NLRB Threatens Native Sovereignty

By Fred Wszolek

October 4, 2012

In 2004, largely under the mainstream media radar, the National Labor Relations Board (NLRB or Board) dispossessed Native Americans. But this time, it was not their lands that were being taken away—it was their sovereignty.

It all began with Big Labor. In an effort to increase its declining membership, Big Labor saw the casinos operated by the Indian tribes on their reservations as an attractive organizing opportunity. If unionizing the casinos required undermining their sovereignty, so be it.

The Supreme Court may soon be asked to decide whether this was legal.

The Casinos Provide Tribal Governments With A Needed Source Of Revenue

Many Indian tribes, like the San Manuel Band of Serrano Mission Indians, were dispossessed of their historic lands and moved to arid, unproductive lands that were insufficient to support them. Tribal members lived in deplorable conditions and unemployment was high, and many subsisted largely on non-tribal welfare.

Conditions began to change in 1988, when Congress passed the Indian Gaming Regulatory Act, which accelerated Indian gaming operations. Casinos began to provide a solid source of revenue for tribal governments, enabling them to build schools, roads, and water and sewer facilities, and to provide housing and job training to their members. By 2004, the year the NLRB took action at the behest of union bosses, Indian gaming operations collectively generated nearly $20 billion in gross revenue and employed nearly 600,000 people. Today, those numbers are significantly higher.

NLRB Ignores Its Own Precedent and Inherent Tribal Sovereignty

For decades, the Board recognized the unique sovereign status of Indian tribes to regulate themselves and declined to assert jurisdiction over tribal business enterprises located on the reservation. The NLRB said it was “clear that individual Indians and Indian tribal governments, at least on reservation lands, are generally free from state or even in most instances federal intervention, unless Congress has specifically provided to the contrary.”

What was once “clear” to the Board then became blurred by Native American prosperity.

In a decision known as San Manuel Indian Bingo and Casino, the NLRB abruptly changed course – ignoring Congressional silence on the application of the Act to Indian tribes. It failed to accord any weight to the effect its decision would have on fundamental aspects of Native American sovereignty. And it trivialized Indian sovereignty in a manner never contemplated by Congress or the Supreme Court.

According to the Board, tribal self-governance is limited to “intramural” matters such as tribal membership and domestic relations. When a tribe engages in a successful business operation that employs non-members, the tribe loses its exemption as a sovereign entity—unlike local, state and Federal governments that employ non-residents, but remain exempt from the Act. This includes its ability to regulate tribal commerce and to exercise civil jurisdiction over non-members on the reservation without federal government interference.

All this was necessary, according to the NLRB in San Manuel, because “[a]s tribal business have grown and prospered, they have become significant employers of non-Indians and serious competitors with non-Indian owned businesses.”

According To The Department Of The Interior (DOI), San Manuel Is Inconsistent With
Federal Indian Law

The Department of the Interior, the agency charged with the responsibility of overseeing the Federal government’s relations with Indian tribes, does not share this point of view.

Not long after the NLRB began an investigation of the Little River Band of Ottawa Tribe for violating the Act under the authority of the Board’s decision in San Manuel, the Department’s Solicitor’s Office wrote the NLRB. The Solicitor wrote that the agency was without authority to proceed “as a matter of Federal Indian law” and urged the agency “to put an end to this enforcement action as soon as possible.” When the Board ignored DOI’s entreaty and issued a complaint anyway, the Solicitor announced that she would file a brief with the NLRB on behalf of the tribe.

In an administration beholden to Big Labor this was a cardinal offense, and one can only imagine what transpired behind the scenes in response to DOI’s apostasy. Although the Department eventually backed down, its letter to the Board made clear that it was doing so only “in the context of individual cases.” The Department asked for a meeting with the Acting General Counsel to discuss whether and how the Act should be applied to Indian tribes.

Meeting or no meeting, the NLRB has continued to apply the Act to tribes and their wholly-owned enterprises located on the reservation. And San Manuel remains an open invitation to union agents to encroach on tribal lands to organize tribal employees.

Supreme Court May Decide The Issue

The Board’s decision in San Manuel was upheld by the D. C. Circuit Court of Appeals, but a case pending in the Tenth Circuit is unlikely to have the same outcome. The Tenth Circuit court has already disavowed the reasoning employed by the NLRB in San Manuel. A split in the circuits will make San Manuel ripe for Supreme Court review.

Congress Should Step In and Protect Tribal Sovereignty

The Board’s decision in San Manuel insists on separating the tribe’s commercial enterprises from its governmental functions, ignoring reality and the distinctive nature of tribal governments. It penalizes tribes for participating in the national economy and achieving the economic self-sufficiency that has always been the goal of Congressional Indian policy.

The Workforce Fairness Institute strongly supports a Congressional effort to undo San Manuel and restore the ability of Indian tribes to enact laws and be ruled by them and to regulate their wholly-owned commercial enterprises located on Native American lands. Indian sovereignty should be respected, not undermined, by the NLRB or anyone else.

Fred Wszolek is a spokesperson for the Workforce Fairness Institute (WFI).


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