Turtle Talk

from ICT:

There’s an old adage that law professors like to use: Bad facts make bad law; in the area of tribal labor and employment law, watch out – if the facts set up the wrong way, irreparable damage will be done to tribal self-government in this field. This is a problem (or opportunity) for tribal sovereignty in the way that the test case ofBrown v. Board of Education was for the civil rights movement.

There’s been plenty of “bad press” about tribes “getting away with” practices in the workplace that may look wrong to outsiders. The assertion of sovereign immunity against individual employees may exacerbate tensions. In dismissing an action for unpaid wages brought by tribal employees, the Crow Court of Appeals recently warned, “If the tribe does not take steps to enact appropriate waivers of sovereign immunity, we believe it is only a question of when Congress will do it for us.” The Crow Tribe later enacted law to protect its workforce.

There’s an old adage that law professors like to use: Bad facts make bad law; in the area of tribal labor and employment law, watch out.

It’s probably more likely that the Supreme Court, not Congress, will decide whether tribes and their enterprises must succumb to federal authority over union rights, age and other discrimination laws, and a host of other federal laws governing employment relations. For now anyway, Congress is distracted by other issues. So what will a case look like that goes up to the high court?

With non-Indians taking up employment positions in Indian country in droves, federal agencies are looking for opportunities to enforce federal labor laws of general application against tribes. Tribes cannot assert the sovereign immunity defense against the United States; so these cases go forward. The question becomes whether Congress (when silent on the issue) intended such laws to apply to tribes.

The case law on that question is in limbo. There is no consensus across the federal courts on what standard governs the outcome. Some courts say it turns on whether application of the federal law would affect a treaty right or a “purely intramural matter.” Others suggest that if application of the law would infringe on established attributes of tribal sovereignty, courts must presume that Congress intended not to apply the law to tribes.

Here is a sampling of some of the cases to date: Donovan v. Coeur d’Alene Tribal Farm (whether Occupational Safety and Health Administration applies; tribe lost); Donovan v. Navajo Forest Products Industries (OSHA; tribe won); Reich v. Mashantucket Sand and Gravel (OSHA; tribe lost); National Labor Relations Board v. San Manuel Indian Bingo and Casino (National Labor Relations Act; tribe lost); Reich v. Great Lakes Indian Fish & Wildlife Commission (Fair Labor Standards Act; tribes won over strong dissent);Equal Employment Opportunity Commission v. Cherokee Nation (Age Discrimination in Employment Act; tribe won over strong dissent); EEOC v. Karuk Tribe Housing Authority (ADEA; housing authority won); EEOC v. Fond du Lac Heavy Equipment and Construction Company (ADEA; tribe won over strong dissent).

So how could this all play out in the Supreme Court? No doubt bad facts will make bad law in this area, but there are also “bad” federal courts to be in. If the “wrong” case goes up to the Supreme Court from the “wrong” federal court of appeals, the case could spell disaster. If the “right” case goes up from the “right” federal appeals court, we could see tribal self-government over reservation labor relations preserved. The conflicts and tensions and potential for litigation will not go away. To avoid making bad law, the battle and the battleground must be chosen with care.

Tribes cannot assert the sovereign immunity defense against the United States; so these cases go forward.

In the end, there are two potential futures: Either tribes are going to be fully subject to federal labor and employment laws with federal authorities taking control, or tribes are going to retain control. If tribes do nothing to take control, the first paradigm is all the more likely.

Whether this is resolved by the Supreme Court or by Congress, when it is resolved, tribes will do well to show that they are exercising authority to make their workplaces safe and fair in accordance with the customs and dignity of their own communities. The court and Congress should be hard-pressed to destroy such an exercise of tribal sovereignty in this era of tribal self-determination – one which, to date, they have readily endorsed.

Kaighn Smith Jr. is a partner at Drummond Woodsum MacMahon. He represents tribes in labor and employment matters, including the design of tribal laws and jurisdictional disputes with federal agencies. Dawn Sturdevant Baum is a staff attorney at the Native American Rights Fund, an enrolled member of the Sokaogon (Mole Lake) Band of Chippewa, and a Menominee descendant. They are collaborating on a forthcoming book on the law of tribal employment to be jointly published by NARF and Drummond Woodsum.