Supreme Court ruling affects NLRB proceedings at tribal casinos

Thursday, August 7, 2014

A view of the U.S. Supreme Court. File Photo © Indianz.Com

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The U.S. Supreme Court decision in National Labor Relations Board v. Noel Canning is affecting disputes at three tribal casinos.

In the unanimous June 26 decision, the justices held that National Labor Relations Board did not have enough validly-seated members to make a ruling in a dispute involving a soda distributor. At least two of the three members were installed by President Barack Obama through recess appointments but the Senate was still in session at the time in question, the court determined.

During the same time, the NLRB made rulings affecting casinos owned by the Saginaw Chippewa Tribe of Michigan, the Little River Band of Ottawa Indians of Michigan and the Chickasaw Nation of Oklahoma. As a result, all of those rulings have been vacated, or set aside, in light of the Supreme Court decision.

The disputes were sent back to the NLRB, whose unprecedented assertion of jurisdiction over tribal gaming facilities began in 2004. Tribal businesses that employ non-Indians or affect non-Indians are being subject to the National Labor Relations Act even though the law -- first passed in 1935, a year after the Indian Reorganization Act -- doesn't mention tribes at all.

The NLRB has said it will apply the law on a case-by-case basis to determine whether it can assert jurisdiction in Indian Country. But so far, tribes have been on the losing end of the stick despite efforts to show that their situation protects their enterprises.

The WinStar World Casino and Resort, owned by the Chickasaw Nation of Oklahoma. Photo from Google+
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In the Chickasaw Nation case, for example, the NLRB determined that the 1830 Treaty of Dancing Rabbit Creek subjects the tribe to "all" federal laws. The board also said the 1866 Treaty of Washington, which was signed after the end of the Civil War, reconfirmed federal jurisdiction.

"We read this language as clearly permitting the United States to exercise broad legislative authority over the nation," the NLRB said in July 2013.

Even though that ruling, and the others affecting the Saginaw Chippewa Tribe and the Little River Band, were set aside, the NLRB has already moved to reconfirm its prior holdings. On Monday, the agency announced that it "unanimously ratified all administrative, personnel, and procurement matters" between January 4, 2012, and August 5, 2013.

The time period in question covers the Chickasaw Nation July 2013 ruling, the Saginaw Chippewa Tribe April 2013 ruling and the Little River Band March 2013 ruling. The NLRB contends it has five validly seated members and can conduct all business without question.

"The board has now ratified these actions to remove any question concerning the validity of actions undertaken during that period," the press release stated.

Turtle Talk has posted documents from the federal court cases -- Chickasaw Nation v. NLRB in the 10th Circuit Court of Appeals, and Saginaw Chippewa Tribe v. NLRB and Little River Band v. NLRB from the 6th Circuit Court of Appeals.