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97–405 PDF 2015

S. HRG. 114–105 

S. 248, THE TRIBAL LABOR SOVEREIGNTY ACT 

OF 2015 

HEARING 

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS 

UNITED STATES SENATE 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

APRIL 29, 2015 

Printed for the use of the Committee on Indian Affairs 

( 

(II) 

COMMITTEE ON INDIAN AFFAIRS 

JOHN BARRASSO, Wyoming, Chairman 

JON TESTER, Montana, Vice Chairman 

JOHN MCCAIN, Arizona 

LISA MURKOWSKI, Alaska 

JOHN HOEVEN, North Dakota 

JAMES LANKFORD, Oklahoma 

STEVE DAINES, Montana 

MIKE CRAPO, Idaho 

JERRY MORAN, Kansas 

MARIA CANTWELL, Washington 

TOM UDALL, New Mexico 

AL FRANKEN, Minnesota 

BRIAN SCHATZ, Hawaii 

HEIDI HEITKAMP, North Dakota 

T. MICHAEL ANDREWS, Majority Staff Director and Chief Counsel 

ANTHONY WALTERS, Minority Staff Director and Chief Counsel 

(III) 

C O N T E N T S 

Page 

Hearing held on April 29, 2015 .............................................................................. 1 

Statement of Senator Barrasso ............................................................................... 1 

Statement of Senator Franken ............................................................................... 31 

Statement of Senator Moran .................................................................................. 3 

Statement of Senator Tester ................................................................................... 2 

WITNESSES

Anderson, Hon. Keith B., Vice Chairman, Shakopee Mdewakanton Sioux 

Community ........................................................................................................... 32 

Prepared statement .......................................................................................... 33 

Griffin, Jr., Richard F., General Counsel, National Labor Relations Board ....... 4 

Prepared statement .......................................................................................... 6 

Guest, Richard A., Senior Staff Attorney, Native American Rights Fund .......... 42 

Prepared statement .......................................................................................... 45 

Torres, Hon. E. Paul, Governor, Pueblo of Isleta, New Mexico; Chairman, 

All Pueblo Council of Governors ......................................................................... 26 

Prepared statement .......................................................................................... 28 

Welch, Jr., Hon. Robert J., Chairman, Viejas Band of Kumeyaay Indians ........ 9 

Prepared statement .......................................................................................... 12 

APPENDIX

Anoatubby, Hon. Bill, Governor, Chickasaw Nation and Hon. Gary Batton, 

Chief, Choctaw Nation of Oklahoma, joint prepared statement ...................... 59 

Beauty, Hon. Thomas, Chairman, Yavapai-Apache Nation, prepared statement ...................................................................................................................... 77 

Chickasaw Nation, Choctaw Nation, Forest County Potawatomi Community, 

Pueblo of Isleta, Little River Band of Ottawa Indians and Puyallup Tribe 

of Indians, joint prepared statement .................................................................. 64 

Letters in support of S. 248...................................................................................... 78,80 

Mazzetti, Hon. Bo, Chairman, Rincon Band of Luisen ̃ o Indians, prepared 

statement .............................................................................................................. 75 

Response to written questions submitted by Hon. Al Franken to Hon. Keith 

B. Anderson .......................................................................................................... 82 

Response to written questions submitted by Hon. Heidi Heitkamp to: 

Richard F. Griffin, Jr. ...................................................................................... 82 

Richard A. Guest .............................................................................................. 83 

Romanelli, Hon. Larry, Chief, Little River Band of Ottawa Indians, prepared 

statement .............................................................................................................. 61 

(1) 

S. 248, THE TRIBAL LABOR SOVEREIGNTY ACT 

OF 2015 

WEDNESDAY, APRIL 29, 2015 

U.S. SENATE, 

COMMITTEE ON INDIAN AFFAIRS, 

Washington, DC. 

The Committee met, pursuant to notice, at 2:48 p.m. in room 

628, Dirksen Senate Office Building, Hon. John Barrasso, 

Chairman of the Committee, presiding. 

OPENING STATEMENT OF HON. JOHN BARRASSO, 

U.S. SENATOR FROM WYOMING 

The CHAIRMAN. Good afternoon, I call this hearing to order and 

invite those who are testifying to please join us. 

Today the Committee will examine S. 248, the Tribal Labor Sovereignty Act of 2015. This bill was introduced by Senator Moran, 

along with Senators Crapo, Daines, Fischer, Hoeven, Inhofe, 

Lankford, Risch, Thune, and Rounds. 

Tribal sovereignty is an essential key to enhancing tribal self-determination and self-governance. Tribal sovereignty allows Indian 

Tribes to govern themselves, regulate tribal businesses, and provide essential services to tribal members. Tribal sovereignty brings 

hope for a brighter future. 

We are in the era of empowering tribes. This policy is evident in 

Federal statutes such as the Indian Self-Determination and Education Act of 1975 and Title V of the Energy Policy Act of 2005, 

to name a few. 

Congress has worked to reverse government policies that have 

been detrimental to tribes. That is why I and the sponsors of S. 248 

have strong concerns about the how the National Labor Relations 

Board is treating Indian Tribes across the Country. The National 

Labor Relations Board decision to apply the National Labor Relations Act to Indian Tribes has increased costs and uncertainty, 

which can hinder tribal business growth. 

The bill before us would amend the National Labor Relations Act 

so that a tribally owned and operated enterprise or institution 

would be treated like any other Federal- or State-owned corporation. 

Before we hear the witnesses’ testimony on this bill, I want to 

turn to Senator Tester for his opening statement. 

2 

STATEMENT OF HON. JON TESTER, 

U.S. SENATOR FROM MONTANA 

Senator TESTER. Once again, thank you, Mr. Chairman, for holding this hearing. 

Over the past 15 years, the issues that this bill would address 

have become more prevalent and have really created uncertainty 

for tribes. The bill has wide support in Indian Country, so I think 

it is important to have this hearing and hear how tribes are addressing labor issues in their communities. 

Tribes have recently been tasked with understanding how the 

National Labor Relations Act applies to them as recent decisions 

by the National Labor Relations Board have exerted jurisdiction 

over tribal enterprises on tribal lands. These recent decisions were 

a departure after decades of hands-off approach taken by the 

NLRB. This has added some confusion and uncertainty for tribes. 

It is not conducive for proper human resource management and 

running effective enterprises. 

The uncertainty exists for no other governments in the Country 

other than Tribal Governments. Tribes have framed this is an issue 

of sovereignty and parity among governments, and I tend to agree 

with that assessment. And while I am a strong supporter of tribal 

sovereignty, we should acknowledge that some folks in Washington 

have spent the last few years trying to weaken the NLRB; gutting 

its funding, going after its ability to update the rules of the road 

for labor elections and otherwise trying to roll back two generations 

of protections that will help ensure workers’ decisions of whether 

and how to organize fair and free from influence of employers. 

I do not want anyone to confuse my support of this bill with my 

support for the work of the NLRB. Throughout the 80 years of implementing the NLRA, the NLRB has made changes to how it 

treats tribal enterprises and the role they play within tribal communities and government structures. While tribal economic development opportunities have indeed changed over the years, tribes, 

as governing bodies, like State and local governments, deserve the 

ability to determine their own governmental labor policies. 

Tribes, like other governments, have the responsibility of providing essential services to their members, such as education, 

healthcare, and housing. Businesses owned by the tribes serve a 

critical role in this effort by raising revenue to provide these crucial 

services. The uncertainty created by a 2004 San Manuel decision 

and subsequent decisions make it tougher for tribes to run their 

enterprises and carry out this important function. 

The NLRA guarantees key rights to workers and guides labor relations between employees and private employers. It is critically 

important to both employees and employers to have good working 

environments with an effective way to address grievances, but 

tribes deserve the same treatment afforded to all other governments under the NLRA. Acknowledging tribal sovereignty and affording the same opportunity to strengthen labor relations by developing their own labor policies that are consistent both in their 

own government, economic, and cultural realities and the larger 

framework of labor force protections. 

3 

I appreciate this Committee’s work. I look forward to working 

with my colleagues on this Committee to address any concerns that 

we hear about this bill today. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator Tester. 

Senator Moran, would you like to make an opening statement? 

STATEMENT OF HON. JERRY MORAN, 

U.S. SENATOR FROM KANSAS 

Senator MORAN. Mr. Chairman, thank you very much for the opportunity. I appreciate what Senator Tester just said, and I would 

thank you and he for having this hearing, and I express my appreciation to the witnesses who have traveled a distance and have 

made significant effort to join us today. 

I would like to reiterate something that I think needs to be said, 

and that would be that despite the word labor being in the title of 

this bill, in my view, the real focus of this legislation is another 

word in this bill, sovereignty. Do tribal governments have the right 

to make decisions that pertain to their business on their own 

lands? In my view they do, and I hope today’s hearing will affirm 

that to be the case. 

We know that there is a legislative problem. We are trying to 

deal with an issue that was not addressed in 1935. That question 

that arises is whether tribal governments should be included alongside Federal, State, and local governments as exempt from NLRA. 

Despite the omission of our predecessors, for almost 70 years the 

National Labor Relations Board rightfully honored tribal parity 

with other governments. Unfortunately, in the last decade there 

was a reversal of that policy, and this legislation, in my view, 

would correct that mistake. 

That sovereignty is the key issue of this bill is indicated by the 

broad support that this legislation has within Indian Country. As 

of today, approximately 50 tribal organizations have expressed 

their support for the Tribal Labor Sovereignty Act. Whatever the 

differences are between tribes, it is apparent that they are united 

in viewing this measure as a defense of their integrity. Tribes are 

not businesses; they are sovereign nations recognized as such 

under our Constitution. 

As I wrote to my colleagues upon introducing this bill, it is not 

the place of the Federal Government to impinge upon the authority 

of sovereign tribes. Tribal governments alone, accountable to their 

people, should decide labor practices for their entities that they 

own on their lands. 

I look forward, Mr. Chairman, to our discussion today, and I 

yield back my time. 

The CHAIRMAN. Thank you very much, Senator Moran. 

Would any other members like to make an opening statement? 

If not, we will now hear from our witnesses. There are five: Mr. 

Richard Griffin, the Honorable Robert Welch, the Honorable Paul 

Torres, the Honorable Keith Anderson, and Mr. Richard Guest. I 

want to remind the witnesses that your full testimony will be part 

of our official hearing record. Please keep your statements to five 

minutes so that we may have time for questions. 

4 

I look forward to hearing your testimony, beginning with you, 

Mr. Griffin. 

STATEMENT OF RICHARD F. GRIFFIN, JR., GENERAL 

COUNSEL, NATIONAL LABOR RELATIONS BOARD 

Mr. GRIFFIN. Chairman Barrasso, Vice Chairman Tester, and 

members of the Committee, thank you for the invitation to discuss 

the application of the National Labor Relations Act to tribal enterprises. I understand the Committee is considering legislation addressing this issue. 

As an independent agency, the National Labor Relations Board 

has a well-established policy of not taking a position on pending 

legislation. In addition, my office currently has several open cases 

involving application of the Act to tribal enterprises, so I will not 

comment on pending cases and will instead focus my remarks 

today on the current state of the law. 

The National Labor Relations Board is responsible for administering the National Labor Relations Act, which ensures the right 

of private sector workers to organize and bargain collectively with 

their employers and to participate in concerted activities to improve their pay and working conditions, with or without union representation. 

The Act confers on the Agency broad jurisdiction to resolve representation questions and remedy unfair labor practices affecting 

interstate commerce. It includes only a few specific exemptions 

from its definition of a covered employer. Those exclusions are the 

Federal Government and its corporations, States and their political 

subdivisions, unions not acting as employers, and employers covered by the Railway Labor Act. 

The definition of employer does not contain an express exemption 

for federally-recognized tribes or the employing enterprises that 

they own or control. 

In 2004, in the San Manuel Indian Bingo and Casino case, a bipartisan board reviewed its existing jurisdictional standards, which 

focused on whether tribal enterprises were located on or off tribal 

lands, and decided to announce a new standard intended to accommodate both Federal Indian policy and Federal labor policy. 

First, the Board determined that tribal enterprises meet the statutory definition of employer and do not fit any of the definitions exclusions. Next, the Board examined whether Federal Indian policy 

nonetheless required it to decline jurisdiction, and held that the jurisdictional question should be determined case-by-case. It adopted 

a presumption from the Supreme Court’s decision in Federal Power 

Commission v. Tuscarora Indian Nation that generally applicable 

Federal statutes like the National Labor Relations Act applied to 

Indian Tribes. 

The Board then adopted three exceptions previously developed by 

the Ninth Circuit in the Coeur d’Alene Tribal Farm case to protect 

core tribal sovereignty, the Federal Government’s treaty obligations, and Congress’s authority over Indian affairs. The Board followed the consensus of several Federal courts of appeals which had 

applied the Tuscarora-Coeur d’Alene framework to other general 

workplace statutes. The Board distinguished cases involving conflicts with States which, unlike the Federal Government, are not 

5 

superior sovereigns to tribes or involving tribal sovereign immunity, a doctrine which applies against private or State actors, but 

not against the Federal Government and its agencies. 

Finally, the Board augmented the framework with a Board-specific discretionary inquiry. The Board stated that even where application of the framework does not preclude jurisdiction over a particular tribal employer, the Board will balance the affect on labor 

and Indian policies before asserting jurisdiction, focusing on whether, in operating an enterprise, a tribe is primarily fulfilling traditionally tribal or governmental functions that are unique to the status as an Indian Tribe. 

In such cases, the policies underlying the Nation Labor Relations 

Act are less strongly implicated. However, if a tribe is participating 

in the national economy through a commercial enterprise, employing many non-Indian employees, catering largely to non-Indians, 

and competing with non-Indian businesses, the balance of conflicting considerations favors the Board’s jurisdiction because the 

tribe’s activity affects interstate commerce in a significant way. 

Applying its new standard, the Board in San Manuel asserted jurisdiction over an on-reservation tribal casino. It emphasized that 

the casino was a typical commercial enterprise with mostly non-Indian employees and customers. The Board noted that the tribe had 

no treaty with the Federal Government and it found that the casino’s on-reservation location was insufficient to outweigh the factors 

favoring jurisdiction. 

At the same time, the Board declined jurisdiction in a companion 

case, Yukon Kuskokwim Health Corporation, involving jurisdiction 

over an off-reservation tribal hospital. The Board, in that case, 

noted that 95 percent of the patients were Native Alaskans from 

the immediate surrounding area and that the clinic, as the area’s 

primary healthcare provider, did not compete with other hospitals 

covered by the National Labor Relations Act. 

The D.C. Circuit upheld the Board’s assertion of jurisdiction in 

San Manuel and the Board has continued to apply the framework 

adopted in that case. 

On a number of occasions since the Board issued San Manuel, its 

general counsel has, upon request, consulted with Indian Tribes potentially subject to the Board’s jurisdiction, consistent with the 

President’s memorandum on tribal consultation. As an example, in 

2014, I consulted with the Little River Band of Ottawa Indian’s 

tribal government respecting an unfair labor charge against that 

tribe. 

In conclusion, as I hope this summary makes clear, the Board’s 

regulation in this area, as in so many others, is the result of applying the general language in the statute to the changing circumstances of industrial life. At all times the Board seeks to give 

effect to the purposes and policies that Congress has embedded in 

the National Labor Relations Act and to take account of the decisions of the courts. 

In the area of jurisdiction over tribal enterprises, as in all other 

areas of its administration of the Act, the Board recognizes its responsibility to enforce the statute in accordance with the provisions 

and amendments that Congress chooses to enact. For that reason, 

the Agency takes no position on any pending legislation that may 

6 

1Section 2(2) of the NLRA, 29 U.S.C. § 152(2) defines ‘‘employer’’ and sets forth the exemptions. The Railway Labor Act is codified at 45 U.S.C. § 151, et seq. 2Simplot Fertilizer Co., 100 NLRB 771, 772–73 (1952); Texas-Zinc, 126 NLRB 603, 603–04, 

607 (1960), enforced sub nom. Navajo Tribe v. NLRB, 288 F.2d 162 (D.C. Cir. 1961). See also 

Devils Lake Sioux Mfg. Corp., 243 NLRB 163, 163–64 (1979) (asserting jurisdiction over on-reservation corporation partially owned by tribe but partially owned and ‘‘completely managed and 

operated’’ by non-Indian company). 3Texas-Zinc, 604, 606–07; Simplot, 100 NLRB at 773–74 & n.7. 4 226 NLRB 503, 504–06 (1976). Accord S. Indian Health Council, 290 NLRB 436, 436–37 

(1988). 5 307 NLRB 241, 243–45 (1992). 

alter the Act or affect the Board’s future jurisdiction over tribal enterprises. 

Thank you for this opportunity to testify, and I welcome any 

questions. 

[The prepared statement of Mr. Griffin follows:] 

PREPARED STATEMENT OF RICHARD F. GRIFFIN, JR., GENERAL COUNSEL, NATIONAL

LABOR RELATIONS BOARD

Chairman Barrasso, Vice-Chairman Tester, and Members of the Committee, 

thank you for the invitation to testify today. I appreciate the opportunity to appear 

before you to discuss the application of the National Labor Relations Act (NLRA) 

to tribal enterprises. I understand the Committee is considering legislation addressing this issue. As an independent agency, the National Labor Relations Board has 

a well-established policy of not taking a position on pending legislation. In addition, 

my Office currently has open cases involving the application of the NLRA to tribal 

enterprises. Therefore, my remarks today will address the current state of the law 

in this area; however, I will not be able to comment on pending cases. 

The National Labor Relations Board is responsible for administering the NLRA, 

which ensures the right of private-sector workers to organize and bargain collectively with their employers and to participate in concerted activities to improve 

their pay and working conditions, with or without union representation. As General 

Counsel, my Office serves as the investigative and prosecutorial branch of the Agency. In that capacity, we investigate alleged violations of the NLRA, issue complaint 

where merit has been determined, and litigate matters before Administrative Law 

Judges, the Board, and in the federal courts. 

Consistent with its congressionally mandated mission to ensure that workplace 

disputes are resolved efficiently and effectively, the NLRA confers on the Agency 

broad jurisdiction to resolve representation questions and remedy unfair labor practices affecting interstate commerce. The NLRA includes only a few specified exemptions from its definition of a covered ‘‘employer’’—the Federal Government and its 

corporations, states and their political subdivisions, unions not acting as employers, 

and employers covered by the Railway Labor Act. 1

The NLRA’s definition of ‘‘employer’’ contains no express exemption for federally 

recognized tribes or the employing enterprises that they own or control. The Board’s 

determination of whether and in what circumstances it should assert jurisdiction 

over tribal enterprises has evolved over a number of years. 

I. The National Labor Relations Board’s Early Approach to Jurisdiction 

Over Tribal Enterprises and Tribal Lands 

The question of whether the Board should assert jurisdiction over labor disputes 

on tribal lands first arose more than 60 years ago in two cases involving non-Indian 

companies that were operating on tribal reservations under leases with Indian 

tribes. In both Simplot Fertilizer Co. and Texas-Zinc, 2 the Board found that there 

was no valid basis for reading the NLRA to exclude from its coverage Indians or 

Indian reservations as a class. The Board noted that Congress vested the Board 

with very broad jurisdiction and that courts had applied other general federal statutes to Indians, and on Indian lands. 3

The Board first considered whether to assert jurisdiction over tribal enterprises 

located on tribal lands in a 1976 case called Fort Apache Timber Co. The Board declined to assert jurisdiction. It held that sovereign tribal governments, including a 

tribe’s ‘‘self-directed enterprise on the reservation,’’ were ‘‘implicitly exempt’’ from 

the NLRA’s definition of ‘‘employer.’’ 4

In a 1992 case, Sac & Fox Industries, 5 the Board was confronted with the question of whether to assert jurisdiction over a tribally owned and controlled factory 

7 

6 328 NLRB No.86 (1999), remanded, 234 F.3d 714 (D.C. Cir. 2000). 7 341 NLRB 1055, 1056–57 (Chairman Battista and Members Liebman and Walsh; Member 

Schaumber, dissenting), enforced, 475 F.3d 1306 (D.C. Cir. 2007). 8 Id. at 1057 (quoting NLRB v. Reliance Fuel Oil Corp., 371 U.S. 224, 226 (1963)). 9 Id. at 1057–58; accord Holly Farms Corp. v. NLRB, 51 U.S. 392, 399 (1996). 10 Id. at 1059. 11 341 NLRB at 1059–60 (discussing Tuscarora, 362 U.S. 99 (1960)). 12 751 F.2d 1113 (9th Cir. 1985). 13The same Tuscarora/Coeur d’Alene framework had informed the Board’s earlier Sac & Fox 

decision. 307 NLRB at 243–45 (citing Tuscarora and Coeur d’Alene). 14See San Manuel, 341 NLRB at 1059–60 & nn.16 & 17. 15See, e.g., Fla. Paraplegic, Ass’n v. Miccosukee Tribe of Indians of Fla., 166 F.3d 1126 (11th 

Cir. 1999) (ADA); Reich v. Mashantucket Sand & Gravel, 95 F.3d 174 (2d Cir. 1996) (OSHA); 

Smart v. State Farm Ins., 868 F.2d 929 (7th Cir. 1989) (ERISA). See also NLRB v. Pueblo of 

San Juan, 276 F.3d 1186, 1199 & n.11 (10th Cir. 2002) (en banc) (acknowledging Tuscarora may 

apply to tribes acting in proprietary capacity; collecting cases); EEOC v. Fond du Lac Heavy 

Equip. & Constr. Co., 986 F.2d 246, 248 (8th Cir. 1993) (acknowledging Tuscarora presumption 

in ADEA case, but finding exception for intramural tribal dispute). 

that, unlike the enterprise at issue in Fort Apache Timber Co., was located off the 

reservation. The Board asserted jurisdiction. 

The Board reaffirmed its holding that off-reservation tribal enterprises were not 

exempt from the statutory definition of employer in a 1999 case, Yukon Kuskokwim 

Health Corp. There, the Board asserted jurisdiction over an off-reservation hospital 

run by a tribal consortium and serving tribal patients. 6

II. Current law: the Board’s San Manuel Jurisdictional Standard 

In 2004, the Board decided San Manuel Indian Bingo & Casino. A bipartisan 

Board decision, noted the ‘‘increasingly important role’’ that tribal commercial enterprises were, by then, playing in the national economy. The Board found that tribally 

owned enterprises were ‘‘significant employers of non-Indians and serious competitors to non-Indian owned businesses.’’ The Board reviewed its existing jurisdictional 

standards, which focused on whether tribal enterprises were located on or off tribal 

lands. The Board found that its previous approach was ‘‘both underinclusive and 

overinclusive’’ and based on ‘‘faulty’’ premises. 7 Reviewing governing Indian law 

precedent and exercising its congressionally designated responsibility to interpret 

the NLRA, the Board announced a new, comprehensive standard intended to accommodate both federal Indian policy and federal labor policy. 

First, the Board determined that tribal enterprises meet the statutory definition 

of ‘‘employer’’—a term which Congress intentionally wrote to ‘‘vest in the Board the 

fullest jurisdictional breadth constitutionally permissible under the Commerce 

Clause.’’ 8 The Board then held that tribal enterprises do not fit any of the enumerated exclusions to the statutory definition of ‘‘employer,’’ noting that those exclusions are to be interpreted narrowly. 9 The Board noted, in particular, that nothing 

in the text of the NLRA supports a distinction in the definition of employer based 

on geographic location (such as whether a facility is on or off tribal lands). 10

Having determined that tribal enterprises are statutory employers, the Board considered whether federal Indian policy nonetheless required it to decline jurisdiction 

over such employers. The Board held that the jurisdictional question should be determined on a case-by-case basis, and it announced the standard it would apply 

going forward. The Board stated that it was adopting a presumption, from the Supreme Court’s decision in FPC v. Tuscarora Indian Nation, that generally applicable 

federal statutes like the NLRA apply to Indian tribes. 11

The Board then adopted three exemptions to that presumption. Those exemptions 

had previously been developed by the Ninth Circuit in Donovan v. Coeur d’Alene 

Tribal Farm, 12 to protect three distinct interests: core tribal sovereignty, the Federal Government’s treaty obligations, and Congress’ authority over Indian affairs. 13

The Board acknowledged arguments that the Tuscarora presumption is inconsistent with other Indian law cases, or otherwise inapplicable. But the Board followed the consensus of several federal courts of appeals which had accepted the 

Tuscarora/Coeur d’Alene framework in some measure. 14 Those courts had applied 

the Tuscarora/Coeur d’Alene framework to other general workplace statutes including the ADA, OSHA, and ERISA. 15

The Board discussed the cases typically cited in opposition to the Tuscarora/ 

Coeur d’Alene framework. The Board found that those cases either fit within that 

framework or did not involve application of generally applicable federal statutes like 

the NLRA. Many of the cases resolved conflicts with states which, unlike the Federal Government, are not superior sovereigns to tribes. Others involved tribal sovVerDate Mar 15 2010 13:27 Nov 04, 2015 Jkt 097405 PO 00000 Frm 00011 Fmt 6633 Sfmt 6621 S:\DOCS\97405.TXT JACK
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16See id. at 1061–62 & n.20, 1063 n.22; see also San Manuel, 475 F.3d at 1312. 17 341 NLRB at 1059 (quoting Coeur d’Alene). 18 Id. at 1061 & n.19, 1063 (citing Fla. Paraplegic and Mashantucket, supra; quoting Coeur 

d’Alene, supra). 19 Id. at 1063–64 & n.24. 20 Id. at 1064 (discussing IGRA, 25 U.S.C. § 2701, et seq.). 21 Id. at 1059, 1063. 22San Manuel, 341 NLRB at 1062. 23 Id. at 1062–63. 24Yukon Kuskokwim, 341 NLRB 1075, 1075–77 (2004). 25San Manuel, 475 F.3d at 1314–15. 

ereign immunity, a doctrine which applies against private or state actors, but not 

against the Federal Government and its agencies. 16

Under the Tuscarora/Coeur d’Alene framework, the Board, has expressly recognized that federal Indian law precludes jurisdiction that would ‘‘touch[] exclusive 

rights of self-government in purely intramural matters.’’ 17 But the Board has also 

recognized that the courts of appeals have limited that ‘‘self-government’’ exception 

to purely intramural tribal matters. 18 The Board found that the operation of a casino is neither an exercise of self-governance nor a traditional governmental function. 19

In addition, the Board considered the argument that the Indian Gaming Regulatory Act (or IGRA) precluded Board jurisdiction. The Board rejected that argument, noting that IGRA regulates gaming while the NLRA regulates labor relations, 

a subject IGRA does not address. 20

The Board acknowledged that it could not assert jurisdiction if doing so abrogated 

Indian treaty rights. The Board also accepted the Coeur d’Alene exception to jurisdiction where there is ‘‘‘proof’ in the statutory language or history that Congress did 

not intend the law to apply to Indian tribes.’’ In San Manuel, the Board found no 

such proof in the NLRA. 21

Finally, the Board in San Manuel augmented the Tuscarora/Coeur d’Alene framework with a Board-specific discretionary inquiry. The Board stated that, even where 

application of the Tuscarora/Coeur d’Alene framework does not preclude jurisdiction 

over a particular tribal employer, the Board will balance the effects on labor and 

Indian policies before asserting jurisdiction. That final inquiry balances ‘‘the Board’s 

interest in effectuating the policies of the NLRA with its desire to accommodate the 

unique status of Indians in our society and legal culture.’’ 22 The Board’s focus is 

on whether, in operating an enterprise, a tribe is ‘‘primarily... fulfilling traditionally tribal or governmental functions that are unique to their status as Indian 

tribes.’’ In such cases, the policies underlying the NLRA are less strongly implicated. 

The matter is different if a tribe is reaching out to participate in the national 

economy through a commercial enterprise employing many non-Indian employees, 

catering largely to non-Indians, and competing with non-Indian businesses. In that 

different circumstance, the balance of conflicting considerations favors Board jurisdiction, because the tribe’s activity ‘‘affect[s] interstate commerce in a significant 

way.’’ 23

Applying its new standard, the Board in San Manuel asserted jurisdiction over 

an on-reservation tribal casino. It emphasized that the casino was a typical commercial enterprise with mostly non-Indian employees and customers. The Board noted 

that the tribe had no treaty with the Federal Government, and it found that the 

casino’s on-reservation location was insufficient to outweigh the factors favoring jurisdiction. 

At the same time, the Board declined jurisdiction in a companion case, Yukon 

Kuskokwim Health Corp., on remand from the D.C. circuit. In that case, the Board 

found that the Coeur d’Alene factors did not preclude jurisdiction, but it declined 

jurisdiction over an off-reservation tribal hospital for prudential reasons. The Board 

also noted that 95 percent of the clinic’s patients were Native Alaskans from the 

immediate surrounding area and that the clinic, as the primary health care provider 

in the area, did not compete with other hospitals covered by the NLRA. The Board 

also cited the hospital’s function, ‘‘fulfilling the Federal Government’s trust responsibility to provide free health care to Indians.’’ 24

The D.C. Circuit upheld the Board’s assertion of jurisdiction in San Manuel. In 

doing so, it declined to adopt the Board’s standard or the Tuscarora/Coeur d’Alene 

framework, but it also rejected an interpretation of tribal sovereignty as ‘‘absolute 

autonomy, permitting a tribe to operate in a commercial capacity without legal constraint.’’ 25

Since San Manuel, the Board has asserted jurisdiction over three materially similar tribal casinos. In Little River Band of Ottawa Indians Tribal Government, a case 

arising in Michigan, the Board further explained its decision to adopt the TuscaVerDate Mar 15 2010 13:27 Nov 04, 2015 Jkt 097405 PO 00000 Frm 00012 Fmt 6633 Sfmt 6621 S:\DOCS\97405.TXT JACK
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26 361 NLRB No.45 (2014), adopting and incorporating 359 NLRB No. 84, slip op. 4 & n.9 

(2013). 27 361 NLRB No.73 (2014), adopting and incorporating 359 NLRB No.92, slip op. 7–8 (2013). 28 362 NLRB No.52, slip op. 1 n.3, 4 & n.12 (2015) (discussing Bay Mills, 134 S. Ct. 2024 

(2014)). 29 74 Fed. Reg. 57881 (Nov. 5, 2009). 

rora/Coeur d’Alene framework and responded to certain Tenth Circuit decisions 

questioning the applicability of that framework in some, but not all, circumstances. 26 In Soaring Eagle Casino & Resort, also a Michigan case, the Board 

reiterated that a tribe’s operation of a casino does not fit within the Coeur d’Alene 

self-government exception. The Board also addressed for the first time the treaty exception and clarified that to preclude jurisdiction a treaty must provide some right 

beyond reservation of the sovereign powers retained by all tribes. 27 Finally, in Casino Pauma, a California case issued last month, the Board addressed a Supreme 

Court decision issued last term—Michigan v. Bay Mills Indian Community—where 

the Court held that sovereign immunity protected an Indian tribe from Michigan’s 

lawsuit alleging that the tribe’s off-reservation casino was unlawful. The Board explained that Bay Mills reaffirmed cases that the Board had discussed in San 

Manuel and did not involve application of a generally applicable federal law. 28

III. Pending Litigation in the Courts of Appeals and Before the Board 

To date, the D.C. Circuit is the only court of appeals to have addressed the San 

Manuel standard in a published decision. Two Board decisions applying San Manuel 

are currently the subject of enforcement litigation before the Sixth Circuit. Little 

River Band has been submitted to a panel for decision (6th Cir. Case No. 14–2239), 

and Soaring Eagle will be argued on April 29 (6th Cir. Case Nos. 14–2405, 14– 

2558). 

IV. Consultation with Indian Tribes 

On a number of occasions since the Board issued its governing San Manuel jurisdictional standard, its General Counsel has, upon request, consulted with Indian 

tribes potentially subject to the Board’s jurisdiction, consistent with the President’s 

Memorandum on Tribal Consultation. 29 Most recently, in 2014, I consulted with the 

Little River Band of Ottawa Indians Tribal Government, and the Tribe’s counsel, 

respecting an unfair-labor-practice charge against the Tribe filed before the Agency. 

Prior General Counsels have consulted with other tribes, including the Saginaw 

Chippewa Indian Tribe of Michigan in 2007, and the Mashantucket Pequot Tribal 

Nation in 2008. 

V. Conclusion 

As I hope I have made clear in this brief summary of the history of the Board’s 

regulation of tribal enterprises over the years, the Board’s regulation in this area, 

as in so many others, is the result of its efforts to apply the general language in 

the statute to the changing circumstances of industrial life. At all times, the Board 

has endeavored to give effect to the purposes and policies that Congress has embedded in the National Labor Relations Act and to take account of the decisions of the 

courts. In the area of jurisdiction over tribal enterprises, as in all other areas of its 

administration of the NLRA, the Board recognizes its responsibility to enforce the 

statute in accordance with the provisions and the amendments that Congress chooses to enact. For that reason, as I stated at the outset, the Agency takes no position 

on any proposed legislation that may alter the NLRA or affect the Board’s future 

jurisdiction over tribal enterprises. 

The CHAIRMAN. Thank you, Mr. Griffin. I am sure there will be 

questions after others get a chance. 

Mr. Welch, could I call on you, please? 

STATEMENT OF HON. ROBERT J. WELCH, JR., CHAIRMAN, 

VIEJAS BAND OF KUMEYAAY INDIANS 

Mr. WELCH. Good afternoon. I am Robert Welch, Jr., Chairman 

for the Viejas Band of Kumeyaay Indians. Thank you for allowing 

me to testify today regarding S. 248 and its critical importance to 

tribal sovereignty. 

Viejas proudly owns and operates the Viejas Casino and Resort 

located in Southern California, which is the primary source of revVerDate Mar 15 2010 13:27 Nov 04, 2015 Jkt 097405 PO 00000 Frm 00013 Fmt 6633 Sfmt 6601 S:\DOCS\97405.TXT JACK
10 

enue to fund essential tribal government services and programs 

such as education, health, housing, public safety. Viejas Casino and 

Resort provides over 1,700 jobs and annually contributes millions 

of dollars to the local economy. 

Tribal government gaming has made self-determination and economic self-sufficiency a reality. S. 248 is about respecting the sovereignty of tribal governments and affirming that they possess the 

same status as Federal and State governments with respect to 

labor relations on sovereign lands. S. 248 would reverse the 

NLRB’s drastic shift in policy under the 2004 San Manuel decision 

when it ignored 30 years of precedent to rule for the first time that 

the NLRA applied to tribal governments. 

Finally, S. 248 would set the record straight once and for all regarding Congress’s intent as to the exemption of tribal governments from the NLRA. If exemption from the NLRA is appropriate 

for State lotteries, it should be for tribal gaming too. 

Opponents of S. 248 likely will characterize the measure as antiunion. They will argue that the NLRA is essential to protect the 

rights of employees. Viejas serves as a striking example why neither of these propositions is true. In August 1998, long before anyone, including the NLRB, believed the NLRA should be applied to 

tribal governments, Viejas entered into voluntary election agreement with the Communication Workers of America for the purpose 

of labor organizing. 

In January 1999, following a secret ballot election, CWA was certified as a bargaining representative for approximately 30 percent 

of the Viejas Casino and Resort workforce. Shortly thereafter, 

Viejas and CWA commenced collective bargaining, and in October 

1999 ratified the first-ever collective bargaining agreement between 

a tribal government and a labor organization in California. 

Every stage of the process, from organizing to contract ratification, reflected a decision made by Viejas in the exercise of its sovereignty. None of the procedures were compelled or forced upon 

Viejas, nor did they involve the NLRA or the NLRB. 

In 1999, as further exercise of sovereignty, Viejas adopted a tribal labor relations ordinance in conjunction with its compact negotiations with California. A copy of the TLRO is included as an exhibit in my written submission. 

The TLRO, like similar voluntary adopted State laws governing 

labor relations, is similar to the NLRA in that it includes access, 

election, unfair labor practices, and dispute resolution provisions. It 

differs, however, in matters that are unique to tribal government 

gaming, including recognition of an Indian hiring preference, the 

exclusion of certain employee classifications from organization, the 

ability to require a labor organization to secure a gaming license, 

and the resolution of labor disputes through a binding arbitration 

before an independent tribal labor panel rather than through 

NLRB proceedings. 

The TLRO has been adopted by over 70 tribal governments in 

California as an exercise in tribal sovereignty not because they are 

required to do so by some Federal or State law; it has worked for 

over 15 years. 

Viejas has recently faced a series of conflicts between the TLRO 

and the NLRA. Last year, an employee within the bargaining unit 

11 

filed a petition before the NLRB to decertify the CWA as the bargaining representative. Relying on the San Manuel decision, the 

NLRB asserted jurisdiction over the decertification election. Viejas 

had to either accept NLRB jurisdiction or endure expensive and 

protracted litigation fighting over whether the TLRO or the NLRA 

election procedure controlled. 

The Viejas Band reluctantly stipulated to the NLRB election 

process and a new union, United Food and Commercial Workers, 

was elected as a new bargaining representative. Shortly thereafter, 

UFCW and Viejas commenced collective bargaining, which immediately triggered conflict over whether the TLRO or the NLRA controlled negotiations. 

One example of the conflict involved requirement under Viejas 

gaming commission regulations and the TLRO for UFCW to obtain 

a gaming license as CWA had done for the past 14 years. UFC objected to the requirement and filed an unfair labor practice charge 

with the NLRB, claiming that it was being denied access. Fortunately, UFCW ultimately agreed to licensure in order to conclude 

a collective bargaining agreement. 

But the recently ratified agreement remains silent as to whether 

the TLRO or the NLRA governs. This has created an environment 

ripe for ongoing dispute, which the passage of S. 248 could avoid. 

In conclusion, S. 248 is about protecting tribal sovereignty. Viejas 

and other tribes have proven that they can develop laws that protect the rights of employees while also protecting essential tribal 

government gaming operations. Viejas’ adoption of the TLRO 

should be respected. The NLRA, the NLRB should have no application or role in labor relations at Viejas Casino & Resort. Viejas respectfully requests that Congress enact S. 248 and reaffirm that 

tribal governments possess the same status as Federal and State 

governments. The NLRB and the courts should not decide what 

Congress intended. 

Thank you for listening to my testimony today, and I stand ready 

to answer any questions you may have. 

[The prepared statement of Mr. Welch follows:] 

12 

PREPARED STATEMENT OF HON. ROBERT J. WELCH, JR., CHAIRMAN, VIEJAS BAND OF

KUMEYAAY INDIANS


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The CHAIRMAN. Thank you very much, Mr. Welch. 

Mr. Torres. 

STATEMENT OF HON. E. PAUL TORRES, GOVERNOR, PUEBLO 

OF ISLETA, NEW MEXICO; CHAIRMAN, ALL PUEBLO COUNCIL 

OF GOVERNORS 

Mr. TORRES. Good afternoon. My name is Paul Torres. I am the 

Governor of the Pueblo of Isleta, New Mexico. I am also the Chairman of the All Pueblo Council of Governors, which represents 19 

Pueblos in New Mexico and one in Texas. Thank you for the opportunity to testify today. 

All the pueblos strongly support this bill. This bill is very important to tribes. It is essential to protect our responsibilities as sovereign governments. I would like to start by telling you about my 

Pueblo. Then I would like to tell you about our experience with the 

NLRB. 

The Pueblo of Isleta is governed by an elected tribal council and 

governor. We do all the things that all governments must do: we 

hire police to protect public safety, we operate courts, we run a 

health center, we have many programs to care for and educate our 

children. We work so that our community has safe roads, clean 

water, and affordable housing. 

Like other governments, we have laws that define the rights and 

responsibilities of our employees. Our laws include procedures so 

that if an employee feels he has not been treated fairly, he can 

challenge the action through an appeal process. Our laws also recognize the rights of employees to organize unions. But to protect 

our ability to provide important government services, the law does 

not allow employees to strike. Instead, it has procedures so that 

any labor dispute can be resolved by an independent board with a 

right to appeal to the tribal court. 

We are making progress in addressing the needs of our community. We owe much of our success to the commitment that Congress 


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has made to tribal self-determination and we rely heavily on Indian gaming to do this. Our casino is owned and operated by the 

Pueblo government. We regulate and manage our own casino consistent with the Indian Gaming Regulatory Act. When Congress enacted the IGRA, it recognized that tribal economic development 

was a key to strengthening tribal governments. Congress made 

that connection clear by requiring that tribes use gaming revenues 

to fund tribal government programs and services, and that is exactly what we do. 

All of the net revenues from our casino are used to provide government services. In fact, 60 percent of the money that we spend 

to run the Pueblo government is paid for with casino revenues. 

This year, the Pueblo will take over management of our elementary 

school from the BIE and we will use casino revenues to help run 

the school. In addition, on May the 30th, we will open a new assisted living facility and new elder center. None of this would be 

possible without our gaming revenues. 

The Pueblo is moving forward as Congress intended under the 

self-determination policy, but the NLRB is ignoring that policy. Instead, the Board treats Indian Tribes like private businesses. 

Now that is happening to us. A few months ago, a former employee of our casino submitted a grievance to our gaming agency 

and also to the Board. The Board then asserted jurisdiction over 

the Pueblo. Just last week, the Board served us with a subpoena 

that shows how it views tribes. For example, the Board demands 

that we produce documents that prove that the Pueblo is a sovereign, even though the United States has always recognized us as 

sovereign. The Board demands that we produce all records that 

prove how we spend every dollar of our gaming revenues, even 

though our funds are audited every year and those audits are submitted to the NIGC. None of that matters to the Board. The Board 

still demands that we prove to the Board’s satisfaction that we are 

using gaming revenues for purposes that the Board believes are 

governmental. 

The Board’s attack on tribes is wrong. When Congress enacted 

the NLRA, Congress said that this law does not apply to governments. Tribes are governments. And Congress never said the Board 

could treat tribes differently from every other government, but that 

is what the Board is doing. The Board’s attack on tribes is also 

wrong because it does not respect Congress’s self-determination 

policy. Even though we have laws to address employee grievances, 

the Board says that our laws have no role in resolving the employee’s claim. 

Finally, the Board is wrong because it does not respect the careful balance that our laws observe. We recognize the right of employees to organize, but not to strike. A strike would cut off the 

funds that we need to run our government. We cannot be put in 

a position where, as a result of a strike, we must reduce police patrols or close schools or suspend care to our elders. 

This bill would solve the problem. Litigation is not the answer. 

Litigation is expensive; it drains resources needed to pay for government services. And the Board is doing the same thing to tribes 

across the Country. The Board won’t stop attacking tribes unless 

Congress acts. On behalf of the Pueblo of Isleta and the 19 other 

28 

Pueblos, I respectfully urge the members of the Committee to protect tribal self-government by supporting this bill. 

Thank you again for this opportunity, and I will be happy to answer any questions. 

[The prepared statement of Mr. Torres follows:] 

PREPARED STATEMENT OF HON. E. PAUL TORRES, GOVERNOR, PUEBLO OF ISLETA, NEW MEXICO; CHAIRMAN, ALL PUEBLO COUNCIL OF GOVERNORS

Chairman Barrasso, Vice Chairman Tester, Senator Udall and honorable members of the Committee, my name is Paul Torres, and I am the Governor of the Pueblo of Isleta. I am also here today in my capacity as Chairman of the All Pueblo 

Council of Governors, which is comprised of the nineteen Pueblos of New Mexico— 

the Pueblos of Acoma, Cochiti, Isleta, Jemez, Laguna, Nambe, Ohkay Owingeh, 

Picuris, Pojoaque, San Felipe, San Ildefonso, Sandia, Santa Ana, Santa Clara, Santo 

Domingo, Taos, Tesuque, Zia and Zuni—and Ysleta del Sur Pueblo of Texas. On behalf of the Pueblo of Isleta and the All Pueblo Council of Governors, I want to thank 

this Committee for holding this hearing on S. 248 and for the invitation to testify. 

All of the Pueblos are federally recognized Indian tribes who have lived in our 

present day location since time immemorial. In our long history, the United States 

is the third sovereign to recognize us—Spain and then Mexico were the first two— 

and we governed this area long before even those sovereigns arrived. One aspect of 

sovereignty is working with other governments, and that is what I want to talk 

about today. 

All the Pueblos support S. 248. This bill is essential to restore the dignity and 

equality of Indian tribes as sovereigns, which the National Labor Relations Board 

(Board or NLRB) is seeking to deny us. The Board treats every sovereign, all the 

way down to local governments and political subdivisions of the state, as exempt 

from the National Labor Relations Act (NLRA) except for one—Indian tribes. It does 

so even though Congress made clear, when the NLRA was enacted, that the Act 

does not apply to sovereign entities. The NLRA does not mention Indian tribes and 

for a long time the Board recognized that the Act does not apply to Tribes. Now 

it wants that power—but it did not ask Congress for it. Nor did it ask the Tribes 

for their views. Instead, the Board made up its own rules about how to treat Indian 

tribes—to the Board we are private businesses, unless we prove to their satisfaction 

that we are sovereign. And they are currently seeking to impose the NLRA against 

Indian tribes throughout the Nation, in California, Michigan, Minnesota, Oklahoma 

and New Mexico. We need your help to stop the Board from violating our sovereignty and ignoring the will of Congress. S. 248 would fix this problem by clarifying that Congress never intended the NLRA to apply to sovereigns, that Indian 

tribes are sovereigns, and therefore the Act does not apply to them. 

Let me start by telling what the Pueblo is doing as a sovereign, and how we are 

doing it. And then let me describe what the Board is doing to us, and why we support the enactment of S.248. 

The Pueblo of Isleta’s Governmental Programs and Services 

The Pueblo of Isleta is governed by an elected Tribal Council and Governor, pursuant to a tribal constitution adopted under the Indian Reorganization Act and approved by the Secretary of the Interior. We live on a reservation that is a very small 

piece of our aboriginal territory, and we are responsible for governing that reservation. This includes providing essential services to 3,400 tribal members as well as 

other residents and visitors to the Pueblo. We meet the needs of our community by 

protecting public safety, enforcing the law, operating a court system, offering medical, dental and other wellness services, and providing social services in areas that 

include counseling, substance abuse treatment, child protection, and foster care. In 

addition, we have: an Education Department, which operates a Head Start program 

for our youth and a scholarship program; Public Works, Natural Resources and Realty Departments that maintain safe roads and buildings, keep our irrigation systems running, provide clean water and proper waste disposal, manage our grazing 

and farming lands, and protect our natural resources; and a Housing Authority 

which provides safe and affordable housing for our members. 

As with all governments, we carry out all of these duties through our employees. 

And we have enacted laws and policies to define their rights and responsibilities. 

We also have adopted grievance procedures under which an employee who is disciplined or terminated may challenge such action, appeal any adverse decision, and 

have it reviewed. We also work to prevent problems of drugs in the workplace by 

requiring drug testing of employees under a program that follows the requirements 

29 

of the federal Drug Free Workplace Act, which we adhere to as a condition of our 

receipt of federal funds, and which also covers Pueblo employees who work in nonfederally funded programs where the nature of the employee’s work warrants drug 

testing. 

We also regulate labor relations on the Reservation. The Pueblo’s Labor and Employment Relations Ordinance was adopted by the Pueblo in July 2010 and approved by the Secretary of the Interior in December 2010. The Ordinance provides 

a minimum wage, overtime compensation, and addresses other matters such as family and medical leave. It also contains provisions that recognize the rights of employees to organize unions and pursue collective bargaining agreements. The Ordinance 

applies to all employers on the Reservation, including the Pueblo itself. The Ordinance also balances the interest of employees in organizing, with the Pueblo’s duty 

to provide essential governmental services to protect and serve our community, by 

not allowing employees or labor organizations to strike. In this important area, the 

Ordinance establishes alternative means by which labor disputes and alleged unfair 

labor practices can be heard and resolved—which is done through the Pueblo Labor 

and Employment Relations Board with a right to appeal to the Pueblo of Isleta Tribal Appellate Court. 

How are we able to do all this? We owe much of our success to Congress’ commitment to the policy of self-determination, which has strengthened tribal self-government and diminished federal paternalism. We also rely heavily on Indian gaming, 

which we conduct under the Indian Gaming Regulatory Act (IGRA). In enacting 

IGRA, Congress recognized the fundamental connection between strengthening tribal governments and promoting tribal economic development. IGRA makes that connection clear by requiring that we use our net gaming revenues to fund tribal government programs and services and other tribal economic development. And we do 

just that: the Pueblo of Isleta operates its casino and uses gaming revenues to 

strengthen the tribal government and provide programs and services essential to 

the welfare of our community. 

Our gaming facility, the Isleta Resort & Casino, along with a small satellite facility known as Palace West, is wholly owned and operated by the Pueblo. Our tribal 

government oversees, regulates, operates, and manages all aspects of our gaming 

enterprise. We do this in the exercise of our inherent sovereign authority and in accord with IGRA, the regulations promulgated by the National Indian Gaming Commission (NIGC), and our Gaming Compact with New Mexico. Further, as required 

by IGRA and the Compact, we comprehensively regulate our gaming operations, in 

accordance with comprehensive regulations adopted by our Tribal Council and approved by the NIGC. The Pueblo of Isleta Gaming Regulatory Agency is an independent regulatory agency responsible for overseeing and regulating the Pueblo’s 

gaming enterprise. Its many responsibilities include licensing gaming employees 

and ensuring that our employees comply with the Pueblo’s gaming laws, IGRA and 

the Gaming Compact. The Pueblo’s laws also implement requirements of the NIGC’s 

regulations and impose internal controls that effectively set a number of work rules 

for employees. 

The net revenues earned by the Isleta Resort & Casino fund the Pueblo’s governmental operations and programs. As IGRA requires, all net revenues from the gaming facility are used to provide essential governmental services. In fact, more than 

half of the Pueblo’s total governmental expenditures for law enforcement, public 

safety, tribal courts, education, social services, natural resource management, roads 

and other infrastructure are directly funded by net revenues earned by our Isleta 

Resort & Casino enterprise. 

We also continue to work on the backlog of unmet needs that we inherited from 

the BIA. This year, the Pueblo will take over the operation and management of the 

Pueblo of Isleta elementary school. And because federal funds are not sufficient, the 

Pueblo will subsidize the school’s operations with gaming revenues. Our gaming revenues also allow us to care for our elders needs in areas not supported by federal 

programs. On May 30 we will open an assisted living facility that will serve 20 elderly residents and a new elder center that will provide meals, recreation, counseling and related community services to many other elders, including those who are 

home-bound and require help with daily living needs. None of this would be possible 

without our gaming revenues. And this is precisely how the self-determination policy, as developed by Congress, is designed to work. 

How the NLRB Deals With Tribes 

The Board ignores the Self-Determination policy, makes up on an ad hoc basis 

when it will treat tribes as sovereigns, requires that tribes prove they are sovereigns 

under those rules, and imposes the NLRA on any activity that it does not deem to 

be sufficiently sovereign. 

30 

1See Dobbs v. Anthem Blue Cross & Blue Shield, 600 F.3d 1275, 1283–84 (10th Cir. 2010) 

(‘‘federal regulatory schemes do not apply to tribal governments exercising their sovereign authority absent express congressional authorization’’); NLRB v. Pueblo of San Juan, 276 F.3d 

1186, 1196 (10th Cir. 2002) (en banc) (rejecting argument that NLRA preempted tribal sovereign 

authority to enact a right to work ordinance because legislative ‘‘[s]ilence is not sufficient to establish congressional intent to strip Indian tribes of their retained inherent authority to govern 

their own territory.’’); Chickasaw Nation v. NLRB, No. CIV–11–506–W (W.D. Okla. Jul. 11, 

2011) (order granting preliminary injunction against the NLRB from proceeding with a hearing 

on its complaint against the Chickasaw Nation and its gaming enterprise). 2The Pueblo raised all of these issues in correspondence, and later in a motion to dismiss the 

NLRB proceeding, without effect. 

This is how the Board has dealt with the Pueblo of Isleta. A few months ago, a 

former employee of the Isleta casino, after having filed complaints with the Pueblo 

of Isleta Gaming Regulatory Agency, also submitted a grievance to the NLRB. Her 

grievance does not allege that she sought to engage in any activity that is subject 

to the protection of the National Labor Relations Act (even if it did apply)—but that 

has not stopped the Board from using that grievance to try to force the Pueblo to 

operate under the NLRA. We have our own employee relations laws, which allow 

employees to organize collectively and which establish procedures for hearing and 

resolving employee grievances. But the Board will not allow those laws to govern 

our activities. And although the federal law in our Circuit is clear that the National 

Labor Relations Act does not apply to tribes 1—the NLRB plows forward, 

undeterred. 2

The NLRB responded to this individual complaint by initiating a broad-ranging 

investigation under which it is asserting primary jurisdiction over all of the Pueblo’s 

activities—without any government-to-government consultation with the Pueblo. Instead, the Board served a subpoena on the Pueblo which demands a massive quantity of our records, questions our status as a sovereign, and completely ignores the 

federal laws that do govern the Pueblo’s activities. 

For example: the Board demands that the Pueblo produce documents that prove 

that the Pueblo is a sovereign—despite the fact that we are recognized as a sovereign by the United States and have always been listed on the Federal Government’s official list of federally recognized tribes. Indeed, we have been recognized 

as a sovereign for 500 years, since the arrival of the Spanish. Our basic status as 

a government should not be subject to attack by the Board. 

The Board also demands that the Pueblo produce all records that demonstrate 

how the Pueblo spends every dollar of net gaming revenues for government facilities 

and programs—including receipts to show when, where and how the funds were 

used. In IGRA, Congress expressly defined how we are to use our net gaming revenues—to fund tribal government programs and services and economic development—and under IGRA our use of funds is subject to audit and review by other federal agencies that have express authorization from Congress to do so. That makes 

no difference to the Board. Instead, the Pueblo has to prove to the Board that it 

is using gaming revenues for purposes that the Board approves of as sovereign expenditures. The Board has no right to do this. 

The Board has also demanded that we produce personnel records of many other 

employees, and establish for it the ‘‘regularity of drug tests administered by [the 

Pueblo], including all supporting documentation showing the circumstances under 

which these drug tests were administered,’’ as well as ‘‘the process for selecting employees for drug screenings, including all supporting documentation explaining the 

process of selecting employees for drug screenings.’’ The Board makes this demand 

notwithstanding that drug testing is a critical element of modern day employment, 

governed by the standards of the Drug Free Workplace Act, not the NLRA, and that 

it is essential to protect the integrity of gaming operations under IGRA. The Board 

also ignores the fact that much of this information is confidential, the production 

of which would infringe on the privacy rights of persons not involved in the NLRB 

proceeding. 

Why S. 248 Is Needed 

The NLRB’s attack on tribes is wrong. Congress made clear in the National Labor 

Relations Act that it does not apply to sovereigns, and Indian tribes are sovereigns. 

Congress never authorized the Board to single out Indian tribes and treat them differently from every other sovereign in the United States. But this is what the Board 

is doing. And in so doing, it is severely undercutting the goals of the Indian Gaming 

Regulatory Act, in which Congress made clear that economic development, through 

gaming, is key to enhancing tribal governments and tribal self-determination. 

For decades, the NLRB interpreted the Act’s exception for government employers 

to include Indian tribes and tribal enterprises owned by Indian tribes that were loVerDate Mar 15 2010 13:27 Nov 04, 2015 Jkt 097405 PO 00000 Frm 00034 Fmt 6633 Sfmt 6621 S:\DOCS\97405.TXT JACK
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cated on Indian reservations. Fort Apache Timber Co., 226 N.L.R.B. 503 (1976). It 

was not until 2004 that the NLRB changed its long-standing interpretation. In San 

Manuel Indian Bingo & Casino, 341 N.L.R.B. 1055 (2004), the Board announced its 

view that the NLRA does apply to tribally-owned, on-reservation enterprises. 

The NLRB’s attack on tribes is wrong because it undermines self-determination 

at its core. Although the Pueblo has enacted comprehensive laws and established 

governmental agencies to address employee grievances, the Board says that the 

Pueblo’s laws, agencies and courts will have no role to resolving the employee’s 

grievance. Instead, it will decide the grievance. And under the NLRB’s view, it can 

ignore any treaty or Act of Congress that is inconsistent with its view of the authority it holds under the NLRA. 

The NLRB is wrong because it fails to recognize the central importance of revenues from the Pueblo’s enterprises to the day-to-day operations of the tribal government, and does not respect the careful balance that the Pueblo’s laws observe— 

which recognize the right of employees to organize, but not to strike. For a tribal 

government, that limitation is essential. A strike would disrupt the generation of 

the revenues on which our tribal programs and services—and our elders, children 

and poor—depend. A strike would force the government to either shut down or substantially cut back government operations, and just the threat might be enough for 

the Pueblo to agree to any demands that would avoid that result. As governments 

with responsibilities for the safety and welfare of our people, we cannot be put in 

a position where we must curtail police patrols, close schools, or provide diminished 

care to our elders. 

S. 248 is the solution to this problem. Letting the Board litigate the issue across 

the country will only worsen and prolong the current problem. That litigation is also 

extremely expensive and drains resources needed to fund government programs and 

services. Litigation is a waste of federal resources as well. The NLRB is pursuing 

its recent change in policy piecemeal, through individual enforcement actions 

against tribes throughout the country—creating extensive uncertainty along the 

way. The NLRB’s authority to attack tribes is fabricated out of thin air, without express authorization from Congress and is imposed without the kind of governmentto-government consultation and evaluation by which appropriate policy determinations should be made. But the NLRB won’t stop unless Congress says it never had 

the power over tribes that it now claims. As we see it, the choice is clear—tribal 

self-government is protected and furthered by supporting and passing S. 248. 

Thank you again for this opportunity to testify. 

The CHAIRMAN. Thank you very much, Mr. Torres. 

Senator Franken, could I ask you to please introduce our next 

guest and witness? 

STATEMENT OF HON. AL FRANKEN, 

U.S. SENATOR FROM MINNESOTA 

Senator FRANKEN. Mr. Chairman, I am pleased to welcome Keith 

Anderson to the Indian Affairs Committee. Keith is Vice Chairman 

of the Shakopee Mdewakanton Sioux community, one of four Dakota communities in Minnesota. Under his leadership, Shakopee 

provides an impressive range of services not only to its members, 

but also its employees. The tribe is also an important source of economic development in the region. Shakopee is the largest employer 

in Scott County and one of the 50 largest employers in the State 

of Minnesota. 

Vice Chairman Anderson knows the importance of economic development on Indian lands. I appreciate that he is here on behalf 

of Shakopee to provide his perspective on this legislation. 

The CHAIRMAN. Thank you very much, Senator Franken. 

Mr. Anderson. 

32 

STATEMENT OF HON. KEITH B. ANDERSON, VICE CHAIRMAN, 

SHAKOPEE MDEWAKANTON SIOUX COMMUNITY 

Mr. ANDERSON. Good afternoon, Mr. Chairman. Thank you very 

much, Senator Franken. Good afternoon, Senator Moran, Ms. 

Heitkamp. 

On behalf of my Shakopee tribal government, I want to convey 

our strong support for prompt enactment of S. 248. We are indebted to you, Mr. Chairman, and especially to you, Senator 

Moran, for joining us in our effort to enact S. 248. We urge you to 

keep this bill clean, without any change, and to enact it quickly. 

S. 248 is a simple, narrow response to a 2004 decision by the 

NLRB to override decades of Federal law respect for tribal labor 

sovereignty. Since then, Shakopee, along with other tribal governments, has asked Congress to clarify the expressed wording in a 

statute that, once again, tribal governmental employers are treated 

the same as all other governmental employers for the purposes of 

the NLRA. 

Each of us, Federal, Tribal, State, and local is a government. 

Each possess governmental sovereignty. Each should respect the 

other’s governmental sovereignty. When tribal governmental sovereignty is respected, economic success follows. 

The NLRA statute did not change in 2004. The only thing that 

changed was the NLRB’s interpretation of the NLRA. The NLRB 

suddenly claimed in 2004 that it had the right to look over the 

shoulders of tribal governments and decide whether or not our activities are commercial rather than governmental. If commercial, 

then the NLRB said it will treat tribal governments like we are 

private sector corporations and not governments. 

As tribal governments, we must ask ourselves why does the 

NLRB not apply the same commercial versus governmental status 

and analysis to State and local government employers. State-run 

golf courses, liquor stores, spa resorts, conventions, event arenas, 

RV parks, port authorities, lotteries, hosts of other enterprises, like 

tribal governments, they do so for the same reason, to raise governmental revenue. 

When opponents of S. 248 say they are concerned for the welfare 

of tribal government workers if S. 248 is enacted, they should be 

asked how are tribal employees any less protected than the millions of Federal, State, and local government workers whose employers are excluded from the NLRA provisions today. 

Mr. Chairman, to help understand our passion for this issue, let 

me provide you with a brief background of my tribe. In recent decades, economic development has surrounded our reservation. The 

Shakopee Tribe has played a significant role in the economic revitalization of our region. For years our tribal government has been 

the largest employer in Scott county. Our tribally owned and controlled enterprises are a vital source of governmental revenue for 

ourselves and for our neighbors. Our tribal government workforce 

of over 4,000 people earn some of the most competitive salaries in 

our regional market and receives well regarded benefits, amenities, 

and I have listed that in my written testimony. 

In 2014, as in previous years, the Shakopee Tribe was the largest 

of the 155 employers named as the top workplaces in Minnesota. 

The Shakopee Tribe’s economic enterprises cannot be distinguished 

33 

from those owned and controlled by State and local governments 

throughout America. Those governments, just like tribal governments, are engaged in a wide variety of commercial-like activities. 

What makes all of our enterprises governmental is that they are 

under the exclusive ownership and control of government and the 

revenues that they raise are dedicated exclusively to governmental 

purposes. 

The NLRA has always protected the sovereign right of governmental employees to define their own collective bargaining rights 

and to avoid work stoppages and strikes in their governmental 

workforces. Tribal governments share the same need for workforce 

stability. The NLRB should respect tribal government sovereignty. 

They did so until 2004. 

None of the facts changed in 2004. There were no changed circumstances that would compel the NLRB their drastic curtailment 

of tribal sovereignty in the San Manuel decision. Long before 2004, 

Indian gaming began on our reservation, in the early 1980s, and 

we enjoyed steady growth throughout the next two decades. Just 

as State governments employ many workers who are citizens in 

other border States, tribes like Shakopee have always employed 

many workers who are not members of our tribe. 

How can opponents of S. 248 justify treating tribal government 

employers differently than State or local government employers? 

Surely they don’t mean to imply that tribal governments can’t be 

trusted as much as State governments. They deal with their governmental employees in a fair way. It would be paternalistic and 

discriminatory for Congress to add any special tribal requirements 

or preconditions to S. 248. 

Proponents of adding preconditions should be asked if S. 248 is 

enacted as introduced, would tribal government employees have 

any less protection than do State and local government employees 

under the NLRA today, and the answer, of course, is no. 

So, in conclusion, I want to be very, very clear. S. 248 is not 

about a labor policy; it is all about tribal sovereignty. We insist 

that our friends, both Republicans and Democrats, not turn S. 248 

into a partisan political football. Winning its enactment is far more 

important to us than scoring points. The Committee often straddles 

partisan divides when it defends tribal government sovereignty in 

our unique Federal trust and treaty relationships. We ask that you 

once again stretch this time to embrace S. 248, give the bill your 

undivided and unequivocal bipartisan support because it would 

treat tribal governments like all other governments and restore the 

tribal labor sovereignty that existed before 2004, and that existed 

for seven decades prior to that. 

Mr. Chairman, thank you for the opportunity to present this testimony in support of the prompt enactment of S. 248 and the Tribal 

Labor Sovereignty Act of 2015. Thank you all for your help. 

[The prepared statement of Mr. Anderson follows:] 

PREPARED STATEMENT OF HON. KEITH B. ANDERSON, VICE CHAIRMAN, SHAKOPEE

MDEWAKANTON SIOUX COMMUNITY

Introduction 

Good afternoon, Mr. Chairman and Members of the Committee. My name is Keith 

Anderson. I am the duly-elected Vice-Chairman of the Shakopee Mdewakanton 

34 

1 ‘‘The term ‘employer’. . . shall not include the United States or any wholly owned Government corporation . or any State or political subdivision thereof. . . .’’ Id. Most employees work 

for employers in the private sector who are covered under the NLRA. The law does not cover 

government employees, agricultural laborers, independent contractors, and supervisers (with 

limited exceptions). See FAQs on NLRB website—http://www.nlrb.gov/resources/faq/ 

nlrb#t38n3182 (accessed April 27, 2015). 

Sioux Community (‘‘SMSC’’ or ‘‘Tribe’’), a federally-recognized tribal government, located in Prior Lake, Minnesota. 

My Tribe wholeheartedly supports S. 248 and asks that you secure its prompt enactment. S. 248 rests on a principle that has been amply demonstrated by Indian 

tribes across the country: when tribal sovereignty is respected and acknowledged, 

economic success follows. 

The language of S. 248 would simply, and narrowly, clarify that tribal government 

employers should be treated exactly as state and local government employers are 

treated in the National Labor Relations Act of 1934 (‘‘NLRA’’). No more. No less. 

S. 248 would return understandings of the federal law on tribal labor sovereignty 

to the position held by everyone until 2004. All S. 248 would do is restore the status 

quo of 2004, a status quo that held steady for the preceding seven decades. 

The NLRA, 29 U.S.C. § 151 et seq., is the primary law governing relations between 

unions and employers. It guarantees the right of employees to organize, or not to 

organize, a union and to bargain collectively with their employers. Its provisions 

apply to all ‘‘employers,’’ except that Section 2(2) of the Act (29 U.S.C. § 152) explicitly says that the term ‘‘employer’’ does not include the United States government 

or any state government or political subdivision thereof. 1 And therein is the issue— 

for the first 70 years of its existence, everyone interpreted the NLRA definition of 

employer to exclude tribal government employers operating on tribal lands—along 

with the exclusion of all other governmental employers. 

The NLRA statute did not change in 2004. The only thing that changed in 2004 

was the interpretation of that statute by the National Labor Relations Board 

(NLRB). The NLRB decided to change its position and declare that because tribal 

governments were not expressly listed among the excluded governmental employers 

in the statute, the NLRB in some situations would treat tribal governments as private employers subject to all the requirements of the NLRA. 

Shakopee and other tribal governments were offended by the NLRB’s analytical 

framework in its 2004 San Manuel decision—that the NLRA should be applied to 

tribal government employers when those tribes are engaged in ‘‘commercial’’ activities which the NLRB decides are ‘‘commercial.’’ The NLRB has never applied this 

same analysis to the many similar ‘‘commercial’’ activities engaged in by federal, 

state and local government employers. If political considerations would never permit 

the NLRB to impose this interpretation on other governmental employers—how can 

this analysis be fairly imposed upon tribal government employers? 

My Tribe, and many tribal governments, was alarmed that the NLRB thought it 

could roll back tribal sovereignty in this way, on its own, without any change in 

the statute by Congress. Ever since the NLRB decision in 2004, we have been asking for the technical relief embodied in S. 248, and are indebted to you, Mr. Chairman, and especially, to Senator Jerry Moran, for joining us in our efforts to fix this 

grievous error by the NLRB. 

Background on the Shakopee Mdewakanton Sioux Community 

Our Tribe has remained on our Reservation lands that were once part of the millions of acres upon which our ancestors lived before they were forced to relinquish 

them under a series of disastrous land treaties. What remains of our lands are approximately 1,844 acres held in trust and 2,279 acres in non-trust status for our 

Tribe, about half an hour from the outskirts of Minneapolis. 

In recent decades, economic development has surrounded our Reservation. At the 

same time, our Tribe has played a significant role in the economic revitalization of 

our region. For years, our tribal government has been the largest employer in Scott 

County. 

Our tribal government provides a full range of governmental services to our Community residents. We administer social services for children and families, mental 

health and chemical dependency counseling, employee assistance, emergency assistance, public works, roads, water and sewer systems, health programs and a dental 

clinic, vehicle fleet and physical plant maintenance, membership enrollment, education assistance, regulatory commissions, economic planning and development, enterprise management and operations, cultural programs, an active judicial system, 

and many other governmental services. Our tribal government builds all Reservation infrastructure, including roads, water, and sewer systems, subdivision utilities, 

35 

and tribal government facilities. About a dozen Reservation businesses are now 

owned by individual tribal members, including a smoke shop, gift shop, landscaping 

and excavating, construction services, and photography services. 

Tribally-owned and controlled enterprises are an important source of governmental revenue for the Shakopee Tribe. Unlike state and local governments, we are 

unable to derive any governmental revenue from real estate taxes or sales taxes or 

income taxes. But like state and local governments, we are able to derive governmental revenue from the operation of governmental enterprises. For us, these include two casinos, a recreational vehicle campground, a hotel, events centers, a fitness and recreation facility, a children’s entertainment and daycare facility, a waste 

treatment plant, a golf course, an organic and natural foods store, an organic farm, 

and convenience stores and car washes. 

As the owner and operator of the largest casino hotel resort in Minnesota, 

Shakopee Mdewakanton Sioux Community provides an attractive workplace for our 

workforce. Our tribal government employees earn some of the most competitive salaries in our regional market. And our full-time and part-time employees receive wellregarded benefits and amenities, including— 

• no-charge assessment and treatment of non-complicated illness and injury at a 

workplace health clinic for employees and their dependents on the medical plan; 

• reduced co-pay for pharmaceuticals at a workplace pharmacy for employees and 

their dependents on the medical plan; 

• no-charge diagnostic and preventive dental services, and reduced rates on basic 

and some major restorative services at a workplace dental clinic for employees 

on the dental plan; 

• routine eye exams and discounted eyewear available at a workplace vision clinic 

for employees and their dependents on the medical plan; 

• no-charge physical therapy and chiropractor evaluations and treatments available at a workplace ‘‘Wellness Center’’ for employees and their dependents on 

the medical plan; 

• full-time employees may be reimbursed up to $2,000 for tuition after one year 

of service; 

• cost-share (50 percent) of child care services at a workplace ‘‘Playworks’’ up to 

maximum annual benefit of $5,000 for employees; 

• retirement contribution (50 percent match up to 5 percent of annual pay); 

• sharply discounted membership fees at workplace ‘‘Dakotah! Sport and Fitness’’ 

facilities; and 

• a broad array of other benefits, from financial services and employee assistance 

programs to employee discounts and reduced rate medical insurance plans. 

The Shakopee tribal government employs more than 4,000 people, most of whom 

are in full-time positions. For each of the past five years, the Shakopee Tribe has 

been included among the ‘‘top work places’’ in Minnesota as part of the Minneapolis 

Star Tribune survey. We are very proud to be able to say that the Shakopee tribal 

government was the largest of the 155 employers on the 2014 list of ‘‘top work 

places’’ in Minnesota. 

Our Tribal Government Enterprises Are Similar to State Government 

Enterprises 

For the past four decades, federal policy makers in the White House and in the 

Congress have pursued a broadly bi-partisan policy of encouraging tribal government self-determination and self-sufficiency through the development, by the tribes 

themselves, of tribal economic enterprises. 

At least three separate rationales have driven this federal-Indian policy. First, 

there is a desire to reverse the process that has led to considerable land loss and 

resource deprivation of tribal resources over the past centuries. Second, there is an 

effort to enable Indian tribes to help rid themselves of the plague of poverty and 

under-development in Indian communities that has forced Native Americans, as a 

group, to the bottom of every known measure of economic and social well-being in 

America. And third, there is support for an approach that respects the sovereign authority of governments to set their own course and resolve their own problems in 

their own way. For the Shakopee Mdewakanton Sioux Community that has meant 

we have actively pursued the development of appropriate economic development, including gaming, in order to boost the governmental revenues of our Tribe. 

As do state and local governments throughout America, the Shakopee tribal government operates a hotel and convention center, event arenas, fitness center, child 

care center, golf course, emergency response and fire-fighting station, fuel stops, orVerDate Mar 15 2010 13:27 Nov 04, 2015 Jkt 097405 PO 00000 Frm 00039 Fmt 6633 Sfmt 6621 S:\DOCS\97405.TXT JACK
36 

2 In point of fact, the federal Indian Gaming Regulatory Act of 1988 requires that our gaming 

revenues must be applied to statutorily-prescribed governmental purposes. 

ganic and natural food store and farms, recreational vehicle park, and a waste 

water treatment facility among many other activities. 

In all fairness, my Tribe’s economic enterprises cannot be distinguished from 

those owned and controlled by state and local governments throughout America. 

State and local government employees typically are engaged in a wide variety of 

commercial-like activities. State governments operate lotteries, liquor stores, resort 

spas and recreational parks, waste water treatment facilities, port authorities, 

transportation systems, event and entertainment venues, and convention centers, 

among many other enterprises that in competition with similar enterprises in the 

private sector. What makes all of these enterprises ‘‘governmental’’ is that they are 

under the exclusive ownership and control of state and local governments, and the 

revenues they raise are dedicated exclusively to governmental purposes. Our tribal 

government enterprises are no different. 2

Why S. 248 and Why Now? 

My Tribe urgently needs the statutory language of the NLRA to be clarified so 

that there can be no doubt that it is treated in the same way as all other governmental employers are treated under the NLRA. 

The NRLB respects the sovereignty of all other governmental employers that the 

NLRA statute protects. The NLRA has always protected the sovereign right of governmental employers to define their own collective bargaining rights and to avoid 

work stoppages and strikes in their governmental workforces. In all fairness, the 

NLRB should likewise respect tribal government sovereignty. The NLRB did so 

until 2004. But given the NLRB’s new interpretation in 2004, and the deference 

given the NLRB by the courts, Congress must now step in and clarify, with enactment of S. 248, that tribal government sovereignty is to be protected no less than 

state government sovereignty is protected in the NLRA. Nothing short of a technical 

amendment like S. 248 will work. 

None of the facts changed in 2004. There were no changed circumstances that 

would compel such a dramatic curtailment of tribal sovereignty. No ‘‘problems’’ 

arose in 2004 that had to be addressed by mandating NLRA’s collective bargaining. 

Indian gaming began on our Reservation in the early 1980s and enjoyed steady 

growth through the late 1980s and throughout the 1990s. Throughout much of Indian Country, much of the fastest economic growth occurred in the 1990s, including 

enterprise development ancillary to gaming. There was no ‘‘tipping point’’ in economic growth on Indian reservations that occurred in the years immediately preceding 2004. 

Likewise the composition of our tribal government workforce, while it has grown 

in size, has always been predominately non-Indian or non-tribal. Just as state governments employ many workers who are citizens of other states, tribes like 

Shakopee have always employed many workers who are not members of the tribe. 

Similarities to state government employers abound: one need only look at the Maryland, Virginia and D.C. government workforces, or New York, New Jersey and Connecticut government workforces. 

In short, opponents of S. 248 cannot point to anything unique that happened in 

the years immediately preceding 2004 to justify the NLRB’s change in how it interpreted the statute. 

It is Irrational and Discriminatory to Impose the NLRA on Tribal 

Government Employers But Not State Government Employers 

The basic premise of sovereignty, for both state and tribal governments, is that 

each government sets its own policies in its own sphere of influence. Of course, that 

sovereignty is limited under the U.S. Constitution. What Shakopee and other tribes 

are seeking is to be treated the same as state governmental employers are treated 

under federal labor law, no more and no less. 

Shakopee will insist that those who question the propriety of S. 248 be made to 

answer the following question: how do you justify treating tribal government employers differently than you treat state government employers? Surely you do not mean 

to imply that tribal governments cannot be trusted as much as state governments 

can be trusted to deal with their governmental employees in a fair way? 

Shakopee, like other tribal government employers, understands that it is in our 

self-interest to treat our employees fairly. After all, if our employees are not happy, 

our customers may not receive the high quality entertainment product we want for 

them. Maintaining above average or better workplace conditions than the marketplace surrounding our Reservation means tribal employers like Shakopee are better 

37 

3 As this Committee knows, half the 50 states have enacted right-to-work laws, which protect 

workers in so-called ‘‘open shops’’ who decline to join a union and pay union fees. 

able to recruit and retain more productive workers. At Shakopee, we take great 

pride in the fact that many members of our tribal government workforce have 

worked for the Tribe for decades. Indeed, recently we noted the following worker anniversaries with a special honoring celebration that was widely appreciated to great 

acclaim (2 employees with 30 years, 6 employees with 25 years, 82 employees with 

20 years, 126 employees with 15 years, 103 employees with 10 years). 

Shakopee Asks that You Categorically Reject the Partisan Narratives on 

S. 248 

The Shakopee Mdewakanton Sioux Community wishes to be very, very clear 

about this to both our allies and our opponents on S. 248—S. 248 is not about labor 

policy. 

S. 248 is about tribal sovereignty. Period. 

We insist that supporters and opponents of S. 248 not turn this into a partisan 

political football they use for partisan political purposes. 

Tribes need S. 248 to be enacted in order to restore tribal labor sovereignty as 

a matter of basic fair public policy. 

Allies of Indian Country and tribal sovereignty, whether Republicans or Democrats, should not turn this issue into a partisan fight. Instead, we ask that our 

friends, both Republicans and Democrats, come together in a bi-partisan effort to 

enact S. 248 and restore tribal labor sovereignty to the parity position tribal government employers had as recently as 2004, and for the preceding seven decades under 

federal law. 

Indeed, partisans on both sides of S. 248 have misconstrued the scope and meaning of S. 248. S. 248 addresses only an employer who is a federally-recognized tribal 

government operating on the Indian lands of that tribal government. Its provisions 

do not extend to other employers on those Indian lands, including Indian individuals, non-Indian individuals, and businesses not owned and operated by the tribal 

government. As in the 70 years prior to 2004, those employers would remain subject 

to the NLRA under S. 248. 

While Shakopee would prefer to have S. 248 written much more expansively than 

it is, so that it would reflect Shakopee’s understanding of its own territorial sovereignty and giving preemptive effect to Shakopee’s tribal labor law as to all employers within the boundaries of its Reservation, Shakopee recognizes such an expansion of the scope of S. 248 might raise much more controversial issues akin to 

those that accompany the national debates over ‘‘right-to-work’’ laws. 3 So Shakopee 

has decided to give its full-throated support to the much more narrow scope embodied in S. 248—to restore tribal government employers to the position we had in 

2004, treating us the same as the law treats state government employers. 

Partisanship has no place on matters of federal-Indian issues involving tribal sovereignty. The members of this Committee have a remarkable and noteworthy history of straddling partisan divides when it comes to the defense of tribal sovereignty 

and the unique federal trust and treaty relationships with tribal governments. Each 

year budget hawks among the Committee’s Republicans strike an agreement with 

Democrats on the Committee’s federal program budget request recommendation letter. The same could be said of the budget hawks regarding the mandatory spending 

authority provisions on the Special Diabetes Programs for Indians measure that was 

re-enacted in recent weeks. In the reauthorization of the Violence Against Women 

Act (VAWA) last year, Republicans swallowed hard and accepted other unrelated 

provisions they opposed, and Democrats supported, in order to secure enactment of 

VAWA provisions that restored tribal territorial authority in law enforcement over 

violence against women. On the sovereignty principles that underlie tribal gaming 

authority, Republicans and Democrats on this Committee have, year after year, protected the Indian Gaming Regulatory Act against efforts mounted by powerful state 

government and private sector interests to amend and curtail the Act. And we 

should never forget that it was a bi-partisan group of members from this Committee 

who stopped an effort to impose a crippling, Unrelated Business Income Tax on tribal government revenue nearly two decades ago. 

While tribes and tribal sovereignty sometimes stretch the political partisan philosophies of both the Democratic and Republican parties, Shakopee and other tribes 

are grateful that the allies of tribal sovereignty on Capitol Hill have found a way 

to embrace, on a bi-partisan basis, issues of importance to Indian Country like tribal 

labor sovereignty which may otherwise be misunderstood to be divisive. These Republican and Democratic leaders have earned our praise and support for engaging, 

like yoga masters, in bi-partisan stretching that results in a good and just result 

38 

for Indian Country and tribal sovereignty. This is what we ask of each member of 

this Committee, that you give S. 248 your undivided and unequivocal bi-partisan 

support because it would treat tribes like states and restore the tribal labor sovereignty that existed up until 2004. 

Tribal Sovereignty Is the Issue 

By definition, sovereignty means different decisions may be made by different 

tribes. Just as with the 50 states, each tribe may exercise its sovereign authority 

over labor policies in a manner different from another tribe. Why should tribes be 

any given less latitude in this regard than is given Minnesota, or North Dakota, or 

New Mexico, or Kansas, or Wyoming? 

Fundamentally, S. 248 poses the question—in what ways are tribal government 

employers different from state government employers so as to justify treating tribal 

government employers differently? And should the NLRB be permitted to precipitously break decades of precedence and changes the rules without a change in the 

statute? Especially when it comes to matters directly affecting tribal government 

sovereignty? 

It is Imperative That a Clean Bill Be Enacted Free of All Conditions 

Sovereignty at its core is a question of who decides? Whose governmental authority is recognized and respected? Shakopee asks, for its part, that Congress promptly 

enact S. 248 so that this question restores the status quo of 2004. Any special, preconditions applied to tribal governments must be rejected as unbearably paternalistic and discriminatory. What possible other rationale can be given for treating a 

tribal government employer different than the law treats a state governmental employer? Under S. 248 as introduced, would tribal government workers have any less 

protection than do state government workers under the NLRA today? The answer 

is no. And the next question is obvious—by what right would Congress burden tribal 

government employers with conditions precedent that they do not equally place 

upon state government employers? 

Tribal sovereignty is premised on equity and parity. In 2009, the late Senator 

Daniel K. Inouye, a staunch defender of tribal sovereignty, supported simple and 

unconditional bill language like that in S. 248 because he said it would restore tribal sovereignty to federal labor law where it was for almost 70 years and treat tribal 

government employers like state government employers are treated. 

All Shakopee asks is that S. 248 be maintained without conditions, a clean restoration of the legal position it and other tribal government employers had in 2004. 

We can accept nothing less. And we ask that this corrective legislation be enacted 

promptly this year with overwhelming bi-partisan support. 

Mr. Chairman, thank you for the opportunity to present this testimony in support 

of prompt enactment of S. 248, the Tribal Labor Sovereignty Act of 2015. 

Attachments: 

39 


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The CHAIRMAN. Thank you very much, Mr. Anderson. 

Mr. Guest. 

STATEMENT OF RICHARD A. GUEST, SENIOR STAFF 

ATTORNEY, NATIVE AMERICAN RIGHTS FUND 

Mr. GUEST. Thank you, Mr. Chairman, distinguished members of 

the Committee. The Native American Rights Fund is honored to 

provide this testimony, the purpose of which is to demonstrate that 

in furtherance of Congress’s longstanding policies on Indian self-determination, tribal self-governance, tribal economic self-sufficiency, 

it is time for Congress to provide parity for tribal governments 

under the National Labor Relations Act. 

In this context, parity encompasses the quality of being treated 

equally under the law alongside Federal and State governments. 

Tribal governments are entitled to the freedom to choose for themVerDate Mar 15 2010 13:27 Nov 04, 2015 Jkt 097405 PO 00000 Frm 00046 Fmt 6633 Sfmt 6601 S:\DOCS\97405.TXT JACK

429b10.eps
43 

selves the appropriate time, place, and manner for regulating union 

activity on Indian lands and collective bargaining for its employees. 

As you all are aware, the NLRA was enacted in 1935 to govern 

labor relations in the private sector, excluding Federal and State 

governments from the definition of employer. Therefore, workers in 

the public sector, employees of the Federal and State governments, 

were and are subject to the labor relations policies of their respective employers. 

In terms of parity with the United States, it wasn’t until 1978 

that Congress passed the Federal Labor Relations Act to regulate 

labor relations with its workers. To meet the special requirements 

and needs of the Federal Government, Congress excludes members 

of the military, supervisory and management personnel, and all 

employees of certain Federal agencies, including the FBI, the CIA, 

and the U.S. Secret Service. 

Although patterned after the NLRA, the FLRA limits collective 

bargaining only to personnel practices, with no right of employees 

to negotiate their wages, no right to negotiate their hours, employee benefits, or classifications of their jobs. The FLRA also limits the right of Federal workers to engage in any concerted action 

like workplace strikes. Under the FLRA, there is no right to strike 

for Federal workers, and it specifies that it is an unfair labor practice for labor unions to call or participate in a strike, a work stoppage, or picketing that interferes with the operation of a Federal 

agency. 

Now, in terms of parity with State governments, according to a 

2002 report by the GAO, about 26 States and the District of Columbia had statutorily protected collective bargaining rights for its 

employees. Another 12 States had collective bargaining only for 

specific groups of workers; example, teachers and firefighters. And 

in another 12 States there was no statute regulating labor relations 

with its employees or protecting the rights of its employees to collective bargaining. 

According to this report, most State government workers who are 

entitled to collective bargaining rights under State law are prohibited from striking. Instead, those States provide compulsory, binding interest arbitration, a procedure unavailable under the NLRA. 

In my written testimony I have included the January 2014 report, Regulation of Public Sector Collective Bargaining in the 

States, published by the Center for Economic and Policy Research, 

and I invite you to take a look. And the charts there, although they 

don’t update the 2002 GAO report, really do provide an illustration 

of the differences between the various States, and in the appendix 

it actually goes into much detail about the various labor laws in 

the different states and where their priorities are, where their 

needs are. 

So when we look to regulating labor relations on Indian lands, 

I hope that you, Mr. Chairman, and each member of the Committee 

will recognize that each of the 566 federally-recognized tribes as 

governments must have the opportunity to make their own policy 

judgments regarding labor relations on their reservations based on 

the values and priorities which best serve the needs of their communities. In considering S. 248, the Committee should be mindful 

that the 566 tribes enjoy demographic, cultural, political, and ecoVerDate Mar 15 2010 13:27 Nov 04, 2015 Jkt 097405 PO 00000 Frm 00047 Fmt 6633 Sfmt 6601 S:\DOCS\97405.TXT JACK
44 

nomic diversity, and should not be subject to any one-size-fits-all 

approach. 

In general, there are four areas of concerns for Indian Tribes: 

first, a guaranteed right to strike threatens tribal government revenues and the ability to deliver vital governmental services; two, the 

broad scope of collective bargaining for other working conditions 

will undermine Federal and tribal policies requiring Indian preference in employment; three, preemption is the power to exclude, 

which is the fundamental power of tribal government that would 

be diminished, the ability of tribes to place conditions on entry, 

condition presence, or reservation conduct of outsiders; and, four, 

the potential for substantial outside interference with tribal politics 

and elections. 

In my written testimony I provide a summary of the Navajo Preference in Employment Act of 1985, and it goes into detail about 

how Navajo reached various policy decisions based on their community needs. I also provide much detail about the experience, what 

I call the experiment, in California with the tribal labor relations 

ordinances that Chairman Welch discussed, and the differences 

there and how that is now working. 

The final point I want to make, Mr. Chairman, is that before its 

decision in San Manuel, the National Labor Relations Board respected Indian Tribes as sovereign governments, drawing a distinction regarding its jurisdiction on whether a tribal business was located on Indian lands or outside the reservation. Today, the NLRB 

draws a distinction between commercial activities versus what it 

deems traditional or governmental activities. 

Under the Indian Gaming Regulatory Act, Congress recognized a 

principal goal of Federal Indian policy was to promote tribal economic development, tribal self-sufficiency, and a strong tribal government. Under IGRA, it declared the purpose was to provide a 

statutory basis for the operation of gaming by Indian Tribes as a 

means of promoting tribal economic development, self-sufficiency, 

and strong tribal governments. Congress said that. And we believe 

Congress meant that tribal gaming is a part of tribal government, 

a means of generating tribal revenues to support tribal programs 

and services. 

In IGRA, Congress said and limited net revenues from any tribal 

gaming are not to be used for purposes other than to fund tribal 

government operations and programs, to provide for the general 

welfare of an Indian Tribe and its members, and to promote tribal 

economic development and to donate to charitable organizations or 

help fund operations of local government agencies. 

Congress determined that tribal gaming is governmental and 

should not be treated as a commercial activity on par with non-Indian casinos, as the NLRB has determined in the San Manuel decision. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Guest follows:] 

45 

PREPARED STATEMENT OF RICHARD A. GUEST, SENIOR STAFF ATTORNEY, NATIVE

AMERICAN RIGHTS FUND

I. Inroduction 

Chairman Barrasso and Distinguished Members of the Committee: The Native 

American Rights Fund (NARF) is a national, non-profit legal organization dedicated 

to securing justice on behalf of Native American tribes, organizations, and individuals. Since 1970, NARF has undertaken the most important and pressing issues facing Native Americans in courtrooms across the country and here within the halls 

of Congress. 

We are honored to be invited to provide testimony to the Committee regarding 

S. 248, the ‘‘Tribal Labor Sovereignty Act of 2015’’—a bill to clarify the rights of 

Indians and Indian tribes on Indian lands under the National Labor Relations Act 

(NLRA). The purpose of our testimony is to demonstrate that, in furtherance of its 

longstanding policies of Indian self-determination, tribal self-governance and tribal 

economic self-sufficiency, it 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 and State governments. Tribal governments are entitled to the freedom to choose the appropriate time, place and manner for regulating union activity on Indian lands and collective bargaining for its 

employees. 

II. Parity with the Federal and State Governments 

The National Labor Relations Act was enacted by Congress in 1935 to govern 

labor relations in the private sector. Under section 2 of the NLRA, the term ‘‘employer’’ is defined 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. . . . ‘‘Therefore, workers in the public sector—employees of the federal and 

state governments—were not afforded the rights and protections of the NLRA. 

Based on sound policy determinations, Congress provided those governments an opportunity to choose how to best regulate union organizing and collective bargaining 

labor relations with their workers given the essential and, oftentimes, sensitive nature of their work. 

A. Parity with the United States 

In 1978, forty-three years after it passed the NLRA, Congress enacted the Federal 

Labor Relations Act (FLRA), 5 U.S.C. § 7101 et seq., regulating labor relations for 

most federal workers. The FLRA specifically aims to ‘‘prescribe certain rights and 

obligations of the employees of the Federal Government and to establish procedures 

which are designed to meet the special requirements and needs ofthe Government.’’ 

5 U.S.C. § 7101(a)(2). Congress determined that the rights of federal workers to organize, bargain collectively, and participate in labor organizations: ‘‘(1) safeguards 

the public interest, (2) contributes to the effective conduct of public business; and 

(3) facilitates and encourages the amicable settlement of disputes between employers and employees involving conditions of employment.’’ 5 U.S.C. § 710l(a)(l). 

However, the FLRA does not apply to all federal employers or employees. Coverage extends to individuals employed in an ‘‘agency,’’ 5 U.S.C. § 71 03(a)(2), but 

specifically excludes members of the military, noncitizens who work outside the 

United States, supervisory and management personnel, and various Foreign Service 

officers. 5 U .S.C. § 71 03( a)(2)(B). It also excludes all employees of certain federal 

agencies, including the Federal Bureau of Investigation, the Central Intelligence 

Agency, and the United States Secret Service. 5 U.S.C. § 7103(a)(3). 

Although patterned after the NLRA, based on the Federal government’s unique 

public-service needs, obligations and vulnerabilities, the FLRA mandates certain 

proscriptions and prescriptions not contained in the NLRA. One important example 

is the scope of the authorized collective bargaining process. Under the NLRA, private-sector employees are entitled to collectively bargain with respect to wages, 

hours, benefits, and other working conditions. Under the FLRA, federal employees 

can only collectively bargain with respect to personnel practices. Under the FLRA, 

there is no right to negotiate working conditions such as wages, hours, employee 

benefits, and classifications of jobs. 

A second important diffemce is the right of private sector employees to engage in 

‘‘concerted action,’’ like workplace strikes. Under the FLRA, there is no right to 

strike for federal workers. In fact, the FLRA specifically excludes any person who 

participates in a workplace strike from the definition of ‘‘employee,’’ 5 U.S.C. § 71 

03(a)(2)(B)(v), and it specifies that it is an unfair labor practice for labor unions to 

46 

1 Alaska, California, Connecticut, Delaware, Florida, Hawaii, Illinois, Iowa, Maine, Massachusetts, Michigan, Minnesota, Montana, Nebraska, New Hampshire, New Jersey, New York, Ohio, 

Oregon, Pennsylvania, Rhode Island, South Dakota, Vermont, Washington, and Wisconsin. As 

with the NLRA, the state laws that provide collective bargaining rights to public employees 

often exclude various groups of employees (e.g., many states expressly exclude management officials) from coverage. GAO 02–835, at note 12. 2Georgia, Indiana, Idaho, Kansas, Kentucky, Maryland, Missouri, Nevada, North Dakota, 

Oklahoma, Tennessee, and Wyoming. Three of these states, Indiana, Kentucky and Missouri, 

extend collective bargaining rights to certain public employees through an executive order from 

the governor. GAO 02–835, at note 14. 3 Alabama, Arizona, Arkansas, Colorado, Louisiana, Mississippi, New Mexico, North Carolina, 

South Carolina, Texas, Virginia, and West Virginia. Texas prohibits collective bargaining for 

most groups of public employees, but firefighters and police may bargain in jurisdictions with 

approval from a majority of voters. GAO 02–835, at note 13. 

* The information referred to has been retained in the Committee files. 

4The 25 states that have right to work laws are: Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana,Iowa, Kansas, Louisiana, Michigan, Mississippi, Nebraska, Nevada, North 

Carolina, North Dakota, Oklahoma,South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Wisconsin, and Wyoming. 5The NLRB did exercise jurisdiction over non-Indian enterprises operating. For example, in 

Simplot Fertilizer Co. (1952), the NLRB exercised jurisdiction over a union’s attempt to organize 

a non-Indian phosphate mining company leasing Shoshone-Bannock tribal land in Idaho. Also 

see Texas-Zinc Minerals Corp. (1960), and Devils Lake Sioux Mfg. Corp. (1979). 

call or participate in a strike, a work stoppage, or picketing that interferes with the 

operation of a federal agency. 5 U.S.C. § 7116(b)(7)(A). 

B. Parity with the States 

According to a 2002 Report by the Government Accountability Office (GAO), about 

26 states 1 and the District of Colombia had statutorily-protected collective bargaining rights for essentially all State and local government workers; 12 states 2 had 

collective bargaining only for specific groups ofworkers (e.g. teachers, firefighters); 

and 12 states 3 did not have laws providing rights to collective bargaining for any 

government worker. ‘‘Collective Bargaining Rights,’’ GA0–02–835, p. 8–9 (September 

2002). According to the Report, most State government workers who are entitled to 

collective bargaining rights under state law are prohibited from striking. Instead, 

those States provide compulsory binding interest arbitration (a procedure unavailable under the NLRA). Id. at p. 10. 

In a January 2014 Report, Regulation of Public Sector Collective Bargaining in 

the States, the Center for Economic and Policy Research (CEPR) reviewed the rights 

and limitations on public-sector bargaining in the 50 states and the District of Colombia in order to answer three key questions- whether workers have the right to 

bargain collectively, whether unions can bargain over wages, and whether workers 

have the right to strike. A copy of the Report is attached to this testimony (minus 

the Appendix). * The CEPR did not update the numbers provided by GAO, but it 

did provide helpful charts to better illustrate the types of policy choices State governments are making in regulating the rights of government workers: Chart 1, ‘‘Legality of Collective Bargaining for Select Public-Sector Workers’’ lists the states 

which regulate collective bargaining for specific workers is legal, illegal, or simply 

no ; Chart 2, ‘‘Legality of Collective Wage Negotiation for Select Public-Sector Workers’’; and Chart 3, ‘‘Legality of Striking for Select Public-Sector Workers.’’ As you 

review each chart, you can see that certain states make it illegal, or do not protect 

the rights of certain government workers, to engage in collective bargaining or wage 

negotiations, with most states making it illegal for these government workers to 

strike. 

And of final note, according to the National Right to Work Legal Defense Foundation http://www.nrtw.org/, 25 States have enacted right to work laws and 25 

States do not have right to work laws. 4 Therefore, half of the State legislatures 

have determined that—as a matter of State labor relations policy—a worker in a 

Right to Work State not only has the right to refrain from becoming a union member, but cannot be required to pay anything to the union unless the worker chooses 

to join the union. 

III. Regulating Labor Relations on Indian Lands 

Before its 2004 decision in San Manuel Indian Bingo and Casino, the National 

Labor Relations Board did not exercise jurisdiction over tribal-owned businesses located on Indian lands. In Fort Apache Timber Co. (1976), and Southern Indian 

Health Council (1988), the NLRB held that tribal-owned businesses operating on 

tribal lands were exempt from federal labor law jurisdiction as ‘‘governmental entities.’’ 5 However, in Sac & Fox Indus. (1992), the NLRB held that the provisions of 

the NLRA would apply to a tribal-owned business operating outside the reservation. 

47 

Thus, prior to 2004, the NLRB drew a distinction regarding its jurisdiction based 

on whether the tribal business was located on Indian lands (no jurisdiction) versus 

off-reservation (jurisdiction). Today, in considering S. 248, the Committee should be 

mindful that the 566 federally-recognized Indian tribes enjoy demographic, cultural, 

political and economic diversity, and should not be subject to any one-size fits all 

approach. 

A. The Navajo Nation Labor Code 

Enacted by resolution in 1985, the Navajo Preference in Employment Act 

(‘‘NPEA’’) serves as the Navajo Nation’s general labor code. 15 N.N.C. Sec. 601 et 

seq; Resolution No. CAU–63- 85 in 1985, and amended through Resolution No. C0– 

78–90 in 1990. Incorporated into the NPEA is a clause which enables unionization 

on the Navajo Nation. 15 N.N.C. Sec. 606 Union and Employment Agency Activities; 

Rights of Navajo Workers 

A. Subject to lawful provisions of applicable collective bargaining agreements, 

the basic rights of Navajo workers to organize, bargain collectively, strike, 

and peaceably picket to secure their legal rights shall not be abridged in any 

way by any person. The right to strike and picket does not apply to employees of the Navajo Nation, its agencies, or enterprises. 

B. It shall be unlawful for any labor organization, employer or employment 

agency to take any action, including action by contract, which directly or indirectly causes or attempts to cause the adoption or use of any employment 

practice, policy or decision which violates the Act. 

It was the legislative intent of the council in 1985 to incorporate the most basic 

of those privileges of the National Labor Relations Act (NLRA) to tribal employees, 

whom the council acknowledged were otherwise exempt from the NLRA. The rights 

of Navajo Nation employees to collectively bargain were debated and CAU–63–85 

ultimately passed. 14 NTC 8/1/1985. 

The 1990 Navajo Nation council debated whether to include in the amendments 

‘‘closed shop’’ language, which would permit labor organizations to collect union 

dues from non-members. This sparked much debate in the council, which ultimately 

decided 34 to 33 to ensure the Navajo Nation is a ‘‘right to work’’ jurisdiction, and 

amended the Labor Investigative Task Force’s proposed amendments to strike the 

‘‘closed shop’’ language otherwise amending 15 N.N.C. Sec. 606. 28 NNC 10/25/90. 

The NPEA confers upon the Human Services Committee (HSC) of the legislative 

council to ‘‘promulgate rules and regulations necessary for the enforcement and implementation of the provisions ofthis Act.’’ 15 N.N.C. Sec. 616. HSC has availed 

themselves with this authority in the otherwise sparsely worded enabling legislation 

through Resolution No. HSCJY–63–94 Adopting the Navajo Preference in Employment Act Regulations to Provide Rules and Enforcement Procedures to Permit Collective Bargaining for Employees of the Navajo Nation, Its Agencies or Enterprises. 

These regulations provide additional guidance as to, for example, management’s 

role of neutrality, prohibited employer practices, how to become an exclusive bargaining agent, the process for certification, an impasse resolution in the event of 

failed bargaining, and the process for decertification of a bargaining agent. 

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. 

B. California Tribal Labor Relations Ordinances 

In negotiating tribal-state gaming compacts in 1999, Indian tribes in California 

agreed to adopt a process for addressing union organizing and collective bargaining 

rights of tribal gaming employees, or the compact is null and void. From these negotiations, a Model Tribal Labor Relations Ordinance (‘‘Ordinance’’) was crafted, and 

tribes with 250 or more casino-related employees were required to adopt the Ordinance. In its 2007 Report, California Tribal State Gambling Compacts 1999–2006, 

the California Research Bureau provided the following summary: 

• Under the Model Tribal Labor Relations Ordinance (‘‘Ordinance’’), employees 

have the right to engage in employee organizations, bargain collectively, and 

join in concerted activities for the purpose of collective bargaining. The Ordinance defmes unfair labor practices on the part of a tribe or a union, guarantees 

the right to free speech, and provides for union access to employees for bargaining purposes. (Excluded employees include supervisors, employees of the 

48 

* The information referred to has been retained in the Committee files. 

tribal gaming commission, employees of the security or surveillance departments, cash operations employees or any dealer.) 

Key Issues: Certification of union representation and dispute resolution 

• Upon a showing of interest by 30 percent of the applicable employees, the tribe 

is to provide the union an election eligibility list of employee names and addresses. A secret ballot is to follow. An elections officer chosen by the tribe is 

to verify the authorization cards and conduct the election. If the labor organization receives a majority of votes, the election officer is to certify it as the exclusive collective bargaining representative for the unit of employees. Decisions 

may be appealed to a tribal labor panel. 

• The Ordinance establishes procedures to address an impasse in collective bargaining, including the union’s right to strike outside oflndian lands, and to decertify a certified union. It also creates three levels of binding dispute resolution 

mechanisms, beginning with a tribal forum, followed by an arbitration panel, 

and finally tribal court and federal court. Collective bargaining impasses may 

only proceed to the first level of binding dispute resolution, in which a designated tribal forum makes the decision. 

California Tribal State Gambling Compacts 1996–2006, at p. 33–34 (a copy of the 

Labor Standards section, P. 33–39, of the Report is appended to this testimony). * 

In a presentation to the Intemational Association of Gaming Attomeys in September 

1999, the following observations were provided regarding the Ordinance as a product of compromise between powerful forces, including: 

1. the public policy of providing economic support for Indians from non-tax 

sources through Indian gaming; 

2. the drive by the State of Califomia to reclaim some of the economic benefit 

it had forfeited to Nevada by blocking the expansion of gaming in CalifomiaJ.; 

3. the expectation of employees working at Indian casinos that they will have 

the same rights as employees working at non-Indian enterprises; 

4. the need and desire by many tribes to maintain and expand their gaming 

operations; and 

5. the wish by other interested parties in the gaming business (most importantly, Nevada gaming companies and unions representing their employees) to 

create, at a minimum, a ‘‘level playing field’’ by eliminating the competitive advantage enjoyed as a result of the non-union status of California’s Indian casinos. 

The full written presentation is available at http://cornorate.findlaw.com/litigation-disputes/thecalifornia-tribal-labor-relations-ordinance-overview-and.html. 

The Ordinance provides labor unions at tribal gaming facilities with a number of 

advantages not provided for under the NLRA. Most impmtantly, 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. Since 1999, a number of new tribalstate gaming compacts have been 

negotiated, or renegotiated, some with additional provisions regulating labor, but all 

requiring the adoption of the 1999 Model Tribal Labor Relations Ordinance. 

The examples of the Navajo Nation and the California tribes exemplify the growing list oflndian tribes who are regulating labor relations with their employees. Mr. 

Chairman, we hope that you and each member of the Committee will recognize that 

each of the 566 tribes—as governments—must have the opportunity to make their 

own policy judgments regarding labor relations on their reservations based on the 

values and priorities which best serve the needs of their community. In general, 

there are four areas of concem for Indian tribes: (1) a guaranteed right to strike 

threatens tribal government revenues and the ability to deliver vital services; (2) the 

broad scope of collective bargaining for ‘‘other working conditions’’ will undermine 

federal and tribal policies requiring Indian preference in employment; (3) preemption of the power to exclude which is a fundamental power of tribal government 

diminishes the ability of tribes to ‘‘place conditions on entry, on conditioned presVerDate Mar 15 2010 13:27 Nov 04, 2015 Jkt 097405 PO 00000 Frm 00052 Fmt 6633 Sfmt 6621 S:\DOCS\97405.TXT JACK
49 

ence, or on reservation conduct’’; and (4) the potential for substantial outside interference with tribal politics and elections. 

IV. Conclusion 

In closing Mr. Chairman, we would simply remind you and members of the Committee that under the Indian Gaming Regulatory Act (IGRA), Congress recognized 

‘‘a principal goal of Federal Indian policy is to promote tribal economic development, 

tribal self-sufficiency, and strong tribal government,’’ 25 U.S.C. § 2701 , and declared 

its purpose was ‘‘to provide a statutory basis for the operation of gaming by Indian 

tribes as a means of promoting tribal economic development, self-sufficiency, and 

strong tribal governments.’’ 25 U.S.C. § 2702. 

Congress said that, and we believe Congress meant that tribal gaming is a part 

of tribal government—a means of generating tribal revenues to support tribal programs and services. In 25 U.S.C. § 2710(b)(2)(B), Congress stated ‘‘net revenues from 

any tribal gaming are not to be used for purposes other than—(i) to fund tribal government operations or programs; (ii) to provide for the general welfare of the Indian 

tribe and its members; (iii) to promote tribal economic development; (iv) to donate 

to charitable organizations; or (v) to help fund operations of local government agencies.’’ Congress determined that tribal gaming is a governmental activity of Indian 

tribes—and should not be treated as a commercial activity on par with nonIndian 

casinos as the NLRB has determined in San Manuel Indian Bingo and Casino. 

The CHAIRMAN. Thank you very much, Mr. Guest. 

The order for questioning will be Senator Moran, then Senator 

Franken, then I will conclude. 

Senator Moran. 

Senator MORAN. Mr. Chairman, thank you very much. Let me direct my first questions to Mr. Griffin. 

Mr. Griffin, perhaps a series of questions that you can respond 

to or we can discuss. First of all, from 1935 to 2004, the Board held 

that the NLRA did not apply to tribal employers on tribal lands. 

The question then becomes what is the rationale for making a 

change in that policy in 2004 and ignoring the precedent and then 

holding otherwise. 

In your testimony you mentioned the Board of San Manuel decision and noted the ‘‘increasingly important role’’ that tribal commercial enterprises were by then playing in the national economy. 

And you write, ‘‘the Board found that tribal-owned enterprises were 

‘significant employers of non-Indians in serious competition to nonIndian-owned business.’’’ 

It strikes me, several things about that. One, if the real issue is 

whether the tribes are sovereign or not, then these other factors 

about serious competition or number of non-tribal employees, in my 

view, should be irrelevant. And I would welcome your response to 

that. 

And then another thought about that, it adds additional uncertainty to tribal employers because how will we know what the serious competition definition is? How will we know how many employees it takes before the NLRA would come into force in those circumstances? It seems to me that the issue of sovereignty, either 

the tribes are sovereign or they are not; and there ought not be this 

fuzzy area in trying to determine what kind of nature of the activity, size, and scope of the activity that then determines that. 

Finally, the District of Columbia is not mentioned in the NLRA, 

and NLRB does not exercise jurisdiction over it as an employer. 

U.S. territories are not mentioned in NLRA, and NLRB does not 

exercise jurisdiction over them as employers. And yet Indian Tribes 

are not mentioned in the Act, but the NLRB does exercise jurisdiction. How do you square the differences? Because your testimony 

50 

was Congress didn’t speak; therefore, we believe we have the authority. 

Mr. GRIFFIN. Well, thank you very much for the series of questions, and I will try and be responsive to each one in turn; and if 

I miss one, I am sure you will bring me back to it. 

Senator MORAN. People bring me notepads of questions, so I am 

not trying to trick you. 

Mr. GRIFFIN. No, I didn’t take it in that fashion at all. 

Senator MORAN. It is only that the clock will run. 

Mr. GRIFFIN. I just wanted to keep it all in my head. 

I think you cite to my testimony, which is in fact quotations from 

the Board’s decision in San Manuel, so I am describing in the testimony the basis for that decision that the Board articulated itself 

in the decision. And I would say, really, there were two things 

going on. The first thing, just stepping back for a second, is that 

the Board has been given jurisdiction by Congress to interpret the 

Act, and it is considered to be the expert agency to interpret the 

Act in light of changing industrial circumstances. 

So I do think that the rise of Indian gaming, which is noted, and 

the employment of more non-Indian, non-tribal members, those 

were changing circumstances that are the type of changing circumstances that typically the Board will look to when it reexamines a line of case law. 

The other thing that the Board will typically look to, and which 

is clearly one of the operative factors in the San Manuel decision, 

is the development in the case law otherwise. So it looked to the 

Supreme Court’s Federal Power Commission versus Tuscarora decision, it looked to the development in the Ninth Circuit; and that 

Board determined that the prior law was not the best interpretation of the Act in light of the decisions of the Supreme Court, the 

decisions of the Ninth Circuit, and then reexamining the situation 

in light of the increased presence of tribal enterprises such as casinos. 

So that is the basis for the change, is looking to the doctrine from 

the Supreme Court and the Ninth Circuit with respect to the laws 

of general application applying to tribes, A, that is Tuscarora; and 

then looking to the exceptions that are articulated in the Donovan 

v. Coeur d’Alene case and seeing whether those exceptions apply to 

the casino and determining that they didn’t. 

With respect to the territories, you are correct the territories, you 

are correct the territories are not mentioned in the statute with respect to the definition of employer. Territories actually are mentioned in the statute with respect to another section of the law, 

that is the section 10(a), which allows for the Board to cede jurisdiction to either State or territories where there is a law that is 

substantially identical to the National Labor Relations Act. And as 

you have heard, although there are a number of considerations in 

the laws that have been referred to, they are not substantially 

identical to the National Labor Relations Act. 

I am trying to remember the final question, which was? I am 

sorry. 

Senator MORAN. I think a point that I was attempting to make 

is that not all irrelevant if you reach the conclusion that the tribes 

are sovereign? 

51 

Mr. GRIFFIN. Well, the test takes into account traditional governmental functions and looks at those. That is the first piece of the 

Donovan inquiry. And quoting the decision, it focuses on whether 

or not applying the Act to the casino would touch ‘‘exclusive rights 

of self-government and purely intramural matters,’’ and looks to 

Coeur d’Alene, which describes intramural matters as topics such 

as tribal membership, inheritance rules, and domestic relations. 

And the view is that those are the aspects of sovereignty and that 

the operation of the casino is not, as the Board has described it in 

San Manuel. 

Senator MORAN. My attempt to ask more than one question or 

talk to more than one witness failed, despite my efforts to combine 

all my questions into one. My time has expired, but I hope we have 

a second round so I can ask some other questions of the witnesses. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator Moran. 

Senator Franken. 

Senator FRANKEN. Thank you, Mr. Chairman. 

In this hearing we are trying to discuss the balance between two 

very important things, tribal rights and labor rights. The tribes 

here today disagree with the NLRB decision in San Manuel, but 

there is actually a fair amount of common ground here and I want 

to first focus on points of general agreement. 

Mr. Griffin, you said in your testimony that even under the San 

Manuel decision, the Board still must protect interests in ‘‘core 

tribal sovereignty, the Federal Government’s treaty obligations, 

and Congress’s authority over Indian affairs.’’ Has the Board ever 

declared jurisdiction over what the Board called intramural matters? And what functions would intramural matters which you just 

referred include? 

Mr. GRIFFIN. The Board has not ever taken jurisdiction over 

something that fell within those core intramural matters. And just 

to repeat what I said, those are described in the Coeur d’Alene case 

and quoted in San Manuel as topics such as tribal membership, inheritance rules, and domestic relations. And, in fact, at the same 

time that the Board issued San Manuel, the Board declined jurisdiction, as I mentioned, in the Yukon Kuskokwim case, which involved a clinic that was operated by a tribe that was off the reservation. 

So when the Board decided San Manuel, it said that drawing the 

line on enterprises that are within the reservation was over-inclusive and under-inclusive. So there was an off-the-reservation enterprise that was held the Board did not assert jurisdiction; there was 

an on-the-reservation enterprise that was. 

Senator FRANKEN. As I understand it, whether or not this bill is 

enacted, the National Labor Relations Act would still apply to private businesses on Indian lands and tribal enterprises off of reservations. Is that understanding correct, Mr. Guest? 

Mr. GUEST. It would apply to any commercial ventures of Indian 

Tribes outside of Indian reservations. Again, I would take issue 

with Mr. Griffin’s description. Prior to 2004, and even in the Yukon 

case, in its first iteration before the Board, the Board was seeking 

to exercise jurisdiction over the health care services being provided 

outside the reservation. There are no reservations in Alaska, so it 

52 

was seeking to exercise that jurisdiction even though it was a consortium providing health services. 

It wasn’t until the San Manuel decision and afterwards that the 

Board said, oh, we are going to change our mind and we are not 

going to exercise it even over tribal health care facilities outside 

the reservation. So they have drawn the line differently now. Instead of on reservation versus off reservation, it is commercial 

versus governmental. 

And in the D.C. Circuit’s decision in San Manuel, the way that 

the courts—and this is a challenge that we have for ourselves in 

the Federal courts and why we need Congress to act, is because the 

D.C. Circuit created a continuum of tribal sovereignty, saying, well, 

for these purposes, the further you move out from this core of tribal 

sovereignty, then we can act and the Board can act. 

Senator FRANKEN. Mr. Guest, I have so much time, so I just 

want to pick up. 

Vice Chairman Anderson, I want to talk about labor relations 

and the context of Shakopee. Shakopee is an important employer 

in its area for both Indian and non-Indian workers. Would you say 

that the tribe’s employees are generally happy? 

Mr. ANDERSON. Yes, I would. We have several long-term employees that are 5-year, 10-year, 15-year, and now all the way up to 

30-year employee recognition banquets every year just continue to 

grow, and we are struggling with the 5 and 10-year as they are so 

big; we still want to get to them and we still want to recognize 

them. 

Senator FRANKEN. Has the NLRB ever been involved in a dispute 

between Shakopee and its employees? 

Mr. ANDERSON. No. 

Senator FRANKEN. Would you treat your employees better or 

worse if this bill were enacted? 

Mr. ANDERSON. Well, we say our employees are our best customers. If it wasn’t for them, we wouldn’t have the success that we 

do. So not for better or worse, but there definitely would be a 

change. I don’t know that it would be in either party’s benefit at 

this point. 

Senator FRANKEN. May I have just another one more question? 

Mr. Griffin mentioned in his testimony that other labor laws, the 

Americans with Disabilities Act, the Occupational Safety and 

Health Act, and the Employee Retirement Income Security Act, 

ERISA, have also been extended to cover tribes. 

Mr. Torres, are any of the tribes represented today advocating to 

exempt tribal enterprises from these other labor laws? 

Mr. TORRES. Not that I know of, Senator. 

Senator FRANKEN. Okay. So what is different or special about the 

National Labor Relations Act? From those. 

Mr. TORRES. I am not sure I can answer that. I don’t totally understand what you are asking me. 

Senator FRANKEN. Okay, I am sorry. 

Anyone else care to answer? 

Mr. ANDERSON. I can give a shot at it. You know, the difference 

is stability in the workforce. We have, at minimum, in codes and 

other areas you adopt those minimums for obvious reasons, especially the ADA or building codes and such. Our labor law includes 

53 

due process, and we hire professionals that establish the Employee 

Rights Commission that are modeled after some of the best commissions that are out there. That is what you want to do. That is 

what you want to do to cover all of these types of questions. So that 

is the way I look at it. 

Senator FRANKEN. Thank you. 

Thank you for your indulgence, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator Franken. 

Senator Moran, you have some additional questions? 

Senator MORAN. Thank you, Mr. Chairman, for your consideration. 

Mr. Vice Chairman, let me ask you. You made the pitch, the appeal in your testimony for bipartisanship in consideration on this 

legislation. I wanted to give you the opportunity to explain why you 

think that is important, what you want to accomplish here. What 

would be your suggestion to make certain that we accomplish that? 

And is there anything in this legislation that we need to alter? 

I believe it was you that testified it needed to be passed in its 

current exact form. Is there anything, then, that you think is terribly partisan or that is detrimental to the cause of getting this legislation passed that we need to alter? 

Mr. ANDERSON. Not that I have heard recently, but with the 

work that we have done with our help that is behind me, I am 

hearing that there is partisanship, and I would hope that there 

would be an opportunity for bipartisanship in lieu of how the year 

finished last year and things of that nature. 

But that is more or less how I would approach some of the opponents of the bill. The bill, as written, is a clean fix. Its intent is 

to clarify. Such as an employee needs clear direction, it clarifies 

what we want to accomplish to be recognized as tribal governments. 

Senator MORAN. Let me ask any of the witnesses from the tribes, 

in the effort to take care of your responsibilities as tribal leaders 

to care for tribal members, what is the consequence of the uncertainty that comes from dealing with the NLRA or the NLRB in 

your efforts to care for tribal members? My guess is that you were 

elected by your members to pursue on their behalf. How does dealing with the NLRB affect your ability to accomplish those goals? 

Mr. TORRES. The thing that is happening to the Pueblo of Isleta 

right now, as far as dealing with the NLRB, is very wrong for us 

because we are required to come up with all the documents, every 

dollar that was spent for like two years, and we don’t think that 

that is right. Our employees are protected by our personnel policies, our labor laws, which our labor law was approved by the Department of Interior and we have that in place. 

So at Isleta we feel that we are taking care of our employees. We 

hardly have any grievances at all. They have really good benefit 

packages, they get paid really well, and it was just one employee 

that caused this mess that we are in right now with the NLRB. 

I hope that answers your question, Senator. 

Senator MORAN. It does. Thank you. 

Anyone else? 

Mr. ANDERSON. I would just like to add we haven’t had to deal 

with the NLRB, but it seems to me that the means testing and the 

54 

type of—I am not a lawyer, but what I do read is that you have 

an ever-changing Board that has decided to ask a question that 

isn’t being asked up until somebody decides this might be an issue. 

The purposes of IGRA and all of the things that we provide with 

the money, IGRA determines how you divide that money and how 

you use that gaming dollar. 

This is clearly an intent of a governmental purpose; infrastructure, health, education, welfare. And you satisfy those requirements and you move from there. If a stoppage of that were to occur 

in the populace that we are in, the memorandums of understandings and agreements that we have with the two cities that 

are surrounded by us in the county, some of the services that we 

share with them will get interrupted, at a minimum. The upkeep 

of our infrastructure and so forth would show interruption. 

There is no other way you can interpret this but to say we need 

to continue to interpret the NLRA as it had and intends us recognizing tribal sovereignty. 

Senator MORAN. Let me see if I can say what I think I am hearing, and you can agree or disagree. But what I think the governor 

was indicating is that we don’t intend to diminish the rights of our 

workers or the relationship we have with labor. What we hope to 

do is, instead of using our resources for paperwork, bureaucracy, 

the reports, that we can use those resources as you say, Mr. Vice 

Chairman, to the benefit of our citizens, as we are required to do 

under IGRA. Is that a message that I should hear and is that 

something that you are conveying to me? Or am I putting words 

in someone’s mouth? 

Mr. TORRES. No, that is exactly what I am trying to get across. 

Mr. ANDERSON. Our constitution establishes that we work and 

strive for that infrastructure and our self-sufficiency. It is a requirement of my position, responsibility. To have that usurped by 

a simple process of applying, like I say, a means test of some sort, 

you know, the decision that I read, certainly the courts have left 

out some of that testing, but have decided to accept that decision 

of the Board. 

It doesn’t really say that it could be, it should be this way. All 

it is saying is somebody asked that question and applied a very— 

I don’t know who needs to determine what is traditional for us, but 

certainly a lot of other governmental operations to be applied, you 

apply that to the State or the local governments, that is unheard 

of. That isn’t even asked. You could ask that. Maybe that drives 

another court decision or maybe another application of the jurisdiction of the NLRA in our instrument of those local governments. 

Senator MORAN. In addition to the nature, in my view, this bill 

is about the issue of sovereignty. I assume it is true that tribes 

have different relations, customs, traditions that would be different 

than other employers that, again, sovereignty protects you in the 

ability for you to honor those customs, those traditions, the way of 

doing business. 

Am I missing something here? Is there something unique? I am 

asking you can you tell us if there are things that are unique about 

tribes that need to be honored as you deal with people who work 

on the reservation. Governor? 

55 

Mr. TORRES. I can tell you on behalf of the Pueblos, the Pueblos 

in New Mexico are similar. We have certain days when we have 

ceremonies where we have to give a day off for our employees, tribal and non-tribal employees, and then we have to close the Pueblos 

off. And, of course, all of the employees like that because they get 

a day off. 

A lot of the employees that are tribal members participate in the 

ceremonies, so they have to take off anyway. There are certain 

days throughout the year that we do that, and the county government and even the State, they know these things because sometimes we have to close the State highway for certain periods of 

time that go through either our outskirts of the Pueblo or whatever. So that is how that works in Isleta and a lot of the other 

Pueblos in New Mexico. 

Senator MORAN. Governor, thank you. 

To me, Mr. Chairman, that highlights the importance of sovereignty. A reason for sovereignty is for Native Americans, Indian 

Tribes to make decisions based upon Indian customs, the relationship with the people, plus, it is also what the Constitution allows. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Well, thank you, Senator Moran. Thank you for 

bringing this bill and for asking so many questions. 

I just have a couple of other questions to hopefully wrap things 

up, things that haven’t been covered by those who have asked 

questions. 

Mr. Welch, your written testimony highlights the framework of 

labor relations for the State and the tribes in California. Tribes 

were instrumental and actively involved in developing the framework and then in balancing multiple interests for tribal employees. 

Can you tell me how the National Labor Relations Board engaged 

tribes in either learning about or developing a framework for the 

employee-employer relations? How should the NLRB also be involved in developing this sort of a framework? How did they do it 

and what should it have been? 

Mr. WELCH. That is kind of easy on the first one. They did not 

engage us at all. They did not come to us and ask us what your 

customs and traditions are, are you a sovereign nation, or anything 

to that sort. So basically they said here is our ruling; deal with it. 

So what they should do is respect us as our own government, our 

own sovereign nation. California is unique because I think there 

are 107 federally-recognized tribes in California, and in San Diego 

County there are 17 reservations. 

We don’t even tell the other tribes how to run it. If they do something that we don’t think is right, we kind of like say, well, they 

have the right to govern themselves; and that is what the NLRB 

should do. We have the right to govern ourselves, and we protect 

our team members as much as we can. 

And we do have a union. So, like I said, 3 percent of our workforce is unionized, but we take very good care of them. When the 

non-union employees get a bonus, they get a bonus. It would be 

nice if they could learn from tribes what is right and what is 

wrong. 

The CHAIRMAN. Thank you. 

56 

Mr. Guest, as you are well aware, the 2004 decision against the 

San Manuel Band overturned many years of precedence that had 

given parity to Indian Tribes under the National Labor Relations 

Act as similarly given to State governments. Given this abrupt 

turn of events, what protections do Indian Tribes have absent this 

legislation? What would prevent additional tribal sovereignty from 

being lost? 

Mr. GUEST. Well, I think that the challenge for tribes continues 

to be in the Federal courts, and the issue of sovereignty, as I was 

saying in my remarks to Senator Franken in response. The D.C. 

Circuit went even further with respect to describing tribal sovereignty on this continuum. Without this legislation, tribes are 

going to continue to be faced, although there may not be union organizing activity, and again, in response to an earlier question, the 

difference here between the NLRA and other Federal labor laws 

and employment laws is the fact that under the NLRA outside 

third-parties can come onto the reservation without permission 

from the tribe, can be there. Any attempt to remove them would 

be considered an unfair labor practice, actionable under the NLRA. 

So the ability of tribes to exercise their authority as governments 

is wholly diminished. They are not able to exclude. If an employee 

is dismissed for certain reasons and the tribe wants to exclude 

them for other reasons, such as drug charges, again, it comes under 

the purview of the NLRA because he is a former employee bringing 

an unfair labor practice against his employer, the tribe. 

So there are all types of areas. The licensing by tribes to have 

non-Indian businesses coming onto the reservation, again, under 

the NLRA called into question. So there are all kinds of aspects for 

sovereignty to be diminished. It is just a matter of time as we see 

more and more organizing. 

The other place that I would just mention very quickly, Mr. 

Chairman, is the fact that in one of the pieces of litigation, Mr. 

Griffin mentioned the tribe, the Little River Band, the union 

brought the action simply because the tribe had enacted a labor ordinance. Back in 2005, it had enacted its own labor ordinance to 

govern union organizing. And the union brought the action, and the 

NLRB hid behind the fact that it was a union bringing the action 

and not the NLRB itself bringing it as an unfair labor practice. So 

the very ability of tribes to enact laws is now being called into 

question. 

The CHAIRMAN. Thank you. 

Mr. Anderson, one final question. According to the Bureau of 

Labor Statistics 2014, your home State of Minnesota union membership a little above 14 percent, higher than the national average. 

But as I understand, there are no unions at the tribally-run businesses in your community. Is there a reason there aren’t any 

unions on the tribe’s reservation? And how does the tribe handle 

employee concerns or complaints? 

Mr. ANDERSON. Well, at Shakopee, like the 86 percent of the 

workforce that does not include unions, we would look at that as, 

you know, we want to be able to be as fair as possible in the application of the NLRA, so I think any State-run business would think 

the same way. And it is fair to say that we don’t have any unions 

in our business, but with salaries and benefits that out-compete 

57 

others in the region, our workforce is pretty happy. We mean to do 

that. 

There was an all-time low in unemployment several years ago 

and it made it hard to find good workers, and we went out and established a new minimum rate out there. Burger King, perhaps $8 

to $10 an hour. Well, we went to $9 to $11 an hour. And our benefit package includes a full complementary of holidays and so forth 

that we want that employee. 

So we look after them with the benefits and other salaries that 

out-compete our competition. We have a long-established employee 

rights commission that is modeled after some of the best. We have 

our human resources department hired for that specific purpose, 

for the purpose of human resource management of our employees, 

and they bring to the table the best of a lot of these plans, and we 

have a hearing examiner that provides full due process. So we have 

not used that probably to the full extent of how it is written. 

The CHAIRMAN. Thank you. 

I appreciate all the testimony from each and every one of you 

today. Thank you for being here. 

Senator Moran, thank you so very much for bringing this very 

important matter to the attention of the Committee and to the Senate. 

The hearing record will be open for two weeks, if you have additional comments you would like to submit. 

I know Senator Heitkamp had some questions that she wasn’t 

able to orally bring to us today because of a conflict in her schedule, but I know she would like to submit some in writing, so we 

would ask that you respond to those questions in writing in a timely manner. 

Thank you so very much for being here today and, with that, this 

hearing is adjourned. 

[Whereupon, at 3:59 p.m., the Committee was adjourned.] 

(59) 

A P P E N D I X 

JOINT PREPARED STATEMENT OF HON. BILL ANOATUBBY, GOVERNOR, CHICKASAW

NATION AND HON. GARY BATTON, CHIEF, CHOCTAW NATION OF OKLAHOMA

We are Bill Anoatubby, Governor of the Chickasaw Nation, and Gary Batton, 

Chief of the Choctaw Nation of Oklahoma. We are honored to submit this testimony 

on behalf of our Nations in support of S. 248, the Tribal Labor Sovereignty Act. 

The Chickasaw and Choctaw Nations are federally-recognized Indian tribes with 

government-to-government relationships with the United States, holding rights 

guaranteed under treaties dating to the 19th century. Under those treaties, our Nations exercise rights of self-government and the power of exclusion over our treaty 

territories in southern and southeastern Oklahoma. The Nations also have the inherent right, as recognized by federal law, to engage in and regulate economic development and to raise governmental revenues from tribal economic activities. And we 

exercise those rights, and in so doing raise revenues that are critical to our ability 

to provide essential governmental services to our citizens. These rights are directly 

threatened by the National Labor Relations Board’s current interpretation of the 

National Labor Relations Act. What’s more, we have seen over the years an aggressive approach to enforcement by the Board, which is an affront to the Nations’ 

rights under federal law, and to our dignity as sovereign Nations. 

The Choctaw Nation of Oklahoma has nearly 200,000 members, making it the 

third-largest tribe in the country. Its headquarters are located in Durant, Oklahoma. The Choctaw Nation exercises governmental authority over its treaty territory, which spans all or parts of 11 counties in southeastern Oklahoma. The Chickasaw Nation has 38,000 members, making it the thirteenth-largest tribe in the country, with headquarters located in Ada, Oklahoma. The Chickasaw Nation exercises 

governmental authority over a treaty territory covering all or parts of 13 counties 

in south-central Oklahoma. Both Nations exercise authority over their territories 

pursuant to solemn treaty promises made by the United States. In our Treaties, the 

Nations agreed, in exchange for removing from our historic homelands east of the 

Mississippi, to receive new homelands in what is now Oklahoma, where we would 

reside and exercise rights of self-government. The Nations settled in these new 

homelands after surviving removal from our ancestral lands and the horrors of the 

Trail of Tears. 

Our rights as sovereign Nations are critically important to us—those rights secure 

our future, and are held under treaties that are the law of the land. Under the 1830 

Treaty of Dancing Rabbit Creek, the Choctaw secured a new homeland, set aside 

in Article 2, to occupy and govern so long as the Choctaw Nation ‘‘shall exist as a 

Nation.’’ Article 4 guaranteed that the Choctaw Nation would not be subject to any 

laws other than its own laws, except those that Congress enacted to govern Indian 

affairs, and secured to the Choctaw Nation jurisdiction over ‘‘all the persons and 

property’’ within its territory. Article 12 secured to the Choctaw Nation the authority to exclude intruders from its territory and obligated the United States to remove 

intruders and keep them from entering Choctaw lands. 

The Chickasaw Nation’s territory was secured to it in the 1837 Treaty of 

Doaksville. In Article 1 of that Treaty, the Chickasaw agreed to remove to a portion 

of the Choctaw treaty territory, which the Chickasaw Nation would own and govern 

on the same terms as the Choctaw Nation held its lands—that is, with the rights 

of self-government and the power of exclusion. The 1837 Treaty made the Chickasaw Nation a beneficiary of the earlier 1830 Treaty with the Choctaw Nation. 

These rights were reaffirmed by treaties that both Nations signed with the United 

States in 1855 and 1866. Because the Chickasaw and Choctaw Nations hold their 

rights of self-government on the ‘‘same terms,’’ each Nation has a vested interest 

in how the other’s rights are impacted by the actions of maverick agencies like the 

National Labor Relations Board. 

The Nations exercise their sovereign rights to govern their territories and provide 

services to tribal citizens. Both Nations operate their governments under Constitutions adopted by their citizens and approved by the United States. Our ConstituVerDate Mar 15 2010 13:27 Nov 04, 2015 Jkt 097405 PO 00000 Frm 00063 Fmt 6601 Sfmt 6621 S:\DOCS\97405.TXT JACK
60 

tions provide for three branches of government: Executive, Legislative, and Judicial. 

Both Nations provide extensive governmental services in their respective territories 

through their respective Executive branches. Those services include: law enforcement; healthcare provided through various facilities, including hospitals, out-patient 

clinics, wellness centers, nutrition centers, and other specialized programs; education services as diverse as the needs of our people, including Headstart and 

childcare programs, early childhood development services, adult education programs, scholarship programs, and vocational training programs. We also maintain 

family service programs that provide family counseling, investigate child neglect or 

abuse, address domestic violence, and assist in compliance with child support orders; and cultural, language, and historical research and preservation programs. 

The overwhelming majority of our funding for these services comes from revenues 

generated from tribally-operated public gaming facilities. The Chickasaw Nation’s 

Division of Commerce, a division of its Executive Branch, employs Chickasaw public 

employees in operating gaming activities on numerous locations within its treaty 

territory, and the net revenues from these activities, minus revenue sharing payments to the state of Oklahoma under the Nation’s gaming compact, go to the 

Chickasaw Nation treasury to maintain Nation programs and operations. The Choctaw Nation similarly owns and operates licensed gaming facilities throughout its 

territory, and all of its gaming revenues, after revenue sharing payments, are held 

by the tribal government and spent to support the Nation’s operations and the wide 

array of governmental services described earlier. Both Nations also operate a number of other businesses, although the National Labor Relations Board has decided 

to target our publically operated gaming establishments. 

The Board’s new interpretation of the National Labor Relations Act is a direct attack on our treaty rights, including our ability to function as governments dependent upon revenue generating activities (which are our de facto tax base). That attack 

threatens our ability to provide essential governmental services to our people. The 

full scope of that threat became clear in 2011. What the Board did then, and what 

it has done in the years since, shows its unwillingness to treat Indian tribes fairly, 

and to accord them the dignity they deserve as sovereign nations. In 2011, the 

Board filed an unfair labor practice charge against the Chickasaw Nation, asserting 

jurisdiction over the Nation’s gaming activities in Thackerville, Oklahoma. Because 

of the threat that Board jurisdiction poses to tribal sovereignty, the Chickasaw Nation quickly sought a preliminary injunction in the United States District Court for 

the Western District of Oklahoma, in Oklahoma City, that would block the Board 

from proceeding any further. 

In the district court, the Chickasaw Nation argued that the Board could not exercise jurisdiction over the Nation because the Act does not apply to Indian tribes and 

does not authorize the Board to take actions that violate tribal sovereignty or tribal 

treaty rights. The federal court agreed and enjoined the Board from proceeding. 

After that decision was handed down, the Chickasaw Nation and the Board came 

to a procedural accommodation through settlement discussions. Under the settlement, the Chickasaw Nation agreed to litigate the issue of the Board’s jurisdiction 

before the full Board on a stipulated record and on an expedited basis. The only 

issue before the Board would be the legal question of whether the Board had jurisdiction over the Nation. After this settlement was finalized, the Chickasaw Nation 

and the Board asked the federal district court to modify the injunction to allow the 

Board to hear the case on an expedited basis. In June 2012, the court agreed to 

modify its injunction accordingly. 

Initially, the Board complied with the modified Order. The Chickasaw Nation, and 

the Choctaw Nation appearing as amicus, filed briefs with the Board in November 

2012, and the Board issued its decision in July 2013. Not surprisingly, the Board 

found it had jurisdiction over the Chickasaw Nation, relying on its recent reinterpretation of the Act announced in its 2004 San Manuel decision. The Chickasaw Nation immediately appealed to the Tenth Circuit, briefed the case, and again the 

Choctaw Nation filed an amicus brief. But before the Tenth Circuit could decide the 

case, the Supreme Court in June 2014 handed down its Noel Canning decision. The 

Noel Canning decision held that the Board did not have enough validly appointed 

members to make any decisions in July 2013. So, in July 2014 the Tenth Circuit 

sent the Chickasaw Nation’s case back down to the Board and told it to issue a new 

opinion. Since then, the Board has sat on the Chickasaw Nation’s case without taking any action, despite having decided other similar cases. Recently we asked the 

federal court in Oklahoma City to consider whether to restore its original 2011 injunction because the Board has failed to act expeditiously, defying the court’s 2012 

Order. 

The Board’s failure to act promptly is unexplained. At about the same time the 

Chickasaw Nation’s case was remanded to the Board in 2014 (after the Noel CanVerDate Mar 15 2010 13:27 Nov 04, 2015 Jkt 097405 PO 00000 Frm 00064 Fmt 6601 Sfmt 6621 S:\DOCS\97405.TXT JACK
61 

ning decision), so were two cases from the Sixth Circuit, one involving the Little 

River Band of Ottawa Indians and the other the Saginaw Chippewa Indian Tribe 

of Michigan. All three cases involve the application of similar legal principles. But 

the Board has treated the cases very differently. It quickly issued new opinions in 

the Little River Band and Saginaw Chippewa cases by October 2014, and those 

cases have since returned to the Sixth Circuit. Yet the Board has done nothing in 

the Chickasaw Nation’s case since it was remanded to the Board nearly a year ago. 

The Chickasaw Nation asked the Executive Secretary of the Board why there has 

been such a delay, and the Executive Secretary said only that the case is ‘‘under 

active consideration.’’ 

The Board’s delay has had an impact on the order in which the federal judicial 

system is considering challenges to the Board’s actions. The Sixth Circuit is proceeding in two cases now, while the Tenth Circuit’s consideration of the Chickasaw 

Nation’s case is delayed. The legal precedent in the Tenth Circuit is powerful for 

Indian tribes and unfavorable for the Board. That is, of course, no reason for delay, 

particularly in light of the federal government’s trust responsibility, which obligates 

the NLRB to engage in consultation with Indian tribes, and to treat Indian tribes 

with the respect to which they are entitled as sovereigns with a government-to-government relationship with the United States. But the Board’s delay is contrary to 

our interests. And whether explained or not, it is plainly contrary to the federal 

court order that ordered the Board to decide the Chickasaw Nation’s case on an expedited basis. Lengthy delay is not expedition. 

In sum, our experience in dealing with the NLRB shows that the Board’s interpretation of the NLRA is not the only thing it has gotten wrong. It has also made the 

grave mistake of disregarding Indian tribal sovereignty. Although the Federal Government has long treated Indian tribes as partners, the Board lags far behind and 

treats them solely as adversaries. And as our attorney’s separate testimony to the 

Committee demonstrates, it will not hesitate to disregard the words, context and 

history of the NLRA, as well as decades of recognition that the Act does not apply 

to Indian tribes, in order to continue its campaign to establish control over the governmental institutions of Indian tribes involved in gaming. It is doing so notwithstanding that Indian gaming generates the revenues necessary to sustain the essential government functions of the tribes that conduct gaming. And those tribes rely 

on those revenues to serve some of the poorest and most marginalized people in 

America. 

This is why S. 248 is necessary. S. 248 will not just make it clear that the Board’s 

interpretation of the NLRA is patently wrong; it will also protect Indian tribes from 

the Board’s high-handed procedures and unwillingness to honor its obligations to 

the tribes. 

Thank you for the opportunity to offer this testimony on the proposed Tribal 

Labor Sovereignty Act. 

PREPARED STATEMENT OF HON. LARRY ROMANELLI, CHIEF, LITTLE RIVER BAND OF

OTTAWA INDIANS

I am Mr. Larry Romanelli, Ogema (Chief), of the Little River Band of Ottawa Indians (the Band). I am honored to submit this testimony on behalf of the Band in 

support of S. 248, the Tribal Labor Sovereignty Act. 

The Little River Band of Ottawa Indians is a tribal government with a government-to-government relationship with the United States. The Band’s status was reaffirmed by Congress in 1994. See 25 U.S.C. § § 1300k to1300k-7. The Band’s support for this legislation arises from the need to protect the Band’s ability to make 

the necessary decisions for the best interests of the Band as a sovereign government, for our tribal citizens, and for the people who willingly enter our territory to 

work and play. 

Our experience with the National Labor Relations Board (NLRB) and its continuing persistence to run roughshod over our laws, without any consideration of the 

harm to the Band, is sufficient reason for Congress to enact this legislation. However, it is the NLRB’s failure to recognize its trust responsibility as an agent of the 

Federal Government to protect and uphold our right to govern our lands and our 

people that should guide Congress’s hand in moving forward with this important 

legislation. 

The Little River Band of Ottawa has nearly 4,000 members. We are located in 

our ancestral homeland in Michigan’s Lower Peninsula along the shore of Lake 

Michigan. When Congress reaffirmed the Band’s relationship with the federal government, it reaffirmed that the Band has all the powers and rights enjoyed by all 

federally recognized Indian tribes. Pursuant to the Restoration Act, the Band enVerDate Mar 15 2010 13:27 Nov 04, 2015 Jkt 097405 PO 00000 Frm 00065 Fmt 6601 Sfmt 6621 S:\DOCS\97405.TXT JACK
62 

acted a Constitution in accordance with the Indian Reorganization Act, which was 

approved by the Secretary of the Interior. The Constitution confirmed the Band’s 

three branches of government: a legislative branch, through the office of the Tribal 

Council; the Executive, through the office of the Tribal Ogema; and a judiciary, 

through the Band’s Tribal court. This Constitution provides that the Tribe has jurisdiction over its members and territory and empowers the Tribal Council to enact 

laws to govern the conduct of its members and other persons within its jurisdiction. 

As an exercise of this authority, the Council enacted the Fair Employment Practices Code, which governs labor relations, including the negotiation of the terms and 

conditions of continuing employment relations under collective bargaining agreements. This law is the result of considerable legislative process by the Tribal Council and reflects the important policy choices necessary to ensure that the needs of 

the tribal government are fairly balanced with the rights of workers to engage in 

collective bargaining. 

In doing so, the Band considered examples of public sector labor laws from states 

and the federal government and enacted provisions to: define the rights and duties 

of employers, employees, and labor organizations within the Band’s governmental 

operations with respect to collective bargaining, including the scope of the duty to 

bargain in good faith; require labor organizations engaged in activities within the 

Band’s governmental operations to hold a tribal license; provide a process for defining appropriate bargaining units of employees; standards for union election campaigns; procedures for union elections and methods for resolving disputes that could 

arise; establish procedures and remedies for alleged unfair labor practices; prohibit 

strikes against the Band’s governmental operations; and dispute/impasse resolution 

processes, including a waiver of tribal sovereign immunity for actions in tribal court. 

Multiple bargaining elections have taken place at Little River pursuant to this law. 

The Band’s law is not anti-union, but it is critically necessary to ensure the integrity of the Band’s governmental operations and to protect all governmental activities. Unfortunately, for the better part of the last decade the Band has been engaged 

in a struggle with the NLRB regarding the Band’s sovereign authority to enact and 

enforce this law. 

This Band’s gaming operation exists by virtue of the Band’s governmental authority, and is operated pursuant to the Indian Gaming Regulatory Act, 25 U.S.C. 

§ § 2701–2721. Pursuant to IGRA, the Band entered into a compact with the State 

of Michigan to conduct Class III gaming activities on the Band’s trust land in 

Manistee, Michigan. Further, as mandated by IGRA and the Band’s gaming ordinance (which is required by IGRA and approved by the National Indian Gaming 

Commission) the Band has sole proprietary interest and responsibility for the gaming at its casino; the Band must license key employees; and all revenues generated 

from the casino are governmental revenues of the Band which must be used only 

for the Band’s governmental services, the general welfare of the Band and its members, tribal economic development, to support local governmental organizations, or 

to donate to charitable organizations. See 25 U.S.C. § § 2710(b)(2) (A),2710(b)(2)(B). 

These revenues help support the wide array of services that the Band provides 

to our members, including health services; counseling and support for tribal members and children; natural resource management; public safety; a tribal judiciary; 

and prosecutorial services. The Band’s gaming revenues account for 100 percent of 

the budget for our Judiciary, including our prosecutor’s office; 80 percent of the 

budget for mental health and substance abuse services at our clinic; 77 percent of 

the budget for our Department of Family Services; and 62 percent of the budget for 

our Department of Public Safety. Without these revenues our government would essentially close down. 

The Little River Casino is fulfilling the promise that Congress hoped for when it 

enacted IGRA: it is providing tribal financial security to fulfill the needs that Congress failed to meet for more than a century. All this is threatened by the actions 

of the NLRB, which has failed to recognize our sovereignty and the intent of Congress to provide Tribes a pathway to generate governmental revenues where none 

had existed before. 

In March, 2008, the Local 406 of the International Brotherhood of Teamsters filed 

charges with the NLRB alleging that the very enactment of the Band’s Fair Employment Practices Code violated the National Labor Relations Act (NLRA). The NLRB 

agreed and launched a full scale attack on the Band. This represents a direct attack 

on our sovereignty, something the Federal Government has a duty to protect and 

enhance, not to undermine and destroy. 

Specifically, the NLRB found it to be unfair labor practices for the Band to enact 

a law that requires labor organizations doing business within the Casino to obtain 

a license from the Band; excludes alcohol and drug abuse policies from collective 

bargaining negotiations; and prohibits strikes. Yet the entire FEP Code was enacted 

63 

as a balance of competing tribal interests in running its governmental operations 

consistent with the Indian Gaming Regulatory Act, tribal interests, and employee 

interests. The three targeted provisions in particular demonstrate why the balance 

our tribal government struck was necessary. But by characterizing each of these 

tribal government judgments to be an unfair labor practice, the NLRB has directly 

attacked our government and jeopardized the Tribe’s very future. 

For instance, requiring licensure of unions and individuals seeking to organize at 

the Band’s casino is critical to ensuring the integrity of the Tribe’s gaming operation. The legislative history of the Indian Gaming Regulatory Act, (including hearings held after enactment) included a great deal of discussion regarding the potential and the need to prevent the infiltration of organized crime into tribal gaming 

operations. See generally, Gaming Activities on Indian Reservations and Lands, S. 

Hrg. 100–341; Hearing on S. 2230, Indian Gaming Regulatory Act Amendments Act 

of 1994, S. Hrg. 103–874. One way to address this is to require licensure and background checks of key parties conducting any activity in a Tribe’s casino. Like several 

States, including Nevada, Michigan and Pennsylvania, the Little River Band determined that a union seeking to do its business in its Casino must be certified (another term for licensed). This is simply good policy and is consistent with Congress’s 

interest in ensuring that organized crime does not infiltrate Indian gaming. Yet, the 

NLRB has held that the Band’s policy in this area is an unfair labor practice. If 

that is the case, then Nevada’s, Michigan’s and Pennsylvania’s certification policies 

are equally offensive and must be struck down. 

Secondly, prohibiting collective bargaining regarding the Band’s alcohol and drug 

testing policies represents a careful decision by the Tribal Government that in order 

to work for the Band you must be drug and alcohol free. This decision was based 

on the well-documented and devastating impacts of drugs and alcohol in tribal communities, and on the Band’s decision to stem this tide in our community by enacting 

strict testing requirements. Moreover, federal law requires all Tribes to maintain a 

drug free work place. It would be difficult (if not unlawful) for the Band to have 

one law that is necessary to comply with federal law for one set of its public workforce, and then have a different law for a different set of its public workforce subject 

to a collective bargaining agreement. But by determining the prohibition on bargaining over the Band’s drug and alcohol testing law is an unfair labor practice, the 

NLRB has put the Band’s compliance with the Federal drug free work place laws 

in jeopardy, and thus put at risk all federal funds that we receive. 

Finally, NLRB’s directive to the Band to permit strikes, and to repeal the provisions of the code that prohibit strikes, represents a direct threat to the Tribal Government’s continued operation. A strike against the Band’s gaming operations would 

be a direct assault on the Band’s sovereignty. It would threaten the continuation 

of most essential governmental functions, putting our citizenry at grave risk. The 

Band’s decision to prohibit strikes in all its operations is no different than the decisions of many States that prohibit strikes, including New York’s prohibition against 

strikes at its off-track betting facilities and Massachusetts’s prohibition against 

strikes by its lottery employees. 

Like these States, the Band balanced the need to fairly resolve impasses with its 

need to ensure its operations remain open. It did this by allowing binding arbitration. By this means, the workers’ interests are fairly addressed, governmental operations remain open, and the critical flow of governmental revenues to fund essential 

governmental services is protected. This is all the more critical for a governmental 

gaming establishment in rural Michigan, because if there were a strike there would 

never be a sufficient number of licensed and qualified workers that could be called 

in as replacements. To be clear, a strike would shutter the casino. This would unfairly favor the union; as a mere threat of a strike would be the only thing needed 

to force the government to capitulate to the union’s demands. The public at large— 

our tribal citizenry—would be held hostage to union demands. As a result there 

would never be good faith negotiations, just union demands to which the Tribal Government would have to agree. In this very real way, the Band loses its power to 

govern itself, for it has to do whatever the union demands or risk shutting down. 

Both the Band, and the United States as trustee for the Band, have a responsibility 

to keep this from happening. 

These three examples underscore why the NLRA was never intended, and is not 

structured or designed, either to apply to government employers or to permit a government’s law to be struck down. Nothing in the Act is tailored to respond to the 

unique challenges and obligations facing governments, which is why for more than 

70 years the Act was found not to apply to any government, including tribal governments. 

Unfortunately, the NLRB recently changed course. Even though it has an obligation under the United States’ trust responsibility and President Obama’s 2009 

64 

Memorandum on Tribal Consultation to consult with Tribes about the enforcement 

of federal policies that affect Indian Tribes, the Board has failed to consult and disregarded our views. At this point it is perfectly plain the Board will only stop if Congress tells it to. 

Congress can do that by passing S. 248. S. 248 adds language to the Act to make 

it unmistakably say what was clear to everyone for decades: the NLRA does not 

apply to Indian Tribes. This is why S. 248 is necessary and why Congress must act 

now. I thank the Committee for the opportunity to submit this testimony for the 

record. 

JOINT PREPARED STATEMENT OF THE CHICKASAW NATION, CHOCTAW NATION, FOREST

COUNTY POTAWATOMI COMMUNITY, PUEBLO OF ISLETA, LITTLE RIVER BAND OF

OTTAWA INDIANS AND PUYALLUP TRIBE OF INDIANS

I. Introduction 

The enactment of S. 248, the Tribal Labor Sovereignty Act, is essential to protect 

tribal sovereign authority from the unlawful actions of the National Labor Relations 

Board (‘‘Board’’). S. 248 would do so by reaffirming that the National Labor Relations Act (‘‘NLRA’’ or ‘‘Act’’), 29 U.S.C. § § 151–169, does not apply to Indian tribes 

exercising their sovereign authority in Indian country. Congress never intended to 

apply the NLRA to Indian tribes, as the text and legislative history of the Act (neither of which even mentions Indian tribes) confirm. Indeed, Congress did not intend 

to apply the Act to any sovereign. Instead, it exempted sovereign entities from the 

Act’s definition of ‘‘employer,’’ 29 U.S.C. § 152(2), in terms that include every domestic sovereign in the United States. Indian tribes are, of course, sovereign entities, 

and they too are exempt from the Act under § 152(2). And for decades the Board 

so held. Fort Apache Timber Co., 226 N.L.R.B. 503 (1976). But in 2004, the Board 

did a complete turnabout, ruling that the NLRA applies to Indian tribes, and that 

the Board will decline to exercise jurisdiction over an Indian tribe only when it decides the tribe is acting as a sovereign. San Manuel Indian Bingo & Casino, 341 

N.L.R.B. 1055 (2004). The Board has no authority to decide when a tribe is not a 

sovereign—under the NLRA or any other law. As the Supreme Court recent made 

clear, ‘‘the special brand of sovereignty the tribes retain—both its nature and extent—rests in the hands of Congress.’’ Michigan v. Bay Mills Indian Cmty., 134 S. 

Ct. 2024, 2037 (2014). 

S. 248 is also urgently needed because the Board’s efforts threaten the self-determination policy’s firm commitment to achieving tribal self-sufficiency through tribal 

economic development. Under the San Manuel decision, the Board claims that tribal 

governments are acting as sovereigns only when they ‘‘are acting with regard 

to . . . traditional tribal or governmental functions,’’ not when they are engaged in 

what the Board calls ‘‘commercial’’ activity. 341 N.L.R.B. at 1063. Applying that 

test, the Board continues to rule that Indian gaming activity is ‘‘commercial’’ and 

therefore subject to the NLRA. E.g., Chickasaw Nation, 359 N.L.R.B. No. 163 (2013), 

vacated & remanded sub nom. Chickasaw Nation v. NLRB, Nos. 13–9578, 13–9588 

(10th Cir. July 22, 2014); Soaring Eagle Casino & Resort, 361 N.L.R.B. No. 73 

(2014), on appeal sub nom. Soaring Eagle Casino & Resort v. NLRB, Nos. 14–2405, 

14–2558 (6th Cir. argued Apr. 29, 2015); Little River Band of Ottawa Indians Tribal 

Gov’t, 361 N.L.R.B. No. 45 (2014), enforcement petition docketed sub nom. NLRB v. 

Little River Band of Ottawa Indians Tribal Gov’t, No. 14–2239 (6th Cir. Sept. 26, 

2014). 

The San Manuel test is contrary to federal law because Indian tribes undertake 

economic development through their governments in the exercise of their sovereign 

authority, New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 335 (1983). And 

they retain their sovereign authority when they engage in economic activity unless 

Congress has abrogated that authority in clear terms. See Bay Mills, 134 S. Ct. at 

2037. Congress did not do so in the NLRA. Furthermore, in Bay Mills, the Supreme 

Court declined to create a commercial activity exception to tribal sovereign immunity—the same distinction that the San Manuel test relies on—holding that ‘‘it is 

fundamentally Congress’s job, not [the Court’s], to determine whether or how to 

limit tribal immunity.’’ Bay Mills, 134 S. Ct. at 2037. If the Supreme Court will not 

make that distinction in the absence of clear congressional authorization neither can 

the Board. 

Nevertheless, the Board asserts that Indian gaming is a ‘‘typical commercial enterprise,’’ San Manuel, 341 N.L.R.B. at 1063. Here too, federal law holds otherwise. 

Indian gaming is a sovereign function. Congress enacted the Indian Gaming Regulatory Act to ‘‘provide a statutory basis for the operation of gaming by Indian tribes 

as a means of promoting tribal economic development, self-sufficiency, and strong 

65 

tribal governments,’’ 25 U.S.C. § 2702(1) (emphasis added), and ‘‘a means of generating tribal governmental revenue,’’ id. § 2701(1) (emphasis added). Prior to IGRA, 

the Supreme Court had reached the same conclusion, holding that Indian gaming 

furthers ‘‘the congressional goal of Indian self-government, including its ‘overriding 

goal’ of encouraging tribal self-sufficiency and economic development,’’ California v. 

Cabazon Band of Mission Indians, 480 U.S. 202, 216 (1987) (citation omitted) (emphasis added), and emphasizing that ‘‘[s]elf-determination and economic development are not within reach if the Tribes cannot raise revenues and provide employment for their members,’’ id. at 219. As one federal appellate court observed, in conducting gaming, ‘‘[t]he Tribes... are engaged in the traditional governmental 

function of raising revenue. They are thereby exercising their inherent sovereign governmental authority.’’ Indian Country, U.S.A., Inc. v. Oklahoma ex rel. Okla. Tax 

Comm’n, 829 F.2d 967, 982 (10th Cir. 1987) (citation omitted) (emphasis added). 

S. 248 will stop the Board’s unauthorized campaign to apply the NLRA to Indian 

tribes by reaffirming that Indian tribes, like all other sovereign entities in the 

United States, are exempt from the Act. S. 248 would do so simply by declaring that 

the definition of ‘‘employer’’ in the Act does not include ‘‘any enterprise or institution 

owned and operated by an Indian tribe and located on its Indian lands... .’’ S. 

248, § 2(1). Passage of S. 248 is critical to the protection of tribal self-government 

and to the tribes’ pursuit of self-sufficiency through the traditional governmental 

function of raising revenue to operate their governments and provide services to 

their citizenry. 

II. Congress Never Intended To Apply The NLRA To Indian Tribes, And 

Instead Exempted All Sovereign Entities From The Act 

There is no basis on which the Board may seek to apply the NLRA to Indian 

tribes in the first place—Congress never even considered that possibility. It did, 

however, deliberately exempt all sovereign employers from the Act. Accordingly, 

there is absolutely no basis for the Board’s claim that Congress delegated it authority to apply the NLRA to Indian tribes, much less the power to decide when Indian 

tribes are acting in their sovereign capacity and when they are not. Thin air will 

not support that claim. And as we show first, history makes that claim untenable. 

A. In 1935, Congress Reaffirmed That Indian Tribes Are Sovereign Entities, With 

Inherent Sovereign Authority To Engage In Economic Development Activities To 

Enhance Tribal Self-Government. 

The year before the NLRA was passed, Congress made the restoration of tribal 

self-government the cornerstone of federal Indian policy. In the Indian Reorganization Act of 1934 (‘‘IRA’’), 25 U.S.C. § § 461–479, Congress reaffirmed that Indian 

tribes are sovereign entities, with inherent sovereign authority to govern their reservations, and committed the federal government to restoring tribal self-government 

through tribal economic development. President Roosevelt hailed the IRA as 

‘‘embod[ying] the basic and broad principles of the administration for a new standard of dealing between the Federal Government and its Indian wards.’’ Letter from 

President Franklin D. Roosevelt to Senator Burton K. Wheeler (April 28, 1934), S. 

Rep. No. 73–1080, at 3 (1934). And that ‘‘new standard of dealing’’ was desperately 

needed. 

For decades prior to the enactment of the IRA, the Federal Government had been 

committed to the destructive allotment policy, which sought the ‘‘gradual extinction 

of Indian reservations and Indian titles,’’ Montana v. United States, 450 U.S. 544, 

559 n.9 (1981) (quoting Draper v. United States, 164 U.S. 240, 246 (1896)), and ‘‘the 

ultimate destruction of tribal government,’’ id. Under that policy, tribal lands were 

allotted and the surplus sold to non-Indians, and the governmental institutions of 

Indian tribes had ‘‘very largely disintegrated or been openly suppressed’’ by the Interior Department. 78 Cong. Rec. 11,729 (1934) (remarks of Rep. Howard). Indeed, 

at that time ‘‘the Indian agent located upon an Indian reservation was a czar,’’ as 

Senator Wheeler stated in the Senate debate on the IRA. Id. at 11,125. 

The suffering of Indian tribes under the allotment policy was documented in the 

1928 Meriam Report, which the Federal Government commissioned the Institute for 

Government Research to prepare to examine the status of American Indians. See 

Instit. for Gov’t Research, The Problem of Indian Administration (Lewis Meriam et 

al. eds., 1928). The report, which provided much of the impetus for enactment of 

the IRA, found that: ‘‘[a]n overwhelming majority of the Indians are poor, even extremely poor, and they are not adjusted to the economic and social system of the 

dominant white civilization.’’ Id. at 3. Jobs were few, and economic development efforts were practically non-existent. An Indian ‘‘generally ekes out an existence 

through unearned income from leases of his land, the sale of land, per capita payments from tribal funds, or in exceptional cases through rations given him by the 

66 

government.’’ Id. at 5. ‘‘Their education is usually slight, their knowledge of English 

poor, and their experience in business almost entirely wanting.’’ Id. at 430. 

Congress enacted the IRA in response to these conditions. As the Supreme Court 

would later observe, ‘‘[t]he overriding purpose of . . . [the IRA] was to establish machinery whereby Indian tribes would be able to assume a greater degree of self-government, both politically and economically.’’ Morton v. Mancari, 417 U.S. 535, 542 

(1974). To enhance self-government, the IRA authorized Indian tribes to adopt constitutions exercising ‘‘all powers vested in any Indian tribe or tribal council by existing law,’’ as well as additional powers, including inter alia, the power to control the 

sale and disposition of tribal lands and tribal assets and to negotiate with federal, 

state, and local governments. 25 U.S.C. § 476(e). The IRA also recognized tribes’ inherent sovereign authority to govern themselves under procedures of their own 

choice, whether specified in the IRA or not. Id. § 476(h). And it stopped any further 

allotment of tribal land. Id. § 461. To facilitate tribal economic development, the Act 

authorized the Secretary of the Interior to issue charters of incorporation authorizing Indian tribes to organize and operate business corporations, id. § 477, and established a revolving fund ‘‘for the purposes of promoting the economic development 

of . . . tribes and their members,’’ id. § 470. Two years later (and thus one year 

after the NLRA was enacted), Congress extended the same machinery to Indian 

tribes in Oklahoma through the Oklahoma Indian Welfare Act of 1936 (‘‘OIWA’’), 

25 U.S.C. § § 501–509. 

The IRA and OIWA made emphatically clear that Indian tribes are sovereign entities possessing inherent sovereign authority, and they committed the federal government to enhancing tribal self-government through tribal economic development. It 

is absurd for the Board now to suggest that, at the very same time Congress adopted a ‘‘new standard of dealing’’ with the tribes that reaffirmed, restored and 

strengthened their sovereign status, Congress made Indian tribes the only sovereign 

entities in the United States that are subject to NLRA’s private industrial labor regime—and that Congress did this bizarre about-face without whispering a word 

about it to anyone. In fact, Congress did nothing of the kind. 

B. The NLRA’s Text And Legislative History Plainly Show That Congress Did Not 

Apply It To Indian Tribes, And That the NLRA’s Exemption for Sovereign 

Entities Applies To Indian Tribes 

1. Indian tribes are not subject to the NLRA because its text and legislative history 

say nothing about Indian tribes. 

The NLRA does not mention Indian tribes anywhere in its text or legislative history—not in the various drafts of the bill that become the NLRA, not in the congressional debates over its terms, and not in the hearings held and reports produced 

by Congress concerning the Act. In short, Congress never even considered applying 

the NLRA to tribes. That is hardly surprising, as the problems on which the NLRA 

was focused were far removed from those Congress had just addressed in the IRA. 

At the time of the NLRA, ‘‘congressional attention [was] focused on employment in 

private industry and on industrial recovery.’’ NLRB v. Catholic Bishop of Chi., 440 

U.S. 490, 504 (1979) (citations omitted). The principle purpose of the NLRA was to 

‘‘eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions . . . ’’ 29 U.S.C. § 151. The 

legislative history showed that Congress sought to address ‘‘an ever-increasing stoppage of the free flow of commerce between the several States and between this and 

other countries as a result of disturbances in some of our larger industrial enterprises.’’ S. Rep. No. 73–1184, at 10–11 (1934), reprinted in 1 NLRB, Legislative History of the National Labor Relations Act, 1934 at 1111 (1949) [hereinafter NLRB 

Hist.] (emphasis added). The underlying concern was that the balance of power between private employers and employees tipped too far in favor of the employers, 

which had detrimental effects on commerce that had to be addressed, see 78 Cong. 

Rec. 3443 (1934) (statement of Sen. Wagner upon introducing S. 2926), reprinted in 

1 NLRB Hist. at 15–16. To remedy these problems, Congress enacted the NLRA to 

address ‘‘the right of self-organization of employees in industry . . . ’’ 79 Cong. Rec. 

10,720 (1935) (statement of President Roosevelt upon signing S. 1958), reprinted in 

2 NLRB Hist. at 3269 (emphasis added). 

Not one word in the NLRA suggests that it was intended to affect the right of 

self-government of Indian tribes, and to limit, sub silentio, their inherent sovereign 

authority, which Congress had recognized just the year before in enacting the IRA. 

The contrary holding of San Manuel is therefore wrong and unsupportable. 

67 

2. Congress exempted sovereign entities from the Act, and because Indian tribes are 

sovereign entities, they too are exempt. 

There is yet another reason that the Act does not apply to Indian tribes: Congress 

exempted sovereign entities in section 2(2) of the NLRA, 29 U.S.C. § 152(2). Sovereign entities were exempted from the NLRA right from the start, with little fanfare. Under the original bill, the term employer was defined to exclude ‘‘the United 

States, or any State, municipal corporation, or other governmental 

instrumentality . . . ’’ S. 2926, 73rd Cong. § 3(2) (original Senate print, Mar. 1, 

1934), reprinted in 1 NLRB Hist. at 2, and in the years leading up to 1935, Indian 

tribes were generally considered to be instrumentalities of the United States, United 

States v. Rickert, 188 U.S. 432, 437 (1903) (state taxation of Indian land barred because ‘‘[t]o tax these lands is to tax an instrumentality employed by the United 

States’’). See also, Act of June 20, 1936, ch. 622, § 2, 49 Stat. 1542 (codified as 

amended at 25 U.S.C. § 412a) (declaring Indian homesteads ‘‘to be instrumentalities 

of the Federal Government’’). A later version revised the sovereign exemption to 

state that the term employer ‘‘shall not include the United States, or any State or 

political subdivision thereof . . . ’’ S. 1958, 74th Cong. § 2(2) (final print, July 5, 

1935), reprinted in 2 NLRB Hist. at 3271. The sovereign exemption generated only 

modest attention. The Senate Report accompanying the original bill does not mention it, though it notes that the definition of ‘‘employer’’ is important. S. Rep. No. 

73–1184, at 3 (1934), reprinted in 1 NLRB Hist. at 1102. See also S. Rep. No. 74– 

573, at 6 (1935), reprinted in 2 NLRB Hist. at 2305 (also omitting any discussion 

of the sovereign exemption). 

The witness testimony on the issue confirms Congress’s intent to exempt all governments from the Act, whether engaged in business activities or not. J.W. Cowper 

of John W. Cowper Co., Inc., complained that the exception for governmental bodies 

‘‘may be reasonable enough if it applies purely to governmental agencies but where 

these governmental divisions are engaged in pursuits, competing with private enterprise, then there should be no exception and such agencies should be under the 

same restrictions as a corporation or private employer.’’ To Create A National Labor 

Board: Hearings Before the Comm. on Ed. & Labor on S. 2926, 73d Cong. 295 (1934) 

(statement of John W. Cowper, President, John W. Cowper Co.), reprinted in 1 

NLRB Hist. at 325. Objecting more broadly, the executive director of the International Juridical Association testified that his group could find ‘‘no reason why the 

United States should be exempted from the employers covered by the act and, therefore, urge the amendment of section 3 (2) by deleting the United States from the 

exemption.’’ Id. at 1017 (brief of Isadore Polier, Exec. Dir., Int’l Juridical Ass’n), re- printed in 1 NLRB Hist. at 1055. But Congress neither deleted the exclusion nor 

limited it in the manner Mr. Cowper and Executive Director Polier urged. See also 

Labor Disputes Act: Hearings Before the H. Comm. On Labor on H.R. 6288, 74th 

Cong. 179 (1935) (statement of Francis Biddle, Chairman, NLRB), reprinted in 2 

NLRB Hist. at 2653 (supposing that the reason governmental entities were excluded 

was so as not to ‘‘overload the bill’’). 

Congress instead excluded all sovereigns from the Act. It did so by stating illustratively that ‘‘‘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 . . . ’’ 29 U.S.C. § 152(2) (emphasis added). The examples used in 

the text are not an exclusive list—the exemption applies to all domestic sovereigns, 

whether or not named in § 152(2), as the Board has long recognized (with the exception of its turnabout in the San Manuel decision). In its very first regulations, the 

Board so construed § 1A152(2) by recognizing the District of Columbia and all 

United States territories and possessions as exempt, though none are named in § 

1A152(2). 29 C.F.R. § 102.7 (‘‘The term State as used herein shall include the District of Columbia and all States, Territories, and possessions of the United States.’’) 

(emphasis added). And some 40 years after the NLRA was enacted, when the question of whether the Act applied to Indian tribes arose, the Board ruled that tribal 

governments, too, are exempt from the Act: ‘‘it is clear beyond peradventure that a 

tribal council such as the one involved herein—the governing body on the reservation—is a government both in the usual meaning of the word, and as interpreted 

and applied by Congress, the Executive, and the Courts’’ and that ‘‘the Tribal Council, and its self-directed enterprise on the reservation that is here asserted to be an 

employer, are implicitly exempt as employers within the meaning of the Act.’’ Fort 

Apache, 226 N.L.R.B. at 506 (emphasis added) (footnotes omitted). The Board further explained that, just as the Court in NLRB v. Natural Gas Utility District, 402 

U.S. 600, 604 (1971), had held that a utility district formed by private individuals 

was a political subdivision exempt under § 152(2) because it was administered by 

individuals responsible to public officials, ‘‘[s]o here we conclude that the Fort 

68 

Apache Timber Company is an entity administered by individuals directly responsible to the Tribal Council of the White Mountain Apache Tribe, hence exempt as 

a governmental entity recognized by the United States, to whose employees the Act 

was never intended to apply.’’ Id. at 506, n.22 (emphasis added). 

The courts, too, have recognized the broad ‘‘sovereign’’ exemption accorded under 

§ 152(2), holding that governmental employers excluded by its terms include the 

Port Authority of New York and New Jersey, Brown v. Port Auth. Police Superior 

Officers Ass’n, 661 A.2d 312, 315–16 (N.J. Super. Ct. App. Div. 1995), the Commonwealth of Puerto Rico’s Maritime Shipping Authority, Chaparro-Febus v. Int’l Longshoremen Ass’n, Local 1575, 983 F.2d 325, 329–30 (1st Cir. 1993), and the Virgin 

Islands Port Authority, V.I. Port Auth. v. SIU de P.R., 354 F. Supp. 312, 312 (D.V.I. 

1973). None of these entities are listed in § 152(2), all arguably engage in commercial activities, yet all have correctly been held to be exempt governmental employers. 

That Congress never intended to apply the NLRA to sovereign entities, including 

Indian tribes, is confirmed by the 1947 amendments to the Act, enacted as the 

Labor Management Relations Act (‘‘LMRA’’), Pub. L. No. 80–101, 61 Stat. 136. The 

LMRA authorized labor organizations to sue employers in federal court to enforce 

collective bargaining agreements. 29 U.S.C. § 185(a). But in so doing, it did not abrogate the sovereign immunity of any government, tribal or otherwise, even though 

the sovereign immunity of Indian tribes was by then well established. United States 

v. U.S. Fid. & Guar. Co., 309 U.S. 506, 512 (1940). If Congress had viewed the 

NLRA as applicable to Indian tribes, or indeed any other sovereign, it would have 

waived their immunity to permit enforcement of collective bargaining agreements. 

That it did not do so only makes sense if the Act never applied to them in the first 

place. 

Nevertheless, the Board ruled in San Manuel that Indian tribes are subject to the 

NLRA, insisting that because tribes are not named in § 152(2), they are subject to 

the Act. 341 N.L.R.B. at 1058. For the reasons just shown, that contention is wrong. 

Indeed, the Board’s new position is actually done in by its own hand—its concession 

that neither the text nor the legislative history of the NLRA mention Indian tribes, 

Sac & Fox Indus., Ltd., 307 N.L.R.B. 241 (1992), and its prior recognition that ‘‘the 

Act was never intended to apply’’ to Indian tribes, Fort Apache, 226 N.L.R.B. at 506 

n.22. 

III. Applying The NLRA To Indian Tribes Violates Federal Law and 

Abrogates The Inherent Sovereign Authority On Which Indian Tribes 

Rely to Pursue Self-Government And Self-Sufficiency Under The SelfDetermination Policy 

Indian tribes—with the strong support of Congress—are pursuing tribal self-government and self-sufficiency through economic development, including Indian gaming conducted under the Indian Gaming Regulatory Act of 1988, 25 U.S.C. § § 2701– 

2721. Since the self-determination policy was announced by President Nixon in 

1970, Indian tribes have relied on their inherent sovereign authority to engage in 

economic activity to raise revenue to operate their governments and provide essential governmental services. And they have made significant progress—improving 

health and education services, building clinics, courthouses, and roads, and restoring the vibrancy of Indian communities. 

The Board’s effort to apply the NLRA to Indian tribes violates federal law because 

it interferes with tribal sovereign authority in the absence of clear congressional authorization. And the Board’s San Manuel test compounds the illegality of its actions. 

Under that test, the Board claims authority to decide when Indian tribes are acting 

as a sovereign, and when they are acting as a commercial enterprise, and asserts 

exclusive jurisdiction over Indian tribes in all matters it deems to be commercial. 

But the Supreme Court has held that very distinction—between commercial and 

governmental activity—to be one that only Congress can make. See Bay Mills, 134 

S. Ct. at 2037. Furthermore, in applying this test, the Board rejects the determination already made by Congress and the federal courts that Indian tribes engage in 

economic activity—including Indian gaming—as a sovereign function. Instead, the 

Board deems tribal gaming facilities, ‘‘typical commercial enterprise[s].’’ San 

Manuel, 341 N.L.R.B. at 1063. That test is contrary to federal policy and law, and 

imposing it on Indian tribes would abrogate their inherent sovereign authority, as 

we show below. 

69 

A. Congress And The Federal Courts Are Committed to The Pursuit of Tribal SelfGovernment And Self-Sufficiency Through Tribal Economic Development 

1. Congress made tribal economic development a cornerstone of the selfdetermination policy. 

Under the self-determination policy, Indian tribes are pursuing tribal self-government and self-sufficiency through the exercise of their inherent sovereign authority 

to engage in economic activity. In so doing, Indian tribes are raising revenue to operate their governments and provide essential governmental services. This is exactly 

how Congress intended that the self-determination policy would work. In announcing the self-determination policy, President Nixon declared that ‘‘it is critically important that the Federal government support and encourage efforts which help Indians develop their own economic infrastructure.’’ Message from the President of the 

United States Transmitting Recommendations for Indian Policy, H.R. Doc. No. 91– 

363, at 7 (1970). Congress agreed, and in the Indian Self-Determination and Education Assistance Act of 1975, 25 U.S.C. § § 450–450n, declared that ‘‘the United 

States is committed to supporting and assisting Indian tribes in the development 

of strong and stable tribal governments, capable of administering quality programs 

and developing the economies of the respective communities.’’ 25 U.S.C. § 450a(b). 

And since then Congress’s support for the tribes’ pursuit of self-sufficiency through 

tribal economic development has been steadfast. E.g., Indian Tribal Energy Development and Self-Determination Act of 2005, 25 U.S.C. § § 3501–3506 (establishing Indian energy programs within the Department of Interior and the Department of Energy in order to ‘‘further the goal of Indian self-determination’’ and ‘‘assist consenting Indian tribes’’ in developing tribal energy resources); Native American Business Development, Trade Promotion and Tourism Act of 2000, 25 U.S.C. § § 4301– 

4307 (‘‘the United States has an obligation to guard and preserve the sovereignty 

of Indian tribes in order to foster... economic self-sufficiency among Indian 

tribes’’). 

The Supreme Court has given robust support to Congress’ efforts in this arena. 

See Cabazon, 480 U.S. at 216–18 (describing ‘‘Indian sovereignty and the congressional goal of Indian self-government, including its ‘overriding goal’ of encouraging 

tribal self-sufficiency and economic development’’ as ‘‘important federal interests,’’ 

and listing statutes, regulations, and Presidential statements supporting self-determination through economic development, including through gaming); Mescalero 

Apache Tribe, 462 U.S. at 334–35 (‘‘Congress’ objective of furthering tribal self-government encompasses far more than encouraging tribal management of disputes between members, but includes Congress’ overriding goal of encouraging ‘tribal selfsufficiency and economic development.’’’) (citation omitted). 

2. Congress and the courts have both determined that Indian gaming is a 

governmental activity, and that activity has significantly enhanced tribal selfsufficiency. 

The most significant of the measures enacted by Congress to further tribal selfsufficiency is the Indian Gaming Regulatory Act of 1988 (IGRA). 25 U.S.C. § § 2701– 

2721. IGRA authorizes Indian tribes to operate gaming on Indian lands ‘‘as a means 

of promoting tribal economic development, self-sufficiency, and strong tribal governments,’’ id. § 2702(1); see also § 2701(4) (defining these as principal goals of the Federal Indian policy), and ‘‘generating tribal governmental revenue,’’ id. § 2702(3). 

IGRA recognizes that Indian tribes have the ‘‘exclusive right to regulate Indian 

gaming’’ in their sovereign capacity, id. § 2701(5), and provides a statutory basis for 

tribes to exercise that regulatory authority, id. § 2702(2). That Indian tribes conduct 

gaming under IGRA in their sovereign capacity could not be clearer—indeed, IGRA 

expressly requires that Indian tribes enact ordinances which provide ‘‘the Indian 

tribe will have the sole proprietary interest and responsibility for the conduct of any 

gaming activity’’ under the Act. Id. § 2710(b)(2)(A), (d)(1)(A)(ii). 

And even before IGRA was enacted, the Supreme Court had held that Indian 

gaming furthers ‘‘the congressional goal of Indian self-government, including its 

‘overriding goal’ of encouraging tribal self-sufficiency and economic development.’’ 

Cabazon, 480 U.S. at 216 (citation omitted) (emphasis added), underscoring that 

‘‘[s]elf-determination and economic development are not within reach if the Tribes 

cannot raise revenues and provide employment for their members,’’ id. at 219. As 

one federal appellate court observed, in conducting gaming, ‘‘[t]he Tribes... are 

engaged in the traditional governmental function of raising revenue. They are thereby exercising their inherent sovereign governmental authority.’’ Indian Country, 

U.S.A., 829 F.2d at 982 (citations omitted) (emphasis added). 

Tribes use the revenues from Indian gaming to fund governmental services. Indeed, IGRA requires that Indian tribes use net revenues from gaming ‘‘to fund tribal 

70 

government operations or programs; to provide for the general welfare of the Indian 

tribe and its members; to promote tribal economic development; to donate to charitable organizations; or to help fund operations of local government agencies . . . ’’ 

25 U.S.C. § 2710(b)(2)(B), (d)(1)(A)(ii). Indian tribes use gaming revenues to fund essential governmental functions, such as law enforcement, water treatment and sewage systems, road construction, education, housing, and resource management. Nat’l 

Gambling Impact Study Comm’n, National Gambling Impact Study Commission 

Final Report 6–14 to -15 (1999) (quoting tribal leaders’ testimony to the Commission), available at http://govinfo.library.unt.edu/ngisc/reports/6.pdf; Ariz. Indian 

Gaming Ass’n, Annual Report FY 2007 (2008), available at http:// 

www.azindiangaming.org/images/annualreports/AIGAlAR07lLR.pdf. See Bay 

Mills, 134 S. Ct. at 2043 (Sotomayor, J., concurring) (IGRA makes tribes financial 

self-sufficient and ‘‘better positioned to fund their own sovereign functions, rather 

than relying on federal funding’’). These funds enable tribes to fund, among other 

things, social services to tribal elders, native language preservation programs, suicide prevention programs for tribal youth, and college scholarships for tribal students. Sarah S. Pearson, Am. Youth Policy Forum, Strengthening Indian Country 

Through Tribal Youth Programs 9 (2009), available at http://www.aypf.org/publications/documents/TYPReportfinall000.pdf; Kenneth W. Grant II et al., Native 

Nations Instit. for Leadership, Mgmt. & Policy & Harvard Project on Am. Indian 

Econ. Dev., Social and Economic Consequences of Indian Gaming in Oklahoma 15– 

24 (2003), available at http://nni.arizona.edu/resources/inpp/ 

2003lgrant.et.allJOPNAlsocial.economic.consequences.pdf; Norimitsu Onishi, 

With Casino Revenues, Tribes Push to Preserve Languages, and Cultures, N.Y. 

Times, June 16, 2012, http://www.nytimes.com/2012/06/17/us/chukchansi-tribein-california-pushes-to-preserve-language.html; Beacon Econs. LLC, Economic Impact Study: Measuring the Economic Impact of Indian Gaming on California (2012), 

available at http://www.cniga.com/20120625lCNIGAlDraft.pdf. See Teresa Joy 

Clay, Measuring the Impact of Reservation Gaming Revenues on Native American 

Education Achievement, 21 J. of Pub. Budgeting, Accounting & Fin. Mgmt. 58, 62– 

63 (2009), available at http://pracademics.com/attachments/article/761/ 

SymplArl2lClay.pdf; Jonathan B. Taylor, The Economic Impact of Tribal Government Gaming in Arizona: Report 11 (2012) available at https:// 

www.azindiangaming.org/images/assets/economic-impact.pdf; Press Release, 

NIGC, 2012 Indian Gaming Revenues Increase 2.7 Percent, available at http:// 

www.nigc.gov/LinkClick.aspx?fileticket=Fhd5shyZ1fM=. 

No government can function without dependable revenues, and for tribes this 

means relying on revenues from tribal economic development—particularly Indian 

gaming—to fund their operations and the services they provide to their members. 

The earnings from tribal economic development activities are as essential to Indian 

tribes as sales, property, or income taxes are to States and local governments. 

‘‘[T]ribal business operations are critical to the goals of tribal self-sufficiency because 

such enterprises in some cases ‘may be the only means by which a tribe can raise 

revenues.’’’ Bay Mills, 134 S.Ct. at 2043 (Sotomayor, J., concurring) (quoting Catherine T. Struve, Tribal Immunity and Tribal Courts, 36 Ariz. St. L.J. 137, 169 

(2004)). ‘‘This is due in large part to the insuperable (and often state-imposed) barriers Tribes face in raising revenue through more traditional means.’’ Id. More specifically, ‘‘States have the power to tax certain individuals and companies based on 

Indian reservations, making it difficult for Tribes to raise revenue from those 

sources.’’ Id. (citation omitted). Indian gaming is critical to filling this gap. 

B. Under Settled Federal Law, Tribal Inherent Sovereign Authority Is Abrogated 

Only When Congress Clearly Intends That Result 

If any change is to be made in the self-determination policy, or in the rights on 

which tribes rely to implement that policy, it is up to Congress—not the Board— 

to make that decision. As the Supreme Court very recently reaffirmed, ‘‘unless and 

‘until Congress acts, the tribes retain’ their historic sovereign authority.’’ Bay Mills, 

134 S. Ct. at 2030 (quoting United States v. Wheeler, 435 U.S. 313, 323 (1978)). To 

modify tribal powers, it must be shown that Congress intended that result, for 

‘‘courts will not lightly assume that Congress in fact intends to undermine Indian 

self-government.’’ Id. at 2031–32 (citing Santa Clara Pueblo v. Martinez, 436 U.S. 

49, 58–60; Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 18 (1987); United States v. 

Dion, 476 U.S. 734, 738–39 (1986)). 

The standards that apply to determine whether Congress has modified tribal powers are strict, as shown by the cases relied on by the Court in Bay Mills. The Indian 

Civil Rights Act, 25 U.S.C. ch. 15 (as amended), does not authorize actions for declaratory or injunctive relief against Indian tribes and will not be held to do so ‘‘unless and until Congress makes clear its intention to permit the additional intrusion 

71 

on tribal sovereignty that adjudication of such actions in a federal forum would 

represent... .’’ Santa Clara Pueblo, 436 U.S. at 72. Statutory silence does not abrogate rights of tribal self-government because silence does not reflect congressional 

intent to do so. LaPlante, 480 U.S. at 17 (the general diversity statute, 28 U.S.C. 

§ 1332, does not limit tribal rights of self-government because it ‘‘makes no reference 

to Indians and nothing in the legislative history suggests any intent to render inoperative the established federal policy promoting tribal self-government’’). ‘‘‘Because 

the Tribe retains all inherent attributes of sovereignty that have not been divested 

by the Federal Government, the proper inference from silence . . . is that the sovereign power... remains intact.’’’ Id. at 18 (quoting Merrion v. Jicarilla Apache 

Tribe, 455 U.S. 130, 149 n.14 (1982)) (ellipses in original). And finally, ‘‘Congress’ 

intention to abrogate Indian treaty rights [must] be clear and plain,’’ Dion, 476 U.S. 

at 738, which requires ‘‘clear evidence that Congress actually considered the conflict 

between its intended action on the one hand and Indian treaty rights on the other, 

and chose to resolve the conflict by abrogating the treaty,’’ id. at 739–40. 

Nothing in the NLRA satisfies these strict standards, for the Act says nothing at 

all about Indian tribes, and under settled law its silence leaves sovereign power intact. Accordingly, the Board’s attempt to apply the Act to Indian tribes violates federal law. Whether to limit tribal sovereign authority is a decision for Congress to 

make, not the Board. Bay Mills, 134 S. Ct. at 2031–32. 

C. Applying The NLRA To Indian Tribes Is Contrary To Federal Law And Doing 

So Under The San Manuel Test Would Abrogate Their Rights Of SelfGovernment 

The test applied by the Board to determine whether to exercise jurisdiction over 

Indian tribes compounds the illegality of its actions. Under the San Manuel test, 

the Board decides, on a case by case basis, whether a tribal activity is a governmental function or a commercial activity, and it then asserts authority over any activity it deems to be commercial. San Manuel, 341 N.L.R.B. at 1063. The Board’s 

reliance on that distinction usurps Congress’s authority to decide such matters, and 

if allowed to go unchecked, the Board’s assertion of authority will abrogate tribal 

sovereignty by interfering with tribal self-government and making the pursuit of 

tribal economic self-sufficiency dependent on the Board’s permission. S. 248 is urgently needed to stop the Board from pursuing that result. 

1. The commercial-governmental distinction the Board relies on in the San Manuel 

test violates federal law. 

The San Manuel test relies on a distinction between commercial and governmental activity which is contrary to federal law. The Board claims that all ‘‘commercial enterprises’’ (whatever the Board determines they may be) are subject to the 

NLRA; and while ‘‘traditional tribal or government functions’’ may not be subject 

to the Act, that depends on how much ‘‘leeway’’ the Board decides to allow the tribe. 

San Manuel, 341 N.L.R.B. at 1063. The Board also asserts discretionary power to 

‘‘balance the Board’s interest in effectuating the policies of the Act with the desire 

to accommodate the unique status of Indians in our society and legal culture.’’ Id. 

at 1062. That test violates federal law because Congress and the Supreme Court 

have both determined that Indian tribes conduct gaming in their sovereign capacity. 

See supra at 16–19. Furthermore, if any such distinction were to be made, it could 

only be made by Congress. As the Supreme Court recently reaffirmed, ‘‘[t]he special 

brand of sovereignty the tribes retain—both its nature and its extent—rests in the 

hands of Congress.’’ Id. at 2037 (citations omitted). In Bay Mills, the Court held that 

it would not abrogate tribal sovereign immunity when a tribe engages in commercial 

activity because to do so would usurp Congress’ authority. 134 S. Ct. at 2039. If the 

Supreme Court will not make this distinction, neither can the Board. 

2. Applying the NLRA to Indian tribes would deny them the right to determine their 

own form of government. 

Furthermore, applying the commercial-governmental distinction to tribal activity 

plainly abrogates tribal inherent sovereign authority. Indian tribes have the power 

to structure their governments as they see fit, Santa Clara Pueblo, 436 U.S. at 62– 

64, and ‘‘to undertake and regulate economic activity within the reservation,’’ Mescalero Apache Tribe, 462 U.S. at 335, including gaming activity, 25 U.S.C. § 2710; 

Cabazon, 480 U.S. at 221–22. Under this authority, a tribe may engage in economic 

activity through a tribal agency or department, see, e.g., Cabazon, 480 U.S. at 204– 

05 & n.2, a tribal enterprise, see, e.g., White Mountain Apache Tribe v. Bracker, 448 

U.S. 136, 139 (1980), or a corporation chartered and owned by the tribe, see, e.g., 

Inyo Cnty., Cal. v. Paiute-Shoshone Indians of the Bishop Cmty. of the Bishop Colony, 538 U.S. 701, 704 (2003). In making that choice, the tribe does not relinquish 

any of its sovereign authority—only Congress can modify tribal sovereign authority, 

72 

1 A person initiates an unfair labor practice proceeding by filing a complaint with a NLRB 

Regional Director. 29 U.S.C. § 160(b); 29 C.F.R. § 101.2. The Regional Director allows the parties 

to seek settlement by submitting to him or her legal arguments, statements of fact, offers of 

settlement, or proposals of adjustment. 29 C.F.R. § 101.7. If there is no settlement, the Regional 

Director refers the case to an Administrative Law Judge (ALJ), who holds an adversarial hearing between the charged party and the NLRB’s General Counsel. Id. § 101.10. See 29 U.S.C. 

§ 160(b) (authorizing the Board’s ‘‘designated agent’’ to take evidence at a complaint hearing). 

The ALJ issues a decision on the case, which is filed with the Board. 29 C.F.R. § 101.11. The 

parties can file exceptions to the ALJ’s decision with the Board, id. § 101.11(b), which then sits 

like an appellate court in review of the ALJ decision, eventually filing its own opinion and order 

on the case, id. § 101.12(a); 29 U.S.C. § 160(c). The Board’s order can be appealed to an appropriate federal circuit court by ‘‘any person aggrieved’’ by the order. 29 U.S.C. § 160(f); 29 C.F.R. 

§ 101.14. 

which requires a showing of clear congressional intent to impose that result. See 

supra at 20–21. The NLRA does not do so. See supra at 4–13. 

The Board’s test is also completely unworkable. Under that test, a tribe cannot 

know whether a particular activity is ‘‘commercial’’ or ‘‘traditional’’ unless and until 

the Board decides that question, which the Board would not do so unless and until 

an unfair labor practice charge was filed with the Board under 29 U.S.C. § 160(b). 1

And even after the Board made its decision, a change in the activity could raise the 

question anew. To illustrate, many tribes provide a variety of medical services to 

their citizenry. As health care needs change, new services may be required—assisted 

living facilities or eyeglasses may be needed for elders, for example—would such a 

change mean that a previously ‘‘traditional’’ activity had become ‘‘commercial?’’ Or 

might the Board decide that the new program was ‘‘commercial’’ but existing programs remain ‘‘traditional?’’ And what if a tribe decided that in some instances it 

needed to charge a fee to help defray the cost of care, or if the composition of its 

workforce changed? A tribe could not know the answer to these questions unless 

and until a complaint was filed and adjudicated by the Board. 

And splitting the tribal government in half—as the Board’s test would do—would 

just be the beginning. The Board would then have authority to reorganize employees 

engaged in any activity it deems ‘‘commercial’’ into bargaining units under 29 U.S.C. 

§ 159(b). In making this determination, the Board would have no obligation to respect the tribe’s governmental structure, or organizational decisions, whether reflected in its constitution, laws, regulations, or policies. For example, different units 

might be recognized within each department or agency, or all persons doing the 

same kind of work for the tribe might comprise one unit, or perhaps some combination of the two. And each unit could demand that the tribe negotiate a collective 

bargaining agreement with it, and it alone. Id. § § 157, 159(a). 

Imposing such a process on the tribe would abrogate its right to structure its government as it chooses, Santa Clara Pueblo, 436 U.S. at 62–64, by subjecting each 

and every such decision to review by the Board to determine whether an activity 

was or was not governmental, it would abrogate the tribe’s right ‘‘to undertake and 

regulate economic activity,’’ Mescalero Apache Tribe, 462 U.S. at 335, by conditioning the exercise of that right on the application of the NLRA to so-called commercial activity, and it would violate the tribe’s right to make its own laws and be 

ruled by them, Williams v. Lee, 358 U.S. 217, 220 (1959), by allowing the Board to 

ignore tribal law in recognizing bargaining units. 

3. The right to strike would make a tribe’s ability to meet its governmental 

responsibilities dependent on its agreeing to meet the demands of tribal employees. 

Indian tribes also have the power to determine the terms on which they will employ members and nonmembers to fulfill the responsibilities of tribal government. 

This power is a lesser included element of the power to exclude non-Indians from 

the reservation. As the Supreme Court has made clear: ‘‘[n]onmembers who lawfully 

enter tribal lands remain subject to the tribe’s power to exclude them. This power 

necessarily includes the lesser power to place conditions on entry, on continued 

presence, or on reservation conduct... .’’ Merrion, 455 U.S. at 144. Accord Morris 

v. Hitchcock, 194 U.S. 384 (1904). That power is not extinguished when a tribe engages in commercial activity. Merrion, 455 U.S. at 146–47. Instead it ‘‘governs all 

contracts subject to the sovereign’s jurisdiction, and will remain intact unless surrendered in unmistakable terms.’’ Id. at 148. Tribal authority over employment relations is also an aspect of tribal inherent sovereign authority, under which ‘‘[a] tribe 

may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealings, contracts, leases, or other arrangements.’’ Montana, 450 U.S. at 

565–66 (citations omitted). In the exercise of these powers, a tribe plainly has auVerDate Mar 15 2010 13:27 Nov 04, 2015 Jkt 097405 PO 00000 Frm 00076 Fmt 6601 Sfmt 6621 S:\DOCS\97405.TXT JACK
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2 Replacing employees can be a long and arduous process. Tribes must comply with their own 

laws regarding hiring practices, including any applicable ordinances that require preference be 

given to tribal members in hiring. Tribes engaged in gaming activities must also comply with 

IGRA, which requires tribes to conduct background checks and license many employees of their 

gaming facilities. 25 U.S.C. § 2710(b)(2)(F). 

thority to prohibit a strike by its employees in order to ensure its ability to continue 

to operate its government and to meet its responsibilities to Indians and non-Indians who live, work and visit the reservation. 

If the NLRA applied to Indian tribes, it would divest the tribes of that power by 

securing to its employees the right to strike under section 7 of the NLRA, 29 U.S.C. 

§ 157. A strike at a tribal facility engaged in revenue raising activity would stop the 

generation of revenue until the end of the strike or until the tribe was able to replace all of its striking employees. 2 A strike—or even the threat of a strike—would 

put in jeopardy a tribe’s ability to meet its governmental responsibilities to Indians 

and non-Indians who live, work, and visit the reservation. And it would give the 

bargaining representatives of the tribe’s employees enormous power—a tribe would 

have to acquiesce to their demands or abdicate its responsibilities as a government. 

Unlike a private business, a government cannot wait out a strike. Its responsibilities to protect public safety and property and provide other essential government 

services are constant. The only way to prevent strikes would be for the tribe to negotiate a no-strike clause in a collective bargaining agreement—but at what price? 

How much is a government’s ability to operate worth? In plain terms, the right to 

strike would violate the right of self-government and the power to exclude by vesting the right to decide whether the government could operate in the hands of the 

bargaining representatives of its employees. 

President Franklin Roosevelt recognized and addressed exactly this problem in a 

letter to the President of the National Federation of Public Employees, written 

shortly after the NLRA was enacted. The President stated that ‘‘[u]pon employees 

in the Federal service rests the obligation to serve the whole people, whose interests 

and welfare require orderliness and continuity in the conduct of Government activities.’’ Letter from President Franklin D. Roosevelt to Luther C. Steward, President, 

Nat’l Fed’n of Fed. Emps. (Aug. 16, 1937), available at http:// 

www.presidency.ucsb.edu/ws/index.php?pid=15445 (‘‘1937 Roosevelt Letter’’). But ‘‘a 

strike of public employees manifests nothing less than an intent on their part to 

prevent or obstruct the operations of Government until their demands are satisfied.’’ 

Id. President Roosevelt called such action ‘‘unthinkable and intolerable.’’ Id. The 

President was correct, and his words apply equally to the public employees of Indian 

tribes. 

4. The collective bargaining process could require the tribe to negotiate the terms 

on which its sovereign enactments would apply to its employees. 

If the NLRA applied to Indian tribes, they would also be required to bargain with 

all Board-recognized units of employees over ‘‘wages, hours, and other terms and 

conditions of employment.’’ 29 U.S.C. § 158(d). That is simply not feasible. Like 

other government employers, the ‘‘terms and conditions’’ of employment by Indian 

tribes are typically set by duly enacted laws and regulations, which bind employees 

and government agency officials alike. Agency officials have no authority to bargain 

over the application of tribal laws and regulations, or to agree to make changes in 

those laws, much less to do so on different terms with different bargaining units. 

President Roosevelt understood this as well. ‘‘All Government employees should realize that the process of collective bargaining, as usually understood, cannot be 

transplanted into the public service.’’ 1937 Roosevelt Letter. The employer is the 

‘‘whole people, who speak by means of laws enacted by their representatives in Congress.’’ Id. As a result, administrative officials and employees are ‘‘governed and 

guided, and in many instances restricted, by laws which establish policies, procedures, or rules in personnel matters.’’ Id. 

If the collective bargaining process that is set forth in the NLRA were applicable 

to Indian tribes, any of the tribe’s laws affecting employment could be the subject 

of a collective bargaining demand, even laws and regulations that are required by 

federal law. For instance, IGRA requires that Indian tribes implement ordinances 

to require background checks, 25 U.S.C. § 2710(b)(2)(F)(i), and licensing, id. 

§ 2710(b)(2)(F)(ii)(I), of employees. If the tribe refused a request for collective bargaining over that ordinance—or any other tribal law—it would be up to the Board 

to determine whether the request fell within the definition of ‘‘terms and conditions’’ 

under § 158(d) of the Act; if so, collective bargaining would be required. In collectively bargaining over such terms, tribes would be placed in the intolerable position 

74 

of bargaining to keep their own laws in force and intact. This converts tribal laws 

to a negotiating position—nothing more. 

If the Board determined that such laws interfered with collective bargaining 

rights under 29 U.S.C. § 158(a)(1), or were discriminatory under § 158(a)(3), it could 

strike down even strike Indian-preference-in-employment laws, and drug and alcohol testing laws. Indian preference in employment has long been recognized by the 

Supreme Court as an effective tool to further self-governance. See Mancari, 417 U.S. 

at 535. And drug and alcohol testing are issues that must be considered by a tribe 

in making decisions on how to protect its employees’ health and safety as well as 

the integrity of Indian gaming. See 25 U.S.C. § 2702(2) (a primary purpose of IGRA 

is to assure that Indian gaming is conducted fairly and honestly). If the Board has 

jurisdiction over tribal governments, the Board could effectively invalidate such 

laws. 

And finally, any administrative or judicial decision of the tribe that resolved an 

employee dispute would be subject to review by the Board if the employee filed an 

unfair labor practice charge under 29 U.S.C. § 160(b). The Board would then determine whether enforcement of the decision constituted an ‘‘unfair labor practice.’’ Id. 

Subjecting tribal enactments to review by the Board is a violation of the tribe’s right 

to make its own laws and be governed by them. Tribes enact and enforce laws governing the reservation and the operation of their governments pursuant to their sovereign authority. Santa Clara Pueblo, 436 U.S. at 67. See Wheeler, 435 U.S. at 322. 

Subjecting tribal law to review in another sovereign’s tribunals displaces that authority. Santa Clara Pueblo, 436 U.S. at 67. Displacing tribal court authority over 

areas in which the tribe has jurisdiction, including commercial relations between 

members and non-members, ‘‘undermine[s] the authority of the tribal courts over 

Reservation affairs and hence would infringe on the right of the Indians to govern 

themselves.’’ Williams, 358 U.S. at 222. Such a divestment of tribal sovereign authority can only occur when Congress expressly permits it, see supra at 20–21, 

which Congress has not done here. See supra at 4–13. Even if the Board’s decision 

in such a case was ultimately overturned in federal court on appeal, the tribe would 

be subjected to years of costly litigation in order to secure that determination. Many 

tribes simply cannot afford that expense. 

And at the end of the collective bargaining process, the tribe would be subject to 

a de facto statute—the collective bargaining agreement—which would govern all 

conditions of employment, superceding any inconsistent tribal laws, and that agreement would be enforceable only by the Board under section 10(a) of the Act, 29 

U.S.C. § 160(a). This flips tribal sovereignty upside-down. It transforms tribal ordinances into the first offer in a negotiation with private actors. It gives bargaining 

representatives the power to pick and choose the tribal laws to which they will 

agree, and the amendments to those laws which they will require. And it gives the 

Board power to void tribal laws. These impacts would deprive Indian tribes the 

right to make their own laws and to be governed by them, Williams, 358 U.S. at 

220. 

IV. S. 248 Addresses The NLRB’s Overreach And Recognizes Tribal 

Authority 

S. 248 would amend section 2(2) of the NLRA, 29 U.S.C. § 152(2), to reaffirm that 

the Act does not apply to ‘‘any enterprise or institution owned and operated by an 

Indian tribe and located on its Indian lands... .’’ S. 248 § 2(1). Doing so would 

not create a new exception under the NLRA. Rather, it would reaffirm the understanding that Congress had when it enacted the NLRA—that it does not apply to 

Indian tribes—and restore a longstanding statutory exemption for Indian tribes that 

the Board has only recently—and erroneously—abandoned. In so doing, S. 248 

would prevent the Board from misusing its authority under the Act to interfere with 

tribal self-government and sovereign authority. 

Congress before has enacted laws to recognize inherent tribal sovereign authority 

when a judicial ruling applied federal law in a manner that restricted tribal sovereignty. In Duro v. Reina, 495 U.S. 676 (1990), the Supreme Court ruled that an 

Indian tribe’s courts lacked criminal jurisdiction over nonmember Indians. Congress 

subsequently amended the Indian Civil Rights Act of 1968, 25 U.S.C. § 1301(2), to 

make clear that Indian tribes have inherent sovereign authority to exercise criminal 

jurisdiction over all Indians. And the Supreme Court upheld Congress’s action in 

United States v. Lara, 541 U.S. 193 (2004). Clearly, Congress has the power to remove restrictions on inherent sovereign authority imposed by a court, or an agency, 

or by a statute. 

Similarly, in the Violence Against Women Reauthorization Act of 2013, § 904(b), 

Pub. L. No. 113–4, 127 Stat. 54, 121–22 (codified at 25 U.S.C. § 1304(b)), Congress 

recognized that, subject to certain procedural requirements, an Indian tribe has inVerDate Mar 15 2010 13:27 Nov 04, 2015 Jkt 097405 PO 00000 Frm 00078 Fmt 6601 Sfmt 6621 S:\DOCS\97405.TXT JACK
75 

herent sovereign authority to exercise criminal jurisdiction over non-Indians who 

commit crimes of domestic violence against Indians. In enacting this law, Congress 

lifted a restriction on tribal inherent sovereignty over non-Indians imposed by the 

Supreme Court in Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). So, 

even if the NLRA gave the Board the legal authority to place limitations on inherent tribal sovereign authority—and it does not—Congress can remove those restrictions and restore the full breadth of tribal sovereignty, as it has done in other contexts. 

Congress has the authority—and, we respectfully submit, under the federal trust 

responsibility, the duty—to enact S. 248 to protect Indian tribes’ inherent authority 

to regulate and engage in economic activity, to regulate those entering upon tribal 

lands, and to administer tribal governments that are answerable to the tribal citizenry, rather than employees’ bargaining representatives. Doing so will enable tribal governments to continue relying on revenues from tribal enterprises to fund essential governmental services. Finally, it will prevent the Board from nullifying tribal law and denying recognition to tribal judicial and administrative fora over employment matters. 

In short, S. 248 should be enacted to protect tribal sovereignty from an entity— 

the Board—that claims the right to decide for Congress when Indian tribes are and 

are not sovereign. 

PREPARED STATEMENT OF HON. BO MAZZETTI, CHAIRMAN, RINCON BAND OF LUISEN ̃ O

INDIANS

Introduction 

Mr. Chairman and Members of the Committee, my name is Bo Mazzetti. I serve 

as Chairman of the Rincon Band of Luisen ̃ o Indians (‘‘Rincon Band’’), one of five 

elected members of the Rincon Band Tribal Council. On behalf of the Rincon Band, 

I would like to thank you for allowing me to submit this written testimony regarding S. 248, the ‘‘Tribal Labor Sovereignty Act of 2015’’ and its critical importance 

for the preservation of the sovereignty of the Rincon Band of Luiseno Indians and 

other Tribal governments nationwide. 

About The Rincon Band And Harrah’s Southern California Resort 

The Rincon Band of Luisen ̃ o Indians governs a 5,000-acre reservation in Valley 

Center, and has 500 plus members. Established in 1875, the Rincon Band is a sovereign government, recognized by the U.S. Constitution, and federal government. A 

democratically elected tribal council has the executive, legislative, and legal authority to protect and promote the welfare of the tribal members and lands with powers 

equal to a city, county, or state. The Rincon Band owns Harrah’s Resort Southern 

California, a gaming facility that supports approximately 1,200 jobs in North San 

Diego County, with a total of $98 million in annual labor income and $17.5 million 

in tax revenues to state and local governments. The profits from Harrah’s Resort 

Southern California and other commercial enterprises are used to provide services 

such as police and environmental protection, health care, senior, youth and cultural 

programs, economic development and a tribal court. The tribal government also 

funds a tribal fire department, ambulance and paramedic unit, as well as increased 

Sheriffs’ shifts that service the reservation and neighboring communities. Rincon’s 

tribal enterprises are significant contributors to the North San Diego County economy, through job creation, purchase of local products and services, and tax generation. Annual community donations to regional non-profits support quality of life programs. The tribal council consists of Chairman Bo Mazzetti, Vice Chairwoman 

Stephanie Spencer, and Council Members Steve Stallings, Laurie E. Gonzalez and 

Alfonso Kolb, Sr. 

The National Labor Relations Act and Tribal Governments 

Congress expressly excluded federal and state governments from collective bargaining or related rights protected by the National Labor Relations Act of 1935 

(NLRA). For many years after enactment of the NLRA, the National Labor Relations Board (NLRB) included Indian tribal governments within the NLRA’s government exemption until San Manuel Indian Bingo & Casino v. NLRB in 2007. In that 

case, the NLRB abandoned its decades-long position on the exemption of tribal governments from the definition of employer without any clear expression from Congress to do so in the text of the NLRA. Adopting S. 248 would confirm that Indian 

tribal governments are sovereigns with retained rights to self-government over their 

members and territory, not private employers subject to the NLRA. 

76 

1 § 2(a) of the TLRO exempts: (1) supervisors, (2) gaming commission, (3) security, (4) cage operators, and (5) dealers. 2 § 8 of the TLRO, Access to Eligible Employees. 3Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992). 4 § 11 of the TLRO, Collective bargaining impasse. 5 § 11 of the TLRO, Collective bargaining impasse. 6 25 U.S.C. § 158(b)(4)(ii)(A), (B) and (D). 7 § § 13(b), (c) and (d) of the TLRO. 

Conflicts Between the NLRA and the Rincon Band TLRO 

In the late 90’s, during gaming compact negotiations, the issue of labor relations 

was critical to the State of California. Discussions on that issue ultimately resulted 

in several Tribal governments, including the Rincon Band of Luisen ̃ o Indians, consenting to a Tribal Labor Relations Ordinance (TLRO) which was mandated by the 

1999 Proposition 1A Compact. At the conclusion of litigation in Rincon Band of 

Luisen ̃ o Indians v. Brown, the TLRO was later extended into the Rincon Band Secretarial Procedures issued on February 8, 2013 by the Secretary of the Interior. 

With numerous lawsuits pending in the Second, Sixth, Tenth, D.C. and Ninth Circuits, on the issue of the NLRA applicability to Indian tribal governments, the 

Rincon Band submitted to the Assistant-Secretary of Indian Affairs proposed 

amendments to the TLRO because it is not consistent with the NLRA. These inconsistencies establish a conflict between two co-equal federal frameworks that places 

the Rincon Band gaming operation at greater risk of non-compliance than other 

tribal governments. Since submission on May 7, 2014, the proposed amendments are 

still pending approval by the Assistant-Secretary of Indian Affairs. 

The purpose of the proposed amendments are twofold, to: (1) minimize the scope 

of future litigation that might possibly occur with the NLRB by amending certain 

provisions of the TLRO that are inconsistent with the rights granted to employees 

and unions under the NLRA; and, (2) position the Rincon Band to successfully defend an NLRB legal challenge by amending the dispute resolution provisions without conceding the Rincon Band’s tribal sovereignty and right to self-government to 

the jurisdiction of the NLRB, an institution without a shred of competence and expertise in the field of federal Indian law. The proposed amendments eliminate key 

differences between the TLRO and the NLRA with respect to the rights of employees to organize and constrain the potential application of the NLRA to the Rincon 

Band under the particular framework of the TLRO in the Secretarial Procedures. 

TLRO Provisions Proposed for Amendment 

The amendments revise provisions of the TLRO that appear to substantively deviate from the NLRA. First, the scope of employee exemptions under the TLRO is too 

broad to survive an NLRB challenge. Generally, the NLRA does not cover government employees, agricultural workers, independent contractors and supervisors. The 

existing TLRO exempts five classes of employees from the application of the TLRO. 1

The amendments reduce this class of five to three by deleting cage workers and 

dealers because under the NLRA neither class of worker would be exempt. If approved by the Assistant-Secretary, this proposed revision would make this provision 

of the TLRO consistent with the NLRA. 

Second, union access to gaming employees under the TLRO has been revised to 

be consistent with the ‘‘reasonable’’ access requirement of the NLRA. The existing 

TLRO mandates union access to employee break rooms and lockers and allows employees to post written materials therein. 2 Under the NLRA, employers are required 

to provide unions reasonable access to employees to accommodate the exercise of 

their Section 7 rights. 3 These proposed revisions align the TLRO with the NLRA 

by imposing reasonable time and place restrictions with respect to union accessibility to gaming employees and posting of written materials in non-work areas. 

Third, the TLRO provides a right to strike only in the event of a collective bargaining impasse. 4 The TLRO’s blanket ban on strikes and boycotts under any other 

circumstance would likely violate the NLRA because the right is not qualified by 

the unlawful purposes proscribed by the NLRA. 5 If approved by the Assistant-Secretary, the amendments proposed for this section of the TLRO includes those actions 

proscribed in the NLRA. 6

Fourth, the TLRO establishes four levels of dispute resolution proceedings. Any 

disputes arising under the TLRO must first be heard by a designated tribal body 

(e.g., Tribal Council or Grievance Board) before a second-level appeal can be made 

to the Tribal Labor Panel, or a thirdlevel of appeal can be lodged with the Tribal 

Court or a fourth-level of appeal can be filed in federal court. 7 The proposed amendments eliminate distinctions between the types of cases subject to dispute resolution 

and streamline the dispute resolution process by reducing the four levels of dispute 

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resolution to three by eliminating the requirement for a proceeding before the Tribal 

Council. When the TLRO was enacted, the Rincon Tribal Court did not exist. In 

place of the Tribal Council, the proposed revisions establish the Tribal Labor Panel, 

a mutually selected group of 3 arbiters, as the first level of dispute resolution with 

second and third level rights of appeal to the Tribal Appellate Court and federal 

court. The TLRO’s dispute resolution provisions manifest the exercise of tribal sovereignty and the right to self-government by a modern tribal government. And, even 

though the TLRO dispute resolution structure conflicts with that of the NLRA, 

which would establish the NLRB as the exclusive arbiter of disputes, neither the 

Tribe nor the Department of the Interior should amend the TLRO to jettison these 

fundamental attributes of tribal governance in favor of an institution, such as the 

NLRB, that is without any institutional competency or expertise in applying principles of federal Indian law. 

Summary 

Adopting S. 248 removes the risk that the NLRB could find that the Rincon 

Band’s compliance with the TLRO constitutes an unfair labor practice under the 

NLRA. For the Rincon Band, S. 248 provides certainty that commercial activity and 

labor relations on the Rincon Reservation will be exclusively governed by the TLRO 

and the Secretarial Procedures framework, amended or not. Passage of S. 248 would 

protect tribal sovereignty by clarifying congressional intent to include tribal governments within the government exemption of the NLRA and end litigation pending 

in the Second, Sixth, Tenth, D.C. and Ninth Circuits on this issue. 

The Rincon Band respectfully requests that Congress enact S. 248 and confirm 

that Tribal governments possess status equivalent to the federal government, states 

and their political subdivisions. S. 248 would provide a clear statement from Congress that tribal governments are exempt from the NLRA consistent with two centuries of Federal Indian policy of congressional support for tribal sovereignty, the 

right to self-government and self-determination. 

Mr. Chairman and Members of the Committee, I thank you for your time and consideration. 

PREPARED STATEMENT OF HON. THOMAS BEAUTY, CHAIRMAN, YAVAPAI-APACHE

NATION


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April 29, 2015 

Hon. John Barrasso, Chairman 

Hon. Jon Tester, Vice Chairman 

Senate Committee on Indian Affairs 

Hart Senate Office Building 

Washington, DC 

Dear Chairman Barrasso and Vice Chairman Tester: 

We, the undersigned Indian tribal nations, tribal corporations, trade associations 

and state and local chambers of commerce, write in strong support of S. 248, the 

‘‘Tribal Labor Sovereignty Act of 2015,’’ which would respect and promote tribal sovereignty by affirming the rights of tribal governmental employers to determine their 

own labor practices on their own lands. 

In 1935, the National Labor Relations Act (NLRA) was enacted to ensure fair 

labor practices, but excluded federal, state, and local governmental employers from 

its reach. Though the Act did not expressly treat Indian tribes as governmental employers, the National Labor Relations Board (NLRB) respected the sovereign status 


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of tribal governmental employers for close to seventy years before reversing course 

in 2004. 

Since its decision in San Manuel Indian Bingo (341 NLRB No. 138, 2004), the 

NLRB has been aggressively asserting jurisdiction over tribal labor practices when 

it determines tribal government employers are acting in a ‘‘commercial’’ rather than 

a ‘‘governmental’’ capacity—an analysis it does not apply to state or local government employers. 

S. 248 builds upon a principle that has been amply demonstrated by Indian tribes 

across the country: when tribal sovereignty is respected and acknowledged, economic success follows. S. 248 would prevent an unnecessary and unproductive overreach by the NLRB into the sovereign jurisdiction of tribal governments. By amending the NLRA to expressly treat tribal government employers and their enterprises 

and institutions the same as it treats state and local government employers, S. 248 

would provide certainty and clarity to ensure that tribal ordinances relating to labor 

practices would be respected. This approach would best meet the needs of the tribes 

and the American business community more generally. 

The undersigned groups strongly support S. 248, which would build upon recent 

congressional actions affirming tribal sovereignty such as the enactment of the Tribal General Welfare Exclusion Act in September, 2014. We urge you to support this 

important bill and to work towards its swift passage. 

Sincerely, 

American Indian Chamber of Commerce of South Carolina (SC) 

American Indian Infrastructure Association (WY) 

Arctic Slope Native Association (AK) 

Arctic Slope Regional Corporation (AK) 

Arizona Chamber of Commerce and Industry (AZ) 

Battle Creek Area Chamber of Commerce (MI) 

Big Valley Band of Pomo Indians of the Big Valley Rancheria (CA) 

Brainerd Lakes Chamber of Commerce (MN) 

Chickasaw Nation (OK) 

Choctaw Nation of Oklahoma (OK) 

Confederated Tribes of Siletz Indians (OR) 

Confederated Tribes of the Chehalis Reservation (WA) 

Confederated Tribes of the Colville Reservation (WA) 

Connecticut Business and Industry Association (CT) 

Dine ́ Development Corp a wholly owned Navajo Nation business (AZ, NM) 

Durango Chamber of Commerce (CO) 

Greater Flagstaff Chamber of Commerce (AZ) 

Ho-Chunk Nation (WI) 

Jamestown S’Klallam Tribe (WA) 

Little River Band of Ottawa Indians (MI) 

Mashantucket Pequot Tribal Nation (CT) 

Minnesota American Indian Chamber of Commerce (MN) 

Mohegan Tribe of Connecticut (CT) 

Muscogee (Creek) Nation (OK) 

National Center for American Indian Enterprise Development (AZ) 

National Congress of American Indians (DC) 

National Native American Bar Association (AZ) 

National Native American Chamber of Commerce (MO) 

Native American Contractors Association (DC) 

Nez Perce (ID) 

Norman Chamber of Commerce (OK) 

Oklahoma Indian Gaming Association (OK) 

Pechanga Band of Luisen ̃ o Indians (CA) 

Penobscot Indian Nation (ME) 

Prairie Island Indian Community (MN) 

Quapaw Tribe of Oklahoma (OK) 

Red Cliff Band of Lake Superior Chippewa Indians (WI) 

Rincon Band of Luisen ̃ o Indians (CA) 

Rocky Mountain Indian Chamber of Commerce (NE) 

Rocky Mountain Tribal Leaders Council (MT) 

Saginaw Chippewa Indian Tribe (MI) 

San Diego East County Chamber of Commerce (CA) 

Sault Ste. Marie Tribe of Chippewa Indians (MI) 

Seldovia Village Tribe (AK) 

Shingle Springs Band of Miwok (CA) 

Soboba Band of Luisen ̃ o Indians (CA) 

Southern Ute Indian Tribe (CO) 

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Standing Rock Sioux Tribe (ND, SD) 

Sycuan Band of the Kumeyaay Tribe (CA) 

The Chamber Grand Forks/East Grand Forks (ND, MN) 

TwinWest Chamber of Commerce (MN) 

U.S. Chamber of Commerce (DC) 

United South and Eastern Tribes (TN) 

Viejas Band of Kumeyaay Indians (CA) 

Wayland Area Chamber of Commerce (MI) 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. AL FRANKEN TO

HON. KEITH ANDERSON

Questions. Mr. Griffin mentioned in his testimony that other labor laws—the 

Americans with Disabilities Act, the Occupational Safety and Health Act, and the 

Employee Retirement Income Security Act—have also been extended to cover tribes. 

Are any of the tribes represented today advocating to exempt tribal enterprises from 

these other labor laws? What is special about the National Labor Relations Act? 

Answer. No, S. 248 does not in any way affect the ADA, OSHA, or ERISA. S. 248 

addresses only the NLRA, amending it to expressly clarify that the definition of excluded governmental employers specifically includes tribal government employers. 

The Shakopee Mdewakanton Sioux Community is a tribal government employer. 

It is not seeking legislative or administrative or judicial relief to exempt any of its 

tribal government enterprises from the ADA, OSHA, or ERISA. Enactment of S. 248 

would amend only the NLRA, and would not affect the ADA, OHSA, ERISA, or any 

other federal statute. 

The NLRA, unlike the ADA, OSHA, or ERISA, deals with the rights of employers 

and employees in the private sector as it relates to organizing and engaging in collective bargaining and in workplace strikes. The provisions of the NLRA were never 

applied to tribal or any other governmental employers. Then in 2004, the NLRB 

suddenly shifted and began to treat tribal governmental employers operating on 

tribal lands as if they were private sector employers for purposes of the NLRA. 

Overturning 70 years of precedence, the NLRB in 2004 reinterpreted the NLRA to 

provide it with authority to decide whether particular employment activity of a tribal government employer is ‘‘commercial’’ (over which the NLRB asserted NLRA jurisdiction) or ‘‘governmental’’ (over which the NLRB asserted no NLRA jurisdiction). 

The NLRB’s changed position was an affront to tribal sovereignty. Tribal sovereignty must, at a minimum, mean that a tribe itself, not the NLRB, alone may 

decide whether the tribe’s activity is governmental. If tribal government sovereignty 

is to be respected and given meaning in the context of tribal governments acting 

as employers, a tribal government alone (not the NLRB) should have the right to 

set its own collective bargaining laws that apply to its own conduct as a governmental employer. 

The NLRA is different from the ADA, OSHA, and ERISA in that it focuses on 

the collective bargaining rights of employees of non-governmental employers. Unlike 

the ADA, OSHA and ERISA, which are administered and enforced by the U.S. Department of Justice and other federal agencies each of which has a government to 

government relationship with each tribal government, the NLRA is overseen by the 

NLRB whose orders are implemented by private sector, third-parties known as labor 

unions who have no government-to-government relationships with tribal governments. 

The clarification proposed by S. 248 would not vest tribal governments with territorial sovereignty and authority to set labor relations for private sector employers 

within Indian Country. S. 248 addresses only tribal government sovereignty and authority to set labor relations for tribes themselves as governmental employers, including all of their tribal government enterprises that are designed to raise governmental revenues. S. 248 would expressly treat tribal governments like state governments are treated, similar to how Congress has amended the Federal Emergency 

Management Act, the Federal Unemployment Tax Act, and the Federal Tort Claims 

Act to treat tribal governments as are other governments. 

Thank you for this opportunity to respond. 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. HEIDI HEITKAMP TO

RICHARD F. GRIFFIN, JR. 

Question 1. In your testimony, you mention that you consulted on a case-by-case 

basis with tribes that would be impacted by jurisdictional expansion under the National Labor Relations Act (NLRA). Could you please explain if you also plan to conVerDate Mar 15 2010 13:27 Nov 04, 2015 Jkt 097405 PO 00000 Frm 00086 Fmt 6601 Sfmt 6621 S:\DOCS\97405.TXT JACK
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sult all tribes on a general basis as stipulated in Executive Order 13175 and updated in the President’s November 2009 Executive Memorandum? I have heard from 

many tribes who do not feel the NLRB is adequately working with them on a government-to-government basis, especially since the agency made the unilateral decision to reverse its jurisdiction. 

Answer. Consistent with Executive Order 13175, the Agency has and will continue to consult with Indian tribes who are potentially subject to the Board’s jurisdiction. As I stated in my testimony, General Counsels for the Agency, including 

myself, have consulted with many tribes since the San Manuel decision including, 

but not limited to, the Saginaw Chippewa Indian Tribe, the Mashantucket Pequot 

Tribal Nation, and the Little River Band of Ottawa Indians. Following the principles of the President’s Executive Order, the Agency will continue its consultations 

with tribes regarding the Act. 

Question 2. If possible, could you describe some examples of insufficient personnel 

protections under tribal employers; are these practices widespread? 

Answer. Given that the NLRB does not have independent investigative authority, 

the Agency is only able to investigate charges that are initiated by individual parties. As a result, it would be difficult to determine the extent to which the practices 

of tribal enterprises across the country may violate the Act. In those cases where 

charges have been filed and merit has been determined, individual tribal enterprises 

have been found to have violated the act by, for example, disciplining or terminating 

employees who have engaged in union organizing activities. 

Question 3. Further, are there resources in place to help tribes access technical 

assistance to avoid certain practices? If there are best practices, how do you work 

with tribes to provide or disseminate such assistance? 

Answer. The NLRB is committed to ensuring that workers and businesses, including tribal enterprises, are informed of their rights and obligations under the National Labor Relations Act and maintains an outreach program to educate individuals and groups regarding the statute. The Agency’s outreach program includes a 

Speakers’ Bureau of NLRB representatives who are available to make presentations 

to a variety of entities, including tribal enterprises. The Agency also maintains a 

free mobile application for iPhone and Android users to provide individuals with information regarding the National Labor Relations Act. Additionally, substantive information is available on the Agency’s public website, including, among other things, 

a description of the Act and its provisions, along with copies of the Board’s decisions, rules, and regulations. 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. HEIDI HEITKAMP TO

RICHARD A. GUEST

Question 1. In your testimony, you mention the California labor ordinances created in partnership with local tribes to provide workers the right to unionize and 

collectively bargain. I think it’s a show of resolve how California tribes worked with 

the state to develop the ordinance. Has similar collaboration and agreements been 

effective in other states in order to provide similar labor protections? 

Answer. To my knowledge, there has not yet been similar collaboration among 

tribes, state officials and unions to reach agreement on provisions for workers to organize and collectively bargain pursuant to a tribal-state gaming compacts under 

the Indian Gaming Regulatory Act. 

Question 2. How has the National Labor Relations Act (NLRA) affected the ability 

of tribes to include Indian preference when hiring within their enterprises? Do you 

see fewer or more tribal members being employed after the change in the position 

of the NLRB? 

Answer. The unemployment rate on Indian reservations is much higher than elsewhere in the Country. One of the primary goals of any Indian tribe is to provide 

employment opportunities for its members. Most Indian tribes have enacted laws requiring employers on reservation to give preference to Indians in all phases of employment—recruitment, hiring, training, promotion, etc. Congress recognized and 

protected these Indian preference laws in Title VII of the Civil Rights Act, which 

excludes Indian tribes from the definition of ‘‘employer,’’ and exempts businesses ‘‘on 

or near an Indian reservation’’ from coverage in order to allow preferential hiring 

of Indians. 42 USC 2000e(b) and e-2(i). 

Application of the NLRA to Tribal enterprises would jeopardize this right to require and enforce Indian preference laws as to the Tribe’s own employees. Because 

Indian preference laws generally affect employees’ rights to promotion, training and 

retention, they constitute a mandatory subject of collective bargaining under the 

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NLRA. 29 USC 158(a)(5); NLRB, Basic Guide to the National Labor Relations Act 

20 (rev. ed. 1997) (procedures for discharge, layoff or recall are mandatory subjects 

of bargaining). Thus, an Indian tribe would be obligated to bargain with a union 

to retain its sovereign right to apply its Indian preference law and to create employment opportunities for its members. The union’s duty to represent all members of 

the bargaining unit makes it likely that the union would object to an Indian preference law that benefits only some of the members of the unit. The union might 

insist that the Indian preference law not apply at all, or seek to condition its acceptance of the preferences on concessions by the Tribe on other issues. Requiring an 

Indian tribe to bargain to maintain its right to impose Indian preference laws seriously interferes with its core retained Tribal rights to make and impose its own 

laws, govern its economic enterprises, govern relations with its members, and govern its relations with non-members who voluntarily enter into a consensual employment relationship with the Tribe. 

At present, litigation by Indian tribes against the NLRB and against application 

of the NLRA to tribal enterprises is on-going. Only time—and a failure by Congress 

to enact S. 248 and provide parity for tribal governments under the NLRA—will 

provide an answer to whether fewer or more tribal members are being employed 

after the change in the position of the NLRB. 

Once again, thank you for the opportunity to provide this testimony for consideration by members of the Senate Committee on Indian Affairs. 

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