Soaring Eagle Casino & Resort v. National Labor Relations Board

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 NLRB 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 NLRB 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 NLRB 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

Nos. 14-2405/2558 Soaring Eagle Casino v. NLRB Page 23

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.

Nos. 14-2405/2558 Soaring Eagle Casino v. NLRB Page 24

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 NLRB 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 NLRB 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 NLRB 503 (1976). San Manuel, 341 NLRB 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

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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.