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Indian tribes may be sovereign, but their casinos remain subject to federal scrutiny

A California-based tribe’s recent loss at the National Labor Relations Board could reignite interest in controversial legislation affecting Indian casinos and union workers nationwide.

As part of a ruling that the San Diego-area Viejas Band of Kumeyaay Indians had violated federal labor law, NLRB Administrative Law Judge Mara-Louise Anzalone reaffirmed that the labor board had the authority to oversee the treatment of Indian casino workers.

“The Board has repeatedly asserted jurisdiction over Tribal-owned and operated casinos,” Anzalone wrote in the Oct. 11 decision, noting that “the vast majority of both customers and employees of the casino operation are not members of the Tribe.”

Anzalone relied for her conclusion on a D.C.-based appellate court decision from 2007, involving the California-based San Manuel Indian Bingo & Casino. Judge Merrick Garland, who now is President Barack Obama’s stalled nominee to the Supreme Court, joined the decision that said the labor board could regulate certain tribal labor disputes despite tribal sovereignty.

There is no evidence in the language or legislative history of the (National Labor Relations) Act to suggest that Congress intended to exclude Native Americans or their commercial enterprises from the Act’s jurisdiction. NLRB Administrative Law Judge Mara-Louise Anzalone

Citing the 2007 decision, Anzalone reasoned that her Viejas Band labor dispute ruling “would not implicate the Tribe’s right to self-governance because the casino operation is a commercial enterprise in interstate commerce that plays no direct role in…matters such as tribal membership, inheritance rules and domestic relations.”

But congressional critics of the 2007 decision, who include tribal allies as well as frequent opponents of organized labor, have been seeking to strip the NLRB of tribal jurisdiction.

Legislation passed by the House last November by 249-177, supported by nearly all of California’s House Republicans and opposed by almost all of the state’s Democrats, would exclude “Native Americans or their commercial enterprises” from the labor board’s oversight under the National Labor Relations Act.

“The question before the House is whether Congress will reassert its authority over a rogue executive agency and, for a change, honor the promises of tribal sovereignty,” Rep. Tom McClintock, R-Elk Grove, said during House debate.

The measure still awaits Senate action.

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