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N.M. tribe seals winning case on labor laws
Tuesday, December 9, 2003

After battling federal labor officials for six years, a northern New Mexico tribe can finally rest its case.

San Juan Pueblo won a series of court decisions affirming its right to enact its own labor laws. A federal judge and two separate panels of the 10th Circuit Court of Appeals backed the tribe's sovereign rights in nearly unanimous rulings.

But it wasn't until last week that the tribe, which has about 3,000 members, was able to recover nearly $400,000 it spent to defend itself from the National Labor Relations Board (NLRB). U.S. District Judge Martha Vazquez ordered the government to repay the money under the Equal Access to Justice Act.

"The NLRB has failed to establish that its position during this litigation was substantially justified," she wrote on December 4.

The decision brought praise from San Juan Pueblo Gov. Earl Salazar, whose one-year term is up at the end of the month. "So many times, Indian tribes are forced to bear great expenses in defending themselves against challenges to their authority," he said in a statement. "It is nice to know that at least once in a while those expenses will be reimbursed by those who have brought such challenges without foundation."

The dispute between centered over the tribe's law against forced unionism. Labor unions aren't outlawed on the reservation but in November 1996, the tribal council passed an ordinance prohibiting unions and employers from entering into union security agreements.

The agreements, which are legal under the federal National Labor Relations Act (NLRA), force employees who aren't part of a union to pay fees to a union. A timber company that leased tribal land had entered into this type of arrangement with the local union.

To battle the ordinance, the union and the NLRB sued the tribe in January 1998. They argued that the NLRA applied to the tribe as a separate sovereign.

But in three separate decisions, the federal courts rejected the assertion. On two occasions, a majority of the 10th Circuit Court of Appeals upheld the tribe's stance in the case.

"Like states and territories, the Pueblo has a strong interest as a sovereign in regulating economic activity involving its own members within its own territory," wrote Judge Deanell R. Tacha in a 9-1 decision issued in January 2002, "and it therefore may enact laws governing such activity."

Tribal leaders feared NLRB would appeal the case to the Supreme Court but the independent federal agency led the deadline pass in spring of 2002.

Still, the tribe was left with a hefty law firm bill. Since the union and NLRB refused to consolidate their complaints, the tribe was forced to pay extra costs to respond. The bill mounted when the union interests submitted 13 briefs the the district court in New Mexico and six briefs to the 10th Circuit. Each filing required significant time and resources to respond.

The Nordhaus Law Firm of Albuquerque represented the tribe throughout the case. Lead attorney Lee Bergen, the tribe's general counsel, said the court fee decision means "the Pueblo can use the money for its people."

A California tribe's health program tried to use the San Juan Pueblo case to fight the NLRB in a dispute over a union that was trying to organize. But the 9th Circuit Court of Appeals in January 2003 said the Rumsey Indian Rancheria's sovereignty wouldn't be infringed and authorized subpoenas requested by the NLRB.

In recent years, labor unions have become a bigger issue in Indian Country as tribes create jobs an economic development. In some states, tribes are being forced to accept unions through gaming compacts. California and New York placed union provisions in their casino agreements.

Last year, Rep. J.D. Hayworth (R-Ariz.), the co-chair of the Congressional Native American Caucus, introduced a bill to invalidate existing compacts that contain forced unions. But it was met with significant resistance from Democrats.

"The issue here is not whether tribes should unionize their gaming facilities," Hayworth said at an April 2002 hearing. "But the issue is, who should make that decision? Should it be up to the sovereign tribal governments or should it be up to the states or the federal government?"

Attorney Fee Ruling:
NLRB v. San Juan Pueblo (December 4, 2003)

Labor Law Ruling:
NAT'L LABOR RELATIONS BD v. SAN JUAN PUEBLO NO. 1385, No. 99-2011, 99-2030 (10th Cir. January 11, 2002)

Relevant Links:
National Labor Relations Board - http://www.nlrb.gov
National Right to Work Foundation - http://www.nrtw.org
NCAI resolution on labor - http://www.ncai.org/data/docs/
resolution/2001_winter_session/ECWS001_05.htm