Whether the federal union law, the National Labor Relations Act (NLRA), applies to tribes is an open question without a certain answer. The conversation around this open question just became even more interesting with the decision of the National Labor Relations Board (NLRB) to forego its jurisdiction over a gaming enterprise owned and operated by the Chickasaw Nation.  In light of the NLRB’s assertion of jurisdiction over gaming enterprises owned by the Little River Band, Saginaw Chippewa and San Manuel, and now a decision not to assert jurisdiction over the Chickasaw Nation, why are there different answers to what appears to be the same question under federal law?

First, the NLRA does not address application to tribes so therefore the question must be answered by looking to other rules.  It is in this looking at the other rules where the confusion starts.

If the courts and agencies (like the NLRB or the Department of Labor) followed the principles of sovereignty, the NLRA does not apply to tribal employers. Under that rule, if the federal government, through Congress, intends for federal law to apply to tribes, Congress must explicitly state its intent in the law.  When laws like the NLRA are silent on application to tribes, sovereignty says the laws do not apply.  But the courts and agencies use a different framework to assess the question, and since that framework is focused on the facts and circumstances of each tribe, the results of the analysis can be different.

In the Chickasaw case, the NLRB focused on whether two treaties between the United States and the Chickasaw Nation limited the application of the NLRA to the Nation, and the NLRB concluded, based on the treaties, the application of the NLRA would violate them. Now, nowhere in those treaties is there a mention of the NLRA or labor laws (of course the treaties predated the NLRA) but instead the treaties preserved the Nation’s right to define its rules over its lands.  More specifically the treaty secures the Nation from all laws except those that Congress is required to “exercise legislation over Indian affairs.”  Since there is not an argument that the NLRA was created to impact Indian affairs, the treaties protect the Nation from the law and the NLRA does not apply.

On the one hand, credit to the NLRB for a fair analysis of the facts and application of the facts to the court defined framework.  On the other hand, and at the risk of a cynical observation, the NLRB likely recognized that the court here (10th Circuit Court of Appeals) would conclude that the NLRB lacked jurisdiction over the Nation, and the NLRB in its decision, conceded the inevitable.  To extend this cynicism, the NLRB likely recognized another inevitable reality which is a court decision adverse to the NLRB will have a more substantial impact on future cases than a Board decision which can be argued is limited, for precedent, to the Chickasaw treaties.

Unlike the results in the Chickasaw administrative process before the NLRB, last week the federal court in the Little River Band case continues to conclude that the NLRA applies to the Tribe.  Same law different result.

There is a bill in the federal congress which addresses the application of the NLRA to tribes and would, if implemented, bring clarity to an area of the law which is not clear. More importantly the bill respects tribal sovereignty and therefore declares that the NLRA would not apply to tribal employers.  A legislative fix which respects tribal sovereignty would be a welcomed addition to this conversation.

Recommendation:  Review the treaties between your tribe and the United States to determine whether the United States agreed to the tribe’s exercise of its authority over its lands.  But do not stop there.  Consider other relationship documents wherein the United States recognizes the Tribe’s authority over its lands, and in those documents are there good faith arguments which limit the authority of the United States and its laws, while recognizing the inherent authority of the tribe.  In those agreements there is an opportunity for tribes to return the conversation to its appropriate place wherein sovereignty, not a court’s confusing framework, drives the conversation.  Also, remember sovereignty is just an idea until the tribe exercises the idea by writing the law. Tribes are writing the law by promulgating employment codes and workplace protection acts.  With these ideas, and more, tribes are asserting tribal sovereignty by defining the terms and conditions of employment.