<DOC>
[109th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:28809.wais]
H.R. 16, TRIBAL LABOR RELATIONS RESTORATION ACT OF 2005
=======================================================================
HEARING
before the
SUBCOMMITTEE ON EMPLOYER-EMPLOYEE RELATIONS
of the
COMMITTEE ON EDUCATION
AND THE WORKFORCE
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
July 20, 2006
__________
Serial No. 109-48
__________
Printed for the use of the Committee on Education and the Workforce
Available via the World Wide Web: http://www.access.gpo.gov/congress/
house
or
Committee address: http://edworkforce.house.gov
______
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COMMITTEE ON EDUCATION AND THE WORKFORCE
HOWARD P. ``BUCK'' McKEON, California, Chairman
Thomas E. Petri, Wisconsin, Vice George Miller, California,
Chairman Ranking Minority Member
Michael N. Castle, Delaware Dale E. Kildee, Michigan
Sam Johnson, Texas Major R. Owens, New York
Mark E. Souder, Indiana Donald M. Payne, New Jersey
Charlie Norwood, Georgia Robert E. Andrews, New Jersey
Vernon J. Ehlers, Michigan Robert C. Scott, Virginia
Judy Biggert, Illinois Lynn C. Woolsey, California
Todd Russell Platts, Pennsylvania Ruben Hinojosa, Texas
Patrick J. Tiberi, Ohio Carolyn McCarthy, New York
Ric Keller, Florida John F. Tierney, Massachusetts
Tom Osborne, Nebraska Ron Kind, Wisconsin
Joe Wilson, South Carolina Dennis J. Kucinich, Ohio
Jon C. Porter, Nevada David Wu, Oregon
John Kline, Minnesota Rush D. Holt, New Jersey
Marilyn N. Musgrave, Colorado Susan A. Davis, California
Bob Inglis, South Carolina Betty McCollum, Minnesota
Cathy McMorris, Washington Danny K. Davis, Illinois
Kenny Marchant, Texas Raul M. Grijalva, Arizona
Tom Price, Georgia Chris Van Hollen, Maryland
Luis G. Fortuno, Puerto Rico Tim Ryan, Ohio
Bobby Jindal, Louisiana Timothy H. Bishop, New York
Charles W. Boustany, Jr., Louisiana [Vacancy]
Virginia Foxx, North Carolina
Thelma D. Drake, Virginia
John R. ``Randy'' Kuhl, Jr., New
York
[Vacancy]
Vic Klatt, Staff Director
Mark Zuckerman, Minority Staff Director, General Counsel
------
SUBCOMMITTEE ON EMPLOYER-EMPLOYEE RELATIONS
SAM JOHNSON, Texas, Chairman
John Kline, Minnesota, Vice Robert E. Andrews, New Jersey
Chairman Ranking Minority Member
Howard P. ``Buck'' McKeon, Dale E. Kildee, Michigan
California Donald M. Payne, New Jersey
Todd Russell Platts, Pennsylvania Carolyn McCarthy, New York
Patrick J. Tiberi, Ohio John F. Tierney, Massachusetts
Joe Wilson, South Carolina David Wu, Oregon
Marilyn N. Musgrave, Colorado Rush D. Holt, New Jersey
Kenny Marchant, Texas Betty McCollum, Minnesota
Bobby Jindal, Louisiana Raul M. Grijalva, Arizona
Charles W. Boustany, Jr., Loiusiana George Miller, California, ex
Virginia Foxx, North Carolina officio
[Vacancy]
C O N T E N T S
----------
Page
Hearing held on July 20, 2006.................................... 1
Statement of Members:
Hayworth, Hon. J.D., a Representative in Congress from the
State of Arizona........................................... 5
Prepared statement of.................................... 7
Letters of support for H.R. 16........................... 38
Johnson, Hon. Sam, Chairman, Subcommittee on Employer-
Employee Relations, Committee on Education and the
Workforce.................................................. 2
H.R. 16, the Tribal Labor Relations Restoration Act of
2005................................................... 1
Prepared statement of.................................... 3
Statement of Witnesses:
Garcia, Hon. Joe, president of the National Congress of
American Indians and governor of Ohkay Owingeh (San Juan
Pueblo).................................................... 25
Prepared statement of.................................... 27
Harvey, Philip L., associate professor of law and economics,
Rutgers School of Law...................................... 20
Prepared statement of.................................... 22
Johnson, Hon. Ronald, assistant secretary/treasurer of the
Prairie Island Indian Community............................ 15
Prepared statement of.................................... 17
Additional Submissions:
Marchand, Hon. Michael, chairman, Confederated Tribes of the
Colville Reservation, prepared statement................... 33
Bozsum, Bruce ``Two Dogs,'' chairman, Mohegan Tribal Council,
letter of support.......................................... 36
H.R. 16, TRIBAL LABOR RELATIONS RESTORATION ACT OF 2005
----------
Thursday, July 20, 2006
U.S. House of Representatives
Subcommittee on Employer-Employee Relations
Committee on Education and the Workforce
Washington, DC
----------
The subcommittee met, pursuant to call, at 10:33 a.m., in
room 2175, Rayburn House Office Building, Hon. Sam Johnson
[chairman of the subcommittee] presiding.
Present: Representatives Johnson, Kline, Andrews, Kildee,
Holt, McCollum, and Grijalva.
Staff present: Byron Campbell, Legislative Assistant; Kevin
Frank, Coalitions Director for Workforce Policy; Rob Gregg,
Legislative Assistant; Jessica Gross, Press Assistant; Richard
Hoar, Professional Staff Member; Jim Paretti, Workforce Policy
Counsel; Deborah L. Emerson Samantar, Committee Clerk/Intern
Coordinator; Loren Sweatt, Professional Staff Member; Jody
Calemine, Counsel, Employer and Employee Relations; Tylease
Fitzgerald, Legislative Assistant/Labor.
Chairman Johnson [presiding]. A quorum being present, the
Subcommittee on Employer-Employee Relations of the Committee on
Education and the Workforce will come to order.
We are holding this hearing today to hear testimony on H.R.
16, the Tribal Labor Relations Restoration Act.
[The bill follows:]
109th CONGRESS <bullet> 1st Session
H. R. 16
To clarify the rights of Indians and Indian tribes on Indian lands
under the National Labor Relations Act.
in the house of representatives
January 4, 2005
Mr. Hayworth (for himself, Mr. Boehner, and Mr. Paul) introduced the
following bill; which was referred to the Committee on
Education and the Workforce
a bill
To clarify the rights of Indians and Indian tribes on Indian lands
under the National Labor Relations Act.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Tribal Labor Relations Restoration
Act of 2005''.
SEC. 2. DEFINITION OF EMPLOYER.
Section 2 of the National Labor Relations Act (29 U.S.C. 152) is
amended--
(1) in paragraph (2), by inserting ``or any business owned
and operated by an Indian tribe and located on its Indian
lands,'' after ``subdivision thereof''; and
(2) by adding at the end the following:
``(15) The term `Indian tribe' means any Indian tribe,
band, nation, pueblo, or other organized group or community
which is recognized as eligible for the special programs and
services provided by the United States to Indians because of
their status as Indians.
``(16) The term `Indian' means any individual who is a
member of an Indian tribe.
``(17) The term `Indian lands' means--
``(A) all lands within the limits of any Indian
reservation;
``(B) any lands title to which is either held in
trust by the United States for the benefit of any
Indian tribe or individual or held by any Indian tribe
or individual subject to restriction by the United
States against alienation; and
``(C) any lands in the State of Oklahoma that are
within the boundaries of a former reservation (as
defined by the Secretary of the Interior) of a
federally recognized Indian tribe.''.
______
Chairman Johnson. Under committee rule 12(b), opening
statements are limited to the chairman and the ranking minority
member of the subcommittee. Therefore, if other members have
statements, they will be included in the hearing record.
With that, I ask unanimous consent for the hearing record
to remain open 14 days to allow member statements and other
extraneous material referenced during the hearing to be
submitted in the official hearing record.
Without objection, so ordered.
Good morning, and welcome. Today, the subcommittee will
examine an important topic as we exercise our oversight
jurisdiction over the National Labor Relations Board and its
administration of Federal labor law.
The topic of this morning's hearing may seem narrow, but it
in fact has profound implications. It affects those who rely on
Congress and administrative agencies to set clear rules of law,
to follow established precedent, and to ensure a level playing
field with clear expectations of the law's design.
For almost 40 years, the National Labor Relations Board in
limited circumstances interpreted the National Labor Relations
Act to extend to the activities of sovereign tribal
governments. This is consistent with the goals of the act which
carves out Federal jurisdiction of state and local sovereign
governments.
Under the board's prior rulings, tribal governments who
operated on their own lands were afforded similar protection
and excluded from the jurisdiction of the act. Put more simply,
this meant that within the boundaries of their sovereign
territory, they, like any other sovereign leadership, were free
to govern themselves and set their own laws and policies.
In the spring of 2004, however, the National Labor
Relations Board reversed itself and abandoned 40 years of
precedent when it decided the case of San Manuel Indian Bingo
and Casino. In the San Manuel case, the board rejected its
longstanding view of the NLRA and ruled that it would no longer
afford the same level of respect to sovereign Indian tribes
engaged in business on their own tribal lands.
Rather, the board set itself up as a judge of not just
Federal labor policy, but also of Federal Indian policy. The
board said that it would exert jurisdiction over tribal
activities if it felt the balance of those two policies made it
necessary. This decision sent shock waves through not only the
Indian community but throughout America, including those in
Congress who long understood that Federal labor laws should not
deal with sovereign tribes.
Moreover, it raises serious questions as to whether the
board in this instance is overreaching by injecting itself into
Federal policymaking outside the scope of its responsibilities.
We will hear this morning from a number of people representing
those who are most directly affected by the board's decision:
representatives and leaders of sovereign Indian tribes with
whom the United States government has forged a special
relationship.
I also look forward to hearing the comments of others as to
whether the NLRB has the authority to make this ruling under
Federal law.
Most importantly, we will hear testimony on H.R. 16, the
Tribal Labor Relations Restoration Act sponsored by our
distinguished colleague from Arizona, Mr. Hayworth. He is a
colleague of mine and on the Ways and Means Committee and also
a good friend. He has been vigilant in this fight to ensure the
rights of American Indians are protected. Mr. Hayworth's bill
is straightforward. It would simply reverse the board's ruling
and restore the prior balance of law.
I now yield to the distinguished minority leader of the
subcommittee, Mr. Andrews, for whatever opening statement you
wish to make.
[The prepared statement of Mr. Johnson follows:]
Prepared Statement of Hon. Sam Johnson, Chairman, Subcommittee on
Employer-Employee Relations, Committee on Education and the Workforce
Good morning and welcome. Today, the subcommittee will examine an
important topic as we exercise our oversight jurisdiction over the
National Labor Relations Board and its administration of federal labor
law.
The topic of this morning's hearing may seem narrow, but it in fact
has profound implications.
It affects those who rely on Congress and administrative agencies
to set clear rules of law, to follow established precedent, and to
ensure a level playing field with clear expectations of the law's
design.
For almost 40 years, the National Labor Relations Board, in limited
circumstances, interpreted the National Labor Relations Act to extend
to the activities of sovereign tribal governments.
This is consistent with the goals of the act, which carves out
federal jurisdiction over state and local sovereign governments.
Under the board's prior rulings, tribal governments operating on
their own lands were afforded similar protection, and excluded from the
jurisdiction of the act.
Put more simply, this meant that within the boundaries of their
sovereign territory, they, like any other sovereign leadership, were
free to govern themselves and set their own laws and policies.
In the spring of 2004, the National Labor Relations Board reversed
itself and abandoned forty years of precedent when it decided the case
of San Manuel Indian Bingo and Casino.
In the San Manuel case, the board rejected its long-standing view
of the NLRA, and ruled that it would no longer afford the same level of
respect to sovereign indian tribes engaged in business on their own
tribal lands. Rather, the board set itself up as a judge of not just
federal labor policy, but also of federal indian policy.
The board said that it would exert jurisdiction over tribal
activities if it felt the balance of those two policies made it
necessary.
This decision sent shockwaves through not only the indian
community, but throughout America, including those in Congress, who had
long understood that federal labor law should not deal with sovereign
tribes.
Moreover, it raises serious questions as to whether the board in
this instance is overreaching by injecting itself into federal
policymaking outside the scope of its responsibilities.
We will hear this morning from a number of people representing
those who are most directly affected by the board's decision--
representatives and leaders of sovereign indian tribes, with whom the
united states government has forged a special relationship.
I also look forward to hearing the comments of others as to whether
the NLRB has the authority this ruling under federal law.
Most importantly, we will hear testimony on H.R. 16, the Tribal
Labor Relations Act, sponsored by our distinguished colleague from
arizona, Mr. Hayworth. He is a colleague of mine on the Ways and Means
Committee and also a good friend. He has been vigilant in his fight to
ensure that the rights of American indians are protected.
Mr. Hayworth's bill is straightforward. It would simply reverse the
board's ruling and restore the prior balance of law.
______
Mr. Andrews. Thank you, Mr. Chairman.
Good morning. We are very much looking forward to the
hearing. We welcome our colleague and friend, Mr. Hayworth.
I have substantive concerns about the bill before us and
procedural concerns which I hope are addressed in the hearing
today, both by our colleague and by our witnesses.
Substantively, this bill and the San Manuel decision bring
into conflict two desirable and important principles of
American law. The first is the sovereignty of our Indian
tribes, the importance that we place in self-governance, and
sovereignty for these organizations.
The second is the doctrine of fairness to our workers, the
right to organize, to bargain collectively, to assure oneself
of a fair working environment. So reconciling these two
substantive values is difficult, and the committee is going to
have to think very much about that reconciliation.
The second procedural concern that I have has to do with
the proper role of the committee in deciding matters that
perhaps are not yet ripe. It is true that the National Labor
Relations Board, of course, made a decision in May of 2004 in
the San Manuel case, but the case has not yet reached its
conclusion. The matter now rests before the D.C. Circuit Court
of Appeals and is being briefed.
There will be some decision from the court of appeals, and
I wonder whether it is the wisest thing for us to proceed
legislatively until the courts have weighed in on the questions
that are before us.
My friend, Mr. Kildee, has devoted many years and much
energy to the issues that I have outlined. With the chairman's
permission, I would like to yield the balance of my time to Mr.
Kildee to speak to this issue.
Mr. Kildee. I thank the gentleman for yielding to me.
Mr. Chairman, I want to thank you for holding this hearing
today.
This is the first hearing on this issue. Since the
administrative ruling by the National Labor Relations Board in
2004 in which the board determined it has jurisdiction to
regulate the labor practices of tribal commercial enterprises
even if they are located on sovereign tribal land, I have been
committed to finding a permanent legislative response that
honors tribal sovereignty and respects workers' rights.
Congressman Hayworth, who serves as co-chairman of the
Congressional Native American Caucus along with myself, and I
requested this hearing to give interested parties an
opportunity to formally voice their concerns. I look forward to
this hearing today, and I am sure we will get a good deal of
enlightenment. I look forward especially to hearing from my
friend, Mr. Hayworth.
Thank you very much. I yield back.
Chairman Johnson. Thank you, Mr. Kildee. You know, I extend
to you a special welcome, too. You are my friend and colleague,
and I thank you for joining Mr. Hayworth in this hearing.
I now welcome Mr. Hayworth and extend a special welcome to
you. I welcome all the witnesses and look forward to their
testimony today.
We have two very distinguished panels of witnesses before
us, and I thank them for coming.
Our first panel is one guy, the Honorable J.D. Hayworth,
representative for the Fifth Congressional District of Arizona.
As I noted in my statement, Mr. Hayworth is sponsor of H.R. 16.
And I think you know how the lights work here. You are
recognized.
STATEMENT OF HON. J.D. HAYWORTH, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF ARIZONA
Mr. Hayworth. Mr. Chairman, thank you very much. It is good
to see you in that chair.
And to the ranking member, I was visiting earlier with you,
and I think I can disclose to those who gather this morning. My
friend, the gentleman from New Jersey, I said, ``How are you?''
He said, ``I am ranking.'' What I failed to add was, ``Could
that continue a bit longer, preferably after November?'' But
all jokes aside, it is good to see my friend, the ranking
member from New Jersey.
As I look at the dais, I see my good friend the colonel
from Minnesota, another Minnesotan with whom I share a
birthday, Ms. McCollum, and my Arizona colleague, Raul
Grijalva. Thank you all for being here today.
And last but certainly not least, I wanted to single out
for special praise my dear friend from Michigan. From the day
when I came to the Congress of the United States, he worked
with me, and years before my arrival here has worked on issues
involving the first Americans. It is an honor to share
responsibility in the Native American Caucus as a co-chair with
my good friend, Dale Kildee.
Mr. Chairman, as always, I ask unanimous consent for my
entire statement to be read into the record. I will try to
offer a synopsis. However, you know, given my reputation for
verbosity, that sometimes is a bit difficult.
The Tribal Labor Relations Restoration Act will insert
simple, but necessary clarification language into the National
Labor Relations Act clarifying that businesses owned by
sovereign tribal governments and operated on tribal
reservations were never intended to be governed under the act.
The Constitution recognizes Indian tribes as sovereign
political entities, along with the Federal Government,
individual states and the political subdivisions thereof.
Until recently, each of these sovereign entities was exempt
from the definition of ``employer'' under the NLRA and thus
beyond the jurisdiction of the National Labor Relations Board.
But over the last decade, the board has chosen to ignore years
of past precedent and actively pushed to extend the NLRA's
reach to wholly owned tribal enterprises.
This effort came to fruition on June 3, 2004, when the
board ruled than an enterprise wholly owned by the San Manuel
Band of Indians and operated on the San Manuel's recognized
tribal land, must comply with the National Labor Relations Act.
For decades previous, the NLRB had found that tribes were
governmental entities exempt under the act.
For example, in the Fort Apache Timber Company ruling of
1976, the board determined that it lacked jurisdiction over the
White Mountain Apache Tribe and a wholly owned and operated
enterprise of that tribe, stating, ``Consistent with the
board's discussion of authorities recognizing the sovereign
government character of the tribal council in the political
scheme of this country, the White Mountain Apache Reservation,
it would be possible to conclude that the council is the
equivalent of a state or an integral part of the government of
the United States as a whole, and as such specifically excluded
from the act, section two, subsection two definition of
'employer.' The board deems it necessary to make the finding
here that the tribal council and its self-directed enterprise
on the reservation is implicitly exempt as employers within the
meaning of the act.''
The 1976 decision was reaffirmed in 1980 when a Federal
district court concurred with the board's position in the
Confederated Tribes of the Warm Springs Reservation ruling. In
this case, the court expressly agreed that the Confederated
Tribes was ``not an employer for purposes of the NLRA.'' Both
the 1976 and 1980 NLRB rulings were correct in their
interpretation of the National Labor Relations Act when they
found that tribally owned businesses operating on reservation
lands are exempt under the act.
The decision in the San Manuel case, therefore, overturned
this long-established precedent. It is up to Congress to
correct the NLRB's error and prevent this bureaucratic power
grab. H.R. 16 is necessary to remove any ambiguity in the law
and prevent future misinterpretations.
This bill has broad support throughout Indian Country. I
have here a resolution passed by the National Congress of
American Indians containing the 2004 NLRB decision. Now, NCAI
represents over 250 tribes nationwide, and this resolution
calls on Congress to reaffirm the sovereign rights of native
tribes and to clearly state that tribal-owned businesses
operating on reservation land are exempt from the National
Labor Relations Act.
I have included this resolution with my testimony and have
submitted it for the record. I look forward to hearing more on
NCAI's position from its president, Joe Garcia, in just a few
minutes.
I would also like to include for the record some letters I
have received and resolutions that have been passed by
individual tribes from across the Nation expressing their
opposition to the NLRB's ruling.* Make no mistake: To Indian
Country, this issue has nothing to do with unions, but
everything to do with sovereignty.
---------------------------------------------------------------------------
*The letters referred to begin on page 38.
---------------------------------------------------------------------------
The issue here is not whether tribes should unionize their
tribal enterprises. The issue is who should make that decision.
Should it be up to the sovereign tribal governments? Or should
it be up to the states or the Federal Government? I believe the
Constitution gives that right to the tribes as sovereign
governmental entities.
Native Americans are proud people, proud of their heritage,
proud of their culture, and proud of their independence. Mr.
Chairman, in my view the 2004 NLRB ruling in the San Manuel
case discounts for the honor and the integrity of native
people. It essentially declares that the United States does not
trust sovereign tribal governments to treat employees fairly.
The message is inaccurate and it is wrong, Mr. Chairman.
I thank you for the time and the attention to my remarks.
[The prepared statement of Mr. Hayworth follows:]
Prepared Statement of Hon. J.D. Hayworth, a Representative in Congress
From the State of Arizona
I would like to thank Chairman McKeon, Subcommittee Chairman
Johnson and the entire committee for bringing this important issue
before the committee.
My legislation, The Tribal Labor Relations Act of 2005, will insert
simple but necessary clarification language into the National Labor
Relations Act to make clear the fact that businesses owned by sovereign
tribal governments and operated on tribal reservations were never
intended to be governed under the Act. Clearly, sovereign tribes were
intended to hold the same status under the Act as other sovereign
entities, such as the federal government, individual states, and the
political subdivisions thereof. Each of these sovereign entities is
expressly exempt from the definition of ``employer'' under the Act and,
thus, is beyond the jurisdiction of the National Labor Relations Board.
H.R. 16 would provide clarity to the NLRA by explicitly stating that
Indian tribes are also exempt from the definition of ``employer'' under
the Act.
Unfortunately, over the last decade, the Board has chosen to ignore
years of past precedent and has actively pursued wholly owned tribal
enterprises under auspices of the NLRA. The Board's recent mission, to
force sovereign tribes to accept and adhere to the requirements
contained in the Act, came to fruition on June 3, 2004 when a Board
ruling concerning the San Manuel Band of Mission Indians ignored
decades of standing precedent and decreed that an enterprise wholly-
owned by the San Manuel Band and operated on the San Manuel's
recognized tribal land, must comply with the National Labor Relations
Act.
This decision overturned multiple past rulings which upheld the
sovereign rights of tribal government's by stating that the NLRA does
not apply to tribally-owned and operated enterprises because they are
governmental entities exempt under the Act.
For example, in the Fort Apache Timber Company ruling in 1976, the
Board ruled that it lacked jurisdiction over the White Mountain Apache
Tribe and a wholly owned and operated enterprise of the tribe, stating:
``Consistent with [the Board's] discussion of authorities
recognizing the sovereign-government character of the Tribal Council in
the political scheme of this country it would be possible to conclude
that the Council is the equivalent of a State, or an integral part of
the government of the United States as a whole, and as such
specifically excluded from the Act's Section 2(2) definition of
``employer.'' [The Board] deem[s] it necessary to make the finding here
* * * that the Tribal Council, and its self-directed enterprise on the
reservation * * * is implicitly exempt as employers within the meaning
of the Act.''
The 1976 decision was reaffirmed in 1980, when a federal court
concurred with the Board's position in the Confederated Tribes of the
Warm Springs Reservation ruling. In this case, the court expressly
agreed that the Confederated Tribes was ``not an employer for purposes
of [the NLRA].''
Both the1976 and 1980 NLRB rulings were correct in their
interpretation of the National Labor Relations Act when it was found
that tribal owned businesses operating on reservation lands are exempt
under the Act. The subsequent misinterpretation contained in the San
Manuel case exemplifies the need for H.R. 16, which removes cause for
future misinterpretation by explicitly stating that the sovereign
rights of tribal government are to be recognized and respected under
the Act in the same form as other sovereign entities.
I have received a resolution passed by the National Congress of
American Indians concerning the 2004 NLRB decision. NCAI represents
over 250 tribes nationwide and, in its resolution, the organization
calls on Congress to reaffirm the sovereign rights of Native tribes and
to clearly state that tribal owned businesses operating on reservation
land are exempt the National Labor Relations Act. I will include this
resolution with my testimony for the record.
Since being elected to the House of Representatives nearly twelve
years ago, I have worked closely with Native Americans from across our
nation and have learned much from the Native community. It is my hope
that neither this committee nor this congress needs me to express the
honor and integrity that is saturated within the culture of the first
Americans, both of which have been the cornerstone of my dealings with
Indian country.
It is my opinion that the 2004 NLRB ruling in the San Manuel case
discounts both the honor and the integrity of Native people. It sends
the message that the United States of America does not trust a
sovereign tribal government to treat its employees fairly. This is the
wrong message to send, and it must be corrected.
H.R.16 restores the initial intent of the National Labor Relations
Act by acknowledging the sovereign rights of Indian tribes and
exempting them from the Act. Additionally, it expresses the federal
government's faith in the ability of Indian tribes to establish intra-
governmental policies that will ensure fair working conditions for
employees of tribal owned businesses that operate on tribal
reservations.
______
Chairman Johnson. Thank you.
You know, I thank you for your leadership on this issue. We
are going to hear from the tribal governments later this
morning, but from your observations or conversations with the
tribes, what impact will the San Manuel decision have on them?
Mr. Hayworth. Well, first and foremost, it leads to an
erosion of sovereignty, diminution of what I believe is
guaranteed in Article I, Section 8 of our Constitution. And
that is such a profound change that it completely changes the
historical precedent of just what it means to native people to
have their own sovereign governments and be able to run their
own affairs.
It would have broad implications across the width and
breadth of our relationship, intergovernmental relationships,
if you will. And as you will hear later today, many tribes
pride themselves on their record of relations for employees in
tribally owned enterprises. They believe, Mr. Chairman, that
the decision to unionize or not to unionize should be left up
to them.
That is the crux of the matter. If we really believe in
self-government and in self-determination, why would we take
this right from a sovereign governmental entity and put it into
the hands of Washington bureaucrats?
Chairman Johnson. I wanted to make the comment, why do we
put anything in Washington bureaucrats' hands?
[Laughter.]
Mr. Andrews, you are recognized for 5 minutes.
Mr. Andrews. Thank you.
I thank Mr. Hayworth for his testimony, and I recognize
that he speaks for many people on both sides of the aisle for
their concern of the sovereignty issues.
I wanted to explore for just a moment, J.D., the question
of how far the sovereignty of the tribe goes when it runs into
other constitutional considerations. Do you think that a person
who is working for a tribal enterprise has Federal due process
rights under the Constitution?
Mr. Hayworth. Well, Mr. Andrews, Mr. Chairman, I am not a
lawyer nor have I ever played one on TV. I just joined with you
as a lawmaker. As such, I simply want to state that of course
every American enjoys constitutional rights.
As you pointed out in your opening statement, there are
legitimate points of disagreement, as the old saying, where
your rights end and where another person's begin. The question
is, where is this delineation?
Mr. Andrews. Right.
Mr. Hayworth. And if we take away the most basic right of
sovereignty, then we are basically I think providing a very
slippery slope for other relations, intergovernmental relations
for the tribe.
Mr. Andrews. Here is the concern that my question implies.
Your bill restores the law that existed before the San Manuel
decision. It essentially puts us back to where we were before
the decision, but it does not include any provision for the
protection of labor rights in the law itself. It leaves that
decision to the tribal councils, the tribal government.
Now, I know the record is that the tribal councils almost
without exception have ordinances which respect those rights. I
am not in any way contending the tribal councils have been
careless or indifferent to those rights. However, it does leave
open the legal possibility that would be the case.
I wonder, to carry this sovereign argument a little
further, you make the analogy about state governments and
sovereign tribes. Well, of course, state governments are
subject to the 14th Amendment, and, if acting in their capacity
as an employer, they would discriminate against someone, they
would be held accountable under Federal law.
But your bill doesn't provide for that kind of protection,
does it? Because it seems to me you either have the obligations
of a public entity like a state does under the due process
clause, or you have the obligations of a private employer under
the National Labor Relations Act.
Wouldn't it be the case that workers in these situations
would have neither of those protections?
Mr. Hayworth. Mr. Chairman and Congressman Andrews, I
believe what we are having here is really a comparison of
apples and oranges, with all due respect. You are coming at
this from another direction, and it is one that perhaps if you
put your trust in what we can call innovations in regulatory
law and in the supremacy of bureaucratic determinations by the
executive branch, and that should be the venue that makes the
decision by bureaucratic fiat.
I see it more as a dynamic there, rather than a question of
jurisdiction or my pedestrian, as opposed to legal, opinion of
where rights end or rights begin. I view this more as a process
situation where we ask the question and the premise: Who
governs best here in terms of this determination? We are here
as elected officials. Tribal governments are constituted by
elected officials, and not as an attorney or an amateur
barrister, but as one who observes the process.
I believe in the primacy of local sovereign governments and
in the determinations made by their duly elected officials, and
in Article I, Section 8 of the Constitution, and the
sovereignty and the sovereign immunity granted to the tribes,
rather than to a body of regulatory law or a new finding by a
bureaucratic board.
Mr. Andrews. I appreciate all that. I would just simply
conclude by saying that my concern is that the powers of the
sovereign government usually stop at the constitutional rights
of an individual. I am not sure that is the case in this
situation. I am sure it would be the case if the labor board's
decision was upheld. So I don't know the answer to this
question, but I think it is one we have to ask.
Thank you.
Chairman Johnson. Mr. Kline, you are recognized for 5
minutes.
Mr. Kline. Thank you, Mr. Chairman. I assure you I won't
take 5 minutes.
I am not a lawyer, nor have I ever played one on TV either,
so I am now confused after listening to my learned colleague
here.
Just recapping where we are, this bill, H.R. 16, does take
us back to the situation that we had before the San Manuel
decision. Is that correct? We would operate in the same way,
recognize the full sovereignty of the Indian tribes. I am
trying to keep it real simple here. That is what it does, is
that correct?
Mr. Hayworth. Congressman Kline, Mr. Chairman, yes, that is
what it does.
Mr. Kline. That is it. OK. It seems like a good idea.
Thank you. I yield back.
Chairman Johnson. Thank you.
Mr. Kildee, do you care to question?
Mr. Kildee. Just a little conversation with Mr. Hayworth.
My state of Michigan, many states in this country,
including states in the South where there are not many labor
unions for state government, anyway, they have lotteries. Our
state has a lottery. It is a very, very commercial lottery. It
is not really run as a governmental function, although the
money helps the people of the state of Michigan, as the
lotteries or the casinos help the people in the sovereign
tribes.
If the NLRB claims jurisdiction over casinos on sovereign
Indian land, is there some thought that they might try to reach
into the state of Michigan and say those lottery employees
should also have protection of NLRA and NLRB?
Mr. Hayworth. Mr. Congressman, Congressman Kildee, you have
brought up the argument, the essence of the slippery slope. It
is one I addressed in another forum on the committee where
Chairman Johnson and I serve, on Ways and Means. Sovereignty,
once you encroach in one area, it is the slippery slope that
invites an expansion of the bureaucratic fiat and, I think, an
erosion of the basic sovereignty.
As I made the case, when there were those who sought to
unconstitutionally levy taxes, you pointed out, on the lottery.
I made the point that, for example, many businesses decide to
incorporate in the state of Delaware. Well, why would we
restrict the Delaware tribe and not 1 day see that same erosion
of rights for the state of Delaware?
And so I think your observation is especially cogent and
why we need to see this legislation enacted.
Mr. Kildee. Thank you very much.
I yield back, Mr. Chairman.
Chairman Johnson. Mr. Grijalva, do you care to question?
Mr. Grijalva. Thank you, Mr. Chairman.
Chairman Johnson. You are recognized for 5 minutes.
Mr. Grijalva. Some points of clarification from my
colleague, Mr. Hayworth.
There have been two attempts to pass an amendment on the
Labor-HHS appropriations bill, which were essentially to deny
NLRB's funding to implement the San Manuel decision. Both of
those did not pass.
And I want to go back to the point that Mr. Andrews and my
friend, Mr. Kildee, both mentioned. After those did not pass,
there was some discussion, I don't know if you were part of it
or not, but there was some discussion as to trying to get the
parties, sovereign nations, labor and others, to try to work to
reconcile the issue other than this either-or proposition that
we have before us. I just want to know, did that process occur?
If it failed, why did it fail?
And then the second part question is, is there some
applicability of Federal law, ERISA, OSHA, that apply to
sovereign nations and tribes? The NLRB is a point of contention
here. Would you consider those other applications to also be an
erosion, slippery slope of sovereignty?
And those are two general questions.
Mr. Hayworth. Mr. Chairman, Congressman Grijalva, I thank
you for the questions.
As to your first point about process, I was not
specifically invited to be part of the consultation process
involving the AFL-CIO or SEIU or the Teamsters or anyone like
that with Indian Country.
What I do believe speaks volumes, and as you will hear from
the subsequent panel, is the resolution passed by the National
Congress of American Indians, is the resolutions passed by
various sovereign tribal governments and their letters of
support for this legislation.
In terms of the process and/or worker protections and the
protection of rights on tribal lands, I think obviously this
just simply becomes a question, with apologies to using this
trite old game-show title, who do you trust?
I believe, in keeping with other sovereign governments,
whether they are townships, cities, counties, states or the
Federal Government, the sovereignty of Native American tribes
is recognized. It should not be in any way diminished, nor
would there be, and I know this is not the intent of the
gentleman from Arizona, but I believe what happens is the
notion that, and again I don't think he is implying this in his
question, but I think there is a mindset that develops that
Washington knows best.
I think this offers a sterling example. When the National
Labor Relations Board, with no historical precedent, but with
simple bureaucratic fiat, says: We demand this, unelected
officials trying to impose regulations on sovereign
governments, and that is especially troubling. If you go into
the whole array of law, but not being a lawyer, that is the
simple concept and it just comes down to who do we trust.
Mr. Grijalva. Let me reclaim my time, Mr. Hayworth. I agree
with you. Having been here 3-plus years under the current
leadership in Washington, no, you should not trust Washington.
I agree entirely with you.
The clarification I was trying to get to is, we are
talking, and I think it is central to the argument, the erosion
of government-to-government relations with sovereign nations
and the sovereignty of those nations. My point of clarification
was, you know, at this instance we are talking about NLRB, but
there are also applicable Federal laws like ERISA, OSHA, et
cetera.
Are those considered, in your estimate, to be part of that
erosion that you talked about?
Mr. Hayworth. You know, with all due respect, Mr. Chairman
and to my good friend from Arizona, with whom I have worked to
pass legislation on a bipartisan basis----
Mr. Grijalva. I agree.
Mr. Hayworth [continuing]. Dealing with tribes in his
congressional district. You were asking me what is in essence
an essay question, far afield from the topic today. There may
not be a rule to germaneness, but my personal feelings or my
reading of the law, as an American citizen who happens to be a
Member of Congress, with all due respect, is beside the point.
What I readily concur is that there are various fault
lines. As I said earlier, there are various points of tension
within the whole concept of federalism, whether it applies to
states or to tribal governments.
But for our purposes today, the record is clear. The
National Congress of American Indians, sovereign tribe after
sovereign tribe, has said: Reaffirm our sovereignty. And so
this is one essence where I will say my opinion on other legal
matters doesn't pertain today, but I thank you for inquiring.
Mr. Grijalva. Thank you, Mr. Chairman.
And thank you, Mr. Hayworth.
Chairman Johnson. The time of the gentleman has expired.
Ms. McCollum, do you care to question?
Ms. McCollum. I want a point of clarification with some of
the statements that have been made.
Chairman Johnson. You are recognized.
Ms. McCollum. Thank you, Mr. Chair.
The sovereignty is nation to nation, the U.S. Government to
the tribal government. Tribal governments work with state
governments. They work with county governments. They work with
local governments. But they are a nation. They are not a local
unit of government to a local unit of government. The
sovereignty is recognized at a national level.
So I think when we are talking, yes, tribes work
cooperatively with city councils. They work cooperatively with
counties. They work cooperatively with states. They do in my
state, but they are a nation and it is a sovereign nation.
Sometimes when we start talking about these government-to-
government relationships, having served on a city council,
having served at the state level and served at the national
level, we need to keep always the relationship at a national
level, at a nation-to-nation level, and just be mindful of the
fact, yes, as I work with my cities, my states, my counties, I
represent a Federal Government. I represent the nation.
When the tribes are negotiating and working with local
units of government, from the national level, it is nation to
nation, it is nation to city, it is nation to county. They are
a sovereign nation.
Thank you, Mr. Chair.
Chairman Johnson. Mr. Holt, do you care to question?
Mr. Holt. Yes, Mr. Chairman. Thank you.
Chairman Johnson. You are recognized.
Mr. Holt. I thank the gentleman, our colleague.
We often speak about workers' rights and the NLRB as the
adjudication and enforcement mechanism for recognizing those. I
guess it leads me to ask the fundamental question of just how
far does the tribal sovereignty go? Certainly, it would not
supersede the Bill of Rights. Now, I recognize workers' rights
do not have the same degree of primacy as the first amendments
to the Constitution.
However, there is a general recognition of workers' rights.
I would just like to ask, and I apologize for coming in late
and maybe missing this clarification, but I would appreciate it
if the gentleman would say just how far does that go,
infringing on what we generally consider rights?
Mr. Hayworth. Mr. Chairman, Congressman Holt, I believe the
Constitution of the United States is a document of limited and
enumerated powers. I believe the Constitution means what it
says and says what it means. So in Article I, Section 8, when
it says that Congress shall have the power to regulate commerce
with foreign nations, and among the several states, and with
the Indian tribes, that articulation offers both sovereignty
and sovereign immunity.
I appreciated the comments of the gentlelady from
Minnesota, but however you intend to define ``sovereignty,''
that sovereignty is complete. Now, within the role of
federalism and full faith and credit, and the relationship
among the states or between individual states and the Federal
Government, there is no doubt that there is primacy for the
enumerated powers in the Constitution and the subsequent rights
ensured by the first 10 amendments in the Bill of Rights.
As the gentleman pointed out, from New Jersey, he said
almost in passing that worker rights were not part of the
original 10 amendments to the Constitution. To sit here and
enumerate what we consider to be rights and/or privileges,
again with all due respect, I appreciate the gentleman's
interest in what might be my pedestrian legal opinions, with no
formal training.
All I can tell you is the scope of the hearing today is a
simple one dealing with the insurance of sovereignty and the
primacy that elected officials, both at the tribal level and
elected officials here in Washington, are making decisions,
rather than legal precedent being reversed by bureaucratic
fiat, as we saw with the decision of the National Labor
Relations Board vis-a-vis San Manuel.
Chairman Johnson. Thank you, Mr. Hayworth. I appreciate you
being a part of this witness panel this morning. I thank you.
We would ask the second panel to take their seats.
And you may be excused.
Mr. Hayworth. Thank you, Mr. Chairman, and thanks to the
members of the subcommittee.
Chairman Johnson. You are welcome to sit in and listen if
you wish.
It is my pleasure to yield to Mr. Kline for the purpose of
introducing our first witness, as soon as you sit down. You are
welcome to do that, Mr. Kline.
Mr. Kline. Thank you, Mr. Chairman, now that the witnesses
have had a chance to find their name tags and their seats.
Let me just say it is my great pleasure to introduce today
Ronald Johnson, who is the assistant secretary and treasurer of
the Prairie Island Tribal Council. That is a Dakota Sioux
Tribe. In 1936, the Federal Government officially recognized
the Prairie Island Indian Community as a reservation, awarding
them 534 acres. This small but thriving community employs over
1,650 people in its gaming, government and business operations.
Mr. Johnson is currently serving his third term as
secretary-treasurer and served as vice president of the
previous tribal council. A Red Wing, Minnesota, native, Mr.
Johnson formerly worked in the Prairie Island Indian Community
as building and grounds manager of Treasure Island Casino. In
addition to these duties, Mr. Johnson currently co-chairs the
National Congress of American Indians, Department of Homeland
Security.
He also works with the state of Minnesota on homeland
security to recognize tribes as areas of concern. I might point
out that the Prairie Island Community is on an island and
shares that island with a nuclear power plant, an island in the
Mississippi River.
Finally, Mr. Johnson has long been involved in youth
activities to promote the importance of education and
developing future leaders of Prairie Island Indian Community. I
am particularly pleased today to welcome him here and look
forward to his testimony.
Chairman Johnson. Thank you.
I would like to recognize Mr. Andrews for an introduction.
Mr. Andrews. Thank you, Mr. Chairman.
I would like to welcome and introduce my friend, Professor
Phil Harvey from Rutgers University School of Law in Camden.
Phil has been of invaluable assistance in my efforts in
understanding many areas of public policy, welfare reform,
employment law. He teaches extensively in those fields. He is
both a scholar and a teacher, very active in his community. He
and his wife Mary are raising a beautiful family.
Phil, we very much appreciate you taking time out of your
scholarship and teaching to be with us today, and we welcome
you.
Chairman Johnson. I will introduce the third witness from
New Mexico.
I appreciate your being here. I go out there a lot.
The Honorable Joe Garcia is the Governor of the San Juan
Tribe of Pueblo Indians. Mr. Garcia is also president of the
National Congress of American Indians.
We appreciate you being here, sir.
Before the witnesses begin, I would like to remind members
that we will be asking questions after the entire panel has
testified. In addition, committee rule 2 imposes a 5-minute
limit on all questions. I think you watched the lights down
there. If it comes on green, you have 5 minutes; the little
yellow one comes on, you have 1 minute; when the red one comes
on, we would like you to complete your testimony, if you don't
mind.
With that, I will recognize Mr. Johnson for your testimony,
sir.
STATEMENT OF RONALD JOHNSON, ASSISTANT SECRETARY/TREASURER,
PRAIRIE ISLAND INDIAN COMMUNITY TRIBAL COUNCIL
Mr. Johnson. Thank you, Mr. Chairman.
Good morning, Chairman Johnson, Vice Chairman Kline and
honorable members of the Subcommittee on Employee-Employer
Relations. My name is Ron Johnson. I am a member of the Prairie
Island Indian Community and currently sit as assistant
secretary-treasurer for the tribal council.
I want to thank you for the opportunity to testify today on
H.R. 16, which will clarify the rights of Indian and Indian
tribes on Indian lands under the National Labor Relations Act.
The Prairie Island Indian Community is a federally
recognized sovereign self-governing Indian tribe. Our first
economic enterprise started in 1984 when we opened a bingo
parlor, which started with less than 150 employees. Following
the passage of the Indian Gaming Regulatory Act in 1988, my
tribe successfully negotiated compacts with the state of
Minnesota and our modest bingo operation was transformed into a
casino.
As a result of this hard work, our employees and
responsible management, our casino became a great economic
success. In just over 20 years, our business evolved from a
150-employee bingo parlor to a 1,500-employee resort and casino
that features a hotel, marina, a cruise yacht and an RV park.
The success of our casino has led to an expansion of our
government services and to additional economic development,
including our tribe's acquisition of a golf course and the
opening of a new convenience store. We continue to explore
additional opportunities and to create jobs to provide more
economic benefit for our tribe and our surrounding areas.
Our tribe now employs approximately 1,600 people in our
economic enterprise and government. We are the largest employer
in Goodhue County in the state of Minnesota. We treat our
employees right. We provide good-paying jobs in rural
Minnesota, with great benefits that include health insurance,
dental insurance, a 401(k), basic life, accidental death and
disability insurance, and paid leave.
Over 80 percent of our employees are full-time employees,
of which approximately 89 percent of them, if you exclude the
seasonal workers, are eligible to receive full benefits.
Because of the success of our economic enterprise, we are able
to offer these wages and benefits without any assistance from
the state of Minnesota.
We have a large number of rehires, people that for whatever
reason have left our employment and came back to work at our
enterprise because of our magnificent benefits and wage
packages. It is better than most of the employment in the area
of where we have our business, both union and non-union.
Our tribe's own best interest lies in ensuring fair
treatment of all employees. We, like most tribes we know,
already offer compensation, benefits, work conditions, and
grievance procedures that are better than those offered by
union employees. Our employees are already encouraged to offer
positive, constructive criticism under existing policies and
procedures, and our tribe has implemented a problem resolution
procedure that permits employees to voice concerns or
complaints without being penalized.
In addition, employees whose misconduct results in
suspension or revocation of their gaming license, which are
required for all casino employees, have the additional right to
a full evidentiary hearing before the gaming commission to
contest any suspension or revocation.
In fact, the NLRB rejected the one charge that was filed
against us after the NLRB determined that the NLRA applied to
tribes and their business because there was no evidence that
the employee was discharged for engaging in protective
activity.
We understand that we must compete for the best employees.
We treat our employees well because it is the right thing for
the employees and it is good for our business, not because a
Federal agency compels us to do so. Our tribe has used and
continues to use and rely upon union vendors, contractors and
trades for various goods, projects and services, including
casino vendors and contractors who perform construction and
repair work at our various tribally owned enterprises and
facilities.
Over the years, we have enjoyed cooperative relationships
with union vendors, contractors and trades, creating economic
benefits for everyone. Each of the tribe's businesses are
wholly owned enterprises on Prairie Island Indian Community.
Treasure Island Resort and Casino, Dakota Station, located in
the community lands held in trust by the United States of
America for the benefit of the Prairie Island Indian Community.
These commercial ventures are the principal funding source
for most of our governmental departments, programs and
services. Revenues generated by the tribal businesses have been
used to improve infrastructure of the reservation such as water
treatment facilities, improved water and sewer systems.
And we have helped provide many essential services, along
with health care, social services, educational programs,
financial planning, governmental, judicial and tribal law
enforcement that most communities take for granted.
H.R. 16 would amend the NLRA to confirm the exempt status
of tribal employers in their on-reservation activities. H.R. 16
would not grant any status or rights to the tribes that did not
previously exist under the prior 30 years of the NLRB decision,
but merely return to the former status quo.
As governments engage in economic activity on Indian lands
to fund essential government services, sovereign tribes,
including ours, should enjoy the same exempt status as the
United States government, corporations and the state and their
political subdivisions. There is simply no reason to treat
tribal government-operated businesses any different than other
government entities.
As in the case with the other government entities, our
activities are restricted by jurisdictional boundaries. We
conduct our economic activity and perform essential government
services on our tribal lands, as is in the case with the state
and local governments.
We cannot freely relocate our enterprise to different
locations to obtain a competitive business advantage or to
access a larger population of potential employees. The Prairie
Island Indian Community owns and operates a commercial
enterprise on its land and the tribal council, as elected
representatives of the community, manages the enterprise.
Chairman Johnson. Will you try to close it down when you
can, please?
Mr. Johnson. I would like to just move on and just get to
the position of, in closing, I would like to conclude here that
our tribe does offer great benefit packages, and we do have a
program that protects the employee; that they have a grievance
policy they can follow, and there is a board that will hear
that.
I would like to conclude that the NLRA should amend and
clarify the exempt status of Indians and Indian Tribes on
Indian lands. Our government-operated businesses are the
livelihood of our tribe and help support the economics of our
neighbors and friends. Our tribal government operates
businesses, funds our most basic essential government services,
to resources needed to revitalize our culture and tradition.
The tribe understands that we depend on the efforts of all
of our employees for the tribe's growth and well-being. We have
already implemented policies and procedures to promote the fair
treatment of all our employees, and additional Federal
regulation is not warranted. Therefore, Indian tribes and
businesses owned and operated by Indian tribes should be exempt
from NLRA.
Thank you. And if you have any further questions, I will be
glad to answer.
[The prepared statement of Mr. Johnson follows:]
Prepared Statement of Hon. Ronald Johnson, Assistant Secretary/
Treasurer of the Prairie Island Indian Community
Good morning Chairman Johnson, Vice-Chairman Kline and honorable
members of the Subcommittee on Employer-Employee Relations. My name is
Ron Johnson. I am a member of the Prairie Island Indian Community and
the Assistant Secretary/Treasurer of the Prairie Island Indian
Community Tribal Council. Thank you for the opportunity to testify
today on the proposed legislation to clarify the rights of Indians and
Indian tribes on Indian lands under the National Labor Relations Act.
The Prairie Island Indian Community is a federally-recognized,
sovereign, self-governing Indian Tribe organized under 25 U.S.C.
Sec. 476, and is governed under the terms of the Constitution and
Bylaws adopted by the Tribal members on May 23, 1936, and approved by
the Secretary of the Interior on June 20, 1936. We are located in the
state of Minnesota along the banks of the Mississippi River north of
the City of Red Wing. My Tribe is the Mdewakanton Dakota Community; the
literal translation of Mdewakanton is ``dwellers of Spirit Lake.'' The
Mdewakanton are one of the seven sub-tribes who make up the alliance
called the Oceti Sakowin--the Seven Council Fires. Most of the world
knows our alliance as the Sioux, but we call ourselves Dakota, Lakota
or Nakota, a word that means ``ally'' or ``friend'' in all three of the
dialects of our language. Tinta Wita or Prairie Island has provided for
the needs of my people for centuries; it is a spiritual place. Over the
years, this land has provided sustenance and shelter for my Tribe.
More recently, Prairie Island has provided my Tribe with economic
opportunities. Our first economic enterprise started in 1984 when we
opened a bingo parlor known as Island Bingo. Although we started with
less than 150 employees, our Tribal members worked hard to make certain
that the enterprise was well run and provided good jobs. Our employees'
hard work and dedication contributed to the success and growth of our
bingo parlor during those first years of operation.
Following the Cabazon decision, and the subsequent passage of the
Indian Gaming Regulatory Act (IGRA) in 1988, my Tribe successfully
negotiated compacts with the State of Minnesota and our modest bingo
operation was transformed into a casino, known as Treasure Island
Resort & Casino. As a result of the hard work of our employees and
Tribal Members, responsible management by our casino directors and
Tribal Council, and aggressive regulation by our Gaming Commission,
Treasure Island became a great economic success, both for my Tribe and
the State of Minnesota. In just over 20 years, Treasure Island evolved
from a small bingo parlor with less than 150 employees to a resort and
casino with approximately 1500 employees that features over 2,500
slots, 44 table games, a 10-table poker room and a 550-seat high stakes
bingo hall, along with five restaurants, a 250-room hotel, indoor pool,
137-slip marina, the Spirit of the Water cruise yacht and an RV park.
The success of our casino has led to an expansion of our government
services and to additional economic diversification, including our
Tribe's acquisition of Mount Frontenac Golf Course in 2000 and the
opening of Dakota Station gas and convenience store in 2005. Our Tribe
now employs approximately 1,600 people in our economic enterprises and
governmental programs. We are the largest employer in Goodhue County,
offering good-paying jobs in rural Minnesota with great benefits that
include health insurance, dental insurance, 401(k), basic life
accidental death and disability insurance, and paid leave. Over 80
percent of our employees are full-time employees (approximately 89
percent if you exclude seasonal workers) eligible to receive full
benefits. Because of the success of our economic enterprises, we are
able to offer these wages and benefits without any assistance from the
State of Minnesota. Our Community continues to explore additional
opportunities to create more jobs and provide more economic benefit for
our Tribe and the surrounding area.
Our Tribe understands that we depend on the efforts of all of our
employees for the Tribe's growth and well-being. We are committed to
providing the best possible working conditions and strive to treat all
our employees fairly and with dignity and respect. Indeed, the Tribe's
own best interest lies in ensuring fair treatment of all employees. Our
employees are encouraged to offer positive and constructive criticism,
and our Tribe has implemented a problem resolution procedure that
permits employees to voice concerns or complaints about any condition
of employment, rules of conduct, policies, practices, or disciplinary
actions without being penalized, formally or informally. In addition,
employees whose misconduct results in the suspension or revocation of
their gaming license (required for all casino employees) have the
additional right to a formal hearing before the Gaming Commission to
contest the suspension or revocation.
If we as a tribal employer mistreat our employees we will not be
able to fill our employment needs, our employees will perform poorly,
and our facilities will certainly suffer. And especially with regard to
our casino and hospitality services, we understand very well that we
are in a competitive service industry and the welfare of our
enterprises depends on contented employees. Our Tribe, like other
Tribes, treats employees well because it is the right thing for the
employees and it is good for business, not because a federal agency
compels us to do so.
Our Tribe has used and continues to use and rely upon union
vendors, contractors and trades for various goods, projects and
services, including casino vendors and contractors who perform
construction and repair work at our various tribally-owned enterprises
and facilities. Over the years we have enjoyed cooperative
relationships with union vendors, contractors and trades, creating
economic benefits for everyone.
Each of the Tribe's businesses are wholly-owned enterprises of the
Prairie Island Indian Community. Treasure Island Resort & Casino and
Dakota Station are located on Community lands held in trust by the
United States of America for the benefit of the Prairie Island Indian
Community. These commercial ventures are the principal funding source
for most of our governmental departments, programs and services,
including administration, education, water resources, roads, public
safety, health care, social services, and natural resources. Revenues
generated by tribal businesses have been used to improve the
infrastructure of the reservation (water treatment facility, improved
water and sewer systems), and have helped provide many essential
services (healthcare, social services, educational programs, financial
planning, governmental, judicial, tribal law enforcement) that most
communities take for granted.
H.R. 16--Tribal Relations Restoration Act of 2005
The San Manuel decision constituted a dramatic change in over 30
years of National Labor Relations Board (NLRB) precedent that afforded
tribe's--for their on-reservation activities--the same status under the
National Labor Relations Act (NLRA) as other sovereign entities such as
the United States, the states and their political subdivisions, which
are exempted from the definition of ``employer'' under the NLRA and,
thus, beyond the jurisdiction of the NLRB. H.R. 16 would amend to the
NLRA to confirm the exempt status of Tribal employers in their on-
reservation activities, and reverse the harmful decision of the NLRB in
the San Manuel decision. H.R. 16 would not grant any status or rights
to the tribes that did not previously exist under the prior 30 years of
NLRB decisions, but merely return to the former status quo.
As governments engaged in economic activity on Indian lands to fund
essential government services, sovereign tribes including ours should
enjoy the same exempt status as the United States, government
corporations, and the states and their political subdivisions. As is
the case with other governmental entities, our activities are
restricted by jurisdictional boundaries. We conduct our economic
activity and perform essential governmental services on our tribal
lands. And as is the case with state and local governments, we cannot
freely relocate our enterprises to different locations to obtain a
competitive business advantage or to access a larger population of
potential employees. There is simply no reason to treat tribal
government-operated businesses any differently than other governmental
entities.
Indian Tribes as Sovereign Nations Should Be Afforded the Same Status
as Federal and State Governments and Subdivisions
Indian Tribes are distinct political entities that retain their
inherent powers of self-government absent Congressional action to
restrict those powers. A State cannot limit the powers of a Tribe.
Tribes have had the inherent right to govern themselves ``from time
immemorial.''\1\ Tribal governments have the same powers as the federal
and state governments to regulate their internal affairs, with a few
exceptions. Tribes have the power to form a government, decide their
own membership, the right to regulate property, the right to regulate
commerce, and the right to maintain law and order. Accordingly, Indian
Tribes should also be exempted from the NLRA's definition of employer,
just as federal and state governments are exempted.
Tribal Government-Operated Businesses Should Also Be Exempted
The Supreme Court has held that State ``political subdivisions''
excluded from the NLRA's coverage are defined as entities that are
either ``(1) created directly by the State, so as to constitute
departments or administrative arms of the government, or (2)
administered by individuals who are responsible to public officials or
to the general electorate.''\2\ The Prairie Island Indian Community
owns and operates the commercial enterprises on its lands, and the
Tribal Council as the elected representatives of the Community manages
the enterprises. Because our commercial enterprises are operated by
individuals who our responsible to our public officials, they are akin
to the state ``political subdivisions'' exempted from the NLRA's
coverage.
The tragic history of Indian Tribes' relationship with the United
States further underscores how Tribes' economic activity on Indian
lands constitutes an essential government function. A string of failed
federal initiatives effectively stripped Indian Tribes of their
ancestral lands, took away their livelihood, and forced them on to
desolate reservations. The destruction of Tribes' traditional way of
life and the limited and mostly unproductive reservation land base
resulted in widespread economic devastation throughout Indian Country.
Indeed, Prairie Island was a place of severe poverty as recently as the
1990's. The soil of the island is sandy and has limited value for
farming. Consequently, throughout much of this history, Tribes,
including Prairie Island, lacked the financial means to effectively
exercise their governmental powers.
For many Tribes, including Prairie Island, their tribal-operated
commercial enterprises have provided the only successful means to raise
funds to be able to exercise their powers of self-government. Without
the financial means to exercise powers of self-government, Tribes would
struggle to survive as sovereign nations. Accordingly, Tribes and their
tribal government-operated commercial enterprises should not be treated
any differently then states and their political subdivisions. H.R. 16's
amendments to the NLRA would rectify this discrepancy.
NLRB Jurisdiction Over Tribes Impairs Tribal Sovereignty
H.R. 16 would also ensure that the NLRA is viewed in light of the
longstanding federal policies that promote tribal self-government,
self-sufficiency, and economic development. A tribe's ability to
establish and control the terms and conditions of employment for its
member and nonmember employees is an essential aspect of self-
government that clearly ``has some direct effect on the political
integrity, the economic security, or the health and welfare of the
tribe.''\3\ For these reasons, Indian tribes have been excluded from
the definition of employers in other federal employment legislation
such as Title VII of the Civil Rights Act and the American's with
Disabilities Act.\4\ According to South Dakota Senator Mundt, the
rationale for the tribal exemption in Title VII was to protect ``the
welfare of our oldest and most distressed American minority, the
American Indians'' to allow them to ``conduct their own affairs.''\5\
Federal law also expressly permits the use of Indian preference by
employers on or near reservations.\6\
Indian Gaming Promotes Tribal Economic Development, Self-Sufficiency,
and Strong Tribal Governments
The need for H.R. 16's clarification of the rights of Indians and
Indian tribes on Indian lands is readily apparent when one considers
the potential application of the NLRA to tribal gaming enterprises. The
Indian Gaming Regulatory Act (IGRA) constitutes a clear statement that
``a principal goal of Federal Indian policy is to promote tribal
economic development, tribal self-sufficiency, and strong tribal
government.''\7\ Indeed, the Indian Gaming Regulatory Act (IGRA) was
enacted to provide a statutory basis for the operation of gaming by
Indian tribes as a means of promoting tribal economic development,
self-sufficiency, and strong tribal governments.\8\ The Prairie Island
Indian Community and other Minnesota tribes have experienced
significant economic development since IGRA's enactment in 1988,
resulting in greater self-sufficiency and stronger tribal governments.
Treasure Island Resort & Casino is operated pursuant to IGRA as a
governmental enterprise for the express purpose of funding essential
governmental programs and services offered by the Prairie Island Indian
Community to its members. Revenue generated by tribal gaming has been
used to improve the infrastructure of the reservation (water treatment
facility, improved water and sewer systems), and helped provide many
essential services (healthcare, social services, educational programs,
financial planning, governmental, tribal court, and law enforcement)
that most communities take for granted.
Tribal gaming also provides thousands of jobs and other economic
opportunities in Minnesota, and contributes hundreds of millions of
dollars in salaries, wages, benefits, vendor purchases, and taxes to
Minnesota's economy every year while easing the burden on state and
county public assistance programs.9 Because tribal government-operated
gaming enterprises are so vital to tribal economic development, self-
sufficiency, and strong tribal government, Tribes and their tribal
government-operated commercial enterprises should be excluded from NLRA
coverage.
Conclusion
The National Labor Relations Act should be amended to clarify the
exempt status of Indians and Indian tribes on Indian lands. Our tribal
government-operated businesses are the lifeblood of our Tribal
Community and help support the economies of our neighbors and friends.
Our tribal government-operated businesses fund our most basic and
essential government services, including water and sewer, housing,
paved roads, health care and educational opportunities, and provide the
resources needed to revitalize our culture and traditions. Our Tribe
understands that we depend on the efforts of all of our employees for
the Tribe's growth and well-being, and we have already implemented
policies and procedures to promote the fair treatment of all of our
employees. Additional federal regulation is not warranted and could
unnecessarily increase labor costs. Therefore, Indian tribes and
businesses owned and operated by Indian tribes should be exempt from
the NLRA.
Pidamaya. Thank you. I welcome any questions you may have.
endnotes
\1\ See Worchester v. Georgia, 515, 558 (1832).
\2\ NLRB v. Natural Gas Utility District of Hawkins County, 402
U.S. 600, 604-05 (1971).
\3\ Montana v. United States, 450 U.S. 544, 566 (1981).
\4\ 42 U.S.C. Sec. 2000e(b) (Title VII) and 42 U.S.C.
Sec. 12111(5)(B)(i) (ADA).
\5\ 110 Cong. Rec. 12702 (1964).
\6\ 42 U.S.C. Sec. 2000e-2(i).
\7\ 25 U.S.C. Sec. 2701(4).
\8\ 27 U.S.C. Sec. 2702(1).
\9\ See the Statewide Economic Impact analysis compiled by the
Minnesota Indian Gaming Association at the following link: http://
www.mnindiangaming.com/template--info.cfm?page=4.
______
Chairman Johnson. Thank you, sir.
Dr. Harvey, you are recognized.
STATEMENT OF PHILIP L. HARVEY, PH.D., ASSOCIATE PROFESSOR,
RUTGERS SCHOOL OF LAW
Dr. Harvey. Thank you, Mr. Chairman, other members of the
subcommittee.
I do not intend to use my time this morning to discuss the
merits of the San Manuel decision, though I would be happy to
answer questions about it that you may have.
Instead, I would like to address the question of what
Federal law in this area should try to do, whether or not the
San Manuel decision comes out one way or the other after the
court of appeals has discussed it. In other words, regardless
of what the courts say the law is in this area, what should
Federal policy be?
I think the reason that is an interesting question is
because there really are two legitimate conflicting or
potentially conflicting goals here: the goal of honoring and
respecting the sovereignty of American Indian tribes on the one
hand; and the goal of honoring and respecting the right of
association of American workers, Indian and non-Indian alike,
on the other hand, to form, join and assist trade unions.
It is working out law and policy to reconcile these two
legitimate goals that ought to be the task that certainly the
subcommittee and the Congress should entertain. Now, the goals
that I have identified are consistent not only with deeply
rooted principles of American law, but I also want to emphasize
that they are consistent with obligations that the United
States has accepted as a nation under international human
rights law.
The United States has ratified in 1992 the International
Covenant of Civil and Political Rights, which means that it is
part of the law of the land under the Constitution, and the
International Covenant includes language that affirms both the
importance of recognizing the sovereignty and right to self-
determination of peoples. In Article I, all peoples have the
right of self-determination. By virtue of that right, they
freely determine their political status and freely pursue their
economic, social and cultural development.
It doesn't tell us exactly what the line should be in
determining the degree of sovereignty exercised by Indian
tribes, but it certainly affirms that it is an important
principle that must be kept in mind, of which Congress must be
mindful in legislating in this area.
It also, in Article XXII, says that everyone shall have the
right to freedom of association with others, the same freedom
of association recognized in Article I--excuse me, in the First
Amendment to the U.S. Constitution, including the right to form
and join trade unions for the protection of his interest. No
restrictions may be placed on the exercise of this right other
than those which are proscribed by law and which are necessary
in a democratic society in the interests of national security
or public safety or a few other things are mentioned.
So the principles of human rights law are clear. It is not
for either the central government or a local government or a
state government or a tribal government to decide whether
workers shall unionize. It is for the workers themselves. It is
an aspect of their right of association to decide that they
want to or not, and it is the role of the law to protect that
right. Protecting that right is a point at which the
sovereignty of all nations, including the Federal Government as
well as tribal nations, ends.
Now, is it possible for us to reconcile these two goals? I
think it is. We can pursue and recognize both goals
simultaneously and in fact advance both goals simultaneously by
recognizing the right of Indian tribes to legislate in this
area, to enact ordinances regulating the labor relations of
employees within their jurisdiction, but requiring that those
ordinances provide protections at least as great as those
provided by the NLRA and consistent with the international
human rights obligations that the United States has voluntarily
taken on.
That is a course of action that would both honor and
respect and indeed enhance the sovereignty of the Indian tribes
because it would invite them into an area of governance that
presently the states enjoy, but has not historically been one
in which they have been active, and would give them a status to
enforce, as well as make their law in that area, provided that
in doing so they also comported with our obligation to protect
the rights of individual workers, Indian and non-Indian alike,
in their employment.
Finally, I would like to point out that this course of
action is one that has been followed, and there is precedent
for it in American law. The Occupational Safety and Health Act
has a provision which allows states who want to to preempt the
Federal Occupational Safety and Health Act by adopting their
own occupational safety and health regulatory system, provided
it provides protections at least as great as those afforded by
OSHA.
The courts enforce, the administrative bodies deciding
whether or not the states have satisfied that condition, and of
course I think that is an essential characteristic of any
workable system because it is ultimately the courts that we
rely on to tell us where those appropriate laws have been
drawn.
So I think that the model that we find in OSHA could easily
be adapted to solve this problem by giving Indian tribes the
right to preempt the NLRA, provided they do so with local
ordinances that provide equal protection to the rights of their
workers.
Thank you.
[The prepared statement of Dr. Harvey follows:]
Prepared Statement of Philip L. Harvey, Associate Professor of Law and
Economics, Rutgers School of Law
The National Labor Relations Board (NLRB or Board) decision in San
Manuel Indian Bingo and Casino, 341 N.L.R.B. 138 (2004), invites
reflection on how federal law should honor the possibly competing goals
of properly respecting the sovereignty of American Indian tribes and
the right of Indians and non-Indians alike to form, join and assist
trade unions. My statement will address that issue, with emphasis on
the principles that I believe should guide a possible legislative
response to the case. My general point will be that the Congress can
and should seek to advance both the goal of enhancing tribal
sovereignty and the goal of protecting the associational rights of
Indian and non-Indian workers. It can best do this, I suggest, by
granting Indian tribes the right to preempt NLRB jurisdiction by
adopting labor relations ordinances, ultimately enforceable in the
federal courts, that afford rights to their employees that are at least
as protective as those afforded by the NLRA and which also are
consistent with the human rights obligations of the United States.
Respecting the Sovereignty of American Indian Tribes and the Right of
Association of Indian and Non-Indian Workers
(1) The goal of any legislative response to the San Manuel case
should have two objectives. Rather than seeking to reaffirm or enhance
the sovereignty of Indian tribes at the expense of employee rights or
to reaffirm or enhance employee rights at the expense of tribal
sovereignty, the Congress should seek to enhance both tribal
sovereignty and the associational rights of both Indian and non-Indian
workers. Moreover, it should do this whether or not the Board's order
in San Manuel is enforced by the courts.
(2) This dual goal is consistent with long-standing principles of
American law. The sovereignty that Indian tribes are recognized to
possess is rooted in their history and affirmed in treaties the federal
government has concluded with them. While opinions may differ as to the
nature and extent of that sovereignty in particular instances, I
believe there is broad agreement that enhancing the sovereignty of
Indian tribes and expanding their capacity to address the needs of
their members will serve the interests of both tribal members and the
broader American public of which they form a part. A commitment to
protecting the right of workers in the United States to form, join and
assist trade unions also is deeply rooted in American law--most notably
in the enactment of the NLRA--and while strong disagreements may exist
over the proper boundaries of those rights, I believe there is broad
agreement that the public interest is served by their continued
protection.
(3) This dual goal also comports with international human rights
standards that the United States has committed itself to observing. The
International Covenant on Political and Civil Rights (ICCPR), U.N. Doc.
A/6316 (1966), which the United States ratified in 1992, affirms the
right of all peoples to ``self-determination,'' to ``freely pursue
their economic, social and cultural development,'' and to ``freely
dispose of their natural wealth and resources.'' ICCPR, art. 1. While
this language does not dictate the nature or extent of the sovereignty
American Indian tribes should enjoy, it does underscore the fact that
they are entitled, as a matter of right, to special deference by virtue
of their unique historical status within the United States.
The ICCPR also provides that ``[e]veryone shall have the right to
freedom of association with others, including the right to form and
join trade unions for the protection of his interests'' and that ``[n]o
restriction may be placed on the exercise of this right other than
those which are prescribed by law and which are necessary in a
democratic society in the interests of national security or public
safety, public order, the protection of public health or morals or the
protection of the rights and freedoms of others.'' ICCPR, art. 22. As
with the right to self determination recognized in Article 1 of the
ICCPR, the right of association recognized in Article 22 does not
dictate the specific legal rights workers must be accorded, but it does
underscore that the United States has a legal duty to guarantee these
rights to all persons, including individuals employed at enterprises
owned and operated by Indian tribes.
Article 2 of the ICCPR makes this clear. It provides that ``[e]ach
State Party to the present Covenant undertakes to respect and to ensure
to all individuals within its territory and subject to its jurisdiction
the rights recognized in the present Covenant without distinction of
any kind, such as race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or other
status.'' The United States has assumed a duty under the ICCPR to
protect the right of both Indian and non-Indian workers employed in
tribal enterprises to form, join and assist trade unions, and any
attempt to accord them a lesser level of protection than other workers
in the United States would likely violate this duty.
The United States also has an obligation ``arising from the very
fact of [its] membership'' in the International labor Organization
(ILO) `` to respect, to promote and to realize, in good faith and in
accordance with the Constitution [of the ILO], the * * * freedom of
association and the effective recognition of the right to collective
bargaining.'' ILO Declaration on Fundamental Principles and Rights at
Work, 86th Session, Geneva, June 1998 (the ILO Declaration) (emphasis
added). This obligation (i.e., compliance with the ILO Declaration)
subsequently has been incorporated into the Inter-American Democratic
Charter, OAS Doc. OEA/SerP/AG/Res. 1 (2001), and both the US-Chile Free
Trade Agreement (US-Chile FTA), Pub. L. No. 108-77, 117 Stat. 909, 911
(2003), and the US-Singapore Free Trade Agreement (US-Singapore FTA),
Pub. L. 108-78, 117 Stat. 948 (Sept. 3, 2003).
(4) I am not suggesting that these obligations create any legally
enforceable rights for American workers either on or off tribal lands.
The United States ratification of the ICCPR, for example, expressly
noted that the rights recognized in the Covenant should not be
considered self-executing, and neither the US-Chile FTA nor the US-
Singapore FTA appear to contemplate the creation of self-executing
labor rights either. Still, as duly ratified treaties of the United
States, these agreements are part of the ``supreme Law of the Land,''
U.S, Const. art. VI, Sec. 2., and they impose obligations on the
federal government that Congress should feel bound to fulfill.
For example, both the US-Chile FTA and the US Singapore FTA contain
virtually identical provisions, pursuant to which ``[t]he Parties
reaffirm their obligations as members of the International Labor
Organization (ILO) and their commitments under the ILO Declaration on
Fundamental Principles and Rights at Work and its Follow-up (1998).
Each Party shall strive to ensure that such labor principles and the
internationally recognized labor rights set forth in Article 18.8 are
recognized and protected by its domestic law * * * [E]ach Party shall
strive to ensure that its laws provide for labor standards consistent
with the internationally recognized labor rights set forth in Article
18.8 and shall strive to improve those standards in that light.'' US-
Chile FTA, art. 18.1.1 & 18.1.2. The ``internationally recognized labor
rights set forth in Article 18.8'' include ``(a) the right of
association'' and ``(b) the right to organize and bargain
collectively.''
The Congress, of course, may decline to implement these provisions,
but in so doing, it would cause the United States to default on its
international obligations--something I presume most Members would be
loathe to do. Indeed, there are probably no international obligations
that it is more important for the United States to honor than its human
rights obligations.
My point is simple. When the Congress considers legislation that
touches on either the sovereignty of American Indian tribes or the
rights of workers to form, join and assist trade unions, it should be
mindful of and seek to satisfy the human rights obligations the United
States has assumed with respect to the subject matter of the proposed
legislation. In this instance, that means being mindful of and seeking
to satisfy the United States' obligation to honor both the rights of
American Indian Tribes arising out of their limited sovereignty and the
associational rights of all persons in the United States referenced in
the ICCPR and the ILO Declaration.
Possible Legislative Responses to San Manuel
(5) The bill which is the subject of this hearing (HR 16 IH) is
inconsistent with the dual goals I have suggested should be the object
of any legislative response to the San Manuel case, and it also is
inconsistent with both the policy goals embodied in U.S. labor law and
the human rights obligations the United States has assumed.
The bill is inconsistent with the dual policy goals I have
identified because it seeks to extinguish one (protecting the right of
association) for the sake of honoring the other (respecting the
sovereignty of Indian tribes). It is inconsistent with the policy goals
embodied in U.S. labor law, because it would fail to guarantee
protection of the rights enumerated in Section 7 of the NLRA for both
Indian and non-Indian employees who otherwise might be subject to the
jurisdiction of the NLRB, and it would fail to maintain the level
playing field and equality of bargaining power that the NLRA seeks to
maintain among and between employers and employees engaged in
interstate commerce. Finally the statute would be inconsistent with the
human rights obligations of the United States because it would not
guarantee the right of association of persons employed by tribal
enterprises operating on tribal land.
(6) A better legislative strategy, in my view, would be one that
sought to honor both the sovereignty of Indian tribes and the right of
association of their employees. The best way to achieve these dual
goals in my view, would be to grant Indian tribes the right to enact
and administer labor relations ordinances on their own lands that would
preempt the jurisdiction of the NLRB, but only on condition that the
legal regimes they establish are at least as protective of the
associational rights of their employees as the NLRA, and that they also
conform with the obligations of the United States under the ICCPR and
ILO Delcaration.
Although these objectives could be at least partly achieved by
amending Section 10 of the Act to permit the Board to enter into the
same kind of cessionary agreements with Indian tribes that it is now
authorized to enter into with States and Territories, legislation along
those lines would, I believe, unnecessarily limit the authority of
Indian Tribes to establish legal regimes more protective of the
associational rights of their employees than the NLRA, and it also
would leave the Board with the unilateral authority to enter or not to
enter such cessionary agreements.
A strategy that would more fully honor the sovereignty of Indian
tribes while also allowing for enhanced protection of the right of
association of tribal employees, would be to add a provision to the
``Limitations'' sections of the NLRA (presently Sections 13-18) that
would permit tribes to preempt the NLRA by adopting labor relations
ordinances and enforcement regimes that provided legal protections for
the right of association of their employees that are equal to or
greater than those provided by the NLRA and which also conform to the
internationally recognized labor rights referenced in the ICCPR and the
ILO Declaration. Approval of a tribal labor relations regime could be
vested in the Board to ensure that the tribal plan complied with these
requirements, and the Board's decision in that regard could be made
reviewable by the Circuit Courts of appeal. Enforcement of the rights
established pursuant to a tribal plan would be vested in the tribes
themselves, with the U.S. Courts of Appeal being given jurisdiction to
review cases in which a complaining employee asserts that s/he has not
been accorded rights at least equal to those afforded under the NLRA
and/or consistent with internationally recognized labor rights.
Such legislation would enhance the right of association of tribal
employees by guaranteeing them protection at least equal to that
afforded by the NLRA, and it also would enhance the sovereignty of
American Indian tribes by authorizing them to develop and administer a
labor relations regime of their own devising in conformity with both
U.S. and internationally recognized labor standards.
(7) This legislative strategy is not only workable, but there is
precedent for it in the statutory design of the Occupational Safety and
Health Act (OSHA). Section 667 of OSHA establishes a mechanism whereby
States may ``assume responsibility for development and enforcement
therein of occupational safety and health standards,'' 29 USC
Sec. 667(b), provided the proposed regulatory regime ``will be at least
as effective in providing safe and healthful employment and places of
employment as the standards promulgated under section 6555 of this
title which relate to the same issues,'' id. Sec. 667(c)(2). Authority
to approve and monitor state plans pursuant to this provision is vested
in the Secretary of Labor, and the Secretary's decisions in that regard
are made reviewable in the Circuit Courts of Appeal, id. Sec. g.
OSHA does not grant this preemptive right to Indian tribes, but the
reverse preemption model it embodies could be adapted quite easily for
incorporation in the NLRA and applied to Indian tribes (and possible to
states as well). The Congress need not choose between honoring the
sovereignty of Indian tribes and protecting the associational rights of
American workers. It can and should do both.
______
Chairman Johnson. Thank you, sir.
Governor Garcia, you are recognized.
STATEMENT OF HON. JOE GARCIA, GOVERNOR, PUEBLO OF SAN JUAN, NEW
MEXICO
Mr. Garcia. Good morning, everyone.
Greetings from Ohkay Owingeh, formerly known as San Juan
Pueblo, in New Mexico. Good morning, Mr. Chairman, Chairman
Johnson, Ranking Member Andrews and all of the committee
members. Thank you for being here. Thank you for allowing me to
testify today.
I would also like to thank personally Congressman Hayworth,
the sponsor of H.R. 16, and Congressman Kildee, who happen to
be the co-chairs of the Native American Caucus. Thank you.
At the outset, let me say that the tribal leaders
throughout the country recognize the contributions that the
labor unions have made to working people in the United States.
However, today I am here as Governor of Ohkay Owingeh and the
president of NCAI in support of H.R. 16 because it recognizes
the sovereign governmental rights of Indian tribes to make
their own labor policies based on the conditions on their
reservations.
H.R. 16 would restore the intent of Congress that tribal
governments should not be treated as private employers under
the National Labor Relations Act. The National Labor Relations
Board has tried to create a false distinction between what it
thinks are the governmental functions of the tribes, such as
health care and the commercial activities of the tribe such as
gaming enterprises.
We believe the Indian Gaming Regulatory Act is quite clear
that tribal gaming is a government activity to raise revenue
for tribal government functions. Indian gaming is much more
akin to a state lottery than to commercial gaming. My tribe,
Ohkay Owingeh, has been involved in litigation over labor
issues.
In 2002, the 10th Circuit Court of Appeals affirmed the
power of the tribe, of my pueblo, to outlaw forced union
membership. In that case, the NLRB wanted to force every
employee working for a tribally owned and operated sawmill on
pueblo land to support a certain union. The tribal council felt
strongly that the tribal council should make the labor policy
on tribal lands. Many of our tribal members have very low
incomes, and we did not feel that they should be forced to pay
union dues. By a nine-to-one margin, the 10th Circuit agreed.
More broadly, there are at least four ways that the
application of the National Labor Relations Act will adversely
affect tribal sovereignty.
First, guaranteeing tribal employees the right to strike
would threaten tribal government services. Federal employees
and state employees do not have the right to strike because
government services are too important to the public.
On most reservations, there is only one major employer, and
it is a tribal enterprise. We don't have an effective tax base
yet. The tribal enterprise is often the only major source of
tribal revenue, so it must keep operating in order to keep the
schools open and the police department functioning, as a couple
of examples. Allowing unions the right to strike would give
outside forces unreasonable leverage over the tribal
government.
Second, treating Indian tribes as private employers would
interfere with tribal authority to require Indian preference in
hiring. The vast majority of Indian tribes have laws requiring
employers on-reservation to give preference to Indians. This
right is protected by Title VII of the Civil Rights Act and
affirmed by the Supreme Court.
Preference laws are important because 50 percent of Indians
residing on reservations are unemployed. Indian tribes should
not be required to bargain with a union to retain their Indian
preference laws.
Third, treating Indian tribes as private employers would
interfere with the tribal power to exclude non-members. The
power to exclude is one of the most fundamental powers of
tribal government. However, if the NLRA applies to tribes as
employers, rights to exclude would be in jeopardy. For example,
a hearing on arbitration could lead to reinstatement and return
of employees that the tribe had fired and banned from the
reservation for misconduct.
Fourth, and finally, a union with many tribal members could
interfere with tribal government internal politics. On large
reservations, the majority of the employees are tribal members.
A powerful union leader could manipulate votes in tribal
elections. The union could strike immediately before a tribal
election. The union could demand health care benefits that are
better than other tribal members. Because of the small size of
tribal communities, unions could dominate tribal politics in a
way that would benefit union members, but hurt the tribe.
In conclusion, I want to reiterate that Indian tribes
support strong relationships with their employees. Tribal
enterprises have not succeeded by fighting with their
employees, but by building partnerships. But this partnership
has to be founded on the recognition that a tribe is a
government and the labor policies must come from within the
tribe's government, rather than being imposed from the outside.
I am confident that tribal leaders want to work with labor
and with Congress to resolve these issues to preserve tribal
sovereignty and get back to work on building better lives for
our tribal members and our employees.
I thank the committee for the opportunity to appear today
and would be happy to answer questions if you have any. Thank
you.
[The prepared statement of Mr. Garcia follows:]
Prepared Statement of Hon. Joe Garcia, President of the National
Congress of American Indians and Governor of Ohkay Owingeh (San Juan
Pueblo)
Introduction
Good morning Chairman Johnson, Ranking Member Andrews, and all of
the distinguished members of this Committee. Thank you for the
invitation to testify today and for your commitment to Indian people
and for upholding the trust and treaty responsibilities of the federal
government. I would also like to thank Congressman J.D. Hayworth, the
main sponsor of H.R. 16, and Congressman Dale Kildee, who joined Mr.
Hayworth in urging that this hearing be held.
My name is Joe Garcia, I am the President of the National Congress
of American Indians (``NCAI''), and I am also the Governor of Ohkay
Owingeh (formerly known as the Pueblo of San Juan). For those
unfamiliar with the NCAI, it is the oldest, largest, and most
representative Indian tribal organization in the nation. The NCAI was
founded in 1944 in response to federal ill-considered policies
affecting Indian tribes then being debated in Congress. These
policies--known as Tribal Termination--were disastrous for Indian
tribes and Indian people and only recently have Indian communities
resurrected their governments and their economies.
There are 562 Indian tribal governments in the United States, and
we enjoy demographic, cultural, political, and economic diversity like
no other communities in our great nation. It is a mistake to see Indian
country as monolithic and subject to one-size fits all Federal
policies, as that envisioned lately by the National Labor Relations
Board.
Tribal Labor Matters Best Left to Indian Tribes
At the outset, I want to say that tribal leaders recognize and
appreciate the significant contributions that labor unions have made to
working people in the United States. Many of our people have worked as
union members on farms and in factories. We greatly appreciate the
efforts of labor unions to improve wages and working conditions.
The member tribes of NCAI have deliberated labor matters over the
years and have voiced their strong support for H.R. 16. Attached is a
copy of NCAI Resolution No. MOH-04-028, duly adopted by our membership
on June 23, 2004. Accordingly, I am here in support of H.R. 16 solely
because it confirms the sovereign governmental right of Indian tribes
to make and live by their own labor policies based on the economic and
social conditions existing on their lands. Many Indian tribes have
exercised that sovereign authority to welcome labor unions and
encourage union organization. But that is a choice for Indian tribal
governments--not Federal bureaucrats or labor leaders--to make in a way
that protects the functions of tribal government and the tribal members
living on reservation. In my testimony, I will discuss the experiences
that my Pueblo, Ohkay Owingeh, has had with labor unions, and the
broader concerns that NCAI has because of the differences between
tribal governments and private businesses in the labor union context.
H.R. 16 would restore the intent of Congress to treat tribal
governments the same as state and local governments under the National
Labor Relations Act (``NLRA''). The NLRA specifically exempts Federal,
state and local governments from its definition of ``employer.'' The
NLRA, however, is totally silent about Indian tribal governments. The
NLRA was enacted in 1935, during the Great Depression, and given the
lack of economic development on Indian reservations at that time; it is
not surprising that the law makes no reference to Indian tribes.
However, for over thirty years, the National Labor Relations Board
(``Board'') has interpreted the NLRA to include tribal governments in
its general exemption for government entities because of Congress's
intent to exempt all government entities. The Board has also ruled that
territorial governments, such as Puerto Rico and Guam, are also exempt
under NLRA.
Recently, however, the Board in San Manuel Indian Bingo and Casino,
341 NLRB 138 (2004), reversed this thirty year old precedent and
unilaterally expanded its jurisdiction to include Indian tribes, even
when the tribe is operating on reservation to raise governmental
revenue and provide employment to tribal members. Rather than treat
tribal governments like states and local governments as envisioned by
the NLRA, the Board created an artificial distinction between
``governmental'' functions of tribes, such as health care, and the
``commercial'' activities of tribes, such as a gaming. Even with this
distinction, the Board ignored Congress' recognition in the Indian
Gaming Regulatory Act, 25 U.S.C. Sec. Sec. 2701 et seq., that Indian
tribal gaming is a governmental function. Indian gaming is a government
activity because it raises revenue for tribal government functions. In
this way, Indian gaming is much more akin to state lotteries than to
commercial gaming. The NCAI believes that Congress should restore the
implicit intent in the NLRA to treat tribal governments the same as
state and local governments. If the Board's decision is allowed to
stand, then the only governments that are not exempt from the NLRA will
be tribal governments.
Statements by members of Congress at the time IGRA was passed also
make it clear that IGRA was not intended to undermine tribal government
regulatory authority on the reservation. As Senator Daniel K. Inouye,
IGRA's main sponsor and long-time Chairman of the Senate Committee on
Indian Affairs, stated on the floor shortly before IGRA cleared the
Senate:
There is no intent on the part of Congress that the compacting
methodology be used in such areas such as taxation, water rights,
environmental regulation, and land use.
On the contrary, the tribal power to regulate such activities,
recognized by the U.S. Supreme Court * * * remain fully intact. The
exigencies caused by the rapid growth of gaming in Indian country and
the threat of corruption and infiltration by criminal elements in Class
III gaming warranted utilization of existing State regulatory
capabilities in this one narrow area. No precedent is meant to be set
as to other areas. (134 Cong. Rec. S24024-25, Sept. 15, 1988)
My Pueblo, Ohkay Owingeh, has won litigation over this issue. On
January 11, 2002, the Tenth Circuit Court of Appeals, in National Labor
Relations Board v. Pueblo of San Juan, 276 F.3d 1186 (10th Cir. 2002)
(en banc), affirmed the power of my Pueblo to pass a right-to-work law
prohibiting compulsory union membership on its lands.
In that case, the Board wanted to force every employee working for
a tribally owned and operated sawmill on tribal land to financially
support labor unions. The Tribal Council, of which I am a member, felt
strongly that the Tribal Council, rather than the Board or labor
unions, should make the labor policy affecting tribal members. Many of
our tribal members have very low incomes and the Tribal Council did not
feel that they should be forced to join a labor union or pay union dues
without their consent. The Tribal Council enacted a right-to-work law
to give tribal members the right to choose whether or not to join or
financially support a labor union rather than being forced to do so.
The Board argued that my Pueblo had no authority to pass a right-to-
work law because only states and territories were allowed to do under
the NLRA. By a nine to one margin, the Tenth Circuit upheld the right
of my Pueblo to pass a right-to-work law even though Indian tribes are
not expressly mentioned in the NLRA along with states and territories.
Rather, the Tenth Circuit relied on Congress' intent to exempt all
government entities, which it ruled included tribal governments. The
important principle of this case is the Tenth Circuit's acknowledgement
that Congress intended for Indian tribal governments to be treated the
same as state and territorial governments. It is this principle that we
ask Congress to restore in the NRLA today through H.R. 16.
It is also important that the Committee understand that in many
ways Indian America is an emerging market, often with vulnerable
populations and delicate economies and that labor union policy on
Indian lands is an important aspect of economic regulation that should
be left to Indian tribal governments as a matter of self-determination
and self-sufficiency in the same way that states and local governments
are allowed to develop their own policies.
More broadly, there are at least four ways that the Board's attempt
to expand its jurisdiction into Indian country would substantially
interfere with important attributes of tribal sovereignty in ways that
have not been authorized or even considered by Congress.
First, guaranteeing tribal employees the right to strike would
preempt tribal law and threaten tribal government services. We are very
concerned that the right to strike would allow outside forces to
control tribal government decisions. On most reservations there is only
one major employer and it is a tribal government enterprise, usually a
casino or an agriculture or timber operation. Tribal enterprises are
unlike private industry and they don't have the option of bankruptcy.
It is often the only major source of tribal revenue, so it must keep
operating in order to keep the schools open and the police departments
staffed and vigilant. Allowing unions the
right to strike would give them inordinate leverage to demand
larger and larger shares of the tribal enterprise revenue, revenues
that are intended to provide desperately needed services on the
reservation.
Government services are critically important to a large segment of
the public, and the public is especially vulnerable to ``blackmail''
strikes by government employees. This is the reason that government
employees are generally barred from striking. Federal employees and
most state employees generally do not have the right to strike. See 5
U.S.C. 71 16(b)(7), 7311; DiSabatino, Who Are Employees Forbidden to
Strike Under State Enactments or State Common-Law Rules Prohibiting
Strikes by Public Employees or Stated Classes of Public Employees, 22
A.L.R. 4th 1103 (1983).
Tribal governments have as urgent a need as state or local
governments to uninterrupted performance of services to the community,
and are more vulnerable. Many tribal governments have little or no
discretionary funding other than revenue from their economic
enterprises.
Strikes against tribal enterprises that the Board dismissively
describes as ``commercial in nature--not governmental'' could easily
disrupt tribal services to a greater degree than state or local
governments because other governments can rely on the bulk of their
revenues coming from their tax base, which Tribes conspicuously lack.
The Board has made the implausible assumption that Congress intended to
expose tribal governments to strikes by tribal employees--an exposure
the Act spares other governments.
Second, treating Indian tribes as private employers under the NLRA
would interfere with tribal authority to require Indian preference in
employment. With the approval of Congress and the courts, the vast
majority of Indian tribes have laws requiring employers on reservation
to give preference to Indians in all phases of employment. Preference
laws are important because the unemployment rate on Indian reservations
is much higher than anywhere else in the country. The Bureau of Indian
Affairs estimates that 50 percent of Indians residing in Indian country
are unemployed. See Dept. of Interior, Bureau of Indian Affairs, 1997
Labor Market Information on the Indian Labor Force: A National Report,
at 4 (1998). Congress recognized and protected tribal preference laws
in Title VII of the Civil Rights Act, which excludes tribes from the
definition of ``employer'' and exempts businesses ``on or near'' Indian
reservations. In Morton v. Mancari, 417 U.S. 535 (1974), the U.S.
Supreme Court unanimously upheld this provision.
Application of the NLRA to tribal enterprises would jeopardize a
tribes' right to enforce its Indian preference laws. If tribal
employees chose a union it would become ``exclusive representative of
all the employees.'' The union would have the duty of equal treatment
and nondiscrimination among its members. The tribe would be obligated
to bargain with the union to retain its sovereign right to apply its
Indian preference laws. The union might resist the application of
Indian preference, or seek to condition its acceptance on concessions
by the tribe on other issues. Requiring a tribe to bargain to retain
its Indian preference laws seriously interferes with the tribe's core
retained rights to make and enforce its own laws. In view of Congress's
strong support of Indian preference, it cannot reasonably be assumed
that Congress intended to force tribes to bargain with unions to
preserve their Indian preference laws. Yet this is what follows from
the Board's new interpretation of the NLRA.
Third, and similarly, treating Indian tribes as private employers
would interfere with the tribal power to exclude non-members in the
employment context. The tribal power to exclude from reservation lands
is one of the most fundamental powers of tribal government and the
partial source of tribal civil jurisdiction over non-members. The power
to exclude includes the power to ``place conditions on entry, on
conditioned presence, or on reservation conduct.'' See, Merrion v.
Jicarrilla Apache Tribe, 455 U.S. 130 at 144 (1982).
However, if the NLRA applies to tribes as employers, their right to
exclude in that context would be abrogated. For example, a hearing or
arbitration required under the NLRA could lead to reinstatement and
return of employees that the tribe had fired and banned from the
reservation for misconduct. The Board makes the unreasonable assumption
that Congress intended to interfere with this core right of tribal
sovereignty.
Fourth, and finally, a union with many tribal members could
substantially interfere with tribal government internal politics. On
larger reservations the majority of the employees are tribal members. A
powerful union leader could manipulate union votes in tribal elections.
The union could strike or threaten to strike immediately before an
election. The union could demand health care benefits that are better
than other tribal members. The union could bargain to limit employment
in order to raise wages and interfere with the tribal government's
plans to employ as many tribal members as possible. Because of the
relatively small size of tribal communities, unions could sow
considerable political and social discord and dominate tribal politics
in a way that would benefit union members but operate to the detriment
of the tribe as a whole.
In conclusion, I want to reiterate that Indian tribes support
strong relationships with their employees. I was recently visiting the
San Manuel reservation for a celebration of the 20th Anniversary of the
opening of the tribe's casino. At the ceremony, the tribal council
honored the twenty-one employees who had worked at the casino for the
entire twenty years. It was more like a family reunion, as the tribal
council members hugged and thanked the employees. It was obvious that
the San Manuel Tribe treats its employees very well if they are willing
to work for 20 years as a bingo floor clerk. I also noted that San
Manuel has a positive working relationship with the union that
represents its employees.
My point is that tribal enterprises have not succeeded by fighting
with their employees; rather tribal enterprises prosper by building
partnerships with their employees that benefit all. But a partnership
with a tribal government has to be founded on the recognition that a
tribe is a government and the mechanism for setting tribal policies
must come from within the tribe's government, rather than being imposed
from the outside.
I am confident that Indian tribal leaders want to work in
partnership with labor unions and with Congress to resolve these issues
and get back to work on building better lives for our tribal members
and our employees.
I thank the Committee for the opportunity to appear today and would
be happy to answer any questions you might have.
______
Chairman Johnson. Thank you, sir.
We appreciate the testimony of all of you.
Mr. Johnson, I wonder if you could tell us more about the
rights that your workers currently enjoy without the
intercession of the NLRB?
Mr. Johnson. Thank you, Mr. Chairman.
Currently, as employees of Treasure Island Resort and
Casino, there is a process, there is a due process that is
followed in there. Our employees once they are employed, they
have a right to, if they feel like they were improperly
terminated or if their termination was wrongfully done to them,
or they feel there was something amiss, they have an option to
approach and file a grievance, a grievance which consists of a
board that will sit and hear their problems.
Because remember, at stake, when you work for a gaming
facility, you have a license that is awarded to you to work in
a gaming facility. Once that license is revoked, you are not
allowed to work in any native-owned casino throughout the
United States here.
So what we do is give them those rights to come back and
appeal their termination to the board, and they make a
determination if the policies and procedures were followed, and
the employee was either a good or bad employee, and we give
them that right through the board to either reinstate their
employment or to uphold the decision of terminating him.
Chairman Johnson. Thank you, sir.
For the members' information, we have a vote going, as you
know. I intend to continue for another 10 minutes. If we
finish, we will; if we don't, we will come back, pending your
choices.
I see there are only three of us, other than Andrews and I,
left. So Mr. Andrews, you are recognized for 5 minutes.
Mr. Andrews. Thank you, Mr. Chairman.
Mr. Johnson, I just want to ask you about the grievance
procedure you just mentioned. Who appoints the grievance board
that would hear the grievance?
Mr. Johnson. The grievance boards consist of one tribal
councilmember, the general manager, the director of that
department, and the human resource director is involved in it.
I am missing one, it would be a party of five of a board. We
always have an odd number on the board to break up that vote in
case there is a tie on a vote, so we have five members that
consist of that.
Mr. Andrews. Are all the members, though, either employed
by the employer or somehow associated with the employer?
Mr. Johnson. Yes, they are.
Mr. Andrews. OK.
Dr. Harvey, here is the concern that I have. Before I say
it, let me say, Governor Garcia, I appreciated the close of
your testimony where you indicated your willingness to work
with all parties here. I think that is very welcome and I
appreciate it very much.
The concern I have, Dr. Harvey, is let's say that an
employee that we are talking about here stands outside of her
place of employment and leaflets, and suggests that what is
going on inside by the employer is unfair and wrong.
Am I correct in assuming that if the law before the San
Manuel decision were to be restored, that is if H.R. 16 were
passed, and there were no labor ordinance with that particular
tribe, and that employee was discharged, putting aside any
constitutional arguments about that, that the discharge would
stand for leafleting and trying to organize a union? Is that
correct?
Dr. Harvey. That is correct.
Mr. Andrews. And it is further my understanding that you
proposed a solution that strikes me as something of a
compromise. Instead of the full rules of the National Labor
Relations Act applying, if I understand your testimony
correctly, what you are saying is this: The tribe would be
given the opportunity to enact a labor ordinance, and if that
labor ordinance met standards of fairness such as those that
you have outlined in your testimony, then the ordinance would
stand. It would preempt the National Labor Relations Act.
For example, let me ask you, would the right to leaflet in
pursuit of collective bargaining and organizing be one of those
standards that would be required?
Dr. Harvey. Presumably, it would, though a distinction
would probably be recognized as to where the leafleting
occurred, as presently is the case under the NLRA with respect
to private employers.
Mr. Andrews. But I assume there would be a generic standard
about the right to speak out about conditions in the workplace.
Dr. Harvey. Yes, there would have to be for the ordinance
to satisfy standards.
Mr. Andrews. And then it is your proposal that if the
ordinance satisfies the standards, it would hold? It would
preempt Federal labor law?
Dr. Harvey. Yes, not only with respect to the rules that
are applied, but also with respect to the administration of the
law. So they would be able to enforce as well as define the
law, provided that there was final court review by the U.S.
courts to determine that the rights that were implemented were
in fact in accord with the requisite standards.
Mr. Andrews. Who would you suggest would adjudicate the
question of whether the ordinances met the standards that you
have articulated?
Dr. Harvey. I think that that would be most appropriately
done following exhaustion of tribal remedies, so that the tribe
would have a set of remedies, either their court system or
arbitral system or some kind of system would finally come to a
decision, either the rights were violated or they were not. And
if the disappointed party thought that rules had been applied
that did not meet national and international standards, then
they would be permitted to appeal to the courts of appeal with
respect to that question only.
Mr. Andrews. Am I reading your testimony correctly to
conclude that it is your position that workers on Indian
reservations already have these rights by virtue of the
international conventions that we have recognized?
Dr. Harvey. Well, unfortunately, the rights recognized in
the International Covenant are not self-executing. The Senate
made that clear when they ratified it. So the issue is not
whether the rights are the basis of a lawsuit now. They are
not. The point is that Congress I think has an obligation to be
mindful of these international obligations of the United States
and make sure that the United States does not go into default.
Mr. Andrews. But would it be an accurate characterization
of your position to say that workers on reservations have these
rights? They simply don't have a means of vindicating these
rights without either National Labor Relations Act coverage or
coverage in the mode that you suggest?
Dr. Harvey. Yes. The fundamental principle in human rights
law is that people have these rights, and it is the obligation
of governments to create mechanisms to protect them. They have
the rights. We need mechanisms to protect them, mechanisms
created either by the tribes or by Congress.
Mr. Andrews. Thank you, Phil.
Chairman Johnson. Mr. Kline for a comment.
Mr. Kline. Yes, thank you, Mr. Chairman.
In the interest of time and the fact that the clock is
running down for us voting, I just would like to take 1 minute
to thank all of the witnesses for being here today. It seems
clear to me that we have an issue of sovereignty where we have
the tribes potentially being given by the San Manuel decision
even less sovereignty than state and local governments.
Clearly, the tribes have a unique situation, as very
clearly articulated by Mr. Garcia, where you are restricted in
where you can move to. You have requirements to employ tribal
members. So you are even further restricted and need, it would
seem to me, even more latitude.
So, a very interesting hearing. Thank you very much for
joining us today.
I yield back, Mr. Chairman.
Chairman Johnson. Mr. Kildee for a comment.
Mr. Kildee. Very briefly. You may want to reply in writing
to this, and we will submit, without objection, some questions
in writing.
In your testimony, you seem to indicate that H.R. 16, in
that the United States would default on its international
obligations. Do you believe that the United States is currently
fulfilling its international obligations in light of the fact
that NLRA expressly exempts state and local governments,
municipalities and cities, from NLRA activity, even in their
economic enterprises?
Dr. Harvey. It certainly isn't default by virtue that it
exempts them. It would be in default only if the laws of those
states and municipalities failed to provide the requisite
protection and the Federal Government failed to take action.
Mr. Kildee. And they do in the South. In the South, they
forbid public employees. I have a bill in to try to get police
and fire the right to bargain collectively in the South. So if
some of the southern states would be in violation of the
international law that you referred to, the tribes might be in
violation.
Dr. Harvey. Yes. I think that is true, and not only true
with respect to state law, but also Federal law because there
are groups of private employees that are not covered by the
NLRA, farmworkers for instance. So that the obligation under
international law to extend these protections to them has also
not been fulfilled.
Mr. Kildee. OK. I will submit this to you in writing also,
Mr. Chairman, without objection.
Chairman Johnson. No objection.
I want to thank the witnesses for your valuable time and
testimony, and both the witnesses and members for their
participation.
Let me just ask you, where is the pueblo in New Mexico that
you are from?
Mr. Garcia. Ohkay Owingeh, also known as San Juan Pueblo,
is located between Santa Fe and Taos. It is about 40 miles
north of Santa Fe.
Chairman Johnson. OK. Well, I have a place in Angel Fire,
and I know where Santa Fe is. My son is out there.
Mr. Garcia. Come by and stop by.
[Laughter.]
Chairman Johnson. Thank you all for your participation.
If there is no further business, the subcommittee stands
adjourned.
[Whereupon, at 11:41 a.m., the subcommittee was adjourned.]
[Additional materials submitted for the record follow:*]
---------------------------------------------------------------------------
*Submitted and placed in permanent archive file, San Manuel Indian
Bingo and Casino, 341 N.L.R.B. 1055(2004), http://www.nlrb.gov/nlrb/
shared--files/decisions/341/341-138.pdf. (Submitted for the record by
Chairman Sam Johnson).
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[The prepared statement of Mr. Marchand follows:]
Prepared Statement of Hon. Michael Marchand, Chairman, Confederated
Tribes of the Colville Reservation
Introduction
Good morning Chairman Johnson, Vice-Chairman Kline, Congressman
Andrews and distinguished members of the Subcommittee. My name is
Michael Marchand and I am the Chairman of the Colville Business
Council, the governing body of the Confederated Tribes of the Colville
Reservation (``Colville Tribe'' or ``Tribe''). Today, I am pleased to
provide our views on H.R. 16, the ``Tribal Labor Relations Restoration
Act of 2005,'' and the National Labor Relation Board's decision in San
Manuel Indian Bingo and Casino (``San Manuel''), which was the impetus
for this legislation.
As explained in more detail below, the San Manuel decision
constitutes an unwarranted and serious infringement of Indian tribes'
right to govern their own affairs. If ultimately upheld on appeal, the
decision will only result in uncertainty for Indian tribes in their
regulation of on-reservation employment. We believe that H.R. 16 is an
important first step in addressing these concerns and commend
Congressman Hayworth for his leadership and attention to this important
issue for Indian tribes.
Background on the Colville Tribe
The Colville Indian Reservation is located in north central
Washington State and comprises over 1.4 million acres of trust and
allotted lands. Although now considered a single Indian tribe, the
Confederated Tribes of the Colville Reservation is, as the name states,
a confederation of 12 smaller aboriginal tribes and bands from across
eastern and central Washington. A majority of our 9,200 tribal members
live on the reservation.
Our location is quite remote from the main commercial corridors in
Washington State. The nearest entrance to an interstate highway is
approximately 100 miles from Nespelem, the seat of our tribal
government. Our reservation encompasses lands within Okanogan and Ferry
counties,\1\ the economies of which are primarily dependent on
agriculture, limited mineral development, and timber. The Federal
government, on its own behalf or on behalf of the Colville Tribe, holds
the majority of the land in both counties.
---------------------------------------------------------------------------
\1\ The Colville Tribe also exercises governmental authority over
off-reservation allotments in a number of other counties.
---------------------------------------------------------------------------
Notwithstanding these challenges, the Colville Tribe has become a
major contributor to these local economies. The Colville Tribe,
together with its corporate entity, the Colville Tribal Enterprise
Corporation, employs over 2,000 people, many of whom are non-Indians.
Many of our tribal member employees own fee property off the
reservation and all contribute taxes to the local economy. As one of
the largest employers in north central Washington, our tribal payroll
contributes substantial sums to our non-Indian neighbors as well.
The San Manuel Decision
As the Subcommittee knows, on May 28, 2004, the National Labor
Relations Board in San Manuel reversed course on 30 years of precedent
and held that the NLRA presumptively applies to Indian tribes. San
Manuel involved an unfair labor practice complaint brought against an
on-reservation, tribally controlled casino.
In its decision, the Board established a new standard: the NLRA
will apply to Indian tribes and on-reservation tribal employers unless
application would (1) ``touch exclusive rights of self-government in
purely intramural matters''; (2) would abrogate treaty rights; or (3)
policy considerations--such as the commercial or governmental nature of
the employer's business, the number of Indian employees employed or the
percentage of the employer's sales to non-Indians--weigh against the
Board's exercise of jurisdiction.
Applying this new standard to the San Manuel Tribe's casino, the
Board concluded that policy considerations weighed in favor of
asserting jurisdiction. In doing so, the Board noted that ``the casino
is a typical commercial enterprise, it employs non-Indians, and it
caters to non-Indian customers.''
The San Manuel Decision Conflicts With Tribal Sovereignty
The Colville Tribe is regularly approached by labor unions and,
though the Tribe is not categorically opposed to the concept of unions,
it is of the firm opinion that it as a tribal government has the
inherent authority to decide in the first instance whether, to what
extent, and under what circumstances outside interests may influence
the employment relationship between the Colville Tribe and its
employees.
Application of the NLRA to Indian tribes interferes with this
relationship. For example, under certain conditions Federal law allow
Indian tribes to exercise an employment preference for members of
Federally recognized Indian tribes. Most Indian tribal governments
adhere to this practice, commonly referred to as ``Indian preference,''
and have enacted tribal ordinances and regulatory regimes implementing
it.\2\ In our case, the Colville Tribe invests substantial resources to
ensure that we hire qualified tribal members when vacancies within the
Tribe or our tribal enterprises become available.
---------------------------------------------------------------------------
\2\ The Bureau of Indian Affairs, an agency of within the
Department of the Interior, also exercises Indian preference for
certain positions. The U.S. Supreme Court upheld this practice in
Morton v. Mancari, 417 U.S. 535 (1974).
---------------------------------------------------------------------------
If qualified tribal members are not available to fill certain
vacancies, the Tribe has in some cases hired individuals on an interim
basis to work with and train tribal members for eventual replacement.
Throughout the years, many of the top management positions in the
Tribe's enterprises have been held by tribal members who ascended to
those positions after completing training programs. All of this has
been made possible in part by our ability to exercise Indian
preference.
Application of the NLRA to Indian tribes jeopardizes the entire
concept of Indian preference. If the NLRA were to apply to Indian
tribes, tribes' Indian preference policies would almost certainly be
subject to negotiation during collective bargaining and unions could
categorically refuse to agree to any part of the policies. Such an
impasse in negotiations would raise the possibility that arbitrators
would decide whether or not Indian preference would be permissible or
even strikes. Such a perverse result would turn back the clock on a
system that has benefited Indian tribes and tribal economies for
decades.
Under San Manuel the NLRA Could Apply to a Broad Range of Non-Gaming
Tribal Employers
While the San Manuel case involved a tribal casino, if ultimately
upheld the decision will almost certainly be construed by some to
encompass non-gaming economic enterprises--or even tribal governments
themselves.
The Colville Tribe operates small casinos. Given our rural
location, however, our gaming revenues have rarely approached $25
million in any fiscal year and have declined steadily over the past
several years. Unlike some Indian tribes with gaming facilities located
near major metropolitan areas or interstates, we are not a wealthy
gaming tribe. Even so, our gaming revenues have allowed us to expand
governmental services to our people and provide jobs to Indians and
non-Indians alike in an otherwise economically-depressed area.
None of this would matter under the San Manuel decision. Our small
rural gaming facilities would be treated the same as those facilities
operated by the wealthiest of Indian tribes. While national unions may
adhere to the common misconception that all Indian tribes with gaming
are ``rich,'' the Colville Tribe is living proof that this is not the
case.
To the contrary, the Colville Tribe's primary source of income is
timber. We own two saw mills that produce dimensional lumber, plywood
and veneer. Collectively, these two saw mills support several hundred
Indian and non-employees. Under the San Manuel decision, these non-
gaming enterprises that provide the backbone of our tribal economy
might also be covered by the NLRA.
Clarity Is Needed on Application of the NLRA to Indian Tribes
The San Manuel decision raises more questions that it answers. Most
notably, while the decision presumes that the NLRA applies to Indian
tribes, how the three exceptions the Board established would apply in
practice is uncertain at best. For example, the decision implies that
commercial activities are more likely to be excepted from application
of the NLRA than governmental activities. However, the decision does
not rule out the possibility that the NLRA might also apply to critical
health and safety personnel such as tribal police officers and
firefighters. This leaves open the possibility that these critical
services could be interrupted in the event of a strike. The
governmental exemption in Section 2(2) of the NLRA recognizes that
strikes by public employees would jeopardize public safety and allows
governments to determine for whether and to what extent their employees
should be allowed to strike. At the very least, Indian tribal
governments deserve the same level of certainty when providing for the
safety of their people.
The Colville Tribe Sees H.R. 16 as a Good Starting Point
Again, we applaud Congressman Hayworth for introducing H.R. 16 and
believe that the legislation is good starting point for providing much
needed clarity on this issue. The legislation would exempt from the
NLRA those tribally owned and controlled businesses that are located on
land held in trust status (or subject to a restriction against
alienation) by the United States for the benefit or an Indian tribe or
an individual Indian.
The Colville Tribe hopes that the Committee will expand the scope
of H.R. 16 to include a categorical exemption for Indian tribal
governments. The implications of San Manuel are real and have the
potential not only to infringe on Indian preference and tribal
sovereignty, but also on the ability of Indian tribes to ensure the
safety of their people.
The Colville Tribe appreciates the opportunity to provide this
statement and looks forward to working with the Committee on this
important legislation.
______
[Letter of support from Mr. Bozsum follows:]
August 4, 2006.
Hon. Sam Johnson,
Chairman, Subcommittee on Employer-Employee Relations, Committee on
Education and the Workforce, U.S. House of Representatives,
Washington, DC.
Hon. Rob Andrews,
Ranking Member, Committee on Education and the Workforce, U.S. House of
Representatives, Washington, DC.
Dear Chairman Johnson and Congressman Andrews: On behalf of the
Mohegan Tribe I am pleased to submit this statement for the record in
support of the Tribal Labor Relations Restoration Act of 2005 (H.R.16),
legislation introduced by Congressman J.D. Hayworth. I respectfully
request that this statement be included in the Hearing Record for the
legislative hearing on H.R. 16 held on July 20, 2006.
Introduction to the Mohegan Tribe. The Mohegan Tribe of Connecticut
(the ``Tribe'') is a sovereign, federally-recognized Indian nation with
a reservation on the Thames River near Uncasville, Connecticut. The
Tribe gained Federal recognition in March 1994, and currently includes
nearly 2,000 members, most of who reside in Connecticut near ancestral
Tribal lands. The Tribe is governed by its Constitution, re-affirmed in
April, 1996. The nine-member Tribal Council has executive and
legislative responsibilities not otherwise granted to the Council of
Elders. Members serve four year, staggered terms. The Tribe exercises
full civil jurisdiction and concurrent criminal jurisdiction over its
reservation lands.
For the reasons set out below, the Tribe has a keen interest in
H.R.16 and the impetus for the bill: the 2004 decision by the National
Labor Relations Board (``NLRB'') in San Manuel Indian Bingo and Casino.
As the Committee may know, the Tribe owns and operates a large resort
casino--the Mohegan Sun--that is one of the largest employers in the
State of Connecticut with nearly 10,000 jobs created and sustained by
the operations of the casino, hotel, and related amenities.
The Tribe Strengthens the Area's Economic, Employment, and Cultural
Foundations. Along with Foxwoods, the hotel and casino complex operated
by the Mashantucket Pequot Tribal Nation, the Tribe is one of
Connecticut's largest source of tax revenue, and the second largest
contributor to the State budget after the Federal government. In
addition to these direct benefits to the State and our employees, the
Tribe pays millions of dollars each year to other Connecticut
companies, creating hundreds of additional jobs. By all accounts, the
Tribe's activities in southeast Connecticut are economically
significant and as the following makes clear, are overwhelmingly
positive:
<bullet> Mohegan Sun and Foxwoods, along with the two tribal
governments and the Tribe's other economic enterprises, employ more
people in Connecticut than any other single entity.
<bullet> The 25% slot payment--one we willingly pay--contributed
more than $400 million to the State's revenues in 2003. That's not only
more than any other state employer pays the state; it is more than all
other Connecticut corporations pay in corporate tax combined.
<bullet> Last year, Mohegan Sun paid more than $4 million to
Connecticut companies for products and services. We assume Foxwoods
paid nearly as much. Those payments support hundreds of Connecticut
jobs.
<bullet> The State's own Tourism Office recently announced the
results of a survey revealing that the main reason tourists come to
Connecticut is to visit the two casinos, officially recognizing that
Indian gaming is driving the rise of tourism, Connecticut's fastest
growing industry.
<bullet> In the early 1990's, Connecticut was the only state in the
union whose population was decreasing. Since the casinos opened and
began creating thousands of new jobs, that trend has reversed, and the
state is growing again.
<bullet> State-sponsored research in the 1990s predicted that
southeastern Connecticut would have an unemployment rate over 20% by
the year 2000. Today, that rate stands at less than five percent
because of our operations.
<bullet> In 2001, when the Tribe began thinking about its future
water needs, we didn't devise our own solutions. We brought together a
coalition of leaders and planners from Norwich and other surrounding
towns, and coordinated the development of a long-term water management
plan that will ensure the region's water supply for decades.
<bullet> Mohegan Sun and Foxwoods contribute millions of dollars to
state non-profit causes every year, funding programs for everything
from Connecticut Special Olympics to local youth organizations.
When Indian gaming first began to blossom, many people--Indian and
non-Indian alike--sounded the clarion call that gaming would taint
Native beliefs, render Indian people ``less Indian'' and in the process
destroy the foundations of Indian culture. I think it obvious that just
the opposite has happened: gaming has filled tribal coffers and made
possible a variety of cultural preservation activities including
language retention, sacred site protection, and a host of others.
Buoyed by a healthy revenue stream, the Tribe is making an
extensive effort to preserve and strengthen its cultural traditions,
thus ensuring that its heritage and history live on. The heart of this
effort was and remains a small museum on Mohegan Hill in Uncasville,
Connecticut. The museum was created in 1931 by Tribal leader John
Tantaquidgeon and maintained by his son Harold and daughter Gladys, who
served as Tribal medicine woman until her passing in 2005.
The Tribe's Labor Policies Are Pro-Worker and Comport with
Fundamental Fairness. We offer two extremely generous health care plans
to our employees one of which continues to be without cost to them. To
unsure fairness, we have a review process in which employees can
dispute termination and disciplinary action, which includes colleagues
and a peer of their choice. We offer one free meal per day to every
full time employee as well as unlimited salads and cold service items
thought their work day. Prior to expanding our resort we built a state
of the art employee center which includes a computer lab, bank, dry
cleaner, pharmacy, and a wellness center.
The NLRB Decision is an Erosion of Fundamental Tribal Rights. As
the Committee knows, the National Labor Relations Act (``NLRA'') is the
main Federal law regulating relations between unions and employers and
guarantees the right of employees to organize (or not to organize) a
union and to bargain collectively with their employers. The NLRA
applies to ``employers,'' and section 2(2) of the NLRA defines
``employer'' as ``any person acting as an agent of an employer,
directly or indirectly,'' but does not include the United States, State
governments, or political subdivision thereof.
On May 28, 2004 the NLRB issued its decision in San Manuel Indian
Bingo and Casino, 341 NLRB 138 (2004), concerning application of the
NLRA to an on-reservation casino operated by the San Manuel Band of
Mission Indians. The Board previously held in decisions dating back to
the 1970s that on-reservation, tribally-controlled businesses were
political subdivisions of the United States and therefore exempt under
section 2(2) of the NLRA. Overruling 30 years of its own precedent, the
NLRB decided that the NLRA presumptively applied to the San Manuel
Band's casino and established a new standard for determining whether
the Board will assert jurisdiction over Indian tribes or on-reservation
tribal businesses. On October 5, 2005, the Board affirmed its May
ruling and in the wake of the affirmation, the San Manuel Band has
decided to appeal the decision in Federal court.
The San Manuel Indian Bingo and Casino decision makes clear that
the Board will presume that the NLRA applies to Indian owned and
operated businesses, including those operated by tribal governments,
unless they fall within one of the limited exceptions. This means that,
in the view of the Board, tribal employers are presumptively required
to accommodate union activity under the NLRA and negotiate and enter
into collective bargaining agreements with non-Indian unions. This is
clearly in opposition to fundamental tribal self-governance.
The Hayworth Bill Is Necessary to Protect Tribal Authority. H.R. 16
would restore the original intent of Congress that tribal governments
should not be treated as private sector employers under the NLRA. For
over forty years, Federal courts have interpreted the NLRA to include
tribal governments in its general exemption for government entities
because Congress clearly intended to exempt all government entities.
Unlike private businesses, governments cannot safely interrupt their
operations because of labor strife nor should they be forced to
negotiate fundamental matters of jurisdiction.
In addition to recapturing the intent of Congress, H.R. 16 also
rests on the solid, well-respected principle of Indian Self
Determination. Since July, 1970, when President Nixon issued his
Special Message to Congress on Indian Affairs, the goals of Federal
Indian policy have straightforward and successful: to strengthen Indian
tribal governments and create vigorous tribal economies. These goals,
taken together, represent the policy of Indian Self Determination. In
the intervening 35 years, much progress has been made on both scores
and year-to-year, Indian tribes increase the sophistication of their
governmental operations and succeed in fostering economic growth and
job creation on their lands.
H.R. 16 is a necessary and proper exercise of congressional action
because it confirms the sovereign governmental right of Indian tribes
to make and live by their own labor policies based on the economic and
social conditions existing on their lands. Many Indian tribes exercise
that sovereign authority to welcome labor unions and encourage union
organization. This choice is a choice for sovereign Indian tribes, and
not for the NLRB, labor bosses, or Federal bureaucrats. Both legally
and practically, Indian tribes are responsible for the care and well-
being of their members and their employees and decisions that surround
the question of unionization must be made in a way that protects the
functions of tribal government and the tribal members living on
reservation.
I want to thank you for your willingness to hold the hearing on
H.R. 16 and to listen to the views of Indian tribes from across our
nation. If you have questions about the Tribe, its operations, or this
statement, please contact me directly or my Chief of Staff, Chuck
Bunnell at (860) 862-6120.
Sincerely,
Bruce ``Two Dogs'' Bozsum,
Chairman, Mohegan Tribal Council.
______
[Letters of support submitted to Mr. Hayworth follow:]
NATIONAL CONGRESS OF AMERICAN INDIANS
The National Congress of American Indians
Resolution #MOH-04-028
TITLE: Congressional Clarification of Treatment of Indian Tribes as
Governments for Purposes of the National Labor Relations Act
WHEREAS, we, the members of the National Congress of American
Indians of the United States, invoking the divine blessing of the
Creator upon our efforts and purposes, in order to preserve for
ourselves and our descendants the inherent sovereign rights of our
Indian nations, rights secured under Indian treaties and agreements
with the United States, and all other rights and benefits to which we
are entitled under the laws and Constitution of the United States, to
enlighten the public toward a better understanding of the Indian
people, to preserve Indian cultural values, and otherwise promote the
health, safety and welfare of the Indian people, do hereby establish
and submit the following resolution; and
WHEREAS, the National Congress of American Indians (NCAI) was
established in 1944 and is the oldest and largest national organization
of American Indian and Alaska Native tribal governments; and
WHEREAS, the United States Constitution, U.S. Supreme Court
decisions and hundreds of treaties, federal statutes, and regulations
all recognize that Indian Tribes are distinct governments; and
WHEREAS, Indian gaming, like State lottery operations, is a method
of generating governmental revenue, which is used to rebuild tribal
community infrastructure, provide essential programs for Indian
citizens, and provide contributions to charitable organizations and
local communities; and
WHEREAS, a number of individual Indian Tribes have made the
sovereign governmental decision to work with labor organizations to
represent the rights of their respective tribal governmental employees;
and
WHEREAS, Congress, through the National Labor Relations Act (NLRA),
exempts governmental employers from application of the Act; and
WHEREAS, the National Labor Relations Board (NLRB), in San Manuel
Indian Bingo & Casino, ignored congressional intent to exempt
governments from application of the NLRA by finding that the Act
applies to tribal governmental employers of gaming operations.
NOW THEREFORE BE IT RESOLVED, that the NCAI does hereby urge the
United States Congress to reaffirm that Indian Tribes operating
governmental gaming facilities pursuant to IGRA are exempt from the
National Labor Relations Act, and to clarify that states are
prohibited from including labor conditions in compacts negotiated
pursuant to IGRA; and
BE IT FURTHER RESOLVED, that this resolution shall be the policy of
NCAI until it is withdrawn or modified by subsequent resolution.
certification
The foregoing resolution was adopted at the 2004 Mid-Year Session
of the National Congress of American Indians, held at the Mohegan Sun
H. el and Casino, Uncasville, CT on June 23, 2004 with a quorum
present.
Tex G. Hall,
President.
Adopted by the General Assembly during the 2004 Mid-Year Session of
the National Congress of American Indians, held at the Mohegan Sun
Hotel and Casino, in Uncasville, CT on June 23, 2004.
______
Executive Office of the Governor & Lieutenant
Governor,
Gila River Indian Community,
Sacaton, AZ, September 9, 2004.
Hon. J.D. Hayworth,
House of Representatives, Washington, DC.
Dear Congressman Hayworth: On behalf of Gila River Indian
Community, I want to thank you for the leadership you have shown in
Congress in trying to resolve the important problem of the recent
National Labor Relations Board (``NLRB'') decision in San Manuel Indian
Bingo and Casino, which attempts to assert NLRB jurisdiction over
tribal governments and tribally operated enterprises. We wanted to
inform you of the Community's support for your amendment to the Fiscal
Year 2005 Labor-Health and Human Services appropriations bill that
would disallow the NLRB from moving forward with enforcing this
erroneous decision and exercising jurisdiction over tribal governments
and tribally-operated enterprises.
The NLRB decision, as you know, goes against decades of the NLRB's
own precedent and directly infringes upon the sovereignty of every
Indian tribe in the United States, and that is why we are concerned.
The decision also ignores federal court decisions treating Indian
Tribes as governments for purposes of the NLRA. Like many tribes, we
would like to see a permanent fix for this problem, but recognize that
your amendment will allow for the necessary time period for continued
negotiations on a reasonable long-term fix.
We thank you for the opportunity to submit our views on this
matter, and please do not hesitate to contact me if you have any
questions. Thank you again for your strong leadership on this and so
many other important issues affecting Indian tribes.
Sincerely,
Richard Narcia,
Governor.
______
California Nations Indian Gaming Association,
Sacramento, CA, September 9, 2004.
Dear Congressman: The member Indian tribes of the California
Nations Indian Gaming Association (CNIGA) urge you to support an
amendment offered by Rep. J. D. Hayworth (R-AZ) to prevent the National
Labor Relations Board (NLRB) from enforcing its misguided decision in
San Manuel Indian Bingo and Casino, 341 NLRB 138 (May 28, 2004). The
proposed amendment is to the FY 2005 Labor, HHS appropriations bill.
In the decision referenced above, the Board overruled 30 years of
its own precedent and disregarded a number of federal court decisions
that treat Indian tribes as governments for purposes of the National
Labor Relations Act. State and local governments are exempt from the
Act. Historically, the Board and the courts have extended the same
respect to tribal governments. Without adequate explanation or
analysis, the Board deemed San Manuel's government-owned operation a
commercial enterprise, not worthy of treatment as a government
employer. This misguided decision affects every Indian tribe in the
Nation.
Tribal governments provide critical government services in their
jurisdictions and should not be held hostage to the provisions of the
NLRA. Unlike private businesses, tribal enterprises generate revenues
that fund public safety, law enforcement and other governmental
services that, if interrupted, would cause significant harm to the
tribal communities.
While we urge the Congress to seek a permanent legislative solution
to address the NLRB's San Manuel decision, the Hayworth amendment will
provide an interim fix during which all interested parties can work
toward a reasonable long-term solution to the problem created by the
decision.
Sincerely,
Anthony Miranda,
Chairman.
______
Cherokee Nation,
Tahlequah, OK, September 9, 2004.
Dear Congressmen: Cherokee Nation would like to express its support
for Congressman Hayworth's amendment to the FY 2005 Labor, Health and
Human Services Appropriations bill.
This amendment will prevent the National Labor Relations Board from
enforcing its misguided decision in San Manuel Indian Bingo and Casino,
341 NLRB 138 (May 28, 2004). In that decision, the Board overruled 30
years of its own precedent and ignored a number of federal court
decisions treating Indian Tribes as governments for purposes of the
NLRA. State and local governments are exempt from application of the
NLRA and the past, the Board and the courts have provided that same
respect to tribal governments. Without adequate explanation or
analysis, the Board deemed the tribal government-owned operation in
question a commercial enterprise, not worthy of governmental treatment.
This decision represents a complete disrespect for the status of tribes
as governmental employers.
Indian tribes provide crucial government services on Indian lands,
and government operations can't be held hostage to the provisions of
the NLRA. The Hayworth amendment will provide a period of time, during
which all interested parties can negotiate a reasonable long-term
approach to resolve the problems posed by the decision.
Cherokee Nation respectfully asks for your support on the Hayworth
amendment.
Sincerely,
Chad Smith,
Principal Chief.
______
The Hopi Tribe,
Kykotsmovi, AZ, September 7, 2004.
Hon. J.D. Hayworth,
U.S. House of Representatives, Washington, DC.
Dear Representative Hayworth: On behalf of the Hopi Tribe of
Arizona, I am writing to share the tribe's support for your amendment
to the Fiscal Year 2005 Labor-HHS Appropriations bill that would
prevent funds from being used to implement the National Labor Relations
Board's San Manuel decision. Like you, we believe that decision was
contrary to tribal sovereignty and congressional intent and will be
reversed in the courts. However, it is important to prevent its
enforcement until that final resolution occurs.
As you know, the National Labor Relations Board (NLRB) steadfastly
held for nearly 40 years that tribes are units of government and, as
such, are exempt from the National Labor Relations Act's (NLRA's)
definition of employer. Notwithstanding this long history, the NLRB
recently ruled that it has jurisdiction over employment disputes at
tribally-owned businesses, even when those businesses are located on
Indian reservations. This ruling ignores the fact that tribes are
governments and use revenues earned, from tribal businesses to provide
essential government services.
The NLRB's decision made much of the fact that some tribal
businesses, including gaming enterprises, have grown successful.
Apparently, the NLRB believes that sovereignty applies only to certain
tribal businesses, but this is a mistaken and distorted notion. Non-
gaming tribes such as Hopi are working to spur economic development for
tribally-run businesses so that this revenue can make up for our lack
of an adequate tax base. Like state and local governments, the Hopi
Tribe cannot afford to have revenue from its economic development
ventures suspended or cut off by a crippling strike.
Again, we support your amendment to the Labor-HHS Appropriations
bill and thank you for your leadership on this important issue of
tribal sovereignty.
Sincerely,
Wayne Taylor, Jr.,
Chairman/CEO.
______
Tribal Chairman's Office,
Cheyenne River Sioux Tribe,
Eagle Butte, SD, August 11, 2004.
Hon. J.D. Hayworth,
Member of Congress, Scottsdale, AZ.
Dear Mr. Hayworth: I thank you for your concern and commitment to
our Native People and their sovereign rights. The recent ruling by the
National Labor Relations Board determining that the National Labor
Relations Act applies to tribal activities located on reservation lands
is clearly a threat to the foundation of Indian Law and violates Tribal
Sovereignty. Therefore, I am in full support of H.R. 4680, the Tribal
Labor Relations Act. This legislation would be a tremendous benefit to
Native American Tribes, allowing tribes to further develop economic
development opportunities on their reservations, unhindered by
ambiguities in federal law
I have contacted South Dakota Members of Congress to support H.R.
4680 and if there is anything further that I can assist you with please
do no hesitate to contact me.
Sincerely,
Harold C. Frazier,
CRST Tribal Chairman.
______
Rincon Luiseno Band of Indians,
Valley Center, CA, August 3, 2004.
Hon. J.D. Hayworth,
Rayburn House Office Building, Washington, DC.
Dear Congressman Hayworth: Thank you for your letter dated July 8,
2004 regarding H.R. 4680 and your efforts to protect the principle of
tribal sovereignty. As members of the Rincon Band, we sincerely thank
you for your efforts on behalf of all Native Americans.
It is imperative that H.R. 4680 be passed. We will do what we can
in our small way to support this legislation.
Let me also take this opportunity to thank you, on behalf of the
Tribal Council, for not only attending the recent event we held with
Harrah's Resort & Casino, but also for giving us the chance to present
our position to you in regard to the recent legal action we took
against the state of California. We know you have a very busy schedule,
and greatly appreciated the opportunity to discuss this issue with you.
If there is any specific effort we might do to further support H.R.
4680, please do not hesitate to contact us.
Sincerely,
John D. Currier,
Chairman.
______
UNITED SOUTH AND EASTERN TRIBES, INC.
USET Resolution No. 2005:027
SUPPORT FOR HR 16 <bullet> TRIBAL LABOR RELATIONS RESTORATION ACT OF
2005
WHEREAS, United South and Eastern Tribes, Incorporated (USET) is an
intertribal organization comprised of twenty-four (24) federally
recognized Tribes; and
WHEREAS, actions of the USET Board of Directors officially
represent the intentions of each member Tribe, as the Board of
Directors is comprised of delegates from the member Tribes' leadership;
and
WHEREAS, on January 4, 2005, HR 16, the Tribal Labor Relations
Restoration Act of 2005 was introduced in Congress; and
WHEREAS, HR 16 has been referred to the House Committee on
Education and the Workforce; and
WHEREAS, HR 16, if enacted, would amend the National Labor
Relations Act to provide that any business owned and operated by an
Indian Tribe and located on its Indian lands is not considered an
employer for purposes of the Act; and
WHEREAS, enactment of HR 16 will recognize the inherent sovereign
rights of Indian Tribes to govern all Tribal affairs including Tribal
businesses and its employees without interference from third parties;
therefore be it
RESOLVED that the USET Board of Directors supports HR 16, Tribal
Labor Relations Restoration Act of 2005.
certification
This resolution was duly passed at the USET Impact Week Meeting, at
which a quorum was present, in Arlington, VA, on Thursday, February 10,
2005.
Keller George,
President.
Eddie L. Tullis,
Secretary.
______
Forest County Potawatomi Community,
Crandon, WI, June 24, 2005.
Ryan Scrotc,
Native American Caucus.
Dear Mr. Scrotc: I write on behalf of the FCP Tribe to express our
concern over remarks made during the June 7th, 2005 meeting of the
Senate Interior Appropriations Subcommittee. Suggestions were made to
look at a new formula ``that gives those (tribes) who don't have the
benefit of casinos a larger share of the government's assistance.''
Our tribe is fundamentally opposed to means testing for the funding
of Federal Indian programs. Many federal programs designed to benefit
Indian Tribes are a direct result of treaty obligations that the United
States incurred in return for vast concessions of tribal homelands.
Many other federal programs simply acknowledge the Constitutional
status of Indian Tribes as governments. These programs afford tribes
the same access to federal programs that benefit State and local
governments. We do not object to the many federal programs that are
need or poverty based: such as general assistance programs, low-income
housing, heating assistance, and others that are based on general per
capita income-not on gaming revenue. However implementing means testing
related to Indian gaming revenues on the federal programs based in
treaty and trust obligations and the governmental status of Indian
Tribes, such as health care, law enforcement and road construction,
would be contrary to the trust duties, treaty obligations, and the
Constitutional recognition of Indian tribes as governments.
It is true that Indian gaming has lifted some tribes out of
generations of poverty and welfare. Yet Indian gaming is not a panacea
for all of Indian country's ills. Too many of our people continue to
suffer poverty and disease. Many tribes that have gaming continue to
struggle to provide basic governmental services to their citizens.
The success of tribal gaming operations depends on a number of
factors, including locations, management, and the strength of the local
economy. The success of State government-run lotteries also depends on
many of these same factors. However, Congress would never consider
implementing a means testing approach to distributing federal
programmatic funds to State and local governments that looked to the
success for the various state lottery programs. Congress must extend
this same comity to tribal governments, and not single out Indian
gaming. Instead, we urge you to seek new methods--through legislation
or other avenues--to generate economic development in Indian country to
meet the longstanding unmet needs faced by tribes in providing
governmental services to their citizens. Do not penalize the one proven
method of economic self-sufficiency for tribal governments.
We respectfully request that you consider these factors when
discussing the allocation of monies for Indian tribes and reject any
suggestions to means test federal aid against the governmental revenue
generated from gaming, We greatly appreciate your support of Indian
country and your consideration of this important request.
Sincerely,
Al Milham,
Vice Chairman.
______
Office of the Tribal Chief,
Mississippi Band of Choctaw Indians,
Choctaw, MS, August 26, 2004.
Hon. John A. Boehner,
Hon. J.D. Hayworth,
U.S. House of Representatives, Washington, DC.
Dear Representatives Boehner and Hayworth: On behalf of the
Mississippi Band of Choctaw Indians, I write to thank you for
introducing H.R. 4906, the Tribal Labor Relations Restoration Act of
2004. H.R. 4906 confirms that tribal sovereignty and congressional
intent will be protected under the National Labor Relations Act.
As you know, the Commerce Clause of the United States Constitution
grants Congress the exclusive power to ``regulate commerce'' with
American Indian tribes. Accordingly, Congress has specifically exempted
tribes from several major employment laws, including Title VII of the
Civil Rights Act of 1964, Title I of the Americans with Disabilities
Act, and the Workers Adjustment and Retraining and Notification Act.
Additionally, tribes are implicitly exempted from federal employment
laws based on principles of sovereign immunity and tribal self-
determination. Among those is the National Labor Relations Act (NLRA).
Indeed, the National Labor Relations Board (NLRB) consistently and
rightly held for nearly forty years that tribes are units of government
and, as such, are exempt from the NLRA's definition of employer.
Notwithstanding this long history, the NLRB recently ruled that it
has jurisdiction over union disputes arising at tribally-owned
businesses on Indian reservations. This ruling ignores the fact that
tribes are governments and use revenues earned from tribal businesses
to provide essential government services. Like other tribes, the
Choctaw need this revenue because of the lack of an adequate tax base.
And, like other governments, the Choctaw can not afford to have this
revenue suspended or cut off by a crippling strike. Health care, law
enforcement, infrastructure, and many other pressing needs would be
adversely affected if this component of self-determination were
permanently stripped from our tribe.
H.R. 4906 is a well-crafted measure that will reverse the NLRB's
erroneous decision and restore tribal sovereignty. The Mississippi Band
of Choctaw Indians appreciates your leadership on this important issue
and looks forward to working with you to secure enactment of your bill.
Sincerely,
Phillip Martin,
Tribal Chief.
______
Executive Office of the Chairman,
White Mountain Apache Tribe,
Whiteriver, AZ, July 12, 2004.
Hon. J.D. Hayworth,
Rayburn House Office Building, Washington, DC.
Re: Tribal Labor Relations Act of 2004
Dear Congressman Hayworth: The White Mountain Apache Tribe
appreciates and supports legislation you have recently introduced, the
Tribal Labor Relations Act of 2004; which would specifically exempt
federally recognized Indian Tribal governments from the application of
the National Labor Relation Act and the jurisdiction of the National
Labor Relation Board. The recent NLRB decision in the San Manuel case
represents a direct attack on our Tribal sovereignty and our right of
self-determination. There can be no greater intrusion upon our right to
manage our own internal affairs and the relationships amongst our
employees than to subject our homeland to union organizers and the
jurisdiction of the NLRB which does not understand the unique political
relationship that Indian Tribes have With the United States government.
Lacking a Tribal property or income tax base, Indian Tribes must
generate needed revenue through the economic development of their
natural resources, Tribal government sponsored enterprises, tourism,
and more recently, gaming. Only Tribal governments may own and operate
Indian Casinos. The Indian Gaming Regulatory Act (IGRA) requires that
revenue from Gaming be used to benefit Tribal Governmental programs in
the area of health, education, and welfare. Unionization union
activities on our aboriginal and reserved trust lands will disrupt our
gaming and other governmental enterprises, undermine our right to
exclude non-members, and diminish our sovereign authority river lands
and activities within our ReserVation boundaries.
The White Mountain Apache Tribe appreciates your quick and
protective response to the ill-advised NLRB/San Manuel decision.
Sincerely yours,
Dallas Massey,
Chairman.
______
Reservation Tribal Council,
Bois Forte Band of Chippewa,
Nett Lake, MN, August 3, 2004.
Hon. J.D. Hayworth,
U.S. House of Representatives, Washington, DC.
Dear Congressman Hayworth: This is in response to your July 8, 2004
letter to former Chairman Donald concerning H.R. 4680 and your efforts
to re-affirm that businesses owned and operated by Indian tribes are
not subject to the National Labor Relations Act (NLRA).
I was sworn in as Chairman of the Bois Forte Band on July 13, 2004,
and am pleased to see that you have introduced this important
legislation. The Bois Forte Band believes that Indian tribal
governments should be treated as a state government for purposes of the
NLRA. Other federal statutes have treated tribal governments the same
as state governments, and doing so preserves the principle of tribal
sovereignty and recognizes the unique status of Indian tribes.
I want to make it clear that we support your legislation because it
supports tribal governments and not because we are in any way opposed
to organized labor. The Bois Forte Band recognizes the role of
organized labor and has entered into project labor agreements with
local unions on all of our major economic development projects. We
believe that such agreements are the best way to implement tribal
policies of Indian preference in employment while at the same time
providing opportunities for union workers.
Sincerely yours,
Kevin W. Leecy,
Chairman.
______
Oneida Nation Homelands,
Verona, NY, August 5, 2004.
Hon. J.D. Hayworth,
U.S. House of Representatives, Washington, DC.
Dear Congressman Hayworth: On behalf of the Oneida Indian Nation, I
would like to thank you for your letter regarding the introduction of
H.R. 4680, the ``Tribal Labor Relations Act.'' This bill reaffirms that
businesses fully owned and operated by Indian tribes are not considered
employers subject to the National Labor Relations Act (``NLRA''). We
commend you and your office for your continuing leadership on this very
important issue.
As you know, Keller George, a member of the Oneida Indian Nation's
Men's Council, and the president of the United South and Eastern
Tribes, Inc., testified before the House Resources Committee on April
17, 2002 in support of similar legislation introduced by you in the
107th Congress. He testified about the growing concern in Indian
Country over so-called ``unionization agreements,'' which would be
included as part of tribal-state gaming compacts. We are concerned that
some states are using IGRA to circumvent the NLRA by insisting on rules
that tip the delicate labor-management balance strongly in favor of
unions. These provisions deny employees of Indian-run casinos the right
to a free choice in deciding whether or not they want to join a union.
Your legislation would overturn a decision by the Nation Labor
Relations Board on May 28, 2004, that reversed 30 years of precedent by
holding that the NLRA does not exempt Indian tribes. Under the Unites
States Constitution, Indian tribes are sovereign governments, and they
have an inherent right to decide whether to enter into labor
agreements.
Consequently, we fully support H.R. 4680, and we look forward to
working with you and your staff on an issue that has important
consequences for Indian Country.
Please do not hesitate to contact me with any questions.
Na ki wa,
Ray Halbritter,
Nation Representative.
______
Ewiiaapaayp Tribal Office,
Ewiiaapaayp Band of Kumeyaay Indians,
Alpine, CA, August 9, 2004.
Hon. J.D. Hayworth,
U.S. House of Representatives, Washington, DC
Re: H.R. 4680
Dear Congressman Hayworth: The Ewiiaapyaap Band of Kumeyaay Indians
supports H.R. 4680, the Tribal Labor Relations Act. The Tribe supported
the draft of this bill by letters to you dated June 17, 2004, and to
Congressmen Kildee, Rahall, and Rangell dated June 18, 2004.
Should there be any questions regarding this matter, please contact
the Tribe's Executive Director. Thank you.
Sincerely,
Harlan Pinto, Sr.,
Chairman.
______
Ewiiaapaayp Tribal Office,
Alpine, CA, June 17, 2004.
Hon. J.D. Hayworth,
Hon. Dale Kilee,
Hon. Nick Rahall,
Hon. Charlie Rangell,
U.S. House of Representatives, Washington, DC
Dear Congressmen: As the Chairman of the Ewiiaapyaap Band of
Kumeyaay Indians, I am writing to express my strong support for your
proposed bill to amend the National Labor Relations Act ``to ensure
that Indian tribes and any organizations owned, controlled, or operated
by Indian tribes are not considered employers for purposes of such
Act.'' This bill is desperately needed to stop the erosion of tribal
sovereignty, and I hope you will vigorously push for its passage and
enactment.
Please let us know what we can do to further our common goal of
seeing this legislation gned into law. In the meantime, please accept
my best regards.
Should there be any questions regarding this matter, please contact
the Tribe's Executive Director. Thank you.
Sincerely,
Harlan Pinto Sr.,
Chairman.
______
Legal Department,
Forest County Potawatomi Community,
Milwaukee, WI, June 23, 2005.
Hon. John Boehner,
Chairman, Education and Workforce Committee, U.S. House of
Representatives, Washington, DC.
Hon. Jerry Lewis,
Chairman, Appropriations Committee, U.S. House of Representatives,
Washington, DC.
Dear Chairman Boehner and Chairman Lewis: I write to offer the
Forest County Potawatomi Community's support for legislation that would
clarify that tribal governments enjoy status equal to state and local
governments under the National Labor Relations Act. In particular, the
Tribe strongly supports an amendment to be offered by Congressman
Hayworth to the FY 2006 Labor, Health and Human Services Appropriations
bill that will prohibit the National Labor Relations Board from
implementing its San Manuel decision. That decision--issued last year--
held for the first time that the tribal governments can be subjected to
the requirements of the National Labor Relations Act, although the same
is not true regarding any other governments.
The San Manuel decision was a significant break with longstanding
precedent under which the NLRB and the courts held the NLRA
inapplicable to sovereign tribes.
The Hayworth amendment is intended to return the law to the way it
was before the NLRB's radical departure in San Manuel, and to protect
tribes from the application of the NLRA. The NLRA is a labor law
designed for private sector employers, not governmental employers. The
San Manuel decision, if allowed to stand, threatens to burden a range
of operations, including hospitals and schools, to federal mandates in
a manner that is fundamentally inconsistent with tribal governments
status. The Hayworth amendment is needed to ensure that tribal
governments are treated as other governments are under federal law, and
to ensure that tribes can continue to use their resources to provide
services and benefits to members of their communities as other
governments do.
Thank you for your consideration of this important issue.
Sincerely,
Jeff Crawford,
Attorney General.
______
National Indian Gaming Association,
Washington, DC, June 23, 2005.
Dear Congressman: I write on behalf of the National Indian Gaming
Association (NIGA), and NIGA's 184 Member Tribes, with regard to
Congressman J.D. Hayworth's amendment to the FY 2006 Labor-HHS
Appropriations bill.
On May 28, 2004, the NLRB overturned 30 years of its own precedent
and ignored a number of federal court decisions acknowledging Indian
Tribes as governments for purposes of the NLRA. See San Manuel, 341
NLRB No. 138. Without explanation or analysis, the Board deemed the
tribal government-owned operation in question a commercial enterprise
ignoring facts that the revenue generated is used solely for tribal
governmental purposes.
Since the decision, unions and their union organizers have
undertaken a concerted effort to extend the San Manuel decision
nationwide and undermine the inherent rights of Tribal Governments to
regulate their own workforce. They justify their actions on the idea
that tribal government employees, both Indian and non-Indian, have no
recourse in labor disputes.
In fact, Tribes have a proven track record as one of the best
employers the country. Tribal Government owned enterprises consistently
offer higher paying wages with benefit packages similar to employers
off the reservation. Additionally, Tribes have their own Labor laws
that contain comprehensive personnel policies and procedures. Many
include internal dispute resolution mechanisms and waive tribal
sovereign immunity in employment matters where they are based on claims
brought in tribal court and based on tribal policy, tribal law, or
tribal constitution.
Like State and local governments that are exempt from the National
Labor Relations Act (NLRA), Indian Tribes provide crucial government
services to tribal citizens. Congress exempted State and Local
Governments from the NLRA because of their ability to protect their own
government labor force and avoid costly labor battles that could result
in the stoppage of essential government services. For the same reasons,
Tribal Governments have been and should continue to be exempt from the
NLRA. Tribal citizens depend on tribal police and fire departments to
stay open and that essential Tribal government services will be
delivered. If a Tribal Government's major source of funding is subject
to NLRB jurisdiction it could cause disruptions in the delivery of
tribal government services while disputes, such as the one in San
Manuel, weave their way through the federal administrative and judicial
processes.
We urge Congress to consider the impacts of the San Manuel decision
and support Congressman Hayworth's amendment.
Sincerely,
Ernest L. Stevens, Jr.,
Chairman.
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