The Sixth Circuit Extends The NLRA's Reach To Tribal-Owned Casinos

The extent of the National Labor Relations Act's application to tribal-owned and operated enterprises on reservations is an open question in many circuits. Recently, two Sixth Circuit decisions resolved the question in favor of the Act's application to tribal casinos. On June 9, 2015, in NLRB v. Little River Band of Ottawa Indians Tribal Government, a Sixth Circuit panel concluded that the inherent sovereignty possessed by the Little River Band of Ottawa Indians did not preclude the NLRA's application to a tribe-owned casino on tribal trust land. Less than a month later, in Soaring Eagle Casino and Resort v. NLRB (July 1, 2015), another Sixth Circuit panel held that the NLRA applied to a casino owned and operated by the tribe on trust lands within the reservation, notwithstanding the tribe's inherent sovereignty and a treaty-based right to exclude. These decisions are among the latest in a recent, rapid shift in the law towards applying the NLRA to businesses on tribal lands.

Evolution of the Issue

It is a touchstone principle of federal Indian law that tribes, as quasi-sovereign nations, possess the inherent right to self-govern, generally to the exclusion of state and federal laws. Also well established is Congress's ability to legislate for Indian Country and to extinguish these rights by expressing a clear and unambiguous intent to do so. These principles give rise to the question of how courts should construe the scope of federal statutes of broad and general application that, like the NLRA, are silent regarding their application to tribes.

The National Labor Relations Board has long maintained that the NLRA applies to non-tribal-owned businesses operating on reservations. However, until recently, the NLRB took the position that tribal-owned and run enterprises on reservations fell under the NLRA's exception for branches of government, so long as they were, in fact, properly considered part of the tribal government.

This began to change in 2004 when the NLRB reversed its position with respect to the exemption and asserted jurisdiction to enforce the NLRA against on-reservation, tribal employers engaged in "commercial activities."1 In support of the Act's application, the NLRB appropriated the Ninth Circuit's analysis in Donovan v. Coeur d'Alene Tribal Farm, 751 F.2d 1113 (9th Cir. 1985), that held that "a general statute in terms applying to all persons includes Indians and their property interests," unless:

(1) the law touches...