Commentary: Senate has chance to right a wrong by the NLRB on tribal sovereignty

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Presidents, senators and representatives come and go. Political control shifts from one political party to the other and back again, sometimes with the disruptive force of a tidal wave.

Through all this change, like a ship pushing through the waves, federal Indian policy has navigated steadily (if slowly) in recent decades toward the goal of restoring in law a consistent, coherent respect for tribal sovereignty and self-governance — recovering the often-neglected legal recognition that Indian tribes are governments.

Since the first contact with European traders and settlers, Native American tribes have been recognized as governments with territorial sovereignty, enshrined in treaties. And the U.S. Constitution honors those treaties as the highest law of the land.

As tribal leaders, we have inherited this governmental identity and are obligated to protect it as sacrosanct. We will never cede our sovereignty, which is in essence the right to establish our own laws governing conduct on our own land.

Minnesota’s Democratic U.S. Sens. Amy Klobuchar and Tina Smith understand how vital tribal sovereignty is to tribal identity today. We have seen them faithfully support tribal sovereignty on issue after issue. We now hope for their support for a technical amendment pending in the U.S. Senate that would simply restore federal law and policy to the position of respect it held for the sovereignty of tribal governments from 1935 to 2004 in its interpretation of the National Labor Relations Act (NLRA).

At issue is a rogue and inconsistent decision, made in 2004 by the National Labor Relations Board (NLRB), without any congressional or judicial action, upending nearly seven decades of NLRB precedent — which had, as a matter of basic parity, treated tribal governmental employers the same as it treated every other governmental employer in America.

Instead, the board decided that the NLRB, not Native American tribes, controls labor relations with tribal governmental employees. This means the NLRB thinks it can dictate what collective bargaining procedures a tribal government employer must follow, allowing work stoppages and strikes in the tribal governmental workforce.

The NLRB’s arbitrary removal of tribes from the protections accorded every other governmental employer puts at risk the main source of revenue with which tribes fund vital tribal governmental services.

The NLRB even went so far as to define what is and is not a tribal government function. State and municipal governments across America own and operate banks, mines, feed mills, spas, massage parlors, lottery commissions, hotels, convention centers, liquor stores, golf courses and many other enterprises designed to raise revenue for their government coffers. They are exempted by the NLRB, even if their employees reside and vote in a different state or jurisdiction.

But if a tribal government dares to own and operate similar enterprises with employees who can’t vote in tribal elections, the NLRB decided in 2004, tribal government employers are not to be treated the same as all other governmental employers.

Indian tribes are all too used to inequality. The status of tribal governments and their sovereignty has been under attack for centuries and is especially vulnerable during the tidal changes of American politics. In the past, whenever non-Natives wanted something Indian tribes had, they used their laws and regulations to pry it from us.

However, tribes will never yield in our battle to defend tribal sovereignty. We have survived and in some cases thrived where our sovereignty has remained intact. No meaningful self-sufficiency is possible without our sovereignty.

The U.S. Senate will have an opportunity in the coming days to support a House-passed bill, S. 140, that is pending a vote on the Senate floor to restore tribal labor sovereignty. As an alternative, some House and Senate leaders are proposing to include the measure on the 2018 omnibus appropriations package that must be adopted before March 23. Either way, we need it enacted into law as soon as possible.

If this amendment does not pass the Senate, the NLRB bureaucrats will continue to dictate what Indian tribes do on our own lands and for our own employees, running roughshod over our sovereignty in a manner they would never dare to do to state and local governments. At the end of the day, all we are asking is that the Senate follow the Constitution and federal law, respecting and honoring our status as sovereign governments.

This statement was submitted by: Cathy Chavers, chairwoman, Bois Forte Band of Chippewa; Kevin DuPuis, chairman, Fond du Lac Band of Lake Superior Chippewa; Norman W. Deschampe, chairman, Grand Portage Band of Lake Superior Chippewa; Faron Jackson Sr., chairman, Leech Lake band of Ojibwe; Brian Pendleton, president, Lower Sioux Indian Community; Shelley Buck, president, Prairie Island Indian Community; Darrell G. Seki, Sr., chairman, Red Lake Nation; Charles R. Vig, chairman, Shakopee Mdewakanton Sioux Community.

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