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

by Brad Jolly, Partner
Feb 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?

A more appropriate, wise, and realistic view that Courts should take is to consider later congressional legislation involving exemptions and special treatment for governmental entities. In these later enactments, congressional and United States recognition of tribes as governments is solidified and a definite and concrete pattern of intentionally including Indian tribes amongst federal, state, and local governments in legislation is gleaming. For instance, in nearly every civil rights statute enacted in the past five or six decades where exemptions or special treatment for governmental entities is included, Indian tribes are specifically listed amongst the governments afforded that treatment or exemption. Even in employment discrimination - whether it be Title VII or the Americans with Disabilities Act - Indian tribes are excluded along with the United States from the definition of employer. In fact, the exemption language is very much the same as the exemption language of the NLRA, but for the express mention of Indian tribes. In other words, when Congress does consider whether to include tribes in governmental exceptions, it consistently does so. Further, in recent years Congress has been making slow progress in correcting the omission of tribes in federal legislation, such as treatment as states in the Federal Unemployment Tax Act and the Indian Tribal Government Tax Status Act. The use of subsequent legislation to assist in determining congressional intent in earlier legislation has been used by courts before.

Nonetheless, in the San Manuel v. NLRB case, the D.C. Circuit ultimately found, like so many courts before it, that applying the NLRA to tribes would not impinge on their self-government even when the tribe has its own labor relations laws. The Court found that supplanting tribal legislative authority to enact labor laws governing collective bargaining is a "negligible" impairment of tribal sovereignty and is merely "some unpredictable, but probably modest, . . . displacement of legislative and executive authority." Id. at 15. While a common result of federal courts who have no practical knowledge or experience of Indian governance, it is always surprising that such an oxymoron can be consistently advanced as serious. After all, what greater way can tribal self-government be impinged than by removing the ability to enact laws? The D.C. Circuit itself phrased the issue as a question of whether the tribe's right to make its own laws and be ruled by them would be impaired. Yet, the Court decided that actually removing the ability of the tribe to make its own laws and forcing it to be ruled by laws enacted by an outside government is a "negligible" intrusion on tribal self-government and sovereignty.

There is one issue neither the D.C. Circuit or NLRB considered. Although the issue was raised in an amicus brief, neither decision-making body considered it. Specifically, neither the Court nor the NLRB dealt with the interference with the Tribe's right to exclude. In recent years, the Supreme Court has began focusing tribal self-government and sovereignty more and more to the "landowner's right to exclude." The Supreme Court has loved finding that when a tribe gives up its "landowner's right to exclude," it simultaneously gives up its governmental authority. In other words, the Supreme Court has been tying tribal sovereignty more to a tribal property right and less to an inherent recognition of tribal status in as recognized by a governmental convention to which Indian tribes are not a party. Part of the union's complaint against the San Manuel Band was that it was physically removed from the Reservation and not allowed to enter. But, according to the Supreme Court is that not precisely within the Tribe's broad power of exclusion as beneficial owner of Indian trust land? And if the application of the NLRA eliminates this Supreme Court-acknowledged property right, is it not a taking without just compensation under the Fifth Amendment?

Unfortunately, it appears that this disappointing case has originated from one simple problem: the inability of the Hotel Employees and Restaurant Employees Union ("HERE") to have simple respect for the San Manuel Band as a sovereign government. Perhaps if HERE had simply acted appropriately and approached the tribe with the respect it deserved instead of aggressively invading the Tribe's lands without authorization or permission, not only would this decision's intrusion on tribal sovereignty and self-government not have occurred, but HERE might actually have been able to organize San Manuel Bingo and Casino employees. Instead, HERE is still out in the cold and San Manuel Bingo and Casino employees are members of the Communication Workers of America ("CWA"). Perhaps it is HERE who should take a lesson as it, in essence, obtained an empty victory as it is difficult to imagine any tribal government that will be willing to sign a collective bargaining agreement with a union that has so clearly demonstrated a disrespect for tribal governments. After all, this is not an issue of tribes being anti- or pro-union, but an issue of respect of which HERE has none. Thus, the Teamsters, the CWA, and others will find themselves in potential good relations with Indian tribes and expanding their membership while HERE will hopefully be left to cry by itself in the corner.

Read the court's opinion here.