49–006 

114TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 1st Session 114–260 

TRIBAL LABOR SOVEREIGNTY ACT OF 2015 

SEPTEMBER 10, 2015.—Committed to the Committee of the Whole House on the 

State of the Union and ordered to be printed 

Mr. KLINE, from the Committee on Education and the Workforce, 

submitted the following 

R E P O R T 

together with 

MINORITY VIEWS 

[To accompany H.R. 511] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Education and the Workforce, to whom was 

referred the bill (H.R. 511) to clarify the rights of Indians and Indian tribes on Indian lands under the National Labor Relations 

Act, having considered the same, report favorably thereon with an 

amendment and recommend that the bill as amended do pass. 

The amendment is as follows: 

Strike all after the enacting clause and insert the following: 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘Tribal Labor Sovereignty Act of 2015’’. 

SEC. 2. DEFINITION OF EMPLOYER. 

Section 2 of the National Labor Relations Act (29 U.S.C. 152) is amended— 

(1) in paragraph (2), by inserting ‘‘or any Indian tribe, or any enterprise or 

institution owned and operated by an Indian tribe and located on its Indian 

lands,’’ after ‘‘subdivision thereof,’’; and 

(2) by adding at the end the following: 

‘‘(15) The term ‘Indian tribe’ means any Indian tribe, band, nation, pueblo, or 

other organized group or community which is recognized as eligible for the special 

programs and services provided by the United States to Indians because of their status as Indians. 

‘‘(16) The term ‘Indian’ means any individual who is a member of an Indian tribe. 

‘‘(17) The term ‘Indian lands’ means— 

‘‘(A) all lands within the limits of any Indian reservation; 

‘‘(B) any lands title to which is either held in trust by the United States for 

the benefit of any Indian tribe or individual or held by any Indian tribe or individual subject to restriction by the United States against alienation; and 


emcdonald on DSK67QTVN1PROD with HEARING
2 

1 Examining Proposals to Strengthen the National Labor Relations Act: Hearing Before the 

Subcomm. on Health, Employment, Labor, and Pensions of the H. Comm. on Educ. and the 

Workforce, 112th Cong. 9 (written testimony of the Hon. Robert Odawi Porter). 2 H.R. 511, 114th Cong. (2015). 

3 341 NLRB No. 138 (2004). 

‘‘(C) any lands in the State of Oklahoma that are within the boundaries of 

a former reservation (as defined by the Secretary of the Interior) of a federally 

recognized Indian tribe.’’. 

PURPOSE

H.R. 511, the Tribal Labor Sovereignty Act of 2015, protects tribal sovereignty and the right to tribal self-governance. The bill codifies the standard of the National Labor Relations Board (NLRB or 

Board) prior to 2004 by amending the National Labor Relations Act 

(NLRA) to provide that any enterprise or institution owned and operated by an Indian tribe and located on its land is not considered 

an employer, excluding such from coverage of the NLRA. 

COMMITTEE ACTION

112TH CONGRESS

Subcommittee hearing examining proposals to strengthen the National Labor Relations Act 

On July 25, 2012, the Subcommittee on Health, Employment, 

Labor, and Pensions held a hearing entitled ‘‘Examining Proposals 

to Strengthen the National Labor Relations Act,’’ reviewing decisions by the NLRB affecting tribal sovereignty, secret ballot elections, and employee compensation. The hearing also examined 

three legislative proposals: H.R. 972, the Secret Ballot Protection 

Act; H.R. 2335, the Tribal Labor Sovereignty Act; and H.R. 4385, 

the RAISE Act. The witness testifying on tribal sovereignty stated 

the NLRB finding that Indian tribal governments are not exempt 

from NLRA requirements was unfounded and violated treaty 

rights.1 Witnesses before the subcommittee were the Honorable 

Robert Odawi Porter, President, Seneca Nation of Indians, 

Salamanca, New York; Mr. William L. Messenger, Staff Attorney, 

National Right to Work Legal Defense Foundation, Springfield, Virginia; Ms. Devki K. Virk, Member, Bredhoff and Kaiser, P.L.L.C., 

Washington, D.C.; and Dr. Tim Kane, Chief Economist, Hudson Institute, Washington, D.C. 

114TH CONGRESS

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

On January 22, 2015, Rep. Todd Rokita (R–IN) introduced the 

Tribal Labor Sovereignty Act of 2015 with 14 cosponsors.2 Recognizing the threat to tribal sovereignty posed by the NLRB’s decision in San Manuel Indian Bingo and Casino,3 the legislation provides any enterprise or institution owned and operated by an Indian tribe and located on its land is not considered an employer 

and therefore is not covered by the NLRA. 

Subcommittee legislative hearing on H.R. 511 

On June 16, 2015, the Subcommittee on Health, Employment, 

Labor, and Pensions held a legislative hearing on H.R. 511, the 


emcdonald on DSK67QTVN1PROD with HEARING
3 

4Legislative Hearing on H.R. 511, Tribal Labor Sovereignty Act of 2015: Hearing Before the 

Subcomm. on Health, Employment, Labor, and Pensions of the H. Comm. on Educ. and the 

Workforce, 114th Cong. (2015). 5 H.R. 511, Tribal Labor Sovereignty Act of 2015: Markup Before the H. Comm. on Educ. and 

the Workforce, 114th Cong. (2015). 6The NLRA does not cover all employees and employers in the United States. For example, 

public sector employers (state, local, and federal employees), employers covered by the Railway 

Labor Act (airlines and railroads), agricultural laborers, and supervisors are not covered by the 

act. 29 U.S.C. § 152(2)–(3). 7 29 U.S.C. § 141 et. seq. 

8 Archibald Cox, Some Aspects of the Labor Management Relations Act of 1974, 61 HARV. L. 

REV. 1, 4 (1947). 9 29 U.S.C. § 157. 

10 Id. § 158. 

Tribal Labor Sovereignty Act of 2015.4 Witnesses included the Honorable Rodney Butler, Chairman, Mashantucket Pequot Nation, 

Mashantucket, Connecticut; Mr. Richard Guest, Senior Staff Attorney, Native American Rights Fund, Washington, D.C.; the Honorable Jefferson Keel, Lieutenant Governor, Chickasaw Nation, Ada, 

Oklahoma; and Mr. Gary Navarro, Slot Machine Attendant and 

Bargaining Committee Member for UNITE HERE Local 2850, 

Graton Casino and Resort, Rohnert Park, California. Witnesses testified H.R. 511 is necessary to clarify the rights of Indian tribes on 

Indian lands and provide parity for tribal governments with federal, state, and local governments under the NLRA. 

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

On July 22, 2015, the Committee on Education and the Workforce considered H.R. 511, the Tribal Labor Sovereignty Act of 

2015.5 Rep. Todd Rokita (R–IN) offered an amendment in the nature of a substitute, making a technical change to clarify that an 

Indian tribe is not considered an employer covered by the NLRA. 

The Committee favorably reported H.R. 511 to the House of Representatives by voice vote. 

SUMMARY

The Tribal Labor Sovereignty Act of 2015, H.R. 511, will codify 

the NLRB standard regarding Board jurisdiction that existed prior 

to the 2004 San Manuel Indian Bingo and Casino decision, amending the NLRA to provide that any enterprise or institution owned 

and operated by an Indian tribe and located on its land is not considered an employer under the NLRA. 

COMMITTEE VIEWS

In 1935, Congress passed the National Labor Relations Act 

(NLRA), guaranteeing the right of most private sector employees to 

organize and select their own representative.6 In 1947, Congress 

passed the most significant amendment of the NLRA, the TaftHartley Act,7 abandoning ‘‘the policy of affirmatively encouraging 

the spread of collective bargaining . . . [and] striking a new balance between protection of the right to self-organization and various opposing claims.’’ 8 The Taft-Hartley Act clarified that employees have the right to refrain from participating in union activity,9

created new union unfair labor practices,10 codified employer free 


emcdonald on DSK67QTVN1PROD with HEARING
4 

11 Id. § 158(c). 12 Id. § 159(d). 13 NLRB v. Savair Mfg., 414 U.S. 270, 278 (1973). 14Milla Sanes and John Schmitt, Regulation of Public Sector Collective Bargaining in the 

States, CTR. FOR ECON. AND POLICY RESEARCH, 4–8 (Mar. 2014), http://www.cepr.net/documents/ 

state-public-cb-2014-03.pdf. 15 Id. at 8–9. 16Legislative Hearing on H.R. 511, supra note 4 (written testimony of the Hon. Rodney Butler 

at 5) (internal quotation marks omitted). 17 Id. 

speech,11 and made changes to the determination of bargaining 

units.12

The NLRA established the NLRB, an independent federal agency, to fulfill two principal functions: (1) to prevent and remedy employer and union unlawful acts, called unfair labor practices or 

ULPs, and (2) to determine by secret ballot election whether employees wish to be represented by a union. In determining whether 

employees wish to be represented by a union, the NLRA is wholly 

neutral.13

Regulation of state labor relations 

Congress understood the differences between the private and 

public sectors when it excluded states from the NLRA. States have 

promulgated varying labor laws based on the specific needs of the 

states. For example, most states permit collective bargaining and 

collective wage negotiations for public-sector workers, while a minority of states prohibits public-sector workers from such collective 

action.14 Conversely, most states do not afford public-sector workers the right to strike.15

Tribal labor and employment law 

Like the states, tribal nations have worked to protect the rights 

of their employees, passing labor and employment laws modeled 

after federal laws but tailored to the specific needs of the tribes. 

In testimony before the Subcommittee on Health, Employment, 

Labor, and Pensions, Rodney Butler, chairman of the 

Mashantucket Pequot Nation, described a number of provisions of 

the Mashantucket Pequot Labor Relations Law (MPLRL). The law 

guarantees ‘‘the Nation’s employees the right to organize and bargain collectively with their employers’’ and ‘‘allows labor organizations to be designated as the exclusive collective bargaining representatives of employees.’’ 16

Chairman Butler stated: 

In sum, the MPLRL is modeled after other public sector 

laws, is similar to the NLRA in many aspects, and essentially furthers the policies and principles that are fundamental to federal labor policy as enforced by the Board. It 

provides employees of Tribal Employers with protections 

that are in many instances identical to or, in some respects, more effective than those provided to employees of 

private employers under the NLRA. At the same time, the 

Nation’s labor law protects important tribal and federal 

objectives in preserving and enhancing the Nation’s selfgovernance through the use and recognition of its institutions and the preservation of its sovereignty.17


emcdonald on DSK67QTVN1PROD with HEARING
5 

18 Id. 19 Id. 20 Id. (written testimony of Richard Guest at 6). 21 Id. at 7. 22 Id. 23 Id. at 8. 24 Id. 25 Id. 26 Id. 

Chairman Butler noted the Mashantucket Employment Rights 

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

four unions certified as the exclusive bargaining representatives of 

units of employees.18 The Mashantucket Pequot Nation subsequently entered into collective bargaining agreements with those 

four unions.19

Similarly, the Navajo Nation’s labor laws protect the right to collectively bargain while additionally including a right-to-work provision. Richard Guest, senior staff attorney of the Native American 

Rights Fund, discussed unionization rights under the Navajo Nation labor code in his testimony to the subcommittee. Mr. Guest 

stated that in 1985 the Navajo Nation council ‘‘incorporate[d] the 

most basic privileges of the [NLRA] to tribal employees, whom the 

council acknowledged were otherwise exempt from the NLRA.’’ 20

This included the right to collectively bargain.21 In 1990, the council voted for the Navajo Nation to become a ‘‘right to work’’ jurisdiction, disallowing labor organizations from collecting union dues 

from non-members.22 Unions are collectively bargaining with the 

Navajo Nation and private employers on tribal land. 

Mr. Guest stated: 

Collective bargaining is occurring on the Navajo Nation, 

with private enterprise as well as government. The United 

Mine Workers of America (‘‘UMWA’’) represents employees 

at the Navajo Nation Head Start Program, a tribal government program. The Nal-Nishii Federation of Labor, AFL– 

CIO includes 12 labor organizations that represent miners, 

power plant workers, construction workers, school employees and city employees working on or near the Navajo Nation.23

Indian tribes have also addressed labor rights through the California tribal labor relations ordinances. In his testimony, Mr. Guest 

also described how in 1999 Indian tribes negotiated tribal-state 

gaming compacts in California.24 A tribe would only qualify for the 

compact if it ‘‘adopt[ed] a process for addressing union organizing 

and collective bargaining rights of tribal gaming employees.’’ 25 The 

negotiations resulted in the drafting of a Model Tribal Labor Relations Ordinance (Ordinance), which tribes with 250 or more casinorelated employees were required to adopt.26 The Ordinance is similar to the NLRA in many ways, including the right to organize and 

bargain collectively. However, the Ordinance also differs from the 

NLRA, with some differences favoring labor unions and some favoring Indian tribes. 

Mr. Guest stated: 

The Ordinance provides labor unions at tribal gaming 

facilities with a number of advantages not provided for 

under the NLRA. Most importantly, under the Ordinance 


emcdonald on DSK67QTVN1PROD with HEARING
6 

27 Id. at 9–10. 28 21 U.S. (8 Wheat.) 543, 574 (1823). The Court stated that because of the European discovery 

of Indian lands, Indian tribes’ ‘‘power to dispose of the soil at their own will, to whomsoever 

they pleased, was denied by the original fundamental principle, that discovery gave exclusive 

title to those who made it.’’ Id. 29 31 U.S. (6 Pet.) 515, 559 (1832): 

The Indian nations had always been considered as distinct, independent political communities, retaining their original natural rights, as the undisputed possessors of the soil, from time 

immemorial, with the single exception of that imposed by irresistible power, which excluded 

them from intercourse with any other European potentate than the first discoverer of the coast 

of the particular region claimed: and this was a restriction which those European potentates 

imposed on themselves, as well as on the Indians. 30 21 U.S. (8 Wheat.) 543, 574 (1823). 31 30 U.S. (5 Pet.) 1, 16 (1831). 

unions at tribal casinos: (1) have the right to enter onto casino property at any time to talk to employees and post 

leaflets and posters there in order to facilitate the organizing of employees; and (2) may engage in secondary boycotts after an impasse is reached in negotiations without 

suffering any penalty under the Ordinance. 

The Ordinance also provides tribes with certain advantages not enjoyed by employers under the NLRA. Most importantly, unions representing tribal casino employees may 

not strike, picket, or engage in boycotts before an impasse 

is reached in negotiations.27

These are but a few examples of labor and employment laws enacted by Indian tribes that are similar to the NLRA in protecting 

the rights of employees but differ from the NLRA in order to meet 

the specific needs of Indian tribes throughout the United States. 

History of tribal sovereignty 

Originally, there were few limits on tribal sovereignty. In 1823, 

the Supreme Court in Johnson v. M’Intosh held that Indian tribes 

had no power to grant or dispose of lands to anyone other than the 

federal government.28 In 1832, the Supreme Court in Worcester v. 

Georgia further indicated Indian tribes did not have the authority 

to deal with foreign powers.29 Aside from these limits, however, Indian tribes retained all the characteristics of independent 

sovereigns. The Supreme Court in Johnson stated Indian tribes 

‘‘were admitted to be the rightful occupants of the soil, with a legal 

as well as just claim to retain possession of it, and to use it according to their own discretion.’’ 30 In 1831, in Cherokee Nation v. Georgia, the Supreme Court noted the Cherokees had ‘‘the character of 

. . . a state, as a distinct political society separated from others, 

capable of managing its own affairs and governing itself.’’ 31

Applicability of labor laws to Indian tribes 

While tribal sovereignty has long been recognized, there has 

never been any doubt that Congress has the authority to enact limits. Congress can also choose to retain tribal sovereignty. Many federal labor laws specifically exclude Indian tribes from the definition 

of ‘‘employer,’’ including Title VII of the Civil Rights Act of 1964, 

Title I of the Americans with Disabilities Act, and the Worker Adjustment and Retraining Notification Act. In contrast, statutes of 

general application, including the Uniformed Services Employment 

and Reemployment Rights Act, Age Discrimination in Employment 

Act, Fair Labor Standards Act (FLSA), Family Medical Leave Act, 

Employee Retirement Income Security Act (ERISA), and OccupaVerDate Sep 11 2014 05:43 Sep 15, 2015 Jkt 049006 PO 00000 Frm 00006 Fmt 6659 Sfmt 6602 E:\HR\OC\HR260.XXX HR260

emcdonald on DSK67QTVN1PROD with HEARING
7 

32See, e.g., Solis v. Matheson, 563 F.3d 425 (9th Cir. 2009) (applying FLSA to a retail business 

located on an Indian reservation and owned by Indian tribal members); Smart v. State Farm 

Ins. Co., 868 F.2d 929 (7th Cir. 1989) (applying ERISA to employee benefits plan established 

and operated by an Indian tribe for tribal employees); Reich v. Mashantucket Sand & Gravel, 

95 F.3d 174 (2d Cir. 1996) (applying the OSH Act to construction company owned by the Indian 

tribe that only operates within the tribal reservation). 33See, e.g., 29 U.S.C. § 158(d) (obligation of employer and union to bargain collectively). 34Legislative Hearing on H.R. 511, supra note 4 (written testimony of the Hon. Jefferson Keel 

at 1) (emphasis added). 35Fort Apache Timber Co., 226 NLRB 503 (1976), overruled by San Manuel Indian Bingo and 

Casino, 341 NLRB No. 138 (2004). 36 341 NLRB 1055, 1064 (2004). 37Fort Apache, 226 NLRB at 506. 38 307 NLRB 241 (1992). 

tional Safety and Health Act (OSH Act), are silent regarding their 

application to Indian tribes. Federal courts have held that statutes 

of general application, such as the FLSA, ERISA, and the OSH Act, 

apply to Indian tribes and their businesses.32

However, there is a key distinction between these laws and the 

NLRA. These laws do not force Indian tribes into a binding relationship with a non-governmental third party.33 As Jefferson Keel, 

Lieutenant Governor for the Chickasaw Nation, stated in his testimony to the Subcommittee on Health, Employment, Labor, and 

Pensions, ‘‘[W]e submit that the administrative imposition of a private labor model on any government, including a tribal government, is incompatible with the very nature of sovereignty and selfgovernment.’’ 34

NLRB jurisdiction over Indian tribes 

For almost 30 years, the NLRB held that ‘‘individual Indians and 

Indian tribal governments, at least on reservation lands, are generally free from state or even in most instances Federal intervention, unless Congress specifically provided to the contrary.’’ 35 However, in 2004 in San Manuel Indian Bingo and Casino, the Board 

adopted a ‘‘new approach to considering Indian owned and operated 

enterprises,’’ 36 holding that the NLRB has jurisdiction over all 

tribal activities. Relying on San Manuel, the Board now asserts jurisdiction on a case-by-case basis, depending on whether the activity is commercial or governmental in nature. In response to this 

unprecedented encroachment on tribal sovereignty, several members of Congress have introduced legislation to undo the precedent 

established under the San Manuel decision. Most recently, Rep. 

Todd Rokita (R–IN) introduced legislation to provide any enterprise 

or institution owned and operated by an Indian tribe and located 

on its land is not considered an employer, effectively excluding 

them from coverage of the NLRA. 

From 1976 to 2004, the NLRB held that the location of an Indian 

business was determinative with respect to the NLRB’s jurisdiction 

and that the text of the NLRA supported this location-based rule. 

In Fort Apache, the NLRB ruled the NLRA did not apply to a tribal 

government operating a timber mill on Indian land, finding the 

mill to be akin to a political subdivision of a state government and 

therefore exempt.37 In Sac and Fox Industries, Ltd., the Board 

found the NLRA applicable to off-reservation tribal enterprises, 

such as logging mills.38 Together, these cases created the ‘‘on Indian lands/off Indian lands’’ rule. If the Indian enterprise was located on Indian land generally, it was not subject to the NLRA, but 

those located off Indian land were subject to the NLRA. 


emcdonald on DSK67QTVN1PROD with HEARING
8 

39 362 US 99, 116 (1960). In his dissenting opinion in San Manuel, then-Member Schaumber 

argued this statement in Tuscarora Indian Nation is questionable dicta, lacks any foundation 

in Indian law, and has been abandoned, if not overruled, by the Supreme Court. 341 NLRB at 

1070–74. 40 341 NLRB at 1057–62. 41 Id. at 1058. In fact, neither the text of the NLRA nor its legislative history reference coverage of Indian tribes. 42 Id. at 1062. 43 Id. at 1063. 44 Id. at 1059. 45 Id. at 1065 (Schaumber, Member, dissenting). 46San Manuel Indian Bingo and Casino v. NLRB, 475 F.3d 1306 (D.C. Cir. 2007). 

In 2004 in San Manuel Indian Bingo and Casino, a divided 

NLRB reversed course. Relying on controversial dicta in Federal 

Power Commission v. Tuscarora Indian Nation stating that a ‘‘general statute in terms applying to all persons includes Indians and 

their property interests,’’ 39 the NLRB held the NLRA applies to 

tribal governments, and federal Indian policy does not preclude application of the NLRA to commercial activities on tribal land.40 In 

deciding San Manuel, the NLRB noted the NLRA does not expressly exclude Indian tribes.41 Therefore, according to the NLRB, 

the issue is left to the Board’s discretion. Now, relying on San 

Manuel, the Board would determine whether to assert jurisdiction 

based on the conduct at issue. Where the conduct is commercial in 

nature, employing significant numbers of non-Indians, and catering 

to non-Indian customers, the Board concluded that ‘‘the special attributes of [tribal] sovereignty are not implicated.’’ 42 In contrast, 

when tribes are acting with regard to the particularized sphere of 

traditional tribal or governmental functions, the Board indicated it 

should defer to the tribes by declining to assert its discretionary jurisdiction.43 Additionally, the Board would not assert jurisdiction if 

the application of the law would abrogate treaty rights or there 

was ‘‘proof’’ in the statutory language or legislative history that 

Congress did not intend the Act to apply to Indian tribes.44 ThenMember Schaumber strongly dissented, stating that ‘‘rebalancing of 

competing policy interests involving Indian sovereignty is a task for 

Congress to undertake.’’ 45 On appeal, the U.S. Court of Appeals for 

the District of Columbia Circuit upheld the NLRB’s holding in San 

Manuel.46

In testimony before the Subcommittee on Health, Employment, 

Labor, and Pensions, Jefferson Keel, Lieutenant Governor of the 

Chickasaw Nation, criticized the NLRB’s decision in San Manuel 

for diminishing tribal sovereignty. He stated: 

[The NLRB’s San Manuel ruling] reversed seventy years 

of settled administrative practice and signaled an effort to 

expand federal administrative jurisdiction over tribal 

sovereigns. . . . [The Board’s] approach had been widely 

criticized as contrary to established federal law which presumes a statute does not apply to abridge tribal sovereignty in the absence of express evidence that Congress 

intended such a result. Turning this settled rule of Indian 

law upside-down, the Board’s newly-fashioned analysis 

shifts the burden to the tribal sovereign to show either 

that Congress intended to exempt the tribe from the statutory scheme, or that a tribe-specific element (such as intraVerDate Sep 11 2014 05:43 Sep 15, 2015 Jkt 049006 PO 00000 Frm 00008 Fmt 6659 Sfmt 6602 E:\HR\OC\HR260.XXX HR260

emcdonald on DSK67QTVN1PROD with HEARING
9 

47Legislative Hearing on H.R. 511, supra note 4 (written testimony of the Hon. Jefferson Keel 

at 4) (emphasis in original). 48 Id. (written testimony of the Hon. Rodney Butler at 2). 49 Examining Proposals to Strengthen the National Labor Relations Act, supra note 1, at 8– 

9 (written testimony of the Hon. Robert Odawi Porter). 50Legislative Hearing on H.R. 511, supra note 4 (written testimony of the Hon. Rodney Butler 

at 2). 51 Id. (written testimony of Richard Guest at 1–2) (emphasis omitted). 52 Id. (written testimony of the Hon. Jefferson Keel at 1) (emphasis in original). 53 Examining Proposals to Strengthen the National Labor Relations Act, supra note 1, at 9 

(written testimony of the Hon. Robert Odawi Porter). 54 No. 34–RC–2230 (Oct. 24, 2007) (decision and direction of election). 

mural affairs or a controlling treaty provision) limits the 

Act’s jurisdictional reach.47

Rodney Butler, chairman of the Mashantucket Pequot Nation, 

similarly criticized San Manuel in his testimony before the subcommittee: 

The San Manuel decision was not only a complete reversal of the NLRB’s recognition of tribes as sovereigns, it is 

also an affront to Indian Country. It suggests that Indian 

tribes are incapable of developing laws and institutions to 

protect the rights of employees who work on our reservations. Our experience proves nothing could be further from 

the truth.48

Robert Odawi Porter, president of the Seneca Nation of Indians, 

also expressed concern in his testimony to the subcommittee about 

San Manuel’s erosion of tribal sovereignty. He stated, ‘‘Many aspects of our treaty-recognized freedoms have been eroded over time. 

A prime example of this legal regression can be found in recent 

tribal labor management decisions taken by the [NLRB] and the 

federal courts in the [San Manuel case].’’ 49

Witnesses further testified to the subcommittee that tribal sovereignty includes parity with federal, state, and local governments, 

which San Manuel has undermined. Regarding the Mashantucket 

Pequot Nation, Chairman Butler stated, ‘‘We seek to be treated 

just like every other sovereign under the NLRA—nothing more— 

nothing less.’’ 50 In his testimony, Richard Guest of the Native 

American Rights Fund similarly argued for equal treatment of governments: 

[I]t is time for Congress to provide parity for tribal governments under the NLRA. In this context, parity encompasses the quality of being treated equally under the law 

alongside Federal, State and Local governments. Tribal 

governments are entitled to the same freedom to choose 

the appropriate time, place and manner for regulating 

union activity on Indian lands and collective bargaining for 

its employees.51

Lieutenant Governor Keel also stated, ‘‘All governments are entitled to equal respect under the law, precisely as Congress in 1935 

intended.’’ 52 In addition, regarding the Senecan Nation of Indians, 

President Porter noted, ‘‘We have always insisted that federal law 

treat our tribal governments as it treats other governments.’’ 53

In 2007 in Foxwoods Resort Casino,54 the NLRB reinforced its 

decision in San Manuel. The Board noted that 98 percent of the 

Mashantucket Pequot Tribe’s revenues were derived from the operVerDate Sep 11 2014 05:43 Sep 15, 2015 Jkt 049006 PO 00000 Frm 00009 Fmt 6659 Sfmt 6602 E:\HR\OC\HR260.XXX HR260

emcdonald on DSK67QTVN1PROD with HEARING
10 

55 Id. at 4. 56 Id. at 13. 57 359 NLRB No. 92, 2013 WL 1646049 (2013), vacated (2014), aff’d, 361 NLRB No. 73 (2014), 

aff’d, Soaring Eagle Casino and Resort v. NLRB, 791 F.3d 648 (2015). 58Soaring Eagle Casino and Resort, 2013 WL 1646049, *4. 59 Id. at *12. 60 Id. at *19. 61 362 NLRB No. 109, 2015 WL 3526096 (2015). 62 2015 WL 3526096, *3. 

ation of the casino, which it used to fund various endeavors aimed 

toward promoting the tribal community and tribal self-government.55 However, the Board exerted jurisdiction because the casino 

was an exclusively commercial venture generating income for the 

tribe almost exclusively from the general public, competed in the 

same commercial arena with other non-tribal casinos, overwhelmingly employed non-tribal members, and actively marketed to the 

general public.56

In 2013 in Soaring Eagle Casino and Resort,57 the NLRB exerted 

jurisdiction over another Indian tribe. The Saginaw Chippewa 

Tribe operates a casino on the Isabella Reservation in Isabella 

County, Michigan. Treaties made in 1855 and 1864 with the federal government afford the Saginaw exclusive use, ownership, occupancy, and self-governance of a permanent homeland in Isabella 

County.58 Despite such strong treaty language, the NLRB, applying 

San Manuel, determined the general treaty language devoting land 

to a tribe’s exclusive use was insufficient to preclude application of 

federal law.59 As such, the Board exerted jurisdiction and ordered 

the tribe to rehire an employee who had been fired for union organizing, pay four years of back pay, and post notices in the workplace admitting it had violated federal labor law and reiterating 

employees’ rights to unionize.60

In contrast, on June 4, 2015, after years of litigation, the NLRB 

in Chickasaw Nation 61 unanimously declined to assert jurisdiction. 

At issue in the case was whether the Chickasaw Nation, in its capacity as operator of the WinStar World Casino, is subject to the 

Board’s jurisdiction. Applying San Manuel, the Board found the 

NLRA would abrogate treaty rights, specific to the Chickasaw Nation, contained in the 1830 Treaty of Dancing Rabbit Creek. As 

such, the Board declined to assert jurisdiction.62

Although the Board’s decision in Chickasaw Nation recognized 

the tribe’s rights as a government under the treaty, the decision 

only added to the uncertainty other Indian tribes face with respect 

to NLRA jurisdiction. In his testimony before the Subcommittee on 

Health, Employment, Labor, and Pensions, Lieutenant Governor 

Keel of the Chickasaw Nation stated: 

While the new Board ruling establishes an important 

precedent in recognizing the Chickasaw Nation’s tribal 

rights as a government, it also creates enormous uncertainty for other American Indian tribes across the country 

whose treaty language (if any) may well differ from the 

Chickasaw Nation’s treaty language. Further, it has the 

consequence of making the NLRB the arbiter of tribal treaty rights, instead of Congress and the Courts—even 

though the NLRB itself has repeatedly acknowledged it 


emcdonald on DSK67QTVN1PROD with HEARING
11 

63Legislative Hearing on H.R. 511, supra note 4 (written testimony of the Hon. Jefferson Keel 

at 4). 64 788 F.3d 537 (6th Cir. 2015). 65 Id. at 543. 66 Id. at 544–56. 67 Id. at 556 (McKeague, J., dissenting). 68Legislative Hearing on H.R. 511, supra note 4 (written testimony of the Hon. Jefferson Keel 

at 4). 

possesses no expertise whatsoever in Indian law or matters of tribal sovereignty.63

In June of 2015, in NLRB v. Little River Band of Ottawa Indian 

Tribal Government, a divided U.S. Court of Appeals for the Sixth 

Circuit ruled the NLRB may apply the NLRA to a Michigan casino 

operating on tribal land.64 The majority held although the NLRA 

is silent on the issues, the statutory terms ‘‘employer’’ and ‘‘person’’ 

both encompass Indian tribes.65 Additionally, the majority found 

nothing in federal Indian law forecloses application of the NLRA to 

the band’s operation of its casino and regulation of its employees.66

Dissenting, Judge David McKeague argued principles of tribal sovereignty should leave the band free to regulate its own labor relations at the casino.67 In his testimony before the Subcommittee, 

Lieutenant Governor Keel cited the Sixth Circuit’s decision upholding the Board’s jurisdiction in Little River Band as evidence of the 

‘‘arbitrary risk that arises from shifting control over tribal sovereignty to a quasi-independent federal agency.’’ 68

CONCLUSION

The cases described above illustrate the subjective nature of the 

Board’s test and the need for statutory clarity with respect to 

NLRB jurisdiction over tribal enterprises. The Board, with no particular experience in federal Indian or treaty law, determines 

whether the NLRA would interfere with tribal sovereignty or abrogate treaty rights. Such a determination is highly subjective, leaving tribes covered by treaties with little certainty. Worse, sovereign 

tribes without treaties are almost certainly covered by the NLRA, 

creating different classes of tribes under the NLRA. The Tribal 

Labor Sovereignty Act of 2015 creates parity with the states and 

between tribes ensuring tribal sovereignty. 

SECTION-BY-SECTION ANALYSIS

The following is a section-by-section analysis of the Amendment 

in the Nature of a Substitute offered by Rep. Rokita and reported 

favorably by the Committee. 

Section 1. Provides the short title is the ‘‘Tribal Labor Sovereignty Act of 2015.’’ 

Section 2. Amends the National Labor Relations Act to exclude 

Indian tribes, and any enterprise or institution owned and operated 

by an Indian tribe and located on its Indian lands, from the definition of employer. Additionally, it defines the term Indian tribe, Indian, and Indian land. 

EXPLANATION OF AMENDMENTS

The amendments, including the amendment in the nature of a 

substitute, are explained in the body of this report. 


emcdonald on DSK67QTVN1PROD with HEARING
12 

APPLICATION OF LAW TO THE LEGISLATIVE BRANCH

Section 102(b)(3) of Public Law 104–1 requires a description of 

the application of this bill to the legislative branch. H.R. 511, the 

Tribal Labor Sovereignty Act of 2015, protects tribal sovereignty 

and the right to tribal self-governance. The bill codifies the standard of the NLRB prior to 2004 by amending the NLRA to provide 

that any enterprise or institution owned and operated by an Indian 

tribe and located on its land is not considered an employer, excluding such from coverage of the NLRA. 

UNFUNDED MANDATE STATEMENT

Section 423 of the Congressional Budget and Impoundment Control Act (as amended by Section 101(a)(2) of the Unfunded Mandates Reform Act, P.L. 104–4) requires a statement of whether the 

provisions of the reported bill include unfunded mandates. This 

issue is addressed in the CBO letter. 

EARMARK STATEMENT

H.R. 511 does not contain any congressional earmarks, limited 

tax benefits, or limited tariff benefits as defined in clause 9 of 

House rule XXI. 

ROLL CALL VOTES

Clause 3(b) of rule XIII of the Rules of the House of Representatives requires the Committee Report to include for each record vote 

on a motion to report the measure or matter and on any amendments offered to the measure or matter the total number of votes 

for and against and the names of the Members voting for and 

against. No record votes were taken on H.R. 511. 

STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES

In accordance with clause (3)(c) of House rule XIII, the goals of 

H.R. 511 are to protects tribal sovereignty and the right to tribal 

self-governance. 

DUPLICATION OF FEDERAL PROGRAMS

No provision of H.R. 511 establishes or reauthorizes a program 

of the Federal Government known to be duplicative of another Federal program, a program that was included in any report from the 

Government Accountability Office to Congress pursuant to section 

21 of Public Law 111–139, or a program related to a program identified in the most recent Catalog of Federal Domestic Assistance. 

DISCLOSURE OF DIRECTED RULE MAKINGS

The committee estimates that enacting H.R. 511 does not specifically direct the completion of any specific rule makings within the 

meaning of 5 U.S.C. 551. 

STATEMENT OF OVERSIGHT FINDINGS AND RECOMMENDATIONS OF

THE COMMITTEE

In compliance with clause 3(c)(1) of rule XIII and clause 2(b)(1) 

of rule X of the Rules of the House of Representatives, the commitVerDate Sep 11 2014 05:43 Sep 15, 2015 Jkt 049006 PO 00000 Frm 00012 Fmt 6659 Sfmt 6602 E:\HR\OC\HR260.XXX HR260

emcdonald on DSK67QTVN1PROD with HEARING
13 

tee’s oversight findings and recommendations are reflected in the 

body of this report. 

NEW BUDGET AUTHORITY AND CBO COST ESTIMATE

With respect to the requirements of clause 3(c)(2) of rule XIII of 

the Rules of the House of Representatives and section 308(a) of the 

Congressional Budget Act of 1974 and with respect to requirements 

of clause 3(c)(3) of rule XIII of the Rules of the House of Representatives and section 402 of the Congressional Budget Act of 1974, the 

committee has received the following estimate for H.R. 511 from 

the Director of the Congressional Budget Office: 

U.S. CONGRESS, 

CONGRESSIONAL BUDGET OFFICE, Washington, DC, August 24, 2015. 

Hon. JOHN KLINE, 

Chairman, Committee on Education and the Workforce, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 511, the Tribal Labor 

Sovereignty Act of 2015. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Christina Hawley Anthony. 

Sincerely, 

KEITH HALL, Director. 

Enclosure. 

H.R. 511—Tribal Labor Sovereignty Act of 2015 

H.R. 511 would add tribes to the list of entities that are excluded 

from the definition of ‘‘employer’’ for purposes of the National 

Labor Relations Act. Through the National Labor Relations Board 

(NLRB), the National Labor Relations Act protects the rights of 

most private-sector employees to form a union and to bargain collectively. Adding tribes to the list of excluded employers would 

treat them similarly to state and local governments. Currently, the 

NLRB generally asserts jurisdiction over the commercial enterprises owned and operated by Indian tribes, even if they are located on a tribal reservation.μHowever, the NLRB does not assert 

jurisdiction over tribal enterprises that carry out traditional tribal 

or governmental functions. 

Enacting H.R. 511 would not significantly affect the workload of 

the NLRB, so it would have no effect on the federal budget. The 

bill would not affect direct spending or revenues; therefore, pay-asyou-go procedures do not apply. 

H.R. 511 contains no intergovernmental mandates as defined in 

the Unfunded Mandates Reform Act (UMRA). 

By excluding tribal enterprises located on tribal land from the 

definition of employer for purposes of the National Labor Relations 

Act, the bill would eliminate the right of employees of such enterprises to file a claim, individually or through a union, regarding 

certain labor practices. Currently, employees may file a claim 

against tribal employers over which the NLRB asserts jurisdiction 

alleging unfair labor practices under the act that prohibit or interVerDate Sep 11 2014 05:43 Sep 15, 2015 Jkt 049006 PO 00000 Frm 00013 Fmt 6659 Sfmt 6602 E:\HR\OC\HR260.XXX HR260

emcdonald on DSK67QTVN1PROD with HEARING
14 

fere with collective activities to improve wages and working conditions. By eliminating the right of employees to file such claims with 

the NLRB, the bill would impose a private-sector mandate. 

The direct cost of the mandate would be the value of forgone 

monetary awards resulting from claims that would have been filed 

with the NLRB in the absence of the bill. According to the NLRB, 

it currently receives about 20,000 to 30,000 claims in total each 

year from employees, unions, or employers alleging unfair labor 

practices and more than half of all claims are withdrawn or dismissed. Other claims may be settled by the parties or adjudicated 

by the NLRB. Successful claims may result in remedies such as reinstatement of discharged employees and back pay for the period 

of unemployment, as well as payment of dues, fines or other costs. 

In fiscal year 2014, claims with the NLRB resulted in about 2,400 

cases in which employees were reinstated and in awards of about 

$45 million in back pay and other costs. In testimony, the NLRB 

indicated that it has asserted jurisdiction over tribal enterprises in 

four decisions since 2004. Based on those data, CBO estimates that 

the cost of the mandate would not be substantial and would fall 

below the annual threshold established in UMRA for private-sector 

mandates ($154 million in 2015, adjusted annually for inflation). 

Successful claims filed with the NLRB also may result in a requirement on employers that would allow their employees to form 

a union and bargain collectively. Imposing such a requirement on 

employers may have a broader impact than that measured by the 

value of forgone monetary awards and settlements for claims 

brought before the NLRB. However, under UMRA that broader impact is not considered part of the direct cost of the mandate. 

On June 25, 2015, CBO provided a cost estimate for S. 248 as 

ordered reported by the Senate Committee on Indian Affairs on 

June 10, 2015. The two bills are identical, and the estimated budgetary effect is the same. The private-sector mandate and the estimate of mandate costs is also the same. This estimate provides additional information about the basis of the estimate of mandate 

costs relative to annual threshold established in UMRA. 

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

COMMITTEE COST ESTIMATE

Clause 3(d)(1) of rule XIII of the Rules of the House of Representatives requires an estimate and a comparison of the costs 

that would be incurred in carrying out H.R. 511. However, clause 

3(d)(2)(B) of that rule provides that this requirement does not 

apply when the committee has included in its report a timely submitted cost estimate of the bill prepared by the Director of the Congressional Budget Office under section 402 of the Congressional 

Budget Act. 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

as reported, are shown as follows (new matter is printed in italics 


emcdonald on DSK67QTVN1PROD with HEARING
15 

and existing law in which no change is proposed is shown in 

roman): 

NATIONAL LABOR RELATIONS ACT 

* * * * * * * 

DEFINITIONS

SEC. 2. When used in this Act— 

(1) The term ‘‘person’’ includes one or more individuals, labor organizations, partnerships, associations, corporations, legal representatives, trustees, trustees in cases under title 11 of the United 

States Code, or receivers. 

(2) The term ‘‘employer’’ includes any person acting as an agent 

of an employer, directly or indirectly, but shall not include the 

United States or any wholly owned Government corporation, or any 

Federal Reserve Bank, or any State or political subdivision thereof, 

or any Indian tribe, or any enterprise or institution owned and operated by an Indian tribe and located on its Indian lands, or any person subject to the Railway Labor Act, as amended from time to 

time, or any labor organization (other than when acting as an employer), or anyone acting in the capacity of officer or agent of such 

labor organization. 

(3) The term ‘‘employee’’ shall include any employee, and shall 

not be limited to the employees of a particular employer, unless the 

Act explicitly states otherwise, and shall include any individual 

whose work has ceased as a consequence of, or in connection with, 

any current labor dispute or because of any unfair labor practice, 

and who has not obtained any other regular and substantially 

equivalent employment, but shall not include any individual employed as an agricultural laborer, or in the domestic service of any 

family or person at his home, or any individual employed by his 

parent or spouse, or any individual having the status of an independent contractor, or any individual employed as a supervisor, or 

any individual employed by an employer subject to the Railway 

Labor Act, as amended from time to time, or by any other person 

who is not an employer as herein defined. 

(4) The term ‘‘representatives’’ includes any individual or labor 

organization. 

(5) The term ‘‘labor organization’’ means any organization of any 

kind, or any agency or employee representation committee or plan, 

in which employees participate and which exists for the purpose, 

in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or 

conditions of work. 

(6) The term ‘‘commerce’’ means trade, traffic, commerce, transportation, or communication among the several States, or between 

the District of Columbia or any Territory of the United States and 

any State or other Territory, or between any foreign country and 

any State, Territory, or the District of Columbia, or within the District of Columbia or any Territory, or between points in the same 

State but through any other State or any Territory or the District 

of Columbia or any foreign country. 

(7) The term ‘‘affecting commerce’’ means in commerce, or burdening or obstructing commerce or the free flow of commerce, or 


emcdonald on DSK67QTVN1PROD with HEARING
16 

having led or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce. 

(8) The term ‘‘unfair labor practice’’ means any unfair labor practice listed in section 8. 

(9) The term ‘‘labor dispute’’ includes any controversy concerning 

terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee. 

(10) The term ‘‘National Labor Relations Board’’ means the National Labor Relations Board provided for in section 3 of this Act. 

(11) The term ‘‘supervisor’’ means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay 

off, recall, promote, discharge, assign, reward, or discipline other 

employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection 

with the foregoing the exercise of such authority is not of a merely 

routine or clerical nature, but requires the use of independent judgment. 

(12) The term ‘‘professional employee’’ means— 

(a) any employee engaged in work (i) predominantly intellectual and varied in character as opposed to routine mental, 

manual, mechanical, or physical work; (ii) involving the consistent exercise of discretion and judgment in its performance; 

(iii) of such a character that the output produced or the result 

accomplished cannot be standardized in relation to a given period of time; (iv) requiring knowledge of an advanced type in 

a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study 

in an institution of higher learning or a hospital, as distinguished from a general academic education or from an apprenticeship or from training in the performance of routine mental, 

manual, or physical processes; or 

(b) any employee, who (i) has completed the courses of specialized intellectual instruction and study described in clause 

(iv) of paragraph (a), and (ii) is performing related work under 

the supervision of a professional person to qualify himself to 

become a professional employee as defined in paragraph (a). 

(13) In determining whether any person is acting as an ‘‘agent’’ 

of another person so as to make such other person responsible for 

his acts, the question of whether the specific acts performed were 

actually authorized or subsequently ratified shall not be controlling. 

(14) The term ‘‘health care institution’’ shall include any hospital, 

convalescent hospital, health maintenance organization, health 

clinic, nursing home, extended care facility, or other institution devoted to the care of sick, infirm, or aged person. 

(15) The term ‘‘Indian tribe’’ means any Indian tribe, band, nation, pueblo, or other organized group or community which is recognized as eligible for the special programs and services provided by 

the United States to Indians because of their status as Indians. 

(16) The term ‘‘Indian’’ means any individual who is a member 

of an Indian tribe. 

(17) The term ‘‘Indian lands’’ means— 


emcdonald on DSK67QTVN1PROD with HEARING
17 

(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. 

* * * * * * * 


emcdonald on DSK67QTVN1PROD with HEARING
(18) 

1Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55 (1978). 2 In the 1976 Fort Apache Timber Co. case, the Board declined to assert jurisdiction, holding 

that sovereign tribal governments, including a tribe’s ‘‘self-directed enterprise on the reservation,’’ were ‘‘implicitly exempt’’ from the NLRA’s definition of ‘‘employer.’’ 226 NLRB 503, 504– 

06 (1976). 3 Unlike the enterprise at issue in Fort Apache Timber, Co., the Board ruled in 1992 that a 

tribally-owned and controlled factory operated off of the reservation was subject to NBLRB jurisdiction. Sac & Fox Industries, 307 NLRB 241 (1992). 

MINORITY VIEWS 

INTRODUCTION

The Tribal Labor Sovereignty Act of 2015 (H.R. 511) strips workers of their rights to organize and collectively bargain at any enterprise owned and operated by an Indian tribe that is located on tribal lands. It does this by excluding such tribal enterprises from the 

jurisdiction of the National Labor Relations Act by amending the 

definition of a covered ‘‘employer.’’ 

This bill arises in a dispute between two solemn and competing 

principles: the rights that Indian tribes possess as ‘‘distinct, independent political communities, retaining their original natural 

rights in matters of local self-government,’’ 1 and the right of workers to organize, bargain collectively, and engage in concerted activities for mutual aid and protection. 

Rather than attempting to reconcile these competing interests, 

H.R. 511 chooses sovereignty for some over the rights of others, 

and it strips hundreds of thousands of workers—most of whom are 

not members of tribes—of their voice in the workplace in one fell 

swoop just because they happen to work at a tribal enterprise on 

tribal lands. 

As the AFL-CIO has noted, ‘‘workers cannot not be left without 

any legally enforceable right to form unions and bargain collectively in instances where they are working for a tribal enterprise 

which is simply a commercial operation competing with non-tribal 

enterprises.’’ 

This bill, which enjoys the support of the U.S. Chamber of Commerce, cloaks its anti-union agenda in the respectable garb of tribal 

sovereignty. It is another attempt in the quest to dismantle labor 

unions and strip workers of their ability to bargain for better pay 

and working conditions. 

HISTORY OF NLRB JURISDICTION CONCERNING INDIAN TRIBAL

ENTERPRISES

The National Labor Relations Act (NLRA) is silent with respect 

to its applicability to tribal enterprises. Prior to 2004, the National 

Labor Relations Board (NLRB) did not exercise jurisdiction over 

enterprises located on tribal lands,2 but did do so for tribal enterprises located off tribal lands.3 This bright-line geographic test was 

both over-inclusive and under-inclusive. For example, this test alVerDate Sep 11 2014 05:43 Sep 15, 2015 Jkt 049006 PO 00000 Frm 00018 Fmt 6604 Sfmt 6604 E:\HR\OC\HR260.XXX HR260

emcdonald on DSK67QTVN1PROD with HEARING
19 

4Yukon-Kuskokwim Health Corp. v. N.L.R.B., 328 NLRB No.86 (1999), remanded, 234 F.3d 

714 (D.C. Cir. 2000). 5FPC v. Tuscarora Indian Nation, 362 U.S. 99, 116 (1960). 6Donovan v. Coeur d’Alene Tribal Farm, 751 F.2d 1113 (9th Cir. 1985). 

lowed the NLRB to assert jurisdiction over an off-reservation hospital run by a tribal consortium primarily serving tribal members— 

a function of tribal self-governance and should have been excluded 

from coverage.4 But the test also failed to include commercial enterprises on tribal lands where the majority of employees were not 

tribal members, the majority of its customers were not members of 

the tribe, and its functions did not touch on essential matters of 

self-governance. 

THE 2004 NLRB’S DECISION IN THE SAN MANUEL CASE IS ROOTED IN

LONGSTANDING JUDICIAL DOCTRINE REGARDING LAWS OF GENERAL

APPLICABILITY TO INDIAN TRIBES

In 2004, during the Bush Administration, the NLRB altered its 

jurisdictional test over tribal enterprises in the San Manuel Indian 

Bingo and Casino case. A 4–1 majority that was led by former Republican Chair Robert Battista asserted NLRA jurisdiction over 

tribal enterprises, except where doing so would: 

1) touch on tribal rights of self-governance in purely intramural matters; 

2) abrogate rights guaranteed by an Indian treaty; or 

3) be contrary to congressional intent as indicated in the legislative history or statutory language. 

The San Manuel decision is rooted in longstanding judicial doctrine used to determine when federal statutes of general applicability should apply to Indian tribes: 

• The Supreme Court stated in the 1960 Tuscarora Indian Nation case that ‘‘it is now well settled by many decisions of this 

Court that a general statute in terms applying to all persons includes Indians and their property interests.’’ 5

• Narrowing that doctrine, a 1985 Ninth Circuit Court of Appeals case known as Donovan v Coeur d’Alene Tribal Farm 6 determined that the Occupational Safety and Health Administration 

(OSHA) had jurisdiction to enforce federal health and safety laws 

at a farm operated by a tribe and located on a tribe’s reservation 

provided that the law did not: 1) touch on tribal rights of self-governance in purely intramural matters; 2) abrogate rights guaranteed by Indian treaty; or 3) be contrary to congressional intent as 

indicated in the legislative history or statutory language. In applying this test, the Court stated: 

‘‘The operation of a farm that sells produce on the open 

market and in interstate commerce is not an aspect of tribal self-government. Because the Farm employs non-Indians as well as Indians, and because it is in virtually every 

respect a normal commercial farming enterprise, we believe that its operation free of federal health and safety 

regulations is neither profoundly intramural . . . nor essential to self-government.’’ 

Using the same three-prong test in Coeur d’Alene, the NLRB’s 

San Manuel decision carefully balances tribal sovereignty and the 


emcdonald on DSK67QTVN1PROD with HEARING
20 

7Soaring Eagle Casino & Resort v. NLRB (July 1, 2015) granted the NLRB jurisdiction based 

on 6th Circuit precedent involving another tribal casino (NLRB v. Little River Band of Ottawa 

Indians Tribal Government (June 9, 2015)); however, the majority in the Soaring Eagle case disputed whether the Coeur d’Alene framework is the proper basis for determining whether federal 

statutes of general applicability should apply to Indian tribes. 8San Manuel Indian Bingo and Casino, 341 NLRB 1055, 1062 (2004) (Chairman Battista and 

Members Liebman and Walsh; Member Schaumber, dissenting), enforced, 475 F.3d 1306 (D.C. 

Cir. 2007). 9Yukon Kuskolcwim Health Corp., 341 NLRB 1075 (2004) (on remand from the D.C. Circuit, 

234 F.3d 714 (2000)). 10 Chickasaw Nation d/b/a Winstar World Casino, 362 NLRB No. 109 (June 4, 2015). 11See, e.g., Little River Band of Ottawa Indians Tribal Gov’t, 361 NLRB No. 45 (Sept. 15, 

2014), enforced No. 14–2239 2015 WL 3556005 (6th Cir. June 9,2015); Casino Pauma, 362 

NLRB No. 52 (Mar. 31, 2015); Soaring Eagle Casino & Resort, An Enterprise of the Saginaw 

Chippewa Indian Tribe, 361 NLRB No. 73 (Oct. 27, 2014); Mashantucket Pequot Gaming Enterprise d/b/a Fox-woods Resort Casino, 353 NLRB No. 32 (2008) 

fundamental right of workers to organize. The Coeur d’Alene framework has since been applied by the Second, Sixth, Seventh, Ninth, 

and Eleventh Circuits.7

NLRB POLICY BALANCES TRIBAL SOVEREIGNTY AND WORKERS’ RIGHTS

TO ORGANIZE AND BARGAIN

In the San Manuel decision, the NLRB singled out its desire ‘‘to 

balance the Board’s interest in effectuating the policies of the Act 

with its desire to accommodate the unique status of Indians in our 

society and legal culture.’’ 8 The Board noted that when a tribe ‘‘is 

fulfilling traditionally tribal or government functions’’ that do not 

involve ‘‘non-Indians or substantially affect interstate commerce,’’ 

then ‘‘the Board’s interest in effectuating the policies of the NLRA 

is likely to be lower.’’ 

Thus, the NLRB has found that some enterprises—such as a 

health clinic that serves primarily tribal members— are not suitable for federal jurisdiction where it is ‘‘fulfilling the Federal Government’s trust responsibility to provide free health care to Indians.’’ 9 The NLRB likewise decided that it lacked authority to assert jurisdiction over a casino run by the Chickasaw tribe in Oklahoma, because doing so would abrogate an 1830 treaty which exempted the tribe from federal laws unless they involved ‘‘legislation 

over Indian Affairs’’. 10 Both the tribal health clinic and the Chickasaw Tribe casino decisions block NLRB jurisdiction because these 

enterprises fall within one of the 3 exceptions articulated in Coeur 

d’Alene. 

Using this same 3 prong test, the NLRB has exercised jurisdiction to protect worker rights guaranteed under the NLRA which involve casinos patronized and operated overwhelmingly by non-tribal members, because neither treaty rights, nor essential self-governance matters, were implicated.’’ 11

TRIBAL ENTERPRISES ARE GOVERNED BY OTHER EMPLOYMENT LAWS, 

BUT H.R. 511 ONLY SINGLES OUT WORKERS’ RIGHTS TO ORGANIZE

UNIONS AND COLLECTIVELY BARGAIN

Tribal sovereignty is not absolute with respect to federal laws of 

general applicability. Using the Coeur d’Alene framework, numerous courts have upheld the applicability of other federal employment laws to Indian tribes including: 


emcdonald on DSK67QTVN1PROD with HEARING
21 

12Solis v. Matheson, 563 F.3d 425 (9th Cir. 2009). (The overtime provisions of the Fair Labor 

Standards Act apply to a retail business located on an Indian reservation and owned by Indian 

tribal members). 13 Reich v. Mashantucket Sand & Gravel, 95 F.3d 174 (2nd Cir. 1996) (applying OSHA to a 

tribe-operated construction business). 14Smart v. State Farm Ins., 868 F.2d 929 (7th Cir. 1989) (concluding ERISA applied to a 

health center owned and operated by an Indian tribe on its reservation). Also: Lumber Industry 

Pension Fund v. Warm Springs Forest Products Industries, 939 F.2d 683 (9th Cir. 1991). (Permitting the pension fund to sue the tribally-operated mill under ERISA will not usurp the tribe’s 

decision-making powers). 15Florida Paraplegic Association v. Miccosukee Tribe of Florida, 166 F.3d 1126 (11th Cir. 

1999) (Affirming that Title III of the Americans with Disability Act applies to restaurant and 

gaming facility operated by an Indian tribe). 16San Manuel Indian Bingo and Casino, 475 F.3d 1306 (D.C. Cir. 2007). 17Dwanna L. Robertson, The Myth of Indian Casino Riches, Indian Country Today Media Network (June 23, 2012) http://indiancountrytodaymedianetwork.com/2012/06/23/myth-indiancasino-riches. 

• Fair Labor Standards Act (FLSA) 12

• Occupational Safety and Health Act (OSHA) 13

• Employee Retirement Income Security Act (ERISA) 14

• Title III (public accommodations) of the Americans with Disabilities Act (ADA) 15

Thus, the effort to focus solely on the National Labor Relations 

Act to the exclusion of other federal labor laws, suggests that animus toward labor unions motivates this legislation—which has 

been wrapped in the laudable garb of sovereignty. 

PARITY AND SOVEREIGNTY ARE NOT VALID GROUNDS FOR TAKING

AWAY WORKERS’ RIGHTS, ESPECIALLY WHERE TRIBES ARE EXEMPTED FROM LABOR LAWS THAT COVER STATE AND LOCAL GOVERNMENTS

Proponents’ primary argument in favor of H.R. 511 is that the 

NLRA does not apply to state and local governments, and tribes 

should have parity since they are also a sovereign government. 

Under this principle, tribes contend that they should be able to decide whether to allow employees to form unions or not under a tribal labor relations ordinance, just as state governments are free to 

decide whether to allow public employees to form unions or not. 

This parity argument falls short in three important ways: 

1) Tribal casinos and similar businesses are commercial enterprises in direct competition with similar non-tribal businesses. Although these enterprises raise revenues for the tribe, these are not 

inherently governmental functions. Thus, the NLRB’s regulation of 

labor relations does not impair an essential element of the tribe’s 

sovereignty, especially in matters where the majority of employees 

are not tribal members. Courts have found that the total impact on 

tribal sovereignty from NLRA jurisdiction is ‘‘not sufficient to demand a restrictive construction of the NLRA.’’ 16

2) Approximately 75% of the 600,000 employees of tribal casinos 

are non-Indians.’’ 17 Employees of tribal enterprises, who are not 

enrolled members of the tribe, are prohibited from having any voice 

or the right to advocate for the establishment or repeal of labor and 

employment laws, unlike comparable employment in local or state 

government. Since the majority of employees at tribal enterprises 

lack parity with the rights enjoyed by state and local government 

employees to petition their employer, the parity argument between 


emcdonald on DSK67QTVN1PROD with HEARING
22 

18Scott D. Danahy, License to Discriminate: The Application of Sovereign Immunity to Employment Discrimination Claims Brought By Non-Native American Employees of Tribally Owned 

Businesses, 25 FLA. S. LAW REV. 679 (1998). 19Shivani Sutaria, Employment Discrimination in Indian-Owned Casinos: Strategies to Providing Rights and Remedies to Tribal Casino Employees, 8 J. LAW & SOCIAL CHALLENGES 132 

(2006). 

tribal government and state and local government lacks a valid 

basis. 

3) Tribes are exempted from employment laws which apply to 

state and local governments. State and local governments are covered by Title VII of the Civil Rights Act and the nondiscrimination 

provisions of the Americans with Disabilities Act, whereas Indian 

tribes are expressly exempted from coverage. If tribes want parity 

with state and local governments, they should be prepared to be 

covered by the same federal statutes as those applicable to local 

and state governments. 

STRIPPING WORKERS’ RIGHTS AND REMEDIES CAN LEAD TO LEGALLY

SANCTIONED WORKER EXPLOITATION

As noted above, Title VII of the Civil Rights Act prohibits employment discrimination by all governments except tribal governments and enterprises. As a result, employees of a tribal enterprise 

who are subjected to sexual harassment or other forms of discrimination cannot bring a claim to the Equal Employment Opportunity 

Commission (EEOC) or in federal courts—even when the alleged 

perpetrator and victim are both non-tribal members employed at 

the tribal enterprise. 

For example, a woman who took a job with a ‘‘swamp safari’’ run 

by a tribe in Florida filed suit against the tribe after her employers 

‘‘repeatedly touched her, made sexual comments and degrading remarks, and even suggested that she could make a ‘quick $10,000’ 

from a wealthy client.’’ 18 The U.S. District Court for the Southern 

District of Florida dismissed her case for lack of subject matter jurisdiction, citing the tribe’s sovereign immunity. She was not affiliated with the tribe and had no further recourse. 

In another case, several female former employees of Thunder 

Valley, a tribal casino in northern California, filed a class-action 

discrimination lawsuit in 2005. One woman reported having been 

sexually assaulted by a casino executive. A second woman reported 

that the same executive fondled and forcibly kissed her as well. 

Several other women reported suffering sexual harassment, age 

and sex discrimination, and wrongful termination. None of the 

plaintiffs were tribal members, nor was the alleged attacker. Regardless, their case was dismissed for lack of subject-matter jurisdiction and because of tribal sovereign immunity.19

An hourly worker—an enrolled member of the Pomo Tribe—who 

is employed at a tribal casino in Sonoma County, California testified before the Education and the Workforce Committee that without NLRA protections workers felt they had no recourse to address 

sexual harassment. He stated: 

‘‘I have seen sexual harassment at the casino. A general 

manager going up to women telling them if they want promotions they had to sleep with him. The women were 

fired. We all complained. Managers at the Stations CasiVerDate Sep 11 2014 05:43 Sep 15, 2015 Jkt 049006 PO 00000 Frm 00022 Fmt 6604 Sfmt 6602 E:\HR\OC\HR260.XXX HR260

emcdonald on DSK67QTVN1PROD with HEARING
23 

20Oral testimony of Gary Navarro, Legislative Hearing on H.R. 511, the Tribal Labor Sovereignty Act of 2015, Committee on Education and the Workforce, U.S. House of Representatives, 

June 16, 2015. 21 Indian Gaming: Regulation and Oversight by the Federal Government, States, and Tribes, 

U.S. Government Accountability Office, GAO–15–355 (2015), http://www.gao.gov/assets/680/ 

670603.pdf; NIGC Tribal Gaming Revenues, National Indian Gaming Commission, http:// 

www.nigc.gov/LinklClick.aspx?fileticket=15QAX4uZyA%3d&tabid=67. 22The Emerging Standard: An Analysis of Job Quality in California’s Tribal Gaming Industry, 

UNITE HERE (October 2013). 

nos [which was managing the casino on behalf of the tribe] 

told us it was a sovereign nation. 

It was bad enough that Title VII of the Civil Rights Act 

doesn’t apply to Native businesses. Congress should not 

make the situation worse by taking away protections 

under the National Labor Relations Act. The NLRA enables workers who have been subjected to harassment and 

other forms of discrimination to get together and complain 

about it. Take away the NLRA, you don’t only have sexual 

harassment but no ability to speak about it.’’ 20

Carving tribes out of Title VII coverage led directly to these unjust results. Similarly, carving tribes out of the NLRA may give 

rise to new forms of legally-sanctioned worker exploitation. 

H.R. 511 WOULD JEOPARDIZE THE ENFORCEMENT OF EXISTING LABOR

CONTRACTS AND UNDERMINE ESTABLISHED BARGAINING RELATION- SHIPS

Thousands of employees at commercial tribal enterprises—such 

as casinos—are currently covered by collective-bargaining agreements. If H.R. 511 were enacted, it is doubtful these labor contracts 

would remain fully enforceable. When a labor contract expires, a 

tribe could unilaterally terminate the established bargaining relationship with the union without legal consequence. Without a 

union, these jobs will likely revert to low-wage service jobs, instead 

of being jobs that allow workers to climb the ladder to the middle 

class. 

UNION AGREEMENTS HELP HOURLY SERVICE WORKERS ESCAPE LOW

WAGES AND BENEFITS AT TRIBAL GAMING ENTERPRISES

Most Indian casinos are large scale commercial operations, which 

overwhelmingly employ non-Indians and serve non-Indian customers. There were 449 tribal gaming facilities in 28 states, which 

earned more than $28 billion in revenue in 2013.21 An estimated 

43% of all legal gaming revenues in the U.S. is now generated at 

tribally-owned casinos. • According to a 2013 report by UNITE HERE, the average low- wage California tribal casino worker makes $10.02 per hour or 

$20,841 annually. At this level, a family of four with one breadwinner would be living at 88% of the federal poverty level. 

• UNITE HERE, which represents over 10,000 casino workers 

in California, reports that workers with collective bargaining agreements earned $7,558 (41%) more in combined wages and health insurance benefits than the industry average in California.22

• Where unions have organized at casinos in California, workers formerly trapped in poverty level jobs now have a foothold to 

get into the middle class as their wages have increased, their 


emcdonald on DSK67QTVN1PROD with HEARING
24 

23 Congressional Budget Office Cost Estimate for the Tribal Labor Sovereignty Act of 2015 

(H.R. 511), August 24, 2015, https://www.cbo.gov/sites/default/files/114th-congress-2015- 

2016/costestimate/hr511.pdf. 

health care costs have declined, and the number of families requiring government assistance for health care has decreased significantly. 

Tribal casinos are not obligated to obey state minimum wage 

laws, which have a negative impact on casino workers in states 

where the minimum wage is higher than the federal minimum 

wage. Unions help close that gap. 

THE CONGRESSIONAL BUDGET OFFICE (CBO) DETERMINED THAT ENACTMENT OF H.R. 511 WOULD HAVE AN ADVERSE ECONOMIC IMPACT

ON WORKERS AT TRIBAL ENTERPRISES

The Congressional Budget Office found that ‘‘[B]y excluding tribal enterprises located on tribal land from the definition of employer 

for purposes of the National Labor Relations Act, the bill would 

eliminate the right of employees of such enterprises to file a claim, 

individually or through a union, regarding certain labor practices. 

Currently, employees may file a claim against tribal employers 

over which the NLRB asserts jurisdiction alleging unfair labor 

practices under the act that prohibit or interfere with collective activities to improve wages and working conditions. By eliminating 

the right of employees to file such claims with the NLRB, the bill 

would impose a ‘private-sector mandate’ ’’ on such workers under 

the Unfunded Mandates Reform Act. 

CBO found employees of tribal enterprises are burdened with 

economic costs under H.R. 511, which include ‘‘the value of forgone 

monetary awards resulting from claims that would have been filed 

with the NLRB in the absence of the bill’’ including a ‘‘reinstatement of discharged employees and back pay for the period of unemployment.’’ 23 CBO noted that by eliminating the right of employees 

‘‘to form a union and bargain collectively’’ there would be a broader 

adverse impact, but CBO did not consider this broader impact to 

be part of the direct cost of the mandate. 

TRIBAL LABOR RELATIONS ORDINANCES ARE NOT AN ADEQUATE

ALTERNATIVE TO NLRA JURISDICTION ABSENT MINIMUM STANDARDS

Proponents of H.R. 511 point to the adoption of Tribal Labor Relations Ordinances (TLRO) by some tribes as evidence that there 

is an adequate alternative for the protections offered by NLRA that 

will preserve tribal sovereignty. 

Some tribes have been required to adopt TLROs, such as those 

in California, where the state has required TLROs as a condition 

of state-tribal gaming compacts under the Indian Gaming Regulatory Act. Tribes in other states have negotiated TLROs with 

unions who had first won recognition under the NLRA. However, 

other tribes in other states have chosen not to adopt a TLRO at 

all, because there was no requirement under a state compact. Each 

tribe enacts its own labor-management relations laws, if at all, 

without transparency or political accountability to non-tribal members employed by its commercial businesses. Moreover, there is no 

uniform set of rights and responsibilities for employers and workVerDate Sep 11 2014 05:43 Sep 15, 2015 Jkt 049006 PO 00000 Frm 00024 Fmt 6604 Sfmt 6602 E:\HR\OC\HR260.XXX HR260

emcdonald on DSK67QTVN1PROD with HEARING
25 

ers that have to be included in tribal labor ordinances. Many 

TLRO’s provide inadequate protections, and the field is marked by 

widespread inconsistency in the protection of rights, for example: 

• The Fair Employment Practices Code of the Little River Band 

of Ottowa Indians in Michigan requires labor organizations to 

apply for and obtain a license from the tribe before organizing; it 

precludes bargaining over layoffs or recall of employees; and gives 

the Tribal Court exclusive authority over disputes involving the 

duty to bargain in good faith, which are not subject to appeal. 

These and other requirements severely limit freedom of association. 

• The United Auto Workers (UAW) and three other unions 

reached an agreement with the Mashantucket Pequot Tribe at the 

Foxwoods Casino regarding the terms of a TLRO, which governs 

their collective bargaining relationship. However, this mutually 

agreeable TLRO would not have been established, except for the 

fact that the UAW had petitioned for and won an NLRB election 

to represent workers at the casino. If H.R. 511 were enacted, and 

the Tribe then chose to reinstate restrictive labor laws that it had 

previously adopted, there would be no legal or political recourse for 

the workers—the overwhelming majority of whom do not belong to 

the Mashantucket Pequot Tribe. 

• Tribes must adopt a TLRO under their compact between the 

State of California and tribal casinos with more than 250 employees. While there are a number of similarities between the California TLRO and the NLRA, the tribes can restrict workers’ choices 

when voting which union they want to select; long established 

rights to display union buttons while at work are prohibited; and 

unfair labor practices are adjudicated through a standing panel of 

10 arbitrators rather than a labor relations agency. On the other 

hand, some compacts include neutrality agreements which allow 

for card check recognition instead of secret-ballot elections, and 

waive sovereign immunity to allow unions to seek enforcement of 

arbitration decisions in state court. However, if a tribe fails to 

adopt an acceptable TLRO, only the State of California has enforcement rights. 

There is no federal requirement that TLROs must be at least as 

effective as the rights and remedies provided under federal labor 

law. If TLROs are to serve as a nationwide alternative to the 

NLRA, there will need to be statutory minimum standards and 

each TLRO would need to be assessed by a competent authority to 

ensure that workers’ rights are substantially the same as those 

under the NLRA, even if they are not identical in all respects. 

THE U.S. REQUIRES ITS TRADING PARTNERS TO IMPLEMENT INTERNATIONALLY RECOGNIZED LABOR STANDARDS, BUT H.R. 511 EXEMPTS U.S. WORKERS WHEN EMPLOYED BY INDIAN TRIBE

This bill advances a double standard: it deprives workers of the 

right to organize and bargain collectively at commercial enterprises 

operated by Indian tribes, while the U.S. government insists that 

our international trading partners abide by these same core rights 

as a way to create a level playing field for U.S. workers. As a member of the International Labor Organization (ILO), the United 

States is obligated to respect and promote the rights outlined in 


emcdonald on DSK67QTVN1PROD with HEARING
26 

24Legislative Alert from the AFL CIO, July 21, 2015, regarding the Tribal Labor Sovereignty 

Act (H.R. 511). 25The Erosion of Collective Bargaining Has Widened the Gap Between Productivity and Pay, 

David Cooper and Lawrence Mishel, Economic Policy Institute (January 6, 2015). http// 

www.epi.org/publication/collective-bargainings-erosion-expanded-the-productivity-pay-gap/. 26 Employee Benefits in the United States, New Release, Bureau of Labor Statistics, July 24, 

2015. 

the ILO Declaration on Fundamental Principles and Rights at 

Work, including: 

• Freedom of association and the effective recognition of the 

right to collective bargaining; 

• Elimination of all forms of forced or compulsory labor; 

• Effective abolition of child labor; and 

• Elimination of discrimination in respect of employment 

and occupation. 

When negotiating with potential trading partners, Democrats 

and Republicans alike have insisted that other fully-sovereign nations adopt laws that would implement the core ILO standards. 

The U.S. Congress has ratified four free trade agreements—with 

Peru, Panama, Colombia and the Republic of Korea—which includes these rights and provides for dispute resolution for violations. Yet within our own borders, H.R. 511 would strip hundreds 

of thousands of the right to freedom of association and the right to 

collective bargaining at Indian tribal enterprises. 

In short, H.R. 511 ‘‘repudiate[s] fundamental human rights that 

belong to every worker in every nation.’’ 24

THE TRIBAL LABOR SOVEREIGNTY ACT OF 2015 (H.R. 511) WILL

ADVERSELY AFFECT THE ECONOMY

Committee Democrats have advanced policies to increase opportunity and reduce income inequality. One of the most effective tools 

to reduce income inequality is the right to organize and collectively 

bargain for better wages and working conditions. By providing 

workers with bargaining power, workers can reconnect the historical linkage between productivity and wage growth. 

Weakening collective bargaining rights for workers employed at 

tribal enterprises would exacerbate the well documented pay-productivity gap that has persisted for the past 40 years. Between 

1948 and 1973, productivity increased 96.7% while wages for the 

typical worker increased 91.3% in inflation adjusted terms. However, between 1973 and 2013, productivity increased 74.4% while 

compensation for the typical worker only increased 9.2%.25 The 

broken link between productivity and pay is one reason for persistent wage stagnation in our economy. 

Workers with collective bargaining agreements have better 

wages, more access to benefits, and safer working conditions. For 

example, 95% of employees have access to employer-provided 

health care versus 64% of non-union workplaces. Additionally, 94% 

of unionized workers last year have access to retirement benefits 

through employers, compared to 64% at nonunion workplaces.26

These trends hold true in workplaces across the country, but are 

especially pertinent in the casino and gaming industry, which H.R. 

511 would overwhelmingly affect. 


emcdonald on DSK67QTVN1PROD with HEARING
27 

27 Congressional Record, September 9, 2004, pp. H.6951–6952 and June 24, 2005, pp. H.5153. 

PREVIOUS HOUSE CONSIDERATION OF LEGISLATION TO BLOCK NLRB

JURISDICTION OVER TRIBAL ENTERPRISES

Floor amendments were offered to both the Fiscal Year 2005 and 

the 2006 House Labor, HHS Appropriations Acts which would have 

blocked the NLRB from enforcing the San Manuel decision. These 

amendments, which were offered by Representative J.D. Hayworth, 

were twice rejected on roll call votes: 225 to 187 on September 9, 

2004, and 256 to 146 on June 24, 2005.27

AMENDMENTS

No Democratic amendments were offered at the July 22, 2015 

markup. 

H.R. 511 IS UNNECESSARY BECAUSE THE NATIONAL LABOR RELATIONS

BOARD’S CURRENT APPROACH BALANCES TRIBAL SOVEREIGNTY AND

WORKERS’ RIGHTS

This legislation is not needed, because the NLRB’s case-by-case 

approach balances two competing principles—protection of workers’ 

rights and the preservation of tribal sovereignty. The bill’s all-ornothing approach is too sweeping, and there is no principled basis 

for excluding hundreds of thousands of workers from coverage 

under labor laws just because they happen to work in a commercial 

enterprise on tribal lands. 

This bill cloaks an anti-union agenda in the respectable garb of 

tribal sovereignty. It is another attempt in the Majority’s quest to 

dismantle labor unions and strip workers of their ability to bargain 

for better pay and working conditions. We urge the full House of 

Representatives to reject this legislation. 

ROBERT C. ‘‘BOBBY’’ SCOTT, 

Ranking Member. 

HAKEEM S. JEFFRIES. 

ALMA S. ADAMS. 

MARK DESAULNIER. 

JOE COURTNEY. 

KATHERINE M. CLARK. 

MARK POCAN. 

GREGORIO KILILI CAMACHO

SABLAN. 

RUBEN HINOJOSA. 

Æ 


emcdonald on DSK67QTVN1PROD with HEARING