Supreme Court Declines to Consider Curtailing NLRB’s Authority over Michigan Tribal Casinos

Friday, July 15, 2016

Recently, two Michigan tribes petitioned the U.S. Supreme Court challenging the National Labor Relations Board's (NLRB) authority to regulate labor practices at their casinos. Unfortunately, the U.S. Supreme Court declined to review either the Little River Band's or the Saginaw Chippewa's petition, leaving unfavorable Sixth Circuit rulings as binding precedent. 

In both NLRB v. Little River Band of Ottawa Indians Tribal Government and Soaring Eagle Casino v. NLRB, the Sixth Circuit held that there is a presumption that federal laws generally apply equally to tribes on their reservation lands. However, a statute will not be applied to reservation lands if the law touches exclusive self-governance rights, if applying the law to the tribe would abrogate treaty rights, or if legislative history shows congressional intent to exclude tribes from the law's application. The Sixth Circuit held that the National Labor Relations Act (NLRA) vests the NLRB with the fullest jurisdictional breadth constitutionally permissible under the Commerce Clause, and that enforcement of the Act in Indian country is not restricted by one of the exceptions to general applicability.

Under these rulings, the NLRA bars employers, including on-reservation casinos, from taking any action that restrains employees from exercising their NLRA rights. Thus, in the Sixth Circuit (which includes the states of Michigan, Ohio, Kentucky and Tennessee), tribal casinos may not discourage employees from forming unions or engaging in concerted activities to address working conditions. Tribes in these states must now familiarize themselves with NLRA rules and restrictions when dealing with union organizing activities or other collective employee actions.

This article was co-written by Janelle Grigaitis, a summer associate at Varnum in 2016. Janelle is currently a student at Vanderbilt University Law School.

http://www.natlawreview.com/article/supreme-court-declines-to-consider-curtailing-nlrb-s-authority-over-michigan-tribal

Supreme Court Lets NLRB Authority Over Tribal Casinos Stand

Supreme Court Lets NLRB Authority Over Tribal Casinos Stand – 06-29-16

JUNE 28, 2016 BY WORKERS INDEPENDENT NEWS

By Doug Cunningham

Federal appeals court rulings giving the National Labor Relations Board authority over tribal casinos on Indiana land in Michigan will stand. The U.S. Supreme Court has decided not to hear an appeal of those federal court rulings.

The tribal casino industry generates approximately $28.5 billion a year, according to the National Indian Gaming Commission.

Related Posts: https://www.wortfm.org/supreme-court-lets-nlrb-authority-over-tribal-casinos-stand-06-29-16/

Supreme Court won’t hear Tribe’s case

By Susan Field

Matthew L.M. Fletcher isn’t surprised that the United States Supreme Court has declined to hear a case involving dispute between Saginaw Chippewa Indian Tribe and the National Labor Relations Board.

Following the death of Justice Antonin Scalia, there was a significant chance of a 4-4 tie, according to Fletcher, a professor of law and director of the Indigenous Law and Policy Center at Michigan State University.

Saginaw Chippewa tribal officials have battled the NLRB for years over employee efforts to unionize – allowed under federal law but banned by the Tribe, and Tribal officials had asked the U.S. Supreme Court to review a decision at the Sixth Circuit Court of Appeals in which judges ruled that casinos in Michigan run by Native tribes can’t stop employees from petitioning others in the workplace to form unions.

Fletcher, who has closely followed the case, said the Tribe will likely start to negotiate with labor organizations and the NLRB going into the future.

He also said it’s possible the Tribe could exercise the treaty right it claims to exclude and have a “showdown” with the NLRB.

However, Fletcher said he is highly doubtful that the price of exercising that treaty right, which might mean shutting down the Soaring Eagle Casino and Resort for a time, would be worth the fight.

Supreme Court justices on Monday declined to “wade into the legal battle putting Native American tribal sovereignty against the federal government’s power to regulate labor relations in cases involving casinos on Indian land in Michigan,” according to the news agency Reuters.

Rulings by the appeals court gave the NLRB authority over casinos on Indian land.

Now that the Supreme Court has declined to take up the issue, Reuters reported, the Republican-led Congress stands as the tribes’ best hope of avoiding NLRB jurisdiction.

The U.S. House of Representatives passed a bill in November to strip the NLRB’s authority over tribal business on Indian lands, but that has stalled in the Senate, according to Reuters.

That means tribes must abide by the two decisions from the Cincinnati-based federal Sixth Circuit Court of Appeals, Reuters reported.

Last year, that court ruled that the NLRB could order the Soaring Eagle to reinstate a housekeeper who was fired for soliciting union support.

That employee, Susan Lewis, is thrilled for her former co-workers.

Lewis, who got work at an Alma manufacturing business shortly after being fired from the casino, was never re-hired and said she would not return to the job now because the work environment would be hostile.

“But if I did, I’d do the same thing all over again,” Lewis said.

Three California Native American associations filed official support for the Tribe in its fight against the NLRB earlier this year.

Tribal public relations officials did not respond to a request for comment.

http://www.themorningsun.com/general-news/20160630/supreme-court-wont-hear-tribes-case

NLRB Defends Attempt to Enroach on Tribal Sovereignty

Saturday, May 28, 2016

On May 23, the National Labor Relations Board (NLRB) argued to the U.S. Supreme Court that it has authority over labor practices at two Michigan tribal casinos. This argument stems from petitions filed earlier this year by both casino tribes — the Little River Band of Ottawa Indians and the Saginaw Chippewa Indian Tribe. The casinos urged the court to reverse a Sixth Circuit ruling, which upheld NLRB authority over the tribes’ employment practices.

At issue is an ordinance enacted by the Little River Band’s tribal council prohibiting casino employees from engaging in strikes, work stoppages or slowdowns. The NLRB sought a cease and desist order to prohibit enforcement of parts of the tribal law which conflicted with the National Labor Relations Act (NLRA). The Sixth Circuit agreed with the NLRB and held that the tribe’s no-strike law violated the NLRA. In doing so, the Sixth Circuit squarely rejected a contrary decision by the Tenth Circuit, which sustained tribal labor laws.

The tribes now challenge the Sixth Circuit ruling. They argue that the casinos are exempt from the National Labor Relations Act as government employers. The NLRB contends that no circuit conflict exists and that earlier decisions did not address how the NLRA applies to a tribe acting as an employer. Moreover, the board argues that applying the NLRA to the casinos, which mostly employ non-Indians and serve non-Indian customers, is consistent with both tribal sovereignty and the NLRA’s purpose.

- See more at: http://www.natlawreview.com/article/nlrb-defends-attempt-to-enroach-tribal-sovereignty#sthash.VqWeuRhJ.dpuf

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Tribal Labor Sovereignty Act moves forward after markup session

 Kim Morrison

 

 July 27, 2015

 

 Gaming Law & Legislation, Latest Casino and Gambling News, Legal Proceedings, North America Casino News, U.S.A.

H.R.511 gains momentum as members of the House Committee on Education and the Workforce attend the July 22, 2015 markup session which was packed with members of the National Indian Gaming Association in Washington, D.C., for a legislative summit.

The Act which exempts tribes and their casinos from the National Labor Relations Act (NLRA), the Tribal Labor Sovereignty Act was passed on Wednesday at the short markup session on Capitol Hill.

According to the Chairman of the Committee, Rep. John Kline (R-Minnesota) who introduced the bill, “it’s not about big business versus big labor and it’s not about Republican versus Democrat.”

Kline went on to add that “the bill we are considering today is about whether Native Americans should be free to govern employee-employer relations in a way they determine is best for their workplace.”

In what Rep. Todd Rokita (R-Indiana) described as a “bipartisan, commonsense proposal that will provide legal certainty to the Native American community,” the Act would exempt tribes and their casinos from the National Labor Relations Act (NLRA), and prohibit the National Labor Relations Board from asserting jurisdiction at those businesses.

Rokita also went on to state that the Act would give authority back to tribal leaders and end the National Labor Review Board’s (NLRB) overreach, and restore the standard that was in place long before the National Labor Relations Board made the misguided decision to change course. An amendment in the nature of a substitute to clarify that tribal governments are also exempt from the NLRA, was offered by Rokita.

Opposition to the Sovereignty Act was voiced by the only Democrats present, Rep. Mark Pocan (D-Wisconsin), Rep. Joe Courtney (D-Connecticut) and Rep. Ruben Hinojosa (D-Texas), who accused Republicans and their allies of using tribal sovereignty as a smokescreen to attack the NLRB.

Representative Pocan accused proponents of the bill, such as the U.S. Chamber of Commerce, of endorsing the bill in an attempt to help destroy the NLRB rather than support for the sovereignty of the tribes.

The three also noted that most employees of tribal casinos are non-Indians and argued that the bill will degrade labor standards Indian Country.

Although it hasn’t been taken up by the full Senate, on June 10th the Senate Indian Affairs Committee approved S.248, its version of the bill which is gaining traction among lawmakers from both parties.

At that legislative summit which opened Tuesday on Capitol Hill (hosted by the National Indian Gaming Association (NIGA)), Sen. Heidi Heitkamp (D-North Dakota) stressed that every conversation about gaming should begin by stating that gaming is not something that the federal government authorized you to do, but a sovereign right.

She added that, “If the Indian Gaming Regulatory Act went away tomorrow, you would still be able to conduct gaming,”

Exemption from the NLRA has been sought after by the tribes ever since a 2004 ruling in which the NLRB asserted jurisdiction over Indian Country for the first time in decades, but efforts to address the issue ran into serious opposition from Democrats and their labor union allies at that time.

Since that 2004 ruling, tribes have won support from key Democrats by pitching the issue as one of parity with other governments, and with Republicans in control of the House and Senate, the bill has moved quickly in the 114th Congress.

The bill would resolve uncertainties like the one that arose in early June when the NLRB declined to assert jurisdiction at the WinStar World Casino and Resort, a casino owned by the Chickasaw Nation of Oklahoma, citing the tribe’s treaty-protected right to self-governance.

Less than a week later, the 6th Circuit Court of Appeals backed the NLRB’s jurisdiction over the Little River Casino and Resort, a casino owned by the Little River Band of Ottawa Indians in Michigan, and three weeks later, expressing serious doubts about the application of the NLRA in Indian Country, the same court rejected the treaty claims of the Saginaw Chippewa Tribe, also in Michigan.

The U.S. federal law that establishes the jurisdictional framework that governs Indian gaming, the Indian Gaming Regulatory Act (IGRA), has been a source of extensive controversy and litigation since it was passed in 1988.

http://news.worldcasinodirectory.com/tribal-labor-sovereignty-act-moves-forward-after-markup-session-10525

Labor Rights And Tribal Sovereignty Collide At Indian Casinos

Posted: 06/15/2015 12:24 pm EDT Updated: 06/15/2015 1:59 pm EDT

In 2013, Gary Navarro took a job working the slots at the Graton Resort and Casino, an Indian-owned casino in Rohnert Park, California. He was just 45 days into the job when he learned that an effort to unionize the workforce was underway.

“I wasn’t too keen on the union at first,” explained Navarro, a registered Republican. “Because I didn’t know what a union was, I didn’t understand what the union stood for.”

Navarro hit it off with a union representative and had a change of heart. He took a lead role in the union effort, and now he and his fellow slot workers are members of Unite Here, a union representing service workers.

But Navarro now finds himself at the center of a clash between labor rights and tribal sovereignty. He is a Pomo Indian from the Round Valley Tribe. His casino is owned by Pomo Indians from a different tribe, the Federated Indians of Graton Rancheria. Many tribal casinos are now asserting that a U.S. labor law protecting workers like Navarro does not apply to tribal businesses on tribal lands. Members of Congress from both sides of the aisle seem to agree.

On Wednesday, Navarro was among 60 workers from Unite Here, including 16 employees of tribal casinos in California, who donned red shirts emblazoned with the slogan “All-American rights for all Americans," and packed the Senate Committee on Indian Affairs hearing for a bill that would exempt tribes from the National Labor Relations Act, or NLRA, the Great Depression-era law that covers collective bargaining in the private sector.

The bill reveals ongoing tensions between labor and native rights about whether the National Labor Relations Board, or NLRB, the agency that enforces the law, can adjudicate disputes between tribal businesses and their workers. The jurisdiction of the NLRB in Indian Country has been a contentious issue between unions and Indian Nations that extends back to the Indian Gaming Regulatory ACT of 1988.

Indian casinos are at the heart of the issue. In 2012, Indian casinos brought in $28.13 billion, representing 43 percent of all U.S. casino gaming revenue for that year. The largest market for Indian gaming is California, where the Graton Rancheria brought in $190 million during the first six months of 2014 before their partner, Station Casinos of Las Vegas, stopped publicly reporting its income.

To unions, Indians Casinos are big business. “The issue of tribal sovereignty is being used as a phony way to say, ‘We’re for sovereignty,’ when in fact, [they're] really just for the money behind this,” said Maria Elena Durazo, vice president of civil rights and immigration for Unite Here. Unite Here, which represents 270,000 hospitality workers in North America, including 6,000 workers from Indian casinos, insists that the NLRA’s jurisdiction extends to tribal businesses on Indian reservations.

Although Indian casinos may be operated by major players in gaming -- in Graton's case, the Las Vegas-based Station Casinos -- they are owned by tribal members, rather than the Donald Trumps or Sheldon Adelsons of the world. Many casinos are relatively small operations that use their revenues to fund vital services such as education, law enforcement and healthcare that would otherwise be severely underfunded by the Bureau of Indian Affairs.

Tribes argue that the NLRA regulates relations between workers and private employers. As sovereign governments, tribes insist, the NLRA does not apply to them.

An exemption from the NLRA would prevent tribal casino workers from unionizing through the same legal framework that protects most U.S. workers. So far, the NLRB appears to be leaning toward the unions.

In a 2004 decision, the board dismissed the San Manuel Tribe’s petition for exemption from the NLRA. In its ruling, however, the board stated that exemptions might apply under specific treaties and also in disputes entirely internal to tribes.

Last week, the NLRB declined to assert jurisdiction over the Chickasaw Nation’s WinStar World Casino in Oklahoma. In its decision, the board cited sovereign rights specific to the Chickasaw in the 1830 Treaty of Dancing Rabbit Creek.

Other tribes, such as the Saginaw Chippewa and Little River Band of Ottawa, both in Michigan, have also challenged NLRB jurisdiction. On Tuesday, an appeals court ruled that the Little River Band of Ottawa must stop enforcing provisions of tribal labor laws that conflict with the NLRA.

Meanwhile, the Saginaw Chippewa case against the NLRB is still being adjudicated. Like the Chickasaw, the Saginaw Chippewa have built their case on treaty rights, which they argue reserve “broad, general rights” of self-government to tribes on the reservation. But California tribes such as the San Manuel -- and Navarro’s employer, the Graton Rancheria -- do not have treaties that were ratified by the United States. Under the precedent set by the San Manuel ruling in 2004, the NLRA still presumably applies to Indian casinos in the state.

However, that could all change with the Tribal Labor Sovereignty Act, versions of which have been introduced in both chambers of Congress. The Senate bill passed a voice vote in the Committee on Indian Affairs on Wednesday. The legislation, which was introduced by Sen. Jerry Moran (R-Kan.) and sponsored exclusively by the eight Republicans on the committee, would amend the NLRA to exempt tribes as employers under the act.

Critics like Unite Here say the bill “will strip thousands of American workers from rights and protections.” Proponents, like Sen. John Barrasso (R-Wyo.), the committee chairman, say the bill “will empower tribes and respect them as sovereign governments.” These two opposing positions suggest a tradeoff: You can have labor rights, or you can have native rights -- but you can’t have both.

The conflict has made Democrats uneasy, with many members of the Committee on Indian Affairs reluctant to comment on the issue. Democratic Sens. John Tester (Mont.) and Heidi Heitkamp (N.D.) are expected to cross the aisle and vote in favor of the bill. Both Senators hail from western states with strong tribes.

In a statement through his spokesperson, Tester explained, “I support the critical role the NLRB plays in protecting workers, but my vote on this issue is a vote in support of tribal sovereignty.” Despite having reservations about the bill, Tester consulted with tribal leaders in the state, who were unanimously in favor.

Navarro will testify at the hearing for the House version of the bill on Tuesday. The legislation has a strong chance of passing both GOP-controlled chambers, as Republicans in general have been hostile toward the NLRB, threatening its funding and powers. 

If the legislation makes it all the way to President Barack Obama’s desk, he will face the same political tradeoff as his fellow Democrats in Congress. Since his visit to the Standing Rock Indian Reservation last June, Obama has emerged as a strong advocate for Indian Country, particularly on issues facing youth. But despite his current battle with organized labor over his massive trade deal, the president has also been closely aligned with labor unions.

These divisions extend down to Navarro, whose background as a Pomo working the wildly successful casino of his kin is unique. (The vast majority of workers at tribal casinos are not Native American.) Navarro’s experience and family history reveal just how deeply this bill cuts into the fraught relationship between the first peoples of this land and workers over scarce resources and opportunities.

In the early days of the United States’ control over California, Navarro’s Pomo ancestors faced enslavement and massacre at the hands of settlers, and were eventually forced onto the impoverished Round Valley Reservation. Had Navarro’s ancestors fled south to live with their Southern Pomo kin, Navarro might have been an owner rather than a worker at the Graton Resort and Casino.

Instead, his great-grandmother grew up in a trailer with 14 siblings on the Round Valley Reservation before running away and marrying a migrant worker. Navarro, their great-grandson, has maintained that tradition of work. He believes union rights are important to preserving good work.

“I’m not super rich, I’m nowhere near it,” he said, “but I’ve worked my ass off for everything that I get, and I’m not going to stop!”



http://www.huffingtonpost.com/2015/06/15/native-americans-labor-unions_n_7573322.html?utm_hp_ref=politics

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).


Read more:http://indiancountrytodaymedianetwork.com/ict_sbc/nlrb-threatens-native-sovereignty http://indiancountrytodaymedianetwork.com/ict_sbc/nlrb-threatens-native-sovereignty#ixzz28etqFYcs