GM 15-081

House of Representatives Approves Tribal Labor Sovereignty Act

On November 17, 2015, the House of Representatives approved the Tribal Labor Sovereignty Act (HR 511) by a vote of 249-177. HR 511 is sponsored by Representative Rokita (R-IN) and would amend the National Labor Relations Act (NLRA, or “the Act”) by expressly adding tribal governments to the definition of governments that are exempt from the Act. Currently, federal, state, and local governments are expressly exempt from the NLRA; however, the Act is silent with regard to its applicability to tribal governments. For nearly 70 years after the NLRA’s enactment in 1935, the Act was interpreted as applying broadly to all governmental entities; hence, tribal governments were exempt as well. This interpretation was challenged in 2004 when the National Labor Relations Board (NLRB) took the position that tribal governments are not exempt. This legislation would restore governmental parity for tribal governments by amending the NLRA to expressly provide that any enterprise or institution owned and operated by an Indian tribe and located on its lands is exempt from the Act.

Context. In 2004, in San Manuel Indian Bingo and Casino and Hotel Employees & Restaurant Employees International Union, AFL-CIO, 341 NLRB No. 138 (May 28, 2004), the NLRB departed from its established rule and asserted jurisdiction over a tribal enterprise operating on an Indian reservation, finding that tribal commercial enterprises are generally subject to the provisions of the NLRA and can be charged by the NLRB with “unfair labor practices” under that authority. The Tribe appealed but, the NLRB’s decision was upheld by the U.S. Court of Appeals for the District of Columbia. San Manuel Indian Bingo and Casino v. N.L.R.B., 475 F.3d 1306 (D.C. Cir. 2007). Other courts have followed suit. Earlier this year, the Sixth Circuit Court of Appeals agreed that the NLRB had jurisdiction over tribes as employers. National Labor Relations Board v. Little River Band of Ottawa Indians Tribal Government, Case No. 14-2239 (June 9, 2015 6th Cir.). As recently as this week, the NLRB ruled against the Pauma Casino in California for violations of Section 8 of the NLRA. In this case, the Casino sought to enforce its policy prohibiting the distribution of literature at the Casino’s valet entrance, which faced the visitor parking lot. Despite the Casino allowing distribution during break times at employee entrances, the NLRB found the restriction to be a violation of the Act. Casino Pauma and Unite Here International Union, 363 NLRB No. 60, slip op. (Dec. 3, 2015). We note, however, that the NLRB in Oklahoma declined to assert jurisdiction over the Chickasaw Nation based on the Tribe’s treaty. Chickasaw Nation d/b/a Winstar World Casino and International Brotherhood of Teamsters Local 866, Cases 17-CA-025031 & 17-CA-025121 (June 4, 2015).

In 2011, the Department of the Interior met with the NLRB to request that the NLRB stop filing unfair labor practice charges against tribes and drop current charges that had already been filed. The NLRB has not taken any action to show that it is giving serious consideration to that request and, in fact, has initiated new proceedings against tribes and tribal enterprises in recent years while continuing to assert the position it took in the San Manuel case in all judicial challenges.

Since San Manuel, several bills and floor amendments have been introduced in the House and Senate to amend the NLRA to make it clear that the NLRB lacks jurisdiction over tribes and tribal enterprises operating on Indian lands, but they were not enacted. The Tribal Labor Sovereignty Act is the newest effort to address this issue.

Support and Opposition. The legislation is broadly supported by tribal governments and by intertribal organizations including the National Congress of American Indians (NCAI) and the National Indian Gaming Association (NIGA). Prior to the House vote, however, the Obama Administration issued a Statement of Administration Policy (SAP) in opposition to the bill, stating “The Administration cannot support HR 511. . .as currently drafted.” The Administration’s position is that any bill exempting tribal governments from the NLRA must also include provisions requiring tribes to adopt labor standards and procedures “reasonably equivalent to those in the NLRA.” We note that the Administration is not advocating for other governmental entities to adopt these standards and procedures. We attach the joint NCAI-NIGA letter urging support for HR 511; the SAP; the text of the House floor debate; and the House roll call vote.

Next Steps. An identical Senate bill (S 248)—sponsored by Senator Moran (R-KS)—was marked up by the Senate Committee on Indian Affairs on September 9, 2015. We understand that there is an effort to secure Senate floor time to hold a vote on the legislation or, alternately, to try to add it to a larger, unrelated bill.

A temporary variant of this legislation is included in the House version of the Labor, Health and Human Services and Education FY 2016 appropriations bill (HR 3020). HR 3020 contains a provision which would, for FY 2016, stipulate that “None of the funds made available by this Act may be used to enforce the National Labor Relations Act (29 U.S.C. 152) against any Indian tribe, including any enterprise or institution owned and operated by an Indian tribe and located on its Indian lands.” However, the Senate appropriations bill (S 1695) does not contain this provision, and thus its fate will be decided in negotiations on a final FY 2016 appropriations bill. Currently, federal agencies are being funded under a Continuing Resolution (at FY 2015 levels and conditions) through December 11, 2015. The tribal NLRB issue is one of the policy riders in question regarding a final FY 2016 bill.

Please let us know if we may provide additional information regarding the pending Tribal Labor Sovereignty Act legislation or litigation regarding the applicability of the National Labor Relations Act to tribal governments.