Amending the White Mountain Apache Tribe Water Rights Quantification Act of 2010
Floor Speech
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Mr. MORAN. Mr. President, thank you for your remarks on the floor earlier this afternoon. I rise to have the Senate consider and to have a conversation about S. 140, a package of three bills that will have positive benefits on Indian Country.
Two bills in the package--the Senator from Arizona was talking about one of them. Two bills in this package, S. 140, the White Mountain Apache Water Rights Quantification Act, sponsored by Senators Flake and McCain, and S. 249, a bill to provide that the Pueblo of Santa Clara may lease for 99 years certain restricted land, sponsored by Senators Udall and Heinrich of New Mexico, have already received unanimous consent from the Senate.
The third bill in the package, the Tribal Labor Sovereignty Act, was attached as a message from the House to S. 140 in January. I am the sponsor of this legislation in the Senate, which should be noncontroversial in a chamber where Members of the Senate profess to be supportive of Tribal sovereignty. This concept has been around since 2005, and I became interested in this topic and introduced legislation in 2013--now 5 years ago.
I suppose all of us, from time to time, may introduce legislation that is a messaging point or a talking point. In this and in most every other case, when I introduce legislation I work hard to see that it becomes law. I work in a bipartisan way to bring Republicans and Democrats together and for rural and urban Members of the Senate to work together. This is an example of that. There is nothing about this legislation that is a messaging to Tribes or to others. It is not an introduction of a piece of legislation designed to make a point. It is a piece of legislation designed to become law.
This bill has passed the House and is now pending here in the Senate today. I hope to use this opportunity to convey to my colleagues that this legislation is not a radical proposition but rather a restoration of the sovereign status of Tribal governments. Indeed, by moving forward with this legislation, we can enshrine the status quo that existed for 70 years after the passage of the National Labor Relations Act, until the National Labor Relations Board stripped Tribes of their government status under the NLRA. By making explicit that Tribal governments are distinct and sovereign and capable of making their own decisions, we will correct a decade-old error made by the NLRB.
(Mr. YOUNG assumed the Chair.)
The Tribal Labor Sovereignty Act is simple and narrow. It amends the NLRA to exempt tribally owned entities operated on tribally owned lands--no more, no less. Businesses owned by individual Tribal members or operations off Tribal lands still remain subject to the scrutiny of the NLRB.
Many of those who have expressed opposition to this bill will say: I support Tribal sovereignty--but. If you have to qualify your support for Tribal sovereignty in order to protect your own interests instead of the Tribes, then, no, you really don't support Tribal sovereignty. Tribal sovereignty is something we believe in. Tribes of Native Americans--those who inhabited this country before our ancestors arrived--were granted sovereignty over their own businesses decades or generations ago.
Senators have voiced on the Senate floor that this is not about sovereignty but about an attack on labor. That is simply not true. One accusation is that this bill is truly an attack on labor because it doesn't provide exemptions from other Federal legislation. If my colleagues are objecting to this bill because of its narrow scope, then will they support making it broader? I think the answer to that is clearly no. If they are serious about that, then let's have a conversation.
I am not new to Tribal issues. My introduction to this topic began when I was elected to the Kansas State Senate a long time ago now. I was a freshman member. I happened to have a law degree and was assigned by the leadership of the State senate to conduct negotiations and to chair a committee on Indian gaming in Kansas. I spent the next 2 years in front of a Federal district judge, negotiating an agreement under IGRA for Indian gaming in Kansas.
Other examples of our efforts include the passage of general welfare exclusion legislation with Senator Heitkamp of North Dakota that passed this Senate and became law several years ago now. Again, it was trying to make clear that Tribal decisions made on behalf of Tribal members are much better decisions than those made by Congress but especially by those made by agencies and bureaucracies--in that case, the IRS; today, the National Labor Relations Board.
We have also worked on other issues related to Tribal interests, including a Carcieri fix and the ability to bring land into trust-- issues that are important to Tribes across the country. My point is, this is another piece of legislation in a series that the Senate has pursued in which we are doing right by those who preceded us as our ancestors settled in America.
I don't think that the critics of this bill want Tribal governments exempt from the other statutes either. No, the objection isn't about the sovereignty granted by this legislation. It is not that it doesn't go far enough; it is what it does grant sovereignty for.
I would ask my colleagues: If the Senate denied Tribal sovereignty in this instance, what Tribal rights are going to be targeted next? The point is, if you are for sovereignty, you are for sovereignty in all circumstances, and you don't have the ability to choose. It is based upon a legal and moral obligation that we have to Tribes here in the United States.
Others have criticized this legislation. They have said that non- Tribal members cannot vote for Tribal governments, and therefore this is different from States. Again, this legislation puts Tribes in the same position, under NLRB, as States and other local units of government--but that is not true either. A person living in the District of Columbia, who works in Virginia, is subject to Virginia labor laws without having a say in forming those laws.
In 2013, there was an issue of Tribal sovereignty on the U.S. Senate floor. It was broader than that. It was VAWA--the Violence Against Women Act. I supported its reauthorization, which included new authorities for Tribal governments to protect Native American women when they are harmed by non-Indians. With VAWA's passage, Congress placed our trust in Tribes to exact justice in the circumstance of domestic violence and violence against women.
The point here is that we rightly determined that Tribes should have the ability to punish Indian and non-Indian violent offenders, but today it is being argued that we can't trust them to treat Indian and non-Indian employees justly.
I remember the allegations against my colleagues who voted against VAWA were that they were not supportive of Tribal sovereignty. Those who oppose this bill today are subject to exactly the same criticism.
There is also an assumption being made that employees of tribally owned entities are being treated poorly or will be treated poorly if this legislation passes. The majority of Tribes are located in rural areas, where the labor pool is often inadequate. It is to the Tribes' advantage to treat their employees fairly in order to retain them. As a matter of fact, many Tribes have the highest wages and provide the best benefits in their region. Tribal jobs are coveted because prospective employees know what they stand to gain by their employment.
The idea that Tribal government enterprise workers should be treated as commercial rather than governmental workers doesn't hold up. A Tribal casino worker is no less of a government employee than an employee of a State-owned-and-operated enterprise that includes liquor stores, ski resorts, and, yes, casinos.
In 2015, the Senate Indian Affairs Committee held legislative hearings on the Tribal Labor Sovereignty Act--the legislation we are considering today--and testifying before the Committee was Robert Welch, chairman of the Viejas Band of Kumeyaay Indians in California. Despite being a unionized Tribe--employees of the tribally owned facilities are union members--Chairman Welch testified in support of this bill.
Many Tribes welcome labor unions. That is fine. The point is, it is their decision. The Tribal decision is where this issue rests. The point of this legislation is it is up to the Tribes to decide, not the NLRB.
More than 160 Tribes and Tribal organizations support this legislation and have worked hard to see its passage. They support it because the principle of Tribal sovereignty is critical to their well- being.
The vote I seek today is not a partisan ploy. I have worked to pass this legislation without a recorded vote. I have taken to the floor to do live UC requests on a number of occasions but have been met with objections. I have worked to get this legislation included in appropriations bills, but it was always forced out at the last minute.
In recent bipartisan legislation, Republican leadership, Chairman Hoeven, and I were open to attaching both NAHASDA and TLSA, but TLSA's inclusion was deemed unacceptable. This is not about making anybody cast a difficult vote. We have tried to do this in a way that eliminates that option, that necessity. We had two victories lined up for Indian Country--NAHASDA and TLSA--and we got nowhere because of opposition to Tribal sovereignty. That brings us to where we are today on the Senate floor. It requires a Senate vote that will take place in a little more than half an hour.
It is important to note that Tribal sovereignty enjoys bipartisan support. Nearly two dozen Democrats, including Members of the House Democratic leadership, supported this legislation in January when it passed the House, and we have strong bipartisan backing in the Senate as well. The Senate Committee on Indian Affairs reported this out by voice vote last summer. Democratic colleagues of mine have spoken in favor of it.
The late Senator Daniel Inouye of Hawaii wrote in 2009: ``Congress should affirm the original construction of NLRA by expressly including Indian tribes in the definition of employer.'' Senator Daniel Inouye continues to be held in high regard in the U.S. Senate for his work in the U.S. Senate, for his service to his Nation, and for his firm commitment to Tribes and to Native Hawaiians. Again, Senator Inouye, who is no longer with us, said: ``Congress should affirm the original construction of the NLRA by expressly including Indian tribes in the definition of employer.''
What this bipartisan consensus demonstrates is that this is not about labor. This is about the ability of Tribal governments to be treated equally as other levels of government and to provide vital services to their people without fear of work stoppages.
Jefferson Keel, president of the National Congress of American Indians, wrote in February:
Tribes make an array of public services available to their tribal citizens and other local residents: law enforcement, fire and EMS departments, schools and hospitals, and natural resource management.
These are things Tribes do on a daily basis for Tribal members and for residents.
All tribal governments play critical roles in ensuring the safety, health, and stability of tribal and surrounding communities.
He goes on to write that in 1935, Congress ``did not want the kind of labor strife and work stoppages that could paralyze federal, state and local governments, jeopardizing public health and safety in the process.''
Eighty years later, why it is that every other form of government in this country is treated one way and Tribes another? That, my colleagues, is not right. Why do Tribes have to accept others determining their workplace rules but not their counterparts? Why is it that the well-being of Native Americans on reservations, who rely on these services, might be placed at risk? But most importantly, why would we deny sovereignty when Tribes are entitled to it?
Senator Udall, my friend and colleague from New Mexico, who serves as our committee's vice chair, the ranking member, understands the importance of self-governance. He recently said: ``Decisions made by Tribes for Tribes produce the best outcomes for their unique communities.''
Is there a U.S. Senator who doesn't believe that decisions made at home are better because we are all unique? We have unique circumstances in every State across the country and in every community. Local folks can make better decisions about what makes sense in their local community. We know that for our constituents; we should know that for Tribal members. Again, Senator Udall said: ``Decisions made by Tribes for Tribes produce the best outcomes for their unique circumstances.''
What we will be voting on shortly is really a question of whether the Members of this Chamber--U.S. Senators who swore to uphold the Constitution and fill their responsibilities--believe that Tribal governments, elected by their members, possess the right to make informed decisions on behalf of those they represent. I say they do, and I hope that most of my colleagues--in fact, I hope all of my colleagues agree with that sentiment.
We have been working at this legislation for 5 years now. Decisions will be made 30 minutes from now that will have a huge consequence, perhaps not on me, perhaps not on many of my constituents but on Tribal leaders and the individual Tribal members who elected them to make decisions on their behalf. We would be offended if people intruded on our abilities to make decisions for our constituents, and Tribal leaders are no different.
This is important legislation. It is not political. It is about making the right decision for the right reason so that good outcomes can benefit all Americans--all who live here in the United States--and I ask my colleagues to seriously consider and, ultimately, vote for this bill, S. 140, which includes the Tribal Labor Sovereignty Act.
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