Posted on 06/25/2004 7:33:22 PM PDT by BluegrassScholar
Jobs on American Indian reservations have always come with their own set of work rules and regulations.
The tribes are considered separate governments, entitled to establish their own labor standards unless specifically restricted by Congress. They are subject to no state labor laws and only limited federal labor rules.
That's why a recent decision by the National Labor Relations Board is causing a stir among California's tribes and the estimated 44,000 people who work for them.
The NLRB recently ruled that it has jurisdiction over union disputes at casinos operated by Indian tribes.
The ruling reverses three decades of a "hands off" policy by the NLRB when it comes to tribal business.
The ruling was handed down in response to a complaint by the Hotel Employees & Restaurant Employees Union over an organizing effort four years ago at the San Manuel Indian Bingo & Casino near San Bernardino.
The union contended that it was not allowed to organize workers there, but the Communications Workers of America was.
The NLRB ruled that the San Manuel tribe, as an employer, should not be involved with selecting unions for its employees.
The intrusion of the NLRB has made tribes nervous.
"The NLRB decision has thrown a lot of uncertainty into the situation," says George Howard, a lawyer who does work for Viejas in Alpine.
He says the decision has raised fears that other federal agencies can move into tribal business if they want.
"It has caused a lot of concern," he says.
The ruling seems to be a reinterpretation of federal policy by the NLRB as tribal business activities grow and the tribes become more significant employers.
"Tribal enterprises are playing an increasingly important role in the nation's economy," the NLRB wrote in its decision. "As tribal businesses prosper, they become significant employers of non-Indians and serious competitors with non-Indian-owned businesses."
Yet, looking at the business activities of tribes like other businesses is a mistake, says Carole Goldberg, a law professor at UCLA.
"Tribal gaming is not a business," she says. "The proceeds of gaming help support the governments of Indian nations. It's true that they bring in a lot of income, but it is income that takes the place of taxes in other governments."
Goldberg says no tribes will quarrel with the right of Congress to impose labor standards on them, but she questions whether agencies should independently impose themselves into tribal operations.
Howard Dickstein, an attorney who represents five California tribes including the Pala Casino Resort & Spa in North County, says no one should be surprised that the regulatory climate is evolving.
"It's not unusual for the courts to reinterpret statutes based on social and economic conditions," he says. "The Indian reservations are much different today than they were 20 years ago, and I think everyone realizes that."
Dickstein says the governmental status of Indian tribes has raised many questions about labor law compliance and that is unlikely to change soon.
"Federal overtime and minimum wage laws apply on the reservations, but other labor laws don't," he says. "It's never been an issue free of ambiguity."
Howard says the recent NLRB decision will be contested.
"It's going into the federal appeals court and I wouldn't be surprised if it winds up in the U.S. Supreme Court," he says. "This is a matter that is going to take years before it is finally resolved."
To my knowledge, Indian tribes have always been subject to federal, not state or local, law.
On this faithful day, June 25, 1876, Gen G.A. Custer tried to imposse the US Goverment on the massed tribes on the
Greasy Grass River. Before this ruling is finished the NLRB
will receive the same "comeupance"!
It sounds like the tribes aren't subject to other federal laws such as EEO, Injury Comp, diversity.
Well, if this NLRB ruling is in keeping with congressionally passed laws, then I'd be fine with it since that's the constitutional way when dealing with Indian Nations. If the ruling was pulled out of their ass, like many federal agency rulings, then I think the NLRB may need to be reined in a bit (like other federal agencies need, too)
"It's not unusual for the courts to reinterpret statutes based on social and economic conditions," he says.
We see it almost every day with our judicial bench. They even reinterpret the U.S.Constitution. Why wait for the elected representatives of government to make law when a law can be made instantly right from the bench?
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