What are the fingerprints of government?

In considering whether federal employment laws apply to tribal employers, some courts are drawing a distinction between tribal government operations and tribal enterprises. The federal employment laws in question are the laws addressing minimum wage, overtime, leave, unions, safety, age discrimination and others.  For tribal government operations like education, health care, and the delivery of clean water, these courts are agreeing with tribes in declaring that some federal employment laws do not apply to tribal government operations.  On the other hand, these same courts are applying these same federal employment laws to tribal enterprises oftentimes noting that enterprises frequently hire lots of outsiders who allegedly need the added protections of federal law. These courts are missing the point since, from a sovereignty perspective, there is no distinction between tribal governments and the enterprises tribal governments own and operate.

There is an analogy which provides compelling support for the argument there is no distinction between the tribal government and the gaming enterprise it owns.  When states promulgate state employment laws the state is exercising its right as a sovereign to define the rules of a fair workplace.  Just like tribes.

The analogy continues…States provide entertainment in the form of the state lottery. Just like tribes.

The analogy continues…The state uses the lottery revenues to perform essential governmental functions like education, health care and the delivery of clean water.  Just like tribes.

The analogy continues…The state does not sacrifice its ability to promulgate the employment laws which protect the workers in the lottery system, but unfortunately, the analogy breaks down for certain courts which are not impressed with its compelling logic when those courts declare the application of federal employment laws on tribal enterprises based on the false distinction that the enterprise is not an exercise of tribal sovereignty.

To reinforce the idea and reality that tribal enterprises are an exercise of the inherent sovereignty of the tribe and part of tribal government operations, human resources has an opportunity to place the fingerprints of tribal government on enterprise employment documents like the employee handbook or personnel, procedure manual.  Those fingerprints of government likely emerge as a paragraph early in the Handbook’s first several pages and look like the following:

This Employee Handbook is adopted by the Tribal Council of the ABC Tribe acting in its governmental capacity to regulate employment and labor relations within its jurisdiction, including those between the tribal government and its employees.  Notwithstanding external characterizations of the governmental operations of the Tribe, these operations are basic governmental functions of the Tribe exercised pursuant to its inherent self-governing authority.  The Tribe’s commercial activities, including through the Slippery Slots Casino, are essential to raise revenue to finance basic governmental functions.  All revenue raised through the Tribe’s commercial activities are returned to the Tribe to finance basic governmental functions, such as provision of education, public safety, transportation, economic development, healthcare, and social services.  The traditions and values of the Tribe recognize that everyone and everything is connected and that the actions of one, or that of a part, will impact the whole.  In all things we do, we strive to promote those traditions and values by seeking consensus so that decisions are made that benefit the whole of the community, which includes the community of employees who are invited in, and accept employment within our Tribal Community.  In keeping with our values, this Employee Handbook regulates the terms and conditions of employment between the Casino and its employees, which raises revenue to finance basic governmental functions and programs.

This language is not a panacea relieving some courts of their confusion, but instead it arms your lawyers with the argument that your enterprises are the tribal government and the dilution of tribal sovereignty through the application of federal employment laws to your enterprise is the same dilution of tribal sovereignty as an attack on the tribal government.  Tribal sovereignty will only be preserved if it is enhanced by strong leadership of the tribal government and in the human resources department.

Recommendation:  Reinforce the strength of tribal sovereignty by placing the fingerprints of government throughout your employment related documents.

About the Author:

Richard McGee is a lawyer in Minneapolis, Minnesota who focuses his practice on gaming, gaming regulation, tribal employment and litigation in tribal, state and federal courts.  Richard has the privilege of working with tribes and tribal organizations on Human Resources matters including training.  Additionally, tribes ask Richard to address specific topics while incorporating the tribe’s related laws and policies into the sessions.  This is an invitation to engage Richard to produce and facilitate training for your tribe.