[House Hearing, 115 Congress] [From the U.S. Government Publishing Office] H.R. 986, TRIBAL LABOR SOVEREIGNTY ACT OF 2017 ======================================================================= HEARING BEFORE THE SUBCOMMITTEE ON HEALTH, EMPLOYMENT, LABOR, AND PENSIONS COMMITTEE ON EDUCATION AND THE WORKFORCE U.S. House of Representatives ONE HUNDRED FIFTEENTH CONGRESS FIRST SESSION __________ HEARING HELD IN WASHINGTON, DC, MARCH 29, 2017 __________ Serial No. 115-12 __________ Printed for the use of the Committee on Education and the Workforce [GRAPHIC NOT AVAILABLE IN TIFF FORMAT] Available via the World Wide Web: www.gpo.gov/fdsys/browse/ committee.action?chamber=house&committee=education or Committee address: http://edworkforce.house.gov __________ U.S. GOVERNMENT PUBLISHING OFFICE 24-757 PDF WASHINGTON : 2018 ----------------------------------------------------------------------------------- For sale by the Superintendent of Documents, U.S. Government Publishing Office, http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center, U.S. Government Publishing Office. Phone 202-512-1800, or 866-512-1800 (toll-free). E-mail, [email protected]. COMMITTEE ON EDUCATION AND THE WORKFORCE VIRGINIA FOXX, North Carolina, Chairwoman Joe Wilson, South Carolina Robert C. ``Bobby'' Scott, Duncan Hunter, California Virginia David P. Roe, Tennessee Ranking Member Glenn ``GT'' Thompson, Pennsylvania Susan A. Davis, California Tim Walberg, Michigan Raul M. Grijalva, Arizona Brett Guthrie, Kentucky Joe Courtney, Connecticut Todd Rokita, Indiana Marcia L. Fudge, Ohio Lou Barletta, Pennsylvania Jared Polis, Colorado Luke Messer, Indiana Gregorio Kilili Camacho Sablan, Bradley Byrne, Alabama Northern Mariana Islands David Brat, Virginia Frederica S. Wilson, Florida Glenn Grothman, Wisconsin Suzanne Bonamici, Oregon Steve Russell, Oklahoma Mark Takano, California Elise Stefanik, New York Alma S. Adams, North Carolina Rick W. Allen, Georgia Mark DeSaulnier, California Jason Lewis, Minnesota Donald Norcross, New Jersey Francis Rooney, Florida Lisa Blunt Rochester, Delaware Paul Mitchell, Michigan Raja Krishnamoorthi, Illinois Tom Garrett, Jr., Virginia Carol Shea-Porter, New Hampshire Lloyd K. Smucker, Pennsylvania Adriano Espaillat, New York A. Drew Ferguson, IV, Georgia Brandon Renz, Staff Director Denise Forte, Minority Staff Director ------ SUBCOMMITTEE ON HEALTH, EMPLOYMENT, LABOR, AND PENSIONS TIM WALBERG, Michigan, Chairman Joe Wilson, South Carolina Gregorio Kilili Camacho Sablan, David P. Roe, Tennessee Northern Mariana Islands Todd Rokita, Indiana Ranking Member Lou Barletta, Pennsylvania Frederica S. Wilson, Florida Rick W. Allen, Georgia Donald Norcross, New Jersey Jason Lewis, Minnesota Lisa Blunt Rochester, Delaware Francis Rooney, Florida Carol Shea-Porter, New Hampshire Paul Mitchell, Michigan Adriano Espaillat, New York Lloyd K. Smucker, Pennsylvania Joe Courtney, Connecticut A. Drew Ferguson, IV, Georgia Marcia L. Fudge, Ohio Suzanne Bonamici, Oregon C O N T E N T S ---------- Page Hearing held on March 29, 2017................................... 1 Statement of Members: Sablan, Hon. Gregorio Kilili Camacho, Ranking Member, Subcommittee on Health, Employment, Labor and Pensions..... 6 Prepared statement of.................................... 7 Walberg, Hon. Tim, Chairman, Subcommittee on Health, Employment, Labor and Pensions............................. 1 Prepared statement of.................................... 3 Statement of Witnesses: Brown, Mr. Nathaniel, Delegate, 23rd Navajo Nation Council, The Navajo Nation.......................................... 19 Prepared statement of.................................... 21 Cladoosby, Mr. Brian, President, National Congress Of American Indians, and Chair, Swinomish Indian Tribal Community.................................................. 8 Prepared statement of.................................... 11 Gribbon, Mr. John, California Political, Director, UNITEHERE! International Union, AFL-CIO............................... 25 Prepared statement of.................................... 27 Welch, Mr. Robert J. Jr., Chairman, Viejas Band of Kumeyaay Indians.................................................... 31 Prepared statement of.................................... 33 Additional Submissions: Mr. Cladoosby: Letter dated April 12, 2017, from National Congress of American Indians....................................... 61 Courtney, Hon. Joe, a Representative in Congress from the State of Connecticut: Letter from UAW Local 2121............................... 65 Mr. Gribbon response to questions submitted for the record................................................. 95 Lewis, Hon. Jason, a Representative in Congress from the State of Minnesota: Letter dated March 29, 2017, from the Chamber of Commerce of the United States of America........................ 68 Mr. Sablan: Letter dated March 27, 2017, from United Steelworkers (USW).................................................. 70 Letter from International Labor Office (ILO)............. 72 Letter dated March 28, 2017, from International Union of Operating Engineers.................................... 75 2010 Blackfeet Tribal Employment Rights Ordinance and Safety Enforcement Act of 2010......................... 76 Questions submitted for the record.......................92, 94 Scott, Hon. Robert C. ``Bobby'', a Representative in Congress from the State of Virginia: Prepared statement of.................................... 78 Chairman: Walberg: Slide: Protecting Tribal Sovereignty..................... 5 Prepared statement from the Morongo Band of Mission Indians................................................ 82 Prepared statement of Hon. Larry Romanelli, Ogema, Little River Band of Ottawa Indians........................... 85 H.R. 986, TRIBAL LABOR SOVEREIGNTY ACT OF 2017 ---------- Wednesday, March 29, 2017 House of Representatives Committee on Education and the Workforce, Subcommittee on Health, Employment, Labor, and Pensions Washington, D.C. ---------- The subcommittee met, pursuant to call, at 10:00 a.m., in Room 2175, Rayburn House Office Building, Hon. Tim Walberg [chairman of the subcommittee] presiding. Present: Representatives Walberg, Roe, Rokita, Allen, Lewis, Mitchell, Smucker, Ferguson, Sablan, Wilson of Florida, Norcross, Blunt Rochester, Shea-Porter, Espaillat, and Courtney. Also Present: Representatives Foxx and Scott. Staff Present: Bethany Aronhalt, Press Secretary; Andrew Banducci, Workforce Policy Counsel; Ed Gilroy, Director of Workforce Policy; Jessica Goodman, Legislative Assistant; Callie Harman, Legislative Assistant; Nancy Locke, Chief Clerk; Geoffrey MacLeay, Professional Staff Member; John Martin, Professional Staff Member; Dominique McKay, Deputy Press Secretary; James Mullen, Director of Information Technology; Krisann Pearce, General Counsel; Alissa Strawcutter, Deputy Clerk; Joseph Wheeler, Professional Staff Member; Tylease Alli, Minority Clerk/Intern and Fellow Coordinator; Austin Barbera, Minority Press Assistant; Michael DeMale, Minority Labor Detailee; Denise Forte, Minority Staff Director; Nicole Fries, Minority Labor Policy Associate; Christine Godinez, Minority Staff Assistant; Stephanie Lalle, Minority Press Assistant; Kevin McDermott, Minority Senior Labor Policy Advisor; Richard Miller, Minority Senior Labor Policy Advisor; Veronique Pluviose, Minority General Counsel; and Elizabeth Watson, Minority Director of Labor Policy. Chairman Walberg. A quorum being present, the Subcommittee on Health, Employment, Labor, and Pensions will come to order. Good morning to everyone here today, the committee as well as our witnesses, and those attending to hear what is going on. We thank you. I would like to begin by extending a warm welcome to our distinguished panel of witnesses, including leaders of tribal governments. We are fortunate to have you all with us today, and look forward to hearing from you. This hearing is about one basic principle: the sovereign rights of Native Americans must be protected. A simple statement, it is a simple principle. There are complex things surrounding it, but we hope to sort some of those out today. This core principle is woven deep into the fabric of our shared history. It is part of who we are as a society, and has long defined the unique government-to-government relationship that exists between the United States and independent tribal nations. What does tribal sovereignty mean? It means that Native American tribes have a fundamental right to self-govern. They have a right to self-determination. They have the freedom to advance their own economic policies in the pursuit of prosperity for tribal members. Bipartisan support for tribal sovereignty has been reaffirmed time and time again in Congress, and for more than 180 years, the Supreme Court has held that tribes possess a nationhood status and retain inherent powers of self- government. Unfortunately, the National Labor Relations Board has taken a number of alarming steps in the past decade that have created widespread concern in the Native American community and threatened Tribal sovereignty as we know it. For nearly 70 years, the Board respected Native American sovereignty, and did not apply its jurisdiction under the National Labor Relations Act over tribes. The reason was simple. While the NLRA provides important protections for workers, it is a private sector labor law that specifically excludes state, local, and federal governmental employees. Congress recognized the differences between public and private sector employment, so it afforded every level of government the freedom to determine its own labor policies, but that all changed in 2004 with its San Manuel Bingo & Casino decision, where the Board suddenly reversed course. It abandoned long-standing precedent and began using an arbitrary test to determine when and where to exert its jurisdiction over Native American tribes. The Board's move understandably sparked outrage within the Native American community. In fact, the Chairman of the Mashantucket Pequot Nation testified before this very committee saying the Board's decision was, and I quote, ``an affront to Indian Country.'' He added, and I quote again, ``It suggests that Indian Tribes are incapable of developing laws and institutions that protect the rights of employees.'' We also heard from the Lieutenant Governor of the Chickasaw Nation, one of the largest tribes in the country. He testified that tribal sovereignty is, I quote, ``a profound issue of national importance that cannot be left in the hands of an admittedly inexpert Federal agency.'' I could not agree more. The NLRB has no expertise in Indian law, and has no business meddling in the affairs of Tribal Nations, but the aggressive approach we have seen from unelected bureaucrats at the NLRB has only grown worse. A series of inconsistent and misguided decisions have created significant legal confusion for Native Americans and tribal-owned businesses. In order to prevent future NLRB overreach, Congress must pass the Tribal Labor Sovereignty Act. The legislation would amend the National Labor Relations Act to clarify that the law does not apply to businesses owned and operated by Native American tribes and located on tribal land. This will ensure that tribes receive the same treatment as States and local governments when it comes to policies impacting their workforce. I want to thank our colleague, Todd Rokita, for championing this legislation, and I would like to point out that this legislation is not about union workers versus non-union workers. What this legislation is about is very simple, it is about the fundamental principle that tribal governments are sovereign and are free to self-govern. Congress now has the opportunity to reaffirm this principle and follow through on our promise to the Native American community. I hope we can have a thoughtful discussion today on how we can further our commitment to protecting tribal sovereignty. I will now yield to my friend, Ranking Member Sablan, for his opening remarks. [The statement of Mr. Walberg follows:] Prepared Statement of Hon. Tim Walberg, Chairman, Subcommittee on Health, Employment, Labor and Pensions This hearing is about one basic principle: The sovereign rights of Native Americans must be protected. This core principle is woven deep into the fabric of our shared history. It is part of who we are as a society and has long defined the unique government-to-government relationship that exists between the United States and independent, tribal nations. What does tribal sovereignty mean? It means that Native American tribes have a fundamental right to self-govern. They have a right to self-determination. And they have the freedom to advance their own economic policies in the pursuit of prosperity for tribal members. Bipartisan support for tribal sovereignty has been reaffirmed time and time again by Congress. And for more than 180 years, the Supreme Court has held that tribes possess a nationhood status and retain inherent powers of self-government. Unfortunately, the National Labor Relations Board has taken a number of alarming steps in the past decade that have created widespread concern in the Native American community and threatened tribal sovereignty as we know it. For nearly 70 years, the board respected Native American sovereignty and did not apply its jurisdiction under the National Labor Relations Act over tribes. The reason was simple. While the NLRA provides important protections for workers, it is a private sector labor law that specifically excludes state, local, and federal government employers.+ Congress recognized the differences between public and private sector employment, so it afforded every level of government the freedom to determine its own labor policies. But that all changed in 2004. With its San Manuel Bingo & Casino decision, the board suddenly reversed course. It abandoned long-standing precedent and began using an arbitrary test to determine when and where to exert its jurisdiction over Native American tribes. The board's move understandably sparked outrage within the Native American community. In fact, the Chairman of the Mashantucket Pequot Nation testified before this very committee, saying the board's decision was ``an affront to Indian Country.'' He added that it ``suggests that Indian tribes are incapable of developing laws and institutions that protect the rights of employees.'' We also heard from the Lieutenant Governor for the Chickasaw Nation--one of the largest tribes in the country. He testified that tribal sovereignty is a ``profound issue of national importance that cannot be left in the hands of an admittedly inexpert federal agency.'' I couldn't agree more. The NLRB has no expertise in Indian law and has no business meddling in the affairs of tribal nations. But the aggressive approach we've seen from unelected bureaucrats at the NLRB has only grown worse. A series of inconsistent and misguided decisions have created significant legal confusion for Native Americans and tribal-owned businesses. In order to prevent future NLRB overreach, Congress must pass the Tribal Labor Sovereignty Act. The legislation would amend the National Labor Relations Act to clarify that the law does not apply to businesses owned and operated by Native American tribes and located on tribal land. This will ensure that tribes receive the same treatment as states and local governments when it comes to policies impacting their workforce. I want to thank our colleague Todd Rokita for championing this legislation. And I'd like to point out that this legislation is not about union workers versus non-union workers. What this legislation is about is very simple. It is about the fundamental principle that tribal governments are sovereign and are free to self-govern. Congress now has an opportunity to reaffirm this principle and follow through on our promise to the Native American community. ______ [GRAPHIC NOT AVAILABLE IN TIFF FORMAT] Mr. Sablan. Thank you very much, Mr. Chairman, for holding today's hearing on H.R. 986, the Tribal Labor Sovereignty Act, and I would also like to wish a good morning and a welcome to all of our witnesses today. The effect of this legislation would be to strip employees who work at businesses owned and operated by an Indian tribe and located on Indian lands of the protections afforded by the National Labor Relations Act. This bill deals with a dispute between the sovereign rights of Native American tribes and the rights of workers to organize and bargain collectively. However, this bill does not reconcile these competing interests, but rather strips hundreds of thousands of workers of their rights. I am a Chamorro, one of the indigenous people of the Marianas, and fully appreciate the importance of tribal sovereignty for Native Americans. I also believe deeply in workers' rights to organize, to collectively bargain, and to protect their right to fight for a safe workplace, fair pay to provide a living for themselves and their families, and good benefits. To be fair, legislation and Labor Board decisions must balance these competing principles, and not favor one at the expense of the other. That is precisely what happened in the San Manuel Indian Bingo & Casino decision, where a Bush-era Labor Board by a bipartisan 3-1 vote asserted jurisdiction over a tribal casino on tribal lands. Using a template widely accepted by the federal courts, the Board stated it would exercise jurisdiction over commercial tribal enterprises, unless doing so would ``touch exclusive rights of self-government in purely intramural matters'' or ``abrogate rights guaranteed by treaty.'' In the San Manuel decision, the Board noted a distinction between commercial tribal enterprises that employ a substantial number of non-Indians and cater to a non-Indian clientele versus traditional tribal services or governmental functions. At least 75 percent of employees at tribal casinos are non- tribal members, and in some cases, as few as one percent of the employees are members of the tribe operating the casino. They have no say in the decision making of tribal governments. There has been criticism of the San Manuel decision. However, the NLRB applied the same criteria as has been applied to other laws of general applicability, such as the Occupational Safety and Health Act (OSHA), the Fair Labor Standards Act, and many criminal statutes. For that reason, it is not surprising that multiple appeals courts have upheld San Manuel. Last year, the Supreme Court declined two petitions to overturn San Manuel. Federal labor law and tribal sovereignty can comfortably co-exist at tribal casinos without stripping workers of their rights under the National Labor Relations Act. As will be explained by a witness, some unions have consented to being governed by Tribal Labor Relations Ordinances, because these tribes adopted a mutually agreeable labor ordinance that protects workers' rights to join a union, and establishes a neutral dispute resolution panel. The important point being, however, is that if these tribal ordinances were amended in the future, these workers would still be protected by the NLRA. Tribal labor ordinances can be a workable option only if (1) they provide protections substantially equivalent to those afforded by the National Labor Relations Act, and (2) the NLRA exists as a backstop. I want to thank the witnesses for taking the time to prepare their testimony and traveling to be here with us today. I also want to recognize one of the tribal casino workers, Mary Elizabeth Carter, who works at the Cache Creek Casino in Yolo County, California, and is a member of UNITEHERE!. I yield back my time, Mr. Chairman. [The statement of Mr. Sablan follows:] Prepared Statement of Hon. Gregorio Kilili Camacho Sablan, Ranking Member, Subcommittee on Health, Employment, Labor and Pensions Thank you Mr. Chairman for holding a legislative hearing on H.R. 986, the Tribal Sovereignty Act. The effect of this legislation would be to strip employees, who work at businesses owned and operated by an Indian tribe and located on Indian lands, of the protections afforded by the National Labor Relations Act. This bill deals with a dispute between the sovereign rights of the Native American tribes and the rights of workers to organize and bargain collectively. However, this bill does not reconcile these competing interests, but rather strips hundreds of thousands of workers of their rights I am a Chamorro, one of the native people of the Northern Marianas, and fully appreciate the importance of tribal sovereignty for Native Americans. But I also believe deeply in workers' right to organize, to collectively bargain, and to protect their right to fight for a safe workplace, fair pay to provide a living for themselves and their families and good benefits. To be fair, legislation and labor board decisions must balance these competing principles, and not favor one at the expense of the other. That is precisely what happened in the San Manuel Indian Bingo and Casino decision, where a Bush-era Labor Board (by a bipartisan 3-1 vote) asserted jurisdiction over a tribal casino on tribal lands. Using a template widely accepted by the federal courts, the Board stated it would exercise jurisdiction over commercial tribal enterprises, unless doing so would ``touch exclusive rights of self-government in purely intramural matters'' or ``abrogate rights guaranteed by treaty.'' In the San Manuel decision the Board noted a distinction between commercial tribal enterprises that employ a substantial number of non- Indians and cater to a non-Indian clientele versus traditional tribal services or governmental functions. At least 75% of employees at tribal casinos are not tribal members, and in some cases, as few as 1 percent of the employees are members of the tribe operating the casino. They have no say in the decision-making of tribal governments. There has been criticism of the San Manuel decision. However, the NLRB applied the same criteria as has been applied to other ``laws of general applicability'', such the Occupational Safety and Health Act, the Fair Labor Standards Act and many criminal statutes. For that reason, it is not surprising that multiple Appeals Courts have upheld San Manuel. Last year, the Supreme Court declined two petitions to overturn San Manuel. Federal labor law and tribal sovereignty can comfortably co-exist at tribal casinos, without stripping workers of their rights under the NLRA. As will be explained by a witness, some unions have consented to being governed by Tribal Labor Relations Ordinances because these tribes adopted a mutually agreeable labor ordinance that protects workers' right to join a union and establishes a neutral dispute resolution panel. The important point, however, is that if these tribal ordinances were amended in the future, the workers would still be protected by the NLRA. Tribal labor ordinances can be a workable option only if (1) they provide protections substantially equivalent to those afforded by the NLRA and (2) the NLRA exists as a backstop. I want to thank the witnesses for taking the time to prepare their testimony and traveling to be here with us today. I also want to recognize one of the tribal casino workers, Mary Elizabeth Carter, who works at the Cache Creek Casino in Yolo County California, and is a member of UNITE HERE. I yield back my time. ______ Chairman Walberg. I thank the gentleman. Pursuant to Committee Rule 7(c), all members will be permitted to submit written statements to be included in the permanent hearing record, and without objection, the hearing record will remain open for 14 days to allow such statements and other extraneous materials referenced during the hearing to be submitted for the official hearing record. It is now my pleasure to introduce our distinguished panel of witnesses, beginning with the Honorable Brian Cladoosby, who is president of the National Congress of American Indians, and chairman of the Swinomish Indian Senate. Welcome. The Honorable Nat Brown, who is delegate to the Navajo Nation Council. Welcome. Mr. John Gribbon is the California Political Director of the UNITEHERE! International Union. Welcome, Mr. Gribbon. The Honorable Robert J. Welch is chairman of the Viejas Board of Kumeyaay Indians. We welcome you as well. I will now ask our witnesses to stand and raise your right hand, if you would. [Witnesses sworn.] Chairman Walberg. Thank you. You may be seated. Let the record reflect the witnesses answered all in the affirmative. Before I recognize you to provide your testimony, let me briefly explain the lighting system, and make that very brief. It is like the stop lights that we generally honor. I am only speaking for myself there. When it is green, keep going. You have five minutes during that green segment. When it turns yellow, that means a minute is left, so go faster, and do not push it to orange. When it turns red, complete your sentence, your basic thought. We appreciate that. There will be plenty of opportunity to expand on that as we ask questions. Now, I would like to recognize our first witness, Chairman Cladoosby. TESTIMONY OF BRIAN CLADOOSBY, PRESIDENT, NATIONAL CONGRESS OF AMERICAN INDIANS, AND CHAIR, SWINOMISH INDIAN TRIBAL COMMUNITY Mr. Cladoosby. Good morning, Chairman Walberg, Ranking Member Sablan. It is an honor to be here with you and your distinguished members of the subcommittee to talk about a very important subject that is near and dear to the hearts of many tribes, all tribes across the nation, and we are here to voice our strong support of H.R. 986, the Tribal Labor Sovereignty Act of 2017. The Tribal Labor Sovereignty Act is a simple fix that adds ``Tribes'' to the definition of ``governmental entities exempt from the National Labor Relations Act of 1935.'' In doing so, the legislation reinforces a critical part of Congress' efforts to support governmental parity for tribal governments and respect for sovereignty of tribal governments. I want to start by saying that Indian Country does not view this as a fight between tribal governments and labor. In many tribal communities across the country, tribal governments and unions work hand in hand to improve the working conditions of Indian and non-Indian workers. We greatly appreciate the significant contributions that unions have made, not only in Indian Country, but across the United States. Where tribal sovereignty is undermined or threatened in any way, we have no choice but to take a strong stand. This is what has happened in the National Labor Relations Board application of the NLRA to tribes. When the NLRA was enacted in 1935 to address growing upheavals in private industry, Congress exempted all government employers and all government owned and operated businesses from the act and the reach of the NLRB. The act does not specifically exempt the District of Columbia, U.S. Territories, and tribal governments, but the Board consistently interpreted the government exemption to include tribes and these other governments. Until 2004, for 70 years, the Board reversed a long- standing interpretation that declared that Congress intended the act to apply to tribal governments. With that decision, the Board upended 70 years of precedent, and unilaterally disregarded tribal labor law and made tribal governments the only governments in the United States subject to the NLRA. With the Tribal Labor Sovereignty Act, Congress resolves any question about whether the NLRA applies to tribal governments and affirms sovereign governmental rights of Indian tribes to make their own labor policies that govern their own governmental employees. Sovereignty means that these decisions must be left to the tribes, not federal bureaucrats, just as 90,000 other units of governments across the United States make these decisions for their employees. I've discussed what the Tribal Labor Sovereignty Act does, now let me take a moment to describe what it does not do. The legislation will not expand tribal jurisdiction outside that allowed to other sovereigns. It will not create union free zones on Indian lands. The bill only applies to employers who are first, tribal governments, and second, who operate on their own lands. For private sector employers located on Indian lands, the legislation would have no effect or application. The legislation would simply restore the intent of Congress that tribal governments should not be treated as private sector employers under the NLRA. Applying a private sector model to force collective bargaining over all conditions of employment under the threat of protected strikes is a formula for destabilizing any government. Giving an outside party the power to call a strike of a government's workforce is counter to the very concept of sovereignty, and requires that a governmental employer choose between surrendering its sovereign right to enact laws or being shut down by work stoppages. This is particularly problematic for tribal governments who lack an effective tax base and are required to engage in economic activity to raise revenue and fund local programs and services. As a result, for many tribal governments, tribal agriculture, energy, gaming operations, timber operations, and other tribal enterprises constitute the sole source of governmental revenues used to fund essential governmental services. Unlike private businesses, no government can safely shut down its enterprise operations because of labor disputes. Tribal police and fire departments, our schools and hospitals, our courts and our tribal legislatures must stay open to provide governmental services to our citizens. Thus, passage of the Tribal Labor Sovereignty Act is consistent with Congress' initial intent to exempt governmental employers from the National Labor Relations Act. In conclusion, I want to reiterate that Indian tribes support strong relationships with their employees. The Tribal Labor Sovereignty Act builds upon the principle that when Tribal sovereignty is respected and acknowledged, successful, accountable, and responsible governments and economies follow. Thank you for your commitment to maintaining the integrity and effectiveness of tribal governments, and for guarding against actions that would deny to those governments the same rights accorded to other state and local governments. Thank you very much, Mr. Chairman and ranking member. [The statement of Mr. Cladoosby follows:] [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] Chairman Walberg. I thank the gentleman. Now, I recognize Delegate Brown for his testimony. TESTIMONY OF NATHANIEL BROWN, DELEGATE, 23RD NAVAJO NATION COUNCIL, THE NAVAJO NATION Mr. Brown. Yaateeh, Chairman Walberg, Ranking Member Sablan, and members of the Committee. My name is Nathaniel Brown, 23rd Navajo Nation Council. I am sitting here on behalf of Navajo Nation president, Russell Begay. He apologizes for not being able to testify, but he had other obligations that he could not get out of. However, thank you for this opportunity to present testimony on H.R. 986, the Tribal Labor Sovereignty Act of 2017. Let me start off by stating that we support this legislation as well as the companion bill in the Senate, S. 63. The bill is a step in the right direction towards honoring our sovereignty and self-determination. We are a sovereign nation. We have been here since time immemorial. We have signed treaties with Spain, Mexico, and the United States in 1868. We continue to honor the Treaty of 1868, which is approaching its 150th anniversary. We also have the inherent right to self-determination and self-governance. In exercising these principles, the Navajo people have created and developed our own government made up of executive, legislative, and judicial branches. Our executive and legislative leaders are elected by the Navajo people. Our judicial branches are appointed by the president of the Navajo Nation and confirmed by the legislative branch, similar to the federal government. We also develop, pass, and execute our own laws. When we pass laws, we expect these laws shall govern that our laws are not superseded or pushed aside by the laws of another governmental entity, including the federal government. We are not asking for special treatment. We want the same treatment as the federal government and states. If they are able to self-govern and be self-determined with regard to the NLRA, so should we. The NLRA was passed in 1935, and at that particular time, Indian tribes may not have been considered in many pieces of legislation. It was probably not even contemplated that the NLRA might have jurisdiction over Indian Tribes until 1976, in the Fort Apache Timber Company matter. It has been a long time coming, more than 80 years, and we have the opportunity to resolve this issue. We also need clarity and certainty. In 1976, the NLRB took one position, holding that tribal governments and tribal enterprises were exempt from the NLRA. However, in 2004, the NLRB reversed their position in San Manuel Indian Bingo & Casino, and held that the Board has jurisdiction over tribally-owned enterprises. A different Board took a different view of the law and what facts should apply. Boards have also been consistent in its approaches in applying NLRA to Indian tribes. H.R. 986 can provide a level of certainty so that the NLRB can have a consistent view even if Board members change from time to time. Furthermore, a troubling trend that we see in NLRB decisions is that when Indian tribes and their enterprises are not doing what is considered traditional tribal or governmental functions, they will be regulated. If we become more involved in commercial activity, we will be regulated. We need to get away from this type of thinking in the federal government. In today's world, Indian tribes have to get involved in a commercial world in order to help fund a continuous shortage of federal funding to provide needed services on the reservation. An Indian tribe's use of tribal enterprise in a commercial arena to help fund needed services should not be used to hamper or punish the Indian tribe. The Navajo Nation does have unions that operate on the reservations. The Navajo tribal government has entered into three collaborative bargaining agreements under our Division of Public Safety, our Executive Branch, and Head Start Department. From my understanding, there are some private sector/labor union agreements in place for employees on the Navajo Nation. A worker's right to join a union is protected pursuant to our Navajo Preference and Employment Act. We understand some tribes may have laws that are different than ours, but our ultimate message is that each Indian tribe should be able to determine its own direction on labor issues, as well as other issues. In conclusion, thank you for holding this hearing. Again, we support this legislation because it supports our sovereignty and self-determination. It will also greatly simplify and provide clarity to this issue. We appreciate the leadership of this subcommittee, and look forward to working with the chairman and ranking member to pass this important legislation. Ahehee. [The statement of Mr. Brown follows:] [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] Chairman Walberg. Thank you, Delegate Brown. Mr. Gribbon, welcome, and you have five minutes of testimony. TESTIMONY OF JOHN GRIBBON, CALIFORNIA POLITICAL DIRECTOR, UNITEHERE! INTERNATIONAL UNION, AFL-CIO Mr. Gribbon. Good morning, Mr. Chairman, and members. Thank you for inviting me to testify today. My name is Jack Gribbon. I serve as the political director for UNITEHERE! in California. Our union represents hotel and casino workers in the United States and Canada, about 275,000, including 7,000 workers in tribal casinos in California. Accompanying me here today is Mary Elizabeth Carter, a member of UNITEHERE!, who is employed at the Cache Creek Casino and Resort owned by the Yocha Dehe Band of Wintun Indians in California. It is my hope to cover four points during my oral testimony. The first would be the importance of the National Labor Relations Act and the fundamental rights to free speech and free association. Second would be why tribal employers versus state and local government employers are not analogous. Third, Tribal Labor Relations Ordinances and their inadequacy absent the National Labor Relations Board, and then finally, the real life positive outcomes for workers and their families as the result of free expression and freedom of association. The importance of the NLRA jurisdiction: it is important to understand that the tribal gaming industry has become a $28 billion per year industry nationally. In California, it's an $8 billion industry. The Las Vegas strip by example is a $6 billion a year industry. Title VII of the Civil Rights Act of 1964 has been held not to apply to Indian tribes. The only way employees of tribal enterprises subject to harassment and other forms of discrimination may speak out about them with any degree of safety is through the NLRA. It is important to note that the decision of the NLRB under San Manuel was a measured decision. It would not interfere with tribal rights of self-governance in purely intramural matters. It would not abrogate rights guaranteed by treaty, and it would not be contrary to the congressional intent. Some argue that employees of tribal enterprises should be treated like employees of state and local governments. However, the National Indian Gaming Association has stated 75 percent of workers at tribal casinos are not members of the owner tribe, 75 percent of the workers nationally. In California, it's much, much higher than that because we have tribes who have very small enrolled memberships, so it's upwards of 85 to 90 percent of the workers are not members of the tribe. They cannot petition the government of the tribe. They cannot elect chairpersons or tribal members of the tribal Council. They do not have any influence over that. Contrary to that, local and state employees do. They have the right and they take advantage of that right, and they have protected their free speech rights and they have bargained over their wages and their benefits and other issues of employment with their employers, because they have the right to be involved politically with their government. The 85 to 90 percent of the workers at tribal casinos in California do not have the right to do that in Indian Country, nor should they, because they are not enrolled members of the tribes. The other issue that we should talk about here is the inadequacy of the Tribal Labor Relations Ordinances. There are many Tribal Labor Relations Ordinances (TLRO) in compacts in California. There are six different ones, at least. I think there are more than six different ones, but at least six. There are examples of TLROs that are not neutral, nor do they implement free speech or free association rights, and in particular, the Tribal Labor Relations Ordinance implemented by the Saginaw Chippewa Tribe in Michigan prohibited employees from forming or joining a union. It was also a firing offense for any employee to solicit for any purpose in any place. Finally, my last point here is a real-life issue. Because of the rights that the NLRA provides for tribal casinos in California, and because of the work of our union and the organizing of the workers at those casinos, workers like Mary Elizabeth Carter, who is with me today, who has been working at Cache Creek since 2013, has been able to support her family, help her husband get through electrician's school, keep her four children with health care, and put herself through school. That is because of the work that we have done, and that is what the real story is here in my view. [The statement of Mr. Gribbon follows:] [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] Chairman Walberg. Thank you, Mr. Gribbon. I recognize Chairman Welch for your five minutes of testimony. TESTIMONY OF ROBERT J. WELCH, JR., CHAIRMAN, VIEJAS BAND OF KUMEYAAY INDIANS Mr. Welsh. Good morning. My name is Robert Welch, Jr., I am chairman for the Viejas Band of Kumeyaay Indians. Thank you for allowing me to testify today regarding H.R. 986 and its importance to our tribal members, employees, and tribal sovereignty. The Viejas Band owns and operates Viejas Casino & Resort, which is the source of 99 percent of the government revenue used to fund initial services and programs, including education, health, housing, and public safety. The Viejas Casino & Resort provides over 1,600 jobs to our wonderful employees and annually contributes millions of dollars to the local economy. Tribal gaming has made self- determination and economic self-sufficiency a reality for Viejas. H.R. 986 is about respecting the sovereignty of tribes and affirming that they possess the same power as federal, state, and local governments to regulate labor relations on sovereign lands. H.R. 986 would reverse the NLRB's overreach under its 2004 San Manuel decision, when it ignored 30 years of precedent to rule that the NLRA applies to Tribes. Opponents of H.R. 986 characterize the measure as anti- union and argue that the NLRA is essential to protect the rights of employees. That is not true, and the history of labor relations of Viejas shows why. Viejas would not be as successful without the good people who work for us, many of whom have been employees for over a decade. In August 1998, long before anyone believed the NLRA applied to tribes, Viejas entered into a voluntary election agreement in January 1999. CWA was elected as the bargaining representative for approximately 30 percent of the Viejas Casino & Resort workforce. Soon thereafter, a collective bargaining agreement was ratified. Every stage of the process, from organizing to contract ratification, reflected an intelligent sovereign decision by Viejas to capably regulate labor relations on its reservation. None of the procedures were compelled or forced upon Viejas. In September 1999, Viejas formally codified its labor relations law in the form of a Tribal Labor Relations Ordinance, TLRO, and has amended it since then with additional protections for employees and labor organizations. The TLRO is similar to the NLRA in that it includes access to elections, and unfair labor practice and dispute resolution provisions. It necessarily differs, however, in matters that are unique to Tribal gaming, including recognition of Indian hiring preference, the exclusion of certain employee classifications from organization, the ability to require a labor organization to secure a gaming license, and the resolution of labor disputes through binding arbitration. Substantially similar TLROs have been adopted by over 70 tribes in California and unions have spoken in support of the TLROs before the California legislature. TLROs have worked for over 17 years. Unfortunately, Viejas' sovereignty, TLRO, and employment practices are currently under attack by the NLRB. The old adage ``no good deed goes unpunished'' best describes the NLRB's current enforcement action, which involves Viejas' payment of bonuses to represented employees in December 2015, bonuses that Viejas had no obligation to pay at all. In early 2015, Viejas and the UFCW negotiated a collective bargaining agreement, and Viejas offered to include annual bonuses in the agreement, but UFCW rejected the offer, insisting instead upon larger annual wage increases. Ultimately, the ratified agreement contained wage increases but no bonuses. 2015 was a more successful year for Viejas Casino & Resort than expected. Viejas was able to pay bonuses to its unrepresented employees as budgeted, but also wanted to reward its represented employees for a year's success. Viejas decided to treat both groups of employees fairly. Since represented employees had already received their larger negotiated pay increases earlier in the year, paying them a gratuitous bonus meant Viejas needed to pay unrepresented employees an additional bonus amount in order to equalize overall annual compensation. Viejas' reward for the discretionary bonus was a NLRB enforcement action, which Viejas has been defending for the past 14 months at considerable expense. This case is now before the Board following an ALJ ruling that Viejas violated the NLRA. If the NLRB affirms the ruling, Viejas will be forced to seek review before the Ninth Circuit and potentially the U.S. Supreme Court. The passage of H.R. 986 would immediately halt NLRB intrusion into tribal labor relations, and would save money for the U.S. taxpayers and tribes from ongoing and future litigation. In conclusion, H.R. 986 is about protecting tribal sovereignty. Tribes have proven they can best develop laws to protect the rights of employees and also facilitate tribal government gaming operations and government services. They run just like federal, state, and local governments. The tribe should not be treated as second class citizens-- second class governments, excuse me. I do believe freedom of speech is covered under the First Amendment. Viejas respectfully requests that Congress enact H.R. 986. Thank you for listening to my testimony today, and I stand ready to answer any questions you may have. [The statement of Mr. Welch follows:] [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] Chairman Walberg. Thank you, Chairman. I thank each of the witnesses for doing pretty well in keeping to the time frame. That is not always the case here. Now, I have the privilege to recognize the chairwoman of the Full Education and the Workforce Committee, Dr. Foxx. Mrs. Foxx. Thank you, Mr. Chairman. I want to thank our witnesses today, and I also want to thank Mr. Rokita for introducing this bill and for the bipartisan support that he has obtained for it. Delegate Brown, at its core, this bill is about protecting the sovereign rights of Indian Nations. It is about protecting Native Americans from special interests who are less concerned about the sovereign rights of tribal members and more concerned with expanding union membership and filling union coffers. Some of those special interests claim that the workers affected are generally not tribal members. At Navajo enterprises, are most of the workers Navajo? Also, in your experience, are most unions run and staffed by members of the Navajo Nation? Mr. Brown. Thank you, Chairwoman Foxx, for the question. The unions, the Navajo Nation enterprises, the Navajo Nation Tribe, the majority of our employees are Navajo. For the sovereignty and for the union, our employees are protected with unions, and we also have ``for cause'' requirements for disciplinary actions. This is how our employees are protected. In meeting with some of the unions last week, they appreciate the function and the protection of the unions within the Navajo Nation. Thank you. Mrs. Foxx. Thank you very much. Chairman Welch, I am also concerned about the same way the organizations opposing this bill are misrepresenting how these commercial enterprises operate, as well as have the revenue they generate or utilize. Chairman Welch, it is my understanding that tribes use the revenues from their businesses to support core services provided by the tribal governments, such as public safety and infrastructure. How are revenues from your government owned businesses used by the Viejas? Mr. Welsh. We use the money we receive to fund our government programs, such as health, education, and fire departments, whatever we need to do on the reservation. Also, we are very generous on donating money to the surrounding communities, especially the Town of Alpine, the schools that our children go to. It's very important for us as Indian people to give back. There was a time when we were very, very poor, and we have a history of giving. So, when we were blessed with money, we made sure the surrounding community was taken care of, which is very interesting, because in Alpine--my mother was born in 1940. She went to public schools in Alpine. They had, as in the South, processed drinking water for Indians and white people, and that didn't deter us when we made money. We decided that the Town of Alpine was our partner, and we have funded a lot of their Kiwanis Clubs, et cetera. Mrs. Foxx. Thank you, Mr. Chairman. I yield back. Chairman Walberg. I thank the gentlelady, and now I recognize the ranking member, Mr. Sablan. Mr. Sablan. Thank you very much, Mr. Chairman. I serve on another committee that also has oversight over Native Americans, Native Alaskans, Native Hawaiians, and the Territories. In this committee, we recently had a hearing on the state of Indian schools, BIE schools. I agree that you need all the money you can to upgrade the education and health services provided to your people. I do not disagree with that. Let me ask, Mr. Gribbon, if I may, if H.R. 986 was enacted, are there any provisions that would prevent tribes from weakening or eliminating their existing labor laws? Mr. Gribbon. No. However, there's a couple of different issues here. One is that the existing collective bargaining agreements are not throughout all of tribal casinos in California, or across the country, nor are they in place in a variety of other industries, like mining, in some places. Without the NLRA, the National Labor Relations Act, which would be exempted by this bill, H.R. 986, without that, there's not the incentive to work out these Tribal Labor Relations Ordinances, in my view, and in my experience. Then again, some of these Tribal Labor Relations Ordinances have led to collective bargaining agreements that increased wages and benefits for workers, that have worked well in partnership with tribes that we work with. Some of them are not adequate, like the one I mentioned from the Saginaw Chippewa Tribe. Some of them, like the majority of them in California, are extremely weak, ones that were negotiated in 1999 by the Gray Davis Administration, then- Governor Gray Davis, not one worker has organized under those TLROs. So, without it, without the NLRA, there isn't a continued ability to be able to improve TLROs, and moreover, every time there's a new governor, you know, it depends on who he or she is, what kind of position they're going to take with respect to that part of the compact. Mr. Sablan. So, without the National Labor Relations Act, there is really no backstop of protection for workers is what you are saying? Mr. Gribbon. It's an absolute foundation. Mr. Sablan. Let me ask the witnesses, if I could just get a yes or no answer, I would appreciate it, the witnesses who are here to support the bill, are you saying that for the sovereignty of Indian Country, the National Labor Relations Act should not apply because of the sovereignty? Is that across the board or just for your tribes? For your individual tribes? Yes, across the board or just for your Tribe? Mr. Cladoosby. Yes. Mr. Sablan. Yes to which one, just your tribe, or do you speak for all Native Americans? Mr. Cladoosby. The National Congress of American Indians advocates for 567 Tribal Nations, and we have three conferences a year, and at those conferences, we have an opportunity to pass resolutions. One of the resolutions that was passed unanimously, and we are a consensus organization, was to support this legislation, so that's where our marching orders come from. Mr. Sablan. Because you as a tribe are sovereign? Mr. Cladoosby. Yes. Mr. Sablan. So, why is it there are tribes with casinos who go to great length and extent to deny tribes without casinos a license? Are they not also sovereign tribes that you represent today? Mr. Cladoosby. Denied a license? Mr. Sablan. Denied a casino license. They come to Congress and lobby. Are they not as sovereign as each one of you here? Mr. Cladoosby. Yes. Mr. Sablan. Then why do you lobby Congress to deny them a casino license? Why can they not get the same thing you have? Mr. Cladoosby. I'm not sure what you're referring to, Congressman. Mr. Welsh. May I try? Mr. Sablan. Yes, please. I do not have much time, but please. Mr. Welsh. It all depends on the situation. In California, if they're trying to do off reservation gaming, then I can see why other tribes would try to stop them from getting licensure, because that's not what's in the compact or what the state voted for, what California voted for. As for H.R. 986, I cannot speak for any other tribe in the United States other than my own, if I was able to, I would say yes, but it is a yes for my tribe. Mr. Sablan. Thank you. I appreciate that. Thank you. Chairman Walberg. I thank the gentleman. The gentleman's time has expired. I now recognize myself for five minutes of questioning. Chairman Cladoosby, your testimony mentions that the National Congress of American Indians is the oldest, largest, most represented tribal government organization in the Nation. Suffice it to say the NCAI represents a wide variety of tribal governments, and on a wide range of issues. On the question of tribal sovereignty and assertion of jurisdiction by the National Labor Relations Board over tribal commercial operations, let me ask you, is there a consensus among your members, even beyond what you just alluded to in the previous answer? Mr. Cladoosby. Yes, definitely so. You know, in a nutshell, we didn't ask for this relationship with Congress, we inherited it. Every one of you Congressmen sitting up there-- Chairman Walberg. Some of us have inherited it, too. Mr. Cladoosby. Yes. We both inherited this relationship, and you are our trustee. We've always been recognized, even in the Constitution, as sovereigns, and that's all we want to be recognized as. I can't imagine if the NLRB took any of the other 90,000 governments and told them they no longer are protected by this, they have to abide by different rules, what kind of rush to this hearing you would have. We just want to be treated as sovereigns, as other governments. We've heard it loud and clear from our membership at NCAI, and we're an organization that advocates for tribes, and they give us our marching orders through resolutions, to come here to let you know that we wholeheartedly support H.R. 986. Chairman Walberg. These are long-standing hard fought battles over the decades and decades as well that we are dealing with here in the issue of sovereignty. I appreciate that. Delegate Brown, I understand the Navajo Nation hosts private sector businesses like defense contractors and mining operations on your lands that employ a good number of Navajo citizens. Could you tell us about these in a little bit of detail? Mr. Brown. Thank you, Chairman Walberg, for your question. With some of the private sector, including Peabody, SRP and such, they currently have unions where they are protected, and they enjoy this protection. It creates a voice for them within the Navajo Nation. Chairman Walberg. So, you are not creating union free zones in these cases? Mr. Brown. No. Chairman Walberg. Those are private entities that have the good opportunity to work, to the benefit of both, Navajo Nation as well as their own interests, and unions are afforded that opportunity? Mr. Brown. Yes. Chairman Walberg. I just wanted to get that point, this bill does not create union free zones, neither do your efforts and involvements with these private sector contractors, et cetera. Thank you. Chairman Welch, you spoke about costly litigation under the NLRA. Can you expand on how tribal enterprises which provide funds for tribal government services are threatened by long, drawn out litigation under the NLRA, and also, how this differs from your previous Tribal Labor Relations Ordinances? Mr. Welsh. Because we have to go through the NLRB process, which is kind of expensive for us, and we have done all our research on NLRA and NLRB for the judgments. It seems like they always favor the unions. So, if that happens, we have the right to appeal, and for the appeal, we have to go up the ladder, which will cost us significant dollars that could be spent on our tribe and for whatever we need to provide a better lifestyle for our members, and also could affect the team members who work for us. Chairman Walberg. Thank you. Now, I recognize the gentleman from New Jersey, Mr. Norcross. Mr. Norcross. Thank you, Chairman, appreciate the time, and certainly bringing this issue to light. I find it fascinating going through the different laws that we passed over the years that do apply. I would like to start my questioning with the Honorable Brian Cladoosby. This issue you find offensive to the sovereign nation, and I can understand what you are saying. The Fair Labor Standards Act, OSHA, they apply to you. Do you feel that is also an attack on your sovereignty? Mr. Cladoosby. Thank you, Congressman. Thank you for the question. Yes, as sovereign nations, there are still certain things that we have to abide by when it comes to federal law, not state law, but when it comes to holding us to a different standard, you have governments in your districts, and if those governments were treated differently by the NLRA, you would hear it loud-- Mr. Norcross. I understand. Why is this more offensive to you than let's say ERISA, that protects pensions and retirements? Why is this more offensive? Mr. Cladoosby. Treated differently. We are a government. I think all the members up here would recognize that we are sovereigns, we are nations, we are governments. Mr. Norcross. I understand that. Why is this different than all the others that apply to you, and why are you not trying to change those also? Mr. Cladoosby. We would love to. We would love to be treated as true sovereigns, to be self-sustaining, to be under the arm of a paternalistic form of government that was placed upon us over the last 200 years, but unfortunately, you know, that is not going to happen. Mr. Norcross. I understand. We have both inherited this. Mr. Cladoosby. Yes. Mr. Norcross. Decisions made by people who came before us puts us into a position. When the NLRA was first passed, I do not think we had the issue before you of having tens of thousands of employees working for casinos. It is a very different world now. So, Mr. Gribbon, let me ask you, why is this different? Is this the traditional conversation we have, employer versus employee? Is that why this is different? Mr. Gribbon. Well, it seems that way to me, but one of the issues that I think is important to understand here, the Kaiser Family Foundation has put out a report, separate and apart from anything that my union has proposed, and contrary--I shouldn't go there. The bottom line is the average difference per year for a casino worker in California, depending upon whether they are union or not union, is about $8,000 a year. Now, these are very, very successful casinos, and very successful casinos in California, an $8 billion a year industry, but workers standing up for supporting their families with health care and with decent wages, it does have a cost, it does have a financial cost. It's one they deserve to be able to struggle for. Mr. Norcross. So, what I am hearing is it is a cost issue for the employee, and I heard great things about what the profits go for, certainly things that we all care about. Delegate Brown, I appreciate you had card checks for many of the unions that operated it on you. Why is this different for you than it is for all the other casinos? Is it because the percentage of employees are actual tribal members? Mr. Brown. Thank you, Mr. Norcross, for your question. With Navajo, yes, the majority of the employees are Navajo. Mr. Norcross. They get card check recognition. You have a higher percentage, you gave them card check; you have a very low percentage, and you tend to fight it. Help me rectify that in my mind, why that would be two different ways. Mr. Brown. Could you repeat the question? Mr. Norcross. You have card check where you recognize the rights of the employees to have a voice. In California, what I am hearing is where there is a very low percentage of members who work there, the tribe tends to fight this much more vigorously. Why is that? Is it because it is the percentage of tribal members that work at the casino that drives that decision? Mr. Brown. Yes. Again, the number of employees with the Navajo Nation, basically our laws protect the workers under the Navajo Nation Equal Employment Act. I don't know about other tribes. Mr. Norcross. I see my time is running out. I yield back. Thank you. Chairman Walberg. I thank the gentleman. I now recognize the immediate past chairman of this subcommittee, the gentleman from Tennessee, Dr. Roe. Mr. Roe. Thank you, Mr. Chairman. Since 1832, the Supreme Court has held that Native American tribes retain inherent powers of self-government. I just looked up ``sovereignty.'' It says ``The authority of a State to govern itself.'' What these tribes are looking for is parity, the same as any other state and local government. That is all they are asking for. It is not complicated. It was mentioned about how many billion dollars in the industry, thank goodness that the Indian tribes have lived in poverty for so many years and now have some resources to help the people they represent. I know exactly what that is like. They represent their people and their tribe and their government just like I represent the people in my government. So, thank you for what you do, and I think this is an assault on liberty when you try to have a big federal government tell a tribal government what to do. I am going to start by just asking a couple of questions. First, Chairman Cladoosby, many federal labor laws specifically exclude Indian tribes from the definition of ``employer.'' Is there any mention of Indian tribes in NLRA, and if the act is solid, what theory has the NLRA applied to jurisdiction over tribes? Mr. Cladoosby. That is a real good question, Mr. Roe, because for 70 years, we were exempted, and then in 2004--once again, thank you for recognizing the impact that Tribes are now having on the local economy. In some places, we're the largest employers in our counties. We just want to be recognized as a government like the other governments. The gentleman asked about OSHA, the difference is a federal third party, a union, being forced on the tribes is really a big issue that I wanted to address with that gentleman also. Thank you for that question. Mr. Roe. Delegate Brown, could you further elaborate on the size and scope of the Navajo government? Do you have courts, legislative branch, other government functions that a private employer would not have? What role do tribal enterprises play in maintaining these operations? Mr. Brown. Thank you for your question, sir. Within Navajo Nation, we have over 300,000 members, this is on and off the Navajo Nation. Again, we are a mirror to the federal government. We do have a legislative, judicial, and executive branch. Within judicial, we do have a court system. We have our Labor Relations Office, and we also have the Navajo Nation labor relations laws that protect our people. Mr. Roe. We should respect that. How do Navajo employee wages and benefits compare to local averages where you live and govern? Mr. Brown. Within Navajo Nation, we still have a high unemployment rate. However, some of the wages are comparable, and we do have a good medical package, and I think that's where we try to make up for some of the low wages in some areas, but they're pretty comparable otherwise. Mr. Roe. As a leader of one of the largest tribal governments, what does sovereignty mean to you and your people? Mr. Brown. Sovereignty is to govern ourselves as we have our ways of life, and we understand that today, the way any government would function is with money. Slowly, we would like to be completely sovereign, to have our say, to have our stance, and we would like to be respected the way the United States federal government is. Mr. Roe. I was a mayor before I came here, mayor of my local city, 65,000 people. I think you just want to be treated the same way and operate the same way I was when I was mayor of Johnson City, Tennessee. I think that is what I am hearing and what I read in this bill, in Mr. Rokita's bill, which I wholeheartedly support. One last question to Mr. Cladoosby, if you can. You spoke about the possibility of unions interfering in tribal politics and elections. A single union could end up representing a large portion of tribal voters. How would unions under NLRA jurisdiction have an even greater ability to interfere with Tribal elections than unions under Tribal labor laws? Mr. Cladoosby. Once again, I want to make it very clear that we're not anti-union. The unions, they fulfill a very, very important role in the United States, and they have since its creation. We just want to make sure that as sovereigns, we're able to treat our employees the best that we can, enact the laws that we need to protect our employees, and I believe every Tribal government does that. We have witnessed outside interference in our homelands since the non-Indian came into this beautiful country, the greatest country in the world. We've been dealing with that ever since. So, we view this as just one more attempt by the federal government to allow a third party to come into a sovereign, something that you don't allow for your city, your former city, any of your cities, where you guys come from. You have a system set up, a government set up, and we just want to be treated like that government. Mr. Roe. Thank you, Mr. Chairman. Thank you for being here, and I yield back. Chairman Walberg. I thank the gentleman. I recognize the gentlelady from Florida, Ms. Wilson. Ms. Wilson of Florida. Thank you, Chairman Walberg and Ranking Member Sablan, and our Ranking Member Scott. I want to thank our witnesses for sharing your perspectives with us. It is important for us to hear from you so that we will know how to best move forward in our endeavors. I would like to thank all of my colleagues here today, and I strongly support the sovereignty of the Native American Nations. I believe we need to promote their rights to self- governance, as well as their independence. However, I also strongly believe in the rights of workers to organize, and to be able to work in a safe environment. This includes Native American workers and non-Native Americans that work in tribal enterprises. Congress should not favor one at the expense of the other. That said, Mr. Chairman, I cannot support this bill in its present form before us today, since it would severely harm workers' rights by stripping hundreds of thousands of workers employed at Indian owned tribal enterprises of their voice in the workplace, and deny protections for them under the National Labor Relations Act. I want to direct my question to Mr. Jack Gribbon, political director for UNITEHERE! Why do you oppose H.R. 986, and explain to us why it is important not to eliminate NLRA as a backstop even where you have a Tribal Labor Relations Ordinance? Mr. Gribbon. Congresswoman, thank you very much for the question. It's important because the NRLA is the foundation and the only foundation on federal lands for the ability for a worker to have the right of free speech and free association. It has also created the incentive for workers and tribes to come together and work out additional avenues of reaching an agreement that prevent the ability for striking, that prevents some of the concerns that some of the tribes here have described today. The bottom line is in the San Manuel decision, the NLRB noted a really big distinction here within that decision, between commercial tribal enterprises, like a casino, like a mine, like a construction company, and enterprises that employ a substantial number of non-tribal members, and cater to non- Indian clientele versus traditional tribal services or governmental functions. Most importantly, the National Labor Relations Board is clear that it has no jurisdiction over internal tribal governmental matters, but only over the protection of free speech and the protected, concerted activity of employees in commercial tribal enterprises. Ms. Wilson of Florida. A witness on the panel testified that the application of the National Labor Relations Act would undermine federal and tribal policies requiring Indian preference in employment. Do unions have the right to restrict whom employers hire under NLRA, or was that outlawed under the Taft-Hartley Act? Mr. Gribbon. It is outlawed. But let me just tell you practically speaking, my union, we don't have an impact on the employer pre-hiring. We don't actually have protections for workers for the first 90 days that they are employed in covered employment under a collective bargaining agreement at a casino. After that 90th day, we have the ability to protect and grieve, whatever, should there be a reason to do that. Having said all that, there are tribes in California, particularly Graton Rancheria, where they are absolutely crystal clear that they have a Native American preference for hiring, and we salute that, we support that. They have been actually very successful at doing that. Chairman Walberg. I thank the gentlelady. I now recognize the sponsor of this legislation, the gentleman from Indiana, Mr. Rokita. Mr. Rokita. I thank the chair for holding this hearing. I thank the past chair for holding the hearing last Congress. I thank the chairman of the full committee for doing this. This is a stand-alone bill, it is not supposed to be a controversial issue. It got out of the House in a very strong way with bipartisan support last Congress, and I expect even more bipartisan support this time. The fact of the matter remains, Chairman, it is a very busy time. We are talking in terms of reconciliation and mega bills, this and that, and the other thing, a tax reform, health care. This bill is none of that. This bill is simple on its face, and while the word talked about most here is ``sovereignty,'' and I think that is a very important concept, I think an even more important word that came up in this hearing is ``parity.'' Mr. Norcross asked the question of several of the witnesses, well, why is this different than any other. Well, it is different because under the NLRA, the National Labor Relations Act, state and local governments are not covered, nor, Mr. Gribbon, are there commercial enterprises covered. So, this foundation that Mr. Gribbon speaks of that is so badly needed for our Native American leaders is not found for our leaders and our governments at the State and local levels. That is the parity we are talking about. Mr. Gribbon. Can I speak? Mr. Rokita. No. OSHA does speak to state and local governments, OSHA does cover that, and that is another difference here. That is simply what we are talking about, do we believe that our Native American leaders are any less legitimate to operate their governments or in a less way than our state and local leaders do? What is it about Native American leaders that the Obama Administration and NLRB does not trust? Are these leaders sitting before us today, ladies and gentlemen of this committee, less legitimate than any other mayor, like Phil Roe was, or any other elected leader, and by extension, why are Native American voters who elected these leaders not trusted in parity as leaders of State and local governments were elected? I do not know, but that is what it boils down to. We need this foundation, Mr. Gribbon describes, because these leaders apparently, and their governments, cannot handle it, in that mindset. That is wrong. That idea itself is the idea that is illegitimate. That is what this bill intends to correct. I think we are going to get there, Mr. Chairman, this time. We had 24 Democrats vote for it off the House floor last Congress. I do not know why all of them did not. Our Native American partners, our brothers and sisters, are either sovereign or they are not, and where do we stand? Fair is fair and right is right. Chairman Cladoosby, in your written testimony, you state that you ``Are not aware of any tribe that does not have an extensive process for employees to make complaints and to appeal adverse employment decisions.'' What are some examples of how tribes are protecting their employees? Is there anything that we in the Federal Government can learn from the Tribes on this topic? Mr. Cladoosby. Thank you, Mr. Rokita. Yes, definitely, and once again, when I was growing up, Swinomish had five employees in the late 1960s/early 1970s, five employees. Now, we have over 900 employees that are paid very good wages, that have great benefits. Some of my employees have been with us 30 plus years because they love working for Indian tribes. We have definitely set up internally from a tribal governance perspective rules that govern our employees, and we have a process set up where we have a full H.R. Department, we have an attorney that is well versed in labor laws that came to us. We are in a position now where we have the infrastructure that we've never had before, and we do take care of our employees and make sure that their concerns are taken care of. Just one other point on the NLRB, it has ruled that tribal preference is unlawful in a case involving Chickasaw and Choctaw. That is a concern that tribes have across the Nation of allowing a third party coming in to our homelands. Thank you. Mr. Rokita. Thank you, Chairman. Mr. Chairman, my time has expired. Chairman Walberg. I thank the gentleman. I now recognize my friend from Connecticut, Mr. Courtney. Mr. Courtney. Thank you, Mr. Chairman. Thank you to all the witnesses for being here. I have a little less gloomy perspective than my friend, the sponsor of this bill, in terms of the choice that we have before us. As some of you know on the panel, I am proud to represent Eastern Connecticut, which is home to two of the largest Native American casinos, Mohegan Sun and Foxwoods Casino, which is Mashantucket Pequot Nation. Ten years ago, roughly, almost 10 years ago, the UAW and the Mashantucket Pequot Tribal Nation entered into an agreement regarding a labor organizing drive, which again started with the NLRB, but ended up with the legal framework of the Mashantucket Pequot Nation. For again almost 10 years, they have had a very harmonious relationship for the bartenders and the dealers that the UAW represents, again, within the framework of tribal law. Again, I do not want to misrepresent anything. I know the Mashantucket's support this legislation, and I want to make that clear on the record, but what I would just say is the notion that this is a totally insolvable problem for the two sides to work out, recognizing an overall right to collective bargaining, which has been guaranteed since the 1930s and recognized by the United Nations, and in the 1800s, Pope Leo recognized collective bargaining as an essential element of human dignity. Again, we can find a way to make this work. As I said, that in fact has been the case. Right now, the UAW and the Mashantucket Pequot's are hard at work at the Connecticut State legislature sort of trying to fend off a threat up in Massachusetts in terms of a casino operation opening up there. Actually, that collective bargaining relationship, I think, has actually helped them in terms of having sort of more political muscle in terms of dealing with that challenge to the casino's future. I want to thank all the witnesses for being here. Again, sovereignty issues are in the fabric of our Nation's history, and we have to be really careful and mindful of it. Whether it is a police jurisdiction on casinos or OSHA jurisdiction, these are issues that I think have to be dealt with a scalpel and not a sledge hammer. As I said, I am an optimist in terms of the fact that reasonable people can come to an agreement, recognizing again sovereignty and sovereign control. So, I really do not have a question. I would like, however, Mr. Chairman, to enter into the record a letter from the folks, the workforce, at Foxwoods, in terms of again just confirming the fact this has worked out, that this issue has been worked out in a harmonious fashion, recognizing the rights of both sides. Again, with that, I would yield back. Chairman Walberg. Hearing no objection, it will be entered. I thank the gentleman. I now recognize the gentleman from Minnesota, Mr. Lewis. Mr. Lewis. Thank you, Mr. Chairman. In 1935, the National Labor Relations Act was enacted to ensure fair labor practices, and the Board, of course, associated with it. It excluded deliberately federal, state, and local governments from its reach. For 70 years, that had been the legal precedent, and it applied to Tribal governments as well, until the San Manuel decision in 2004. So, we are going on new legal ground here in a very dramatic way. Now, as a representative from the great state of Minnesota, in my district, I am proud to have two striving tribes, and doing very well, so I am proud to be a co-sponsor of this legislation with Representative Rokita and applaud his hard work. The problem here is the NLRA is applied to the tribes as a covered entity. This would just be the camel's nose. What other government rules from the federal government that are currently excluded from local governments, state governments, and commercial activities, will now be applied to the tribes as well? I have to say I fear when that happens that many of the rules in non-tribal enterprises that are hamstringing those will hamstring the tribes as well. These are great enterprise zones, an example of great prosperity for a number of people. If we start applying these rules, especially since the tribal governments do not get sales, income, or property tax credits, they rely on their commercial activities at this point, and I fear that it will do them great damage if we start letting a very capricious NLRB start to regulate them. In fact, in the San Manuel case, the decision was decided or applied on a case by case basis. So, we have a situation now where the Board could act and apply rules in a very, very capricious way, and some might even say a political way, which would add more uncertainty to tribal governments. It has been noted by some of the witnesses or one of the witnesses that workers at casinos--many workers at casinos are not tribal. So, therefore, it is a commercial activity, and the NLRB ought to be have jurisdiction there. One of the reasons that so many workers, at least in my district, at our very successful tribes, are not all from the tribes itself is because these are good jobs. So, non-tribal folks in the Second District want to work there. That, I think, is a testament as to why Representative Rokita's bill needs to be passed, to make certain they can continue to strive and to continue to offer good jobs to tribal members and non-tribal members alike. So, I really have no questions for the witnesses other than to say in the interest of legal precedent, as well as the concept of subsidiarity and local government, these enterprise zones ought to be allowed to flourish, and I would add the free speech of tribal governments ought to be allowed to flourish as well. So, I am proud to support the Tribal Labor Sovereignty Act of 2017, and urge the committee-- Mr. Rokita. Will the gentleman yield? Mr. Lewis. I do. Mr. Rokita. I thank the gentleman for yielding. Will the gentleman consider entering into the record this letter from the United States Chamber of Commerce, which asks that this bill be favorably reported not only out of the full committee but out of the House of Representatives and out of the Senate? Mr. Lewis. Mr. Chairman, I would request this letter from the United States Chamber of Commerce be entered in the record that advocates the markup of the bill. Chairman Walberg. Hearing no objection, it will be entered. Mr. Lewis. Thank you. Chairman Walberg. I thank the gentleman. Now, I have the privilege to recognize the ranking member of the full Education and the Workforce Committee, the gentleman from Virginia, Mr. Scott. Mr. Scott. Thank you, Mr. Chairman, and thank you to you and the ranking member for holding the hearing. I am not sure which representative will want to answer this, but it is my understanding that currently and under the bill, government operations are not covered by the NLRB. Is that true? Mr. Gribbon. What I can say to you is the NLRB has said that under the San Manuel decision, it provides that the NLRA applies only wherein its application would not interfere with tribal rights of self-government in purely intramural matters, abrogate rights guaranteed by treaty, or be contrary to congressional intent. Mr. Scott. Let me ask some of the other witnesses. Does anybody doubt government operations, city councils, government employees, would not be covered by the NLRB, both under the bill and under present law? Mr. Cladoosby. I guess you would need to look at the definition of ``government operations.'' Mr. Scott. Tribal employees employed by the tribal organization doing governmental functions, road building-- employees of the tribal government doing governmental functions would not be covered by the NLRB either under present law or under the bill? Mr. Cladoosby. Just like federal, state, and local government employees? Mr. Scott. Right. Mr. Cladoosby. That are not covered under the NLRB, we want to be treated the same as those federal, those state, and those local governments-- Mr. Scott. I am just trying to determine and focus on what the impact of the bill would be. Mr. Cladoosby. I think the impact of the bill would look at tribal sovereigns like they did for 70 years under the NLRB, and treat us like federal, state, and local governments. That is all we are asking today. Mr. Scott. Under current law and under the bill, you are not covered right now for governmental functions? Is that right? Mr. Cladoosby. Right now, the NLRB has-- Mr. Scott. Does not apply to government operations? Mr. Cladoosby. Once again, your definition of ``government operations'' might be different than my definition of ``government operations.'' Mr. Scott. We have not gotten to that. On the government operations, you are not covered. The bill would extend that exemption to Indian owned and operated enterprises. Is that right? Mr. Cladoosby. Just like we have mega lotteries run by states across the nation. We're not the only government that runs gaming. Mr. Scott. I am just trying to understand the bill. Mr. Cladoosby. So, I would hope that you would look at our government operations the same way you would look at a state. Mr. Scott. I am just trying to understand what the bill does. Mr. Cladoosby. Right. Mr. Scott. The bill extends the exemption to Indian owned and operated enterprises. Mr. Cladoosby. The same way it does for state owned and operated enterprises. Mr. Scott. Okay. Does the bill extend to privately owned enterprises? Mr. Cladoosby. No. So, once again, we are not creating union free zones in Indian Country under this bill. We need to make that very clear. Mr. Scott. Would a tribal organization be able to prohibit unions from a reservation? Mr. Cladoosby. Once again, a sovereign should be allowed to govern the way it wants to, no other outside-- Mr. Scott. I am talking about for a private enterprise. Mr. Cladoosby. If a tribe wants to unionize, that is up to the Tribe. Mr. Scott. I am not talking about the tribe. I am talking about a private non-Indian owned, non-government owned enterprise, a privately owned enterprise, should they be able to prohibit on the reservation unions-- Mr. Cladoosby. You mean like a proprietary business operating on a reservation? Mr. Scott. Right. Mr. Cladoosby. I would hope that this private business operating on a reservation would work with the sovereigns. I think they would want to-- Mr. Scott. This bill does not do that, this bill just affects Indian owned and operated enterprises. My question was whether or not under your standard, the tribe could prohibit unions from operating in a privately owned enterprise. Mr. Cladoosby. That's a good question. Mr. Scott. Does federal criminal law apply to Indian reservations? Mr. Cladoosby. Once again, I hope I'm answering your question right, I just want to make it very clear that it does not create union free zones in Indian Country. I don't know if that's what you're looking for. Mr. Scott. Right, that was the question. Does federal criminal law apply on reservations? Mr. Cladoosby. Excuse me? Mr. Scott. Federal criminal law. Mr. Cladoosby. Of course, it does. Mr. Scott. OSHA? Mr. Cladoosby. Of course, it does. Mr. Scott. Minimum wage? Mr. Cladoosby. Of course, it does, just like federal law applies to other governments also, I believe. Whether it is a state or local or county government, they, too, have federal laws that they have to abide by. Mr. Scott. I am just asking what applies and what does not. I am not trying to argue the point. Mr. Cladoosby. I hope that answers the question, all governments have federal laws they have to abide by. Mr. Scott. Title VII, should that apply to everybody? It applies to state and local governments. Mr. Cladoosby. Yes Chairman Walberg. The gentleman's time has expired. Mr. Cladoosby. Thank you very much. Those are really, really good questions, Mr. Scott. If you need follow up, we're more than happy to give follow up on those questions, but they were really great questions. Thank you. Chairman Walberg. I thank the gentleman. I now turn to the gentleman from Michigan, my good friend, Mr. Mitchell. Mr. Mitchell. Thank you, Mr. Chairman. Chairman Cladoosby, can you share with me, under the San Manuel decision, the Board indicated it would not assert jurisdiction if the application of law would abrogate treaty rights, does the NLRB have any special knowledge of Indian treaties, and where does it gather this knowledge from? Mr. Cladoosby. Well, unfortunately, treaties with Indian tribes in the United States are not truly understood by the majority of the citizens. I would hope that any one of our trustees working in the Federal Government would want to get educated on the understanding of treaties and treaty rights. I think that should be definitely a 101 for all employees. You know, I cannot speak for the NLRB on what their-- Mr. Mitchell. Does that decision not create two separate classes, tribes with treaties, tribes without? They are still sovereign nations. Does it not in some manner subdivide them? Mr. Cladoosby. Yes, we feel that way. Mr. Mitchell. What is the impact on your tribes? Mr. Cladoosby. Once again, it boils down to us having the ability to govern ourselves as sovereigns. We would just want to be treated like all the other governments in the U.S. Mr. Mitchell. Mr. Gribbon, maybe you could help me understand how it is that the NLRB will magically develop expertise in terms of the treaty rights and treaty law, since it has not been their primary expertise? Mr. Gribbon. Well, thank you very much for the question. In fact, they already have been doing that. The NLRB also adopted a criteria where it considers whether there are policy reasons to not assert jurisdiction. Mr. Mitchell. Let me stop you-- Mr. Gribbon. The-- Mr. Mitchell. Excuse me, sir. I get to ask the questions, you get to answer them. Thank you very much. Mr. Gribbon. Okay, but this-- Mr. Mitchell. Excuse me, sir. I am going to ask the question, you are going to answer the question. You are not going to answer what you want. I said how is it that the NLRB has developed the expertise internally, not what policies they developed, I want to know where their expertise comes from, their experience, what qualified people they have on that. That is my question, sir, not what policy they may develop. Please answer the question. Mr. Gribbon. Well, what I can tell you is that consistent with the three prong test under San Manuel, the Board declined jurisdiction over an Oklahoma casino run by the Chickasaw Tribe that was party to an 1830 treaty, which exempts the tribe from nearly all Federal laws, and that proves that they're doing their job. Mr. Mitchell. That simply indicates at this point in time they have chosen not to do so, not that they had the expertise internally, which was the question, sir. Let me try another one here. Did the NLRB engage with the public prior to deciding the San Manuel decision? Did they request briefs from tribes? What expertise did they gather to make the decision that it could make that distinction? Mr. Gribbon. I don't work for the NLRB, so I don't know what kind of input they got. I can imagine that it was substantial and huge, from every direction, since that's how they work. That's why it takes them usually so long to make a decision. They take information from all interested parties. Mr. Mitchell. So, your opposition to this bill is solely based on your assessment that they have done a great job so far and not any argument they have expertise to make this determination? Mr. Gribbon. Absolutely not. That is not my argument. My argument is and my argument would be that workers deserve better rights than they receive in this country, whether they be on Indian lands or not. That workers have been harassed and abused, especially by your party, really badly, over a whole number of years, and there could be very, very good improvements made if we were really worried about raising wages and personal income and respect and dignity in this country. I believe we could do much better. I'm saying the NLRA is an absolute bare minimum-- Mr. Mitchell. You did not answer my question. Mr. Gribbon. Bare minimum. I'm not happy with it, it's a bare minimum. Mr. Mitchell. I am happy for you, but I get to ask the questions. You get to testify, I get to ask the questions. If you want to stop by my office later, I am happy to have a debate with you. Mr. Gribbon. Okay. Mr. Mitchell. That would be great. First, I grew up in a union household. Like my friend from Minnesota, we have a lot of employees, and people go to work in the casinos that in fact have options to go to jobs that are represented, and they choose to go there because they are good jobs, and they are better jobs than union represented jobs in many places. What you see as the panacea, protection, it does not offer much, and does in my opinion violate the sovereignty of the tribal nations. I am asking Mr. Rokita to please add me as a co-sponsor of the bill, and if you want to continue the debate, please stop by my office and we can talk about labor relations. Mr. Gribbon. All right. I think-- Mr. Mitchell. My time has expired. I yield back, sir. Mr. Gribbon. Totally missed the point. Chairman Walberg. I thank the gentleman. I now recognize the gentleman from Pennsylvania, Mr. Smucker. Mr. Smucker. Thank you, Mr. Chairman. Chairman Cladoosby, is it not true that many tribes have enacted their own laws or ordinances that govern labor relations at tribal commercial enterprises? Mr. Cladoosby. Yes, sir. Mr. Smucker. Could you please expand a little on what they are? Mr. Cladoosby. Sure. Once again, tribes have never had the opportunity to have a Marshall Plan. Do I wish it was some other form of operations that enabled us to create this great infrastructure? Yes. It is what it is. So, right now, tribes around the nation have shown that they have the ability to be the largest employers in their areas, and they take care of their employees very well. Many of them have implemented employer rights ordinances to make sure that their employees are taken care of satisfactorily. Like the gentleman said, you know, we do pay pretty fair wages in some of our operations and full benefits. Mr. Smucker. Do you have concerns if the NLRB determines it has jurisdiction what will become of those tribal labor laws? Mr. Cladoosby. Once again, I would hope that the NLRB would see this as an intrusion into a sovereign, and that they would recognize that we have the ability internally to take care of our own, just like any other government, whether it be state, county, or local. Mr. Smucker. Chairman Welch, I will ask you to sort of address the same question. You spoke about the Viejas Tribal Labor Relations Ordinance that has worked well over the years. Why do you think that TLROs are more important for a sovereign entry than the NLRA? Mr. Welsh. Our TLRO was brought forward to us with working hand in hand with the California state, the government. The governor at that time asked that we put one together to enter into for compact negotiations. I think the governor at that time did not believe the NLRA or NLRB had jurisdiction over the reservation, which has been proven, because 1935 to 2004, when Congress enacted the NLRA, they never envisioned Tribes being successful as they are, so they were never put into it. So, how can NLRB finish the process of what Congress had instituted when Congress hadn't finished it? That's one of our big objectives with NLRA and NLRB. Mr. Smucker. Thank you. Mr. Chairman, I yield back. Chairman Walberg. I thank the gentleman. I recognize the gentleman from Georgia, Mr. Allen. Mr. Allen. Thank you, Mr. Chairman, and thank you all for being with us today. Chairman Welch, the NLRB, which was enacted in 1930, was intended to govern private sector labor management relations. Can you explain why the application of the NLRB is in conflict with the role of the state, local, and tribal governments? Mr. Welsh. Can you repeat that, the last part? Mr. Allen. Can you explain why the application of the NLRB is in conflict with the sovereignty of the tribal governments? Mr. Welsh. Because they're trying to tell us what to do, and we have sovereign rights enacted to us by Congress and the Constitution. Mr. Allen. All right, good. You answered that. Mr. Cladoosby, many federal laws specifically exclude Indian tribes from the definition of ``employer.'' Is there any mention of ``Indian Tribes'' in the NLRA? If the act is silent, what theory has the NLRB applied to exert jurisdiction over Indian tribes? Mr. Cladoosby. That's a really good question, sir, and their ability to assert jurisdictions over a government is one that we are trying to figure out also. We feel that we protect the rights of our employees very, very well. I guess once again, you know, when we look at it from a state, local, and county perspective, what right would they have to go into those governments like they want to come into ours. Mr. Allen. Again, the act was enacted in the 1930s, how have tribal governments and tribal enterprises changed since then, and why does this further support the idea that tribal enterprises on tribal lands should not be subject to the NRLA? Mr. Cladoosby. I think you've heard about the income. I'm not sure if this is about money or about looking out for the best interests of the employees. I know we as tribes have come a long way. Like I said earlier, Swinomish only had five employees when I was growing up, and to have over 900 now that we take care of very well is a great accomplishment. Like one gentleman said, they can't vote, a lot of them, because they're not tribal members, but if you look at Las Vegas and Reno, where you have a lot of gaming, a lot of those employees come from outside of Las Vegas and Reno, and they can't vote there either. We just want to be treated the same as other governments. Mr. Allen. It is not that your wages are below what is normally paid, or you are taking advantage of members of your tribe in your operation here? You just want to do--given the rights you have been given, you just want to be able to manage this the way it was originally established? Mr. Cladoosby. Yes, sir. Mr. Allen. Exactly. Here we have the government saying that we want to intervene. We have that problem in a lot of areas. Of course, that is why so many people want to get into this country, because of the way we treat our workers with dignity and respect. In fact, I had the opportunity to work in the small business arena for 35 years, and I was able to--the greatest blessing I had received, and I realized this later on in my career, I wish I had realized it earlier, but boy, what a blessing it was, and I am sure you are experiencing this, from what I have heard in your testimony, is to give people the opportunity to have a good job, to give them the dignity and respect they deserve, and to allow them to provide for their families, and also provide for their Nation. That is a great privilege. I thank you for coming out and providing your testimony today. I look forward to working with you on this. Mr. Cladoosby. Thank you, Mr. Allen. I think at the end of the day, any operation, any business, all they want is good employee relationships, employees to feel comfortable coming to work, and they want their employees to feel like they have the greatest jobs in the world. Tribes are in a position now to do some things that we've never ever been able to do, and we're just very blessed. The Creator has blessed us and allowed us to be able to make a lot of families happy that otherwise wouldn't have that opportunity. Mr. Allen. I am going to do my best to keep the federal government out of your way. Mr. Cladoosby. Thank you, sir. Mr. Allen. Yes, sir. Thank you. I yield back. Chairman Walberg. I thank the gentleman. Now, it is my privilege to recognize the ranking member, Mr. Sablan, for your closing remarks. Mr. Sablan. Thank you very much, Mr. Chairman. I want to thank all the witnesses today for their testimony. I am not trying to stick my nose into your business. As I noted at the outset, the San Manuel decision struck a balance between the protection of tribal sovereignty rights and the protection of workers' rights. Although Tribal Labor Relations Ordinances have been adopted by some tribes, these ordinances vary greatly in the levels of workforce protection. I have Section 3107 of the 2010 Blackfeet Tribal Employment Rights Ordinance and Safety Enforcement Act of 2010, which I ask to insert in the record. It reads ``Unions are prohibited in the Blackfeet Indian reservation.'' So, there are tribes that discourage unions in their organizations. Chairman Walberg. Without objection, it will be entered. Mr. Sablan. There is no uniform standard for tribal ordinances, which means there could be 567 different labor standards, depending on the tribe. What provides protection is the National Labor Relations Act. However, if H.R. 986 is enacted, workers would lose the protection of the federal minimum standard. Similar concerns were raised by the International Labor Organization in a letter to Congress regarding the Tribal Labor Sovereignty Act. ILO wrote in part, in those cases where there are no Tribal Labor Relations Ordinances, undue restrictions on collective bargaining, excessive limitation on freedom of association rights, or lack of protection from unfair labor practices, workers on tribal territories would be left without any remedy for violation of their fundamental freedom of association rights, short of the Constitution. Mr. Chairman, I would ask unanimous consent also to include this three-page letter from the International Labor Organization in the record of this hearing. Chairman Walberg. Without objection, it will be entered. Mr. Sablan. Thank you, sir. I would also ask for unanimous consent to include the letter in opposition from the AFL-CIO, International Union of Operating Engineers, United Auto Workers, Local 2121, and the United Steel Workers, into the record. Chairman Walberg. Without objection, they will be entered. Mr. Sablan. As we have learned today, Indian Tribes are subject to a number of federal employment laws, including the Fair Labor Standards Act, OSHA, ERISA, the Family and Medical Leave Act, but Mr. Cladoosby, in your response to the Ranking Member's question if Title VII of the Civil Rights Act applies to the tribes, you answered ``yes''. The answer is ``no''. Title VII of the Civil Rights Act does not apply to Indian tribes, but it does to any local government. Mr. Cladoosby. Thank you for that correction, sir. Mr. Sablan. You are welcome, sir. A review of the committee's activities may help explain the focus since the Majority took control in 2011: there have been 26 hearings or markups attacking the National Labor Relations Board's rules on these issues, compared with 17 on-the-job training and technical education, 11 on OSHA and mine safety, 15 on pensions and retirement issues, and 11 on wages and hour issues. What we know is that only 6.4 percent of the private sector workforce today is covered by a union agreement. Union agreements have provided many low wage service workers employed in tribal casinos or other tribal businesses with improved wages and benefits, which has provided them with a foothold to the middle class. By negotiating employer provided health care, the cost to state and local governments for health care costs has gone down. Legislation in this area needs to balance the sovereign rights of Native American tribes with the rights of workers to organize and bargain collectively. Mr. Chairman, we should not be enacting legislation that weakens workers' ability to bargain for a fair share of the wealth, whether it is in a commercial business or a tribal enterprise. If I may, one of the main reasons if not the main reason that I ran for Congress was to find a way to help improve the education of the poor people that I represent in the Northern Mariana Islands. In the seven years working on that, I am finally happy, with the help of Mr. Kline and Mr. Scott, and I think Mr. Rokita was also ranking at that time, that we were able to increase the formula for Title I money. We had that hearing, and I saw the appalling state of Indian schools, so I was able also working with Mr. Kline to increase the funding for Bureau of Indian Education. You guys need to speak up for your people, their education, and the appalling state of the education ran by the Department of Interior is not something that I can say I am proud of, to be an American. After saying that, Mr. Chairman, I yield back the balance of my time. Chairman Walberg. I thank the gentleman, and thank you especially as you come from a perspective of actually being a tribal member, and appreciate your passion and your concern. I want to thank Chairman Cladoosby, Delegate Brown, Mr. Gribbon, and also Chairman Welch, for taking the time and effort to travel, et cetera, to be here. I appreciate that fact. I want to thank my colleague, Mr. Rokita, for your diligence in bringing this back up. As chairman of the K-12 Subcommittee, this fits, as we talk to young people, talk about the wealth of our Nation and our history, that includes also some challenging times as we worked out treaties, as we dealt with the Native American population. There were some--I guess the weakest words to use would be ``frustrating times,'' there were some tragic times as well. Treaties have been developed, sovereignty has been affirmed, not simply by statement but by law and agreement. That term ``sovereignty'' is extremely important for us to understand. We revel in that here in the United States of America. We understand that we are a sovereign nation, and when we recognize other nations in the world as being sovereign, including the nations we are looking at right here in front of us this morning, that is something that we ought to make sure our young people understand, K-12 on up, and it is something more importantly that we ought to keep the faith with in our treaties, in our agreements, and in our laws. That is all this is here today. We are not talking about holding back unions and union organization. We are not talking about that. I think all of us here would respond that we respect and we want to continue the freedom for our workers to organize in unions. Do it fairly, on both sides, of course, but that ought to be a right. We are talking of a sovereign nation. It is their determination that comes first, and we ought to honor that. Today, we are answering a question, can we do it better than the tribes? Maybe, but that is not our authority. Maybe not as well. That is your authority. I think that is what we are affirming today. Definitely, Mr. Chairman, we are affirming parity. We wrestle with that in our States, do we not? The Tenth Amendment, liberties, that we say all the time are being stepped upon by the Federal Government. Today, we are seeing that it is the same type of situation for the tribes. I appreciate the questions, the testimonies given today, and I appreciate the thought processes to move this forward and to put it in front of us, and I think because of that we will also put the point in history of reminding ourselves that those treaties, those agreements, have purpose, have strength, have power, and it is about time we recognized that, and we push back on entities of our U.S. federal government when they are attempting to step over the bounds, regardless of what certain courts have said, we identify with our responsibility to uphold the Constitution just as much as any court. Seeing there is no further business before the subcommittee, we stand adjourned. [Additional submission by Mr. Cladoosby follows:) [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] [Whereupon, at 11:51 a.m., the subcommittee was adjourned.] [all]