There is nothing like strategic intelligence. The Democrats showed it at
their convention in Boston when U.S. Rep. Patrick Kennedy, D-R.I.,
addressed the Native American Caucus on the question of unions organizing
rights in Indian country.
Kennedy correctly identified the issue of unions forcing themselves inside
Indian nation enterprises as a significant concern held by American
Indians. He also suggested that it might be a potential "wedge" issue that
Republicans might use against the Democrats in Indian country during the
As Indian Country Today reported last week (Vol. 24, Iss. 8), Kennedy, the
third and youngest son of Senator Edward Kennedy, told the Native American
Caucus at the Democratic National Convention July 28 that he would support
on-reservation tribal sovereignty against the jurisdiction of the National
Labor Relations Board in a bill he would try to push through in this
session of Congress.
The union issue took on added weight because of a case involving the San
Manuel Band of Mission Indians in California, sued by the Hotel Employees
and Restaurant Employees Union, which is vigorously trying to organize
tribal casino workers. In June, the NLRB in a 2 to 1 vote overturned 30
years of precedent and asserted its authority to hear labor cases
originating on sovereign tribal land. This assertion of jurisdiction over
Indian tribal enterprises augured poorly for tribes engaged in major
operations that could be crippled by union positions and certainly by
strikes. The major tribal argument against the forcing of unions is that
tribal gaming enterprises are inseparable from the tribal governments,
which by law must support vital programs on reservations, including
education, health, human services, law enforcement, roads, water and sewer
projects and tribal courts. Such as system cannot tolerate any systems
paralysis, which a union slowdown or strike could effect.
Kennedy's legislation would end the NLRB's assertion of jurisdiction over
tribal enterprises on the reservation, but it would accept the board's role
as arbiter of labor-employee disputes and union organizing on
off-reservation tribally-owned businesses. Kennedy's legislative compromise
is intended to gain labor movement agreement, which, it must be stated, is
not yet assured.
Kennedy took the warm reception to his proposal - cheered by many in the
250-strong Native American Caucus - as a political opportunity to accuse
the Republicans of playing with the issue. A proposal by U.S. Rep. J.D.
Hayworth, R-Ariz., that would attempt to assert sovereignty both on and off
reservation, Kennedy warned, would fail. In an interview with Indian
Country Today, he characterized the Republicans support for a broad
assertion of tribal sovereignty against the NLRB as a ploy designed to
create a wedge issue that would upset the Democratic courtship of American
Indian voters. "If we overextend the sovereignty area," he emphasized, "we
jeopardize the case to be made for the rightful place of Native American
Kennedy may well be right. We might hope for the decision to be reversed on
appeal, but the federal courts are not a safe basket for fragile eggs. Then
again, as suggested by Indian Country Today guest columnists Steven Paul
McSloy and Ned H. Bassen, a direct request to Congress to revise the
National Labor Relations Act's provision for NLRB jurisdiction so as to
expressly exempt Indian tribes from the Act's coverage could have support
While we don't agree with the analysis that J.D. Hayworth is "playing a
ploy" with his American Indian friends (we respect Rep. Hayworth's
honorable intentions on this issue), we do share concern expressed by
Kennedy's assessment that overreach in this case may end up in failure.
Accommodation with laboring family needs in America is not a bad thing and
neither is taking a good approach to employee or team-member relations and
development. It is also important to draw cleanly and clearly the lines of
jurisdiction. American Indian governments must retain their inherent
sovereign rights to regulate and enforce labor standards within Indian
country. However, by overreaching across defined borders the tribes invite
the converse, whereby outside governments seek to apply their jurisdictions
in Indian country. This very construct is what was wrong with the NLRB
ruling in the first place.
Certainly a reasonable congressional compromise - as per the Kennedy
proposal - might avoid serious hostility between tribal governments and
organized labor. For these reasons and others, it is a good idea,
well-worth pursuing and fully studying. We look forward to examining all
Congressional proposals, from both sides of the aisle, with the hope that
the NLRB's mistake can be corrected. The devil as always is in the details.
Protection of tribal freedom and jurisdiction is paramount.