American Indian tribes have pushed Congress to officially exclude them from federal labor law for a decade. With the Republicans controlling both the House and the Senate, and the White House having previously signaled support, it just might happen this year.
On Tuesday, the House Education and Workforce Committee will hold a hearing on the Tribal Labor Sovereignty Act, a bill that would officially say that the National Labor Relations Act does not extend to Indian lands. Similar legislation already has advanced through committee in the Senate.
The legislation is an effort to head off organized labor’s push to unionize Indian casinos. The National Labor Relations Board, the entity that enforces federal labor law, ruled in 2004 that it had authority over tribal casinos, reversing decades of precedent.
“The unions have eyed Indian and non-Indian gaming as prime targets for their organizing efforts,” said Robert Guest, an attorney with the Native American Rights Fund, which is supporting the legislation. Allowing the board’s decision to stand eroded the tribes’ rights and threatened their gambling industry, he said.
There have been several bills introduced over the last decade to exclude tribes from federal labor law, but they have gotten little traction. An aide to a Republican lawmaker, who requested anonymity, said that with both the House and Senate under GOP control, they expected the legislation to get through this time.
It may even get administration support, the aide noted. In late 2011, the Interior Department’s Indian Affairs agency wrote to the board, saying that it did not believe the labor law should cover tribes.
“Tribal governments should be given at least the same exception as provided to state governments in the NLRA,” wrote Patrice Kunesh, the department’s department’s deputy solicitor for Indian affairs.
The federal law, which passed in 1935, does not specifically address the issue, effectively leaving it to the board’s discretion.
The original reason for the tribes’ exclusion was that the labor rights act covers only private-sector unions and the legal concept of “tribal sovereignty” meant the tribes were independent entities, similar to states, that could pass their own laws. Since the tribes owned the casinos, their employees were public-sector workers and the tribes themselves determined their labor rights.
However, unlike schools, fire departments or government agencies, for-profit casinos are not what are traditionally understood as public-sector establishments. The labor board asserted jurisdiction over tribal casinos in a 2004 case called San Manuel.
Annemarie Strassel, spokeswoman for Unite Here, a service-sector union pushing to represent the casino workers, noted that other federal workplace laws, such as the Occupational Safety and Health Act, applied to the casinos. There was no reason why the NLRA shouldn’t as well, she argued.
“Most of the people who work in the casinos are not tribe members,” Strassel said. “This is about preserving those workers’ rights.”
Guest countered that the board’s assertion of jurisdiction undermined the tribes’ own legal rights. “It really is a matter of whether tribes are governments, like state governments, like the federal government,” he said.
He noted that some tribes, like the Navajos, have allowed unions. But even those had concerns about the board’s actions, Guest said. Several tribes wanted to be able to ensure there were “no strike” clauses in their labor contracts since they were so financially dependent on the casinos, something they would not necessarily get under the NLRA.
Guest added that an estimated 90 percent of the casinos’ revenue went back into the tribes, which meant that they weren’t really private-sector businesses.
