Introduction
Since 1990, employees of businesses owned and operated by Native nations have increasingly sought to amplify their voices in the workplace through union representation.1 Many of these (primarily non-Native2) workers have invoked the protections of the National Labor Relations Act3 (NLRA). The protections of federal labor law have been crucial to building worker power in private-sector enterprises. But to many tribal governments, this invocation of a federal statute is an affront to the inherent sovereignty of Native nations.4
Labor organizing in tribal enterprises5 uncovers a seemingly intractable tension between two classes of power-building institutions: unions and tribes. Unionizing workers, often members of non-Native minority groups, feel disenfranchised in their workplaces, while Native governments perceive intervention into their internal affairs as threatening their inherent sovereignty6 — sovereignty that has been weakened through congressional action and Supreme Court decisions.7 This tension is especially acute in the ideological context of the modern labor movement, which casts unionism as rooted in values of progressivism and social justice.8 This Note attempts to ameliorate that tension by advocating a labor movement that builds worker power under the protections of tribal, rather than federal, law.
This Note proceeds in four parts. Part I sets out the historical backdrop, while Part II outlines the doctrinal context. A question central to many tribal-labor conflicts is whether general federal regulatory statutes, including the NLRA, apply to Native nations. The Supreme Court has addressed this question only in dictum,9 and lower courts are divided. Part III argues that, under federal Indian law doctrine, general federal labor statutes do not apply to tribally owned businesses. As several scholars have articulated, interpreting federal labor law as inapplicable to these businesses is consistent with Supreme Court precedent, the text and history of the NLRA, and the nature of tribal enterprise.10 Part IV examines the implications of this argument. Drawing on examples of existing tribal labor-relations schemes, this Part encourages worker advocates to see organizing in tribal enterprises as an opportunity to amplify workers’ voices while honoring Native sovereignty. In the absence of federal regulation, unions and Native nations may find common ground as institutions dedicated to building power for their members.11
I.
Workers’ power to self-govern through unionization hit an apex in the mid-twentieth century. The original NLRA, promulgated as the Wagner Act in 1935, promoted a goal of building worker power and established a framework for self-governance in the private-sector workplace through collective bargaining.12 Workers organized under the NLRA and its public-sector corollaries are able to earn more than nonunionized workers, enjoy more benefits and greater stability, and have more control over the conditions of their employment.13 Since the 1930s, however, union protections have been eroded: changing economic forces weakened traditionally unionized American industries;14 the Taft-Hartley amendments of 194715 shifted the NLRA’s purpose away from promoting worker power;16 state statutes and unfavorable court decisions have limited public-sector workers’ ability to bargain collectively;17 and aggressive employer resistance to organizing has become commonplace, limiting workers’ ability to form new unions.18
As union membership declined, some unions, especially in the service sector, began explicitly to link the labor movement to broader social justice issues, positioning collective action as an essential tool for building power among marginalized groups.19 Unions became involved in community organizing and nonlabor social movements.20 This approach has seen some notable successes, as high-profile collective actions have helped cast unions as drivers of social justice.21
Unions and Native nations encountered intermittent conflict throughout the twentieth century. During the Depression, pay disparities between Native and non-Native miners contributed to Navajo workers’ crossing picket lines.22 In the mid-twentieth century, several tribal governments enacted “right-to-work” laws;23 in response, unions called on the National Labor Relations Board (NLRB) to assert jurisdiction over tribally owned businesses operating in Indian country.24 The Board declined to do so,25 and unions continued to organize in tribal enterprises without the protections of federal labor law.26
An increase in service-sector organizing in the 1990s coincided with the growth of Indian gaming and generated renewed interest in labor organizing in tribally owned enterprises.27 In 1988, Congress promulgated the Indian Gaming Regulatory Act28 (IGRA) with a purpose to promote sustainable self-governance by Native nations.29 IGRA requires states that allow gaming to permit Native nations to develop gaming enterprises, provided the two governments negotiate a compact setting out terms of operation.30 As states and Native nations negotiated IGRA compacts, labor organizers sought to ensure that gaming jobs would be union jobs.31 This activism proved a turning point in the broader relationship between organized labor and Native nations.
II.
Union campaigns in casinos sparked renewed legal battles over control of labor relations in Indian country. Two key inquiries underlie these legal conflicts. First, under what circumstances do general federal regulatory statutes like the NLRA apply to Native nations? Second, in the context of the NLRA specifically, are Native nations “employers” subject to regulation by the Act?32 This Part begins by describing how courts have approached the former question. It then turns to the latter, examining how the NLRB has come to exert control over tribal enterprises.
A. The Applicability of General Federal Laws to Native Nations
Whether and under what circumstances general federal statutes apply to Native nations is one of the most contested issues in federal Indian law.33 At the heart of this question are two competing sources of authority. On the one hand, Professor Felix Cohen’s influential Handbook of Federal Indian Law identifies canons of construction that guide judicial decisions in Indian law. These canons instruct: statutes and legal agreements must be “liberally construed in favor of the Indians”; “all ambiguities are to be resolved in their favor”; and “tribal property rights and sovereignty are preserved unless Congress’s intent to the contrary is clear and unambiguous.”34 The Supreme Court has regularly invoked these canons.35
On the other hand, the Supreme Court’s main foray into addressing whether general federal laws regulate Native nations stands to the contrary. In Federal Power Commission v. Tuscarora Indian Nation,36 the Court stated that “general Acts of Congress apply to Indians as well as to all others in the absence of a clear expression to the contrary.”37 Because Tuscarora itself concerned a statute that specifically addressed the use of tribal land,38 its principle of general applicability is widely understood to be dictum.39 The Supreme Court has never revisited the question.40 These two nonbinding authorities — the Handbook canons and the Tuscarora dictum — provide the backdrop for adjudicators considering the application of general federal statutes to Native nations.
Federal courts have adopted varying approaches to these competing authorities.41 A plurality have followed an approach outlined by the Ninth Circuit in Donovan v. Coeur d’Alene Tribal Farm,42 which held that statutory silence regarding Native nations in the Occupational Safety and Health Act43 (OSHA) presumptively indicated an intent to regulate tribes.44 This presumption, however, did not apply where:
(1) [T]he law touches exclusive rights of self-governance in purely intramural matters; (2) the application of the law to the tribe would abrogate rights guaranteed by Indian treaties; or (3) there is proof by legislative history or some other means that Congress intended [the law] not to apply to Indians on their reservations.45
In these cases, express statutory language is called for.46 Coeur d’Alene also held that operating a commercial enterprise was not “purely intramural,” and OSHA regulation of tribal enterprises therefore did not infringe on self-governance.47
The Second, Sixth, and Eleventh Circuits have since adopted Coeur d’Alene.48 The Seventh Circuit has adopted a similar but distinct approach under which courts are asked to distinguish governmental and commercial functions of tribal governments, exempting tribal employers from federal regulation only when they “exercis[e] governmental functions that when exercised by . . . other governments are given special consideration.”49
Two federal circuits have rejected Coeur d’Alene. The Eighth Circuit has stated that Tuscarora “does not apply when the interest . . . affected is a specific right reserved to the Indians”50 and that a right to self-governance is implied for federally recognized tribes.51 And in NLRB v. Pueblo of San Juan,52 the Tenth Circuit invoked the canon that “doubtful expressions of legislative intent must be resolved in favor of the Indians”53 to place the burden on the NLRB to demonstrate that Congress had intended the NLRA to “strip Indian tribal governments” of the authority to legislate labor relations,54 ultimately finding that it had not.55
The result is a fractured circuit split: a plurality of federal courts treat general regulatory laws as presumptively applicable to tribes, subject only to a few narrow exceptions. Others have followed Cohen’s canons to reverse the presumption, requiring evidence that Congress intended the law to apply to Native nations. And one, the Seventh Circuit, applies shifting presumptions depending on whether it views the tribal activity in question as “commercial” or “governmental” in nature.56
B. Tribal Enterprises as “Employers” Under the NLRA
Approaches to the second question — whether Native nations are “employers” under the NLRA — have evolved since the Board first considered the issue in the 1970s. In Fort Apache Timber Co.,57 the NLRB held that, although the NLRA is silent with respect to Native nations, because section 2(2) of the Act explicitly excludes federal and state governments from the Board’s jurisdiction,58 and because the defendant business was wholly owned by a government — the Fort Apache Tribal Council — the business was a government entity and therefore “implicitly exempt” from regulation.59 This holding was undisturbed until 1992, when the Board appeared to apply Coeur d’Alene to hold that a tribal enterprise operating off-reservation was an employer subject to NLRB jurisdiction, although on-reservation enterprises remained exempt.60
In 2004, the Board formally overruled Fort Apache to hold that Native nations are “employers” under section 2(2) of the Act.61 Since that case, San Manuel Indian Bingo & Casino,62 the Board has asserted jurisdiction over labor relations in tribal enterprises. San Manuel applied Coeur d’Alene to hold that, because the employer in question — a casino — was commercial in nature, it could “hardly be described as ‘vital’ to the tribes’ ability to govern themselves or as an ‘essential attribute’ of their sovereignty.”63 The Board therefore held that it was not statutorily precluded from asserting jurisdiction64 — a holding the D.C. Circuit enforced in an opinion that weighed general federal regulatory interests against the infringement on tribal sovereignty.65
The San Manuel Board nonetheless held that a “blanket assertion of jurisdiction” over Native nations was inappropriate as a policy matter.66 It therefore introduced a new rule: when Native nations operate in the “particularized sphere of traditional tribal or governmental functions,” the Board should decline jurisdiction.67 In a companion case decided the same day, the Board applied this principle to decline jurisdiction over a hospital run by a coalition of Native Alaskan governments.68 This pair of cases established the Board’s present stance.69
III.
Several scholars have addressed Coeur d’Alene’s shaky foundations and the problems associated with applying federal labor law to tribal enterprises.70 This Part builds on that scholarship to argue that the NLRA should not regulate labor organizing in tribal enterprises. First, such regulation is inconsistent with Supreme Court jurisprudence since Tuscarora.71 Second, the text and history of the NLRA do not indicate that Congress intended to regulate tribal enterprises. Third, decisions that distinguish between tribal enterprise and self-government misunderstand the nature of enterprise as a tool of self-government.
A. Supreme Court Jurisprudence Since Tuscarora
The Supreme Court has not revisited the Tuscarora language that has caused so much consternation in courts and scholarship and that directly contradicts early precedent.72 But subsequent decisions have favored the canonical presumption against applying general federal laws to Native nations over the Tuscarora principle.73
The Court’s support for the canons is strongest in cases that the Court deems as striking at the heart of self-government. In Santa Clara Pueblo v. Martinez,74 the Court held that the Indian Civil Rights Act75 (ICRA) did not authorize civil suits against tribal officers, reasoning that “proper respect . . . for tribal sovereignty” mandated “tread[ing] lightly in the absence of clear indications of legislative intent.”76 Merrion v. Jicarilla Apache Tribe77 reaffirmed this principle in upholding the Jicarilla Apache Tribe’s power to tax oil extracted from reservation land.78 Holding that the right to self-government included the “power to . . . raise revenues to pay for the costs of government,”79 Merrion reiterated Santa Clara’s exhortations to “tread lightly”80 to reject the argument that Congress had implicitly preempted the Tribe’s taxing power.81
Perhaps the strongest support for the presumption against applying general laws to Native nations comes from a case in which the Court found that Congress did intend to abrogate sovereignty. United States v. Dion82 considered whether general conservation statutes abrogated Yankton Sioux Tribe members’ right to hunt on reservation lands.83 The Yankton Sioux’s treaty neither expressly reserved nor restricted hunting rights.84 Because treaty rights are reserved unless expressly relinquished, the Court inferred a right to hunt and fish and demanded “clear evidence that Congress actually considered the conflict” with the impliedly reserved hunting rights and had chosen nonetheless to proceed.85 Although the Court found that Congress had done so in this case,86 this “actual consideration” test — applied to rights not expressly reserved by treaty — introduced the Court’s strongest demand yet for evidence of congressional intent to abrogate Native sovereignty.
Dion left unresolved whether the “actual consideration” test applies outside of the treaty context.87 But Dion construed treaty rights broadly, inferring a right to hunt and fish from a reserved right to “undisturbed possession” of tribal land.88 The Court also noted that implicit rights are retained by nations that have not treated with the United States.89 A key question after Dion is whether its broad construal of reserved rights applies with equal force to the right to self-government90 — a right that courts have repeatedly held to be implied for all Native nations.91
One year after Dion, in Iowa Mutual Insurance Co. v. LaPlante,92 the Court declined to apply a general federal statute to a Native government. The LaPlante Court held that a dispute between a non-Native insurance company and tribal citizens was not subject to jurisdiction created by the federal diversity statute.93 Although Congress has the power to grant federal jurisdiction over disputes involving Native parties, the Court held that doing so infringes on the authority of tribal courts and some expression of congressional intent is therefore required.94 Because the statute in question and its legislative history “ma[de] no reference to Indians,”95 the Court declined to assert jurisdiction.96
Recent Supreme Court cases have reaffirmed the call for clear congressional intent to limit sovereignty.97 These Supreme Court cases, taken together, paint a picture that is unfavorable to Tuscarora: Where the Court has construed statutes that specifically deal with Native interests, it has applied the canons to favor Native sovereignty.98 Where the Court has considered the application of general federal statutes to Native sovereigns, it has demanded a high threshold of persuasion that Congress intended to regulate.99 It has also taken an expansive view of reserved treaty rights.100 In all, these cases are more favorable to the presumption against applying general federal laws to Native nations than they are to Tuscarora’s dictum.101
B. Regulation of Native Nations Under the NLRA
Viewed through the lens of the Indian law canons, the NLRA does not regulate tribal enterprises. The Act is a general federal regulatory statute that is silent with respect to Native nations102: its text does not mention tribal government employers, and Congress has never elected to alter this silence.103 The statute’s applicability to tribal enterprises is ambiguous. Applying Cohen’s canons, it should therefore be “construed in favor of the Indians” — that is, against regulation.104
Under traditional canons of statutory interpretation, the Act’s ambiguity could be read as presumptively regulating Native nations. Section 2(2) of the NLRA explicitly exempts “the United States or any wholly owned Government corporation . . . or any State or political subdivision thereof” from regulation.105 These explicit exemptions could be — and have been — construed as foreclosing any implicit exemptions from section 2(2).106 But section 2(2) has not always been construed narrowly. The original Act was silent with respect to territorial governments as well as to Native nations. But, as the San Manuel dissent pointed out, federal courts understand territorial governments to be exempt from regulation.107 Sovereign employers were excluded from the NLRA at least in part in response to public sentiment that collective action against a public employer was “intolerable as a rejection of the sovereignty of the government.”108 It is this logic that allows courts to assume that territorial governments are exempt from the Act, and it applies with equal force to tribal sovereigns; indeed, this was precisely the logic the Board applied in Fort Apache.109
Moreover, the NLRA was promulgated at the “historical nadir of . . . American Indian political and economic power,” when Congress’s primary concern with respect to Native nations was decreasing federal oversight.110 The legislative history of the NLRA makes no reference to Native nations or to tribal enterprises;111 it was likely unimaginable to Congress that Native nations might become employers worthy of regulation.112 This history, the statute’s silence, and the absence of any legislative discussion of Native nations suggest that Congress did not intend for tribal governments to be “employers” under the Act.
The Supreme Court has required more before applying a general statute to Native nations.113 And while the inconsistency of Board and court interpretations of the Act and the absence of congressional guidance could be read as pointing either toward or against reading section 2(2) as covering Native governments, this type of ambiguity is precisely what Cohen’s canons are intended to resolve.114 Applying the presumption in favor of Native interests, the Act’s public-sector exception should be understood as excluding tribal enterprises from regulation.
C. Commercial Enterprise as Self-Government
Even assuming that tribal governments are covered under the plain language of the Act, it is a mistake to hold that regulating tribal businesses does not impinge on their sovereignty. It is under this logic that courts and the Board have held that “commercial” tribal enterprises do not fall under Coeur d’Alene’s exception for laws touching on “aspect[s] of tribal self-government.”115 This reasoning misunderstands the role of enterprise as a tool of self-government. The power to raise revenue is an “essential attribute” of sovereignty.116 But many Native nations lack a stable tax base.117 Enterprise is therefore a key source of revenue supporting many governmental functions.118 The primary purpose of tribal enterprises in this context is not simply to accumulate wealth, but rather to build “social, cultural and economic welfare” within a community.119
Tribal enterprises are controlled by tribal governments, and their leadership is responsible to a constituent community.120 In this way, tribal enterprises more closely resemble government subdivisions than private companies.121 Many Native nations have established economic development corporations managed and run by elected tribal leadership, opting for a model of “collective capitalism” over individual entrepreneurship.122 Nations have taken variations on this approach: in some, like the Mississippi Band of Choctaw Indians, tribal councils directly oversee investment and hiring decisions about business concerns, and the profits of those ventures are “reinvested or redistributed” in the community.123 In others, a central business concern — for instance, the San Manuel Casino — is overseen by a business committee elected by tribal citizens.124
Intertwined business and government structures are not typical in federal and state governments, but they do exist. Many states generate revenue through lotteries that fund education and public services125 — a parallel to gaming that the Supreme Court noted in California v. Cabazon Band of Mission Indians.126 These initiatives are understood as legitimate exercises of state power127 and are bound up in government operations. California’s lottery, for instance, is overseen by a commission appointed by the governor with the advice and consent of the state senate;128 this structure is not unlike that of the oversight of the San Manuel Casino. Adjudicators disserve tribal governments when they fail both to recognize these parallels and to understand the role that commercial enterprises play in supporting the essential functions of tribal government.129
Both Congress and the Supreme Court have recognized the interrelationship of self-government and gaming specifically. In Cabazon, the Court held that state attempts to regulate tribal gaming would “impermissibly infringe on tribal government.”130 IGRA codified Cabazon and explicitly linked the economic impact of gaming to sustainable self-government: under IGRA, tribal gaming revenues must be used to further the goals of tribal self-government.131 And as a tool for economic development, gaming has worked. In the decade after IGRA’s passage, per capita income on reservations with gaming facilities increased thirty-six percent.132 Wild financial success has been the exception, not the rule.133 But gaming has had a significant impact on some nations. At one point, profits from the Foxwoods Casino allowed the Mashantucket Pequot Tribal Nation to guarantee every citizen a home, a basic income, and a full education through graduate school.134 The San Manuel Casino allowed the San Manuel Band to provide “full employment, complete medical coverage[,] . . . scholarships, improved housing, and significant infrastructure improvements to the reservation.”135 These examples illustrate that tribal enterprises are not private; they are bound up in the operation of government.
IV.
Disputes over the applicability of the NLRA to tribal enterprises engender what Jonathan Guss has called a “negative approach to sovereignty.”136 When unions invoke the NLRA, Native nations often respond by asserting their right to be free from the Act’s regulation — and from unions generally.137 This struggle orients both labor organizing and assertions of tribal sovereignty around jurisdictional disputes and away from the ultimate value at the heart of both: building power.138 Tribal enterprises and unions are mechanisms for redistributing wealth and power to groups that have historically been denied both.139 These goals can be superficially in conflict when tribal enterprises employ large numbers of non-Natives. But this overlapping ethos presents an opportunity for unions and Native nations to work together to create a world that is better for both.
A. Tribal Law as Alternative to Federal Law
Unions’ fight to apply the NLRA to tribal enterprises rests on a false premise: that without federal law, tribal employees will lack any legal protections.140 Like other sovereigns exempted from the NLRA, Native nations have the authority to promulgate labor regulations and an economic and sovereign interest in doing so.141 Many tribal governments have developed comprehensive labor codes. The following examples provide some insight into how unions and Native nations can coexist and exhibit mutual respect — even, in some cases, allowing workers greater protection than is currently available under federal law.
The Navajo Nation provides a leading example of effective tribal-labor relations. In the 1990s, the Navajo Council promulgated a labor code that established collective bargaining rights for employees of the Navajo government and tribally owned corporations.142 The Laborers’ International Union of North America (LiUNA) subsequently campaigned to unionize the Navajo Area Indian Health Service (IHS).143 The IHS — unlike many tribal enterprises — employs a majority Native workforce.144 The union therefore served as a tool for both improving workplace conditions and amplifying the political will of tribal citizens.145 Union organizers found that Navajo law presented some advantages over federal law: Unlike federal law, the Navajo code mandates employer neutrality, thus prohibiting employers from engaging in anti-union campaigns.146 Navajo law also provides for card-check recognition, whereby a union is automatically recognized if more than fifty-five percent of workers express support by signing union cards.147 Ultimately, the IHS campaign yielded a collective bargaining agreement without Board or court involvement.148
The Mashantucket Pequot Tribal Nation provides a contrasting example.149 In 2007, the United Auto Workers (UAW) won an NLRB-administered election among majority non-Native dealers at Foxwoods Casino.150 Earlier that year, in response to both the UAW campaign and the San Manuel decisions, the Tribe, which owns Foxwoods, had promulgated a labor code that was largely hostile to unions.151 Following the election, the Tribe unsuccessfully challenged the NLRB’s jurisdiction;152 in parallel, the Tribe and union negotiated. Following this negotiation, the Tribe’s labor ordinance was amended both to allow union security agreements for contracts negotiated under tribal law and to establish a neutral third-party dispute resolution procedure.153 The ordinance retained its no-strike provision.154 The result was a legal framework resembling many public-sector collective bargaining laws, without injuring Mashantucket Pequot sovereignty.155 At least three unions have since organized under Mashantucket Pequot law.156
California’s IGRA compacting process has created a third example of how Native nations may regulate tribal labor relations. Many Native nations in California have adopted tribal labor relations ordinances (TLROs) as a condition of their gaming compacts negotiated with the state.157 TLROs promulgated in response to compacting provide an interesting model of what Professor David Kamper calls “interdependent self-determination,”158 as compacting requires unions and Native governments to work together to build a labor-relations framework that is rooted in Native sovereign power. In some cases, the resulting ordinances are more friendly to labor than many state labor laws. Although the model California TLRO prohibits most strikes, it allows them when collective bargaining has reached an impasse.159 In these cases, the TLRO also permits secondary boycotting — thus offering protection beyond that offered by the NLRA.160 The San Manuel ordinance authorizes unions to negotiate subjects beyond the “terms and conditions of employment,”161 and the Tribe’s gaming compact prohibited discrimination on the basis of sexual orientation before federal law did.162 California’s TLROs have been criticized by champions of sovereignty.163 But the underlying principle of encouraging the promulgation of tribal labor law through the compacting process presents a promising model of interdependent self-determination.
As the California and Mashantucket Pequot examples illustrate, many tribal labor codes are promulgated in response to ongoing union organizing. As a result, these codes, unlike state and federal laws, arise out of both explicit and implicit negotiations over jurisdiction, sovereignty, and worker power. This context provides an opportunity for worker advocates and tribal governments to engage in collaborative lawmaking, moving away from the “negative” approach identified by Guss and toward a positive, interdependent approach to power-building that better serves both workers and sovereignty.164 Against the backdrop of a legal landscape that is hostile to tribal jurisdiction over labor relations, unions may voluntarily recognize a tribal government’s authority to gain bargaining power in tribal enterprises.165 On the other hand, if, as this Note argues, tribal enterprises are not employers under the NLRA, the absence of federal law allows Native nations to build systems that better support workers.
Scholars have argued that the NLRA is inadequate to protect efforts to build worker power.166 Professors Sharon Block and Benjamin Sachs have called for a “clean slate” for labor law.167 Tribal labor regulation presents just such a clean slate. Several of the Clean Slate proposals have already been implemented in tribal labor codes, including improved organizer access to workers,168 card-check recognition,169 and an expanded range of bargaining subjects.170 The resolution of labor disputes under tribal jurisdiction also benefits from small dockets and culturally specific alternative dispute resolution mechanisms.171
Federal labor law’s inadequacy as a tool for building worker power therefore grants Native governments their own positive leverage — not the implicit threat that accompanies the lack of NLRB jurisdiction, but the promise of a better alternative. It is this promise of a better alternative that Professor Scott Lyons had in mind when, shortly after San Manuel, he called on Native nations to “head [the Board] off at the pass and develop even stronger labor laws and worker protections — that is, stronger unions — than what the Americans currently enjoy. Make Indian enterprises the envy of workers everywhere.”172
B. Reinforcing Sovereignty as an Act of Solidarity
Realizing Professor Lyons’s vision requires cooperation from both Native nations and labor activists. Outside of the United States, some unions and indigenous groups have come together as allies in combating the harms of capitalism and settler colonialism, recognizing the shared mission of unions and indigenous communities as power-building institutions.173 Solidarity is the core value of the labor movement; a motivating sentiment of organized labor is the conviction that “[a]n injury to one is an injury to all.”174
This value is not always reflected in American unions’ relationships to Native nations. Using language that echoes countless employer reactions to union campaigns,175 the AFL-CIO has stated that it supports “the principle of sovereignty” for Native nations while advocating for the United States government to assert control over tribal-labor relations.176 Twenty-first-century American unions have positioned themselves as tools for combating racist power structures.177 Yet even as Native income per capita is less than half of the national average,178 unions have exploited fears of “rich Indians” to garner support from non-Native workers.179 And unions, through litigation, have encouraged and benefited from courts’ racist preconceptions of “Indianness” in setting the boundaries of acceptable exercises of sovereign power.180
It does not serve the mission of the labor movement to benefit from these wrongs. As union leaders and labor activists fight for a world in which power is redistributed away from the hands of the few, solidarity requires that those efforts be situated within the broader context of genocide, systematic dispossession, and the destruction of Native sovereignty. When unions approach organizing in the tribal context as a fight over NLRB jurisdiction, they seek to build worker power at the expense of Native self-determination. But power-building is not a zero-sum game. By centering tribal organizing on disputes over Board jurisdiction rather than turning to tribal labor law as a first choice, unions miss the opportunity to engage collaboratively with Native nations to build institutions that better serve both.
Conclusion
Union organizing under tribal law is not without complications. First, courts have held that the NLRA has a broad preemptive effect, granting the Board exclusive jurisdiction over matters “arguably” within the protections of the Act.181 It is unclear how this doctrine relates to the promulgation of tribal labor ordinances, especially if tribal enterprises are not considered sovereign entities in the eyes of federal law. This question is only lightly addressed in the literature and in the federal courts182 and is the subject of future research.
Second, the prospect of relying on tribal adjudication has caused some labor leaders concern. While the interrelationship of tribal enterprises and tribal government is precisely what makes NLRB jurisdiction inappropriate, it also raises the specter of partiality and muddied motivations in administrative and judicial proceedings.183 Native nations are diverse and do not reflect any one mode of governance.184 But tribal adjudicators are no less likely to be impartial than are state adjudicators considering disputes involving state employees. Professor Wenona Singel has even suggested that “[t]ribal councils are more likely [than federal tribunals] to be sympathetic to labor interests,” as tribal adjudicators are more likely to come from working class backgrounds.185 Finally, unions and tribal governments may contract around this concern through bargaining: the UAW 2121 contract, for instance, provides for the resolution of labor disputes through a neutral panel of arbitrators who defer to the Mashantucket Pequot Tribal Council only on matters of interpreting Mashantucket Pequot law.186
Even worker advocates who are critical of the NLRA may feel anxious about departing into the unknown of tribal labor law; the NLRA is flawed, but it is at least a devil that unions know. Native nations are diverse and will continue to take myriad approaches to promulgating labor laws; some approaches will undoubtedly be restrictive.187 This is the inevitable result whenever subnational entities are permitted to function as “laboratories of democracy”188 and is equally true when states and cities legislate — yet this variability has not stopped worker advocates from calling for the regulation of labor through those more localized political entities.189 If this approach is acceptable when it comes to states and cities, it is acceptable when it comes to tribes.
As a matter of federal Indian law, NLRB jurisdiction over tribal enterprises sits on unstable foundations. As a matter of labor policy, approaching tribal union organizing through an NLRA-centric lens undermines both Native sovereignty and the values of the labor movement itself. Labor organizers and activists should reject this framework, and instead seek to build worker power while respecting Native sovereignty by organizing and bargaining within the parameters of tribal law.