Federal judge refuses to stop NLRB case against Indian Nation Casino

2011 will close out with two NLRB actions against Indian nations' gaming facilities going in opposite directions. In July, Oklahoma Federal District Court Judge Lee West intervened to stop a NLRB unfair labor practice case against the Chickasaw Nation's WinStar World casino. Last Friday, December 23, Michigan Federal District Court Judge Thomas Ludington dismissed a case brought by the Saginaw Chippewa Indian Tribe to stop a NLRB unfair labor practice case against that Tribe's Soaring Eagle Casino Resort.

In both cases, the affected Indian nation claimed that the NLRB's action violated rights of tribal self-government protected by treaty and federal Indian law. In both cases, the NLRB responded that the federal court could not intervene -- that the agency "exhaustion doctrine" required all arguments about the NLRB's power over Indian nations or their enterprises to be first addressed in a final decision before the NLRB and then appealed to federal court. Judge West rejected that argument, but Judge Ludington accepted it.

Earlier this month, the NLRB proceeded with a hearing on its unfair labor practice case against the Soaring Eagle Casino. It claims that casino managers discriminated against an employee because of her union activities. The outcome of the case is unknown.

Judge West's decision last July halted the NLRB's unfair labor practice case against the WinStar World Casino, involving claims that casino managers intimidated employees engaged in union activities. The NLRB has appealed Judge West's decision to the U.S. Court of Appeals for the Tenth Circuit. The Board is expected to argue that Judge West incorrectly failed to apply the exhaustion doctrine and the only route to federal court is on appeal from a final NLRB decision on the unfair labor practice case.

These cases exemplify the growing trend of outside intervention into labor affairs across Indian Country. All involve federal regulatory agencies seeking to impose the labor and employment laws they administer upon Indian nations or their enterprises. This trend poses a significant threat to tribal sovereignty.

These issues and the ability of Indian nations to address them are thoroughly explored in Labor and Employment Law in Indian Country (2011) (336 pp), jointly published by NARF and Drummond Woodsum. The Indian Nations Labor & Employment Group is dedicated to working with tribal clients across Indian Country to protect tribal sovereignty and ensure fair working conditions in accordance with tribal law.