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Labor ruling threatens sovereignty; San Manuel to fight National Labor Relations Board jurisdiction

FALLS VILLAGE, Conn. -- The San Manuel Band of Mission Indians will fight a
ruling by which the National Labor Relations Board seized jurisdiction over
employee labor issues at tribal casinos.

The tribe filed a notice of appeal Oct. 6 in Washington, D.C. circuit
court. The appeal will seek to overturn NLRB's Sept. 30 final decision
declaring that federal labor laws apply to employees at Indian casinos on
reservation lands.

"We have to fight this," San Manuel Chairman Deron Marquez told Indian
Country Today. "It's a long and lengthy process, and it will probably be
2007 before we have something back; and we know whatever side wins, it's
going to be further appealed. But we're dealing with an issue that seeks to
restrain and suffocate the rest of Indian country, so we have no choice but
to fight it. Our position all along is the NLRB for over 30 years has
recognized Indian tribes as sovereign governments and, therefore, exempt
from the federal labor act," Marquez said.

The NLRB's final ruling reaffirmed a preliminary decision in May 2004 to
take jurisdiction over San Manuel's casino employees.

The very concept of "taking jurisdiction" is problematic, Marquez said.

"I think that's a mindset that brings chaos and havoc to Indian country
because an agency has never been able to take jurisdiction unless such
jurisdiction has been voluntarily forfeited by a tribe [such as giving the local sheriff's department the authority to patrol on a reservation] or by
a legislative act of Congress," Marquez said.

Although he declined to discuss the tribe's legal strategy, the appeal is
likely to include, among other arguments, a constitutional challenge.

"The last I understood of the Constitution, there's a body that makes law
and a body that helps define that law, and an agency is not part of those
two branches of government," Marquez said.

The tribe will have the continuing support of the National Congress of
American Indians, said NCAI's general counsel, John Dossett.

NCAI passed a resolution on this long-standing case back in 2001 when the
NLRB's first decision emerged. Now that a final ruling has been issued,
NCAI will likely file an amicus brief in San Manuel's appeal and coordinate
support among the nations, Dossett said.

"This is an issue that doesn't affect only Indian gaming. The
interpretation could affect a broad range of tribal activities in Indian
country from health care clinics to timber mills," Dossett said.

While the appeal moves forward, the tribe will continue on the basis that
the NLRB doesn't have jurisdiction over its casino employees, Marquez said.

That was the long-standing condition at reservation casinos. For decades,
the labor board operated under the assumption that tribal governments --
like federal, state, county and municipal governments -- were exempt from
the 1935 National Labor Relations Act. The problem is the act does not
include language exempting the tribes.

It's not a unique problem, Dossett said. The legal question centers on
"statutes of general application" and how they apply to Indian tribes.

"There's a bunch of them -- OSHA and a lot of similar workplace statutes --
and none of them specifically mention Indian tribes, so the questions is
always, 'Does this apply to tribes?' I think that's often why we try to
have tribal issues considered beforehand -- when they come before
Congress," Dossett said.

A bill by Rep. J.D. Hayworth, R-Ariz., to include Indian tribes with other
governments in the exemptions under the NLRA is pending in Congress. House
Bill 16 is endorsed by about a dozen other legislators.

"We've asked for a hearing in the Education and Workforce Committee and
expect to get the hearing before the end of the year," said Larry van
Hoose, Hayworth's press secretary.

"That would be the fix we're looking for -- to simply return to where
things were before this ruling. We don't have any clear indication of what
makes the NLRB jump from 'Yes, you're a government' to 'No, you're a
corporation,'" Marquez said.

If the appeal moves forward, there's no predicting its outcome, said John
Cotter, assistant to NLRB's regional director.

"The NLRB ruling set a precedent, but I can't assume our ruling means we
have jurisdiction over every Indian tribe. Our rulings are, in fact,
specific depending on the nature of the activity." Cotter said.

The NLRB is unlikely to take jurisdiction over social service activities
such as cultural education or the care of elders, Cotter said.

"But if they're running a casino, we would," Cotter said.

The board is also prepared to expand its jurisdiction over other tribal
activities.

"The more commercial the activity, the more likely the board will take
jurisdiction," Cotter said.

The NLRB ruling resulted from an unfair labor practice complaint filed
against San Manuel in the late 1990s by the Hotel Employees and Restaurant
Employees International Union, which represents around 4,000 employees at
Indian casinos.

The tribe had passed a tribal labor relations ordinance as part of its
gaming compact with the state of California and was already in discussions
with the Communications Workers of America to organize a union among the
tribe's 2,500 employees of the San Manual Bingo and Casino in San
Bernardino, Calif.

The discussion resulted in a union contract in 2000, which was renewed in
2003. The relationship among the tribe, CWA and employees "has been great,"
Marquez said.

HERE claimed the tribe violated the NLRA by denying it the same access to
the employees that the tribe had given CWA.

The case is rife with irony. After six years engaged in the complaint, HERE
President John Wilhelm said the union is no longer interested in pursuing
the issue.

"It's irrelevant now. The main import of the case from the point of view of
Indian country and workers and unions, is it's the first case in which the
NLRB decided to assert jurisdiction over tribal casinos," Wilhelm said.

Wilhelm said he would much rather deal with tribes than the NLRB over labor
issues.

"Oh, yeah. The NLRB is not, first of all, an effective agency in ensuring
the rights of American workers in any employment setting, but in Indian
country the problem of NLRB is compounded because of the understandable
concerns on the part of the tribes about what that particular form of
federal jurisdiction means in terms of sovereignty," Wilhelm said.

Wilhelm said that tribes, employees and unions should work on a voluntary
basis to create a means for workers to exercise their right to organize a
union and provide economic justice for all employees.

Which is what the San Manuel tribe did, Marquez pointed out.

"That's the way it ought to be done," Wilhelm said. "It's no different from
problems in every area of life when one group or the other takes an
unyielding position on basic issues of justice. If tribes end up being
subject to NLRB jurisdiction, that'll be why," Wilhelm said.