"The 10-1 ruling said the pueblo's right-to-work measure was "clearly an exercise of sovereign authority over economic transactions on the reservation." From the AP story of January 16, 2002.
Note by Hunterbear: This is a very complex -- and sensitive -- situation. I write as a Native activist who consistently and vigorously supports labor unionism. I presently belong to three unions. Very recently, the Tenth U.S. Circuit Court of Appeals handed down a ruling which upholds -- in the context of tribal sovereignty -- the right of a Native nation [San Juan Pueblo of New Mexico] to enact and maintain a right-to-work law. This relates specifically to workers at a tribally-owned sawmill but has, many of us feel, very wide ramifications in Indian Country generally -- and a key economic dimension involved in all of this could well be workers in tribally-owned casino operations. This is a ruling -- in an obviously sad situation -- which virtually all Native people will support as well as informed and issues-sensitive non-Native people.The possible motives of the leadership of San Juan Pueblo in this matter quite aside, this general support for the ruling has nothing to do with unions. It does involve the absolutely critical importance for Native Americans in maintaining what tribal/national sovereignty remains. Unions -- effective unions sensitive and committed to Native concerns -- are increasingly critical in the Native American worker context: both on and off the reservations. The Tenth Circuit ruling and the collateral implications pose a substantial challenge to unionism. I strongly believe that unions can and must meet the challenge of effective organization and vigorous representation of Native American workers. I believe that unions will -- but it's going to require much awareness and sensitivity on their part with respect to Native people and societies and cultures and concerns. Among other things, unions are going to have learn a great deal about Native Americans. And the unions are going to have to hire Native organizers -- and certainly Native staff from the respective tribal setting involved. And more. First, a little quick background on the matter of Native tribal sovereignty. Then, several excerpts from a long letter on the Natives and union situation that I've just written to a friend much involved on behalf of Native rights Finally, a newspaper article on the background and specific nature of the San Juan Pueblo ruling. TRIBAL SOVEREIGNTY: A Native tribal nation, like all nations, has inherent sovereignty. Full sovereignty is the full and ultimate control by the tribal nation of its land, its people, and its affairs. Much sovereignty has been lost -- however temporarily -- by the tribal nations in both the U.S. and Canada but some functional sovereignty does remain. Native sovereignty has been badly eroded. In the United States, the current situation is referred to as "residual" or "limited sovereignty" -- a tribal nation has control over some dimensions but not over others. The fight is always to preserve and to expand sovereignty. Sovereignty, obviously, is power -- and protection and security -- and critical to individual and societal well-being. A Federally recognized tribe today in the U.S. has these powers in the context of "limited" or "residual" sovereignty: 1] Tribes can govern themselves administratively and judicially -- under the regulations of the Indian Reorganization Act [1934] and subject to the Major Crimes Act [1885], Public Law 280 [1953] and the Indian Civil Rights Act [1968.] 2] Tribes can tax their members and tax outside business enterprises functioning on the reservation. 3] Tribes can handle domestic relations. 4] Tribes can apportion tribal property [e.g., homesites.] 5] Tribes can regulate inheritance. 6] Tribes can determine tribal membership. Obviously this excludes much from "the full and ultimate control by the tribal nation of its land, its people, and its affairs." As just an example, let's look at the criminal justice situation on a Federal Indian reservation today: A tribe CAN arrest and prosecute an Indian who commits misdemeanor crimes within the boundaries of the reservation. A tribe CANNOT arrest and prosecute anyone who commits felony crimes on its reservation. In the greatest majority of cases, this power is held by the Federal government under the Major Crimes Act of 1885 -- although a non-Indian to non-Indian felony on a reservation is turned over to state officials. In a small minority of cases, however, Public Law 280 [1953] gives all felony jurisdiction to the state. [PL-280, BTW, was part of the infamous "Termination Package" of the reactionary 1950s and beyond which included, in addition to 280, formal efforts to terminate treaty rights -- and although this was kept at arm's length by most tribes and eventually ended and reversed as policy, played hell with the Menominee and Klamath and a number of other affected nations. Termination efforts included, too, the urban relocation scheme which maneuvered tens of thousands of Native people into the cities with both "the stick" and "pie in the sky" promises and dumped them there sans Federal Indian benefits.] In 1978, the US Supreme Court issued the Oliphant decision which prevents tribes from prosecuting non-Indian offenders on its reservation. Immediately following this, I had the interesting experience of spending a day discussing OIiphant and its implications at a special workshop for Navajo tribal police at Window Rock. [I handled the Criminal Justice curriculum at Navajo Community College.] It was clear that massive confusion was fast developing and that the only immediate solution was cross-deputization of tribal police by state authorities. [The Navajo Nation is bigger than the state of West Virginia and, in this case, Arizona, New Mexico, Colorado, Utah are involved.] Cross-deputization in Indian country generally came to pass quickly, enabling a cross-deputized tribal police officer to arrest a non-Indian on the reservation -- but the non-Indian would have to be turned over to state or Federal officers. Further, only rarely was a state cross-deputized tribal officer able to arrest someone on state jurisdiction. If this was not confusing enough, the U.S. Supreme Court in the 1990 Duro decision sought to prevent a tribe from arresting and prosecuting Indians of other tribes on its reservation! This fast-developing and completely bizarre twist led Congress to forthwith pass special "blocking" legislation which was made permanent in 1992. Thus Duro has been effectively nullified. This has led a great many of us to call for restoration of full Native civil and criminal jurisdiction [ jurisdiction over everyone!] on the reservations. The completely tangled criminal justice jurisdictional situation on Federal Indian reservations epitomizes the very complex mess in which most Native people are caught up today. EXCERPTS FROM HUNTERBEAR LETTER: "Good to hear from you, Ed. We certainly agree. The decision is both sad as hell -- but absolutely necessary to maintain tribal sovereignty. . . I heard of this San Juan Pueblo decision several weeks ago when it initially came down. I immediately felt the casino issue had to be in there somewhere. And I'm sure it is. Although it wasn't mentioned in the thing I initially saw, the governor of the Pueblo mentions that specifically in this attached article. It's a small Pueblo and would be extremely cohesive. We know people at Laguna but no one at San Juan. Unions haven't done too badly in Native settings -- UMWA and the Navajo, for example -- but they've got to make [as you certainly are aware] their approaches with sensitivity -- and usually with Native organizers and very hopefully with some paid staff from the tribal setting involved. These dimensions are not absolutely critical -- but almost so. It also usually takes a good deal of time -- time [and money] that I know for sure some unions aren't willing to spend. [Efforts to interest one AFL-CIO union in doing something on a North Dakota reservation in the context of a tribally-owned factory never got off the ground because in the end the union wouldn't make the time and money and staff commitment.] When they do get into things, unions may simply rush matters too fast for many Native settings. But there have certainly been many situations where unions and Indians have gotten along well. This is generally true in off-res settings -- and the heavier challenge is on-res stuff. But Navajo coal miners on Navajo Nation turf have frequently unionized -- although these are not tribally owned operations [Peabody on lease, etc.] As this San Juan situation indicates, tribally owned industries are the toughest organizing challenge -- caught up always in intricate politics. You are very right in indicating we need to do much more with the unions on these and related issues. Anyway, just some quick thoughts from me. It's a disturbing situation -- and a genuine challenge to organized labor. Let's stay in very close contact. Best - Hunterbear " NEWSPAPER ACCOUNT OF TENTH CIRCUIT RULING AND BACKGROUND: Wednesday, January 16, 2002 (AP) 10th Circuit upholds tribal right-to-work law http://www.sfgate.com/cgi-bin/article.cgi?file=/news/archive/2002/01/16/stat e122\ 7EST7213.DTL (01-16) 09:27 PST SAN JUAN PUEBLO, N.M. (AP) -- The governor of the San Juan Pueblo says a federal appeals court ruling upholding the pueblo's authority to enact a right-to-work law is a victory for Indian sovereignty. The 10th U.S. Circuit Court of Appeals in Denver ruled Friday on a labor dispute with a company operating on land leased from the pueblo north of Espanola. The appeals court said the tribe can take steps to regulate pueblo economy as long as those actions aren't banned by the federal government. The case began in 1996 when a labor union demanded workers covered by the union contract at the Rio Grande Forest Products sawmill on pueblo land be required to pay union dues. "The Tribal Council believes that it was unfair for a labor union to force employees to choose between paying mandatory union dues or being fired from their jobs," said Pueblo Gov. Wilfred Garcia. "The pueblo's right-to-work law allows all employees on our lands to voluntarily choose to join or financially support unions." The National Labor Relations Board sued the pueblo in support of the union, arguing that the federal National Labor Relations Act removed the pueblo's authority to ban compulsory union dues. U.S. District Judge Martha Vazquez of Santa Fe ruled in favor of the pueblo in 1998, and the NLRB appealed. A three-judge 10th Circuit panel upheld Vazquez, but the full appeals court later reheard the case because it concerned issues of national importance, Garcia said. The NLRB sought the rehearing in December 2000. Federal law generally holds that if an employer has an agreement with a union, workers cannot be forced to join but still must pay union dues. The tribal law banned such agreements. The 10-1 ruling said the pueblo's right-to-work measure was "clearly an exercise of sovereign authority over economic transactions on the reservation." "Now that the full 10th Circuit has spoken and recognized that the pueblo of San Juan has a status equivalent to state governments when it comes to labor unions, I believe that this decision will have nationwide significance for Indian tribes as labor unions attempt to unionize Indian casinos," Garcia said. Stefan Gleason, vice president of the National Right to Work Foundation in Washington, D.C., said the ruling would help foster businesses on tribal land. On the Net: 10th Circuit decision: www.kscourts.org/ca10/cases/2002/01/99-2011.htm ---------------------------------------------------------------------- Copyright 2002 AP Hunter Gray [ Hunterbear ] www.hunterbear.org ( social justice ) _______________________________________________ Leninist-International mailing list [EMAIL PROTECTED] To change your options or unsubscribe go to: http://lists.econ.utah.edu/mailman/listinfo/leninist-international
