As has been written in these pages, the National Labor Relations Board
(NLRB) decision in San Manuel Indian Casino and Bingo is troubling and
arrogant and it violates the most sacred tenet the U.S. government claims
to honor: The consent of the governed. The NLRB ruled that when tribes
operate “typically commercial” enterprises, employ a large number of
non-Indians and entertain non-Indian customers, those enterprises are
subject to NLRB jurisdiction. The battle over this latest assault on tribal
sovereignty will likely take on a life of its own and reach a judicial or
legislative conclusion years from now.
Regardless of the outcome in the courts or in Congress, the issue of labor
is one that the tribes must face. Every sovereign, no matter how small or
great, employs labor. As a colleague of mine remarked, “Labor is like a
force of nature; even the U.S. government must deal with it.” This organic
view of labor means that the issues raised by the NLRB’s decision need not
be framed as union or anti-union. Rather, the issue is one of unjustified
and unwarranted imposition of federal power. While the larger battle grinds
on, tribes have an opportunity to simultaneously flex and preserve their
sovereignty by taking charge of the situation within their territories by
considering several actions.
Legislation: Tribes, unlike most private employers, can pass laws governing
their territories. The more closely a tribe can tie the employer-employee
relationship to an expression of its self-government, the more difficult it
will be for a federal court to assert jurisdiction. For example, if tribal
law establishes detailed wages and working conditions, the tribe would have
a strong argument that enforcement of a collective bargaining agreement
that is in conflict with the tribe’s laws will impermissibly infringe on
tribal self-government. Politicizing and codifying those rights that are
usually viewed in economic terms will more clearly illustrate the
unnecessary federal intrusion. (While the NLRB asserted its jurisdiction in
spite of the San Manuel Tribe’s labor relations ordinance, it is unlikely
that the NLRB will have the last say on this matter.) There may be other
creative methods to strengthen the ties between self-government and
conditions of employment.
Evaluation: Only 10 percent of the private sector is unionized. Employers
historically subject to federal labor laws operate in a manner that often
makes unions a moot point. Federal jurisdiction or not, all employers,
including tribes, can benefit from some self-analysis: Are my employees
happy? What are their complaints? Do I provide a meaningful grievance
procedure? Do I provide competitive wages? Are work rules and policies
fair? Are my benefit packages competitive? Self-analysis will require the
tribe to scrutinize itself critically, which may be uncomfortable, but is
the sort of work that self-sufficiency and sovereignty often require.
Communication: Dispelling ignorance is a task with which tribes have a long
familiarity. Tribal governments have an exceptional story to tell their
employees. In addition to many tribes’ commitments to being the “employer
of choice” for a region, tribes also have a non-economic story as well.
Unlike corporations and other entities, tribes are diverse and unique with
a history, culture and character that most employers cannot begin to rival.
Sharing the mission and vision of the tribe makes it more likely that
employees will maintain their fidelity to a tribe’s sovereignty.
Employees entering Indian country to work for a tribe are essentially
another political and economic constituency. When nations are in conflict,
as the tribes and the U.S. are now in many instances, each side seeks the
support of relevant constituencies. Employees in Indian country will choose
the “better” nation for them, based on a variety of factors. Ultimately it
is not going to be the NLRB or the federal government that decide how labor
issues get resolved on reservations. It’s going to be in large part decided
by the tribes and their employees. By exercising their rights of
self-government and sharing their positive attributes and strengths, tribes
can oust federal jurisdiction by rendering it unnecessary.
Paul Stenzel is an attorney practicing Indian law with the firm of von
Briesen & Roper, s.c. in Milwaukee, Wis. He served for eight years as
in-house counsel at the Stockbridge-Munsee Community Indian Tribe in
Shawano County, Wis.