Steadily come the Unions

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Labor unions, except where infected by corruption or organized crime, stand
as symbols and practice of a more fair social contract for the American
worker. Large numbers of American Indian workers belong to unions,
particularly in the building and construction trades.

Thus it seems incongruous for tribal nations to reject so forcefully the
imposition of union organizing within their enterprises and upon their
territories. It bears emphasis: this is not a question of tribes being
anti-union, or even more pertinently, anti-worker. In principle, it is a
question of tribal sovereignty. In practice, it is a question of protecting
self-governance, tribal services and the smooth management of community
institutions and programs.

Reversing 30 years of respect for the tribal sovereignty bases of American
Indian nations, the National Labor Relations Board, in a 3 - 1 decision May
28, signaled "a new approach" to "considering jurisdiction over Indian
owned and operated enterprises." It cited the National Labor Relations Act
for its jurisdiction. The ruling consciously ends a longstanding precedent.
Previous NLRB rulings in jurisdictional matters had respected the tribal
jurisdiction of reservation-based businesses. The board also stated that
jurisdictional issues will now be approached on a case-by-case basis, in
which NLRB will "examine the specific facts in each case to determine
whether the assertion of jurisdiction over Indian tribes will effectuate
the purposes of the [National Labor Relations] Act." The document, called a
"Decision and Order," was signed by the majority opinion of Chairman Robert
J. Battista and board members Wilma B. Liebman and Dennis P. Walsh.

The case arose when the San Manuel Band of Serrano Mission Indians in
California allegedly prevented one union, the Hotel Employees & Restaurant
Employees International Union, from organizing at its enterprises. In its
decision, the labor board stated: "Running a commercial business is not an
expression of sovereignty in the same way that running a tribal court
system is. The operation of a casino - which employs significant numbers of
non-Indians and that caters to a non-Indian clientele - can hardly be
described as vital to the tribes' ability to govern themselves."

This is a troublesome and potentially far-reaching ruling by the National
Labor Relations Board. We believe it strikes at the seat of American Indian
power and expresses disdain for tribal governments throughout Indian
country. It is an intense issue for all tribes, and will impact
particularly tribes that run enterprises, including those that participate
in the $16 billion annual gaming and resort industry. Most importantly, the
ruling arbitrarily and unilaterally imposes an external governor over
tribal governments.

At this stage of tribal economic development, most tribal casino
operations, as structured under the Indian Gaming Regulatory Act (IGRA),
provide the bulk of funds for tribal operations of all types, including
government, health, education, human services and law enforcement. With
hundreds of thousands of employees at Indian casinos and resorts across the
country eligible to join unions, the operations of whole tribes can be
jeopardized. Unions can organize all employees, who can declare themselves
on strike. Strikes can paralyze and even cripple enterprises. This is
always troublesome for any business but always indicative of the tension
between management (or ownership) and labor. For Indian nations, dependent
on their only now burgeoning enterprises to run most tribal programs in
lieu of taxes, the prospect of incorporating such a potentially crippling
element as a union (or unions) is most threatening. Any and all tribal
leadership is forced to confront such a determination as malignant.

As Indian Country Today correspondent Tom Wanamaker writes: "Non-Indian
governments generally rely on property and income taxes to finance
government services. Such revenue streams, however, are not available to
tribal governments, which instead depend largely upon commercial
enterprises for revenue." NLRB member Peter C. Schaumber dissented from the
majority decision. He argued in a long response that "such dependence upon
business revenue makes the operation of tribally-owned commercial
enterprises an essential function of government.

"Operation of the casino clearly furthers the repeatedly expressed
Congressional objective of encouraging tribal self-sufficiency and economic
development, which can only occur through commercial activity," Schaumber
reiterated.

We hope, as expected, that the San Manuel Band will vigorously challenge
the NLRB ruling. Other national observers, including Mark Van Norman of the
National Indian Gaming Association, are coming forth. Van Norman called the
ruling "a significant potential threat to tribal sovereignty and
independence." We encourage any and all tribes whose legal experts have
researched this issue in depth, to share and assist with their knowledge.

A great supportive argument is that many tribes can easily claim these
days, the opportunities and packages now offered to "team members" at
tribal enterprises, including casinos, are generally better than other
local businesses and in some cases, far superior. This is a powerful
approach that can go a long ways in cementing the tribal defense on the
case of unions: they are not needed. While this may not be universally true
(horror stories of employee mistreatment do exist), again, it is generally
true that most Native-run enterprises are going out of their way to secure
the hearts and minds of their employees. Evidenced in the early tribal
adoption of the concept of "team-players," which is geared at community
building with their human resource bases. Connecticut tribal officials made
that claim loud and clear. They are "employers of choice" in their region,
with an excellent benefits package and high average salaries. San Manuel"s
chairman, Deron Marquez asserts, "Our employees are paid wages much above
standard rates in our region."

Expectedly, Connecticut Attorney General Richard Blumenthal quickly gloated
that the ruling was a "legal earthquake that shatters the complete immunity
from labor law now enjoyed by most Indian casinos." Blumenthal made sure
Connecticut intervened in the case. Of course, numerous tribes, including
the Mohegans and Mashantucket Pequots, filed motions opposing the labor
board ruling. The Democrat Blumenthal is a rising star in the ranks of
state politicians who are intent on making tracks on the backs of Indian
rights to tribal sovereignty. On this issue of unions busting into tribal
operations, he stands in the mainstream of Democratic politicians who
nearly always back union rights. Interestingly, this is a huge issue
through which the Republicans could score points with tribes. In
California, the labor movement has seriously confronted the tribes on this
issue.

The controversial ruling by the NLRB may possibly resurrect some version of
H.R. 103, which lacked for sponsors when introduced in January 2001 by Rep.
J. D. Hayworth, R-Ariz. Hayworth then proposed the "Tribal Sovereignty
Protection Act," (H.R. 103) to counter "unionization agreements" mandated
by the states of California and New York for inclusion in gaming compacts.
That bill, designed as an amendment to the 1988 Indian Gaming Regulatory
Act, would have prohibited "negotiated Tribal-State compacts from
including, or being conditioned upon, any provision relating to labor terms
or conditions for employees of tribally owned businesses located on Indian
lands," according to the House of Representatives Web site. It had mortal
flaws then but has new legs as the Democrats' resolve on destroying tribal
sovereignty caves in before the unions.

Strategies will suggest themselves. As always, the right of tribes to
decide for themselves whether a union (or any other external organization)
is advisable or not within their specific context is the primary issue.