Little River Band of Ottawa Indians v. Nat'l Labor Relations Bd.

• Decision Date: 20 September 2010
• Docket Number: Case No. 1:09–cv–141.
• Citation: 747 F.Supp.2d 872
• Parties: LITTLE RIVER BAND OF OTTAWA INDIANS, Plaintiff,v.NATIONAL LABOR RELATIONS BOARD, Defendant.
• Court: U.S. District Court — Western District of Michigan

747 F.Supp.2d 872

LITTLE RIVER BAND OF OTTAWA INDIANS, Plaintiff,

v.NATIONAL LABOR RELATIONS BOARD, Defendant.

Case No. 1:09–cv–141.

United States District Court, W.D. Michigan, Southern Division.

Sept. 20, 2010.

Kaighn Smith, Jr., Drummond Woodsum & MacMahon, Portland, ME, for Plaintiff.Eric G. Moskowitz, Kevin P. Flanagan, Nancy E. Kessler Platt, National Labor Relations Board, Washington, DC, Steven E. Carlson, National Labor Relations Board, Grand Rapids, MI, for Defendant.

OPINION AND ORDER

JANET T. NEFF, District Judge.

Invoking this Court's jurisdiction under 28 U.S.C. §§ 1331 (“Federal question”) and 1362 (“Indian tribes”), plaintiff Little River Band of Ottawa Indians filed this case for declaratory and injunctive relief against defendant, the National Labor Relations Board (NLRB), to prevent the NLRB from proceeding on the charge that plaintiff is engaged in an unfair labor practice prohibited by the National Labor Relations Act (NLRA), 29 U.S.C. § 151 et seq., to wit, plaintiff's labor law prohibiting employees of its subordinate economic organizations, such as the Little River Casino Resort, from engaging in a strike. Now pending is plaintiff's Motion for Summary Judgment pursuant to Fed. R. Civ. P. 56(a) (Dkt. 33). Defendant filed a response in opposition, arguing for dismissal under Fed. R. Civ. P. 12(b)(1) for lack of subject-matter jurisdiction (Dkt. 35). Being fully advised by the parties' written and oral arguments, the Court determines that it does not possess jurisdiction over the subject matter of plaintiff's complaint; therefore, this Court grants defendant's request for dismissal of this action.

I. BACKGROUND

A. Statement of Facts ¹

1. The Little River Band of Ottawa Indians

Plaintiff is a federally recognized Indian tribe. 25 U.S.C. § 1300k–2(a); Amended Verified Complaint (AVC) [Dkt. 8] ¶ 1; Kimberly Alexander Affidavit [Dkt. 34–2]. The tribe has nearly 4,000 enrolled members, who live in and near Manistee and Mason Counties in the State of Michigan. Ogema Larry Romanelli Affidavit [Dkt. 34–3] ¶ 5. In accordance with the Indian Reorganization Act (IRA), 25 U.S.C. § 476, plaintiff promulgated a Constitution, and amendments thereto, which was approved by the Secretary of the Department of Interior. AVC ¶ 7; AVC Ex. A; Ogema Aff. ¶ 8; see 25 U.S.C. § 1300k–6(a)(1).

Pursuant to its Constitution, plaintiff is governed by an Executive Branch, through the office of the Tribal Ogema; a legislative branch, through the office of the Tribal Council; and a judicial branch, through the Tribal Court. AVC ¶ 8; AVC Ex. A, Arts. IV–VI. Its Constitution further provides that “[t]he Tribe's jurisdiction over its members and territory shall be exercised to the fullest extent consistent with this Constitution, the sovereign powers of the Tribe, and federal law.” AVC Ex. A, Art. I, § 2. The Constitution empowers the Tribal Council “[t]o exercise the inherent powers of the Little River Band by establishing laws through the enactment of ordinances and adoption of resolutions not inconsistent with the Constitution ... to govern the conduct of members of the Little River Band and other persons within its jurisdiction.” Id., Art. IV, § 7(a)(1).

The United States, through the Secretary of Interior, has taken into trust on plaintiff's behalf over 1,200 acres of plaintiff's ancestral lands in and near Manistee and Mason Counties. Ogema Aff. ¶ 7. Plaintiff exercises governmental authority over the activities of tribal members and non-Indians on these trust lands. AVC ¶¶ 12–25; Ogema Aff. ¶¶ 9–18, 20. Plaintiff is successfully restoring its tribal community and lands, and the provision of governmental services to tribal members pursuant to the Restoration Act. Ogema Aff. ¶¶ 6–12. Plaintiff's Housing Department, for example, has built, and is continuing to build, reservation homes for low income and elderly tribal members. Plaintiff's Health Department provides direct health care services to many tribal members and their families. It is upgrading its clinic and building a pharmacy to better serve the tribal community. Plaintiff's Department of Natural Resources is engaged in restoring sturgeon fish populations within the reservation. Plaintiff is maintaining and restoring its language through Anishinaabemowin language programs for tribal member youths and elders, and plans are under way for the construction of a new Community Center and Government Building complex on the reservation to unify, and enhance services to, the tribal community. Id. ¶ 11.

Lacking a tax base, plaintiff's governmental programs and services are jointly funded by (a) the generation of revenues pursuant to the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. § 2701 et seq. ; and (b) federal support, principally through contracts entered into by plaintiff with federal agencies through the Indian Self–Determination and Education Assistance Act of 1975, the Indian Health Care Improvement Act of 1976, and the Native American Housing Assistance and Self–Determination Act of 1996. Plaintiff's IGRA gaming revenues generally provide $20 million per year in support of tribal government, which is over fifty percent of plaintiff's total budget. The remainder is covered primarily through a combination of the above-referenced federal programs. Ogema Aff. ¶ 12.

Over 1,000 employees work for plaintiff's governmental departments, agencies, commissions, and subordinate organizations, including tribal members and members of their immediate families, members of other Indian tribes, and non-Indians. Plaintiff's laws provide that qualified tribal members, their immediate family members, and members of other Indian tribes are given employment preferences within tribal government operations over non-Indians. Ogema Aff. ¶ 13.

2. The Little River Casino Resort

The Band conducts IGRA gaming operations on its reservation through a subordinate economic organization of the Band known as the Little River Casino Resort (“the Casino”), which is established by the Tribal Council pursuant to plaintiff's Constitution. AVC ¶ 26; Ogema Aff. ¶¶ 14–15; Ex. D. The Casino is wholly owned and organized by plaintiff. AVC ¶ 26; AVC Ex. D; Ogema Aff. ¶¶ 15, 17. The Tribal Council retains sole authority to waive or limit the sovereign immunity of the Casino, to approve legal counsel for the Casino, and to approve contracts for part-time or full-time personnel; and all obligations, liabilities and property related to or concerning the Casino are those of the Tribe. AVC ¶ 26; Ogema Aff. ¶ 16. The Casino is managed by a Board of Directors, who, by the terms of plaintiff's Constitution and Board of Directors Act, are nominated by the Ogema, subject to confirmation by the Tribal Council. AVC Ex. A, Art. IV, § 7(h), Art. V, § 5(a)(4); AVC Ex. D, § 4.02(a)-(b). Board members must be enrolled members of the Tribe. AVC Ex. D, § 4.04(a). The Ogema has the power to remove a Board member for cause, unless overruled by a two-thirds majority vote of the Tribal Council. Id., § 4.02(c).

Pursuant to plaintiff's Board of Directors Act, the Ogema must present the annual budget of the Casino to the Tribal Council for approval or amendment in accordance with plaintiff's Constitution. AVC Ex. D, §§ 5.02(a) and 5.03(a). Pursuant to the Act, the Casino's annual operating plan “shall be subject to approval by the Tribal Council by law or resolution.” Id. § 5.03(b). Pursuant to the Act, the Casino Board must account for, and transfer to the accounts of the Tribal Council, all revenues generated by the Casino in accordance with Board procedures, which “shall be subject to modification by the Tribal Council by law or resolution.” Id. § 5.01(c). Pursuant to the Act, the Casino Board has authority to approve and amend the Personnel Manual for the Casino, “subject to the overriding authority of the Tribal Council to alter such Personnel Manual by law or resolution,” and the Casino Board is required to “provide at least a 30–day advance notice to the Ogema and Tribal Council of all proposed amendments to the Personnel Manual.” Id. § 5.03(d).

The Casino Board may hire a General Manager for the Casino “in accordance with the laws and resolutions of the Tribe” and enter into an employment contract with the General Manager, provided “that such contract shall be subject to ratification by the Tribal Council.” Id. § 5.03(c).

Plaintiff's IGRA gaming operations at the Casino employ tribal members, members of their immediate families, and members of other Indian tribes as well as several hundred non-Indians. Ogema Aff. ¶ 18. Many non-Indians (in the thousands per year) come from outside of the Band's reservation, from Michigan and other states, to engage in gaming at the LRCR, and the opportunity for such gaming is advertised to non-Indians outside of the reservation. Ogema Aff. ¶ 19.

Pursuant to its Constitution, plaintiff enacted a Fair Employment Practices Code to govern employment and labor relations within its regulatory jurisdiction. AVC ¶ 12; AVC Ex. B; Ogema Aff. ¶ 20. Article XVI of the Fair Employment Practices Code governs labor relations and collective bargaining with “public employers” within its jurisdiction. See AVC Ex. B, Art. XVI § 16.03 (definitions); AVC ¶¶ 14, 22–25; Ogema Aff. ¶ 20.

Plaintiff defines “public employer” as “a subordinate economic organization, department, commission, agency, or authority of the Band engaged in any Governmental Operation of the Band.” AVC Ex. B, Art. XVI, § 16.03. “Governmental Operations of the Band,” in turn, are defined as

the operations of the Little River Band of Ottawa Indians exercised pursuant to its inherent self-governing authority as a federally recognized Indian tribe or pursuant to its governmental activities expressly recognized or supported by Congress, whether through a subordinate economic organization of the Band or through a department, commission, agency, or authority of the Band including, but not limited to (1) the provision of health,...