NLRB Tells Justices It Has Authority Over Tribal Casinos

Make sure you don't miss any Law breaking news. Circuit noted that other circuits have made somewhat conflicting rulings on tribes and federal labor law. Title I of the ADA seeks to ensure that individuals with disabilities will be treated as equals and afforded the ability to compete in the workplace with those not considered disabled. The door has certainly been opened. Get instant access to the one-stop news source for business lawyers Register Now! Although the statute makes no mention of its applicability to Indian tribes, the Secretary of Labor has taken the position that the FMLA applies to Indian tribes.

Federal Employment Laws Impact Tribal Employers

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Tribes aren't mentioned anywhere in the National Labor Relations Act. But a three-judge panel of the D. Circuit Court of Appeals said the law can be imposed on tribes and their commercial enterprises, such as casinos, without infringing on their sovereignty. In the page decision, the court made two broad and potentially negative statements. The first involved the Indian canons of construction, which have been used to favor tribes in cases where laws are ambiguous or fail to speak on a particular matter.

Circuit said the canon only applies to laws "enacted specifically for the benefit of Indians or for the regulation of Indian affairs" and not for laws of "general applicability" such as the NLRA. This could affect tribal disputes under other general laws, such as the Occupational Safety and Health Act. The second statement appears far more damaging. The judges characterized tribal sovereignty not as an inherent power to act as a government but merely as a means to preserve Indian culture.

The court acknowledged that the operation of a casino is a tribal government undertaking. The tribes cited language in the Indian Gaming Regulatory Act that Congress intended casinos to fund government services and make tribes more self-sufficient. But the judges drew a distinction between acts of governance that only affect tribal members or internal matters and acts that affect non-members.

By opening casinos, marketing them to non-Indians and employing non-Indians, tribes are stepping beyond "traditional" notions of self-governance," the court said. Second, the vast majority of the casino's employees and customers are not members of the tribe, and they live off the reservation.

Revenues from the tribe's gaming enterprise fund government services and are distributed to tribal members on a per capita basis. More significantly, the decision puts the tribe's new gaming compact and casino expansion plans in doubt.

Labor unions and their Democratic allies in the state Legislature blocked the compact last years because they said it didn't provide enough protections for employees. Naturally, the NLRB then ruled discriminating in favor of one union over another was an unfair labor practice. The decision itself is a significant crack in the wall of sovereign immunity protecting tribes from federal and state laws. But perhaps more importantly, the Court then declared a fundamental change in the way courts will decide in the future if any law applies to a tribe.

It is well-established that tribes have sovereignty. See, Kiowa Tribe v. This includes the right to be exempt from federal and state laws and not to be sued without their consent. Tribes can voluntarily give up some of their sovereignty, as they often do when signing contracts.

Tribal sovereignty can also be taken away by Congress. In all other cases, outside laws apply to Indians, unless there is a clear indication that they are exempt. This turns existing law on its head. It used to be that tribes were safe in assuming a law, say the requirement that casinos report large cash transactions to the U. Treasury, did not apply to them, because there was no express statement that tribes were required to file these reports.

Now the assumption has to be the opposite: All federal and state laws, including all statutes and regulations, apply to tribal casinos unless there is an explicit statement in the law itself that tribes are exempt. The immediate impact of this decision was political, rather than legal.

It added a heated political battle in Congress to the heated political battle being waged over new casino compacts in California. But President Bush has vowed to veto the bill. This is exactly the issue that prevented recent compacts from being approved by the California Legislature. But the compacts have a provision the unions hate: The Democrats were forced to decide whether to betray the tribes by not approving the compacts, or the unions by approving them.

They decided to postpone their decision until after the election, keeping the unions happy, but resulting in the tribes pouring millions of dollars into Republican campaigns. Now, this Court has made it clear that federal law does apply to how unions get organized, or not, in Indian casinos.

Tribes, as employers, can now demand secret elections — unless Congress changes the law. So, how should Democrats, who control both the California Assembly and Senate vote? At the time this is written, the compacts have been approved by the State Senate but are facing great opposition in the State Assembly.

Tribes are considering appealing this case to the U.

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