NLRB chairman supports tribal sovereignty

Friday, April 11, 2008  

The new leader of the National Labor Relations Board said on Thursday that he will continue to oppose the imposition of federal law on tribal enterprises.

Peter C. Schaumber, a Bush appointee who was designated chairman of the NLRB last month, said he was extremely disappointed when his colleagues overturned 30 years of precedent and subjected tribes to federal labor law. Back in March 2004, he authored the sole dissent to the decision that has sent shock waves through Indian Country.

"I thought the board [was] turning a blind eye towards retained tribal sovereignty and the principles of federal Indian law that protect them," Schaumber said at the 33rd annual Indian law conference hosted by the Federal Bar Association in Albuquerque, New Mexico.

Schaumber, a former federal prosecutor, said the 2004 ruling is now being expanded at the expense of tribes. He cited a more recent case in which a regional director of the NLRB ignored language in a treaty that he said should have protected the Saginaw Chippewa Tribe of Michigan from union efforts.

"I will dissent in those decisions that expand San Manuel," Schaumber said, referring the 2004 precedent involving the San Manuel Band of Mission Indians of California.

The sentiments were echoed by Phillip B. Wilson, a labor relations consultant who worked with the Saginaw Chippewa Tribe. Even though the union lost an organizing vote -- and a second union withdrew its petition for an election -- he said the NLRB won't even consider sovereignty arguments from tribes.

"You're going to get a rubber-stamp 'San Manuel applies to this, please move along,'" Wilson said.

Wilson, who works for the LRI Management Services of Oklahoma, accused the NLRB are pre-judging tribal disputes. He said the regional directors, in the Saginaw Chippewa case and another one involving the Mashantucket Pequot Tribal Nation of Connecticut, issued decisions as quickly as one day after tribal briefs were submitted.

"The decisions clearly had already been written before the briefs were due," Wilson told attendees of the conference.

Backed by tribes and tribal organizations, the San Manuel Band took its challenge to the 2004 NLRB ruling to the D.C. Circuit Court of Appeals but lost. The tribe declined to seek review from the U.S. Supreme Court.

"Tribes should prepare for a new era," said attorney D. Michael McBride, who moderated the panel. "The shift is dramatic."

The National Labor Relations Act was first passed in 1935, a year after the Indian Reorganization Act. The NLRA makes no mention of tribes although state and local governments are notably exempt from its provisions.

For decades, the NLRB took the same approach towards tribes and refused to apply labor law to on-reservation activities. The NLRB only applied when a tribe went off the reservation, according to the decisions.

But the San Manuel ruling put the focus back to the reservation. The board said it would apply the NLRA on a case-by-case basis by looking at the nature of the tribal enterprise and whether it impacts non-Indians.

Tribal casinos are more commercial in nature than a governmental operation, according to the NLRB. And if they employ a significant number of non-Indians, federal labor law will apply, the San Manuel decision states.

Through their casinos, tribes have created about 670,000 jobs, according to the National Indian Gaming Association. But 75 percent are non-Indian, making it hard for the NLRB to avoid asserting jurisdiction at tribal gaming enterprises.

The FedBar conference began yesterday and concludes today. Attendees will examine labor issues in detail during a break-out session this afternoon, in addition to panels on the Indian Civil Rights Act, the Indian Child Welfare Act, climate change and energy.

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