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                                                       Calendar No. 65
116th Congress     }                                     {      Report
                                 SENATE
 1st Session       }                                     {      116-30

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



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

                                _______
                                

                 April 9, 2019.--Ordered to be printed

                                _______
                                

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

                              R E P O R T

                         [To accompany S. 226]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Indian Affairs, to which was referred the 
bill (S. 226) 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 bill, S. 226 would amend and clarify the National Labor 
Relations Act (NLRA or the Act) to support governmental parity 
for tribal governments and respect tribal sovereignty so that 
Federally-recognized Indian tribes, tribal governments, and 
tribally-owned and operated institutions and enterprises 
located on Indian lands are exempt from the Act.

                          NEED FOR LEGISLATION

    The NLRA was enacted by Congress in 1935 to ensure fair 
labor practices by providing workers with the right to 
collectively bargain with employers. It explicitly exempts 
Federal and state governmental\1\ employers from the definition 
of covered ``employers.'' The law is silent, however, on the 
treatment of tribes, tribal governments, and tribally-owned and 
operated institutions and enterprises. This lack of clarity has 
led to an inconsistent application by the National Labor 
Relations Board's (NLRB or the Board) relative to Indian 
tribes, their institutions, and enterprises, and creates the 
potential for shifts in NLRB policy. This legislation is 
intended to clarify that tribal entities operating on Indian 
lands are exempt from the NLRA, and removes the jurisdiction of 
the NLRB over them.
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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, which recognizes the right of employees to engage in 
collective bargaining through representatives of their own 
choosing. However, certain employers are excluded from the 
requirements of the Act, such as the Federal and state 
governments, including wholly-owned government corporations, 
state lotteries and liquor stores. The NLRA is silent regarding 
Indian tribes, tribal governments, and tribally-owned and 
operated institutions and enterprises.
    The primary responsibility of the NLRB is to administer the 
Act by conducting elections, investigating charges of unfair 
labor practices, facilitating settlements, deciding cases, and 
enforcing orders. The NLRB is governed by a five-person board 
and a general counsel, all of whom are appointed by the 
President and confirmed by the Senate.

National Labor Relations Board decisions

    The NLRB has modified its interpretation of NLRA's 
applicability to tribes several times over the course of its 
history, leading to confusion and continued litigation. In 
1976, the NLRB concluded that tribal employers were 
``implicitly'' exempted from the NLRA as governmental entities, 
but it later decided the exemption did not extend to tribal 
employers located off tribal land.\2\ Then, in 2004, the Board 
concluded in San Manuel Band of Mission Indians that the NLRA 
applies to a tribal casino owned and operated by the San Manuel 
Band of Mission Indians located on its reservation.\3\ It also 
determined that future jurisdictional questions on the 
applicability of the NLRA would be decided on a case-by-case 
basis. In 2007, the U.S. Court of Appeals for the District of 
Columbia affirmed the Board's 2004 decision.\4\
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    \2\Compare Fort Apache Timber Co., 226 N.L.R.B 503 (1976), with Sac 
& Fox Indus., 307 N.L.R.B. 241 (1992).
    \3\San Manuel Indian Bingo & Casino, 341 N.L.R.B. 138 (2004).
    \4\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 10th Circuit remanded the NLRB's initial 
decision,\5\ the NLRB in Chickasaw Nation v. NLRB held that the 
Chickasaw Nation's treaty with the United States prevented it 
from asserting jurisdiction over the tribe's WinStar Casino 
located on tribal lands.\6\ It is unclear how the Chickasaw 
Nation decision will impact other tribal cases as the Board's 
decision was based on a treaty specific to the Chickasaw 
Nation.
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    \5\NLRB v. Noel Canning, 573 U.S. __, 134 S. Ct. 2250, 189 L. Ed. 
2d 538 (2014) (holding that the Board was invalidly appointed).
    \6\Chickasaw Nation, 362 NLRB 109 (2015).
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U.S. Court of Appeals

    The U.S. Courts of Appeals for the 6th and 10th Circuits 
have considered whether the NLRA applies to tribes and have 
ruled inconsistently. In NRLB v. Little River Band of Ottawa 
Indians,\7\ the 6th Circuit considered whether the NLRA applied 
to a tribally-owned casino resort within the Tribe's 
reservation boundaries. It held inter alia that Tribes fit 
within the NLRA's definition of ``employer'' and were thus 
subject to NLRB's jurisdiction. However, in NRLB v. Pueblo of 
San Juan,\8\ the 10th Circuit held that the NLRA did not 
abrogate the Pueblo's government ordinance prohibiting union 
agreements, concluding that the NLRA did not apply to the 
tribe's on-reservation casino. Given the differing 
interpretations of the NLRA by these Circuit Courts, and the 
inconsistent application of the law by the Board, legislation 
is needed to ensure clarity in the application of the NLRA to 
Indian tribes, tribal governments, and tribally-owned and 
operated institutions and enterprises that are located on 
Indian lands.
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    \7\NLRB v. Little River Band of Ottawa Indian Tribal Gov't, No. 14-
2239 (6th Cir. June 9, 2015).
    \8\NLRB v. Pueblo of San Juan, 280 F.3d 1278 (10th Cir. N.M. 2000).
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Tribal sovereignty

    The inequitable treatment of Indian tribes as exempt 
government employers is contrary to long established policy and 
precedent. 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\9\ have recognized and upheld that 
Indian tribes have the attributes of sovereignty.
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    \9\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).
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    Congress has specifically recognized in federal laws such 
as the Indian Self-Determination and Education Assistance Act 
of 1975 and the Native American Housing and Self-Determination 
Act of 1996, the exercise of tribal governmental authority in 
essential government functions such as the establishment of 
benefits for tribal personnel benefits, wages, and codification 
of labor laws.
    This bill is intended to strengthen tribal sovereignty and 
address instances where a tribe is 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 located either on or off tribal lands, 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\10\ 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.'' Kunesh 
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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    \10\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 24, 2019, Senator Jerry Moran introduced S. 226, 
along with Senators Gardner, Risch, Thune, Lankford, Daines, 
and Rounds. Senators Cramer, Crapo, and McSally were later 
added as cosponsors. The bill was referred to the Committee on 
Indian Affairs. On January 29, 2019, the Committee met at a 
duly called business meeting to consider the bill. By voice 
vote, the Committee then ordered the bill to be reported 
favorably to the Senate.
    115th Congress. On January 9, 2017, Senator Moran 
introduced S. 63, along with Senators Crapo, Daines, Flake, 
Gardner, Johnson, Lankford, McCain, Thune, Wicker, and Risch. 
The bill was referred to the Senate Committee on Indian 
Affairs. On February 8, 2017, the Committee met at a duly 
called business meeting to consider the bill. By voice vote, 
the Committee then ordered the bill to be reported favorably to 
the Senate. Senators Cantwell, Schatz, and Cortez Masto 
requested to be recorded as voting against S. 63. No further 
action was taken on this bill.
    A companion bill, H.R. 986, was introduced in the House of 
Representatives by Representative Rokita with nine original 
cosponsors. The bill would later add twenty-three cosponsors 
for a total of thirty-two cosponsors. The bill was referred to 
the Subcommittee on Health, Employment, Labor, and Pensions of 
the Committee on Education and the Workforce of the House of 
Representatives. The Subcommittee held a legislative hearing on 
March 29, 2017. On June 29, 2017, the Committee on Education 
and the Workforce of the House of Representatives favorably 
reported H.R. 986. An amendment, in the nature of a substitute, 
was offered by Representative Rokita, which made technical 
changes to clarify the definition of ``Indian lands.'' The 
amendment was adopted by voice vote and H.R. 986, as amended, 
was favorably reported to the House of Representatives by a 
vote of 22 to 16.
    Additional Actions. On January 12, 2017, Senators Flake and 
McCain introduced S. 140, a bill amending the White Mountain 
Apache Tribe (WMAT) Water Rights Quantification Act of 2010 to 
clarify the use of amounts in the WMAT Settlement Fund. The 
bill was referred to the Committee on Indian Affairs. On 
February 8, 2017, the Committee met at a duly called business 
meeting to consider the bill and ordered the bill, without 
amendment, to be reported favorably to the Senate.
    On May 8, 2017, the bill, S. 140, passed the Senate without 
amendment, by Unanimous Consent and was sent to the House of 
Representatives for consideration. The bill was referred to the 
Committee on Natural Resources of the House of Representatives. 
On November 2, 2017, the Subcommittee on Water, Power, and 
Oceans held a legislative hearing on the bill. On November 8, 
2017, the Committee on Natural Resources met to consider the 
bill and by Unanimous Consent, ordered the bill to be passed, 
without amendment.
    On January 9, 2018, the Committee on Rules of the House of 
Representatives met to consider the bill and ordered the bill 
to be adopted with an amendment in the nature of a substitute. 
That amendment included identical language of H.R. 986 which 
was the companion bill to S. 63. On January 10, 2018, the House 
of Representatives passed favorably, S. 140, as amended, by a 
vote of 239-173.
    On January 11, 2018, the Senate received the privileged 
bill from the House of Representatives, S. 140, as amended. On 
February 18, 2018, the Senate, in a vote on cloture on the 
motion to concur in the House amendment to S. 140 was not 
invoked by a vote of 55-41.
    114th Congress. Senator Moran introduced S. 248, along with 
Senators Crapo, Daines, Fischer, Hoeven, Inhofe, Lankford, and 
Thune. Senators Risch, Rounds, Gardner and McCain 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 at a duly called business meeting to consider the 
bill. By voice vote, the Committee then ordered the bill to be 
reported favorably to the Senate. No further action was taken 
on the bill.
    113th Congress. Senator Moran introduced, S. 1477, the 
Tribal Labor Sovereignty Act of 2013.\11\ 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 Noem, but no further 
action was taken.
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    \11\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\12\ to Senator Kennedy, then-Chairman of 
the Committee on Health, Education, Labor, and Pensions (HELP), 
requesting that the legislation under consideration\13\ include 
an amendment giving Indian tribes equal treatment that Federal 
and state governments receive under the NLRA. The letter stated 
that the Constitution of the United States ``acknowledges 
Indian tribes as governments under the Commerce Clause and the 
Supremacy Clause.'' Furthermore, Senator Inouye 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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    \12\Letter from Sen. Daniel Inouye, U.S. Senate, to Sen. Edward 
Kennedy, U.S. Senate (Jun. 1, 2009).
    \13\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 2019.''

Sec. 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

                                     U.S. Congress,
                               Congressional Budget Office,
                                  Washington, DC, February 8, 2019.
Hon. John Hoeven,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 226, the Tribal 
Labor Sovereignty Act of 2019.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Meredith 
Decker.
            Sincerely,
                                                Keith Hall,
                                                          Director.
    Enclosure.

S. 226--Tribal Labor Sovereignty Act of 2019

    Summary: S. 226 would add Indian 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 tribes, even if they are located on a 
tribal reservation. However, the NLRB does not assert the 
jurisdiction over tribal enterprises that carry out traditional 
tribal or governmental functions.
    CBO estimates that implementing S. 226 would not 
significantly affect the workload of the NLRB and thus would 
have no effect on the federal budget.
    S. 226 would impose a private-sector mandate as defined in 
the Unfunded Mandates Reform Act (UMRA) on employees of certain 
tribal enterprises. By excluding those 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. By eliminating that right 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 a total of 
about 20,000 to 30,000 claims each year from employees, unions, 
or employers alleging unfair labor practices. 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 2018, 
claims with the NLRB resulted in about 1,200 cases in which 
employees were reinstated and in awards of about $54 million in 
back pay and other costs. The mandate, however, applies only to 
a narrow group of employees of certain tribal enterprises, and 
historically, the NLRB has asserted jurisdiction over a small 
number of tribal enterprises. 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 ($164 million in 2019, 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. Limiting such an outcome 
for employees may have a broader impact than that measured by 
the value of forgone monetary awards and settlements for claims 
brought before the NLRB. However, that broader impact is not 
considered part of the direct cost of the mandate under UMRA.
    The CBO staff contacts for this estimate are Meredith 
Decker (for federal costs) and Andrew Laughlin (for private-
sector mandates). The estimate was reviewed by H. Samuel 
Papenfuss, Deputy Assistant Director for Budget Analysis.

                        EXECUTIVE COMMUNICATIONS

    The Committee has received no communication from the 
Executive Branch regarding S. 226.

               REGULATORY AND PAPERWORK IMPACT STATEMENT

    Paragraph 11(b) of rule XXVI of the Standing Rules of the 
Senate requires each report accompanying a bill to evaluate the 
regulatory and paperwork impact that would be incurred in 
carrying out the bill. The Committee believes that S. 226 will 
have minimal impact on regulatory or paperwork requirements.

                        CHANGES IN EXISTING LAW

    In compliance with the Standing Rules of the Senate and the 
Committee Rules, subsection 12 of rule XXVI of the Standing 
Rules of the Senate is waived. In the opinion of the Committee, 
it is necessary to dispense with subsection 12 of rule XXVI of 
the Standing Rules of the Senate in order to expedite the 
business of the Senate.

                                  [all]