Does the NLRB Have Jurisdiction over Tribal Entities? Congress or the 6th Circuit May Decide

U.S. Senate Bill 248 (SB 248)—The Tribal Labor Sovereignty Act of 2015—would amend the National Labor Relations Act, 29 U.S.C. §§151–169, to provide that any enterprise or institution owned and operated by an Indian tribe and located on its lands is not considered an employer.  If passed, this act will exclude businesses located on Indian land and owned and operated by an Indian tribe from coverage by the Act.

The introduction of SB 248 is timely.  In April 2013, the National Labor Relations Board (NLRB) ruled that the Soaring Eagle Casino and Resort, a casino operated by the Saginaw Chippewa Tribe of Michigan, fell under federal labor law jurisdiction and the NLRB ordered the casino to cease and desist from, among other things, suspending and discharging employees who were union members.  In support of its decision, the NLRB wrote “[t]he [Soaring Eagle] casino serves predominantly non-tribal customers, competes with non-tribal casinos, and employs mostly non-tribal members. Moreover, the tribe’s operation of the casino, a commercial enterprise, is not vital to its ability to govern itself. . .”

The Tribe appealed the NLRB’s decision to the Sixth Circuit Court of Appeals in Saginaw Chippewa Indian Tribe of Michigan v. NLRB, Case No. 14-2405 (6th Cir.) and the parties completed briefing May 8, 2015.  Oral argument in front of the Sixth Circuit is scheduled for June 26, 2015.  The Tribe argued that United States’ 1855 Treaty with the Chippewa reserved “broad, general rights” of self-governance on the reservation, and the NLRB was encroaching on those rights by asserting jurisdiction over the casino.

The question of whether the NLRB has jurisdiction over Tribal entities is one of many federal jurisdictional questions when it comes to labor employment matters on Tribal Land.  Recently, in Tremblay v. Mohegan Sun Casino, No. 14-2031-cv, the Second Circuit Court of Appeals upheld the federal district court’s conclusion that it lacked subject matter jurisdiction over the Plaintiff’s Title VII discrimination claim because Title VII expressly excluded American Indian Tribes from its definition of covered employers.  That Court also affirmed dismissal of Plaintiff’s ADEA claim because Congress has yet to clearly abrogate tribal sovereign immunity pursuant to the ADEA. For more information on recent Employment Law developments on Tribal land, read the Native American Law Watch a Modrall Sperling newsletter about developments in Indian Law.


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