There are enough conflicting opinions over whether the National Labor Relations Board has jurisdiction over tribal businesses that some legal observers expect the issue to eventually be decided by the U.S. Supreme Court or by Congress.
On June 4 the NLRB issued a decision in the unfair labor practice case filed against the Chickasaw Nation’s Winstar Casino by the Teamsters. The Teamsters claimed that the tribe acted in a threatening way when it was trying to organize about 3,000 dealers. A previous NLRB had ruled that the National Labor Relations Act (NLRA) applies to tribal businesses, however, in June a different NLRB ruled that it does not have jurisdiction in this specific case due to a treaty between the Chickasaw and the U.S., the 1830 Treaty of Dancing Rabbit Creek. The NLRB did assert a “general application” to have jurisdiction over tribes.
This conflicts with earlier cases where the board ruled that it had jurisdiction over the Little River Band of Ottawa Indians Tribal Government and the Soaring Eagle Casino & Resort. It ruled that the Little River Band has to stop enforcing provisions of its tribal labor law that conflicts with NLRA. This ruling was just affirmed last week by the Sixth Circuit Court of Appeals. In a dissent, however, one judge asserted that this ignored a Supreme Court decision in Michigan v. Bays Mill Indian Community, where the high court said that only an act of Congress could overturn tribal immunity.
The 2002 ruling by the Sixth Circuit rejected NLRB jurisdiction over a tribe in New Mexico. When two circuit appeals courts disagree on a principle of law that usually sends the case to the Supreme Court.
Another complication: the Saginaw Michigan Chippewa Tribe earlier this month filed a federal lawsuit challenging the NLRB’s application of “quickie election” rules to the tribe.
Meanwhile the Senate Indian Affairs Committee has moved a bill that would specifically exempt businesses operated on tribal lands from federal labor law.
The bill, S.248, the Tribal Labor Sovereignty Act, was moved by a voice vote. According to its sponsor, Senator Jerry Moran, “Tribal governments deserve and, in fact, are entitled by law to have parity alongside other governments.”
About sixty representatives of UNITE Here, including hotel and restaurant workers, should up to protest the bill. Marie Elena Durazo, a spokesman for the group declared, “This bill is a fundraiser, masked with the phony embrace of respect for tribal sovereignty. We won’t stand by as the Senate sells out all-American rights.”
Committee Chairman John Barrasso promised to lobby for passage of the bill in the full Senate. In his press release the Senator said, “Today, the committee passed important legislation that will empower tribes and respect them as sovereign governments.”
Senator Moran referred to the Sixth Circuit’s decision regarding the Little River Band, when he said, “So we have the circumstances of two potential inequalities: whether one sovereign entity is treated differently than another sovereign entity and whether a particular tribe is treated differently than another tribe.”
In the House, meanwhile, the House Subcommittee on Health, Employment, Labor and Pensions held a hearing on the same bill. The chairman of the committee, David Roe, stated, “This is as about as clear an issue as I’ve ever seen. Either you’re sovereign or you’re not.”
The issue creates a conundrum for President Obama and fellow Democrats who have traditionally both supported strong labor rights and tribal sovereignty. In this case, it appears difficult to reconcile the two.
