[Marxism] NLRB -- No Friend Of Unions These Days -- Now Attacks Tribal Sovereignty

Hunter Gray hunterbadbear at earthlink.net
Tue Jun 29 09:09:41 MDT 2004

Note by Hunter Bear:

 While I yield to no one in my support of unions, this current campaign by
the NLRB which seeks to use unions as a thrust mechanism against always much
attacked [by Anglos] Native tribal sovereignty is not going to succeed.  It
will lead to much trouble on reservations, court battles galore for a time,
and much Native involvement with Congress.  And, in the end, I strongly
predict NLRB and any unions that use that hostile agency mechanism as a
sword and shield will be tossed out of Indian County.  In a word,
the Bush administration has found another divisive wedge to drive.

More than two years ago, I made a long post on these issues.

In that instance, the Federal courts had upheld tribal sovereignty.  Here,
as I've outlined it many times, is the current state of Native American

"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."


A Native American tribal nation is not analogous to a state or a county or
a municipality.  It's a distinct NATION, almost always with a formal treaty
with the United States -- a treaty no different in nature than a treaty
between the United States and, say, any country abroad.  Native treaties,
like all treaties involving the United States as a party, are encompassed
by Article 6, Section 2 of the United States Constitution and are considered
 to be part of the "supreme law of the land."

If any union allows itself to be used against Native Sovereignty, it can
kiss the Indians goodbye -- and forever.  It would be very good to see
unions seek to make themselves genuinely attractive to Native workers
and their families -- something only a few have bothered to do.

Hunter Bear

Analysis: NLRB surprise attack on tribes needs rebuff

Posted: June 28, 2004 - 11:58am EST
by: Jim Adams / Associate Editor / Indian Country Today

UNCASVILLE, CONN. - As a major shift in federal labor policy threatens
tribal sovereignty, Indian leaders will be debating the best place to
counter-attack - and it might not be the courts.

The National Congress of American Indians was convening at the Mohegan Sun
convention center just as this enterprise of the Mohegan Tribal Nation, and
all tribal businesses around the country, have become the target of a power
grab by the National Labor Relations Board (NLRB). In taking up a 1999 case
involving the San Manuel Indian Bingo and Casino, the federal agency in
charge of labor union matters broke precedent and asserted that it would
take jurisdiction over commercial enterprises "wholly owned and operated by
an Indian tribe on the tribe's reservation."

This sweeping intrusion into Indian country came out of the blue, even
though labor unions are campaigning strenuously to break into tribal
casinos. "It was a surprise on two fronts," Deron Marquez, chairman of the
San Manuel Band of Serrano Mission Indians, told Indian Country Today.

"We had no idea that they were even taking up this case. It's been laying
there for so many years. We didn't know that they were in the process of
handling it.

"And then to read the ruling, where they basically ignore years of precedent
to formulate a new precedent, it was somewhat shocking to read that."

Marquez said, "We definitely are going to appeal this in some form or

"Our team is still investigating all the proper avenues to take and then we'
ll be deciding which one makes the most sense to move this forward and to
reverse this horrible decision of the NLRB board."

Although Marquez declined to be more specific, one very likely strategy
would be not to take chances in the federal courts but to go straight to
Congress for a revision of the act governing the NLRB.

The 3 - 1 ruling by the NLRB board drew directly on the failure of the
National Labor Relations Act to mention Indian tribes. In previous
precedents that exempted reservation-based tribal businesses, the board had
invoked language that denied it jurisdiction over "states and their
political subdivisions." But it asserted control over some tribal businesses
that were located off-reservation.

In the San Manuel ruling, the Board abandoned this "locational" standard as
illogical. Citing Felix Cohen on tribal sovereignty, it correctly observed
that tribes were "not created by the states, or by departments, or
administrative arms of state governments." So without explicit exemption,
the board said that the "superior sovereignty" of the Federal government
gave it jurisdiction.

The decision admitted the real motive for this sudden shift, the economic
impact of Indian gaming. "As tribal businesses have grown and prospered," it
said, citing the Wall Street Journal, "they have become significant
employers of non-Indians and significant competitors with non-Indian owned

Connecticut Attorney General Richard Blumenthal spelled it out in a
celebratory statement. "This decision is historic," he said, "a legal
earthquake that shatters the virtually complete immunity from federal labor
law now enjoyed by Indian casinos.

"It could mean sweeping, profoundly significant safeguards for tens of
thousands of Connecticut residents who are casino enterprise employees,
ensuring that working men and women at Mohegan Sun and Foxwoods have the
same protection under the National Labor Relations Act as employees anywhere
else in the state."

Under Blumenthal, Connecticut was the only state to intervene in the case,
joining the Hotel Employees & Restaurant Employees International Union in
its grievance against San Manuel. The Hotel Employees union charged that the
San Manuel Band had given preference to another union, the Communications
Workers of America. San Manuel replied that the NLRB had no jurisdiction,
prompting the current decision.

On the face of the decision, the most effective response would be to ask
Congress to amend the National Labor Relations Act, giving tribal
governments the same status as states. Tribal lobbyists in Washington, D.C.
have pursued this strategy piece by piece in recent years, methodically
working through existing federal laws. The board decision noted that both
Houses of Congress had excluded tribes from the NLRA in 2000 in the original
version of the Indian Self-Determination Act, but that the House of
Representatives dropped the language in its final version.

Even if Congress did act, another issue would remain. What would be
considered a government function, exempt from labor law, and what would be a
proprietary business, where the Board might still try to intrude? This issue
already bedevils tribes in dealing with the Internal Revenue Service, which
will grant tax-exempt status to bonds issued for "traditional" government
purposes but not for some business enterprise. The National Indian Gaming
Association filed brief with the board arguing that tribal casinos served
government purposes because their revenues were earmarked for tribal
services. But the majority opinion gave the idea short shrift.

It did admit that tribal sovereignty protected some functions, but it
defined them very narrowly. "Intramural matters generally involve topics
such as 'tribal membership, inheritance rules and domestic relations,'" it
said. Jurisdiction over anything involving a broader economy, it said, would
be decided by the board case by case, guaranteeing its constant and
unpredictable intrusion in tribal affairs. "The process of litigation will
mark the contours in due time," it promised.

As tribes debate strategy, they face an unpleasant choice. Recourse to
Congress could lead to a head-on confrontation with the labor movement and a
high-profile struggle that could leave bruises for years. But court appeals
could be highly uncertain. Even though the board ruling cited a Supreme
Court case, Duro v. Reina, that was recently overturned, the gap in the
labor law leaves dangerous ground to travel. And left alone, the NLRB has
promised that it will be litigating every aspect of Indian country's new
economic power.

The only thing certain is that this sudden new challenge is serious and
needs to be met.

HUNTER GRAY  [HUNTER BEAR]   Micmac /St. Francis Abenaki/St. Regis Mohawk
Protected by Na´shdo´i´ba´i´
and Ohkwari'

In our Gray Hole, the ghosts often dance in the junipers and sage, on the
game trails, in the tributary canyons with the thick red maples, and on the
high windy ridges -- and they dance from within the very essence of our own
inner being. They do this especially when the bright night moon shines down
on the clean white snow that covers the valley and its surroundings.  Then
it is as bright as day -- but in an always soft and mysterious and
remembering way. [Hunter Bear]

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