On July 1, 2015, the United States Court of Appeals for the Sixth Circuit decided Soaring Eagle Casino and Resort v. NLRB. The three-judge panel unanimously concluded that the National Labor Relations Act (NLRA), a generally applicable federal statute, should not apply to Indian tribes. However, by a 2-1 vote, the court held that the NLRA would apply to the tribally-owned and operated casino by the Saginaw Chippewa Tribal Nation on reservation land. The Sixth Circuit ultimately determined that it was bound by its earlier decision in NLRB v. Little River Band of Ottawa Indians Tribal Government, which it decided twenty-two days earlier.
In Little River, a Sixth Circuit panel concluded by a 2-1 vote that the tribal sovereignty of the Little River Band of Ottawa Indians did not preclude applying the NLRA to a tribally-owned casino located on reservation land. The Soaring Eagle court declared that Little River was wrongly decided, and explained that “if writing on a clean slate,” it would have instead followed Supreme Court precedent regarding the applicability of generally applicable laws to Indian tribes. The Soaring Eagle court added that, if it was not bound by Little River, it would have held that the NLRA—which does not contain any congressional intent to apply to Indian tribes—should not apply to tribes.
Following Little River and Soaring Eagle, the Little River Band of Ottawa Indians and the Saginaw Chippewa Tribal Nation petitioned to the Supreme Court of the United States to review the decisions. The tribes asked the Court to overturn the Sixth Circuit’s rulings and align the decisions with Supreme Court precedent. However, the Supreme Court declined to grant review of the cases to address the question of whether the NLRB has authority to assert jurisdiction on reservation land and solicit tribal casino employees to join labor unions.
Under longstanding principles of federal Indian law, the Supreme Court takes the position that Congress must clearly express its intent to limit tribal sovereignty or abrogate treaty rights. The Supreme Court has consistently applied the clear statement rule to determine whether federal statutes apply to Indian tribes. Under the Supreme Court’s analysis, a federal statute that is silent on its application to Indian tribes cannot undermine or limit tribal sovereignty or authorize suit against Indian tribes. The clear statement rule presumes that tribal sovereignty remains intact when a federal statute does not mention Indian tribes in its text or legislative history. In this context, the Supreme Court interprets congressional silence to mean that tribal sovereignty is not abrogated. Furthermore, the Court recognizes the unique nature of Indian tribes, and does not view tribes as private, voluntary organizations. In 2014, the Supreme Court declared the clear statement rule as “an enduring principle of Indian law: Although Congress has plenary authority over tribes, courts will not lightly assume that Congress in fact intends to undermine Indian self-government.”
The Sixth Circuit’s rulings in Little River and Soaring Eagle further widens a circuit split and conflicts with Supreme Court precedent on whether generally applicable federal statues, like the NLRA, apply to Indian tribes. In NLRB v. Pueblo of San Juan, the Tenth Circuit Court of Appeals applied the clear statement rule to find that the NLRA did not prevent the Pueblo Tribe from applying its own “right-to-work law” on its own Indian reservation. The Tenth Circuit explained that when “tribal sovereignty is at stake, the Supreme Court has cautioned that ‘we tread lightly in the absence of clear indications of legislative intent’” to abrogate tribal sovereignty.
The Sixth Circuit’s ruling in Soaring Eagle relies on dictum to determine its outcome, and applying the NLRA to the Tribe is inconsistent with fundamental principles of tribal sovereignty. The decision in Soaring Eagle complicates existing case law, and provides the Supreme Court with an opportunity to address the applicability of generally applicable federal statutes to Indian tribes. In addition, the enactment of the Tribal Labor Sovereignty Act of 2015 by Congress, which would expressly exclude tribes from the NLRA’s definition of employer, would also resolve the issue presented in Soaring Eagle.
The focus of this Article is on the proper application of the NLRA and other generally applicable federal statutes to Indian tribes. The analysis draws on case law discussing the unique status of Indian tribes within the United States and their longstanding relationship with the federal government. In this context, this Article evaluates the application of general federal statutes to Indian tribes and the issue of tribal sovereignty in deciding whether the NLRA should encompass tribally-owned and operated enterprises.
This Article argues that applying the NLRA to Indian tribes is inconsistent with fundamental principles of tribal sovereignty and Supreme Court precedent addressing the application of federal statutes to Indian tribes. This Article further argues that the decision in Soaring Eagle conflicts with laws promoting the self-government of Indian tribes. As a result, Soaring Eagle widens a circuit split on the correct approach to follow when interpreting the applicability of federal statutes to Indian tribes. Because of the circuit split and the existence of many other generally applicable federal statutes, which approach to follow when determining NLRA applicability to Indian tribes demands eventual Supreme Court review or Congressional implementation of an exception that expressly excludes tribes from the Act’s application.
Part I provides a background on tribal sovereignty and inherent powers of Indian tribes. Part II proceeds in two parts. Section A discusses background on the NLRA. Section B discusses the varying approaches used by federal courts in applying generally applicable federal statutes to Indian tribes. Section B includes a discussion on Supreme Court precedent and application of its clear statement rule. Further, Section B argues that this is the correct approach courts should follow when applying generally applicable federal statutes to Indian tribes. In addition, this section includes a discussion of approaches followed by lower courts when facing the same issue. Finally, this section argues that the approaches followed by lower courts are misapplied, undermine sovereign powers possessed by tribes, and are inconsistent with Congress’s plenary power over tribes. Part III describes the factual and historical background of the Saginaw Chippewa Indian Tribe of Michigan. Part IV discusses the Sixth Circuit’s reasoning and ruling in Soaring Eagle Casino and Resort v. NLRB.
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This piece was first published in Law & Inequality: A Journal of Theory and Practice, Volume 35, Issue 1 (35 Law & Ineq. 131).