The National Labor Relations Board (NLRB) has issued a major decision indicating that the Chickasaw Nation can operate outside the confines of the National Labor Relations Act (NLRA) because it is a sovereign Indian nation with solid treaty protections.
“Applying the test established by the Board in San Manuel Indian Bingo & Casino … we find that application of the Act would abrogate treaty rights, specific to the Nation, contained in the 1830 Treaty of Dancing Rabbit Creek,” according to the Board’s decision and order, issued June 4. “As a result, we decline to assert jurisdiction over the Nation, the Respondent here.”
This specific case – which has been a rollercoaster of a ride for the tribe over a number of years – centered on whether the Chickasaw Nation, as the operator of the tribe’s WinStar World Casino, was subject to the NLRB’s jurisdiction and, if it was subject to jurisdiction, whether it violated Section 8(a)(1) of the NLRA when tribal leaders told casino employees that because of the tribe’s sovereignty, the employees did not have the protection of the labor law.
The tribe’s 1830 treaty with the United States contained strong pro-tribal sovereignty language, which the Board said helped it come to its positive decision for the tribe.
“[N]o Territory or State shall ever have a right to pass laws for the government of the [Chickasaw Nation], the treaty reads in part. “[T]he U.S. shall forever secure said [Chickasaw Nation] from, and against, all laws except such as from time to time may be enacted in their own National Councils, not inconsistent with the Constitution, Treaties, and Laws of the United States; and except such as may, and which have been enacted by Congress, to the extent that Congress under the Constitution are required to exercise a legislation over Indian Affairs.”
Plus, as reported by the NLRB in the decision, “Article 18 of the 1830 Treaty provides that ‘wherever well founded doubt shall arise’ concerning the construction of the treaty, ‘it shall be construed most favorably towards’ the Nation.”
The 3-member panel that decided this case noted that in the NLRB’s San Manuel Indian Bingo & Casino decision of the mid-2000s, the Board outlined its standards for determining when it would assert jurisdiction over businesses owned and operated by tribes on tribal lands.
In that decision, “[t]he Board found it proper to assert jurisdiction, unless (1) the law ‘touche[d] exclusive rights of self-government in purely intramural matters’; (2) the application of the law would abrogate treaty rights; or (3) there was ‘proof’ in the statutory language or legislative history that Congress did not intend the Act to apply to Indian tribes.” Thus, according to the current NLRB website, “the Board asserts jurisdiction over the commercial enterprises owned and operated by Indian tribes, even if they are located on a tribal reservation. But the Board does not assert jurisdiction over tribal enterprises that carry out traditional tribal or governmental functions.”
Ironically, the San Manuel Indian Bingo & Casino decision led to a February 2007 ruling by the United States Court of Appeals for the District of Columbia that said the NLRA indeed applied to the casino operations of San Manuel Band of Mission Indians.
“The ruling by the D.C. Circuit in San Manuel is the most far-reaching court decision affecting Indian country labor relations and employment in several decades,” wrote Indian gaming lawyer Scott Wilson in a regulatory update issued soon after that ruling. “Unfortunately, as the Court noted in San Manuel, there is a trend among federal courts of appeal to apply federal labor relations and employment statutes to tribal employers.
Wilson concluded: “For today’s tribal employer, familiarity with employment-related issues from a legal and human resources standpoint is crucial.”
And then the world changed again in this case, whereby the same San Manuel NLRB decision ended up having the opposite effect for the Chickasaw—so all tribes would seem justified in closely examining their specific treaty language with the United States in any future NLRB dealings.
The latest decision, while still very fresh, is being considered by some tribal advocates to be a favorable development to tribes beyond the Chickasaw, because many tribes do have strong treaty language with the U.S. Whether future NLRB decisions will be favorable to tribes with what could be perceived by the NLRB as weaker treaty language, however, remains to be seen.
In this case, the words of support from another tribe, the Choctaw Nation, also played a role in the Chickasaw’s favor. The NLRB, in its decision, noted that the Choctaw joined the Chickasaw in arguing that applying the NLRA to the Chickasaw Nation would abrogate guaranteed treaty rights of self-government and exclusion.
The NLRB further stated that an 1866 treaty between the U.S. and the Chickasaw Nation did not weaken the words of the 1830 treaty – as some naysayers against the tribe’s case have argued – but rather, strengthened them.
“[C]onstruing both treaties in the manner most favorable to the Nation, we find that the provisions of the 1866 Treaty are compatible with the rights guaranteed in the 1830 Treaty, and that article 45 of the 1866 Treaty strongly suggests that those rights remain in place,” the panel concluded.
Members of the deciding panel were Philip A. Miscimarra, Kent Y. Hirozawa, and Lauren McFerran.