Pauma Band hits end of the line with labor sovereignty case

Monday, May 20, 2019  

It wasn't all good news from the nation's highest court as the Pauma Band of Luiseño Indians was turned away in a closely-watched labor sovereignty case.

Without comment, the U.S. Supreme Court on Monday declined a petition in Casino Pauma v. NLRB. The action, which came in an order list in the morning, means the tribe must comply with federal labor law at its Casino Pauma in southern California.

The tribe had sought to overturn an April 2018 decision of the 9th Circuit Court of Appeals. In that ruling, the court deferred to the expertise of the National Labor Relation Board in holding that federal law governs at the gaming establishment.

In a now-infamous 2004 holding, the independent federal agency determined that tribes, in certain situations, must comply with the law because their casinos employ non-Indians and cater to non-Indians.

"Under these circumstances—in which both the board and the parties present reasonable interpretations of an ambiguous provision in the NLRA—the court must defer to the board’s conclusions respecting the meaning of federal labor law," Judge Marsha S. Brezon wrote in the 35-page decision for the 9th Circuit.

In comparison, states and local governments are not subject to the law. But efforts to bring parity to Indian Country have repeatedly failed in Congress, most recently in the last session when the Tribal Labor Sovereignty Act passed the House only to suffer a major defeat in the Senate.

Rep. John Moolenaar (R-Michigan) has since introduced H.R.779, a new version of the Tribal Labor Sovereignty Act. It's unlikely the bill will get far, given that Democrats took control of the House at the start of the 116th Congress in January. Their party is closely aligned with labor unions and only one Democrat has signed on as a co-sponsor.

Sen. Jerry Moran (R-Kansas), a member of the Senate Committee on Indian Affairs, has introduced S.226 in the Senate, which remains in Republican hands. The bill was one of the first approved by the committee earlier this year but it hasn't been scheduled for further action in the chamber.

“It is time to correct a decade-old error made by the National Labor Relations Board and once again allow tribal governments, elected by their members, to possess the right to make informed decisions on behalf of those they represent,” Moran said of his bill, which lacks Democratic cosponsors.

Casino Pauma v. NLRB (April 26, 2018)

6th Circuit: Soaring Eagle Casino v. NLRB (July 1, 2015)
6th Circuit: NLRB v. Little River Band of Ottawa Indians (June 9, 2015)
D.C. Circuit: San Manuel Band v. National Labor Relations Board (February 9, 2007)

Tribal labor law rider killed by wide margin in House (June 27, 2005)
NCAI between 'rock and a hard place' on labor rider (September 13, 2004)
Tribal labor amendment fails in House vote (September 10, 2004)
Federal labor board expands jurisdiction over tribes (June 4, 2004)

Tribal Labor Sovereignty Act rears its controversial head again (January 29, 2019)
Tribes and sovereignty still don't mix when it comes to labor laws (May 4, 2018)
'We will be back' vows leader of National Congress of American Indians after sovereignty vote fails (April 17, 2018)
Indian Country caught in drama as lawmakers clash on controversial bill (April 17, 2018)
Mark Trahant: Tribes lose a battle as sovereignty bill comes up for vote (April 17, 2018)
Gyasi Ross: Democrats turn on tribes and vote against our sovereignty (April 17, 2018)
Senate places controversial Tribal Labor Sovereignty Act on schedule (April 16, 2018)
Tribes looking for more support to pass controversial sovereignty bill (February 14, 2018)
Cronkite News: White Mountain Apache water bill sidetracked in partisan fight (January 12, 2018)
Republicans stir drama by reviving contentious Tribal Labor Sovereignty Act (January 11, 2018)