Tribes in “Unexpected Places”The NLRA, Tribal Economic Actors, and Common Law Expectations of Tribal Authenticity Stephen H. Greetham (bio) expectation and anomaly in the fields of statutory silence In the midst of the Great Depression, Congress enacted the National Labor Relations Act (nlra),1 a sweeping reform statute that arose from a specific historical moment to quell economic disruptions by creating a framework for nongovernment worker collective bargaining rights. Notwithstanding the fact that Congress took such action barely one year after it passed the Indian Reorganization Act (ira),2 another sweeping reform statute that arose from a different (but equally specific) historical moment to attempt a reversal of the government’s destructive allotment and assimilation policies, the nlra makes no mention of American Indian tribes or Congress’s intent for the act’s application in their regard. More to the point, while the act defines “employer” to exclude a range of largely governmental actors,3 it makes no mention of tribal governments, much less express provision relating to their status (or not) as statutory “employers.” When considered in the context of the law’s general treatment of tribes as sovereign or quasi-sovereign actors and the modern reality of increasing tribal economic activity, that silence has contributed to a burst of litigation over its implications for tribal workplaces and rights to self-determination and governmental economic development. From its inception, US federal Indian law has ostensibly put the government’s political branches in charge of defining the legal rights and status of American Indian tribes.4 However, those branches have often treated tribes as an afterthought and, at such times, have offered only awkward statutory silences as to how their enactments should be read in relation to indigenous legal and political rights. Those silences, in turn, [End Page 427] give way to litigation over how one should divine the relevant political branch’s intent, thus inviting the courts into those fields from which so much of federal Indian law has grown: the common law. This dynamic is now playing out in relation to the nlra’s particular silence, with arguments essentially turning on the question of who should bear the burden of the statutory silence, the defending tribe or the federal regulator. However, rather than offering an analysis of those particular arguments,5 this article examines the subject more broadly through the lens of Philip Deloria’s theory of expectation and anomaly, offering an exploration of the cultural discourses within the federal common law of American Indian affairs rather than the legal doctrines that ostensibly drive its development and application. In Indians in Unexpected Places, Deloria persuasively illustrates through a series of case studies from the worlds of, among others, sports, music, and technology how specific social mechanisms (i.e., stereotypes and ideologies that manifest through the cultural discourses of power relations) serve to restrict American Indians to a specific place in the collective consciousness, a place that limits any adaptive notion of identity: “The key ideologies describing Indian people—inevitable disappearance, primitive purity, and savage violence, to name only a few—have brought . . . uneven disadvantage to the social, political, economic, and legal relations lived out between Indians and non-Indian Americans.”6 Deloria traces the effect of these ideologies in shaping cultural expectations of tribal identity and argues that designation of a noncon-forming tribal actor as an anomaly serves two powerful purposes: first, to reinforce the overriding colonial discourse on the proper place, role, and identity of American Indians—a “mutually constitutive” process through which perception of anomaly shapes the very expectation that is offended; and second, to provide material justification for treating the anomalous tribal actor as a threat that should be put back in its place.7 As he puts it, “Expectations . . . exist in relation to concrete actions,”8 meaning that cultures have ways of coercing conformance. As such, these expectations are not mere social conventions but, instead, are the very means by which we build social orders. While his model is more typically applied to the analysis of historic, cultural, and literary phenomena and texts, the relationship Deloria maps among expectation, anomaly, and coerced conformance renders it an apt frame for the reading of...