Whether the National Labor Relations Board (Board or NLRB) had jurisdiction over the petitioner-Casino’s employment practices; National Labor Relations Act (NLRA) (29 USC § 151 et seq.); Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc.; Holly Farms Corp. v. NLRB; Whether treaties between the U.S. and the predecessors of the Native American Tribe (the Tribe) operating the casino prevented application of the NLRA to a tribal-owned casino operated on trust land within a reservation; Native American law canons of construction; Santa Clara Pueblo v. Martinez; The treaties’ general right of exclusion; Minnesota v. Mille Lacs Band of Chippewa Indians; Donovan v. Navajo Forest Prods. Indus. (10th Cir.); U.S. Dep’t of Labor v. Occupational Safety & Health Review Comm’n (9th Cir.); Smart v. State Farm Ins. Co. (7th Cir.); "Inherent sovereignty rights"; NLRB v. Little River Band of Ottawa Indians Tribal Gov’t.; Worcester v. Georgia; Montana v. United States; Nevada v. Hicks; Plains Commerce Bank v. Long Family Land & Cattle Co.; Donovan v. Coeur d’Alene Tribal Farm (9th Cir.); NLRB v. Pueblo San Juan (10th Cir.); Iowa Mut. Ins. Co. v. LaPlante; San Manuel Indian Bingo & Casino (NLRB); San Manuel Indian Bingo & Casino v. NLRB (DC Cir.)

Under prior precedent (Little River – see e-Journal # 60132 in the 6/25/15 edition), the court was constrained to hold that the NLRA applied to the petitioner-Soaring Eagle Casino and Resort’s employment practices. The Casino, owned and operated by the Saginaw Chippewa Indian Tribe of Michigan, discharged an employee for violating the Casino’s no-union solicitation policy. The Board determined that the policy violated the NLRA and ordered the Casino to cease and desist from implementing the rule and to reinstate the employee with back pay and benefits. The court enforced the Board’s Decision and Order, holding that “the Board has jurisdiction over the Casino’s employment practices.” Applying the Chevron analysis, the court considered whether “1855 and 1864 Treaties, or federal Indian law and policies, prevent application of the NLRA to a tribal-owned casino operated on trust land within a reservation[.]” It rejected the Casino’s argument that the Treaties’ language barred enforcement of the NLRA, and instead “ultimately agree[d] with the Board that a general treaty right to exclude, such as the one described in the 1864 Treaty, alone is insufficient to prevent application of the NLRA to the Casino.” In an issue of first impression in this circuit, the court concluded “that a general right of exclusion, with no additional specificity, is insufficient to bar application of federal regulatory statutes of general applicability.” Absent a “direct conflict between a specific right of exclusion and the entry necessary for effectuating the statutory scheme,” the court refused to “prohibit application of generally applicable federal regulatory authority to tribes on the existence of such a treaty right alone.” The court next considered whether “the Tribe’s inherent sovereignty rights preclude application of the NLRA to the on-reservation Casino.” The court would have applied Montana to conclude that, “as a sovereign, the Tribe has the power to enter into contractual relationships with nonmember individuals and entities for work on reservation property, whether Indian owned or not, and to place conditions on those contracts.” However, it was bound under Little River to conclude “that the Casino operated by the Tribe on trust land falls within the scope of the NLRA, and that the NLRB has jurisdiction over the Casino.” Affirmed.