An extraordinary number of tribes and tribal organizations are participating in a precedent-setting labor law case that will affect tribes nationwide.

Last week, the National Congress of American Indians, the National Indian Gaming Association and nearly a dozen tribes submitted a brief in support of the San Manuel Band of Mission Indians. The San Manuel Band, owners of a successful casino, is engaged in a high-profile sovereignty dispute with the National Labor Relations Board.

Tribal governments are not mentioned anywhere in federal labor law. But the NLRB, in ruling that overturned 30 years of precedent, concluded that tribes must comply with the National Labor Relations Act when their businesses affect non-Indians.

"As tribal businesses prosper, they become significant employers of non-Indians and serious competitors with non-Indian owned businesses," the board wrote in a 3-1 decision in May 2004. "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."

The ruling sparked an outcry among tribes and prompted a showdown in Congress among lawmakers who are normally united on tribal issues. On two separate occasions, Democrats, who count labor unions as strong allies, were able to beat back Republican proposals that would have held back the effects of the decision.

With the political battle now lost, tribes are focusing their energies on the court level. The 48-page brief, a final version submitted to the D.C. Circuit Court of Appeals last Wednesday, criticized the NLRB for running roughshod over tribal sovereignty.

The brief notes that the National Labor Relations Act was enacted 1935, only a year after the Indian Reorganization Act was passed to encourage strong tribal governments. The tribes point out that federal, state and local governments are covered by the labor act.

"Given Congress's focus on the deplorable economic conditions, it is inconceivable that Congress would have thought of tribes as part of the class of private-sector employees it intended to regulate under the NLRA," the brief argues.

Citing subsequent acts of Congress and numerous executive orders that affirm tribal rights, the brief says the NLRB decision can't be sustained. "Application of the NLRA to tribal enterprises would abrogate important sovereign rights retained by the tribes under federal law and materially curtail their ability to function as the effective community governments envisioned by Congress," the tribes told the D.C. Circuit, which is still accepting briefs and has not set a date for a hearing.

The case arose when the Hotel Employees and Restaurant Employees Union attempted to organize employees of the San Manuel casino. The union has been an outspoken opponent of several tribes in southern California, where the San Manuel Band is based.

The NLRB didn't rule on the merits of the dispute but instead said it would assert jurisdiction over tribes and their enterprises 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 ruling also stated, as a matter of policy, that labor law applies to tribes unless it affects "exclusive rights of self-government in purely intramural matters" or abrogates treaty rights. The San Manuel Band, like dozens of other tribes across the nation, lacks a treaty with the United States.

If the NLRB decision stands, tribes and their businesses could be brought before the agency for alleged violations of labor law. It's a time-consuming and costly process -- the San Manuel case was pending for five years before the ruling was issued.

In the interim, the NLRB lost a key sovereignty case. The 10th Circuit Court of Appeals, in a January 2002 decision that wasn't taken to the U.S. Supreme Court, affirmed the right of tribes, as governments, to set their own labor-related laws.

"Like states and territories, the Pueblo has a strong interest as a sovereign in regulating economic activity involving its own members within its own territory," wrote Chief Judge Deanell R. Tacha in a case involving Ohkay Owingeh, a New Mexico tribe formerly known as San Juan Pueblo, "and it therefore may enact laws governing such activity."

Collectively, the brief submitted in the San Manuel case represents over half of the 560-plus federally recognized tribes in the nation. NCAI has more than 250 members while NIGA has more than 150 members, with some overlap between the two groups. When the case was before the NLRB, 20 tribes, tribal organizations and Alaska Native organizations took part.

At the same time of the San Manuel ruling, the NLRB issued a decision affecting a health corporation operated and owned by 58 Alaska tribes. Both rulings overturned labor law precedent.

San Manuel Band v NLRB:
Briefs, Decisions and Documents (Native American Rights Fund)

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

Relevant Links:
National Labor Relations Board - http://www.nlrb.gov
San Manuel Indian Bingo and Casino - http://www.sanmanuel.com
Hotel Employees and Restaurant Employees Union - http://www.hereunion.org