A federal appeals court and a National Labor Relations Board panel recently handed down opposing rulings regarding tribal sovereignty and labor relations in tribal casinos. In a 2-1 decision, the U.S. Sixth Circuit Court of Appeals said Little River Band of Ottawa Indians may not set its own labor rules at its Little River Casino Resort in Manistee. Yet the National Labor Relations Board panel declined to assert jurisdiction at the WinStar World Casino and Resort owned by the Chickasaw Nation of Oklahoma, ruling 3-0 that applying the National Labor Relations Act to the casino conflicts with the 1830 Treaty of Dancing Rabbit Creek—meaning the tribe is a sovereign nation with solid treaty protections.
In the Little River Band case, the tribe claimed tribal sovereignty allowed it to adopt its own laws that ban strikes and discourage union organizing by casino employees. The Teamsters challenged that, and the union won before the National Labor Relations Board. The Little River Band said the NLRB had no jurisdiction in this instance.
However, Appeals Court Judge Julia Smith Gibbons said despite claims of sovereignty, with just a few exceptions, federal laws still apply to tribes. The court noted Congress adopted the Indian Gaming Regularity Act to help tribes with economic development. “It does not, however, immunize the operation of Indian commercial gaming enterprises from the application of other generally applicable congressional statutes,” Gibbons wrote for the majority opinion. The court said federal labor laws apply because most of the Little River Band’s 900 workers are not tribal members and do not live on the reservation.
Writing for the minority, Appeals Judge David McKeague said the decision turns tribal legal precedents upside down and hinted the U.S. Supreme Court may want to review the case. “In the process, we contribute to a judicial remaking of the law that is authorized neither by Congress nor the Supreme Court,” McKeague wrote in his dissent.
Also recently, In a ruling that appears to be the first of its kind, a National Labor Relations Board panel declined to assert jurisdiction at the WinStar World Casino and Resort owned by the Chickasaw Nation of Oklahoma. In a major reversal, the board ruled 3-0 that applying the National Labor Relations Act to the casino conflicts with the 1830 Treaty of Dancing Rabbit Creek—meaning the tribe is a sovereign nation with solid treaty protections.
The new ruling defers to settled principles of Indian law and policy and even acknowledges that the NLRB has “no special expertise in construing Indian treaties.” The decision states, “Giving due consideration to the ‘enlarged rules of construction’ to be used in interpreting Indian treaties, recognized in article 18 of the 1830 Treaty itself, we find that this provision forecloses application of the NLRB, which is not a law enacted by Congress in legislation specific to Indian affairs.” It continues, “As a result, we decline to assert jurisdiction over the Nation, the Respondent here.”
Plus, the decision states, “Article 18 of the 1830 Treaty provides that ‘wherever well founded doubt shall arise’ concerning the construction of the treaty, ‘it shall be construed most favorably towards’ the Nation.”
In 2011, the International Brotherhood of Teamsters Local 886 claimed that casino supervisors “engaged in threats and surveillance” of blackjack dealers who were trying to unionize. WinStar and the tribe denied the union’s claims. The Chickasaw Nation then filed a lawsuit in federal court, alleging the labor board didn’t have jurisdiction over the tribe because of the tribe’s sovereign nature.
The recent ruling represents a dramatic turnaround, because in July 2013, the NLRB said the 1866 Treaty of Washington “sharply increased the relative authority” of the federal government over the tribe. A later U.S. Supreme Court decision involving the NLRB set aside that decision, giving the Chickasaw tribe a second chance to defend its sovereignty.
Many tribal advocates feel the new ruling will benefit tribes beyond the Chickasaw in regard to future NLRB decisions, since many tribes have strong treaty language with the U.S. Those with weaker treaty language may not be protected.
Tribes currently are lobbying Congress to amend the NLRA to recognize their rights. S.248, the Tribal Labor Sovereignty Act, treats tribes and their enterprises the same as states and local governments. The Senate Indian Affairs Committee heard testimony on the bill in April and will consider it again at an upcoming business meeting.
Committee Chairman U.S. Senator John Barrasso of Wyoming said, “The National Labor Relations Board decision to apply the National Labor Relations Act to Indian tribes has increased costs and uncertainty, which can hinder tribal business growth. The bill before us would amend the National Labor Relations Act so that a tribally owned and operated enterprise or institution would be treated like any other federal or state-owned corporation.”
