Turtle Talk

From ICT:

Imagine this scenario: “If you don’t sleep with me, you can kiss your job goodbye,” the male supervisor warns the female waitress at the tribe’s gaming facility. (We’ll call her Joyce.) She consistently says no. His threats continue and even escalate.

Although he threatens to make her life miserable if she tells anyone, Joyce seeks help from the Equal Employment Opportunity Commission; EEOC informs her that federal sexual harassment laws exclude tribes. She goes to tribal court. She finds she has no remedy under tribal law. Overwhelmed by her boss’ intimidation, Joyce quits her job. Unemployed and unable to afford her rent, she moves in with her brother, Bob.

Bob, a union organizer, is outraged. He starts talking to Joyce’s co-workers and learns that other women have experienced similar harassment. Other workers complain that management plays favorites with tribal members, giving them better jobs and shifts than non-members. Bob says that with union representation, management would be held accountable for workers’ rights.

He collects employee signatures on cards to support union representation and registers them with the National Labor Relations Board. The NLRB orders the tribe to hold a union election, and four weeks later, the employees vote overwhelmingly for the union. The NLRB orders the tribe to negotiate a collective bargaining agreement.

In addition to demanding supervisor accountability for workplace sexual harassment, the union demands an end to tribal member employment preferences. The tribe agrees to the former, but not the latter. As a result, the union persuades non-tribal members to go on strike. Those on strike picket the casino with placards reading “On Strike for Workplace Equality.” The tribe fires the strikers and issues an order excluding them from the tribe’s land. The strikers respond by filing unfair labor practice charges with the NLRB. The NLRB orders the tribe to reinstate the strikers and to put up posters in the workplace, stating that all workers have a right to strike in accordance with the National Labor Relations Act.

This scenario is ready to play out across Indian country. It is made possible by two things: First, the failure of tribes to enact their own laws governing employment and labor relations; and second, the decision of the D.C. Circuit Court of Appeals in San Manuel Indian Bingo & Casino v. NLRB. The lack of tribal law and dispute resolution forums leaves a gapping hole for outside federal agencies to fill and for unions to exploit. The San Manuel decision made tribes’ gaming facilities vulnerable to the NLRB jurisdiction, but it is not the last word on the subject.

Tribes have a choice: They can stand idle and be overrun as in the scenario described above, or they can enact their own laws governing employment and labor relations, including union access to their territories. It is not enough to just bring in the union prevention consultants; this is about the exercise of tribal sovereignty. Nor is it enough to simply adopt a “right to work” ordinance; that’s a very small piece of a large puzzle.

The threat of federal authority over labor relations in Indian country is a threat of assimilation. In the case of the NLRB, outside federal agents would impose labor unions upon tribes, upholding the power of such unions to bargain for externally defined “rights” of employees and to strike against tribes’ economic enterprises – even to thwart tribal employment preferences.

A host of other laws that are silent about their application to tribes pose similar threats to tribal sovereignty. The Age Discrimination in Employment Act(providing remedies for workplace age discrimination) and the Fair Labor Standards Act (minimum wage and overtime laws) are two ready examples. The federal agencies administering these laws are more than ready to sue tribes and their enterprises to impose these laws in Indian country. Indeed, they have already done so.

The only option for sovereign Indian nations is to get busy thinking about how to govern these areas before external authorities are called upon to do so. Reacting after the fact will be too late.

Kaighn Smith Jr. is a partner at the law firm, Drummond Woodsum MacMahon. He represents tribes in labor and employment matters, including the enactment of employment laws and jurisdictional disputes with federal agencies. He is the author of a forthcoming book on the law of tribal employment to be jointly published by the Native American Rights Fund and Drummond Woodsum.