Obama should study the Constitution and the treaties

Indian nations and tribes were pleased with the respect for Indian sovereignty shown by the House of Representatives with the bipartisan passage on Nov. 17, 2015 of H.R. 511, the Tribal Labor Sovereignty Act, sponsored by Rep. Rokita (R-Ind.). Sen. Moran (R-Kan.) has sponsored S. 248, a companion bill in the Senate.  It is a measure to treat Indian nations and tribes as governments under the National Labor Relations Act, as Congress originally intended.  As Indian nations, we were disappointed by the president’s Statement of Administration Position against H.R. 511 issued later that day.

Barack Obama was a constitutional law professor before his election to the United States Senate and the White House.  So, he should understand these basic principles:  Indian nations and tribes were independent sovereign nations prior to the founding of the United States.  In 1787 and 1789, right before and right after the Constitution’s ratification, Congress pledged that the “utmost good faith” would always be observed towards the Indians and in our liberty and property, we would never be invaded.  During the American Revolutionary War period, the United States sought to establish peace, friendship and military alliances acknowledging the sovereignty and territory of Indian tribes through treaty-making.  The Constitution affirms those earliest Indian treaties and authorized over 350 more Indian treaties.  The Constitution’s Indian Commerce Clause recognizes a bi-lateral relationship with Indian nations, parallel to the Foreign Commerce Clause.  The Constitution’s Apportionment Clause and the 14^th Amendment’s Citizenship Clause recognize tribal citizens as “Indians not taxed,” subject primarily to the jurisdiction of Indian nations.

{mosads}Indian self-determination and self-government are the foremost principles of modern Indian affairs policy: Indian nations and Native peoples have the right to make our own laws and be ruled by them.

President Franklin Delano Roosevelt’s New Deal for Indian nations and tribes, the Indian Reorganization Act, acknowledged our right to self-government.  The New Deal for labor, the National Labor Relations Act, applies to private industry not governments, Federal, state or local.  For 70 years, Indian nations and tribes were treated as governments that are exempt from the NLRA.  In a highly politicized decision in 2004, the NLRB flipped the Act on its head, deciding that Indian gaming is commercial in nature, and applied the NLRA to an Indian tribe that had already voluntarily acknowledged the Communications Workers of America as the union representative of its labor force.

The Tribal Labor Sovereignty Act simply restores the original meaning of the National Labor Relations Act consistent with FDR’s “New Deal for Indians,” enacted the year before the NLRA.

President Obama:  Indian gaming is governmental gaming, as Congress has declared.  Please read the Indian Gaming Regulatory Act—its essential purpose is to build strong tribal governments.  First and foremost, Indian gaming revenue goes to fund basic government services—police and fire protection, education, health care, housing, sanitation and water services.  It is wrong for the Administration to say Indian gaming is commercial in nature and wrong to suggest that the National Labor Relations Act should override Indian sovereignty on Indian lands—Indian nations were sovereign nations for many thousands of years before Columbus landed on American shores.

In the first year after the Constitution’s ratification, President George Washington established the protocol for treaty-making under the Constitution through the 1790 Treaty with the Creek Nation, which acknowledged Creek Nation sovereignty and the importance of Creek trade.  President Thomas Jefferson agreed with France in the 1803 Louisiana Purchase Treaty that the United States would abide by International Indian treaties until the United States entered its own treaties with “Indian nations” based upon “mutual consent.”  Jefferson said it would be unfair to extend Federal law to govern Indian lands because Indian tribes are self-governed under time honored tribal law, customs and traditions. 

FDR understood these principles.  Senator Inouye, the Senate champion of Indian rights for decades and the author of the Indian Gaming Regulatory Act, put forward the first Senate measure to respect Indian sovereignty and restore the NLRA to its original meaning including Indian nations as governments in 2009 and he called upon his friend, Senator Kennedy, to include his measure as an amendment to the Employee Free Choice Act.  Some unions told Inouye, “You should be with us on this issue,” and he replied, “I have been with you for 50 years, now you should be with me.”  After that, some unions supported Inouye and Indian nations.  Senator Harkin later told Indian country that he, as an author of EFCA, never wanted to impact Indian tribes and acknowledged the need for Inouye’s measure.

President Obama, please take the time to re-read the Constitution and its clauses applicable to Indian tribes to understand the human rights of Native American peoples to self-determination and self-government based on the wars that we fought in the defense of our peoples and our lands and the treaties where the United States pledged its honor to maintain the peace.   

Now is the time for the president to withdraw the SAP in opposition to H.R. 511 and support its passage in the Senate—that course of action would uphold the honor of the United States.

Steele is president of the Oglala Sioux Tribe.