January 10, 2018
Floor Statements

Mr. SCOTT of Virginia. Mr. Speaker, I rise in opposition to S. 140. 

   As has been pointed out, buried in section 3 of this otherwise noncontroversial water and lands bill is the text of H.R. 986, the Tribal Labor Sovereignty Act. This nongermane provision would strip thousands of employees of their rights and protections under the National Labor Relations Act at Tribal enterprises located on Tribal lands. 

   At issue in the Tribal Labor Sovereignty Act are two solemn and deeply rooted principles: 

   First, the right that Indian Tribes possess in matters of local self-governance; 

   Second, the rights of workers to organize unions, bargain collectively, and engage in concerted activities for mutual aid and protection. 

   Rather than attempting to balance these two important principles, the bill chooses sovereignty for some over the human rights of others. I would note that the approximately 75 percent of workers employed at Tribal casinos are not members of the Tribes running the casino, but this bill would strip labor rights of hundreds of thousands of these workers as well as those who are actually members of the Tribes. 

   In doing so, this legislation would abandon the carefully drawn balance between Tribal sovereignty and workers' rights that was adopted in the San Manuel decision by a Republican-led National Labor Relations Board in 2004. Perhaps prompted by litigation, the board ruled that the National Labor Relations Act will only apply if it does not impact the exclusive rights of self-governance in purely intramural matters or abrogate rights guaranteed by treaties. 

   The San Manuel decision is based on legal principles governing Federal laws of general applicability with respect to Indian Tribes that have been upheld by appeals courts for over 30 years. That is why courts have ruled that Tribes must comply with labor and employment laws such as the Fair Labor Standards Act; the Occupational Safety and Health Act; the Employee Retirement Income Security Act, ERISA; and the employer mandate of the Affordable Care Act. 

   Yet this bill singles out the National Labor Relations Act on the grounds that Tribes must be given parity with State and local governments which statutorily are exempt from the NLRA. Maybe States and localities should have been considered, but the statutes are clear that they are exempt. 

   This is not a reason why Tribes should be exempt from an otherwise generally applicable law. Furthermore, State and local governments are covered under title VII of the Civil Rights Act; whereas, Tribes are expressly exempt.

   For employees of Tribal enterprises, therefore, unions are the sole protection under Federal law against discrimination, including sexual harassment, because they can negotiate a collective bargaining agreement that enforces employees' rights to be free from such conduct. 

   Democrats and Republicans together have insisted that our trading partners abide by and enforce basic labor rights anytime we do a trade deal. And Congress has repeatedly required these obligations in trade agreements, but today the House will vote on a bill that takes away the assurance that employees have for the freedom of association if they are employed in many Tribal casinos. 

   This creates a fair question: Would this legislation place the United States Government in breach of any of the trade agreements that are now in effect? According to the International Labor Organization, in an opinion on a similar bill a few years ago, it would, in fact, put us in breach of trade agreements. 

   We should be able to fashion compromises that, frankly, protect both workers' rights and Tribal sovereignty, but what is before us today fails that test. There is no principled basis for stripping hundreds of thousands of workers from the right to join a union and negotiate better wages simply because they happen to work in a commercial enterprise on Tribal lands. 

   Mr. Speaker, I urge a ``no'' vote on the bill.