The Pauma Band of Luiseño Indians owns and operates the Casino Pauma in Pauma Valley, California. Photo: Casino Pauma

California | Legislation | Litigation

Tribes and sovereignty still don't mix when it comes to labor laws

Friday, May 4, 2018

Efforts by Indian Country to assert sovereignty over labor laws are failing in the courts, not just in the halls of Congress.

A week after tribes suffered a spectacular setback on Capitol Hill, the Pauma Band of Luiseño Indians saw a loss closer to home. By a unanimous vote, the 9th Circuit Court of Appeals ruled that the tribe must comply with federal labor law at its Casino Pauma in southern California.

Writing for the court, Judge Marsha S. Berzon acknowledged that the National Labor Relations Act (NLRA) is "ambiguous" because the 1935 law does not explicitly state whether tribes are considered employers. Normally that would be a fatal flaw, considering that Congress, just a year prior ushered in a new era of Indian policy with passage of the Indian Reorganization Act, one of whose goals was to foster economic activity on tribal homelands.

But in this closely-watched case, the 9th Circuit deferred to the expertise of the National Labor Relation Board (NLRB). In a now-infamous 2004 holding, the independent agency determined that tribes, in certain situations, must comply with the law because their casinos employ non-Indians and cater to non-Indians.

"Under these circumstances—in which both the board and the parties present reasonable interpretations of an ambiguous provision in the NLRA—the court must defer to the board’s conclusions respecting the meaning of federal labor law," Brezon wrote in the 35-page decision.

Indianz.Com on SoundCloud: Casino Pauma v. NLRB - 9th Circuit Court of Appeals

In hopes of undermining the NLRB's approach, the Pauma Band and a slew of tribes and tribal organizations sought to portray tribal employers as "public" employers, much in the same vein as states and local governments. The NLRA, notably, contains an exemption for those governments.

The 9th Circuit acknowledged that such an approach might in fact be considered "reasonable" in light of the NLRA's silence toward Indian Country.

"Perhaps it would be reasonable to read the NLRA’s exclusions of many public employers to extend to all public employers, including tribes, given the law’s focus on private employment," Brezon wrote. "And perhaps it would be reasonable to view the NLRA’s silence as to tribes as without import, given the broad definition the board has given to the term 'state' in the 'employer' definition’s list of exclusions."

In the end, however, Brezon could find no fault with the NLRB's 2004 determination, despite attempts by the California Nations Indian Gaming Association, the Southern California Tribal Chairmen’s Association, the California Association of Tribal Governments, the California Indian Legal Services and a handful of individual tribes to sway the the court's mind on the heated subject.

"But those possibilities do not mean that the board’s contrary interpretation of the act’s silence as to tribes is unreasonable," the judge wrote in the decision, dated April 26.

:President Jefferson Keel of the National Congress of American Indians. Photo: NCAI

Just a week prior, tribes and their advocates were working the halls of Congress, eager to resolve the ambiguity in the NLRA and score a win for self-determination in the process. Passage of a bill known as the Tribal Labor Sovereignty Act would treat tribes just like states and local governments, supporters argued.

"For nearly 70 years, tribal governments were exempt from the act, just like local and state governments and the federal government," observed Sen. Jeff Flake (R-Arizona). "However, in 2004 the NLRB inappropriately ruled that tribes were no longer exempt. This measure would create parity for tribal governments, giving them the same employer rights afforded to other federal, state, and local governments."

But parity was not meant to be because the Tribal Labor Sovereignty Act never secured a final vote. Despite two efforts by Republicans, Democrats -- though not all of them -- banded together and prevented the bill from moving forward in the deeply divided Senate.

“Obviously, this is disappointing,” President Jefferson Keel of the National Congress of American Indians said after the first procedural vote on the evening of April 16 fell just five short of the 60 needed to advance.

“We will be back,” Keel added. A second vote, on the afternoon of April 18, fell four votes short.

Indianz.Com on SoundCloud: "It's Shameful" -- Sen. Tom Udall (D-New Mexico) on Indian Country Legislation in the 115th Congress

The defeats in Congress and the courts mean Indian Country remains subject to the NLRB's mandate. Though the 2004 determination reversed 70 years of precedent, its reasoning has been upheld by three federal appellate courts -- the D.C. Circuit, the 6th Circuit and, now, the 9th Circuit.

After the 6th Circuit issued rulings in two successive cases, tribes thought they had a shot at reopening the debate. Some judges on that court were in fact ready to side with Indian Country and say the NLRB got it wrong.

"The NLRA, a statute of general applicability containing no expression of congressional intent regarding tribes, should not apply," Judge Kathleen M. O’Malley wrote at the time.

But the U.S. Supreme Court refused to hear the two cases, dealing tribes a major setback on the legal front.

On the political side, things were looking only slightly little better. A few months prior, Republicans in the House passed the Tribal Labor Sovereignty Act despite threats of a veto from then-president Barack Obama.

The Senate, however, never took up the measure and it died in the 114th Congress without ever seeing any floor time.

In the meantime, the NLRB has continued to apply its 2004 precedent to tribe after tribe. In the case of the Pauma Band, the NLRB concluded that the tribe violated the NLRA by trying to stop the distribution of union literature at the Casino Pauma.

The only exception has been the Chickasaw Nation. The Oklahoma-based tribe, for which Jefferson Keel serves as lieutenant governor, secured a treaty-based exemption to the NLRA, the first and only one of its kind in the last 14 years.

A provision in the 1830 Treaty of Dancing Rabbit Creek "forecloses application" of the law on the tribe's gaming enterprise, the NLRB determined in 2015.

Turtle Talk has posted documents from the Pauma Band case, Casino Pauma v. NLRB.

9th Circuit Court of Appeals Decision:
Casino Pauma v. NLRB (April 26, 2018)

Prior Appeals Court Decisions:
6th Circuit: Soaring Eagle Casino v. NLRB (July 1, 2015)
6th Circuit: NLRB v. Little River Band of Ottawa Indians (June 9, 2015)
D.C. Circuit: San Manuel Band v. National Labor Relations Board (February 9, 2007)

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 10, 2004)
Federal labor board expands jurisdiction over tribes (June 4, 2004)