. What kinds of systems, what kind of societies need we build to ensure fair play, particularly among our communities and peoples to uphold the ethic of utmost honesty and transparent behavior in all business and governmental activities?

In this respect, a sincere appreciation goes to San Juan Pueblo for their resolute and successful defense of tribal sovereignty. Given its unique circumstances, the model of a workforce organized by unions is likely not the best for Indian country. Nevertheless, it behooves Indian leadership to mitigate against mistreatment or abuse of any working people. Where there is a sense of social covenant between the people and their government, as well as between senior management and the rank and file and other trade work crews they administer -- trust and honor will fuel efficiency. Things can prosper. But where the covenant breaks, and management sells out the working people recrimination, dishonesty and ultimately, conflict, will spell certain failure.

Sovereignty may only properly ride on the spirit and reality of clean government and good tribal relations based on fair, respectful treatment of the people.