GM 12-008

Interior Department asks NLRB to Exempt Indian Tribes from Regulation

On December 7, 2011, the Deputy Solicitor for the Department of the Interior (DOI) wrote to the National Labor Relations Board (NLRB) requesting a meeting to discuss whether the NLRB would reconsider its position on its jurisdiction over Indian tribal gaming enterprises. Deputy Solicitor Patrice Kunesh explained that she was prompted to write the letter in light of the productive tribal leaders summit with the White House in early December and the Obama Administration’s reaffirmation of its commitment to tribal sovereignty. We attach a copy of the letter.

In 2004, over tribal opposition, the NLRB concluded in the San Manuel decision that it had jurisdiction over tribal gaming operations. The U.S. Court of Appeals for the D.C. Circuit upheld the decision in 2007. Since 2004, numerous bills and floor amendments have been introduced in Congress to stay or overturn the NLRB decision but none have been successful. For instance, in this Congress, Representative Kristi Noem (R-SD) has introduced HR 2335, the Tribal Labor Sovereignty Act of 2011 (See our General Memorandum11-085 of June 30, 2011).

The DOI is seeking an opportunity to convince the NLRB to change its position in favor of tribes. The Department cited the Tenth Circuit Court of Appeal’s view that the NLRB does not have jurisdiction over tribes expressed in its 2002 San Juan decision and reiterated in its 2010 Dobbs decision (resolving an Employee Retirement Income Security Act claim). The Department did not cite a 2011 federal district court decision, Chickasaw Nation v. NLRB, in which the court issued a preliminary injunction against the NLRB from proceeding with an unfair labor practice hearing against the Chickasaw Nation. See our General Memorandum 11-089 (July 15, 2011). The Department also asks that the NLRB stop filing unfair labor practice charges against tribes and drop current charges that have already been filed.

The letter is a welcome development for tribes and while it is uncertain whether the NLRB will accept the DOI’s request to meet, the letter signals a strong element of support for tribes from within the Obama Administration.

Finally, we note that there is a serious question as to whether the NLRB even has the necessary quorum to issue decisions or reverse previously taken positions. On January 4, 2012, President Obama made three recess appointments to the NLRB while the Senate was on break but still holding pro forma sessions to avoid going into recess. Republican leaders argue that those appointments are invalid. The appointments are likely to be challenged in court.

Please let us know if you wish additional information about the Department of Interior’s efforts to convince the NLRB to reverse itself and any related developments.