Soaring Eagle Casino and Resort v. NLRB , 791 F.3d 648 ( 2015 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 15a0134p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
SOARING EAGLE CASINO AND RESORT, an Enterprise ┐
of the Saginaw Chippewa Indian Tribe of Michigan, │
Petitioner/Cross-Respondent, │
│ Nos. 14-2405/2558
│
v. >
│
│
NATIONAL LABOR RELATIONS BOARD, │
Respondent/Cross-Petitioner. │
┘
On Petition for Review and Cross-Application for Enforcement
of an Order of the National Labor Relations Board.
No. 07-CA-053586.
Argued: April 29, 2015
Decided and Filed: July 1, 2015
Before: WHITE, DONALD, and O’MALLEY,* Circuit Judges.
_________________
COUNSEL
ARGUED: William A. Szotkowski, HOGEN ADAMS PLLC, St. Paul, Minnesota, for
Petitioner/Cross-Respondent. Kira D. Vol, NATIONAL LABOR RELATIONS BOARD,
Washington, D.C., for Respondent/Cross-Petitioner. ON BRIEF: William A. Szotkowski,
Jessica Intermill, HOGEN ADAMS PLLC, St. Paul, Minnesota, Sean Reed, SAGINAW
CHIPPEWA INDIAN TRIBE, Mt. Pleasant, Michigan, for Petitioner/Cross-Respondent. Kira
D. Vol, Linda, Dreeben, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for
Respondent/Cross-Petitioner. Jennifer H. Weddle, Tory A. Eid, Maranda S. Compton,
GREENBERG TRAURIG, LLP, Denver, Colorado, Alan E. Schoenfeld, WILMER CUTLER
PICKERING HALE AND DORR LLP, New York, New York, Sarah Krakoff, UNIVERSITY
OF COLORADO LAW SCHOOL, Boulder, Colorado, Lloyd B. Miller, SONOSKY,
CHAMBERS, SACHSE, ENDRESON & PERRY, LLP, Washington, D.C., for Amici Curiae.
*
The Honorable Kathleen M. O’Malley, Circuit Judge for the United States Court of Appeals for the
Federal Circuit, sitting by designation.
1
Nos. 14-2405/2558 Soaring Eagle Casino v. NLRB Page 2
O’MALLEY, J., delivered the opinion of the court which DONALD, J., joined, and
WHITE, J., joined in all but section III(B). WHITE, J. (pp. 35–37), delivered a separate opinion
concurring in part and dissenting in part.
_________________
OPINION
_________________
KATHLEEN M. O’MALLEY, Circuit Judge. This case involves the scope of the National
Labor Relations Board’s (“Board”) jurisdiction over an Indian tribe’s operation of a casino on
reservation land. The Soaring Eagle Casino & Resort (“Casino”), owned and operated by the
Saginaw Chippewa Indian Tribe of Michigan (“the Tribe”), discharged Susan Lewis for violating
the Casino’s no-solicitation policy. The Board found that the Casino’s no-solicitation policy
violated sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act (“NLRA”), 29 U.S.C.
§ 151 et seq., and ordered the Casino to cease and desist from maintaining a no-solicitation rule
and to reinstate Susan Lewis to her former position with back pay and benefits. For the
following reasons, we ENTER JUDGMENT ENFORCING the Board’s Decision and Order,
finding that the Board has jurisdiction over the Casino’s employment practices.
I
A
The Tribe is a federally recognized Indian tribe located in Mount Pleasant, Michigan.
See Indian Entities Recognized and Eligible to Receive Services from the United States Bureau
of Indian Affairs, 80 Fed. Reg. 1942–02 (Jan. 14, 2015); Soaring Eagle Casino & Resort,
359 N.L.R.B. 92, 2013 WL 1646049, at *4 (2013). The Tribe is a successor to two treaties
between the United States of America and the Chippewa Indians of Saginaw, Swan Creek, and
Black River, Michigan, one in 1855 and one in 1864. See 14 Stat. 657 (1864); 11 Stat. 633
(1855). The 1855 Treaty involved a land swap—including land in Isabella County, Michigan—
between the United States and the Indian tribes, liability releases by the tribes, and support
payments from the United States to the tribes for a variety of purposes. 11 Stat. 633. The
1864 Treaty included the release (to the United States) of some of the property reserved to the
tribes in the 1855 Treaty, but, as relevant to the present dispute, also included an agreement by
Nos. 14-2405/2558 Soaring Eagle Casino v. NLRB Page 3
the United States to “set apart for the exclusive use, ownership, and occupancy [by the Tribe]”
property in Isabella County as a reservation. 14 Stat. 657. It is undisputed that the Treaties
preserved the Tribe’s right to exclude non-Indians from living in the territory. Soaring Eagle,
2013 WL 1656049, at *4 & n.5. Unsurprisingly, considering the date of the Treaties—in an era
before the creation of a federal regulatory structure—the Treaties did not mention application of
federal regulations to members of the Tribe or to the Tribe itself.
The property reserved for the “exclusive use, ownership, and occupancy” of the Tribe
eventually became the Isabella Reservation, located within Isabella County and Arenac County
in central Michigan. Id. at *5. The Tribe has over 3,000 members, and is governed by a twelve-
person tribal council which is elected by the Tribe. Id. The tribal council enacts laws applicable
to tribal members, and manages economic development for the Tribe. Id. In 1993, under the
Indian Gaming Regulatory Act, 25 U.S.C. § 2701 et seq. (2012) (“IGRA”), the Tribe and the
State of Michigan entered a compact, subsequently approved by the United States, that allowed
the Tribe to conduct gaming enterprises on the Isabella reservation. Id. The Tribe opened the
Casino on land held in trust for the Tribe by the United States.1 Id. The Tribe enacted its own
gaming code to regulate internal controls and licensing criteria for employees. Id. The Tribe
also created a regulatory body, the Tribal Gaming Commission, to enforce the gaming code. Id.
On November 16, 1993, the Tribe established Soaring Eagle Gaming as a subdivision of
the tribal government chartered to operate and manage the Casino. Id. The tribal council hires
all management-level employees for the Casino, requires frequent reports from managers on the
Casino’s performance, and approves contracts with outside vendors. Id. The tribal council also
decides how to distribute the Casino’s revenue for tribal functions. Id. The Casino is situated on
land held in trust for the Tribe by the United States.
1
Under the General Allotment Act of 1887, ch. 119, 24 Stat. 388, and the Crow Allotment Act of 1920,
ch. 224, 41 Stat. 751, reservation land can fall into three categories: trust land; land held in fee by individual tribe
members; and land held in fee by nonmembers. All reservation land originally was held in trust for the tribe.
Individual tribe members, upon satisfaction of certain conditions, could also receive patents in fee for property
within the reservation. After holding the fee land for twenty-five years, the member allottees could then alienate the
land to nonmembers. See Montana v. United States, 450 U.S. 544, 548 (1981). As discussed later, the manner in
which the reservation land is held has legal significance. See, e.g., Plains Commerce Bank v. Long Family Land
& Cattle Co., 554 U.S. 316, 329 (2008) (“[W]hen the tribe or tribal members convey a parcel of fee land to non-
Indians, [the tribe] loses any former right of absolute and exclusive use and occupation of the conveyed lands. This
necessarily entails the loss of regulatory jurisdiction over the use of the land by others.” (internal citations and
quotation marks omitted) (second alteration in original)).
Nos. 14-2405/2558 Soaring Eagle Casino v. NLRB Page 4
Of the Casino’s approximately 3,000 employees, 7% are members of the Tribe, as are
30% of all management-level employees. Id. at *6. The Casino generates approximately
$250 million in gross annual revenues and attracts over 20,000 customers per year, many of
whom are not members of the Tribe. Id. The Casino advertises using billboards, newspapers,
radio, and television, and competes with privately-owned casinos throughout Michigan. Id. The
revenues from the Casino constitute almost 90% of the Tribe’s income, providing the vast
majority of funding necessary to run the Tribe’s 37 departments and 159 programs. Id. These
programs and departments provide for health administration, social services, tribal police and fire
departments, utilities, a tribal court system, and education for members of the Tribe. Id. The
operation of the Casino allows the Tribe to provide many services previously not available to its
members because it lacks access to exploitable natural resources and has an insufficient tax base.
Portions of the Tribe’s gaming code relevant to employee conduct are contained in the
Soaring Eagle Casino & Resort Associate Handbook (“Handbook”). Section 5.3 of the
Handbook, approved by the tribal council on October 13, 2006, includes a no-solicitation policy
that prevents any solicitation by employees, including solicitation related to union activities, on
Casino property. The Handbook defines “Solicitation” as:
[A]ny verbal or written communication and the distribution or emails, circulars, handbills
or other documents/literature of any kind by any employee or group of employees to
another employee or group of employees that encourages, advocates, demands, or
requests a contribution of money, time, effort, personal involvement, or membership in
any fund . . . or labor organization of any kind or type . . . .
Section 5.3 prohibits, inter alia, the following actions:
2. Employees are prohibited from soliciting in any work area. Employees are also
prohibited from soliciting during their assigned working time or soliciting other
employees during their assigned working time. . . .
3. Employees are prohibited from posting notices, photographs, or other written
materials on bulletin boards or any other Soaring Eagle premises.
The Handbook further provides that “[a]ny person violating this policy will be subject to
disciplinary action up to, and including, termination.”
Nos. 14-2405/2558 Soaring Eagle Casino v. NLRB Page 5
B
Susan Lewis, who is not a member of the Tribe, was intermittently employed as a
housekeeper at the Casino beginning on July 13, 1998. Soaring Eagle, 2013 WL 1656049, at *8.
On September 29, 2009, Lewis engaged in union solicitation activities on behalf of the
International Union, United Automobile, Aerospace, and Agricultural Implement Workers of
America (“the Union”). Id. Lewis’s supervisors warned her that such activities violated the
Handbook, and informed her that further solicitation could lead to adverse employment actions.
Id. Lewis nevertheless again engaged in solicitation activities on August 25, 2010. This time,
Lewis received a written notice informing her of the violation and cautioning her that she could
not engage other employees in discussions about union activities. Id. Management later
observed Lewis handing out wrist bands stating “BAND TOGETHER 2010” to other
housekeepers on October 4, 2010. Id. The Casino then suspended Lewis. Id.
When Lewis returned to work after her suspension, she again engaged another
housekeeper in a discussion about the Union while Lewis and the housekeeper were working.
Id. at *9. On November 15, 2010, the Casino discharged Lewis for engaging in union
solicitation activities in violation of the no-solicitation policy. Id.
C
The Union filed a charge with the Board on April 1, 2011, and the General Counsel for
the Board issued an amended complaint on October 12, 2011. The Union alleged that the Tribe
violated § 8(a)(1) of the NLRA, 29 U.S.C. § 158(a)(1),2 by having a no-solicitation policy and
banning employee discussion of union activities, and §§ 8(a)(1),(3),3 29 U.S.C. §§ 158(a)(1),(3),
by suspending and terminating Lewis for engaging in union solicitation activities. Soaring
Eagle, 2013 WL 1656049, at *4. The Tribe filed its response, contending that the NLRA did not
apply to the Tribe’s activities as a sovereign, and the Board subsequently held a hearing
regarding the Tribe’s liability. Id.
2
29 U.S.C. § 158(a)(1)—“It shall be an unfair labor practice for an employer—(1) to interfere with,
restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title[.]”
3
29 U.S.C. § 158(a)(3)—“It shall be an unfair labor practice for an employer—(3) by discrimination in
regard to hire or tenure of employment or any term or condition of employment to encourage or discourage
membership in any labor organization . . . .”
Nos. 14-2405/2558 Soaring Eagle Casino v. NLRB Page 6
The Administrative Judge (“AJ”) issued his decision and order on March 26, 2012,
finding that the Board had jurisdiction over the Casino and Tribe and that the Tribe violated the
NLRA. Citing the Board’s holding in San Manuel Indian Bingo & Casino, 341 N.L.R.B. 1055
(2004) (adopting in part the Ninth Circuit’s framework in Donovan v. Coeur d’Alene Tribal
Farm, 751 F.2d 1113 (9th Cir. 1985)), aff’d sub nom. San Manuel Indian Bingo & Casino v.
NLRB, 475 F.3d 1306 (D.C. Cir. 2007), the AJ determined that the Board had jurisdiction over
the Tribe and the Casino. Soaring Eagle, 2013 WL 1656049, at *9–13. In particular, the AJ
found that: (1) restricting operations at a casino on reservation land does not interfere with the
Tribe’s right of self-governance; (2) the 1855 and 1864 Treaties only provide for a general right
of exclusion, which is insufficient to bar application of an act of general applicability like the
NLRA; and (3) nothing in the language of the NLRA or its legislative history shows a
congressional intent to exclude Indians from its coverage. Id. The AJ then concluded that “the
Tribe is an employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the
[NLRA].” Id. at *13. Turning to the merits of the complaint, the AJ found that the no-
solicitation policy and the ban on discussions among employees about union activity on Casino
property violates § 8(a)(1) of the NLRA, and Lewis’s suspension and discharge violated
§§ 8(a)(1),(3) of the NLRA.4 Id. at *14–18. The AJ ordered the Tribe to cease and desist its
practices involving the no-solicitation policy, and to reinstate Lewis with appropriate back pay
and benefits. Id. at *18–19.
The Tribe appealed the initial decision to the Board, and a three member panel consisting
of Chairman Gaston Pearce and Members Richard Griffin and Sharon Block affirmed the AJ’s
“rulings, findings, and conclusions,” and adopted the Order with minor modifications.5 Id. at *1
(footnote omitted). The Tribe appealed to this Court, requesting that we reverse the Board’s
jurisdictional analysis, but not challenging the underlying merits decision. On the day of oral
argument, however, the Supreme Court issued its decision in NLRB v. Noel Canning, 134 S. Ct.
2550 (2014), holding that certain of President Obama’s recess appointments to the Board,
4
According to the AJ, “the Tribe did not refute the testimony and other evidence regarding the merits of the
unfair labor practice charges.” Id. at *13.
5
The Board “modified the Order and notice to conform to the violations found and to include a remedial
provision regarding the tax and social security consequences of making discriminatee Susan Lewis whole . . . .” Id.
at *1 n.3.
Nos. 14-2405/2558 Soaring Eagle Casino v. NLRB Page 7
including the appointments of Members Griffin and Block, were unconstitutional. At the request
of the parties, we delayed oral argument to allow the parties to determine how best to proceed in
light of the Noel Canning decision. The Board moved to vacate its Order and remand for further
consideration. We granted the Board’s motion, vacated its initial order, and remanded for further
consideration. Order, Saginaw Chippewa Indian Tribe of Mich. v. NLRB, Nos. 13-1569, -1629
(6th Cir. Aug. 6, 2014), ECF No. 91. On remand, the Board, consisting of Members Philip
Miscimarra, Kent Hirozawa, and Nancy Schiffer, “considered de novo the judge’s decision and
the record . . . . [and] the now-vacated Decision and Order, and [agreed] with the rationale set
forth therein.” Soaring Eagle Casino & Resort, 361 N.L.R.B. 73, 2014 WL 5426873, at *1 (2014).
The Board again adopted the AJ’s Decision and Order with minor modifications, and the Tribe
again appealed.
We have jurisdiction over the appeal under 29 U.S.C. § 160(f) (2012).
II
We apply the two-step test of Chevron U.S.A. Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 842–43 (1984), to the Board’s interpretation of the NLRA. NLRB v. Webcor
Packaging, Inc., 118 F.3d 1115, 1119 (6th Cir. 1997) (citing Holly Farms Corp. v. NLRB,
517 U.S. 392, 409 (1996)). Under Chevron, we first determine “whether Congress has directly
spoken to the precise question at issue.” 467 U.S. at 842. If Congress has spoken directly on the
issue, we give effect to that “expression of congressional will.” Painting Co. v. NLRB, 298 F.3d
492, 499 (6th Cir. 2002); see also Chevron, 467 U.S. 842–43. If Congress has not directly
spoken on the question at issue, we “review[] the Board’s decision solely to assess whether the
Board’s interpretation is based on a permissible interpretation of the statute.” Painting Co.,
298 F.3d at 499. “For the Board to prevail, it need not show that its construction is the best way
to read the statute; rather, courts must respect the Board’s judgment so long as its reading is a
reasonable one.” Holly Farms, 517 U.S. at 409 (emphasis omitted). And, under the Supreme
Court’s recent decision in City of Arlington v. FCC, 133 S. Ct. 1863, 1868 (2013), we apply
Chevron deference to an agency’s interpretation of its own jurisdiction because “the distinction
between ‘jurisdictional’ and ‘nonjurisdictional’ interpretations is a mirage.”
Nos. 14-2405/2558 Soaring Eagle Casino v. NLRB Page 8
We, however, review the Board’s interpretation of federal Indian law de novo. See, e.g.,
Painting Co., 298 F.3d at 500 (“[T]his Circuit’s historical de novo review remains in force for
the Board’s legal conclusions that do not interpret the NLRA.”). We do not defer “to the
Board’s remedial preferences where such preferences potentially trench upon federal statutes and
policies unrelated to the NLRA.” Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 144
(2002). As the D.C. Circuit has noted in considering the application of the NLRA to Indian
tribes, “[b]ecause the Board’s expertise and delegated authority does not relate to federal Indian
law, we need not defer to the Board’s conclusion[s].” San Manuel, 475 F.3d at 1312. We
therefore analyze de novo if the 1855 and 1864 Treaties, or the Tribe’s inherent sovereignty
rights, prevent application of the NLRA to the Casino. See id. (“Therefore, we decide de novo
the implications of tribal sovereignty on the statutory construction question before us.”). Only if
we determine that neither the Treaties nor inherent sovereignty rights prohibit application of the
NLRA in these circumstances must we then perform the Chevron analysis for the Board’s
interpretation of § 152(2).
III
We must first decide if the Casino is subject to the NLRA. The Tribe does not dispute
that, if it is subject to the Act, its no-solicitation policies and treatment of Lewis would violate
provisions in Section 8 of the Act. We thus determine only whether the 1855 and 1864 Treaties,
or federal Indian law and policies, prevent application of the NLRA to a tribal-owned casino
operated on trust land within a reservation, and, if not, whether the Board’s interpretation of
“employer” in 29 U.S.C. § 152(2)6 to include the Casino is a “reasonable one.” Holly Farms,
517 U.S. at 409.
A
The Tribe first argues that the language of the 1855 and 1864 Treaties prevent application
of the NLRA to the Casino’s activities. The Tribe claims that certain Indian law canons of
6
“The term ‘employer’ includes any person acting as an agent of an employer, directly or indirectly, but
shall not include the United States or any wholly owned Government corporation, or any Federal Reserve Bank, or
any State or political subdivision thereof, or any person subject to the Railway Labor Act, as amended from time to
time, or any labor organization (other than when acting as an employer), or anyone acting in the capacity of officer
or agent of such labor organization.” 29 U.S.C. § 152(2).
Nos. 14-2405/2558 Soaring Eagle Casino v. NLRB Page 9
construction require that we read the Treaties to bar enforcement of the Act on tribal properties.
These canons include: (1) “[h]ow the words of the treaty were understood by [the Indians], rather
than their critical meaning, should form the rule of construction,” Worcester v. Georgia, 31 U.S.
(6 Pet.) 515, 582 (1832); (2) “the language used in treaties with the Indians shall never be
construed to their prejudice, if words be made use of which are susceptible of a more extended
meaning than their plain import as connected with the tenor of their treaty,” Keweenaw Bay
Indian Community v. Naftaly, 452 F.3d 514, 523 (6th Cir. 2006) (quoting In re Kansas Indians,
72 U.S. (5 Wall.) 737, 760 (1866)); and (3) “Congress may abrogate Indian treaty rights, but it
must clearly express its intent to do so,” Minnesota v. Mille Lacs Band of Chippewa Indians,
526 U.S. 172, 202 (1999). Amici also point us towards other canons of construction supporting
broad tribal rights, including that “statutes are to be construed liberally in favor of the Indians,
with ambiguous provisions interpreted to their benefit,” Montana v. Blackfeet Tribe of Indians,
471 U.S. 759, 766 (1985), and that “a proper respect both for tribal sovereignty itself and for the
plenary authority of Congress in th[e] area [of Indian affairs] cautions that [courts] tread lightly
in the absence of clear indications of legislative intent,” Merrion v. Jicarilla Apache Tribe,
455 U.S. 130, 149 (1982) (quoting Santa Clara Pueblo v. Martinez, 436 U.S. 49, 60 (1978)).
See, e.g., Brief for the National Congress of American Indians as Amicus Curiae in Support
of Petitioner at 5, Saginaw Chippewa Indian Tribe of Michigan v. NLRB (6th Cir. 2015) (Nos.
14-2405, -2558).
Next, the Tribe argues that the Casino represents a traditional governmental function,
noting that the Supreme Court has recognized previously that tribal gaming forms a central
aspect of tribal governance because of its ability to raise needed revenue for tribes. The Tribe
claims that, because the Saginaw Tribe believed in 1855 and 1864 that the Treaties would protect
the reservation property from government intrusion in perpetuity, the treaties should be
interpreted accordingly. The Tribe further argues that the general right to exclude described in
the language of the 1864 Treaty includes the lesser right to condition entry onto reservation
property by nonmembers of the Tribe. The no-solicitation policy, according to the Tribe,
represents a reasonable assertion of its right to condition entry onto reservation property, and the
NLRA contains no express abrogation of that treaty right.
Nos. 14-2405/2558 Soaring Eagle Casino v. NLRB Page 10
The Board responds that many of the canons of construction noted by the Tribe and
Amici are irrelevant to interpretation of the NLRA, which is not a law explicitly directed at
Indian affairs. The Board argues that treaties do not create tribal powers, but merely preserve
inherent sovereignty not ceded in the treaty. The Board further notes that the language of the
1864 Treaty describes, at best, a broad power to exclude, and not the sort of specific treaty right
necessary to abrogate federal statutes of general applicability. And, the Board points to decisions
of our sister circuits holding that broad descriptions of a power to exclude in a treaty are
insufficient to bar application of generally applicable laws. The Board contends that, if we were
to hold that a broad, general treaty right to exclude prevents application of the NLRA to tribal
activities, there would be no logical limit to a tribe’s use of such treaty language to preclude
application of all non-specific federal laws on tribal land.
B
Although our analysis differs from that employed by the Board or urged by it on appeal,
we ultimately agree with the Board that a general treaty right to exclude, such as the one
described in the 1864 Treaty, alone is insufficient to prevent application of the NLRA to the
Casino. We first consider the scope of the specific treaty rights at issue here. “[T]he starting
point for any analysis of [rights granted by a treaty] is the treaty language itself. The Treaty
must be interpreted in light of the parties’ intentions, with any ambiguities resolved in favor of
the Indians.” Mille Lacs, 526 U.S. at 206. Once the scope of rights reserved by a treaty is
determined, we look to see whether Congress intended to abrogate those rights. Congress has
the power, as the higher sovereign, to abrogate Indian treaty rights, but “[t]here must be clear
evidence that Congress actually considered the conflict between its intended action on the one
hand and Indian treaty rights on the other, and chose to resolve that conflict by abrogating the
treaty.” Id. at 202–03 (citations and quotation marks omitted); see also Santa Clara Pueblo,
436 U.S. at 60 (“[A] proper respect both for tribal sovereignty itself and for the plenary authority
of Congress in this area cautions that we tread lightly in the absence of clear indications of
legislative intent.”). “Congress . . . has the power to ‘abrogate the provisions of an Indian treaty,
though presumably such power will be exercised only when circumstances arise which will not
only justify the government in disregarding the stipulations of the treaty, but may demand, in the
Nos. 14-2405/2558 Soaring Eagle Casino v. NLRB Page 11
interest of the country and the Indians themselves, that it should do so.’” United States v. Dion,
476 U.S. 734, 738 (1986) (quoting Lone Wolf v. Hitchcock, 187 U.S. 553, 566 (1903)).
The Supreme Court demands a clear statement of intent for the abrogation of Indian
treaty rights. Id. at 739–40; see also South Dakota v. Bourland, 508 U.S. 679, 687 (1993)
(“Congress has the power to abrogate Indians’ treaty rights . . . though we usually insist that
Congress clearly express its intent to do so.” (internal citations omitted)).7
The Board argues that this analysis is unnecessary because “a general statute in terms
applying to all persons includes Indians and their property interests,” citing to the Supreme
Court’s statement to that effect in Federal Power Commission v. Tuscarora Indian Nation,
362 U.S. 99, 116 (1960). According to the Board, when Congress passes a law of general
applicability, no further inquiry into its intent with respect to tribal activities on reservation land
is either necessary or appropriate. As other circuits have recognized, however, this language in
Tuscarora does not require application of a general regulatory statute to tribal activities if doing
so would be in derogation of explicit treaty rights. See, e.g., Donovan v. Navajo Forest Prods.
Indus., 692 F.2d 709, 711 (10th Cir. 1982) (“Tuscarora did not, however, involve an Indian
treaty. . . . The Tuscarora rule does not apply to Indians if the application of the general statute
would be in derogation of the Indians’ treaty rights.”); see also Tuscarora, 362 U.S. at 124
(holding that application of “the Federal Power Act, to take such of the lands of the Tuscaroras
as are needed for the Niagara project do not breach the faith of the United States, or any
treaty . . . of the United States with the Tuscarora Indian Nation . . . .”).
In Mille Lacs, for instance, the treaty at issue guaranteed to the Chippewa Tribe the
“privilege of hunting, fishing, and gathering the wild rice, upon the lands, the rivers and the lakes
included in the territory ceded.” 526 U.S. at 177 (quoting 1837 Treaty with the Chippewa,
7 Stat. 536). In an 1842 treaty, the Chippewa then ceded additional land to the government in
7
We analyze these treaty rights separately from our analysis of the inherent rights of sovereignty retained
by the tribes. Strate v. A-1 Contractors, 520 U.S. 438, 449 (1997) (“As the Court made plain in Montana [v. United
States, 450 U.S. 544 (1981)], the general rule and exceptions there announced govern only in the absence of a
delegation of tribal authority by treaty or statute.”).
Nos. 14-2405/2558 Soaring Eagle Casino v. NLRB Page 12
exchange for usufructuary rights.8 Id. When the state of Minnesota sought to enforce its hunting
laws on reservation land in the 1990’s, the tribe sought a declaratory judgment against the state
that, among other things, the tribe retained its usufructuary rights despite Minnesota’s admission
to the Union. Id. at 185. The Supreme Court concluded that the statute admitting Minnesota to
the Union, which was silent regarding Indian rights, failed to abrogate the Chippewa’s
usufructuary rights. Id. at 202–06. Because the Act “makes no mention of Indian treaty rights[,]
it provides no clue that Congress considered the reserved rights of the Chippewa and decided to
abrogate those rights when it passed the Act.” Id. at 203. The Court made clear that Congress
must speak directly when intending to abrogate explicit grants of rights to Indian tribes in
treaties. Id.; see also Bourland, 508 U.S. at 689–93 (stating that, with regard to a “right of
absolute and exclusive use and occupation” of land described in the language of a treaty,
“Congress’[s] explicit reservation of certain rights in the taken area does not operate as an
implicit reservation of all former rights.”).
We, thus, reject the Board’s invitation to ignore the second step of the treaty analysis
simply because the NLRA is a statute of general applicability. Turning to the question of
congressional intent, both the Board and the Tribe agree that the NLRA is entirely silent with
respect to Indians and Indian tribes. The Board also fails to point to any other act of Congress,
or even any legislative history, that would demonstrate Congress’s intent to abrogate the rights
established by the 1855 and 1864 Treaties. Because Congress did not abrogate the terms of
those Treaties, the Board cannot rely on abrogation principles to avoid any rights granted in the
Treaties. We thus turn to the Treaties to determine what rights were reserved.
The Tribe contends that the right to exclude in the Treaties unambiguously gives it
authority to condition the activities of nonmembers on the reservation. There is substantial
authority for that proposition. “Nonmembers who lawfully enter tribal lands remain subject to
the tribe’s power to exclude them. This power necessarily includes the lesser power to place
conditions on entry, on continued presence, or on reservation conduct . . . .” Merrion, 455 U.S.
at 144; cf. Bourland, 508 U.S. at 687–88 (interpreting the “unqualified right of ‘absolute and
8
Usufructuary rights are “right[s] for a certain period to use and enjoy the fruits of another’s property
without damaging or diminishing it, but allowing for any natural deterioration in the property over time.” Black’s
Law Dictionary 1778 (10th ed. 2014).
Nos. 14-2405/2558 Soaring Eagle Casino v. NLRB Page 13
undisturbed use and occupation’ of [ ] reservation lands” recognized in a treaty as “embracing
the implicit ‘power to exclude others’” and including “the authority to control fishing and
hunting on those lands.” (internal citation omitted)); Montana v. United States, 450 U.S. 544,
559 (1981) (same). The Board concedes that—if we reject its argument that treaty rights may be
impliedly rejected by the mere passage of a statute of general applicability—detailed and specific
treaty language may be enough to reserve to a Tribe the type of authority the Tribe here asserts.
The Board contends, however, that the broad, non-specific language of the Treaties at issue is
insufficient to bar application of the NLRA to the Casino.
The Supreme Court has not addressed the precise argument the Board presses here. In
cases analyzing the extent to which Indian treaty rights have been abrogated, the Court was
either faced with circumstances where it found a clear intent by Congress to abrogate whatever
rights to exclusion were in the treaties at issue, or considered language discussing very specific
tribal rights and activity. Compare Mille Lacs, 526 U.S. at 196–201 (upholding the Tribe’s
specific usufructuary treaty rights absent clear statements by Congress abrogating those rights),
with Bourland, 508 U.S. at 689–91 (finding that the specific language in the Flood Control Act
of 1944 and the Cheyenne River Act of 1954 abrogated explicit treaty rights to exclude by
opening the tribal land at issue for public use), Brendale v. Confederated Tribes & Bands of
Yakima Indian Nation, 492 U.S. 408, 421–25 (1989) (opinion announcing in part judgment of the
court) (concluding that a treaty granting reservation property to the Yakima Indian Nation for its
“exclusive use and benefit” was abrogated by the Indian General Allotment Act, such that the
Yakima Indian Nation no longer retained the power to zone property held in fee by nonmembers
on the reservation), and Dion, 476 U.S. at 738–39 (finding that Congress abrogated the Yankton
Sioux Tribe’s treaty right of exclusive control over hunting and fishing on tribal land because
Congress expressed, through the Bald Eagle Protection Act, a “clear and plain intent” to negate
certain aspects of those rights).
Other circuits have addressed the issue, however. In Donovan v. Navajo Forest Products
Industries, the Tenth Circuit analyzed whether a treaty providing that “no persons except those
herein so authorized to do, and except such officers, soldiers, agents and employees of the
government . . . as may be authorized . . . shall ever be permitted to pass over, settle upon, or
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reside in, the territory described in this article,” prevented application of the Occupational Safety
and Health Act (“OSHA”) against tribal business enterprises operating on a reservation.
692 F.2d at 710–11; see also EEOC v. Cherokee Nation, 871 F.2d 937, 938–39 (10th Cir. 1989)
(relying on the analysis in Navajo Forest Products to conclude that the Age Discrimination in
Employment Act did not apply to tribal business enterprise operating on a reservation in light of
treaty language). Based on the language of the treaty, providing for specific exclusion rights
over all persons, the Tenth Circuit refused to find that OSHA abrogated those rights where
Congress had made no explicit statement in those acts limiting application of the treaty or
overriding the tribe’s retained inherent sovereignty rights. Navajo Forest Prods., 692 F.2d at
711–12; see also EEOC, 871 F.2d at 938–39. The Tenth Circuit concluded that:
Absent some expression of such legislative intent, however, we shall not permit
divestiture of the tribal power to manage reservation lands so as to exclude non-
Indians from entering thereon merely on the predicate that federal statutes of
general application apply to Indians just as they do to all other persons (in this
case ‘employers’) unless Indians are expressly excepted therefrom.
Id. at 714 (citing Merrion, 445 U.S. at 146–47); Cherokee Nation, 871 F.2d at 938–39 (finding
no expression of congressional intent to limit tribe’s treaty rights of exclusion in the ADEA).
Other circuits have reached the opposite conclusion in the face of less specific treaty
language. The Seventh Circuit, in Smart v. State Farm Insurance Co., concluded that ERISA
applies to “employee benefits plan[s] established and operated by an Indian Tribe for Tribe
employees,” even in light of a treaty establishing “lands within the exclusive sovereignty of the
[Tribe] under general federal supervision.” 868 F.2d 929, 930, 934 (7th Cir. 1989) (internal
quotation marks omitted) (second alteration in original). The Seventh Circuit distinguished the
Tenth Circuit’s analysis in Navajo Forest Products, on grounds that the Navajo Forest Products
court had rejected application of OSHA to a tribal business because “a specific right would be
compromised, viz., the right to exclude unwanted federal OSHA inspectors.” Id. at 935. The
treaty at issue in Smart, on the other hand, did not “delineate specific rights in a manner
comparable to the treaty in Navajo Forest Products,” and simply conveyed land for the tribe’s
exclusive use. Id. Similarly, in Menominee Tribal Enterprises v. Solis, 601 F.3d 669 (7th Cir.
2010), the Seventh Circuit again found that a broad treaty right did not exempt a tribal business
from the application of a federal regulatory statute, this time OSHA. The treaty at issue in
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Menominee Tribal Enterprises stated, in regards to nonmember access to the reservation, that
“all roads and highways, laid out by authority of law, shall have right of way through the lands of
the said Indians on the same terms as are provided by law for their location through lands of
citizens of the United States.” Id. at 674. Comparing the language of that treaty to the more
specific treaty in Navajo Forest Products, the court concluded that OSHA applied to the tribal
business at issue. Id.
The Ninth Circuit has also considered the applicability of OSHA to a tribal enterprise in
the face of broad treaty protections. U.S. Dep’t of Labor v. Occupational Safety & Health
Review Comm’n, 935 F.2d 182 (9th Cir. 1991) (“US DOL”). The Ninth Circuit found that treaty
language, stating that “[a]ll of which tract shall be set apart . . . for their exclusive use; nor shall
any white person be permitted to reside upon the same without the concurrent permission of the
agent and superintendent,” “sets forth a general right of exclusion.” Id. at 184, 185. Based on its
analysis of similar treaties in United States v. Farris, 624 F.2d 890 (9th Cir. 1980) (finding that
the Organized Crime Control Act applied to tribal enterprises despite a treaty providing for a
general right to exclude), and Confederated Tribes of Warm Springs Reservation v. Kurtz,
691 F.2d 878 (9th Cir. 1982) (finding that federal tax laws applied to a tribe despite a treaty
providing for a general right to exclude), the Ninth Circuit concluded that a general right to
exclude, even if ensconced in a treaty, did not “bar the enforcement of statutes of general
applicability,” absent a more direct conflict between the right of general exclusion and the entry
necessary for enforcement of the statute. USDOL, 935 F.2d at 186–87.
Although, given the protective language employed by the Supreme Court when assessing
tribal treaty rights, the question is a close one, ultimately we conclude that a general right of
exclusion, with no additional specificity, is insufficient to bar application of federal regulatory
statutes of general applicability. Unless there is a direct conflict between a specific right of
exclusion and the entry necessary for effectuating the statutory scheme, we decline to prohibit
application of generally applicable federal regulatory authority to tribes on the existence of such
a treaty right alone. See, e.g., Id.; Smart, 868 F.2d at 935. The 1864 Treaty states that the
Isabella reservation land would be “set apart for the exclusive use, ownership, and occupancy [by
the Tribe].” 14 Stat. 657. Similar to the treaty language in US DOL, the 1864 Treaty language
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establishes a general right of exclusion for the Tribe. The treaty language does not, however,
give the Tribe the specific power to condition authorization and entry of government agents, as
in Navajo Forest Products. Nor does it detail with any level of specificity the types of activities
the Tribe may control or in which it may engage. Thus, as did the Seventh Circuit in Smart, we
find Navajo Forest Products distinguishable. Although, as explained below, the existence of the
Treaties remains relevant to our analysis of the Tribe’s right of inherent sovereignty, we do not
find that the general right to exclude described in the 1855 and 1864 Treaties, standing alone,
bars application of the NLRA to the Casino.
IV
We next turn to whether the Tribe’s inherent sovereignty rights preclude application of
the NLRA to the on-reservation Casino. The Board again latches on to the general statement in
Tuscarora Indian Nation that “a general statute in terms applying to all persons includes Indians
and their property interests.” 362 U.S. at 116. The Board insists that we rely on this Supreme
Court pronouncement to authorize the Board to exercise authority over the Casino.
Alternatively, the Board urges us to adopt the analytical framework set forth by the Ninth Circuit
in Coeur d’Alene, which it contends also would lead to the conclusion that the NLRA may be
applied to the Casino.
After oral argument in the present appeal, a panel of this Court released a published
decision in NLRB v. Little River Band of Ottawa Indians Tribal Government, No. 14-2239, 2015
WL 3556005 (6th Cir. June 9, 2015). In Little River, the majority held that the NLRB could
apply the NLRA “to the operation of a casino resort of the Little River Band of Ottawa Indians”
within a reservation on trust land. Id. at *1, *5–8. The majority reviewed “the law governing
implicit divestiture of tribal sovereignty,” id. at *5, and concluded that, based on “the Montana
framework,” its analysis was “guided by an overarching principle: inherent tribal sovereignty
has a core and a periphery. At the periphery, the power to regulate the activities of non-members
is constrained, extending only so far as ‘necessary to protect tribal self-government or to control
internal relations.’” Id. at *8 (quoting Montana, 450 U.S. at 564). The majority adopted the
language of Tuscarora and the analytical framework of Coeur d’Alene, id. at *8–10, and found
that “the Coeur d’Alene framework accommodates principles of federal and tribal sovereignty,”
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id. at *12. Under the Coeur d’Alene structure, the majority deduced that the NLRA is a statute
of general applicability, that the NLRA does not does not fall within any of the three enumerated
exceptions of Coeur d’Alene, and that the NLRA applies to the Little River casino resort. Id. at
*13–17 (“In sum, we find that this case does not fall within the exceptions to the presumptive
applicability of a general statute outlined in Coeur d’Alene. The NLRA does not undermine the
Band’s right of self-governance in purely intramural matters, and we find no indication that
Congress intended the NLRA not to apply to a tribal government’s operation of tribal
gaming . . . .”). Judge McKeague dissented, arguing that the “majority’s decision impinges on
tribal sovereignty, encroaches on Congress’s plenary and exclusive authority over Indian
affairs, conflicts with Supreme Court precedent, and unwisely creates a circuit split.” Id. at *17
(McKeague, J., dissenting). In particular, Judge McKeague explained that the Board’s use of the
Tuscarora-Coeur d’Alene approach is fraught with problems and inconsistencies—“a house of
cards . . . . [that] collapse[s] when we notice what’s inexplicably overlooked in the fifty-five
years of adding card upon card to a ‘thing said in passing.’” Id. at *18–21, *26.
We are bound by the published decisions of prior panels of this Court. Dingle v. Bioport
Corp., 388 F.3d 209, 215 (6th Cir. 2004); see also Wynne v. Renico, 606 F.3d 867, 875 (6th Cir.
2010) (Martin, Jr., J., concurring) (“However, as this panel is bound by the decisions of a prior
panel, no matter how illogical, I must concur.” (footnote omitted)). The Little River majority
concluded that the NLRA applies to on-reservation casinos operated on trust land. Little River,
2015 WL 3556005, at *13–17. Given the legal framework adopted in Little River and the
breadth of the majority’s holding, we must conclude in this case that the Casino operated by the
Tribe on trust land falls within the scope of the NLRA, and that the NLRB has jurisdiction over
the Casino.9 We do not agree, however, with the Little River majority’s adoption of the Coeur
d’Alene framework, or its analysis of Indian inherent sovereignty rights. We thus set out below
the approach that we believe is most consistent with Supreme Court precedent and Congress’s
supervisory role over the scope of Indian sovereignty, and why we respectfully disagree with the
holding in Little River.
9
There was “no treaty right at issue” in Little River. 2015 WL 3556005, at *13. As discussed in section
III, supra, we do not believe that the 1855 and 1864 Treaties are sufficient, standing alone, to prevent application of
the NLRA to the Casino. Although the fact of the Treaties remains relevant to the sovereignty analysis and, thus,
factually distinguishes this case from Little River, that fact cannot compel a contrary conclusion here given the legal
framework we are compelled by Little River to employ.
Nos. 14-2405/2558 Soaring Eagle Casino v. NLRB Page 18
A
We begin with what we believe is the analytical framework dictated by the Supreme
Court for cases like that before us. Indian tribes have “always been considered as distinct,
independent political communities, retaining their original natural rights,” and, even with their
association under the federal government, did not “surrender [their] independence—[their] right
to self government[—]by associating with a stronger [sovereign], and taking its protection.”
Worcester, 31 U.S. (6 Pet.) at 559, 561. The tribes remain “a separate people, with the power of
regulating their internal and social relations.” United States v. Kagama, 118 U.S. 375, 381–82
(1886). The Supreme Court has recognized that “Indian tribes do retain elements of ‘quasi-
sovereign’ authority after ceding their lands to the United States and announcing their
dependence on the Federal Government.” Oliphant v. Suquamish Indian Tribe, 435 U.S. 191,
208 (1978), superseded by statute as recognized in United States v. Lara, 541 U.S. 193, 199–207
(2004). These retained powers inherent to tribal sovereignty are not limited to just those powers
explicitly recognized in treaties—the tribes are only “prohibited from exercising both those
powers of autonomous states that are expressly terminated by Congress and those powers
inconsistent with their status.” Id. at 208 (internal quotation marks omitted; emphasis in
original).
By agreeing to “come under the territorial sovereignty of the United States,” Indian tribes
are constrained in “their exercise of separate power . . . so as to not conflict with the interests of
this overriding sovereignty.” Id. at 209; see also Kagama, 118 U.S. at 381 (stating that tribes are
no longer “possessed of the full attributes of sovereignty”); Johnson v. M’Intosh, 21 U.S.
(8 Wheat.) 543, 574 (1823). And they have been “necessarily divested [] of some aspects of the
sovereignty which they had previously exercised.” United States v. Wheeler, 435 U.S. 313, 323
(1978), superseded by statute as recognized in Lara, 541 U.S. at 199–207. “The special brand of
sovereignty the tribes retain—both its nature and its extent—rests in the hands of Congress.”
Michigan v. Bay Mills Indian Cmty., 134 S. Ct. 2024, 2037 (2014). The tribes do retain
important inherent rights of sovereignty, however, even after coming under the protective sphere
of the federal government. See Plains Commerce Bank v. Long Family Land & Cattle Co.,
554 U.S. 316, 327 (2008) (noting that the retained sovereignty of the Indian tribes “centers on
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the land held by the tribe and on tribal members within the reservation”). Among these inherent
rights, “unless limited by treaty or statute,” is the “power to determine tribe membership; to
regulate domestic relations among tribe members; and to prescribe rules for the inheritance of
property.” Wheeler, 435 U.S. at 322 n.18 (internal citations omitted). In summarizing these
principles, the Supreme Court has explained that:
The sovereignty that the Indian tribes retain is of a unique and limited character.
It exists only at the sufferance of Congress and is subject to complete defeasance.
But until Congress acts, the tribes retain their existing sovereign powers. In sum,
Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or
statute, or by implication as a necessary result of their dependent status.
Id. at 323.
In other cases, the Supreme Court has identified areas of inherent tribal sovereignty that
go beyond those specified in Wheeler. In Merrion, the Court concluded that the power to
institute a severance tax on oil and gas removed from reservation land was a “fundamental
attribute of sovereignty,” and explained that “[t]he power to tax is an essential attribute of Indian
sovereignty because it is a necessary instrument of self-government and territorial management.”
455 U.S. at 137 (“This power enables a tribal government to raise revenues for its essential
services.”). The Court explained that “[t]o presume that a sovereign forever waives the right to
exercise one of its sovereign powers unless it expressly reserves the right to exercise that power
in a commercial agreement turns the concept of sovereignty on its head . . . .” Id. at 148; see also
Atkinson Trading Co. v. Shirley, 532 U.S. 645, 652 (2001) (explaining that a tribe’s power to tax
comes from not only the tribe’s power to exclude nonmembers from tribal land, but also from the
tribe’s “general authority, as sovereign, to control economic activity within its jurisdiction”
(quoting Merrion, 455 U.S. at 137)). In Iowa Mutual Insurance Co. v. LaPlante, the Court
reiterated the federal government’s “longstanding policy of encouraging tribal self-government,”
and noted that “[t]ribal authority over the activities of non-Indians on reservation lands is an
important part of tribal sovereignty.” 480 U.S. 9, 14, 18 (1987).
The Court’s seminal statement on the extent to which a tribe’s sovereignty extends to the
conduct of nonmembers on reservation land comes from Montana, which the Court itself
subsequently described as the “pathmarking case on the subject.” Nevada v. Hicks, 533 U.S.
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353, 358 (2001) (internal quotation marks omitted); see also Atkinson Trading, 532 U.S. at 650
(describing Montana as “the most exhaustively reasoned of [the] modern cases addressing” an
Indian tribe’s “retained or inherent sovereignty”). The Montana Court analyzed the “sources and
scope of the power of an Indian tribe to regulate hunting and fishing by non-Indians on lands
within its reservation owned in fee simple by non-Indians.” 450 U.S. at 547; see also Atkinson
Trading, 532 U.S. at 647 (“In Montana . . . we held that, with limited exceptions, Indian tribes
lack civil authority over the conduct of nonmembers on non-Indian fee land within a
reservation.”); Montana, 450 U.S. at 557 (describing the “regulatory issue before us” as “a
narrow one”). There, the Court set forth the standards with which to analyze the scope of a
tribe’s authority to regulate the conduct of nonmembers even in the absence of a treaty granting
the tribe reserved rights. 450 U.S. at 566–67; see also Plains Commerce Bank, 554 U.S. at 332
(“Montana and its progeny permit tribal regulation of nonmember conduct inside the reservation
that implicates the tribe’s sovereign interests.” (emphasis in original)). The Court recognized
that “exercise of tribal power beyond what is necessary to protect tribal self-government or to
control internal relations is inconsistent with the dependent status of the tribes, and so cannot
survive without express congressional delegation. Montana, 450 U.S. at 564 (citing Wheeler,
435 U.S. at 323–26). The Court thus acknowledged the “general proposition that the inherent
sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe,”
when such activity occurs on land not owned by a member or held in trust for the tribe. Id. at
565. Importantly, the Court identified two exceptions to this general rule, even with respect to
activities within the reservation that occur on fee land owned by nonmembers:
To be sure, Indian tribes retain inherent sovereign power to exercise some forms
of civil jurisdiction over non-Indians on their reservations, even on non-Indian fee
lands. A tribe may regulate, through taxation, licensing, or other means, the
activities of nonmembers who enter consensual relationships with the tribe or its
members, through commercial dealing, contracts, leases, or other arrangements.
A tribe may also retain inherent power to exercise civil authority over the conduct
of non-Indians on fee lands within its reservation when that conduct threatens or
has some direct effect on the political integrity, the economic security, or the
health or welfare of the tribe.
Id. at 565–66 (internal citations omitted); see also Plains Commerce Bank, 554 U.S. at 335
(“[C]ertain forms of nonmember behavior, even on non-Indian fee land, may sufficiently affect
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the tribe as to justify tribal oversight.”). As neither exception applied to nonmember hunting and
fishing on nonmember fee land, the Court found that the state was permitted to regulate hunting
and fishing on such land. In reaching this conclusion, the Court stressed, however, that the
tribe’s authority as to nonmember hunting or fishing activities was not limited on tribal lands.
See Montana, 450 U.S. at 557 (“The Court of Appeals held that the Tribe may prohibit
nonmembers from hunting or fishing on land belonging to the Tribe or held by the United States
in trust for the Tribe, and with this holding we can readily agree.” (internal citation omitted)).
Although it seemed that Montana created a bright line distinction between the regulation
of nonmember activity when on non-Indian fee land and when on other land within the
reservation—implying that tribes retain full sovereign rights to regulate all conduct on the
latter10—the Supreme Court has since explained that land ownership is but one factor in
assessing the scope of a tribe’s inherent sovereignty. In Hicks, the Court considered whether
tribal courts had jurisdiction over claims asserted under 42 U.S.C. § 1983 against nonmember
state wardens executing search warrants on trust land within the reservation relating to off-
reservation conduct. 533 U.S. at 357. The Court found that the ownership status of the property
where the relevant activity occurred—i.e., whether it is owned by a nonmember in fee or in trust
for the tribe—is “only one factor to consider in determining whether regulation of the activities
of nonmembers is necessary to protect tribal self-government or to control internal relations,”
albeit an important one. Id. at 359–60 (internal quotation marks omitted); id. at 370 (“[T]ribal
ownership [of land] is a factor in the Montana analysis, and a factor significant enough that it
‘may sometimes . . . be [] dispositive’” (quoting Hicks, 533 U.S. at 360)); see also Plains
Commerce Bank, 554 U.S. at 331 (“The status of the land is relevant insofar as it bears on the
application of . . . Montana’s exceptions to [this] case.” (internal citations and quotation marks
omitted) (alterations in original)); Hicks, 533 U.S. at 370. Thus, the Court made clear that,
although a significant factor, “the existence of tribal ownership is not alone enough to support
regulatory jurisdiction over nonmembers.” Hicks, 533 U.S. at 360.
10
Indeed the United States Solicitor General has recently read Montana as creating such a distinction, and
allowing tribes virtually unrestricted authority over nonmembers on trust or Indian-owned fee land. Brief for United
States as Amicus Curiae on Petition for Writ of Certiorari at 9–12, Dollar Gen. Corp. v. Miss. Band of Choctaw
Indians (U.S. 2015) (No. 13-1496), cert. granted, No. 13–1496, 2015 WL 2473345 (U.S. June 15, 2015).
Nos. 14-2405/2558 Soaring Eagle Casino v. NLRB Page 22
Beyond its discussion of the importance of the land’s ownership status to the Montana
analysis, the Hicks Court further explained that the first Montana exception refers “to private
individuals who voluntarily submitted themselves to tribal regulatory jurisdiction by the
arrangements that they (or their employers) entered into.” Id. at 372; see also Plains Commerce
Bank, 554 U.S. at 332 (“We cited four cases in explanation of Montana’s first exception. Each
involved regulation of non-Indian activities on the reservation that had a discernible effect on the
tribe or its members.”). Thus, the Court explained that the Montana framework is the governing
analysis for determining a tribe’s inherent sovereign regulatory powers over nonmembers; that
we must consider both land status and party status in our analysis of: (1) the scope of the inherent
sovereign rights retained by the tribe, and (2) the application of the Montana exceptions; and that
the ownership status of the land is to receive significant weight with respect to both inquiries.
Applying this analysis, the Court concluded that the tribal courts did not have authority to
adjudicate the § 1983 claims, finding that, although the searches were conducted on trust land,
the law enforcement officers were nonmembers attempting to address conduct that occurred
outside the reservation. Hicks, 533 U.S. at 374. And the Court’s most recent pronouncement on
Indian law, in Bay Mills, clarifies that “[a]lthough Congress has plenary authority over tribes,
courts will not lightly assume that Congress in fact intends to undermine Indian self-
government.” 134 S. Ct. at 2032.
We believe this Supreme Court precedent clarifies that, absent a clear statement by
Congress, to determine whether a tribe has the inherent sovereign authority necessary to prevent
application of a federal statute to tribal activity, we apply the analysis set forth in Montana.
Iowa Mut., 480 U.S. at 18 (“Civil jurisdiction over such activities presumptively lies in the tribal
courts unless affirmatively limited by a specific treaty provision or federal statute.”);
Merrion, 455 U.S. at 148 n.14 (recognizing that the “Tribe retains all inherent attributes of
sovereignty that have not been divested by the Federal Government . . . .”); Santa Clara Pueblo,
436 U.S. at 60 (“[A] proper respect both for tribal sovereignty itself and for the plenary authority
of Congress in this area cautions that we tread lightly in the absence of clear indications of
legislative intent.”); Wheeler, 435 U.S. at 323 (“Indian tribes still possess those aspects of
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sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their
dependent status.”).11
Under Montana, we believe our analysis should proceed as follows. We would first
determine whether Congress has demonstrated a clear intent that a statute of general applicability
will apply to the activities of Indian tribes. If so, we would effectuate Congress’s intent, as
Congress has the authority, as the superior sovereign, “to legislate for the Indian tribes in all
matters.” Wheeler, 435 U.S. at 319. If Congress has not so spoken, we would then determine if
the generally applicable federal regulatory statute impinges on the Tribe’s control over its own
members and its own activities. Id. at 322 n.18; see also Montana, 450 U.S. at 564. If it has, the
general regulatory statute will not apply against the Tribe as a sovereign. If we find that the
generally applicable federal statute does not impinge on the Tribe’s right to govern activities of
its members—such as those sovereign rights discussed in Wheeler and Merrion—we would
assume that, generally, “the inherent sovereign powers of an Indian tribe do not extend to the
activities of nonmembers of the tribe.” Montana, 450 U.S. at 565. And we would determine,
then, whether the Tribe has demonstrated that one of the two Montana exceptions to the general
rule—consensual commercial relationships between the Tribe and nonmembers, or conduct
“that . . . threatens or has some direct effect on” aspects of tribal sovereignty—applies. Id. at
565–66; see also Plains Commerce Bank, 554 U.S. at 330 (“The burden rests on the tribe to
establish one of the exceptions to Montana’s general rule”). When analyzing the exceptions, we
would apply a totality of the circumstances analysis, considering factors such as the
member/nonmember distinction, and the location of the conduct at issue (whether on trust or
member fee land, or on nonmember fee land). Hicks, 533 U.S. at 357–60. If one of the
exceptions applies, the generally applicable federal statute should not apply to tribal conduct, and
Congress must amend the statute for it to apply against the Tribe if Congress so desires. If one
of the exceptions does not apply, the Tribe would be subject to the provisions of the federal
statute.
11
The Supreme Court has noted that there is no “inflexible per se rule precluding state jurisdiction over
tribes and tribal members in the absence of express congressional consent.” California v. Cabazon Band of Mission
Indians, 480 U.S. 202, 214–15 & n.17 (1987); see also New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 330–
36 (1983). This case is distinguishable from the state preemption cases, however, as here we must determine the
balance of power between a silent greater sovereign and the lesser sovereign, not the balance of power between two
sovereigns of similar status attempting to assert jurisdiction over the same conduct.
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We agree with the Board that the NLRA is a statute of general applicability, as the
language of the statute indicates that the Act applies generally absent a few specific statutory
exceptions. See, e.g., 29 U.S.C. § 152. And, as the AJ correctly noted, neither the NLRA nor its
legislative history contains any evidence that Congress intended to either cover or exclude
Indians and tribes from the purview of the Act. Soaring Eagle, 2013 WL 1656049, at *13. In
the present case, Lewis is a nonmember of the Tribe who was suspended and dismissed from her
position, so the aspects of inherent sovereignty recognized in Wheeler and Merrion are not
applicable. Accordingly, unless one of the Montana exceptions covers the application of the
NLRA to a tribal-owned casino on trust property, the NLRA should apply to the Casino and
would bar the no-solicitation policy.
We conclude that, under an appropriate analytical framework, the first Montana
exception concerning consensual commercial relationships between the Tribe and nonmembers
should apply to these facts. See, e.g., Dolgencorp, Inc. v. Miss. Band of Choctaw Indians,
746 F.3d 167 (5th Cir. 2014) (applying the Montana framework to conclude that tribal courts
have jurisdiction over claims made by a member against a nonmember due to an alleged tort
committed at a nonmember-owned Dollar General store situated on trust property), cert. granted
sub nom. Dollar Gen. Corp. v. Miss. Band of Choctaw Indians, No. 13–1496, 2015 WL 2473345
(U.S. June 15, 2015). The first Montana exception recognizes that, as a sovereign, the Tribe has
the power to enter into contractual relationships with nonmember individuals and entities for
work on reservation property, whether Indian owned or not, and to place conditions on those
contracts. Montana, 450 U.S. at 565–66. The Tribe therefore has the power to negotiate for
certain conditions in these contracts, with those conditions often representing important policy
goals for the Tribe, such as a tribal member employment preference policy. And, the Tribe often
must seek the provision of services by nonmembers because the Tribe may have insufficient
members to provide all necessary services, or may recognize that it is more efficient to have
contractors provide these services. As the Court recognized in Hicks, the exception applies “to
private individuals who voluntarily submitted themselves to tribal regulatory jurisdiction by the
arrangements that they (or their employers) entered into.” 533 U.S. at 372. Unlike tribal
assertion of criminal jurisdiction over nonmembers, the first Montana exception for civil
jurisdiction recognizes that, when a nonmember voluntarily enters into a commercial relationship
Nos. 14-2405/2558 Soaring Eagle Casino v. NLRB Page 25
with the Tribe, the Tribe as a sovereign itself may choose to place conditions on its contractual
relationships with those nonmembers, and the courts will not annul the private dealings of the
Tribe with nonmembers absent clear statements of Congress’s desire to abrogate those dealings.
Under the totality of the circumstances, we would find that the Casino’s no-solicitation
policy and its suspension and termination of Lewis fall under the first Montana exception. The
Casino itself is not a purely private venture, but it is an important vehicle for the exercise of
tribal sovereignty. The Casino was established as a subdivision of the tribal government, and is
managed by the tribal council. Soaring Eagle, 2013 WL 1656049, at *5. The Casino requires
over 3,000 employees, evidencing a need for nonmember hiring. Id. at *6. But it is mainly
managed by members, who then report to the tribal council. Id. The Casino’s revenue
constitutes 90% of the Tribe’s income, providing for the vast majority of the services provided
by the government to tribal members. Id. Considering the lack of exploitable natural resources
on the Isabella Reservation, the Casino permits the Tribe to provide necessary services for its
members without relying on substantial federal assistance. And, as the Supreme Court has
recognized in the context of severance taxes, the power and ability of a tribal government “to
raise revenues for its essential services” is an important aspect of tribal sovereignty.
Merrion, 455 U.S. at 137.
As for the location of the tribal enterprise, the Court expressly noted in Montana that the
tribe has greater powers to exclude and regulate nonmember hunting and fishing on land held by
the United States in trust for the tribe, 450 U.S. at 557, and in Hicks the Court described the
ownership status of the land to be such a significant factor that it may be dispositive, 533 U.S. at
370. Here, the Casino is situated not just on Isabella Reservation property, but on trust property.
Although the 1855 and 1864 Treaties are not alone sufficient to block application of the NLRA,
the Treaties are relevant to the Tribe’s interest in conditioning entry and employment on its own
lands. The Tribe considered recognition of its continuing control over entry to its property so
important that it was one of the few rights and privileges retained by the Tribe and mentioned
explicitly in the Treaty. And, although Lewis’s status as a nonmember is relevant to whether her
activities encroach upon the sovereignty of the Tribe, that status is precisely what gives rise to an
analysis of the Montana exceptions—we do not even reach the exceptions unless the tribal policy
Nos. 14-2405/2558 Soaring Eagle Casino v. NLRB Page 26
affects nonmembers. The fact that Lewis was a nonmember only initiates the Montana analysis,
it does not resolve it.12
We believe that the weight of these factors supports our conclusion that the NLRA should
not apply to the Casino. We consider relevant: (1) the fact that the Casino is on trust land and is
considered a unit of the Tribe’s government; (2) the importance of the Casino to tribal
governance and its ability to provide member services; and (3) that Lewis (and other
nonmembers) voluntarily entered into an employment relationship with the Tribe. We recognize
that our determination would have inhibited the Board’s desire to apply the NLRA to all
employers not expressly excluded from its reach. But Congress retains the ability to amend the
NLRA to apply explicitly to the Casino, if it so chooses.13 See Bay Mills, 134 S. Ct. at 2037
(“[I]t is fundamentally Congress’s job, not ours, to determine whether or how to limit tribal
immunity.”) We note, however, that to the extent Congress already has acted with respect to
Indian sovereignty and Indian gaming, it has shown a preference for protecting such sovereignty
and placing authority over Indian gaming squarely in the hands of tribes. In the same year
Congress enacted the NLRA, it also passed the Indian Reorganization Act of 1934 (“IRA”),
25 U.S.C. § 461 et seq., to strongly promote Indian sovereignty and economic self-sufficiency,
and to move federal policy away from a goal of assimilation. See New Mexico v. Mescalero
Apache Tribe, 462 U.S. 324, 335 & n.17 (1983) (identifying the IRA, as well as similar statutes
like the Indian Financing Act of 1974, 25 U.S.C. § 1451 et seq., and the Indian Civil Rights Act
of 1968, 25 U.S.C. § 1301 et seq., as supporting tribal self-government by promoting “tribal self-
sufficiency and economic development.”); see also Brief for the National Congress of American
Indians as Amicus Curiae in Support of Petitioner at 11–19, Saginaw Chippewa Indian Tribe of
12
In Atkinson Trading, the Court held that the first Montana exception included a nexus requirement—
“Montana’s consensual relationship exception requires that the tax or regulation imposed by the Indian tribe have a
nexus to the consensual relationship itself.” 532 U.S. at 656. It is clear that the nexus requirement of Atkinson
Trading is met here—the no-solicitation policy is directly related to the employment relationship that Lewis
voluntarily entered with the Casino, and her employment was subject to the terms of that policy. 532 U.S. at 656.
This is not a case where “[a] nonmember’s consensual relationship in one area [ ] does not trigger tribal civil
authority in another . . . .” Id. Lewis entered a contractual relationship with the Casino (and therefore the Tribe),
and her violations of the policy-at-issue directly initiated the present complaint before the Board.
13
The Executive Branch does not appear to agree with the Board’s application of the NLRA to tribal
activities. In a December 7, 2011 letter to the Board, the Department of the Interior expressed its view that tribal
governments, like state and local governments, should be excepted from the NLRA’s reach under the employer
exception in 29 U.S.C. § 152(2). Letter from Patrice H. Kunesh, Deputy Solicitor–Indian Affairs, U.S. Dep’t of
the Interior, to Lafe Soloman, Acting General Counsel, Nat’l Labor Relations Bd. (Dec. 7, 2011) (Appellant App.
155–56).
Nos. 14-2405/2558 Soaring Eagle Casino v. NLRB Page 27
Michigan v. NLRB (6th Cir. 2015) (Nos. 14-2405, -2558). Thus, although Congress was silent
regarding tribes in the NLRA, it was anything but silent regarding its contemporaneously-stated
desire to expand tribal self-governance. And, more recently, Congress enacted the IGRA “to
provide a statutory basis for the operation of gaming by Indian tribes as a means of promoting
tribal economic development, self-sufficiency, and strong tribal governments,” and “to ensure
that the Indian tribe is the primary beneficiary of the gaming operation.” 25 U.S.C. § 2702; see
also id. § 2710(b)(2)(B)(i) (requiring that “net revenues from any tribal gaming” are only be
used, inter alia, “to fund tribal government operations or programs,” “to provide for the general
welfare of the Indian tribe and its members,” and “to promote tribal economic development”); id.
§§ 2710(b)(2)(F),(d)(1)(A)(ii) (describing required contents of tribal ordinances or tribal-state
compacts regarding employment practices of gaming employers); Bay Mills, 134 S. Ct. at 2043
(Sotomayor, J., concurring) (“And tribal business operations are critical to the goals of tribal
self-sufficiency because such enterprises in some cases may be the only means by which a tribe
can raise revenues.” (internal quotation marks omitted)).
For all of these reasons, if writing on a clean slate, we would conclude that, keeping in
mind “a proper respect both for tribal sovereignty itself and for the plenary authority of Congress
in this area,” Santa Clara Pueblo, 436 U.S. at 60, the Tribe has an inherent sovereign right to
control the terms of employment with nonmember employees at the Casino, a purely tribal
enterprise located on trust land.14 The NLRA, a statute of general applicability containing no
expression of congressional intent regarding tribes, should not apply to the Casino and should
not render its no-solicitation policy void.
B
As noted, we believe our analysis is in accordance with the Supreme Court precedents on
which we rely. We now address the Little River majority’s decision to adopt a different
analytical structure—the one the Board outlined in San Manuel Indian Bingo & Casino. In San
Manuel, the Board reconsidered “whether [it] should assert jurisdiction over a commercial
enterprise that is wholly owned and operated by an Indian tribe on the tribe’s reservation,” in
14
Given our analysis of the first Montana exception, we do not reach the second one, despite the Tribe’s
reliance on it.
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particular, a casino. 341 N.L.R.B. at 1055. Prior to San Manuel, the Board had established a
geographical approach to its jurisdiction over Indian tribes—generally, if the tribal enterprise
was located off-reservation, the Board would assert jurisdiction, see, e.g., Sac & Fox Indus., Ltd.,
307 N.L.R.B. 241 (1992), but the Board would not attempt to assert jurisdiction for on-reservation
tribal enterprises, even those on non-Indian fee land, see, e.g., Fort Apache Timber Co.,
226 N.L.R.B. 503 (1976). San Manuel, 341 N.L.R.B. at 1056–57. The Board in San Manuel rejected
its prior geographical approach, concluding that “[t]he location of a tribal enterprise on an Indian
Reservation does not alter our conclusion that [29 U.S.C. § 152(2)] does not compel an exception
for Indian tribes.” Id. at 1058–59. Instead, over a dissent by Member Schaumber, the Board
adopted the Ninth Circuit’s framework in Coeur d’Alene for determining when a statute of
general applicability applies to tribal enterprises. Id. at 1059–61. The Board also added a
discretionary component to the Coeur d’Alene analysis for evaluating whether “policy
considerations militate in favor of or against the assertion of the Board’s discretionary
jurisdiction.” Id. at 1062; see also id. (“Our purpose in undertaking this additional analytical
step is to balance the Board’s interest in effectuating the policies of the Act with its desire to
accommodate the unique status of Indians in our society and legal culture.”). As in the present
appeal, the Board in San Manuel found that application of the Coeur d’Alene framework justified
its assertion of jurisdiction over the Casino. Id. at 1063–64.
The Coeur d’Alene framework represents the Ninth Circuit’s attempt to balance the scope
of generally applicable federal regulatory statutes with the traditional federal concerns of
deference to tribal sovereignty. In Coeur d’Alene, the Ninth Circuit considered whether OSHA
applied to a farm owned and operated by the Coeur d’Alene Tribe in northern Idaho. Coeur
d’Alene, 751 F.2d at 1114–15. The Ninth Circuit began with what it characterized as the general
presumption of Tuscarora that “a general statute in terms applying to all persons includes
Indians and their property interests.” Id. at 1115 (quoting Tuscarora, 362 U.S. at 116). Though
the court recognized that this language from Tuscarora may have been dictum, it still adopted
the language as its guiding principle. Id. The court then identified three exceptions to the
Tuscarora principle:
A federal statute of general applicability that is silent on the issue of applicability
to Indian tribes will not apply to them if: (1) the law touches “exclusive rights of
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self-governance in purely intramural matters”; (2) the application of the law to the
tribe would “abrogate rights guaranteed by Indian treaties”; or (3) there is proof
“by legislative history or some other means that Congress intended [the law] not
to apply to Indians on their reservations . . . .”
Id. at 1116 (quoting Farris, 624 F.2d at 893–94). The Ninth Circuit concluded that OSHA was a
statute of general applicability, the “tribal self-governance” exception did not include “all tribal
business and commercial activity,” and there was no treaty or legislative history demonstrating a
congressional intent that the statute would not apply to Indian activities. Id. at 1116–18. It
found, therefore, that OSHA applied to the tribe’s commercial farming operations. Id. at 1118.
In U.S. Department of Labor v. Occupational Safety & Health Review Commission, 935 F.2d
182, 184–87 (9th Cir. 1991), again applying the Coeur d’Alene framework, the Ninth Circuit
determined that OSHA permitted inspectors to enter tribal property even in light of language in a
treaty granting a general right of exclusion to the tribe. And, the Ninth Circuit has held that the
NLRA applies to a tribal health services organization, finding the NLRA not materially
distinguishable from other federal regulatory statutes of general applicability that the court
previously applied to tribal enterprises. NLRB v. Chapa De Indian Health Program, Inc.,
316 F.3d 995, 998–99 (9th Cir. 2003). Notably, however, the Ninth Circuit did not discuss
Montana or its exceptions in Coeur d’Alene, and did not acknowledge Hicks in its Chapa de
Indian Health Program decision.
As did the Little River majority, other circuits also have adopted the Coeur d’Alene
framework. The Second Circuit adopted the Coeur d’Alene framework when also holding that
OSHA reached tribal enterprises. Reich v. Mashantucket Sand & Gravel, 95 F.3d 174, 177–79
(2d Cir. 1996) (concluding that OSHA applied to a construction business owned by an Indian
tribe). And the Eleventh Circuit in Florida Paraplegic Ass’n v. Miccosukee Tribe of Indians of
Florida, 166 F.3d 1126, 1128–30 (11th Cir. 1999), used the Coeur d’Alene framework to
conclude that Title III of the Americans with Disabilities Act applied to a tribal restaurant and
gaming facility. Similarly, the Seventh Circuit in Smart, under the Coeur d’Alene framework,
held that the Employee Retirement Income Security Act (“ERISA”) applied to tribal employers.
868 F.2d at 932–36; see also Menominee Tribal Enters., 601 F.3d at 671–74 (describing a
framework similar to Coeur d’Alene and concluding that OSHA applied to a tribal sawmill).
Nos. 14-2405/2558 Soaring Eagle Casino v. NLRB Page 30
The Tenth Circuit, on the other hand, has rejected the Coeur d’Alene framework. In
NLRB v. Pueblo San Juan, 280 F.3d 1278 (10th Cir. 2000), the Tenth Circuit concluded that the
NLRA did not prevent a tribal council from enacting a right-to-work ordinance. A panel of the
Tenth Circuit held that §§ 8(a)(3), 14(b) of the NLRA did not prohibit a tribal right-to-work
ordinance because, inter alia: (1) the Tuscarora presumption does not apply because the NLRA
is not a statute of general applicability as it excludes states and territories, and (2) the first
Montana exception protects a tribe’s “inherent sovereign power to exercise some forms of civil
jurisdiction over non-Indians engaged in commercial activities on Indian land.” Id. at 1283–84;
see also id. at 1285 (“As in [Navajo Forest Products], we have been reluctant to apply statutes
which regulate the terms and conditions of employment . . . unless the statute expressly includes
Indian tribes . . . .”). On rehearing en banc, the full court affirmed the panel’s holding that the
NLRA did not bar the tribal council’s right-to-work ordinance. NLRB v. Pueblo of San Juan,
276 F.3d 1186 (10th Cir. 2002) (en banc). The en banc court made clear, however, that “the
general applicability of federal labor law is not at issue,” but merely whether Congress
“divested” the tribe of its inherent sovereign authority to adopt a right-to-work ordinance by
enacting §§ 8(a)(3), 14(b) of the NLRA. Id. at 1191. The court found no express or implied
divestiture of the tribe’s authority to enact the right-to-work ordinance in the NLRA, especially
considering the strong presumptions in favor of respecting broad tribal sovereignty in the face of
congressional silence. Id. at 1194–96 (“The correct presumption is that silence does not work a
divestiture of tribal power.”). The court also distinguished Tuscarora as dealing “solely with
issues of ownership, not with questions pertaining to the tribe’s sovereign authority to govern the
land,” and rejected application of the Tuscarora/Coeur d’Alene framework when the tribe acts as
a sovereign rather than as a property owner. Id. at 1198–1200; see also Merrion, 455 U.S. at
145–46 n.12 (quoting a treatise on Indian law written by the Department of the Interior that
distinguished the rights of tribes as landowners from their rights as sovereigns on reservation
property). The Tenth Circuit has since reiterated this approach to federal regulatory statutes of
general applicability in Dobbs v. Anthem Blue Cross & Blue Shield, 600 F.3d 1275, 1283–85
(10th Cir. 2010), where the court considered whether changes to ERISA’s preemption for
“governmental plan[s]” to include plans established by tribal governments applied retroactively.
The Tenth Circuit again noted that “respect for Indian sovereignty means that federal regulatory
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schemes do not apply to tribal governments exercising their sovereign authority absent express
congressional authorization.” Id. at 1283.
The Eighth Circuit also seems to reject the Coeur d’Alene framework. In EEOC v. Fond
du Lac Heavy Equipment & Construction Co., 986 F.2d 246, 248–50 (8th Cir. 1993), the Eighth
Circuit analyzed whether the Age Discrimination in Employment Act (“ADEA”) applied to a
suit brought by a tribal member against a tribal employer. The Eighth Circuit acknowledged the
broad language in Tuscarora, but concluded that an internal ADEA dispute with a tribal member
affected “the tribe’s specific right of self-government” such that the “general rule of applicability
does not apply.” Id. at 249; see also id. at 248 (“Specific Indian rights will not be deemed to
have been abrogated or limited absent a ‘clear and plain’ congressional intent.” (internal citation
omitted)).
The D.C. Circuit, on review of the Board’s San Manuel analysis, seemed to chart a
different course. The D.C. Circuit noted that the question posed was difficult because Congress
“in all likelihood never contemplated the [NLRA’s] potential application to tribal employers,”
and the fact that there are “conflicting Supreme Court canons of interpretation [those regarding
statutes of general applicability in Tuscarora and those in other cases regarding the need to
protect Indian sovereignty] that are articulated at a fairly high level of generality.” San Manuel,
475 F.3d at 1310. The D.C. Circuit explained that the “gravitational center [of its analysis] . . . is
tribal sovereignty,” and found the Tuscarora presumption to be both potentially dictum and
inconsistent with the Indian canons of construction. Id. at 1311–12. Rather than adopt the
Coeur d’Alene framework, the D.C. Circuit instead stated its role was to balance the scope of
inherent tribal sovereignty with government interests in uniform application of regulatory
statutes. Id. at 1312–13 (“[A] statute of general application can constrain the actions of a tribal
government without at the same time impairing tribal sovereignty.”); see also id. at 1315 (noting
that the Coeur d’Alene framework was “different from the one we employ here”). The D.C.
Circuit recognized that tribal sovereignty is at its strongest when explicitly protected by a treaty
or involving intramural tribal matters, and is at its weakest for off-reservation activities. Id. For
situations between those extremes, the court looked to a “particularized inquiry” that determined
“the extent to which application of the general law will constrain the tribe with respect to its
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governmental functions,” through consideration of a variety of factors, including the location of
the activity in question and the sovereign right at issue. Id. at 1313–15 (“In sum, the Supreme
Court’s decisions reflect an earnest concern for maintaining tribal sovereignty, but they also
recognize that tribal governments engage in a varied range of activities many of which are not
activities we normally associate with governance.”). The court concluded that application of the
NLRA to a casino would not “impinge on the Tribe’s sovereignty enough to indicate a need to
construe the statute narrowly against application to employment at the Casino,” because:
(1) operating a casino is a traditionally commercial, not governmental, function; (2) enactment of
labor legislation was “ancillary to that commercial activity”; and (3) the majority of the
employees were nonmembers. Id. at 1314–15. In conducting this analysis, however, the court
neither discussed the Montana exceptions, nor the Supreme Court’s confirmation in Hicks that
Montana was the “pathmarking” case we are to follow in this area. Hicks, 533 U.S. at 358.
In sum, the Second, Seventh, Ninth, Eleventh, and now the Sixth, Circuits, apply the
Coeur d’Alene framework to determine whether statutes of general applicability apply to Indian
tribes, the Eighth and Tenth Circuits reject it, and the D.C. Circuit applies a fact-intensive
analysis of the tribal activity at issue and a policy inquiry comparing the federal interest in the
regulatory scheme at issue with the federal interest in protecting tribal sovereignty.
We would reject the Coeur d’Alene framework for determining the reach of federal
statutes of general applicability, instead choosing to structure our analysis on the guidance we
glean from Montana and Hicks. Although we agree with the D.C. Circuit that a regulatory
statute’s impact on tribal sovereignty requires a fact-based inquiry, we believe the Supreme
Court has told us how to balance the competing federal interests at issue—by reference to the
Montana exceptions, as further explained in Hicks.
The Coeur d’Alene framework unduly shifts the analysis away from a broad respect for
tribal sovereignty, and the need for a clear statement of congressional intent to abrogate that
sovereignty, and does so based on a single sentence from Tuscarora. Both the Coeur d’Alene
and San Manuel courts recognized that the sentence from Tuscarora upon which Coeur d’Alene
relied may be dictum, and that the Supreme Court has never cited Tuscarora for that proposition,
including in its more recent decisions discussing the scope of inherent tribal sovereignty in the
Nos. 14-2405/2558 Soaring Eagle Casino v. NLRB Page 33
face of federal regulatory activity. We doubt Tuscarora can bear the weight placed on it by the
Coeur d’Alene framework or the strain of the Court’s more recent contrary pronouncements on
Indian law. And, on the foundation of this potentially faulty premise, the Coeur d’Alene
framework structures three fairly limited “exceptions” it finds adequate to respect tribal
sovereignty. The second and third exceptions are fairly obvious and, thus, are less divisive. The
Supreme Court case law discussed above explains that we should not read later congressional
activity to abrogate a specifically articulated treaty right absent a clear statement by Congress.
And, it would make little sense for a court to find that a statute of general applicability would
apply in the face of statements by Congress in the legislative history that the statute should not
apply to Indians. Our concern, instead, is with the first exception, involving “exclusive rights of
self-governance in purely intramural matters.” Coeur d’Alene, 751 F.2d at 1116. Those Circuits
adopting the Coeur d’Alene framework have read this language restrictively, such that “rights of
self-governance” only apply to the limited situations identified in Wheeler, 435 U.S. at 322 n.18.
But, as discussed above, the Supreme Court has identified categories of sovereignty that go
beyond those in Wheeler. See, e.g., Merrion, 453 U.S. at 137 (the power to tax removal of
natural resources from reservation land). And, in Montana and Hicks, the Supreme Court made
clear that a tribe’s right to self-governance and its power to regulate the conduct of nonmembers
extends to consensual commercial relationships with nonmembers. Despite visiting the question
of tribal authority over nonmembers on multiple occasions since Coeur d’Alene was decided in
1985, moreover, the Supreme Court has never cited nor endorsed its reasoning. Ultimately, we
find that the Coeur d’Alene framework, and especially its description of its first exception, overly
constrains tribal sovereignty, fails to respect the historic deference that the Supreme Court has
given to considerations of tribal sovereignty in the absence of congressional intent to the
contrary, and is inconsistent with the Supreme Court directives in Montana and Hicks.
Both the Coeur d’Alene framework and the D.C. Circuit’s analysis in San Manuel also
appear to create an analytical dichotomy between commercial and more traditional governmental
functions of Indian tribes. See Coeur d’Alene, 751 F.2d at 1116–17 (differentiating between
“tribal self-government” and “commercial activity”); San Manuel, 475 F.3d at 1314–15. The
Little River majority characterizes this distinction as one between “core” tribal concerns and
those lying on the “periphery” of tribal sovereignty. 2015 WL 3556005, at *8. We believe this
Nos. 14-2405/2558 Soaring Eagle Casino v. NLRB Page 34
government-commercial or core-periphery distinction distorts the crucial overlap between tribal
commercial development and government activity that is at the heart of the federal policy of self-
determination. See Bay Mills, 134 S. Ct. at 2043 (Sotomayor, J., concurring) (“For tribal gaming
operations cannot be understood as mere profit-making ventures that are wholly separate from
the Tribes’ core governmental functions.”). Indeed, that distinction flies in the face of
congressional pronouncements to the contrary in the IGRA. And, it ignores the fact that the
Supreme Court famously rejected a similar distinction in connection with federal regulation of
states, characterizing this distinction as unworkable. Compare Nat’l League of Cities v. Usery,
426 U.S. 833, 840–52 (1976) (proposing a “traditional governmental functions” standard for
state governmental immunity from federal regulation under the Commerce Clause), with Garcia
v. San Antonio Metro. Transit Auth., 469 U.S. 528, 537–47 (1985) (rejecting the “traditional
governmental functions” standard as “unsound in principle and unworkable in practice”); see
also Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 758–60 (1998) (declining to draw a
distinction between commercial and governmental activities for purposes of tribal sovereign
immunity).
Because we do not believe that the Coeur d’Alene framework properly addresses inherent
tribal sovereignty under governing Supreme Court precedent, we would choose not to adopt that
framework here. We would instead employ the fact-intensive analysis dictated in Montana and
Hicks and conclude that the first Montana exception bars application of the NLRA to the Casino.
And because key aspects of the Tribe’s inherent sovereignty would be encroached upon by
application of the NLRA to the Casino, we would decline to apply it to the Casino absent an
indication of clear congressional intent to do so.
V
Notwithstanding our preferred analytical framework, and in light of our prior panel
decision in Little River, we are bound to conclude that the NLRA applies to the Soaring Eagle
Casino and Resort, and that the Board has jurisdiction over the present dispute. We enter
judgment enforcing the Board’s order and deny the Tribe’s petition for review.
AFFIRMED
Nos. 14-2405/2558 Soaring Eagle Casino v. NLRB Page 35
_____________________________________________________
CONCURRING IN PART AND DISSENTING IN PART
_____________________________________________________
HELENE N. WHITE, Circuit Judge, concurring in part and dissenting in part. I concur
in all but section III(B) of the majority opinion. I agree that Little River was wrongly decided,
that Coeur d’Alene (the reasoning of which Little River adopts) is inconsistent with Supreme
Court precedent and premised on inapplicable dictum, and that application of the NLRA to the
Tribe is inconsistent with traditional notions of tribal sovereignty. I dissent because I believe
that this case is distinguishable from Little River and Coeur d’Alene on the basis that the Tribe
here has treaty rights protecting its on-reservation activities.
The 1864 Treaty provides that the United States agrees to set aside the reservation land
for the Tribe’s “exclusive use, ownership, and occupancy.” 14 Stat. 657 (1864). As the majority
correctly notes, it is well settled that several interpretive canons inform decision making in this
context. Specifically, it is black-letter law that “we interpret Indian treaties to give effect to the
terms as the Indians themselves would have understood them.” Minnesota v. Mille Lacs Band of
Chippewa Indians, 526 U.S. 172, 196 (1999); Choctaw Nation, et al. v. Oklahoma, et al.,
397 U.S. 620, 631 (1970) (“[T]reaties were imposed upon [the Indians] and they had no choice
but to consent. As a consequence, [the Supreme] Court has often held that treaties with the
Indians must be interpreted as they would have understood them, and any doubtful expressions
in them should be resolved in the Indians’ favor.” (internal citations omitted)); Worcester v.
Georgia, 31 U.S. (6 Pet.) 515, 582 (1832) (stating that all that matters is “[h]ow the words of the
treaty were understood by [the Indians at the time they entered into the treaty]”). Accordingly,
“the language used in treaties with the Indians shall never be construed to their prejudice, if
words be made use of which are susceptible of a more extended meaning than their plain import
as connected with the tenor of their treaty.” Keweenaw Bay Indian Cmty. v. Naftaly, 452 F.3d
514, 523 (6th Cir. 2006); Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766 (1985).1
1
Of course, “Congress may abrogate Indian treaty rights, but it must clearly express its intent to do so.”
Mille Lacs, 526 U.S. at 202. This is because “a proper respect both for tribal sovereignty itself and for the plenary
authority of Congress in th[e] area [of Indian affairs] cautions that [courts] tread lightly in the absence of clear
Nos. 14-2405/2558 Soaring Eagle Casino v. NLRB Page 36
The majority does not dispute these canons or how they apply; rather, it finds the Treaty’s
general right of exclusion insufficiently specific to support the Tribe’s claim. True, the Treaty
does not expressly state that the NLRA does not apply to the Tribe; nor does it say that federally
recognized labor unions cannot solicit on tribal land, or that federal authorities may not enter
onto tribal land. But it does not need to.
We must interpret the Treaty the way a member of the Chippewa Tribe would have
understood it in 1864. See Worcester, 31 U.S. (6 Pet.) at 582; see also Mille Lacs, 526 U.S. at
196. As memorialized in the Treaty, in exchange for “relinquishing . . . several townships” to the
federal government, the Tribe secured the “exclusive use, ownership, and occupancy” of the
remnant it retained. 14 Stat. 657 (1864). Each and every tribal signatory signed with an “X,”
indicating, if nothing else, that English was not a well-understood language. Surely, these
signatories who just gave up a significant portion of their homeland, would not have understood
their right to the “exclusive use, ownership, and occupancy” of their remaining land to be
limited, non-specific, or subject to regulation regarding the conditions the Tribe might impose on
those it permitted to enter. On the contrary, the Tribe would reasonably have understood this
provision to mean that the federal government could not dictate, in any way, what the Tribe did
on the land it retained. To parse the specificity of the over 150-year-old Treaty to the Tribe’s
detriment violates recognized canons of interpretation. See, e.g., Naftaly, 452 F.3d at 523. To be
sure, Congress could have, and can, expressly abrogate this right, Mille Lacs, 526 U.S. at 202,
but all agree it has not done so.
Absent Congress’s express direction to the contrary, the Tribe’s treaty-based
exclusionary right is sufficient to preclude application of the NLRA to the Tribe’s on-reservation
Casino. Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982), is instructive. Although
Merrion did not involve a treaty, it exhaustively interpreted the same right at issue here: a tribe’s
right to exclude non-members from tribal lands. Id. at 144. As the majority correctly notes,
Merrion made crystal clear that “[n]onmembers who lawfully enter tribal lands remain subject to
the tribe’s power to exclude them. This power necessarily includes the lesser power to place
conditions on entry, on continued presence, or on reservation conduct. . . .” Id. Thus, whether a
indications of legislative intent.” Merrion, 455 U.S. at 149 (quoting Santa Clara Pueblo v. Martinez, 436 U.S. 49,
60 (1978)). No one suggests that Congress has expressly abrogated the Tribe’s treaty rights in the NLRA.
Nos. 14-2405/2558 Soaring Eagle Casino v. NLRB Page 37
tribe’s right of exclusion is found in its inherent sovereignty or its treaty, a tribe with such a right
also necessarily has the “lesser power” to place conditions on a non-member’s entry. See id.; cf.
South Dakota v. Bourland, 508 U.S. 679, 687–88 (1993) (interpreting a general right of
exclusion as “embracing the implicit power to exclude others”); Montana v. United States,
450 U.S. 544, 559 (1981) (same). Here, the lesser power to place conditions on a non-member’s
entry necessarily includes the power to regulate, without federal interference, the non-member’s
conditions of employment.
That Little River and Coeur d’Alene relegate tribal sovereign rights of exclusion to
history does not justify the abrogation of treaty-based exclusionary rights as well. Here, the
Tribe’s treaty-based right of exclusion is especially pertinent given that its sovereign powers
have been diminished. Indeed, the very purpose of the Treaty was to operate as a bulwark
against any erosion of the Tribe’s sovereign rights that might otherwise occur. In Little River
and Coeur d’Alene, the tribes’ inherent sovereignty was curtailed notwithstanding the absence of
express congressional intent to do so. Where those courts derived the right or authority to make
such a finding is not apparent in the reasoning of the opinions themselves, nor is it apparent from
Supreme Court precedent. In any event, no treaty was involved in those cases and neither court
purported to abrogate a tribe’s treaty-based rights. Thus, although Littler River is controlling as
to the sovereignty issue, it has no bearing on the treaty issue.
In sum, I join in the majority’s conclusion that Little River is wrongly decided but
dictates that the Tribe’s inherent sovereignty cannot itself carry the day. However, the Tribe’s
treaty-based exclusionary right does not suffer the same fate. At bottom, the Treaty matters, and
to find otherwise suggests that the federal government’s agreement with the Tribe is worth no
more than the paper on which it was written. It well may be that when a tribe’s inherent
sovereignty rights are broadly interpreted, its treaty-based exclusionary right (general or specific)
has little work to do. But out of necessity, the treaty-based right assumes a paramount role when
a tribe’s inherent sovereignty has been judicially narrowed, and the treaty should not be narrowly
interpreted. Such is the case here, and thus I respectfully dissent from section III(B) of the
majority opinion.