Question: San Juan Pueblo is a federally recognized Indian tribe, which is to say an independent Indian nation, located in New Mexico. Most of its 5,200 members live on tribal lands that are held in trust by the United States for the Pueblo. The Pueblo is governed by a tribal council, which is vested with legislative authority over tribal lands. Through federally approved leases, the Pueblo leases portions of its tribal land to nontribal businesses as a source of generating tribal income and as a means of employment for tribal members. On November 6, 1996, the San Juan Pueblo Tribal Council enacted Tribal Ordinance No. 96-63. The ordinance in substance is a so-called "right-to-work" measure. The Pueblo asserts that the ordinance is a valid exercise of its inherent sovereign authority. As amended, the ordinance prohibits the making of agreements containing union-security clauses covering any employees, whether tribal members or not.
Section 6(a) of the ordinance reads: No person shall be required, as a condition of employment or continuation of employment on Pueblo lands, to:
(i) resign or refrain from voluntary membership in, voluntary affiliation with, or voluntary financial support of a labor organization;
(ii) become or remain a member of a labor organization;
(iii) pay dues, fees, assessments or other charges of any kind or amount to a labor organization;
(iv) pay to any charity or other third party, in lieu of such payments any amount equivalent to or a pro-rata portion of dues, fees, assessments or other charges regularly required of members of a labor organization; or
(v) be recommended, approved, referred or cleared through a labor organization. Should the tribal law be considered preempted by the National Labor Relations Act, or should the tribal council be recognized as a sovereign government body outside the reach of the NLRA? What policy reasons can you think of, that favor one or the other of these outcomes? See NLRB v. Pueblo of San Juan, 276 F.3d 1186 (10th Cir. 2002).