Congress agreed in 2010 to fund a dam and water treatment project for the White Mountain Apache, but have not been able to approve a bill that would let the tribe actually spend the money. (Photo by Kristin Nador/Creative Commons)
WASHINGTON – The National Labor Relations Board and Native American water rights aren’t usually associated with one another. But to the White Mountain Apache tribe they’re currently tightly entwined.
A bill to give the tribe access to federal water-project funds has stalled in the Senate over language added in the House that would exempt businesses run by any tribe, including casinos, from NLRB oversight.
Republicans say the NLRB language is needed to correct an overreach by the agency into an area where it has no business, while Democrats accuse the GOP of holding water rights hostage to weaken labor protections.
And the tribe, which has been unable to spend money that was approved in 2010 to fix its water system, is left waiting.
“They’re two separate distinct issues and yet we’re treating them in one bill,” said Rep. Tom O’Halleran, D-Sedona, of the bill as it now stands. “One has nothing to do with water, the other one has a lot to do with water and important water issues in Arizona and there’s no way that they’re germane to each other.”
The original bill, introduced in January 2017 by Arizona Republican Sens. Jeff Flake and John McCain, clarified the 2010 settlement with the tribe to make clear that funds that were designated for cost overruns could be used for planning and construction of a dam and groundwater system.
The bill moved quickly through the Senate, passing without opposition in May and moving to the House. It sat until this January, when Republicans added the amendment that would ensure tribal governments that own and manage businesses in their respective nations do not fall under the reach of the NLRB.
The amended bill passed Jan. 10 on a 239-173 vote that fell mostly along party lines. O’Halleran was one of only 23 Democrats to vote in favor of the measure.
When it came up for a vote in the Senate last week, however, Democrats blocked a vote on the amended bill, with Senate leaders unable to get the 60 votes needed to end debate.
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Even though his original bill was amended, Flake took to the floor of the Senate last week to urge passage of the bill, saying the labor language corrects “an issue with the National Labor Relations Act,” from which tribal governments were exempt for 70 years.
“In 2004, the NLRB inappropriately ruled that tribes are no longer exempt,” Flake said. “This measure would create parity for tribal governments, giving them the same employer rights afforded to other federal, state and local governments.”
Calls to the White Mountain Apache were referred to Robert Brauchli, special counsel to the tribe during the original settlement in 2010. He agreed with Flake that the amended bill should pass, and said it all boils down to an issue of tribal sovereignty.
“They don’t need another layer of interference from the outside as to their economic development or the way they manage their limited resources, including labor,” Brauchli said.
Brauchli, who has represented the White Mountain Apache since 1980, said he and many other tribal leaders believe the NLRB’s 2004 decision “was contrary to longstanding federal Indian law principles and the government-to-government relationship between the recognized American Indian Tribes and the United States.”
Even though O’Halleran believes the amendment changes the original promise of the 2010 settlement – which was to provide crucial water-project funding to the tribe – he ultimately voted for the amended bill because something needs to be done.
“This is part of a settlement that we’ve agreed to as a federal government and as a state government and other entities with the White Mountain Apache,” O’Halleran said. “And I think that we have that obligation, I know we have that obligation.”
This is at least the second time Congress has tried to clarify funding of the White Mountain Apache project. A similar bill passed the Senate in 2016, but never got out of committee in the House.
Brauchli called the “politicizing” of the water bill “unfortunate” and hopes it passes quickly, as the tribe is relying on the funds to build a reliable drinking-water system.
“It’s not just a matter of development, it’s a matter of survival,” Brauchli said. “They need a reliable source of drinking water and they don’t have it.”