Litigation | Opinion

Pierre Bergeron: Judges split on federal labor law at tribal casinos

Friday, July 3, 2015

The Saginaw Chippewa Tribe owns and operates the Soaring Eagle Casino & Resort in Mount Pleasant, Michigan. Photo from Facebook

Attorney Pierre Bergeron addresses a split on the 6th Circuit Court of Appeals regarding the application of federal labor law at tribal casinos:

We recently reported on a decision governing the NLRB’s jurisdiction over tribal casinos, NLRB v. Little River Band of Ottawa Indians Tribal Government. Shortly after that split decision, another panel of the Sixth Circuit handed down a decision that addressed similar issues yesterday, Soaring Eagle Casino and Resort v. NLRB. Apparently, both panels were considering some of the same issues independently, but at the same time. The Little River panel issued its decision first, which bound the subsequent Soaring Eagle panel. However, in an unusual move, the latter panel expressly disagreed with the prior panel’s decision from two weeks ago but nevertheless followed it as it was obliged to do.
This panel then embarks on an extended discussion detailing the error of the prior panel’s ways. (It stands to reason that this opinion was initially drafted prior to receipt of the Little Eagle opinion, which then generated a need for substantial revisions). Judge White concurred in part and dissented in part, but did agree with the majority that Little River was wrongly decided. That means that of the six judges to consider this question in the past month, only two agreed with the framework adopted by Little River, but paradoxically that currently prevails as the law of the Circuit.
Needless to say, however, this presents an issue that is ripe for en banc review. Although the Court has been restricting en banc review, such a flagrant disagreement between two panels certainly should attract en banc attention.

Get the Story:
Pierre H. Bergeron: NLRB-tribe dispute heading for en banc review? (Lexology 7/2)

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)