One of the newest and interesting topics facing gaming tribes, including the Saginaw Chippewa Indian Tribe, see here, and the Mashantucket Pequot Nation, see here, is the question of whether the employees of tribal casinos can organize labor unions. Many tribal casino employees in California have already organized — most of the California gaming compacts require it.

But in Michigan and most elsewhere, most Indian tribes haven’t agreed to allow employees to organize. The major legal and policy question is whether federal law, embodied in the National Labor Relations Act (the Act or NLRA) applies to Indian tribes.

The Act doesn’t say whether or not it applies to Indian tribes — it’s silent. Congress enacted this law in 1935 during a time of enormous legal, political, and often violent conflict between large corporate employers and their workers. The statute itself speaks of “industrial strife and unrest.” 29 U.S.C. § 151. Wenona Singel argued persuasively in her article, “Labor Relations and Tribal Self-Governance,” that Congress in 1935 did not consider Indian tribes to have the potential to become major economic players — and therefore would not have considered the Act to apply to tribal businesses. In fact, as Prof. Singel argued, a year earlier in 1934, Congress enacted the largest and most important piece of positive Indian affairs legislation — the Indian Reorganization Act (IRA) — so it was clear they knew about Indian tribes. Section 17 of the IRA even authorized Indian tribes to charter federal corporations for business purposes. The fact that the NLRA never even mentioned Indian tribes in this historical context is a powerful clue that Congress would not have thought the Act would apply to tribal businesses.

And for decades, the federal agency charged with implementing the NLRA — the National Labor Relations Board — interpreted the Act just as Congress would have. In the 1970s, for example, the Board held that the Act does not apply to tribal businesses. Congress had decades to amend the NLRA to make it apply to tribal businesses, but it chose not to. Regardless, in 2005, the Board reversed almost 30 years of its own precedent and held that the Act did apply. The D.C. Circuit, required by federal constitutional law to defer to the expertise of federal agencies (so-called Chevron deference), upheld this decision.

Now national labor unions are beginning to seek to organize tribal gaming employees. Some tribes have adopted a right to work ordinance, see the Grand Traverse Band Code, Title 5, Chapter 8, and the Mashantucket Pequot Tribal Laws Title 28 [thanks to Trent Crable] — as most states have — that limits labor unions rights. Others are fighting the decision.