Native Americans, Tribal Sovereignty and Unions

Abstract

22 | International Union Rights | 25/4 FOCUS | INDIGENOUS PEOPLES & UNIONS The Tribal Labor Sovereignty Act which narrowly failed to pass Congress provoked strong criticism from US labour.We asked two prominent lawyers what the Act means for Native Americans To understand labour relations in ‘Indian country’ (e.g. ‘reservations’ Native Americans retained after untold land cessions to the US under the barrel of the gun), one must understand the fundamental nature of tribal sovereignty and the relationship between tribal nations and the United States. Indigenous peoples have occupied what is now the US from time out of mind, and in so doing exercised governmental authority over their respective tribal citizens and their lands. After the American Revolution, the US Constitution defined treaties with tribal nations as the ‘Supreme law of the land’. The Constitution also granted Congress broad authority over Indian affairs. Centralising power over Indian affairs within the federal government had practical consequences: it was essential for systematic colonisation. The Supreme Court established early on that tribes are ‘domestic dependent nations’ and that the US has a trust responsibility to protect their sovereign authority as governments. The Supreme Court subsequently described the sovereignty of Indian tribes as of ‘a unique and limited character’, which ‘exists only at the sufferance of Congress and is subject to complete defeasance. But until Congress acts, the tribes retain their existing sovereign powers’1. The Court also established that the federal trust responsibility to protect tribal sovereignty requires ambiguities in statutes affecting tribal nations to be construed in favour of tribal self-determination2. Thus, if Congress is silent on the question of whether a federal law may be imposed on a tribe in a manner that would undermine its inherent sovereign authority, the ‘proper inference… is that the sovereign power remains intact’3. Labour and Employment Relations In Indian Country It is well-established that tribes have inherent sovereign power to govern labour and employment relations within Indian country, their territorial jurisdiction, in accordance with their own laws. Tribal nations engage in a host of economic activities on their lands to raise governmental revenues for the provision of governmental services to their members. These include the operation of casino resorts, timber and other natural resources industries, and many more. In these settings, tribes retain inherent sovereign authority to enact and enforce labour and employment laws. Many tribes have enacted laws to govern unions and collective bargaining as well as employment discrimination. Non-citizens of Indian nations who take up employment with tribes or their enterprises in Indian country are also subject to these laws. The National Labor Relations Act (NLRA) enacted in 1935 – establishes and protects the right of private-sector employees to organise and join unions and to engage in collective bargaining with employers. The NLRA expressly excludes the federal government, states, and municipalities from its application; it applies only to private employers. Labour organising in the public sector is separately governed by state and federal laws, which differ in substantial ways from the NLRA. Congress is silent on the application of the NLRA to tribal nations or their enterprises within Indian country. For nearly 75 years, the National Labor Relations Board (NLRB) had held that tribal nations and their enterprises in Indian country are not ‘employers’ subject to the NLRA, in recognition that tribal nations are sovereign governments, like the state and federal governments. NLRB applies the NLRA to tribal gaming operations In 2004, the NLRB changed course and held that a tribe engaged in gaming within Indian country to generate governmental revenues in accord with the Indian Gaming Regulatory Act (IGRA) was an ‘employer’ subject to the NLRA. The ruling was upheld on appeal4. The Court said that because operation of a casino was ‘not a traditional attribute of self-government’ and the tribe employed noncitizens at the casino, tribal sovereign interests did not warrant construing Congress’s silence in favour of the tribe. The San Manuel decision has been roundly criticised by federal Indian law scholars. Tribal nations engage in gaming pursuant to the IGRA to generate governmental revenues to support badly needed governmental services for tribal members. The IGRA requires that tribes use the net revenues from gaming to...