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Tribal Nations Push Congress, Justices for Labor Law Sovereignty

Feb. 22, 2019, 11:11 AM

A Southern California casino fighting claims it violated workers’ rights is asking the U.S. Supreme Court to rule that federal labor law doesn’t apply on tribal land. The Justice Department will likely soon tell the court whether it agrees.

Lawyers for Casino Pauma want the high court to overturn a 2018 decision finding that supervisors wrongly banned workers from disseminating union material near the casino. A group of more than 150 tribes has also been lobbying Congress to undo a National Labor Relations Board decision from more than a decade ago that extended the board’s jurisdiction over tribal-owned businesses like casinos and hotels.

The debate involves a difficult balancing of legal, political, and even historical considerations. It’s forced lawmakers and judges to make choices between what tribal leaders call sovereignty and the rights of tribal and other workers.

“They try to place this as an anti-labor effort or Democrats versus Republicans, or vice versa, but this is about tribal sovereignty and parity,” Rodney Butler, chairman of the Mashantucket Pequot tribe, which owns the Foxwoods Resort Casino in Connecticut, told Bloomberg Law.

The tribe last fiscal year reported $477 million in revenue from more than 4,100 slot machines alone, according to Connecticut’s gaming division. The casino provides 25 percent of its slot revenues to the state.

Mashantucket is one of the tribal nations that have joined groups like the U.S. Chamber of Commerce in backing Republican-led measures to reverse the NLRB’s 2004 decision in San Manuel Indian Bingo & Casino. The board in that case, which Pauma Casino has also asked the Supreme Court to strike down, said it will exercise jurisdiction over Indian-owned businesses operating in tribal territories unless doing so touches on “purely intramural matters” or abrogates treaty rights.

Labor unions like the AFL-CIO and UNITE HERE say the ruling makes it easier to organize workers and protect their rights against tribal-owned businesses like the Pauma Casino in Pauma Valley, Calif.

NLRB oversight “is very crucial for the workers at these facilities,” AFL-CIO Government Affairs Director Bill Samuel told Bloomberg Law . “Otherwise the workers would be dependent on whatever tribal labor codes there are. Some have them and others don’t and they have limited protections for workers.”

The AFL-CIO predicts about 600,000 workers are employed at tribal businesses in the U.S, a group that’s grown beyond just gaming and hotel industries.

But tribes say they simply want sovereignty similar to U.S states—exempting them from the National Labor Relations Act.

The Justice Department—now representing the NLRB in the Pauma Casino case—has until March 11 to respond to the casino’s request for the Supreme Court to take up the case. The Trump DOJ, which has walked away from Obama-era positions in at least a handful of labor and employment cases, hasn’t said publicly whether it will defend a Ninth Circuit decision affirming the NLRB’s position that the casino is covered by federal labor law.

The NLRB and DOJ didn’t respond to requests for comment.

Tribal Nations Call for Self-Determination

The Tribal Labor Sovereignty Act (H.R. 779, S. 226) has been pushed largely by Republicans but has also attracted some Democratic support in recent years. Former President Barack Obama tried to thread the needle between sovereignty and worker protection by saying he would sign the bill only if it was limited to tribes with their own labor laws on the books.

The Mashantucket tribe says its labor laws already include provisions for unionizing and other worker rights. Tribes also argue they differ from traditional commercial operations since casinos and other tribal-owned businesses fund public safety, infrastructure, and social services for the nation.

“How tribal governments operate and deliver the critical services of government are the business of tribal members and their leadership,” Navajo Nation Council Speaker Seth Damon told Bloomberg Law. “Whether tribal governments deliver such services via tribally owned enterprises, public agencies, or through other structures, is a matter that only tribes are capable of determining.”

The tribe owns operations such as the Twin Arrows Navajo Casino & Resort in Flagstaff, Ariz., and the Flowing Water Navajo Casino in Shiprock, N.M.

Paths Face Roadblocks

The board’s San Manuel decision has been upheld by at least three federal courts of appeals, including the Sixth and Ninth circuits, and the federal appeals court in Washington, D.C., which typically reviews board interpretations of labor law. Observers say it’s likely the Supreme Court won’t take up the issue anytime soon because there isn’t a circuit split.

In Congress, the Senate Indian Affairs Committee Jan. 29 approved Sen. Jerry Moran’s (R-Kan.) reintroduced version of the tribal sovereignty measure. An aide for Moran Feb. 19 told Bloomberg Law the senator will seek to attach the bill to some must-pass legislation such as an appropriations package.

The Senate could pass the bill with some support from moderate Democrats. A more likely roadblock is in the Democratic-controlled House, where influential Democrats like Committee on Education and Labor chairman Bobby Scott (D-Va.) oppose the measure as stripping workers of basic rights.

The House version of the bill, introduced by Rep. John Moolenaar (R-Mich.), is co-sponsored by 12 Republicans and moderate Democrat Collin Peterson (Minn.). The legislation passed the then-GOP controlled House last year, with 23 Democrats joining House Republicans for a 239-173 vote, but it didn’t move in the Senate.

To contact the reporters on this story: Tyrone Richardson in Washington at trichardson@bloomberglaw.com; Hassan A. Kanu in Washington at hkanu@bloomberglaw.com

To contact the editors responsible for this story: Chris Opfer at copfer@bloomberglaw.com; Simon Nadel at snadel@bloomberglaw.com