Tribal Sovereignty Under Attack
I hate to say, "I told you so," but ... Over four years ago I warned that
the National Labor Relations Board (NLRB) was dangerously close to imposing
its jurisdiction on Indian tribal governments. A few weeks ago, the NLRB
did just that, voting 3 - 1 to overturn decades-old rulings that tribes are
governmental entities not subject to the National Labor Relations Act
The decision in the San Manuel case is an unprecedented attack on tribal
sovereignty and an affront to longstanding federal Indian policy and
practice. It ignores the Constitution, congressional intent, treaties, case
law, and previous NLRB decisions. It puts tribal governments at the mercy
of labor organizers.
Headlines around the country tell the story: "NLRB's Legal Earthquake Would
Affect 20,000 Employees in Connecticut"; "Unions Target Tens of Thousands
of Tribal Casino Employees"; "Labor Eyes Tribal Workers" etc. Indeed,
unions are already gearing up to take on tribal management. And we know
where any disputes would end up - the labor-friendly NLRB. The fix is in.
I am therefore introducing legislation, the Tribal Labor Relations Act of
2004. This bill would specifically exempt federally recognized Indian
tribal governments from the NLRA - undoubtedly the original intent of
Congress. This would put the tribes on equal footing with the states, which
is as the Constitution prescribes.
Of course, tribes would continue to be free to voluntarily enter into labor
agreements, as some already have. But they would not be coerced into doing
The reasoning employed by the majority in this case was as specious as it
was condescending. The NLRB asserted that it now has the power to review
every aspect of tribal activity and claim jurisdiction of those that it
deems are "commercial" in nature. The result will see union activists and
pro-labor Board members colluding to expand the meaning of "commercial"
activities until every aspect of tribal government comes under the NLRB's
But what the NLRB considers "commercial" activities are, in fact,
governmental revenue-raising activities. State governments engage in
similar activities, including state liquor stores and lotteries. Yet no one
would ever dream of imposing federal labor laws on these state activities.
Why should tribes, recognized as sovereign by the Constitution, be any
Adding insult to injury is the labor movement's long, sad history of
anti-Indian discrimination. For 100 years, labor ignored the grinding
poverty, joblessness, and despair on our nation's reservations. Unions
prevented Indian entry into the labor movement and stole reservation jobs
Yet, now that some tribes are finding success with gaming and other
activities, the labor movement is looking for a piece of the action by
targeting tribes for forced unionization. It's a repeat of the Indian land
grab of a century ago.
Equally disturbing, just a few days after the NLRB's decision in San
Manuel, the 10th Circuit Court of Appeals used similar reasoning to decide
the Snyder v. Navajo Nation case under the Fair Labor Standards Act. That
ruling allowed the U.S. Labor Department to review whether a tribal
government's activities are part of what the Department decides is core
"governmental" services or "commercial."
Make no mistake, if we do not act - and quickly - there will be a slow but
steady erosion of Indian tribal sovereignty engineered by liberal activist
judges and their allies in Big Labor. The Tribal Labor Relations Act of
2004 is the solution. Let your Member of Congress know you support this
Rep. Hayworth is serving his fifth term in Congress since being elected in
1994. He is a member of the House Ways and Means Committee and the House
Resources Committee and is co-chair of the Congressional Native American