Drummond Woodsum Attorneys at Law

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February 1, 2015

Happy as we might be with the answer above, a lower federal court decision issued by the U.S. District Court for the Eastern District of Wisconsin is a sobering reminder that the law on whether federal labor and employment laws apply to Indian nations and their enterprises is in a state of flux and that litigating such issues can be a high risk proposition.

On May 6, 2014, U.S. District Court Judge Lynn Adelman issued a decision in EEOC v. Forest County Potawatomi Community, holding that the federal Age Discrimination in Employment Act (ADEA) applies to the tribe "in its capacity as proprietor of Potawatomi Bingo Casino," at least when the claimant is not a member of the tribe.

The court started with what it referred to as a "rule" that federal statutes "of general applicability" are presumed to applied to Indian tribes unless the law would touch upon "exclusive rights of self-governance in purely intramural matters" or abrogate a treaty right, or there is proof that Congress intended the statute not to apply. The validity of this "rule" is questionable. Not all U.S. Courts of Appeals readily accept it, the Supreme Court has not addressed it, and it is arguably inconsistent with the High Court's decisions protective of tribal sovereignty. Stay tuned.

The district court's analysis in Forest County Potawatomi shows how slippery this area can be. It recounted three other cases where courts have refused to apply the ADEA in specific factual settings. Two cases involved age discrimination claims by tribal members against tribal entities, where the courts concluded that "intramural matters" were at stake. (The Forest County Potawatomi case involved a non-member claimant.)

Why, one might ask, should a tribe's on-reservation employment relations with non-members be considered any less "intramural" than its relations with its own members? Differing workplace rules between tribal members and non-tribal members certainly tamper with a tribe's internal affairs.

The third case involved the abrogation of a treaty right. But a careful reading of that case strongly suggests that if application of a federal employment law would harm non-treaty sovereign rights of Indian tribes, the law should not apply. Why should treaty rights receive any more protection than the sovereign authority of Indian nations established by the law of the Supreme Court? Not every tribe has a treaty, but unless abrogated by Congress, every tribe has the protected prerogatives of a sovereign government.

If the Forest County Potawatomi Community had its own age discrimination law and imposition of the ADEA thwarted the tribe's ability to govern on-reservation employment relations under its law, wouldn't this violate the tribe's essential authority as an Indian nation?

These and other issues are explored in depth in Labor and Employment Law in Indian Country, which we jointly published with NARF in 2011. Developments have yet to warrant a new edition.

Related Professional

  • S. Campbell Badger
  • Kaighn Smith

  • Related Practice Areas

  • Tribal Nations Practice Group

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