Tribal Governments Laws that Regulate The Indian Gambling

The National Labor Relations Act (NLRA) permits employees to form unions and to bargain collectively with their employer. The law does not contain language that expressly applies the Act to Indian tribes nor does it expressly exempt Indian tribes from the Act’s coverage. However, the Act does expressly exempt government entities.

The National Labor Relations Board (NLRB or Board), which hears disputes brought under the Act in the first instance, has addressed the issue of whether the Act applies to Indian tribes and has twice held that a tribally owned and operated business located on Indian lands is exempt from the Act under the Act’s exemption for government entities. Similarly, at least one court has ruled that the NLRA does not apply to tribal governments.

An important case on the subject, Fort Apache Timber Company, was decided by the Board in 1976. 90 In this case, the Board ruled that it lacked jurisdiction over the White Mountain Apache Tribe and a wholly owned and operated enterprise of the tribe. Central to the Board’s ruling was the recognition that the tribe was a government, and thus exempt from the Act:

Consistent with our discussion of authorities recognizing the sovereign-government character of the Tribal Council in the political scheme of this country it would be possible to conclude that the Council is the equivalent of a State, or an integral part of the government of the United States as a whole, and as such specifically excluded from the Act’s Section 2( 2) definition of “employer.” We deem it unnecessary to make that finding here, however, as we conclude and find that the Tribal Council, and its self-directed enterprise on the reservation that is here asserted to be an employer, are implicitly exempt as employers within the meaning of the Act. 91

The Federal District Court for the District of Oregon expressly agreed with the Board’s position in Fort Apache Timber and similarly ruled that the Confederated Tribes of the Warm Springs Reservation was “not an employer for purposes of [the NLRA].” 92 The court held, however, that a business operated by a tribal corporation was covered by the NLRA.

It should be noted that the Board has expressly held, and the D. C. Circuit Court has upheld, that the Act’s provisions apply to private employers operating on reservations. 93 Similarly, the Board has applied the NLRA to a joint venture between a tribal employer and a non-tribal employer on a reservation. 94 In addition, the Board has also held that the Act applies to businesses wholly owned and operated by a tribe if the business is located off reservation. 95

86 Vicki J. Limas, Application of Federal Labor and Employment Statutes to Native American Tribes: Respecting Sovereignty and Achieving Consistency, 26 ARIZ. L. J. 681 at 682. 87 Donovan v. Coeur d’Alene Tribal Farm, 751 F. 2d 1113, 1115 (CA9 1985); Reich v. Mashantucket Sand & Gravel, 95 F. 3d 174 (CA2 1996). For example, in Mashantucket, OSHA was found to apply to the Mashantucket Pequot Sand & Gravel operation through its activities in interstate commerce, but recognized Tribe’s right to establish its own tribal OSHA system. 88 Smart v. State Farm Insurance Co., 868 F. 2d 929 (CA7 1989); Lumber Industry Pension Fund v. Warm Springs Forest Products, 939 F. 2d 683 (CA9 1991). 89 Reich v. Great Lakes Indian Fish & Wildlife Commission, 4 F. 3d 490 (CA7 1993). The Court ruled against the plaintiff on the grounds that the FLSA’s police exemption applied. The Court never reached or decided the question of whether or not FLSA applied directly to the tribal government. 90 Ft. Apache Timber Co. 226 N. L. R. B. 503 (1976). 91 Ibid. 92 103 L. R. R. M. (BNA) 2749 (D. Or. 1980). 93 Navajo Nation v. N. L. R. B., 288 F. 2d 162 (D. C. Cir. 1961), cert. denied, 366 U. S. 928 (1961). 94 Devils Lake Sioux Manufacturing Corporation, 243 N. L. R. B. 163 (1979).