170208 s63 tlsa s245 indiantribalenergydevelopmentactamendments hoeven udall


February 08, 2017


The Honorable John Hoeven
Committee on Indian Affairs
United States Senate
Washington, DC 20510

The Honorable Tom Udall
Vice Chairman
Committee on Indian Affairs
United States Senate
Washington, DC 20510

Dear Chairman Hoeven and Vice Chairman Udall:

The U.S. Chamber of Commerce strongly supports S. 63, the “Tribal Labor Sovereignty
Act of 2017” (TLSA), and S. 245, the “Indian Tribal Energy Development and Self-
Determination Act Amendments of 2017,” that are both to be considered by the Committee

Tribal Labor Sovereignty: Sponsored by Senator Moran, TLSA enjoys bipartisan
support and would respect and promote tribal sovereignty by affirming the rights of tribal
governmental employers to determine their own labor practices on their own lands. During the
114th Congress this bill passed the House with that strong support.

In 1935, the National Labor Relations Act (NLRA) was enacted to ensure fair labor
practices, but excluded federal, state and local governmental employers from its reach. Though
the NLRA did not expressly mention Indian tribes let alone treat Indian tribes as governmental
employers, the NLRB respected the sovereign status of tribal governmental employers for close
to seventy years before abruptly abandoning its own precedent and reversing course with the San
Manuel Indian Bingo case in 2004.

Since that decision, the NLRB has been aggressively asserting jurisdiction over tribal
labor practices when the Board determines tribal government employers are acting in a
“commercial” rather than a “governmental” capacity – an analysis it does not apply to federal,
state or local government employers.

TLSA would build upon a demonstrably successful principle: where tribal sovereignty is
vigorously exercised, economic success follows. S. 63 would prevent an unnecessary and
unwarranted overreach by the NLRB into the sovereign jurisdiction of tribal governments. By
amending the NLRA to specifically exempt tribal governments, S. 63 would provide certainty
and clarity to ensure that tribal governmental statutes concerning labor relations would remain
intact. The Chamber believes that this approach would best meet the needs of the tribes and the
American business community more generally.

Indian Energy: A version of S. 245 passed the Senate twice last Congress, and can
legitimately be considered old business. The “Indian Tribal Energy Development and Self
Determination Act Amendments of 2017” would streamline and clarify how a tribe applies for,
and how the Department of Interior approves, Tribal Energy Resource Agreements, thereby
“granting authority to [a] tribe to review, approve, and manage leases, business agreements, and
rights-of-way for energy development on tribal lands, without the approval of the Secretary of
the Interior.”1 Because the current process for obtaining a TERA is so unclear, no tribe has
submitted a TERA for secretarial approval since 2005.

In addition to the TERA-perfecting amendments, S. 245 includes provisions to reform
and improve the trust asset appraisal process, biomass demonstration projects, and authorizes
tribal involvement in the Department of Energy weatherization program.

The Chamber strongly supports both S. 63 and S. 245 and requests that the Committee
favorably report the bills so the full Senate can take them up for consideration expeditiously.


Neil L. Bradley

cc: Members of the Committee on Indian Affairs

1) http://teeic.indianaffairs.gov/abouttera/

170208 s63 tlsa s245 indiantribalenergydevelopmentactamendments hoeven udall