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Lankford-backed bill seeks to clarify tribal sovereignty from NLRB overreach

Challenges to tribal sovereignty come in many shapes and sizes at the local, state and federal level. A recent trend in Indian Country has been jurisdictional claims from the Washington D.C.-based National Labor Relations Board.

Since 2004, the NLRB has claimed it has jurisdiction on tribal commercial enterprises, despite nearly 70 years of precedent. Court cases throughout the U.S. have come up with different opinions on the matter, and barring Congressional action, the issue looks likely to end up in the docket of the U.S. Supreme Court.

Spurred on by calls from tribes around the country, a number of senators with large tribal constituencies are
taking action. The Tribal Labor Sovereignty Act of 2015 sets the specific parameters for the NLRB when it comes to Indian Country by amending section two of the National Labor Relations Act. It contains a specific subsection concerning the lands formerly known as reservations for Oklahoma tribes.

Both Oklahoma senators supported the bill, which passed the Senate Indian Affairs Committee in June 2015.

Senator James Lankford, a cosponsor, and former Congressional representative for the area in which Citizen Potawatomi Nation is located, noted the bill’s importance in upholding the principle of tribal sovereignty.

“NLRB’s decision to expand their jurisdiction to include tribal employees under the National Labor Relations Act undermines tribal sovereignty and threatens continued economic development throughout Oklahoma,” wrote Senator Lankford. “S. 248 will reaffirm a tribal exemption to NLRB jurisdiction, an exemption already shared by states and the federal government and given in practice to tribes for over 60 years. I’m glad to co-sponsor this
bill to remove burdensome red tape that hinders economic growth for Oklahomans.”

According to the NLRB, the board has statutory jurisdiction over private sector employers whose activity in interstate commerce exceeds a minimum level. Specifically with regards to Indian tribes, the NLRB asserts jurisdiction over commercial enterprises even if they are located on tribal land.

However, according to an article in The National Law Review, the NLRB never assumed this jurisdictional overreach in the nearly 70 years since its creation under the 1935 Wagner Act. In 2004 though, the NLRB ruled that it did have jurisdiction over tribal-owned commercial enterprises, even those on trust land, in a case brought by a California hotel and restaurant workers union against the San Manuel Casino, owned and operated by the San Manuel Band of Mission Indians.

In 2014, the NLRB has requested that the Chickasaw Nation recognize the board’s jurisdiction in tribal casinos in Oklahoma through the U.S. Tenth Circuit Court, which the tribe opposed citing the importance of gaming revenues to its sovereign duties. The NLRB does not assert jurisdiction over enterprises that carry out traditional and tribal government functions. In June 2015, the NLRB itself ruled the tribe’s casino workers were exempt from
the federal agencies protections, citing the 1830 Treaty of Dancing Rabbit Creek between the U.S. and Chickasaw Nation as having strong pro-sovereignty language.

Just days later though, the U.S. Sixth Circuit Court ruled that the NLRB did have jurisdiction over tribal gaming enterprises in a case bought by the board against the Saginaw Chippewa Indian Tribe of Michigan. The decision’s justification has been used in similar cases in the Second, Seventh, Ninth and Eleventh Circuit Courts, though the decisions handed down by the Tenth and Eighth Circuit Courts rejected this position. In the Eighth Circuit’s ruling, the court specifically held that laws of general applicability are not applied to tribes save a specific congressional intent to make it so.

In pushing for a legislative fix, such as Senator Lankford has done, the Congress appears to be moving to take the issue completely out of the courts’ hands.