Tribes Seeking Exclusion from NLRA

by Brad Jolly, Partner
Jul 19, 2006

Representative J.D. Hayworth (R-AZ) has introduced a bill that would provide that tribes are not subject to the National Labor Relations Act ("NLRA"). As some may recall, the Hotel Employees and Restaurant Employees Union ("HERE") had filed a complaint against the San Manuel Band of Mission Indians before the National Labor Relations Board ("NLRB") a few years ago. Although many tribes filed briefs before the NLRB urging it to recognize that tribes are not subject to the NLRA or, at a minimum, have the same authority as states to enact their own laws governing union shops and similar matters governed by the NLRA, the NLRB failed to recognize or respect tribal sovereignty or self-government and chose to treat tribes as though they are private entities subject to the NLRA. The Board's decision is currently on review before the D.C. Circuit.

The NLRA held that running a commercial enterprise, such as the gaming operation involved in the case, was "not an expression of sovereignty in the same way that running a tribal court system is." Interestingly, the stae of Connecticut had filed a brief in support of HERE and the State of Connecticut's lottery is a corporation. The NLRB's decision represented yet another instance of double standards when it comes to tribes. Not only did the Board fail to recongize that gaming and other tribal economic enterprises exist to provide governmental revenues to tribes and that such economic operations are necessary because tribes do not have a tax base to raise revenues like states or the federal government through taxation, but the NLRB certainly does not attempt to enforce the NLRA against state lotteries, which also can hardly be considered akin to operating a court system and, truly are just state-run economic enterprises.

The issue with the NLRA is simply one instance where tribes are continuously harmed and tribal sovereignty and self-government brushed aside under a legal fiction that, somehow, in not considering tribes at all, Congress intended to bring them under general laws that apply to private entities in the United States, such as the Fair Labor Standards Act, OSHA, and similar laws. The unilateral imposition of such laws on tribes is one of the greatest impositions upon tribal self-government - after all, there can be no greater way of interfering with self-government than to take away the ability for tribes to make their own laws and be ruled by them by forcing them to be subject to laws made by another government. It is a fundamental aspect of self-dtermination to decide what the content of laws should be and whether such laws should exist in the first instance. Representative Hayworth's bill would be a great benefit to tribes and very positive empowerment of tribal sovereignty, self-government, and self-determination.