This commentary discusses the unique nature of Indian sovereignty and how the status of sovereign nations has enabled them to establish workers' compensation laws outside of the laws in the states where the tribes are located. The drafting of a workers' compensation law for the Coushatta Tribe of Louisiana will be examined as a case study.

When the author was approached by the Coushatta Tribe of Louisiana to help them draft a workers'' compensation law that would replace the State's law for the employees of the Coushatta Tribe (including thousands of casino workers), the concept of an independent, sovereign, Indian Nation was, frankly, a revelation. Unfortunately, our knowledge of Indian history rarely goes beyond the facts surrounding the movement of the Indians onto reservations as the European Americans moved into the Western territories. Lost in most of our history and political science classes is the unique nature of the relationship between the government and the American Indians. The United States Constitution places the Indian Tribes on par with foreign nations. Article I, section 8, clause 3 (the Commerce Clause) provides that "Congress shall have the Powerto regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Article II, section 2, clause 2 (the Treaty Clause) gives the President and the Senate the power to make treaties on behalf of the United States, including treaties with Indian tribes.

The early case of Worcester v. Georgia, 6 Pet. 515, 31 515, 8 L. Ed. 483 (1832) is the leading case on the subject of Indian Sovereignty. The gist of the opinion is that Indian nations and tribes are distinct political entities, having territorial boundaries within which their authority is exclusive, that within their borders they have their own government, laws, and courts, and are not subject to the laws of the state in which they are located or to the laws of the United States, except when federal laws are made applicable to them by congressional enactment, and that federal courts are without jurisdiction unless jurisdiction is expressly conferred by congressional enactment. Thus, Congress has plenary power over all Indian tribes, their governments, and their property [U.S. v. Sandoval, 231 28, 34 S. Ct. 1, 58 L. Ed. 107 (1913)]. This power includes the power to "modify or eliminate tribal rights" [South Dakota v. Yankton Sioux Tribe, 522 329, 343, 118 S. Ct. 789, 139 L. Ed. 2d 773 (1998)].

To what extent are federal and state labor laws applicable to Indian tribes? Recognizing that Indian tribes give preference to tribal members in tribal employment, Congress in the Civil Rights Act of 1964 expressly excludes Indian tribes from the definition of "employer" who may not discriminate on the basis of race, color, religion, sex, and national origin [42 U.S.C.S. §§ 2000e-2000e-17 (1988) amending § 703(i) of Title VII of the Civil Rights Act of 1964]. Indian tribes are also expressly excluded from the definition of "employer" under the Americans with Disabilities Act (ADA), which prohibits discrimination on the basis of a disability [42 U.S.C.S. §§ 12101-12213 (1988)]. Unlike Title VII and the ADA, the majority of federal labor statutes are silent as to their applicability to Indian tribes [see, e.g., Occupational Safety and Health Act (OSHA), the Age Discrimination in Employment Act (ADEA), the Employment Retirement Security Act (ERISA), the Fair Labor Standards Act (FLSA), the Family Medical Leave Act (FMLA), and the Labor Management Relations Act (LMRA)]. The federal courts are split as to whether these statutes of general applicability apply to Indian tribes as employers.

State civil laws are generally not applicable to Indian affairs within the territory of an Indian tribe, absent the consent of Congress [Felix S. Cohen, Cohen''s Handbook of Federal Indian Law 259 (Michie 1982)]. This rule was first annunciated in Worcester v. Georgia, 6 Pet. 515, 31 515, 8 L. Ed. 483 (1832). The Supreme Court in Williams v. Lee, 358 U.S. 217, 79 S. Ct. 269, 3 L. Ed. 2d 251 (1959) held that "absent governing Acts of Congress the question has always been whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them" [Williams v. Lee, 358 U.S. 217, 220, 79 S. Ct. 269, 3 L. Ed. 2d 251 (1959)].

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