San Manuel Indian Bingo & Casino v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 6, 2006 Decided February 9, 2007

No. 05-1392

SAN MANUEL INDIAN BINGO AND CASINO AND

SAN MANUEL BAND OF SERRANO MISSION INDIANS,

PETITIONERS

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

UNITE HERE! AND

STATE OF CONNECTICUT,

INTERVENORS

Consolidated with

05-1432

On Petition for Review and Cross-Application of

Enforcement of an Order of the

National Labor Relations Board

Jerome L. Levine argued the cause for petitioners. With

him on the briefs were Lynn E. Calkins, Frank R. Lawrence, and

Todd D. Steenson.

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John H. Dossett, Charles A. Hobbs, Seth P. Waxman,

Edward C. DuMont, Richard A. Guest, George Forman, Dale

T. White, Kaighn Smith, Jr., and C. Bryant Rogers were on the

brief for amici Indian Tribes and Tribal Organizations in support

of petitioner and reversal of the NLRB’s judgment.

David A. Fleischer, Senior Attorney, National Labor

Relations Board, argued the cause for respondent. With him on

the brief were Ronald E. Meisburg, General Counsel, John H.

Ferguson, Associate General Counsel, Aileen A. Armstrong,

Deputy Associate General Counsel, and Meredith L. Jason,

Attorney.

Richard G. McCracken argued the cause and filed the brief

for intervenor UNITE HERE! International Union.

Richard Blumenthal, Attorney General, Attorney General’s

Office for the State of Connecticut, and Richard T. Sponzo,

Assistant Attorney General, were on the brief for intervenor

State of Connecticut.

Before: GARLAND and BROWN, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge BROWN.

BROWN, Circuit Judge: In this case, we consider whether

the National Labor Relations Board (the “Board”) may apply the

National Labor Relations Act, 29 U.S.C. §§ 151 et seq. (the

“NLRA”), to employment at a casino the San Manuel Band of

Serrano Mission Indians (“San Manuel” or the “Tribe”) operates

on its reservation. The casino employs many non-Indians and

caters primarily to non-Indians. We hold the Board may apply

the NLRA to employment at this casino, and therefore we deny

the petition for review.

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I

San Manuel owns and operates the San Manuel Indian

Bingo and Casino (the “Casino”) on its reservation in San

Bernardino County, California. This proceeding arose out of a

competition between the Communication Workers of America

(“CWA”) and the Hotel Employees & Restaurant Employees

International Union (“HERE”), each seeking to organize the

Casino’s employees. According to HERE’s evidence, the

Casino is about an hour’s drive from Los Angeles. It includes

a 2300-seat bingo hall and over a thousand slot machines. It

also offers live entertainment. HERE’s evidence further

suggests the Tribe actively directs its marketing efforts to non-

Indians, and the Board found that “many, and perhaps the great

majority, of the casino’s patrons are nonmembers who come

from outside the reservation.” San Manuel Indian Bingo &

Casino, 341 N.L.R.B. 1055, 1056 (2004). The Tribe does not

contract with an independent management company to operate

the Casino, and therefore many Tribe members hold key

positions at the Casino. Nevertheless, given the Casino’s size,

the Tribe must employ a significant number of non-members to

ensure effective operation. Id. at 1056, 1061.

The Casino was established by the San Manuel tribal

government as a “tribal governmental economic development

project,” id. at 1055, and it operates pursuant to the Indian

Gaming Regulatory Act of 1988 (“IGRA”), which authorized

gaming on tribal lands expressly “as a means of promoting tribal

economic development, self-sufficiency, and strong tribal

governments,” 25 U.S.C. § 2702(1). According to San Manuel’s

evidence, its tribal government consists of a “General Council,”

which elects from among its members a “Business Committee.”

The General Council includes all tribal members twenty-one

years of age or older. The record is not specific in regards to the

size of the Tribe, but the Tribe’s “Articles of Association” call

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for monthly meetings of the General Council, suggesting the

Tribe is relatively small. The record also does not indicate the

Casino’s gross annual revenues, but HERE submitted a

declaration indicating that, as of February 8, 2000, the Casino’s

website was advertising in regard to its bingo operation “Over

1 BILLION Dollars in Cash and Prizes awarded since July 24th,

1986.” Revenues from the Casino are used to fund various tribal

government programs and to provide for the general welfare of

Tribe members.

In the Tribe’s case, IGRA appears to have fulfilled its

purpose, as the Casino has markedly improved the Tribe’s

economic condition. The Tribe’s evidence indicates its one-

square-mile reservation consists primarily of steep,

mountainous, arid land, most of it unsuitable to economic

development. For many years, the Tribe had no resources, and

many of its members depended on public assistance. As a result

of the Casino, however, the Tribe can now boast full

employment, complete medical coverage for all members,

government funding for scholarships, improved housing, and

significant infrastructure improvements to the reservation. In

addition, according to the Tribe’s evidence, the tribal

government is authorized to make direct per capita payments of

Casino revenues to Tribe members, suggesting that improved

government services are not the only way Tribe members might

benefit from the Casino.

II

On January 18, 1999, HERE filed an unfair labor practice

charge with the Board. The charge asserted the Casino “has

interfered with, coerced and restrained employees in the exercise

of their [collective bargaining] rights, and has dominated and

discriminatorily supported the [CWA] by allowing CWA

representatives access to Casino property . . . , while denying the

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same—or any—right of access to representatives of the

Charging Party . . . .” HERE filed a second charge on March 29,

1999, making similar allegations. On September 30, 1999, the

Board’s Regional Director for Region 31 issued an order

consolidating the two cases, as well as a consolidated complaint.

The complaint alleged the Casino had permitted CWA: (1) to

place a trailer on Casino property for the purpose of organizing

Casino employees; (2) to distribute leaflets from the trailer; and

(3) to communicate with Casino employees on Casino property

during working hours. The complaint further alleged the

Casino’s security guards denied HERE equal access to Casino

employees.

The Tribe appeared specially, seeking dismissal for lack of

jurisdiction. The Tribe asserted the NLRA does not apply to the

actions of tribal governments on their reservations. See Fort

Apache Timber Co., 226 N.L.R.B. 503 (1976). On January 27,

2000, the matter was transferred to the Board in Washington,

D.C., and on May 28, 2004, the Board issued a decision and

order finding the NLRA applicable.

The Board began by reviewing its past decisions regarding

application of the NLRA to tribal governments. 341 N.L.R.B.

at 1056-57. In Fort Apache, the Board had ruled the NLRA did

not apply to a tribal government operating a timber mill on

Indian land, finding the mill to be akin to a “political

subdivision” of a state government and therefore exempt. Fort

Apache, 226 N.L.R.B. at 506 n.22. This ruling would arguably

apply wherever the tribal government’s enterprise was located,

but in Sac & Fox Industries, Ltd., 307 N.L.R.B. 241 (1992), the

Board found the NLRA applicable to off-reservation tribal

enterprises. Id. at 242-43, 245; see also Yukon Kuskokwim

Health Corp., 328 N.L.R.B. 761, 763-64 (1999) (a case

involving an off-reservation healthcare facility operated by a

tribal consortium). Analyzing these precedents, the Board

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acknowledged reliance on two basic premises—that location is

determinative and that the text of the NLRA supported this

location-based rule—and found both flawed. 341 N.L.R.B. at

1057. First, the Board concluded that the NLRA applies to

tribal governments by its terms and that the legislative history of

the NLRA does not suggest a tribal exemption. Id. at 1057-59.

Next, the Board held federal Indian policy does not preclude

application of the NLRA to the commercial activities of tribal

governments. Id. at 1059-62.

In regard to the latter point, the Board cited the Supreme

Court’s statement in Federal Power Commission v. Tuscarora

Indian Nation, 362 U.S. 99, 116 (1960), that “a general statute

in terms applying to all persons includes Indians and their

property interests.” The Board noted several contexts in which

courts had followed Tuscarora and applied federal laws to

Indian tribes. 341 N.L.R.B. at 1059. In Donovan v. Coeur

d’Alene Tribal Farm, 751 F.2d 1113 (9th Cir. 1985), for

example, the Ninth Circuit found the Occupational Safety and

Health Act applicable to a farm operated by a tribe and located

on the tribe’s reservation. The Coeur d’Alene court identified

only three exceptions to Tuscarora’s statement that federal

statutes apply to tribes. According to the Ninth Circuit, an

exception to this general rule is appropriate when: “(1) the law

touches ‘exclusive rights of 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 (alterations in original) (quoting

United States v. Farris, 624 F.2d 890, 893-94 (9th Cir. 1980)).

The Board adopted the Tuscarora-Coeur d’Alene framework in

this case, thus overruling the Fort Apache decision, 341

N.L.R.B. at 1060, and it concluded that none of the three Coeur

d’Alene exceptions applied and that therefore what it

7

characterized as Tuscarora’s general rule was controlling, id. at

1063.

But the Board did not stop there. Having found the NLRA

applicable according to its terms, and having concluded federal

Indian law did not preclude application of the NLRA, the Board

considered as a matter of discretion whether to exercise its

jurisdiction in light of the need to “accommodate the unique

status of Indians in our society and legal culture.” Id. at 1062.

Here, the Board went beyond the Coeur d’Alene exceptions,

asking if the assertion of jurisdiction would “effectuate the

purposes of the [NLRA],” id., and noting that when a tribe “is

fulfilling traditionally tribal or governmental functions” that do

not “involve non-Indians [or] substantially affect interstate

commerce,” “the Board’s interest in effectuating the policies of

the [NLRA] is likely to be lower,” id. at 1063. The Board

considered the location of the tribal government’s activity (that

is, whether on or off the Tribe’s reservation) relevant but not

determinative. Id. Because here “the casino is a typical

commercial enterprise [that] employs non-Indians[] and . . .

caters to non-Indian customers,” id., the Board found the

exercise of jurisdiction appropriate, id. at 1063-64.

Failing in its effort to obtain a dismissal of the complaint,

the Tribe filed an amended answer, admitting the key factual

allegations and again denying the applicability of the NLRA.

The Board’s general counsel then moved for summary

judgment, and the Board granted the motion. The Board

reaffirmed its jurisdictional determination and, based on the

Tribe’s factual admissions, found an unfair labor practice in

violation of the NLRA. The Board issued a cease-and-desist

order requiring the Tribe to give HERE access to the Casino and

also to post notices in the Casino describing the rights of

employees under the NLRA. The Tribe petitioned for review,

and the Board filed a cross-application for enforcement of its

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order.

III

Several factors make resolution of this case particularly

difficult. We have before us conflicting Supreme Court canons

of interpretation that are articulated at a fairly high level of

generality. In addition, the NLRA was enacted by a Congress

that in all likelihood never contemplated the statute’s potential

application to tribal employers, and probably no member of that

Congress imagined a small Indian tribe might operate like a

closely held corporation, employing hundreds, or even

thousands, of non-Indians to produce a product it profitably

marketed to non-Indians. Further, the casino at issue here,

though certainly exhibiting characteristics that are strongly

commercial (non-Indian employees and non-Indian patrons), is

also in some sense governmental (the casino is the primary

source of revenue for the tribal government). Finally, out-of-

circuit precedent is inconsistent as to the applicability of general

federal laws to Indian tribes.

The gravitational center of San Manuel’s case is tribal

sovereignty, but even if we accept the paramount significance of

this factor, our resolution of the case depends on how the

Supreme Court and Congress have defined the contours and

limits of tribal sovereignty. Our central inquiry is whether the

relation between the Tribe’s sovereign interests and the NLRA

is such that the ambiguity in the NLRA should be resolved

against the Board’s exercise of jurisdiction. By focusing on the

sovereignty question and addressing it first, we find the statutory

interpretation question resolves itself fairly simply. Thus, we

analyze this case in two parts: (1) Would application of the

NLRA to San Manuel’s casino violate federal Indian law by

impinging upon protected tribal sovereignty? and (2) Assuming

the preceding question is answered in the negative, does the

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term “employer” in the NLRA reasonably encompass Indian

tribal governments operating commercial enterprises?

A

When we begin to examine tribal sovereignty, we find the

relevant principles to be, superficially at least, in conflict. First,

we have the Supreme Court’s statement in Tuscarora that “a

general statute in terms applying to all persons includes Indians

and their property interests.” 362 U.S. at 116. In Tuscarora, the

Court applied this principle to permit condemnation of private

property owned by a tribal government, finding a general grant

of eminent domain powers applicable to the tribe. Id. at 118.

This Tuscarora statement is, however, in tension with the

longstanding principles that (1) ambiguities in a federal statute

must be resolved in favor of Indians, see County of Yakima v.

Confederated Tribes & Bands of the Yakima Indian Nation, 502

U.S. 251, 268-69 (1992); Montana v. Blackfeet Tribe of Indians,

471 U.S. 759, 766 (1985); Bryan v. Itasca County, 426 U.S. 373,

390-92 (1976); McClanahan v. Ariz. State Tax Comm’n, 411

U.S. 164, 176 (1973); Squire v. Capoeman, 351 U.S. 1, 6-7

(1956); City of Roseville v. Norton, 348 F.3d 1020, 1032 (D.C.

Cir. 2003), and (2) a clear expression of Congressional intent is

necessary before a court may construe a federal statute so as to

impair tribal sovereignty, see White Mountain Apache Tribe v.

Bracker, 448 U.S. 136, 143-44 (1980); Santa Clara Pueblo v.

Martinez, 436 U.S. 49, 59-60 (1978). Moreover, Tuscarora’s

statement is of uncertain significance, and possibly dictum,

given the particulars of that case. Unlike the NLRA, the Federal

Power Act at issue in Tuscarora included a specific limitation

on eminent domain on Indian reservations. See 362 U.S. at 107

(noting that lands within a reservation could not be taken by

eminent domain unless the Federal Power Commission found

that the taking would “not interfere or be inconsistent with the

purpose for which such reservation was created or acquired”

10

(internal quotation marks omitted)). This limitation supported

the inference that Congress intended in other circumstances to

include Indians within the Federal Power Act’s eminent domain

provision. See id. at 118 (“[The Federal Power Act] neither

overlooks nor excludes Indians or lands owned or occupied by

them. Instead, as has been shown, the Act specifically defines

and treats with lands occupied by Indians. . . . The Act gives

every indication that, within its comprehensive plan, Congress

intended to include lands owned or occupied by any person or

persons, including Indians.”).

As discussed above, the Board steered its way between

these various rules by following the Ninth Circuit’s lead in

Coeur d’Alene, 751 F.2d at 1116, which identified three

exceptions to Tuscarora’s general statement. The Board

concluded none of the exceptions applied, and therefore

Tuscarora’s general statement controlled. 341 N.L.R.B. at

1063. Because the Board’s expertise and delegated authority

does not relate to federal Indian law, we need not defer to the

Board’s conclusion. See, e.g., Hoffman Plastic Compounds, Inc.

v. NLRB, 535 U.S. 137, 143-44, 151 n.5 (2002); NLRB v.

Bildisco & Bildisco, 465 U.S. 513, 529 n.9 (1984); Southern S.S.

Co. v. NLRB, 316 U.S. 31, 46-47 (1942). Therefore, we decide

de novo the implications of tribal sovereignty on the statutory

construction question before us.

Each of the cases petitioners cite in support of the principle

that statutory ambiguities must be construed in favor of Indians

(as well as the cases we have found supporting the principle)

involved construction of a statute or a provision of a statute

Congress enacted specifically for the benefit of Indians or for

the regulation of Indian affairs. We have found no case in

which the Supreme Court applied this principle of pro-Indian

construction when resolving an ambiguity in a statute of general

application.

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With regard to the alternative principle relied on by

petitioners, that a clear statement of Congressional intent is

necessary before a court can construe a statute to limit tribal

sovereignty, we can reconcile this principle with Tuscarora by

recognizing that, in some cases at least, a statute of general

application can constrain the actions of a tribal government

without at the same time impairing tribal sovereignty.

Tribal sovereignty is far from absolute, as the Supreme

Court has explained:

Indian tribes are distinct, independent political

communities, retaining their original natural rights in

matters of local self-government. Although no longer

possessed of the full attributes of sovereignty, they remain

a separate people, with the power of regulating their

internal and social relations. . . .

....

As the Court . . . [has] recognized, however, Congress

has plenary authority to limit, modify or eliminate the

powers of local self-government which the tribes otherwise

possess.

Santa Clara Pueblo, 436 U.S. at 55-56 (citations and internal

quotation marks omitted). An examination of Supreme Court

cases shows tribal sovereignty to be at its strongest when

explicitly established by a treaty, see, e.g., McClanahan, 411

U.S. at 173-75, or when a tribal government acts within the

borders of its reservation, in a matter of concern only to

members of the tribe, see, e.g., White Mountain Apache Tribe,

448 U.S. at 144; Moe v. Confederated Salish & Kootenai Tribes,

425 U.S. 463, 480-81 (1976). Examples of such intramural

matters include regulating the status of tribe members in relation

to one another, see Fisher v. District Court, 424 U.S. 382, 387-

88 (1976); Unites States v. Quiver, 241 U.S. 602, 605-06 (1916),

12

and determining tribe membership, see Santa Clara Pueblo, 436

U.S. at 71. Conversely, when a tribal government goes beyond

matters of internal self-governance and enters into off-

reservation business transaction with non-Indians, its claim of

sovereignty is at its weakest. Mescalero Apache Tribe v. Jones,

411 U.S. 145, 148-49 (1973). In the latter situation, courts

recognize the capacity of a duly established tribal government

to act as an unincorporated legal person, engaging in privately

negotiated contractual affairs with non-Indians, but the tribal

government does so subject to generally applicable laws. See,

e.g., Niagara Mohawk Power Corp. v. Tonawanda Band of

Seneca Indians, 94 F.3d 747, 753 (2d Cir. 1996); Gila River

Indian Cmty. v. Henningson, Durham & Richardson, 626 F.2d

708, 715 (9th Cir. 1980). The primary qualification to this rule

is that the tribal government may be immune from suit. See

Kiowa Tribe v. Mfg. Techs., Inc., 523 U.S. 751, 754 (1998).

Many activities of a tribal government fall somewhere

between a purely intramural act of reservation governance and

an off-reservation commercial enterprise. In such a case, the

“inquiry [as to whether a general law inappropriately impairs

tribal sovereignty] is not dependent on mechanical or absolute

conceptions of . . . tribal sovereignty, but has called for a

particularized inquiry into the nature of the state, federal, and

tribal interests at stake.” White Mountain Apache Tribe, 448

U.S. at 145. The determinative consideration appears to be the

extent to which application of the general law will constrain the

tribe with respect to its governmental functions. If such

constraint will occur, then tribal sovereignty is at risk and a clear

expression of Congressional intent is necessary. Conversely, if

the general law relates only to the extra-governmental activities

of the tribe, and in particular activities involving non-Indians,

see generally Reich v. Mashantucket Sand & Gravel, 95 F.3d

174, 180-81 (2d Cir. 1996) (“[E]mployment of non-Indians

weighs heavily against [a] claim that . . . activities affect rights

13

of self-governance in purely intramural matters.”), then

application of the law might not impinge on tribal sovereignty.

Of course, it can be argued any activity of a tribal government

is by definition “governmental,” and even more so an activity

aimed at raising revenue that will fund governmental functions.

Here, though, we use the term “governmental” in a restrictive

sense to distinguish between the traditional acts governments

perform and collateral activities that, though perhaps in some

way related to the foregoing, lie outside their scope.

Cases involving the application of state law to Indian

activities are also instructive. Generally speaking, state laws do

not apply to the activities of tribal Indians on their reservations.

California v. Cabazon Band of Mission Indians, 480 U.S. 202,

207 (1987). Nevertheless, the location of the activity is not the

only consideration the Supreme Court has applied in these cases,

and though the application of state law raises very different

issues and therefore these cases are not directly on point, we find

significant that the Court has defined tribal sovereignty in these

cases partly in terms of governmental functions. In Williams v.

Lee, 358 U.S. 217, 223 (1959), for example, the Court

determined Arizona state courts lacked jurisdiction over a

breach of contract action brought by a non-Indian against an

Indian, based on a sale that occurred on an Indian reservation.

In measuring the scope of tribal sovereignty, the Court

commented: “[T]he question has always been whether the state

action infringed on the right of the reservation Indians to make

their own laws and be ruled by them.” Id. at 220. If “essential

tribal relations” are at issue, then states may not intervene. Id.

at 219. The on-reservation location of the activity in question

was perhaps the primary consideration in the Court’s analysis,

id. at 223, but this consideration was expressly tied to preserving

tribal self-government, which the court defined in terms of the

right of Indians to be ruled by their own laws, id. at 220.

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The Supreme Court again considered the application of

state law to Indian activities in Organized Village of Kake v.

Egan, 369 U.S. 60 (1962). In that case, Alaska sought to apply

its state law to regulate certain fish traps operated by the

Thlinget Indians in non-reservation waters. Id. at 61-62. This

time, the Court sided with the state, permitting state regulation

of the tribal fish traps. After specifying several ways in which

tribal sovereignty had given way to state regulation, id. at 72-75,

the Court concluded “that even on reservations state laws may

be applied to Indians unless such application would interfere

with reservation self-government or impair a right granted or

reserved by federal law.” Id. at 75 (emphases added). Based on

this principle, the court held Alaska’s regulation of the tribe’s

exclusive fishing rights was permissible. Id. at 75-76.

The Supreme Court reaffirmed the same principle in

Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973). There,

the tribe operated a ski resort on land that was outside the tribe’s

reservation, though contiguous with reservation land. New

Mexico sought to impose a tax on the gross receipts of the

resort. The Court concluded: “[S]tate laws may be applied [to

the activities of Indians and tribes] unless such application

would interfere with reservation self-government or would

impair a right granted or reserved by federal law.” Id. at 148

(emphasis added). Again, the fact that the tribal activity at issue

was off-reservation was a primary consideration in the Court’s

decision, id. at 148-50, but the Court emphasized “interfere[nce]

with reservation self-government” as the underlying issue.

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. These activities include off-reservation

fishing, investments in non-residential private property, and

15

commercial enterprises that tend to blur any distinction between

the tribal government and a private corporation. The Supreme

Court’s concern for tribal sovereignty distinguishes among the

different activities tribal governments pursue, focusing on acts

of governance as the measure of tribal sovereignty. The

principle of tribal sovereignty in American law exists as a matter

of respect for Indian communities. It recognizes the

independence of these communities as regards internal affairs,

thereby giving them latitude to maintain traditional customs and

practices. But tribal sovereignty is not absolute autonomy,

permitting a tribe to operate in a commercial capacity without

legal constraint.

Of course, in establishing and operating the Casino, San

Manuel has not acted solely in a commercial capacity. Certainly

its enactment of a tribal labor ordinance to govern relations with

its employees was a governmental act, as was its act of

negotiating and executing a gaming compact with the State of

California, as required by IGRA. See 25 U.S.C. § 2710(d)(3).

Moreover, application of the NLRA to employment at the

Casino will impinge, to some extent, on these governmental

activities. Nevertheless, impairment of tribal sovereignty is

negligible in this context, as the Tribe’s activity was primarily

commercial and its enactment of labor legislation and its

execution of a gaming compact were ancillary to that

commercial activity. The total impact on tribal sovereignty at

issue here amounts to some unpredictable, but probably modest,

effect on tribal revenue and the displacement of legislative and

executive authority that is secondary to a commercial

undertaking. We do not think this limited impact is sufficient to

demand a restrictive construction of the NLRA.

Therefore, we need not choose between Tuscarora’s

statement that laws of general applicability apply also to Indian

tribes and Santa Clara Pueblo’s statement that courts may not

16

construe laws in a way that impinges upon tribal sovereignty

absent a clear indication of Congressional intent. Even applying

the more restrictive rule of Santa Clara Pueblo, the NLRA does

not impinge on the Tribe’s sovereignty enough to indicate a

need to construe the statute narrowly against application to

employment at the Casino. First, operation of a casino is not a

traditional attribute of self-government. Rather, the casino at

issue here is virtually identical to scores of purely commercial

casinos across the country. Second, the vast majority of the

Casino’s employees and customers are not members of the

Tribe, and they live off the reservation. For these reasons, the

Tribe is not simply engaged in internal governance of its

territory and members, and its sovereignty over such matters is

not called into question. Because applying the NLRA to San

Manuel’s Casino would not impair tribal sovereignty, federal

Indian law does not prevent the Board from exercising

jurisdiction. This conclusion is consistent with the conclusion

of several other circuits in regard to the application of federal

employment law to certain commercial activities of certain

tribes, although those cases resulted from the application of a

framework (Coeur d’Alene) different from the one we employ

here, and we do not decide how the framework we employ

would apply to the facts of those cases. See, e.g., Fla.

Paraplegic, Ass’n, Inc. v. Miccosukee Tribe of Indians, 166 F.3d

1126 (11th Cir. 1999) (holding ADA applied to restaurant and

gaming facility operated by an Indian tribe); Reich v.

Mashantucket Sand & Gravel, 95 F.3d 174 (2d Cir. 1996)

(applying OSHA to a tribe-operated construction business);

Dep’t of Labor v. Occupational Safety & Health Review

Comm’n, 935 F.2d 182, 184 (9th Cir. 1991) (applying OSHA to

a timber mill that a tribe operated on its reservation and noting

“[t]he mill employs a significant number of non-Native

Americans and sells virtually all of its finished product to non-

Native Americans through channels of interstate commerce”);

Smart v. State Farm Ins. Co., 868 F.2d 929 (7th Cir. 1989)

17

(concluding ERISA applied to a health center operated by an

Indian tribe on its reservation). But see EEOC v. Fond du Lac

Heavy Equip. & Constr. Co., 986 F.2d 246 (8th Cir. 1993)

(holding ADEA did not apply to an on-reservation employment

discrimination dispute between a tribal employer and a tribe-

member employee).

B

The second question before us, whether the term

“employer” in the NLRA encompasses Indian tribal

governments operating commercial enterprises, requires a much

briefer analysis. The Board concluded the NLRA’s definition

of employer extended to San Manuel’s commercial activities.

Neither the text of the NLRA, nor any other reliable indicator of

Congressional intent, indicates whether or not Congress

specifically intended to include the commercial enterprises of

Indian tribes when it used the term “employer.” Therefore,

Congress has not “directly spoken to the precise question at

issue,” Chevron U.S.A. Inc. v. Natural Resources Defense

Council, 467 U.S. 837, 842 (1984), and the question is therefore

one Congress has implicitly delegated to the Board for

determination. Under these circumstances, the scope of our

review is limited, the matter falling under step two of Chevron’s

analytical diptych. Id. at 842-43; see also Yukon-Kuskokwim

Health Corp. v. NLRB, 234 F.3d 714, 717 (D.C. Cir. 2000)

(applying Chevron’s step two to the Board’s interpretation of the

term “employer” in the NLRA). Specifically, if the Board’s

interpretation is “a permissible construction of the statute,”

Chevron, 467 U.S. at 843, we must give that interpretation

“controlling weight,” id. at 844.

In enacting the NLRA, Congress “vest[ed] in the Board the

fullest jurisdictional breadth constitutionally permissible under

the Commerce Clause.” NLRB v. Reliance Fuel Oil Corp., 371

18

U.S. 224, 226 (1963) (emphasis in original). Section 2(2) of the

NLRA defines “employer” in only very general terms, stating

agents of employers are themselves employers and then listing

certain specific entities that are not employers. 29 U.S.C.

§ 152(2). The NLRA never actually states descriptively what an

employer is, but by listing certain entities that are not

employers, the NLRA arguably intends to include everything

else that might qualify as an employer. See NLRB v. E.C. Atkins

& Co., 331 U.S. 398, 403 (1947) (stating “the Board, in

performing its delegated function of defining and applying the[]

terms” employer and employee “is not confined to” the

“technical and traditional concepts,” but “is free to take account

of the more relevant economic and statutory considerations”).

Black’s Law Dictionary defines employer as “[a] person who

controls and directs a worker under an express or implied

contract of hire and who pays the worker’s salary or wages.”

BLACK’S LAW DICTIONARY 565 (8th ed. 2004). Under this

generic definition of the term employer, we have no doubt it was

reasonable for the Board to conclude the Tribe is an employer of

its Casino workers. The Tribe does not suggest that it lacks

control over these workers, or that it has no contract of hire with

these workers, or that these workers are unpaid. Certainly, then,

the Tribe is an employer in the ordinary sense of that term;

indeed, the Tribe calls its Casino workers “employees” in its

briefs filed in this court. Thus, the Tribe does not seriously

contend it is not an employer; rather it contends it falls within

one of the NLRA’s listed exceptions.

Section 2(2) states that “[t]he term ‘employer’ . . . 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.” 29 U.S.C. § 152(2). The Tribe asserts it falls

within the exception for “any State or political subdivision

19

thereof,” calling this exception a “governmental exemption.”

Cf. NLRB v. Pueblo of San Juan, 276 F.3d 1186 (10th Cir. 2002)

(tribal governments come within NLRA provision allowing

states to enact right-to-work laws); Reich v. Great Lakes Indian

Fish & Wildlife Comm’n, 4 F.3d 490 (7th Cir. 1993) (tribal

police come within FLSA exemption for the police of state and

local governments). The Tribe’s argument is certainly plausible,

but we cannot say the Board’s more restrictive reading of the

NLRA’s government exception is not “a permissible

construction of the statute,” Chevron, 467 U.S. at 843. The

exception is limited by its terms to state governments (and their

political subdivisions), and we can hardly call it impermissible

for an agency to limit a statutory phrase to its ordinary and plain

meaning. In short, the Board could reasonably conclude that

Congress’s decision not to include an express exception for

Indian tribes in the NLRA was because no such exception was

intended or exists.

San Manuel argues, however, that nothing in the legislative

history or text of the NLRA indicates a Congressional intent to

apply the NLRA to tribal governments. See NLRB v. Catholic

Bishop, 440 U.S. 490, 500 (1979) (in light of the constitutional

avoidance canon, finding church-operated schools exempt

because there was no indication of Congressional intent to

extend NLRA to such schools); McColloch v. Sociedad

Nacional de Marineros de Honduras, 372 U.S. 10, 20-22 (1963)

(in light of the “highly charged international circumstances”

surrounding the case, finding foreign-flag ships exempt from

NLRA because “for us to sanction the exercise of local

sovereignty under such conditions in this delicate field of

international relations there must be present the affirmative

intention of the Congress clearly expressed” (internal quotation

marks omitted)). This point is irrelevant in light of our

conclusion above that the NLRA does not impinge on the

Tribe’s sovereignty enough to warrant construing the statute as

20

inapplicable. In the absence of a presumption against

application of the NLRA, the legislative history need not

expressly anticipate every category of employer that might fall

within the NLRA’s broad definition.

San Manuel also argues Congress intended, by enacting

IGRA, to give tribes and states a primary role in regulating tribal

gaming activities, including labor relations, and that Congress

therefore, by implication, foreclosed application of the NLRA

to tribal gaming. Among other things, IGRA requires tribes that

engage or intend to engage in “class III gaming” (the broad

category of gaming at issue here) to negotiate, enter into, and

comply with a compact between the tribe and the state in which

the gaming will occur. See 25 U.S.C. § 2710(d)(1)(C), (3)(A).

This tribal-state compact

may include provisions relating to—

(i) the application of the criminal and civil laws and

regulations of the Indian tribe or the State that are directly

related to, and necessary for, the licensing and regulation of

such activity;

(ii) the allocation of criminal and civil jurisdiction

between the State and the Indian tribe necessary for the

enforcement of such laws and regulations;

(iii) the assessment by the State of such activities in

such amounts as are necessary to defray the costs of

regulating such activity;

(iv) taxation by the Indian tribe of such activity in

amounts comparable to amounts assessed by the State for

comparable activities;

(v) remedies for breach of contract;

(vi) standards for the operation of such activity and

maintenance of the gaming facility, including licensing; and

(vii) any other subjects that are directly related to the

operation of gaming activities.

21

Id. § 2710(d)(3)(C). The compact San Manuel entered into with

the State of California specifically addresses labor relations,

requiring San Manuel to adopt “an agreement or other procedure

acceptable to the State for addressing organizational and

representational rights of Class III Gaming Employees.” San

Manuel satisfied this requirement by enacting a detailed labor

relations ordinance, which differs substantively from the NLRA.

In addition, IGRA makes class III gaming activities lawful

on Indian lands only if authorized by a tribal ordinance or

resolution approved by the Chairman of the National Indian

Gaming Commission. Id. § 2710(d)(1)(A). To gain this

approval, the ordinance or resolution must include several

provisions, one of which is that

net revenues from any tribal gaming are not to be used for

purposes other than—

(i) to fund tribal government operations or programs;

(ii) to provide for the general welfare of the Indian tribe

and its members;

(iii) to promote tribal economic development;

(iv) to donate to charitable organizations; or

(v) to help fund operations of local government

agencies.

Id. § 2710(b)(2)(B).

San Manuel argues that IGRA, by authorizing tribes and

states to enter into compacts addressing labor-relations issues

and by mandating a tribal ordinance or resolution regulating

gaming activities, contemplates tribal and state control over

gaming and therefore implicitly restricts the scope of the NLRA.

Cf. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120,

144 (2000) (a later-enacted, specific statute can “effectively

ratif[y]” a narrow construction of an earlier-enacted, general

22

statute).

We think San Manuel reads too much into IGRA. IGRA

certainly permits tribes and states to regulate gaming activities,

but it is a considerable leap from that bare fact to the conclusion

that Congress intended federal agencies to have no role in

regulating employment issues that arise in the context of tribal

gaming. This is not a case in which Congress enacted a

comprehensive scheme governing labor relations at Indian

casinos, and then the Board sought to expand its jurisdiction into

that field. See id. at 126. We find no indication that Congress

intended to limit the scope of the NLRA when it enacted IGRA,

and certainly nothing strong enough to render the Board’s

interpretation of the NLRA impermissible. See Chevron, 467

U.S. at 843.

In sum, the Board has given the NLRA a natural

interpretation that falls within the range of interpretations the

NLRA permits, and regardless of whether we think the Board’s

decision wise, we are without authority to reject it. Id.

IV

Given that application of the NLRA to the San Manuel

Casino would not significantly impair tribal sovereignty, and

therefore federal Indian law does not preclude the Board from

applying the NLRA, and given that the Board’s decision as to

the scope of the term “employer” in the NLRA constitutes “a

permissible construction of the statute,” id., we uphold the

Board’s conclusion finding the NLRA applicable. In some

regards our analysis has differed slightly from that of the Board.

These differences do not, however, constitute an improper

usurpation of the Board’s decisionmaking prerogative, see SEC

v. Chenery Corp., 318 U.S. 80, 88-95 (1943), because the Board,

in reaching its ultimate conclusion, relied on the same factors we

23

rely upon; specifically, that the Casino is a purely “commercial

enterprise,” 341 N.L.R.B. at 1055, that employs “significant

numbers of non-Indians and . . . caters to a non-Indian clientele”

who live off the reservation, id. at 1061. Moreover, the

differences between our analysis and that of the Board relate to

the application of federal Indian law, not to the Board’s

interpretation of the scope of the term “employer” in the NLRA.

Because Congress has not delegated questions of federal Indian

law to the Board, and because we agree with the Board’s

ultimate conclusion that federal Indian law poses no obstacle

here, we need not remand the matter.

V

The petition for review is denied, and the cross-application

for enforcement is granted.

So ordered.