NLRB Has Jurisdiction Over Little River Band

Darrell VanDeusen
Darrell VanDeusen

For those of us of a certain age, the “Little River Band” conjures memories of a ‘70’s light rock band and the song “Reminiscing.” And yes, they are still touring (they will be in Annapolis, Maryland in November). But that is not this case. We’re talking here about a Sixth Circuit decision, 2-1, that held the NLRA applies to a Michigan casino run by a Native American tribe on Indian land that employs mostly people who are not tribal members. NLRB v. Little River Band of Ottawa Indians Tribal Gov’t, 2015 U.S. App. LEXIS 9585 (June 9, 2015).

Enforcing an NLRB order, the Court held that while the NLRA is silent on the subject, the statutory terms “employer” and “person” encompass Indian tribes. Moreover, said the court, there is nothing in federal Indian law that forecloses application of the NLRA to the Band’s operation of a casino and the regulation of its employees.

The Little River Band operates a casino in Manistee, Michigan It is a federally recognized tribe and has over 4,000 members. The casino operates on tribal lands and employs 905 people, but only 107 are members of the Band. Of the rest, 27 are members of other Indian tribes; 771 are not identified as members of any tribe. Most casino customers are not tribe members, the court said.

The case arose when, in 2005, the Band’s tribal council passed a Fair Employment Practices Code restricting union organizing, collective bargaining, and strike activity. Since the casino is on tribal lands, and the Band has authority to govern things that occur on tribal lands, the code provision applied to all casino employees. The result? An unfair labor practice charge filed by the Teamsters against the tribal council, alleging violation of section 8(a)(1) of the NLRA.

Before the NLRB, the parties agreed that the only issue was one of the Board’s jurisdiction, and if so, whether there an ULP occurred. The Board rejected the tribal government’s objections to NLRB jurisdiction and ordered the Band to stop enforcing the disputed provisions of the Code. Applying a 2004 NLRB decision, San Manuel Indian Bingo & Casino, 341 NLRB 1055 (2004), the Board said that since the casino is a “typical commercial enterprise” and the vast majority of its employees and customers are non-Indians, the business “can hardly be described as ‘vital’ to the tribes’ ability to govern themselves or as an ‘essential attribute’ of their sovereignty.”

The Band did not claim that it was covered by treaties and, in San Manuel, the Board reflected that it had not found the NLRA’s language or legislative history indicates Congress intended to preclude NLRB jurisdiction over tribal operations.

In a detailed and de novo review of the jurisdictional issue, Judges Gibbons and Merritt affirmed the Board’s assertion of coverage. “At its heart, the question before us is not one of policy, but of law,” the court said. Looking to relevant Supreme Court decisions, the court stressed that “Indian tribes retain broad residual power over internal affairs,” but when tribal government extends into “an off-reservation business transaction” with non-Indians, a claim of sovereignty is at its weakest. By affirming NLRB jurisdiction, the court created a circuit split with the Tenth Circuit’s 2002 decision in NLRB v. Pueblo of San Juan, 276 F.3d 1186 (10th Cir. 2002), which held that federal statutes of general applicability do not apply “where an Indian tribe has exercised its authority as a sovereign” rather than acted “in a proprietary capacity.”

In a strident dissent, Judge McKeague stressed principles of tribal sovereignty and argued that the Band should be free to regulate its own labor relations on its lands. “The sheer length of the majority’s opinion, to resolve the single jurisdictional issue before us,” said the judge, “betrays its error.” “Not content with the simple answer, the majority strives mightily to justify a different approach,” he continued. “In the process, we contribute to a judicial re-making of the law that is authorized neither by Congress nor the Supreme Court. Because the majority’s decision impinges on tribal sovereignty, encroaches on Congress’s plenary and exclusive authority over Indian affairs, conflicts with Supreme Court precedent, and unwisely creates a circuit split, I respectfully dissent.”

It is ironic, perhaps, that the court’s ruling came out the same day the Senate Committee on Indian Affairs passed legislation intended to clarify tribal rights regarding labor relations. Senate Bill 248, co-sponsored by Senators Moran (R-Kan.) and Hoeven (R-N.D.), provides that any enterprise owned and operated by a tribe on Indian lands is not an “employer” under the NLRA, and therefore free from NLRB jurisdiction. Its sponsors say that the bill is intended to address a sovereignty issue, not a labor relations issue.

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