The U.S. Supreme Court kicked back two issues to lower courts that are important to Indian Country, making it more difficult for the tribes to make their case.
The court has declined to hear an appeal of a decision by a lower court that held that Indian tribes are subject to the National Labor Relations Act.
The court denied petitions in the cases of Little River Band of Ottawa Indians Tribal Government v. NLRB and Soaring Eagle Casino and Resort v. NLRB. That strikes home at a long-cherished belief by Indian tribes that their sovereignty protects them from the nation’s labor laws, as U.S. states and the federal government are protected.
In declining to hear the cases the Supreme Court in effect upheld the decision by the 6th Circuit Court of Appeals, which ruled against the tribes one year ago. The Obama administration had urged the court to sit this one out, although. The National Congress of American Indians, the National Indian Gaming Association, the California Nations Indian Gaming Association, the United South and Eastern Tribes asked the high court to uphold tribal rights.
The action also leaves standing the 2007 decision by the D.C. Circuit Court of Appeals, which also ruled that tribes are subject to the NLRB.
The 9th Circuit Court of Appeals has a similar case before it. If it rules in a different way, that would almost certainly force the Supreme Court to bring unity to the rulings. That case involves the Pauma Band of Luiseño Indians in San Diego County, California, whose Casino Pauma banned employees from wearing pro-union buttons on the job.
Tribes are still lobbying Congress to adopt the Tribal Labor Sovereignty Act, which puts tribes in the same category as the states and federal government. The bill has passed the House and awaits the Senate’s action.
One of those lobbyists, retired U.S. Senator Ben Nighthorse Campbell, last week urged passage of the bills. “These are modest bills in terms of language, less than two pages. But their importance is profound: they would expressly exclude tribal governments from the definition of ’employer’ in the NLRA. Parity: no more, no less,” he wrote in Indian Country Today recently.
The issue is unusual in that it pits two interest groups that the Democratic party usually supports against each other: tribes and labor unions. The GOP, which is pushing the bill, is seeking to recruit a few Democrats to support the bill in order to prevent it from being filibustered in the Senate.
The White House would prefer that the bill not pass, but has said it might support it if it requires that tribes adopt similar standards to those in federal law.
Tribal law specialist Steve Biddle of Littler Mendelson told CalvinAyre: “It’s a little surprising the court didn’t take this on, because there’s a clear split in the circuits,” adding, “No one quite knows what the answer is or what’s next. It leaves the people running casinos and the employees of those casinos in the dark. Depending on which circuit you’re in, you might be able to organize or you might not.”
Meanwhile, the court has decided not to weigh in on a dispute between the Pauma Band of Luiseño Indians and the state of California over Pauma’s tribal state tribal gaming compact.
Last week the high court without comment denied a petition from the tribe in the case of California v. Pauma Band of Luiseño Mission Indians of the Pauma and Yuima Reservation and Pauma Band of Mission Indians v. California. This upheld the earlier decision by a panel of the 9th Circuit Court of Appeals, which ruled in 2015 that the state had fraudulently persuaded the tribe that it owed more slot machine revenues than it actually did: ruling that the state owed the tribe $36.2 million.
However, the tribe didn’t get something it wanted either, an order from the high court that the state return to the negotiating table for a new compact. Its current compact expires in four years. The tribe is concerned that the state will now draw out that negotiation as long as possible.
In its brief to the Supreme Court the tribe wrote, “After the state invariably demands tax payments in a creatively different manner than before, Pauma will then face the prospect of litigating a bad faith negotiation claim in the Ninth Circuit, where the typical lifespan of such a case ranges from six to eight years.”
