NLRB Rules that Tribal Sovereignty Does Not Prevent It from Exercising Jurisdiction Over Indian Casino

Soareagle.JPGThe National Labor Relations Board (NLRB) recently affirmed a prior ruling holding that it has jurisdiction to enforce the National Labor Relations Act (NLRA), 29 U.S.C. § 151 et seq. in a dispute involving a Michigan casino operated by an Indian tribe. Soaring Eagle Casino and Resort, et al, No. 07-CA-053586. An administrative law judge (ALJ) ruled that the casino violated a former employee’s rights under the NLRA. The tribe, the Saginaw Chippewa Tribal Nation, has denied that the NLRB has jurisdiction over it because of tribal sovereignty. The U.S. government recognizes hundreds of Indian tribes as “domestic dependent nations,” with a degree of sovereignty over their own members. Tribal law is incredibly complicated, but the question presented in this case is relatively simple: does the NLRA, a federal statute, apply to a business owned and operated by an Indian tribe? At least one federal circuit court of appeals has held that it does, and courts have held that other statutes are binding on tribes.

A former employee of the Soaring Eagle Casino filed a complaint with the NLRB in 2011, claiming that she was fired for soliciting support among her co-workers for a union. An ALJ ruled in the employee’s favor in March 2012, dismissing the tribe’s argument that the NLRA should not apply to activities at the casino. The casino is located on land that belongs to the tribe under treaties ratified in 1855 and 1864, but the complainant argued that because the casino is not “an essential Government operation of the Tribe,” it should be subject to the NLRA. Soaring Eagle, ALJ Decision at 7 (March 26, 2012).

The ALJ noted that statutes of “general application” may apply to individual tribal members, Fed. Power Comm’n v. Tuscarora Indian Nation, 362 U.S. 99 (1960), and that the NLRB has found the NLRA to be such a statute. He concluded that the casino is engaged in commerce as defined by the NLRA. 29 U.S.C. §§ 152(2), (6)-(7). Prior cases have reached similar decisions. The D.C. Circuit Court of Appeals held that the NLRA applies to a casino operated on tribal land in San Manuel Indian Bingo and Casino v. NLRB, 475 F.3d 1306 (D.C. Cir. 2007). Another court held that the Occupational Health and Safety Act applies to commercial activities on tribal land. Donovan v. Coeur d’Alene Tribal Farm, 751 F.2d 1113 (9th Cir. 1985).

The Saginaw Chippewa appealed the ALJ’s decision to the NLRB, disputing the findings that it violated the NLRA as well as the ALJ’s jurisdiction to decide the case. It also challenged the NLRB’s jurisdiction based on a dispute over recess appointments made by President Obama, which were the subject of pending litigation at the time. The NLRB affirmed the ALJ’s decision without directly addressing the tribal sovereignty issue. 359 NLRB 92 (2013).

The tribe appealed to the Sixth Circuit, and while the case was pending there, the Supreme Court ruled that the recess appointments of three people to the NLRB were unconstitutional. NLRB v. Noel Canning, 573 U.S. ___ (2014). The NLRB moved the Sixth Circuit to remand the case for a rehearing based on the Noel Canning decision. The court granted the motion, and a three-member panel of the NLRB affirmed the prior rulings in October 2014. 361 NLRB 73.

If you need to speak to an employment discrimination attorney in New Jersey or New York, contact the Resnick Law Group online, at 973-781-1204, or at 646-867-7997.

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