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. See Cynthia Estlund, Regoverning the Workplace: From Self-Regulation to Co-regulation 27–28 (2010). 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. Workers’ power to self-govern through unionization hit an apex in the mid-twentieth century. 1787, 1863–64 (2019) (identifying both federal Indian law and unions as tools for distributing power to plural groups). Maggie Blackhawk, Federal Indian Law as Paradigm Within Public Law, 132 Harv. In the absence of federal regulation, unions and Native nations may find common ground as institutions dedicated to building power for their members. 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. Part IV examines the implications of this argument. Wildenthal, Federal Labor Law, Indian Sovereignty, and the Canons of Construction, 86 Or. 123, 155–76 (2016) Kaighn Smith Jr., Tribal Self-Determination and Judicial Restraint: The Problem of Labor and Employment Relations Within the Reservation, 2008 Mich. Skibine, Practical Reasoning and the Application of General Federal Regulatory Laws to Indian Nations, 22 Wash. Singel, Labor Relations and Tribal Self-Governance, 80 N.D. 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. Part III argues that, under federal Indian law doctrine, general federal labor statutes do not apply to tribally owned businesses.
The Supreme Court has addressed this question only in dictum, 9 × 9. A question central to many tribal-labor conflicts is whether general federal regulatory statutes, including the NLRA, apply to Native nations. Part I sets out the historical backdrop, while Part II outlines the doctrinal context. 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. See Kyoung-Hee Yu, Inclusive Unionism: Strategies for Retaining Idealism in the Service Employees International Union, 61 J. 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. Alexander Aleinikoff, Semblances of Sovereignty: The Constitution, the State, and American Citizenship 95–121 (2002) (describing the legal erosion of tribal sovereignty over time).
sovereignty that has been weakened through congressional action and Supreme Court decisions. See Colleen O’Neill, Civil Rights or Sovereignty Rights? Understanding the Historical Conflict Between Native Americans and Organized Labor 5–6 (Univ. 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 sovereignty 6 × 6. uncovers a seemingly intractable tension between two classes of power-building institutions: unions and tribes. Tribal enterprises are economic ventures “owned, sponsored, or run by a Native national government.” David Kamper, The Work of Sovereignty: Tribal Labor Relations and Self-Determination at the Navajo Nation 5 (2010). Labor organizing in tribal enterprises 5 × 5. Leonard Court, Labor Regulation, Union Avoidance and Organized Labor Relations Strategies on Tribal Lands: New Indian Gaming Strategies in the Wake of San Manuel Band of Indians v. But to many tribal governments, this invocation of a federal statute is an affront to the inherent sovereignty of Native nations. The protections of federal labor law have been crucial to building worker power in private-sector enterprises. ) workers have invoked the protections of the National Labor Relations Act 3 × 3. 10, 2020), (estimating that 915,000 of 1.1 million tribal employees are non-Native). Dev., to Steve Mnuchin, Sec’y of the Treasury 6 (Apr. Many of these (primarily non-Native 2 × 2. See, e.g., Unions Target Organizing Employees of Indian Casinos, Kitsap Sun (May 23, 1999). Since 1990, employees of businesses owned and operated by Native nations have increasingly sought to amplify their voices in the workplace through union representation.