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[House Report 115-324]
[From the U.S. Government Publishing Office]

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115th Congress      }                              {          Report
                        HOUSE OF REPRESENTATIVES
 1st Session        }                              {           115-324
======================================================================

 
                  TRIBAL LABOR SOVEREIGNTY ACT OF 2017

                                _______
                                

 September 25, 2017.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

Ms. Foxx, from the Committee on Education and the Workforce, submitted 
                             the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                        [To accompany H.R. 986]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Education and the Workforce, to whom was 
referred the bill (H.R. 986) to clarify the rights of Indians 
and Indian tribes on Indian lands under the National Labor 
Relations Act, having considered the same, report favorably 
thereon with an amendment and recommend that the bill as 
amended do pass.
    The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Tribal Labor Sovereignty Act of 
2017''.

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 Indian tribe, or 
        any enterprise or institution 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 Indian or 
        held by any Indian tribe or Indian 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.''.

                                Purpose

    H.R. 986, the Tribal Labor Sovereignty Act of 2017, 
protects tribal sovereignty and the right to tribal self-
governance. The bill codifies the standard of the National 
Labor Relations Board (NLRB or Board) prior to 2004 by amending 
the National Labor Relations Act (NLRA) to provide that any 
enterprise or institution owned and operated by an Indian tribe 
and located on its land is not considered an employer, 
excluding such from coverage of the NLRA.

                            Committee Action

                             112TH CONGRESS

Subcommittee Hearing on Proposals to Strengthen the NLRA

    On July 25, 2012, the Subcommittee on Health, Employment, 
Labor, and Pensions (HELP) held a hearing entitled ``Examining 
Proposals to Strengthen the National Labor Relations Act,'' to 
review decisions by the NLRB affecting tribal sovereignty, 
secret ballot elections, and employee compensation. The hearing 
also examined three legislative proposals: H.R. 972, the Secret 
Ballot Protection Act; H.R. 2335, the Tribal Labor Sovereignty 
Act; and H.R. 4385, the Rewarding Achievement and Incentivizing 
Successful Employees Act. The witness testifying on tribal 
sovereignty stated the NLRB finding that Indian tribal 
governments are not exempt from NLRA requirements was unfounded 
and violated treaty rights.\1\ Witnesses before the 
subcommittee were the Honorable Robert Odawi Porter, President, 
Seneca Nation of Indians, Salamanca, New York; Mr. William L. 
Messenger, Staff Attorney, National Right to Work Legal Defense 
Foundation, Springfield, Virginia; Ms. Devki K. Virk, Member, 
Bredhoff and Kaiser, P.L.L.C., Washington, D.C.; and, Dr. Tim 
Kane, Chief Economist, Hudson Institute, Washington, D.C.
---------------------------------------------------------------------------
    \1\Examining Proposals to Strengthen the National Labor Relations 
Act: Hearing Before the Subcomm. on Health, Employment, Labor, and 
Pensions of the H. Comm. on Educ. and the Workforce, 112th Cong. 9 
(written testimony of the Hon. Robert Odawi Porter).
---------------------------------------------------------------------------

                             114TH CONGRESS

Introduction of H.R. 511, Tribal Labor Sovereignty Act of 2015

    On January 22, 2015, Rep. Todd Rokita (R-IN) introduced 
H.R. 511, the Tribal Labor Sovereignty Act of 2015, with 14 
cosponsors.\2\ Recognizing the threat to tribal sovereignty 
posed by the NLRB's decision in San Manuel Indian Bingo and 
Casino (San Manuel),\3\ the legislation provided that any 
enterprise or institution owned and operated by an Indian tribe 
and located on its land is not considered an employer and, 
therefore, is not covered by the NLRA.
---------------------------------------------------------------------------
    \2\H.R. 511, 114th Cong. (2015). Substantively identical 
legislation was also introduced by Rep. Kristi Noem (R-SD) in the 112th 
and 113th Congresses.
    \3\341 NLRB No. 138 (2004).
---------------------------------------------------------------------------

Subcommittee Legislative Hearing on H.R. 511, Tribal Labor Sovereignty 
        Act of 2015

    On June 16, 2015, the HELP Subcommittee held a legislative 
hearing on H.R. 511, the Tribal Labor Sovereignty Act of 
2015.\4\ Witnesses included the Honorable Rodney Butler, 
Chairman, Mashantucket Pequot Nation, Mashantucket, 
Connecticut; Mr. Richard Guest, Senior Staff Attorney, Native 
American Rights Fund, Washington, D.C.; the Honorable Jefferson 
Keel, Lieutenant Governor, Chickasaw Nation, Ada, Oklahoma; 
and, Mr. Gary Navarro, Slot Machine Attendant and Bargaining 
Committee Member for UNITE HERE Local 2850, Graton Casino and 
Resort, Rohnert Park, California. Witnesses testified H.R. 511 
was necessary to clarify the rights of Indian tribes on Indian 
lands and provide parity for tribal governments with federal, 
state, and local governments under the NLRA.
---------------------------------------------------------------------------
    \4\Legislative Hearing on H.R. 511, Tribal Labor Sovereignty Act of 
2015: Hearing Before the Subcomm. on Health, Employment, Labor, and 
Pensions of the H. Comm. on Educ. and the Workforce, 114th Cong. 
(2015).
---------------------------------------------------------------------------

Committee Passage of H.R. 511, Tribal Labor Sovereignty Act of 2015

    On July 22, 2015, the Committee on Education and the 
Workforce (Committee) marked up H.R. 511, the Tribal Labor 
Sovereignty Act of 2015.\5\ Rep. Rokita offered an amendment in 
the nature of a substitute, making a technical change to 
clarify that an Indian tribe is not considered an employer 
covered by the NLRA. The Committee favorably reported H.R. 511, 
as amended, to the House of Representatives by voice vote.
---------------------------------------------------------------------------
    \5\H.R. 511, Tribal Labor Sovereignty Act of 2015: Markup Before 
the H. Comm. on Educ. and the Workforce, 114th Cong. (2015).
---------------------------------------------------------------------------

House Passage of H.R. 511, Tribal Labor Sovereignty Act of 2015

    On November 17, 2015, the House of Representatives passed 
H.R. 511, the Tribal Labor Sovereignty Act of 2015, by a vote 
of 249 to 177. A companion bill, S. 248, was introduced in the 
Senate by Sen. Jerry Moran (R-KS) and favorably reported by the 
Senate Committee on Indian Affairs. It was not taken up by the 
full Senate.

                             115TH CONGRESS

Introduction of H.R. 986, Tribal Labor Sovereignty Act of 2017

    On February 9, 2017, Rep. Rokita introduced H.R. 986, the 
Tribal Labor Sovereignty Act of 2017, with nine cosponsors.\6\ 
As with bills introduced in prior Congresses,\7\ the 
legislation provides that any enterprise or institution owned 
and operated by an Indian tribe and located on its land is not 
considered an employer and, therefore, is not covered by the 
NLRA.
---------------------------------------------------------------------------
    \6\H.R. 986, 115th Cong. (2017). This legislation was substantively 
identical to H.R 511, introduced in the 114th Congress.
    \7\341 NLRB No. 138 (2004).
---------------------------------------------------------------------------

Subcommittee Legislative Hearing on H.R. 986, Tribal Labor Sovereignty 
        Act of 2017

    On March 29, 2017, the HELP Subcommittee held a legislative 
hearing entitled ``H.R. 986, Tribal Labor Sovereignty Act of 
2017.''\8\ Witnesses testified to the urgent need to prevent 
the NLRB from usurping power from sovereign Indian tribes. 
Witnesses at this hearing were the Honorable Brian Cladoosby, 
President, National Congress of American Indians, Washington, 
D.C.; the Honorable Nathaniel Brown, Delegate, 23rd Navajo 
Nation Council, Navajo Nation, Window Rock, Arizona; Mr. John 
Gribbon, California Political Director, UNITE HERE 
International Union, AFL-CIO, San Francisco, California; and 
the Honorable Robert J. Welch, Jr., Chairman, Viejas Band of 
Kumeyaay Indians, Alpine, California.
---------------------------------------------------------------------------
    \8\Legislative Hearing on H.R. 986, Tribal Labor Sovereignty Act of 
2017: Hearing Before the Subcomm. on Health, Employment, Labor, and 
Pensions of the H. Comm. on Educ. and the Workforce, 115th Cong. 
(2017).
---------------------------------------------------------------------------

Committee Passage of H.R. 986, Tribal Labor Sovereignty Act of 2017

    On June 29, 2017, the Committee marked up H.R. 986, the 
Tribal Labor Sovereignty Act of 2017.\9\ Rep. Rokita offered an 
amendment in the nature of a substitute making technical 
changes to clarify the definition of ``Indian lands,'' which 
was adopted by voice vote. The Committee favorably reported 
H.R. 986, as amended, to the House of Representatives by a vote 
of 22 to 16.
---------------------------------------------------------------------------
    \9\H.R. 986, Tribal Labor Sovereignty Act of 2017: Markup Before 
the H. Comm. on Educ. and the Workforce, 115th Cong. (2017).
---------------------------------------------------------------------------

                                Summary

    H.R. 986, the Tribal Labor Sovereignty Act of 2017, will 
codify the NLRB standard regarding Board jurisdiction that 
existed prior to the 2004 San Manuel decision, amending the 
NLRA to provide any enterprise or institution owned and 
operated by an Indian tribe and located on its land is not 
considered an employer under the NLRA.

                            Committee Views

    In 1935, Congress passed the NLRA, guaranteeing the right 
of most private sector employees to organize and select their 
own representative.\10\ In 1947, Congress passed the most 
significant amendment of the NLRA, the Taft-Hartley Act,\11\ 
abandoning ``the policy of affirmatively encouraging the spread 
of collective bargaining . . . [and] striking a new balance 
between protection of the right to self-organization and 
various opposing claims.''\12\ The Taft-Hartley Act clarified 
employees have the right to refrain from participating in union 
activity,\13\ created new union unfair labor practices,\14\ 
codified employer free speech,\15\ and made changes to the 
determination of bargaining units.\16\
---------------------------------------------------------------------------
    \10\The NLRA does not cover all employees and employers in the 
United States. For example, public sector employers (state, local, and 
federal employees), employers covered by the Railway Labor Act 
(airlines and railroads), agricultural laborers, and supervisors are 
not covered by the act. 29 U.S.C. Sec. 152(2)-(3).
    \11\29 U.S.C. Sec. 141 et. seq.
    \12\Archibald Cox, Some Aspects of the Labor Management Relations 
Act of 1947, 61 HARV. L. REV. 1, 4 (1947).
    \13\ 29 U.S.C. Sec. 157.
    \14\Id. Sec. 158.
    \15\Id. Sec. 158(c).
    \16\Id. Sec. 159(d).
---------------------------------------------------------------------------
    The NLRA established the NLRB, an independent federal 
agency, to fulfill two principal functions: (1) to prevent and 
remedy employer and union unlawful acts, called unfair labor 
practices or ULPs, and (2) to determine by secret ballot 
election whether employees wish to be represented by a union. 
In determining whether employees wish to be represented by a 
union, the NLRA is intended to be wholly neutral.\17\
---------------------------------------------------------------------------
    \17\NLRB v. Savair Mfg., 414 U.S. 270, 278 (1973).
---------------------------------------------------------------------------

Regulation of State Labor Relations

    Congress understood the differences between the private and 
public sectors when it excluded states from the NLRA. States 
have promulgated varying labor laws based on the specific needs 
of the states. For example, most states permit collective 
bargaining and collective wage negotiations for public-sector 
workers, while a minority of states prohibits public-sector 
workers from such collective action.\18\ Conversely, most 
states do not afford public-sector workers the right to 
strike.\19\
---------------------------------------------------------------------------
    \18\Milla Sanes and John Schmitt, Regulation of Public Sector 
Collective Bargaining in the States, CTR. FOR ECON. AND POLICY 
RESEARCH, 4-8 (Mar. 2014), http://www.cepr.net/documents/state-public-
cb-2014-03.pdf.
    \19\Id. at 8-9.
---------------------------------------------------------------------------

Tribal Labor and Employment Law

    Like the states, tribal nations have worked to protect the 
rights of their employees, passing labor and employment laws 
modeled after federal laws but tailored to the specific needs 
of the tribes. In testimony before the HELP Subcommittee, 
Rodney Butler, Chairman of the Mashantucket Pequot Nation, 
described a number of provisions of the Mashantucket Pequot 
Labor Relations Law (MPLRL). The law guarantees ``the Nation's 
employees the right to organize and bargain collectively with 
their employers'' and ``allows labor organizations to be 
designated as the exclusive collective bargaining 
representatives of employees.''\20\ Chairman Butler stated:
---------------------------------------------------------------------------
    \20\Legislative Hearing on H.R. 511, supra note 4 (written 
testimony of the Hon. Rodney Butler at 5) (internal quotation marks 
omitted).

          In sum, the MPLRL is modeled after other public 
        sector laws, is similar to the NLRA in many aspects, 
        and essentially furthers the policies and principles 
        that are fundamental to federal labor policy as 
        enforced by the Board. It provides employees of Tribal 
        Employers with protections that are in many instances 
        identical to or, in some respects, more effective than 
        those provided to employees of private employers under 
        the NLRA. At the same time, the Nation's labor law 
        protects important tribal and federal objectives in 
        preserving and enhancing the
        Nation's self-governance through the use and 
        recognition of its institutions and the preservation of 
        its sovereignty.\21\
---------------------------------------------------------------------------
    \21\Id.

    Chairman Butler noted the Mashantucket Employment Rights 
Office has conducted at least six elections under the MPLRL, 
with four unions certified as the exclusive bargaining 
representatives of units of employees.\22\ The Mashantucket 
Pequot Nation subsequently entered into collective bargaining 
agreements with those four unions.\23\
---------------------------------------------------------------------------
    \22\Id.
    \23\Id.
---------------------------------------------------------------------------
    Similarly, the Navajo Nation's labor laws protect the right 
to collectively bargain while additionally including a right-
to-work provision. Richard Guest, Senior Staff Attorney of the 
Native American Rights Fund, discussed unionization rights 
under the Navajo Nation labor code in his testimony to the 
Subcommittee. Mr. Guest stated that in 1985 the Navajo Nation 
council ``incorporate[d] the most basic privileges of the 
[NLRA] to tribal employees, whom the council acknowledged were 
otherwise exempt from the NLRA.''\24\ This included the right 
to collectively bargain.\25\ In 1990, the council voted for the 
Navajo Nation to become a ``right to work'' jurisdiction, 
disallowing labor organizations from collecting union dues from 
non-members.\26\ Unions are collectively bargaining with the 
Navajo Nation and private employers on tribal land. Mr. Guest 
stated:
---------------------------------------------------------------------------
    \24\Id. (written testimony of Richard Guest at 6).
    \25\Id. at 7.
    \26\Id.

          Collective bargaining is occurring on the Navajo 
        Nation, with private enterprise as well as government. 
        The United Mine Workers of America (``UMWA'') 
        represents employees at the Navajo Nation Head Start 
        Program, a tribal government program. The Nal-Nishii 
        Federation of Labor, AFL-CIO includes 12 labor 
        organizations that represent miners, power plant 
        workers, construction workers, school employees and 
        city employees working on or near the Navajo 
        Nation.\27\
---------------------------------------------------------------------------
    \27\Id. at 8.

    Nathaniel Brown, a Navajo Nation council member, testified 
before the Subcommittee in a subsequent hearing and agreed with 
Mr. Guest that employees of the Navajo Nation have basic labor 
rights. He stated that a ``Navajo worker's right to join a 
union is protected.''
    Indian tribes have also addressed labor rights through the 
California tribal labor relations ordinances. In his testimony, 
Mr. Guest described how in 1999 Indian tribes negotiated 
tribal-state gaming compacts in California.\28\ A tribe would 
only qualify for the compact if it ``adopt[ed] a process for 
addressing union organizing and collective bargaining rights of 
tribal gaming employees.''\29\ The negotiations resulted in the 
drafting of a Model Tribal Labor Relations Ordinance 
(Ordinance), which tribes with 250 or more casino-related 
employees were required to adopt.\30\ The Ordinance is similar 
to the NLRA in many ways, including incorporating the right to 
organize and bargain collectively. However, the Ordinance also 
differs from the NLRA, with some differences favoring labor 
unions and some favoring Indian tribes. Mr. Guest stated:
---------------------------------------------------------------------------
    \28\Legislative Hearing on H.R. 511, supra note 4 (written 
testimony of Richard Guest at 8).
    \29\Id.
    \30\Id.

          The Ordinance provides labor unions at tribal gaming 
        facilities with a number of advantages not provided for 
        under the NLRA. Most importantly, under the Ordinance 
        unions at tribal casinos: (1) have the right to enter 
        onto casino property at any time to talk to employees 
        and post leaflets and posters there in order to 
        facilitate the organizing of employees; and (2) may 
        engage in secondary boycotts after an impasse is 
        reached in negotiations without suffering any penalty 
        under the Ordinance.
          The Ordinance also provides tribes with certain 
        advantages not enjoyed by employers under the NLRA. 
        Most importantly, unions representing tribal casino 
        employees may not strike, picket, or engage in boycotts 
        before an impasse is reached in negotiations.\31\
---------------------------------------------------------------------------
    \31\Id. at 9-10.

    Robert J. Welch, Jr., Chairman of the Viejas Band of 
Kumeyaay Indians from San Diego County, California, discussed 
in his testimony before the Subcommittee the tribal labor 
ordinance the Viejas Band passed in 1999. Chairman Welch 
---------------------------------------------------------------------------
stated:

          On September 14, 1999, the Viejas Band passed its own 
        law governing labor relations: a Tribal Labor Relations 
        Ordinance (the ``TLRO''). The TLRO, like similar 
        voluntarily adopted state laws addressing labor 
        relations for government agencies, contains numerous 
        provisions that are similar to the NLRA, including 
        detailed procedures for representation proceedings, a 
        guarantee of rights to engage in concerted activity, 
        enumeration of unfair labor practices by Tribes and 
        unions, and procedures for secret ballot elections and 
        union decertification. The TLRO, however, also diverges 
        from the NLRA in matters that are unique to Tribal 
        government gaming, including the recognition of an 
        Indian hiring preference, the exclusion of certain 
        employee classifications from organization (such as 
        Tribal Gaming Commission employees), the ability for a 
        Tribal Gaming Commission to require a labor 
        organization to secure a gaming license, and the 
        resolution of any labor disputes through binding 
        arbitration before an independent Tribal Labor Panel 
        (rather than the NLRB). The Viejas Band amended its 
        TLRO in November 2016 to provide additional protections 
        to employees and labor organizations.
          Over 70 other Tribal governments in California have 
        adopted their own, substantially similar, TLROs. The 
        TLROs have worked well for over 17 years, have been 
        publicly praised by California labor union 
        representatives speaking before the California 
        legislature, and would continue to be undermined by 
        NLRB interference if H.R. 986 were not passed.\32\
---------------------------------------------------------------------------
    \32\Legislative Hearing on H.R. 986, supra note 8 (written 
testimony of the Hon. Robert J. Welch, Jr., at 4-5).

    These are but a few examples of labor and employment laws 
enacted by Indian tribes that are similar to the NLRA in 
protecting the rights of employees but differ from the NLRA in 
order to meet the specific needs of Indian tribes throughout 
the United States.

History of Tribal Sovereignty

    Originally, there were few limits on tribal sovereignty. In 
1823, the Supreme Court in Johnson v. M'Intosh held that Indian 
tribes had no power to grant or dispose of lands to anyone 
other than the federal government.\33\ In 1832, the Supreme 
Court in Worcester v. Georgia further indicated Indian tribes 
did not have the authority to deal with foreign powers.\34\ 
Aside from these limits, however, Indian tribes retained all 
the characteristics of independent sovereigns. The Supreme 
Court in Johnson stated Indian tribes ``were admitted to be the 
rightful occupants of the soil, with a legal as well as just 
claim to retain possession of it, and to use it according to 
their own discretion.''\35\ In 1831, in Cherokee Nation v. 
Georgia, the Supreme Court noted the Cherokee Nation had ``the 
character of . . . a state, as a distinct political society 
separated from others, capable of managing its own affairs and 
governing itself.''\36\
---------------------------------------------------------------------------
    \33\21 U.S. (8 Wheat.) 543, 574 (1823). The Court stated that 
because of the European discovery of Indian lands, Indian tribes' 
``power to dispose of the soil at their own will, to whomsoever they 
pleased, was denied by the original fundamental principle, that 
discovery gave exclusive title to those who made it.'' Id.
    \34\ 31 U.S. (6 Pet.) 515, 559 (1832):
---------------------------------------------------------------------------
        The Indian nations had always been considered as 
      distinct, independent political communities, retaining 
      their original natural rights, as the undisputed possessors 
      of the soil, from time immemorial, with the single 
      exception of that imposed by irresistible power, which 
      excluded them from intercourse with any other European 
      potentate than the first discoverer of the coast of the 
      particular region claimed: and this was a restriction which 
      those European potentates imposed on themselves, as well as 
      on the Indians.
---------------------------------------------------------------------------
    \35\21 U.S. (8 Wheat.) 543, 574 (1823).
    \36\30 U.S. (5 Pet.) 1, 16 (1831).
---------------------------------------------------------------------------

Applicability of Labor Laws to Indian Tribes

    While tribal sovereignty has long been recognized, there 
has never been any doubt that Congress has the authority to 
enact limits. Congress can also choose to not limit tribal 
sovereignty. Many federal labor laws specifically exclude 
Indian tribes from the definition of ``employer,'' including 
Title VII of the Civil Rights Act of 1964, Title I of the 
American with Disabilities Act, and the Worker Adjustment and 
Retraining Notification Act. In contrast, statutes of general 
application, including the Uniformed Services Employment and 
Reemployment Rights Act, Age Discrimination in Employment Act, 
Fair Labor Standards Act (FLSA), Family Medical Leave Act, 
Employee Retirement Income Security Act (ERISA), and 
Occupational Safety and Health Act (OSH Act), are silent 
regarding their application to Indian tribes. Federal courts 
have held that statutes of general application, such as the 
FLSA, ERISA, and the OSH Act, apply to Indian tribes and their 
businesses.\37\
---------------------------------------------------------------------------
    \37\See, e.g., Solis v. Matheson, 563 F.3d 425 (9th Cir. 2009) 
(applying FLSA to a retail business located on an Indian reservation 
and owned by Indian tribal members); Smart v. State Farm Ins. Co., 868 
F.2d 929 (7th Cir. 1989) (applying ERISA to employee benefits plan 
established and operated by an Indian tribe for tribal employees); 
Reich v. Mashantucket Sand & Gravel, 95 F.3d 174 (2d Cir. 1996) 
(applying the OSH Act to construction company owned by the Indian tribe 
that only operates within the tribal reservation).
---------------------------------------------------------------------------
    However, there is a key distinction between these laws and 
the NLRA. These laws do not force Indian tribes into a binding 
relationship with a non-governmental third party.\38\ As 
Jefferson Keel, Lieutenant Governor for the Chickasaw Nation, 
stated in his testimony to the Subcommittee, ``[W]e submit that 
the administrative imposition of a private labor model on any 
government, including a tribal government, is incompatible with 
the very nature of sovereignty and self-government.''\39\ Brian 
Cladoosby, President of the National Congress of American 
Indians, raised a similar concern in his testimony before the 
Subcommittee. He stated, ``We are very concerned that the right 
to strike would allow outside forces--third parties with little 
or no connection to the tribal community--to control tribal 
government decisions.''\40\
---------------------------------------------------------------------------
    \38\See, e.g., 29 U.S.C. Sec. 158(d) (obligation of employer and 
union to bargain collectively).
    \39\Legislative Hearing on H.R. 511, supra note 4 (written 
testimony of the Hon. Jefferson Keel at 1) (emphasis added).
    \40\Legislative Hearing on H.R. 986, supra note 8 (written 
testimony of the Hon. Brian Cladoosby at 5).
---------------------------------------------------------------------------

NLRB Jurisdiction over Indian Tribes

    For almost 30 years, the NLRB held ``individual Indians and 
Indian tribal governments, at least on reservation lands, are 
generally free from state or even in most instances Federal 
intervention, unless Congress specifically provided to the 
contrary.''\41\ However, in 2004 in San Manuel, the Board 
adopted a ``new approach to considering Indian owned and 
operated enterprises,''\42\ holding the NLRB has jurisdiction 
over all tribal activities. Relying on San Manuel, the Board 
now asserts jurisdiction on a case-by-case basis, depending on 
whether the activity is commercial or governmental in nature. 
In response to this unnecessary encroachment on tribal 
sovereignty, several members of Congress have introduced 
legislation to undo the precedent established under the San 
Manuel decision. Most recently, Rep. Rokita introduced 
legislation to provide any enterprise or institution owned and 
operated by an Indian tribe and located on its land is not 
considered an employer, effectively excluding them from 
coverage of the NLRA.
---------------------------------------------------------------------------
    \41\Fort Apache Timber Co., 226 NLRB 503 (1976), overruled by San 
Manuel Indian Bingo and Casino, 341 NLRB No. 138 (2004).
    \42\341 NLRB 1055, 1064 (2004).
---------------------------------------------------------------------------
    From 1976 to 2004, the NLRB held the location of an Indian 
business was determinative with respect to the NLRB's 
jurisdiction and the text of the NLRA supported this location-
based rule. In Fort Apache, the NLRB ruled the NLRA did not 
apply to a tribal government operating a timber mill on Indian 
land, finding the mill to be akin to a political subdivision of 
a state government and, therefore, exempt.\43\ In Sac and Fox 
Industries, Ltd., the Board found the NLRA applicable to off-
reservation tribal enterprises, such as logging mills.\44\ 
Together, these cases created the ``on Indian lands/off Indian 
lands'' rule. If the Indian enterprise was located on Indian 
land generally, it was not subject to the NLRA, but those 
located off Indian land were subject to the NLRA.
---------------------------------------------------------------------------
    \43\Fort Apache, 226 NLRB at 506.
    \44\307 NLRB 241 (1992).
---------------------------------------------------------------------------
    In 2004 in San Manuel, a divided NLRB reversed course. 
Relying on controversial dicta in Federal Power Commission v. 
Tuscarora Indian Nation stating a ``general statute in terms 
applying to all persons includes Indians and their property 
interests,''\45\ the NLRB held the NLRA applies to tribal 
governments, and federal Indian policy does not preclude 
application of the NLRA to commercial activities on tribal 
land.\46\ In deciding San Manuel, the NLRB noted the NLRA does 
not expressly exclude Indian tribes.\47\ Therefore, according 
to the NLRB, the issue is left to the Board's discretion. Now, 
relying on San Manuel, the Board determines whether to assert 
jurisdiction based on the conduct at issue. Where the conduct 
is commercial in nature, employing significant numbers of non-
Indians, and catering to non-Indian customers, the Board 
concluded ``the special attributes of [tribal] sovereignty are 
not implicated.''\48\ In contrast, when tribes are acting with 
regard to the particularized sphere of traditional tribal or 
governmental functions, the Board indicated it should defer to 
the tribes by declining to assert its discretionary 
jurisdiction.\49\ Additionally, the Board does not assert 
jurisdiction if the application of the law would abrogate 
treaty rights or there was ``proof'' in the statutory language 
or legislative history that Congress did not intend the NLRA to 
apply to Indian tribes.\50\ Then-Board Member Peter C. 
Schaumber strongly dissented, stating ``rebalancing of 
competing policy interests involving Indian sovereignty is a 
task for Congress to undertake.''\51\ On appeal, the U.S. Court 
of Appeals for the District of Columbia Circuit upheld the 
NLRB's holding in San Manuel.\52\
---------------------------------------------------------------------------
    \45\362 US 99, 116 (1960). In his dissenting opinion in San Manuel, 
then-Member Schaumber argued this statement in Tuscarora Indian Nation 
is questionable dicta, lacks any foundation in Indian law, and has been 
abandoned, if not overruled, by the Supreme Court. 341 NLRB at 1070-74.
    \46\341 NLRB at 1057-62.
    \47\Id. at 1058. In fact, neither the text of the NLRA nor its 
legislative history reference coverage of Indian tribes.
    \48\Id. at 1062.
    \49\Id. at 1063.
    \50\Id. at 1059.
    \51\Id. at 1065 (Schaumber, Member, dissenting).
    \52\San Manuel Indian Bingo and Casino v. NLRB, 475 F.3d 1306 (D.C. 
Cir. 2007).
---------------------------------------------------------------------------
    In testimony before the Subcommittee, Jefferson Keel, 
Lieutenant Governor of the Chickasaw Nation, criticized the 
NLRB's decision in San Manuel for diminishing tribal 
sovereignty. He stated:

          [The NLRB's San Manuel ruling] reversed seventy years 
        of settled administrative practice and signaled an 
        effort to expand federal administrative jurisdiction 
        over tribal sovereigns. . . . [The Board's] approach 
        had been widely criticized as contrary to established 
        federal law which presumes a statute does not apply to 
        abridge tribal sovereignty in the absence of express 
        evidence that Congress intended such a result. Turning 
        this settled rule of Indian law upside-down, the 
        Board's newly-fashioned analysis shifts the burden to 
        the tribal sovereign to show either that Congress 
        intended to exempt the tribe from the statutory scheme, 
        or that a tribe-specific element (such as intramural 
        affairs or a controlling treaty provision) limits the 
        Act's jurisdictional reach.\53\
---------------------------------------------------------------------------
    \53\Legislative Hearing on H.R. 511 supra note 4 (written testimony 
of the Hon. Jefferson Keel at 4) (emphasis in original).

    Rodney Butler, Chairman of the Mashantucket Pequot Nation, 
similarly criticized San Manuel in his testimony before the 
---------------------------------------------------------------------------
Subcommittee:

          The San Manuel decision was not only a complete 
        reversal of the NLRB's recognition of tribes as 
        sovereigns, it is also an affront to Indian Country. It 
        suggests that Indian tribes are incapable of developing 
        laws and institutions to protect the rights of 
        employees who work on our reservations. Our experience 
        proves nothing could be further from the truth.\54\
---------------------------------------------------------------------------
    \54\Id. (written testimony of the Hon. Rodney Butler at 2).

    Robert Odawi Porter, President of the Seneca Nation of 
Indians, also expressed concern in his testimony to the 
Subcommittee about San Manuel's erosion of tribal sovereignty. 
He stated, ``Many aspects of our treaty-recognized freedoms 
have been eroded over time. . . . A prime example of this legal 
regression can be found in recent tribal labor management 
decisions taken by the [NLRB] and the federal courts in the 
[San Manuel case].''\55\
---------------------------------------------------------------------------
    \55\Examining Proposals to Strengthen the National Labor Relations 
Act, supra note 1, at 8-9 (written testimony of the Hon. Robert Odawi 
Porter).
---------------------------------------------------------------------------
    Witnesses further testified to the Subcommittee that tribal 
sovereignty includes parity with federal, state, and local 
governments, which San Manuel has undermined. Regarding the 
Mashantucket Pequot Nation, Chairman Butler stated, ``We seek 
to be treated just like every other sovereign under the NLRA--
nothing more--nothing less.''\56\ In his testimony, Richard 
Guest of the Native American Rights Fund similarly argued for 
equal treatment of governments, stating:
---------------------------------------------------------------------------
    \56\Legislative Hearing on H.R. 511, supra note 4 (written 
testimony of the Hon. Rodney Butler at 2).

          [I]t is time for Congress to provide parity for 
        tribal governments under the NLRA. In this context, 
        parity encompasses the quality of being treated equally 
        under the law alongside Federal, State and Local 
        governments. Tribal governments are entitled to the 
        same freedom to choose the appropriate time, place and 
        manner for regulating union activity on Indian lands 
        and collective bargaining for its employees.\57\
---------------------------------------------------------------------------
    \57\Id. (written testimony of Richard Guest at 1-2) (emphasis 
omitted).

    Lieutenant Governor Keel also stated, ``All governments are 
entitled to equal respect under the law, precisely as Congress 
in 1935 intended.''\58\ In addition, regarding the Senecan 
Nation of Indians, President Porter noted, ``We have always 
insisted that federal law treat our tribal governments as it 
treats other governments.''\59\
---------------------------------------------------------------------------
    \58\Id. (written testimony of the Hon. Jefferson Keel at 1) 
(emphasis in original).
    \59\Examining Proposals to Strengthen the National Labor Relations 
Act, supra note 1, at 9 (written testimony of the Hon. Robert Odawi 
Porter).
---------------------------------------------------------------------------
    Brian Cladoosby, President of the National Congress of 
American Indians, pointed out in his testimony before the 
Subcommittee, ``[More than] 90,000 other units of government in 
America, who employ over 21 million Americans, are not subject 
to the NLRA. The Board in 2004 made tribal governments the only 
governments subject to the NLRA.''\60\ Nathaniel Brown, Navajo 
Nation Council Member, also argued for parity in his 2017 
testimony before the Subcommittee, stating, ``[W]e are not 
asking for special treatment. The United States and States have 
been afforded this exemption [from the NLRA]. We simply want 
parity. If they are able to self-govern and be self-determined 
with regards to the NLRA, so should we.''\61\
---------------------------------------------------------------------------
    \60\ Legislative Hearing on H.R. 986, supra note 8 (written 
testimony of the Hon. Brian Cladoosby at 3).
    \61\Id. (written statement of the Hon. Nathaniel Brown at 2).
---------------------------------------------------------------------------
    Robert J. Welch, Jr., Chairman of the Viejas Band of 
Kumeyaay Indians, made a similar point in his testimony, 
stating:

          As sovereign governments engaged in economic 
        activities essential to fund government services, 
        Tribes, such as the Viejas Band, should enjoy the same 
        exempt status as the United States, State governments, 
        and their government business. If exemption is 
        appropriate for state lotteries, it should be for 
        Tribal governments too.\62\
---------------------------------------------------------------------------
    \62\Id. (written statement of the Hon. Robert J. Welch, Jr., at 3).

    In 2007, in Foxwoods Resort Casino,\63\ the NLRB reinforced 
its decision in San Manuel. The Board noted that 98 percent of 
the Mashantucket Pequot Tribe's revenues were derived from the 
operation of the casino, which it used to fund various 
endeavors aimed toward promoting the tribal community and 
tribal self-government.\64\ However, the Board exerted 
jurisdiction because the casino was an exclusively commercial 
venture generating income for the tribe almost exclusively from 
the general public, competed in the same commercial arena with 
other non-tribal casinos, overwhelmingly employed non-tribal 
members, and actively marketed to the general public.\65\
---------------------------------------------------------------------------
    \63\No. 34-RC-2230 (Oct. 24, 2007) (decision and direction of 
election).
    \64\Id. at 4.
    \65\Id. at 13.
---------------------------------------------------------------------------
    In 2013, in Soaring Eagle Casino and Resort (Soaring 
Eagle),\66\ the NLRB exerted jurisdiction over another Indian 
tribe. The Saginaw Chippewa Tribe operates a casino on the 
Isabella Reservation in Isabella County, Michigan. Treaties 
made in 1855 and 1864 with the federal government afforded the 
Saginaw exclusive use, ownership, occupancy, and self-
governance of a permanent homeland in Isabella County.\67\ 
Despite such strong treaty language, the NLRB, applying San 
Manuel, determined the general treaty language devoting land to 
a tribe's exclusive use was insufficient to preclude 
application of federal law.\68\ As such, the Board exerted 
jurisdiction and ordered the tribe to rehire an employee who 
had been fired for union organizing, pay four years of back 
pay, and post notices in the workplace admitting it had 
violated federal labor law and reiterating employees' rights to 
unionize.\69\
---------------------------------------------------------------------------
    \66\359 NLRB No. 92, 2013 WL 1646049 (2013), vacated (2014), aff'd, 
361 NLRB No. 73 (2014), aff'd, Soaring Eagle Casino and Resort v. NLRB, 
791 F.3d 648 (2015).
    \67\Soaring Eagle Casino and Resort, 2013 WL 1646049, *4.
    \68\Id. at *12.
    \69\Id. at *19.
---------------------------------------------------------------------------
    In contrast, on June 4, 2015, after years of litigation, 
the NLRB in Chickasaw Nation unanimously declined to assert 
jurisdiction.\70\ At issue in the case was whether the 
Chickasaw Nation, in its capacity as operator of the WinStar 
World Casino, is subject to the Board's jurisdiction. Applying 
San Manuel, the Board found the NLRA would abrogate treaty 
rights, specific to the Chickasaw Nation, contained in the 1830 
Treaty of Dancing Rabbit Creek. As such, the Board declined to 
assert jurisdiction.\71\
---------------------------------------------------------------------------
    \70\362 NLRB No. 109, 2015 WL 3526096 (2015).
    \71\2015 WL 3526096, *3.
---------------------------------------------------------------------------
    Although the Board's decision in Chickasaw Nation 
recognized the tribe's rights as a government under the treaty, 
the decision only added to the uncertainty other Indian tribes 
face with respect to NLRA jurisdiction. In his testimony before 
the Subcommittee, Lieutenant Governor Keel of the Chickasaw 
Nation stated the following:

          While the new Board ruling establishes an important 
        precedent in recognizing the Chickasaw Nation's tribal 
        rights as a government, it also creates enormous 
        uncertainty for other American Indian tribes across the 
        country whose treaty language (if any) may well differ 
        from the Chickasaw Nation's treaty language. Further, 
        it has the consequence of making the NLRB the arbiter 
        of tribal treaty rights, instead of Congress and the 
        Courts--even though the NLRB itself has repeatedly 
        acknowledged it possesses no expertise whatsoever in 
        Indian law or matters of tribal sovereignty.\72\
---------------------------------------------------------------------------
    \72\Legislative Hearing on H.R. 511, supra note 4 (written 
testimony of the Hon. Jefferson Keel at 4).

    On June 9, 2015, in NLRB v. Little River Band of Ottawa 
Indian Tribal Government (Little River Band), a divided U.S. 
Court of Appeals for the Sixth Circuit ruled the NLRB may apply 
the NLRA to a Michigan casino operating on tribal land.\73\ The 
majority held although the NLRA is silent on the issues, the 
statutory terms ``employer'' and ``person'' both encompass 
Indian tribes.\74\ Additionally, the majority found nothing in 
federal Indian law forecloses application of the NLRA to the 
band's operation of its casino and regulation of its 
employees.\75\ Dissenting, Judge David McKeague argued 
principles of tribal sovereignty should leave the band free to 
regulate its own labor relations at the casino.\76\
---------------------------------------------------------------------------
    \73\788 F.3d 537 (6th Cir. 2015).
    \74\Id. at 543.
    \75\Id. at 544-56.
    \76\Id. at 556 (McKeague, J., dissenting).
---------------------------------------------------------------------------
    Less than a month after the Little River Band decision, 
another Sixth Circuit panel issued a decision in an appeal from 
the NLRB in Soaring Eagle. The Soaring Eagle panel stated its 
disagreement with the Little River Band decision. Regardless, 
the panel found it was bound by the Little River Band decision 
released just weeks earlier, and thus forced to rule the NLRA 
had jurisdiction over the Saginaw Chippewa Indian Tribe of 
Michigan, owner and operator of the Soaring Eagle Casino and 
Resort.\77\ In June 2016, the Supreme Court declined to hear an 
appeal of the Soaring Eagle and Little River Band 
decisions.\78\ In his testimony before the Subcommittee, 
Lieutenant Governor Keel cited the Sixth Circuit's decision 
upholding the Board's jurisdiction in Little River Band as 
evidence of the ``arbitrary risk that arises from shifting 
control over tribal sovereignty to a quasi-independent federal 
agency.''\79\
---------------------------------------------------------------------------
    \77\791 F.3d 648 (6th Cir. 2015), rehearing en banc denied, 791 
F.3d 648 (6th Cir. 2015), cert. denied, 136 S. Ct. 2509 (2016).
    \78\136 S. Ct. 2509 (2016).
    \79\Legislative Hearing on H.R. 511, supra note 4 (written 
testimony of the Hon. Jefferson Keel at 4).
---------------------------------------------------------------------------
    Most recently, on October 11, 2016, an NLRB Administrative 
Law Judge found the Viejas Tribe was subject to the NLRA in 
Viejas Band of Kumeyaay Indians.\80\ The tribe in that case has 
asked the full Board to review the issue of whether they are an 
employer under the NLRA.
---------------------------------------------------------------------------
    \80\Case No. 21-CA-166290 (Oct. 24, 2016).
---------------------------------------------------------------------------
    These cases have seen varying outcomes and the opaque 
application of Indian treaty law, which creates a vague 
standard. The subjective nature of the San Manuel test and its 
threat to sovereignty have made this an issue of concern for 
tribes across the country. Representatives of the tribal 
community testified about the need for a legislative fix to 
clarify tribal sovereignty. For example, Chairman Cladoosby 
stated the following in testimony before the HELP Subcommittee:

          Where Tribal sovereignty is undermined or threatened 
        in any way, we have no choice but to take a strong 
        stand . . . . With [the San Manuel] decision, the Board 
        upended 70 years of precedent and unilaterally 
        disregarded Tribal labor law and made Tribal 
        governments the only governments in the United States 
        subject to the NLRA. With the Tribal Labor Sovereignty 
        Act, Congress resolves any question about whether the 
        NLRA applies to Tribal governments and reaffirms 
        sovereign governmental rights of Indian Tribes to make 
        their own labor policies that govern their own 
        governmental employees.\81\
---------------------------------------------------------------------------
    \81\Legislative Hearing, supra note 8 (oral testimony of the Hon. 
Brian Cladoosby).

    Additionally, Nathaniel Brown of the Navajo Nation Council 
testified before the HELP Subcommittee that H.R. 986 is a 
``step in the right direction toward honoring [Tribal] 
sovereignty and self-determination.''\82\ At the same hearing, 
Chairman Welch of the Viejas Band of Kumeyaay Indians agreed. 
He stated the following:
---------------------------------------------------------------------------
    \82\Id. (oral testimony of the Hon. Nathaniel Brown).

          H.R. 986 is about respecting the sovereignty of 
        Tribes and affirming that they possess the same power 
        as Federal, State, and local governments to regulate 
        labor relations on sovereign lands . . . . Tribes 
        should not be treated as second class governments. 
        Viejas respectfully requests that Congress enact H.R. 
        986.\83\
---------------------------------------------------------------------------
    \83\Id. (oral testimony of the Hon. Robert J. Welch, Jr.).
---------------------------------------------------------------------------

                               Conclusion

    The cases described above illustrate the subjective nature 
of the Board's test and the need for statutory clarity with 
respect to NLRB jurisdiction over tribal enterprises. The 
Board, with no particular experience in federal Indian or 
treaty law, currently determines whether the NLRA would 
interfere with tribal sovereignty or abrogate treaty rights in 
a highly subjective manner, leaving tribes covered by treaties 
with little certainty. Worse, sovereign tribes without treaties 
are almost certainly covered by the NLRA, creating different 
classes of tribes under the NLRA. H.R. 986, the Tribal Labor 
Sovereignty Act of 2017, creates parity with the states and 
between tribes, thus ensuring tribal sovereignty.

                           Section-by-Section

    The following is a section-by-section analysis of the 
Amendment in the Nature of a Substitute offered by Rep. Rokita 
and reported favorably by the Committee.
    Section 1. Provides the short title is the ``Tribal Labor 
Sovereignty Act of 2017.''
    Section 2. Amends the NLRA to exclude Indian tribes, and 
any enterprise or institution owned and operated by an Indian 
tribe and located on its Indian lands, from the definition of 
employer. Additionally, it defines the terms ``Indian tribe,'' 
``Indian,'' and ``Indian land.''

                       Explanation of Amendments

    The amendments, including the amendment in the nature of a 
substitute, are explained in the body of this report.

              Application of Law to the Legislative Branch

    Section 102(b)(3) of Public Law 104-1 requires a 
description of the application of this bill to the legislative 
branch. H.R. 986 codifies the pre- 2004 NLRB standard by 
amending the NLRA to provide that any enterprise or institution 
owned and operated by an Indian tribe and located on its land 
is not considered an employer, excluding such from coverage of 
the NLRA.

                       Unfunded Mandate Statement

    Section 423 of the Congressional Budget and Impoundment 
Control Act (as amended by Section 101(a)(2) of the Unfunded 
Mandates Reform Act, P.L. 104-4) requires a statement of 
whether the provisions of the reported bill include unfunded 
mandates. This issue is addressed in the CBO letter.

                           Earmark Statement

    H.R. 986 does not contain any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9 of House Rule XXI.

                            Roll Call Votes

    Clause 3(b) of rule XIII of the Rules of the House of 
Representatives requires the Committee Report to include for 
each record vote on a motion to report the measure or matter 
and on any amendments offered to the measure or matter the 
total number of votes for and against and the names of the 
Members voting for and against.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

         Statement of General Performance Goals and Objectives

    In accordance with clause (3)(c) of House Rule XIII, the 
goal of H.R. 986 is to protect tribal sovereignty and the right 
to tribal self-governance.

                    Duplication of Federal Programs

    No provision of H.R. 986 establishes or reauthorizes a 
program of the Federal Government known to be duplicative of 
another Federal program, a program that was included in any 
report from the Government Accountability Office to Congress 
pursuant to section 21 of Public Law 111-139, or a program 
related to a program identified in the most recent Catalog of 
Federal Domestic Assistance.

                  Disclosure of Directed Rule Makings

    The Committee estimates that enacting H.R. 986 does not 
specifically direct the completion of any specific rule makings 
within the meaning of 5 U.S.C. 551.

  Statement of Oversight Findings and Recommendations of the Committee

    In compliance with clause 3(c)(1) of rule XIII and clause 
2(b)(1) of rule X of the Rules of the House of Representatives, 
the Committee's oversight findings and recommendations are 
reflected in the body of this report.

               New Budget Authority and CBO Cost Estimate

    With respect to the requirements of clause 3(c)(2) of rule 
XIII of the Rules of the House of Representatives and section 
308(a) of the Congressional Budget Act of 1974 and with respect 
to requirements of clause 3(c)(3) of rule XIII of the Rules of 
the House of Representatives and section 402 of the 
Congressional Budget Act of 1974, the Committee has received 
the following estimate for H.R. 986 from the Director of the 
Congressional Budget Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, July 21, 2017.
Hon. Virginia Foxx,
Chairwoman, Committee on Education and the Workforce,
House of Representatives, Washington, DC.
    Dear Madam Chairwoman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 986, the Tribal 
Labor Sovereignty Act of 2017.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Christina 
Hawley Anthony.
            Sincerely,
                                             Mark P. Hadley
                                        (For Keith Hall, Director).
    Enclosure.

H.R. 986--Tribal Labor Sovereignty Act of 2017

    H.R. 986 would add tribes to the list of entities that are 
excluded from the definition of "employer" for purposes of the 
National Labor Relations Act. Through the National Labor 
Relations Board (NLRB), the National Labor Relations Act 
protects the rights of most private-sector employees to form a 
union and to bargain collectively. Adding tribes to the list of 
excluded employers would treat them similarly to state and 
local governments. Currently, the NLRB generally asserts 
jurisdiction over the commercial enterprises owned and operated 
by Indian tribes, even if they are located on a tribal 
reservation. However, the NLRB does not assert jurisdiction 
over tribal enterprises that carry out traditional tribal or 
governmental functions.
    Enacting H.R. 986 would not significantly affect the 
workload of the NLRB and thus would have no effect on the 
federal budget. Because enacting the bill would not affect 
direct spending or revenues, pay-as-you-go procedures do not 
apply.
    CBO estimates that enacting H.R. 986 would not increase net 
direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2028.
    H.R. 986 contains no intergovernmental mandates as defined 
in the Unfunded Mandates Reform Act (UMRA).
    By excluding tribal enterprises located on tribal land from 
the definition of employer for purposes of the National Labor 
Relations Act, the bill would eliminate the right of employees 
of such enterprises to file a claim, individually or through a 
union, regarding certain labor practices. Currently, employees 
may file a claim against tribal employers over which the NLRB 
asserts jurisdiction alleging unfair labor practices under the 
act that prohibit or interfere with collective activities to 
improve wages and working conditions. By eliminating the right 
of employees to file such claims with the NLRB, the bill would 
impose a private-sector mandate. The direct cost of the mandate 
would be the value of forgone monetary awards resulting from 
claims that would have been filed with the NLRB in the absence 
of the bill.
    According to the NLRB, it currently receives about 20,000 
to 30,000 claims in total each year from employees, unions, or 
employers alleging unfair labor practices and more than half of 
all claims are withdrawn or dismissed. Other claims may be 
settled by the parties or adjudicated by the NLRB. Successful 
claims may result in remedies such as reinstatement of 
discharged employees and back pay for the period of 
unemployment, as well as payment of dues, fines or other costs. 
In fiscal year 2016, claims with the NLRB resulted in about 600 
cases in which employees were reinstated and in awards of about 
$53 million in back pay and other costs. Case documents show 
that the NLRB has asserted jurisdiction over only a small 
number of tribal enterprises since 2004 (fewer than 10). Based 
on those data, CBO estimates that the cost of the mandate would 
not be substantial and would fall below the annual threshold 
established in UMRA for private-sector mandates ($156 million 
in 2017, adjusted annually for inflation).
    Successful claims filed with the NLRB also may result in a 
requirement on employers that would allow their employees to 
form a union and bargain collectively. Imposing such a 
requirement on employers may have a broader impact than that 
measured by the value of forgone monetary awards and 
settlements for claims brought before the NLRB. However, under 
UMRA that broader impact is not considered part of the direct 
cost of the mandate.
    On February 16, 2017, CBO issued an estimate for S. 63, the 
Tribal Labor Sovereignty Act of 2017, as ordered reported by 
the Senate Committee on Indian Affairs. That bill is identical 
to H.R. 986, and the estimates are the same for both bills.
    The CBO staff contacts for this estimate are Christina 
Hawley Anthony (for federal costs) and Amy Petz (for private-
sector mandates). The estimate was approved by H. Samuel 
Papenfuss, Deputy Assistant Director for Budget Analysis.

                        Committee Cost Estimate

    Clause 3(d)(1) of rule XIII of the Rules of the House of 
Representatives requires an estimate and a comparison of the 
costs that would be incurred in carrying out H.R. 986. However, 
clause 3(d)(2)(B) of that rule provides that this requirement 
does not apply when the Committee has included in its report a 
timely submitted cost estimate of the bill prepared by the 
Director of the Congressional Budget Office under section 402 
of the Congressional Budget Act.
    Changes in Existing Law Made by the Bill, as Reported
    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italic and existing law in which no change is 
proposed is shown in roman):

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italic and existing law in which no change is 
proposed is shown in roman):

NATIONAL LABOR RELATIONS ACT

           *       *       *       *       *       *       *

                              definitions

  Sec. 2. When used in this Act--
  (1) The term ``person'' includes one or more individuals, 
labor organizations, partnerships, associations, corporations, 
legal representatives, trustees, trustees in cases under title 
11 of the United States Code, or receivers.
  (2) The term ``employer'' includes any person acting as an 
agent of an employer, directly or indirectly, but shall not 
include the United States or any wholly owned Government 
corporation, or any Federal Reserve Bank, or any State or 
political subdivision thereof, or any Indian tribe, or any 
enterprise or institution owned and operated by an Indian tribe 
and located on its Indian lands, or any person subject to the 
Railway Labor Act, as amended from time to time, or any labor 
organization (other than when acting as an employer), or anyone 
acting in the capacity of officer or agent of such labor 
organization.
  (3) The term ``employee'' shall include any employee, and 
shall not be limited to the employees of a particular employer, 
unless the Act explicitly states otherwise, and shall include 
any individual whose work has ceased as a consequence of, or in 
connection with, any current labor dispute or because of any 
unfair labor practice, and who has not obtained any other 
regular and substantially equivalent employment, but shall not 
include any individual employed as an agricultural laborer, or 
in the domestic service of any family or person at his home, or 
any individual employed by his parent or spouse, or any 
individual having the status of an independent contractor, or 
any individual employed as a supervisor, or any individual 
employed by an employer subject to the Railway Labor Act, as 
amended from time to time, or by any other person who is not an 
employer as herein defined.
  (4) The term ``representatives'' includes any individual or 
labor organization.
  (5) The term ``labor organization'' means any organization of 
any kind, or any agency or employee representation committee or 
plan, in which employees participate and which exists for the 
purpose, in whole or in part, of dealing with employers 
concerning grievances, labor disputes, wages, rates of pay, 
hours of employment, or conditions of work.
  (6) The term ``commerce'' means trade, traffic, commerce, 
transportation, or communication among the several States, or 
between the District of Columbia or any Territory of the United 
States and any State or other Territory, or between any foreign 
country and any State, Territory, or the District of Columbia, 
or within the District of Columbia or any Territory, or between 
points in the same State but through any other State or any 
Territory or the District of Columbia or any foreign country.
  (7) The term ``affecting commerce'' means in commerce, or 
burdening or obstructing commerce or the free flow of commerce, 
or having led or tending to lead to a labor dispute burdening 
or obstructing commerce or the free flow of commerce.
  (8) The term ``unfair labor practice'' means any unfair labor 
practice listed in section 8.
  (9) The term ``labor dispute'' includes any controversy 
concerning terms, tenure or conditions of employment, or 
concerning the association or representation of persons in 
negotiating, fixing, maintaining, changing, or seeking to 
arrange terms or conditions of employment, regardless of 
whether the disputants stand in the proximate relation of 
employer and employee.
  (10) The term ``National Labor Relations Board'' means the 
National Labor Relations Board provided for in section 3 of 
this Act.
  (11) The term ``supervisor'' means any individual having 
authority, in the interest of the employer, to hire, transfer, 
suspend, lay off, recall, promote, discharge, assign, reward, 
or discipline other employees, or responsibly to direct them, 
or to adjust their grievances, or effectively to recommend such 
action, if in connection with the foregoing the exercise of 
such authority is not of a merely routine or clerical nature, 
but requires the use of independent judgment.
  (12) The term ``professional employee'' means--
          (a) any employee engaged in work (i) predominantly 
        intellectual and varied in character as opposed to 
        routine mental, manual, mechanical, or physical work; 
        (ii) involving the consistent exercise of discretion 
        and judgment in its performance; (iii) of such a 
        character that the output produced or the result 
        accomplished cannot be standardized in relation to a 
        given period of time; (iv) requiring knowledge of an 
        advanced type in a field of science or learning 
        customarily acquired by a prolonged course of 
        specialized intellectual instruction and study in an 
        institution of higher learning or a hospital, as 
        distinguished from a general academic education or from 
        an apprenticeship or from training in the performance 
        of routine mental, manual, or physical processes; or
          (b) any employee, who (i) has completed the courses 
        of specialized intellectual instruction and study 
        described in clause (iv) of paragraph (a), and (ii) is 
        performing related work under the supervision of a 
        professional person to qualify himself to become a 
        professional employee as defined in paragraph (a).
  (13) In determining whether any person is acting as an 
``agent'' of another person so as to make such other person 
responsible for his acts, the question of whether the specific 
acts performed were actually authorized or subsequently 
ratified shall not be controlling.
  (14) The term ``health care institution'' shall include any 
hospital, convalescent hospital, health maintenance 
organization, health clinic, nursing home, extended care 
facility, or other institution devoted to the care of sick, 
infirm, or aged person.
  (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 Indian or held by any Indian tribe or Indian 
        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.

           *       *       *       *       *       *       *

                             MINORITY VIEWS

    This bill would strip workers of their rights to organize 
and collectively bargain at any enterprise owned and operated 
by a recognized Indian tribe on tribal land. H.R. 986 amends 
the definition of a covered ``employer'' per the National Labor 
Relations Act (NLRA), which has the effect of excluding such 
tribal enterprises from the jurisdiction of the NLRA. All 
present Democratic members of the Committee opposed H.R. 986 
during a roll call vote.
    This bill arises from tension between two deeply-held 
principles: the rights that Indian tribes possess as 
``distinct, independent political communities, retaining their 
original natural rights in matters of local self-
government,''\1\ and the rights of workers to organize, bargain 
collectively, and engage in concerted activities for mutual aid 
and protection.
---------------------------------------------------------------------------
    \1\Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55 (1978).
---------------------------------------------------------------------------
    Rather than attempting to balance these important 
interests, H.R. 986 strips hundreds of thousands of workers--
the majority of whom are not members of tribes--of their right 
to a voice in the workplace. As the International Labor 
Organization (ILO) has noted with regards to this legislation, 
this exclusion from the NLRA ``would give rise to 
discrimination in relation to the protection of trade union 
rights which would affect both indigenous and non-indigenous 
workers simply on the basis of their workplace location.''\2\
---------------------------------------------------------------------------
    \2\Letter from Corrine Vargha, ILO Director of International Labor 
Standards Department, to Richard Trumka, AFL-CIO President.
---------------------------------------------------------------------------
    The NLRA's protection of employees' rights to join unions 
is especially critical for this group of predominantly lower-
wage workers. According to a 2013 report by UNITE HERE, the 
average California tribal casino worker without a union makes 
$10.02 per hour or $20,841 annually. At this level, a family of 
four with one breadwinner would be living at 88 percent of the 
federal poverty level. In contrast, workers with collective-
bargaining agreements earned $7,558 (41 percent) more in 
combined wages and health insurance benefits than the industry 
average in California.\3\
---------------------------------------------------------------------------
    \3\The Emerging Standard: An Analysis of Job Quality in 
California's Tribal Gaming Industry, UNITE HERE (October 2013).
---------------------------------------------------------------------------
    Wrapped in the garb of respect for tribal sovereignty, this 
bill is another attempt to dismantle labor unions and strip 
workers of their ability to bargain for better pay and working 
conditions.

                      Committee Action on H.R. 986

    Committee Democrats did not offer amendments to H.R. 986 
during the June 29, 2017 markup. The bill was approved on a 
roll call vote 22-16, with all Democrats present opposing.

    Previous House Floor Consideration of Legislation To Block the 
Applicability of the NLRA to Employees of Commercial Tribal Enterprises

    In the 114th Congress, the House Committee on Education and 
the Workforce reported the same bill (H.R. 511) on September 
10, 2015. The House passed the bill by a 249-177 vote on 
November 17, 2015. Prior to the vote, the Obama administration 
issued a Statement of Administration Policy opposing the bill, 
but stated that the administration could support a compromise 
that would ``exempt[] tribes from the jurisdiction of the 
[NLRB] only if the tribes adopt labor standards and procedures 
. . . reasonably equivalent to those in the National Labor 
Relations Act.''\4\ The Majority has not expressed interest in 
exploring this option.
---------------------------------------------------------------------------
    \4\Barack Obama, Statement of Administration Policy: H.R. 511--
Tribal Labor Sovereignty Act of 2015 (Nov. 17, 2015) https://
obamawhitehouse.archives.gov/sites/default/files/omb/legislative/sap/
114/saphr511h_20151117.pdf.
---------------------------------------------------------------------------
    Floor amendments were offered to both the Fiscal Year 2005 
and the 2006 House Labor-HHS Appropriations Acts that would 
have blocked the NLRB from enforcing the San Manuel Indian 
Bingo and Casino decision. These amendments, offered by 
Representative J.D. Hayworth, were twice rejected on roll call 
votes: 225 to 187 on September 9, 2004, and 256 to 146 on June 
24, 2005.\5\
---------------------------------------------------------------------------
    \5\Congressional Record, September 9, 2004, pp. H.6951-6952 and 
June 24, 2005, pp. H.5153.
---------------------------------------------------------------------------

The NLRA's Application to Tribal Enterprises Is Settled Law and Rooted 
                       in Longstanding Precedent

    The NLRA is a statute of general applicability, and does 
not exclude tribal enterprises from its jurisdiction.\6\ As 
observed by the Supreme Court in 1960, ``it is now well settled 
by many decisions of this Court that a general statute in terms 
applying to all persons includes Indians and their property 
interests.''\7\ To clarify this principle, courts apply the 
three-prong test established in the Ninth Circuit's 1985 
decision Donovan v. Coeur d'Alene Tribal Farm.\8\ This test 
holds that a federal law of general applicability does not 
apply to a tribe if: (1) it touches upon a tribe's intramural 
governance; (2) it abrogates rights guaranteed by an Indian 
treaty; or, (3) Congress indicates that a law should not apply 
to Indian tribes.\9\
---------------------------------------------------------------------------
    \6\The NLRA defines the term ``employer'' to include ``any person 
acting as an agent of an employer, directly or indirectly, but shall 
not include the United States or any wholly owned Government 
corporation, or any Federal Reserve Bank, or any State or political 
subdivision thereof, or any person subject to the Railway Labor Act. . 
.''
    \7\FPC v. Tuscarora Indian Nation, 362 U.S. 99, 116 (1960).
    \8\751 F.2d 1113 (9th Cir. 1985).
    \9\Id. at 1116.
---------------------------------------------------------------------------
    In 2004, during the Bush Administration, the National Labor 
Relations Board (NLRB) in San Manuel Indian Bingo and Casino 
applied this three-prong test in deciding whether to assert 
jurisdiction over a tribal casino on tribal lands.\10\ In doing 
so, the NLRB sought to harmonize its interpretation of the NLRA 
with the Supreme Court's presumption that laws of general 
applicability apply to tribes.\11\ Noting the three exceptions 
articulated in Coeur d'Alene, the NLRB went a step further and 
adopted a fourth exception where there are policy reasons not 
to assert jurisdiction in order ``to balance the Board's 
interest in effectuating the policies of the Act with its 
desire to accommodate the unique status of Indians in our 
society and legal culture.''\12\
---------------------------------------------------------------------------
    \10\341 NLRB 1055 (2004), enforced 475 F.3d 1306 (D.C. Cir. 2007).
    \11\Id. at 1059 (citing Tuscarora, 362 U.S. at 116).
    \12\San Manuel, 341 NLRB at 1062.
---------------------------------------------------------------------------
    Applying this test, the NLRB found that it would generally 
apply the NLRA to tribal-owned businesses except when it meets 
any of the above exceptions. For example, the NLRB declined to 
exercise jurisdiction over tribal enterprises including a 
health clinic that served primarily tribal members in Alaska 
based on the fourth exception.\13\ In another example, the 
Board declined jurisdiction over an Oklahoma casino run by the 
Chickasaw tribe that was party to an 1830 treaty which exempts 
the tribe from nearly all federal laws.\14\ The case law 
distinguishes between proprietary interests, such as the 
operation of a casino, where the Coeur d'Alene tests would 
apply, and sovereign interests involving tribal self-
governance, such as a tribal statute prohibiting union security 
agreements, where the NLRA jurisdiction would be 
foreclosed.\15\
---------------------------------------------------------------------------
    \13\Yukon Kuskokwim Health Corp., 341 NLRB 1075 (2004).
    \14\Chickasaw Nation d/b/a Winstar World Casino, 362 NLRB No. 109 
(June 4, 2015).
    \15\NLRB v. Pueblo of San Juan, 276 F.3d 1186 (10th Cir. 2002).
---------------------------------------------------------------------------
    The NLRB's finding that the NLRA applies to tribal 
enterprises, barring the above exceptions, is now settled law. 
The Supreme Court decided against hearing two challenges to the 
NLRB's San Manuel decision, and every court that has considered 
the San Manuel framework--the D.C. Circuit, the Sixth Circuit, 
and a federal district court in the Eighth Circuit--has upheld 
it.\16\
---------------------------------------------------------------------------
    \16\NLRB v. Little River Band of Ottawa Indians v. NLRB, 788 F.3d 
537 (6th Cir. 2015), cert. denied (U.S. June 27, 2016); Soaring Eagle 
Casino and Resort v. NLRB, 791 F.3d 648 (6th Cir. 2015), cert. denied 
(U.S. June 27, 2016); San Manuel Indian Bingo & Casino v. NLRB, 475 
F.3d 1306 (D.C. Cir. 2007); NLRB v. Fortune Bay Resort Casino, 688 
F.Supp.2d 858 (D. Minn. 2010).
---------------------------------------------------------------------------

Many Employment Laws Apply to Tribal Enterprises, but H.R. 986 Singles 
    Out Workers' Rights To Organize Unions and Collectively Bargain

    Using the Coeur d'Alene framework, numerous courts have 
upheld the applicability of other federal employment laws to 
Indian tribes, including:
            Fair Labor Standards Act (FLSA)\17\
---------------------------------------------------------------------------
    \17\Solis v. Matheson, 563 F.3d 425 (9th Cir. 2009).
---------------------------------------------------------------------------
            Occupational Safety and Health Act 
        (OSHA)\18\
---------------------------------------------------------------------------
    \18\Reich v. Mashantucket Sand & Gravel, 95 F.3d 174 (2d Cir. 
1996).
---------------------------------------------------------------------------
            Employee Retirement Income Security Act 
        (ERISA)\19\
---------------------------------------------------------------------------
    \19\Lumber Industry Pension Fund v. Warm Springs Forest Products 
Industries, 939 F.2d 683 (9th Cir. 1991); Smart v. State Farm Ins., 868 
F.2d 929 (7th Cir. 1989).
---------------------------------------------------------------------------
            Title III (public accommodations) of the 
        Americans with Disabilities Act (ADA)\20\
---------------------------------------------------------------------------
    \20\Florida Paraplegic Association v. Miccosukee Tribe of Florida, 
166 F.3d 1126 (11th Cir. 1999).
---------------------------------------------------------------------------
            The employer mandate in the Patient 
        Protection and Affordable Care Act (ACA)\21\
---------------------------------------------------------------------------
    \21\Northern Arapaho Tribe v. Burwell, No. 14-CV-247 SWS, 2015 WL 
4639324 (D. Wyo. July 2, 2015).
---------------------------------------------------------------------------
            The Family and Medical Leave Act (FMLA)\22\
---------------------------------------------------------------------------
    \22\Bodi v. Shingle Springs Band of Miwok Indians, 19 F. Supp. 3d 
978 (E.D. Cal. 2014).
---------------------------------------------------------------------------
    Employment statutes are hardly the only federal laws that 
apply to Indian tribes under Coeur d'Alene. Courts have also 
applied the Federal Trade Commission Act, the Federal Truth in 
Lending Act, the Electronic Fund Transfer Act,\23\ Section 
6050I of the Internal Revenue Code involving the reporting of 
cash transaction in excess of $10,000,\24\ and numerous federal 
criminal laws\25\ to tribal enterprises or persons when none of 
the three exceptions are met.
---------------------------------------------------------------------------
    \23\FTC v. AMG Services, Inc., 2013 WL 787075, at *12 (D. Nev. July 
16, 2013), report and recommendation adopted, No. 2:12-CV-00536-GMN, 
2014 WL 910302 (D. Nev. Mar. 7, 2014).
    \24\United States v. White, 237 F.3d 170 (2d Cir. 2001).
    \25\See, e.g., United States v. Gallagher, 275 F.3d 784 (9th Cir. 
2001) (felon in possession of ammunition); United States v. Funmaker, 
10 F.3d 1327 (7th Cir. 1993) (damaging or destroying property used in 
interstate commerce); United States v. Blue, 722 F.2d 383 (8th Cir. 
1983) (drug laws).
---------------------------------------------------------------------------
    Thus, the effort to attack the jurisdiction of the NLRA to 
the exclusion of other federal labor laws suggests that animus 
toward labor unions motivates this legislation.

    For Employees of Tribal Enterprises, the NLRA Provides the Only 
Protection Against Discrimination and Harassment, Yet the Bill Provides 
No Legal Remedies When Issues Like Discrimination and Harassment Arise 
                         in Tribal Enterprises

    While most federal labor and employment laws do apply to 
tribal enterprises, two notable exceptions are the Age 
Discrimination in Employment Act\26\ and Title VII of the Civil 
Rights Act.\27\ Thus, employees of a tribal enterprise who are 
subjected to sexual harassment, for example, cannot bring a 
claim to the U.S. Equal Employment Opportunity Commission 
(EEOC) or in federal court--even when the alleged perpetrator 
and victim are both non-tribal members employed at the tribal 
enterprise.
---------------------------------------------------------------------------
    \26\Williams v. Poarch Band of Creek Indians, 2016 WL 6081345 (11th 
Cir. Oct. 18, 2016).
    \27\Congress expressly excludes tribes from the definition of 
``employer'' under Title VII. 42 U.S.C. Sec. 2000e(b).
---------------------------------------------------------------------------
    For example, a woman who took a job with a safari run by a 
tribe in Florida filed suit against the tribe after her 
employers ``repeatedly touched her, made sexual comments and 
degrading remarks, and even suggested that she could make a 
`quick $10,000' from a wealthy client.''\28\ The U.S. District 
Court for the Southern District of Florida dismissed her case 
citing the tribe's sovereign immunity under Title VII.\29\ For 
workers such as these who have no protection from federal 
antidiscrimination laws, unions are the sole remaining recourse 
to combating discrimination and harassment, because they can 
negotiate a collective-bargaining agreement that enforces an 
employee's right to be free from such conduct in the workplace.
---------------------------------------------------------------------------
    \28\Scott D. Danahy, License to Discriminate: The Application of 
Sovereign Immunity to Employment Discrimination Claims Brought By Non-
Native American Employees of Tribally Owned Businesses, 25 Fla. S. Law 
Rev. 679 (1998).
    \29\Roselius v. McDaniel, No. 95-6887, slip op. at 1 (S.D. Fla. 
Aug. 7, 1997) (dismissing case for lack of subject matter 
jurisdiction).
---------------------------------------------------------------------------

Parity and Sovereignty Should Not Outweigh Workers' Rights, Especially 
  When Tribes Are Exempted From Labor Laws That Cover State and Local 
                              Governments

    Committee Republicans' primary argument in favor of H.R. 
986 is that the NLRA does not apply to state and local 
governments, and tribes should have parity as a governmental 
entity. Under this principle, Committee Republicans contend 
that tribes should be able to decide whether to allow employees 
to form unions under a tribal labor relations ordinance, just 
as state governments are free to decide whether to allow public 
employees to form unions. This parity argument falls short in 
three important ways:
    First, tribal casinos and similar businesses are commercial 
enterprises in direct competition with similar non-tribal 
businesses. According to the National Indian Gaming Association 
(NIGA), the tribal gaming industry in the United States is a 
$28 billion per year enterprise. California's tribal casinos 
are an $8 billion per year enterprise eclipsing the Las Vegas 
strip (at $6 billion per year).\30\ Although these enterprises 
raise revenues for the tribe, courts have found that the total 
impact on tribal sovereignty from NLRA jurisdiction is not 
sufficient ``to demand a restrictive construction of the 
NLRA.''\31\ Thus, the NLRB's regulation of labor relations does 
not impair an essential element of the tribe's sovereignty, 
especially in matters where the majority of employees are not 
tribal members.
---------------------------------------------------------------------------
    \30\Testimony of Jack Gribbon, California Political Director, 
UNITEHERE! International Union, AFL-CIO Before the Health, Employment, 
Labor and Pensions Subcommittee of the Committee on Education and the 
Workforce, U.S. House of Representatives, Legislative Hearing on H.R. 
986, the Tribal Labor Sovereignty Act of 2017, March 29, 2017, p.1. 
https://edworkforce.house.gov/calendar/eventsingle.aspx?EventID=401479.
    \31\San Manuel Indian Bingo and Casino, 475 F.3d at 1315.
---------------------------------------------------------------------------
    Second, approximately 75 percent of the 600,000 employees 
of tribal casinos are non-Indians.\32\ Employees of tribal 
enterprises who are not enrolled members of the tribe are 
prohibited from having any voice or the right to advocate for 
the establishment or repeal of labor and employment laws, 
unlike comparable employees in local or state government. Since 
the majority of employees at tribal enterprises lack parity 
with the political rights enjoyed by state and local government 
employees to petition their employer, the parity argument 
between tribal government and state and local government falls 
apart.
---------------------------------------------------------------------------
    \32\Dwanna L. Robertson, The Myth of Indian Casino Riches, Indian 
Country Today Media Network (June 23, 2012) http://
indiancountrytodaymedianetwork.com/2012/06/23/myth-indian-casino-
riches.
---------------------------------------------------------------------------
    Third, tribes are exempted from employment laws that apply 
to state and local governments. State and local governments are 
covered by Title VII of the Civil Rights Act and the public 
accommodations provisions of the Americans with Disabilities 
Act. As noted above, Indian tribes are expressly exempted from 
coverage. Parity with state and local governments would require 
tribes also be subject to these employment laws.

 Tribal Labor Relations Ordinances Are Not an Adequate Alternative to 
                   the NLRA Without Minimum Standards

    Committee Republicans point to the adoption of Tribal Labor 
Relations Ordinances (TLRO) by some tribes as evidence of an 
adequate alternative for the protections offered by NLRA that 
will preserve tribal sovereignty.
    Some tribes have been required to adopt TLROs, such as 
those in California, where the state has required TLROs as a 
condition of state-tribal gaming compacts under the Indian 
Gaming Regulatory Act, although certain TLROs fall far short of 
the protections afforded under the NLRA.\33\ Tribes in other 
states have negotiated TLROs with unions who had first won 
recognition under the NLRA. However, other tribes in other 
states have chosen not to adopt a TLRO at all, because there 
was no requirement under a state compact. Each tribe enacts its 
own labor-management relations ordinances, if at all, without 
transparency or political accountability to the non-tribal 
employees of its commercial businesses.
---------------------------------------------------------------------------
    \33\Testimony of Jack Gribbon, California Political Director, 
UNITEHERE! International Union, AFL-CIO Before the Health, Employment, 
Labor and Pensions Subcommittee of the Committee on Education and the 
Workforce, U.S. House of Representatives, Legislative Hearing on H.R. 
986, the Tribal Labor Sovereignty Act of 2017, March 29, 2017, p.3. 
https://edworkforce.house.gov/calendar/eventsingle.aspx?EventID=401479.
---------------------------------------------------------------------------
    Without any accountability, H.R. 986 would allow tribes to 
enact laws that outright prohibit unions. Indeed, the Blackfeet 
Nation in Montana already has a Tribal Employment Rights 
Ordinance that states, ``Unions are prohibited on the Blackfeet 
Indian Reservation.''\34\ Under H.R. 986, this attack on the 
human right to join a union would have the force of law.
---------------------------------------------------------------------------
    \34\Blackfeet Tribal Employment Rights Ordinance & Safety 
Enforcement Act, Section 3-107 http://www.btero.com/blackfeet--tero--
2010.pdf.
---------------------------------------------------------------------------
    In contrast, the NLRA already allows tribal enterprises and 
unions to agree to TLROs that are acceptable to both parties. 
Evidence was introduced at the March 29, 2017 hearing that, 
after a union is certified as the employees' bargaining 
representative by the NLRB, it may enter into an agreement with 
a tribe regarding the terms of a TLRO that would govern their 
collective bargaining relationship. The union would still be 
able to exercise its rights under the NLRA if the tribal 
enterprise fails to abide by the TLRO. If H.R. 986 were 
enacted, and the tribe then chose to reinstate restrictive 
labor laws that it had previously adopted, there would be no 
legal or political recourse for the tribal workers--the 
majority of whom are not members of the tribe.
    There is no federal requirement that TLROs must be at least 
as effective as the rights and remedies provided under federal 
labor law. If TLROs are to serve as a nationwide alternative to 
the NLRA, there will need to be statutory minimum standards and 
each TLRO would need to be assessed by a competent authority to 
ensure that workers' rights are substantially the same as those 
under the NLRA, even if they are not identical in all respects.

  The U.S. Requires Its Trading Partners To Implement Internationally 
  Recognized Labor Standards, But H.R. 986 Exempts U.S. Workers When 
                       Employed by Indian Tribes

    This bill deprives workers of the right to organize and 
bargain collectively at commercial enterprises operated by 
Indian tribes, even though the U.S. government insists that 
international trading partners abide by these same core rights 
as a way to create a level playing field for U.S. workers. As a 
member of the ILO, the United States is obligated to respect 
and promote the rights outlined in the ILO Declaration on 
Fundamental Principles and Rights at Work, including freedom of 
association and the recognition of the right to collective 
bargaining.
    When negotiating with potential trading partners, Democrats 
and Republicans alike have insisted that other nations adopt 
laws that would implement the core ILO standards. The U.S. 
Congress has ratified four free trade agreements--with Peru, 
Panama, Colombia and the Republic of Korea--which includes 
these rights and provides for dispute resolution for 
violations. Yet within our own borders, H.R. 986 would strip 
hundreds of thousands of the right to freedom of association 
and the right to collective bargaining at Indian tribal 
enterprises.

 The Congressional Budget Office Determined That Enactment of H.R. 986 
 Would Have an Adverse Economic Impact on Workers in Tribal Enterprises

    The Congressional Budget Office (CBO) determined that H.R. 
986 would ``impose a private-sector mandate'' under the 
Unfunded Mandates Reform Act by eliminating workers' rights to 
file unfair labor practice claims with the NLRB. As explained 
by the CBO, ``[c]urrently, employees may file a claim against 
tribal employers over which the NLRB asserts jurisdiction 
alleging unfair labor practices under the act that prohibit or 
interfere with collective activities to improve wages and 
working conditions.'' By eliminating that right, H.R. 986 
burdens employees of tribal enterprises with economic costs, 
including ``the value of forgone monetary awards resulting from 
claims that would have been filed with the NLRB in the absence 
of the bill.''\35\
---------------------------------------------------------------------------
    \35\Congressional Budget Office Cost Estimate for the Tribal Labor 
Sovereignty Act of 2017 (H.R. 986), July 21, 2017 https://www.cbo.gov/
system/files/115th-congress-2017-2018/costestimate/hr986.pdf.
---------------------------------------------------------------------------
    The CBO noted that, by eliminating the right of employees 
``to form a union and bargain collectively,'' H.R. 986 would 
impose a broader adverse impact, but the CBO did not consider 
this broader impact part of the direct cost of the mandate.\36\
---------------------------------------------------------------------------
    \36\Id.
---------------------------------------------------------------------------

 H.R. 986 Is Unnecessary Because the National Labor Relations Board's 
    Current Approach Balances Tribal Sovereignty and Workers' Rights

    Finally, this legislation is not needed, because the NLRB's 
case-by-case approach balances two important principles--
protection of workers' rights and the preservation of tribal 
sovereignty. The bill's all-or-nothing approach is too 
sweeping, and there is no principled basis for excluding 
hundreds of thousands of workers from coverage under labor laws 
just because they happen to work in a commercial enterprise on 
tribal lands.
    This bill cloaks an anti-union agenda in the garb of tribal 
sovereignty. It is another attempt by Committee Republicans to 
dismantle labor unions and strip workers of their ability to 
bargain for better pay and working conditions. We urge the full 
House of Representatives to reject this legislation.

                                   Robert C. ``Bobby'' Scott,
                                           Ranking Member.
                                   Raul M. Grijalva.
                                   Marcia L. Fudge.
                                   Gregorio Kilili Camacho Sablan.
                                   Suzanne Bonamici.
                                   Alma S. Adams.
                                   Donald Norcross.
                                   Raja Krishnamoorthi.
                                   Adriano Espaillat.
                                   Susan A. Davis.
                                   Joe Courtney.
                                   Jared Polis.
                                   Frederica S. Wilson.
                                   Mark Takano.
                                   Mark DeSaulnier.
                                   Lisa Blunt Rochester.
                                   Carol Shea-Porter.

                                  [all]
```