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Mashantucket labor dispute heads toward court

MASHANTUCKET, Conn. - The Mashantucket Pequot Tribal Nation has rejected a formal invitation from the United Auto Workers to negotiate a contract with poker dealers at Foxwoods Resort Casino, setting the clock ticking on a judicial showdown on tribal sovereignty that is likely to reverberate throughout Indian country.

In response, the regional National Labor Relations Board in Hartford has filed a complaint based on the UAW's unfair labor practice claims against the nation.

On June 30, the NLRB in Washington issued a unanimous decision, upholding and certifying last November's election at Foxwoods in which poker dealers voted 1,289 - 852 to form a UAW union under federal labor laws.

Three days later, the union asked Foxwoods executives to set a date for bargaining. It also asked Foxwoods to ''restore'' conditions that existed before the vote and provide the union with employees' names, addresses, phone numbers and other information, as well as documentation concerning fringe benefits, health insurance, rules, procedures, contracts and more.

The tribal nation has consistently rejected the NLRB's jurisdiction and has repeatedly asked the UAW and employees to petition for a union tribal law.

Jackson King, the nation's general counsel, declined the invitation to bargain in a July 10 letter reiterating the nation's argument that the federal labor laws and the NLRB do not have jurisdiction on tribal land. He included copies of resolutions from the National Congress of American Indians and the United South and Eastern Tribes opposing federal authority over tribal enterprises.

The tribe agrees with and supports the NCAI and USET resolution ''that the recent reversal of decades of precedent by the National Labor Relations Board to assert jurisdiction over tribal employees conducting on reservation activities is contrary to the NLRB's statutory authority and contravenes longstanding United States policy with respect to Indian tribes,'' King wrote.

''The board's assertion of jurisdiction here undermines the tribal nation's substantial exercises of its sovereignty in the form of extensive regulations of on-reservation activities and establishment of tribal institutions. For this reason, we intend to seek judicial review of the NLRB's June 30, 2008, certification of the UAW as representative of certain Foxwoods employees.''

The NLRB complaint claims the nation's refusal to bargain is an unfair labor practice under the National Labor Relations Act. It notes that ''the vast majority'' of Foxwoods customers and employees are not Native. It also argues that the tribal nation ''has no treaty with the federal government; neither the language of the act nor its legislative history provides any proof that Congress intended to exclude Native Americans or their commercial enterprises from the act's jurisdiction; and the application of the act does not touch the respondent's rights of self-government in purely intramural matters.''

But, in fact, tribal nations have not been subject to NLRB jurisdiction for more than 70 years. The National Labor Relations Act was passed in 1935, a year after the Indian Reorganization Act. Even though it did not list tribal nations with state and local governments as exempt, the law was not applied to tribes until a dispute between two unions at a casino owned by the San Manuel Band of Mission Indians in California led to a 2 - 1 circuit court decision in February 2007 upholding a precedent-setting 3 - 1 ruling by the NLRB that the federal labor law applied to San Manuel.

King said the tribal nation agrees with the remarks made by current NLRB Chairman Peter Schaumber, who wrote the dissenting opinion in the San Manuel case that ''if a statute and/or its legislative history does not reflect an express intent on the part of Congress to impair retained sovereign rights, the proper inference from silence on this point is that the sovereign power ... remains intact.''

He acknowledged the obvious disagreement between the tribe and the UAW on the jurisdictional issue, but, he said, ''we trust that the UAW, an organization publicly committed to civil liberties will understand and respect the tribal nation's need to seek legal redress when it feels its fundamental rights are being trampled.''

Jackson again urged the UAW and employees to seek certification of their union under tribal law.

''This would demonstrate that the union does, in fact, respect Native American rights and could accomplish your started goal of negotiating a contract without animosity or protracted litigation.''

The tribe has an Aug. 1 deadline to respond to the complaint. The board will then typically grant a summary judgment finding the nation guilty of an unfair labor practice for declining to bargain, and at that point, the tribe can seek an appeal in court.