Why Tribes Need Their Own Labor Laws

A lack of employment and labor relations laws on Indian reservations has made tribes too vulnerable to exploitation by unions and leaves too many gaps for federal agencies to fill, according to a column written by Kaighn Smith Jr., a partner at the law firm Drummond Woodsum MacMahon, and published in Indian Country Today on Jan. 26.

Smith explores the issue using a hypothetical scenario that involves female tribal workers being victims of sexual harassment. He looks at how, because the tribe has not enacted laws pertaining to sexual harassment and, thus, the victims can not get justice through the tribal court, the door opens wide for union organization.

With the D.C. Circuit Court of Appeals’ decision in San Manuel Indian Bingo & Casino v. NLRB, tribal gaming operations are already open to National Labor Relations Board jurisdiction, as Smith noted.

Smith said tribes have two options: do nothing or enact their own laws.

“The threat of federal authority over labor relations in Indian country is a threat of assimilation,” Smith wrote. “In the case of the NLRB, outside federal agents would impose labor unions upon tribes, upholding the power of such unions to bargain for externally defined 'rights' of employees and to strike against tribes’ economic enterprises – even to thwart tribal employment preferences.”

Click here to read Smith’s column.

Federal District Court in Delaware Rules on Discrimination Case

On November 6, 2009, a federal judge ruled that Chugach Government Services, an Alaska Native Corporation (ANC), could be sued for alleged violations of the Family and Medical Leave Act and the Americans with Disabilities Act. The court ruled that the corporation was exempt from Title VII of the Civil Rights Act, but not other laws unless specifically exempted. The ruling affects all tribal businesses, as they were mentioned in the case, and the same laws apply to them as Alaska Native Corporations.

It is noteworthy that in the opinion, the judge clearly indicates that he does not see that the laws which protest internal tribal sovereignty should extend to business activities run by tribes. The opinion mentions the number of non-native people working for these enterprises and that it was not the intent of Congress that they should lose protections because they work for a tribe.

Taking this case, along with others decided over the past decade, there appears to be a trend that courts are seeking ways to infringe on tribal sovereignty when it comes to employment disputes that stem from tribal or ANC business activities.

Click here for a copy of the full opinion.