In a recent 3 - 1 vote (May 28), the National Labor Relations Board (NLRB)
decided it has the authority to assert jurisdiction in a labor dispute
involving a San Manuel Band of Mission Indians business enterprise located
on Indian reservation lands. In a document referred to as a "Decision and
Order," the NLRB wrote: "We establish a new standard for determining the
circumstances under which the board will assert jurisdiction over Indian
owned and operated enterprises." Signing the document was NLRB Chairman
Robert J. Battista, and board members Wilma B. Liebman and Dennis P. Walsh.
According to an Indian Country Today article by Tom Wanamaker (Vol. 24,
Iss. 1) the NLRB is taking the position that "jurisdictional issues will
now be approached on a case by case basis, in which [the] 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 NLRB decision is deeply troubling because it presumes that American
Indian governments, without having given their consent, are rightfully
subject to the ideas and judgments of the United States and of agents of
the United States. Dispelling this wrong-headed idea is exceedingly
By virtue of having existed in this hemisphere for thousands and thousands
of years, each of our respective indigenous nations and peoples has a
political identity and heritage that is distinct from that of the United
States. Obviously, the existence of our respective nations and peoples long
predates the existence of the United States, or of any federal agency such
as the NLRB. Given that this is the case, what is the specific basis upon
which NLRB members Battista, Liebman, and Walsh presume that a Native
nation's business enterprise, located within its own territorial and
political boundaries, is rightfully subject to the ideas and judgments of
The NLRB says that it has jurisdiction over businesses operated by an
Indian nation on an Indian reservation because "Indian tribes participate
in the national economy," because, "they employ substantial numbers of
non-Indians," and because their businesses "affect interstate commerce in a
specific way." The NLRB's mention of "interstate commerce" very
specifically refers to commerce among the several states of the Union. The
term is not applicable to Native nations because they are not member states
of the United States.
As Chief Justice Marshall said in Worcester v. Georgia (1832), "The Indian
nations had always been considered as distinct, independent political
communities retaining their original natural rights, as the undisputed
possessors of the soil." He also said that a weaker state, such as an
Indian nation, may "place itself under the protection of one more powerful
[such as the United States], without stripping itself of the rights of
government, and ceasing to be a state."
The respective states of the federal union entered into a political
compact, known as the Constitution of the United States, which speaks to
the issue of "interstate commerce," or commerce between and among those
states. Because Native nations were not and are not parties to the
Constitution, how is it reasonable to say that an increase of commerce
"with" Native nations, somehow subjects what Marshall termed "distinct,
independent political communities" to the jurisdiction of the NLRB, without
their consent? If the U.S. wants Indian nations to abide by NLRB decisions
and jurisdiction, it would have to negotiate a "compact" with those nations
for that specific purpose.
The NLRB's claim that when an Indian nation runs a commercial enterprise
its "special attributes" of sovereignty are not implicated, is a
misconception of Indian sovereignty. This claim, and NLRB's assertion that
"running a commercial enterprise is not an expression of sovereignty in the
same way that running a tribal court system is," entirely misses the point
that the term "sovereignty" refers to the original and rightful free and
independent political status of an Indian nation or people.
According to the political philosopher Francis Lieber, "A sovereign nation
is, because sovereign, free and independent." Thus, the NLRB's discussion
of whether or not a business enterprise of a sovereign Indian nation is "an
expression of sovereignty" is entirely irrelevant. A business enterprise
operated by an Indian nation on Indian land is operated within the
rightfully free and independent political context and territory of that
nation. Because "sovereign" means "originally and rightfully free and
independent," no Native nation is properly subject to the authority and
jurisdiction of the NLRB, unless that nation has freely and expressly
consented to NLRB authority and jurisdiction.
The paternalistic tone of the NLRB's language in its "Decision and Order"
arrogantly presumes the authority to make a decision, and then to "order"
(or command) a sovereign Indian nation to abide by that "decision." The
NLRB fails to acknowledge that the sovereign Indian nation in question
never consented to be subject to the authority and jurisdiction of the
NLRB. And the NLRB presumes the right to decide for Indian nations and
peoples whether or not the "attributes" of the sovereignty of an Indian
nation are "implicated" when that nation takes specific actions to
strengthen its economy.
An analogy comes to mind. When Cristobal Colon first stepped ashore on
Guanahani Island, the ancestral homeland of the Arawak nation, he
immediately planted royal and Catholic Church standards in the sandy soil.
The word "standards" is a double-entendre, one meaning being, "flags" or
"banners," and the other meaning being the "principles upon which judgments
Erecting these banners was Colon's way of announcing a "Decision and Order"
that henceforth the Arawak people were subject to the ideas and judgments
of the monarchs of Spain and of the Catholic Church. Never mind that the
Arawak people had never freely consented to be subject to the standards of
Spain and of Christendom. The attitude of the National Labor Relations
Board in its recent decision is exactly analogous to Cristobal Colon's
presumption that indigenous peoples were rightfully subject to the ideas
and judgments of Spain and of Christendom.
However, "justice" was behind Colon's actions. In the book "Columbus: For
Gold, God, and Glory" (1991, p. 161), John Cyson explains how Colon erected
a gallows as a symbol of "justice." The gallows had 13 nooses to hang
Indians in the number corresponding to Jesus and the 12 apostles. Indians
who refused to conform to the ideas, judgments, and commands of the Spanish
conquistadors were "brought to justice" and hung. Does the NLRB claim its
"Decision and Order" is based on "justice?"
It's an affront to all American Indian governments and peoples that the
NLRB is attempting to arrogate unto itself "jurisdiction over Indian
tribes" or nations, while claiming that such a wrongful and baseless
assertion of authority will fulfill "the purposes of the [National Labor
Relations] Act." Every one of the original nations of this hemisphere has
an inherent right to an economy. The exercise of that inherent right does
not rightfully subject our nations to the ideas and judgments of the NLRB.
After all, our respective Native nations have been in this hemisphere
thousands of years longer than federal agencies such as the NLRB.
In conclusion, American Indian nations ought to exercise their own
sovereign power by devising their own codes and regulations regarding labor
relations in Indian run enterprises on Indian land.
Steven Newcomb is the Indigenous Law Research Coordinator at Kumeyaay
Community College, co-founder and co-director of the Indigenous Law
Institute, and a columnist for Indian Country Today.