2004- Labor Relations and Tribal Self-Governance

This article argues that the San Manuel decision and the Tuscarora- Coeur d’Alene line of cases adopt the wrong approach to determine whether federal statutes of general applicability that are silent as to tribes effectively divest tribes of their sovereign powers. Part I describes the Board’s decision in the San Manuel Indian Bingo and Casino matter. Part II discusses how the Board’s analysis departs from the foundational principles of federal Indian law, the Indian canon of construction, and even the Supreme Court’s developing implicit divestiture doctrine, leading the Board to apply an overly-restrictive, subjective test that minimizes sovereignty and ignores congressional policy. Part III describes the NLRA and argues that Congress did not intend for it to divest tribes of their sovereign powers. Part IV proposes strategies that tribes can adopt to continue to assert tribal sovereignty in labor relations.