Time & Attendance
By Max Mihelich
Oct. 13, 2013
When a group of non-Chickasaw blackjack dealers working at the Chickasaw Nation’s WinStar World Casino in Thackerville, Oklahoma, attempted to unionize in 2010, they were told they couldn’t and that they had no protection under the Fair Labor Standards Act because of the Indian nation’s sovereignty.
In July, however, the National Labor Relations Board refuted the casino’s determination and ruled the blackjack dealers have the right to organize a union despite the Chickasaw Nation’s federally recognized sovereign status.
A 1981 U.S. Supreme Court decision, Montana v. United States, determined tribal laws do not apply to nonmembers unless the tribe’s political integrity would be compromised by a tribal law not applying to a nonmember, or if a nonmember consents to the authority of a sovereign tribal government, explained Richard McGee, an employment lawyer in Plymouth, Minnesota, and author of “A Guide to Tribal Employment.” Theoretically, the Chickasaw Nation could require that nonmembers consent to tribal authority as a condition of employment at the WinStar Casino. Surrendering protection under the FLSA could be included as a condition of employment.
The case is another example of the complicated relationship between the commercial enterprises of sovereign tribal nations and federal labor laws. The actual application of federal labor laws isn’t only dictated by how it applies, but also if it even applies at all.
The question of whether a law applies can be answered in three ways: yes, no and maybe, McGee said.
“You could have a situation where the casino has to comply with certain federal laws, but the tribal government doesn’t. The tribal government might have 100 employees that deal with child welfare and health and education, and those employees have no federal protections. But then you walk across the parking lot to the gaming enterprise, and there’s an argument that those gaming employees could be protected,” McGee said.
Federal laws like the Indian Child Protection and Family Violence Prevention Act and the Indian Civil Rights Act contain provisions that undoubtedly apply to tribal employment. But major laws like the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964 do not apply to tribal employment because language written into those laws specifically say they don’t, McGee said.
Then things start to get confusing when it comes to laws such as the FLSA or the Family and Medical Leave Act because they “are silent on applicability. So the laws themselves don’t say they apply, but they also don’t say they don’t apply,” McGee said. It’s this ambiguity that makes tribal employment law so complicated, and can ultimately lead to tension between the federal government and sovereign tribal nations.
The WinStar Casino lawsuit, Chickasaw Nation operating Winstar World Casino and International Brotherhood of Teamsters Local 886, affiliated with the International Brotherhood of Teamsters, serves as a good example for both the confusion over the application of federal labor laws to the businesses of sovereign tribes, and the tension it can lead to between tribes and the federal government.
Given the complicated nature of the case, George McCaffrey, an attorney for Teamsters Local 886, said he expects it to eventually make its way to the U.S. Supreme Court. But the case would need to be heard by the U.S. 10th Circuit Federal Court of Appeals in Denver before it could land on the Supreme Court’s docket, McCaffrey said. If that happens, the results would be anybody’s guess, since historically the court’s approach to tribal affairs has been inconsistent.
“The Supreme Court’s respect for tribal sovereignty has swung back and forth. There have been times when the court has respected tribal sovereignty, and there have been times when they have not,” McGee added.
The Constitution promises sovereignty to American Indian tribes, and today the federal government officially recognizes 566 tribes as sovereign. In 1831 the Supreme Court ruled that “Indian Nations had the full legal right to manage their own affairs, govern themselves internally and engage in legal and political relationships with the federal government and its subdivisions,” according to the National Indian Gaming Association. Additionally, the Indian Gaming Regulatory Act affirms that sovereign tribes possess the power to conduct gaming on their lands.
Despite the nearly 200 years of legal precedence set by the Supreme Court, and the Chickasaw Nation’s status as a sovereign group, the NLRB decided those WinStar Casino employees were protected under the FLSA because the casino was a commercial affair of the Chickasaw Nation and not governmental.
The NLRB argued the WinStar Casino is lucrative enough to affect interstate commerce, which should enact the commerce clause of the U.S. Constitution, and therefore trigger federal jurisdiction, explained Peter Felsenfeld, an employment lawyer for Barger & Wolen in San Francisco.
“In effect the board has created a commercial activities exception to a tribe’s sovereign authority. When a tribe acts more like business than a government, it will be treated just like any other business in terms of federal labor laws,” Felsenfeld said.
Regardless of the issue’s eventual outcome, the lawsuit represents the broader struggle of federally recognized tribes trying to retain their sovereign integrity in the face of federal opposition.
“The more that these federal agencies attempt to apply federal laws to tribal sovereigns, the more the federal government breaks their promise,” McGee said.
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