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NCAI between 'rock and a hard place' on labor rider
Monday, September 13, 2004

The National Congress of American Indians (NCAI), the largest inter-tribal organization, is often asked to weigh in on highly-charged subjects.

Last week was no different, when Republican Congressman J.D. Hayworth, a long-time ally from Arizona, introduced an amendment that would halted a controversial labor law decision pitting unions against tribes. NCAI and the National Indian Gaming Association (NIGA) rushed to support it, putting out a letter and other statements urging its passage as part of an appropriations bill.

But the move appeared to backfire when prominent Democrats from the Congressional Native American Caucus drafted their own letter in opposition. Reps. Nick Rahall (D-West Virginia), the ranking member of the House Resources Committee, George Miller (D-California) and Dale Kildee (D-Michigan), co-chair of the caucus, called the rider "ill-timed and unnecessarily divisive."

The assault continued as Democrats took to the floor on Thursday to denounce the effort as an election-year ploy by the Republicans. Democrats, traditional allies of labor unions, would be hard pressed to vote for a measure that might upset such a key constituency.

Off the floor, Democrats openly questioned NCAI's view on the matter. The organization has long opposed legislative riders because they usually go against Indian interests, so its endorsement of the Hayworth amendment disturbed key lawmakers.

"When I offered an amendment to protect Native American sacred sites to an appropriation bill recently, the organization refused to take a position stating it had a policy of not supporting legislative riders to appropriations bills," Rahall said in a statement following the defeat of the rider on Thursday afternoon.

"To say the least, this is puzzling and creates confusion in the eyes of Congressional lawmakers as to what the policy at NCAI on these matters really is," he concluded.

Tex Hall, NCAI president, acknowledged Rahall's concerns during an interview on Friday. "A policy is a policy and we do have a policy," he said. "On the sacred sites, [Rahall] is correct."

But Hall said NCAI was under "tremendous pressure" to support the labor rider, which was also backed by the Republican leadership in the GOP-controlled House. The amendment was put together at "the last minute" he said, forcing tribes to make a quick decision only a day before it went up for debate.

Given that situation, Hall said the choice was clear. "We had to make a choice," he said, "to either stand with San Manuel Tribe and protect tribal sovereignty or to stand with the unions. We had no choice. We had to stand with the tribes."

"We really were between a rock and a hard place," he said, pointing out that less than two weeks remain in the current session.

The San Manuel Band of Mission Indians, the California tribe involved in the ruling, supported the rider. The tribe has criticized the National Labor Relations Board (NLRB), an independent federal agency, for overturning 30 years of precedent and asserting authority over tribal enterprises on the reservation.

Democrats, though, believe that the matter can be worked out by respecting both tribal sovereignty and the rights of tribal employees, many of whom are non-Indian and work at casinos. Kildee recently held a meeting with the tribe and the labor union in hopes of developing a solution. Ernie Stevens Jr., chairman of NIGA, participated in that meeting.

But Hall said no progress was made. "[A]ll discussion they relayed to me was that there was no room for negotiations," he said. "[The unions] supported the NLRB decision. There was really no negotiation."

That view was confirmed by Hayworth. "With reference to what has gone on and what has been described as productive negotiations, yes, indeed, tribes met with several union officials in attempts to negotiate," he said on the floor. "Our understanding is essentially the negotiations went nowhere."

But Miller claimed the parties were engaged in "good-faith negotiations." "Many people were surprised that either of those organizations would walk into the same room to sit down and discuss this, but they recognized the problem here," he said.

This isn't the first time tribes have been caught between Republicans and Democrats. In 2002, Democrats opposed a Hayworth-drafted bill that would prevent tribes from being forced to accept labor unions through tribal-state gaming compacts. The measure never made it out of the Resources committee.

Lawmakers themselves also fall victim to party-related disputes. Last fall, Rep. Richard Pombo (R-California), chairman of the Resources committee, faced pressure from Republican leaders on an appropriations rider to stop an accounting of billions in Indian trust funds. Pombo fought the measure anyway, as did other Republicans, including Hayworth.

Hall said tribes still should work with Kildee, Rahall and other key Democrats on the labor issue. "They are longtime champions of working with tribes," he said.

At the Democratic National Convention in July, Rep. Patrick Kennedy (D-Rhode Island) said he would support a bill affirming a tribal exclusion from labor laws. Last week, he had argued against the Hayworth rider, characterizing it as political gamesmanship.

Such a bill would ensure that tribes are treated the same as other governments. As it stands, local governments, along with territorial governments such as Puerto Rico, are exempt from labor laws.

On-reservation tribal businesses were exempt up until the NLRB decided to step in and offer new guidelines. The board said it would consider whether the enterprise is of a commercial or governmental nature, and whether it employs non-Indians or affects non-Indians.

Relevant Documents:
NCAI-NIGA Letter of Support | Kildee-Miller-Rahall Letter of Opposition | Text of Hayworth Amendment | NCAI Resolution on Labor | Roll Call on Hayworth Amendment

National Labor Review Board Decisions:
San Manuel Indian Bingo and Casino | Yukon Kuskokwim Health Corporation

Federal Court Decisions:
Snyder v. Navajo Nation (June 10, 2004) | NAT'L LABOR RELATIONS BD v. SAN JUAN PUEBLO (10th Circuit January 11, 2002) | NAT'L LABOR RELATIONS BD. v. CHAPA DE INDIAN HEALTH PROGRAM, INC (9th Ciruit January 16, 2003)