Wheeless: Are unions bound by tribal law when organizing on tribal lands?

[Omaha Steve]

http://www.indiancountrytoday.com/business/Are-unions-bound-by-tribal-law-when-organizing-on-tribal-lands-102091433.html

By Steven D. Wheeless

Story Published: Sep 6, 2010

Story Updated: Sep 2, 2010

After speaking on labor law topics at the last few National Indian Gaming Association conventions and counseling tribes on union and labor related strategies, I continue to get questions from tribal leaders about the rules that apply to unions organizing on tribal lands. Those questions seem particularly pertinent in light of recent events involving unions organizing under both tribal and federal labor laws.

Here is where the law has been and where it stands today.

1950 – 2004

For more than five decades, the federal National Labor Relations Board has exercised jurisdiction over non-Indian enterprises operating on tribal lands and Indian-owned/controlled enterprises off reservation land. For example, in Simplot Fertilizer Co. (1952), the NLRB exercised jurisdiction over a union’s attempt to organize a non-Indian phosphate mining company leasing Shoshone-Bannock tribal land in Idaho. The mining company employed both Indian and non-Indian employees. In response to the union organizing effort, the tribe claimed no NLRB jurisdiction based on tribal sovereignty, but the NLRB rejected that argument and exercised jurisdiction based on the fact that the tribe did not control the enterprise.

The NLRB came to the same conclusion in Texas-Zinc Minerals Corp. (1960), and Devils Lake Sioux Mfg. Corp. (1979). In 1992, the NLRB exercised jurisdiction over an Indian-owned/controlled business because the tribe operated the business off reservation land in Sac & Fox Indus. In that case, the NLRB also focused for the first time on the “commercial” nature of the business vis-à-vis non-Indian customers and the fact that the enterprise employed non-Indians.

However, the NLRB came to a different result in Fort Apache Timber Co. (1976), and Southern Indian Health Council (1988). In those cases, the NLRB did not exercise jurisdiction because the tribes owned and controlled the businesses the unions sought to organize, and the businesses operated on tribal lands. The NLRB held that Indian-owned/controlled businesses operating on tribal lands were exempt from federal labor law jurisdiction as “governmental entities.”

2004 – 2010

Indian gaming changed everything in the labor law equation. In San Manuel Indian Bingo and Casino (2004), and later affirmed in San Manuel Indian Bingo and Casino v. NLRB (D.C. Cir. 2007), the NLRB exercised jurisdiction for the first time over an Indian-owned/controlled commercial enterprise operating on Indian land. The NLRB found – and a federal circuit court of appeals (one level below the United States Supreme Court) affirmed – that the Indian casino was subject to NLRB jurisdiction because it was a commercial enterprise, employed non-Indians, and catered to non-Indians. The NLRB expressly overruled its prior decisions in Fort Apache and Southern Indian, shifted the focus from the location and control of the business to the nature of business, rejected the “governmental entity” exception, and rejected the band’s “sovereign nation” defenses.

FULL story at link.

[Sanity Claws]

1. Thanks for posting

I had assumed that the NLRB did not have jurisdiction.