Federal judge intervenes to Stop NLRB case against Indian Nation Casino

On July 8, 2011, a federal judge in Oklahoma issued a temporary restraining order against the National Labor Relations Board, preventing it from moving forward with an unfair labor practice complaint brought under the National Labor Relations Act against the Chickasaw Nation's WinStar World Casino. The case is Chickasaw Nation v. National Labor Relations Board. The order was given in open court last Friday by Senior District Court Judge Lee West. His written order was issued on July 11.

This is the first time a federal court has stopped the NLRB from proceeding against an Indian nation's gaming operation. Other federal courts have declined to stop the NLRB from issuing subpoenas against Indian nation enterprises, including casinos. The law is unstable, depending on where a particular Indian nation is located.

The question of whether the NLRA applies to the gaming operations of Indian nations has spurred significant controversy. While states and the federal government are expressly excluded from the Act, the NLRA says nothing about Indian nations. For years, the NLRB held that tribes were not subject to the Act because Indian nations are governments similar to states.

The NLRB changed course with respect to Indian gaming, and in 2007, the U.S. Court of Appeals for the D.C. Circuit upheld an NLRB ruling that it could proceed against the San Manuel Indian Bingo and Casino in California. The D.C. Circuit found the case "difficult," and it said that the decisions of other federal courts were "inconsistent." It allowed the NLRB to proceed, however, stating that the resulting interference with tribal self-government was "probably modest."

In Chickasaw Nation, Judge West rejected the San Manuel rationale. He wrote that "a deep body of Tenth Circuit law" supported by Supreme Court decisions establishes that "a statute [like the NLRA] that is silent with respect to Indians does not divest a tribe of its sovereign authority."

It is unknown whether the NLRB will appeal. If it does, the law regarding tribal sovereighty in this area could become even more uncertain if the Tenth Circuit affirms Judge West's decision and parts company with the D.C. Circuit in San Manuel.

As explained in Labor and Employment Law in Indian Country (2011) (published by the NARF and Drummond Woodsum), there are differing rules across the federal circuit courts of appeals concerning the question of whether federal labor and employment laws apply to Indian nations and their enterprises. The issue will likely be resolved by the U.S. Supreme Court if Congress does not intervene.

In the meantime, advocates of tribal sovereignty have urged Indian nations to exercise their sovereign authority to regulate labor and employment matters on their lands under their own laws and in accordance
with their own values.