Here are the materials relevant to Little River Band of Ottawa Indians Tribal Government v. NLRB.
Supreme Court cert stage briefs
Little River Petition and Appendix COMBINED
Final CO-UMUT Amicus Cert Petition – Saginaw Chippewa and LRB
National Right to Work Legal Defense Foundation
Sixth Circuit En Banc Stage Continue reading
Here is the USET brief in Saginaw Chippewa Indian Tribe v. NLRB:
USET Amicus in Support of Tribal Petitions
This one is substantially the same as USET’s brief in the Little River Band of Ottawa Indians Tribal Government v. NLRB case.
Here:
Saginaw Cert Petition and Appendix- Filed
Questions presented:
For more than sixty years, the National Labor Relations Board correctly declined to exercise jurisdiction over tribal operations on tribal lands. But in recent years, the Board has belatedly asserted the extraordinary power to regulate the on-reservation activities of sovereign Indian tribes, precipitating a three-way circuit split in the process. Nothing in the text of the National Labor Relations Act changed in that interval; it contains no language granting the Board authority over Indian tribes. Nor has the language of various Indian treaties, like those between the Saginaw Chippewa Indian Tribe and the United States, changed; they continue to recognize the Tribe’s authority to exclude non-members. And despite the Board’s complete lack of expertise in Indian law, the Board now dictates that some tribal operations are subject to the NLRA and others are not based on its evaluation of the centrality of certain functions to tribal sovereignty and subtle differences in treaty language.
This case presents two questions, both of which have divided the courts of appeals:
(1) Does the National Labor Relations Act abrogate the inherent sovereignty of Indian tribes and thus apply to tribal operations on Indian lands?
(2) Does the National Labor Relations Act abrogate the treaty-protected rights of Indian tribes to make their own laws and establish the rules under which they permit outsiders to enter Indian lands?
Lower court materials here.
Here:
Little River Petition and Appendix COMBINED
Question presented:
Whether the National Labor Relations Board exceeded its authority by ordering an Indian tribe not to enforce a tribal labor law that governs the organizing and collective bargaining activities of tribal government employees working on tribal trust lands.
Lower court materials here.
Here is the order (Judge McKeague dissents):
CA6 Order Denying Rehearing En Banc
En banc materials in both cases here.
Here are the materials in NLRB v. Little River Band of Ottawa Indians Tribal Government:
NLRB Response to LRB En Banc Petition
* note: the NLRB also seeks en banc review
And here are the materials in Soaring Eagle Casino and Resort v. NLRB:
On Thursday, June 18, 2015, at the annual RES D.C. Conference hosted by NCAIED, Geoff Hash of the law firm Rosette, LLP will moderate a panel to discuss the important issue of the National Labor Relations Board’s unlawful attack on tribal sovereignty as well as a congressional fix for the same. The panel will include representatives from the Chickasaw Nation, the Little River Band of Ottawa Indians, and the Saginaw Chippewa Indian Tribe of Michigan. Congressman Todd Rokita (R-IN), sponsor of the Tribal Labor Sovereignty Act, H.R. 511, will be making introductory remarks.
Regulation of labor is a vitally important aspect of tribal sovereignty. To that end, many tribes have exercised their inherent sovereignty and have enacted comprehensive ordinances addressing a wide variety of issues, such as minimum wage, family and medical leave, and collective bargaining.
Although Congress has empowered the NLRB to bring legal action against private enterprises, it has never given the NLRB jurisdiction over tribes or tribal enterprises. Nonetheless, in 2004, the NLRB began asserting jurisdiction over tribal labor practices. This has created a patchwork of uncertainty and a dilution of sovereignty, as demonstrated by the outcome of the cases mentioned below.
Congress – at the urging of many tribes – is now considering the Tribal Labor Sovereignty Act, which clarifies that the NLRB has no jurisdiction over tribal enterprises located on tribal land. The Senate version of the proposed law has just been approved by the Committee on Indian Affairs and is headed to the floor for a final vote. The House version is scheduled to be discussed at a hearing before the Education and Workforce Committee on June 16, 2015.
This panel could not be timelier given very recent events, including the congressional movement, the decision issued by the 6th Circuit in NLRB v. Little River Band of Ottawa Indians (here), the NLRB decision in the case involving the Chickasaw Nation (here), and similar ongoing litigation involving others.
The panel will discuss these issues and explain why they are so critically important to tribal economic development. We encourage you to register for the RES Conference and attend in person. Registration is available at http://res.ncaied.org/res-dc-2015-registration/. Those interested may also contact Geoff Hash, Rosette, LLP, at (916) 353-1084 or ghash@rosettelaw.com for more information, or visit http://www.NativeEdge.com to review an archived video of the panel discussion and related materials.
Date: June 18, 2015
Time: 8:45 am
Location: Omni Shoreham Hotel, 2500 Calvert
Here are the materials in Unite Here Local 19 v. Picayune Rancheria of Chukchansi Indians (E.D. Cal.):
11-1 Unite Here Motion for Judgment on the Pleadings
An excerpt:
Respondents maintain that the Labor Management Relations Act (“LMRA”) does not apply to them because the statute does not expressly abrogate tribal sovereignty. This Court, however, need not determine whether the statute abrogates sovereignty, as Respondents have waived their sovereign immunity and consented to be sued in federal court. See Okla.Tax Comm’n v. Citizen Band Potawatomi Indian Tribe of Okla., 498 U.S. 505, 509 (1991) (“Suits against Indian tribes are thus barred by sovereign immunity absent a clear waiver by the tribe or congressional abrogation.”) (emphasis added). The CBA-which, again, Respondents concede they agreed to—provides:
For the sole purpose of enabling a suit to compel arbitration or to confirm an arbitration award under this Agreement or the Employer’s Tribal Labor Relations Ordinance, the Employer agrees to a limited waiver of sovereign immunity and consents to be sued in federal court, without exhausting tribal remedies.Pet., Exh. A at 17 (emphasis added). There is no indication that Respondents entered into this unequivocal waiver involuntarily. See White v. Univ. of Cal., 765 F.3d 1010, 1025–26 (9th Cir.2014) (“A voluntary waiver by a tribe must be unequivocally expressed.”) (internal quotation marks omitted).
Contrary to Respondents’ suggestion, the United States Supreme Court’s recent decision in Michigan v. Bay Mills Indian Community, 134 S.Ct. 2024 (2014), does not compel a different result. In fact, that opinion reconfirmed that an Indian tribe may waive its sovereign immunity: “we have time and again treated the doctrine of tribal immunity as settled law and dismissed any suit against a tribe absent congressional authorization or a waiver.” 134 S.Ct. 2030–31 (internal quotation marks, brackets, and parentheses omitted); see also id. at 2035 (“[I]f a State really wants to sue a tribe for gaming outside Indian lands, the State need only bargain for a waiver of immunity.”).
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