A national legal battle is taking place regarding how far U. S. labor law can affect the sovereign rights of Native American tribes. The issue derives from a 2010 Michigan case, in which the Saginaw Chippewa fired a housekeeper at the Soaring Eagle casino for soliciting union support among workers. The housekeeper took her case to the U.S. National Labor Relations Board, which ordered the casino to reinstate her. The tribe refused, stating the NLRB, which oversees union elections and negotiates private-sector labor relations disputes, was out of bounds meddling in tribal business.
Now the $28 billion tribal casino industry is watching the Saginaw Chippewa once again as it fights the NLRB in one of three nearly identical court cases. At issue is tribal sovereignty versus the right of private-sector workers to pursue union representation under the 1930s National Labor Relations Act which is overseen by the NLRB.
For years the NLRB considered off-reservation businesses as subject to the NLRA and on-reservation businesses as exempt. That changed in 2004 when the agency said the NLRA did apply to a casino on the reservation of the San Manuel Band of Serrano Mission Indians in San Bernardino County, California. After that decision, a wave of unionization campaigns began at tribal casinos, including at the Soaring Eagle, leading to the firing of the housekeeper. The NLRB heard her case and in April 2013 ordered the Soaring Eagle to reinstate her. But the Saginaw Chippewa refused, arguing that the NLRB lacked jurisdiction over the casino because it was not a private-sector employer, but part of a sovereign government. The NLRB maintained that the casino was a purely economic enterprise that it could regulate.
The Saginaw Chippewa, in a brief filed with the 6th U.S. Circuit Court of Appeals in Cincinnati, said if the NLRB triumphs and unions are allowed in the casino, Soaring Eagle’s operating costs would soar and profits would decline. “The impact on the tribe and its governmental services would be, in a word, devastating,” the brief said. The tribe receives 90 percent of its income from the casino. Tribal member and spokesman Frank Cloutier said thanks to Soaring Eagle, “Our reality has changed, our quality of life has completely changed.”
The tribe has argued that allowing the NLRB to establish authority over the Soaring Eagle infringes on a treaty between the Saginaw Chippewa and the U.S. government. It also is improper because the NLRB has jurisdiction only over private-sector employers, not state, local or tribal governments, the tribe has said. “But all of a sudden, the Native American community is being treated differently than any other government,” Saginaw Chippewa attorney Sean Reed said.
Saginaw Chippewa leaders said full-time jobs at the casino come with generous benefits packages. Workers who want to challenge employment decisions can request a hearing, bring witnesses and present evidence. “It’s a very fair process,” Cloutier said.
If the federal appeals courts come up with split decisions, the cases could end up at the U.S. Supreme Court.
