Should the NLRB assert jurisdiction over casinos operated by Native American tribes? Do casino operations on tribal land affect interstate commerce under the NLRA?

For over a decade, the answer from the NLRB has been yes. When a casino is operated on land owned by a Native American tribe, the board has repeatedly asserted jurisdiction over the casino to enforce federal labor law. The Sixth Circuit recently enforced another similar case.

In these cases, the board has concluded that the casinos are commercial enterprises affecting interstate commerce. The board has observed that most of the employees and the patrons are not members of tribes operating the casino. Applying the NLRA to protect the employees’ right to unionize or to engage in other concerted activity would not interfere with tribal sovereignty, according to the board’s reasoning in these cases. 

Winstar World Casino

In 2013, the NLRB decided a case in involving a casino owned and operated by the Chickasaw Nation in Oklahoma. The board asserted jurisdiction, applying the standard it had followed since 2004. 

The board panel included Chairman Pearce, and Members Block and Griffin, whose appointments were later found by the U.S. Supreme Court to be invalid in NLRB v. Noel Canning, 134 S. Ct. 2550 (2014). 

In June, a new board panel without Chairman Pearce revisited the case and declined to assert jurisdiction. Members Miscimarra, Hirozawa, and McFerran rejected the reasoning of the 2013 decision and instead found that the tribe has the right to be “secure” under the 1830 Treaty of Dancing Rabbit Creek “from and against all laws” except those passed by Congress pursuant to its authority “over Indian affairs.”

In reviewing the treaty language, the board said it was relying on federal policy that requires such treaties to be “construed liberally in favor of the Indians.”

The board concluded that an 1866 treaty reaffirmed the obligations of the U.S. in the 1830 Treaty and did not undermine the rights of the tribe to be secure. Asserting jurisdiction in this case, the board determined, would “abrogate treaty rights specific to the [Chickasaw] Nation.” 

What Will Happen Next?

The board’s assertion of jurisdiction over similar casino operations has been called into question by lawmakers, with action in both houses of Congress moving ahead on bills blocking the board from applying the NLRA to Native American-owned businesses on tribal land.

It remains to be seen how the board will consider future cases involving casinos on tribal land, particularly those in which Native American tribes lack similar treaty language. 

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