ACS Issue Brief on the NLRB — Holy Irony!!!!

Matthew L.M. Fletcher

The American Constitution Society just released an issue brief called “Understanding How Employees’ Rights to Organize Under the National Labor Relations Act Have Been Limited:  The Case of Brown University.” Anyone following Indian Law knows that not all employees have this problem!

Here it is: dannin-issue-brief

Just take the words “Brown University” and replace them with “San Manuel Indian Bingo and Casino” and you have a wildly different result. This issue brief, which is well-written, notes how the NLRB ignores precedent to reach pro-employer results and harms employee rights. Unfortunately, there is no mention of the San Manuel Indian Bingo and Casino decision (from the same year as the Brown University decision, 2004), which reversed 30 years of precedent, gave short shrift to tribal sovereignty, and utterly ignored the governmental purposes of tribal gaming.

I haven’t seen any issue briefs on Indian Law from the ACS, an organization I support. I suppose it’s not a major issue for the ACS, but I urge the ACS and its issue brief writers to consider Indian Law on occasion. Dean Getches wrote a decade ago that tribal interests fare worse than any class of litigant before the Supreme Court, worse than convicted criminals, and not much has changed to the benefit of tribal interests.

Here are a few things the ACS could write about:

  • The 75 percent loss rate of tribal interests before the SCT since 1986
  • The hostility of the Supreme Court toward tribal criminal and civil jurisdiction over non-Indians, which contributes directly to a serious crime and regulatory problem in Indian Country
  • The hostility of the Supreme Court toward tribal interests in disputes with states and state agencies (a federalism issue )
  • The incredible advances that tribes (and states and local governments) have made in using intergovernmental agreements to negotiate away troublesome jurisdictional quandries
  • The hostility of the federal government toward Indians and Indian tribes in the context of Indian gaming and individual Indian money accounts
  • The voting rights cases still being brought by the ACLU Voting Rights Project in Indian Country

There are many other issues. There’s a lot of good things going on in Indian Country, too.