Earlier this month, a bipartisan 239-173 majority of the House of Representatives passed the text of the Tribal Labor Sovereignty Act (H.R. 986) as an amendment to a Senate bill amending a 2010 law regarding Apache tribal water rights (S. 140). The Tribal Labor Sovereignty Act would amend the National Labor Relations Act to expressly clarify the exclusion of tribal employers from the Act’s definition of “employer.” Specifically, the bill would add “any enterprise or institution owned and operated by an Indian tribe and located on its Indian lands” to the definition’s list of exclusions set forth in Section 2(2) of the Act as follows:

…the United States or any wholly owned Government corporation, or any Federal Reserve Bank, or any State or political subdivision thereof…

Until 2004, the NLRB’s position regarding jurisdiction over Indian tribes as employers was that tribes were exempt from the NLRA. That year, however, the Board shifted course entirely, asserting jurisdiction over the San Manuel Indian Bingo and Casino — a tribal casino owned and operated by the San Manuel Band of Serrano Mission Indians on tribal land in California. The Court of Appeals for the D.C. Circuit affirmed.

Proponents of this legislation argue that it simply affords Tribal governments the same respect that the National Labor Relations Act affords state and local governments. Upon its passage, House Committee on Education and the Workforce Chair Rep. Virginia Foxx (R-NC), and Subcommittee Chair Rep. Tim Walberg (R-MI), issued the following statement:

This is a long overdue solution to protecting the rights of Native Americans, and respecting their laws the same as state and local governments. The bureaucratic overreach by the NLRB costs Native American businesses significant time and money to fight the federal government’s arbitrary intervention in labor relations involving Native American tribes. Today’s bill strips unelected bureaucrats of the power they abused and reaffirms a respect for the sovereignty of Native American tribes.

The Apache Water Rights bill had passed the Senate by unanimous consent. The amended bill, including the Tribal Labor Sovereignty Act language, will now head back to the Senate. It is safe to say that it will not pass unanimously this time around. Twenty-three (23) Democrats from conservative districts and states with significant Native American communities joined the Republican caucus in the House to vote for this bill, and the principles underlying the bill previously found sympathy in some courts and the Obama administration’s Department of the Interior. The bill’s sponsors will need at least nine (9) Democrat votes to break a filibuster in the Senate — a tall order in this polarized mid-term election year. Plus, organized labor has kicked its opposition to the bill into overdrive, increasing that challenge. UNITE-HERE has already cut off campaign contributions to all Democrats who voted for the measure in the House, threatening the same for any Senate supporters — and local media outlets report that Democrat Senators are already expressing opposition to the bill.