S-226-116
Placed on Senate Legislative Calendar under General Orders. Calendar No. 65.
Sponsored by Jerry Moran (R-KS)
What it does
This bill would amend the National Labor Relations Act (NLRA) to remove Native American tribes, their enterprises, and their institutions located on tribal land from the definition of "employer" under the law. This would mean tribal employers would no longer be required to allow employees to form unions, engage in collective bargaining, or take collective action. It would also mean tribal employers could not be found in violation of the NLRA's unfair labor practice rules.
Who benefits
Native American tribal governments and tribally owned enterprises and institutions operating on tribal land would gain the ability to set their own labor relations policies without NLRA oversight. Tribes seeking to assert greater self-governance over their internal economic and employment affairs would benefit. Tribal casino operators, tribal health clinics, tribal schools, and other tribally run businesses on tribal land would be freed from federal collective bargaining requirements.
Who is hurt
Employees of tribal enterprises and institutions on tribal land — including non-tribal members who work at tribal casinos, health facilities, schools, and other businesses — would lose the federal right to organize unions, engage in collective bargaining, and take collective action under the NLRA. Labor unions that currently represent or seek to represent tribal-enterprise workers would lose federal jurisdiction to organize those workplaces. Workers in affected tribal workplaces would have no federal recourse for unfair labor practices by their employer.
Supporters argue
Supporters argue that tribal nations are sovereign governments, and applying the NLRA to tribal enterprises on tribal land undermines that sovereignty in the same way it would be inappropriate to apply the NLRA to a state government. They contend that Congress has long recognized tribal self-governance across many domains, and labor relations on tribal land should be no different. Supporters also point out that many tribes already have their own labor codes and dispute-resolution systems, making federal oversight duplicative and intrusive. They argue the bill simply aligns labor law with the broader federal policy of tribal self-determination, allowing tribes to structure their own economies and workplaces according to their own laws and values without federal interference.
Opponents argue
Opponents argue that removing NLRA protections from tribal workplaces would strip tens of thousands of workers — many of them non-tribal members — of fundamental federal labor rights with no guarantee of equivalent protections under tribal law. They contend that tribal sovereignty, while important, does not justify eliminating workers' rights, particularly when those workers may have limited ability to influence tribal labor policy. Opponents also argue that the bill could create an uneven competitive playing field, allowing tribal enterprises to undercut non-tribal businesses by avoiding collective bargaining obligations. They further contend that existing federal court decisions have already addressed the scope of NLRA applicability to tribes, and that legislative exemption goes further than sovereignty principles require.
Constitutional context
The bill sits at the intersection of the Indian Commerce Clause (Art. I, Sec. 8), which grants Congress broad authority over tribal affairs, and the long-standing federal policy of tribal self-determination. The NLRA itself rests on the Commerce Clause, as affirmed in NLRB v. Jones & Laughlin Steel (1937). The tension here involves whether Congress's Commerce Clause power to regulate labor relations overrides or yields to tribal sovereignty interests. The Equal Protection Clause is also relevant: in Morton v. Mancari (1974), the Supreme Court held that federal laws distinguishing tribes from other groups are subject to rational basis review when tied to the government-to-government relationship, not strict scrutiny. The bill does not directly implicate the Fifteenth Amendment or voting rights cases such as Shelby County v. Holder (2013).
Checks and balances
The bill would shift authority from the federal executive branch — specifically the National Labor Relations Board (NLRB), an independent federal agency — to tribal governments. Tribal legislatures and tribal courts would gain primary authority over labor relations within tribal enterprises on tribal land, reducing the NLRB's jurisdiction and enforcement power in those workplaces.
Historical precedent
The Indian Gaming Regulatory Act of 1988 (IGRA) similarly carved out a domain of tribal economic activity — gaming — from standard federal and state regulatory frameworks, recognizing tribal sovereignty over that sector while establishing a separate federal oversight structure.