Litigation | Opinion

Brian Pierson: Tribal labor sovereignty could land in Supreme Court




A view of the U.S. Supreme Court. Photo by Indianz.Com

Attorney Brian Pierson looks at two conflicting rulings from the 6th Circuit Court of Appeals regarding the application of federal labor law at tribal casinos, arguing that the dispute could end up before the U.S. Supreme Court:
In its very odd July 1 decision in Soaring Eagle Casino and Resort v. National Labor Relations Board, all three judges on the three-judge panel concluded that the National Labor Relations Act (NLRA) should not apply to Soaring Eagle Casino and Resort, an enterprise owned and operated by the Saginaw Chippewa Tribe. Nonetheless, by a 2-1 vote, the judges held that the NLRA would apply to the enterprise because, they explained, they were bound by a 2-1 decision by a different three-judge panel in NLRB v. Little River Band of Ottawa Indians, decided just three weeks earlier.

Four of the six judges in the Sixth Circuit who have examined the issue, in two different cases, have concluded that the NLRA has no jurisdiction over the tribes. The tribes have lost both cases!

The Soaring Eagle decision is noteworthy not only for its internal contradiction but also for its novel legal analysis. The majority in the Little River Band case had adopted the Coeur d’Alene rule to analyze whether a federal law that does not mention tribes should nonetheless apply to them. Under Coeur d’Alene, a federal law of general applicability will apply to tribes unless it touches “exclusive rights of self-governance in purely intramural matters” or would violate a treaty. Courts applying the Coeur d’Alene rule invariably find that tribal casinos do not involve exclusive rights of self-governance in intramural matters because enterprise employees and patrons are often predominately non-members.

A rehearing en banc would, under other circumstances, seem likely to determine whether the full Sixth Circuit agrees with the four judges who have opined that the NLRA should not apply or the two judges who have opined that it should. The most likely outcomes of such an en banc hearing include: (1) a holding consistent with the Little River Band majority that the NLRA applies to the Tribe under the Coeur d’Alene rule; or (2) a holding that the NLRA does not apply to the Tribe based on the Montana exceptions, consistent with the Soaring Eagle opinions. The latter result would almost certainly trigger review by the U.S. Supreme Court and probably a decision adverse to tribes.

Get the Story:
Bizarre Sixth Circuit Decision Further Confuses NLRB's Jurisdiction Over Tribal Enterprises (The National Law Review 7/3)

Also Today:
Catherine Munson and Mark H. Reeves: Divided Sixth Circuit Panel Upholds NLRB Jurisdiction To Enforce NLRA Against Tribes Even When The Act Conflicts With Tribal Employment Laws (Mondaq 7/3)

6th Circuit Decisions:
Soaring Eagle Casino v. NLRB (July 1, 2015)
NLRB v. Little River Band of Ottawa Indians (June 9, 2015)

From the Indianz.Com Archive:
Tribal labor law rider killed by wide margin in House (June 27, 2005)
Federal labor board expands jurisdiction over tribes (June 4, 2004)

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