inmate please the court i'd like to reserve four minutes for a bottle the national labor relations board struck down the public sector labor laws little river band of ottawa indians as applied to an instrumentality of the band government little river it's you know resort those laws regulate the tribes relationship with its own employees in its operation of an arm of its own government on its own land for the purpose of raising revenues to fund its government and provide critical services to its own members both the laws and the activities they regulate or at the very core of tribal sovereignty both the laws and the activities they regulate have been authorized and indeed encouraged by congress as important attributes of tribal sovereignty under long established principles of federal indian law a federal agency can not abrogate a tribe sovereignty sovereignty unless congress is clearly authorized to there is no such clear authorization in the national labor relations act far from it the board's order striking down the bans laws must therefore be set aside how would you criticize what is it the d c circuit opinion in the signing of the same case it was the sandman well case and it was i guess our essential position on the sandman well decision is a it's distinguishable and b if it's not distinguishable it's just wrong it's distinguishable because the d c circuit did not have before it as you do and as the board did here a tribal law a full fledged tribal law that regulates every conceivable aspect of public sector label labor law and perhaps most relevant here prohibit strikes in the public sector as many state public sector labor laws do as indeed federal labor law applicable to federal employees does so one consequence of the court's decision here is that under the m l a tribal employees at the little river casino resort have a federal right to strike that means that they can in effect shut down this operation that funds the tribal government that's the national labor relations with the uniform national wall that affects private employers generally speaking our point judge merit it's a private sector labor law which exempts governments that's the central issue in this case the n l r b treats this tribal government the sovereign government which is every bit as pockets unless there is some unless there is some kind of regulation of abuses right now that's not true at all the indian gaming regulatory act comprehensively regulates indian gaming and one of the things it does is to make clear that this is absolutely critical to tribal self determination tribal self government tribal self sufficiency critical aspects of tribal  indian gaming regulatory act also specifically provides what indian tribes can do with revenues from a resort you know there are there seems to be a growing body of case law that takes a law that in the other circuits that doesn't and the absence of any specific mention of indian involves tribal gaming which has this unique status under which goes to the very as i've said goes to the core of tribal sovereignty as a congressionally recognized matter that's the first part of it the second part of it there particular area i don't think it necessarily depends on it but you've got that situation here and it's not necessary to decide that here and all i'm saying is that we think we win under the framework that is most faithful to supreme court precedent which is the one we've set out in our brief and that i'd verted to earlier but we also think we win under the board's own framework which is more or less the framework that you just referred to that's been adopted not necessarily in labor cases but in some other cases by some other think a different kind of operation might lead to the same result i don't think you need to agree with that proposition to rule for us here because indian gaming is unique it is uniquely like that because it's mentioned in a federal established back federal statute because you can even if you agree that people can debate whether the operation of you know a store or a gas station on tribal land constitutes an exercise of tribal sovereignty sophist to trigger the clear expression requirement i just don't think there's any reasonable date debate that indian gaming satisfy that satisfy them precisely because congress has resolved that in this context then does it become irrelevant that the employees in question are for the most part not members of the trap or get the kissing now with catering to a clan tail that is mostly not members of the track judge givens we think it's no more relevant than that a state casino or state lottery or utility or hospital or anything else employs people from across the border in another state serves them as customers and patrons t relevant question for purposes of the interpretive enterprise here is how it affects the sovereignty of the tribe not how it affects its employees or its customers and judge posner made this point in the great lakes case where the ability of the fair labor standards act was at issue in the department of labor said well if you apply it to the tribe it actually helps the employees of this tribal agency and judge posner said well that doesn't matter we're concerned with the sovereignty of the tribe and it's the tribes and trusts that are being harmed by application of the national labor relations at a casino it was not a casino was it was a tribal police force a so sorry a a fish and fish and gaming  wardens so it was a tribal law enforcement the way you read this order does it apply to the tribal members that are working at the casino as well as the non tribal members absolutely the board's position is that there is one work force and it has collective rights and as i read the board's brief it doesn't matter whether there's a single non tribal employee or you know a single tribal employee the n l o applies that's the board's position in this case the board's position is a relatively new one for more than thirty years it took the same position that we take here which is that a tribe is treated like a state for purposes of determining the reach of the national labor relations and if we decide this case in your favor it looks like to me that we're going to be clearly in conflict with the d c circuit in the us and a manual case they say for example first operation of a casino is not a traditional attribute of self government rather a casino issue here is virtually identical to for a purely commercial we're seeing those across the country  that's true here too if i mean well the key distinction it seems to us between the d c circuits the session and ours and our case is that the unfair labor practice at issue there was sort of a garden variety action by the casino allegedly discriminating against one union in favor of another here the unfair the alleged unfair labor practice is the enactment of a set of laws which the whole relationship between the little the little river casino resort and its employees among other things most pertinently here putting strikes as most public sector labor laws do so it seems to us to the extent that the d circuit was engaged in some sort of balancing approach which i think is probably the most reasonable reading of this this issue says you know this is our only use of the most reasonable reading as to what it's is what i it that i've just read you write a book but the d c circuit took into account this sovereign interests at stake which it deemed rather minimal there was no law there as there is here and it took into account the federal interference with those tribal interests which again it speculated were rather minimal but you didn't have in that case and l r b order that has the effect of enabling public sector strikes to shut down the casino and if in effect shut down the tribes government which seems to us a rather different situation so that is a basis we think for distinguishing the decision but i will i will tell you if you don't think it's the single shell we think it's wrong he should we go to we ought to distinguish whether the national labor relations act applies depending on what the national or the unfair labor practice in the particular case involves and i don't see quite how that's the right way to go about it well actually that is that is precisely the board's position in this case because recall the board adopts this framework from the ninth circuit the so called quartet lea framework and there are a number of exceptions the first of which is really just a version of our proposed framework which is that if there is a particular exercise of tribal sovereignty that triggers the clear triggers the clear expression  and they just the board just has a narrow were idea of what constitutes tribal sovereignty so in essence they would say if it's a you know true governmental function with true in quotation marks the police force the prosecutor office the health and human services agency and so on the n l r a would not applied for things like this it wouldn't so they're engaged in their own line drawing exercise our basic submission is twofold first it doesn't make any sense it's not consistent with supreme court precedent to draw any lines at all but second if you do want to draw lines it seems to us wherever that line is drawn tribal gaming hasta fall on the side of the law and that triggers the clear expression requirement and there's no dispute in this case that the national labor relations act has no clear expression of congressional intent to cover tribes am i right that neither of you are asking us to apply the d c circuits analysis here i believe that's correct ms vall can speak for herself obviously but we obviously don't endorse the d c circuits approach all right we'll hear from ms fall and you'll have your a bettle that's probably a good idea may please the court my name is careful and i represent the national labor relations board in this matter but after determining that indian tribes are statutory employers and the national labor relations act the board adopted its salmon while test this test is designed to accommodate core indian sovereignty the government's treaty obligations and the congress has plenary authority over indian affairs in this particular case the board applied that test to determine that it should assert a excuse me jurisdiction over a casino that operates as do other typical commercial non tribal casinos that employs eighty five percent nonmember employees caters primarily to nonmember patrons what would to make what percentage are indian and a nun indian if your order applies to the indian tribe members as well well i think the undertakes an additional discretionary balancing what the board is is looking at there is on the one hand the effects on on core tribal sovereignty and on the other hand the effects because there's another important federal policy at stake here and that's the protection of employees and and effectuate of national labor law and so of course issues like the number of employees who are non members and the number of patrons in the advertising out of quality commercial operations and the fact that this casino competes with non tribal casinos all of those are factors none of them by itself that's positive but the point is that all numbers are relative so if you say gee  really that many tribal members employed here as a percentage of the whole it's probably true but in terms of the employer of indian tribe members this would be fine in a way the biggest employer of tribal members of that tribe would not  i'm not i'm not certain you know how the but if you knew that sorry what else do they do well i'm not familiar with all of their operations but we know that for example within the government the tribe employees and i would have we could have lots of tribes in michigan i can assure you they don't do anything else there isn't anything else to do on the tribal reservation that's the whole point of the indian gaming addict my understanding is that they what i'm trying to figure out assuming that i'm right and you can disagree without now if this indian statute whatever we call it is set aside in favor of the n l r b order then all of a sudden all of the employees of the casino can go on strike right they would then have the ability to strike well i mean of course any employee technically has the ability to dry able to collectively strike and be protected against unfair labor practices right they would be they can shut down the casino over half of the tribe drug it is then cease because of an economic action by a union correct well i think that the premise of that that  not yes and no how can that not affect the sovereignty of the tribe when that's the that's the revenues that they rely upon for tribal member well fair i don't get it well your honor i mean i think there are number of  answers to that as an initial matter sovereignty in this context and in the case law is not really a very precise term of art and so the fact that the indian tribal government is affected does not mean that in part and also the non tribal members and just with respect to your other question i'm i do we do know that there are about eleven hundred fifty government employees but nine hundred of them in the casino so this is not very developed record it was stipulated record but so we know that there are two hundred  fifty other government employees that may be tribal members we don't know about one hundred of the employees at the resort or are trying members just to answer that question but with respect to the casino potentially being subject to strike you know the national labor relations act as judge merit i believe was was referring to applies to all sorts of large i'm sorry to interrupt you but i'm trying to figure out your your wording there are you are you calling on now did you say government employees the position as i as i think i made clear my brief is that with respect to classification for the national labor relations act and for federal indian laws we can see in cases like mashantucket depends on a functional and frenchtown from this circuit for the national labor relations act depends on a functional evaluation of what the employee does so we're looking at whether their functions are governmental the tribe we really see to be bully i mean you may be you're tribe claims that the fact that a law is tribal laws at issue would make our standard in a pleasurable i think it is the claim and again that's a question of labeling because in that law the casino is in fact labeled a government enterprise and its employees are labeled government employees and that's just a fact of the record the fact of how the f e c is written however again the board examines in this court examines in some more context the functional the functions of the employee in the factors is that why you disagree with it or maybe you don't disagree with i don't know i mean that the d c circuit i think in the end the d c circuit test as as i as i believe the pinion discuss is near the end of its opinion considers essentially all of the same applies right yes you look at the end result of d c but you're not advocating their approach i'm not advocating the district of columbia circuit approach i'm just pointing out that i think it is very consistent with the board and the other  litigation strategy it when the board is in the situation in which she found herself and the petitioner has sopped to be in a circuit you know it sought to be in the sixth circuit when there is no governing circuit precedent i guess the board always sticks to its interpretation is opposed to adopting the analytical prime work of one circuit or another that might have an applicable law is that right it well might because of the possibility that you will be in another circuit tomorrow is that right well the boy i think john is referring to the in the board does not acquiesced in the circuit in this case of course the board deliberately followed and adopted the standard that has been used by the mt circuit the seventh circuit the second circuit and the eleventh circuit and which arguably some other circuits have type standard so i think in this particular case the board is actually consistent with the majority of the circuit court to that have considered the intersection so in this case it makes since as a matter of general strategy for the board suggested that this test which as i as i mentioned the majority of circuit courts have considered this kind of general federal statute and its intersection with with indian law have i have used an element of this test although of course the board's test as the of under the national labor relations act if if if you're referring to that there's of course the sandman well decision in the district of columbia circuit and then there are now in litigation in the courts of appeals three board's sandman while test and the board asserts jurisdiction in both cases under that test those cases raise treaty issues that aren't present in this case where there is not a treaty opinion all of them oh i'm sorry when i scuse me i realize the confusion when i say the sandman while standard i'm referring to the boards as sandman while standard which is the board's modification an augmentation of of the standard broadly accepted among four five circuit courts of appeal but which is distinct as as your honor pointed out the d c circuit in salmon while specifically declined to follow that standard however as i said i think it it not only considered many of the same factors relevant if not all of the same factors but i think a key thing that the that the district of columbia opinion does possibly even more than many of the opinions that apply  between the ninth circuit approach and the tenth circuit then that's those are the two sides carved out here right i mean first of all i would say it's the ninth second seventh eleventh circuit approach adopted in some circumstances by the eighth third i think federal claims court and in certain circumstances by the tense circuit but of course yes my opposing counsel is relying on the portion of tenth circuit precedent that relates to sovereign activities of a tribe so it's a it's a carve out of one circuits interpretation of the relevant law here is that a cure yes is probably an easy answer that i should know but what is the national policy if you know that would apply as you argue this law of general political belittle you to indian tribes as a form of sort of quasi government but not apply it to sovereign governments like states well with respect i can speak to the national labor relations act of course section two to the act specifically that it's an easy answer specifically exempt state governments and said i mean this guy what's in the national policy in doing so and applying it to one form of a governmental employee and to another well congress is and it went out of its way to not only adopt in the current standard but adding this thing in one i was aimed at i don't know i don't hear what the board thinks i'm asking if you know or have an opinion why would congress differentiate between states and indian tribes because that's what you're saying they did here implicitly not expressly in the national labor relations act right well i and i think i think the quick answer is that we we don't know why congress did it but that the board is tasked with in forcing an effectuating and you know filling out national labor policy and it made a specific it didn't broadly apply the act to indian tribes it distinguish between indian tribes acting as governments as sovereigns like a state and it and it does not apply the act in those cases but it found that when you have a multifaceted sophisticated commercial and doesn't apply to states in gauging in a proprietary activity that's the distinction you're trying to d that is simply i don't know what the board's position would be on that but the axim plea precludes that what the board has said is the board has recognized the policy of not applying to sovereign governments but it has and for a government it can address like an indian tribe it has made the distinction between a sovereign activity and a commercial activity like this one and i see my time is up by the way if it had you get through the question i have answered that question yes thank you friend conceded that casino workers are government employees and while she tried to backtrack from that i just don't think there's any question that she was right the first time employees at the little river casino resort are no less government employees than state employees there are no less government employees than the employee of a tribal police force or prosecutor's office or tribal court and the n l r b agrees that in those circumstances the n l r a does not apply the little river because so then you have to they have to then go to this proprietary nonproprietary activity test right i think that's the core of their position and your argument is that it's distinguished from all these other circuits because the indian gaming act treats casinos differently because they replaced tax revenues as the economic base of all indian tribes are most absolutely right that basically the bottom line  underlying policy argument i think the way the indian gaming regulatory act interacts with the national labor relations act in this case is as follows the basic interpretive framework whether you take our position or the board's position which is really just   our version of our position is that when you're considering whether a federal statute applies to an indian tribe as a tribe you ask are there inherent sovereign interests at stake are those the tribal activities in play would application of the federal law interfere with those tribal activities and if so is there some a clear expression of congressional intent to reflect the congressman to reach them what it does is it seems to us confirm once and for all that there is a tribal interest at stake of sufficient magnitude to trigger the clear expression requirement that's what we think the role of a good drive winning the business of manufacturing cars you would say that the national labor relations act does not apply for the same reasons i would say that i think you have i think this is a stronger case for us as i've said before because there is no federal statute that comprehensively regulates auto you know automobile manufacturing on tribal property what would you say is a situation commercial situation that a tribe could conceive of and go in business for that you would not tribal sovereignty well for many years for nearly thirty years the board itself through a distinction between on reservation and off reservation activities i'm not going to endorse that it's certainly a plausible distinction it's there are complications i think but as a general proposition there are certainly some some language in supreme court decisions on tribal sovereignty that suggest that there is a lesser sovereign interest in activities that take place off tribal property but of course that's not something the court house to consider here the the trap and the operation of any other commercial enterprise backtrack that that funds the operation of the trap correct i think i think you would you might be able to reach the same conclusion in a case where some other revenue generating activity of a tribal land was it issue well i mean you know it doesn't matter whether it's carcer gas stations or you know if the travis is doing it to make money it helps support the functioning of the trap that's an important part of the case but i think it's at least as an important part of the case that you have congressional findings explicitly timing indian gaming to tribal self sufficien self reliance self determination and self government but congressional recognition didn't make it more and worked didn't make it probably the casinos may well be vital in the sense that they're successful but theoretically any other successful commercial activity has that same potential waste is just chosen not to regulated or time i would agree with that and as i've said i think the key role that it plays in this case is that whatever debates one is engaged in about whether the tribal activity here is sufficiently sovereign to trigger the clear expression requirement that debate has been resolved by in all sorts of different areas and when we're assessing whether it was implied it has to be undertaken in the context of the indian gaming act which specifically says that this is part of the sovereign activities of a tribe there isn't any corresponding statute that deals with the hypothetical automobile plant on indian lands or the or the the sawmill on indian lands as addressed and on the surface there just isn't anything there that arguably one way or the other sheds light on what congress implied lee meant right i've got nothing to add to that other than to say i agree with it completely it just seems to me that before the national labor relations act can be interpreted to allow a strike at the revenue generating enterprise of a sovereign tribal government that would have the effect could have the effect of shutting down the government it's not too much to ask that congress speak clearly and it's undisputed in this case a indian tribe is exempt from the security i'm not sure whether there are any cases i'm not sure what if anything you would argue that they are are not well i would say if you're talking about the tribe as a try as opposed to individual indians who are of course subject to general laws the same way anyone else's but you're talking about the tribe as a regulated entity i don't know what the various securities laws say if anything about  but i would say you apply the same analysis well it's interesting enough the the wall may not be dealing with stock there's a whole body of case law that's starting to evolve as to whether or when tribes sign notes they can be indians were weren't protected by sovereign immunity and so that's that's a an evolving part of the law right now nobody knows but because the casinos fund these casino the indian tribes fund always casinos by debt and with the courts all just i mean try tribal immunity is a separate but related issue on the subject of tribal immunity the supreme court has made clear that there is no distinction between governmental and commercial functions and said that's for congress to decide that's exactly our position here i know you were led down that path but i think we're out track thank you very much for your argument it will consider the case carefully