House OKs Bill to Exempt Tribal Businesses From Labor Law

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By Lawrence E. Dubé

Nov. 17 — The House Nov. 17 passed by a 249-177 vote the Tribal Labor Sovereignty Act (H.R. 511), which would exclude “any enterprise or institution owned and operated by an Indian tribe and located on its Indian lands” from the labor law provisions of the National Labor Relations Act.

The NLRA excludes state and local governments from coverage, and supporters of H.R. 511 argued that respecting tribal sovereignty requires exempting tribal businesses from the jurisdiction of the National Labor Relations Board. Opponents argued the proposed legislation could leave hundreds of thousands of workers, including many at Indian casinos, without adequate labor law protections.

The Obama administration opposes the bill, which was introduced in the House by Rep. Todd Rokita (R-Ind.). The White House said in a Nov. 17 statement that the administration can support an NLRA exemption only if tribes adopt labor standards for tribal enterprises that are “reasonably equivalent to those in the National Labor Relations Act.”

The final vote results showed that only 24 Democrats voted in favor of the bill, while only 18 Republicans voted against it.

NLRB Has Been Covering Tribal Operations

The definition of “employer” under the NLRA excludes states and their political subdivisions, but the act does not specifically address the status of tribal enterprises.

In San Manuel Indian Bingo & Casino, 341 N.L.R.B. 1055, 174 LRRM 1489 (2004), the board held that its jurisdiction under the NLRA generally extends to all Indian tribal enterprises, whether they're located on or off reservation land, unless asserting the board's jurisdiction would touch “exclusive rights of self-governance in purely intramural matters” or would abrogate treaty rights or conflict with federal legislation (108 DLR AA-1, 6/7/04).

The board has relied on San Manuel in a number of cases in which it asserted jurisdiction over casinos and gaming operations on reservations and has won court enforcement of board orders in some of those cases (127 DLR A-2, 7/2/15).

However, the board has said it was following a case-by-case approach to the issue of its jurisdiction over tribal businesses, and declined to assert jurisdiction in Chickasaw Nation, 362 N.L.R.B. No. 109, 203 LRRM 1421 (2015) (108 DLR AA-1, 6/5/15), finding that to do so would “abrogate treaty rights specific to the Nation.”

Bill Would End Case-by-Case Approach

The proposed legislation would replace the NLRB's case-by-case approach by amending Section 2(2) of the NLRA, 29 U.S.C. § 152(2), which broadly defines the term “employer.”

H.R. 511 would add an exclusion of “any enterprise or institution owned and operated by an Indian tribe and located on its Indian lands.”

The measure includes definitions of the terms Indian, Indian tribe and Indian lands.

Bill's Supporters Cite Sovereign Status of Tribes

Supporters said Indian tribes have been dissatisfied with the NLRB's approach. Several tribal government officials told the House Education and the Workforce Committee's Health, Employment, Labor and Pensions Subcommittee in June that the tribes have special concerns that are best handled by tribal governments, not by a federal agency (115 DLR A-16, 6/16/15).

House Education and the Workforce Committee Chairman John Kline (R-Minn.) also criticized the board's approach. “Sovereignty isn't a case-by-case issue to be decided by a bureau,” Kline told the House Rules Committee Nov. 16, as the committee considered the terms of debate on H.R. 511.

Rep. Tom Cole (R-Okla.), an enrolled member of the Chickasaw nation who has been a vocal supporter of H.R. 511, told the Rules Committee, “you're either for tribal sovereignty or you're not.”

Rep. Phil Roe (R-Tenn.), chairman of the House Health, Employment, Labor and Pensions Subcommittee, led H.R. 511's supporters in a debate on the House floor Nov. 17.

Roe said there are more than 550 federally recognized Indian tribes in the U.S., and he argued they have an “inherent right to self-govern” without the NLRB applying a “subjective test” of the agency's jurisdiction in cases before the board.

Rokita said during the House debate that the tribal sovereignty bill is not a new proposal. Legislators have unsuccessfully pressed for passage of such legislation for 10 years, he said, but the proposal has never advanced as far as it has this year.

Rokita called for a “strong vote” in favor of the bill in order to restore “parity” between tribal governments and other governmental bodies that are exempt from NLRB jurisdiction.

Opponents Stress Importance of Worker Rights

But Rep. Bobby Scott (D-Va.), ranking Democrat on the Education and the Workforce Committee, defended the NLRB's jurisdiction in remarks before the Rules Committee and on the House floor Nov. 17.

Scott said legislators had an obligation to balance two “solemn principles”—the rights of tribes and the labor law rights of the workers in casinos and other tribal establishments.

Scott said approximately 75 percent of nearly 600,000 workers in tribal businesses are not themselves members of Indian tribes. He argued H.R. 511 simply chose “sovereignty for some over the rights of others.”

Minority Whip Steny Hoyer (D-Md.) said it was unlikely any legislator would dispute the right of tribes to enjoy sovereignty over inherently governmental functions, but he told the House during the Nov. 17 debate that all workers in “commercial enterprises” operated by tribes and other employers should have the protection of federal laws like the NLRA.

And Rep. Mark Pocan (D-Wis.) argued that Rokita's bill was a “labor bill,” not an Indian sovereignty measure. Pointing out that the legislation would not affect coverage of tribal businesses under other federal laws, including the Occupational Safety and Health Act and the Employee Retirement Income Security Act, Pocan argued the bill was a “selective” challenge to worker protections under the NLRA.

White House Opposes Bill, Suggests Alternative

The White House statement of administration policy on H.R. 511 said the Obama administration “is deeply committed to respecting tribal sovereignty and maintaining government-to-government relationships with Indian tribes,” while at the same time “protecting American workers and enforcing Federal labor laws.”

The administration said it has been encouraged that some tribal governments have established labor relations policies that “generally protect tribal self-governance while also ensuring that most casino workers retain important and effective labor rights.”

Stating that tribal sovereignty and worker rights can be both be protected, the statement said “the Administration can only support approaches that accomplish that result.”

The White House said it “can support a bill which recognizes tribal sovereignty in formulating labor relations law and exempts tribes from the jurisdiction of the National Labor Relations Board only if the tribes adopt labor standards and procedures applicable to tribally-owned and operated commercial enterprises reasonably equivalent to those in the National Labor Relations Act.”

The administration said such legislation “would also need to include an authorization for funding to support the development and implementation of tribal laws and regulations.”

Senate Action on Companion Bill Next Step

Within minutes of the House action, Education and the Workforce Committee leaders Kline and Roe issued a statement applauding passage of Rokita's bill. Kline urged the Senate to quickly take up and pass its version.

Scott said in a statement issued by committee Democrats that the bill “ensures that low-paid service workers in tribal casinos will lose the opportunity to share the wealth they are creating for the tribe, and deprive them of the opportunity to climb the ladder to the middle class.”

The Senate Indian Affairs Committee June 10 passed the companion bill (S. 248), which presently has 14 co-sponsors (111 DLR A-15, 6/10/15).

No date has been set for consideration of the bill by the full Senate.

To contact the reporter on this story: Lawrence E. Dubé in Washington at ldube@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

For More Information 
Text of H.R. 511 is available at http://src.bna.com/68