As has been written in these pages, the National Labor Relations Board (NLRB) decision in San Manuel Indian Casino and Bingo is troubling and arrogant and it violates the most sacred tenet the U.S. government claims to honor: The consent of the governed. The NLRB ruled that when tribes operate "typically commercial" enterprises, employ a large number of non-Indians and entertain non-Indian customers, those enterprises are subject to NLRB jurisdiction. The battle over this latest assault on tribal sovereignty will likely take on a life of its own and reach a judicial or legislative conclusion years from now.

Regardless of the outcome in the courts or in Congress, the issue of labor is one that the tribes must face. Every sovereign, no matter how small or great, employs labor. As a colleague of mine remarked, "Labor is like a force of nature; even the U.S. government must deal with it." This organic view of labor means that the issues raised by the NLRB;s decision need not be framed as union or anti-union. Rather, the issue is one of unjustified and unwarranted imposition of federal power. While the larger battle grinds on, tribes have an opportunity to simultaneously flex and preserve their sovereignty by taking charge of the situation within their territories by considering several actions.

Legislation: Tribes, unlike most private employers, can pass laws governing their territories. The more closely a tribe can tie the employer-employee relationship to an expression of its self-government, the more difficult it will be for a federal court to assert jurisdiction. For example, if tribal law establishes detailed wages and working conditions, the tribe would have a strong argument that enforcement of a collective bargaining agreement that is in conflict with the tribe's laws will impermissibly infringe on tribal self-government. Politicizing and codifying those rights that are usually viewed in economic terms will more clearly illustrate the unnecessary federal intrusion. (While the NLRB asserted its jurisdiction in spite of the San Manuel Tribe's labor relations ordinance, it is unlikely that the NLRB will have the last say on this matter.) There may be other creative methods to strengthen the ties between self-government and conditions of employment.

Evaluation: Only 10 percent of the private sector is unionized. Employers historically subject to federal labor laws operate in a manner that often makes unions a moot point. Federal jurisdiction or not, all employers, including tribes, can benefit from some self-analysis: Are my employees happy? What are their complaints? Do I provide a meaningful grievance procedure? Do I provide competitive wages? Are work rules and policies fair? Are my benefit packages competitive? Self-analysis will require the tribe to scrutinize itself critically, which may be uncomfortable, but is the sort of work that self-sufficiency and sovereignty often require.

Communication: Dispelling ignorance is a task with which tribes have a long familiarity. Tribal governments have an exceptional story to tell their employees. In addition to many tribes' commitments to being the "employer of choice" for a region, tribes also have a non-economic story as well. Unlike corporations and other entities, tribes are diverse and unique with a history, culture and character that most employers cannot begin to rival. Sharing the mission and vision of the tribe makes it more likely that employees will maintain their fidelity to a tribe's sovereignty.

Employees entering Indian country to work for a tribe are essentially another political and economic constituency. When nations are in conflict, as the tribes and the U.S. are now in many instances, each side seeks the support of relevant constituencies. Employees in Indian country will choose the "better" nation for them, based on a variety of factors. Ultimately it is not going to be the NLRB or the federal government that decide how labor issues get resolved on reservations. It's going to be in large part decided by the tribes and their employees. By exercising their rights of self-government and sharing their positive attributes and strengths, tribes can oust federal jurisdiction by rendering it unnecessary.



Paul Stenzel is an attorney practicing Indian law with the firm of von Briesen & Roper, s.c. in Milwaukee, Wis. He served for eight years as in-house counsel at the Stockbridge-Munsee Community Indian Tribe in Shawano County, Wis.