Unions, Workers, Tribal Sovereignty

Hunter Gray hunterbadbear at earthlink.net
Sat Feb 16 16:56:40 MST 2002


"The 10-1 ruling said the pueblo's right-to-work measure was "clearly an
exercise of sovereign authority over economic transactions on the
reservation."  From the AP story of January 16, 2002.


Note by Hunterbear:

This is a very complex -- and sensitive -- situation.  I write as a Native
activist who consistently and vigorously supports labor unionism.  I
presently belong to three unions.

Very recently, the Tenth U.S. Circuit Court of Appeals handed down a ruling
which
upholds -- in the context of tribal sovereignty -- the right of a Native
nation [San Juan Pueblo of New Mexico] to enact and maintain a right-to-work
law.  This relates specifically to workers at a tribally-owned sawmill but
has, many of us feel, very wide ramifications in Indian Country generally --
and a key economic dimension  involved in all of this could well be workers
in tribally-owned casino operations.

This is a ruling -- in an obviously sad situation -- which virtually all
Native people will support as well as informed and issues-sensitive
non-Native people.The possible motives of the leadership of San Juan Pueblo
in this matter quite aside, this general support for the ruling has nothing
to do with unions.
It does involve the absolutely critical importance for Native Americans in
maintaining what tribal/national sovereignty remains.

Unions -- effective unions sensitive and committed to Native concerns -- are
increasingly critical in the Native American worker context:  both on and
off the reservations. The Tenth Circuit ruling and the collateral
implications pose a substantial challenge to unionism.

I strongly believe that unions can and must meet the challenge of effective
organization and vigorous representation of Native American workers.  I
believe that unions will -- but it's going to require much awareness and
sensitivity on their part with respect to Native people and societies and
cultures and concerns.  Among other things, unions are going to have learn a
great deal about Native Americans.  And the unions are going to have to hire
Native organizers -- and certainly Native staff from the respective tribal
setting involved.
And more.

First, a little quick background on the matter of Native tribal sovereignty.
Then, several excerpts from a long letter on the Natives and union situation
that I've
just written to a friend much involved on behalf of Native rights  Finally,
a newspaper article on the background and specific nature of the San Juan
Pueblo ruling.

TRIBAL SOVEREIGNTY:

 A Native  tribal nation, like all nations, has inherent
 sovereignty.  Full sovereignty is the full and ultimate control by  the
 tribal nation of its land, its people, and its affairs.  Much sovereignty
 has been lost -- however temporarily -- by the tribal nations in both the
 U.S. and Canada  but some functional sovereignty does remain.

 Native sovereignty has been badly eroded.  In the United States, the
current situation is referred to as "residual" or "limited sovereignty" -- a
tribal nation has control over some dimensions but not over others. The
fight is
always to preserve and to expand sovereignty.  Sovereignty, obviously, is
power -- and protection and security -- and critical to individual and
societal well-being.

A Federally recognized tribe today in the U.S. has these powers in the
context of "limited" or "residual" sovereignty:

1] Tribes can govern themselves administratively  and judicially -- under
the regulations of the Indian Reorganization Act   [1934] and subject to the
Major Crimes Act  [1885], Public Law 280 [1953] and the Indian Civil Rights
Act [1968.]

2]  Tribes can tax their members and tax outside business enterprises
functioning on the reservation.

3]  Tribes can handle domestic relations.

4]  Tribes can apportion tribal property [e.g., homesites.]

5]  Tribes can regulate inheritance.

6]  Tribes can determine tribal membership.

 Obviously this excludes much from "the full and ultimate control by  the
tribal nation of its land, its people, and its affairs."

As just an example, let's look at the criminal justice situation on a
Federal Indian reservation today:

A tribe CAN arrest and prosecute an Indian who commits misdemeanor crimes
within the boundaries of the reservation.

A tribe CANNOT arrest and prosecute anyone who commits felony crimes on its
reservation.  In the greatest majority of cases, this power is held by the
Federal government under the Major Crimes Act of 1885  -- although a
non-Indian to non-Indian felony on a reservation is turned over to state
officials.  In a small minority of cases, however, Public Law 280 [1953]
gives  all felony jurisdiction to the state.

[PL-280, BTW, was part of the infamous "Termination Package" of the
reactionary 1950s and beyond which included, in addition to 280, formal
efforts to terminate treaty rights -- and although this was kept at arm's
length by most tribes and eventually ended and reversed as policy, played
hell with the Menominee and Klamath and a number of other affected nations.
Termination efforts included, too, the urban relocation scheme which
maneuvered tens of thousands of Native people into the cities with  both
"the stick" and  "pie in the sky" promises and dumped them there sans
Federal Indian benefits.]

In 1978, the US Supreme Court issued the Oliphant decision which prevents
tribes from prosecuting non-Indian offenders on its reservation.
Immediately following this, I had the interesting experience of spending a
day discussing OIiphant and its implications at a  special
workshop for Navajo tribal police at Window Rock. [I handled the Criminal
Justice curriculum at Navajo Community College.] It was clear that massive
confusion was fast developing and that the only immediate solution was
cross-deputization of tribal police by state authorities. [The Navajo Nation
is bigger than the state of West Virginia and, in this case, Arizona, New
Mexico, Colorado, Utah are involved.]  Cross-deputization in Indian country
generally came to pass quickly, enabling a cross-deputized tribal police
officer to arrest a non-Indian on the reservation -- but the non-Indian
would have to be turned over to state or Federal officers. Further, only
rarely was a state cross-deputized tribal officer able to arrest someone on
state jurisdiction.

If this was not confusing enough, the U.S. Supreme Court in the 1990 Duro
decision sought to prevent  a tribe from arresting and prosecuting Indians
of other tribes on its reservation!  This fast-developing and completely
bizarre twist led Congress to forthwith pass special "blocking" legislation
which was made permanent in 1992.  Thus Duro has been effectively nullified.

This has led a great many of us to call for restoration of full Native civil
and criminal jurisdiction [ jurisdiction over everyone!] on the
reservations.

The completely tangled criminal justice jurisdictional situation on Federal
Indian reservations epitomizes the very complex mess in which most Native
people are caught up today.


EXCERPTS FROM HUNTERBEAR LETTER:


"Good to hear from you, Ed.  We certainly agree.  The
decision is both sad as hell -- but absolutely necessary to maintain tribal
sovereignty. . .

I heard of this San Juan Pueblo decision several weeks ago when it initially
came down.  I immediately felt the casino issue had to be in there
somewhere.  And I'm sure it is. Although it wasn't mentioned in the thing I
initially saw, the governor of the Pueblo mentions that specifically in this
attached article.

It's a small Pueblo and would be extremely cohesive.  We know people at
Laguna but no one at San Juan.  Unions haven't done too badly in Native
settings -- UMWA and the Navajo, for example -- but they've got to make [as
you certainly are aware] their approaches with sensitivity -- and usually
with Native organizers and very hopefully with some paid staff from the
tribal
setting involved.  These dimensions are not absolutely critical -- but
almost so.

It  also usually takes a good deal of time -- time [and money] that I
know for sure some unions aren't willing to spend. [Efforts to interest one
AFL-CIO union in doing something on a North Dakota reservation in the
context of a tribally-owned factory never got off the ground because in the
end the union wouldn't make the time and money and staff commitment.] When
they do get into things,  unions may simply rush matters too fast for many
Native settings.

But there have certainly been many situations where unions and Indians have
gotten along well.  This is generally true in off-res settings -- and the
heavier challenge is on-res stuff.  But Navajo coal miners on Navajo Nation
turf have frequently unionized -- although these are not tribally owned
operations [Peabody on lease, etc.]  As this San Juan situation indicates,
tribally owned industries are the toughest organizing challenge -- caught up
always in intricate politics.

 You are very right in indicating we need to do
much more with the unions on these and related issues.

Anyway, just some quick thoughts from me.  It's a disturbing situation --
and a genuine challenge to organized labor.

 Let's stay in  very close contact.

Best - Hunterbear  "

NEWSPAPER ACCOUNT OF TENTH CIRCUIT RULING AND BACKGROUND:

Wednesday, January 16, 2002 (AP)
10th Circuit upholds tribal right-to-work law
http://www.sfgate.com/cgi-bin/article.cgi?file=/news/archive/2002/01/16/stat
e122\
7EST7213.DTL


(01-16) 09:27 PST SAN JUAN PUEBLO, N.M. (AP) --
The governor of the San Juan Pueblo says a federal appeals court ruling
upholding the pueblo's authority to enact a right-to-work law is a victory
for Indian sovereignty.

The 10th U.S. Circuit Court of Appeals in Denver ruled Friday on a labor
dispute with a company operating on land leased from the pueblo north of
Espanola. The appeals court said the tribe can take steps to regulate pueblo
economy as long as those actions aren't banned by the federal government.

The case began in 1996 when a labor union demanded workers covered by the
union contract at the Rio Grande Forest Products sawmill on pueblo land be
required to pay union dues.

"The Tribal Council believes that it was unfair for a labor union to force
employees to choose between paying mandatory union dues or being fired from
their jobs," said Pueblo Gov. Wilfred Garcia. "The pueblo's right-to-work
law allows all employees on our lands to voluntarily choose to join or
financially support unions."

The National Labor Relations Board sued the pueblo in support of the union,
arguing that the federal National Labor Relations Act removed the pueblo's
authority to ban compulsory union dues. U.S. District Judge Martha Vazquez
of Santa Fe ruled in favor of the pueblo in 1998, and the NLRB appealed.

A three-judge 10th Circuit panel upheld Vazquez, but the full appeals court
later reheard the case because it concerned issues of national importance,
Garcia said. The NLRB sought the rehearing in December 2000. Federal law
generally holds that if an employer has an agreement with a union, workers
cannot be forced to join but still must pay union dues. The tribal law
banned such agreements.

The 10-1 ruling said the pueblo's right-to-work measure was "clearly an
exercise of sovereign authority over economic transactions on the
reservation."

"Now that the full 10th Circuit has spoken and recognized that the pueblo of
San Juan has a status equivalent to state governments when it comes to labor
unions, I believe that this decision will have nationwide significance for
Indian tribes as labor unions attempt to unionize Indian casinos," Garcia
said.

Stefan Gleason, vice president of the National Right to Work Foundation in
Washington, D.C., said the ruling would help foster businesses on tribal
land.

On the Net: 10th Circuit decision:
www.kscourts.org/ca10/cases/2002/01/99-2011.htm


----------------------------------------------------------------------
Copyright 2002 AP




Hunter Gray  [ Hunterbear ]
www.hunterbear.org  ( social justice )



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