NLRB Jurisdiction Regarding Indians
NLRB Jurisdiction Regarding Indians
In 2007, the D.C. Circuit in San Manuel Indian Bingo and Casino v. NLRB, the court found NLRB jurisdiction appropriate where the San Manuel Indians were operating a commercial casino with the majority of employees and clientele being non-Indian and living off the reservation.1 The court reasoned that the Tribe was not simply engaged in internal governance of its territory and members, thus they were not immune from the NLRB's jurisdiction.
On July 11, 2011, the 10th Circuit criticized the D.C. Circuit's San Manuel decision and ruled in favor of the Chickasaw Nation over the NLRB's claims of jurisdiction. In The Chickasaw Nation v. NLRB, the court states the San Manuel ruling "is directly contrary to clearly established 10th Circuit law."2 The court questions the D.C. Circuit's reliance on Federal Power Commission v. Tuscarora Indian Nation which held that "a general statute in terms applying to all persons includes Indians and their property interests."3 The 10th Circuit emphasizes that Tuscarora dealt only with issues of land ownership, and not with the tribe's sovereign authority.
In the 10th Circuit case, the NLRB based their argument on 29 U.S.C. § 160(a) which partially states "[t]he Board is empowered, as hereinafter provided, to prevent any person from engaging in any unfair labor practice affecting commerce."4 The NLRB contends that the statute clearly authorizes them to apply the NLRA to the Chickasaw Nation. The 10th Circuit disagrees and finds support in Supreme Court precedent. In United States v. Dion the Supreme Court held that before a treaty right will be abrogated, there must be a "clear and plain" expression of Congress' intention to do so.5 In Iowa Mut. Ins. Co. v. LaPlante the Supreme Court pronounced that a statute that is silent with respect to Indians does not divest a tribe of its sovereign authority.6 Backed by these Supreme Court decisions, the 10th Circuit does not find that Congress had a "clear and plain" intention to apply the NLRA to Indians in 29 U.S.C. § 160(a), nor is there any implicit language regarding application of the Act to Indian tribes.
1 San Manuel Indian Bingo & Casino, 475 F.3d 1306 (D.C. Cir. 2007).
2
The Chickasaw Nation v. NLRB, Case No. CIV-11-506-W, Order filed July 11, 2011.
3 Federal Power Commission v. Tuscarora Indian Nation, 80 S.Ct. 543, 553 (1960).
4 29 U.S.C. §160(a); The Board is empowered, as hereinafter provided, to prevent any person from engaging in any unfair labor practice (listed in section 158 of this title) affecting commerce. This power shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise…
5 United States v. Dion, 106 S.Ct. 2216, 2220 (1986).
6 Iowa Mut. Ins. Co. v. LaPlante, 107 S.Ct. 971, 977-78 (1987).