Summer 2004

judge

Native American Legal Briefs:
--Jurisdiction of the National Labor Relations Board--
--Federal Recognition--

National Labor Relations Board Asserts Jurisdiction Over California Indian Casino Owned and Operated by Tribe

On May 28, 2004, the National Labor Relations Board established a new standard for determining the circumstances under which the Board will assert jurisdiction over Indian-owned and operated enterprises. In stating this new standard, the Board overruled a number of prior cases, finding that its prior reading of the National Labor Relations Act had been both under and over-inclusive. In this case, the Board found that it had jurisdiction over a casino operated by the San Manuel Band of Serrano Mission Indians on Tribal land. Both the Mashantucket Pequot Tribal Nation and the Mohegan Tribe of Connecticut had filed briefs in this case in support of the California Tribe.

The Board first looked at prior cases dealing with Indian commercial enterprises located on Tribal land. Those cases had found that the enterprises were, in fact, a "governmental entity" excluded from coverage under the Act. The Board next looked at a series of cases that held that Indian-operated enterprises were subject to the Board's jurisdiction if they were operated off Tribal lands. The Board concluded that both sets of cases had been wrongly decided because the Act did not, in fact, exclude Indian Tribes from coverage and because the location of the enterprises was a statutorily irrelevant factor. The Board concluded that the terms of the Act applied to the Tribe in this case.

Next, the Board looked at whether federal Indian policy might require the Board not to assert jurisdiction. The Board found no such requirement. After looking at the language of a number of Supreme Court cases, the Board concluded that:

the activities at issue are commercial in nature-not governmental. Moreover, the operation of a casino-which employs significant numbers of non-Indians and caters to a non-Indian clientele-can hardly be described as "vital" to the tribes' ability to govern themselves or as an "essential attribute" of their sovereignty.

Finally, the Board discussed whether there were policy considerations that should determine whether the Board should assert jurisdiction. The Board stated that:

Tribal enterprises are playing an increasingly important role in the Nation's economy. As tribal businesses prosper, they become significant employers of non-Indians and serious competitors with non-Indian owned businesses. When Indian tribes participate in the national economy in commercial enterprises, when they employ substantial numbers of non-Indians, and when their businesses cater to non-Indian clients and customers, the tribes affect interstate commerce in a significant way. When the Indian tribes act in this manner, the special attributes of their sovereignty are not implicated. Running a commercial business is not an expression of sovereignty in the same way that running a tribal court system is. The Board's mandate is to "protect and foster interstate commerce," and assertion of discretionary jurisdiction over Indian tribes acting in these circumstances would effectuate the policies of the Act while doing little harm to the Indian tribes' special attributes of sovereignty or the statutory schemes designed to protect them.

Neither, however, is a blanket assertion of jurisdiction appropriate. At times, the tribes continue to act in a manner consistent with that mantle of uniqueness. They do so primarily when they are fulfilling traditionally tribal or governmental functions that are unique to their status as Indian tribes. These functions are often performed on the tribes' reservations. Such traditionally tribal or governmental functions, so located, are less likely than commercial enterprises to involve non-Indians and to substantially affect interstate commerce. Accordingly, in those circumstances, the Board's interest in effectuating the policies of the Act is likely to be lower. Thus, when the Indian tribes are acting with regard to this particularized sphere of traditional tribal or governmental functions, the Board should take cognizance of its lessened interest in regulation and the tribe's increased interest in its autonomy. In such circumstances, the Board should afford the tribes more leeway in determining how they conduct their affairs by declining to assert its discretionary jurisdiction.

Federal Court Will Not Intervene in State's Challenge to Federal Recognition Process While that Process is Still in Progress

The State of Connecticut and the Towns of North Stonington, Ledyard and Preston filed a complaint in Federal Court alleging several problems with a Final Determination issued by the Bureau of Indian Affairs. The Determinations had granted federal recognition to the Paucatuck Eastern Pequot Tribe and the Eastern Pequot Indians of Connecticut.

The complaint was dismissed by the Federal District Court and the State and the Towns appealed. The Circuit Court stated that:

Although Connecticut and the three towns...raise substantial questions about the fairness of the acknowledgment process in this case,...we conclude that the plaintiffs' challenges are not ripe for judicial review. Although the BIA has issued a Final Determination with respect to the petitions, the plaintiffs have filed a request for reconsideration by the Interior Board of Indian Appeals.... This administrative appeal is still pending. We conclude that until the Board's review is complete, the plaintiffs neither have suffered nor will suffer harm sufficiently concrete to warrant judicial intervention in the BIA acknowledgment proceedings.