Sixth Circuit Extends NLRA to Tribal Casinos

Two panels of the 6th Circuit Court of Appeals have approached the question of whether the National Labor Relations Act applies to tribal operations somewhat differently. An “en banc” meeting of the full court may be required to settle the issue.

In June the 6th Circuit Court of Appeals ruled that the National Labor Relations Act governs tribal casinos.

In the case of NLRB v. Little River Band of Ottawa Indians Tribal Government, a three-member panel of the court ruled on June 9 that tribal sovereignty did not remove it from federal labor laws, in particular the tribe’s Soaring Eagle Casino and Resort.

On July 1, another panel of the 6th Circuit ruled that the same held true, in spite of a treaty between the tribe and U.S. government that would seem to exclude such enterprises from federal law.

The opinion says, “Although … the existence of the treaties remains relevant to our analysis of the tribe’s right of inherent sovereignty, we do not find that the general right to exclude described in the 1855 and 1864 treaties, standing alone, bars application of the NLRA to the casino.”

The court seems to leave the door open for the tribe to adopt laws that would prevent a union from organizing: “For all of these reasons, if writing on a clean slate, we would conclude that, keeping in mind ‘a proper respect both for tribal sovereignty itself and for the plenary authority of Congress in this area,’ the tribe has an inherent sovereign right to control the terms of employment with nonmember employees at the casino, a purely tribal enterprise located on trust land,” And “The NLRA, a statute of general applicability containing no expression of congressional intent regarding tribes, should not apply to the casino and should not render its no-solicitation policy void.”

Because the second decision appears to criticize the logic of the first decision, it leaves open the very real possibility that the full 6th Circuit will need to issue an opinion.

In general Indian law has held that tribes have the right of self-governance despite state and federal laws. However, it is also recognized that Congress has the power to set limits that that self-governance.

Courts have spent decades interpreting federal laws to determine when they are intended to apply on the reservation. The NLRA is silent as to whether it applies to Indian tribes. The 6th Circuit has ruled that it does.

The NLRB has long contended that it does have authority over tribal enterprises such as casinos. But it also made an exception for tribal government. Then, in 2004, the NLRB asserted jurisdiction over tribal employers engaged in commercial activities.

It has cited the 9th Circuits 1985 ruling in Donovan v. Coeur d’Alene Tribal Farm that stated that “a general statute in terms applying to all persons includes Indians and their property interests,” unless:

(1) the law touches “exclusive rights of self-governance in purely intramural matters.”; (2) the application of the law to the tribe would “abrogate rights guaranteed by Indian treaties”; or (3) there is proof “by legislative history or some other means that Congress intended [the law] not to apply to Indians on their reservations . . . .”

The NLRB interpreted this to mean that labor law applies to tribal owned and operated businesses on the reservation.

The D.C. and 10th Circuits disagree on the application of the NLRA to tribal enterprises, especially as it relates to tribal self-government.

Because separate panels of the 6th Circuit issued rulings that partially contradict each other, it is anticipated that the full 6th Circuit, may consider the issue “en banc.”

Even with those disagreements, however, both panels agreed that the NLRA applies to a tribal casino.

The case arose from a case involving the Saginaw Chippewa Indian Tribe of Michigan, which has 3,000 members. The tribe operates the Soaring Eagle Casino & Resort on the reservation. About 7 percent of its employees are tribal members.

The casino’s employee’s handbook forbids employees from soliciting union membership on casino property and subjects those who break this rule to discipline and termination.

In 2010 an employee violated this policy, soliciting membership in the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America. The employee was fired.

The union filed a complaint with the NLRB, which ruled that allowing union organizing does not interfere with the tribe’s self-governance.

The case wound its way up to the 6th Circuit.

Even if the U.S. Supreme Court doesn’t ultimately step in as a referee on this issue, Congress itself may act. The Tribal Labor Sovereignty Act is a bill that has been working its way through committee hearings on the way to the House floor.

Recently Mashantucket Pequot Chairman Rodney Butler told the House Subcommittee on Health Employment, Labor and Pensions, “It should be the right of any sovereign government to make decisions that are best for people.”

The Senate Indian Affairs Committee has approved an identical bill, S.248.

On June 24 the House Appropriations Committee voted for a funding bill that prevents the NLRB from spending money to apply to the NLRA to tribes.