Back in 2016, one of the first posts I wrote on this blog concerned whether the Fair Labor Standards Act (FLSA) applied to Native American tribes. My conclusion was that there was currently no clear answer in Minnesota. However, we were recently given a bit more clarity. On June 28, 2021, the federal District Court
I’m proud to have graduated from the University of Tulsa College of Law, home of the Native American Law Center. Because of TU’s deep commitment to the study of of Indian law issues, I certainly developed an appreciation to this specialized practice of law and its unique history. On Thursday, September 15, Minnesota swore in its first Native American Justice to our Supreme Court – Justice Anne K. McKeig, as reported by KSTP. Justice McKeig descends from the White Earth Tribe Ojibwe.
Naturally, I knew I just had to find a way to tie in this monumental event with my wage and hour blog. Thus, I felt it appropriate to explore whether the FLSA applies to Native American tribes. There are actually two very distinct issues in that single question: (1) whether the FLSA applies to the Tribe’s business; and (2) whether the Tribe has sovereign immunity with respect to the FLSA. Thus, even if the FLSA does apply to a Tribe, it may have immunity from a private suit for violation of the FLSA, though the courts tend to blur the two together often. This is admittedly a horribly long blog…I admit I may have gotten a bit carried away. However, because of how the courts don’t distinguish the two issues well, I just couldn’t find a good way to make this a two-parter. So, here we go!
Does the Federal Fair Labor Standards Act (FLSA) Apply to a Tribe’s Business?
Maybe. If you were to Google that question, you’ll see a 9th Circuit Court of Appeals case from 2009 (Solis v. Matheson) flood your screen with various degrees of interpretation of the opinion. The 9th Circuit decided that the FLSA does apply to a “retail business located on an Indian reservation and owned by Indian tribal members”. However, this is not super helpful to us here in the Midwest, for several reasons. First, we (MN, AR, IA, MO, SD, ND, NE) are in the 8th Circuit Court of Appeals. We don’t have to follow the 9th Circuit interpretations of the law (for those of you unaware, that includes the state of California and is often 180 degrees different from many other circuits on the same issue). The 8th Circuit only defers to the precedent set by the U.S. Supreme Court, though it certainly can – and will – analyze and rely upon other courts. Thus, as I am always saying, you have to dig deeper (and then dig some more).
For example, in Costello v. Seminole Tribe of Florida (2010), the Middle District of Florida, Tampa Division, held that the FLSA does apply to a Tribe, but doesn’t expressly abrogate its sovereign immunity (the second question). Thus, the Court noted that the Tribe retains immunity absent an effective waiver. In Reich v. Great Lakes Indian Fish and Wildlife Commission (1993), the 7th Circuit Court of Appeals held that Tribal policemen are exempt from the FLSA, but that may not be the case with other employees of Indian agencies (hinting that policemen are different from employees who are engaged in a commercial or service character versus government character). Accordingly, this is not a simple question to answer.
Has The Tribe Waived Its Sovereign Immunity As to the FLSA?
As happened with a prevailing wage case I handled several years ago, a Tribe can actually chose to follow a federal or state law, removing all doubt as to whether sovereign immunity applies. Accordingly, the first thing to do, would be to determine whether your Tribe has indeed waived sovereign immunity as to a FLSA-based claim in its constitution, general administrative policies and procedures, handbook (for example, does it use words like “exempt” and “non-exempt” and/or reference state and/or federal wage and hour laws, or does it have its own wage and hour ordinances?), or other contract. For example, in 2007, the Tribal Court of the Little Traverse Bay Bands of Odawa Indians (LTBB) held in Harrington v. The Little Traverse Bay Bands of Odawa Indians, that the members of the LTBB could have voted for such inclusive waiver of rights in the LTBB Constitution, but did not do so. In Mitchell v. Pequette, (2008), the employee argued to the Leech Lake Band of Ojibwe Tribal Court that the General Administrative Policies and Procedures state the Band “may apply” the FLSA “when applicable”. However, the Tribal Court held that it is permissive rather than mandatory (“shall”), and thus, did not serve to waive its sovereign immunity.
What Have the Federal Courts Ruled on this Issue?
If no waiver is clear, then you’d look to common law (how the courts interpret the law). …
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