Published on Apr 16, 2018
In life, timing is everything as they say. And the time is now for the United States Senate to take up and pass the Tribal Labor Sovereignty Act, a bi-partisan bill that has been pending for years that would uphold the inherent rights of Indian tribes to self-governance. TLSA would provide parity for tribal governments by ensuring they have the same ability as all other governments to regulate labor relations for our government employees.
When the National Labor Relations Act (NLRA) was enacted in 1935, Congress deliberately excluded from its coverage federal, state, and local government employers. For seven decades after the enactment of the National Labor Relations Act in 1935, the National Labor Relations Board (NLRB) held the law also did not apply to tribal government employers, affirming their official status as governments as recognized in the U.S. Constitution. The NLRB’s position made sense, because labor strikes risk paralyzing tribal governments and causing havoc in their communities (just as it would for other governments).
In 2004 – without any directive change in the law – the NLRB pulled an about-face, arbitrarily deciding for the first time that the NLRA applies to tribal government employers. Developed to right the NLRA’s unfounded wrong, the Tribal Labor Sovereignty Act reflects our unwavering belief that tribal sovereignty is not conditional. There is no alternative when it comes to treating tribal governments with the same respect and deference accorded to federal, state, and local governments when it comes to the NLRA.
Sovereignty in this instance simply means tribal governments should be allowed to enact their own laws regulating labor organizing by government employees – just like other governments have always been. The truth is that many tribal nations openly welcome labor unions into the enterprises that they own, and a growing number have designed and enforce their own labor regulations. As tribal governments, we all strive to attract and retain employees and provide the best working conditions and the best incentives for workers. Tribal nations, like other governmental employers, have a huge interest in ensuring that our employees are satisfied and productive. In fact, tribal government employers regularly are hailed as the best employers in our regions.
The NLRB’s decision not to exempt tribal nations as governmental entities gives outside third-party unions the power and control to call a strike of a tribal government’s workforce. This can be devastating to tribal nations, as their governments face potential shutdowns that would stall the provision of public services and vital revenue-generating operations. Therefore, tribal nations must not, have not, and will not stand for the NLRB’s position.
State and local governments are very similar to tribal governments. They employ hundreds of thousands of workers in government-owned enterprises, including hotels, convention centers, state casinos and lotteries, state parks, golf courses, ski resorts, as well as revenue-generating banks, flour mills, and facilities for vehicle repair. All of these state employers and those they employ are exempt from the NLRA. Tribal governments simply ask for the same treatment – fair treatment.
The Tribal Labor Sovereignty Act is a simple amendment to the National Labor Relations Act that would explicitly name tribal governments in the same exempt category as all other government employers in the United States. At the end of the day, policy, as in life, means making choices that define who we are and what we value. The Senate has the opportunity to correct the NLRB’s flawed decision by voting to pass the Tribal Labor Sovereignty Act, upholding tribal self-governance and providing a measure of justice to tribal nations and Native people.
Jefferson Keel is the Lieutenant Governor of the Chickasaw Nation of Oklahoma and the President of the National Congress of American Indians.
Ernie Stevens is the Chairman of the National Indian Gaming Association.