In 1960 in Federal Power Commission v. Tuscarora, the Supreme Court allowed Tuscarora lands to be taken and flooded for a dam, holding that the relevant federal statute did not expressly exempt Indian nations. This decision was so violative of Indian sovereignty that Justice Black was moved to passionately dissent, writing that "Great nations, like great men, should keep their word," and the so-called "Tuscarora rule" of interpreting federal statutes of general applicability to be binding upon Indian nations has not often been followed.
Indian people were thus shocked last month when in San Manuel Indian Bingo and Casino, the National Labor Relations Board applied the Tuscarora rule and asserted jurisdiction over tribally owned and operated commercial enterprises, regardless of whether they are located on or off reservation land. The 3 - 1 decision overruling nearly 30 years of precedent is an illogical stray from well-established Indian sovereignty principles and threatens to dramatically impact tribal sovereignty. The majority's distinction between governmental and proprietary functions does not grasp the unique character of tribal sovereignty, and the board's new case-by-case method of determining jurisdiction leaves the door open to jeopardize both tribal sovereignty and the basic right of a sovereign to control internal matters that affect its members. The decision comes at a time when many tribes, including the San Manuel Band, are operating successful gaming operations and employing a large number of non-Indians. Because of their newfound success, tribes are being penalized for participating in the national economy and reaching economic
self-sufficiency. The NLRB's decision is a far cry from the federal Indian policy of self-determination and is a dangerous step towards limiting tribal sovereignty.
The NLRB's view that tribally owned and operated commercial enterprises affecting interstate commerce do not implicate the special attributes of sovereignty is a misjudgment, to say the least. The majority too easily separates commercial aspects of tribal businesses from tribal governmental functions, when in fact the two are essentially inseparable. The Indian Gaming Regulatory Act requires tribal gaming revenues to be used to fund tribal government operations and programs, including health, education, human services, law enforcement, roads, water and sewer projects and tribal courts. This fact alone suggests that proprietary and governmental functions are inextricably linked. Providing for the general welfare of the tribe and its members is critically tied to the success of tribally owned and operated commercial enterprises. Tribal dependence on commercial enterprises for revenue stems from the fact that Indian tribal governments generally are unable to fund important government services through the collection of property and income taxes. Peter Schaumber, the lone dissenting NLRB member, understood the distinctive nature of tribal governments and stated that "operation of the casino clearly furthers the repeatedly expressed Congressional objective of encouraging tribal self-sufficiency and economic development, which can only occur through commercial activity." The majority's insistence on separating commercial from governmental functions promotes dependence on the federal government rather than tribal self-sufficiency and economic development. Surely, that is not the path Congress envisioned tribal nations would follow in the 21st century.
Furthermore, because tribal commercial enterprise revenues fund tribal governmental programs, the assertion of NLRB jurisdiction regarding labor relations could endanger vital tribal services in the future. Labor unions have been forging strong campaigns to organize tribal casinos and other tribally owned operations. Labor union organization at tribal enterprises represents a threat not only to the tribal business operations but more importantly can imperil the tribe and its members in general and cast a shadow over the tribe's ability to control its internal matters and protect its members.
The NLRB majority's approach towards tribes acting in a commercial manner seems to suggest that tribes do not adequately provide for its employees, specifically non-Indians. The common accusation that tribally operated facilities, including casinos, are permitted to mistreat employees under the guise of tribal sovereign immunity coincides with the majority's biased opinion of tribal labor relations. The NLRB majority however, conveniently overlooked the fact that the San Manuel Band's comprehensive Tribal Labor Relations Ordinance (TLRO) already regulates labor relations at the casino. In fact, in the San Manuel case, the dispute revolved around the Hotel Employees & Restaurant Employees International Union's objection to not being given access to casino employees for organizing purposes, because the tribe had given access to another union. Many tribes throughout the country have adopted similar ordinances that provide employees with the right to self-organization, to join employee organizations and to choose their representatives to collectively bargain for them. Since TLROs essentially replicate the protections afforded by the National Labor Relations Act, the NLRB's new assertion of jurisdiction is unnecessary.
The question becomes, what can tribes do to either get around the decision or to satisfy the NLRB's new Tuscarora rule analysis? One of the more appealing options would be for the decision to be reversed on appeal. Hopefully, a federal court will apply the traditional principles of Indian sovereignty and reach a different result from the NLRB. However, leaving the decision to the federal courts is not always the most promising option. Another alternative would be a direct request to Congress to revise the National Labor Relations Act's provision for NLRB jurisdiction so as to expressly exempt Indian tribes from the Act's coverage.
One small glimmer of hope that the San Manuel decision offers is the NLRB's emphasis on a case-by-case analysis. While the NLRB seems to be steadfast in its distinction between commercial and governmental functions, there is still the possibility that a tribe's business relations could fall under one of the Tuscarora rule's exemptions, specifically the treaty exemption. For instance, in the San Manuel case, the band did not have a treaty with the United States and therefore had no possibility of qualifying under the treaty exemption. Tribes that do have treaties with the United States might be able to claim the treaty exemption if application of the NLRA would abrogate those treaty rights. This still leaves a large number of tribes operating without treaties vulnerable to NLRB jurisdiction.
Regardless of the method tribes choose to follow, the road will certainly not be an easy one. Although the NLRB has stated that careful balancing is required to determine whether or not to assert jurisdiction, the odds seem likely that the NLRB will begin to intervene in labor matters at tribal enterprises. NLRB assertion of jurisdiction is not only an attack on tribal sovereignty but also a significant obstacle for tribes seeking to become self-sufficient and economically independent.