Amid all of the buzz regarding the union representation campaigns at Foxwoods, one argument keeps being floated about: tribal sovereignty.Courtesy: Library of Congress (flckr) - "Indians in New York's 4th of July Parade"

A new article by Thomas Meiklejohnone 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.