Saginaw Chippewa Indian Tribe of Mich. v. Nat'l Labor Relations Bd., Case No. 11–14652.
| Decision Date | 23 December 2011 |
| Docket Number | Case No. 11–14652. |
| Parties | SAGINAW CHIPPEWA INDIAN TRIBE OF MICHIGAN, Plaintiff, v. The NATIONAL LABOR RELATIONS BOARD, Mark Pearce, and Brian Hayes, Defendants. |
| Court | U.S. District Court — Eastern District of Michigan |
OPINION TEXT STARTS HERE
Andrew Adams, III, Jessica S. Intermill, Sara K. Van Norman, William A. Szotkowski, Jacobson, Buffalo, Magnuson, Anderson & Hogan, P.C., St. Paul, MN, Sean J. Reed, Saginaw Chippewa Indian Tribe, Mount Pleasant, MI, for Plaintiff.
Mark G. Eskenazi, Nancy E. Kessler Platt, National Labor Relations Board, Washington, DC, for Defendants.
This case involves competing claims to jurisdiction—more precisely, the lack thereof. The Saginaw Chippewa Indian Tribe of Michigan filed suit in this Court to enjoin the National Labor Relations Board from applying the National Labor Relations Act, 29 U.S.C. §§ 151–69, to the Tribe's casino operations. Moving for a preliminary injunction, the Tribe contends that it is not subject to the Board's jurisdiction as the Act does not expressly provide that it applies to Indian tribes. The Board, in turn, moves to dismiss the Tribe's complaint, contending this Court lacks jurisdiction because the Act “requires parties to exhaust administrative remedies before the Board and an appropriate court of appeals.” Whether the Tribe is correct that the Board lacks jurisdiction or the Board is correct that this Court lacks jurisdiction (or, indeed, whether they are both correct) are issues that will ultimately be resolved by the Sixth Circuit, regardless of what this Court decides. Nevertheless, this Court concludes that the Board has the better argument regarding this Court's jurisdiction—more precisely, the lack thereof.
Pursuant to 29 U.S.C. § 160, the Tribe must first exhaust its administrative remedies before the Board. Only then may the Tribe appeal to the courts, and the appeal will not lie in this Court, but in the court of appeals. And although the Sixth Circuit recognizes a narrow exception to the exhaustion requirement of § 160, it requires “both a showing that the Board acted in excess of its delegated powers and that the aggrieved party would be ‘wholly deprived’ of its statutory rights.” Detroit Newspaper Agency v. NLRB, 286 F.3d 391, 397 (6th Cir.2002) (emphasis in original) (citing Bd. of Governors of the Fed. Reserve Sys. v. MCorp Fin., Inc., 502 U.S. 32, 43, 112 S.Ct. 459, 116 L.Ed.2d 358 (1991)). Parties are not “wholly deprived” of their “statutory rights” when they “have an opportunity to raise their arguments in the court of appeals under § 160(f).” Id. (citing Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958)). Here, the Tribe will have the opportunity to raise its arguments in the court of appeals. Accordingly, the Tribe's motion will be denied, the Board's motion will be granted, and the Tribe's complaint will be dismissed.
The Saginaw Chippewa Indian Tribe of Michigan is a federally recognized Indian tribe. From 1807 to 1864, the Tribe entered into several treaties with the United States. The 1864 Treaty established the Isabella Reservation in Isabella County, Michigan, providing that the land was set aside for the “exclusive use, ownership, and occupancy of the Saginaw Chippewa.” More than a century passed.
In 1988, Congress enacted the Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701–21, to establish “a statutory basis for the operation and regulation of gaming by Indian tribes.” Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 48, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). “The Act divides gaming on Indian lands into three classes—I, II, and III—and provides a different regulatory scheme for each class.” Id. “Class I gaming” includes, interalia, “social games solely for prizes of minimal value.” § 2703(6). “Class II gaming” includes “bingo” and “card games,” § 2703(7)(A), but does not include “such things as slot machines, casino games, banking card games, dog racing, and lotteries.” Seminole Tribe, 517 U.S. at 48, 116 S.Ct. 1114. Class III gaming, “the most heavily regulated of the three classes,” includes any gaming that does not fall into class I or II. Id.
“Class I gaming on Indian lands is within the exclusive jurisdiction of the Indian tribes.” § 2710(a)(1). Class II and III gaming, in contrast, requires that an Indian tribe enact, and the Chairman of the National Indian Gaming Commission approve, an ordinance regulating the gaming activity. § 2710(b), (d). Class III gaming, moreover, requires “a Tribal–State compact entered into by the Indian tribe and the State” approved by the Secretary of the Interior. § 2701(d)(1)(C).
In 1993, the Tribe enacted its gaming ordinance, which was approved by the Chairman of the National Indian Gaming Commission. Also in 1993, the Tribe and the State of Michigan entered into a gaming compact; it was approved by the Secretary of the Interior. The Tribe then began to operate the Soaring Eagle Casino and Resort on the Isabella reservation, offering class II and III gaming. The Tribe does not disclose what percentage of the casino's employees and customers are members of the Tribe. What percentage of the Tribe's overall revenue is derived from the gaming similarly not disclosed. The Tribe does, however, attach the casino's “charter,” which provides in pertinent part that the casino “is a tribal public body and a subordinate, wholly-owned governmental subdivision of the Tribe and has been delegated the right to exercise one or more of the substantial governmental functions of the tribal government.”
Over the past several years, various unions have attempted to organize at the casino. In October 2007, the casino's housekeeping department filed a petition for election with the Board. The Tribe asserted that the Act did not apply to Indian tribes. The Board rejected that conclusion. The Tribe did not seek relief (injunctive or otherwise) in this Court or the courts of appeals. In November 2007, the casino's security department filed a petition for union election. The Board authorized the election. Following negotiations, the petition was withdrawn. In December 2007, the Teamsters union filed a charge with the Board. In September 2008, the parties settled.
In April 2011, the charge giving rise to this litigation was filed when a former casino employee, Susan Lewis, complained to the Board that the Tribe had terminated her for violating the casino's no solicitation policy. The Board's regional director investigated and issued an administrative complaint alleging, inter alia, that the Tribe's no solicitation policy violates the Act. In September 2011, the Tribe filed an answer by special appearance, disputing the Board's jurisdiction over the Tribe.
On October 21, 2011, the Tribe filed a complaint against the Board in this Court. ECF No. 1. The same day, the Tribe filed a motion for a temporary restraining order and preliminary injunction, seeking to enjoin the Board from proceeding. ECF No. 5. On October 28, 2011, the Board filed a motion to dismiss for lack of subject matter jurisdiction. ECF No. 10. The motions of the Tribe and the Board are now pending before the Court. Because the Board's motion is dispositive of the issues presented, it is taken up first.
A motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) may be based on either a facial attack or a factual attack on the allegations of the complaint. Tri–Corp Mgmt. Co. v. Praznik, 33 Fed.Appx. 742, 745 (6th Cir.2002). When the Court reviews a factual attack on subject matter jurisdiction, no presumption of truthfulness applies to the factual allegations of the complaint. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir.1994). A plaintiff must demonstrate jurisdiction in order to survive the motion. Moir v. Greater Cleveland Reg'l Transit Auth., 895 F.2d 266, 269 (6th Cir.1990).
“Since it was first enacted in 1935,” the Supreme Court recounts, Guss v. Utah Labor Relations Bd., 353 U.S. 1, 3, 77 S.Ct. 598, 1 L.Ed.2d 601 (1957) (footnotes omitted) (citing NLRB v. Fainblatt, 306 U.S. 601, 606–07, 59 S.Ct. 668, 83 L.Ed. 1014 (1939)). The Commerce Clause, in turn, provides that “Congress shall have the power ... [t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” U.S. Const. art. 1, § 8, cl. 3.
“The declared purpose of the National Labor Relations Act is to diminish the causes of labor disputes burdening and obstructing interstate and foreign commerce.” Myers v. Bethlehem Shipbuilding, 303 U.S. 41, 44, 58 S.Ct. 459, 82 L.Ed. 638 (1938). To further this objective, “[t]he Act establishes a framework within which the Board is to determine whether proscribed practices would in particular situations adversely affect commerce when judged by the full reach of the constitutional power of Congress.” NLRB v. Reliance Fuel Oil Corp., 371 U.S. 224, 226, 83 S.Ct. 312, 9 L.Ed.2d 279 (1963) (internal quotation marks omitted) (quoting Polish Nat. Alliance of United States of N. Am. v. NLRB, 322 U.S. 643, 648, 64 S.Ct. 1196, 88 L.Ed. 1509 (1944)). Specifically, the Act “defines acts of an employer that shall be deemed ‘unfair labor practices,’ and confers upon a five-member Board certain limited powers to prevent such practices.” Little River Band of Ottawa Indians v. NLRB, 747 F.Supp.2d 872, 885 (W.D.Mich.2010) (internal citation omitted) (citing 29 U.S.C. §§ 153, 155, 158).
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