Litigation | Regulation

NCAI pushes for court rehearing in tribal labor sovereignty case

Tuesday, September 1, 2015

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

The nation's largest inter-tribal organization is calling on a federal appeals court to rehear a sovereignty dispute that's being closely watched in Indian Country.

On July 1, the 6th Circuit Court of Appeals held that the National Labor Relations Board can assert jurisdiction at a casino owned by the Saginaw Chippewa Tribe of Michigan. Yet all three judges on the panel said they would have gone another way had they not been bound by a ruling in another labor case that came just three weeks earlier.

The National Congress of American Indians is highlighting the disconnect in a proposed brief that was submitted to the court on Friday. Tribal advocates are asking the 6th Circuit to "correct" the errors contained in the June 9 ruling that affected the Little River Band of Ottawa Indians, also in Michigan.

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

"All parties (and the panel) agree that the NLRA is silent as to whether it governs tribal employers," NCAI wrote in referring to the National Labor Relations Act, which does not mention tribal governments.

"And the history of the statute affords no evidence, let alone the 'clear evidence' required by the Supreme Court, ' that Congress actually considered the conflict between its intended action on the one hand and Indian [sovereignty] on the other, and chose to resolve that conflict by abrogating' tribal sovereignty," the brief continued.

"To the contrary, everything about the NLRA's history and purpose suggests that Congress did not want it to govern tribal enterprises," NCAI stated.

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

The Saginaw Chippewa Tribe submitted its petition for rehearing on August 24. The brief also points out the disagreement among at least four judges on the 6th Circuit when it comes to the applicability of federal labor law in Indian Country.

"This case presents a question of exceptional importance and is a 'strong candidate' for en banc reconsideration" due to the conflicts, the brief stated.

The Department of Justice has not yet responded to the petition in Soaring Eagle Casino v. NLRB.

As for the Little River Band of Ottawa Indians, the tribe is also calling for a rehearing in its case. The petition was filed on Friday.

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