Earlier this month, Patrice Kunesh the Department of Interior’s Deputy Solicitor for Indian Affairs sent a letter to National Labor Relations Board Acting General Counsel Lafe Solomon, urging the Board to exempt Indian tribes from coverage by the National Labor Relations Act.

Until 2004, the NLRB’s position regarding jurisdiction over Indian tribes as employers was that tribes were exempt from the NLRA.  That year, however, the Board shifted course entirely, asserting jurisdiction over the San Manuel Indian Bingo and Casino — a tribal casino owned and operated by the San Manuel Band of Serrano Mission Indians on tribal land in California.  The Court of Appeals for the D.C. Circuit affirmed

Deputy Solicitor Kunesh writes:

…I seek an opportunity to advance the Department’s position on the applicability of the NLRA to Indian tribes, articulated by the Tenth Circuit Court of Appeals, that Indian nations acting within their jurisdictions are exempt from the NLRA. See Dobbs v. Anthem Blue Cross and Blue Shield, 600 F.3d 1275, 1284-84 (10th Cir. 2010); NLRB v. Pueblo of San Juan, 276 F.3d 1186 (10th Cir. 2002). As stated by the Tenth Circuit: “[R]espect for Indian sovereignty means that federal regulatory schemes do not apply to tribal governments exercising their sovereign authority absent express congressional authorization. Dobbs, 600 F.3d at 1283.

Rather than advancing this position in a litigation context, I believe that there may be an opportunity to work together to address whether Congress intended the NLRA to apply to tribal government employers. It is undoubtedly within the NLRB’s power to consider whether its original interpretation of the government employer exemption, 29 U.S.C. §152(2), as implicitly exempting tribal governments acting within their territorial jurisdictions, correctly interpreted congressional intent, as Member Schaumber argued in his dissent in San Manuel.

This reaffirmation of Interior’s view, and a request to resolve the issue with its fellow Executive agency outside of a "litigation context," comes as Rep. Kristi Noem’s (R-SD) bill, "To clarify the rights of Indians and Indian tribes on Indian lands under the National Labor Relations Act," (H.R. 2335), sits in Committee.  Rep. Noem’s bill, which has eighteen co-sponsors including Rep. Dan Boren (D-OK), would  clarify that the National Labor Relations Board does not have jurisdiction over tribally owned businesses on reservation land as a matter tribal sovereignty.  Over the summer, the U.S. District Court for the Western District of Oklahoma issued a preliminary injunction in The Chickasaw Nation v. National Labor Relations Board, Case No. CIV-11-506-W, enjoining the National Labor Relations Board from proceeding with an unfair labor practice hearing against the Chickasaw Nation, a federally-recognized Indian Tribe.

 

It would certainly seem that a larger consensus is gathering among administrative agencies, federal courts and at least some lawmakers with which the Board’s current interpretation (San Manuel) is at odds.

 

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