Two separate three-judge panels of the United States Court of
Appeals for the Sixth Circuit have rendered labor law decisions
concerning Indian casinos in Michigan only 22 days apart. While
each of the panels ruled that the National Labor Relations Board
("NLRB") can assert jurisdiction over tribal casinos, the
situation can best be described as "unsettled or even
confusing."
While each of the panels ruled against the tribal casinos, four of
the six judges stated clearly that they disagreed with that
conclusion as a matter of law.
Given the development of these parallel rulings and the fact that a
majority of judges disagreed with the decisions rendered, it seems
inevitable that at least one (if not both) of these cases will be
heard by the full Sixth Circuit in an en banc review and
decision.
The first case involved the NLRB and Little River Band of Ottawa
Indian Tribal Government and was decided on June 9 in a 2-1 split
of the panel. The second case involved the Soaring Eagle Casino and
Resort, an enterprise of the Saginaw Chippewa Tribe, and was
decided on July 1 in another 2-1 split. However, the current debate
arising from these two decisions springs from the fact that of the
six judges who heard the two cases, four of them expressed serious
doubts about the legal rationale for the decisions and,
consequently, the outcome.
Two judges on the Little River court ruled that the casino operated
on tribal lands falls within the scope of the National Labor
Relations Act and, consequently, under NLRB jurisdiction. This
litigation followed enactment by the tribal council of an ordinance
to regulate employment and labor-organizing activities of its
employees, including casino employees, most of whom are not tribal
members. However, the rationale for the decision was disputed in a
lengthy dissent written by the third panel member, who emphasized
that the NLRB was clearly impinging on the Tribe's sovereignty
and called attention to the absence of any Congressional intent,
either express or implied, to authorize such interference with
tribal rights.
The result of the Soaring Eagle court should have gone the other
way, since all three judges of that panel declared their belief
that the tribal casino was established as a subdivision of the
Tribe and managed by the Tribe's governing body, which in turn
should dictate that the enterprise was subject to tribal laws. The
two judges explained that while they disagreed with the result of
the Little River decision, they were obligated to follow that
ruling until it is overturned by either the Sixth Circuit en
banc or the U.S. Supreme Court.
The critical statute in these cases is the National Labor Relations
Act of 1935 ("NLRA"). And, as the two dissents make
clear, these two decisions are ostensibly at odds with the Indian
Reorganization Act of 1934 ("IRA"), which enacted
comprehensive provisions governing Indians and Indian tribes. Yet,
despite the then-brand new law rewriting previous Indian law across
the board, the NLRA made no mention of Indian tribes or businesses
owned and operated by them. And this omission was the foundation
for the concerns expressed by four of the six judges.
To be fair to the Little River panel majority, the two judges
rejected the Tribe's claim that its inherent tribal sovereignty
precluded application of the NLRA to tribal businesses, including
casinos, noting that there is no exception in that law for Indian
tribes and tribal businesses. They also rejected the Tribe's
claim that it has a right to exclude the NLRB from its businesses
by virtue of the tribal understanding in execution of treaties with
the United States in 1855 and 1853. This claim was predicated upon
application of the so-called Indian Canon of Construction, which
provides that interpretation of treaties must follow the
understanding of treaty tribes at the time of treaty execution.
Thus, the majority concluded that the NLRA applies to
on-reservation casinos operated on trust land.
The Soaring Eagle panel declared that it was bound by the prior
ruling, but it did not agree with the analysis of inherent
sovereignty rights. The majority then proceeded to explain why they
believed that the prior decision was wrong. Indeed, the court noted
that "although Congress was silent regarding tribes in the
NLRA, it was anything but silent in its contemporaneously-stated
desire to expand tribal self-governance [in enacting the IRA the
year before]." It even went further in noting the 1988
enactment of the Indian Gaming Regulatory Act "'to provide
a statutory basis for the operation of gaming by Indian tribes as a
means of promoting tribal economic development, self-sufficiency,
and strong tribal governments,' and 'to ensure that the
Indian tribe is the primary beneficiary of the gaming
operation.'"
The Soaring Eagle court bluntly stated its position
vis-à-vis that of the Little River court: "For all of
the [stated] reasons, if writing on a clean slate, we would
conclude that, keeping in mind 'a proper respect both for
tribal sovereignty itself and for the plenary authority of Congress
in this area' [citation deleted], the Tribe has an inherent
sovereign right to control the terms of employment with nonmember
employees at the Casino, a purely tribal enterprise located on
trust land. The NLRA, a statute of general applicability containing
no expression of congressional intent regarding tribes, should not
apply to the Casino and should not render its no-solicitation
policy void."
As stated above, the stage is set for the issue to be heard by the
full Sixth Circuit. The ultimate determination is important for
many reasons. When four of six judges disagree with the results of
these two cases, all elements of the gaming industry – both
Indian as well as non-tribal – have a stake in securing a
final resolution of what at best is an unclear state of the
applicable law.
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