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By Chris Opfer
June 5 — The National Labor Relations Board ruled June 4 that the Chickasaw Nation's tribal sovereignty blocks the board from asserting jurisdiction over unfair labor practice charges against a tribe-controlled casino.
Applying the standard laid out in San Manuel Indian Bingo & Casino, 341 N.L.R.B. 1055, 174 LRRM 1489 (2004), the board held 3-0 that an 1830 treaty between the U.S. and the Choctaw and Chickasaw Nations bars the board from considering the charges. International Brotherhood of Teamsters Local 886 alleged that the WinStar World Casino in Thackerville, Okla., violated the National Labor Relations Act by telling workers they weren't protected by the federal labor law.
“We have no doubt that asserting jurisdiction over the Casino and the Nation would effectuate the policies of the Act,” the board wrote. “However, because we find that asserting jurisdiction would abrogate treaty rights specific to the Nation, we shall dismiss the complaint.”
Board Members Philip I. Miscimarra, Kent Y. Hirozawa and Lauren McFerran joined in the decision.
The decision comes as the Senate Committee on Indian Affairs is preparing to mark up legislation (S. 248) that would prohibit the NLRB from asserting jurisdiction over businesses owned and operated by tribes on Indian lands.
An aide for bill sponsor Sen. Jerry Moran (R-Kan.) who spoke on the condition of anonymity because he wasn't authorized to discuss the bill, told Bloomberg BNA June 5 that the latest ruling is a “positive development” but that the need for the legislation remains. He said he has “every expectation that the committee will clear the legislation” during a scheduled June 10 markup session and noted that five of the bill's co-sponsors are committee members.
The aide said the measure is intended to eliminate the San Manuel test, under which the board has held that it will exercise jurisdiction over Indian-owned businesses operating in tribal territories unless doing so would touch on “purely intramural matters” or abrogate treaty rights. He said the bill would simply extend an NLRA exemption for federal and state government workers to those employed on Indian lands.
“The Chickasaw has a ratified treaty, but other tribes that don’t have a similar treaty are still at risk,” the aide said.
Teamsters press secretary Kara Deniz declined Bloomberg BNA's request for comment on the decision, saying that union lawyers were still reviewing the ruling.
The NLRB rejected the analysis from a 2013 board decision, which was later vacated after the U.S. Supreme Court invalidated President Barack Obama's recess appointments to the board in NLRB v. Noel Canning, 134 S. Ct. 2550, 199 LRRM 3685 (2014).
The board in the previous decision held that the casino was covered by the NLRA because the Nation agreed to broader U.S. government authority over tribal lands in signing the 1866 Treaty of Washington.
The high court found in Noel Canning that the appointments of two of the three members who rendered the 2013 decision—Democrats Sharon Block and Richard F. Griffin—were unconstitutional. As a result, the board lacked a quorum for its original decision.
The board reached a different conclusion the second time around, holding that the 1830 Treaty of Dancing Rabbit Creek precluded the government from seeking to enforce federal laws in tribal territory, except for those specifically related to Indian affairs.
The board noted that the Nation was “compelled” to enter the 1830 and 1866 treaties “and to cede territory to the United States.” It also stressed that Indian treaties are to be interpreted liberally—with ambiguities resolved in favor of sovereignty—and observed that the 1830 treaty itself provided that it would be “construed most favorably” toward the Nation.
Rejecting the argument that the 1866 Treaty of Washington opened the door to NLRB jurisdiction, the board said there was no specific provision of the treaty that curtailed the Nation's right to be free of all federal laws other than those expressly concerning Indian affairs. “The Nation sided with the Confederacy during the Civil War, and the 1866 Treaty, signed after the end of the war, provided, essentially, for the surrender of a portion of the land grant and the freeing of the Indians’ former slaves,” the board wrote.
Among other provisions, the treaty stated that the Nation consented to legislation “necessary for the better administration of justice and the protection of the rights of person and property within the Indian Territory.” The board concluded, however, that the NLRA didn't fall into the category of legislation that the drafters of the treaty had in mind.
“This language is compatible with the Nation’s earlier agreement, in the 1830 Treaty, to be subject to federal laws enacted by Congress only in legislation specific to Indian affairs,” the board concluded.
To contact the reporter on this story: Chris Opfer in Washington at firstname.lastname@example.org
To contact the editor responsible for this story: Susan J. McGolrick at email@example.com
Text of the opinion is available at http://op.bna.com/dlrcases.nsf/r?Open=copr-9x7ne4.
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