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NLRB Surprise Attack on Tribes Needs Rebuff

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UNCASVILLE, CONN. - As a major shift in federal labor policy threatens
tribal sovereignty, Indian leaders will be debating the best place to
counter-attack - and it might not be the courts.

The National Congress of American Indians was convening at the Mohegan Sun
convention center just as this enterprise of the Mohegan Tribal Nation, and
all tribal businesses around the country, have become the target of a power
grab by the National Labor Relations Board (NLRB). In taking up a 1999 case
involving the San Manuel Indian Bingo and Casino, the federal agency in
charge of labor union matters broke precedent and asserted that it would
take jurisdiction over commercial enterprises "wholly owned and operated by
an Indian tribe on the tribe's reservation."

This sweeping intrusion into Indian country came out of the blue, even
though labor unions are campaigning strenuously to break into tribal
casinos. "It was a surprise on two fronts," Deron Marquez, chairman of the
San Manuel Band of Serrano Mission Indians, told Indian Country Today.

"We had no idea that they were even taking up this case. It's been laying
there for so many years. We didn't know that they were in the process of
handling it.

"And then to read the ruling, where they basically ignore years of
precedent to formulate a new precedent, it was somewhat shocking to read

Marquez said, "We definitely are going to appeal this in some form or

"Our team is still investigating all the proper avenues to take and then
we'll be deciding which one makes the most sense to move this forward and
to reverse this horrible decision of the NLRB board."

Although Marquez declined to be more specific, one very likely strategy
would be not to take chances in the federal courts but to go straight to
Congress for a revision of the act governing the NLRB.

The 3 - 1 ruling by the NLRB board drew directly on the failure of the
National Labor Relations Act to mention Indian tribes. In previous
precedents that exempted reservation-based tribal businesses, the board had
invoked language that denied it jurisdiction over "states and their
political subdivisions." But it asserted control over some tribal
businesses that were located off-reservation.

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In the San Manuel ruling, the Board abandoned this "locational" standard as
illogical. Citing Felix Cohen on tribal sovereignty, it correctly observed
that tribes were "not created by the states, or by departments, or
administrative arms of state governments." So without explicit exemption,
the board said that the "superior sovereignty" of the Federal government
gave it jurisdiction.

The decision admitted the real motive for this sudden shift, the economic
impact of Indian gaming. "As tribal businesses have grown and prospered,"
it said, citing the Wall Street Journal, "they have become significant
employers of non-Indians and significant competitors with non-Indian owned

Connecticut Attorney General Richard Blumenthal spelled it out in a
celebratory statement. "This decision is historic," he said, "a legal
earthquake that shatters the virtually complete immunity from federal labor
law now enjoyed by Indian casinos.

"It could mean sweeping, profoundly significant safeguards for tens of
thousands of Connecticut residents who are casino enterprise employees,
ensuring that working men and women at Mohegan Sun and Foxwoods have the
same protection under the National Labor Relations Act as employees
anywhere else in the state."

Under Blumenthal, Connecticut was the only state to intervene in the case,
joining the Hotel Employees & Restaurant Employees International Union in
its grievance against San Manuel. The Hotel Employees union charged that
the San Manuel Band had given preference to another union, the
Communications Workers of America. San Manuel replied that the NLRB had no
jurisdiction, prompting the current decision.

On the face of the decision, the most effective response would be to ask
Congress to amend the National Labor Relations Act, giving tribal
governments the same status as states. Tribal lobbyists in Washington, D.C.
have pursued this strategy piece by piece in recent years, methodically
working through existing federal laws. The board decision noted that both
Houses of Congress had excluded tribes from the NLRA in 2000 in the
original version of the Indian Self-Determination Act, but that the House
of Representatives dropped the language in its final version.

Even if Congress did act, another issue would remain. What would be
considered a government function, exempt from labor law, and what would be
a proprietary business, where the Board might still try to intrude? This
issue already bedevils tribes in dealing with the Internal Revenue Service,
which will grant tax-exempt status to bonds issued for "traditional"
government purposes but not for some business enterprise. The National
Indian Gaming Association filed brief with the board arguing that tribal
casinos served government purposes because their revenues were earmarked
for tribal services. But the majority opinion gave the idea short shrift.

It did admit that tribal sovereignty protected some functions, but it
defined them very narrowly. "Intramural matters generally involve topics
such as 'tribal membership, inheritance rules and domestic relations,'" it
said. Jurisdiction over anything involving a broader economy, it said,
would be decided by the board case by case, guaranteeing its constant and
unpredictable intrusion in tribal affairs. "The process of litigation will
mark the contours in due time," it promised.

As tribes debate strategy, they face an unpleasant choice. Recourse to
Congress could lead to a head-on confrontation with the labor movement and
a high-profile struggle that could leave bruises for years. But court
appeals could be highly uncertain. Even though the board ruling cited a
Supreme Court case, Duro v. Reina, that was recently overturned, the gap in
the labor law leaves dangerous ground to travel. And left alone, the NLRB
has promised that it will be litigating every aspect of Indian country's
new economic power.

The only thing certain is that this sudden new challenge is serious and
needs to be met.