Law Article: Major impact with federal labor law at tribal casinos

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

Attorneys Steven G. Biddle and Danielle Anne Fuschetti discuss two decisions from the 6th Circuit Court of Appeals regarding the application of federal labor law at tribal casinos:
In Little River Band, the NLRB challenged a tribal labor ordinance that the Board deemed in violation of the NLRA as applied to the Band's on-reservation casino. Among other things, the ordinance included a right-to-work provision and a clause limiting employees' ability to participate in investigations initiated by non-tribal authorities, such as the NLRB. The casino, owned by the Band and operated on the reservation, employs primarily non-tribal members.

A majority of the Sixth Circuit panel agreed with the Board both that the NLRA applies and that the NLRB has jurisdiction to enforce it. In reaching this conclusion, however, the court accorded no deference to the NLRB's finding of jurisdiction because it was based on an analysis of Indian law. Reviewing the question de novo, the court adopted the Coeur d'Alene framework, concluding that the NLRA was a law of general application that, as applied to casinos, did not undermine "tribal self-governance in purely intramural matters," and the Act's silence with respect to tribes was not sufficient evidence that Congress intended that it not apply. As no treaty right was at stake, none of the three Coeur d'Alene exceptions were met. Therefore, the NLRA applied and the NLRB could assert jurisdiction.

The dissent challenged the majority's reliance on the presumption that laws of general application should also ordinarily apply to tribes, arguing that "the majority's decision impinges on tribal sovereignty, encroaches on Congress's plenary and exclusive authority over Indian affairs, conflicts with Supreme Court precedent, and unwisely creates a circuit split." Therefore, because Congress has not acted to extend the NLRA to tribes, it would not apply.

The facts in Soaring Eagle were similar to those in Little River Band. A non-member employee of the tribal-owned, on-reservation casino filed an unfair labor practice charge with the NLRB challenging the tribe's non-solicitation ordinance, claiming it conflicts with the NLRA. On appeal, the tribe argued that tribal sovereignty precluded the Act's application. Unlike in Little River Band, the tribe also relied on two treaties that reserved the tribe's rights to exclusive use, ownership and occupancy of its lands.

A different Sixth Circuit panel nonetheless concluded that the tribe's treaty rights did not preclude the NLRA's application. Specifically, the court determined it was bound by the Little River Band court's holding that tribal sovereignty would not bar the NLRA's application, and it had no choice but to rule against the tribe.

Get the Story:
Steven G. Biddle and Danielle Anne Fuschetti: The Sixth Circuit Extends The NLRA's Reach To Tribal-Owned Casinos ( 7/8)

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

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