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115th Congress         }                        {            Report
                                 SENATE
 1st Session           }                        {               115-3

======================================================================



 
  TO CLARIFY THE RIGHTS OF INDIANS AND INDIAN TRIBES ON INDIAN LANDS 
                 UNDER THE NATIONAL LABOR RELATIONS ACT

                                _______
                                

               February 17, 2017.--Ordered to be printed

                                _______
                                

           Mr. Hoeven, from the Committee on Indian Affairs, 
                        submitted the following

                              R E P O R T

                          [To accompany S. 63]

    The Committee on Indian Affairs, to which was referred the 
bill (S. 63), to clarify the rights of Indians and Indian 
tribes on Indian lands under the National Labor Relations Act, 
having considered the same, reports favorably thereon without 
amendment and recommends that the bill do pass.

                                PURPOSE

    The purpose of S. 63 would amend and clarify the National 
Labor Relations Act (NLRA or the Act) so that federally-
recognized Indian tribes, tribal governments, and tribally-
owned and operated institutions and enterprises that are 
located on its Indian lands would be provided equity and parity 
under the law with respect to other governmental employers.

                          NEED FOR LEGISLATION

    The NLRA was enacted by Congress in 1935 to ensure fair 
labor practices and it explicitly excluded Federal and state 
governmental\1\ employers from the federal labor law. Indian 
tribes, tribal governments, and tribally-owned and operated 
institutions and enterprises were never defined, mentioned, or 
excluded from the law. The National Labor Relations Board's 
(NLRB or the Board) decisions and orders, have varied in the 
applicability of the Act on Indian tribes, and their 
institutions or enterprises.
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    \1\Including any corporations wholly-owned by these governmental 
entities.
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                               BACKGROUND

    The NLRB is an independent Federal agency established by 
the Act. The Act recognizes the right of employees to engage in 
collective bargaining through representatives of their own 
choosing. However, certain employers are excluded from the Act 
such as those of the Federal and State governments, including 
wholly-owned government corporations, state lotteries and 
liquor stores. The NLRA never mentions Indian tribes, tribal 
governments, and tribally-owned and operated institutions and 
enterprises.
    The primary responsibility of the NLRB is to administer the 
Act. The NLRB conducts elections, investigates charges, 
facilitates settlements, decides cases, and enforces orders. 
The NLRB is governed by a five-person board and a general 
counsel, appointed by the President and confirmed by the 
Senate.

National Labor Relations Board decisions

    In two cases from 1935 to 2004, the Board declined to 
assert its jurisdiction over tribally-owned enterprises located 
on tribal lands in the Fort Apache Timber Co. (1976)\2\ and 
Southern Indian Health Council (1988).\3\ The NLRB held that 
tribally-owned businesses operating on their Indian lands were 
exempt from the NLRA's definition of employer. However, in Sac 
& Fox Indus. (1992),\4\ the Board held that a tribally-owned 
and operated factory that was located off Indian lands was 
subject to the NLRA.
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    \2\Fort Apache Timber Co., 226 NLRB 503 (1976).
    \3\Southern Indian Health Council, 290 NLRB 436 (1988).
    \4\Sac & Fox Indus., 307 NLRB 241 (1992).
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The San Manuel Case

    In 2004, the NLRB ruled in the San Manuel Indian Bingo & 
Casino\5\ (a casino located on its reservation, and owned and 
operated\6\ by the San Manuel Band of Serrano Mission Indians) 
that the NLRA applies to tribal enterprises located on Indian 
lands. This was the first instance in which the Board applied 
the NLRA to a tribally-owned business on tribal lands. 
Furthermore, in this decision the Board determined future 
jurisdictional questions of the applicability of the NLRA will 
be decided on a case-by-case basis. In 2007, the U.S. Court of 
Appeals for the District of Columbia affirmed\7\ the Board's 
2004 San Manuel decision.
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    \5\San Manuel Indian Bingo & Casino, 341 NLRB 138 (2004).
    \6\The Indian Gaming Regulatory Act, Pub. L. No. 100 497 (Codified 
as 25 U.S.C. Sec. 2701 et seq.) (1988), states that all gaming revenue 
must be used for tribal government purposes. Tribal government services 
could include, but is not limited to: health care, social services, 
housing, utilities, educational assistance, and emergency services.
    \7\San Manuel Indian Bingo & Casino v. NLRB, 475 F.3d 1306 (D.C. 
Cir. 2007).
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The Chickasaw Nation Case

    After the U.S. Supreme Court's decision in Noel Canning,\8\ 
which ruled the Board was invalidly appointed, the 10th Circuit 
case of Chickasaw Nation v. NLRB was remanded back to the 
Board. On June 4, 2015, the Board issued a decision on the 
application of the NLRA to the Chickasaw Nation, which operates 
a tribally-owned enterprise known as the WinStar Casino on 
tribal lands. In that ruling,\9\ the Board decided not to 
assert jurisdiction over the Chickasaw Nation. Specifically, 
the Board cited the Chickasaw Nation's treaty with the United 
States blocked the Board from asserting its jurisdiction over 
the tribe's casino. It is unknown what immediate effect the 
Chickasaw Nation decision will have on other tribal cases since 
the Board's decision was based on a treaty specific to the 
Chickasaw Nation.
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    \8\NLRB v. Noel Canning, 573 U.S. ------, 134 S. Ct. 2250, 189 L. 
Ed. 2d 538 (2014).
    \9\Chickasaw Nation, 362 NLRB 109 (2015).
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U.S. Court of Appeals

    Meanwhile, several Indian labor cases have appeared before 
the U.S. Court of Appeals for the 6th and 10th Circuits. In the 
Little River Band of Ottawa Indians,\10\ the 6th Circuit held 
that the NLRB could enforce provisions of the Act against the 
Indian tribe. However, the 10th Circuit held in Pueblo of San 
Juan,\11\ that the Pueblo's right to adopt a tribal labor 
ordinance preempts the NLRA and affirmed the decision of the 
district court. Thus, given the split interpretations from the 
Circuit courts and the Board, legislation is needed to ensure 
clarity and parity in the application of the NLRA to Indian 
tribes, tribal governments, and tribally-owned and operated 
institutions and enterprises that are located on its Indian 
lands.
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    \10\NLRB v. Little River Band of Ottawa Indian Tribal Gov't, No. 14 
2239 (6th Cir. June 9, 2015).
    \11\NLRB v. Pueblo of San Juan, 280 F.3d 1278 (10th Cir. N.M. 
2000).
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Tribal sovereignty

    In Cherokee Nation v. Georgia, 30 U.S. 1, (1831), the U.S. 
Supreme Court declared that Indian tribes are ``domestic 
dependent nations.'' Reinforcing Tribes' status as nations, 
several court cases\12\ have recognized and upheld that Indian 
tribes have the attributes of sovereignty including: sovereign 
immunity and authority over their members and territory. 
Additionally, the Indian Self-Determination and Education 
Assistance Act of 1975 and the Native American Housing and 
Self-Determination Act of 1996, in particular, recognize the 
exercise of tribal authority by deferring to tribal personnel, 
wages, and labor laws in carrying out programs.
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    \12\Montana v. United States, 450 U.S. 544, 564 565 (1981); Nat'l 
Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845, 854 855 (1985); 
Strate v. A-1 Contractors, 520 U.S. 438, 453 (1997); South Dakota v. 
Bourland, 508 U.S. 679, 695 (1993); Nevada v. Hicks, 533 U.S. 353, 360 
(2001).
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    This bill is intended strengthen tribal sovereignty and 
addresses those instances where a Tribe is acting as an 
employer and conducting its business on tribal lands. This bill 
does not alter or affect in any way the applicability of the 
Act to a privately-owned business or enterprise, regardless of 
whether it conducts business on or off tribal lands or 
regardless of the number of Native Americans comprising its 
workforce.

Bureau of Indian Affairs position

    On December 7, 2011, Deputy Solicitor of Indian Affairs, 
Patrice Kunesh, sent a letter\13\ to the Acting General Counsel 
of the Board, Lafe Soloman, requesting the NLRB ``re-evaluate 
its position on tribal issues and to help advance the Federal 
government's commitments to Indian Country, particularly with 
regard to respecting tribes as sovereign governments.'' The 
Deputy Solicitor of Indian Affairs then went on to state that 
``[t]ribal governments should be given at least the same 
exception as provided to state governments in the NLRA.''
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    \13\Letter from Patrice Kunesh, Deputy Solicitor of Indian Affairs, 
U.S. Department of the Interior, to Lafe Soloman, Acting General 
Counsel, NLRB (Dec. 7, 2011).
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                          LEGISLATIVE HISTORY

    On January 9, 2017, Senator Jerry Moran (R-KS) introduced 
S. 63, along with Senators Mike Crapo (R-ID), Steve Daines (R-
MT), Jeff Flake (R-AZ), Cory Gardner (R-CO), Ron Johnson (R-
WI), James Lankford (R-OK), John McCain (R-AZ), John Thune (R-
SD), Roger Wicker (R-MS), and James Risch (R-ID). The bill was 
referred to the Senate Committee on Indian Affairs. On February 
8, 2017, the Committee met to consider the bill. The Committee 
then ordered the bill to be reported favorably to the Senate by 
voice vote. Senators Maria Cantwell (D-WA), Brian Schatz (D-
HI), and Catherine Cortez Mastro (D-NV) requested to be 
recorded as voting against S. 63.
    In the 114th Congress, Senator Jerry Moran (R-KS) 
introduced S. 248, along with Senators Mike Crapo (R-ID), Steve 
Daines (R-MT), Deb Fischer (R-NE), John Hoeven (R-ND), James 
Inhofe (R-OK), James Lankford (R-OK), and John Thune (R-SD). 
Senators James Risch (R-ID), Mike Rounds (R-SD), Cory Gardner 
(R-CO), and John McCain (R-AZ) were later added as co-sponsors. 
The bill was referred to the Senate Committee on Indian 
Affairs. On March 4, 2015, the Committee held a legislative 
hearing on the bill. On June 10, 2015, the Committee met to 
consider the bill. The Committee then ordered the bill to be 
reported favorably to the Senate by voice vote.
    In the 113th Congress, Senator Moran introduced, S. 1477, 
the Tribal Labor Sovereignty Act of 2013.\14\ It was referred 
to the Committee on Indian Affairs where no further action was 
taken. A similar bill, H.R. 1226, was introduced in the House 
of Representatives by Representative Kristi Noem and no further 
action was taken.
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    \14\In the 114th Congress, S. 248, the Tribal Labor Sovereignty Act 
of 2015 has identical language to the 113th Congress introduced bill, 
S. 1477, the Tribal Labor Sovereignty Act of 2013.
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    Additional Senate Actions. In the 111th Congress, Senator 
Inouye sent a letter\15\ to Senator Kennedy, then-Chairman of 
the Committee on Health, Education, Labor, and Pensions (HELP), 
requesting that the legislation under consideration\16\ include 
an amendment giving Indian tribes equal treatment that Federal 
and state governments receive under the NLRA. In the letter, it 
stated the Constitution of the United States ``acknowledges 
Indian tribes as governments under the Commerce Clause and the 
Supremacy Clause.'' Furthermore, Senator Inouye's letter 
recommended the HELP Committee consider an amendment to S. 560, 
the Employee Free Choice Act, which would clarify the 
definition of employer to include Indian tribes.
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    \15\Letter from Sen. Daniel Inouye, U.S. Senate, to Sen. Edward 
Kennedy, U.S. Senate (Jun. 1, 2009).
    \16\The Employer Free Choice Act, S. 560, 111th Cong. (2009).
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        SECTION-BY-SECTION ANALYSIS OF BILL AS ORDERED REPORTED

Section 1--Short title

    Section 1 states S. 248 may be cited as the ``Tribal Labor 
Sovereignty Act of 2017.''

Section 2--Definition of employer

    The bill amends Section 2(2) of the National Labor 
Relations Act (29 U.S.C. 152) by including in the list of 
employers that are excluded from the NLRA, ``or any Indian 
tribe, or any enterprise or institution owned and operated by 
an Indian tribe and located on its Indian lands.'' The bill 
intends to provide parity, under the law alongside Federal and 
State governments, to federally-recognized Indian tribes, 
tribal governments, and tribally-owned and operated 
institutions and enterprises.

                   COST AND BUDGETARY CONSIDERATIONS

    Summary: S. 63 would add tribes to the list of entities 
that are excluded from the definition of ``employer'' for 
purposes of the National Labor Relations Act. Through the 
National Labor Relations Board (NLRB), the National Labor 
Relations Act protects the rights of most private-sector 
employees to form a union and to bargain collectively. Adding 
tribes to the list of excluded employers would treat them 
similarly to state and local governments. Currently, the NLRB 
generally asserts jurisdiction over the commercial enterprises 
owned and operated by Indian tribes, even if they are located 
on a tribal reservation. However, the NLRB does not assert 
jurisdiction over tribal enterprises that carry out traditional 
tribal or governmental functions. Enacting S. 63 would not 
significantly affect the workload of the NLRB, so it would have 
no effect on the federal budget. Because enacting the bill 
would not affect direct spending or revenues, pay-as-you-go 
procedures do not apply.
    CBO estimates that enacting S. 63 would not increase net 
direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2028. H.R. 63 contains 
no intergovernmental mandates as defined in the Unfunded 
Mandates Reform Act (UMRA).
    By excluding tribal enterprises located on tribal land from 
the definition of employer for purposes of the National Labor 
Relations Act, the bill would eliminate the right of employees 
of such enterprises to file a claim, individually or through a 
union, regarding certain labor practices. Currently, employees 
may file a claim against tribal employers over which the NLRB 
asserts jurisdiction alleging unfair labor practices under the 
act that prohibit or interfere with collective activities to 
improve wages and working conditions. By eliminating the right 
of employees to file such claims with the NLRB, the bill would 
impose a private-sector mandate.
    The direct cost of the mandate would be the value of 
forgone monetary awards resulting from claims that would have 
been filed with the NLRB in the absence of the bill. According 
to the NLRB, it currently receives about 20,000 to 30,000 
claims in total each year from employees, unions, or employers 
alleging unfair labor practices and more than half of all 
claims are withdrawn or dismissed. Other claims may be settled 
by the parties or adjudicated by the NLRB. Successful claims 
may result in remedies such as reinstatement of discharged 
employees and back pay for the period of unemployment, as well 
as payment of dues, fines or other costs. In fiscal year 2016, 
claims with the NLRB resulted in about 600 cases in which 
employees were reinstated and in awards of about $53 million in 
back pay and other costs. Case documents show that the NLRB has 
asserted jurisdiction over only a small number of tribal 
enterprises since 2004 (fewer than 10). Based on those data, 
CBO estimates that the cost of the mandate would not be 
substantial and would fall below the annual threshold 
established in UMRA for private-sector mandates ($156 million 
in 2017, adjusted annually for inflation).
    Successful claims filed with the NLRB also may result in a 
requirement on employers that would allow their employees to 
form a union and bargain collectively. Imposing such a 
requirement on employers may have a broader impact than that 
measured by the value of forgone monetary awards and 
settlements for claims brought before the NLRB. However, under 
UMRA that broader impact is not considered part of the direct 
cost of the mandate.
    The CBO staff contact for this estimate is Christina Hawley 
Anthony. The estimate was approved by H. Samuel Papenfuss, 
Deputy Assistant Director for Budget Analysis.

                                  [all]