PORTLAND, Maine — Maine’s American Indian tribes want state officials to come to the table for a potentially wide-reaching agreement about the way the tribes harvest commercial fish.
Passamaquoddy legislative Rep. Matthew Dana says members of Maine’s tribes have fished for thousands of years and deserve a bigger role in state decision making. His bill would allow for cooperative management of lucrative marine species such as lobsters, clams and baby eels.
The tribes’ request represents a broadening of an earlier drive by the tribes to get reach agreement with the state about fishing for baby eels. The Passamaquoddies and state regulators clashed last year about a state requirement that tribal elver fishermen be subject to individual quotas. The tribe eventually relented.
A video has surfaced from the set Adam Sandler’s new film, The Ridiculous Six, in which a producer tells many offended Native American actors to leave if they’re “overly sensitive.” The released cell phone video — from Native American actor Goldie Tom, obtained by the Indian Country Today Media Network — shows a heated discussion before dozens of Native Americans walked off set after feeling misrepresented.
“There’s a stereotype going on,” one of the actors says. A producer responds, “Here’s the thing: If you’re overly sensitive about it, then you should probably leave. That’s the most important thing, we don’t want to offend anyone.”
The actors try to explain why the characters’ names — specifically Beaver’s Breath and No Bra — are offensive. “We don’t need to sell our people out,” another actor says. “I understand completely, but we’re not going to change Beaver’s Breath. That’s in the movie,” the producer responds.
The crew also try to tell the actors that “Adam’s making fun of himself” more than he’s making fun of Native Americans. “Does he make fun of the Jews?” one of the actors asks to no response. “I really think you guys are the good guys,” another crew member says.
“We want to know why our advisor is leaving because he felt disrespected,” an actor says, noting the movie’s cultural advisor, Bruce, wasn’t able to talk with Sandler when he wanted to. A specific wedding scene in which a teepee wasn’t accurately decorated, which one of the female actors said was “insensitive” and “insulting,” is what allegedly hurt the cultural advisor.
Native American actor Loren Anthony, who walked off the set of The Ridiculous Six, told the Indian Country Today Media Network last week he was reluctant to take the part in the first place. “I was asked a long time ago to do some work on this and I wasn’t down for it. Then they told me it was going to be a comedy, but it would not be racist. So I agreed to it but on Monday things started getting weird on the set,” he told the website.
When news broke on April 23 that many Native Americans had walked off the set, Netflix issued the following statement: “The movie has ridiculous in the title for a reason: because it is ridiculous. It is a broad satire of Western movies and the stereotypes they popularized, featuring a diverse cast that is not only part of — but in on — the joke.”
Netflix did not immediately respond to BuzzFeed News’ request for comment about the new details that have emerged from the video. BuzzFeed News has also reached out to Anthony and Tom for comment, but has not yet heard back.
As federal officials attempt to thread the needle between restricting predatory lending and ensuring that emergency loans remain available to America’s poorest, they’re trying to create a new and adaptable system of rules. But in one state, the traditional approach to payday lending is producing a strange public relations fight between lawmakers, a governor, Native American tribes, and a mysterious D.C.-based conservative PAC.
Months after Connecticut regulators imposed a large fine on an unlicensed internet lender, a series of billboards showed up near the state’s highways accusing Gov. Dannel Malloy (D) of attacking the economic future of American Indians. The campaign made a big splash in a state that has two Indian-run casinos, and reportedly even featured a billboard in New York City’s Times Square. But nobody’s sure who is really paying for the billboards, and both Connecticut’s own tribes and the Otoe-Missouria insist they are not involved.
Connecticut is one of 15 states that uses a low interest rate cap to effectively ban payday lending. But an online lender affiliated with the Oklahoma-based tribe found a way into the Nutmeg State anyway.
The state responded with a $1.5 million fine, $700,000 of it charged personally to Otoe-Missouria tribe chairman John Shotton. A judge rejected the Otoe-Missouria’s argument that its tribal sovereignty prevented Connecticut regulations from applying to its corporate partners. It is the second time in the past couple of years that a court has found that borrowing a tribal group’s name and legal authorities does not give a payday lending company immunity from regulation. Such partnerships remain rare – just 63 out of more than 560 federally recognized tribes have opened payday lending partnerships – but they return a tiny proportion of lending revenues to actual Native Americans in exchange for the theoretically legal indemnity the partnerships afford to the businesses that make the real money.
The fines were announced in January, but the billboards have put them in the news again. The signs are just one piece of an inflammatory campaign against Malloy backed by a D.C.-area conservative nonprofit with anonymous donors. Billboards, direct mail ads, and online communications paid for by the Institute for Liberty (IFL) accuse Malloy of destroying the economic future of native peoples. The group publicly accused Malloy of “bigotry against Native Americans” and operates a website replete with vaguely-captioned stock photos of people in stereotypically tribal garb. A journalist named Johnnie Jae who managed to contact the individuals in the stock photos told ThinkProgress that “the regalia is authentic, [but] the main issue is that these families had no idea these images were being used for this campaign and were appalled.”
IFL President Andrew Langer told ThinkProgress the group has been following payday lending regulations “for a good 18 months now” and said their focus is on the sovereignty of the tribes involved in cases like the Connecticut one. “We think this tribe has a right to engage in this business, and we think the state of Connecticut has no legal authority to go after them,” Langer said.
When the legal theory around tribally-affiliated lending evaporated in a Connecticut courtroom earlier this year, it set off a strange firestorm in the state that might end up further tightening Connecticut’s laws on the loans.
State Rep. Matt Lesser (D) is sponsoring a bill he hopes will sharpen the state regulations that made the $1.5 million fine possible. Current law limits the penalties for violating Connecticut’s interest rate laws to the amount by which the customer was overcharged. “We’re taking it a step further and saying that any loan that exceeds the cap, the Department of Banking can declare it unenforceable, null-and-void,” Lesser told ThinkProgress. “We’re hoping it creates that extra incentive for these payday loansharks to respect our laws and stay out of our state.”
Because IFL is a 501(c)4 nonprofit, it does not have to disclose who is financing its attacks on Malloy. “I will neither confirm nor deny that we’ve received money from tribal industries or payday lending companies,” he said, “but I will say that if they are supporting us I wish they’d support us more.”
“They deny that it’s the Koch brothers, for whatever that’s worth,” Lesser said. “You can sort of look at who benefits and draw your own conclusion.” The two national trade associations who have the most direct interest – the Native American Financial Services Association (NAFSA) and the Online Lending Assocation (OLA) – each emphatically denied involvement to ThinkProgress, with NAFSA’s spokesperson adding that the IFL campaign has “done more harm than good” to the Otoe-Missouria’s cause.
Enforcing rate caps like Connecticut’s can be important to protecting consumers, Pew Charitable Trusts small-dollar lending expert Alex Horowitz told ThinkProgress, but they’re not the only option. “Rate caps are important and states should continue to set them. If they don’t want payday lenders to operate in the state, they should set them at 36 percent or less,” he said. But a more flexible sliding rate cap system like the one in Colorado has kept credit available in emergencies and pushed average interest rates on the loans down to 115 percent – extremely expensive, but about a third of what unregulated states routinely see.
The fallout from Connecticut’s decision is coming just as federal regulators are in the process of writing the first-ever national code for payday lending, auto-title lending, and other forms of expensive small-dollar credit.
The fines are “kind of a traditional tactic,” Horowitz said, “but they’re doing it very aggressively.” Applying that classical enforcement approach gets a bit slippery when the lender is attached to a tribe. The Connecticut dispute, Horowitz said, “underscores why the CFPB’s rules are so important. While there’s been some uncertainty in the courts about how to handle state-tribe disputes, it’s clear that a federal rule from the Consumer Financial Protection Bureau trumps the other ones and would set a floor on rules for all of these.”
With its new regulations, the agency seeks to balance genuine consumer demand for emergency loans with the public interest in preventing the most predatory and abusive features of the traditional business model. While many states have taken Connecticut’s approach of preventing payday lenders from operating in any form, a handful of others have attempted the kind of hybrid system that CFPB is now aiming to build into federal law. The final rules are years away, but they will likely be modeled on the approach that states like Colorado take: limit the cost of these loans, prohibit the most egregious fine-print tricks lenders use, but make sure this lending remains economically viable so that desperate low-income people have somewhere to turn.
The idea that tightly-regulated payday loan shops can be a genuinely valuable service for the poor may need a lot more time to sink in in places like Connecticut that have decided a ban would be better.
“When you talk to folks [about] how they wound up paying these back,” Lesser said, “it’s often by doing the things they probably should’ve done in the first place. Turn to family and friends and existing resources to make up that difference.”
“Poverty stinks. It’s tough. But eventually people are going to have to reckon with the cycle of poverty and debt these guys are foisting on them.”
A brother and sister fight over members who were adopted to start ventures.
Alturas Rancheria’s tribal administrator Wendy Del Rosa, left, poses with former Bureau of Indian Affairs official Wayne Smith. Del Rosa says adding five tribe members through adoption was a mistake. Paul Kitagaki Jr./The Sacramento Bee
By The Associated Press
ALTURAS, Calif. — A tiny, casino-owning Native American tribe in Northern California has pursued an unusual strategy to boost revenue: adoption.
The Alturas Rancheria in Modoc County has adopted five members – two of whom are non-Indian – in recent years, the Sacramento Bee reported.
The new members have come with ambitious plans to make money, including a cigarette manufacturing plant. But the plans have fizzled out, and the adopted members have contributed to conflict among the tribe, according to the Bee.
The fight has landed in state and federal courts, and it recently required the U.S. Postal Service to decide which of the feuding members was entitled to receive the tribe’s mail.
The adoption of non-Indian people by a Native American tribe is unusual and raises concerns, experts said.
“It’s not necessarily against the law to adopt a white person. But if there’s no historical connection to the tribe, it sounds like a scam to take advantage of their membership for business reasons and manipulate the tribal government,” Howard Dickstein, one of the nation’s foremost tribal lawyers, told the Sacramento Bee.
The Alturas Rancheria has between three and seven members depending on who is counting, making it among the smallest of the 566 federally recognized tribes.
Siblings Phillip and Wendy Del Rosa are the only two current tribal members who can trace their blood line to an original member of the 20-acre rancheria. Phillip Del Rosa said the tribe wanted to diversify its investments, which included the Desert Rose Casino. In 2003, it adopted Darren Rose, a Karuk and Shasta Indian, to build a second casino at a much better location off Interstate 5 in Yreka.
It later adopted Calvin Phelps, a cigarette manufacturer from North Carolina. Phelps was sentenced to 40 months in prison in 2014 after pleading guilty to federal fraud charges involving his North Carolina tobacco business. Wendy Del Rosa said Phelps remains a member of the tribe.
But the second casino, cigarette business and other ventures put forward by the tribe’s adoptees did not pan out, and the adoptees have now become part of tribal conflict, the Bee said.
Phillip Del Rosa and his sister are now feuding and have formed alliances with adoptees, the Bee reported. At stake is about $2 million a year in revenue, including $700,000 a year from the tribe’s Desert Rose Casino.
As the conflict goes on, federal and state officials have frozen hundreds of thousands of dollars in funds for the tribe. U.S. Postal Service Administrative Law Judge Gary E. Shapiro ruled last month that Rose is entitled to receive the tribe’s mail.
Wendy Del Rosa said that looking back now, the adoptions were a mistake.
“When Phillip and I took over, we didn’t know what we were doing,” she said. “We should never have adopted anybody into the tribe.”
Seattle billionaire Paul Allen is financing a campaign that could ask Washington voters to impose penalties for selling animal parts from certain endangered species.
The proposed ballot measure aims to protect 10 keystone species: elephants, rhinoceroses, tigers, lions, leopards, cheetahs, pangolins, marine turtles, sharks, and rays.
Conservation groups say they are among the most trafficked or poached species worldwide. They say illegal wildlife trafficking is the fourth largest transnational crime in the world, delivering ill-gotten profits of $20 billion annually.
Sandeep Kaushik is a political consultant for the initiative. He said it would place in state law tough penalties beyond those imposed by federal anti-trafficking laws. People caught buying or selling animal parts or products from the 10 species covered by the proposed law would face up to five years in prison and a $10,000 fine.
Backers of the initiative say the best way to protect these endangered animals is to cut off the market where poachers can profit.
“The problem has been getting worse and we’re seeing just in the last few years more species being put at risk,” Kaushik said.
Sam Wasser, director of the University of Washington’s Center for Conservation Biology, said this initiative would help reduce wildlife trafficking in Washington state. He said right now it’s hard to police trafficking once items cross into the U.S.
“In a state like Washington where it is such an important port for materials coming in from Asia, it’s really quite critical that our state agents have the ability to apprehend the ivory,” Wasser said. “Much of the laws now refer to ivory passing across international borders, but state borders — there’s nothing.”
Wasser said the U.S. is one of the largest markets for wildlife products in the world.
“One of the biggest things is trying to deal with the demand side,” Wasser said. “It’s very, very important to have steps all along the way to have steps to increase the consequences if you’re caught and to make it harder for you to get the product in the first place.”
Allen co-founded Microsoft. His conservation philanthropy has been brought into question in 2013 when a Seattlepi.com investigation and lawsuits said his sister, Jody Allen, made employees help her smuggle giraffe bones and ivory out of Africa.
More recently, a bill in the Washington Legislature to increase trafficking penalties for ivory and rhino horns was met with pushback from the National Rifle Association, the Seattle Symphony, and antique collectors, according to The Seattle Times, which reported Sunday on the initiative proposal.
The measure’s backers say they’ve written the initiative to protect trade for antiquities and estate sales, musical instruments, and scientific and research purposes.
“We made sure that this was about targeting those people that are really a part of this international poaching and trafficking problem that is really putting all of these animals at risk,” Kaushik said.
The Humane Society of the United States, the Seattle Aquarium and the Woodland Park Zoo have also endorsed the initiative.
Kosher said New York and New Jersey have also recently implemented similar laws, which have helped curtail ivory and rhino horn trafficking.
Petitioners for the initiative must gather 246,372 valid signatures by July 2 for it to qualify for the November ballot.
SEATTLE — The Makah Indian tribe has the legal right to hunt gray whales, but some say the practice is cruel and outdated and should no longer be allowed.
It’s been a decade since the Makah tribe in Neah Bay last killed any gray whales, but tribal leaders have announced plans to hunt 20 whales over the next five years.
The tribe says the killing is for cultural reasons, and for 2,000 years it has been a central part of who they are. But many people who attended a Monday public hearing on the matter say the world has lots of examples of cultural traditions that are plain wrong.
Now the National Oceanic and Atmospheric Administration must make their decision on the law and the numbers.
European and Russian hunters nearly wiped out the gray wale population, dropping it from 20,000 to 2,000. Gray whales were then placed on the endangered species list, and the population has since returned to 20,000.
Federal regulators have yet to take a position on the Makah plan, but officials listened to both sides during an emotionally charged public hearing on Monday.
“We did not pick a preferred recommendation because we knew people feel very strongly about that. And we didn’t want to pre-judge it,” NOAA’s Michael Milstein said.
While some turned out Monday to voice support for the tribe, most of the speakers steadfastly oppose the hunt.
“They should perhaps consider what some of the other tribes have done, and honor them in a different way,” said Katherine Pruitt.
Others, including members of the Chippewa tribe, voiced support for the Makah plan.
“It’s in their treaty rights. You know, that’s the big thing. We need to honor it,” said Jeff Powell.
No members of the Makah tribe attended Monday’s meetings. The second and final public hearing will be held Wednesday evening in Port Angeles.
Staci Emm, left and Loretta Singletary have been named to a new team studying water management issues throughout the southwestern U.S.(Photo: Submitted photo)
Schurz native Staci Emm and University of Nevada, Reno professor and Interdisciplinary Outreach liaison Loretta Singletary, a former extension coordinator at the Yerington office of the UNR Cooperative Extension, have been named to a new team that has been formed to integrate research and Extension to help Great Basin and Southwestern tribal communities develop plans, policies and practices for sustainable agriculture and water management.
The program is part of a competitive, $4.5 million grant awarded by the U.S. Department of Agriculture’s National Institute of Food and Agriculture.
The five-year program, Native Waters on Arid Lands, brings together faculty and students from three of the West’s 1862 land-grant institutions — University of Nevada, Reno, University of Arizona and Utah State University; First Americans (1994) Land-Grant Consortium (FALCON); Federally Recognized Tribal Extension Program instructors in Nevada and Arizona; Desert Research Institute; U.S. Geological Survey; and Ohio University. The program team includes tribal members from Nevada, Utah, Arizona and New Mexico.
“This is the stuff I love to do,” Emm said. I love working with people and doing programs that actually are on the ground. The program has challenges, and it has so much potential.”
American Indian farmers and ranchers provide an important economic base for the arid lands of the Great Basin Desert and American Southwest. Declining water supplies, urbanization, ecosystem change and federal Indian policies challenge American Indian agriculture for ceremonial practices, sustenance and trade.
Singletary said the group will be working with every tribe in Nevada, a couple in Utah, the Navajo and Hopi nations in Arizona and several small tribes in northern New Mexico.
“The foundation of the project is working with tribal communities through focus groups and tribal engagement about what their challenges are and what their ideas are for possible ways and strategies to use their water,” Singletary said.
Singletary said American Indian land tenures have presented challenges to tribes and impacted their ability to manage water and other natural resources well.
“Water is a precious natural resource and also has profound cultural and spiritual significance to tribal peoples,” John Phillips, executive director of FALCON, a professional association of 1994 land-grant administrators, faculty staff, said. “This program will help Native American communities in the Great Basin and southwest region carry on their historical role as strong environmental stewards for the Earth and its natural resources.”
“The Native Waters on Arid Lands program team will work directly with tribal members to identify challenges to agriculture from diverse and competing demands for water,” Maureen McCarthy, program director and director (interim) of the University of Nevada, Reno’s Academy for the Environment, said. “These issues are complex and transcend ecological and sociopolitical boundaries. Knowledge generated and shared through this program will build capacity among tribal and nontribal organizations to respond to a changing climate.”
Program elements include developing climate scenarios and water supply projections for tribal lands; testing the production efficiency of existing and future water systems; assessing the effects of Indian land tenure on water management and agriculture; considering the applicability of alternative water management policies; and integrating paleoecological data with tribal knowledge to understand the impacts of a changing climate.
Other senior members of the Native Waters integrated program team include Singletary, professor and interdisciplinary outreach liaison with University of Nevada Cooperative Extension, leading collaborative research and Extension outreach; Emm, associate professor and Extension educator with University of Nevada Cooperative Extension, leading outreach and coordinating the tribal advisory council and annual tribal summits; Michael Dettinger, senior hydrologist with the U.S. Geological Survey, leading climate research; Beverly Ramsey, executive director of Division of Earth and Ecosystem Sciences with Desert Research Institute, leading the traditional ecological knowledge research; Bonnie Colby, professor with the Department of Agriculture and Resource Economics with University of Arizona, leading water market economics research; Trent Teegerstrom, Arizona Federally Recognized Tribal Director and Extension specialist, coordinating tribal education and outreach in Arizona; Kynda Curtis, associate professor in the Department of Applied Economics at Utah State University, leading agricultural production economics research; Eric Edwards, assistant professor in the Department of Applied Economics at Utah State University, leading property rights economic research; Derek Kauneckis, associate professor with Ohio University’s Voinovich School of Leadership and Public Affairs and affiliate faculty member with the Desert Research Institute, leading water rights policy research.
Tribal members of the Native Waters on Arid Lands program team include Emm (Washoe and Paiute American Indian and Yerington Paiute tribal member); Ramsey (Eastern Band of the Cherokee Nation); Curtis, Cherokee descendant; Gerald Moore (Navajo) and Arizona Federally Recognized Tribal Extension Program for Arizona educator, coordinating tribal engagement with Navajo and Hopi tribes; Reggie Premo (Duck Valley Shoshone Paiute) coordinating tribal engagement with Nevada tribes; Vicki Hebb (Cheyenne River Sioux Tribe of South Dakota) organizing and facilitating the tribal summits; administrators, faculty, staff and students from the 1994 tribal land-grant colleges and universities; and American Indian water specialists, cultural advisors, agriculturalists and educators from the region.
“We look forward to working with communities throughout the Great Basin and American southwest to help manage water resources for our future generations,” Phillips said of the collaboration.
The Northern Arapaho Tribe is seeking to exclude one of its members from participating in a lawsuit over the boundary of the Wind River Indian Reservation.
Andrew Yellowbear, Jr., is serving a life sentence in state prison in connection with the 2004 murder of his young daughter in Riverton.
State and federal courts have rejected Yellowbear’s claim that the state lacked jurisdiction to prosecute him on the grounds that Riverton remained Indian County. He’s seeking to get involved in the current boundary dispute in yet another attempt to get his conviction overturned.
A federal appeals court in Denver is hearing the state of Wyoming’s appeal of the U.S. Environmental Protection Agency’s determination that more than 1 million acres around Riverton remain legally “Indian Country.”
The EPA recently determined that a 1905 act of Congress that opened reservation lands to settlement by non-Indians didn’t serve to remove the land’s legal status as Indian Country. The Northern Arapaho and the Eastern Shoshone Tribe share the reservation in central Wyoming.
Aided by Diane Courselle, a law professor at the University of Wyoming, Yellowbear recently filed papers seeking to file a “friend of the court” brief in the current boundary dispute.
Courselle, in her proposed brief in the case, says the boundary issue is, “crucial to the determination of whether Wyoming had jurisdiction to prosecute Mr. Yellowbear or whether the United States has exclusive jurisdiction.”
The EPA addressed the boundary issue in approving an application from the tribes to treat the reservation similarly to a state in terms of consulting with them about air quality issues. Wyoming, as well as Riverton and Fremont County, are opposing the federal agency’s decision, saying it would have drastic effects on taxation and provision of government services in the disputed area.
Although Yellowbear seeks to side with the tribes’ position that the disputed land remains in the reservation, both tribes filed notice that they oppose his involvement. The Northern Arapaho Tribe filed a brief and Riverton and Fremont County filed a joint brief on Friday spelling out their opposition to his involvement.
“We do not want our legitimate efforts to protect our reservation boundaries to be aligned with someone who does not have the tribe’s best interests at heart and is simply trying to get out of jail,” said Darrell O’Neal, a member of the Northern Arapaho Business Council, in a statement.
Dean Goggles, chairman of the Northern Arapaho Business Council, issued a statement saying that Yellowbear “is just muddying the waters and offers not new facts or viewpoints.”
Efforts to reach Courselle were unsuccessful Friday. Efforts to reach a lawyer for the Eastern Shoshone Tribe were also unsuccessful.
In their briefs, the Northern Arapaho, Riverton and Fremont County state that federal law is clear that Yellowbear’s state court conviction would stand even if the courts rule that Riverton remains Indian Country.
As a state prisoner, Yellowbear has filed several legal challenges seeking access to Native American religious materials and facilities. The American Civil Liberties Union represented Yellowbear in a 2008 federal lawsuit against the Wyoming Department of Corrections that secured his right to have eagle feathers in prison.
President Barack Obama and First Lady Michelle Obama met with youth from the Standing Rock Sioux Tribe in June 2014. Photo from Center for Native American Youth / Facebook
Indianz.com
The White House is hosting the first-ever Native youth conference this summer.
The White House Tribal Youth Gathering will take place July 9 in Washington, D.C. American Indian and Alaska Native youth will meet with Obama administration officials and the White House Council on Native American Affairs to talk about their issues and needs.
The conference is open to Native youth ages 14-24. Applicants must complete the Gen-I Native Youth Challenge to be eligible to attend.
Applications are due May 8 so Native youth have just a couple more weeks to engage community as part of the challenge.
“The Tribal Youth Gathering, a collaboration between the White House and Unity Inc., will continue to build upon the President’s Generation Indigenous (Gen-I) initiative and his commitment to improve the lives of Native youth across the country,’ the White House said today. “President Obama launched the Gen-I initiative at the 2014 White House Tribal Nations Conference to focus on improving the lives of Native youth through new investments and increased engagement. This initiative takes a comprehensive, culturally appropriate approach to ensure all young Native people can reach their full potential.”
The National Labor Relations Act (“NLRA”) was enacted by Congress in 1935. The Act, also known as the Wagner Act after its champion, New York Senator Robert F. Wagner, passed the Senate in May 1935, the House in June 1935, and was signed into law by President Roosevelt on July 5, 1935. The Act’s purpose was to encourage workers’ collective bargaining rights and protect them from retribution for organizing unions. The Act created the National Labor Relations Board (“NLRB”), a new agency, to enforce the new policy.
Despite the fact that Congress had enacted sweeping pro-Indian legislation in the form of the Indian Reorganization Act of 1934 in the previous year, the NLRA did not mention Indian tribes at any point. Until 2004, Indian tribes and tribally owned businesses were generally assumed to be beyond the jurisdiction of the labor legislation with few exceptions.
In 2004, the NLRB reversed that assumption with a ruling that it had jurisdiction over the San Manuel Casino pursuant to the NLRA. The matter originated from a complaint filed with the NLRB by UNITE HERE!, a large California hotel and restaurant workers’ union, which complained that the Tribe had allowed a competing union, the Communication Workers of America, access to the casino to organize its employees while denying UNITE HERE! representatives access to the site. The Tribe moved to dismiss the proceeding for lack of jurisdiction.
The NLRB held that it had jurisdiction, reasoning that (1) the NLRA applies to tribal governments by its terms, despite any express reference to Indian tribes, (2) the legislative history of the NLRA did not suggest a tribal exception, and (3) federal Indian policy did not preclude the application for the NLRA to the commercial activities of tribal governments. The board found an unfair labor practice and ordered the Tribe to allow UNITE HERE! access to the casino workers.
The Tribe appealed the ruling to the United States Court of Appeals for the District of Columbia Circuit. UNITE HERE! intervened as a defendant. The Court determined that the question of the NLRA’s application to Indian tribes turned on two related questions: (1) whether application of the NLRA to San Manuel’s casino would violate federal Indian law by impinging upon protected tribal sovereignty, and (2) whether the term “employer” in the NLRA reasonably encompasses Indian tribal governments operating commercial enterprises.
In resolving these questions, the D.C. Circuit recognized the tension between the Supreme Court’s 1960 holding in Federal Power Commission v. Tuscarora Indian Nation, that “a general statute in terms applying to all persons includes Indians and their property interests,” and other Supreme Court precedents favoring tribal sovereignty, including the 1978 Santa Clara Pueblo v. Martinez holding that any impairment of tribal sovereignty required a clear expression of Congressional intent in the statutory text. The Court resolved this tension by stating that “if the general law relates only to the extra-governmental activities of the tribe, and in particular activities involving non-Indians, then application of the law might not impinge on tribal sovereignty.” Ultimately, the Court held that the impact of NLRB jurisdiction on the Tribe’s sovereignty was “negligible in this context, as the Tribe’s activity was primarily commercial,” that the Board’s decision as to the scope of the term “employer” in the NLRA was permissible, and affirmed the Board’s jurisdiction over the casino.
More recently, in Michigan, the Saginaw Chippewa Indian Tribe has appealed an NLRB ruling that the Tribe violated the NLRA. In October 2014, the NLRB ordered the Saginaw Chippewa Tribe to reinstate an employee allegedly fired for union organizing at the Tribe’s casino. The Tribe appealed to the Sixth Circuit Court of Appeals. If that Court rules that the NLRB lacks jurisdiction over the Tribe, that decision would create a circuit split and likely end up before the United States Supreme Court.
The NLRB website states “The Board asserts jurisdiction over the commercial enterprises owned and operated by Indian tribes, even if they are located on a tribal reservation. But the Board does not assert jurisdiction over tribal enterprises that carry out traditional tribal or governmental functions.”
In January, Kansas Republican Senator Jerry Moran introduced S.248, the “Tribal Labor Sovereignty Act of 2015.” The Bill would amend the NLRA to exclude “any enterprise or institution owned and operated by an Indian tribe and located on its Indian lands.” At its February 2015 Executive Council Winter Session, the National Congress of American Indians, the largest Native American policy organization, passed a resolution in support of the bill. A similar bill has been introduced in the House of Representatives. The Senate Indian Affairs Committee will hold a hearing on the bill later this month.
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