Legislation | Litigation

NLRB won't take stance on tribal labor bill that affects casinos

Thursday, April 30, 2015

The Saginaw Chippewa Tribe owns and operates the Soaring Eagle Casino & Resort in Mount Pleasant, Michigan. Photo from Facebook

The National Labor Relations Board refused to take a position on a bill that would exempt tribal casinos from the reach of federal labor law.

S.248, the Tribal Labor Sovereignty Act, treats tribes and their enterprises in the same manner as states and local governments. It overturns an unprecedented 2004 ruling in which the NLRB asserted jurisdiction over Indian Country for the first time in decades.

Richard F. Griffin Jr., the agency's general counsel, defended the reasoning behind that controversial ruling. He said tribal casinos that employ non-Indians or compete with non-Indian businesses will be treated like any other employer under the National Labor Relations Act.

Indianz.Com SoundCloud: Legislative Hearing on S. 248, the Tribal Labor Sovereignty Act of 2015

"The NLRA’s definition of 'employer' contains no express exemption for federally recognized tribes or the employing enterprises that they own or control," Griffin testified. "The board’s determination of whether and in what circumstances it should assert jurisdiction over tribal enterprises has evolved over a number of years."

In addition to refusing to take a position on the bill, Griffin noted that the NLRB is engaged in litigation with tribes around the country over the application of the law to their gaming establishments. One of those cases in fact went before the 6th Circuit Court of Appeals at about the same time as the Senate hearing yesterday.

Indianz.Com SoundCloud: Soaring Eagle Casino V NLRB

The Saginaw Chippewa Tribe of Michigan is trying to shield the Soaring Eagle Casino and Resort from an unfair labor practices complaint. An attorney told the court that the 1855 Treaty with the Chippewa reserved "broad, general rights" of self-governance on the reservation.

"That treaty right is broad enough to cover even things that aren't specifically mentioned in the treaty," attorney William A. Szotkowski told the court in a case that has attracted briefs from tribes and organizations nationwide.

The Little River Band of Ottawa Indians owns and operates the Little River Casino Resort in Manistee, Michigan. Photo from Facebook

The Little River Band of Ottawa Indians, also in Michigan, is fighting the NLRB as well. But unlike the Saginaw Chippewa case, where a specific employment-related complaint was lodged, the Little River Casino Resort is under scrutiny merely because the tribe passed its own set of labor laws.

"So the very ability of tribes to enact laws is now being called in question," Richard Guest, an attorney with the Native American Rights Fund, told the committee yesterday.

Gov. Paul Torres of Isleta Pueblo in New Mexico. Photo from SCIA / Flickr

Tribal leaders from California, Minnesota, New Mexico expressed strong support for the measure. They said it would help bring certainty to their operations and ensure respect for their sovereignty.

Gov. Paul Torres of Isleta Pueblo in New Mexico said his tribe is locked in a battle with the NLRB over the complaint of a one former employee. He said the Isleta Resort and Casino is being forced to prove its very existence as a tribal enterprise.

"The thing that's happening to the Pueblo of Isleta right now as far as dealing with the NLRB is very wrong for us because we are being required to come up with all the documents [for] every dollar that was spent for two years," Torres testified. "We don't think that that's right. Our employees are protected by our personnel policies and our labor laws."

Sen. John Barrasso (R-Wyoming), the chairman of the committee, embraced the tribal concerns. He said he was concerned that the NLRB's activity in Indian Country has "increased costs and uncertainty, which can hinder tribal business growth."

Sen. Jon Tester (D-Montana), right, and Sen. John Barrasso (R-Wyoming). Photo from SCIA / Flickr

And in a somewhat surprising statement, Sen. Jon Tester (D-Montana), the vice chairman, also said he supports the bill. He echoed the concerns about uncertainty that the NLRB has caused.

"The uncertainty exists for no other governments in this country other than tribal governments, " observed Tester. "Tribes have framed this an issue of sovereignty and parity among governments and I tend to agree with that assessment."

Tester, however, has not signed on as a co-sponsor of bill -- so far, only Republicans are backing the measure. He also noted that he continues to support the NLRB's work to protect the rights of employees everywhere.

Sen. Al Franken (D-Minnesota) was the only other Democrat at the hearing. He did not express a view on the bill but his questions indicated that he was not outright dismissive of tribal concerns about the NLRB.

With the help of Republicans, tribes have tried to advance similar measures in prior sessions of Congress. But after a major defeat in 2005 at the hands of Democrats, the issue hasn't been taken seriously until now, when the House and the Senate are in GOP hands.

The House version of the bill is H.R.511. Like S.248, all of the sponsors are Republicans.

Committee Notice:
Legislative Hearing on S. 248, the "Tribal Labor Sovereignty Act of 2015" (April 29, 2015)

From the Indianz.Com Archive:
Tribal labor law rider killed by wide margin in House (June 27, 2005)
Federal labor board expands jurisdiction over tribes (June 4, 2004)