Connecticut Employment Lawyer & Attorney : Daniel Schwartz : Stamford, Hartford New Haven, CT

Amid all of the buzz regarding the union representation campaigns at Foxwoods, one argument keeps being floated about: tribal sovereignty.

A new article by Thomas Meiklejohn -- one of the attorneys representing the UAW in its battle to represent workers at Foxwoods -- in Spring edition of the Labor & Employment Law Quarterly (not online) of the Connecticut Bar Association, sheds some additional light on the subject.

As Meiklejohn acknowledges, "federal law does recognize the sovereign right of a Native American tribe to govern itself with respect to its internal affairs".  Thus, he argues, the question that must be asked is: When can employment laws be enforced against an employer on a tribal reservation?

Meiklejohn suggests three factors ought to be considered:

1. The Nature of the Employing Entity: Is the employer a branch of tribal government, a commercial enterprise owned by a tribe or a privately owned business operating on a tribal reservation?
2. Who is Bringing the Action: Is it a federal government agency exercising its authority or a suit by a private party?
3. The Source of the Legal Claim: Does this dispute involve federal or state law claims?

Meiklejohn argues that it is a fairly settled issue in Connecticut and the Second Circuit that the NLRB has jurisdiction over tribal casinos.  I've indicated in prior arguments a bit of Foxwoods' response to this as well.

Of course, since Foxwoods has planned to appeal the election results to the Second Circuit and beyond, if necessary, we'll soon see how "settled" this law really is.

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The NLRB's hearing into Foxwoods' objections to the union election continues this week. The latest issue to resurface is one that has surfaced before -- tribal sovereignty.  As I've said previously, I believe this is the type of "big picture" issue that may ultimately take this case up to the U.S. Supreme Court. 

Because the case may ultimately end up in a higher court, I am certain that both sides are trying to lay the groundwork for such an appeal. For the tribe, that means raising the issue thoroughly and establishing a transcript and record that can be used later on. 

Reports of the hearing yesterday illustrate that this strategy was front and center is yesterday's hearing, with seemingly trivial issues over a subpoena becoming major issues. 

According to The Day (continuing its thorough coverage of the hearing):

Monday's arguments in the hearing, in which Foxwoods is disputing the results of a November vote by table-games dealers to unionize with the UAW, centered on whether the tribe's police department could or should respond to a National Labor Relations Board-issued subpoena.

Last week, a subpoena was served to the police department on behalf of the attorneys representing the UAW seeking a police report that was filed by a dealer at Foxwoods. ...

Elizabeth Conway, an attorney for the tribe, argued that the department was not subject to comply with the subpoena because it is “separate and distinct from the gaming enterprise.” The NLRB previously ruled that it has jurisdiction over the gaming enterprise.

...
[Raymond P. Green, an administrative law judge] asked why the police department doesn't just waive sovereign immunity and release the document.

Green said that without the document, it could be detrimental to the case, in that, he would discredit the witness' testimony. If the tribe's attorneys could produce the document, they should.

“The subpoena is almost a red herring,” Green said.

He continued by saying the tribe's attorneys used the witness as a sword, but when asked to back up her claims with the report, the tribe then held up a shield, using the sovereign immunity claim.

“There's no legitimate reason for it being held secret,” he said.

The judge is expected to rule on the issue in the next day or two. Meanwhile, the hearing continued with the Tribe resting its case and the union putting on several witnesses.  The hearing continues today.

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The first day of the hearing into some of Foxwoods' objections to the November election began on Tuesday. Among the arguments being raised by Foxwoods in this particular hearing is the argument that certain tactics taken by the union were unfair and the ballots improper because they were not in Chinese. The UAW has denied the claims and accused Foxwoods of stalling.

The Hartford Courant has this report in this morning's paper:

Foxwoods presented its arguments Tuesday before administrative law Judge Raymond P. Green, saying the NLRB made mistakes in conducting the vote and that interactions by union officials and some voters were unlawful.

Foxwoods' attorneys said the errors include printing the ballot only in English and providing notices explaining the election in only one form of the Chinese language, disenfranchising some Asian American dealers.

But attorneys for the UAW and labor board said the union and the board provided ample explanation of the election in a variety of languages. As for the ballot, they said, the casino didn't make a strong case that its dealers, who must conduct complicated casino games in English, couldn't understand the ballot.

But as I've indicated before, the hearing is, in my view, a distraction from the real battle -- the battle over tribal sovereignty.  And on that front, the Tribe fought and lost another skirmish on Tuesday.  Specifically, the Tribe filed a Petition to Revoke a subpoena requested by the Union. 

What the subpoena sought is irrelevant. Rather, as I've indicated previously, it is the arguments over tribal sovereignty that are  "big picture" issues that could take the case all the way to the U.S. Supreme Court. And on that front, the Petition to Revoke lays the groundwork. Paragraph 2 is the key paragraph to read:

This union subpoena should also be revoked because it is barred by the Nation’s sovereign immunity, which demonstrates another reason why the exercise of jurisdiction by the Board over governmental employers is unworkable. The Nation, as a federally recognized Indian tribe, enjoys immunity from suit. See, e.g., Santa Clara Pueblo v. Martinez, 436 U.S 49, 58 (1978) (“Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers.”) While tribal immunity may be abrogated or waived, “[t]o abrogate tribal immunity, Congress must ‘unequivocally’ express that purpose, and to relinquish its immunity, a tribe’s waiver must be ‘clear.’” Chayoon v. Chao, 355 F.3d 141, 143 (2d Cir. 2004). Neither has occurred here. Id. As an arm of the Nation’s government, the  Gaming Enterprise is immune from suit to the same extent as the Nation. Bassett v. Mashantucket Pequot Tribe, 204 F.3d 343, 358 (2d Cir. 2000); Worrall v. Mashantucket Pequot Gaming Enterprise, 131 F. Supp. 2d 328, 331 (D. Conn. 2001). It is well-settled that tribal sovereign immunity necessarily means that an Indian tribe is not subject to legal process such as a subpoena for the production of documents

The argument the tribe is making that appears to be overlooked so far is that even if the NLRA is applicable, tribes may still have sovereign immunity, protecting them from lawsuits by unions and protecting them from responding to subpoenas from individuals (other than the federal government).  Given the history of Indian law in the United States, it's not an inconsequential argument to make (and hardly "frivolous").

The judge in the hearing denied the Tribe's Petition to Revoke and indicated he would grant an adverse inference if the tribe failed to comply.

The hearing on the objections will continue this week.  While there may be some interesting tidbits that pop out, it's difficult for an employer to overturn an election like this. But with some of the other arguments, like tribal sovereignty, out there, I'm not sure it will make a difference in the overall outcome of this matter.

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While the mainstream press has been reporting on the upcoming hearing tomorrow on some of Foxwoods' objections to the election, Foxwoods has also been challenging the Regional Director's decision on December 21, 2007 rejecting the other objections raised by Foxwoods.  Thus, readers should be aware that reporting on the hearing tomorrow is only one front in the battle over unionization at Foxwoods. 

Earlier this month, Foxwoods filed a lengthy "Request for Review" of that December 21st decision, which can be downloaded here. While it repeats some of the same arguments made earlier, when read in conjunction with yesterday's column in The Day, it highlights the strongest argument that the Tribe has -- that tribal sovereignty and Indian law trump the "normal" rules of construction.

For instance, on pages 16-18, it notes that although federal agencies are generally afforded some deference to their rules, that deference should not be afforded when the rule is construed towards Indian tribes.

In line with that canon, the Board is consequently duty bound to interpret the NLRA's jurisdictional reach in a manner which furthers tribal interests.  Here, that inexorably leads to a conclusion that tribes, including [Foxwoods/Mashantucket Pequot Tribal Nation] fall outside the NLRA's scope..."

Foxwoods also argues that the effect of a potential strike on the tribe's ability to provide governmental services was not considered properly by the Regional Director.  Foxwoods' brief attaches multiple exhibits, which can be downloaded here, here and here, including its prior briefs which can give the reader additional insight into the tribal sovereignty argument. 

Notably, the State of Connecticut filed a brief in opposition on Friday, January 11th.  The State has taken a very aggressive approach to this matter and has again challenged the tribe's arguments -- saying they essentially nothing but a retread and dismissing the remaining arguments.   The  State's brief can be downloaded here.   It's also worth reading (its much smaller in scope) to understand the counter to the arguments raised by the Tribe. 

UPDATE: Jeff Hirsch, at the Workplace Prof blog, also has his thoughts on the arguments that are worth taking a look at. 

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Readers of the blog will no doubt know that the battle for unionization at Foxwoods Resort Casino  is one of the most significant labor issues in Connecticut in many years.  A hearing on the tribe's objections to the election of UAW is scheduled to begin on Tuesday, Januay 15th, which I've discussed before.

In advance of that hearing, The Day (which has been on top of the election throughout) published a very interesting column today by Timothy "Quietbear" Walker entitled Work With Tribe, Avoid Turf War.  

Walker, a citizen of the Mashantucket Pequot Tribal Nation, shifts the discussion from the objections to the election -- which contests the way the election was run -- to larger issues of tribal sovereignty, which it has raised before to no avail so far.  As Walker notes, "the battle is over the NLRB reversing 30 years of federal policy because of the actions of one small tribal group in California."
 
Walker argues that the NLRB's recent decision to exercise jurisdiction over tribal enterprises in some situations (including a tribal casino in California) is unfair and flawed. He argues that Tribes have the legal right to govern labor relations on tribal lands:  "Each tribal nation has the inherent authority to pass its own laws, tax its citizens, and determine the structure and operation of its government."

In doing so, he points to statement which he says "the federal government acknowledges 'the sovereign status of federally recognized Indian tribes as domestic dependent nations'".  What is this document? A June 1, 1995 Memorandum on Indian Soveriegnty by the U.S. Attorney General, which can be found here.  Its worth reading to understand that the "tribal sovereignty" is among the most wide-ranging and important rules for federally-recognized Indian tribes.

Walker's column argues that public education does a poor job of explaining this and argues that  many American were probably not aware that Native Americans were still around until the "media buzz on Indian Gaming".  He thus suggests that "15 minutes of research on the Internet will provide anyone interested with a simple understanding of the major issues being debated."  With the advent of Google, such information is now at your fingertips.

There are also two museums that are, frankly, worth visiting as well to get a better understanding.  (My law school did a good job explaining it, but its a little more expensive.) In Connecticut, the Mashantucket Pequot Museum and Research Center is a sight to see. 

And In Washington, D.C., the National Museum of the American Indian has tons of information -- much of it from a different perspective than most have probably been taught.  I had the opportunity to visit it last month and would highly recommend adding it to your itenerary on your next visit. 

(Hat Tip to Workplace Horizons Blog, which covered this today; the lawfirm behind the blog, Kilpatrick Stockton, has been representing Foxwoods in the UAW/Foxwoods dispute.)

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