Today the Supreme Court declined to take up the case of NLRB v. Little River Band of Ottawa Indians Tribal Government. As a result, a lower federal court decision allowing the National Labor Relations Board (NLRB) to strike down the operational labor laws of the Little River Band of Ottawa Indians stands.
The Court's refusal to hear the case leaves the law governing whether Indian tribes and their enterprises are subject to the National Labor Relations Act (NLRA) in complete disarray. (More on this disarray below.) It also leaves Indian tribes as the only sovereign governments vulnerable to claims under the Act. The NLRA excludes states and the federal government, but fails to mention Indian tribes.
The Little River Band has had an operational labor law on its books for nearly a decade. The Band's law allows union organizing within its governmental agencies, divisions, and subordinate economic organizations, but, like the labor laws of most states and the federal government, it prohibits strikes and restricts collective bargaining over specific subject areas. In this way, it varies from the NLRA.
In 2013, the NLRB challenged the Band's laws and ruled that it could strike down the Band's laws insofar as they vary from the NLRA and apply to the Tribe's gaming enterprise, the Little River Casino Resort. The Band appealed to the U.S. Court of Appeals for the Sixth Circuit, arguing that it had sovereign authority to regulate its reservation employment relations. In a splintered decision, a three judge panel of that Court upheld the NLRB's ruling. Three weeks later, in the case of Soaring Eagle Casino Resort v. NLRB, presenting the question of whether the NLRA applies to the gaming facility of the Saginaw Chippewa Tribe, a separate three judge panel of the Sixth Circuit rejected the reasoning of the Little River Band panel, but said it was constrained by the earlier precedent to decide in favor of the NLRB.
As far as we know, this is the first time a federal agency has been empowered to strike down the duly enacted and operational laws of a federally recognized Indian tribe; this is an historic, unprecedented undertaking.
Tribes in Michigan are now bound by the ruling of the Sixth Circuit. So their gaming facilities may well be open to union organizing under the NLRA. The state of the law in other parts of the country is less certain. Tribes in Wyoming, Colorado, New Mexico, Oklahoma, and Kansas are subject to a rule set by the U.S. Court of Appeals for the Tenth Circuit, which can generally be described as more protective of tribal sovereignty. On the other hand, tribes in Montana, Idaho, Arizona, California, the Northwest, New York, and Connecticut are subject to decisions of the Courts of Appeals for the Ninth and Second Circuits, which are less protective of tribal sovereignty. In other parts of the country, it can be hard to gauge what the rule is.
At this point, the best hope for a fix is through a Congressional amendment to the NLRA, which would exempt tribes in the same manner as states. For more information on that effort, click here.
For the Sixth Circuit's decision in Little River Band, click here. For the Sixth Circuit's decision in Soaring Eagle Casino, click here. For Tenth Circuit cases generally favorable to tribal sovereignty click here and here.
