The National Labor Relations Act (NLRA), which does not mention tribes, gives employees the right to collectively bargain with employers, and imposes on employers the obligation to bargain with employees in good faith. Section 2(2) of the NLRA defines the term "employer" to exclude "the United States or any wholly owned government corporation or any state or political subdivision thereof." In 1976, the National Labor Relations Board (NLRB), the agency responsible for enforcing the NLRA, concluded that tribal employers were "implicitly" exempted from the NLRA as governmental entities. Later, it decided the exemption did not extend to tribal employers located off tribal land. 511 and S. 248 , would amend the NLRA's definition of employer to exclude, "any enterprise or institution owned and operated by an Indian tribe located on its Indian lands" effectively reinstating the Board's position before 2004. The remainder of this report discusses how the NLRB developed its current position on applying the NLRA to tribal casinos, considers how it has applied the NLRA since 2004, and discusses how the Tribal Labor Sovereignty Act of 2015 relates to the history of the NLRB applying the NLRA to tribal enterprises. San Manuel Indian Bingo and Casino

The NLRB continued to assert jurisdiction based on whether the tribal employer was located on or off a reservation until 2004, when it decided San Manuel Indian Bingo and Casino . The casino appealed the NLRB's decision to the U.S. Court of Appeals for the D.C. Circuit in San Manuel Indian Bingo and Casino v. NLRB . NLRB Enforcement of the NLRA Against Tribal Casinos since San Manuel

Despite the fact that the court of appeals upheld the NLRB's decision in San Manuel based on different reasoning, the NLRB has used its reasoning based on the Tuscarora / Coeur d'Alene test from its San Manuel decision in subsequent enforcement actions. However, the panel made clear that but for the Little River Band precedent, it would have applied a different analysis and reached a different result. In Little River Band , the Tribe argued that application of the NLRA would violate its inherent sovereignty and right of self-government. The U.S. Court of Appeals for the Sixth Circuit, bound by the precedent of Little River Band , upheld application of the NLRA to the casino. The Tribal Labor Sovereignty Act of 2015

The Tribal Labor Sovereignty Act of 2015, H.R. In effect, it seems that the bill would reinstate a location-based test similar to the one that the Board overturned in San Manuel .
The National Labor Relations Act (NLRA) provides workers with the right to collectively bargain with employers and requires employers to bargain in good faith. The NLRA excludes from the definition of the term "employer" "the United States or any wholly owned government corporation or any state or political subdivision thereof." The NLRA does not specify whether Indian tribal employers are covered.
Prior to 2004, the National Labor Relations Board (NLRB), the agency responsible for enforcing the NLRA, followed a rule that excluded from the NLRA tribal employers located on tribal land, but included tribal employers located off of tribal land. In 2004, in San Manuel Indian Bingo and Casino, the NLRB adopted a new position and held that the NLRA applied to all tribal employers, regardless of their location, unless its application would interfere with treaty rights or quintessentially governmental functions. In San Manuel Indian Bingo and Casino v. NLRB, the U.S. Court of Appeals for the D.C. Circuit upheld the NLRB's application of the NLRA to the tribal casino.
In recent years, the NLRB has asserted jurisdiction over a number of tribal casinos, relying on its analysis in San Manuel. In June 2015, in Little River Band of Ottawa Indians v. NLRB, the U.S. Court of Appeals for the Sixth Circuit upheld the NLRB's reasoning and application of the NLRA to a tribal casino, despite the fact that the tribe had adopted its own labor ordinance to regulate tribal labor relations and asserted that application of the NLRA would impair this exercise of its inherent sovereignty. In July 2015, the same court considered whether the NLRA applied to another tribe's casino. Because the panel was bound to follow the precedent of Little River Band, it upheld the NLRB assertion of jurisdiction. However, the panel indicated that it would have applied a different analysis and reached a different result, but for the Little River Band precedent.
The Tribal Labor Sovereignty Act of 2015, H.R. 511 and S. 248, would amend the NLRA's definition of employer to exclude "any enterprise or institution owned and operated by an Indian tribe located on its Indian lands." In effect, it appears that the bills would reinstate a location-based test similar to the one used by the NLRB prior to 2004, when it decided San Manuel.