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Federal labor board expands jurisdiction over tribes

Overruling 30 years of precedent, the National Labor Relations Board has concluded that tribal governments and their enterprises are subject to federal labor law.

In a 3-1 decision made public yesterday, the board asserted jurisdiction in a dispute between a California tribe and a labor union. By doing so, the majority reversed long-standing precedent that tribes, as sovereign governments, are outside the scope of the federal National Labor Relations Act.

The law doesn't mention tribes at all, the board acknowledged. But the majority's opinion, signed by chairman Robert J. Battista, a Republican, and two Democrats, argues that tribes have opened themselves up to the board's authority.

"As tribal businesses prosper, they become significant employers of non-Indians and serious competitors with non-Indian owned businesses," the decision dated May 28 stated. "When Indian tribes participate in the national economy in commercial enterprises, when they employ substantial numbers of non-Indians, and when their businesses cater to non-Indian clients and customers, the tribes affect interstate commerce in a significant way."

"When the Indian tribes act in this manner, the special attributes of their sovereignty are not implicated," the majority concluded.

The decision has widespread implications because it reverses a 28-year-old holding that on-reservation tribal enterprises are exempt from the law. It also expands the scope of a 12-year-old case in which the board asserted jurisdiction over an off-reservation tribal enterprise.

The far-reaching nature of the decision drew criticism from board member Peter C. Schaumber. In a lengthy dissent, the former federal prosecutor, a Republican, accused the majority of intervening simply because tribes have become wealthy.

"In response to this new 'prosperity,' the majority undertakes a rebalancing of competing policy interests and finds that the Act extends to on-reservation tribal enterprises," he wrote.

He added that "application of the Act to the tribe and its wholly owned and operated casino on reservation land would directly impinge numerous important aspects of retained tribal sovereignty."

Along with a companion ruling involving a health corporation operated and owned by 58 Alaska tribes, the board set new guidelines for determining jurisdiction in tribal labor disputes. The National Labor Relations Act will apply to tribes unless it affects "exclusive rights of self-government in purely intramural matters" or abrogates treaty rights.

This factor weighed against the San Manuel Band because the tribe, like dozens of others throughout the nation, doesn't have a treaty.

The board will also look at the tribal enterprise to determine jurisdiction "on a case-by-case basis." Considerations include the nature of the enterprise -- commercial or governmental -- and whether the business employs or caters to non-Indians.

The board did not rule on the merits of the dispute, which was brought against the San Manuel Band by the Hotel Employees and Restaurant Employees Union. Neither the tribe nor the union responded to requests for comment yesterday.

In recent months, the union's members have waged a very public campaign against California tribes they accuse of not allowing employees to organize. Their tactics, including protests outside a tribal casino, prompted one tribal leader to compare a priest who supported the union to a "common thug."

Two years ago, the board lost a major decision in the 10th Circuit Court of Appeals. The court, by a 9-1 vote, ruled that San Juan Pueblo in New Mexico, which doesn't have a treaty, could enact its own law banning forced unionism.

In his dissent, Schaumber pointed to this ruling, which the board did not appeal to the U.S. Supreme Court. But the majority said that case was based on a different set of facts.

The majority also pointed to a recent 9th Circuit Court of Appeals decision involving the Rumsey Indian Rancheria's health corporation. In that case, the court said the tribe's sovereignty wasn't at issue because most of the health employees were non-Indian and half of the patients were non-Indian.

National Labor Review Board Decisions:
San Manuel Indian Bingo and Casino | Yukon Kuskokwim Health Corporation

Federal Court Decisions:
NAT'L LABOR RELATIONS BD v. SAN JUAN PUEBLO (10th Circuit January 11, 2002) | NAT'L LABOR RELATIONS BD. v. CHAPA DE INDIAN HEALTH PROGRAM, INC (9th Ciruit January 16, 2003)

Relevant Links:
San Manuel Indian Bingo and Casino -
Hotel Employees and Restaurant Employees Union -