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San Manuel v. NLRB, D.C. Cir. (Feb. 9, 2007)

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by Brad Jolly, Partner

February 12, 2007

On February 9, 2007, the District of Columbia Circuit handed down its decision in San Manuel v. NLRB. The D.C. Circuit held that the National Labor Relations Act ("NLRA") applies to Indian tribes and their economic enterprises. Although not a surprising result, it is still a disappointing one. In fact, the decision may actually be farther reaching than the National Labor Relations Board's ("NLRB") decision in that the NLRB somewhat limited its decision to economic enterprises while the D.C. Circuit did not overtly leave any opening for what it termed "traditional" governmental operations.

Although the D.C. Circuit, unlike most courts facing similar issues, made several positive acknowledgments, including the fact that Indian gaming is not purely a business but maintains some governmental character, its ultimate conclusions contain the common disrespect for tribal sovereignty and self-government. Ultimately, the Court held that applying the NLRA to Indian tribes would not impinge tribal sovereignty or self-government and that the NLRB's determination to include tribes within the definition of "employer" in the NLRA was within its authority and discretion as the federal agency charged with administering the Act. Neither determination is a surprise when filed along with the numerous decisions of the Ninth Circuit and other federal courts which pay mere lip service to tribal self-government when considering the application of "general federal laws" to Indian tribes.

Yet, the Court's decision is interestingly schizophrenic on the notion that Congress did not intend to exclude tribes from the NLRA. The Court held that "Congress's decision not to include an express exception for Indian tribes in the NLRA was because no such exception was intended or exists." San Manuel v. NLRB at 19. But, the Court began its analysis by noting, correctly and wisely, that "the NLRA was enacted by a Congress that in all likelihood never contemplated the statute's potential application to tribal employers, and probably no member of that Congress imagined a small Indian tribe might operate like a closely held corporation." Id. at 8. In other words, the Court acknowledged what most courts faced with the similar legal issue consistently fail to recognize - that Indian tribes likely never crossed Congress' mind when the legislation was enacted. This simply fact should point to the conclusion that Congress cannot be imputed with either including or excluding tribes from such a statute, especially when special provisions for other governments are included in the statute.

The NLRA, like much labor legislation which outsiders continue to force upon tribes, was enacted in the 1930s. The NLRA, specifically, was enacted in 1934. At that time, Congress and the United States did not even consider tribes to be governments. In fact, that same year, Congress was debating the enactment of the Indian Reorganization Act ("IRA") to finally end its policies and programs that dismantled tribal governments and sought the destruction of tribal societies, culture, and existence. How, then, can any court possibly consider that Congress must have meant to include tribes when it did not exclude them along with other governments at a time when Congress did not even consider tribes to be governments?

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