Fort Apache Timber Co.

FORT APACHE TIMBER COMPANY Fort Apache Timber Company and Construction, Building Materials and Miscellaneous Drivers Lo- cal No. 83, an Affiliate of the International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Petitioner. Case 28-RC-3068 October 19, 1976 DECISION ON REVIEW AND ORDER By MEMBERS FANNING, JENKINS, AND WALTHER On December 24, 1975, the Regional Director for Region 28 issued his Decision and Direction of Elec- tion in the above-entitled proceeding in which he di- rected an election among certain employees of the Employer, contrary to the Employer's contention that the National Labor Relations Board lacked ju- risdiction over it. Thereafter, the Employer, in accordance with Sec- tion 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, filed a timely request for review of the Regional Director's decision with a supporting brief, contending, inter alia, that the Board precedent relied on by the Re- gional Director is not dispositive of the issue present- ed in the instant case, that the Board lacks statutory jurisdiction over the Employer herein, and that even were the Board to find that it could exercise jurisdic- tion over this Employer it should decline, to do so as a matter of policy and discretion. By telegraphic order dated January 19, 1976, the National Labor Relations Board granted the request for review and stayed the election pending decision on review. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the entire record in this proceeding, including the Petitioner's and the Em- ployer's briefs with) respect to the issues under re- view, and makes the following findings: Fort Apache Timber Company is an entrepreneu- rial enterprise owned and operated by the White Mountain Apache Tribe. It has its principal office and place of business located at the tribal headquar- ters at White River, Arizona, which is situated within the confines of the Fort Apache Indian Reservation. During the year preceding the hearing, the White Mountain Apache Tribe, doing business under the name of the Fort Apache Timber Company, sold and shipped goods valued in,excess of $50,000 directly to customers located outside the confines of the Fort 503 Apache Reservation, and outside the State of Arizo- na. The Fort Apache Indian Reservation occupies ap- proximately 2,600 square miles, located in east cen- tral Arizona. The Reservation was originally estab- lished "for use and occupancy of Apache Indians" by executive order of President Grant in November 1871. By act of Congress of June 7, 1897, the then White Mountain Indian Reservation was divided into the present Fort Apache Indian Reservation and the San Carlos Reservation. The White Mountain Apache Tribe 1 is organized under the provisions of the Indian Reorganization Act.' A tribal constitution was ratified by members of the tribe on August 15, 1938, and a revised constitution and bylaws was rat- ified June 27, 1958. In approving ratification of the revised constitution and bylaws in 1958, the Depart- ment of the Interior provided that, upon ratification, all rules and regulations promulgated by the Depart- ment or by the Bureau of Indian Affairs would henceforth be inapplicable to the White Mountain Apache Tribe, insofar as they were incompatible with any of the provisions of the revised constitution and bylaws, except where the rule or regulation ex- pressly indicated otherwise. All officers and employ- ees of the Interior Department were ordered by said rules and regulations to abide by the provisions of the revised constitution and bylaws. The constitution of the Tribe tracks the statutory language in providing that the authority of the Tribe shall extend to "all territory within the boundaries of the Fort Apache Indian Reservation as well as to such other lands as the United States might acquire for the tribe or which the tribe might acquire for it- self." It describes the relationship of the Apache to the United States Government and provides that in- ternal affairs shall be managed insofar as it does not conflict with the laws of the United States, by a gov- erning body known as the White Mountain Apache Tribal Council. The Council is composed of a chair- man and vice chairman, elected by popular vote of the Tribe, and nine Council members popularly elected from four districts. In addition to all powers vested in the Tribal Council by existing law, the constitution also provides that the Council shall exer- cise certain additional powers subject only to limita- tions imposed by other, constitutional statutes of the United States. Included, inter alia, is the power to represent the Tribe and act in all matters that con- cern the welfare of the Tribe; to negotiate, make, and perform contracts and agreements with any person, association, corporation, municipality, county, State, Hereinafter also called the Tribe z Act of June 18, 1934, 48 Stat 984, as amended by act of, June 15, 1935, 49 Stat 378 226 NLRB No. 63 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or the United States, including agreements with the State of Arizona for rendition of public services; to veto the sale, disposition, lease, or encumberance of tribal lands or other tribal assets authorized by any agency or employee of the Government; to manage all economic affairs and enterprises of the Tribe; to borrow money and pledge or assign tribal income as security; to enact ordinances covering the granting of both surface and subsurface leases; to levy and col- lect taxes and-impose licenses; to enact ordinances establishing and governing tribal courts and law en- forcement; and to exercise the powers of removal or exclusion from the reservation of any nonmember of the Tribe whose presence may be considered injuri- ous to the people of the reservation.3 Fort Apache Timber Company is one of several enterprises owned by the White Mountain Apache Tribe and operated by its governingTribal Council. Mr. Hal Butler, the mill manager, testified that he is a temporary employee of the Tribe, was hired by the Tribal Council, and works under its direction. Fort Apache Timber Company per se has no employees. Like all of the workers engaged under any of the tribal enterprises, they are employees of the Central Tribe, and are paid through a central tribal fund; Mr. Butler merely indicates the number of hours worked by those at Fort Apache Timber Co. Wages and working conditions are set by the Tribal Council, which also passes on the budget for the various enter- prises. Employees of the Tribe may request transfers to different job classifications and to other tribal en- terprises. Such transfers are frequent, and tribal em- ployees retain their seniority, benefits, and other privileges as employees regardless of the enterprise under which they may be working. The Tribe by its counsel entered a special appear- ance only in the proceedings herein, without preju- dice to its position that the National Labor Relations Board has no jurisdiction over an Apache Nation and that such nation or its Tribal Council cannot be an employer within the meaning of the Act. The Tribe also contends that tribal businesses are unique and that a congressional purpose to subject them to the National Labor Relations Act should not be pre- sumed. It also argues that even if the Board should find that it has statutory jurisdiction in this area it should for various reasons exercise its discretion and ,3 The Tribal Council is also authorized to appoint and regulate subordi- nate organizations for economic and other purposes, and to exercise such further powers as may be delegated to the Council by members of the Tribe, the Secretary of the Interior, or other duly authorized official or agency. No tribal member may become a member of the Tribal Council or serve on any board of directors or other committee or board if he or she is employed by the Bureau of Indian Affairs or any other Federal Government agency Law and order on the reservation is maintained by a police force under the Tribal Council. Offenses are dealt with by the Tribal Court with the excep- tion of the "major crimes" which are by statute cognizable in Federal Court decline to assert such jurisdiction. The Regional. Di- rector found that the fact that the enterprise involved was owned and controlled by the Tribe and operated on its own reservation "does not impose an impedi- ment to the assertion of jurisdiction by the Board. See Navajo Tribe v. N.L.R.B. 288 F.2d 162 (C.A.D.C., 1961), cert. denied 366 U.S. 928." In the Navajo case the tribe sought an injunction to prevent the Board holding a representation election among employees in a mining plant located on the reserva- tion but leased by the tribe to the non-Indian em- ployer. The court of appeals held that the Act ap- plied to Texas-Zinc Minerals Corporation and that the Board was- not precluded from acting "with re- spect to a plant located within an Indian reservation, or one employing Indians." It stated that it was ex- pressing no opinion on the wisdom of the Board "in entering the order." Consistent with the recent Supreme Court decision in McClanahan v. Arizona State Tax Commission, 411 U.S. 164 (1973), analyzing the categories of relation- ship between Indians -and the Federal Government, we are not here treating with Indians "who have either left or never inhabited reservations, set aside for their exclusive use or who do not possess the usu- al accoutrements of tribal self-government." Nor are we concerned here with the activity undertaken by individual reservation Indians operating primarily on nonreservation lands, nor the exercise of jurisdiction over non-Indian employers who may undertake ac- tivity on leased land located within an Indian reser- vation.4 Rather, we are confronted with the question of jurisdiction over activity undertaken- by Indians' on the reservation. Thus, the initial question present- ed here is one of first impression for the Board: whether an Indian tribal governing council qua gov- ernment; acting to direct the utilization of tribal re- sources through a tribal commercial enterprise on the tribe's own reservation, is an "employer" within the meaning of the Acts °Thus, Texas-Zinc Minerals Corporation, 126 NLRB 603 (1960), in effect enforced in Navajo Tribe v N L R B, 288 F.2d 162 (C A.D C., 1961), cert. denied 366 U S 928, cited by the Regional Director herein, is inapposite. See also J R Simplot Company, d/b/a Simplot Fertilizer Company, 107 NLRB 1211 (1954), 100 NLRB 771 (1952) In those cases , the Board refused to decline assertion of jurisdiction over a non -Indian employer who other- wise met the Board's jurisdictional standards, merely because the Company was in part conducting operations on Indian land which it had leased from the tribe , The issue presented in the present case is significantly different Does the Act apply to Tribal Council enterprises as employers 5 The term "employer" under the Act excludes "the United States or any wholly owned government corporation or any state or political subdivi- sion thereof " The Supreme Court in the leading case of N L R B. v. The Natural Gas Utility District of Hawkins County, Tennessee, 402 U.S 600 (1971), considered the identification of governing Federal law with respect to the term "political subdivision " The Court noted that. "The term 'politi- cal subdivision' is not defined in the Act and the Act's legislative history does not disclose that Congress explicitly considered its meaning. The legis- lative history does reveal, however, that Congress enacted the § 2(2) exemp- tion to except from Board cognizance the labor relations of federal , state, FORT APACHE TIMBER COMPANY The status of Indian Americans as individuals, and particularly those on their own reservations, is unique vis-a-vis the Federal and state governments. However, the principles governing resolution of the Indian sovereignty question are not new. To the con- trary, "The policy of leaving Indians free from state jurisdiction and control is deeply rooted in the nation's history." 6 Mr. Chief Justice Marshall first articulated the Supreme Court's policy in 1832 in holding that Indian nations were "distinct political communities, having territorial boundaries, within which their authority is exclusive, and having a right to all the lands within those boundaries, which is not only acknowledged, but guaranteed by the United States."' From this concept of Indian reservations as separate though dependent nations, it followed that state law could have no role to play within the reser- vation boundaries. In dealing with attempts to im- pose a land tax on reservation Indians, the Court held that "If the tribal organization ... is preserved intact, and recognized by the political department of the [Federal] Government as existing, then they are a people distinct from others, capable of making treaties, separated from the jurisdiction of Kansas .. .. reservation Indians are a separate people to whom state jurisdiction may not extend." 8 In striking down an attempt to tax a trading com- pany doing business within the confines of an Indian reservation as inconsistent with Federal statutes ap- plicable to the Indians on the Navajo Reservation, the Court held the tax invalid noting that "from the very first days of our Government the Federal Gov- ernment had been permitting the Indians largely to govern themselves, free from state interference. ..." 9 The status of Indian nations or tribes pre- serving their political entity under' the decisions of the Supreme Court has been summed up in Felix S. Cohen's Handbook of Federal Indian Law,10 p. 122, as follows: The whole course of judicial decision on the na- ture of Indian tribal powers is marked by adher- ence to three fundamental principles: (1) An In- dian tribe possesses, in the first instance, all the powers of any sovereign state. (2) Conquest ren- ders the tribe subject to legislative power of the and municipal governments . .." The Court there described the test at least with respect to state subdivisions as being whether the entity is either "(1) created directly by the State, so as to constitute departments or admin- istrative arms of the government, or (2) administered by individuals who are res6ponsible to public officials or to the general electorate" Rice V. Olson, Warden, 324 U.S. 786, 789 (1945) 7 Samuel A Worcester v State of Georgia, 6 Pet 515, 557 (1832) 8 The Kansas Indians, 5 Wall. 737, 755 (1866). 9 Warren Trading Post Co v. Arizona Tax Commission, 380 U.S. 685, 686 (1965) tO Now revised by the United States Department of the Interior, Federal Indian Law, United States Government Punting Office, 1958 505 United States and, in substance, terminates the external powers of sovereignty of the tribe, e.g., its power to enter into treaties with foreign na- tions, but does not by itself affect the internal sovereignty of the tribe, i.e., its powers of local self-government. (3) These powers are subject to qualification by treaties and by express legisla- tion of Congress, but, save as thus expressly qualified, full powers of internal sovereignty are vested in the Indian tribes and in their duly con- stituted organs of government. In judging whether an action impinges on the inde- pendence of individual Indians on a reservation or on the governing body of the tribe, the test is the same. As Mr. Justice Marshall recently observed for a unanimous Supreme Court, the question has al- ways been whether the action "infringed on the right of reservation Indians to make their own laws and be ruled by them." 11 Not only do Indian tribes on reservations retain their powers of internal sovereignty, but the ordi- nances passed by the governing body and the deci- sions of the tribal courts are usually not reviewable in either state or Federal courts-even though a United States constitutional issue is raised.12 Moreover, Indi- i i McClanahan v Arizona State Tax Commission, 411 U S 164, 181 (1973), quoting from Williams v. Lee, d/b/a Ganado Trading Post, 358 U S 217, 220 (1959) In McClanahan, the Court struck down an attempt by the state to impose its income tax on Indians living on a reservation In so doing, the Court reaffirmed the unique governmental status of Indian tribes (at 172- 173) It must always be remembered that the various Indian tribes were once independent and sovereign nations, and that their claim to sovereignty long predates that of our own government. Indians today are American citizens. They have the right to vote, to use state courts, and they re- ceive some state services . But it is nonetheless still true , as it was in the last century, that "[t]he relation of the Indian tribes living within the borders of the United States . [is] an anomalous one and of a com- plex character They were, and always have been, regarded as having a semi-independent position when they preserved their tribal relations; not as States, not as nations, not as possessed of the full attributes of sovereignty, but as a separate people, with' the power of regulating their internal and social relations, and thus far not brought under the laws of the Union or of the State within whose limits they resided " 12 See, for example, Native American Church of North America v. Navajo Tribal Council, 272 F 2d 131 (C.A. 10, 1959) There, plaintiff attempted to enjoin enforcement of an ordinance adopted by the Navajo Tribal Council making it an offense to introduce in Navajo country the peyote bean which was used by plaintiff church in connection with its religious ceremonies. In dismissing plaintiff's contention, the court noted that: The Constitution is, of course, the supreme law of the land, but it is nonetheless a part of the laws of the United States. Under the philoso- phy of the decisions, it, as any other law, is binding upon Indian na- tions only where it expressly binds, them, or is made binding by treaty or some act of Congress. No provision in the Constitution makes the first amendment applicable to ,Indian nations nor is there any law of Congress doing so. It follows that neither, under the Constitution or the laws of Congress, do the Federal courts have jurisdiction of tribal laws or regulations even though they may have an impact to some extent on forms of religious worship. The court of appeals quoted from Williams v Lee, 358 U S. 217 (1959), where the Supreme Court, speaking of the Navajo Nation, said : "'Implicit Continued 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an nations, as an attribute of their quasi-sovereignty, are immune from suit in either state or Federal courts, without congressional authorization." It is clear that individual Indians and Indian tribal gov- ernments, at least on reservation lands, are generally free from state or even in most instances Federal in- tervention, unless Congress has specifically provided to the contrary.14 Tribal governments such as the one here involved resemble a State in many ways but are not precisely so defined. Rather, they are political governments created by the Indians themselves as a separate peo- ple, in conjunction and affiliation with the United States Government, whether by treaty, congressional enactment, or executive order.15 Thus, we note that Indian tribes have been de- scribed, inter alia, as the equivalent of a State; or of a territory," as more than a State " or territory, as in- dependent or dependent nations, as a distinct politi- cal entity, as a separate political community, as quasi or semi-sovereign nations, and as a separate people, "not brought under the laws of the Union or the State" 18 when they preserved their tribal relations. And, as this Board observed in the Texas Zinc case, "It is well established that the Indian tribes in Ameri- ca are deemed to have many of the attributes of a nation. Thus, although their external sovereignty has been extinguished, their internal sovereignty is pre- served...." 126 NLRB at 604. .. was the understanding that the internal affairs of the Indians remained exclusively within the jurisdiction of whatever tribal government existed," and went on to say (272 F 2d at 134) No law is cited and none has been found which undertakes to subject the Navajo tribe to the laws of the United States with respect to their internal affairs, such as police powers and ordinances passed for the purposes of regulating the conduct of the members of the tribe on the `reservation. It follows that the Federal courts are without jurisdiction over matters involving ordinances passed by the Navajo legislative body for the regulation of life on the reservation. 13 United States v United States Fidelity & Guaranty Co, 309 U S 506 (1940), Thomas Iron Crow v The Oglala Sioux Tribe of the Pine Ridge Reser- vation, South Dakota, 231 F.2d 89, 92 (C.A 8), Maryland Casualty Co v Citizens National Bank of West Hollywood, 361 F.2d 517, 520 (1966) 14 See fn 8, supra As noted above, even the Department of the Interior, which is by law charged with the administration of Indian affairs and Indi- an reservations, provides that organization of a tribe and approval of its constitution, i e., formal establishment of the tribal government as a sgpa- rate governing entity, render the Department's own rules and regulations inapplicable to the tribe or reservation , unless the rule or regulation specifi- call states otherwise And see Federal Indian Law, supra, 395, et seq Federal treaty making with the various Indian tribes was discontinued by 1871 Thereafter, dealings with the various tribes were either by congres- sional enactment or by executive order . As a practical matter, all three forms now have the same effect See United States Department of the Inte- nor, Federal Indian Law, United States Government Printing Office, 1958, p. 207-214. See also Arizona v. California, 373 U.S 546 (1963), where the Court summarily rejected plaintiff's argument that a reservation created by executive order does not attain the same status as that created by treaty or congressional act i See, e.g, Federal Indian Law, supra, 471. Native American Church, supra, 272 F 2d 131, 134 18 United States v. Kagama, 118 U S. 375, 381-382 Regardless of the particular label applied, howev- er, it is clear beyond peradventure that a tribal coun- cil such as the one involved herein-the governing body on the reservation-is a government 19 both in the usual meaning of the word, and as interpreted and applied by 'Congress, the Executive, and the Courts 20 Consistent with our discussion of authorities re- cognizing the sovereign-government character of the Tribal Council in the political scheme of this country it would be possible to conclude that the Council is the equivalent of a State, or an integral part of the government of the United States as a whole,2' and as such specifically excluded from the Act's Section 2(2) definition of "employer." We deem it unnecessary to make that finding here, however, as we conclude, and find that the Tribal Council, and its self-directed en- terprise on the reservation that is here asserted to be an employer, are implicitly exempt as employers within the meaning of the Act.22 Accordingly, we shall dismiss the petition herein 23 ORDER The petition herein shall be, and it hereby is, dis- missed. 19 See fns 7 and 10, supra, and accompanying text.-While the particular status of Indian governments in this country may under some circumstances be rationalized differently for different purposes ,- there is no doubt that they are in fact governments, with most of their powers of sovereignty still intact See, generally, Federal Indian Law, supra, Chap. VI, especially pp. 395-412 and 468-476 And see Jurisdiction Over Indians and Indian Reservations, 6 Arizona L Rev, 1965, p 237 20 As a unanimous Court stated in Williams v Lee, supra, "the cases in this Court have consistently guarded the authority of Indian governments over their reservations " Tribal governments are also considered govern- ments within the meaning of Federal statutes Federal Indian Law , supra, 411 21 Indian tribes have been held to be "Agents," and "instrumentalities of the United States" for certain purposes, as well as municipalities See Feder- al Indian Law, supra, 472-473 22 As set forth in fn 5, above, in N L R B v Natural Gas Utility District, 402 U.S 600, 604 (1971), involving a utility district formed by private mdi- viddals under state law, the Supreme Court noted the lack of legislative history concerning "political subdivision" in Sec 2(2) of the Act, and then said- "The legislative history does reveal , however, that Congress enacted the § 2(2) exemption to except from Board cognizance the labor relations of federal, state, and municipal governments, since governmental employees did not usually-enjoy the right to strike." The Court concluded that the utility district in question was an entity administered by individuals respon- sible to public officials-consistent with the Board's own test-hence ex- empt as a political subdivision of a State . So here we conclude that the Fort Apache Timber Company is an entity administered by individuals directly responsible to the Tribal Council of the White Mountain Apache Tribe, hence exempt as a governmental entity recognized by the United States, to whose employees the Act was never intended to apply. 23 In view of our disposition of the case on this ground, we do not reach the Tribe's assertion that the'Board should in any event exercise its discre- tion to decline jurisdiction over the Tribe on various other grounds, e g., certain statutory provisions granting Indians preference in employment, which are construed as exceptions to Civil Rights Act (see 29 U.S. Code 46, 25 U.S C 44, et seq, and Mancari v. Morton, 94 S.Ct. 2474, and the Tribe's right to exclude nonmembers of the tribe from the reservation, coupled with its power to regulate activities on the reservation through passage of ordi- nances which may not be reviewable in Federal courts.