A Congressional "fix" will be the preferred strategy for fighting the recent National Labor Relations Board ruling sweeping away tribal sovereignty as a limit on its jurisdiction.
As gaming tribes met privately here to plan their next step, a spokesman said they hoped to have a bill ready before the end of the current Congressional session. Deron Marquez, chairman of the San Manuel Band of Mission Indians in California, said the measure would seek to restore the limits observed by the NLRB for 30 years before its sweeping May decision asserting authority over Indian on-reservation enterprises.
He indicated the gaming tribes were following the path laid out by U.S. Rep. Patrick Kennedy, D.R.I., at the Democratic National Convention in Boston and would recognize NLRB authority over enterprises located off-reservation.
"Can't swallow the whole apple"
Kennedy warned that the NLRB ruling could become a "wedge issue" separating supporters of the Democratic Party. He told delegates at the Convention’s Native American Caucus that Republicans would support a broad reach for tribal sovereignty as a ploy for stirring up the controversy.
"There has to be some type of compromise," Marquez said. "And we also understand that we can’t swallow the whole apple."
U.S. Rep. J.D. Hayworth, R-Ariz., has already introduced two "NLRB-fix" bills, H.R. 4680 and H.R. 4906. They would amend the National Labor Relations Act to exclude Indian tribes and tribal enterprises from the definition of "employer." H.R. 4680 extended the fix to off-reservation enterprises, but the later version, H.R. 4906, limited the exemption to reservation boundaries. The second version has the support of the chairman of the Education and the Workforce Committee, U.S. Rep. John Boehner, R-Ohio, which makes quick action a distinct possibility.
Marquez spoke shortly after a strategy session at the National Indian Gaming Association mid-year meeting, held Aug. 16 - 17 at the Mohegan Sun Casino Resort. Although press was excluded, NIGA designated Marquez as its public voice because the ruling involved a labor dispute at the San Manuel Indian Bingo and Casino.
The ruling was a major topic at the NIGA meeting and at other tribal gatherings, Marquez said. He said part of the effort was to educate leaders about its dangers.
In the two to one vote, the NLRB board overturned 30 years of precedent that exempted tribal enterprises within reservation boundaries from federal labor jurisdiction. "The [National Labor Relation] Act does not explicitly exempt Indian tribes - wherever they operate," said the ruling.
Host of questions
The May 28 opinion addressed the preliminary question of jurisdiction and didn’t even reach the merits of the case, which was an organizing dispute between two unions. The Hotel Employees and Restaurant Employees union accused San Manuel of favoritism in giving the Communication Workers of America access to casino employees. The Hotel Employees union is aggressively trying to organize Indian casinos, after opposing the California Proposition 1A that made them possible.
The NLRB left open a host of questions, Marquez said. "We still don’t know what the ruling means," he said.
"In California we have Tribal Labor Relations Organizations," he said, and the ruling didn’t address the relation between the NLRB and the TLROs. It didn’t delineate between commercial enterprises and government functions, promising intrusive bouts of future litigation to draw the line. It disregarded the intent of the Indian Gaming Regulatory Act in devoting casino revenues to tribal services.
But Marquez ruled out an appeal through the NLRB and the federal courts. "The first problem is the time factor," he said. "The court procedure is extremely slow. Second, the tribes really don’t want to be in the court system."
He offered no guarantee of speedy legislative action, either. "Is it likely Congress could report a bill this year?" he asked. "I don’t know, but we’ll try."