Sunday, March 2, 2014
Matthew Fletcher, Kathryn Fort, and Wenona Singel have just posted on SSRN their article Tribal Disruption and Labor Relations. Matthew has been posting on Indian Law topics over at Turtle Talk for several years now, and he's been kind enough to send me a heads-up whenever he's posted something labor-related. He also has the distinction of being a key player in the ALI's forthcoming Restatement of Indian Law.
Here's the abstract:
In recent years, Indian tribes have begun to assert treaty rights to govern labor relations within the reservation, most notably in Indian gaming operations. The National Labor Relations Board and several national labor unions have asserted, with a large degree of success, that the National Labor Relations Act governs labor relations in tribal casinos.
This paper addresses several aspects of the tribal-federal-labor relationship through the lens of tribal disruption theory. Professor Wenona Singel has argued, drawing from institutional economics theory, that labor relations law and policy is static, with unions and the NLRB preferring to rely upon Great Depression-era federal law to decide labor disputes arising in Indian country – not because federal law is substantively preferable to tribal law, but because it is known and predictable. These actors reject tribal labor relations legal regimes despite the possibility that tribal law may be substantively preferable to all parties.
Tribal disruption theory offers an alternative view of how to resolve these ongoing labor disputes, one preferable to the uncertain and high stakes litigation.