Federal Labor Law, Indian Sovereignty, and the Canons of Construction

In 2004 the National Labor Relations Board (Board or NLRB), over a powerful dissent, overruled its 1976 precedent and effectively rewrote the National Labor Relations Act of 1935 (NLRA) to apply, for the first time, to on-reservation Indian Nation government employment (the NLRA has never applied to state or territorial government employment). The D.C. Circuit, in an opinion by President George W. Bush's appointee Judge Janice Rogers Brown, upheld this decision in San Manuel Band of Serrano Mission Indians v. NLRB (2007). The litigation arose in regard to the San Manuel Band's Tribal Casino located on its reservation in Southern California, and a labor dispute involving its employees.This article argues, in part, that the Board and D.C. Circuit decisions in San Manuel were egregiously erroneous; that they violated the Indian law canons; that they ignored, contradicted, or misconstrued numerous Supreme Court precedents; and that only Congress, after careful consideration of the policy issues involved, has any authority to make such a dramatic change in federal labor law as applied to Indian country. But the scope and implications of the article go much further. The San Manuel decisions are profoundly important for what they portend about the future of tribal sovereignty and Indian law generally. They show how lower courts and administrative agencies may sometimes drastically revise fundamental principles affecting entire fields of law, without the guidance or approval of Congress, and in defiance of clear teachings of the Supreme Court.The San Manuel decisions are the culmination of an approach, often referred to as the Tuscarora-Coeur d'Alene doctrine, that lower courts have been building for more than twenty years on the basis of a stray comment by the Supreme Court in its 1960 decision in Federal Power Commission v. Tuscarora Indian Nation (one of the most reviled cases of the discredited Termination Era of Indian law, 1943-61). This doctrine, which the Supreme Court has never approved (and has indeed implicitly rejected many times), threatens to radically undermine the canons guiding the entire field of Indian law. This lower-court doctrine has already affected the interpretation of a wide range of so-called generally applicable federal laws. Yet, as this article shows in a wide-ranging examination of the Indian law canons, the Ninth Circuit Coeur d'Alene decision lending its name to this doctrine was decided the same year (1985) that the Supreme Court curtailed and laid to rest its own troubling statement in Tuscarora that was its seed. During the years since, the Supreme Court has generally adhered to the canons, while lower courts have proceeded to dismantle them in case after case, San Manuel being the latest and most important.The final part of the article draws upon the insights of constitutional case law on federal-state relations, most notably the Supreme Court's 1985 decision in Garcia v. SAMTA. The article argues that Indian Nations deserve the same freedom as states to experiment with government programs that some may disparage as non-"traditional." The taxonomy adopted by the Board and D.C. Circuit in San Manuel artificially distinguishes between approved ("traditional" or "governmental") and disapproved ("commercial") functions. This makes no sense, contradicts Congress's express policy choices, defies the Supreme Court's teachings in Garcia and related cases, and is patronizing to Indian tribes.A sequel to this article analyzes in more depth the origins, doctrinal development, and possible future of the Ninth Circuit Coeur d'Alene decision. See Bryan H. Wildenthal, "How the Ninth Circuit Overruled a Century of Supreme Court Indian Jurisprudence - And Has So Far Gotten Away With It," 2008 Mich. St. L. Rev. 547 (2008) http://ssrn.com/abstract=1099683