Federal court won't rehear tribal labor law dispute

Wednesday, June 13, 2007  

A high-profile sovereignty case could be headed to the U.S. Supreme Court after a California tribe lost its last shot at a rehearing on Friday.

In a short order, the D.C. Circuit Court of Appeals announced it was denying a petition to reconsider the case. That means a controversial ruling to subject tribes to federal labor law will stand unless the high court intervenes.

The San Manuel Band of Mission Indians, the owners of a highly successful casino, sought the rehearing after losing the case in February. The tribe hasn't decided whether to appeal to the Supreme Court, a spokesperson told The Riverside Press-Enterprise.

"We've not had a chance to confer with our counsel or our governing body," Jacob . Coin, the director of tribal communications said.

If no action is taken, tribes will have to comply with the National Labor Relations Act if their business enterprises impact non-Indians. "You're soon going to have labor unions knocking on your door," National Congress of American Indians general counsel John Dossett said after the February decision.

The only other option lies in the hands of Congress. But with Democrats -- the longtime allies of unions -- in control of the House and Senate, changes in federal law to treat tribes the same as state and local governments are highly unlikely.

The dispute started when a labor union tried to organize at the San Manuel casino. The tribe has its own labor laws and has a contract to work with one particular union.

That wasn't enough for the National Labor Relations Board. Overturning 30 years of precedent, the board in May 2004 said that tribal enterprises -- even those located on reservations -- have to comply with labor law if they impact or employ a significant number of non-Indians.

"As tribal businesses prosper, they become significant employers of non-Indians and serious competitors with non-Indian owned businesses," the decision stated. "When Indian tribes participate in the national economy in commercial enterprises, when they employ substantial numbers of non-Indians, and when their businesses cater to non-Indian clients and customers, the tribes affect interstate commerce in a significant way."

Although the board said it would look at each situation on a tribe-by-tribe basis, the ruling drew widespread objections in Indian Country. It led to two unsuccessful attempts during the Republican-controlled Congress to shield tribes from labor law.

The debate has had other impacts as well. Sen. Hillary Clinton (D-New York), a front-running Democratic contender for president in 2008, has decided to skip a tribal forum in California due to the labor issue.

Six casino compacts, including one signed by the San Manuel Band, have been held up by Democratic lawmakers in California. Labor unions say the deals won't protect workers' rights in what has become the fastest growing industry in the state -- Indian gaming.

Elsewhere, two of the largest casinos in the world face pressure from unions. The Mashantucket Pequot Tribal Nation and the Mohegan Tribe, both in Connecticut, have seen an increase in union efforts since the court decision.

"Everything, including the things you like most about working here could be at risk," John A. O’Brien, the president of Mashantucket-owned Foxwoods Resort Casino, told employees in a recent letter. "The fact is that with a union, you could lose benefits as easily as gain them through good faith bargaining."

Court Order:
Denial of En Banc Rehearing (June 8, 2007)

D.C. Circuit Decision:
San Manuel Band v. National Labor Relations Board (February 9, 2007)

San Manuel Band v NLRB:
Briefs, Decisions and Documents (Native American Rights Fund)

National Labor Relations Board Decisions:
San Manuel Indian Bingo and Casino | Yukon Kuskokwim Health Corporation

Relevant Links:
San Manuel Band of Mission Indians - http://www.sanmanuel-nsn.gov
National Labor Relations Board - http://www.nlrb.gov