69–010 

1 Including any corporations wholly-owned by these governmental entities. 

Calendar No. 9 

115TH CONGRESS REPORT " ! SENATE 1st Session 115–3 

TO CLARIFY THE RIGHTS OF INDIANS AND INDIAN 

TRIBES ON INDIAN LANDS UNDER THE NATIONAL 

LABOR RELATIONS ACT 

FEBRUARY 17, 2017.—Ordered to be printed 

Mr. HOEVEN, from the Committee on Indian Affairs, 

submitted the following 

R E P O R T 

[To accompany S. 63] 

The Committee on Indian Affairs, to which was referred the bill 

(S. 63), to clarify the rights of Indians and Indian tribes on Indian 

lands under the National Labor Relations Act, having considered 

the same, reports favorably thereon without amendment and recommends that the bill do pass. 

PURPOSE

The purpose of S. 63 would amend and clarify the National Labor 

Relations Act (NLRA or the Act) so that federally-recognized Indian 

tribes, tribal governments, and tribally-owned and operated institutions and enterprises that are located on its Indian lands would be 

provided equity and parity under the law with respect to other governmental employers. 

NEED FOR LEGISLATION

The NLRA was enacted by Congress in 1935 to ensure fair labor 

practices and it explicitly excluded Federal and state governmental 1 employers from the federal labor law. Indian tribes, tribal 

governments, and tribally-owned and operated institutions and enterprises were never defined, mentioned, or excluded from the law. 

The National Labor Relations Board’s (NLRB or the Board) decisions and orders, have varied in the applicability of the Act on Indian tribes, and their institutions or enterprises. 


rfrederick on DSKBCBPHB2PROD with HEARING
2 

2Fort Apache Timber Co., 226 NLRB 503 (1976). 3Southern Indian Health Council, 290 NLRB 436 (1988). 4Sac & Fox Indus., 307 NLRB 241 (1992). 5San Manuel Indian Bingo & Casino, 341 NLRB 138 (2004). 6The Indian Gaming Regulatory Act, Pub. L. No. 100 497 (Codified as 25 U.S.C. § 2701 et 

seq.) (1988), states that all gaming revenue must be used for tribal government purposes. Tribal 

government services could include, but is not limited to: health care, social services, housing, 

utilities, educational assistance, and emergency services. 7San Manuel Indian Bingo & Casino v. NLRB, 475 F.3d 1306 (D.C. Cir. 2007). 8 NLRB v. Noel Canning, 573 U.S. ———, 134 S. Ct. 2250, 189 L. Ed. 2d 538 (2014). 9 Chickasaw Nation, 362 NLRB 109 (2015). 

BACKGROUND

The NLRB is an independent Federal agency established by the 

Act. The Act recognizes the right of employees to engage in collective bargaining through representatives of their own choosing. 

However, certain employers are excluded from the Act such as 

those of the Federal and State governments, including whollyowned government corporations, state lotteries and liquor stores. 

The NLRA never mentions Indian tribes, tribal governments, and 

tribally-owned and operated institutions and enterprises. 

The primary responsibility of the NLRB is to administer the Act. 

The NLRB conducts elections, investigates charges, facilitates settlements, decides cases, and enforces orders. The NLRB is governed 

by a five-person board and a general counsel, appointed by the 

President and confirmed by the Senate. 

National Labor Relations Board decisions 

In two cases from 1935 to 2004, the Board declined to assert its 

jurisdiction over tribally-owned enterprises located on tribal lands 

in the Fort Apache Timber Co. (1976) 2 and Southern Indian Health 

Council (1988).3 The NLRB held that tribally-owned businesses operating on their Indian lands were exempt from the NLRA’s definition of employer. However, in Sac & Fox Indus. (1992),4 the Board 

held that a tribally-owned and operated factory that was located off 

Indian lands was subject to the NLRA. 

The San Manuel Case 

In 2004, the NLRB ruled in the San Manuel Indian Bingo & Casino 5 (a casino located on its reservation, and owned and operated 6

by the San Manuel Band of Serrano Mission Indians) that the 

NLRA applies to tribal enterprises located on Indian lands. This 

was the first instance in which the Board applied the NLRA to a 

tribally-owned business on tribal lands. Furthermore, in this decision the Board determined future jurisdictional questions of the applicability of the NLRA will be decided on a case-by-case basis. In 

2007, the U.S. Court of Appeals for the District of Columbia affirmed 7 the Board’s 2004 San Manuel decision. 

The Chickasaw Nation Case 

After the U.S. Supreme Court’s decision in Noel Canning,8 which 

ruled the Board was invalidly appointed, the 10th Circuit case of 

Chickasaw Nation v. NLRB was remanded back to the Board. On 

June 4, 2015, the Board issued a decision on the application of the 

NLRA to the Chickasaw Nation, which operates a tribally-owned 

enterprise known as the WinStar Casino on tribal lands. In that 

ruling,9 the Board decided not to assert jurisdiction over the Chickasaw Nation. Specifically, the Board cited the Chickasaw Nation’s 


rfrederick on DSKBCBPHB2PROD with HEARING
3 

10 NLRB v. Little River Band of Ottawa Indian Tribal Gov’t, No. 14 2239 (6th Cir. June 9, 

2015). 11 NLRB v. Pueblo of San Juan, 280 F.3d 1278 (10th Cir. N.M. 2000). 12Montana v. United States, 450 U.S. 544, 564 565 (1981); Nat’l Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845, 854 855 (1985); Strate v. A-1 Contractors, 520 U.S. 438, 453 (1997); 

South Dakota v. Bourland, 508 U.S. 679, 695 (1993); Nevada v. Hicks, 533 U.S. 353, 360 (2001). 13Letter from Patrice Kunesh, Deputy Solicitor of Indian Affairs, U.S. Department of the Interior, to Lafe Soloman, Acting General Counsel, NLRB (Dec. 7, 2011). 

treaty with the United States blocked the Board from asserting its 

jurisdiction over the tribe’s casino. It is unknown what immediate 

effect the Chickasaw Nation decision will have on other tribal cases 

since the Board’s decision was based on a treaty specific to the 

Chickasaw Nation. 

U.S. Court of Appeals 

Meanwhile, several Indian labor cases have appeared before the 

U.S. Court of Appeals for the 6th and 10th Circuits. In the Little 

River Band of Ottawa Indians,10 the 6th Circuit held that the 

NLRB could enforce provisions of the Act against the Indian tribe. 

However, the 10th Circuit held in Pueblo of San Juan,11 that the 

Pueblo’s right to adopt a tribal labor ordinance preempts the NLRA 

and affirmed the decision of the district court. Thus, given the split 

interpretations from the Circuit courts and the Board, legislation 

is needed to ensure clarity and parity in the application of the 

NLRA to Indian tribes, tribal governments, and tribally-owned and 

operated institutions and enterprises that are located on its Indian 

lands. 

Tribal sovereignty 

In Cherokee Nation v. Georgia, 30 U.S. 1, (1831), the U.S. Supreme Court declared that Indian tribes are ‘‘domestic dependent 

nations.’’ Reinforcing Tribes’ status as nations, several court 

cases 12 have recognized and upheld that Indian tribes have the attributes of sovereignty including: sovereign immunity and authority over their members and territory. Additionally, the Indian SelfDetermination and Education Assistance Act of 1975 and the Native American Housing and Self-Determination Act of 1996, in particular, recognize the exercise of tribal authority by deferring to 

tribal personnel, wages, and labor laws in carrying out programs. 

This bill is intended strengthen tribal sovereignty and addresses 

those instances where a Tribe is acting as an employer and conducting its business on tribal lands. This bill does not alter or affect in any way the applicability of the Act to a privately-owned 

business or enterprise, regardless of whether it conducts business 

on or off tribal lands or regardless of the number of Native Americans comprising its workforce. 

Bureau of Indian Affairs position 

On December 7, 2011, Deputy Solicitor of Indian Affairs, Patrice 

Kunesh, sent a letter 13 to the Acting General Counsel of the 

Board, Lafe Soloman, requesting the NLRB ‘‘re-evaluate its position on tribal issues and to help advance the Federal government’s 

commitments to Indian Country, particularly with regard to respecting tribes as sovereign governments.’’ The Deputy Solicitor of 

Indian Affairs then went on to state that ‘‘[t]ribal governments 


rfrederick on DSKBCBPHB2PROD with HEARING
4 

14 In the 114th Congress, S. 248, the Tribal Labor Sovereignty Act of 2015 has identical language to the 113th Congress introduced bill, S. 1477, the Tribal Labor Sovereignty Act of 2013. 15Letter from Sen. Daniel Inouye, U.S. Senate, to Sen. Edward Kennedy, U.S. Senate (Jun. 

1, 2009). 16The Employer Free Choice Act, S. 560, 111th Cong. (2009). 

should be given at least the same exception as provided to state 

governments in the NLRA.’’ 

LEGISLATIVE HISTORY

On January 9, 2017, Senator Jerry Moran (R–KS) introduced S. 

63, along with Senators Mike Crapo (R–ID), Steve Daines (R–MT), 

Jeff Flake (R–AZ), Cory Gardner (R–CO), Ron Johnson (R–WI), 

James Lankford (R–OK), John McCain (R–AZ), John Thune (R– 

SD), Roger Wicker (R–MS), and James Risch (R–ID). The bill was 

referred to the Senate Committee on Indian Affairs. On February 

8, 2017, the Committee met to consider the bill. The Committee 

then ordered the bill to be reported favorably to the Senate by voice 

vote. Senators Maria Cantwell (D–WA), Brian Schatz (D–HI), and 

Catherine Cortez Mastro (D–NV) requested to be recorded as voting against S. 63. 

In the 114th Congress, Senator Jerry Moran (R–KS) introduced 

S. 248, along with Senators Mike Crapo (R–ID), Steve Daines (R– 

MT), Deb Fischer (R–NE), John Hoeven (R–ND), James Inhofe (R– 

OK), James Lankford (R–OK), and John Thune (R–SD). Senators 

James Risch (R–ID), Mike Rounds (R–SD), Cory Gardner (R–CO), 

and John McCain (R–AZ) were later added as co-sponsors. The bill 

was referred to the Senate Committee on Indian Affairs. On March 

4, 2015, the Committee held a legislative hearing on the bill. On 

June 10, 2015, the Committee met to consider the bill. The Committee then ordered the bill to be reported favorably to the Senate 

by voice vote. 

In the 113th Congress, Senator Moran introduced, S. 1477, the 

Tribal Labor Sovereignty Act of 2013.14 It was referred to the Committee on Indian Affairs where no further action was taken. A 

similar bill, H.R. 1226, was introduced in the House of Representatives by Representative Kristi Noem and no further action was 

taken. 

Additional Senate Actions. In the 111th Congress, Senator 

Inouye sent a letter 15 to Senator Kennedy, then-Chairman of the 

Committee on Health, Education, Labor, and Pensions (HELP), requesting that the legislation under consideration 16 include an 

amendment giving Indian tribes equal treatment that Federal and 

state governments receive under the NLRA. In the letter, it stated 

the Constitution of the United States ‘‘acknowledges Indian tribes 

as governments under the Commerce Clause and the Supremacy 

Clause.’’ Furthermore, Senator Inouye’s letter recommended the 

HELP Committee consider an amendment to S. 560, the Employee 

Free Choice Act, which would clarify the definition of employer to 

include Indian tribes. 

SECTION-BY-SECTION ANALYSIS OF BILL AS ORDERED REPORTED

Section 1—Short title 

Section 1 states S. 248 may be cited as the ‘‘Tribal Labor Sovereignty Act of 2017.’’ 


rfrederick on DSKBCBPHB2PROD with HEARING
5 

Section 2—Definition of employer 

The bill amends Section 2(2) of the National Labor Relations Act 

(29 U.S.C. 152) by including in the list of employers that are excluded from the NLRA, ‘‘or any Indian tribe, or any enterprise or 

institution owned and operated by an Indian tribe and located on 

its Indian lands.’’ The bill intends to provide parity, under the law 

alongside Federal and State governments, to federally-recognized 

Indian tribes, tribal governments, and tribally-owned and operated 

institutions and enterprises. 

COST AND BUDGETARY CONSIDERATIONS

Summary: S. 63 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 S. 63 would not significantly 

affect the workload of the NLRB, so it 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 S. 63 would not increase net direct 

spending or on-budget deficits in any of the four consecutive 10- 

year periods beginning in 2028. H.R. 63 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 


rfrederick on DSKBCBPHB2PROD with HEARING
6 

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. 

The CBO staff contact for this estimate is Christina Hawley Anthony. The estimate was approved by H. Samuel Papenfuss, Deputy Assistant Director for Budget Analysis. 

Æ 


rfrederick on DSKBCBPHB2PROD with HEARING