```

[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]

 
        H.R. 16, TRIBAL LABOR RELATIONS RESTORATION ACT OF 2005

=======================================================================

                                HEARING

                               before the

              SUBCOMMITTEE ON EMPLOYER-EMPLOYEE RELATIONS

                                 of the

                         COMMITTEE ON EDUCATION
                           AND THE WORKFORCE
                     U.S. HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               __________

                             July 20, 2006

                               __________

                           Serial No. 109-48

                               __________

  Printed for the use of the Committee on Education and the Workforce

 Available via the World Wide Web: http://www.access.gpo.gov/congress/
                                 house
                                   or
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                                 ______

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                COMMITTEE ON EDUCATION AND THE WORKFORCE

            HOWARD P. ``BUCK'' McKEON, California, Chairman

Thomas E. Petri, Wisconsin, Vice     George Miller, California,
    Chairman                           Ranking Minority Member
Michael N. Castle, Delaware          Dale E. Kildee, Michigan
Sam Johnson, Texas                   Major R. Owens, New York
Mark E. Souder, Indiana              Donald M. Payne, New Jersey
Charlie Norwood, Georgia             Robert E. Andrews, New Jersey
Vernon J. Ehlers, Michigan           Robert C. Scott, Virginia
Judy Biggert, Illinois               Lynn C. Woolsey, California
Todd Russell Platts, Pennsylvania    Ruben Hinojosa, Texas
Patrick J. Tiberi, Ohio              Carolyn McCarthy, New York
Ric Keller, Florida                  John F. Tierney, Massachusetts
Tom Osborne, Nebraska                Ron Kind, Wisconsin
Joe Wilson, South Carolina           Dennis J. Kucinich, Ohio
Jon C. Porter, Nevada                David Wu, Oregon
John Kline, Minnesota                Rush D. Holt, New Jersey
Marilyn N. Musgrave, Colorado        Susan A. Davis, California
Bob Inglis, South Carolina           Betty McCollum, Minnesota
Cathy McMorris, Washington           Danny K. Davis, Illinois
Kenny Marchant, Texas                Raul M. Grijalva, Arizona
Tom Price, Georgia                   Chris Van Hollen, Maryland
Luis G. Fortuno, Puerto Rico         Tim Ryan, Ohio
Bobby Jindal, Louisiana              Timothy H. Bishop, New York
Charles W. Boustany, Jr., Louisiana  [Vacancy]
Virginia Foxx, North Carolina
Thelma D. Drake, Virginia
John R. ``Randy'' Kuhl, Jr., New 
    York
[Vacancy]

                       Vic Klatt, Staff Director
        Mark Zuckerman, Minority Staff Director, General Counsel
                                 ------                                

              SUBCOMMITTEE ON EMPLOYER-EMPLOYEE RELATIONS

                      SAM JOHNSON, Texas, Chairman

John Kline, Minnesota, Vice          Robert E. Andrews, New Jersey
    Chairman                           Ranking Minority Member
Howard P. ``Buck'' McKeon,           Dale E. Kildee, Michigan
    California                       Donald M. Payne, New Jersey
Todd Russell Platts, Pennsylvania    Carolyn McCarthy, New York
Patrick J. Tiberi, Ohio              John F. Tierney, Massachusetts
Joe Wilson, South Carolina           David Wu, Oregon
Marilyn N. Musgrave, Colorado        Rush D. Holt, New Jersey
Kenny Marchant, Texas                Betty McCollum, Minnesota
Bobby Jindal, Louisiana              Raul M. Grijalva, Arizona
Charles W. Boustany, Jr., Loiusiana  George Miller, California, ex 
Virginia Foxx, North Carolina            officio
[Vacancy]

                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on July 20, 2006....................................     1

Statement of Members:
    Hayworth, Hon. J.D., a Representative in Congress from the 
      State of Arizona...........................................     5
        Prepared statement of....................................     7
        Letters of support for H.R. 16...........................    38
    Johnson, Hon. Sam, Chairman, Subcommittee on Employer-
      Employee Relations, Committee on Education and the 
      Workforce..................................................     2
        H.R. 16, the Tribal Labor Relations Restoration Act of 
          2005...................................................     1
        Prepared statement of....................................     3

Statement of Witnesses:
    Garcia, Hon. Joe, president of the National Congress of 
      American Indians and governor of Ohkay Owingeh (San Juan 
      Pueblo)....................................................    25
        Prepared statement of....................................    27
    Harvey, Philip L., associate professor of law and economics, 
      Rutgers School of Law......................................    20
        Prepared statement of....................................    22
    Johnson, Hon. Ronald, assistant secretary/treasurer of the 
      Prairie Island Indian Community............................    15
        Prepared statement of....................................    17

Additional Submissions:
    Marchand, Hon. Michael, chairman, Confederated Tribes of the 
      Colville Reservation, prepared statement...................    33
    Bozsum, Bruce ``Two Dogs,'' chairman, Mohegan Tribal Council, 
      letter of support..........................................    36

        H.R. 16, TRIBAL LABOR RELATIONS RESTORATION ACT OF 2005

                              ----------                              

                        Thursday, July 20, 2006

                     U.S. House of Representatives

               Subcommittee on Employer-Employee Relations

                Committee on Education and the Workforce

                             Washington, DC

                              ----------                              

    The subcommittee met, pursuant to call, at 10:33 a.m., in 
room 2175, Rayburn House Office Building, Hon. Sam Johnson 
[chairman of the subcommittee] presiding.
    Present: Representatives Johnson, Kline, Andrews, Kildee, 
Holt, McCollum, and Grijalva.
    Staff present: Byron Campbell, Legislative Assistant; Kevin 
Frank, Coalitions Director for Workforce Policy; Rob Gregg, 
Legislative Assistant; Jessica Gross, Press Assistant; Richard 
Hoar, Professional Staff Member; Jim Paretti, Workforce Policy 
Counsel; Deborah L. Emerson Samantar, Committee Clerk/Intern 
Coordinator; Loren Sweatt, Professional Staff Member; Jody 
Calemine, Counsel, Employer and Employee Relations; Tylease 
Fitzgerald, Legislative Assistant/Labor.
    Chairman Johnson [presiding]. A quorum being present, the 
Subcommittee on Employer-Employee Relations of the Committee on 
Education and the Workforce will come to order.
    We are holding this hearing today to hear testimony on H.R. 
16, the Tribal Labor Relations Restoration Act.
    [The bill follows:]

                 109th CONGRESS    1st Session

                                H. R. 16

  To clarify the rights of Indians and Indian tribes on Indian lands 
                under the National Labor Relations Act.

                    in the house of representatives

                            January 4, 2005

Mr. Hayworth (for himself, Mr. Boehner, and Mr. Paul) introduced the 
        following bill; which was referred to the Committee on 
        Education and the Workforce
                                 a bill
    To clarify the rights of Indians and Indian tribes on Indian lands 
under the National Labor Relations Act.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Tribal Labor Relations Restoration 
Act of 2005''.

SEC. 2. DEFINITION OF EMPLOYER.

    Section 2 of the National Labor Relations Act (29 U.S.C. 152) is 
amended--
            (1) in paragraph (2), by inserting ``or any business owned 
        and operated by an Indian tribe and located on its Indian 
        lands,'' after ``subdivision thereof''; and
            (2) by adding at the end the following:
            ``(15) The term `Indian tribe' means any Indian tribe, 
        band, nation, pueblo, or other organized group or community 
        which is recognized as eligible for the special programs and 
        services provided by the United States to Indians because of 
        their status as Indians.
            ``(16) The term `Indian' means any individual who is a 
        member of an Indian tribe.
            ``(17) The term `Indian lands' means--
                    ``(A) all lands within the limits of any Indian 
                reservation;
                    ``(B) any lands title to which is either held in 
                trust by the United States for the benefit of any 
                Indian tribe or individual or held by any Indian tribe 
                or individual subject to restriction by the United 
                States against alienation; and
                    ``(C) any lands in the State of Oklahoma that are 
                within the boundaries of a former reservation (as 
                defined by the Secretary of the Interior) of a 
                federally recognized Indian tribe.''.
                                 ______
                                 
    Chairman Johnson. Under committee rule 12(b), opening 
statements are limited to the chairman and the ranking minority 
member of the subcommittee. Therefore, if other members have 
statements, they will be included in the hearing record.
    With that, I ask unanimous consent for the hearing record 
to remain open 14 days to allow member statements and other 
extraneous material referenced during the hearing to be 
submitted in the official hearing record.
    Without objection, so ordered.
    Good morning, and welcome. Today, the subcommittee will 
examine an important topic as we exercise our oversight 
jurisdiction over the National Labor Relations Board and its 
administration of Federal labor law.
    The topic of this morning's hearing may seem narrow, but it 
in fact has profound implications. It affects those who rely on 
Congress and administrative agencies to set clear rules of law, 
to follow established precedent, and to ensure a level playing 
field with clear expectations of the law's design.
    For almost 40 years, the National Labor Relations Board in 
limited circumstances interpreted the National Labor Relations 
Act to extend to the activities of sovereign tribal 
governments. This is consistent with the goals of the act which 
carves out Federal jurisdiction of state and local sovereign 
governments.
    Under the board's prior rulings, tribal governments who 
operated on their own lands were afforded similar protection 
and excluded from the jurisdiction of the act. Put more simply, 
this meant that within the boundaries of their sovereign 
territory, they, like any other sovereign leadership, were free 
to govern themselves and set their own laws and policies.
    In the spring of 2004, however, the National Labor 
Relations Board reversed itself and abandoned 40 years of 
precedent when it decided the case of San Manuel Indian Bingo 
and Casino. In the San Manuel case, the board rejected its 
longstanding view of the NLRA and ruled that it would no longer 
afford the same level of respect to sovereign Indian tribes 
engaged in business on their own tribal lands.
    Rather, the board set itself up as a judge of not just 
Federal labor policy, but also of Federal Indian policy. The 
board said that it would exert jurisdiction over tribal 
activities if it felt the balance of those two policies made it 
necessary. This decision sent shock waves through not only the 
Indian community but throughout America, including those in 
Congress who long understood that Federal labor laws should not 
deal with sovereign tribes.
    Moreover, it raises serious questions as to whether the 
board in this instance is overreaching by injecting itself into 
Federal policymaking outside the scope of its responsibilities. 
We will hear this morning from a number of people representing 
those who are most directly affected by the board's decision: 
representatives and leaders of sovereign Indian tribes with 
whom the United States government has forged a special 
relationship.
    I also look forward to hearing the comments of others as to 
whether the NLRB has the authority to make this ruling under 
Federal law.
    Most importantly, we will hear testimony on H.R. 16, the 
Tribal Labor Relations Restoration Act sponsored by our 
distinguished colleague from Arizona, Mr. Hayworth. He is a 
colleague of mine and on the Ways and Means Committee and also 
a good friend. He has been vigilant in this fight to ensure the 
rights of American Indians are protected. Mr. Hayworth's bill 
is straightforward. It would simply reverse the board's ruling 
and restore the prior balance of law.
    I now yield to the distinguished minority leader of the 
subcommittee, Mr. Andrews, for whatever opening statement you 
wish to make.
    [The prepared statement of Mr. Johnson follows:]

   Prepared Statement of Hon. Sam Johnson, Chairman, Subcommittee on 
 Employer-Employee Relations, Committee on Education and the Workforce

    Good morning and welcome. Today, the subcommittee will examine an 
important topic as we exercise our oversight jurisdiction over the 
National Labor Relations Board and its administration of federal labor 
law.
    The topic of this morning's hearing may seem narrow, but it in fact 
has profound implications.
    It affects those who rely on Congress and administrative agencies 
to set clear rules of law, to follow established precedent, and to 
ensure a level playing field with clear expectations of the law's 
design.
    For almost 40 years, the National Labor Relations Board, in limited 
circumstances, interpreted the National Labor Relations Act to extend 
to the activities of sovereign tribal governments.
    This is consistent with the goals of the act, which carves out 
federal jurisdiction over state and local sovereign governments.
    Under the board's prior rulings, tribal governments operating on 
their own lands were afforded similar protection, and excluded from the 
jurisdiction of the act.
    Put more simply, this meant that within the boundaries of their 
sovereign territory, they, like any other sovereign leadership, were 
free to govern themselves and set their own laws and policies.
    In the spring of 2004, the National Labor Relations Board reversed 
itself and abandoned forty years of precedent when it decided the case 
of San Manuel Indian Bingo and Casino.
    In the San Manuel case, the board rejected its long-standing view 
of the NLRA, and ruled that it would no longer afford the same level of 
respect to sovereign indian tribes engaged in business on their own 
tribal lands. Rather, the board set itself up as a judge of not just 
federal labor policy, but also of federal indian policy.
    The board said that it would exert jurisdiction over tribal 
activities if it felt the balance of those two policies made it 
necessary.
    This decision sent shockwaves through not only the indian 
community, but throughout America, including those in Congress, who had 
long understood that federal labor law should not deal with sovereign 
tribes.
    Moreover, it raises serious questions as to whether the board in 
this instance is overreaching by injecting itself into federal 
policymaking outside the scope of its responsibilities.
    We will hear this morning from a number of people representing 
those who are most directly affected by the board's decision--
representatives and leaders of sovereign indian tribes, with whom the 
united states government has forged a special relationship.
    I also look forward to hearing the comments of others as to whether 
the NLRB has the authority this ruling under federal law.
    Most importantly, we will hear testimony on H.R. 16, the Tribal 
Labor Relations Act, sponsored by our distinguished colleague from 
arizona, Mr. Hayworth. He is a colleague of mine on the Ways and Means 
Committee and also a good friend. He has been vigilant in his fight to 
ensure that the rights of American indians are protected.
    Mr. Hayworth's bill is straightforward. It would simply reverse the 
board's ruling and restore the prior balance of law.
                                 ______
                                 
    Mr. Andrews. Thank you, Mr. Chairman.
    Good morning. We are very much looking forward to the 
hearing. We welcome our colleague and friend, Mr. Hayworth.
    I have substantive concerns about the bill before us and 
procedural concerns which I hope are addressed in the hearing 
today, both by our colleague and by our witnesses.
    Substantively, this bill and the San Manuel decision bring 
into conflict two desirable and important principles of 
American law. The first is the sovereignty of our Indian 
tribes, the importance that we place in self-governance, and 
sovereignty for these organizations.
    The second is the doctrine of fairness to our workers, the 
right to organize, to bargain collectively, to assure oneself 
of a fair working environment. So reconciling these two 
substantive values is difficult, and the committee is going to 
have to think very much about that reconciliation.
    The second procedural concern that I have has to do with 
the proper role of the committee in deciding matters that 
perhaps are not yet ripe. It is true that the National Labor 
Relations Board, of course, made a decision in May of 2004 in 
the San Manuel case, but the case has not yet reached its 
conclusion. The matter now rests before the D.C. Circuit Court 
of Appeals and is being briefed.
    There will be some decision from the court of appeals, and 
I wonder whether it is the wisest thing for us to proceed 
legislatively until the courts have weighed in on the questions 
that are before us.
    My friend, Mr. Kildee, has devoted many years and much 
energy to the issues that I have outlined. With the chairman's 
permission, I would like to yield the balance of my time to Mr. 
Kildee to speak to this issue.
    Mr. Kildee. I thank the gentleman for yielding to me.
    Mr. Chairman, I want to thank you for holding this hearing 
today.
    This is the first hearing on this issue. Since the 
administrative ruling by the National Labor Relations Board in 
2004 in which the board determined it has jurisdiction to 
regulate the labor practices of tribal commercial enterprises 
even if they are located on sovereign tribal land, I have been 
committed to finding a permanent legislative response that 
honors tribal sovereignty and respects workers' rights.
    Congressman Hayworth, who serves as co-chairman of the 
Congressional Native American Caucus along with myself, and I 
requested this hearing to give interested parties an 
opportunity to formally voice their concerns. I look forward to 
this hearing today, and I am sure we will get a good deal of 
enlightenment. I look forward especially to hearing from my 
friend, Mr. Hayworth.
    Thank you very much. I yield back.
    Chairman Johnson. Thank you, Mr. Kildee. You know, I extend 
to you a special welcome, too. You are my friend and colleague, 
and I thank you for joining Mr. Hayworth in this hearing.
    I now welcome Mr. Hayworth and extend a special welcome to 
you. I welcome all the witnesses and look forward to their 
testimony today.
    We have two very distinguished panels of witnesses before 
us, and I thank them for coming.
    Our first panel is one guy, the Honorable J.D. Hayworth, 
representative for the Fifth Congressional District of Arizona. 
As I noted in my statement, Mr. Hayworth is sponsor of H.R. 16.
    And I think you know how the lights work here. You are 
recognized.

 STATEMENT OF HON. J.D. HAYWORTH, A REPRESENTATIVE IN CONGRESS 
                   FROM THE STATE OF ARIZONA

    Mr. Hayworth. Mr. Chairman, thank you very much. It is good 
to see you in that chair.
    And to the ranking member, I was visiting earlier with you, 
and I think I can disclose to those who gather this morning. My 
friend, the gentleman from New Jersey, I said, ``How are you?'' 
He said, ``I am ranking.'' What I failed to add was, ``Could 
that continue a bit longer, preferably after November?'' But 
all jokes aside, it is good to see my friend, the ranking 
member from New Jersey.
    As I look at the dais, I see my good friend the colonel 
from Minnesota, another Minnesotan with whom I share a 
birthday, Ms. McCollum, and my Arizona colleague, Raul 
Grijalva. Thank you all for being here today.
    And last but certainly not least, I wanted to single out 
for special praise my dear friend from Michigan. From the day 
when I came to the Congress of the United States, he worked 
with me, and years before my arrival here has worked on issues 
involving the first Americans. It is an honor to share 
responsibility in the Native American Caucus as a co-chair with 
my good friend, Dale Kildee.
    Mr. Chairman, as always, I ask unanimous consent for my 
entire statement to be read into the record. I will try to 
offer a synopsis. However, you know, given my reputation for 
verbosity, that sometimes is a bit difficult.
    The Tribal Labor Relations Restoration Act will insert 
simple, but necessary clarification language into the National 
Labor Relations Act clarifying that businesses owned by 
sovereign tribal governments and operated on tribal 
reservations were never intended to be governed under the act. 
The Constitution recognizes Indian tribes as sovereign 
political entities, along with the Federal Government, 
individual states and the political subdivisions thereof.
    Until recently, each of these sovereign entities was exempt 
from the definition of ``employer'' under the NLRA and thus 
beyond the jurisdiction of the National Labor Relations Board. 
But over the last decade, the board has chosen to ignore years 
of past precedent and actively pushed to extend the NLRA's 
reach to wholly owned tribal enterprises.
    This effort came to fruition on June 3, 2004, when the 
board ruled than an enterprise wholly owned by the San Manuel 
Band of Indians and operated on the San Manuel's recognized 
tribal land, must comply with the National Labor Relations Act. 
For decades previous, the NLRB had found that tribes were 
governmental entities exempt under the act.
    For example, in the Fort Apache Timber Company ruling of 
1976, the board determined that it lacked jurisdiction over the 
White Mountain Apache Tribe and a wholly owned and operated 
enterprise of that tribe, stating, ``Consistent with the 
board's discussion of authorities recognizing the sovereign 
government character of the tribal council in the political 
scheme of this country, the White Mountain Apache Reservation, 
it would be possible to conclude that the council is the 
equivalent of a state or an integral part of the government of 
the United States as a whole, and as such specifically excluded 
from the act, section two, subsection two definition of 
'employer.' The board deems it necessary to make the finding 
here that the tribal council and its self-directed enterprise 
on the reservation is implicitly exempt as employers within the 
meaning of the act.''
    The 1976 decision was reaffirmed in 1980 when a Federal 
district court concurred with the board's position in the 
Confederated Tribes of the Warm Springs Reservation ruling. In 
this case, the court expressly agreed that the Confederated 
Tribes was ``not an employer for purposes of the NLRA.'' Both 
the 1976 and 1980 NLRB rulings were correct in their 
interpretation of the National Labor Relations Act when they 
found that tribally owned businesses operating on reservation 
lands are exempt under the act.
    The decision in the San Manuel case, therefore, overturned 
this long-established precedent. It is up to Congress to 
correct the NLRB's error and prevent this bureaucratic power 
grab. H.R. 16 is necessary to remove any ambiguity in the law 
and prevent future misinterpretations.
    This bill has broad support throughout Indian Country. I 
have here a resolution passed by the National Congress of 
American Indians containing the 2004 NLRB decision. Now, NCAI 
represents over 250 tribes nationwide, and this resolution 
calls on Congress to reaffirm the sovereign rights of native 
tribes and to clearly state that tribal-owned businesses 
operating on reservation land are exempt from the National 
Labor Relations Act.
    I have included this resolution with my testimony and have 
submitted it for the record. I look forward to hearing more on 
NCAI's position from its president, Joe Garcia, in just a few 
minutes.
    I would also like to include for the record some letters I 
have received and resolutions that have been passed by 
individual tribes from across the Nation expressing their 
opposition to the NLRB's ruling.* Make no mistake: To Indian 
Country, this issue has nothing to do with unions, but 
everything to do with sovereignty.
---------------------------------------------------------------------------
    *The letters referred to begin on page 38.
---------------------------------------------------------------------------
    The issue here is not whether tribes should unionize their 
tribal enterprises. The issue is who should make that decision. 
Should it be up to the sovereign tribal governments? Or should 
it be up to the states or the Federal Government? I believe the 
Constitution gives that right to the tribes as sovereign 
governmental entities.
    Native Americans are proud people, proud of their heritage, 
proud of their culture, and proud of their independence. Mr. 
Chairman, in my view the 2004 NLRB ruling in the San Manuel 
case discounts for the honor and the integrity of native 
people. It essentially declares that the United States does not 
trust sovereign tribal governments to treat employees fairly. 
The message is inaccurate and it is wrong, Mr. Chairman.
    I thank you for the time and the attention to my remarks.
    [The prepared statement of Mr. Hayworth follows:]

Prepared Statement of Hon. J.D. Hayworth, a Representative in Congress 
                       From the State of Arizona

    I would like to thank Chairman McKeon, Subcommittee Chairman 
Johnson and the entire committee for bringing this important issue 
before the committee.
    My legislation, The Tribal Labor Relations Act of 2005, will insert 
simple but necessary clarification language into the National Labor 
Relations Act to make clear the fact that businesses owned by sovereign 
tribal governments and operated on tribal reservations were never 
intended to be governed under the Act. Clearly, sovereign tribes were 
intended to hold the same status under the Act as other sovereign 
entities, such as the federal government, individual states, and the 
political subdivisions thereof. Each of these sovereign entities is 
expressly exempt from the definition of ``employer'' under the Act and, 
thus, is beyond the jurisdiction of the National Labor Relations Board. 
H.R. 16 would provide clarity to the NLRA by explicitly stating that 
Indian tribes are also exempt from the definition of ``employer'' under 
the Act.
    Unfortunately, over the last decade, the Board has chosen to ignore 
years of past precedent and has actively pursued wholly owned tribal 
enterprises under auspices of the NLRA. The Board's recent mission, to 
force sovereign tribes to accept and adhere to the requirements 
contained in the Act, came to fruition on June 3, 2004 when a Board 
ruling concerning the San Manuel Band of Mission Indians ignored 
decades of standing precedent and decreed that an enterprise wholly-
owned by the San Manuel Band and operated on the San Manuel's 
recognized tribal land, must comply with the National Labor Relations 
Act.
    This decision overturned multiple past rulings which upheld the 
sovereign rights of tribal government's by stating that the NLRA does 
not apply to tribally-owned and operated enterprises because they are 
governmental entities exempt under the Act.
    For example, in the Fort Apache Timber Company ruling in 1976, the 
Board ruled that it lacked jurisdiction over the White Mountain Apache 
Tribe and a wholly owned and operated enterprise of the tribe, stating:
    ``Consistent with [the Board's] discussion of authorities 
recognizing the sovereign-government character of the Tribal Council in 
the political scheme of this country it would be possible to conclude 
that the Council is the equivalent of a State, or an integral part of 
the government of the United States as a whole, and as such 
specifically excluded from the Act's Section 2(2) definition of 
``employer.'' [The Board] deem[s] it necessary to make the finding here 
* * * that the Tribal Council, and its self-directed enterprise on the 
reservation * * * is implicitly exempt as employers within the meaning 
of the Act.''
    The 1976 decision was reaffirmed in 1980, when a federal court 
concurred with the Board's position in the Confederated Tribes of the 
Warm Springs Reservation ruling. In this case, the court expressly 
agreed that the Confederated Tribes was ``not an employer for purposes 
of [the NLRA].''
    Both the1976 and 1980 NLRB rulings were correct in their 
interpretation of the National Labor Relations Act when it was found 
that tribal owned businesses operating on reservation lands are exempt 
under the Act. The subsequent misinterpretation contained in the San 
Manuel case exemplifies the need for H.R. 16, which removes cause for 
future misinterpretation by explicitly stating that the sovereign 
rights of tribal government are to be recognized and respected under 
the Act in the same form as other sovereign entities.
    I have received a resolution passed by the National Congress of 
American Indians concerning the 2004 NLRB decision. NCAI represents 
over 250 tribes nationwide and, in its resolution, the organization 
calls on Congress to reaffirm the sovereign rights of Native tribes and 
to clearly state that tribal owned businesses operating on reservation 
land are exempt the National Labor Relations Act. I will include this 
resolution with my testimony for the record.
    Since being elected to the House of Representatives nearly twelve 
years ago, I have worked closely with Native Americans from across our 
nation and have learned much from the Native community. It is my hope 
that neither this committee nor this congress needs me to express the 
honor and integrity that is saturated within the culture of the first 
Americans, both of which have been the cornerstone of my dealings with 
Indian country.
    It is my opinion that the 2004 NLRB ruling in the San Manuel case 
discounts both the honor and the integrity of Native people. It sends 
the message that the United States of America does not trust a 
sovereign tribal government to treat its employees fairly. This is the 
wrong message to send, and it must be corrected.
    H.R.16 restores the initial intent of the National Labor Relations 
Act by acknowledging the sovereign rights of Indian tribes and 
exempting them from the Act. Additionally, it expresses the federal 
government's faith in the ability of Indian tribes to establish intra-
governmental policies that will ensure fair working conditions for 
employees of tribal owned businesses that operate on tribal 
reservations.
                                 ______
                                 
    Chairman Johnson. Thank you.
    You know, I thank you for your leadership on this issue. We 
are going to hear from the tribal governments later this 
morning, but from your observations or conversations with the 
tribes, what impact will the San Manuel decision have on them?
    Mr. Hayworth. Well, first and foremost, it leads to an 
erosion of sovereignty, diminution of what I believe is 
guaranteed in Article I, Section 8 of our Constitution. And 
that is such a profound change that it completely changes the 
historical precedent of just what it means to native people to 
have their own sovereign governments and be able to run their 
own affairs.
    It would have broad implications across the width and 
breadth of our relationship, intergovernmental relationships, 
if you will. And as you will hear later today, many tribes 
pride themselves on their record of relations for employees in 
tribally owned enterprises. They believe, Mr. Chairman, that 
the decision to unionize or not to unionize should be left up 
to them.
    That is the crux of the matter. If we really believe in 
self-government and in self-determination, why would we take 
this right from a sovereign governmental entity and put it into 
the hands of Washington bureaucrats?
    Chairman Johnson. I wanted to make the comment, why do we 
put anything in Washington bureaucrats' hands?
    [Laughter.]
    Mr. Andrews, you are recognized for 5 minutes.
    Mr. Andrews. Thank you.
    I thank Mr. Hayworth for his testimony, and I recognize 
that he speaks for many people on both sides of the aisle for 
their concern of the sovereignty issues.
    I wanted to explore for just a moment, J.D., the question 
of how far the sovereignty of the tribe goes when it runs into 
other constitutional considerations. Do you think that a person 
who is working for a tribal enterprise has Federal due process 
rights under the Constitution?
    Mr. Hayworth. Well, Mr. Andrews, Mr. Chairman, I am not a 
lawyer nor have I ever played one on TV. I just joined with you 
as a lawmaker. As such, I simply want to state that of course 
every American enjoys constitutional rights.
    As you pointed out in your opening statement, there are 
legitimate points of disagreement, as the old saying, where 
your rights end and where another person's begin. The question 
is, where is this delineation?
    Mr. Andrews. Right.
    Mr. Hayworth. And if we take away the most basic right of 
sovereignty, then we are basically I think providing a very 
slippery slope for other relations, intergovernmental relations 
for the tribe.
    Mr. Andrews. Here is the concern that my question implies. 
Your bill restores the law that existed before the San Manuel 
decision. It essentially puts us back to where we were before 
the decision, but it does not include any provision for the 
protection of labor rights in the law itself. It leaves that 
decision to the tribal councils, the tribal government.
    Now, I know the record is that the tribal councils almost 
without exception have ordinances which respect those rights. I 
am not in any way contending the tribal councils have been 
careless or indifferent to those rights. However, it does leave 
open the legal possibility that would be the case.
    I wonder, to carry this sovereign argument a little 
further, you make the analogy about state governments and 
sovereign tribes. Well, of course, state governments are 
subject to the 14th Amendment, and, if acting in their capacity 
as an employer, they would discriminate against someone, they 
would be held accountable under Federal law.
    But your bill doesn't provide for that kind of protection, 
does it? Because it seems to me you either have the obligations 
of a public entity like a state does under the due process 
clause, or you have the obligations of a private employer under 
the National Labor Relations Act.
    Wouldn't it be the case that workers in these situations 
would have neither of those protections?
    Mr. Hayworth. Mr. Chairman and Congressman Andrews, I 
believe what we are having here is really a comparison of 
apples and oranges, with all due respect. You are coming at 
this from another direction, and it is one that perhaps if you 
put your trust in what we can call innovations in regulatory 
law and in the supremacy of bureaucratic determinations by the 
executive branch, and that should be the venue that makes the 
decision by bureaucratic fiat.
    I see it more as a dynamic there, rather than a question of 
jurisdiction or my pedestrian, as opposed to legal, opinion of 
where rights end or rights begin. I view this more as a process 
situation where we ask the question and the premise: Who 
governs best here in terms of this determination? We are here 
as elected officials. Tribal governments are constituted by 
elected officials, and not as an attorney or an amateur 
barrister, but as one who observes the process.
    I believe in the primacy of local sovereign governments and 
in the determinations made by their duly elected officials, and 
in Article I, Section 8 of the Constitution, and the 
sovereignty and the sovereign immunity granted to the tribes, 
rather than to a body of regulatory law or a new finding by a 
bureaucratic board.
    Mr. Andrews. I appreciate all that. I would just simply 
conclude by saying that my concern is that the powers of the 
sovereign government usually stop at the constitutional rights 
of an individual. I am not sure that is the case in this 
situation. I am sure it would be the case if the labor board's 
decision was upheld. So I don't know the answer to this 
question, but I think it is one we have to ask.
    Thank you.
    Chairman Johnson. Mr. Kline, you are recognized for 5 
minutes.
    Mr. Kline. Thank you, Mr. Chairman. I assure you I won't 
take 5 minutes.
    I am not a lawyer, nor have I ever played one on TV either, 
so I am now confused after listening to my learned colleague 
here.
    Just recapping where we are, this bill, H.R. 16, does take 
us back to the situation that we had before the San Manuel 
decision. Is that correct? We would operate in the same way, 
recognize the full sovereignty of the Indian tribes. I am 
trying to keep it real simple here. That is what it does, is 
that correct?
    Mr. Hayworth. Congressman Kline, Mr. Chairman, yes, that is 
what it does.
    Mr. Kline. That is it. OK. It seems like a good idea.
    Thank you. I yield back.
    Chairman Johnson. Thank you.
    Mr. Kildee, do you care to question?
    Mr. Kildee. Just a little conversation with Mr. Hayworth.
    My state of Michigan, many states in this country, 
including states in the South where there are not many labor 
unions for state government, anyway, they have lotteries. Our 
state has a lottery. It is a very, very commercial lottery. It 
is not really run as a governmental function, although the 
money helps the people of the state of Michigan, as the 
lotteries or the casinos help the people in the sovereign 
tribes.
    If the NLRB claims jurisdiction over casinos on sovereign 
Indian land, is there some thought that they might try to reach 
into the state of Michigan and say those lottery employees 
should also have protection of NLRA and NLRB?
    Mr. Hayworth. Mr. Congressman, Congressman Kildee, you have 
brought up the argument, the essence of the slippery slope. It 
is one I addressed in another forum on the committee where 
Chairman Johnson and I serve, on Ways and Means. Sovereignty, 
once you encroach in one area, it is the slippery slope that 
invites an expansion of the bureaucratic fiat and, I think, an 
erosion of the basic sovereignty.
    As I made the case, when there were those who sought to 
unconstitutionally levy taxes, you pointed out, on the lottery. 
I made the point that, for example, many businesses decide to 
incorporate in the state of Delaware. Well, why would we 
restrict the Delaware tribe and not 1 day see that same erosion 
of rights for the state of Delaware?
    And so I think your observation is especially cogent and 
why we need to see this legislation enacted.
    Mr. Kildee. Thank you very much.
    I yield back, Mr. Chairman.
    Chairman Johnson. Mr. Grijalva, do you care to question?
    Mr. Grijalva. Thank you, Mr. Chairman.
    Chairman Johnson. You are recognized for 5 minutes.
    Mr. Grijalva. Some points of clarification from my 
colleague, Mr. Hayworth.
    There have been two attempts to pass an amendment on the 
Labor-HHS appropriations bill, which were essentially to deny 
NLRB's funding to implement the San Manuel decision. Both of 
those did not pass.
    And I want to go back to the point that Mr. Andrews and my 
friend, Mr. Kildee, both mentioned. After those did not pass, 
there was some discussion, I don't know if you were part of it 
or not, but there was some discussion as to trying to get the 
parties, sovereign nations, labor and others, to try to work to 
reconcile the issue other than this either-or proposition that 
we have before us. I just want to know, did that process occur? 
If it failed, why did it fail?
    And then the second part question is, is there some 
applicability of Federal law, ERISA, OSHA, that apply to 
sovereign nations and tribes? The NLRB is a point of contention 
here. Would you consider those other applications to also be an 
erosion, slippery slope of sovereignty?
    And those are two general questions.
    Mr. Hayworth. Mr. Chairman, Congressman Grijalva, I thank 
you for the questions.
    As to your first point about process, I was not 
specifically invited to be part of the consultation process 
involving the AFL-CIO or SEIU or the Teamsters or anyone like 
that with Indian Country.
    What I do believe speaks volumes, and as you will hear from 
the subsequent panel, is the resolution passed by the National 
Congress of American Indians, is the resolutions passed by 
various sovereign tribal governments and their letters of 
support for this legislation.
    In terms of the process and/or worker protections and the 
protection of rights on tribal lands, I think obviously this 
just simply becomes a question, with apologies to using this 
trite old game-show title, who do you trust?
    I believe, in keeping with other sovereign governments, 
whether they are townships, cities, counties, states or the 
Federal Government, the sovereignty of Native American tribes 
is recognized. It should not be in any way diminished, nor 
would there be, and I know this is not the intent of the 
gentleman from Arizona, but I believe what happens is the 
notion that, and again I don't think he is implying this in his 
question, but I think there is a mindset that develops that 
Washington knows best.
    I think this offers a sterling example. When the National 
Labor Relations Board, with no historical precedent, but with 
simple bureaucratic fiat, says: We demand this, unelected 
officials trying to impose regulations on sovereign 
governments, and that is especially troubling. If you go into 
the whole array of law, but not being a lawyer, that is the 
simple concept and it just comes down to who do we trust.
    Mr. Grijalva. Let me reclaim my time, Mr. Hayworth. I agree 
with you. Having been here 3-plus years under the current 
leadership in Washington, no, you should not trust Washington. 
I agree entirely with you.
    The clarification I was trying to get to is, we are 
talking, and I think it is central to the argument, the erosion 
of government-to-government relations with sovereign nations 
and the sovereignty of those nations. My point of clarification 
was, you know, at this instance we are talking about NLRB, but 
there are also applicable Federal laws like ERISA, OSHA, et 
cetera.
    Are those considered, in your estimate, to be part of that 
erosion that you talked about?
    Mr. Hayworth. You know, with all due respect, Mr. Chairman 
and to my good friend from Arizona, with whom I have worked to 
pass legislation on a bipartisan basis----
    Mr. Grijalva. I agree.
    Mr. Hayworth [continuing]. Dealing with tribes in his 
congressional district. You were asking me what is in essence 
an essay question, far afield from the topic today. There may 
not be a rule to germaneness, but my personal feelings or my 
reading of the law, as an American citizen who happens to be a 
Member of Congress, with all due respect, is beside the point.
    What I readily concur is that there are various fault 
lines. As I said earlier, there are various points of tension 
within the whole concept of federalism, whether it applies to 
states or to tribal governments.
    But for our purposes today, the record is clear. The 
National Congress of American Indians, sovereign tribe after 
sovereign tribe, has said: Reaffirm our sovereignty. And so 
this is one essence where I will say my opinion on other legal 
matters doesn't pertain today, but I thank you for inquiring.
    Mr. Grijalva. Thank you, Mr. Chairman.
    And thank you, Mr. Hayworth.
    Chairman Johnson. The time of the gentleman has expired.
    Ms. McCollum, do you care to question?
    Ms. McCollum. I want a point of clarification with some of 
the statements that have been made.
    Chairman Johnson. You are recognized.
    Ms. McCollum. Thank you, Mr. Chair.
    The sovereignty is nation to nation, the U.S. Government to 
the tribal government. Tribal governments work with state 
governments. They work with county governments. They work with 
local governments. But they are a nation. They are not a local 
unit of government to a local unit of government. The 
sovereignty is recognized at a national level.
    So I think when we are talking, yes, tribes work 
cooperatively with city councils. They work cooperatively with 
counties. They work cooperatively with states. They do in my 
state, but they are a nation and it is a sovereign nation.
    Sometimes when we start talking about these government-to-
government relationships, having served on a city council, 
having served at the state level and served at the national 
level, we need to keep always the relationship at a national 
level, at a nation-to-nation level, and just be mindful of the 
fact, yes, as I work with my cities, my states, my counties, I 
represent a Federal Government. I represent the nation.
    When the tribes are negotiating and working with local 
units of government, from the national level, it is nation to 
nation, it is nation to city, it is nation to county. They are 
a sovereign nation.
    Thank you, Mr. Chair.
    Chairman Johnson. Mr. Holt, do you care to question?
    Mr. Holt. Yes, Mr. Chairman. Thank you.
    Chairman Johnson. You are recognized.
    Mr. Holt. I thank the gentleman, our colleague.
    We often speak about workers' rights and the NLRB as the 
adjudication and enforcement mechanism for recognizing those. I 
guess it leads me to ask the fundamental question of just how 
far does the tribal sovereignty go? Certainly, it would not 
supersede the Bill of Rights. Now, I recognize workers' rights 
do not have the same degree of primacy as the first amendments 
to the Constitution.
    However, there is a general recognition of workers' rights. 
I would just like to ask, and I apologize for coming in late 
and maybe missing this clarification, but I would appreciate it 
if the gentleman would say just how far does that go, 
infringing on what we generally consider rights?
    Mr. Hayworth. Mr. Chairman, Congressman Holt, I believe the 
Constitution of the United States is a document of limited and 
enumerated powers. I believe the Constitution means what it 
says and says what it means. So in Article I, Section 8, when 
it says that Congress shall have the power to regulate commerce 
with foreign nations, and among the several states, and with 
the Indian tribes, that articulation offers both sovereignty 
and sovereign immunity.
    I appreciated the comments of the gentlelady from 
Minnesota, but however you intend to define ``sovereignty,'' 
that sovereignty is complete. Now, within the role of 
federalism and full faith and credit, and the relationship 
among the states or between individual states and the Federal 
Government, there is no doubt that there is primacy for the 
enumerated powers in the Constitution and the subsequent rights 
ensured by the first 10 amendments in the Bill of Rights.
    As the gentleman pointed out, from New Jersey, he said 
almost in passing that worker rights were not part of the 
original 10 amendments to the Constitution. To sit here and 
enumerate what we consider to be rights and/or privileges, 
again with all due respect, I appreciate the gentleman's 
interest in what might be my pedestrian legal opinions, with no 
formal training.
    All I can tell you is the scope of the hearing today is a 
simple one dealing with the insurance of sovereignty and the 
primacy that elected officials, both at the tribal level and 
elected officials here in Washington, are making decisions, 
rather than legal precedent being reversed by bureaucratic 
fiat, as we saw with the decision of the National Labor 
Relations Board vis-a-vis San Manuel.
    Chairman Johnson. Thank you, Mr. Hayworth. I appreciate you 
being a part of this witness panel this morning. I thank you.
    We would ask the second panel to take their seats.
    And you may be excused.
    Mr. Hayworth. Thank you, Mr. Chairman, and thanks to the 
members of the subcommittee.
    Chairman Johnson. You are welcome to sit in and listen if 
you wish.
    It is my pleasure to yield to Mr. Kline for the purpose of 
introducing our first witness, as soon as you sit down. You are 
welcome to do that, Mr. Kline.
    Mr. Kline. Thank you, Mr. Chairman, now that the witnesses 
have had a chance to find their name tags and their seats.
    Let me just say it is my great pleasure to introduce today 
Ronald Johnson, who is the assistant secretary and treasurer of 
the Prairie Island Tribal Council. That is a Dakota Sioux 
Tribe. In 1936, the Federal Government officially recognized 
the Prairie Island Indian Community as a reservation, awarding 
them 534 acres. This small but thriving community employs over 
1,650 people in its gaming, government and business operations.
    Mr. Johnson is currently serving his third term as 
secretary-treasurer and served as vice president of the 
previous tribal council. A Red Wing, Minnesota, native, Mr. 
Johnson formerly worked in the Prairie Island Indian Community 
as building and grounds manager of Treasure Island Casino. In 
addition to these duties, Mr. Johnson currently co-chairs the 
National Congress of American Indians, Department of Homeland 
Security.
    He also works with the state of Minnesota on homeland 
security to recognize tribes as areas of concern. I might point 
out that the Prairie Island Community is on an island and 
shares that island with a nuclear power plant, an island in the 
Mississippi River.
    Finally, Mr. Johnson has long been involved in youth 
activities to promote the importance of education and 
developing future leaders of Prairie Island Indian Community. I 
am particularly pleased today to welcome him here and look 
forward to his testimony.
    Chairman Johnson. Thank you.
    I would like to recognize Mr. Andrews for an introduction.
    Mr. Andrews. Thank you, Mr. Chairman.
    I would like to welcome and introduce my friend, Professor 
Phil Harvey from Rutgers University School of Law in Camden. 
Phil has been of invaluable assistance in my efforts in 
understanding many areas of public policy, welfare reform, 
employment law. He teaches extensively in those fields. He is 
both a scholar and a teacher, very active in his community. He 
and his wife Mary are raising a beautiful family.
    Phil, we very much appreciate you taking time out of your 
scholarship and teaching to be with us today, and we welcome 
you.
    Chairman Johnson. I will introduce the third witness from 
New Mexico.
    I appreciate your being here. I go out there a lot.
    The Honorable Joe Garcia is the Governor of the San Juan 
Tribe of Pueblo Indians. Mr. Garcia is also president of the 
National Congress of American Indians.
    We appreciate you being here, sir.
    Before the witnesses begin, I would like to remind members 
that we will be asking questions after the entire panel has 
testified. In addition, committee rule 2 imposes a 5-minute 
limit on all questions. I think you watched the lights down 
there. If it comes on green, you have 5 minutes; the little 
yellow one comes on, you have 1 minute; when the red one comes 
on, we would like you to complete your testimony, if you don't 
mind.
    With that, I will recognize Mr. Johnson for your testimony, 
sir.

  STATEMENT OF RONALD JOHNSON, ASSISTANT SECRETARY/TREASURER, 
         PRAIRIE ISLAND INDIAN COMMUNITY TRIBAL COUNCIL

    Mr. Johnson. Thank you, Mr. Chairman.
    Good morning, Chairman Johnson, Vice Chairman Kline and 
honorable members of the Subcommittee on Employee-Employer 
Relations. My name is Ron Johnson. I am a member of the Prairie 
Island Indian Community and currently sit as assistant 
secretary-treasurer for the tribal council.
    I want to thank you for the opportunity to testify today on 
H.R. 16, which will clarify the rights of Indian and Indian 
tribes on Indian lands under the National Labor Relations Act.
    The Prairie Island Indian Community is a federally 
recognized sovereign self-governing Indian tribe. Our first 
economic enterprise started in 1984 when we opened a bingo 
parlor, which started with less than 150 employees. Following 
the passage of the Indian Gaming Regulatory Act in 1988, my 
tribe successfully negotiated compacts with the state of 
Minnesota and our modest bingo operation was transformed into a 
casino.
    As a result of this hard work, our employees and 
responsible management, our casino became a great economic 
success. In just over 20 years, our business evolved from a 
150-employee bingo parlor to a 1,500-employee resort and casino 
that features a hotel, marina, a cruise yacht and an RV park.
    The success of our casino has led to an expansion of our 
government services and to additional economic development, 
including our tribe's acquisition of a golf course and the 
opening of a new convenience store. We continue to explore 
additional opportunities and to create jobs to provide more 
economic benefit for our tribe and our surrounding areas.
    Our tribe now employs approximately 1,600 people in our 
economic enterprise and government. We are the largest employer 
in Goodhue County in the state of Minnesota. We treat our 
employees right. We provide good-paying jobs in rural 
Minnesota, with great benefits that include health insurance, 
dental insurance, a 401(k), basic life, accidental death and 
disability insurance, and paid leave.
    Over 80 percent of our employees are full-time employees, 
of which approximately 89 percent of them, if you exclude the 
seasonal workers, are eligible to receive full benefits. 
Because of the success of our economic enterprise, we are able 
to offer these wages and benefits without any assistance from 
the state of Minnesota.
    We have a large number of rehires, people that for whatever 
reason have left our employment and came back to work at our 
enterprise because of our magnificent benefits and wage 
packages. It is better than most of the employment in the area 
of where we have our business, both union and non-union.
    Our tribe's own best interest lies in ensuring fair 
treatment of all employees. We, like most tribes we know, 
already offer compensation, benefits, work conditions, and 
grievance procedures that are better than those offered by 
union employees. Our employees are already encouraged to offer 
positive, constructive criticism under existing policies and 
procedures, and our tribe has implemented a problem resolution 
procedure that permits employees to voice concerns or 
complaints without being penalized.
    In addition, employees whose misconduct results in 
suspension or revocation of their gaming license, which are 
required for all casino employees, have the additional right to 
a full evidentiary hearing before the gaming commission to 
contest any suspension or revocation.
    In fact, the NLRB rejected the one charge that was filed 
against us after the NLRB determined that the NLRA applied to 
tribes and their business because there was no evidence that 
the employee was discharged for engaging in protective 
activity.
    We understand that we must compete for the best employees. 
We treat our employees well because it is the right thing for 
the employees and it is good for our business, not because a 
Federal agency compels us to do so. Our tribe has used and 
continues to use and rely upon union vendors, contractors and 
trades for various goods, projects and services, including 
casino vendors and contractors who perform construction and 
repair work at our various tribally owned enterprises and 
facilities.
    Over the years, we have enjoyed cooperative relationships 
with union vendors, contractors and trades, creating economic 
benefits for everyone. Each of the tribe's businesses are 
wholly owned enterprises on Prairie Island Indian Community. 
Treasure Island Resort and Casino, Dakota Station, located in 
the community lands held in trust by the United States of 
America for the benefit of the Prairie Island Indian Community.
    These commercial ventures are the principal funding source 
for most of our governmental departments, programs and 
services. Revenues generated by the tribal businesses have been 
used to improve infrastructure of the reservation such as water 
treatment facilities, improved water and sewer systems.
    And we have helped provide many essential services, along 
with health care, social services, educational programs, 
financial planning, governmental, judicial and tribal law 
enforcement that most communities take for granted.
    H.R. 16 would amend the NLRA to confirm the exempt status 
of tribal employers in their on-reservation activities. H.R. 16 
would not grant any status or rights to the tribes that did not 
previously exist under the prior 30 years of the NLRB decision, 
but merely return to the former status quo.
    As governments engage in economic activity on Indian lands 
to fund essential government services, sovereign tribes, 
including ours, should enjoy the same exempt status as the 
United States government, corporations and the state and their 
political subdivisions. There is simply no reason to treat 
tribal government-operated businesses any different than other 
government entities.
    As in the case with the other government entities, our 
activities are restricted by jurisdictional boundaries. We 
conduct our economic activity and perform essential government 
services on our tribal lands, as is in the case with the state 
and local governments.
    We cannot freely relocate our enterprise to different 
locations to obtain a competitive business advantage or to 
access a larger population of potential employees. The Prairie 
Island Indian Community owns and operates a commercial 
enterprise on its land and the tribal council, as elected 
representatives of the community, manages the enterprise.
    Chairman Johnson. Will you try to close it down when you 
can, please?
    Mr. Johnson. I would like to just move on and just get to 
the position of, in closing, I would like to conclude here that 
our tribe does offer great benefit packages, and we do have a 
program that protects the employee; that they have a grievance 
policy they can follow, and there is a board that will hear 
that.
    I would like to conclude that the NLRA should amend and 
clarify the exempt status of Indians and Indian Tribes on 
Indian lands. Our government-operated businesses are the 
livelihood of our tribe and help support the economics of our 
neighbors and friends. Our tribal government operates 
businesses, funds our most basic essential government services, 
to resources needed to revitalize our culture and tradition.
    The tribe understands that we depend on the efforts of all 
of our employees for the tribe's growth and well-being. We have 
already implemented policies and procedures to promote the fair 
treatment of all our employees, and additional Federal 
regulation is not warranted. Therefore, Indian tribes and 
businesses owned and operated by Indian tribes should be exempt 
from NLRA.
    Thank you. And if you have any further questions, I will be 
glad to answer.
    [The prepared statement of Mr. Johnson follows:]

    Prepared Statement of Hon. Ronald Johnson, Assistant Secretary/
            Treasurer of the Prairie Island Indian Community

    Good morning Chairman Johnson, Vice-Chairman Kline and honorable 
members of the Subcommittee on Employer-Employee Relations. My name is 
Ron Johnson. I am a member of the Prairie Island Indian Community and 
the Assistant Secretary/Treasurer of the Prairie Island Indian 
Community Tribal Council. Thank you for the opportunity to testify 
today on the proposed legislation to clarify the rights of Indians and 
Indian tribes on Indian lands under the National Labor Relations Act.
    The Prairie Island Indian Community is a federally-recognized, 
sovereign, self-governing Indian Tribe organized under 25 U.S.C. 
Sec. 476, and is governed under the terms of the Constitution and 
Bylaws adopted by the Tribal members on May 23, 1936, and approved by 
the Secretary of the Interior on June 20, 1936. We are located in the 
state of Minnesota along the banks of the Mississippi River north of 
the City of Red Wing. My Tribe is the Mdewakanton Dakota Community; the 
literal translation of Mdewakanton is ``dwellers of Spirit Lake.'' The 
Mdewakanton are one of the seven sub-tribes who make up the alliance 
called the Oceti Sakowin--the Seven Council Fires. Most of the world 
knows our alliance as the Sioux, but we call ourselves Dakota, Lakota 
or Nakota, a word that means ``ally'' or ``friend'' in all three of the 
dialects of our language. Tinta Wita or Prairie Island has provided for 
the needs of my people for centuries; it is a spiritual place. Over the 
years, this land has provided sustenance and shelter for my Tribe.
    More recently, Prairie Island has provided my Tribe with economic 
opportunities. Our first economic enterprise started in 1984 when we 
opened a bingo parlor known as Island Bingo. Although we started with 
less than 150 employees, our Tribal members worked hard to make certain 
that the enterprise was well run and provided good jobs. Our employees' 
hard work and dedication contributed to the success and growth of our 
bingo parlor during those first years of operation.
    Following the Cabazon decision, and the subsequent passage of the 
Indian Gaming Regulatory Act (IGRA) in 1988, my Tribe successfully 
negotiated compacts with the State of Minnesota and our modest bingo 
operation was transformed into a casino, known as Treasure Island 
Resort & Casino. As a result of the hard work of our employees and 
Tribal Members, responsible management by our casino directors and 
Tribal Council, and aggressive regulation by our Gaming Commission, 
Treasure Island became a great economic success, both for my Tribe and 
the State of Minnesota. In just over 20 years, Treasure Island evolved 
from a small bingo parlor with less than 150 employees to a resort and 
casino with approximately 1500 employees that features over 2,500 
slots, 44 table games, a 10-table poker room and a 550-seat high stakes 
bingo hall, along with five restaurants, a 250-room hotel, indoor pool, 
137-slip marina, the Spirit of the Water cruise yacht and an RV park.
    The success of our casino has led to an expansion of our government 
services and to additional economic diversification, including our 
Tribe's acquisition of Mount Frontenac Golf Course in 2000 and the 
opening of Dakota Station gas and convenience store in 2005. Our Tribe 
now employs approximately 1,600 people in our economic enterprises and 
governmental programs. We are the largest employer in Goodhue County, 
offering good-paying jobs in rural Minnesota with great benefits that 
include health insurance, dental insurance, 401(k), basic life 
accidental death and disability insurance, and paid leave. Over 80 
percent of our employees are full-time employees (approximately 89 
percent if you exclude seasonal workers) eligible to receive full 
benefits. Because of the success of our economic enterprises, we are 
able to offer these wages and benefits without any assistance from the 
State of Minnesota. Our Community continues to explore additional 
opportunities to create more jobs and provide more economic benefit for 
our Tribe and the surrounding area.
    Our Tribe understands that we depend on the efforts of all of our 
employees for the Tribe's growth and well-being. We are committed to 
providing the best possible working conditions and strive to treat all 
our employees fairly and with dignity and respect. Indeed, the Tribe's 
own best interest lies in ensuring fair treatment of all employees. Our 
employees are encouraged to offer positive and constructive criticism, 
and our Tribe has implemented a problem resolution procedure that 
permits employees to voice concerns or complaints about any condition 
of employment, rules of conduct, policies, practices, or disciplinary 
actions without being penalized, formally or informally. In addition, 
employees whose misconduct results in the suspension or revocation of 
their gaming license (required for all casino employees) have the 
additional right to a formal hearing before the Gaming Commission to 
contest the suspension or revocation.
    If we as a tribal employer mistreat our employees we will not be 
able to fill our employment needs, our employees will perform poorly, 
and our facilities will certainly suffer. And especially with regard to 
our casino and hospitality services, we understand very well that we 
are in a competitive service industry and the welfare of our 
enterprises depends on contented employees. Our Tribe, like other 
Tribes, treats employees well because it is the right thing for the 
employees and it is good for business, not because a federal agency 
compels us to do so.
    Our Tribe has used and continues to use and rely upon union 
vendors, contractors and trades for various goods, projects and 
services, including casino vendors and contractors who perform 
construction and repair work at our various tribally-owned enterprises 
and facilities. Over the years we have enjoyed cooperative 
relationships with union vendors, contractors and trades, creating 
economic benefits for everyone.
    Each of the Tribe's businesses are wholly-owned enterprises of the 
Prairie Island Indian Community. Treasure Island Resort & Casino and 
Dakota Station are located on Community lands held in trust by the 
United States of America for the benefit of the Prairie Island Indian 
Community. These commercial ventures are the principal funding source 
for most of our governmental departments, programs and services, 
including administration, education, water resources, roads, public 
safety, health care, social services, and natural resources. Revenues 
generated by tribal businesses have been used to improve the 
infrastructure of the reservation (water treatment facility, improved 
water and sewer systems), and have helped provide many essential 
services (healthcare, social services, educational programs, financial 
planning, governmental, judicial, tribal law enforcement) that most 
communities take for granted.
H.R. 16--Tribal Relations Restoration Act of 2005
    The San Manuel decision constituted a dramatic change in over 30 
years of National Labor Relations Board (NLRB) precedent that afforded 
tribe's--for their on-reservation activities--the same status under the 
National Labor Relations Act (NLRA) as other sovereign entities such as 
the United States, the states and their political subdivisions, which 
are exempted from the definition of ``employer'' under the NLRA and, 
thus, beyond the jurisdiction of the NLRB. H.R. 16 would amend to the 
NLRA to confirm the exempt status of Tribal employers in their on-
reservation activities, and reverse the harmful decision of the NLRB in 
the San Manuel decision. H.R. 16 would not grant any status or rights 
to the tribes that did not previously exist under the prior 30 years of 
NLRB decisions, but merely return to the former status quo.
    As governments engaged in economic activity on Indian lands to fund 
essential government services, sovereign tribes including ours should 
enjoy the same exempt status as the United States, government 
corporations, and the states and their political subdivisions. As is 
the case with other governmental entities, our activities are 
restricted by jurisdictional boundaries. We conduct our economic 
activity and perform essential governmental services on our tribal 
lands. And as is the case with state and local governments, we cannot 
freely relocate our enterprises to different locations to obtain a 
competitive business advantage or to access a larger population of 
potential employees. There is simply no reason to treat tribal 
government-operated businesses any differently than other governmental 
entities.
Indian Tribes as Sovereign Nations Should Be Afforded the Same Status 
        as Federal and State Governments and Subdivisions
    Indian Tribes are distinct political entities that retain their 
inherent powers of self-government absent Congressional action to 
restrict those powers. A State cannot limit the powers of a Tribe. 
Tribes have had the inherent right to govern themselves ``from time 
immemorial.''\1\ Tribal governments have the same powers as the federal 
and state governments to regulate their internal affairs, with a few 
exceptions. Tribes have the power to form a government, decide their 
own membership, the right to regulate property, the right to regulate 
commerce, and the right to maintain law and order. Accordingly, Indian 
Tribes should also be exempted from the NLRA's definition of employer, 
just as federal and state governments are exempted.
Tribal Government-Operated Businesses Should Also Be Exempted
    The Supreme Court has held that State ``political subdivisions'' 
excluded from the NLRA's coverage are defined as entities that are 
either ``(1) created directly by the State, so as to constitute 
departments or administrative arms of the government, or (2) 
administered by individuals who are responsible to public officials or 
to the general electorate.''\2\ The Prairie Island Indian Community 
owns and operates the commercial enterprises on its lands, and the 
Tribal Council as the elected representatives of the Community manages 
the enterprises. Because our commercial enterprises are operated by 
individuals who our responsible to our public officials, they are akin 
to the state ``political subdivisions'' exempted from the NLRA's 
coverage.
    The tragic history of Indian Tribes' relationship with the United 
States further underscores how Tribes' economic activity on Indian 
lands constitutes an essential government function. A string of failed 
federal initiatives effectively stripped Indian Tribes of their 
ancestral lands, took away their livelihood, and forced them on to 
desolate reservations. The destruction of Tribes' traditional way of 
life and the limited and mostly unproductive reservation land base 
resulted in widespread economic devastation throughout Indian Country. 
Indeed, Prairie Island was a place of severe poverty as recently as the 
1990's. The soil of the island is sandy and has limited value for 
farming. Consequently, throughout much of this history, Tribes, 
including Prairie Island, lacked the financial means to effectively 
exercise their governmental powers.
    For many Tribes, including Prairie Island, their tribal-operated 
commercial enterprises have provided the only successful means to raise 
funds to be able to exercise their powers of self-government. Without 
the financial means to exercise powers of self-government, Tribes would 
struggle to survive as sovereign nations. Accordingly, Tribes and their 
tribal government-operated commercial enterprises should not be treated 
any differently then states and their political subdivisions. H.R. 16's 
amendments to the NLRA would rectify this discrepancy.
NLRB Jurisdiction Over Tribes Impairs Tribal Sovereignty
    H.R. 16 would also ensure that the NLRA is viewed in light of the 
longstanding federal policies that promote tribal self-government, 
self-sufficiency, and economic development. A tribe's ability to 
establish and control the terms and conditions of employment for its 
member and nonmember employees is an essential aspect of self-
government that clearly ``has some direct effect on the political 
integrity, the economic security, or the health and welfare of the 
tribe.''\3\ For these reasons, Indian tribes have been excluded from 
the definition of employers in other federal employment legislation 
such as Title VII of the Civil Rights Act and the American's with 
Disabilities Act.\4\ According to South Dakota Senator Mundt, the 
rationale for the tribal exemption in Title VII was to protect ``the 
welfare of our oldest and most distressed American minority, the 
American Indians'' to allow them to ``conduct their own affairs.''\5\ 
Federal law also expressly permits the use of Indian preference by 
employers on or near reservations.\6\
Indian Gaming Promotes Tribal Economic Development, Self-Sufficiency, 
        and Strong Tribal Governments
    The need for H.R. 16's clarification of the rights of Indians and 
Indian tribes on Indian lands is readily apparent when one considers 
the potential application of the NLRA to tribal gaming enterprises. The 
Indian Gaming Regulatory Act (IGRA) constitutes a clear statement that 
``a principal goal of Federal Indian policy is to promote tribal 
economic development, tribal self-sufficiency, and strong tribal 
government.''\7\ Indeed, the Indian Gaming Regulatory Act (IGRA) was 
enacted 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.\8\ The Prairie Island 
Indian Community and other Minnesota tribes have experienced 
significant economic development since IGRA's enactment in 1988, 
resulting in greater self-sufficiency and stronger tribal governments.
    Treasure Island Resort & Casino is operated pursuant to IGRA as a 
governmental enterprise for the express purpose of funding essential 
governmental programs and services offered by the Prairie Island Indian 
Community to its members. Revenue generated by tribal gaming has been 
used to improve the infrastructure of the reservation (water treatment 
facility, improved water and sewer systems), and helped provide many 
essential services (healthcare, social services, educational programs, 
financial planning, governmental, tribal court, and law enforcement) 
that most communities take for granted.
    Tribal gaming also provides thousands of jobs and other economic 
opportunities in Minnesota, and contributes hundreds of millions of 
dollars in salaries, wages, benefits, vendor purchases, and taxes to 
Minnesota's economy every year while easing the burden on state and 
county public assistance programs.9 Because tribal government-operated 
gaming enterprises are so vital to tribal economic development, self-
sufficiency, and strong tribal government, Tribes and their tribal 
government-operated commercial enterprises should be excluded from NLRA 
coverage.
Conclusion
    The National Labor Relations Act should be amended to clarify the 
exempt status of Indians and Indian tribes on Indian lands. Our tribal 
government-operated businesses are the lifeblood of our Tribal 
Community and help support the economies of our neighbors and friends. 
Our tribal government-operated businesses fund our most basic and 
essential government services, including water and sewer, housing, 
paved roads, health care and educational opportunities, and provide the 
resources needed to revitalize our culture and traditions. Our Tribe 
understands that we depend on the efforts of all of our employees for 
the Tribe's growth and well-being, and we have already implemented 
policies and procedures to promote the fair treatment of all of our 
employees. Additional federal regulation is not warranted and could 
unnecessarily increase labor costs. Therefore, Indian tribes and 
businesses owned and operated by Indian tribes should be exempt from 
the NLRA.
    Pidamaya. Thank you. I welcome any questions you may have.
                                endnotes
    \1\ See Worchester v. Georgia, 515, 558 (1832).
    \2\ NLRB v. Natural Gas Utility District of Hawkins County, 402 
U.S. 600, 604-05 (1971).
    \3\ Montana v. United States, 450 U.S. 544, 566 (1981).
    \4\ 42 U.S.C. Sec. 2000e(b) (Title VII) and 42 U.S.C. 
Sec. 12111(5)(B)(i) (ADA).
    \5\ 110 Cong. Rec. 12702 (1964).
    \6\ 42 U.S.C. Sec. 2000e-2(i).
    \7\ 25 U.S.C. Sec. 2701(4).
    \8\ 27 U.S.C. Sec. 2702(1).
    \9\ See the Statewide Economic Impact analysis compiled by the 
Minnesota Indian Gaming Association at the following link: http://
www.mnindiangaming.com/template--info.cfm?page=4.
                                 ______
                                 
    Chairman Johnson. Thank you, sir.
    Dr. Harvey, you are recognized.

  STATEMENT OF PHILIP L. HARVEY, PH.D., ASSOCIATE PROFESSOR, 
                     RUTGERS SCHOOL OF LAW

    Dr. Harvey. Thank you, Mr. Chairman, other members of the 
subcommittee.
    I do not intend to use my time this morning to discuss the 
merits of the San Manuel decision, though I would be happy to 
answer questions about it that you may have.
    Instead, I would like to address the question of what 
Federal law in this area should try to do, whether or not the 
San Manuel decision comes out one way or the other after the 
court of appeals has discussed it. In other words, regardless 
of what the courts say the law is in this area, what should 
Federal policy be?
    I think the reason that is an interesting question is 
because there really are two legitimate conflicting or 
potentially conflicting goals here: the goal of honoring and 
respecting the sovereignty of American Indian tribes on the one 
hand; and the goal of honoring and respecting the right of 
association of American workers, Indian and non-Indian alike, 
on the other hand, to form, join and assist trade unions.
    It is working out law and policy to reconcile these two 
legitimate goals that ought to be the task that certainly the 
subcommittee and the Congress should entertain. Now, the goals 
that I have identified are consistent not only with deeply 
rooted principles of American law, but I also want to emphasize 
that they are consistent with obligations that the United 
States has accepted as a nation under international human 
rights law.
    The United States has ratified in 1992 the International 
Covenant of Civil and Political Rights, which means that it is 
part of the law of the land under the Constitution, and the 
International Covenant includes language that affirms both the 
importance of recognizing the sovereignty and right to self-
determination of peoples. In Article I, all peoples have the 
right of self-determination. By virtue of that right, they 
freely determine their political status and freely pursue their 
economic, social and cultural development.
    It doesn't tell us exactly what the line should be in 
determining the degree of sovereignty exercised by Indian 
tribes, but it certainly affirms that it is an important 
principle that must be kept in mind, of which Congress must be 
mindful in legislating in this area.
    It also, in Article XXII, says that everyone shall have the 
right to freedom of association with others, the same freedom 
of association recognized in Article I--excuse me, in the First 
Amendment to the U.S. Constitution, including the right to form 
and join trade unions for the protection of his interest. No 
restrictions may be placed on the exercise of this right other 
than those which are proscribed by law and which are necessary 
in a democratic society in the interests of national security 
or public safety or a few other things are mentioned.
    So the principles of human rights law are clear. It is not 
for either the central government or a local government or a 
state government or a tribal government to decide whether 
workers shall unionize. It is for the workers themselves. It is 
an aspect of their right of association to decide that they 
want to or not, and it is the role of the law to protect that 
right. Protecting that right is a point at which the 
sovereignty of all nations, including the Federal Government as 
well as tribal nations, ends.
    Now, is it possible for us to reconcile these two goals? I 
think it is. We can pursue and recognize both goals 
simultaneously and in fact advance both goals simultaneously by 
recognizing the right of Indian tribes to legislate in this 
area, to enact ordinances regulating the labor relations of 
employees within their jurisdiction, but requiring that those 
ordinances provide protections at least as great as those 
provided by the NLRA and consistent with the international 
human rights obligations that the United States has voluntarily 
taken on.
    That is a course of action that would both honor and 
respect and indeed enhance the sovereignty of the Indian tribes 
because it would invite them into an area of governance that 
presently the states enjoy, but has not historically been one 
in which they have been active, and would give them a status to 
enforce, as well as make their law in that area, provided that 
in doing so they also comported with our obligation to protect 
the rights of individual workers, Indian and non-Indian alike, 
in their employment.
    Finally, I would like to point out that this course of 
action is one that has been followed, and there is precedent 
for it in American law. The Occupational Safety and Health Act 
has a provision which allows states who want to to preempt the 
Federal Occupational Safety and Health Act by adopting their 
own occupational safety and health regulatory system, provided 
it provides protections at least as great as those afforded by 
OSHA.
    The courts enforce, the administrative bodies deciding 
whether or not the states have satisfied that condition, and of 
course I think that is an essential characteristic of any 
workable system because it is ultimately the courts that we 
rely on to tell us where those appropriate laws have been 
drawn.
    So I think that the model that we find in OSHA could easily 
be adapted to solve this problem by giving Indian tribes the 
right to preempt the NLRA, provided they do so with local 
ordinances that provide equal protection to the rights of their 
workers.
    Thank you.
    [The prepared statement of Dr. Harvey follows:]

Prepared Statement of Philip L. Harvey, Associate Professor of Law and 
                    Economics, Rutgers School of Law

    The National Labor Relations Board (NLRB or Board) decision in San 
Manuel Indian Bingo and Casino, 341 N.L.R.B. 138 (2004), invites 
reflection on how federal law should honor the possibly competing goals 
of properly respecting the sovereignty of American Indian tribes and 
the right of Indians and non-Indians alike to form, join and assist 
trade unions. My statement will address that issue, with emphasis on 
the principles that I believe should guide a possible legislative 
response to the case. My general point will be that the Congress can 
and should seek to advance both the goal of enhancing tribal 
sovereignty and the goal of protecting the associational rights of 
Indian and non-Indian workers. It can best do this, I suggest, by 
granting Indian tribes the right to preempt NLRB jurisdiction by 
adopting labor relations ordinances, ultimately enforceable in the 
federal courts, that afford rights to their employees that are at least 
as protective as those afforded by the NLRA and which also are 
consistent with the human rights obligations of the United States.
Respecting the Sovereignty of American Indian Tribes and the Right of 
        Association of Indian and Non-Indian Workers
    (1) The goal of any legislative response to the San Manuel case 
should have two objectives. Rather than seeking to reaffirm or enhance 
the sovereignty of Indian tribes at the expense of employee rights or 
to reaffirm or enhance employee rights at the expense of tribal 
sovereignty, the Congress should seek to enhance both tribal 
sovereignty and the associational rights of both Indian and non-Indian 
workers. Moreover, it should do this whether or not the Board's order 
in San Manuel is enforced by the courts.
    (2) This dual goal is consistent with long-standing principles of 
American law. The sovereignty that Indian tribes are recognized to 
possess is rooted in their history and affirmed in treaties the federal 
government has concluded with them. While opinions may differ as to the 
nature and extent of that sovereignty in particular instances, I 
believe there is broad agreement that enhancing the sovereignty of 
Indian tribes and expanding their capacity to address the needs of 
their members will serve the interests of both tribal members and the 
broader American public of which they form a part. A commitment to 
protecting the right of workers in the United States to form, join and 
assist trade unions also is deeply rooted in American law--most notably 
in the enactment of the NLRA--and while strong disagreements may exist 
over the proper boundaries of those rights, I believe there is broad 
agreement that the public interest is served by their continued 
protection.
    (3) This dual goal also comports with international human rights 
standards that the United States has committed itself to observing. The 
International Covenant on Political and Civil Rights (ICCPR), U.N. Doc. 
A/6316 (1966), which the United States ratified in 1992, affirms the 
right of all peoples to ``self-determination,'' to ``freely pursue 
their economic, social and cultural development,'' and to ``freely 
dispose of their natural wealth and resources.'' ICCPR, art. 1. While 
this language does not dictate the nature or extent of the sovereignty 
American Indian tribes should enjoy, it does underscore the fact that 
they are entitled, as a matter of right, to special deference by virtue 
of their unique historical status within the United States.
    The ICCPR also provides that ``[e]veryone shall have the right to 
freedom of association with others, including the right to form and 
join trade unions for the protection of his interests'' and that ``[n]o 
restriction may be placed on the exercise of this right other than 
those which are prescribed by law and which are necessary in a 
democratic society in the interests of national security or public 
safety, public order, the protection of public health or morals or the 
protection of the rights and freedoms of others.'' ICCPR, art. 22. As 
with the right to self determination recognized in Article 1 of the 
ICCPR, the right of association recognized in Article 22 does not 
dictate the specific legal rights workers must be accorded, but it does 
underscore that the United States has a legal duty to guarantee these 
rights to all persons, including individuals employed at enterprises 
owned and operated by Indian tribes.
    Article 2 of the ICCPR makes this clear. It provides that ``[e]ach 
State Party to the present Covenant undertakes to respect and to ensure 
to all individuals within its territory and subject to its jurisdiction 
the rights recognized in the present Covenant without distinction of 
any kind, such as race, colour, sex, language, religion, political or 
other opinion, national or social origin, property, birth or other 
status.'' The United States has assumed a duty under the ICCPR to 
protect the right of both Indian and non-Indian workers employed in 
tribal enterprises to form, join and assist trade unions, and any 
attempt to accord them a lesser level of protection than other workers 
in the United States would likely violate this duty.
    The United States also has an obligation ``arising from the very 
fact of [its] membership'' in the International labor Organization 
(ILO) `` to respect, to promote and to realize, in good faith and in 
accordance with the Constitution [of the ILO], the * * * freedom of 
association and the effective recognition of the right to collective 
bargaining.'' ILO Declaration on Fundamental Principles and Rights at 
Work, 86th Session, Geneva, June 1998 (the ILO Declaration) (emphasis 
added). This obligation (i.e., compliance with the ILO Declaration) 
subsequently has been incorporated into the Inter-American Democratic 
Charter, OAS Doc. OEA/SerP/AG/Res. 1 (2001), and both the US-Chile Free 
Trade Agreement (US-Chile FTA), Pub. L. No. 108-77, 117 Stat. 909, 911 
(2003), and the US-Singapore Free Trade Agreement (US-Singapore FTA), 
Pub. L. 108-78, 117 Stat. 948 (Sept. 3, 2003).
    (4) I am not suggesting that these obligations create any legally 
enforceable rights for American workers either on or off tribal lands. 
The United States ratification of the ICCPR, for example, expressly 
noted that the rights recognized in the Covenant should not be 
considered self-executing, and neither the US-Chile FTA nor the US-
Singapore FTA appear to contemplate the creation of self-executing 
labor rights either. Still, as duly ratified treaties of the United 
States, these agreements are part of the ``supreme Law of the Land,'' 
U.S, Const. art. VI, Sec. 2., and they impose obligations on the 
federal government that Congress should feel bound to fulfill.
    For example, both the US-Chile FTA and the US Singapore FTA contain 
virtually identical provisions, pursuant to which ``[t]he Parties 
reaffirm their obligations as members of the International Labor 
Organization (ILO) and their commitments under the ILO Declaration on 
Fundamental Principles and Rights at Work and its Follow-up (1998). 
Each Party shall strive to ensure that such labor principles and the 
internationally recognized labor rights set forth in Article 18.8 are 
recognized and protected by its domestic law * * * [E]ach Party shall 
strive to ensure that its laws provide for labor standards consistent 
with the internationally recognized labor rights set forth in Article 
18.8 and shall strive to improve those standards in that light.'' US-
Chile FTA, art. 18.1.1 & 18.1.2. The ``internationally recognized labor 
rights set forth in Article 18.8'' include ``(a) the right of 
association'' and ``(b) the right to organize and bargain 
collectively.''
    The Congress, of course, may decline to implement these provisions, 
but in so doing, it would cause the United States to default on its 
international obligations--something I presume most Members would be 
loathe to do. Indeed, there are probably no international obligations 
that it is more important for the United States to honor than its human 
rights obligations.
    My point is simple. When the Congress considers legislation that 
touches on either the sovereignty of American Indian tribes or the 
rights of workers to form, join and assist trade unions, it should be 
mindful of and seek to satisfy the human rights obligations the United 
States has assumed with respect to the subject matter of the proposed 
legislation. In this instance, that means being mindful of and seeking 
to satisfy the United States' obligation to honor both the rights of 
American Indian Tribes arising out of their limited sovereignty and the 
associational rights of all persons in the United States referenced in 
the ICCPR and the ILO Declaration.
Possible Legislative Responses to San Manuel
    (5) The bill which is the subject of this hearing (HR 16 IH) is 
inconsistent with the dual goals I have suggested should be the object 
of any legislative response to the San Manuel case, and it also is 
inconsistent with both the policy goals embodied in U.S. labor law and 
the human rights obligations the United States has assumed.
    The bill is inconsistent with the dual policy goals I have 
identified because it seeks to extinguish one (protecting the right of 
association) for the sake of honoring the other (respecting the 
sovereignty of Indian tribes). It is inconsistent with the policy goals 
embodied in U.S. labor law, because it would fail to guarantee 
protection of the rights enumerated in Section 7 of the NLRA for both 
Indian and non-Indian employees who otherwise might be subject to the 
jurisdiction of the NLRB, and it would fail to maintain the level 
playing field and equality of bargaining power that the NLRA seeks to 
maintain among and between employers and employees engaged in 
interstate commerce. Finally the statute would be inconsistent with the 
human rights obligations of the United States because it would not 
guarantee the right of association of persons employed by tribal 
enterprises operating on tribal land.
    (6) A better legislative strategy, in my view, would be one that 
sought to honor both the sovereignty of Indian tribes and the right of 
association of their employees. The best way to achieve these dual 
goals in my view, would be to grant Indian tribes the right to enact 
and administer labor relations ordinances on their own lands that would 
preempt the jurisdiction of the NLRB, but only on condition that the 
legal regimes they establish are at least as protective of the 
associational rights of their employees as the NLRA, and that they also 
conform with the obligations of the United States under the ICCPR and 
ILO Delcaration.
    Although these objectives could be at least partly achieved by 
amending Section 10 of the Act to permit the Board to enter into the 
same kind of cessionary agreements with Indian tribes that it is now 
authorized to enter into with States and Territories, legislation along 
those lines would, I believe, unnecessarily limit the authority of 
Indian Tribes to establish legal regimes more protective of the 
associational rights of their employees than the NLRA, and it also 
would leave the Board with the unilateral authority to enter or not to 
enter such cessionary agreements.
    A strategy that would more fully honor the sovereignty of Indian 
tribes while also allowing for enhanced protection of the right of 
association of tribal employees, would be to add a provision to the 
``Limitations'' sections of the NLRA (presently Sections 13-18) that 
would permit tribes to preempt the NLRA by adopting labor relations 
ordinances and enforcement regimes that provided legal protections for 
the right of association of their employees that are equal to or 
greater than those provided by the NLRA and which also conform to the 
internationally recognized labor rights referenced in the ICCPR and the 
ILO Declaration. Approval of a tribal labor relations regime could be 
vested in the Board to ensure that the tribal plan complied with these 
requirements, and the Board's decision in that regard could be made 
reviewable by the Circuit Courts of appeal. Enforcement of the rights 
established pursuant to a tribal plan would be vested in the tribes 
themselves, with the U.S. Courts of Appeal being given jurisdiction to 
review cases in which a complaining employee asserts that s/he has not 
been accorded rights at least equal to those afforded under the NLRA 
and/or consistent with internationally recognized labor rights.
    Such legislation would enhance the right of association of tribal 
employees by guaranteeing them protection at least equal to that 
afforded by the NLRA, and it also would enhance the sovereignty of 
American Indian tribes by authorizing them to develop and administer a 
labor relations regime of their own devising in conformity with both 
U.S. and internationally recognized labor standards.
    (7) This legislative strategy is not only workable, but there is 
precedent for it in the statutory design of the Occupational Safety and 
Health Act (OSHA). Section 667 of OSHA establishes a mechanism whereby 
States may ``assume responsibility for development and enforcement 
therein of occupational safety and health standards,'' 29 USC 
Sec. 667(b), provided the proposed regulatory regime ``will be at least 
as effective in providing safe and healthful employment and places of 
employment as the standards promulgated under section 6555 of this 
title which relate to the same issues,'' id. Sec. 667(c)(2). Authority 
to approve and monitor state plans pursuant to this provision is vested 
in the Secretary of Labor, and the Secretary's decisions in that regard 
are made reviewable in the Circuit Courts of Appeal, id. Sec. g.
    OSHA does not grant this preemptive right to Indian tribes, but the 
reverse preemption model it embodies could be adapted quite easily for 
incorporation in the NLRA and applied to Indian tribes (and possible to 
states as well). The Congress need not choose between honoring the 
sovereignty of Indian tribes and protecting the associational rights of 
American workers. It can and should do both.
                                 ______
                                 
    Chairman Johnson. Thank you, sir.
    Governor Garcia, you are recognized.

STATEMENT OF HON. JOE GARCIA, GOVERNOR, PUEBLO OF SAN JUAN, NEW 
                             MEXICO

    Mr. Garcia. Good morning, everyone.
    Greetings from Ohkay Owingeh, formerly known as San Juan 
Pueblo, in New Mexico. Good morning, Mr. Chairman, Chairman 
Johnson, Ranking Member Andrews and all of the committee 
members. Thank you for being here. Thank you for allowing me to 
testify today.
    I would also like to thank personally Congressman Hayworth, 
the sponsor of H.R. 16, and Congressman Kildee, who happen to 
be the co-chairs of the Native American Caucus. Thank you.
    At the outset, let me say that the tribal leaders 
throughout the country recognize the contributions that the 
labor unions have made to working people in the United States. 
However, today I am here as Governor of Ohkay Owingeh and the 
president of NCAI in support of H.R. 16 because it recognizes 
the sovereign governmental rights of Indian tribes to make 
their own labor policies based on the conditions on their 
reservations.
    H.R. 16 would restore the intent of Congress that tribal 
governments should not be treated as private employers under 
the National Labor Relations Act. The National Labor Relations 
Board has tried to create a false distinction between what it 
thinks are the governmental functions of the tribes, such as 
health care and the commercial activities of the tribe such as 
gaming enterprises.
    We believe the Indian Gaming Regulatory Act is quite clear 
that tribal gaming is a government activity to raise revenue 
for tribal government functions. Indian gaming is much more 
akin to a state lottery than to commercial gaming. My tribe, 
Ohkay Owingeh, has been involved in litigation over labor 
issues.
    In 2002, the 10th Circuit Court of Appeals affirmed the 
power of the tribe, of my pueblo, to outlaw forced union 
membership. In that case, the NLRB wanted to force every 
employee working for a tribally owned and operated sawmill on 
pueblo land to support a certain union. The tribal council felt 
strongly that the tribal council should make the labor policy 
on tribal lands. Many of our tribal members have very low 
incomes, and we did not feel that they should be forced to pay 
union dues. By a nine-to-one margin, the 10th Circuit agreed.
    More broadly, there are at least four ways that the 
application of the National Labor Relations Act will adversely 
affect tribal sovereignty.
    First, guaranteeing tribal employees the right to strike 
would threaten tribal government services. Federal employees 
and state employees do not have the right to strike because 
government services are too important to the public.
    On most reservations, there is only one major employer, and 
it is a tribal enterprise. We don't have an effective tax base 
yet. The tribal enterprise is often the only major source of 
tribal revenue, so it must keep operating in order to keep the 
schools open and the police department functioning, as a couple 
of examples. Allowing unions the right to strike would give 
outside forces unreasonable leverage over the tribal 
government.
    Second, treating Indian tribes as private employers would 
interfere with tribal authority to require Indian preference in 
hiring. The vast majority of Indian tribes have laws requiring 
employers on-reservation to give preference to Indians. This 
right is protected by Title VII of the Civil Rights Act and 
affirmed by the Supreme Court.
    Preference laws are important because 50 percent of Indians 
residing on reservations are unemployed. Indian tribes should 
not be required to bargain with a union to retain their Indian 
preference laws.
    Third, treating Indian tribes as private employers would 
interfere with the tribal power to exclude non-members. The 
power to exclude is one of the most fundamental powers of 
tribal government. However, if the NLRA applies to tribes as 
employers, rights to exclude would be in jeopardy. For example, 
a hearing on arbitration could lead to reinstatement and return 
of employees that the tribe had fired and banned from the 
reservation for misconduct.
    Fourth, and finally, a union with many tribal members could 
interfere with tribal government internal politics. On large 
reservations, the majority of the employees are tribal members. 
A powerful union leader could manipulate votes in tribal 
elections. The union could strike immediately before a tribal 
election. The union could demand health care benefits that are 
better than other tribal members. Because of the small size of 
tribal communities, unions could dominate tribal politics in a 
way that would benefit union members, but hurt the tribe.
    In conclusion, I want to reiterate that Indian tribes 
support strong relationships with their employees. Tribal 
enterprises have not succeeded by fighting with their 
employees, but by building partnerships. But this partnership 
has to be founded on the recognition that a tribe is a 
government and the labor policies must come from within the 
tribe's government, rather than being imposed from the outside.
    I am confident that tribal leaders want to work with labor 
and with Congress to resolve these issues to preserve tribal 
sovereignty and get back to work on building better lives for 
our tribal members and our employees.
    I thank the committee for the opportunity to appear today 
and would be happy to answer questions if you have any. Thank 
you.
    [The prepared statement of Mr. Garcia follows:]

   Prepared Statement of Hon. Joe Garcia, President of the National 
 Congress of American Indians and Governor of Ohkay Owingeh (San Juan 
                                Pueblo)

Introduction
    Good morning Chairman Johnson, Ranking Member Andrews, and all of 
the distinguished members of this Committee. Thank you for the 
invitation to testify today and for your commitment to Indian people 
and for upholding the trust and treaty responsibilities of the federal 
government. I would also like to thank Congressman J.D. Hayworth, the 
main sponsor of H.R. 16, and Congressman Dale Kildee, who joined Mr. 
Hayworth in urging that this hearing be held.
    My name is Joe Garcia, I am the President of the National Congress 
of American Indians (``NCAI''), and I am also the Governor of Ohkay 
Owingeh (formerly known as the Pueblo of San Juan). For those 
unfamiliar with the NCAI, it is the oldest, largest, and most 
representative Indian tribal organization in the nation. The NCAI was 
founded in 1944 in response to federal ill-considered policies 
affecting Indian tribes then being debated in Congress. These 
policies--known as Tribal Termination--were disastrous for Indian 
tribes and Indian people and only recently have Indian communities 
resurrected their governments and their economies.
    There are 562 Indian tribal governments in the United States, and 
we enjoy demographic, cultural, political, and economic diversity like 
no other communities in our great nation. It is a mistake to see Indian 
country as monolithic and subject to one-size fits all Federal 
policies, as that envisioned lately by the National Labor Relations 
Board.
Tribal Labor Matters Best Left to Indian Tribes
    At the outset, I want to say that tribal leaders recognize and 
appreciate the significant contributions that labor unions have made to 
working people in the United States. Many of our people have worked as 
union members on farms and in factories. We greatly appreciate the 
efforts of labor unions to improve wages and working conditions.
    The member tribes of NCAI have deliberated labor matters over the 
years and have voiced their strong support for H.R. 16. Attached is a 
copy of NCAI Resolution No. MOH-04-028, duly adopted by our membership 
on June 23, 2004. Accordingly, I am here in support of H.R. 16 solely 
because it confirms the sovereign governmental right of Indian tribes 
to make and live by their own labor policies based on the economic and 
social conditions existing on their lands. Many Indian tribes have 
exercised that sovereign authority to welcome labor unions and 
encourage union organization. But that is a choice for Indian tribal 
governments--not Federal bureaucrats or labor leaders--to make in a way 
that protects the functions of tribal government and the tribal members 
living on reservation. In my testimony, I will discuss the experiences 
that my Pueblo, Ohkay Owingeh, has had with labor unions, and the 
broader concerns that NCAI has because of the differences between 
tribal governments and private businesses in the labor union context.
    H.R. 16 would restore the intent of Congress to treat tribal 
governments the same as state and local governments under the National 
Labor Relations Act (``NLRA''). The NLRA specifically exempts Federal, 
state and local governments from its definition of ``employer.'' The 
NLRA, however, is totally silent about Indian tribal governments. The 
NLRA was enacted in 1935, during the Great Depression, and given the 
lack of economic development on Indian reservations at that time; it is 
not surprising that the law makes no reference to Indian tribes. 
However, for over thirty years, the National Labor Relations Board 
(``Board'') has interpreted the NLRA to include tribal governments in 
its general exemption for government entities because of Congress's 
intent to exempt all government entities. The Board has also ruled that 
territorial governments, such as Puerto Rico and Guam, are also exempt 
under NLRA.
    Recently, however, the Board in San Manuel Indian Bingo and Casino, 
341 NLRB 138 (2004), reversed this thirty year old precedent and 
unilaterally expanded its jurisdiction to include Indian tribes, even 
when the tribe is operating on reservation to raise governmental 
revenue and provide employment to tribal members. Rather than treat 
tribal governments like states and local governments as envisioned by 
the NLRA, the Board created an artificial distinction between 
``governmental'' functions of tribes, such as health care, and the 
``commercial'' activities of tribes, such as a gaming. Even with this 
distinction, the Board ignored Congress' recognition in the Indian 
Gaming Regulatory Act, 25 U.S.C. Sec. Sec. 2701 et seq., that Indian 
tribal gaming is a governmental function. Indian gaming is a government 
activity because it raises revenue for tribal government functions. In 
this way, Indian gaming is much more akin to state lotteries than to 
commercial gaming. The NCAI believes that Congress should restore the 
implicit intent in the NLRA to treat tribal governments the same as 
state and local governments. If the Board's decision is allowed to 
stand, then the only governments that are not exempt from the NLRA will 
be tribal governments.
    Statements by members of Congress at the time IGRA was passed also 
make it clear that IGRA was not intended to undermine tribal government 
regulatory authority on the reservation. As Senator Daniel K. Inouye, 
IGRA's main sponsor and long-time Chairman of the Senate Committee on 
Indian Affairs, stated on the floor shortly before IGRA cleared the 
Senate:
    There is no intent on the part of Congress that the compacting 
methodology be used in such areas such as taxation, water rights, 
environmental regulation, and land use.
    On the contrary, the tribal power to regulate such activities, 
recognized by the U.S. Supreme Court * * * remain fully intact. The 
exigencies caused by the rapid growth of gaming in Indian country and 
the threat of corruption and infiltration by criminal elements in Class 
III gaming warranted utilization of existing State regulatory 
capabilities in this one narrow area. No precedent is meant to be set 
as to other areas. (134 Cong. Rec. S24024-25, Sept. 15, 1988)
    My Pueblo, Ohkay Owingeh, has won litigation over this issue. On 
January 11, 2002, the Tenth Circuit Court of Appeals, in National Labor 
Relations Board v. Pueblo of San Juan, 276 F.3d 1186 (10th Cir. 2002) 
(en banc), affirmed the power of my Pueblo to pass a right-to-work law 
prohibiting compulsory union membership on its lands.
    In that case, the Board wanted to force every employee working for 
a tribally owned and operated sawmill on tribal land to financially 
support labor unions. The Tribal Council, of which I am a member, felt 
strongly that the Tribal Council, rather than the Board or labor 
unions, should make the labor policy affecting tribal members. Many of 
our tribal members have very low incomes and the Tribal Council did not 
feel that they should be forced to join a labor union or pay union dues 
without their consent. The Tribal Council enacted a right-to-work law 
to give tribal members the right to choose whether or not to join or 
financially support a labor union rather than being forced to do so. 
The Board argued that my Pueblo had no authority to pass a right-to-
work law because only states and territories were allowed to do under 
the NLRA. By a nine to one margin, the Tenth Circuit upheld the right 
of my Pueblo to pass a right-to-work law even though Indian tribes are 
not expressly mentioned in the NLRA along with states and territories. 
Rather, the Tenth Circuit relied on Congress' intent to exempt all 
government entities, which it ruled included tribal governments. The 
important principle of this case is the Tenth Circuit's acknowledgement 
that Congress intended for Indian tribal governments to be treated the 
same as state and territorial governments. It is this principle that we 
ask Congress to restore in the NRLA today through H.R. 16.
    It is also important that the Committee understand that in many 
ways Indian America is an emerging market, often with vulnerable 
populations and delicate economies and that labor union policy on 
Indian lands is an important aspect of economic regulation that should 
be left to Indian tribal governments as a matter of self-determination 
and self-sufficiency in the same way that states and local governments 
are allowed to develop their own policies.
    More broadly, there are at least four ways that the Board's attempt 
to expand its jurisdiction into Indian country would substantially 
interfere with important attributes of tribal sovereignty in ways that 
have not been authorized or even considered by Congress.
    First, guaranteeing tribal employees the right to strike would 
preempt tribal law and threaten tribal government services. We are very 
concerned that the right to strike would allow outside forces to 
control tribal government decisions. On most reservations there is only 
one major employer and it is a tribal government enterprise, usually a 
casino or an agriculture or timber operation. Tribal enterprises are 
unlike private industry and they don't have the option of bankruptcy. 
It is often the only major source of tribal revenue, so it must keep 
operating in order to keep the schools open and the police departments 
staffed and vigilant. Allowing unions the
    right to strike would give them inordinate leverage to demand 
larger and larger shares of the tribal enterprise revenue, revenues 
that are intended to provide desperately needed services on the 
reservation.
    Government services are critically important to a large segment of 
the public, and the public is especially vulnerable to ``blackmail'' 
strikes by government employees. This is the reason that government 
employees are generally barred from striking. Federal employees and 
most state employees generally do not have the right to strike. See 5 
U.S.C. 71 16(b)(7), 7311; DiSabatino, Who Are Employees Forbidden to 
Strike Under State Enactments or State Common-Law Rules Prohibiting 
Strikes by Public Employees or Stated Classes of Public Employees, 22 
A.L.R. 4th 1103 (1983).
    Tribal governments have as urgent a need as state or local 
governments to uninterrupted performance of services to the community, 
and are more vulnerable. Many tribal governments have little or no 
discretionary funding other than revenue from their economic 
enterprises.
    Strikes against tribal enterprises that the Board dismissively 
describes as ``commercial in nature--not governmental'' could easily 
disrupt tribal services to a greater degree than state or local 
governments because other governments can rely on the bulk of their 
revenues coming from their tax base, which Tribes conspicuously lack. 
The Board has made the implausible assumption that Congress intended to 
expose tribal governments to strikes by tribal employees--an exposure 
the Act spares other governments.
    Second, treating Indian tribes as private employers under the NLRA 
would interfere with tribal authority to require Indian preference in 
employment. With the approval of Congress and the courts, the vast 
majority of Indian tribes have laws requiring employers on reservation 
to give preference to Indians in all phases of employment. Preference 
laws are important because the unemployment rate on Indian reservations 
is much higher than anywhere else in the country. The Bureau of Indian 
Affairs estimates that 50 percent of Indians residing in Indian country 
are unemployed. See Dept. of Interior, Bureau of Indian Affairs, 1997 
Labor Market Information on the Indian Labor Force: A National Report, 
at 4 (1998). Congress recognized and protected tribal preference laws 
in Title VII of the Civil Rights Act, which excludes tribes from the 
definition of ``employer'' and exempts businesses ``on or near'' Indian 
reservations. In Morton v. Mancari, 417 U.S. 535 (1974), the U.S. 
Supreme Court unanimously upheld this provision.
    Application of the NLRA to tribal enterprises would jeopardize a 
tribes' right to enforce its Indian preference laws. If tribal 
employees chose a union it would become ``exclusive representative of 
all the employees.'' The union would have the duty of equal treatment 
and nondiscrimination among its members. The tribe would be obligated 
to bargain with the union to retain its sovereign right to apply its 
Indian preference laws. The union might resist the application of 
Indian preference, or seek to condition its acceptance on concessions 
by the tribe on other issues. Requiring a tribe to bargain to retain 
its Indian preference laws seriously interferes with the tribe's core 
retained rights to make and enforce its own laws. In view of Congress's 
strong support of Indian preference, it cannot reasonably be assumed 
that Congress intended to force tribes to bargain with unions to 
preserve their Indian preference laws. Yet this is what follows from 
the Board's new interpretation of the NLRA.
    Third, and similarly, treating Indian tribes as private employers 
would interfere with the tribal power to exclude non-members in the 
employment context. The tribal power to exclude from reservation lands 
is one of the most fundamental powers of tribal government and the 
partial source of tribal civil jurisdiction over non-members. The power 
to exclude includes the power to ``place conditions on entry, on 
conditioned presence, or on reservation conduct.'' See, Merrion v. 
Jicarrilla Apache Tribe, 455 U.S. 130 at 144 (1982).
    However, if the NLRA applies to tribes as employers, their right to 
exclude in that context would be abrogated. For example, a hearing or 
arbitration required under the NLRA could lead to reinstatement and 
return of employees that the tribe had fired and banned from the 
reservation for misconduct. The Board makes the unreasonable assumption 
that Congress intended to interfere with this core right of tribal 
sovereignty.
    Fourth, and finally, a union with many tribal members could 
substantially interfere with tribal government internal politics. On 
larger reservations the majority of the employees are tribal members. A 
powerful union leader could manipulate union votes in tribal elections. 
The union could strike or threaten to strike immediately before an 
election. The union could demand health care benefits that are better 
than other tribal members. The union could bargain to limit employment 
in order to raise wages and interfere with the tribal government's 
plans to employ as many tribal members as possible. Because of the 
relatively small size of tribal communities, unions could sow 
considerable political and social discord and dominate tribal politics 
in a way that would benefit union members but operate to the detriment 
of the tribe as a whole.
    In conclusion, I want to reiterate that Indian tribes support 
strong relationships with their employees. I was recently visiting the 
San Manuel reservation for a celebration of the 20th Anniversary of the 
opening of the tribe's casino. At the ceremony, the tribal council 
honored the twenty-one employees who had worked at the casino for the 
entire twenty years. It was more like a family reunion, as the tribal 
council members hugged and thanked the employees. It was obvious that 
the San Manuel Tribe treats its employees very well if they are willing 
to work for 20 years as a bingo floor clerk. I also noted that San 
Manuel has a positive working relationship with the union that 
represents its employees.
    My point is that tribal enterprises have not succeeded by fighting 
with their employees; rather tribal enterprises prosper by building 
partnerships with their employees that benefit all. But a partnership 
with a tribal government has to be founded on the recognition that a 
tribe is a government and the mechanism for setting tribal policies 
must come from within the tribe's government, rather than being imposed 
from the outside.
    I am confident that Indian tribal leaders want to work in 
partnership with labor unions and with Congress to resolve these issues 
and get back to work on building better lives for our tribal members 
and our employees.
    I thank the Committee for the opportunity to appear today and would 
be happy to answer any questions you might have.
                                 ______
                                 
    Chairman Johnson. Thank you, sir.
    We appreciate the testimony of all of you.
    Mr. Johnson, I wonder if you could tell us more about the 
rights that your workers currently enjoy without the 
intercession of the NLRB?
    Mr. Johnson. Thank you, Mr. Chairman.
    Currently, as employees of Treasure Island Resort and 
Casino, there is a process, there is a due process that is 
followed in there. Our employees once they are employed, they 
have a right to, if they feel like they were improperly 
terminated or if their termination was wrongfully done to them, 
or they feel there was something amiss, they have an option to 
approach and file a grievance, a grievance which consists of a 
board that will sit and hear their problems.
    Because remember, at stake, when you work for a gaming 
facility, you have a license that is awarded to you to work in 
a gaming facility. Once that license is revoked, you are not 
allowed to work in any native-owned casino throughout the 
United States here.
    So what we do is give them those rights to come back and 
appeal their termination to the board, and they make a 
determination if the policies and procedures were followed, and 
the employee was either a good or bad employee, and we give 
them that right through the board to either reinstate their 
employment or to uphold the decision of terminating him.
    Chairman Johnson. Thank you, sir.
    For the members' information, we have a vote going, as you 
know. I intend to continue for another 10 minutes. If we 
finish, we will; if we don't, we will come back, pending your 
choices.
    I see there are only three of us, other than Andrews and I, 
left. So Mr. Andrews, you are recognized for 5 minutes.
    Mr. Andrews. Thank you, Mr. Chairman.
    Mr. Johnson, I just want to ask you about the grievance 
procedure you just mentioned. Who appoints the grievance board 
that would hear the grievance?
    Mr. Johnson. The grievance boards consist of one tribal 
councilmember, the general manager, the director of that 
department, and the human resource director is involved in it. 
I am missing one, it would be a party of five of a board. We 
always have an odd number on the board to break up that vote in 
case there is a tie on a vote, so we have five members that 
consist of that.
    Mr. Andrews. Are all the members, though, either employed 
by the employer or somehow associated with the employer?
    Mr. Johnson. Yes, they are.
    Mr. Andrews. OK.
    Dr. Harvey, here is the concern that I have. Before I say 
it, let me say, Governor Garcia, I appreciated the close of 
your testimony where you indicated your willingness to work 
with all parties here. I think that is very welcome and I 
appreciate it very much.
    The concern I have, Dr. Harvey, is let's say that an 
employee that we are talking about here stands outside of her 
place of employment and leaflets, and suggests that what is 
going on inside by the employer is unfair and wrong.
    Am I correct in assuming that if the law before the San 
Manuel decision were to be restored, that is if H.R. 16 were 
passed, and there were no labor ordinance with that particular 
tribe, and that employee was discharged, putting aside any 
constitutional arguments about that, that the discharge would 
stand for leafleting and trying to organize a union? Is that 
correct?
    Dr. Harvey. That is correct.
    Mr. Andrews. And it is further my understanding that you 
proposed a solution that strikes me as something of a 
compromise. Instead of the full rules of the National Labor 
Relations Act applying, if I understand your testimony 
correctly, what you are saying is this: The tribe would be 
given the opportunity to enact a labor ordinance, and if that 
labor ordinance met standards of fairness such as those that 
you have outlined in your testimony, then the ordinance would 
stand. It would preempt the National Labor Relations Act.
    For example, let me ask you, would the right to leaflet in 
pursuit of collective bargaining and organizing be one of those 
standards that would be required?
    Dr. Harvey. Presumably, it would, though a distinction 
would probably be recognized as to where the leafleting 
occurred, as presently is the case under the NLRA with respect 
to private employers.
    Mr. Andrews. But I assume there would be a generic standard 
about the right to speak out about conditions in the workplace.
    Dr. Harvey. Yes, there would have to be for the ordinance 
to satisfy standards.
    Mr. Andrews. And then it is your proposal that if the 
ordinance satisfies the standards, it would hold? It would 
preempt Federal labor law?
    Dr. Harvey. Yes, not only with respect to the rules that 
are applied, but also with respect to the administration of the 
law. So they would be able to enforce as well as define the 
law, provided that there was final court review by the U.S. 
courts to determine that the rights that were implemented were 
in fact in accord with the requisite standards.
    Mr. Andrews. Who would you suggest would adjudicate the 
question of whether the ordinances met the standards that you 
have articulated?
    Dr. Harvey. I think that that would be most appropriately 
done following exhaustion of tribal remedies, so that the tribe 
would have a set of remedies, either their court system or 
arbitral system or some kind of system would finally come to a 
decision, either the rights were violated or they were not. And 
if the disappointed party thought that rules had been applied 
that did not meet national and international standards, then 
they would be permitted to appeal to the courts of appeal with 
respect to that question only.
    Mr. Andrews. Am I reading your testimony correctly to 
conclude that it is your position that workers on Indian 
reservations already have these rights by virtue of the 
international conventions that we have recognized?
    Dr. Harvey. Well, unfortunately, the rights recognized in 
the International Covenant are not self-executing. The Senate 
made that clear when they ratified it. So the issue is not 
whether the rights are the basis of a lawsuit now. They are 
not. The point is that Congress I think has an obligation to be 
mindful of these international obligations of the United States 
and make sure that the United States does not go into default.
    Mr. Andrews. But would it be an accurate characterization 
of your position to say that workers on reservations have these 
rights? They simply don't have a means of vindicating these 
rights without either National Labor Relations Act coverage or 
coverage in the mode that you suggest?
    Dr. Harvey. Yes. The fundamental principle in human rights 
law is that people have these rights, and it is the obligation 
of governments to create mechanisms to protect them. They have 
the rights. We need mechanisms to protect them, mechanisms 
created either by the tribes or by Congress.
    Mr. Andrews. Thank you, Phil.
    Chairman Johnson. Mr. Kline for a comment.
    Mr. Kline. Yes, thank you, Mr. Chairman.
    In the interest of time and the fact that the clock is 
running down for us voting, I just would like to take 1 minute 
to thank all of the witnesses for being here today. It seems 
clear to me that we have an issue of sovereignty where we have 
the tribes potentially being given by the San Manuel decision 
even less sovereignty than state and local governments.
    Clearly, the tribes have a unique situation, as very 
clearly articulated by Mr. Garcia, where you are restricted in 
where you can move to. You have requirements to employ tribal 
members. So you are even further restricted and need, it would 
seem to me, even more latitude.
    So, a very interesting hearing. Thank you very much for 
joining us today.
    I yield back, Mr. Chairman.
    Chairman Johnson. Mr. Kildee for a comment.
    Mr. Kildee. Very briefly. You may want to reply in writing 
to this, and we will submit, without objection, some questions 
in writing.
    In your testimony, you seem to indicate that H.R. 16, in 
that the United States would default on its international 
obligations. Do you believe that the United States is currently 
fulfilling its international obligations in light of the fact 
that NLRA expressly exempts state and local governments, 
municipalities and cities, from NLRA activity, even in their 
economic enterprises?
    Dr. Harvey. It certainly isn't default by virtue that it 
exempts them. It would be in default only if the laws of those 
states and municipalities failed to provide the requisite 
protection and the Federal Government failed to take action.
    Mr. Kildee. And they do in the South. In the South, they 
forbid public employees. I have a bill in to try to get police 
and fire the right to bargain collectively in the South. So if 
some of the southern states would be in violation of the 
international law that you referred to, the tribes might be in 
violation.
    Dr. Harvey. Yes. I think that is true, and not only true 
with respect to state law, but also Federal law because there 
are groups of private employees that are not covered by the 
NLRA, farmworkers for instance. So that the obligation under 
international law to extend these protections to them has also 
not been fulfilled.
    Mr. Kildee. OK. I will submit this to you in writing also, 
Mr. Chairman, without objection.
    Chairman Johnson. No objection.
    I want to thank the witnesses for your valuable time and 
testimony, and both the witnesses and members for their 
participation.
    Let me just ask you, where is the pueblo in New Mexico that 
you are from?
    Mr. Garcia. Ohkay Owingeh, also known as San Juan Pueblo, 
is located between Santa Fe and Taos. It is about 40 miles 
north of Santa Fe.
    Chairman Johnson. OK. Well, I have a place in Angel Fire, 
and I know where Santa Fe is. My son is out there.
    Mr. Garcia. Come by and stop by.
    [Laughter.]
    Chairman Johnson. Thank you all for your participation.
    If there is no further business, the subcommittee stands 
adjourned.
    [Whereupon, at 11:41 a.m., the subcommittee was adjourned.]
    [Additional materials submitted for the record follow:*]
---------------------------------------------------------------------------
    *Submitted and placed in permanent archive file, San Manuel Indian 
Bingo and Casino, 341 N.L.R.B. 1055(2004), http://www.nlrb.gov/nlrb/
shared--files/decisions/341/341-138.pdf. (Submitted for the record by 
Chairman Sam Johnson).
---------------------------------------------------------------------------
    [The prepared statement of Mr. Marchand follows:]

  Prepared Statement of Hon. Michael Marchand, Chairman, Confederated 
                   Tribes of the Colville Reservation

Introduction
    Good morning Chairman Johnson, Vice-Chairman Kline, Congressman 
Andrews and distinguished members of the Subcommittee. My name is 
Michael Marchand and I am the Chairman of the Colville Business 
Council, the governing body of the Confederated Tribes of the Colville 
Reservation (``Colville Tribe'' or ``Tribe''). Today, I am pleased to 
provide our views on H.R. 16, the ``Tribal Labor Relations Restoration 
Act of 2005,'' and the National Labor Relation Board's decision in San 
Manuel Indian Bingo and Casino (``San Manuel''), which was the impetus 
for this legislation.
    As explained in more detail below, the San Manuel decision 
constitutes an unwarranted and serious infringement of Indian tribes' 
right to govern their own affairs. If ultimately upheld on appeal, the 
decision will only result in uncertainty for Indian tribes in their 
regulation of on-reservation employment. We believe that H.R. 16 is an 
important first step in addressing these concerns and commend 
Congressman Hayworth for his leadership and attention to this important 
issue for Indian tribes.
Background on the Colville Tribe
    The Colville Indian Reservation is located in north central 
Washington State and comprises over 1.4 million acres of trust and 
allotted lands. Although now considered a single Indian tribe, the 
Confederated Tribes of the Colville Reservation is, as the name states, 
a confederation of 12 smaller aboriginal tribes and bands from across 
eastern and central Washington. A majority of our 9,200 tribal members 
live on the reservation.
    Our location is quite remote from the main commercial corridors in 
Washington State. The nearest entrance to an interstate highway is 
approximately 100 miles from Nespelem, the seat of our tribal 
government. Our reservation encompasses lands within Okanogan and Ferry 
counties,\1\ the economies of which are primarily dependent on 
agriculture, limited mineral development, and timber. The Federal 
government, on its own behalf or on behalf of the Colville Tribe, holds 
the majority of the land in both counties.
---------------------------------------------------------------------------
    \1\ The Colville Tribe also exercises governmental authority over 
off-reservation allotments in a number of other counties.
---------------------------------------------------------------------------
    Notwithstanding these challenges, the Colville Tribe has become a 
major contributor to these local economies. The Colville Tribe, 
together with its corporate entity, the Colville Tribal Enterprise 
Corporation, employs over 2,000 people, many of whom are non-Indians. 
Many of our tribal member employees own fee property off the 
reservation and all contribute taxes to the local economy. As one of 
the largest employers in north central Washington, our tribal payroll 
contributes substantial sums to our non-Indian neighbors as well.
The San Manuel Decision
    As the Subcommittee knows, on May 28, 2004, the National Labor 
Relations Board in San Manuel reversed course on 30 years of precedent 
and held that the NLRA presumptively applies to Indian tribes. San 
Manuel involved an unfair labor practice complaint brought against an 
on-reservation, tribally controlled casino.
    In its decision, the Board established a new standard: the NLRA 
will apply to Indian tribes and on-reservation tribal employers unless 
application would (1) ``touch exclusive rights of self-government in 
purely intramural matters''; (2) would abrogate treaty rights; or (3) 
policy considerations--such as the commercial or governmental nature of 
the employer's business, the number of Indian employees employed or the 
percentage of the employer's sales to non-Indians--weigh against the 
Board's exercise of jurisdiction.
    Applying this new standard to the San Manuel Tribe's casino, the 
Board concluded that policy considerations weighed in favor of 
asserting jurisdiction. In doing so, the Board noted that ``the casino 
is a typical commercial enterprise, it employs non-Indians, and it 
caters to non-Indian customers.''
The San Manuel Decision Conflicts With Tribal Sovereignty
    The Colville Tribe is regularly approached by labor unions and, 
though the Tribe is not categorically opposed to the concept of unions, 
it is of the firm opinion that it as a tribal government has the 
inherent authority to decide in the first instance whether, to what 
extent, and under what circumstances outside interests may influence 
the employment relationship between the Colville Tribe and its 
employees.
    Application of the NLRA to Indian tribes interferes with this 
relationship. For example, under certain conditions Federal law allow 
Indian tribes to exercise an employment preference for members of 
Federally recognized Indian tribes. Most Indian tribal governments 
adhere to this practice, commonly referred to as ``Indian preference,'' 
and have enacted tribal ordinances and regulatory regimes implementing 
it.\2\ In our case, the Colville Tribe invests substantial resources to 
ensure that we hire qualified tribal members when vacancies within the 
Tribe or our tribal enterprises become available.
---------------------------------------------------------------------------
    \2\ The Bureau of Indian Affairs, an agency of within the 
Department of the Interior, also exercises Indian preference for 
certain positions. The U.S. Supreme Court upheld this practice in 
Morton v. Mancari, 417 U.S. 535 (1974).
---------------------------------------------------------------------------
    If qualified tribal members are not available to fill certain 
vacancies, the Tribe has in some cases hired individuals on an interim 
basis to work with and train tribal members for eventual replacement. 
Throughout the years, many of the top management positions in the 
Tribe's enterprises have been held by tribal members who ascended to 
those positions after completing training programs. All of this has 
been made possible in part by our ability to exercise Indian 
preference.
    Application of the NLRA to Indian tribes jeopardizes the entire 
concept of Indian preference. If the NLRA were to apply to Indian 
tribes, tribes' Indian preference policies would almost certainly be 
subject to negotiation during collective bargaining and unions could 
categorically refuse to agree to any part of the policies. Such an 
impasse in negotiations would raise the possibility that arbitrators 
would decide whether or not Indian preference would be permissible or 
even strikes. Such a perverse result would turn back the clock on a 
system that has benefited Indian tribes and tribal economies for 
decades.
Under San Manuel the NLRA Could Apply to a Broad Range of Non-Gaming 
        Tribal Employers
    While the San Manuel case involved a tribal casino, if ultimately 
upheld the decision will almost certainly be construed by some to 
encompass non-gaming economic enterprises--or even tribal governments 
themselves.
    The Colville Tribe operates small casinos. Given our rural 
location, however, our gaming revenues have rarely approached $25 
million in any fiscal year and have declined steadily over the past 
several years. Unlike some Indian tribes with gaming facilities located 
near major metropolitan areas or interstates, we are not a wealthy 
gaming tribe. Even so, our gaming revenues have allowed us to expand 
governmental services to our people and provide jobs to Indians and 
non-Indians alike in an otherwise economically-depressed area.
    None of this would matter under the San Manuel decision. Our small 
rural gaming facilities would be treated the same as those facilities 
operated by the wealthiest of Indian tribes. While national unions may 
adhere to the common misconception that all Indian tribes with gaming 
are ``rich,'' the Colville Tribe is living proof that this is not the 
case.
    To the contrary, the Colville Tribe's primary source of income is 
timber. We own two saw mills that produce dimensional lumber, plywood 
and veneer. Collectively, these two saw mills support several hundred 
Indian and non-employees. Under the San Manuel decision, these non-
gaming enterprises that provide the backbone of our tribal economy 
might also be covered by the NLRA.
Clarity Is Needed on Application of the NLRA to Indian Tribes
    The San Manuel decision raises more questions that it answers. Most 
notably, while the decision presumes that the NLRA applies to Indian 
tribes, how the three exceptions the Board established would apply in 
practice is uncertain at best. For example, the decision implies that 
commercial activities are more likely to be excepted from application 
of the NLRA than governmental activities. However, the decision does 
not rule out the possibility that the NLRA might also apply to critical 
health and safety personnel such as tribal police officers and 
firefighters. This leaves open the possibility that these critical 
services could be interrupted in the event of a strike. The 
governmental exemption in Section 2(2) of the NLRA recognizes that 
strikes by public employees would jeopardize public safety and allows 
governments to determine for whether and to what extent their employees 
should be allowed to strike. At the very least, Indian tribal 
governments deserve the same level of certainty when providing for the 
safety of their people.
The Colville Tribe Sees H.R. 16 as a Good Starting Point
    Again, we applaud Congressman Hayworth for introducing H.R. 16 and 
believe that the legislation is good starting point for providing much 
needed clarity on this issue. The legislation would exempt from the 
NLRA those tribally owned and controlled businesses that are located on 
land held in trust status (or subject to a restriction against 
alienation) by the United States for the benefit or an Indian tribe or 
an individual Indian.
    The Colville Tribe hopes that the Committee will expand the scope 
of H.R. 16 to include a categorical exemption for Indian tribal 
governments. The implications of San Manuel are real and have the 
potential not only to infringe on Indian preference and tribal 
sovereignty, but also on the ability of Indian tribes to ensure the 
safety of their people.
    The Colville Tribe appreciates the opportunity to provide this 
statement and looks forward to working with the Committee on this 
important legislation.
                                 ______
                                 
    [Letter of support from Mr. Bozsum follows:]
                                                    August 4, 2006.
Hon. Sam Johnson,
Chairman, Subcommittee on Employer-Employee Relations, Committee on 
        Education and the Workforce, U.S. House of Representatives, 
        Washington, DC.
Hon. Rob Andrews,
Ranking Member, Committee on Education and the Workforce, U.S. House of 
        Representatives, Washington, DC.
    Dear Chairman Johnson and Congressman Andrews: On behalf of the 
Mohegan Tribe I am pleased to submit this statement for the record in 
support of the Tribal Labor Relations Restoration Act of 2005 (H.R.16), 
legislation introduced by Congressman J.D. Hayworth. I respectfully 
request that this statement be included in the Hearing Record for the 
legislative hearing on H.R. 16 held on July 20, 2006.
    Introduction to the Mohegan Tribe. The Mohegan Tribe of Connecticut 
(the ``Tribe'') is a sovereign, federally-recognized Indian nation with 
a reservation on the Thames River near Uncasville, Connecticut. The 
Tribe gained Federal recognition in March 1994, and currently includes 
nearly 2,000 members, most of who reside in Connecticut near ancestral 
Tribal lands. The Tribe is governed by its Constitution, re-affirmed in 
April, 1996. The nine-member Tribal Council has executive and 
legislative responsibilities not otherwise granted to the Council of 
Elders. Members serve four year, staggered terms. The Tribe exercises 
full civil jurisdiction and concurrent criminal jurisdiction over its 
reservation lands.
    For the reasons set out below, the Tribe has a keen interest in 
H.R.16 and the impetus for the bill: the 2004 decision by the National 
Labor Relations Board (``NLRB'') in San Manuel Indian Bingo and Casino. 
As the Committee may know, the Tribe owns and operates a large resort 
casino--the Mohegan Sun--that is one of the largest employers in the 
State of Connecticut with nearly 10,000 jobs created and sustained by 
the operations of the casino, hotel, and related amenities.
    The Tribe Strengthens the Area's Economic, Employment, and Cultural 
Foundations. Along with Foxwoods, the hotel and casino complex operated 
by the Mashantucket Pequot Tribal Nation, the Tribe is one of 
Connecticut's largest source of tax revenue, and the second largest 
contributor to the State budget after the Federal government. In 
addition to these direct benefits to the State and our employees, the 
Tribe pays millions of dollars each year to other Connecticut 
companies, creating hundreds of additional jobs. By all accounts, the 
Tribe's activities in southeast Connecticut are economically 
significant and as the following makes clear, are overwhelmingly 
positive:
     Mohegan Sun and Foxwoods, along with the two tribal 
governments and the Tribe's other economic enterprises, employ more 
people in Connecticut than any other single entity.
     The 25% slot payment--one we willingly pay--contributed 
more than $400 million to the State's revenues in 2003. That's not only 
more than any other state employer pays the state; it is more than all 
other Connecticut corporations pay in corporate tax combined.
     Last year, Mohegan Sun paid more than $4 million to 
Connecticut companies for products and services. We assume Foxwoods 
paid nearly as much. Those payments support hundreds of Connecticut 
jobs.
     The State's own Tourism Office recently announced the 
results of a survey revealing that the main reason tourists come to 
Connecticut is to visit the two casinos, officially recognizing that 
Indian gaming is driving the rise of tourism, Connecticut's fastest 
growing industry.
     In the early 1990's, Connecticut was the only state in the 
union whose population was decreasing. Since the casinos opened and 
began creating thousands of new jobs, that trend has reversed, and the 
state is growing again.
     State-sponsored research in the 1990s predicted that 
southeastern Connecticut would have an unemployment rate over 20% by 
the year 2000. Today, that rate stands at less than five percent 
because of our operations.
     In 2001, when the Tribe began thinking about its future 
water needs, we didn't devise our own solutions. We brought together a 
coalition of leaders and planners from Norwich and other surrounding 
towns, and coordinated the development of a long-term water management 
plan that will ensure the region's water supply for decades.
     Mohegan Sun and Foxwoods contribute millions of dollars to 
state non-profit causes every year, funding programs for everything 
from Connecticut Special Olympics to local youth organizations.
    When Indian gaming first began to blossom, many people--Indian and 
non-Indian alike--sounded the clarion call that gaming would taint 
Native beliefs, render Indian people ``less Indian'' and in the process 
destroy the foundations of Indian culture. I think it obvious that just 
the opposite has happened: gaming has filled tribal coffers and made 
possible a variety of cultural preservation activities including 
language retention, sacred site protection, and a host of others.
    Buoyed by a healthy revenue stream, the Tribe is making an 
extensive effort to preserve and strengthen its cultural traditions, 
thus ensuring that its heritage and history live on. The heart of this 
effort was and remains a small museum on Mohegan Hill in Uncasville, 
Connecticut. The museum was created in 1931 by Tribal leader John 
Tantaquidgeon and maintained by his son Harold and daughter Gladys, who 
served as Tribal medicine woman until her passing in 2005.
    The Tribe's Labor Policies Are Pro-Worker and Comport with 
Fundamental Fairness. We offer two extremely generous health care plans 
to our employees one of which continues to be without cost to them. To 
unsure fairness, we have a review process in which employees can 
dispute termination and disciplinary action, which includes colleagues 
and a peer of their choice. We offer one free meal per day to every 
full time employee as well as unlimited salads and cold service items 
thought their work day. Prior to expanding our resort we built a state 
of the art employee center which includes a computer lab, bank, dry 
cleaner, pharmacy, and a wellness center.
    The NLRB Decision is an Erosion of Fundamental Tribal Rights. As 
the Committee knows, the National Labor Relations Act (``NLRA'') is the 
main Federal law regulating relations between unions and employers and 
guarantees the right of employees to organize (or not to organize) a 
union and to bargain collectively with their employers. The NLRA 
applies to ``employers,'' and section 2(2) of the NLRA defines 
``employer'' as ``any person acting as an agent of an employer, 
directly or indirectly,'' but does not include the United States, State 
governments, or political subdivision thereof.
    On May 28, 2004 the NLRB issued its decision in San Manuel Indian 
Bingo and Casino, 341 NLRB 138 (2004), concerning application of the 
NLRA to an on-reservation casino operated by the San Manuel Band of 
Mission Indians. The Board previously held in decisions dating back to 
the 1970s that on-reservation, tribally-controlled businesses were 
political subdivisions of the United States and therefore exempt under 
section 2(2) of the NLRA. Overruling 30 years of its own precedent, the 
NLRB decided that the NLRA presumptively applied to the San Manuel 
Band's casino and established a new standard for determining whether 
the Board will assert jurisdiction over Indian tribes or on-reservation 
tribal businesses. On October 5, 2005, the Board affirmed its May 
ruling and in the wake of the affirmation, the San Manuel Band has 
decided to appeal the decision in Federal court.
    The San Manuel Indian Bingo and Casino decision makes clear that 
the Board will presume that the NLRA applies to Indian owned and 
operated businesses, including those operated by tribal governments, 
unless they fall within one of the limited exceptions. This means that, 
in the view of the Board, tribal employers are presumptively required 
to accommodate union activity under the NLRA and negotiate and enter 
into collective bargaining agreements with non-Indian unions. This is 
clearly in opposition to fundamental tribal self-governance.
    The Hayworth Bill Is Necessary to Protect Tribal Authority. H.R. 16 
would restore the original intent of Congress that tribal governments 
should not be treated as private sector employers under the NLRA. For 
over forty years, Federal courts have interpreted the NLRA to include 
tribal governments in its general exemption for government entities 
because Congress clearly intended to exempt all government entities. 
Unlike private businesses, governments cannot safely interrupt their 
operations because of labor strife nor should they be forced to 
negotiate fundamental matters of jurisdiction.
    In addition to recapturing the intent of Congress, H.R. 16 also 
rests on the solid, well-respected principle of Indian Self 
Determination. Since July, 1970, when President Nixon issued his 
Special Message to Congress on Indian Affairs, the goals of Federal 
Indian policy have straightforward and successful: to strengthen Indian 
tribal governments and create vigorous tribal economies. These goals, 
taken together, represent the policy of Indian Self Determination. In 
the intervening 35 years, much progress has been made on both scores 
and year-to-year, Indian tribes increase the sophistication of their 
governmental operations and succeed in fostering economic growth and 
job creation on their lands.
    H.R. 16 is a necessary and proper exercise of congressional action 
because it confirms the sovereign governmental right of Indian tribes 
to make and live by their own labor policies based on the economic and 
social conditions existing on their lands. Many Indian tribes exercise 
that sovereign authority to welcome labor unions and encourage union 
organization. This choice is a choice for sovereign Indian tribes, and 
not for the NLRB, labor bosses, or Federal bureaucrats. Both legally 
and practically, Indian tribes are responsible for the care and well-
being of their members and their employees and decisions that surround 
the question of unionization must be made in a way that protects the 
functions of tribal government and the tribal members living on 
reservation.
    I want to thank you for your willingness to hold the hearing on 
H.R. 16 and to listen to the views of Indian tribes from across our 
nation. If you have questions about the Tribe, its operations, or this 
statement, please contact me directly or my Chief of Staff, Chuck 
Bunnell at (860) 862-6120.
            Sincerely,
                                 Bruce ``Two Dogs'' Bozsum,
                                  Chairman, Mohegan Tribal Council.
                                 ______
                                 
    [Letters of support submitted to Mr. Hayworth follow:]

                 NATIONAL CONGRESS OF AMERICAN INDIANS

               The National Congress of American Indians
                         Resolution #MOH-04-028

  TITLE: Congressional Clarification of Treatment of Indian Tribes as 
      Governments for Purposes of the National Labor Relations Act

    WHEREAS, we, the members of the National Congress of American 
Indians of the United States, invoking the divine blessing of the 
Creator upon our efforts and purposes, in order to preserve for 
ourselves and our descendants the inherent sovereign rights of our 
Indian nations, rights secured under Indian treaties and agreements 
with the United States, and all other rights and benefits to which we 
are entitled under the laws and Constitution of the United States, to 
enlighten the public toward a better understanding of the Indian 
people, to preserve Indian cultural values, and otherwise promote the 
health, safety and welfare of the Indian people, do hereby establish 
and submit the following resolution; and
    WHEREAS, the National Congress of American Indians (NCAI) was 
established in 1944 and is the oldest and largest national organization 
of American Indian and Alaska Native tribal governments; and
    WHEREAS, the United States Constitution, U.S. Supreme Court 
decisions and hundreds of treaties, federal statutes, and regulations 
all recognize that Indian Tribes are distinct governments; and
    WHEREAS, Indian gaming, like State lottery operations, is a method 
of generating governmental revenue, which is used to rebuild tribal 
community infrastructure, provide essential programs for Indian 
citizens, and provide contributions to charitable organizations and 
local communities; and
    WHEREAS, a number of individual Indian Tribes have made the 
sovereign governmental decision to work with labor organizations to 
represent the rights of their respective tribal governmental employees; 
and
    WHEREAS, Congress, through the National Labor Relations Act (NLRA), 
exempts governmental employers from application of the Act; and
    WHEREAS, the National Labor Relations Board (NLRB), in San Manuel 
Indian Bingo & Casino, ignored congressional intent to exempt 
governments from application of the NLRA by finding that the Act 
applies to tribal governmental employers of gaming operations.
    NOW THEREFORE BE IT RESOLVED, that the NCAI does hereby urge the 
United States Congress to reaffirm that Indian Tribes operating 
governmental gaming facilities pursuant to IGRA are exempt from the
    National Labor Relations Act, and to clarify that states are 
prohibited from including labor conditions in compacts negotiated 
pursuant to IGRA; and
    BE IT FURTHER RESOLVED, that this resolution shall be the policy of 
NCAI until it is withdrawn or modified by subsequent resolution.
                             certification
    The foregoing resolution was adopted at the 2004 Mid-Year Session 
of the National Congress of American Indians, held at the Mohegan Sun 
H. el and Casino, Uncasville, CT on June 23, 2004 with a quorum 
present.
                                               Tex G. Hall,
                                                         President.
    Adopted by the General Assembly during the 2004 Mid-Year Session of 
the National Congress of American Indians, held at the Mohegan Sun 
Hotel and Casino, in Uncasville, CT on June 23, 2004.
                                 ______
                                 
     Executive Office of the Governor & Lieutenant 
                                          Governor,
                               Gila River Indian Community,
                                    Sacaton, AZ, September 9, 2004.
Hon. J.D. Hayworth,
House of Representatives, Washington, DC.
    Dear Congressman Hayworth: On behalf of Gila River Indian 
Community, I want to thank you for the leadership you have shown in 
Congress in trying to resolve the important problem of the recent 
National Labor Relations Board (``NLRB'') decision in San Manuel Indian 
Bingo and Casino, which attempts to assert NLRB jurisdiction over 
tribal governments and tribally operated enterprises. We wanted to 
inform you of the Community's support for your amendment to the Fiscal 
Year 2005 Labor-Health and Human Services appropriations bill that 
would disallow the NLRB from moving forward with enforcing this 
erroneous decision and exercising jurisdiction over tribal governments 
and tribally-operated enterprises.
    The NLRB decision, as you know, goes against decades of the NLRB's 
own precedent and directly infringes upon the sovereignty of every 
Indian tribe in the United States, and that is why we are concerned. 
The decision also ignores federal court decisions treating Indian 
Tribes as governments for purposes of the NLRA. Like many tribes, we 
would like to see a permanent fix for this problem, but recognize that 
your amendment will allow for the necessary time period for continued 
negotiations on a reasonable long-term fix.
    We thank you for the opportunity to submit our views on this 
matter, and please do not hesitate to contact me if you have any 
questions. Thank you again for your strong leadership on this and so 
many other important issues affecting Indian tribes.
            Sincerely,
                                            Richard Narcia,
                                                          Governor.
                                 ______
                                 
              California Nations Indian Gaming Association,
                                 Sacramento, CA, September 9, 2004.
    Dear Congressman: The member Indian tribes of the California 
Nations Indian Gaming Association (CNIGA) urge you to support an 
amendment offered by Rep. J. D. Hayworth (R-AZ) to prevent the National 
Labor Relations Board (NLRB) from enforcing its misguided decision in 
San Manuel Indian Bingo and Casino, 341 NLRB 138 (May 28, 2004). The 
proposed amendment is to the FY 2005 Labor, HHS appropriations bill.
    In the decision referenced above, the Board overruled 30 years of 
its own precedent and disregarded a number of federal court decisions 
that treat Indian tribes as governments for purposes of the National 
Labor Relations Act. State and local governments are exempt from the 
Act. Historically, the Board and the courts have extended the same 
respect to tribal governments. Without adequate explanation or 
analysis, the Board deemed San Manuel's government-owned operation a 
commercial enterprise, not worthy of treatment as a government 
employer. This misguided decision affects every Indian tribe in the 
Nation.
    Tribal governments provide critical government services in their 
jurisdictions and should not be held hostage to the provisions of the 
NLRA. Unlike private businesses, tribal enterprises generate revenues 
that fund public safety, law enforcement and other governmental 
services that, if interrupted, would cause significant harm to the 
tribal communities.
    While we urge the Congress to seek a permanent legislative solution 
to address the NLRB's San Manuel decision, the Hayworth amendment will 
provide an interim fix during which all interested parties can work 
toward a reasonable long-term solution to the problem created by the 
decision.
            Sincerely,
                                           Anthony Miranda,
                                                          Chairman.
                                 ______
                                 
                                           Cherokee Nation,
                                  Tahlequah, OK, September 9, 2004.
    Dear Congressmen: Cherokee Nation would like to express its support 
for Congressman Hayworth's amendment to the FY 2005 Labor, Health and 
Human Services Appropriations bill.
    This amendment will prevent the National Labor Relations Board from 
enforcing its misguided decision in San Manuel Indian Bingo and Casino, 
341 NLRB 138 (May 28, 2004). In that decision, the Board overruled 30 
years of its own precedent and ignored a number of federal court 
decisions treating Indian Tribes as governments for purposes of the 
NLRA. State and local governments are exempt from application of the 
NLRA and the past, the Board and the courts have provided that same 
respect to tribal governments. Without adequate explanation or 
analysis, the Board deemed the tribal government-owned operation in 
question a commercial enterprise, not worthy of governmental treatment. 
This decision represents a complete disrespect for the status of tribes 
as governmental employers.
    Indian tribes provide crucial government services on Indian lands, 
and government operations can't be held hostage to the provisions of 
the NLRA. The Hayworth amendment will provide a period of time, during 
which all interested parties can negotiate a reasonable long-term 
approach to resolve the problems posed by the decision.
    Cherokee Nation respectfully asks for your support on the Hayworth 
amendment.
            Sincerely,
                                                Chad Smith,
                                                   Principal Chief.
                                 ______
                                 
                                            The Hopi Tribe,
                                 Kykotsmovi, AZ, September 7, 2004.
Hon. J.D. Hayworth,
U.S. House of Representatives, Washington, DC.
    Dear Representative Hayworth: On behalf of the Hopi Tribe of 
Arizona, I am writing to share the tribe's support for your amendment 
to the Fiscal Year 2005 Labor-HHS Appropriations bill that would 
prevent funds from being used to implement the National Labor Relations 
Board's San Manuel decision. Like you, we believe that decision was 
contrary to tribal sovereignty and congressional intent and will be 
reversed in the courts. However, it is important to prevent its 
enforcement until that final resolution occurs.
    As you know, the National Labor Relations Board (NLRB) steadfastly 
held for nearly 40 years that tribes are units of government and, as 
such, are exempt from the National Labor Relations Act's (NLRA's) 
definition of employer. Notwithstanding this long history, the NLRB 
recently ruled that it has jurisdiction over employment disputes at 
tribally-owned businesses, even when those businesses are located on 
Indian reservations. This ruling ignores the fact that tribes are 
governments and use revenues earned, from tribal businesses to provide 
essential government services.
    The NLRB's decision made much of the fact that some tribal 
businesses, including gaming enterprises, have grown successful. 
Apparently, the NLRB believes that sovereignty applies only to certain 
tribal businesses, but this is a mistaken and distorted notion. Non-
gaming tribes such as Hopi are working to spur economic development for 
tribally-run businesses so that this revenue can make up for our lack 
of an adequate tax base. Like state and local governments, the Hopi 
Tribe cannot afford to have revenue from its economic development 
ventures suspended or cut off by a crippling strike.
    Again, we support your amendment to the Labor-HHS Appropriations 
bill and thank you for your leadership on this important issue of 
tribal sovereignty.
            Sincerely,
                                         Wayne Taylor, Jr.,
                                                      Chairman/CEO.
                                 ______
                                 
                          Tribal Chairman's Office,
                                Cheyenne River Sioux Tribe,
                                  Eagle Butte, SD, August 11, 2004.
Hon. J.D. Hayworth,
Member of Congress, Scottsdale, AZ.
    Dear Mr. Hayworth: I thank you for your concern and commitment to 
our Native People and their sovereign rights. The recent ruling by the 
National Labor Relations Board determining that the National Labor 
Relations Act applies to tribal activities located on reservation lands 
is clearly a threat to the foundation of Indian Law and violates Tribal 
Sovereignty. Therefore, I am in full support of H.R. 4680, the Tribal 
Labor Relations Act. This legislation would be a tremendous benefit to 
Native American Tribes, allowing tribes to further develop economic 
development opportunities on their reservations, unhindered by 
ambiguities in federal law
    I have contacted South Dakota Members of Congress to support H.R. 
4680 and if there is anything further that I can assist you with please 
do no hesitate to contact me.
            Sincerely,
                                         Harold C. Frazier,
                                              CRST Tribal Chairman.
                                 ______
                                 
                            Rincon Luiseno Band of Indians,
                                 Valley Center, CA, August 3, 2004.
Hon. J.D. Hayworth,
Rayburn House Office Building, Washington, DC.
    Dear Congressman Hayworth: Thank you for your letter dated July 8, 
2004 regarding H.R. 4680 and your efforts to protect the principle of 
tribal sovereignty. As members of the Rincon Band, we sincerely thank 
you for your efforts on behalf of all Native Americans.
    It is imperative that H.R. 4680 be passed. We will do what we can 
in our small way to support this legislation.
    Let me also take this opportunity to thank you, on behalf of the 
Tribal Council, for not only attending the recent event we held with 
Harrah's Resort & Casino, but also for giving us the chance to present 
our position to you in regard to the recent legal action we took 
against the state of California. We know you have a very busy schedule, 
and greatly appreciated the opportunity to discuss this issue with you.
    If there is any specific effort we might do to further support H.R. 
4680, please do not hesitate to contact us.
            Sincerely,
                                           John D. Currier,
                                                          Chairman.
                                 ______
                                 

                 UNITED SOUTH AND EASTERN TRIBES, INC.

                      USET Resolution No. 2005:027

 SUPPORT FOR HR 16  TRIBAL LABOR RELATIONS RESTORATION ACT OF 
                                  2005

    WHEREAS, United South and Eastern Tribes, Incorporated (USET) is an 
intertribal organization comprised of twenty-four (24) federally 
recognized Tribes; and
    WHEREAS, actions of the USET Board of Directors officially 
represent the intentions of each member Tribe, as the Board of 
Directors is comprised of delegates from the member Tribes' leadership; 
and
    WHEREAS, on January 4, 2005, HR 16, the Tribal Labor Relations 
Restoration Act of 2005 was introduced in Congress; and
    WHEREAS, HR 16 has been referred to the House Committee on 
Education and the Workforce; and
    WHEREAS, HR 16, if enacted, would amend the National Labor 
Relations Act to provide that any business owned and operated by an 
Indian Tribe and located on its Indian lands is not considered an 
employer for purposes of the Act; and
    WHEREAS, enactment of HR 16 will recognize the inherent sovereign 
rights of Indian Tribes to govern all Tribal affairs including Tribal 
businesses and its employees without interference from third parties; 
therefore be it
    RESOLVED that the USET Board of Directors supports HR 16, Tribal 
Labor Relations Restoration Act of 2005.
                             certification
    This resolution was duly passed at the USET Impact Week Meeting, at 
which a quorum was present, in Arlington, VA, on Thursday, February 10, 
2005.
                                             Keller George,
                                                         President.
                                           Eddie L. Tullis,
                                                         Secretary.
                                 ______
                                 
                        Forest County Potawatomi Community,
                                        Crandon, WI, June 24, 2005.
Ryan Scrotc,
Native American Caucus.
    Dear Mr. Scrotc: I write on behalf of the FCP Tribe to express our 
concern over remarks made during the June 7th, 2005 meeting of the 
Senate Interior Appropriations Subcommittee. Suggestions were made to 
look at a new formula ``that gives those (tribes) who don't have the 
benefit of casinos a larger share of the government's assistance.''
    Our tribe is fundamentally opposed to means testing for the funding 
of Federal Indian programs. Many federal programs designed to benefit 
Indian Tribes are a direct result of treaty obligations that the United 
States incurred in return for vast concessions of tribal homelands. 
Many other federal programs simply acknowledge the Constitutional 
status of Indian Tribes as governments. These programs afford tribes 
the same access to federal programs that benefit State and local 
governments. We do not object to the many federal programs that are 
need or poverty based: such as general assistance programs, low-income 
housing, heating assistance, and others that are based on general per 
capita income-not on gaming revenue. However implementing means testing 
related to Indian gaming revenues on the federal programs based in 
treaty and trust obligations and the governmental status of Indian 
Tribes, such as health care, law enforcement and road construction, 
would be contrary to the trust duties, treaty obligations, and the 
Constitutional recognition of Indian tribes as governments.
    It is true that Indian gaming has lifted some tribes out of 
generations of poverty and welfare. Yet Indian gaming is not a panacea 
for all of Indian country's ills. Too many of our people continue to 
suffer poverty and disease. Many tribes that have gaming continue to 
struggle to provide basic governmental services to their citizens.
    The success of tribal gaming operations depends on a number of 
factors, including locations, management, and the strength of the local 
economy. The success of State government-run lotteries also depends on 
many of these same factors. However, Congress would never consider 
implementing a means testing approach to distributing federal 
programmatic funds to State and local governments that looked to the 
success for the various state lottery programs. Congress must extend 
this same comity to tribal governments, and not single out Indian 
gaming. Instead, we urge you to seek new methods--through legislation 
or other avenues--to generate economic development in Indian country to 
meet the longstanding unmet needs faced by tribes in providing 
governmental services to their citizens. Do not penalize the one proven 
method of economic self-sufficiency for tribal governments.
    We respectfully request that you consider these factors when 
discussing the allocation of monies for Indian tribes and reject any 
suggestions to means test federal aid against the governmental revenue 
generated from gaming, We greatly appreciate your support of Indian 
country and your consideration of this important request.
            Sincerely,
                                                 Al Milham,
                                                     Vice Chairman.
                                 ______
                                 
                        Office of the Tribal Chief,
                       Mississippi Band of Choctaw Indians,
                                      Choctaw, MS, August 26, 2004.
Hon. John A. Boehner,
Hon. J.D. Hayworth,
U.S. House of Representatives, Washington, DC.
    Dear Representatives Boehner and Hayworth: On behalf of the 
Mississippi Band of Choctaw Indians, I write to thank you for 
introducing H.R. 4906, the Tribal Labor Relations Restoration Act of 
2004. H.R. 4906 confirms that tribal sovereignty and congressional 
intent will be protected under the National Labor Relations Act.
    As you know, the Commerce Clause of the United States Constitution 
grants Congress the exclusive power to ``regulate commerce'' with 
American Indian tribes. Accordingly, Congress has specifically exempted 
tribes from several major employment laws, including Title VII of the 
Civil Rights Act of 1964, Title I of the Americans with Disabilities 
Act, and the Workers Adjustment and Retraining and Notification Act. 
Additionally, tribes are implicitly exempted from federal employment 
laws based on principles of sovereign immunity and tribal self-
determination. Among those is the National Labor Relations Act (NLRA). 
Indeed, the National Labor Relations Board (NLRB) consistently and 
rightly held for nearly forty years that tribes are units of government 
and, as such, are exempt from the NLRA's definition of employer.
    Notwithstanding this long history, the NLRB recently ruled that it 
has jurisdiction over union disputes arising at tribally-owned 
businesses on Indian reservations. This ruling ignores the fact that 
tribes are governments and use revenues earned from tribal businesses 
to provide essential government services. Like other tribes, the 
Choctaw need this revenue because of the lack of an adequate tax base. 
And, like other governments, the Choctaw can not afford to have this 
revenue suspended or cut off by a crippling strike. Health care, law 
enforcement, infrastructure, and many other pressing needs would be 
adversely affected if this component of self-determination were 
permanently stripped from our tribe.
    H.R. 4906 is a well-crafted measure that will reverse the NLRB's 
erroneous decision and restore tribal sovereignty. The Mississippi Band 
of Choctaw Indians appreciates your leadership on this important issue 
and looks forward to working with you to secure enactment of your bill.
            Sincerely,
                                            Phillip Martin,
                                                      Tribal Chief.
                                 ______
                                 
                  Executive Office of the Chairman,
                               White Mountain Apache Tribe,
                                     Whiteriver, AZ, July 12, 2004.
Hon. J.D. Hayworth,
Rayburn House Office Building, Washington, DC.
Re: Tribal Labor Relations Act of 2004

    Dear Congressman Hayworth: The White Mountain Apache Tribe 
appreciates and supports legislation you have recently introduced, the 
Tribal Labor Relations Act of 2004; which would specifically exempt 
federally recognized Indian Tribal governments from the application of 
the National Labor Relation Act and the jurisdiction of the National 
Labor Relation Board. The recent NLRB decision in the San Manuel case 
represents a direct attack on our Tribal sovereignty and our right of 
self-determination. There can be no greater intrusion upon our right to 
manage our own internal affairs and the relationships amongst our 
employees than to subject our homeland to union organizers and the 
jurisdiction of the NLRB which does not understand the unique political 
relationship that Indian Tribes have With the United States government.
    Lacking a Tribal property or income tax base, Indian Tribes must 
generate needed revenue through the economic development of their 
natural resources, Tribal government sponsored enterprises, tourism, 
and more recently, gaming. Only Tribal governments may own and operate 
Indian Casinos. The Indian Gaming Regulatory Act (IGRA) requires that 
revenue from Gaming be used to benefit Tribal Governmental programs in 
the area of health, education, and welfare. Unionization union 
activities on our aboriginal and reserved trust lands will disrupt our 
gaming and other governmental enterprises, undermine our right to 
exclude non-members, and diminish our sovereign authority river lands 
and activities within our ReserVation boundaries.
    The White Mountain Apache Tribe appreciates your quick and 
protective response to the ill-advised NLRB/San Manuel decision.
            Sincerely yours,
                                             Dallas Massey,
                                                          Chairman.
                                 ______
                                 
                        Reservation Tribal Council,
                               Bois Forte Band of Chippewa,
                                     Nett Lake, MN, August 3, 2004.
Hon. J.D. Hayworth,
U.S. House of Representatives, Washington, DC.
    Dear Congressman Hayworth: This is in response to your July 8, 2004 
letter to former Chairman Donald concerning H.R. 4680 and your efforts 
to re-affirm that businesses owned and operated by Indian tribes are 
not subject to the National Labor Relations Act (NLRA).
    I was sworn in as Chairman of the Bois Forte Band on July 13, 2004, 
and am pleased to see that you have introduced this important 
legislation. The Bois Forte Band believes that Indian tribal 
governments should be treated as a state government for purposes of the 
NLRA. Other federal statutes have treated tribal governments the same 
as state governments, and doing so preserves the principle of tribal 
sovereignty and recognizes the unique status of Indian tribes.
    I want to make it clear that we support your legislation because it 
supports tribal governments and not because we are in any way opposed 
to organized labor. The Bois Forte Band recognizes the role of 
organized labor and has entered into project labor agreements with 
local unions on all of our major economic development projects. We 
believe that such agreements are the best way to implement tribal 
policies of Indian preference in employment while at the same time 
providing opportunities for union workers.
            Sincerely yours,
                                            Kevin W. Leecy,
                                                          Chairman.
                                 ______
                                 
                                   Oneida Nation Homelands,
                                        Verona, NY, August 5, 2004.
Hon. J.D. Hayworth,
U.S. House of Representatives, Washington, DC.
    Dear Congressman Hayworth: On behalf of the Oneida Indian Nation, I 
would like to thank you for your letter regarding the introduction of 
H.R. 4680, the ``Tribal Labor Relations Act.'' This bill reaffirms that 
businesses fully owned and operated by Indian tribes are not considered 
employers subject to the National Labor Relations Act (``NLRA''). We 
commend you and your office for your continuing leadership on this very 
important issue.
    As you know, Keller George, a member of the Oneida Indian Nation's 
Men's Council, and the president of the United South and Eastern 
Tribes, Inc., testified before the House Resources Committee on April 
17, 2002 in support of similar legislation introduced by you in the 
107th Congress. He testified about the growing concern in Indian 
Country over so-called ``unionization agreements,'' which would be 
included as part of tribal-state gaming compacts. We are concerned that 
some states are using IGRA to circumvent the NLRA by insisting on rules 
that tip the delicate labor-management balance strongly in favor of 
unions. These provisions deny employees of Indian-run casinos the right 
to a free choice in deciding whether or not they want to join a union.
    Your legislation would overturn a decision by the Nation Labor 
Relations Board on May 28, 2004, that reversed 30 years of precedent by 
holding that the NLRA does not exempt Indian tribes. Under the Unites 
States Constitution, Indian tribes are sovereign governments, and they 
have an inherent right to decide whether to enter into labor 
agreements.
    Consequently, we fully support H.R. 4680, and we look forward to 
working with you and your staff on an issue that has important 
consequences for Indian Country.
    Please do not hesitate to contact me with any questions.
            Na ki wa,
                                            Ray Halbritter,
                                             Nation Representative.
                                 ______
                                 
                         Ewiiaapaayp Tribal Office,
                      Ewiiaapaayp Band of Kumeyaay Indians,
                                        Alpine, CA, August 9, 2004.
Hon. J.D. Hayworth,
U.S. House of Representatives, Washington, DC
Re: H.R. 4680

    Dear Congressman Hayworth: The Ewiiaapyaap Band of Kumeyaay Indians 
supports H.R. 4680, the Tribal Labor Relations Act. The Tribe supported 
the draft of this bill by letters to you dated June 17, 2004, and to 
Congressmen Kildee, Rahall, and Rangell dated June 18, 2004.
    Should there be any questions regarding this matter, please contact 
the Tribe's Executive Director. Thank you.
            Sincerely,
                                         Harlan Pinto, Sr.,
                                                          Chairman.
                                 ______
                                 
                                 Ewiiaapaayp Tribal Office,
                                         Alpine, CA, June 17, 2004.
Hon. J.D. Hayworth,
Hon. Dale Kilee,
Hon. Nick Rahall,
Hon. Charlie Rangell,
U.S. House of Representatives, Washington, DC
    Dear Congressmen: As the Chairman of the Ewiiaapyaap Band of 
Kumeyaay Indians, I am writing to express my strong support for your 
proposed bill to amend the National Labor Relations Act ``to ensure 
that Indian tribes and any organizations owned, controlled, or operated 
by Indian tribes are not considered employers for purposes of such 
Act.'' This bill is desperately needed to stop the erosion of tribal 
sovereignty, and I hope you will vigorously push for its passage and 
enactment.
    Please let us know what we can do to further our common goal of 
seeing this legislation gned into law. In the meantime, please accept 
my best regards.
    Should there be any questions regarding this matter, please contact 
the Tribe's Executive Director. Thank you.
            Sincerely,
                                          Harlan Pinto Sr.,
                                                          Chairman.
                                 ______
                                 
                                  Legal Department,
                        Forest County Potawatomi Community,
                                      Milwaukee, WI, June 23, 2005.
Hon. John Boehner,
Chairman, Education and Workforce Committee, U.S. House of 
        Representatives, Washington, DC.
Hon. Jerry Lewis,
Chairman, Appropriations Committee, U.S. House of Representatives, 
        Washington, DC.
    Dear Chairman Boehner and Chairman Lewis: I write to offer the 
Forest County Potawatomi Community's support for legislation that would 
clarify that tribal governments enjoy status equal to state and local 
governments under the National Labor Relations Act. In particular, the 
Tribe strongly supports an amendment to be offered by Congressman 
Hayworth to the FY 2006 Labor, Health and Human Services Appropriations 
bill that will prohibit the National Labor Relations Board from 
implementing its San Manuel decision. That decision--issued last year--
held for the first time that the tribal governments can be subjected to 
the requirements of the National Labor Relations Act, although the same 
is not true regarding any other governments.
    The San Manuel decision was a significant break with longstanding 
precedent under which the NLRB and the courts held the NLRA 
inapplicable to sovereign tribes.
    The Hayworth amendment is intended to return the law to the way it 
was before the NLRB's radical departure in San Manuel, and to protect 
tribes from the application of the NLRA. The NLRA is a labor law 
designed for private sector employers, not governmental employers. The 
San Manuel decision, if allowed to stand, threatens to burden a range 
of operations, including hospitals and schools, to federal mandates in 
a manner that is fundamentally inconsistent with tribal governments 
status. The Hayworth amendment is needed to ensure that tribal 
governments are treated as other governments are under federal law, and 
to ensure that tribes can continue to use their resources to provide 
services and benefits to members of their communities as other 
governments do.
    Thank you for your consideration of this important issue.
            Sincerely,
                                             Jeff Crawford,
                                                  Attorney General.
                                 ______
                                 
                        National Indian Gaming Association,
                                     Washington, DC, June 23, 2005.
    Dear Congressman: I write on behalf of the National Indian Gaming 
Association (NIGA), and NIGA's 184 Member Tribes, with regard to 
Congressman J.D. Hayworth's amendment to the FY 2006 Labor-HHS 
Appropriations bill.
    On May 28, 2004, the NLRB overturned 30 years of its own precedent 
and ignored a number of federal court decisions acknowledging Indian 
Tribes as governments for purposes of the NLRA. See San Manuel, 341 
NLRB No. 138. Without explanation or analysis, the Board deemed the 
tribal government-owned operation in question a commercial enterprise 
ignoring facts that the revenue generated is used solely for tribal 
governmental purposes.
    Since the decision, unions and their union organizers have 
undertaken a concerted effort to extend the San Manuel decision 
nationwide and undermine the inherent rights of Tribal Governments to 
regulate their own workforce. They justify their actions on the idea 
that tribal government employees, both Indian and non-Indian, have no 
recourse in labor disputes.
    In fact, Tribes have a proven track record as one of the best 
employers the country. Tribal Government owned enterprises consistently 
offer higher paying wages with benefit packages similar to employers 
off the reservation. Additionally, Tribes have their own Labor laws 
that contain comprehensive personnel policies and procedures. Many 
include internal dispute resolution mechanisms and waive tribal 
sovereign immunity in employment matters where they are based on claims 
brought in tribal court and based on tribal policy, tribal law, or 
tribal constitution.
    Like State and local governments that are exempt from the National 
Labor Relations Act (NLRA), Indian Tribes provide crucial government 
services to tribal citizens. Congress exempted State and Local 
Governments from the NLRA because of their ability to protect their own 
government labor force and avoid costly labor battles that could result 
in the stoppage of essential government services. For the same reasons, 
Tribal Governments have been and should continue to be exempt from the 
NLRA. Tribal citizens depend on tribal police and fire departments to 
stay open and that essential Tribal government services will be 
delivered. If a Tribal Government's major source of funding is subject 
to NLRB jurisdiction it could cause disruptions in the delivery of 
tribal government services while disputes, such as the one in San 
Manuel, weave their way through the federal administrative and judicial 
processes.
    We urge Congress to consider the impacts of the San Manuel decision 
and support Congressman Hayworth's amendment.
            Sincerely,
                                    Ernest L. Stevens, Jr.,
                                                          Chairman.

                                 
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