Recently, two Michigan tribes petitioned the U.S. Supreme Court challenging the National Labor Relations Board's (NLRB) authority to regulate labor practices at their casinos. Unfortunately, the U.S. Supreme Court declined to review either the Little River Band's or the Saginaw Chippewa's petition, leaving unfavorable Sixth Circuit rulings as binding precedent. 

In both NLRB v. Little River Band of Ottawa Indians Tribal Government and Soaring Eagle Casino v. NLRB, the Sixth Circuit held that there is a presumption that federal laws generally apply equally to tribes on their reservation lands. However, a statute will not be applied to reservation lands if the law touches exclusive self-governance rights, if applying the law to the tribe would abrogate treaty rights, or if legislative history shows congressional intent to exclude tribes from the law's application. The Sixth Circuit held that the National Labor Relations Act (NLRA) vests the NLRB with the fullest jurisdictional breadth constitutionally permissible under the Commerce Clause, and that enforcement of the Act in Indian country is not restricted by one of the exceptions to general applicability.

Under these rulings, the NLRA bars employers, including on-reservation casinos, from taking any action that restrains employees from exercising their NLRA rights. Thus, in the Sixth Circuit (which includes the states of Michigan, Ohio, Kentucky and Tennessee), tribal casinos may not discourage employees from forming unions or engaging in concerted activities to address working conditions. Tribes in these states must now familiarize themselves with NLRA rules and restrictions when dealing with union organizing activities or other collective employee actions.

This article was co-written by Janelle Grigaitis, a summer associate at Varnum in 2016. Janelle is currently a student at Vanderbilt University Law School.