Tribes Anxious for Supreme Court to Rule on Labor Dispute

Sat, Jun 4, 2016

Tribes are watching anxiously to see if the U.S. Supreme Court will decide to take up the issue of whether the National Labor Relations Board has jurisdiction over tribal enterprises. The Obama administration would prefer that the Justices leave the issue alone. John Dossett (l.), general counsel for the National Congress of American Indians, says it’s a battle between Indian Country and Big Labor.

The National Congress of American Indians and several other tribal organizations are urging the U.S. Supreme Court to hear a dispute on how far labor laws reach into sovereign Indian lands.

The Obama administration would rather that the Supremes take a pass on this particular dispute. Last week attorneys for the Department of Justice and the National Labor Relations Board filed a brief that argued that the

National Labor Relations Act “does not divest them [tribes] of sovereign authority.”

The coalition pressing for intervention by the Supreme Court, besides the National Congress, includes the National Indian Gaming Association, the California Nations Indian Gaming Association, the United South and Eastern Tribes and the states of Colorado and Michigan.

The government has adopted a delaying tactic, arguing that the Supreme Court should wait a big until the 9th Circuit Court of Appeals decides a similar case and combine it with the 6th Circuit Court of Appeals. Between them the two circuits cover hundreds of tribes. The idea would be if the two circuits rules the same way, then the issue is probably resolved, but if they rule differently the Supreme Court will be forced to step in.

The government attorneys also note that the issue might be mooted if Congress passes House passed H.R.511, the Tribal Labor Sovereignty Act, which would remove tribes from jurisdiction of the NLRA. A similar bill is awaiting action in the Senate.

“Whether or not the pending bill is enacted in its current or in a modified form, Congress’s active consideration of the issue counsels against this Court’s intervention at this time,” says the brief filed by the Justice Department.

In May the National Labor Relations Board (NLRB) argued to the Supreme Court that it has authority over labor relations involving two tribal casinos in Michigan operated by the Little River Band of Ottawa Indians and the Saginaw Chippewa Indian Tribe. They asked for the high court to uphold the 6th Circuit, which sided with the NLRB.

The NLRB had overturned a tribal ordinance that prohibits casino employees to strike, hold work stoppages or slowdowns.

The tribes argue that the NLRA violates tribal sovereignty.

Some tribal representatives, like John Dossett, general counsel for the National Congress of American Indians, said this is a chance for the Obama administration to demonstrate which it supports, Big Labor or Indian Country.

In a related issue, tribes are also waiting for the U.S. Supreme Court to decide the case of Dollar General Corporation v. Mississippi Band of Choctaw Indians.

The Supreme Court heard arguments in the case 176 days ago before the death of Justice Antonin Scalia. The issue is whether Dollar General must answer to a lawsuit filed in the tribe court of the Mississippi Band of Choctaw Indians. The 6th Circuit sided with the tribe.

Tribal advocates were pessimistic after the oral arguments were made in December. They are more sanguine now that Scalia is not a factor anymore. The court may, in fact, be deadlocked on the case, which may be why they haven’t ruled on it yet.