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

Legislation | Litigation

Indian Country presses Supreme Court to hear labor law dispute

Tuesday, May 31, 2016

The Obama administration is urging the U.S. Supreme Court to stay out of a highly-charged sovereignty dispute that has drawn widespread interest throughout Indian Country.

The National Congress of American Indians, the National Indian Gaming Association, the California Nations Indian Gaming Association, the United South and Eastern Tribes and several individual tribes have joined forces in seeking to overturn a pair of decisions that affect the imposition of federal labor law at tribal casinos. The large coalition even got the states of Colorado and Michigan -- whose top legal official was on the losing end of a Supreme Court case just two years ago -- to join the cause.

Not surprisingly, the Obama administration is opposing further review of the matter. In two briefs filed last week, attorneys from the Department of Justice and the National Labor Relations Board said applying the National Labor Relations Act to tribes "does not divest them of sovereign authority."

But in a sign of the big stakes, government attorneys approached the dispute from a practical standpoint. Rather than accept the two cases, which originated from the 6th Circuit Court of Appeals, a region that includes tribes in one Midwest state, they said the justices should wait until a similar case is decided by the 9th Circuit Court of Appeals, which covers more than 300 tribes in eight Western states.

If the 9th Circuit ends up going in a different direction than the 6th Circuit, the conflict could be resolved by the Supreme Court at a later date, the briefs argued.

The Little River Band of Ottawa Indians is completing an $18 million expansion of the Little River Casino Resort in Manistee, Michigan. Photo from Facebook

A political angle was also advanced. Government attorneys noted that the House passed H.R.511, the Tribal Labor Sovereignty Act, last November in order to clarify that tribes and their enterprises are exempt from federal labor law. A companion measure, S.248, is awaiting consideration in the Senate.

"Whether or not the pending bill is enacted in its current or in a modified form, Congress’s active consideration of the issue counsels against this Court’s intervention at this time," government attorneys wrote in both briefs.

The somewhat cautious approach reflects how the legal and political climate has shifted in the past decade. When the National Labor Relations Board first asserted jurisdiction over Indian Country in 2004, tribes suffered two embarrassing defeats when they asked Congress to defend their sovereignty.

Now, key Democrats are supporting the Tribal Labor Sovereignty Act despite criticism from labor unions, the party's longtime ally. And while the White House issued a statement of administration policy against the bill, the briefs leave room for a compromise -- provided that concerns about "reasonably equivalent" tribal labor standards can be addressed.

The briefs themselves were the result of a somewhat lengthy process within the Obama administration. While it's not unusual for a party to seek more time to file a response to a petition, government attorneys finally filed the two briefs last Tuesday after requesting three delays over a three-month period.

Labor union supporters turned out in large numbers at a Senate Indian Affairs Committee business meeting in June 2015 to protest S.248, the Tribal Labor Sovereignty Act. The committee advanced the measure but it has not been brought up for consideration on the Senate floor. Photo by Andrew Bahl for Indianz.Com

During that time, tribes were being urged to lobby the Obama administration in hopes of influencing what went into the briefs. One possible outcome was that the Department of Justice might have taken a different view than the National Labor Relations Board.

"This has happened before," John Dossett, the general counsel for the National Congress of American Indians told tribal leaders in February. He said the dispute represented a chance for the Obama administration to show whether they were "going to support tribes" or stand behind the labor board on this specific issue.

Officially, the board has not taken a stance on the Tribal Labor Sovereignty Act due to a longstanding policy not to comment on pending legislation, the Senate Committee on Indian Affairs was told at a hearing in April 2015.

The Little River Band of Ottawa Indians and the Saginaw Chippewa Tribe, both from Michigan, filed their petitions with the Supreme Court last December. They will be able to file replies to the briefs submitted by the federal government before their petitions are taken under consideration by the justices.

A crowd watches as the body of the late Justice Antonin Scalia is taken into the U.S. Supreme Court in Washington, D.C., on February 19, 2016. Photo by Indianz.Com (CC BY-NC-SA 4.0)

The death of Antonin Scalia has left the court with just eight members but his absence does not necessarily hinder their work because it it only takes agreement of four justices to grant a petition. However, in the three months since his passing, the court has slowed the rate at which it has granted new cases.

The justices also appear to be taking longer than normal to resolve Indian law cases. After three delays, they finally denied a petition in a dispute affecting the Seneca Nation of New York. Their move, which came in an order on Tuesday benefits the tribe and its gaming enterprise.

Indian Country is also still waiting for a decision in Dollar General Corporation v. Mississippi Band of Choctaw Indians, a closely-watched tribal jurisdiction case. Scalia's presence could have tipped the case a certain way but the justices appear deadlocked without his vote.

President Barack Obama has nominated Merrick Garland, a federal appeals court judge, to fill the vacancy but Republicans in the Senate are refusing to consider him. They want the winner of the November election to pick the next Supreme Court justice.

Garland sits on the D.C. Circuit Court of Appeals and incidentally was part of the panel which decided the infamous case that launched the entire debate about federal labor law at tribal casinos. The San Manuel Band of Mission Indians did not appeal to the Supreme Court at the time.

The two new cases are Little River Band of Ottawa Indians Tribal Government v. NLRB and Soaring Eagle Casino and Resort v. NLRB.

From the Indianz.Com Archive:
Tribal labor law rider killed by wide margin in House (June 27, 2005)
NCAI between 'rock and a hard place' on labor rider (September 13, 2004)
Tribal labor amendment fails in House vote (September 13, 2004)
Federal labor board expands jurisdiction over tribes (June 4, 2004)