"There’s an old adage that law professors like to use: Bad facts make bad law; in the area of tribal labor and employment law, watch out – if the facts set up the wrong way, irreparable damage will be done to tribal self-government in this field. This is a problem (or opportunity) for tribal sovereignty in the way that the test case of Brown v. Board of Education was for the civil rights movement.

There’s been plenty of “bad press” about tribes “getting away with” practices in the workplace that may look wrong to outsiders. The assertion of sovereign immunity against individual employees may exacerbate tensions. In dismissing an action for unpaid wages brought by tribal employees, the Crow Court of Appeals recently warned, “If the tribe does not take steps to enact appropriate waivers of sovereign immunity, we believe it is only a question of when Congress will do it for us.” The Crow Tribe later enacted law to protect its workforce.

It’s probably more likely that the Supreme Court, not Congress, will decide whether tribes and their enterprises must succumb to federal authority over union rights, age and other discrimination laws, and a host of other federal laws governing employment relations. For now anyway, Congress is distracted by other issues. So what will a case look like that goes up to the high court?

With non-Indians taking up employment positions in Indian country in droves, federal agencies are looking for opportunities to enforce federal labor laws of general application against tribes. Tribes cannot assert the sovereign immunity defense against the United States; so these cases go forward. The question becomes whether Congress (when silent on the issue) intended such laws to apply to tribes."

Get the Story:
Kaighn Smith Jr. and Dawn Sturdevant Baum: Tribes must decide battleground on employment law (Indian Country Today 2/22)