Chickasaw Nation wins major ruling affecting labor law at casino

Friday, June 5, 2015

The WinStar World Casino and Resort, in Thackerville, Oklahoma. Photo from Facebook

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In a major reversal, the National Labor Relations Board on Thursday declined to assert jurisdiction at a casino owned by the Chickasaw Nation of Oklahoma.

By a 3-0 vote, the NLRB said application of the National Labor Relations Act to the WinStar World Casino and Resort conflicts with the 1830 Treaty of Dancing Rabbit Creek. The ruling appears to be the first of its kind.

"Giving due consideration to the 'enlarged rules of construction' to be used in interpreting Indian treaties, recognized in article 18 of the 1830 Treaty itself, we find that this provision forecloses application of the [NLRA], which is not a law enacted by Congress in legislation specific to Indian affairs," the decision in Case 17-CA-025031 stated.

The ruling also represents a dramatic shift in course. In July 2013, the NLRB said the 1866 Treaty of Washington "sharply increased the relative authority" of the federal government over the tribe.

That ruling was set aside following the U.S. Supreme Court decision in National Labor Relations Board v. Noel Canning. The tribe was not a party to that case but the Obama administration had to vacate a slew of rulings made when there weren't enough validly-seated members on the NLRB.

So the tribe got a second shot at defending its sovereignty. It definitely helped because the new ruling is far more deferential to settled principles of Indian law and policy -- at one point the NLRB acknowledges that it has "no special expertise in construing Indian treaties."

"Thus, construing both treaties in the manner most favorable to the Nation, we find that the provisions of the 1866 Treaty are compatible with the rights guaranteed in the 1830 Treaty, and that article 45 of the 1866 Treaty strongly suggests that those rights remain in place," yesterday's decision stated.

The NLRB first asserted jurisdiction over tribal casinos in 2004. The ruling overturned decades of precedent regarding the National Labor Relations Act, which does not mention tribes at all even though it was passed a year after the Indian Reorganization Act of 1934.

Sen. John Barrasso (R-Wyoming), left, and Sen. Jon Tester (D-Montana), the chairman and vice chairman, respectively, of the Senate Indian Affairs Committee. Photo from SCIA / Flickr

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Tribes are currently lobbying Congress to amend NLRA to recognize their rights. S.248, the Tribal Labor Sovereignty Act, treats tribes and their enterprises in the same manner as states and local governments.

The Senate Indian Affairs Committee took testimony on the bill in April. It's now up for consideration at a business meeting next Wednesday.

“The National Labor Relations Board decision to apply the National Labor Relations Act to Indian tribes has increased costs and uncertainty, which can hinder tribal business growth," Sen. John Barrasso (R-Wyoming), the chairman of the committee, said at the April 29 hearing. “The bill before us, would amend the National Labor Relations Act so that a tribally owned and operated enterprise or institution would be treated like any other federal or state-owned corporation.”

National Labor Relations Board Decisions:
June 4, 2015 | July 12, 2013

Committee Notices:
Business Meeting to consider S. 248 (June 10, 2015)
Legislative Hearing on S. 248, the "Tribal Labor Sovereignty Act of 2015" (April 29, 2015)

From the Indianz.Com Archive:
Tribal labor law rider killed by wide margin in House (June 27, 2005)
Federal labor board expands jurisdiction over tribes (June 4, 2004)