69–006 

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 

2 

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). 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). 

‘‘(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. 

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. 

3 

4Legislative 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). 5 H.R. 511, Tribal Labor Sovereignty Act of 2015: Markup Before the H. Comm. on Educ. and 

the Workforce, 114th Cong. (2015). 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. 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. 

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. 

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. 

4 

8Legislative 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). 9 H.R. 986, Tribal Labor Sovereignty Act of 2017: Markup Before the H. Comm. on Educ. and 

the Workforce, 115th Cong. (2017). 10The 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. § 152(2)–(3). 11 29 U.S.C. § 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. § 157. 

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. 

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. 

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 TaftHartley Act clarified employees have the right to refrain from participating in union activity,13 created new union unfair labor pracVerDate Sep 11 2014 23:14 Sep 27, 2017 Jkt 069006 PO 00000 Frm 00004 Fmt 6659 Sfmt 6602 E:\HR\OC\HR324.XXX HR324
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14 Id. § 158. 15 Id. § 158(c). 16 Id. § 159(d). 17 NLRB v. Savair Mfg., 414 U.S. 270, 278 (1973). 18Milla 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. 20Legislative Hearing on H.R. 511, supra note 4 (written testimony of the Hon. Rodney Butler 

at 5) (internal quotation marks omitted). 21 Id. 

tices,14 codified employer free speech,15 and made changes to the 

determination of bargaining units.16

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

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

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: 

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

Chairman Butler noted the Mashantucket Employment Rights 

Office has conducted at least six elections under the MPLRL, with 

6 

22 Id. 23 Id. 24 Id. (written testimony of Richard Guest at 6). 25 Id. at 7. 26 Id. 27 Id. at 8. 28Legislative Hearing on H.R. 511, supra note 4 (written testimony of Richard Guest at 8). 29 Id. 30 Id. 

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

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: 

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

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: 

7 

31 Id. at 9–10. 32Legislative Hearing on H.R. 986, supra note 8 (written testimony of the Hon. Robert J. 

Welch, Jr., at 4–5). 

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

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

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. 

8 

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). 37See, 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). 38See, e.g., 29 U.S.C. § 158(d) (obligation of employer and union to bargain collectively). 

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

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

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 sovVerDate Sep 11 2014 02:18 Sep 28, 2017 Jkt 069006 PO 00000 Frm 00008 Fmt 6659 Sfmt 6602 E:\HR\OC\HR324.XXX HR324
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39Legislative Hearing on H.R. 511, supra note 4 (written testimony of the Hon. Jefferson Keel 

at 1) (emphasis added). 40Legislative Hearing on H.R. 986, supra note 8 (written testimony of the Hon. Brian 

Cladoosby at 5). 41Fort 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). 43Fort Apache, 226 NLRB at 506. 44 307 NLRB 241 (1992). 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. 

ereignty 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

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. 

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. 

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 

10 

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). 52San Manuel Indian Bingo and Casino v. NLRB, 475 F.3d 1306 (D.C. Cir. 2007). 53Legislative Hearing on H.R. 511 supra note 4 (written testimony of the Hon. Jefferson Keel 

at 4) (emphasis in original). 54 Id. (written testimony of the Hon. Rodney Butler at 2). 

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

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

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

11 

55 Examining Proposals to Strengthen the National Labor Relations Act, supra note 1, at 8– 

9 (written testimony of the Hon. Robert Odawi Porter). 56Legislative Hearing on H.R. 511, supra note 4 (written testimony of the Hon. Rodney Butler 

at 2). 57 Id. (written testimony of Richard Guest at 1–2) (emphasis omitted). 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). 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 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

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: 

[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

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

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 selfgovern and be self-determined with regards to the NLRA, so should 

we.’’ 61

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 

12 

62 Id. (written statement of the Hon. Robert J. Welch, Jr., at 3). 63 No. 34–RC–2230 (Oct. 24, 2007) (decision and direction of election). 64 Id. at 4. 65 Id. at 13. 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). 67Soaring Eagle Casino and Resort, 2013 WL 1646049, *4. 68 Id. at *12. 69 Id. at *19. 70 362 NLRB No. 109, 2015 WL 3526096 (2015). 71 2015 WL 3526096, *3. 

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

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

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

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

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 

13 

72Legislative Hearing on H.R. 511, supra note 4 (written testimony of the Hon. Jefferson Keel 

at 4). 73788 F.3d 537 (6th Cir. 2015). 74 Id. at 543. 75 Id. at 544–56. 76 Id. at 556 (McKeague, J., dissenting). 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). 79Legislative Hearing on H.R. 511, supra note 4 (written testimony of the Hon. Jefferson Keel 

at 4). 80 Case No. 21–CA–166290 (Oct. 24, 2016). 

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

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

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

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. 

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, 

14 

81Legislative Hearing, supra note 8 (oral testimony of the Hon. Brian Cladoosby). 82 Id. (oral testimony of the Hon. Nathaniel Brown). 83 Id. (oral testimony of the Hon. Robert J. Welch, Jr.). 

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

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 selfdetermination.’’ 82 At the same hearing, Chairman Welch of the 

Viejas Band of Kumeyaay Indians agreed. He stated the following: 

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

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.’’ 

15 

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. 

16 


Insert offset folio 18 here HR324.001

Date: June 29, 2017 

COMMITTEE ON EDUCATION AND THE WORKFORCE RECORD OF COMMITTEE VOTE 

Roll Call: Bill: H.R. 986 Amendment Number:--·---~-·-

Disposition: AdO_I)(E)~_by a v~(E)of 22 ye~s an,cJ_~6f1~~.S .. 

Sponsor/ Amendment: Mr. Wilson - motion to report the bill to the House with an amendment and with the 

recommendation that the amendment be agreed to, and the bill as amended do pass. 

--

Name&Stak ,.,,, ,\lo .. '"' .'.Jam<' & Stat~ A,, No 

--------- ---· ~- '"''"' Mrs. FOXX (NC) (Chairwoman) X Mr. SCOTT (VA) (Ranking) X 

Mr. WILSON (SC) X Mrs. DAVIS (CA) X 

Mr. HUNTER (CA) X Mr. GRIJ."'L VA (AZ) X 

Mr. ROE(TN) X Mr. COURTNEY (CT) X 

Mr. THOMPSON (PA) X Ms. FUDGE (OH) ' 

X 

Mr. WALBERG(MI) X Mr. POLIS (CO) X 

Mr. GUTHRIE (KY) X Mr. SABLAN (MP) X 

Mr. ROKITA (IN) I X Ms. WILSON (FL) I X 

Mr. BARLETTA (PA) ' X Ms. BONA:V1ICI (OR) X 

Mr. MESSER (IN) X ~AKANO(CA) X --

Mr. BYRNE(AL) X Ms. ADAMS (NC) X 

Mr. BRAT(VA) X I Mr. DcSAULNIER (CA) X I 

Mr. GROTH MAN (WI) X I Mr. NORCROSS (NJ) X 

Ms. STEFANIK (NY) X I Ms. BLUNT ROCHESTER (DE) X 

Mr. ALLEN (GA) X Mr. KRISHNAMOORTHI (IL) X 

Mr. LEWIS (MN) X Ms. SHEA-PORTER (NH) X 

Mr. ROONEY (FL) X Mr. ESPAILLAT (NY) X 

Mr. MITCHELL (MI) X 

Mr. GARRETT (VA) X 

Mr. SMUCKER (PA) X 

Mr. FERGUSON (GA) X 

Mr. ESTES (KS) X 

Mrs. HANDEL (GA) X ·-------

TOTALS: Aye: No: 16 Not Voting: 2 

Total: 40 I Quorum: 14 I Report: 21 

(23 R -17 D) 
17 

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 selfgovernance. 

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. 

18 

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 

19 

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 emVerDate Sep 11 2014 02:18 Sep 28, 2017 Jkt 069006 PO 00000 Frm 00019 Fmt 6659 Sfmt 6602 E:\HR\OC\HR324.XXX HR324
20 

ployer), 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— 

21 

(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. 

* * * * * * * 

(22) 

1Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55 (1978). 2Letter from Corrine Vargha, ILO Director of International Labor Standards Department, to 

Richard Trumka, AFL–CIO President. 3The Emerging Standard: An Analysis of Job Quality in California’s Tribal Gaming Industry, 

UNITE HERE (October 2013). 

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. 

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

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

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. 

23 

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. 5 Congressional Record, September 9, 2004, pp. H.6951–6952 and June 24, 2005, pp. H.5153. 6The 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. . .’’ 7FPC v. Tuscarora Indian Nation, 362 U.S. 99, 116 (1960). 8 751 F.2d 1113 (9th Cir. 1985). 

9 Id. at 1116. 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). 

PREVIOUS HOUSE FLOOR CONSIDERATION OF LEGISLATION TO

BLOCK THE APPLICABILITY OF THE NLRA TO EMPLOYEES OF COM- MERCIAL 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. 

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

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

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 

24 

12San Manuel, 341 NLRB at 1062. 13Yukon 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). 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). 17Solis v. Matheson, 563 F.3d 425 (9th Cir. 2009). 18 Reich v. Mashantucket Sand & Gravel, 95 F.3d 174 (2d Cir. 1996). 19Lumber 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). 20Florida Paraplegic Association v. Miccosukee Tribe of Florida, 166 F.3d 1126 (11th Cir. 

1999). 21 Northern Arapaho Tribe v. Burwell, No. 14–CV–247 SWS, 2015 WL 4639324 (D. Wyo. July 

2, 2015). 22 Bodi v. Shingle Springs Band of Miwok Indians, 19 F. Supp. 3d 978 (E.D. Cal. 2014). 

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

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

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

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

• Occupational Safety and Health Act (OSHA) 18

• Employee Retirement Income Security Act (ERISA) 19

• Title III (public accommodations) of the Americans with 

Disabilities Act (ADA) 20

• The employer mandate in the Patient Protection and Affordable Care Act (ACA) 21

• The Family and Medical Leave Act (FMLA) 22

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, 

25 

23FTC 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). 25See, 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). 26Williams 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. § 2000e(b). 28Scott 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). 

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. 

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. 

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. 

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 

26 

30Testimony 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. 31San Manuel Indian Bingo and Casino, 475 F.3d at 1315. 32Dwanna L. Robertson, The Myth of Indian Casino Riches, Indian Country Today Media Network (June 23, 2012) http://indiancountrytodaymedianetwork.com/2012/06/23/myth-indiancasino-riches. 33Testimony 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 

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. 

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. 

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 

27 

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. 34 Blackfeet Tribal Employment Rights Ordinance & Safety Enforcement Act, Section 3–107 

http://www.btero.com/blackfeet—tero—2010.pdf. 

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. 

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. 

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 INTER- NATIONALLY RECOGNIZED LABOR STANDARDS, BUT H.R. 986 EX- EMPTS 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 

28 

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. 36 Id. 

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 ENACT- MENT 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

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

H.R. 986 IS UNNECESSARY BECAUSE THE NATIONAL LABOR RELA- TIONS BOARD’S CURRENT APPROACH BALANCES TRIBAL SOV- EREIGNTY AND WORKERS’ RIGHTS

Finally, this legislation is not needed, because the NLRB’s caseby-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. 

RAU ́ L M. GRIJALVA. 

MARCIA L. FUDGE. 

GREGORIO KILILI CAMACHO

SABLAN. 

SUZANNE BONAMICI. 

ALMA S. ADAMS. DONALD NORCROSS. 

29 

RAJA KRISHNAMOORTHI. ADRIANO ESPAILLAT. SUSAN A. DAVIS. JOE COURTNEY. JARED POLIS. FREDERICA S. WILSON. MARK TAKANO. MARK DESAULNIER. LISA BLUNT ROCHESTER. CAROL SHEA-PORTER. 

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