The Tribal Labor Sovereignty Act: Simple parity for Indian tribes

Greg Nash

It should not surprise people to hear that in matters impacting the welfare of tribal governments and Native people, Indian Country takes the long view. From the beginning of the republic, different personalities have inhabited the White House and wide swings in federal Indian policy have been adopted by the Executive Branch and Congress alike.

From the early days of treaty-making, through the Indian wars, reservation and allotment periods, termination and relocation, and now the Indian Self-Determination policy era, tribes have been resilient – and sometimes uneasy – partners with the United States government.

{mosads}To survive and prosper, our north star has always been an insistence on support for tribal sovereignty and an affirmation of the core principle that tribes are governments, primary members of the American family of governments that include federal and state governments.

It should also not surprise observers that Indian affairs historically are non-partisan. Indian Country has friends on both sides of the aisle in both the House and the Senate. Both political parties have seen the wisdom of supporting strong tribal governments and tribal sovereignty and have come to realize that as the most local of governments, tribes know best how to solve local challenges.

One current issue that has garnered support of Republicans and Democrats alike is the “Tribal Labor Sovereignty Act” (TLSA), a bi-partisan piece of legislation that passed the House in December 2017 by a 239-173 margin, and is now pending in the Senate as part of S.140, a package of tribal technical amendments. This legislation is needed to correct a 2004 decision interpreting the National Labor Relations Act of 1935 (NLRA) by the National Labor Relations Board (NLRB) that reversed seventy years of precedent and stripped Indian tribes of their governmental status under the NLRA and, in the process, rendered tribal governments second-class citizens.

The original story of the NLRA is important: in the depths of the Great Depression, Congress wanted to require private sector employers to recognize the collective bargaining rights of their employees. Congress deliberately excluded from the NLRA’s coverage public sector employers. As such, state, local, and federal government employers have always been excluded from the NLRA’s definition of “employer.” So, too, were tribal government employers until 2004, when the NLRB arbitrarily decided to interpret the law in a new and unfounded way.

The legislative history of the NLRA shows that Congress recognized key differences between private and government employers in terms of labor relations, and did not want the kind of labor strife and work stoppages that could paralyze federal, state, and local governments, jeopardizing public health and safety in the process. Fundamental fairness dictates that the same principle be applied to tribal governments; as it was from 1935 to 2004.

As the Lieutenant Governor of the Chickasaw Nation of Oklahoma and President of the National Congress of American Indians, I know full well that tribes make an array of public services available to their tribal citizens and other local residents: law enforcement, fire and EMS departments, schools and hospitals, and natural resource management. All tribal governments play critical roles in ensuring the safety, health, and stability of tribal and surrounding communities.

Yet, exploiting an oversight in the NLRA that failed to explicitly mention tribal governments in the definition of “employer,” the NLRB determined that tribes were the only government employers in the United States that are subject to the collective bargaining and other provisions of the NLRA. Nearly seventy years after the fact. Not the federal government as an employer, not state government employers, and not local government employers. Only tribal governments, operating on their own lands. It is discriminatory, and an outrage.

Sovereignty means tribes should be allowed to make their own decisions about their own workforce policies. The truth is that many tribal nations openly welcome labor unions into the businesses that they own; others choose not to. And a growing number have designed and enforce their own labor regulations. But the NLRB ignores all of this and, instead, forces tribal governments to adhere to the NLRA. Just us. No one else. This is a plain violation of our inherent rights as sovereign nations and governments.

In our advocacy for this common-sense legislation, which corrects this injustice, we have encountered a refrain that I call “Conditional Sovereignty.” Some in Congress have said that they would support the TLSA if only tribal governments would follow the standards in the NLRA, or agree to other conditions on the exercise of our authority. No other government employers are asked to subject themselves to these types of encroachment.

“Conditional Sovereignty” is not sovereignty at all: it is just a fence-straddling way out for those who are conflicted about their support for labor unions and their support for tribes and the inherent sovereignty they possess. But in policymaking, as in life, choices define who we are and what we value.

The bottom line is that the Senate has the power to correct the NLRB’s flawed decision by voting to end debate on S.140 and take up and pass the “Tribal Labor Sovereignty Act.”

Fifteen years is long enough for Congress to avoid setting the NLRB straight and providing tribal governments the governmental parity they deserve. Congress should pass, and President Trump should sign, the “Tribal Labor Sovereignty Act.”

Jefferson Keel is the Lieutenant Governor of the Chickasaw Nation of Oklahoma and the President of the National Congress of American Indians.

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