April 16, 2018

S. 140, Tribal Labor Sovereignty Act

NOTEWORTHY

Background: On May 8, 2017, the Senate passed S. 140 by unanimous consent. On January 10, 2018, the House passed S. 140 with an amendment by a vote of 239-173. As passed by the Senate, the bill amends the White Mountain Apache Tribe Water Rights Quantification Act of 2010 to change how WMAT Settlement Funds may be used. The House amended the bill to add language identical to that in S. 249, a bill related to tribal leasing introduced by Senator Tom Udall and passed by the Senate under unanimous consent. The House-amended bill also includes H.R. 986, which is nearly identical to S. 63, the Tribal Labor Sovereignty Act, introduced by Senator Jerry Moran and passed by the Indian Affairs Committee by voice vote.

Floor Situation: On April 12, 2018, Majority Leader Mitch McConnell filed cloture on the motion to concur in the House amendment to S.140. The cloture vote will occur at 5:30 p.m. Monday, April 16.

Executive Summary: The legislation makes changes to uses of the White Mountain Apache Tribe Settlement Fund and to certain tribal leases. It also changes the status of Indian tribes and tribe-owned enterprises under the National Labor Relations Act’s definition of an employer. The goal of the bill is to treat tribal governments and the federal, state, and local governments the same under the act. 

OVERVIEW OF THE ISSUE

S. 140 addresses a number of issues related to tribal sovereignty, ranging from disputed water claims to the treatment of tribal government employees.

Following a dispute over water rights, the Claims Resolution Act of 2010 authorized the White Mountain Apache Tribe to construct a rural water system in Arizona. The project includes a dam, reservoir, treatment plant, and pipelines to deliver the water. Completion of the system may require additional construction and costs. S. 140 clarifies for the Interior Department that the WMAT Settlement Fund, also authorized under the 2010 act, may be used to cover these costs, subject to the project’s authorization level.

Additionally, the bill restores the exempt status of Indian tribes and tribe-run enterprises under the definition of “employer” in the National Labor Relations Act. The NLRA, which applies to most private-sector employers, is intended to prevent employer-employee disagreements that disrupt the flow of commerce and to guard against unfair labor practices. It gives workers the right to organize and collectively bargain and to decline participation in labor organizations. The NLRA also sets a dispute resolution process for employees and employers.

Certain entities are exempt from NLRA’s definition of “employer”: the United States government; corporations the federal government owns in whole; Federal Reserve Banks; state and local governments; anyone covered under the Railway Labor Act; and labor organizations and their officers. Until 2004, Indian tribes and tribe-owned enterprises on Indian lands were exempt from the NLRA. That year, however, the National Labor Relations Board ruled that Indian tribe employers would be subject for the first time to the NLRA, overturning more than 70 years of legal precedent. S. 140 would reverse this decision and add Indian tribes and tribe-run enterprises on Indian lands as exempt entities. The bill would treat tribal government employers and federal, state, and local government employers consistently under the NLRA.

NOTABLE BILL PROVISIONS

Section 1 – Use of funds in WMAT settlement fund for WMAT rural water system

Authorizes the secretary of the interior to use all or a portion of the $78 million White Mountain Apache Tribe Settlement Fund for the completion, operation, and maintenance of the WMAT rural water system. This would resolve a question arising from the 2010 Claims Resolution Act about whether these funds could be used for this purpose.

Section 2 – Expansion of Pueblo of Santa Clara land eligible for 99-year lease

Amends the Indian Long-Term Leasing Act to allow the Pueblos of Santa Clara and Ohkay Owingeh to lease their tribal trust and restricted fee lands for up to 99 years, subject to the approval of the secretary of the interior. Currently the authority extends to these tribes’ trust lands only. Tribal trust lands are owned by the federal government, and Native Americans have certain use and enjoyment rights. Restricted fee lands are owned by the individual Native American or tribe, but with restrictions against sale or encumbrance.

Section 3 – Definition of employer

Amends section 2 of the NLRA to add federally recognized Indian tribes, tribal governments, and Indian-owned enterprises and institutions on Indian lands to the list of entities exempt from the definition of “employer” under the act.

ADMINISTRATION POSITION

The administration has not taken a position on the bill at this time.

COST

CBO has not produced a cost estimate for S. 140, as amended by the House. It has scored pieces of legislation that are identical or very similar to section 1, section 2, and section 3 of S. 140. For each, CBO estimated the legislation would not affect direct spending or revenues.