Law | Opinion

Opinion:: Federal courts fail to protect sovereignty

Monday, March 19, 2007

"In San Manuel Band v. National Labor Relations Board decided last month, the D.C. Circuit Court of Appeals departed from the canons of interpretation and held that the National Labor Relations Act can be imposed on tribes and their commercial enterprises despite the facts that tribes are nowhere mentioned in the act and that it "was enacted by a Congress that in all likelihood never contemplated the statute's potential application to tribal employers." It further disparaged tribal sovereignty by declaring that it simply "exists as a matter of respect for Indian communities, ... thereby giving them latitude to maintain traditional customs and practices."

And, in Agua Caliente Band v. Fair Political Practices Commission, decided last December, the California Supreme Court reached an even more egregious conclusion. The court affirmed that California courts have the power to abrogate tribal sovereign immunity and hear a case involving a tribe sued for its refusal to comply with the state's Political Reform Act.

The tribe argued that its sovereign status afforded it immunity, but the California Supreme Court held that since Congress had "not granted the tribe immunity from this suit," it could therefore proceed. Under the canons of interpretation, the court got it entirely backward: Tribes are subject to state suit only when Congress expressly declares that they are, and Congress has expressed no such intention.

In both of these cases, Congress could pass legislation subjecting tribes to the provisions of the National Labor Relations Act or state campaign-reform laws. But Congress has not. Until it does so clearly and unambiguously, the lower courts should act to protect the tribes from the wishes of those who have been unable to persuade Congress to pass such measures. And, when the lower courts fail in their duty to the tribes, the Supreme Court must intervene, repudiate their departures from clear and controlling precedents, and perform its historic role of protecting tribal interests and sovereignty by reversing obvious judicial error."

Get the Story:
Ralph A. Rossum: Court must affirm tribes' sovereignty (The Sacramento Bee 3/18)
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D.C. Circuit Decision:
San Manuel Band v. National Labor Relations Board (February 9, 2007)

California Supreme Court Decision:
Agua Caliente Band etc. v. Super. Ct (December 21, 2006)