Traditional allies, labor and Indian tribes, are pitted against each other in the bitter battle over the Tribal Labor Sovereignty Act. The act, which recently stalled in the U.S. Senate after only getting 55 votes to 41, could come up for a vote again as supporters try to get 60 votes and overcome a filibuster.
Leaders in the Republican Senate, who have a slim majority, are pulling out all procedural stops to try to get the votes and rack up a high-profile victory in an election year. It’s also one of the few instances in recent history where Republicans are championing a cause dear to the heart of Indian Country while Democrats fiercely oppose it since it strikes at the core of labor interests.
The House of Representatives has already passed a version of the bill. So, if the Senate musters 60 votes, the bill would head to the White House for President Trump’s signature.
Senator John Hoeven, the chairman of the Senate Committee on Indian Affairs last week declared, “Today marks a real opportunity for the Senate to affirm and celebrate tribal sovereignty and self-determination.”
This is disputed by the top Democrat on that committee, Senator Tom Udall, who claims that the majority party is destroying the bipartisan spirit that usually is seen on the committee, if not anywhere else in the Senate. Unanimous votes on the committee are common.
“Normally, our committee is very bipartisan,” he said. “It was not so in this case today.” He added, “I was not asked for input. Nothing about this bill was negotiated with me.”
Udall points out that instead of bringing up Indian-related bills that both sides agree on, the committee chose to embarrass Democrats in an election year.
Udall said the committee ought to be voting on such issues as reauthorization of the Native American Housing Assistance and Self Determination Act (NAHASDA), which expired five years ago—or bills on housing, education and health.
“It is shameful that this full body does not consider and resolve these and other important issues,” said Udall. “And it is shameful that, when the Senate gives Indian Country its first shot in 10 years, Republicans closed the debate to prevent consideration of other pressing pieces of Indian Affairs legislation.”
Supporters argue that Senator Jerry Moran’s bill would uphold tribal sovereignty against regulatory overreach by the National Labor Relations Board (NLRB) which in recent years has claimed jurisdiction over tribal businesses that employ non-tribal workers.
Before the committee’s procedural vote, Moran said, “If you have to qualify your support for tribal sovereignty in order to protect your own interests, instead of the tribes, you really don’t support tribal sovereignty.”
Dismissing the idea that he was not open to negotiating, Moran said he had been willing to attach NAHASDA to the labor bill but said Democrats refused. Earlier, he said, he tried to include the labor bill as part of an omnibus spending bill, but that also failed.
In January the bill that passed the House tied the Tribal Labor Sovereignty Act to an unrelated drinking water project in Arizona, the White Mountain settlement, which includes a deadline for complete approval by 2021 or it becomes void.
Despite the initial failure to get enough votes to overcome a filibuster, Senate Majority Leader has said he will bring it up again with another amendment.
Although the National Labor Relations Act (NLRA) was passed in 1935, it wasn’t until 2004 that the NLRB asserted its authority over labor law pertaining to Indian casinos. Although some tribes have challenged this in court, the U.S. Supreme Court has declined to rule on it.
Tribes argue that since states and other governmental units employing over 21 million workers, are exempt from the NLRA, they should be too. But in votes in 2004 and 2005 they failed to get Democrats to get behind this interpretation.
Senator Sherrod Brown contends that the Tribal Labor Sovereignty Act is unfair to labor. “This bill strips away the rights of 600,000 employees at tribal casinos — 600,000 employees at casinos on tribal lands will lose their rights to collective bargaining,” he said when he voted against “cloture,” which would have allowed the bill to pass. “You know what that means to their wages, you know what that means to their benefits.”
After the most recent vote on the bill, National Congress of American Indians President Jefferson Keel commented, “Obviously, this is disappointing. But I want to thank the Senate for taking up this important issue and thank each senator for the time he or she spent to understand the issue and the nature of tribal governments. From the comments we heard on the Senate floor today, we still have much work to do to educating Congress about the fact that tribal sovereignty is not a conditional proposition. However, I am encouraged that we won a majority of votes, and that our issue made it to the Senate floor. We will be back.”
Keel added, “Everyone knows that the U.S. Constitution set up our federal system of government, but far too few know that the Constitution also recognizes the sovereignty of Indian tribes.”
Keel also said, “Tribal sovereignty is not an abstract principle. Tribal self-government is critical for us to maintain our cultures and our viability as distinct groups of people. We want our children to grow up with the same traditions and values that we grew up with. These are reasons that everyone in America can understand because these are the basic values of cultural survival that we all share just as much as our need to breathe the air.”
