San Manuel Indian Bingo and Casino

National Labor Relations Board - Board Decisions

May 28, 2004

341 N.L.R.B. 1055 (N.L.R.B. 2004)

SAN MANUEL INDIAN BINGO & CASINO 1055
San Manuel Indian Bingo and Casino and Hotel Em-
ployees & Restaurant Employees International
Union, AFL–CIO, CLC and Communication
Workers of America AFL–CIO, CLC, Party in
Interest and State of Connecticut, Intervenor.
Cases 31–CA–23673 and 31–CA–23803
May 28, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN,
SCHAUMBER, AND WALSH
In this case, we have been asked to reconsider whether
the Board should assert jurisdiction over a commercial
enterprise that is wholly owned and operated by an In-
dian tribe on the tribe’s reservation. The Respondent and
amici contend that we should adhere to current Board
precedent under Fort Apache Timber Co., 226 NLRB
503 (1976) (Fort Apache), and Southern Indian Health
Council, 290 NLRB 436 (1988) (Southern Indian), and
decline to assert jurisdiction. The General Counsel, the
Charging Party, and the Intervenor argue that we should
overrule Fort Apache, supra, and Southern Indian, supra.
They urge us to extend the Board’s reasoning in Sac &
Fox Industries, 307 NLRB 241 (1992) (Sac & Fox), in
which the Board asserted jurisdiction over tribal enter-
prises located away from Indian reservations, to such
enterprises on reservations. They contend that, under
Sac & Fox, supra, we should assert jurisdiction here. For
the following reasons, we have decided to overrule Fort
Apache and Southern Indian and to modify Sac & Fox.
We establish a new standard for determining the circum-
stances under which the Board will assert jurisdiction
over Indian owned and operated enterprises. Pursuant to
this new standard, we assert jurisdiction in this case.
I. PROCEDURAL HISTORY
The case comes to the Board on a motion to dismiss
for lack of jurisdiction. On charges filed on January 8,
1998, in Case 31–CA–23673 and on March 29, 1999, in
Case 31–CA–23803, the General Counsel issued an order
consolidating cases, consolidated complaint, and notice
of hearing on September 30, 1999. The complaint al-
leges that the Respondent violated Section 8(a)(2) and
(1) of the National Labor Relations Act (the Act) by ren-
dering aid, assistance, and support to the Communica-
tions Workers of America (CWA) by allowing CWA
agents access to the Respondent’s facility for organizing
purposes, while denying similar access to agents of Hotel
Employees & Restaurant Employees International Union
(HERE) (the Union). The Respondent filed an answer
denying any wrongdoing and asserting as an affirmative
defense that the Board lacks jurisdiction over its opera-
tions.
On January 18, 2000, the Respondent moved to dis-
miss the complaint for lack of jurisdiction. On January
27, 2000, the Board issued an Order Transferring Pro-
ceeding to the Board and Notice To Show Cause why the
Respondent’s motion should not be granted. Amici Na-
tional Indian Gaming Association, Shakopee Mdewakan-
ton Sioux (Dakota) Community, Menominee Indian
Tribe of Wisconsin, Indian Tribes and Tribal Organiza-
tions (Mashantucket Pequot Tribal Nation, Pascua Yaui
Tribe of Arizona, and Mohegan Tribe of Connecticut),
and Indian Tribes and Tribal Organizations (Jamestown
S’Klallam Tribe, Habematolel Pomo of Upper Lake,
Metlakatla Indian Community, Miccosukee Tribe of In-
dians of Florida, Mississippi Band of Chocktaw Indians,
Seminole Tribe of Florida, St. Regis Mohawk Tribe,
Duckwater Shoshone Tribe of Nevada, Ely Shoshone
Tribe of Nevada, Pueblo of Jemez, National Congress of
American Indians, Inc., Bristol Bay Area Health Corpo-
ration, and Norton Sound Health Corporation) filed
briefs in support of the motion. The General Counsel,
the Charging Party, and the Intervenor filed briefs oppos-
ing the motion and additional briefs in response to the
amici briefs. The Respondent filed a reply brief.1
II. FACTS2
The San Manuel Band of Serrano Mission Indians is
an Indian tribe located on the San Manuel Indian Reser-
vation in San Bernardino County, California. The tribe
is governed by a general council consisting of all tribal
members 21 years of age and older.
The Respondent is a tribal governmental economic de-
velopment project that is wholly owned and operated by
the tribe. The project is located entirely within the limits
of the reservation.3 The tribe operates and regulates the

1 The Intervenor has requested oral argument and leave to adduce
additional evidence. The requests are denied as the stipulated record
and briefs adequately present the facts, issues, and positions of the
parties and amici.
2 The facts stated here are essentially undisputed.
3 The Union argues that the Respondent has not established that the
casino is located on a reservation. We reject that argument. We take
administrative notice of several reliable sources that establish the exis-
tence of the San Manuel reservation on which the casino is located.
See, e.g., United States Department of the Interior, Bureau of Indian
Affairs, “Indian Entities Recognized and Eligible to Receive Services
from the United States Bureau of Indian Affairs,” 65 Fed.Reg. 13298,
13301 (2000) (listing the San Manuel Band of Serrano Mission Indians
of the San Manuel Reservation, California); A. K. Management Co. v.
San Manuel Band of Mission Indians, 789 F.2d 785, 786 (9th Cir.
1986) (noting that the tribe is a federally recognized Indian tribe “that
resides on its reservation in the County of San Bernardino, California”);
American Indian Reservations and Indian Trust Areas 289–290 (Ve-
ronica E. Velarde Tiller, U.S. Department of Commerce, Economic
Development Administration ed., 1995) (describing the tribe’s reserva-
341 NLRB No. 138
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1056
casino pursuant to its own legislation—the San Manuel
Gaming Act—that establishes a tribal caming commis-
sion to regulate and license gaming activities, investigate
wrongdoing, and perform other regulatory functions.
The tribe, through the general council, sets all significant
policies of the project, such as establishing budgets, set-
ting wage, salary, and benefit scales, and setting vacation
and leave policies. The tribe determines employees’
general working conditions.
The project is operated by members of the tribe in key
positions, and tribal members are involved in every facet
of the project. However, not all employees are members
of the tribe. In addition, many, and perhaps the great
majority, of the casino’s patrons are nonmembers who
come from outside the reservation. The tribe has adopted
a tribal labor relations ordinance regulating labor rela-
tions at the casino project.
III. DISCUSSION
For almost 30 years, the Board has wrestled with the
question of whether the Act applies to the employment
practices of this Nation’s Indian tribes. During that time,
the Indian tribes and their commercial enterprises have
played an increasingly important role in the Nation’s
economy.4 As tribal businesses have grown and pros-
pered, they have become significant employers of non-
Indians and serious competitors with non-Indian owned
businesses.5 This case requires the Board to accommo-
date Federal labor policy and Federal Indian policy in
deciding whether to assert jurisdiction, under the Act,
over tribal enterprises.
The Board’s task is difficult because Indian tribes oc-
cupy a unique position in the Nation’s political and legal
history. As Felix Cohen’s preeminent treatise on Federal
Indian law has noted, “Indian tribes consistently have
been recognized . . . by the United States, as ‘distinct,
independent political communities’ qualified to exercise
powers of self-government, not by virtue of any delega-
tion of powers, but rather by reason of their original

tion and casino as “the reservation’s most important and successful
economic enterprise”). On the basis of the foregoing, we find that the
casino is located on the tribe’s reservation.
4 The Supreme Court has noted this trend of “modern, wide-ranging
tribal enterprises” affecting commerce, including “ski resorts, gam-
bling, and sales of cigarettes to non-Indians.” Kiowa Tribe of Okla-
homa v. Mfg. Technologies, Inc., 523 U.S. 751, 757–758 (1998). See
U.S. Department of Commerce, Economic Development Administra-
tion, American Indian Reservations and Indian Trust Areas (Veronica
E. Velarde Tiller, ed. 1995). See also Richard J. Ansson Jr. & Ladine
Oravetz, Tribal Economic Development: What Challenges Lie Ahead
for Tribal Nations as They Continue to Strive for Economic Diversity,
11 Kansas J. Law & Public Policy 441 (2002).
5 See, e.g., “Indian Casinos Win By Partly Avoiding Costly Labor
Rules,” Wall Street Journal (May 7, 2002); “Off the Reservation, Onto
the Dealer’s Lot,” New York Times (May 14, 2002).
tribal sovereignty.” Felix Cohen, Handbook of Federal
Indian Law, 232 (1982) (footnotes and citations omitted).
That sovereignty actually predates that of the Federal
government. See McClanahan v. State Tax Commission
of Arizona, 411 U.S. 164, 172 (1973). Although the
Board—like the Congress, the Supreme Court, and other
Federal agencies—acknowledges the Federal Govern-
ment’s superior sovereignty, it does so in a manner that
is mindful of the Indian tribes’ rightful claim to respect
for their unique and important position in our Nation’s
history.
In our view, the Board’s jurisprudence in this area dur-
ing its 30 years of development has been inadequate in
striking a satisfactory balance between the competing
goals of Federal labor policy and the special status of
Indian tribes in our society and legal culture. As a result,
the Board’s assertion of jurisdiction has been both under-
inclusive and overinclusive. Accordingly, we take the
opportunity presented by this case and its companion
case, Yukon Kuskokwim Health Care Corp., 341 NLRB
No. 139 (2004), to adopt a new approach that gives due
recognition to those competing interests.
A. The Board’s Precedent
The Board first addressed whether the Act applies to
the economic activities of an Indian tribe in Fort Apache,
226 NLRB 503 (1976). In Fort Apache, the issue was
whether the Board had jurisdiction over an Indian mining
company located on Indian land. The Board found that
“an Indian tribal governing council qua government,
acting to direct the utilization of tribal resources through
a tribal commercial enterprise on the tribe’s own reserva-
tion,” was not an employer within the meaning of Sec-
tion 2(2) of the Act. 226 NLRB at 504, 506.6 Rather,
the Board found that the tribal council was a government,
that the commercial enterprise was a “governmental en-
tity,” and that both were excluded from the coverage of
the Act. Id. at 506 and fn. 22. In finding that the com-
mercial enterprise was a “governmental entity,” the
Board analogized such enterprises to “political subdivi-
sions,” which are excluded from coverage under Section
2(2). Id.7
6 Fort Apache Timber Company was owned and operated by the
White Mountain Apache Tribe, and the operation was situated entirely
on the tribe’s reservation. The tribe was governed by a tribal council,
which operated the Timber Company. All employees of the Timber
Company, and of other tribal enterprises, were employed by the tribe.
The tribal council set wages and working conditions and established the
budgets for the various enterprises. Id. at 503–504.
7 In Fort Apache, the Board determined that it was possible to con-
clude that the tribal council was the equivalent of a State specifically
excluded from the Board’s jurisdiction under Sec. 2(2). However, the
Board further determined that it was unnecessary to make that finding

SAN MANUEL INDIAN BINGO & CASINO 1057
The Board reached the same conclusion in Southern
Indian, 290 NLRB 436 (1988). There, a consortium of
seven Indian tribes operated a nonprofit health care clinic
on the reservation of one of the tribes. The Board ap-
plied Fort Apache and found that the tribal consortium
and its clinic on the reservation were governmental enti-
ties that were implicitly excluded from the Act’s defini-
tion of “employer.” 290 NLRB at 437.
Next, in Sac & Fox, 307 NLRB 241 (1992), the Board
confronted the question of whether to assert jurisdiction
over an Indian-owned enterprise located off the reserva-
tion. There, a tribal agency operated a corporation that
manufactured chemical resistant suits pursuant to a De-
partment of Defense contract. In finding the assertion of
jurisdiction appropriate, the Board relied primarily on the
fact that the enterprise was located off the reservation.
The Board repeatedly stressed that the enterprise in Sac
& Fox was located away from the tribe’s reservation, and
relied on that fact in holding that Fort Apache and South-
ern Indian were not controlling in cases involving off-
reservation enterprises. Id. at 242–243, 245.8 Indeed,
the Board concluded that its decision in Fort Apache was
“limited to situations in which the tribal enterprise is
located on the reservation.” Id. at 245. Having found
that the Act did not expressly exclude the tribal enter-
prise from its jurisdiction, the Board found that the Act
was a statute of general applicability and, therefore,
should apply to Indians under Federal Power Commis-
sion v. Tuscarora Indian Nation, 362 U.S. 99 (1960), and
Donovan v. Coeur d’Alene Tribal Farm, 751 F.2d 1113
(9th Cir. 1985). Id. at 243.
When next addressing the issue of Board jurisdiction
over Indian tribes, the Board reiterated the principle that
the location of the enterprise was pivotal to its decision
on the jurisdictional issue. Yukon Kuskokwim Health
Corp., 328 NLRB 761 (1999) (Yukon Kuskokwim).
Yukon Kuskokwim presented facts similar to Southern
Indian; at issue was the Board’s jurisdiction over a health
clinic operated by a tribal consortium. 328 NLRB at
763. Unlike the clinic in Southern Indian, however, the
clinic in Yukon Kuskokwim was not located on a reserva-
tion – Native Alaskans do not have any reservations in
Alaska. Id. The Board rejected the tribe’s argument that
the Board should consider the nature of the enterprise in
determining whether assertion of jurisdiction furthered

because, in any event, the tribal council was implicitly exempt as a
political subdivision of a State. Id. at 506 and fn. 22.
8 Although noting that the tribal enterprises in Fort Apache and
Southern Indian were implicitly exempt as governmental entities, the
Board held that those cases were not “directly controlling . . . [as] the
subject facilities are located well outside the Tribal reservation.” 307
NLRB at 243.
the policies of the Act. Id. at 763–764. The Board in-
stead followed its reasoning in Sac & Fox and found that
the location—not the nature—of the enterprise was con-
trolling. Id. Because the clinic at issue in Yukon Kus-
kokwim was not located on a reservation, the Board as-
serted jurisdiction. Id.
Two premises can be discerned from the foregoing
Board precedent. First, in Sac & Fox and Yukon Kus-
kokwim, the Board firmly established that location is the
determinative factor in assessing whether a tribal enter-
prise is excluded from the Act’s jurisdiction. Indeed, in
Yukon Kuskokwim, the Board specifically rejected an
appeal to consider other factors—such as the nature of
the enterprise, or the absence of Alaska Indian Reserva-
tions—in assessing whether the assertion of jurisdiction
was appropriate. The second premise is that the text of
Section 2(2) of the Act supported the geographically
based distinctions made by the Board. Thus, in Fort
Apache and Southern Indian the Board found that the
text of Section 2(2) precluded the assertion of jurisdic-
tion, while in Sac & Fox and Yukon Kuskokwim it did
not.
As discussed below, we have reconsidered both of
these premises. Finding both premises to be faulty, we
now adopt a new approach to the question of the Board’s
jurisdiction over Indian tribes, which better accommo-
dates the need to balance the Board’s interest in further-
ing Federal labor policy with its responsibility to respect
Federal Indian policy.
B. Reassessment of Board Precedent
1. Tribal enterprises under Section 2(2) of the Act
The Supreme Court “has consistently declared that in
passing the National Labor Relations Act, Congress in-
tended to and did vest in the Board the fullest jurisdic-
tional breadth constitutionally permissible under the
Commerce Clause.” NLRB v. Reliance Fuel Oil Corp.,
371 U.S. 224, 226 (1963) (emphasis in original). The
language of Section 2(2) of the Act “vests jurisdiction in
the Board over any ‘employer’ doing business in this
country save those Congress excepted with careful par-
ticularity.” State Bank of India v. NLRB, 808 F.2d 526,
531 (7th Cir. 1986), cert. denied 483 U.S. 1005 (1987).
Section 2(2) of the Act excepts the following from the
definition of “employer”:
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 . . . or any labor organization
(other than when acting as an employer), . . . . [29
U.S.C. § 152(2).]

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1058
On its face, Section 2(2) does not expressly exclude
Indian tribes from the Act’s jurisdiction. Clearly, the
tribes are not a corporation of the Government9 and they
are not a Federal Reserve Bank. Nor do Indian tribes
meet the Board’s or reviewing courts’ traditional defini-
tion of a State or political subdivision thereof. As the
Supreme Court held in NLRB v. Natural Gas Utility Dis-
trict of Hawkins County, 402 U.S. 600, 604–605 (1971),
“political subdivisions” excluded from the Act’s cover-
age are defined as entities that are either “(1) created
directly by the State, so as to constitute departments or
administrative arms of the government, or (2) adminis-
tered by individuals who are responsible to public offi-
cials or to the general electorate.” Indian tribes and their
commercial enterprises satisfy neither prong of this defi-
nition. They are not created directly by the States, or
departments, or administrative arms of State government.
Moreover, neither public officials nor the general elec-
torate are at all involved in the selection of an Indian
tribe or its enterprises. Indeed, the Supreme Court and
several Federal courts of appeals specifically have held
that neither Indian tribes nor their enterprises are States
or political subdivisions of States. See White Mountain
Apache Tribe v. Bracker, 448 U.S. 136, 143 (1980); Bur-
lington Northern Railroad Co. v. Blackfeet Tribe, 924
F.2d 899, 905 (9th Cir. 1991), overruled on other
grounds Big Horn County Elec. Cooperative v. Adams,
219 F.3d 944 (9th Cir. 2000); Smart v. State Farm Ins.
Co., 868 F.2d 929, 936 (7th Cir. 1989); U.S. v. Barquin,
799 F.2d 619, 621 (10th Cir. 1986).10
Accordingly, the Board’s reasoning in Fort Apache
and Southern Indian—that Section 2(2) prohibits the as-
sertion of jurisdiction over Indian tribes—cannot with-
stand scrutiny. Indeed, the reasoning in those cases re-
lies upon a very broad reading of the exemptions pro-
vided for in the statute—essentially an exemption by
analogy. We are not aware of any precedent that sug-
gests that the terms included in Section 2(2) should be
construed so broadly. Indeed, just the opposite is true.
As with any statutory exemption, the exemptions pro-
vided in Section 2(2) are to be narrowly construed. See,
e.g., Los Angeles County Museum of Art v. NLRB, 688
F.2d 1278, 1282 (9th Cir. 1982).11

9 In context with the prior phrase, the term “Government” corpora-
tion means a corporation wholly owned by the U.S. Government.
10 But see NLRB v. Pueblo of San Juan, 276 F.3d 1186, 1192 (10th
Cir. 2002) (finding that tribes are not States nor subdivisions of States,
but refusing to find tribal “right-to-work” ordinance preempted by the
Act because of Act’s exception for such ordinances adopted by States).
11 Our dissenting colleague argues that an expansive interpretation of
the statutory exclusion for States and political subdivisions is supported
by the courts’ treatment of the governments of Puerto Rico and U.S.
territories as exempt from the Act’s jurisdiction. First, we note that the
Moreover, nothing in the Act’s legislative history sug-
gests that Congress intended to foreclose the Board from
asserting jurisdiction over Indian tribes. See NLRB v.
Chapa De Indian Health Program, Inc., 316 F.3d 995,
1002 (9th Cir. 2003) (affirming order enforcing Board
subpoena, based on conclusion that jurisdiction was not
plainly lacking); see also Sac & Fox, 307 NLRB at 245
(noting that the employer “has not referred us to, and we
are not aware of, any discussion whatsoever in the legis-
lative history of the NLRA dealing with Indians. Nor is
there any basis in the language of the Act itself for infer-
ring a Congressional intent to exempt Indians or their
off-reservation tribal enterprises”). That Congress ex-
pressly excluded Indian tribes from other Federal statu-
tory schemes regulating the workplace demonstrates that
Congress knew how to exclude Indian tribes when it
wanted to do so. See Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e(b) (term “employer” does not
include “an Indian tribe”); Title I of the Americans with
Disabilities Act, 42 U.S.C. § 12111(5)(B) (same). These
express statutory exclusions of Indian tribes from cover-
age under other Federal laws lead to the inescapable con-
clusion that Congress purposely chose not to exclude
Indian tribes from the Act’s jurisdiction.12
Finally, recent statutes that deal expressly with Indian
tribes contain no indication that Congress intended to
exclude tribal enterprises from the Act. Such an effort to
exclude was recently made, but that effort was defeated.
That is, in the original version of what became the Tribal
Self-Governance Amendments of 2000 to the Indian
Self-Determination Act, both Houses of Congress spe-
cifically excluded, for the purposes of Section 2(2) of the
Act, an Indian tribe carrying out activities authorized by
the ISDA, S. Rep. No. 221, 106th Cong., 1st Sess. 49
(1999); H.R. Rep. No. 477, 106th Cong., 1st Sess. 18
(1999). The House of Representatives dropped the lan-
guage excluding the ISDA-authorized tribal activities
when it passed the amendments. The exclusion was not
in the final enactment.13

dissent does not point to a single Board case so holding and, therefore,
provides no insight as to the Board’s basis for exempting those gov-
ernments. Neither do the court cases upon which the dissent relies
provide any analysis of the issue. In both Chaparro-Febus v. Long-
shoremen Local 1575, 983 F.2d 325, 328–330 (1st Cir. 1993), and
Virgin Islands Port Authority v. SIU de Puerto Rico, 354 F.Supp. 312,
313 (D.V.I. 1973), the courts assumed that the governments at issue
were excluded from the Act and instead considered whether the em-
ployers at issue constituted subdivisions of those governments.
12 Thus, our dissenting colleague’s frequent reference to Title VII’s
exclusion of Indian tribes from its jurisdiction does not support his
position.
13 We are not suggesting that this legislative history, by itself, shows
an intention to include Indian tribes under the jurisdiction of the Act.
See PBGC v. LTV, 496 U.S. 633, 650 (1990). Rather our point is that

SAN MANUEL INDIAN BINGO & CASINO 1059
The location of a tribal enterprise on an Indian Reser-
vation does not alter our conclusion that Section 2(2)
does not compel an exception for Indian tribes. Indeed,
there is nothing in Section 2(2) to suggest that the ex-
emption for “employer” turns on where the entity is lo-
cated. The Board’s cases finding such a geographically
based exception do not persuasively argue otherwise. In
Fort Apache, the Board provided no authority for the
proposition it ultimately adopted—that the text of Sec-
tion 2(2), and the Board’s interpretation of that text, can
support an exemption based on the location of the em-
ployer at issue. As discussed above, the Act does not
explicitly exempt Indian tribes—wherever they operate.
Nor does the precedent support the finding of implicit
exemptions or exemptions by analogy based on an em-
ployer’s location, or any other factor. Accordingly, we
overrule prior precedent to the extent that it holds other-
wise.
2. The impact of Federal Indian policy
Having determined that the Act does not preclude the
Board’s assertion of jurisdiction over the Respondent, we
next address whether Federal Indian policy requires that
the Board decline jurisdiction. We find that it does not.
If the Board’s reasoning in Fort Apache is released
from its statutory moorings, it is clear that underlying the
Board’s decision in that case is its conclusion that Fed-
eral Indian law and policy preclude Board jurisdiction.
In Fort Apache, the Board noted that:

It is clear that individual Indians and Indian tribal gov-
ernments, at least on reservation lands, are generally
free from state or even in most instances Federal inter-
vention, unless Congress has specifically provided to
the contrary. [226 NLRB at 506.]

The Board’s conclusion in Fort Apache, however,
stands in direct conflict to the position taken by the ma-
jority of Federal courts of appeals regarding the applica-
bility of Federal law to Indian tribes. Through that judi-
cial precedent it has become well established that statutes
of “general application” apply to the conduct and opera-
tions, not only of individual Indians, but also of Indian
tribes. Federal Power Commission v. Tuscarora Indian
Nation, 362 U.S. 99, 116 (1960) (Tuscarora Indian Na-
tion). In Tuscarora Indian Nation, the Court held that
land owned by an Indian tribe could be taken for a hy-
droelectric power project, pursuant to the Federal Power
Act, under the same terms as applied to non-Indian-
owned land, because the FPA provided no express ex-
emption for Indians. Id. The Court concluded that “a

prior Congressional actions show an intention to include, and there has
been no recent action to alter that intention.
general statute in terms applying to all persons includes
Indians and their property interests.” Id.
The Federal courts of appeals have applied widely the
Tuscarora principle to a number of civil rights and em-
ployment-related statutes. See Florida Paraplegic Assn.
v. Miccosukee Tribe of Indians of Florida, 166 F.3d
1126, 1129–1130 (11th Cir. 1999) (ADA); Reich v.
Mashantucket Sand & Gravel, 95 F.3d 174, 177 (2d Cir.
1996) (OSHA); Smart v. State Farm Ins. Co., 868 F.2d
929, 932 (7th Cir. 1989) (ERISA); Donovan v. Coeur
d’Alene Tribal Farm, 751 F.2d 1113, 1115 (9th Cir.
1985) (Coeur d’Alene) (OSHA).14 The rationale behind
these decisions supports the proposition that because
Congress intended the Act to have the broadest possible
breadth permitted under the Constitution,15 the Act is a
statute of general application. See Navajo Tribe v.
NLRB, 288 F.2d 162, 164–165 (D.C. Cir. 1961); Sac &
Fox, 307 NLRB at 243.
In light of the expansive application of jurisdiction that
would result from the broad principle established by the
Supreme Court in Tuscarora Indian Nation, supra, the
Ninth Circuit in Coeur d’Alene enumerated several ex-
ceptions that have been recognized by Federal courts to
limit jurisdiction over Indian tribes. The court in Coeur
d’Alene held that statutes of general applicability should
not be applied to the conduct of Indian tribes if: (1) the
law “touches exclusive rights of self-government in
purely intramural matters”; (2) the application of the law
would abrogate treaty rights; or (3) there is “proof” in the
statutory language or legislative history that Congress
did not intend the law to apply to Indian tribes. Coeur
d’Alene, 751 F.2d at 1115; see also Mashantucket Sand
& Gravel, 95 F.3d at 177; Smart, 868 F.2d at 932–933.
The Board has adopted the Tuscarora–Coeur d’Alene
standard in off-reservation cases. In Sac & Fox, the
Board held “[t]he general rule of construction for deter-
mining whether a Federal statute covers Indians and their
property interests was set forth in the Supreme Court’s
opinion in [Tuscarora Indian Nation].” 307 NLRB at
243. Having found that the Act was a statute of general
applicability, the Board in Sac & Fox then examined the
applicability of the Coeur d’Alene exceptions. Id. The
Board found that none of the exceptions applied to the
tribal manufacturing enterprises at issue and asserted
14 Cf. Pueblo of San Juan, 276 F.3d 1186, 1199 (10th Cir. 2002)
(Tuscarora applies where tribe is acting as an employer); EEOC v.
Fond du Lac Heavy Equip. and Constr. Co., 986 F.2d 246, 248 (8th
Cir. 1993) (Tuscarora applies unless right at issue was reserved to the
Indians by treaty, statute, or common law, such as right to self-
governance).
15 NLRB v. Reliance Fuel Oil Corp., 371 U.S. 224, 226 (1963).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1060
jurisdiction. Id.; see also Yukon Kuskokwim, 328 NLRB
761, 764 (1999).
We now conclude that the Board was correct in Sac &
Fox to apply the Tuscarora–Couer d’Alene analysis in
assessing whether Federal Indian law and policy pre-
cludes jurisdiction. To the extent that the Board’s prece-
dent has held that the application of that analysis is im-
proper in on-reservation cases, we overrule those cases.
Nothing in Tuscarora Indian Nation or Coeur d’Alene
suggests that the location of the enterprise at issue is de-
terminative. In fact, the enterprise at issue in Coeur
d’Alene was located on a reservation and the Ninth Cir-
cuit nonetheless found jurisdiction appropriate. See
Coeur d’Alene, 751 F.2d at 1114–1116; see also Smart,
868 F.2d at 932–936; Navajo Tribe, 288 F.2d at 162.
Again, the distinction that has driven the Board’s deci-
sions in this area—location on-reservation or off-
reservation—cannot be squared with the applicable
precedent.
Our dissenting colleague contends that the Board
should not rely on Tuscarora’s holding that statutes of
general applicability apply to Indian tribes in the absence
of a Congressional statement otherwise. The full weight
of his dissent rests on this point. He calls Tuscarora a
“leaky vessel.” We disagree. His dissent, which relies
upon dissenting voices and minority positions, is prem-
ised upon his opinion of what the law should be, not
what it is.
Our dissenting colleague’s primary attack on the vi-
ability of Tuscarora is, in reality, an argument that the
case was wrongly decided. He questions the wisdom of
the Court’s reliance on several tax cases to support its
finding that statutes of general applicability apply to In-
dian tribes, absent an express Congressional statement
otherwise. Such a question, however, has no place in the
Board’s analysis because the Board has no authority to
challenge the wisdom of the Supreme Court’s pro-
nouncements. We decline to join with our dissenting
colleague in a dispute over whether the Supreme Court
decided Tuscarora rightly or wrongly.
Our dissenting colleague next tries to avoid the prece-
dential authority of Tuscarora by deeming its seminal
holding “dictum.” The dissent’s description of Tus-
carora’s holding finds no support in the majority of the
cases that have applied Tuscarora. As noted above, a
number of courts of appeals have repeatedly applied the
holding of Tuscarora—that statutes of general applicabil-
ity apply to Indian tribes in the absence of a Congres-
sional statement otherwise. Indeed, they have applied
Tuscarora in cases involving statutes very similar to the
Act; that is, statutes that generally regulate the work-
place. Instead of judicial support for his position, our
dissenting colleague points to commentators who share
his views. We put the Board’s decision on much firmer
footing by looking to the broad consensus in the courts of
appeals for the appropriate interpretation of Supreme
Court precedent.16
Moreover, the dissent’s implicit suggestion that the
real holding of Tuscarora is limited to other cases in-
volving the property rights of individual Indians under
the Federal Power Act, stands in stark contrast to the
consensus of the courts of appeals. That it would have
been possible for the Court to decide the case on a nar-
row ground does not transform into dicta any analysis
that goes beyond that narrow ground. See Railroad
Companies v. Schutte, 103 U.S. 118, 143 (1880) (“It
cannot be said that a case is not authority on one point
because, although that point was properly presented and
decided in the regular course of the consideration of the
cause, something else was found in the end which dis-
posed of the whole matter.”); Eustace v. Commissioner
of Internal Revenue, 312 F.3d 905, 908 (7th Cir. 2002)
(“That an opinion contains multiple grounds of decision
does not justify disregarding any of them.”).17
Our dissenting colleague’s argument that Tuscarora
has been overruled by the Supreme Court is equally mis-
guided. The dissent concedes, as it must, that the Su-
preme Court itself has never purported to overrule Tus-
carora explicitly. Thus, the dissent is forced to argue
that is has been implicitly overruled by subsequent cases
that the dissent describes as contradictory to Tuscarora.
Again, we decline to sit in judgment of the Supreme
Court’s precedent. If the Court wishes to overturn
precedent, it will ordinarily say so. Accordingly, absent

16 Our dissenting colleague relies upon the opinion of a single court
of appeals to support his position. See NLRB v. Pueblo of San Juan,
276 F.3d 1186 (10th Cir. 2002). As discussed above, the Tenth Cir-
cuit’s interpretation of Tuscarora stands in contrast to that of the other
courts of appeals that have examined the issue. Moreover, the facts of
Pueblo of San Juan are distinguishable. There, the Board sought de-
claratory and injunctive relief to challenge a right-to-work ordinance
enacted by the tribe. Id. at 1188–1189. Here, the Respondent seeks to
avoid the application of the Act to its commercial activities. Indeed, in
Pueblo of San Juan, the court noted that its decision did not reach the
applicability of Federal statutes to a tribe’s proprietary capacities. Id. at
1199.
17 Our dissenting colleague’s analysis of the basis for the Court’s de-
cision in Tuscarora only reaffirms that there may have been narrower
grounds upon which the Court could have decided the case. Neverthe-
less, the Court itself asserted that it “must hold” that the Indians at issue
were covered by the FPA because of the “well settled” principle that “a
general statute in terms applying to all persons includes Indians and
their property interests.” Tuscarora, 362 U.S. at 116, 118. Contrary to
the dissent’s contention, the Court did not hold that the express terms of
the FPA dictated that result. Nor did the Court base its decision on a
distinction between Indians and Indian tribes, as suggested by the dis-
sent. Indeed, the land at issue was owned by the Tuscarora Nation, not
individual Indians.

SAN MANUEL INDIAN BINGO & CASINO 1061
the Court’s acknowledgement that Tuscarora is no
longer good law, the Board is bound to follow it. In the
absence of such acknowledgement, the courts, and
thereby also the Board, are not free to disregard applica-
ble precedent in favor of another suggested line of
cases.18
Moreover, the cases upon which our dissenting col-
league as well as the Respondent and its amici rely do
not supplant the rule of law announced in Tuscarora.
First, they do not contest the principle that the U.S. Gov-
ernment is a superior sovereign. Indian tribes have no
sovereign immunity against the United States. See Flor-
ida Paraplegic Assn. v. Miccosukee Tribe of Indians of
Florida, 166 F.3d at 1135 (immunity doctrines do not
apply to the Federal Government); Mashantucket Sand &
Gravel, 95 F.3d at 182 (“tribal sovereignty does not ex-
tend to prevent the federal government from exercising
its superior sovereign power”). The Board is an arm of
the U.S. Government.
Second, the cases upon which the dissent and the Re-
spondent rely are distinguishable because they concern
critical internal matters of self-governance. While the
obstacles to the infringement of tribal sovereignty re-
garding such critical functions are high, the Supreme
Court’s post-Tuscarora cases impose considerably lower
obstacles where Congress has regulated matters outside
that sphere. See Duro v. Reina, 495 U.S. 676, 685–686
(1990) (discussing “tribes’ status as limited sovereigns,
necessarily subject to the overriding authority of the
United States, yet retaining necessary powers of internal
self-governance”); Montana v. U.S., 450 U.S. 544, 564
(1981) (noting “implicit divestiture of sovereignty”
where “relations between an Indian tribe and nonmem-
bers of the tribe” are at issue). The Supreme Court has
described Indian tribal sovereignty as “of a unique and
limited character.” Duro, 495 U.S. at 685.
Accordingly, as the dissent notes, the courts have pro-
tected Indian sovereignty in cases involving tribal justice
systems and tribal tax authority, which the courts have
found to be critical to tribal self-government. See Iowa
Mutual Ins. Co. v. LaPlante, 480 U.S. 9, 14 (1987) (af-
firming tribal court exhaustion requirement because

18 See Agostini v. Felton, 521 U.S. 203, 237 (1997) (“if a precedent
of this Court has direct application in a case, yet appears to rest on
reasons rejected in some other line of decisions, the Court of Appeals
should follow the case which directly controls, leaving to this Court the
prerogative of overruling its own decisions”) (quoting Rodriguez de
Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989));
see also Shalala v. Illinois Council on Long Term Care, 529 U.S. 1, 18
(2000) (“This Court does not normally overturn, or so dramatically
limit, earlier authority sub silentio”); U.S. v. Rodriguez, 311 F.3d 435,
439 (1st Cir. 2002) (“implied overrulings are disfavored in the law”);
U.S. v. Sterling, 283 F.3d 216, 219 (4th Cir. 2002) (same).
“tribal courts play a vital role in tribal self-government”);
Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 137
(1982) (affirming power of tribe to tax mining activities
because “tribal power to tax is an essential attribute of
Indian sovereignty because it is a necessary instrument of
self-government and territorial management”).
The Tuscarora doctrine, in contrast, is applied to as-
sess the applicability of regulatory schemes that do not
implicate such critical self-governance issues. Thus,
Tuscarora is applicable in the instant case. The Respon-
dent’s activities at issue are commercial in nature—not
governmental. Moreover, the operation of a casino—
which employs significant numbers of non-Indians and
that caters to a non-Indian clientele—can hardly be de-
scribed as “vital” to the tribes’ ability to govern them-
selves or as an “essential attribute” of their sovereignty.
See id.19 Such a reading of the Supreme Court’s post-
Tuscarora cases is clearly preferable to the dissent’s in-
terpretation because it avoids creating a conflict where
none exists.
The contention of the dissent and the Respondent and
amici that an Indian tribe’s sovereign right to exclude
non-tribal members from a tribe’s reservation precludes
our assertion of jurisdiction similarly fails. In fact, as the
dissent acknowledges, the Board previously has rejected
such an argument. In Texas-Zinc Minerals Corp., 126
NLRB 603, 607 (1960), and Devils Lake Sioux Mfg.
Corp., 243 NLRB 163, 163 (1979), the Board asserted
jurisdiction over commercial enterprises located on res-
ervations, over the objection of the tribe. In affirming
the Board’s decision in Texas-Zinc Minerals Corp., su-
pra, the District of Columbia Circuit rejected the same
argument, stating that “the circumstances that the Corpo-
ration’s plant is located on the Navajo Reservation can-
not remove it or its employees—be they Indians or not—
from the coverage of the Act.” Navajo Tribe, 288 F.2d at
164; see also Coeur d’Alene, 751 F.2d at 1116–1117.
The distinction drawn by our dissenting colleague be-
tween these cases and this case makes no difference.
Although the Respondents in Texas-Zinc Minerals and
Devils Lake Sioux Mfg. Corp. were not native-owned
enterprises, the Indian tribes who leased land to those
employers asserted their rights to exclude nontribal
members from the tribe’s property. Thus, the Board and
19 As discussed in greater detail below, in the context of the applica-
tion of the Tuscarora-Coeur d’Alene analysis, the Federal courts have
defined internal or intramural matters as being confined to topics such
as “tribal membership, inheritance rules, and domestic relations.”
Coeur d’Alene, 751 F.2d at 1116. We address in detail below our dis-
senting colleague’s argument that the operation of a casino constitutes
the kind of internal, critical governance function that is akin to those
functions at issue in the post-Tuscarora cases upon which he relies, or
those that the courts have found to meet the Coeur d’Alene exception.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1062
the court were assessing—and rejected as a basis for ex-
emption—the tribe’s own asserted right to exclusion, not
that of the non-Indian employers.
Finally, there is no merit to the Respondent’s and its
associated amici’s argument that Congress lacks the
power to regulate labor relations on Indian Reservations
as part of its power to regulate interstate commerce. The
argument rests on the assertion that the Interstate Com-
merce Clause does not apply to Indian tribes. But the
Supreme Court decisions on which this argument is
based involved the validity of State and tribal severance
taxes on oil and gas produced on reservations by non-
Indians.20 The Court held that such taxes were not pre-
cluded by the Interstate Commerce Clause. These deci-
sions do not address the applicability of a Federal statute
to an Indian tribe’s commercial enterprise. Further, the
Act specifically applies to any employer whose opera-
tions substantially affect commerce. See Reliance Fuel
Oil Corp., 371 U.S. 224, 226 (1963). The Respondent
concedes such an effect here. In Navajo Tribe, supra, the
District of Columbia Circuit rejected the argument that
the Act did not reach an on-reservation facility because,
in adopting the Act, Congress did not specifically rely on
its power to regulate commerce “with the Indian tribes.”
Const., Art. 1, Sec. 8, Cl. 3. The court observed that
Congress’ “failure to mention its power over commerce
with the Indian tribes” was not an “indication that it in-
tended to narrow its action with respect to interstate
commerce.” 288 F.2d at 165.
3. Discretionary jurisdiction
Because application of the Tuscarora–Coeur d’Alene
standard poses no impediment to the assertion of the
Board’s jurisdiction, the final step in the Board’s analysis
is to determine whether policy considerations militate in
favor of or against the assertion of the Board’s discre-
tionary jurisdiction. Our purpose in undertaking this
additional analytical step is to balance the Board’s inter-
est in effectuating the policies of the Act with its desire
to accommodate the unique status of Indians in our soci-
ety and legal culture. It is incumbent upon the Board to
accommodate the Act’s interests with those of other Fed-
eral statutory schemes. See Hoffman Plastic Compounds
v. NLRB, 535 U.S. 137, 147 (2002).
We recognize that Indian tribes hold a special place in
Federal law. As the Respondent and its amici demon-
strate in their briefs in the instant case, our common law
and Federal statutes are suffused with examples of the
special status accorded Indian tribes. The Board’s error
in Fort Apache was not acknowledging this special

20 See Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 191–
193 (1989); Merrion v. Jicarilla Apache Tribe, 455 U.S. at 152–158.
status, but rather the effort to read it into Section 2(2),
where it did not belong. In rejecting the Respondent’s
contentions that the applicable precedents preclude the
Board’s assertion of jurisdiction, we do not imply that
such precedent should be ignored. Indeed, by adopting
the Tuscarora–Coeur d’Alene analysis as a component of
consideration in cases involving Indian tribes, we ex-
pressly take such precedent into account. In so doing, we
recognize the necessity of going beyond the general test
of Tuscarora–Coeur d’Alene to examine the specific
facts in each case to determine whether the assertion of
jurisdiction over Indian tribes will effectuate the pur-
poses of the Act.
As demonstrated above, the applicable precedent does
not compel a categorical exemption of Indians from the
Board’s jurisdiction. Nor do we find that a categorical
exemption would effectuate the purposes of the Act.
Tribal enterprises are playing an increasingly important
role in the Nation’s economy. As tribal businesses pros-
per, they become significant employers of non-Indians
and serious competitors with non-Indian owned busi-
nesses. When Indian tribes participate in the national
economy in commercial enterprises, when they employ
substantial numbers of non-Indians, and when their busi-
nesses cater to non-Indian clients and customers, the
tribes affect interstate commerce in a significant way.
When the Indian tribes act in this manner, the special
attributes of their sovereignty are not implicated. Run-
ning a commercial business is not an expression of sov-
ereignty in the same way that running a tribal court sys-
tem is. The Board’s mandate is to “protect and foster
interstate commerce,”21 and assertion of discretionary
jurisdiction over Indian tribes acting in these circum-
stances would effectuate the policies of the Act while
doing little harm to the Indian tribes’ special attributes of
sovereignty or the statutory schemes designed to protect
them.
Neither, however, is a blanket assertion of jurisdiction
appropriate. At times, the tribes continue to act in a
manner consistent with that mantle of uniqueness. They
do so primarily when they are fulfilling traditionally
tribal or governmental functions that are unique to their
status as Indian tribes. These functions are often per-
formed on the tribes’ reservations. Such traditionally
tribal or governmental functions, so located, are less
likely than commercial enterprises to involve non-
Indians and to substantially affect interstate commerce.
21 NLRB v. Bradford Dyeing Assn., 310 U.S. 318, 326 (1940); see
also 29 U.S.C. § 151 (“Experience has proved that protection by law of
the right of employees to organize and bargain collectively safeguards
commerce from injury, impairment, or interruption, and promotes the
flow of commerce . . .”).

SAN MANUEL INDIAN BINGO & CASINO 1063
Accordingly, in those circumstances, the Board’s interest
in effectuating the policies of the Act is likely to be
lower. Thus, when the Indian tribes are acting with re-
gard to this particularized sphere of traditional tribal or
governmental functions, the Board should take cogni-
zance of its lessened interest in regulation and the tribe’s
increased interest in its autonomy. In such circum-
stances, the Board should afford the tribes more leeway
in determining how they conduct their affairs by declin-
ing to assert its discretionary jurisdiction.
Determining whether to assert jurisdiction will require
careful balancing by the Board. Although such balanc-
ing, on a case-by-case basis, lacks the predictability pro-
vided by the former on-reservation/off-reservation ap-
proach, the process of litigation will mark the contours in
due time. Indeed, there is already a body of law differen-
tiating governmental functions and proprietary ones. In
any event, the approach we announce today will allow
the Board to better serve both its interests in effectuating
the policies of the Act and in according proper respect to
the unique status of Indian tribes.
C. Application to the Instant Case
Finally, we will apply our new approach to this case.
Consistent with the foregoing analysis, we find that the
Respondent is an employer pursuant to Section 2(2) of
the Act. Further, applying the Tuscarora–Coeur d’Alene
analysis, we find that there is no barrier to the Board’s
assertion of jurisdiction here. As discussed above, the
Act is a statute of general applicability. Thus, the Act
may apply to Indians and their enterprises provided that
none of the Coeur d’Alene exceptions apply.
None of the exceptions apply here. First, applying the
Act to the casino would not “touch exclusive rights of
self-governance in purely intramural matters.” Contrary
to the dissent’s and Respondent’s contentions, the tribe’s
operation of the casino is not an exercise of self-
governance. See Florida Paraplegic Assn. v. Micco-
sukee Tribe of Indians of Florida, 166 F.3d 1126, 1129
(11th Cir. 1999) (“tribe-run business enterprises acting in
interstate commerce do not fall under the ‘self-
governance’ exception to the rule that general statutes
apply to Indian tribes”). Intramural matters generally
involve topics such as “tribal membership, inheritance
rules, and domestic relations.” Coeur d’Alene, 751 F.2d
at 1116; see also Mashantucket Sand & Gravel, 95 F.3d
at 179. Apart from its ownership and location, the casino
is a typical commercial enterprise operating in, and sub-
stantially affecting, interstate commerce. Further, some,
if not many, of the casino’s employees are not members
of the tribe.
Our dissenting colleague’s argument that the Respon-
dent’s proprietorship of the casino should constitute an
intramural matter cannot withstand scrutiny. He argues
that because the tribe derives revenue from the casino
and uses the revenue to address the tribe’s intramural
needs, the means by which such revenue is generated
also must be categorized as intramural. Under this defi-
nition of intramural, the Coeur d’Alene exception would
swallow the Tuscarora rule. Thus, it is evident that the
dissent’s analysis of the applicability of the narrow
Coeur d’Alene exception is really just another attack on
Tuscarora’s general rule.22
Second, the Respondent does not allege the existence
of any treaties covering the tribe; thus, application of the
Act would not abrogate any treaty rights. Third, as dis-
cussed above, neither the language of the Act, nor its
legislative history, provides any evidence that Congress
intended to exclude Indians or their commercial enter-
prises from the Act’s jurisdiction.
Next, we find that policy considerations favor the as-
sertion of the Board’s discretionary jurisdiction in this
case. As just stated, the casino is a typical commercial
enterprise, it employs non-Indians, and it caters to non-
Indian customers. Moreover, assertion of jurisdiction
would not unduly interfere with the tribe’s autonomy.
As explained in Sac & Fox, the Act would not broadly
and completely define the relationship between the Re-
spondent and its employees. Nor would the Act’s effects
extend beyond the tribe’s business enterprise and regu-
late intramural matters.23
The only factor weighing against assertion of jurisdic-
tion is that the casino is located on the tribe’s reserva-
tion.24 This factor, however, is insufficient to outweigh
the others. The Board’s interest in asserting jurisdiction
is high, especially in light of the keen competition in the

22 Oklahoma Tax Commission v. Citizen Band Potawatomi Indian
Tribe of Oklahoma, 498 U.S. 505 (1991), upon which our dissenting
colleagues relies, is distinguishable. At issue in that case is amenability
of a tribe to suit by a State government to collect a tax on commercial
transactions on a reservation; whereas, in the instant case, the Federal
Government’s regulatory power is at issue. Moreover, the Court found
that the State could hold the tribe liable for taxes on sales by Indians to
non-Indians because such liability imposed only a minimal burden on
the tribe. Id. at 512–515.
23 Contrary to our dissenting colleague, the collective-bargaining
process will not impair the Respondent’s ability to hire as it wishes. An
employer is not obligated to agree in bargaining to hiring restrictions,
and the Board cannot impose any agreements. See H. K. Porter v.
NLRB, 397 U.S. 99 (1970).
24 We reject the Respondent’s attempt to liken its casino to a gov-
ernmental function by pointing to State governments’ involvement in
lotteries. Although the private, commercial sector does not have a
monopoly on the gambling industry, we reject the contention that gam-
bling has risen to the level of a traditional government function. The
fact that a government regulates the enterprise does not mean that the
enterprise is governmental. Similarly, even if an Indian tribe regulates
the enterprise, that does not mean that the enterprise is governmental.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1064
gaming industry—the non-Indian sector of which is sub-
ject to the Board’s jurisdiction.
Finally, we reject the contention of the Respondent and
its amicus, the National Indian Gaming Association
(NIGA), that the assertion of jurisdiction would conflict
with the Indian Gaming Regulatory Act (IGRA) (25
U.S.C. § 2701). Although the Board has an obligation to
accommodate other Federal statutory schemes where a
conflict exists,25 we find that no accommodation is war-
ranted here, as no conflict exists. The assertion of the
Board’s jurisdiction over the Respondent would not in
any way interfere with IGRA’s statutory scheme.
The purpose of IGRA is to provide a statutory basis for
Indian gaming, to provide Federal standards for the regu-
lation of Indian gaming, and to establish a Federal regu-
latory authority for Indian gaming. 25 U.S.C. § 2702.
Because the Act does not regulate gaming, application of
the Board’s jurisdiction will not interfere with applica-
tion of IGRA’s terms. Moreover, IGRA does not address
labor relations—the only aspect of the Respondent’s
business with which the Board is concerned.
Contrary to the Respondent’s contention, neither will
assertion of the Board’s jurisdiction undermine IGRA’s
goal of promoting tribal self-sufficiency. The Act does
not dictate any terms of any agreement or even that an
agreement be reached. The Board will treat the Respon-
dent just as it treats any other private sector employer.
Finally, we find no merit in NIGA’s contention that
the IGRA “preempts” the Act. Preemption issues arise
when a State law arguably conflicts with a Federal law.
A primary purpose of IGRA was to limit State regulation
of the tribes’ gaming activities. Linda King Kading,
Note, State Authority to Regulate Gaming Within Indian
Lands: The Effect of the Indian Gaming Regulatory Act,
41 Drake L. Rev. 317, 328–330 (1992). The Board is an
arm of the Federal Government, not State government.
Accordingly, IGRA is not directed at excluding Board
jurisdiction.
With this decision and its companion, Yukon Kuskok-
wim Health Corp., 341 NLRB No. 139 (2004), we em-
bark on a new approach to considering jurisdiction over
Indian owned and operated enterprises. The standard
established herein will better balance the competing in-
terests that cases involving Indian tribes bring to the
Board. That standard takes into account those aspects of
tribal sovereignty which have a rich tradition in our Na-
tion’s history, yet at the same time, accords due recogni-
tion of the Federal Government’s superior sovereignty
and its role in setting and regulating national labor pol-

25 See Hoffman Plastic Compounds v. NLRB, 535 U.S. 137, 147
(2002).
icy. The assertion of jurisdiction over the Respondent’s
commercial activities on the reservation strikes such a
balance.
ORDER
The Respondent’s motion to dismiss the complaint is
denied.

MEMBER SCHAUMBER, dissenting.
While the Board may decline, on prudential grounds,
to exercise its jurisdiction over certain entities Congress
included within the scope of the National Labor Rela-
tions Act (the Act), the Board may not expand the reach
of the Act beyond the limits set by its authors. A sub-
stantial body of Federal Indian law both predating and
postdating the Act recognizes that Indian tribes are “dis-
tinct, independent political communities, having territo-
rial boundaries, within which their authority is exclu-
sive.”1 That same body of law makes equally clear that
Indian sovereignty, which as the majority notes predates
the sovereignty of the Federal Government, remains in-
tact unless expressly limited by Congress. Consequently,
and unlike my colleagues, I believe the issue presented in
this case is not whether the Board should assert jurisdic-
tion over a commercial enterprise wholly owned and
operated by an Indian tribe and located on that tribe’s
reservation, but whether Congress has authorized us to
do so.
In the instant case, there is no dispute that both the text
of the Act and its legislative history are devoid of any
reference to coverage of Indian tribes. Not surprisingly,
therefore, the Board has never before asserted jurisdic-
tion over an Indian-owned and operated business located
on a tribal reservation. Rather, recognizing, implicitly or
explicitly, the unique sovereign status of Indian tribes,
the Board consistently has refused to find jurisdiction in
such cases.
Providence, however, apparently breeds policy, for the
Board today reverses course because, in the words of the
majority, “[a]s tribal businesses have grown and pros-
pered, they have become significant employers of non-
Indians and serious competitors with non-Indian owned
businesses.” In response to this new “prosperity,” the
majority undertakes a rebalancing of competing policy
interests and finds that the Act extends to on-reservation
tribal enterprises. To achieve this result, the majority
rests heavily on broad dictum from the Supreme Court’s
decision in Federal Power Commission v. Tuscarora
Indian Nation,2 as subsequently gilded by the Ninth Cir-
cuit. The Tuscarora dictum, however, is distinguishable
on its facts, lacks a basis in precedent, and has been criti-
1 Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559 (1832).
2 362 U.S. 99 (1960).

SAN MANUEL INDIAN BINGO & CASINO 1065
cized by scholars and rejected by other courts. More-
over, subsequent Supreme Court decisions have aban-
doned, if not implicitly overruled, the Tuscarora princi-
ple embraced by the majority. Thus, the majority, which
claims to “embark on a new approach” to jurisdiction
over tribal enterprises, does so upon a leaky vessel.
In my view, the rebalancing of competing policy inter-
ests involving Indian sovereignty is a task for Congress
to undertake. Well-established principles of Federal In-
dian law and statutory construction compel the Board to
determine, in the first instance, whether Congress has
affirmatively addressed the potential effects of legislation
on tribal rights and to err in favor of Federal noninterfer-
ence where regulatory statutes, such as the Act, are silent
or ambiguous as to coverage of Indian tribes. Because
the assertion of jurisdiction in this case would offend
those principles and conflict with both Board and Su-
preme Court precedent, I respectfully dissent.
I. FACTUAL BACKGROUND
The San Manuel Band of Serrano Indians (the Tribe) is
an Indian tribe that has occupied a federally recognized
reservation located in San Bernardino County, Califor-
nia, since 1891. A general council consisting of all tribal
members 21 years of age and older governs the Tribe.
To further its economic development and independ-
ence, the Tribe established and operates a gaming ca-
sino—the Respondent in this proceeding. The casino is
wholly owned and operated by the Tribe through the
general council and is located entirely within the territo-
rial limits of the reservation. Although the precise scope
of its operations is not clear from the record, the casino
appears to employ more than 1000 employees, many of
whom are not members of the Tribe, and serves patrons
drawn from the general public. In addition to gaming
operations, the casino sells food, beverages, and retail
items, and offers showcase entertainment. The casino
meets the Board’s jurisdictional commerce standards.
The Tribe operates and regulates the casino pursuant to
its own legislation, the San Manuel Gaming Act, which
established a tribal gaming commission to regulate and
license gaming activities on the reservation. The general
council, on behalf of the Tribe, sets all significant casino
operating policies, including its budget, wage and benefit
scales, and vacation and leave policies. Members of the
Tribe hold key positions in the casino’s management,
and tribal members are involved in every facet of the
project. As is required by Federal law, all casino reve-
nues are used exclusively to support the operation of the
Tribe’s government and the provision by the Tribe of
governmental services such as water and sewer projects,
roads, educational services, housing, and job training, for
the benefit of its members.
The Tribe has also adopted a comprehensive tribal la-
bor relations ordinance (TLRO) regulating labor relations
at the casino project. The TLRO provides that covered
employees have the right to self-organization, to form,
join, or assist employee organizations, to bargain collec-
tively through representatives of their own choosing, to
engage in other concerted activities for mutual aid or
protection, and to refrain from any of these activities.
The TLRO implements established principles of tribal
sovereignty by guaranteeing the primacy of “tribal law,
ordinances, personnel policies or the tribe’s customs and
traditions regarding Indian preference in employment,
promotion, seniority, lay-offs or retention.” Strikes are
allowed only when the parties reach impasse and have
exhausted specified dispute resolution procedures, and
strike-related picketing is prohibited on Indian lands.
II. ANALYSIS
A. Indian Tribes Enjoy a Unique Status and Retain
Sovereign Powers not Affirmatively Diminished
by the Federal Government
The unique relationship between the Federal and tribal
governments impacts our analysis of whether a Federal
statute applies to Indian tribes. Indian tribes existed as
independent sovereign nations long before European
colonization, and initially interacted with the United
States Government as such through intergovernmental
treaties. Ultimately, tribal governments were subordi-
nated to Federal authority and became “domestic de-
pendent nations . . . under the sovereignty and dominion
of the United States.”3 The Supreme Court has charac-
terized the relationship between the Federal Government
and Indian tribes as that of a “ward to his guardian,” es-
tablishing a fiduciary trust relationship.4 Pursuant to this
relationship, tribes, while no longer possessing the at-
tributes of full sovereignty, nonetheless retain those as-
pects of inherent sovereignty not affirmatively with-
drawn by treaty or statute or by implication as a neces-
sary result of their dependent status.5
The inherent sovereign powers retained by tribes are
those necessary to effective self-government, and include
the power to determine the form of government,6 enact
and enforce laws within the tribe’s territorial jurisdic-

3 Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831).
4 Id.
5 U.S. v. Wheeler, 435 U.S. 313, 322–323 (1978) (“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.”).
6 See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 62–63 (1978).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1066
tion,7 levy taxes,8 and exclude individuals from Indian
territory.9 Tribes also possess the inherent power to
regulate commerce within their territory,10 to manage
their domestic affairs,11 and to assert sovereign immunity
from lawsuits.12 All three branches of the Federal Gov-
ernment recognize and continue to reaffirm the vitality of
principles of retained tribal sovereignty and Indian self-
determination.13 They refer to the relationship between
the Federal government and Indian tribes as “govern-
ment-to-government” and to tribes as “domestic depend-
ent nations.”14
B. Because of the Federal-Tribal Fiduciary Relationship
and Deference to Indian Sovereignty, Special Canons of
Construction Apply when Determining the Applicability
of Federal Statutes to Indian Tribes
The trust obligation of the United States towards In-
dian tribes, first articulated by Chief Justice Marshall in
Cherokee Nation v. Georgia, supra, has been reaffirmed
repeatedly by the Supreme Court and remains “one of the

7 U.S. v. Wheeler, 435 U.S. at 322 (“[Indian tribes’] right of internal
self-government includes the right to prescribe laws applicable to tribe
members and to enforce those laws by criminal sanctions”); Williams v.
Lee, 358 U.S. 217, 220 (1959) (tribal governments retain the right to
“make their own laws and be ruled by them”).
8 Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 137 (1982) (de-
scribing the power to tax as “a necessary instrument of self-government
and territorial management” that “derives from the tribe’s general au-
thority, as sovereign, to control economic activity within its jurisdic-
tion”).
9 Merrion, 455 U.S. at 137; Montana v. U.S., 450 U.S. 544, 566
(1981) (tribes “retain inherent sovereign power to exercise civil author-
ity over the conduct on non-Indians on fee lands within [their] reserva-
tions when that conduct threatens or has some impact on the political
integrity, the economic security, or the health and welfare of the
tribe[s]”).
10 Merrion, 455 U.S. at 137; see also NLRB v. Pueblo of San Juan,
280 F.3d 1278, 1284 (10th Cir. 2000), affd. on rehearing en banc 276
F.3d 1186 (10th Cir. 2002) (tribes possess the “sovereign right to regu-
late internal economic matters” unless divested of that right by Federal
law).
11 Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55–56 (1978), and
cases cited therein.
12 Id. at 58.
13 See, e.g., the Indian Tribal Justice Act, Pub. L. No. 103-176, 107
Stat. 2004 (1993) (codified at 25 U.S.C.A. § 3601 (West. Supp. 2003))
(in which Congress refers in its findings, inter alia, to the “government-
to-government relationship between the United States and each Indian
tribe,” and the “self-determination, self-reliance, and inherent sover-
eignty of Indian tribes”); Executive Order No. 13175 § 2–3 (Nov. 6,
2000, 65 F.R. 67249) (in which President Clinton set forth “fundamen-
tal principles” guiding the development or implementation of policies
having tribal implications, including the existence of a “government-to-
government” relationship between the United States and Indian tribes,
and recognition that Indian tribes “exercise inherent sovereign powers
over their members and territory”); Oklahoma Tax Commission v.
Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505, 509
(1991) (“Indian tribes are ‘domestic dependent nations,’ that exercise
inherent sovereign authority over their members and territories.”).
14 Id.
primary cornerstones of Indian Law.”15 Courts therefore
presume that Congress’ intent towards tribes is benevo-
lent and apply special canons of construction in assessing
legislation affecting inherent tribal rights.16 As the Su-
preme Court explained in County of Oneida v. Oneida
Indian Nation of New York State, 470 U.S. 226, 247
(1985):

The canons of construction applicable in Indian law are
rooted in the unique trust relationship between the
United States and the Indians. Thus, it is well estab-
lished that treaties should be construed liberally in fa-
vor of the Indians, . . . with ambiguous provisions in-
terpreted for their benefit . . . . The Court has applied
similar canons of construction in nontreaty matters.

Accord: Merrion v. Jicarilla Apache Tribe, supra, 455 U.S.
at 152 (“[I]f there [is] ambiguity . . ., the doubt would bene-
fit the Tribe, for ‘[a]mbiguities in Federal law have been
construed generously in order to comport with traditional
notions of sovereignty and with the Federal policy of en-
couraging tribal independence.’”) (quoting White Mountain
Apache Tribe v. Becker, 448 U.S. 136, 143–144 (1980)).
In addition to the principle that any ambiguities in trea-
ties or statutes are to be construed in favor of Indian
tribes, Federal courts apply a strong presumption that in
enacting legislation Congress did not intend to abrogate
or abridge sovereign tribal rights.17 Thus, though stated
variously in different cases, the Supreme Court generally
has required a clear expression of Congressional intent in
order to impair tribal sovereignty.18 Mere silence on the
15 Felix Cohen, Handbook of Federal Indian Law, 221 (1982)
(Cohen).
16 Cohen at 221–225; see also Montana v. Blackfeet Tribe of Indians,
471 U.S. 759, 766 (1985) ([T]he standard principles of statutory con-
struction do not have their usual force in cases involving Indian law.).
17 Cohen at 222; 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 indication of legislative intent.”).
18 See, e.g., Elk v. Wilkins, 112 U.S. 94, 99–100 (1884) (noting that
“General Acts of Congress did not apply to Indians, unless so expressed
as to clearly manifest an intention to include them”); Menominee Tribe
of Indians v. U.S., 391 U.S. 404, 413 (1968) (holding that Federal stat-
ute did not nullify treaty rights of tribal members to hunt and fish on
reservation because the statute did not contain an “explicit statement”
abrogating such rights, and such an intention would not be “lightly
imputed to the Congress”); Bryan v. Itasca County, Minnesota, 426
U.S. 373, 380–381 (1976) (applying canons of construction applicable
to Federal statutes claimed to abrogate Indian immunities to find that
absent an expression of Congressional policy, statute could not be read
to infer Congressional intent to confer on States authority to tax Indians
or Indian property on reservations); Washington v. Fishing Vessel
Assn., 443 U.S. 658, 690 (1979) (“[a]bsent explicit statutory language,
we have been extremely reluctant to find Congressional abrogation of
treaty rights . . . .”); Santa Clara Pueblo, 436 U.S. at 580–560 (requir-

SAN MANUEL INDIAN BINGO & CASINO 1067
part of Congress does not suffice. If a statute and/or its
legislative history does not reflect an express intent on
the part of Congress to impair retained sovereign rights,
“the proper inference from silence on this point is that
the sovereign power . . . remains intact.”19
C. Application of Traditional Canons of Construction
Dictates a Finding that the Act does not Apply to a
Tribal-Owned and Operated Commercial Enterprise
Located on Reservation Lands
1. Assertion of Board jurisdiction would impair
tribal sovereignty
The Board’s assertion of jurisdiction in this case would
infringe upon the Tribe’s sovereign rights in several im-
portant respects. First, it plainly would negate the
Tribe’s retained sovereign right to enact laws regulating
commerce and the activities of persons employed by the
Tribe on its reservation. The comprehensive TLRO,
passed by the Tribe to govern employment relations,
would be preempted, or, at the very least, subject to
Board enjoinder. NLRB v. Pueblo of San Juan20 is illus-
trative. There, the Board sued a federally recognized
Indian tribe to enjoin enforcement of a tribal right-to-
work law applicable to all employers (including non-
Indian private employers) on tribal lands. The Tenth
Circuit rejected the Board’s challenge, explaining that
the “application of federal statutes to Indian tribes must
be viewed in light of the federal policies which promote
tribal self-government, self-sufficiency, and economic
development.”21 The Tenth Circuit concluded that the
exclusion of Indian tribes from the definition of a cov-
ered “employer” under Title VII of the Civil Rights Act
of 1964 “illustrates congressional intent not to interfere
in employee-management disputes on reservations,”
unless the statute in question expressly provides for their
inclusion.22 Finding no such express provision for cov-
erage of Indian tribes under the NLRA, and applying
traditional canons of construction applicable to statutes
affecting tribal rights, the court held that “the Pueblo has
the inherent right to adopt an ordinance which regulates
the commercial activities of a non-Indian company on
tribal land operating under a lease with the tribe.”23

ing “unequivocally expressed” Congressional intent to waive tribal
sovereign immunity).
19 Merrion, 455 U.S. at 149 fn. 14. See also Iowa Mutual Insurance
Co. v. LaPlante, 480 U.S. 9, 17–18 (1987).
20 280 F.3d 1278.
21 Id. at 1284.
22 Id. at 1285.
23 Id. at 1286. The majority attempts to distinguish Pueblo of San
Juan on the grounds that the case involved a tribe’s authority to enact a
right-to-work ordinance whereas the issue here is whether the Act
applies to the Tribe’s casino. That purported distinction is unpersua-
Second, the Board’s assertion of jurisdiction over
tribal labor relations would impair Indian sovereignty no
less than the Board’s assertion of jurisdiction over a
state’s employment relationships with its employees.
The fact that a tribe may, as here, employ some non-
members in the conduct of its business no more negates
the scope of its sovereignty than the fact that a State gov-
ernment employs nonresidents.24 Tribes cannot reasona-
bly be expected to look only to their members for all of
the skills and expertise necessary to carry out their activi-
ties. A tribe’s ability to establish and control the terms
and conditions of employment for its member and non-
member employees is an essential aspect of self-
government that clearly “has some direct effect on the
political integrity, the economic security, or the health
and welfare of the tribe.”25 Moreover, application of the
Act to the Tribe would restrict the Tribe’s recognized
sovereign right to regulate the employment of non-
Indians who have chosen to “enter consensual relation-
ships with the tribe or its members through commercial
dealing, contracts, leases, or other arrangements.”26 Fi-
nally, extension of the Act to the Tribe would impair the
Tribe’s ability to accord tribal preferences in hiring by
subjecting that ability to the collective-bargaining proc-
ess and review by the Board.
As was recognized in NLRB v. Pueblo of San Juan,27

The tribe’s sovereign status is directly related to its
ability to generate revenues through the regulation of
commercial activities on the reservation. Lease provi-
sions which restrict closed shops and give preferential
hiring to tribal members are indeed internal economic
matters which directly affect a sovereign’s right of self-
government.

In cases involving the applicability of Federal em-
ployment statutes to State governments, courts have re-
quired a clear and plain expression of Congressional in-
tent to subject State government employment relation-

sive because, as discussed above, the Tribe’s authority to enact the
TLRO is at issue in this case.
24 Cf. Merrion, 455 U.S. at 145–147 (tribe does not abandon sover-
eign powers when it engages in commercial activities with nonmem-
bers). Of course, the degree of infringement on tribal sovereignty is
particularly acute when an employee is a member of the tribe. See
EEOC v. Fond du Lac Heavy Equipment & Construction Co, 986 F.2d
246 (8th Cir. 1993) (application of the Age Discrimination in Employ-
ment Act to a claim asserted by a tribe member against a tribal em-
ployer would dilute the sovereignty of the tribe).
25 Montana, 450 U.S. at 566.
26 Montana, 450 U.S. at 565.
27 280 F.3d at 1286.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1068
ships to Federal regulation.28 No lesser standard should
apply here.
Third, although Indian tribes do not enjoy sovereign
immunity against the United States, principles of sover-
eign immunity are implicated where a statute, such as the
Act, subjects a sovereign to potential awards for backpay
damages and unpaid benefits. Such awards must be paid
from the tribe’s treasury, as must the attendant legal fees,
thereby depleting resources necessary to carry out gov-
ernment functions and to improve the economic status of
the tribe’s members. Indeed, tribal governments are par-
ticularly vulnerable to actions for damages, because, as
the Respondent and its amici point out in their briefs,
such governments are highly dependent for their survival
upon revenues generated by tribal business enterprises.
Subjecting tribal governments to administrative investi-
gations, intrusions upon tribal lands, and the award of
potentially significant damages clearly infringes upon
tribal sovereignty. These effect, in essence, a forced
waiver of sovereign immunity. Congress can, of course,
waive tribal immunity, but as the Supreme Court has
made clear, any such waiver must be “unequivocally
expressed.”29
Fourth, tribal sovereignty includes the right to exclude
non-Indians from tribal lands. “A tribe needs no grant of
authority from the federal government to exercise, either
as a government or as a landowner, the inherent power of
exclusion from tribal territory. . . . The exclusionary
power is a fundamental sovereign attribute intimately
tied to a tribe’s ability to protect the integrity and order
of its territory and the welfare of its members.”30 Even
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 con-
duct . . . .”31 The Board’s assertion of jurisdiction would
significantly interfere with that sovereign right. Applica-
tion of the Act would require the Tribe to open its bor-
ders not just to Board officials, but also to union organiz-
ers and other agents for organizational and representa-
tional purposes. Similarly, the Board or an arbitrator
could order either a member or non-member employee’s
reinstatement, which would require the Tribe to relin-

28 Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242 (1985)
(“Congress may abrogate the States’ constitutionally secured immunity
from suit in federal court only by making its intention unmistakably
clear in the language of the statute.”).
29 Santa Clara Pueblo, 436 U.S. at 58.
30 Cohen at 252.
31 Merrion, 455 U.S. at 144.
quish its sovereign authority to exclude persons from the
reservation.32
In short, application of the Act to the Tribe and its
wholly owned and operated casino on reservation land
would directly impinge numerous important aspects of
retained tribal sovereignty.
2. The Act does not reflect the required clearly expressed
Congressional intent to impinge on tribal sovereignty, so
the Board may not assert jurisdiction
As noted above, the Supreme Court consistently has
held that infringements on a tribe’s sovereign authority
are impermissible absent express statutory language or a
clear indication to that effect in the statute’s legislative
history.33 The majority concedes that no such expression
of intent is to be found in the Act. Accordingly, the
Board lacks jurisdiction to regulate the labor relations of
tribal enterprises operating on reservation lands.
This conclusion is consistent with extant Board law.
In Fort Apache Timber Co.,34 the Board dismissed for
lack of jurisdiction a representation petition for a unit of
employees of a tribal owned and operated logging opera-
tion doing business on reservation lands. There, as here,
the tribe was governed by a tribal council that possessed
the authority, inter alia, to act for the tribe in all matters
concerning the tribe’s welfare; to negotiate contracts for
the tribe; to veto disposition of tribal lands and assets; to
manage the tribe’s economic affairs and businesses; to
regulate and enact legislation; to levy and collect taxes
and impose licenses; to establish tribal courts and law
enforcement; and to remove and exclude any nonmember
of the tribe from the reservation.35 In addition, the log-
ging operation, like the casino here, was owned by the
tribe and operated by the tribal council, which paid the
employees and established their wages and working con-
ditions.36
In determining that it lacked jurisdiction, the Board in
Fort Apache, supra, relied upon established Federal law
and policy recognizing Indian tribes’ existence as inde-
pendent sovereigns; “distinct political bodies” possessing
exclusive governmental authority within the defined
32 Consider, for example, a tribe member casino employee who is
expelled from the reservation (and subsequently fired) for conduct
inimical to tribal values or interests, but unrelated to his or her em-
ployment duties. Could an arbitrator compel the employee’s reinstate-
ment and consequent admission to the reservation because the termina-
tion was not for just cause? Could the Board reach the same result if it
found that the discharge was in violation of the Act?
33 Merrion, 455 U.S. at 148 fn. 14; Iowa Mutual Insurance Co., 480
U.S. at 17–18 (collecting cases).
34 226 NLRB 503 (1976).
35 Id. at 503–504.
36 Id.

SAN MANUEL INDIAN BINGO & CASINO 1069
boundaries of their reservations.37 The Board also ac-
knowledged as “one of the fundamental principles” of
Federal Indian law, that unless “expressly qualified” by
treaty or act of Congress, “full powers of internal sover-
eignty [remain] vested in the Indian tribes and in their
duly constituted organs of government.”38 The Board
concluded that, although the analogy between Indian
tribes and their governing councils and other entities
such as States, territories, or Nations is imperfect, “it is
clear beyond peradventure that a tribal council such as
the one involved herein—the governing body on the res-
ervation—is a government both in the usual meaning of
the word, and as interpreted and applied by Congress, the
Executive, and the Courts.” Thus, the tribal council as a
government, and its “self-directed enterprise on the res-
ervation,” were implicitly exempt from the Act, 2(2)’s
definition of “employer.”39
The Board applied the same rationale in Southern In-
dian Health Council,40 dismissing, again for lack of ju-
risdiction, a representation petition covering employees
of a health care clinic operated by a consortium of seven
Indian tribes and located on the reservation of one of the
tribes. The clinic’s governing body consisted of a board
of directors, each of whom was a tribe member appointed
to serve by his or her tribal government. The board of
directors set all employment policies and had authority to
approve the hiring and firing of designated employees.
Tribe members received a hiring preference, and consti-
tuted most of the clinic’s nonprofessional employees.41
The Board concluded that Fort Apache controlled: in
both cases, the employers were wholly owned and di-
rected and controlled by tribal governing councils ap-
pointed by the tribes. Thus, the Board held:

In Fort Apache, [we] found that a tribal council
is a “government,” and thus that an entity adminis-
tered by individuals directly responsible to a tribal
council is exempt from the Act as a “government en-
tity.” In the instant case we similarly conclude that
the seven-member consortium of tribes, and its en-
terprise on the reservation that is here asserted to be
an employer, are implicitly exempt as government
entities within the meaning of the Act.42

The driving principle in both Fort Apache and South-
ern Indian Health Council was not, as my colleagues
suggest, either geography per se or a conclusion that In-

37 Id. at 505 (quoting Worcester v. State of Georgia, supra, 31 U.S. at
557).
38 Id. (quoting Cohen at 122).
39 Id.
40 290 NLRB 436 (1988).
41 Id. at 436.
42 Id. at 437 (footnote omitted).
dian tribes constitute “states or political subdivisions
thereof” within the meaning of the Act, Section 2(3).43
Rather, both cases turned on the Board’s recognition of
and deference to the sovereign status of Indian tribes
within reservation borders, and the corresponding limita-
tion of the application of State and Federal statutes to
tribal government entities except as explicitly authorized
by Congress.44 In each case, the Board acknowledged
that Indian tribes on their reservations are separable sov-
ereignties governed by a tribal council, and that their
wholly owned and operated business enterprises consti-
tuted instruments of that governing body. Absent an
express indication on the part of Congress that the Act
was intended to apply to such government entities, the
Board would not presume such a result.45
Texas-Zinc Minerals Corp.46 and Devils Lake Sioux
Mfg. Corp.,47 relied upon by the majority, do not compel
a different conclusion. In both cases, the employers at
issue were essentially nontribal commercial operations
fortuitously situated on leased tribal lands.48 Otherwise,
their status as employers within the meaning of Section
2(2) was unquestioned. Only on these facts did the D.C.
Circuit, in upholding the Board’s assertion of jurisdiction
43 The Board in Fort Apache did not hold that Indian tribes and their
commercial enterprises are “political subdivisions” within the meaning
of the Act, Sec. 2(3). Rather it found that exempting tribes from the
coverage of the Act was consistent with the Supreme Court’s conclu-
sion in NLRB v. Natural Gas Utility District, 402 U.S. 600, 604 (1971),
that a utility district administered by individuals responsible to public
officials was exempt from the Act as a political subdivision. Because
the timber company was an entity administered by individuals directly
responsible to the Fort Apache tribal council, the timber company was
the type of sovereign government entity “to whose employees the Act
was never intended to apply.” Id. at 506 fn. 22.
44 The statutory definition of “employer” may not have a geographic
component, but the sovereign status of Indian tribes clearly does have
an obvious and important territorial limitation. See, e.g., White Moun-
tain Apache Tribe v. Bracker, 448 U.S. 136, 151 (1980) (“The Court
has repeatedly emphasized that there is a significant geographical com-
ponent to tribal sovereignty.”).
45 See id. at 506 (“It is clear that . . . Indian tribal governments, at
least on reservation lands, are generally free from state or even in most
instances Federal intervention, unless Congress has specifically pro-
vided to the contrary”), and fn. 14 (noting that even the rules and regu-
lations of the Department of Interior, the entity charged with the ad-
ministration of Indian affairs and reservations, are deemed inapplicable
to tribes or reservations unless the “rule or regulation specifically states
otherwise.”) (emphasis in original).
46 126 NLRB 603 (1960). A suit to enjoin the election directed by
the Board was rejected by the D.C. Circuit in Navajo Tribe v. NLRB,
288 F.2d 162 (D.C. Cir. 1961).
47 243 NLRB 163 (1979).
48 In Texas-Zinc Minerals, supra, the privately owned employer op-
erated a uranium concentrate mill on leased reservation land. In Devils
Lake Sioux, supra, the employer was a North Dakota corporation in
which the Sioux Indian tribe held an ownership interest, but another
corporation exercised effective and complete management and control
over the company’s operations.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1070
in Texas-Zinc Minerals Corp., opine that the mere fact
that an employer clearly subject to the Board’s jurisdic-
tion happened to be located on a reservation does not
“remove it or its employees—be they Indians or not—
from the coverage of the Act.”49
Moreover, although the Board in Fort Apache did not
need to read an “implicit exemption” for Indian tribes
into 2(2)’s definition of “employer” given the absence of
any express Congressional intent to extend the Act to
tribes, such a reading is, in fact, consistent with the prin-
ciple that ambiguous statutory provisions are to con-
strued liberally in favor of tribal sovereignty. Indeed,
Federal courts have held that the governments of Puerto
Rico and U.S. territories are exempt from coverage under
the Act despite the fact that such entities, like tribal gov-
ernments, are neither States nor political subdivisions of
States.50 Nonetheless, the essence of the Board’s hold-
ing in Fort Apache is respect for Indian sovereignty, self-
sufficiency and economic development, and the applica-
tion of established canons of statutory construction that
accord Indian tribes a presumption in favor of noninter-
ference when regulatory statutes are silent as to their
applicability to tribes. Application of those principles in
this case leads inescapably to the conclusion that the
Board’s sudden departure from its past precedent is im-
proper.
D. Tuscarora and Its Progeny do not Justify the
Assertion of Jurisdiction
The majority avoids contending with years of Federal
Indian law precedent by adopting the Ninth Circuit’s
decision in Donovan v. Coeur d’Alene Tribal Farm51 as
the standard to be applied in assessing the applicability
of Federal statutes to Indian tribes. Coeur d’Alene fash-
ioned a new rule of statutory construction, one wholly at
odds with established Indian law, based solely upon dic-
tum from the Supreme Court’s decision in Federal
Power Commission v. Tuscarora Indian Nation,52
wherein the Court stated that “a general statute in terms
applying to all persons includes Indians.”53 As demon-

49 Navajo Tribe, 288 F.2d at 164.
50 Chaparro-Febus v. Longshoremen Local 1575, 983 F.2d 325,
329–330 (1st Cir. 1993); Virgin Islands Port Authority v. SIU de Puerto
Rico, 354 F. Supp. 312, 313 (D.V.I. 1973), affd. 494 F.2d 452 (3d Cir.
1974).
The majority attempts to distinguish these cases, but neither disputes
the lack of Board jurisdiction over territorial governments nor explains
how this exemption fits within the analysis the majority adopts today.
51 751 F.2d 1113 (9th Cir. 1985). The Ninth Circuit actually fash-
ioned the analysis applied in Coeur d’Alene in an earlier case, U.S. v.
Farris, 624 F.2d 890 (9th Cir. 1980), cert. denied 449 U.S. 1111
(1981). However, because the majority refers to the Coeur d’Alene
analysis, I will as well.
52 362 U.S. 99 (1960).
53 Id. at 116.
strated below, however, reliance on Tuscarora and its
progeny is misplaced for several reasons. First, the
quoted language from Tuscarora is mere dictum prem-
ised on inapposite authority, and has been called into
question subsequently by other courts and criticized by
scholars of Indian law, including the very treatise cited
by the majority. Second, the Tuscarora dictum has been
implicitly overruled, and is, in any event, inconsistent
with subsequent Supreme Court precedent reflecting
greater deference to Indian self-government and sover-
eignty. Finally, the approach followed in Coeur d’Alene
trivializes Indian sovereignty, and ignores the standards
of statutory construction applicable to laws affecting
tribal interests.
1. The Tuscarora “principle” is questionable dictum
lacking any foundation in Indian law
My colleagues cleverly posit that the Board’s conclu-
sion in Fort Apache “stands in direct conflict to the posi-
tion taken by the majority of Federal courts of appeals
regarding the applicability of Federal law to Indians.”
While it is true that several courts of appeal have ele-
vated and applied the Tuscarora dictum (while other
courts have declined to do so), this dictum, in fact, stands
in sharp and isolated contrast to a significant and long-
standing body of contrary Supreme Court precedent,
much of it cited above, with which Fort Apache is en-
tirely consistent. Tuscarora and the gloss placed on its
dictum by the Ninth Circuit, not Fort Apache, represent
an abrupt departure from prior Supreme Court rulings
that Federal statutes would not be deemed to apply to
Indian tribes or individual members on tribal reservations
absent a clear expression of intent on the part of Con-
gress. When viewed in context and analyzed with care,
the narrowness of what my colleagues refer to as the
Tuscarora “principle” and the weakness of its foundation
become readily apparent.
In Tuscarora, the Supreme Court determined whether
the Federal Power Act (FPA) authorized the appropria-
tion through eminent domain of 22 percent of the Tus-
carora Nation’s tribal homeland for a storage reservoir to
be built for a hydroelectric power project. The Tuscaro-
ras held the land in fee rather than as a federally-
recognized reservation. The FPA sanctioned the use of
eminent domain generally, but protected lands desig-
nated as “reservations” by requiring a Federal Power
Commission finding that the project would “not interfere
with or be inconsistent with the purpose for which such
reservation was created or acquired.” The Commission
had issued no such finding in the proceedings below.
The FPA defined “reservations,” as “national forests,

SAN MANUEL INDIAN BINGO & CASINO 1071
tribal lands . . . military reservations and other lands and
interests in lands owned by the United States . . . .”54
The Supreme Court found first that the Tuscaroras’
homeland was not a “reservation” within the meaning of
the FPA because the tribe held the land in fee and the
FPA explicitly limited the term reservation to those
“lands and interests in lands owned by the United
States.” Thus, the Court reasoned, the land was not land
“owned by the United States,” did not meet the statutory
definition of a reservation, and therefore no Commission
finding was needed.55
The Court next considered whether the general emi-
nent domain powers of the FPA authorized the taking,
notwithstanding the Tuscaroras’ argument that Supreme
Court precedent clearly established that “General Acts of
Congress did not apply to Indians, unless so expressed as
to clearly manifest an intention to include them.”56 Ac-
knowledging that authority, the Court nonetheless chose
not to follow it, stating that “it is now well settled by
many decisions of this Court that a general statute in
terms applying to all persons includes Indians and their
property interests.”57 However, the “many decisions” to
which the Court referred (there were actually three) in-
volved the taxation of individual Indians, not the inherent
sovereign rights of tribes on reservations.58 In each of
those cases, the Court applied a principle unique to tax
law, namely that such statutes are presumed to apply to
all citizens and upon all sources of income unless an in-
tent to exclude a person or source of income is clearly
expressed.59 Applying that tax rule, over an impassioned
dissent by Justice Black joined by Chief Justice Warren
and Justice Douglas, the Court concluded that the FPA
authorized the taking of the Tuscaroras’ land.60
What can be gleaned from Tuscarora is the following.
First, the Court’s broad language about the applicability
of general statutes to Indians was merely dictum, because
the FPA, unlike the Act, specifically addresses the taking

54 Id., 362 U.S. at 107–111.
55 Id., 362 U.S. at 110–114
56 Id., 362 U.S. at 115–116 (quoting Elk v. Wilkins, 112 U.S. at 99–
100).
57 Id., 362 U.S. at 116.
58 Id. (citing Superintendent of Five Civilized Tribes v. Commis-
sioner, 295 U.S. 418 (1935) (Federal tax laws applied to earnings of
funds invested on behalf of individual tribe member); Oklahoma Tax
Commission v. U.S., 319 U.S. 598 (1943) (State could impose inheri-
tance tax on estate of tribal member).
59 Id. (quoting Choteau v. Burnet, 283 U.S. 691, 693, 696 (1931)
(“‘The language of the [Internal Revenue Code] subjects the income of
‘every individual’ to tax. . . . [T]he intent of Congress was to levy the
tax with respect to all residents of the United States and upon all
sources of income. . . . The intent to exclude must be definitely ex-
pressed, where, as here, the general language of the act laying the tax is
broad enough to include the subject matter.”).
60 Id., 362 U.S. at 118.
of tribal lands, reflecting a clear Congressional intent to
apply the FPA as a whole to Indians and tribes.61 Sec-
ond, Tuscarora’s outcome turned on the fact that the land
in question was held in fee simple and did not constitute
a reservation within the meaning of the FPA. In contrast,
application of the Act would directly impact the inherent
sovereign rights of the Respondent. Third, Tuscarora,
unlike Fort Apache and Southern Indian Health Council,
and unlike the instant case, involved Indian property
rights, not the interplay between Indian sovereignty and
the authority of the Board under the Act. Finally, the
cases relied upon by the Tuscarora majority involved a
unique tax rule and its applicability to individual Indians
living away from their reservations, not the parameters of
tribal sovereignty on reservation lands, the issue pres-
ently before us.
2. The Tuscarora “principle” has been criticized
by scholars and abandoned, if not overruled, by
the Supreme Court
Numerous commentaries, including Felix Cohen’s de-
finitive Handbook of Federal Indian Law relied upon by
the majority, have criticized the reasoning of the Tus-
carora majority, as well as the adoption of its dictum by
lower courts.62 The Supreme Court itself has referred to
61 Citing the principle that language in an opinion is not dicta simply
because a case could have been decided on another, narrower basis or
involved multiple grounds of decision, the majority claims that the
sentence from Tuscarora on which they rely is not dicta. I agree with
the general principle my colleagues advance, but it has no application
here. On its face, the language from Tuscarora is inapplicable because
it speaks to “Indians” while this case involves the rights of Indian
tribes. Moreover, the FPA explicitly addresses the statute’s applicabil-
ity to Indian lands. Thus, any implication in Tuscarora about statutes
of general application that do not reference Indian tribes is dicta, a view
shared not just by scholars, see fn. 37, infra, but a number of courts as
well. See, e.g., Reich v. Mashantucket Sand & Gravel, 95 F.3d 174,
177 (2d Cir. 1996) (noting that the Ninth Circuit in Coeur d’Alene
“borrowed a presumption from dictum in [Tuscarora] . . . that a general
statute in terms applying to all persons includes Indians and their prop-
erty interests.”) (citations and internal quotations omitted); EEOC v.
Cherokee Nation, 871 F.2d 937, 938 fn. 3 (10th Cir. 1989) (describing
the language in Tuscarora concerning the applicability of statutes of
general application to all persons including Indians as “broad dictum.”);
Multimedia Games, Inc. v. WLGC Acquisition Corp., 214 F.Supp.2d
1131, 1135–1136 (N.D. Okla. 2001) (discussing rejection and limita-
tion of the Tuscarora “dictum” by various courts).
62 Cohen at 284; see also Vicki J. Limas, Application of Federal La-
bor & Employment Statutes to Native American Tribes: Respecting
Sovereignty and Achieving Consistency, 26 Ariz. St. L. J. 681, 696–699
(1994) (Tuscarora dictum represented an abrupt and unwarranted de-
parture from established canons of construction applicable to tribal
interests); Alex Tallchief Skibine, Applicability of Federal Laws of
General Application to Indian Tribes and Reservation Indians, 25 U.C.
Davis L. Rev. 85, 105–107 (1991) (distinguishing the tax cases relied
upon in Tuscarora because of the presumption of universal coverage
attending such laws); Maureen M. Crough, Comment, A Proposal for
Extension of the Occupational Safety and Health Act to Indian-Owned

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1072
the Tuscarora dictum only once in the last 44 years, in
another decision involving the FPA.63 Moreover, the
Tenth Circuit, in a case involving the application of the
Act to Indian tribes on their reservations, rejected the
Tuscarora dictum outright, deeming it to have been lim-
ited if not implicitly overruled by subsequent Supreme
Court cases recognizing that tribal sovereign rights may
not be abridged in the absence of express Congressional
intent.64
The majority vainly attempts to distinguish post-
Tuscarora Supreme Court cases on the ground that they
“concern critical internal matters of self-governance,”
while this case, in their view, does not. With due re-
spect, and putting aside for the moment the fact that ap-
plication of the Act in this case would impair the tribe’s
power to engage in self-governance, the majority misses
the point. The issue at hand is the nature of the analysis
we are bound to apply in determining whether Congress,
in enacting the Act, intended the Act to extend to on-
reservation tribal enterprises. If the Tuscarora dictum, as
interpreted by Coeur d’Alene, is good law, we must pre-
sume that Congress intended to do so unless one of the
Coeur d’Alene-crafted exceptions applies. On the other
hand, if the vast body of pre-Tuscarora Supreme Court
precedent on Indian sovereignty is controlling, we pre-
sume that Congress did not intend the Act to cover such
on-reservation enterprises, absent a clear expression of
intent to the contrary. That issue is addressed in the post-
Tuscarora cases the majority so cavalierly dismisses, and
the Supreme Court’s resolution of the issue is fatal to the
majority’s position.
In Merrion, which postdates the Farris case upon
which Coeur d’Alene is premised, the Court addressed

Businesses on Reservations, 18 U. Mich. J. L. Ref., 473, 486–487
(1985) (noting that the Tuscarora dictum “says no more than that gen-
eral laws apply to Indians living away from their tribes, a subject tan-
gential to the holding that laws specifically referring to tribes apply to
them”); Judith Royster & Rory SnowArrow Fausett, Control of the
Reservation Environment: Tribal Primacy, Federal Delegation and the
Limits of State Intrusion, 64 Wash. L. Rev. 581, 591 (1989) (discussing
fragile underpinnings of Tuscarora dictum and its departure from estab-
lished precedent).
63 See Escondido Mutual Water Co. v. La Jolla Band of Mission In-
dians, 466 U.S. 765, 786–787 (1983). Indeed, in doing so, the Court
reiterated that both the text and legislative history of the FPA “specifi-
cally define[] and treat[] with lands occupied by Indians,” and “give[]
every indication that . . . Congress intended to include lands owned or
occupied by any persons or persons, including Indians.” Id. at 787
(quoting Tuscarora, 362 U.S. at 118). By contrast, the Act and its
legislative history are utterly silent as to coverage of tribal employers
operating within the sovereign boundaries of reservations.
64 NLRB v. Pueblo of San Juan, 280 F.3d at 1283–1284 (reiterating
its conclusion in Donovan v. Navaho Forest Products, 692 F.2d 709,
712 (10th Cir. 1982), that the Tuscarora dictum had been limited or
implicitly overruled by Merrion, 455 U.S. at 141).
whether Congress, in enacting two Federal acts govern-
ing Indians and various pieces of Federal energy legisla-
tion, implicitly deprived the Jicarilla Apache Tribe of its
inherent sovereign power to impose a severance tax on
companies extracting oil and gas from leased reservation
lands. The Court did not cite to or engage in a Farris-
Coeur d’Alene analysis, but rather reaffirmed traditional
principles of Indian sovereignty and applied the normal
rules of statutory construction governing Federal legisla-
tion impacting tribal rights. Specifically, the Court “reit-
erate[d] . . . [its] admonition in Santa Clara Pueblo v.
Martinez: . . . [that] ‘a proper respect both for tribal sov-
ereignty 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.’”65 The Court
also restated the requirement of a “clear indication” of
Congressional intent to impinge on tribal sovereignty,
and reaffirmed the principle that ambiguities in Federal
law must be construed generously “‘in order to comport
with . . . traditional notions of sovereignty and with the
federal policy of encouraging tribal independence.’”66
Similarly, in Iowa Mutual Ins. Co. v. LaPlante,67 de-
cided after both Farris and Coeur d Alene, the Supreme
Court considered whether Congress, in enacting the gen-
eral Federal diversity statute, 22 U.S.C. § 1332, intended
to deprive tribal courts of jurisdiction over suits covered
by the statute. Again, the Court made no reference to
Coeur d’Alene and instead reaffirmed traditional princi-
ples of Federal Indian law and rules of statutory con-
struction. Applying the same, the Court concluded that §
1332 contained no clear expression of Congressional
intent to impair tribal sovereignty, so tribal jurisdiction
remained unabridged.68
Proffering the reddest of herrings, my colleagues ac-
cuse me of challenging the wisdom of the Supreme
Court’s pronouncements. Nothing could be further from
the truth. In my view, Tuscarora was decided correctly
and consistently with traditional Supreme Court Indian
jurisprudence because the FPA, as the Supreme Court
observed in Tuscarora, “neither overlooks nor excludes
Indians or lands owned or occupied by them. . . . In-
stead, as has been shown, the Act [and its legislative his-
tory] specifically define[s] and treat[s] with lands occu-
pied by Indians . . . .” 362 U.S. at 118. Rather, my con-
cern is the elevation, by some other courts, of broad and
65 455 U.S. at 149 (quoting Santa Clara Pueblo, 436 U.S. at 60).
66 Id. at 152 (quoting White Mountain Apache Tribe v. Bracker, 448
U.S. 136, 143–144 (1980)).
67 480 U.S. 9 (1987).
68 Id., 480 U.S. at 18 (citing the Merrion principle that the proper in-
ference to be drawn from Congressional silence is that Indian sovereign
power remains intact).

SAN MANUEL INDIAN BINGO & CASINO 1073
long dormant dictum from Tuscarora over the clear and
virtually unbroken line of Supreme Court precedent dic-
tating the nature of the analysis we should apply in as-
sessing whether a Federal statute applies to tribal owned
and operated businesses located on Indian reservations.
The fealty the majority swears is not to Tuscarora, but to
a Coeur d’Alene analysis, which itself represents an im-
plicit rejection and limitation of the broad Tuscarora
dictum.
Nor am I encouraging the majority to “follow [me] to a
place the Supreme Court has not gone”; that is a trail my
colleagues blaze with their decision today.69 Instead, I
am encouraging the majority to stay put: to adhere to our
existing precedent in Fort Apache, to adhere to the prin-
ciples of Indian sovereignty and statutory construction
repeatedly articulated by the Supreme Court both before
and after Tuscarora. In fact, I am urging the majority to
exercise the same restraint and deference to the role of
Congress demonstrated by the Supreme Court in Kiowa
Tribe of Oklahoma v. Mfg. Technologies, Inc., 523 U.S.
751 (1998). In that case, the Court, noting (akin to the
majority here) that there may be reasons to doubt the
wisdom of perpetuating the doctrine of tribal sovereign
immunity in light of “modern, wide-ranging tribal enter-
prises extending well beyond traditional tribal customs,”
nonetheless declined to revisit its established case law,
deferring instead to Congress, which “is in a position to
weigh and accommodate the competing policy concerns
and reliance interests.” Id. at 758–760. If Congress
wishes to subject on-reservation, tribal enterprises to the
Act, it can easily do so. Similarly, the Supreme Court
could take the lead and adopt Coeur d’Alene as the law
of the land. However, neither has yet so acted, and it
seems both unwise and imprudent for the Board to depart
from its existing precedent, usurp Congressional policy
prerogatives, and ignore a substantial body of Supreme
Court Indian jurisprudence on the basis of dictum from a
single case.
The Supreme Court’s post-Tuscarora adherence to the
very principles that infused the Board’s decision in Fort
Apache affirms, in my view, the correctness of that deci-
sion and its applicability to the instant case. The Coeur
d’Alene analysis presumes from Congressional silence an
intent to extend the Act to on-reservation tribal enter-
prises (and requires an affirmative showing of Congres-
sional intent that the Act was not meant to apply), despite
the fact that the law, as articulated by the Supreme Court,
was exactly to the contrary before and after the Act came
into being. To paraphrase from the Supreme Court’s

69 The Supreme Court has never cited, much less endorsed, Coeur
d’Alene.
decision in Merrion, such an analysis “turns the concept
of [Indian] sovereignty on its head.”70
3. The Coeur d’Alene analysis trivializes
Indian sovereignty
Apart from its utter inconsistency with well-
established law, the Coeur d’Alene analysis advocated by
the majority trivializes Indian sovereignty. That analysis
requires proof of Congressional intent to extend legisla-
tion to Indian tribes only if the law touches, in the view
of a reviewing court, “exclusive rights of self-govern-
ment in purely intramural matters.” As the majority
notes, a number of courts following this analysis have
narrowly limited the scope of “internal or intramural
matters” to topics such as tribal membership, inheritance
rules, and domestic relations. Consequently, if, as here,
the subject involves a commercial activity affecting in-
terstate commerce (and virtually any such activity
would) or the employment of nontribal members, no
sovereign interest is deemed to be implicated by the ap-
plication of a Federal statute.
As noted previously, however, tribes cannot do busi-
ness solely with themselves or other tribes, nor can they
rely exclusively upon their membership for the skills and
expertise necessary to carry out their activities. A tribe
no more waives its sovereignty because it employs non-
members than a state does when it employs nonresidents
or the Federal Government does when it employs non-
citizens. In fact, as the legislative history of Title VII
reflects, Congress excluded Indian tribes from the defini-
tion of “employer” in recognition of Indian tribes’ status
as separate sovereign entities entitled to the same privi-
leges accorded the Federal Government “to conduct their
own affairs and economic activities” without regulatory
interference.71 Thus, Congress has explicitly recognized
that interference with tribal employment relationships
affects tribal sovereignty. Similarly, the Supreme Court
has recognized that tribes retain civil jurisdiction over
nonmembers within Indian lands, and regulatory author-
ity over persons and entities doing business with tribes
on reservations.72 Consequently, when a tribe employs
nonmembers, the terms of the employment relationship
fall within the ambit of the tribe’s sovereignty over inter-
nal matters.
70 Merrion, 455 U.S. at 148.
71 See Pueblo of San Juan, 280 F.3d at 1285 and fn. 5 (discussing
legislative history of Title VII).
72 See, e.g., Merrion, 455 U.S. at 147 (explaining that Indian sover-
eignty is not conditioned on consent thereto by a nonmember; rather,
“the non-member’s presence and conduct on Indian lands are condi-
tioned by the limitations the tribe may choose to impose”); Montana,
450 U.S. at 565 (tribes may regulate the activities of nonmembers who
enter into consensual commercial relationships with the tribe).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1074
The majority’s reliance on the commercial nature of
the Tribe’s activity is no more persuasive. Indeed, the
Supreme Court rejected an argument premised on just
such a theory in the Potawatomi Indian Tribe case,73 yet
another post-Coeur d’Alene decision. In that case, the
Potawatomi Tribe owned and operated a convenience
store on land held in trust for it by the Federal Govern-
ment. The Tribe sued the State of Oklahoma in federal
district court to enjoin the State’s efforts to collect State
taxes on sales of cigarettes at the store. Oklahoma ar-
gued, as the majority does here, that tribal business ac-
tivities such as cigarette sales were so detached from
traditional tribal interests that no sovereign right would
be affected by subjecting tribal business ventures to State
regulation.74 The Court disagreed. Congress “has al-
ways been at liberty to dispense with . . . tribal immunity
or to limit it,” the Court observed, but has not done so,
and has, in fact, reiterated in various pieces of legislation
“a desire to promote the goal of Indian self-government,
including its overriding goal of encouraging tribal self-
sufficiency and economic development.”75 Conse-
quently, the Court refused “to modify the long-
established principle of sovereign immunity” simply be-
cause the tribe was involved in a commercial venture on
Indian lands.76
The same reasoning applies here. Operation of the ca-
sino clearly furthers the repeatedly expressed Congres-
sional objective of encouraging tribal self-sufficiency
and economic development, which can only occur
through commercial activity. The casino provides criti-
cal training and employment opportunities for Tribe
members and has lifted many out of poverty. Unlike
privately operated gaming establishments, the revenues
of the casino flow directly to the Tribe and its members.
Those revenues are vital not just to the plethora of social
and educational projects the Tribe funds, but also to the
economic security and stability of the Tribe itself. The
employment policies, practices and regulations estab-
lished by the Tribe embody and implicate tribal values,
and the casino is situated within the territorial sovereign
boundaries of the Tribe’s reservation. Therefore, opera-
tion of the casino on the Tribe’s reservation is an “inter-
nal matter” directly implicating “rights of self-
governance,” and we should not, even under a Coeur
d’Alene analysis, assert jurisdiction in the absence of a
clear expression of Congressional intent. Because no

73 Oklahoma Tax Commission v. Citizen Band Potawatomi Indian
Tribe of Oklahoma, supra, 498 U.S. 505.
74 Id., 498 U.S. at 509–510.
75 Id., 498 U.S. at 510 (internal quotations and citations omitted).
76 Id.
such “clear expression” appears in the Act, jurisdiction
does not lie.
Conclusion
There may well be sound policy reasons for Congress
to subject Indian-owned and operated business enter-
prises, including those located within tribal sovereign
boundaries, to the full range of Federal labor and em-
ployment laws, including Title VII and the Act. As the
majority correctly notes, such statutes may not be inher-
ently incompatible with Federal policies favoring Indian
sovereignty, self-determination and economic develop-
ment. Moreover, even if they were, Congress possesses
plenary authority to abrogate Indian sovereign rights and
immunities. All that is required is a clear and express
indication that Congress has weighed the competing pol-
icy interests and resolved them in favor of Federal au-
thority. Because the Act evinces no such express Con-
gressional intent, and because the majority’s analysis
cannot be squared with controlling Board and Supreme
Court precedent, I respectfully dissent.