Kevin J. Allis, Attorney at Law
For nearly 18 months there has been a concentrated effort to educate Indian Country on the nuances of the National Labor Relations Act. Like a bolt of lightening, Indian tribes have had to deal with a federal law that is as foreign to them as the first Europeans who set foot in Indian Country. However, now that lightening has struck, Indian tribes, in order to protect their sovereignty, must take affirmative measures to fully regulate the consensual relationships they have with their employees, whether those employees are tribal members or not. Such measures not only protect existing sovereignty, but strengthen tribal
sovereignty as well.
The San Manuel Indian Bingo & Casino ruling falls on the heels of past efforts to not only unionize tribal employers, but attack tribal sovereignty as well. One of the recommendations of the National Gambling Impact Study Commission was that if tribes don’t voluntarily unionize, Congress should enact laws requiring the application of federal labor laws. The commission suggested that Indian tribes should have less freedom than states to choose their labor relations laws because most tribal employees are non-members and thus cannot participate in tribal policy-making. Therefore, in today’s environment it is clear that Native nations must seriously consider how to regulate its employment relationships, which ultimately will serve as an exercise in preserving sovereignty.
There is little question that Indian tribes in today’s world can no longer reject the application of various federal laws and regulations by simply raising the “sovereignty” shield. The argument that “you can’t touch me because I’m a sovereign” no longer wins many legal battles. The sovereignty defense, in order to actually work, must be backed by proactive measures taken by tribal government. Indian tribes must “exercise” their sovereignty, by enacting laws and ordinances designed to actively regulate activities and relationships existing on tribal lands. The failure to do so will likely result in the “sovereignty” shield being pierced by a butter knife.
In a recent conversation with a Governor of a Pueblo tribe this topic was discussed. The Governor succinctly articulated that what much of Indian Country fails to understand is that the Indian Reorganization Act and the Self-Determination Act did not just acknowledge the government to government relationship between the federal government and tribal governments; it paved the road for tribes to take action necessary in defining and strengthening their sovereignty. He wisely recognized that the strength of tribal sovereignty is in the eyes of the beholder. Many tribes that have effectively and efficiently regulated their domain have experienced widespread acknowledgement from those outside Indian Country as being worthy sovereigns.
Indian tribes can hire all the overpriced and well-dressed lawyers from fancy law firms they want to fight their legal battles regarding the NLRA and the application of other federal laws, but unless tribal governments have developed and enacted the necessary laws and ordinances, they might as well take the elevator to the top of their casino and toss the money, earmarked for these high priced attorneys, off the side of the building.
Step I: Draft and Enact Tribal Law
A close reading of the federal court’s opinion in the San Manuel case reveals that there is a lack of confidence in the ability of Indian tribes to effectively regulate in this area. Therefore, it is imperative for Indian tribes to formulate well drafted tribal law that is consistently interpreted and fairly enforced by tribal courts. Tribal governments must make a concerted effort to enact labor relations and other employment laws, ordinances and/or codes designed to promote an amicable workplace environment. But in doing so, tribes must recognize that by creating a more detailed labor and employment code, both the reservation community and on-reservation community will have certain expectations.
When making the decision to develop tribal law, the tribe must seriously consider how it wishes the tribal court to develop a body of law for enforcement. In drafting such laws, the tribal government must carefully weave into the law’s language guidance that provides the court the necessary tools to develop a consistent and well thought out body of law. Tribal sovereignty is enhanced by the creation of a sophisticated and detailed body of law. However, if not done properly, sovereignty can be jeopardized. Tribes must painstakingly consider all concerns, whether such concerns regard tribal customs or traditions, or those of the workforce, when creating labor relations and other employment laws, ordinances, or codes. Failing to take this step will no doubt undermine an Indian tribe’s ability to free itself from the grips of federal law that threatens its sovereignty.
Step II: Supervisory Training
The second step that Indian tribes must take in order to reverse the courts’ direction regarding the application of the NLRA and other federal employment laws is to provide regular supervisory training. It is very important for supervisors and human resources directors to have a clear understanding of tribal law as it pertains to employment relationships.
However, the important aspect here is that this must be Step II that follows the enactment of tribal law. It cannot serve as a substitute for Step I. Therefore, Indian tribes that have implemented a supervisory training program on the NLRA or other employment laws, without first developing tribal law addressing such matters, are throwing money away.
Tribal supervisors should be trained on the application of tribal law, not federal law, if sovereignty is truly the prize. Law firms, and their attorneys, that have simply initiated training without making sure that the tribe has enacted the necessary law to regulate this environment, have missed the point and have done their client a serious disservice. Such thoughtless action ignores what is really important, that the tribe does not want to be subjected to federal law!
Whether such training addresses the NLRA, or any other employment related law or concept, it should be conducted on a regular basis. Not only do the laws and standards change, but the identity of management, and the workforce it supervises is also constantly changing.
In conclusion, those tribes that proceed properly with supervisory training that follows the enactment of tribal law are in a much better position to successfully regulate the employment environment under its own predetermined conditions. Tribes that sit on the sideline and watch the action face the distinct possibility of losing a chunk of sovereignty by having to comply with federal labor and employment laws. Once tribes take the initiative and create a sophisticated body of law in the area of labor and employment, tribal sovereignty may stand a fighting chance in the federal courts if later challenged by a union refusing to recognize an Indian tribe’s labor and employment laws.
Kevin J. Allis, an attorney with the Washington D.C. firm of PilieroMazza PLLC, is a tribal member of the Forest County Potawatomi Community. His areas of practice include management-side labor and employment law and Native American Indian law. He can be reached by calling (202)-857-1000
or email firstname.lastname@example.org.