Big labor clashed with Big Tribal Gaming in the U.S. Senate, and labor won. Last week supporters of the Tribal Sovereignty Act did not round up enough votes to pass it. The vote was 55-41 to carry it forward, which fell short of the 60-vote requirement to prevent a filibuster.
The act would amend the National Labor Relations Act to exempt tribal businesses from the act, just as other governments, such as states, are exempted.
The AFL-CIO, which opposed the measure, called the law the most aggressive attempt to curtail labor protections since the 1940s.
Sharon Block a former member of the National Labor Relations Board, commented, “It’s a very, very troubling step at a moment when we should be doing everything we can to try to protect people’s collective rights and when there are so many people who feel so disempowered in this economy.”
Dan Mahoney, executive director of the Native American Enterprise Initiative at the U.S. Chamber of Commerce, disagrees. In a statement he said the act, “merely seeks to treat tribal employers like any other public employer. This is an issue of parity. It is not an effort to de-unionize but to clarify the paradigm under which unionizing could occur.”
National Congress of American Indians President Jefferson Keel, whose organization supported the amendment, reacted: “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.”
The National Labor Relations Act was passed in 1935, but didn’t affect tribal enterprises until recent years, when the NLRB has chosen to interpret the law as not exempting tribes from its provisions—for businesses that tribes operate, such as casinos.
In its 2004 ruling the NLRB wrote, “Running a commercial business is not an expression of sovereignty in the same way that running a tribal court system is,” and concluded “The tribe’s operation of the casino is not an exercise of self-governance.”
Tribes argue that this is a direct attack on their sovereignty since state governments are not treated the same.
Keel added, “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.”
Tribes spent a lot of money lobbying for the amendment. For example, the Chickasaw Nation spent more than $1.6 million on lobbyists and donated about $3 million to political candidates who support it.
This worked in the House of Representatives, which has twice approved the bill, in 2015 and earlier this year. But the Senate’s procedural rules make it harder for a simple majority to pass a bill.
The Chickasaw Nation in 2015 obtained an exemption for the act after the NLRB ruled that the tribe’s 1830 Treaty of Dancing Rabbit Creek addressed this issue. The Chickasaw are the only tribe to be exempted.
It has helped fund efforts to try to persuade Congress to create an exemption, which escalated after the U.S. Supreme Court refused to hear a case challenging the NLRB’s authority over tribes.
Indian Country pressed for legislation for about ten years. This grew stronger in 2011 when the Republican Party took control of the House.
Some union activity is allowed by some tribes. For example, the Mashantucket Pequot tribe, which operates Foxwoods, allows union organizing, even though it has been hostile to attempts by Unite Here to organize.
The union accuses the tribe of activities that would violate national labor laws, such as suspending workers for supporting the union.
In a statement Foxwoods Vice President for Human Resources Dale Merrill said, “The Mashantucket Pequot Labor Relations Law protects the rights of Foxwoods employees to be represented or not by any union, and we have always accepted the outcomes of union elections under tribal law.”
Unite Here, a culinary workers union ran a series of ads on the internet and on Pandora radio over the weekend before the vote to try to influence Nevada Senator Dean Heller to vote against the act.
For their part tribes, which typically tend to support Democrats, were reportedly irate with New Mexico Senator Tom Udall for not supporting the bill.
But Democrats are also traditionally loyal to big labor, so the issue served as a wedge for lawmakers trying to serve both interests.
One unidentified tribal gaming lobbyist interviewed by Gambling Compliance commented, “If Udall does not vote for this bill and we lose, Indian Country will have no choice but to reconsider its long-standing support for the Democratic Party.”
The absence of Arizona Senator John McCain who is undergoing treatments for cancer, was also a blow to supporters of the act.
Because of the Senate’s workload, the act may not come up for a vote again this year.
