Bryan H. Wildenthal, Thomas Jefferson School of Law, has posted a new paper, Federal Labor Law, Tribal Sovereignty, and the Indian Law Canons of Construction. Here's the abstract:
In 2004 the National Labor Relations Board, over a powerful dissent, overruled its own 1976 precedent and effectively rewrote the National Labor Relations Act of 1935 to apply to Indian tribal government employment within Indian country. In February 2007 the D.C. Circuit upheld this decision in San Manuel Band v. NLRB. What was the occasion for these startling and activist exercises in administrative and judicial lawmaking? Apparently, the growth and success of Indian tribal casinos. Judge Janice Rogers Brown's opinion for the D.C. Circuit purported to reaffirm longstanding Supreme Court canons of construction governing Indian law, yet she ended up affirming the Board's decision. This article argues, in part, that the Board and D.C. Circuit decisions violate the canons and that only Congress, after careful and deliberate consideration of all competing policy interests, has any authority to make such a dramatic change in federal labor law as applied to Indian country. But the scope and implications of this article go much further. The San Manuel decisions are profoundly important for what they portend about the future of tribal sovereignty and Indian law generally. They show how lower courts and administrative agencies may recast important principles affecting entire fields of law without the guidance or approval of either Congress or the Supreme Court, and even against clear teachings of the Supreme Court. San Manuel is the culmination of an approach, often referred to as the Tuscarora-Coeur d'Alene doctrine, that lower courts have been building for more than twenty years on the basis of a stray alternative holding in the Supreme Court's 1960 Tuscarora decision—one of the most reviled cases of the now-discredited Termination Era of Indian law (1945-61). This doctrine, never approved by the Supreme Court, threatens to radically undermine the canons of construction heretofore guiding the entire field of Indian law. This doctrine has already affected the interpretation of not just the NLRA but a wide range of so-called generally applicable federal laws. Yet, as this article shows in a wide-ranging examination of the Indian law canons, the lower-court Coeur d'Alene decision lending its name to this doctrine was decided the same year that the Supreme curtailed and laid to rest its own troubling statement in Tuscarora that was its seed. During the years since, the Supreme Court has generally adhered to the canons, while lower courts have proceeded to dismantle them in case after case, San Manuel being the latest and most important. If the Supreme Court reviews San Manuel, it seems destined to be one of the most important cases in modern Indian law. If not, it may in some ways be even more important, because it calls into question more generally the Supreme Court's willingness and ability to guide and police the development of judicial case law in important fields of federal policy and legislation. The final part of the article draws upon the insights of constitutional case law on federal-state relations (notably the Supreme Court's 1985 Garcia decision), and other sources, to argue that Indian nations deserve the same freedom as states to experiment with government programs that some may disparage as non-traditional. Indeed, the Board and D.C. Circuit commercial-traditional taxonomy in San Manuel makes no sense and is patronizing to Indian tribes.