Labor and Employment Law in Indian Country
This course examines the governance of labor and employment relations in Indian country. Students will learn the fundamental principles of federal Indian law that inform the subject area. This includes the nature of tribal sovereignty and the power of Indian tribes to govern labor and employment relations within their territories and the comparative power of the federal and state governments to govern these relations. Tribal sovereignty is explored in its “affirmative” form; that is, to support the enactment and implementation of tribal laws, and in its “defensive” form; that is, to defend against the imposition of state and federal laws.
The federal circuit courts of appeals are split on the standard that determines whether a general federal labor or employment law that fails to reference Indian tribes will apply to tribes. That issue will be explored in some detail because it will eventually go the Supreme Court. When the Court finally decides this issue, it will significantly delineate the distribution of power over Indian affairs between Congress and the federal courts.
Students will also learn what individual tribes have done with respect to the enactment and implementation of laws to govern labor and employment relations and the policy choices tribal governments face in that regard. The course ends with an assessment of Native American employment preference laws.
There are no prerequisites. Readings will be drawn from the required text, Labor and Employment Law in Indian Country (2022 edition), written by Professor Kaighn Smith Jr.