Monday, January 14, 2008
Daniel Schwartz at the Connecticut Employment Law Blog has just posted the latest in his string of informative posts on the saga between the NLRB and the Mashantucket Pequot Tribe Nation. The issue centers on the Tribe's challenge to an election in which a majority of dealers at its Foxwoods Resort Casino chose to be represented by the UAW. The NLRB is holding a hearing tomorrow on the Tribe's election challenges. However, the bigger issue is whether the NLRA applies at all. Earlier this year, the D.C. Circuit upheld the NLRB's assertion of jurisdiction over Indian casinos, but not surprisingly, the tribes are not accepting that holding without a fight. Expect some more circuit decisions and then a possible Supreme Court case.
I have mixed feelings about the NLRA applying to Indian casinos. I am sympathetic to general claims of Indian sovereignty--I don't think it makes sense from a overall policy perspective, but the U.S. government has given them such a raw deal for so long, that I don't begrudge them trying to hold the government to its promises. That said, my reading of the relevant law is that the NLRB has a pretty good argument. Tribal sovereignty isn't limitless and when they are engaged in purely commercial activity that has a big impact on non-tribal interests, the sovereignty claims are weaker. I should note, however, that I worked briefly on an Indian casino jurisdiction case while I was at the NLRB, so take my opinion with an even larger grain of salt than usual.