Legislation | Litigation | Regulation

Court reluctantly backs NLRB in Saginaw Chippewa Tribe dispute

Wednesday, July 1, 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 can assert jurisdiction at a casino owned by the Saginaw Chippewa Tribe of Michigan, a divided 6th Circuit Court of Appeals ruled on Wednesday even as the judges expressed serious doubts about the case.

By a 2-1 vote, the three-judge panel said the Soaring Eagle Casino and Resort cannot evade an unfair labor practices complaint. The majority rejected the tribe's claim that two treaties protect the facility from the National Labor Relations Act.

"Although .. the existence of the treaties remains relevant to our analysis of the tribe’s right of inherent sovereignty, we do not find that the general right to exclude described in the 1855 and 1864 treaties, standing alone, bars application of the NLRA to the casino," Judge Kathleen M. O’Malley wrote for the court.

The majority also rejected the tribe's claim that its inherent sovereignty barred the application of the NLRA to the casino. Even though tribes aren't mentioned anywhere in the law, the court noted that it doesn't include an exception for Indian Country either.

Indianz.Com SoundCloud: Oral arguments in Soaring Eagle Casino V NLRB

At the same time, the court went to extremely great lengths to explain why the specific facts in the dispute would cause them to rule in another way. The tribe retains an inherent right to protect its operations from outsiders, the 6th Circuit wrote in a portion of the opinion that was joined by all three judges.

"The casino itself is not a purely private venture, but it is an important vehicle for the exercise of tribal sovereignty," the decision stated. "The casino was established as a subdivision of the tribal government, and is managed by the tribal council."

As a result, the court said the tribe should be able to enact laws that bar employees from engaging in certain types of conduct that are otherwise allowed under the NLRA. A Soaring Eagle employee who encouraged others to join a union was fired for violating a "no-solicitation" policy on the reservation.

"For all of these reasons, if writing on a clean slate, we would conclude that, keeping in mind 'a proper respect both for tribal sovereignty itself and for the plenary authority of Congress in this area,' the tribe has an inherent sovereign right to control the terms of employment with nonmember employees at the casino, a purely tribal enterprise located on trust land," O’Malley wrote. "The NLRA, a statute of general applicability containing no expression of congressional intent regarding tribes, should not apply to the casino and should not render its no-solicitation policy void."

A view of the Little River Casino Resort in Manistee, Michigan. Photo from Facebook

But the judges acknowledged that they weren't operating on a "clean slate" due to a very recent decision involving the Little River Band of Ottawa Indians, also in Michigan. On June 9, another divided panel of the 6th Circuit held that the NLRA applies to the tribe's Little River Casino Resort.

Since Little River came first -- by just a little over three weeks -- the Soaring Eagle panel was bound by it.

"Given the legal framework adopted in Little River and the breadth of the majority’s holding, we must conclude in this case that the casino operated by the tribe on trust land falls within the scope of the NLRA, and that the NLRB has jurisdiction over the casino," the judges reluctantly stated.

All three judges on the Soaring Eagle panel believe the two judges on the Little River panel employed the wrong analysis in deciding that case. They argued that their approach is "most consistent with Supreme Court precedent and Congress’s supervisory role over the scope of Indian sovereignty."

The differing views mean at least four judges on the 6th Circuit have doubts about the application of the NLRA in Indian Country. That's likely to increase calls for rehearings before a larger set of judges on the court.

The uncertainty will also fuel debate in Congress about the Tribal Labor Sovereignty Act (H.R.511 | S.248), a bill that shields tribes and their businesses from the NLRA. At a hearing earlier this month, tribal leaders made some of the very same arguments that were advanced by the Saginaw Chippewa panel regarding the need to develop labor laws and policies specific to their communities.

"It should be the right of any sovereign government to make decisions that are best for people," Chairman Rodney Butler of the Mashantucket Pequot Tribal Nation of Connecticut told the House Subcommittee on Health, Employment, Labor and Pensions.

H.R.511 has not yet reached a markup before the House Committee on Education and the Workforce. But it's not likely to face much resistance in the Republican-controlled House.

Even a prominent Democrat, Rep. Betty McCollum (D-Minnesota), the co-chair of the Congressional Native American Caucus, told the National Congress of American Indians on Monday that she will support the bill if it comes to the House floor.

Over in the Senate, S.248 is ready for action after passing the GOP-controlled Senate Indian Affairs Committee. Only one Democrat on the panel expressed opposition when it came up for a voice vote on June 10.

Additionally, the House Appropriations Committee approved a funding bill on June 24 that bars the NLRB from applying the NLRA to tribes. The rider represents the work of Rep. Tom Cole (R-Oklahoma), a member of Chickasaw Nation, whose leaders recently won a NLRB administrative proceeding after they argued that their treaty right to self-governance was impacted. The union in that disputed has decided not to take the matter to federal court.

An 1864 treaty signed by the Saginaw Chippewa Tribe include a provision that set aside a reservation for its "exclusive use, ownership, and occupancy. In a separate dissent today, Judge Helene N. White said that language alone confirms the tribe's right to regulate the conduct of outsiders.

"At bottom, the treaty matters, and to find otherwise suggests that the federal government’s agreement with the tribe is worth no more than the paper on which it was written," White wrote.

Turtle Talk has posted documents from the case, Saginaw Chippewa Tribe v. NLRB

6th Circuit Decisions:
Soaring Eagle Casino v. NLRB (July 1, 2015)
NLRB v. Little River Band of Ottawa Indians (June 9, 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)