Indian Sovereignty, General Federal Laws, and the Canons of Construction: An Overview and Update

Abstract

This article focuses on the application within Indian country of federal regulatory typically dealing with labor relations, employment, health, the environment, and other social and economic issues (i.e., general federal laws or GFLs), and their impact on Indian Nation governments and tribal enterprises. This article takes the position that a GFL, just like specialized Indian legislation and all potentially affecting the ancient rights and sovereignty of Indian Nations, should be subjected to the rules of interpretation known as the Indian law of construction. The U.S. Court of Appeals for the Ninth Circuit in Donovan v. Coeur d'Alene Tribal Farm (1985) (Coeur d'Alene) adopted a troubling and contrary rule of interpretation. The article also touches on a range of deeper issues concerning the relative power of Congress as compared to administrative agencies and the U.S. Supreme Court as compared to lower federal courts (including the U.S. Court of Appeals for the Ninth Circuit). These issues raise concerns going well beyond the field of American Indian law. They touch on constitutional law, the separation of powers, administrative law, and labor law. The article updates the author's 2007 Oregon Law Review and 2008 Michigan State Law Review articles, which criticized various aspects of the Coeur d'Alene doctrine. It reviews some key points about the Ninth Circuit's remarkable three-judge panel opinion in Coeur d'Alene, which (for more than thirty years now) has frustrated Indian country lawyers and out-muscled the Supreme Court itself in influencing other lower-court rulings on how to interpret GFLs in relation to Indian country. Coeur d'Alene has effectively overruled (in many federal circuits and for many GFLs) the weight of more than a century of Supreme Court jurisprudence on the Indian law canons of construction. The article also reviews some aspects of the notorious San Manuel cases. In that litigation, the National Labor Relations Board (NLRB or Board), in 2004, and the U.S. Court of Appeals for the District of Columbia Circuit, in 2007, deployed the Coeur d'Alene doctrine to extend the National Labor Relations Act (NLRA) to on-reservation employment by tribal government-owned gaming enterprises, even though that has never been authorized or intended by Congress. That specific issue of federal labor law, and the broader dispute over Coeur d'Alene, emerged again in 2015 with appeals to the Sixth and Tenth Circuits over application of the NLRA to tribal casinos. Those appeals were resolved by three important decisions discussed in Part V of this article: one by the NLRB (effectively mooting the Tenth Circuit appeal) and two by the Sixth Circuit. Following the Introduction (Part I), Part II of the article discusses the classical canons of construction governing Indian law, and contrasts them with the Coeur d'Alene doctrine which has flourished in the lower federal courts. Part III highlights the stunning degree of irony (not to mention outright defiance of the Supreme Court) in the lower courts' treatment of the Supreme Court's 1960 decision in Federal Power Commission v. Tuscarora Indian Nation. Part IV discusses continuing struggles over the Coeur d'Alene doctrine in the lower federal courts. Part V discusses the 2015 decisions, and where things have gone from there. Part VI concludes the article.