In a major blow to tribal sovereignty, an appeals court overturned 30
years of precedent on Friday and subjected tribes to federal labor law.
Tribes aren't mentioned anywhere in the National Labor Relations Act.
But a three-judge panel of
the D.C. Circuit Court of Appeals said the law can be imposed on
tribes and their commercial enterprises, such as casinos, without infringing on
"The total impact on tribal sovereignty at
issue here amounts to some unpredictable, but probably modest,
effect on tribal revenue and the displacement of [tribal] legislative and
executive authority that is secondary to a commercial
undertaking," Judge Janice Brown, an appointee of President Bush,
wrote for the majority.
In the 23-page decision, the court made two broad and potentially negative statements.
The first involved the Indian canons of construction, which have
been used to favor tribes in cases where laws are ambiguous or fail to speak
on a particular matter.
The San Manuel Band of Mission Indian of California, the tribe at issue in
the case, the National Indian Gaming Association and the National Congress of
American Indians had argued that the ambiguity in federal labor law
should favor tribes.
But the D.C. Circuit said the canon only applies to laws "enacted specifically for the
benefit of Indians or for the regulation of Indian affairs"
and not for laws of "general applicability" such as the NLRA.
"We have found no case in
which the Supreme Court applied this principle of pro-Indian
construction when resolving an ambiguity in a statute of general
application," Brown wrote. This could affect tribal disputes under other
general laws, such as the Occupational Safety and Health Act.
The second statement appears far more damaging. The judges characterized
tribal sovereignty not as an inherent power to act as a government but
merely as a means to preserve Indian culture.
principle of tribal sovereignty in American law exists as a matter
of respect for Indian communities," Brown wrote. "It recognizes the
independence of these communities as regards internal affairs,
thereby giving them latitude to maintain traditional customs and
"But tribal sovereignty is not absolute autonomy, permitting a tribe to operate in a
commercial capacity without legal constraint," the court said.
The court acknowledged that the operation of a casino is a tribal government
undertaking. The tribes cited language in the Indian Gaming Regulatory
Act that Congress intended casinos to fund government services and
make tribes more self-sufficient.
But the judges drew a distinction between acts of governance
that only affect tribal members or internal matters and acts that
By opening casinos, marketing them to non-Indians and employing
non-Indians, tribes are stepping beyond "traditional"
notions of self-governance," the court said.
"First, operation of a casino is not a
traditional attribute of self-government," Brown wrote. "Rather, the casino at
issue here is virtually identical to scores of purely commercial
casinos across the country. Second, the vast majority of the
casino's employees and customers are not members of the
tribe, and they live off the reservation."
Henry Duro, the chairman of the San Manuel Band, said the ruling will indeed
impact internal tribal affairs. Revenues from the tribe's gaming enterprise fund
government services and are distributed to tribal members on a per capita basis.
"We believe that these gaming projects help tribes to
fulfill essential governmental functions by providing education, health care,
housing, senior care and other key programs," Duro said. "Those are basic governmental
obligations that could be impacted by this decision."
At a minimum, the tribe will have to rewrite its labor ordinances
to comply with the National Labor Relations Act.
More significantly, the decision puts the tribe's new gaming compact and casino
expansion plans in doubt.
Labor unions and their Democratic allies in the state Legislature
blocked the compact last years because they said it didn't provide enough protections
for employees. The decision gives them more grounds to insist on pro-labor
provisions in the deal, which allows the tribe to add more slot machines.
On a national basis, the D.C. Circuit noted that other circuits have made
somewhat conflicting rulings on tribes and federal labor law.
But by upholding
the National Labor Relation Board's view of tribal sovereignty, the court
left the agency in charge to apply the law to tribes everywhere and to
Alaska Natives and Alaska Native corporations.
With Democrats in charge of Congress, efforts to place a tribal exemption
in the National Labor Relations Act are also doomed.
A bill has already been introduced to expand the law by legalizing "card checks," which
allow unions to organize at a business if a majority of employees
The San Manuel Band could ask for a rehearing by the three-judge panel or
ask a full panel of the D.C. Circuit to hear the case.
The tribe could also petition the Supreme Court for review.
D.C. Circuit Decision:
San Manuel Band v. National Labor Relations Board
(February 9, 2007)
San Manuel Band v NLRB:Briefs,
Decisions and Documents
(Native American Rights Fund)
National Labor Relations Board Decisions:San
Manuel Indian Bingo and Casino
Kuskokwim Health Corporation
San Manuel Band of Mission Indians -
San Manuel Indian Bingo and Casino - http://www.sanmanuel.com
National Labor Relations Board - http://www.nlrb.gov
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