HomePublicationsNewsletter ArchiveNewslettersVolume 21Issue 20Appeals Court Reaffirms NLRB Jurisdiction Over Little River Band Casino

On Tuesday, June 9, the 6th Circuit Court of Appeals voted 2-1 that the National Labor Relations Board (“NLRB”) was correct to assert jurisdiction over the Little River Casino Resort (“Casino”), located in Manistee, Michigan. The decision prohibits the Little River Band of Ottawa Indians (“Little River Band”), owners of the Casino, from enforcing its own labor laws at the facility because certain provisions conflict with the National Labor Relations Act (“Act”).

The court’s reasoning in the case centers around the fact that most patrons and employees of the casino are not tribal members, so imposing jurisdiction does not infringe the Tribe’s sovereignty.

“The right to conduct commercial enterprises free of federal regulation is not an aspect of tribal self-government,” the majority decision stated. “And Indian tribes are not shielded from general federal statutes because the application of those statutes may incidentally affect the revenue streams of tribal commercial operations that fund tribal government.”

There is much ongoing debate regarding the application of the NLRA and its application to Native American Indian Tribes.

Soaring Eagle Casino Resort

The court’s recent ruling against the Little River Band echoes a similar decision reached in March of 2012, which was reaffirmed last year, requiring the Soaring Eagle Casino and Resort to allow its workers to discuss or promote unionization under certain circumstances. Notably, in April of 2013, the NLRB issued 359 NLRB No. 92 regarding Soaring Eagle Casino’s non-unionization policies.

In the March 2012 ruling, Administrative Law Judge Michael A. Rosas stated that the Act applied to the Saginaw Chippewa Indian Tribe of Michigan’s activities at the casino and that the non-solicitation policy violated certain sections of the federal law. The decision stated, in part, that “applying the Act to the Tribe’s casino operations would not interfere with its rights of self-governance or intramural matters” and that portions of the non-solicitation policy were “unlawfully overbroad.”

Chickasaw Nation of Oklahoma

Conversely, on a June 4, 2015, the NLRB issued  362 NLRB No. 109, which declines the NLRB authority to assert jurisdiction over the Chickasaw Nation of Oklahoma (“Nation”), in its capacity as operator of the WinStar World Casino. The decision was narrowly tailored to take into account treaty language specific to the Chickasaw Tribe.

Notably, the NLRB Order states that by “[a]pplying the test established by the Board in San Manuel Indian Bingo & Casino … we find that application of the Act would abrogate treaty rights, specific to the nation, contained in the 1830 Treaty of Dancing Rabbit Creek.”

Senate Bill 248

In January of this year, U.S. Senator Jerry Moran (R-KS) introduced S.248— Tribal Labor Sovereignty Act of 2015. If passed into law, S.248 would amend the National Labor Relations Act to provide that any enterprise or institution owned and operated by a Native American Indian tribe and located on its lands is not considered an “employer” under the Act.

On Wednesday, June 10, the bill was reported favorably from the Senate Committee on Indian Affairs.

 

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